Union Carbide Corp.

National Labor Relations Board - Board Decisions

Mar 4, 1969

174 N.L.R.B. 989 (N.L.R.B. 1969)

UNION CARBIDE CORPORATION 989
Union Carbide Corporation and Alan ' E. Withrow
and Elza Moss and Henry A. Mullins. Cases
9-CA-4558, 9-CA-4564-1, and 9-CA-4564-2
period .' See Difco Laboratories , Inc., 172 NLRB
No. 235; Southern Greyhound Lines, 169 NLRB
No. 148.
March 4, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 22, 1968, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, 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 attached Trial Examiner's Decision
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
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 these cases 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 Respondent's exceptions
and brief, and the entire record in these cases, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as herein
modified.'
THE REMEDY
Insofar as it provides that Alan Withrow, Elza
Moss, and Henry Mullins are to receive backpay
from the date of their discharges, the Board does
not adopt the Trial Examiner's Recommended
Order. It is the Board's practice not to award
backpay to employees discriminatorily discharged
while on strike because, until it appears that the
employees have given up the strike, it cannot be
established that the loss of wages was attributable to
the employer's conduct. See Kohler Co., 128 NLRB
1062, 1110. Since it is reasonable to infer from the
record that the three sympathy strikers would have
returned to work on October 9, 1967, the day after
the picket line was removed, the Respondent will be
required to make them whole for their loss of
earnings by payment to each of them of the sum
which they would normally have earned on and after
October 9, 1967, to the date the Respondent offers
them reinstatement, less their net earnings for that
'We affirm the Trial Examiner's finding that the discharges violated
Section 8( a)(l) Because the remedy would be the same whether the
discharges were found violative of Section 8(a)(1) or (3) of the Act, we
need not decide whether the discharges were also violative of Section
8(a)(3) Accordingly, we do not adopt the Trial Examiner's finding of a
violation of that section
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Union Carbide Corporation, Charleston, West
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
1. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
2. Insert the following as the fourth indented
paragraph of the notice:
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
'Like the Trial Examiner, we reject the Respondent's contention that the
three discharged strikers may not have been employed in any event at the
conclusion of the strike, since it is uncontested that all personnel reductions
in the Respondent's operations prior to January 1968 were achieved
through attrition Whether or not the three employees would have been
working beyond that date is a matter which may properly be litigated in
the compliance stage of the proceedings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S WILSON, Trial Examiner Upon charges
duly filed by Charging Parties Withrow, Moss, and
Mullins filed respectively on December 20, 26, and 29,
1967, the General Counsel of the National Labor
Relations Board, hereinafter referred to as the General
Counsel' and the Board, respectively, by the Regional
Director for Region 9, Cincinnati, Ohio, issued its
complaint dated March 20, 1968, against Union Carbide
Corporation, hereinafter referred to as the Respondent
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting the
commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Labor Management
Relations Act, as amended, herein referred to as the Act.
Respondent duly filed an answer admitting certain
allegations of the complaint, but denying the commission
of any unfair labor practices
'This term specifically includes the attorney appearing for the General
Counsel at the hearing
174 NLRB No. 147
1 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice a hearing thereon was held before
me in Charleston, West Virginia, on June 27, 1968 All
parties appeared at the hearing, were represented by
counsel , and were afforded full opportunity to be heard, to
produce and cross-examine witnesses, and to introduce
evidence material and pertinent to the issue. At the
conclusion of the hearing oral argument was waived.
Briefs were received from General Counsel and
Respondent on August 15, 1968.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find.
Union Carbide Corporation is a New York corporation
engaged in the manufacture of chemicals and plastics at
its plant in South Charleston, West Virginia. During the
past year, which is a representative period, Respondent
had a direct outflow of products in interstate commerce
valued in excess of $50,000 which it sold and shipped
directly from its said plant in South Charleston, West
Virginia, to points outside the State of West Virginia
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Ii. THE CHARGING PARTIES
The Charging Parties, Elza Moss, Alan Withrow, and
Henry Mullins were until early August 1967 each
employed by Respondent in the construction division of its
Engineering Department which was headquartered at a
Respondent building known as the Technical Center
located near Charleston, West Virginia.
Elza Moss was employed as a first class welder with 6
years of earned seniority Mullins was employed as a
journeyman pipefitter with 8 years of earned seniority.
Withrow was employed by Respondent in January 1967 as
an apprentice pipefitter
It was stipulated at the hearing that the employees of
the Construction Division constituted a separated
appropriate bargaining unit which during the time
material here was not represented in collective bargaining
by any labor organization even though many of the
employees therein were members of their own craft
unions.
III THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent has three main separate installations in and
around the Charleston, West Virginia, area which are
commonly known as the Institute plant, the South
Charleston plant, and the Technical Center ' Each of these
locations is physically separated from the other by several
miles and each has separate organizations and separate
staffs While the Institute and South Charleston plants are
production facilities, the Technical Center engages in no
production, but rather is concerned with the design,
construction, research, and development of Respondent's
other production facilities. The Technical Center is a
separate organization and administratively separated from
both the South Charleston or Institute plants. All three
locations are completely separate as to supervisory
functions The initial administrative tie-in of the three
locations is on a corporate level of vice president in New
York.
The Institute and South Charleston plants are engaged
in the manufacture of chemicals with each having its own
complete roster of production and maintenance
employees. At the South Charleston plant the employees
of the production and maintenance appropriate unit were
represented by a local of the International Association of
Machinists (IAM).
The Design and Engineering Department engages in no
production work. Its primary function is the designing and
installation of new capital facilities for chemical
production in other plants of despondent, including
Institute and South Charleston The design section of the
department is housed at the Technical Center. The Design
and Engineering Department also has a Construction
Division consisting of various craftsmen and laborers
divided into approximately 20 crafts normally used in
construction projects such as, riggers, ironworkers,
millwrights, pipefitters, carpenters, electricians, laborers,
and cement finishers, which is headquartered at the
Technical Center but does the actual construction work in
the production plants where either new construction or
maintenance work is being done by the department. The
Construction Division is used for the purpose of building
new or revising existing installations to manufacture
chemicals in accordance with designs prepared at the
Technical Center. About 85 percent of the work of the
Construction Division is that of new construction while
the remaining 15 percent is either rearrangement type
work or ordinary plant maintenance ' At the completion
of a new capital installation or of requested maintenance
work, the installation is turned back to the operating
personnel either at the Institute or South Charleston
plant The Construction Division has fluctuated during the
past 5 years from approximately 1,200 to 800 craftsmen
and laborers . As noted heretofore, the employees of the
Construction Division constituted an appropriate unit
separate and distinct from any and all appropriate units
comprised of employees at Respondent's production
facilities in and around the Charleston area
As of July 1967 all three Charging Parties had been
assigned and were working as part of the Construction
Division on Engineering Department work at the South
Charlston plant.
As of this same time IAM, the recognized bargaining
agent for the production and maintenance employees of
the South Charlston plant, was engaged in negotiating a
new contract with Respondent for the South Charleston
production and maintenance unit
When it bacame apparent that there was little
likelihood of an agreement being reached between IAM
and the South Charleston plant management, the
Engineering Department determined to carry on the
'The factual findings made here will admittedly be largely plagiarized
from Respondent 's brief There will, however , be a few ommissions, a few
additions , and a few changes , all minor
'Joseph Fallon , the Associate Director of the Engineering Department
during all times material herein testified that on occasions when
maintenance departments at nearby production facilities would become
overburdened , his department would be asked to perform that maintenance
work and thus relieve the plant ' s own maintenance crew of that
maintenance work This was known as "50 Order Work" whereas new
capital project work which would be depreciated over a 13-year period was
known by the accounting symbol of "930 Orders "
UNION CARBIDE CORPORATION 991
operations it was then engaged in at the South Charleston
plant, even if JAM struck that plant. So J. W Fallon,
Associate Director of the Engineering Department,
prepared and had read to the construction employees then
engaged in work at the South Charleston plant the
following
TAILGATE MESSAGE JULY 24, 1967
As you probably know the current collective
bargaining agreement between the South Charleston
Plant and the International Association of Machinists
(IAM) expires at midnight. The union failed to ratify
the contract yesterday and a strike has been called for
11 59 tonight.
The Construction Department has a good deal of
work to do in the Plant and since we are not party to
the contract and are therefore not involved in the
dispute, we will continue to perform our regular work
even though the Plant is struck The possibility does
exist that the gates will be picketed when you arrive in
the morning. Should this occur, each Construction
employee is expected to come through the gate and
report to his assigned work site You may use any gate
you wish except Gates 14 under the Route 60 overpass
at the Polyethylene Unit and 9A, the pedestrian gate,
just west of Gate 9, which are to be strictly reserved for
contractors' and suppliers You may prefer to drive in
and to use Gate 18 which is located near Bldg 406 at
the Gas Separation area off Route 60 at the east end of
the overpass since it will be marked as a gate for
"Construction Work" and will provide the best access
to the parking area at the Lilly Pond.
Any employee who does not report to his assigned
job site during normal working hours will not, of
course, receive any wages and will be subject to
disciplinary action as in the case of absenteeism Should
you not be able to report to work we expect you to call
in as is normally done The following numbers should
be used. 747-6008, 6423, 6471, 6680
On July 25, the production and maintenance employees
of the South Charleston plant represented by the JAM
went out on a legal economic strike on behalf; of their
bargaining demands and began picketing the South
Charleston plant. This picket line remained until October
8, 1967
On July 25, Alan Withrow, Elza Moss, and Henry A.
Mullins, the three Charging Parties, appeared individually
at the gates to the South Charleston plant ready and
willing to go to work. Each found the gate picketed by
JAM members Each decided against walking through the
picket line as a matter of principle and, in one case, as a
matter of fear. In the case of Withrow, the pipefitter
apprentice, there was the added fear that he would lose his
status as a pipefitter's apprentice if he crossed the line.
Each of the Charging Parties turned back and two, Moss
and Mullins, returned to their homes where-they called
and reported that their absence from work was due to the
presence of the picket line at the plant. Withrow went
down to the union hall seeking a temporary job which he
got the following day. Thereafter Moss and Mullins each
reported daily that he was absent due to the picket line in
front of the plant or, in Moss' case, on occasions that he
was on jury duty
In addition to having the supervisors read the "Tailgate
Message" to all the Construction Department employees
prior to the strike, Fallon outlined to the supervisors the
following procedures adopted by Respondent designed to
keep the construction employees working in the South
Charleston plant despite the presence of an JAM picket
line
(1) After a construction employee had been absent from
work for 3 days because of the strike, his supervisor was
to get in touch with the employee by phone or in person
to urge him to return to work and warn him of possible
disciplinary action if he failed to do so;
(2) After 5 days of continued absence, the employee
was to be sent a letter over Fallon's signature stating in
pertinent part:
This letter is sent to you as a warning in accordance
with our disciplinary policy. Continued failure to report
for work could result in more severe disciplinary action
being taken up to, and possibly including, discharge,' or
Please be advised that if you miss four more working
days without a valid excuse for your absence, such as
jury duty, we will regard you as terminating your
employment with Union Carbide 6
(3) On the ninth day of continued absence Respondent
notified the employee that "In accordance with Mr
Fallon's letter to you, dated August 4th, you were
removed from the payroll as of this date" and
arrangements were set forth for settling final financial
accounts such as earned vacation pay, savings plan, etc.
This outlined procedure was followed to the letter as to
each of the three Charging Parties here
As Respondent pointed out, the above procedure or
campaign reduced the number of absent employees from
109 the first day of the strike to 11 on the ninth and fatal
day when the 11,' including the Charging Parties, were
notified of their "removal from the payroll" and
arrangements made for final financial settlements
Under date of July 27, Respondent over the signature
of J M. Fallon wrote Withrow as follows
The current strike at the South Charleston plant does
not affect the construction department. There is
peaceful picketing at the plant and a vast majority of
our construction employees have reported for work.
This has been accomplished without any incidents
occurring at the plant gates.
We attempted to contact you by telephone on July
27 to discuss your current absence from work. As you
are aware, you were absent from work on July 25, 26,
and 27 and we consider this as an unexcused absence
This letter is sent to you as a warning in accordance
with our disciplinary policy. Continued failure to report
for work could result in more severe disciplinary action
being taken up to, and possibly including, discharge.
If you have any questions on our position in this
matter, please feel free to contact your craft manager.
Moss and Mullins received substantially similar letters.
The letter to Moss read in substantial part as follows-
Last week we explained to you that the current strike
at the South Charleston Plant does not affect the
Construction Department and that you were expected
to continue your normal work schedule.
Today marks the fifth day that you have been absent
from work excluding the time you have been on jury
'By this order not to use the Contractors ' Gate Respondent recognized
the obvious distinction between the employees of Independent Contractors
and its own Construction Department employees
'From the letter Respondent sent Withrow dated July 27
'From the letter Respondent sent Moss on August 4 The difference in
the date is due to the fact that Moss had been doing jury duty
'Eight of these eleven filed no charges here
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duty Please be advised that if you miss four more
working days without a valid excuse for your absence,
such as jury duty, we will regard you as terminating
your employment with Union Carbide
During this period Mullins and Moss requested
reassignment to Construction Division work at some plant
not then on strike The request for transfer was refused.
One requested to be put on leave of absence This request
was also refused
After each of the Charging Parties had been absent
from work for a period of 9 days each was notified that
he was considered to have terminated his employment
with Respondent and that his name had been removed
from the payrolls Thereafter a final financial accounting
was made by Respondent with each of the Charging
Parties
The South Charleston strike ended on October 8, 1967
Promptly after the end of the strike Withrow returned
to the South Charleston plant seeking his job back He
was told that he was considered as having terminated his
employment back in August When Withrow inquired if
he could make application for employment as an
apprentice pipefitter, he was told that he would have to
make application for the labor gang and work up through
the labor gang to an apprentice job Withrow refused
None of the three Charging Parties has ever been
reinstated.
B Conclusions
These undisputed facts found above lead to the
conclusions, here found, that:
1 As soon as Respondent became convinced that IAM,
representing the production and maintenance unit
employees at the South Charleston plant, was about to
engage in a legal economic strike in support of its
unsatisfied negotiating demands, Respondent's Design and
Engineering Department commenced a campaign designed
to force its own construction (nonunit) employees to cross
the IAM picket line in order to continue their work in the
South Charleston plant on pain of disciplinary action
"including discharge" for failure to do so:
2. As a result of these tactics, the 109 out of 425
employees who failed to cross the picket line in order to
report for work in the South Charleston plant on June 25
had been by the ninth day of the strike reduced in number
to 11 who had stuck to their principles not to cross a
legitimate picket line
3 On or about the ninth day of the strike Respondent
discharged the three Charging Parties' for their failure to
report for work behind the IAM picket line and because
.they continued to honor that picket line despite
Respondent's orders to the contrary.
These conclusions raise legal questions.
(1) As to the right of a nonunit employee to honor a
legitimate picket line placed around the employer's place
of business by a union representing other of his employees
in another appropriate unit,
(2) As to the right of that employer to discharge the
nonunit employee for respecting a legitimate picket line of
the union representing his employees in a different and
separate appropriate unit
If, by chance, any doubt as to the answers to the above
questions remained after the decisions in Biles-Coleman
Lumber Co v N L R.B, 98 F 2d J8, 23 (C A 9, 1938),
'Apparently the other eight suffered a similar fate but filed no charges
here
enfg 4 NLRB 679, 706, that doubt was removed when the
Board adopted the well-reasoned and documented Trial
Examiner's Decision by Trial Examiner Fannie Boyls in
Southern Greyhound Lines, 169 NLRB No. 148, stating
in pertinent part
It is found that Respondent did unlawfully terminate
Anderson's employment when it discharged her for
refusing to cross the picket line and come to work In
refusing to cross the picket line at her place of
employment and come to work, Anderson was assisting
the labor organization then on strike It did not matter
that she was not a member of the bargaining unit
represented by that union or of any other bargaining
unit It is well settled that Section 7 of the Act protects
an employee in his right to assist a labor organization
regardless of whether he is eligible for membership in it
and that his employer violates Section 8(a)(1) of the
Act by discharging him for engaging in this protected
activity
This Board Decision decided all points raised by
Respondent in the instant case adversely to Respondent's
contention except for one not there involved
Respondent raises one point here not decided in the
Southern Greyhound case It appears in Respondent's
brief as follows
It is Respondent's position that, even assuming
Moss, Mullins and Withrow were engaged in protected
activity [as already found here] and thus afforded the
normal of rights of economic strikers, they need not be
reinstated at the conclusion of the strike inasmuch as
their jobs had been eliminated because of a contraction
of the total work force
Fallon testified that at the time the strike occurred
on July 25, 1967, there was a downward trend in the
employment of the construction force. This was
recognized six to nine months in advance of this time
based on the fact that there was no new or sizeable
projects in the engineering stage that would require as
many employees on the construction force as there were
in June of 1967
* * *
The decrease in the work force from June 18, 1967
to January of 1968 was accomplished by normal
attrition This includes separation from the payroll due
to retirement, disability, voluntary quits, etc No
personnel were hired to replace the decrease of normal
attrition Lake stated that experience has shown that
normal attrition amounts to 8 employees a month
This, of course, is an average
Normal attrition was utilized to trim the size of the
payroll in relation to the diminishing work of the
construction forces Normal attrition was sufficient,to
maintain an adequate workforce until January of 1968.
At that time it was necessary for Respondent to
affirmatively lay off employees From January on, both
attrition and layoff have been used to reduce the work
force. At the present time there are still employees on
layoff that had been effected since January 1968.
* * * * *
From all of the foregoing, it is clearly evident and
not contradicted by General Counsel, that Respondent's
'in the omitted part of the brief Respondent traces the decline of the
number of employees on this construction force from 1,086 on June 18,
1967, to 1,064 as of July 30, 1967, to 1,011 as of January 7, 1968
UNION CARBIDE CORPORATION 993
work force has contracted since prior to the strike and
is less today than at the time of the strike for
substantial and legitimate business reasons
It is self evident that the Charging Parties, Moss,
Mullins and Withrow, can claim no greater rights than
those of a normal economic striker Economic strikers
have rights to reinstatement at the conclusion of a
strike only if they have not been replaced or their jobs
eliminated or absorbed by other employees. N L R B
v Mackay Radio and Telegraph Co , 304 US 330 and
Universal Camera Corp v N L R B, 340 US 474.
Contrary to the claim made in its brief that the
"decrease in the work force from June 18, 1967, until
January of 1968 was accompolished by normal attrition,"
the fact is that Respondent unilaterally and illegally
eliminated the jobs held by the three Charging Parties
here by discharging and removing the Charging Parties
from the payroll There was no "normal attrition"
involved in any of these cases The three Charging Parties
were discharged and thereafter Respondent chose not to
refill the positions
Respondent could eliminate jobs legally when it was
done by attrition, i e , through the voluntary act of the
employee in ceasing his employment.
But Respondent could not eliminate the jobs of the
three Charging Parties here by discharge without violating
Section 2(3) of the Act
Section 2(3) of the Act defines an employee as
including "any individual whose work has ceased as a
consequence of, or in connection with, any current labor
dispute and who has not obtained any other regular
and substantially equivalent employment . " The work
Moss, Mullins, and Withrow had been performing as
employees of the Respondent ceased on July 25, 1967, as
a consequence of or in connection with the current labor
dispute between IAM and Respondent and none of the
Charging Parties had obtained regular and substantially
equivalent work elsewhere. Hence all three remained
employees of Respondent during the period of the current
labor dispute It is to be noted that the currency of the
labor dispute is the only time limitation mentioned in the
Act.
By oral and written word Respondent here illegally
conditioned the retention of their employment of the
Charging Parties upon their returning to work through the
IAM picket line within a period of 9 days This condition
required the Charging Parties to abandon their rights to
engage in concerted activities with and to assist in the
IAM's strike as guaranteed to them by Section 7 of the
Act. In addition the labor dispute between IAM and
Respondent remained current long after the expiration of
the 9-day period granted the Charging Parties by the
Respondent in its correspondence to them. As there is no
such time limitation as to the currency of the labor
dispute in the Act, this time condition imposed by
Respondent was also illegal In addition to the illegal time
limitation the further condition imposed by Respondent
that the Charging Parties return to work through the
IAM picket line required the Charging Parties to abandon
their rights to engage in protected concerted activities with
and on behalf of the IAM and its striking members These
conditions imposed by Respondent on the Charging
Parties' rights to retain employment with Respondent
effectively and illegally nullified the rights guaranteed
them by Section 7 of the Act
In fact the whole campaign devised by Respondent
from the "Tailgate Message" of July 24 through the 3-
and 5-day notices to return to work through the picket
line upon pain of "disciplinary action, including
discharge" tended and was intended to interfere with,
restrain, and coerce Respondent's employees, including the
Charging Parties, into abandoning their rights guaranteed
them by Section 7 of the Act to engage in protected
concerted activities, all in violation of Section 8(a)(1) of
the Act.
As Moss, Mullins, and Withrow were illegally
discharged early in the month of August 1967, it is
immaterial that Mullins and Moss did not thereafter seek
reinstatement as that would have been a futile gesture as
proven by the request after October 8, 1967, by Withrow
for such reinstatement. As illegally discharged employees
it is incumbent upon Respondent to seek out the employee
and offer him reinstatement '°
Respondent's campaign of intimidation of those who
refused to cross the picket line proved successful in that it
reduced the number of employees continuing to exercise
their Section 7 rights by refusing to cross a legitimate
picket line from 109 on the first day of the strike to 11 on
the ninth day thereof when those I I were "dropped from
the payroll" because Respondent "considered that they
had voluntarily terminated their employment" by failing
to report for work on the ninth day In less euphemistic
language Respondent fired the II illegally, as found
above
The distinction here between "normal attrition" and
discharge becomes of importance as regards Respondent's
argument to the effect that the "contraction" of jobs
prevents the reinstatement of the three Charging Parties
As Respondent pointed out, this contraction was
accomplished exclusively through "normal attrition", i e.,
not filling jobs voluntarily relinquished by the jobholder
This was so in all cases until January 1968, except as
regards the three Charging Parties - forgetting the
remaining eight who filed no charges here The facts show
that there were jobs for these three right up to the instant
of their discharge In fact Respondent was making a
terrific effort to retain the services of these three - if
they would cross the picket line - right through the ninth
day of grace given them by Respondent As Respondent
would not have made such intensive efforts if there had
been no work, it is obvious that there were jobs for the
three at least until the ninth day of grace provided by
Respondent had passed and Respondent had become
convinced that these three intended to exercise their
guaranteed rights to engage in concerted activities despite
Respondent's efforts Hence there were jobs for the three,
even though under the rules promulgated by Respondent
the three had to abandon the rights given them in Section
7 in order to keep the jobs Therefore the three are
entitled to reinstatement.
Apparently forgetting these three aforementioned illegal
discharges, Respondent contends that the first layoff
necessitated by lack of jobs occurred in January 1968,
another indication that there were jobs available for the
three if they had been willing to cross the picket lines In
cases of layoff it was Respondent's rule to select the
individuals to be laid off according to strict rules of
seniority It is very possible that under such rules of
seniority neither Moss nor Mullins with their 6 and 8
years of seniority would have been eliminated even in
Respondent's January layoffs Withrow's rights during the
January 1968 layoff can be determined in a compliance
proceeding
"See N L R B v Cowell Portland Cement Company, 148 F 2d 237, 245
(C A 9), cert denied 326 U S 735
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently I must find that the three Charging
Parties were and are entitled to reinstatement
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Alan E
Withrow, Elza Moss, and Henry A Mullins by
discharging each of them in the first week of August 1967,
because of his protected concerted activities on behalf of
the IAM, I will recommend that Respondent offer to each
of them immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges and make each of
them whole for any loss of pay he may have suffered by
reason of said discrimination against him by payment to
him of a sum of money equal to that which he would have
earned from the date of the discrimination against him to
the date of his reinstatement, less his net earnings during
such period, in accordance with the formula set forth in
F W Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum
Because of the variety of the unfair labor practices
engaged in by Respondent going to the heart of the Act, I
sense an opposition by Respondent to the policies of the
Act in general, in answer I deem it necessary to order
Respondent to cease and desist from in any manner
infringing upon the rights guaranteed its employees in
Section 7 of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following
CONCLUSION OF LAW
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
hereby ordered that Respondent, Union Carbide
Corporation, Charleston, West Virginia, its officers,
agents, successors, and assigns, shall
I Cease and desist from
(a) Discharging any employee because he has engaged
in concerted activities and assisted a labor organization by
refusing to cross a lawful picket line at his place of work
(b) Threatening its employees with disciplinary action,
including possible discharge, for refusing to cross a picket
line of any labor organization of its own employees
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act
2. Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer to each, Alan E Withrow, Elza Moss, and
Henry A. Mullins, immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by him
by reason of the unlawful discharge in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records helpful to analyze and determine
the amount of backpay due under the terms of this
Recommended Order
(c) Post at its Technical Center, Institute, and South
Charleston plants copies of the attached notice marked
"Appendix "" Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."2
IT IS FURTHER RECOMMENDED that, unless Respondent
notifies said Regional Director within 20 days from the
receipt hereof that it will take the action here
recommended, the Board issue an order directing the
Respondent to take the action here recommended
I By discharging and thereafter refusing to reinstate
Alan E Withrow, Elza Moss, and Henry A. Mullins
because each of them engaged in the protected activity of
assisting a labor organization, Respondent has interfered
with, restrained, and coerced each of them in the exercise
of his rights guaranteed by Section 7 of the Act and has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
2. By discriminating in regard to the hire and tenure of
employment of Alan E. Withrow, Elza Vloss, and Henry
A Mullins in order to discourage protected concerted
activity and assistance to a labor organization Respondent
has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act
3 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner' in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
'NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
UNION CARBIDE CORPORATION
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discharge or refuse to reinstate any
employee for refusing to cross a picket line to come to
work during a lawful strike at any of our plants
WE WILL NOT threaten any of our employees with
discharge or refuse to reinstate for failing to cross a
legal picket line to go to work at any of our plants.
WE WILL offer to each, Alan E. Withrow, Elza
Moss, and Henry A. Mullins, immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to any seniority or other
rights and privileges previously enjoyed by him, and
make him whole for any loss of pay which he may have
suffered by reason of his discharge with interest thereon
at 6 percent per annum
WE WILL NOT in any manner interfere with, restrain,
995
or coerce any employee in the exercise of his rights
guaranteed under the Act to assist a labor organization
or to engage in concerted protected activities.
Dated By
UNION CARBIDE
CORPORATION
(Employer)
(Representative ) (Title)
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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Office
Building, Room 2407, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686