General Electric Co.

National Labor Relations Board - Board Decisions

Sep 27, 1971

193 N.L.R.B. 372 (N.L.R.B. 1971)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Electric Company (Coshocton , Ohio Plant)
and United Steelworkers of America , AFL-CIO.
Case 8-CA-5834
September 27, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 25, 1971, Trial Examiner Fannie M. Boyls
issued her Decision in the above-entitled case, finding
that the Respondent had not engaged in certain unfair
labor practices alleged in the complaint, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and the Charging Party filed
timely exceptions to the Trial Examiner's Decision
and supporting briefs and the Respondent filed a brief
in support of the Trial Examiner's Decision.
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 be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case, initiated by
a charge filed on April 24, 1970, and a complaint issued on
August 19, 1970, was tried before me in Coshocton, Ohio,
on January 20, 1971. The complaint alleged and Respon-
dent's answer denied that Respondent had violated Section
8(a)(1) of the Act by laying off eight unrepresented office
clerical employees during the course of a strike called by
the Union representing a production and maintenance unit
of Respondent's employees because such office clerical
employees refused to perform work normally done by the
I On motion of the General Counsel during the course of the hearing,
the complaint was amended to delete from the complaint the name of one
striking employees.] Subsequent to the hearing the General
Counsel, the Charging Party, and Respondent filed helpful
beefs.
Upon the entire record in this case and from my
observation of the witnesses, and after carefully considering
the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation having plants in
various states of the United States, including one in
Coshocton, Ohio, which is the only plant here involved. At
its Coshocton plant Respondent manufactures plastic
laminates and in connection therewith it annually ships
products valued in excess of $50,000 from its plant directly
to points located outside the State of Ohio. On the basis of
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
ii. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, the Charg-
ing Party herein , is admittedly a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGED
A. Issue Presented
The sole issue here involved is whether an employer may
lawfully lay off nonunit unrepresented employees for the
period of an economic strike by represented employees
because the nonunit employees refuse to perform work
normally performed by the striking employees.
B. The Evidentiary Facts
In October 1969 Respondent employed approximately
1,225 people , of whom about 846 were production and
maintenance employees represented by United Steelwork-
ers of America , AFL-CIO, Local 4377, herein called the
Union . Two employees were represented by International
Association of Machinists and Aerospace Workers, Local
Lodge 1437, and three employees were represented by
International Union of Operating Engineers Local Union
No. 89. The remainder of the 1,225 were supervisory,
managerial , marketing, and office clerical personnel and
were unrepresented . About 70 or 71 of this unrepresented
group consisted of office clerical employees-the category
of employees here in issue.
In anticipation of a long strike by the Union because of
inability to reach agreement on the terms of a union
contract to succeed the one expiring on October 26, 1969,
the office clerical employees were informed by manage-
ment , in group meetings of the employees as well as by a
letter dated October 24, 1969 , that Respondent intended to
operate its plant during the strike and that each employee
would be expected to perform whatever work to which he
might be assigned.
of these employees, Reta Chapman No evidence was adduced with respect
to this employee and the motion to amend was granted
193 NLRB No. 56
GENERAL ELECTRIC COMPANY
The anticipated strike was called on October 24, 1970, as
the result of exhausted grievances and continued after the
expiration of the bargaining agreement until a new
agreement was reached on February 4, 1970.
Management officials had determined to continue
operating to the extent that it was possible during the strike
in order to minimize the long-term loss of customers and to
provide as much work as possible for the nonunit
personnel , most of whose work would necessarily diminish
or disappear with a continuing lack of production work. To
accomplish these ends , it was decided that the supervisory
and management personnel , the salesmen , and the office
clerical employees would have to participate to some extent
in getting out production.
Management representatives believed that office clerical
employees in general would prefer not to perform the
production work of the strikers either because of a
reluctance to hurt the strikers ' cause or because they
considered production work a less agreeable type of work
than office clerical work . Management believed that a
morale problem would arise if some but not all of the office
clerical employees were required to do strike -bound work.
It was accordingly decided that work schedules would be
made up , providing that each office clerical employee take
her turn at production work at some time during the strike.
The work of some of the office clerical employees was
closely related to production work and was quickly affected
by the curtailment of production . Some of the office
clericals, however , (including three-Bantum , Sees, and
Gross-named in the complaint ) could have kept busy
throughout the strike performing solely their own regular
type of work . Management , nevertheless , decided that it
would be more fair to the office clerical employees as a
group and improve their morale if all had to take their turn
at production work.
Respondent 's position was explained to each of the
approximately 70 office clericals before she was actually
assigned to production work . Each was told that work
schedules would be prepared , indicating as to each when
she would be expected to come to work dressed for
production work . Some were scheduled to do production
work soon after the strike started and others not for several
weeks thereafter.
Each of the seven office clericals here in issue voiced an
objection to performing production work . Janice Bantum
explained that her husband was in the bargaining unit and
she did not think it was fair for her to do production work
while he was on the picket line. Sylvia Sees, after talking to
her husband about the matter , told her supervisor that both
she and her husband felt that she should not do the
production work and she refused to do it . Virgie Holder
refused to do the production work because she "was in
sympathy with the hourly workers" and "didn ' t want to do
this strike-bound work ." Evelyn Vickers, in explaining her
refusal to do production work , told her supervisor: "My
husband didn't want me to and that also I worked with the
production workers and I wouldn ' t feel right going in and
possibly doing their work and having to face them " Bonnie
Bryant refused to do production work , as she informed her
supervisor , because her husband was a union member and
2 With respect to Bryant , Respondent contended that she was only a
373
would be on the picket line. Pauline Gross was in the group
of 17 accounting department employees to whom her
supervisor explained Respondent 's plan to operate during
the strike and when he asked the group if anyone then
present would not want to work "in the plant" (as
distinguished from the office ) after the strike commenced,
she replied , " I believe I won't be working in the plant" and
she thereafter adhered to her determination when assigned
to production work. It was stipulated at the hearing that
another employee, June Cramer, if called , would testify
substantially as the other employees mentioned above
(except Bryant) with respect to the circumstances of her
layoff following her refusal to do production work.2
When the turn of each of the seven employees for
performing production work was reached on Respondent's
work schedules and each refused to do that type of work,
she was laid off for the duration of the strike . Each appears
to have been willing to perform whatever office clerical
work might become available for her but Respondent was
unwilling to have her continue to do that work unless she
also performed the production work allotted to her. At the
conclusion of the strike all of them returned to their office
clerical work except Sylvia Sees, who had obtained other
employment during the strike and did not wish to return,
and Bonnie Bryant , the temporary employee whose
employment by Respondent had terminated during the
strike.
C. Analysis and Conclusions
The answer to the question here posed requires a
balancing of the conflicting rights of the employer to carry
on his business during the course of an economic strike and
the rights of employees outside the striking umt to refrain
from performing the strikers' work.
I have no doubt that a refusal by employees to perform
strikers' work , like a refusal to cross a picket line in the
performance of their jobs, "is literally for `mutual aid or
protection ,' as well as to assist a labor organization within
the meaning of Section 7." Redwing Carriers, Inc., 137
NLRB 1545, modifying 130 NLRB 1208, affd . sub nom.
Teamsters, etc., Local Union No. 79 v. N.L.R.B., 325 F.2d
1011 (C.A.D.C.), cert. denied 377 U.S. 905; Southern
Greyhound Lines, 169 NLRB 627, enfd. 426 F.2d 1299 (C.A.
5). Their employer may not , therefore , punish or retaliate
against them for refusing to do the strikers' work.
The employer, on the other hand , has a right to attempt
to carry on his business in the face of a strike and may
employ anyone he can obtain to perform the strikers' work.
It seems clear from the record that Respondent 's decision
to rotate all office clerical employees between office clerical
duties and production work was motivated by legitimate
business considerations and I find no basis for inferring
that it layoff for the duration of the strike of all office
clerical employees who refused, when their turn came, to
perform strikers' work was motivated by any desire to
punish or retaliate against employees who evinced sympa-
thy for the strikers ' cause . Respondent did not discharge the
noncooperating office clericals as the employer did in
Cooper Thermometer, 154 NLRB 502; nor did it layoff the
temporary employee and that her work was completed dunng the strike
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for a period beyond the duration of the strike, as
the employer did in Montana-Dakota Utilities Co., 189
NLRB No. I11. It merely treated them as sympathy stnkers
who by their own choice elected to stay away from work for
the duration of the strike rather than assist Respondent in
performing whatever duties might be assigned to them in
order to minimize the effect of the strike on Respondent's
business.
The General Counsel points out that there was some
office clerical work available for each of the seven
complainants subsequent to their layoff and that three of
them, if their type of work had not been divided between
the office clericals, could have kept busy at their own work
throughout the strike. He argues that Respondent could not
lawfully refuse to permit these employees to perform such
work if and when it became available dunng the strike.
Respondent states, on the other hand, that the performance
of production work made more clerical work available and
that but for its efforts to keep production going in the
manner it did, some types of clerical work would have dried
up immediately and other types would have been
substantially reduced during the strike, making it impossi-
ble for Respondent to furnish the amount of office clerical
work it did provide during the strike. It argues that it was a
reasonable business judgment by Respondent's manage-
ment that any attempt to favor some employees by
permitting them to restrict their work solely to office
clerical duties and avoid production work would necessari-
ly cause discontent, claims of unfairness, loss of morale,
and perhaps eventually loss of production through the
accumulation of similar requests by other office clerical
employees.
I find that Respondent, in dividing the office clerical
work insofar as practicable among all the office clerical
employees who were willing to take their turn at assisting
with production work, was acting in the interest of
preserving the efficient operation of its business during the
strike and that there were "legitimate and substantial
business justifications" for its action, which were para-
mount in importance to any possible restraining effect such
action may have had on the exercise by office clerical
employees of their Section 7 rights. Cf. N.L.R.B. v. Great
Dane Trailers, 388 U.S. 26, 34. Those office clericals who
refused to do the work assigned to them, like employees
who refuse to cross a picket line to work, were placing
themselves in the position of sympathy strikers and were
entitled to no more protection than the strikers themselves.
N.L.R.B. v. Southern Greyhound Lines, 426 F.2d 1299, 1301
(C.A. 5); G & H Towing Company, 168 NLRB 589, 600;
Gardner-Denver Company, 58 NLRB 81, 82-83.
Although the precise question here in issue was not
before the Board in The Cooper Thermometer Company, 154
NLRB 502, the Board there indicated that it would reach
the conclusion I have reached herein if faced with
substantially the same factual situation. In the Cooper case
an office clerical employee, who normally worked across
the street from production workers of her employer, was
discharged because she refused to cross the picket line of
the striking production workers to perform production
work. The Board found that the discharge of the clerical
employee, Kraucalis, for refusing to do the production
work and the refusal to take her back at the conclusion of
the strike despite the fact that no replacement had been
obtained for her during the strike, was a violation of Section
8(a)(1) of the statute. The Board added, however:
We do not mean to intimate by what has been said
above that the Respondent was obliged to retain
Kraucalis in a pay status notwithstanding her refusal to
perform the production work it chose to assign to her. If
in the circumstances the Respondent did not wish to
continue Kraucalis during the period of the stnke in an
exclusively clerical position, or to lay her off if the strike
temporarily eliminated the need for her clerical services,
it was free to treat her as a stnker-a status which in
legal effect, we find, she, herself, assumed when she
refused to comply with the Respondent's instruction to
cross the picket line to do strikers' work. But the
Respondent could not, we hold, punish her for
exercising her statutory rights by permanently severing
her employment.
The General Counsel in his brief points out certain factual
distinctions between this case and the Cooper case on the
basis of which he argues that the dictum in Cooper is
inapplicable to the present situation. Although I believe the
distinctions are without legal significance, I would
nevertheless reach the same conclusion I have reached in
this case independently of the above-quoted rationale in
Cooper.
CONCLUSION OF LAW
On the basis of the facts set forth above and the entire
record, I find that Respondent did not violate Section
8(a)(1) of the Act in laying off for the duration of the strike
those office clerical employees who refused to perform the
stnkers' work which was assigned to them. There is
accordingly issued the following recommended:
ORDER
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed.