U.S. Mineral Products Co.

National Labor Relations Board - Board Decisions

Sep 17, 1985

276 N.L.R.B. 140 (N.L.R.B. 1985)

140 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Mineral Products Co. and Local 427, Interna-
tional Union , Electronics , Electrical,* Technical
Salaried and Machine Workers, AFL-CIO.
Case 22-CA-13572
17 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 10 June 1985 Administrative Law Judge
James L. Rose ' issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as'modified below and orders that the Re-
spondent, U.S. Mineral Products Co., Stanhope,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(c) of the
judge's recommended Order.
"(c) Post at its facility in Stanhope, New Jersey,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall' be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material."
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law' Judge. This
matter was tried before me on 13 March 1985, at
Newark, New Jersey.' As amended at the 'hearing, the
complaint alleges that Elsie Holley and Kathryn McCon-
nell were denied reinstatement following termination of
an economic strike in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act. •
The Respondent generally denied that it engaged in
any unfair labor practices; and specifically contends that
by the time there were openings available for these two
individuals in jobs they had done prior to the strike, they
were no longer employees within the meaning of Section
2(3) of the Act. The Respondent argues that there was
no current labor dispute and, further, their right to pref-
erential recall ended a year after the beginning of the
strike. The Respondent also contends that both indicated
they would accept only specific jobs on a specific shift
and it never had such openings. Finally the Respondent
argues that Holley is somehow estopped inasmuch as she
knew that a job to which she is claiming reinstatement
had been posted for bid within the plant.
On the record as a whole , including my observation of
the witnesses, and the briefs and arguments of counsel, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a corporation engaged in-the manu-
facture and nonretail sale and distribution of installation
and related products and services operating two manu-
facturing facilities and one warehouse in Stanhope, New
Jersey. During the course of its business, the Respondent
annually ships from Stanhope products, goods, and mate-
rials valued in excess of $50,000 directly to points outside
the State of New Jersey. The Respondent admits, and I
find, that it at all times material has been an employer
engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 427, International Union of Electronics, Electri-
cal, Technical , Salaried and Machine Workers, AFL-
CIO (the Union) is admitted to be, and I find is, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES '
i The judge's recommended Order requires that the notice to employ-
ees be posted at the Respondent 's Newark , New Jersey facility. Howev-
er, the Respondent 's premises are in Stanhope, New Jersey . The Order is
amended accordingly
Marguerite R. Greenfield, Esq., of Newark, New Jersey,
for the General Counsel.
James B. Clark, Esq., of Springfield, New Jersey, for the
Respondent.
A. The Facts
For many years the Union has represented a produc-
tion and maintenance unit of the Respondent's employ-
ees. During negotiations for a successor to the 1980-1982
contract, bargaining unit employees including Holley and
McConnell engaged in an economic strike. The strike
i The complaint issued on 7 January 1985 on a charge filed 27 Novem-
ber 1984.
'276, NLRB No. 22
US MINERAL PRODUCTS CO
started on 1 January 1983 and ended in August that year
however prior to then certain employees began request
ing reinstatement
Thus on 9 and 13 June respectively Holley and Mc
Connell called Peter Rushton the Respondent s manager
of human resources and asked for reinstatement Both
had worked as cutters in the cellofoam plant on the first
(day) shift The Respondent has cutter jobs on two shifts
Below the job classification of cutter are two categories
of general service labor and janitor
When Holley called Rushton he asked if she would be
willing to take another job I said no that I was a
cutter and that I went out as a cutter and that I would
go back as a cutter Rushton stated that he would put
her on the preferential hiring list and when there was an
opening he would call her
When McConnell called Rushton said that her job
was filled but she would be put on the preferential hiring
list He did not ask whether she would be willing to take
another job such as general service laborer
Neither Holley nor McConnell told Rushton she
would accept employment only on the first shift nor did
Rushton ask either at this time or later if she would
accept a second shift job
On 19 April 1984 M Van Damia a cutter on the first
shift left his employment but that job was not immedi
ately filled And in September 1984 R Linden a cutter
on the second shift left his employment In September
the Respondent determined to fill two cutter positions on
the second shift
On 5 and 19 September these jobs were posted for in
plant bid One was awarded to George Trimmer who
had been a striker and had returned to work first as a
general service laborer and then as a blender operator
The other was awarded to Bob Korby, who prior to the
strike had worked about a year as a guard and then
during the strike was taken into the bargaining unit as
general service laborer Both Trimmer who had worked
for the Respondent about 10 years and Korby who had
worked in the bargaining unit slightly over a year were
well junior to Holley with 20 years of employment and
McConnell with 19
In September after the Company s decision to post the
jobs McConnell once again called Rushton to see if she
still was on the preferential hiring list Rushton said she
was but did not indicate to her that the Company had
openings in her former job nor did he offer her one of
those jobs at that time Although Holley learned that the
Company was going to post two cutter jobs she did not
bid on them or otherwise contact the Company mdicat
ing that she wanted one
On 19 January 1985 the Respondent offered Holley
and McConnell cutter jobs on the second shift Both ac
cepted and at the time of the hearing were working in
those positions
B Issue
The principal issue in this matter is whether there is a
limitation period after which replaced economic strikers
no longer have a preferential right to recall
141
C Analysis and Concluding Findings
On these undisputed facts the General Counsel con
tends that the Respondents failure to recall Holley and
McConnell to the jobs they held prior to the strike after
they offered to return is violative of Section 8(a)(3) and
(1) under the principles laid down by the Supreme Court
in N L R B v F l e e t w o o d Trailer C o 389 U S 375 (1967)
and the Board in Laidlaw Corp 171 NLRB 1366 (1968)
These cases recognize an economic striker s continued
status as an employee and his entitlement upon request
to be returned to his former job or a substantially equiv
alent position absent proof of legitimate and substantial
business reasons But where an economic striker has
been permanently replaced his entitlement to reinstate
ment is limited to being put on a preferential hiring list
with the company not being required to reinstate him
unless and until his former job or its equivalent comes
open by termination or expansion However once the
striker accepts permanent employment elsewhere, he
ceases to be an employee of the company and is no
longer entitled to reinstatement rights
Here there is no question that Holley and McConnell
requested reinstatement in June 1983 nor is there any
question that jobs in which they had worked became
available at least by September 1984 Yet neither was
contacted by the Company and offered reinstatement
Rather these jobs were offered to currently working em
ployees one of whom had been a reinstated striker junior
in seniority to Holley or McConnell and the other of
whom was tantamount to a striker replacement In these
circumstances the Respondent was not entitled to bypass
Holley and McConnell, who were clearly qualified un
reinstated strikers MCC Pacific Valves 244 NLRB 931
(1979)
The Respondent basically argues that the time during
which these individuals were entitled to reinstatement
had expired By Section 2(3) of the Act employee is
defined to include any individual whose work has
ceased as a consequence of or in connection with any
current labor dispute The Respondent argues that fol
lowing the end of a labor dispute (in this case the strike)
an individual no longer on the payroll of the Company is
not entitled to protection of the Act as an employee
Thus by August when the strike ended (or at least short
ly thereafter) Holley and McConnell were no longer out
of work in connection with a current labor dispute and
were not entitled to protection as employees 2
Such is too literal and narrow a construction of cur
rent If accepted such would have the effect of denying
the right to reinstatement to replaced strikers after the
end of the strike notwithstanding the recognized right to
such reinstatement To accept the Respondent s conten
tion would severely diminish employees right to strike
and would destabilize labor relations by tending to pro
long strikes
In like vein, the Respondent contends that employees
are entitled to reinstatement only within a year of the be
2 There is no contention that either Holley or McConnell had obtained
any other regular and substantially equivalent employment Nor would
the evidence of record support sich a finding
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ginning of an economic strike because by Section
9(c)(3), economic strikers are not eligible to vote if the
election takes place more than a year after the coin
mencement of the strike The Respondent argues that
this limitation should be included in the definition of an
employee in Section 2(3)
If employees would be protected by the Act for only 1
year such would effectively nullify their right to strike
There is simply no Board or court authority suggesting
that employees have a right to strike for 1 year only
after which they would lose all protection of the Act
Nor is there any rational policy basis for such a limits
tion on this fundamental employee right Indeed the
Board has held to the contrary We likewise reject the
Respondents contention that a time limit should be
placed on the reinstatement rights of economic strikers
Brooks Research & Mfg 202 NLRB 634 636 (1973)
I therefore reject the Respondents contention that
Holley and McConnell were not entitled to reinstatement
in September 1984 because they were no longer employ
ees Rather I conclude that under the principles set
down by the Board in Laidlaw these individuals as eco
nomic strikers who had requested reinstatement were en
titled to be offered such job openings as became avail
able
The Respondent also contends that somehow it would
be in jeopardy in perpetuity if it was required to offer
reinstatement to all employees when jobs came open
However whatever burden may be encountered by the
Respondent in this regard seems to be relevantly maignif
icant And here I note that McConnell contacted the Re
spondent at the time after it had determined to fill the
two cutter positions yet Rushton did not offer a job to
her The Respondent did not explain why it did not do
so
The Respondent contends that Holley should be es
topped on grounds that she knew that the two jobs had
been posted and she did not make an effort to bid on
them Bidding is clearly a procedure to be used by cur
rently active employees and in any event, it is the Re
spondent who has the burden of contacting the employ
ees after they have offered themselves for reinstatement
The employees burden is simply to keep the employer
informed as to how he can be contacted Further an em
ployee s statutory rights cannot be so lightly denied As
the Supreme Court has recently reaffirmed, an employee
cannot be denied his statutory rights absent a clear and
unmistakable waiver Metropolitan Edison Co v NLRB,
460 US 693 (1983)
Finally the Respondent argues that implicitly both
Holley and McConnell indicated they would accept
cutter jobs only on the first shift Neither stated this to
the Respondent McConnell told Rushton that she would
accept any employment Although Holley did limit her
desire for reinstatement to a cutter job there is nothing
in her statement to Rushton which would suggest that
she intended to accept only the first shift The Respond
ent s argument that she sent a signal is simply too
weak to justify the Respondents failure to offer Holley
reinstatement in September 1984 In any event, substan
tially equivalent employment includes the same shift,
and had Holley refused any but the first shift she would
not have lost her status on the preferential hiring list
Harvey Engineering Corp 270 NLRB 1290 (1984)
I therefore conclude that by failing to recall Holley
and McConnell in September 1984 to the job classifica
tion they held at the time they commenced striking the
Respondent violated Section 8(a)(3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above occurring in
connection with the Respondents business 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 thereof within the meaning of Section 2(6)
and (7) of the Act
V THE REMEDY
Having concluded that the Respondent engaged in
certain unfair labor practices I shall order it to cease and
desist therefrom and to take certain affirmative action
Since there is no contention that Holley and McConnell
were unlawfully denied reinstatement prior to 5 Septem
ber 1984 and since by January 1985 they were reinstated
to their former jobs (albeit on a different shift) it is ap-
propriate to limit the remedial order I shall recommend
that the Respondent be ordered to make whole Elsie
Holley and Kathryn McConnell for any loss of wages or
other rights and benefits they may have suffered from 5
September (the date of the first posting) until the date
they were reinstated under the formula set forth in F
W Woolworth Co 90 NLRB 289 (1950), with interest as
provided for in Florida Steel Corp 231 NLRB 651
(1977) s
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed4
ORDER
The Respondent, U S Mineral Products Co Stan
hope. New Jersey its officers agents, successors and as
signs shall
1 Cease and desist from
(a) Refusing upon request to reinstate all economic
strikers to their former or substantially equivalent posy
tenons of employment
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action designed to of
fectuate the policies of the Act
(a) Make whole Elsie Holley and Kathryn McConnell
for any loss of wages and any other rights and benefits
they may have suffered as a result of the Respondent s
S See generally Isis Plumbing Co 138 NLRB 716 (1962)
4 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings , conclusions , and recommended
Order shall as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses-
US MINERAL PRODUCTS CO
failure to recall them to their jobs as of 5 September
1984
(b) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records, timecards,
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(c) Post at its facility in Newark New Jersey copies
of the attached notice marked Appendix 6 Copies of
the notice on forms provided by the Regional Director
for Region 22 after being signed by the Respondent s
authorized representatives shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material
If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
143
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT refuse on request to reinstate econom
is strikers to their former or substantially equivalent posi
tions of employment when such jobs become open
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL make whole Elsie Holley and Kathryn Mc
Connell for any losses they may have suffered as a result
of our failure to reinstate them in a timely manner with
interest
U S MINERAL PRODUCTS CO