Superior National Bank

National Labor Relations Board - Board DecisionsDec 4, 1979

246 N.L.R.B. 721 (N.L.R.B. 1979)

SUPFRIOR NA'IONAI. BANK Superior National Bank & Trust Company and Retail Store Employees Union lAcal 214, AFL.-CIO. Cases 30 CA-4999 and 30 CA 5191 December 4. 1979 DECISION AND ORDER BY CIIAIRMAN FANNIN(; AND) MIMBI RS I.:NKINS AND PNt l o On August 20, 1979, Administrative L.aw Judge James L.. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions. a supporting brief' and a motion for oral argument. Counsel for the C;eneral Counsel filed a brief in sup- port of the Administrative aw Judge's l)ecision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions.' briefs, and motion2 and has decided to affirm the rulings, find- ings, and conclusions of the Administrative aw Judge. to amend his remedy as modified herein, and to adopt his recommended Order. The Administrative Law Judge's recommended remedy includes the finding that replacement employ- ees Nancy Wheeler and Mary Sue Jensen, both of whom were hired prior to November 29, 1978, but did not start work until November 30 and December 1, respectively, were not permanent replacements and therefore were subject to discharge. The Administra- tive Law Judge, in agreement with counsel for the General Counsel and the Union, concluded that the actual date of work determines the status of the re- placement. Respondent excepts and argues that this is contrary to Board precedent, citing H. & F. Binch Co. Plant of the Native Laces and Textile Division of In- dian Head, Inc., 188 NLRB 720 (1971), enfd. 456 F.2d 357 (2d Cir. 1972), as controlling the issue. We find merit to Respondent's exception. The court in H. & F. Binch, supra at 362, stated, "On the one hand, a mere offer, unaccepted when the striker seeks rein- statement, is insufficient to qualify; on the other, ac- tual arrival on the job should not be required if an understanding has been reached that this will occur at a reasonably early date." The commitment to hire I Respondent has excepted to certain credibility findings made by the Ad- ministrative aw Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. In,. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent has requested oral argument. This request is hereby denied, as the record, the exceptions. and bhnefs adequately present the issues and the positions of the parties. Wheeler and Jensen was made before the strike was converted and before any request for reinstatement was made by the strikers. Since a mutual understand- ing and commitment had been made which included the time these two employees would actually start work. Respondent gave them sufficient assurances that their positions were permanent. iUnder these cir- cumslances and in keeping with the rationale of Il. & 1 RBinlch Co., supra. we find that these acts constituted permanent hirings. Accordingkl. we reverse the Ad- ministrative Law Judge's conclusion and find that Wheeler and Jensen are permanent replacement m- ploe es. OR DI)ER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Rela- tions Board adopts as its Order the recommended Or- der' of the Administrative Law Judge and hereby or- ders that the Respondent. Superior National Bank & Trust Company. Hancock and Baraga, Michigan. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, ex- cept that the attached notice will be substituted for that of the Administrative Law Judge. ' For the reasons set forth in his dissenting opinion in .4hil e nd (,sJi- ,l,. In, . 241 NlRB 27 11979}. Member Penello sould order backpay for the two unlawfully discharged ,triker, to commence on April 10. 1979 APP ND)IX Noilw(: To EM1PLOYlEES Pos1EtI) BY ORDER ()tF iHE NAI()NAI. LABOR RELAII()ONS BOARD An Agency of the United States Government After a hearing at which all parties participated and were given the opportunity to call, to examine, and to cross-examine witnesses, it has been found that we violated the National Labor Relations Act, as amended, in certain respects. We have been ordered to stop such activity, to post this notice, and to abide by its terms. WE WILL NOT discharge our employees be- cause they engage in a lawful economic strike. WE WILL NOT refuse to reinstate upon request employees engaged in a strike protesting our un- fair labor practices. 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 Wl.t. offer to Christine Deforge. Milton Mauno, and all strikers who requested reinstate- 246 NLRB No. 123 721 DI)E(ISIONS OF NATIONAL LABOR RELATIONS BOARD ment and who had not been permanently re- placed on or before November 29. 1978, immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previ- ously enjoyed, and wEt wlti. make them whole ftr any losses they may have suffered as a result of the discrimination against them, with interest. SUPERI()R NATI(ONAL BANK & TRUSI CO(M- PANY D[ECISION SI A I NMI-N I OF I tl CASL I. Ii LIABOR OR(iANIZAIION INA OI.II) Retail Store Employees Union Local =214. AFI. (C(). receives into membership employees of' various employers. including Respondent, and has represented Respondent's emplosees in negotiations involving wages, hours, and other terms and conditions of employment. Indeed, the events involved in this matter arose out of and during the course of negotiations between the Union and Respondent fr successor collective-bargaining agreement. On these facts. I find and conclude that the UInion is a labor organi- zation within the meaning of Section 2(5) of the Act. Il. ilF A.I t(il) UNFAIR .AlBOR RAi II( S A. Backyroutnd F'acs JAMES L. Rosi. Administrative Law Judge: These con- solidated cases were heard before me on June 14 and 15. 1979. in Houghton, Michigan. The General Counsel's com- plaint alleges that on November 29. 1978., during the course of an economic strike, Respondent discharged strik- ing employees Christine DeForge and Milton Mauno in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. 29 U.S.C. Â§151, et eq. The General Counsel further alleges that as a result of the unlawful dis- charges the strike was converted into an unfair labor prac- tice strike, and that Respondent, by denying the immediate reinstatement upon request to all striking employees follow- ing their April 10. 1979, requests violated Section 8(a)(3) and (I) of the Act. Respondent generally denied that it has engaged in any unfair labor practices and affirmatively contends that it dis- charged DeForge and Mauno because they engaged in mis- conduct associated with their strike activity. Therefore the strike was not converted into an unfair labor practice strike: but alternatively, even if DeForge and Mauno were unlaw- fully discharged, the nature of the strike as economic was not changed. Upon the record as a whole, including my observation of the witnesses, briefs. and arguments of counsel, I hereby make the following: FINDINGS OF FA(T AND CONCLUSIONS OF LAW I. URISDICTION Respondent is a Michigan corporation engaged in the operation of a bank at facilities in Hancock and Baraga. Michigan. During the calendar year immediately preceding the issuance of the complaint herein, Respondent trans- ferred negotiable instruments in excess of $50,000 to banks located outside the State of Michigan for presentation, and during the same period received gross revenues in excess of $500,000 from investments, securities, and notes. Upon these agreed facts, I find and conclude that Respondent is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 I All dates are in 1978 unless otherwise indicated. 2 Stae Bank of lndia, 229 NLRB 838 (1977). The most recent collective-bargaining agreement was cf- fective November 1. 1975, until October 31, 1978, and was extended to November 8. During the course of negotiations, representatives of Respondent and the Union met but were unable to reach an agreement. Thus. tifollowing the negotia- tion session of November 8. Respondent's employees in the bargaining unit determined to engage in an economic strike which in fact began on the morning of November 9. During the early stages of the strike, the employees would begin picketing at 9:30 a.m., when the bank opened for business, and would picket in 30-minute shifts. A house behind the bank and about a block awas was used as the strike head- quarters. On the morning of' November 28. for the first time the strikers began picketing hefiore the nonstriking employees came to work at 8:30 a.m. Thus, beginning on November 28 the strikers were in front of the bank by about 7:30 a.m. On November 29 some strikers were present when re- placement employees began coming to work. Christine De- Forge recognized a former neighbor and high school class- mate, Lennon Paavo. As Paavo came down the sidewalk toward the bank, DeForge joined her, told her that she was a scab, and tried to persuade her not to go to work. (Paavo was recently hired as a replacement.) While there is sub- stantial variance in the versions of what happened offered by Respondent's and the General Counsel's witnesses, which will be discussed in more detail infra, I conclude that DeForge did call Paavo a scab, did try to influence her not to go to work, and during the course of their walking to- gether, just prior to DeForge turning around. DeForge placed one or both of her hands on Paavo. She did not, I conclude, physically abuse, assault, shake, or push Paavo. Witnessing this event was the bank's executive vice pres- ident and cashier, Kenneth D. Campbell. He testified that he concluded that such misbehavior on the part of striking employees could not be tolerated, thus he determined to call the police and to discharge DeForge, which he did by letter that day. Later that day Milton Mauno, who had worked for Re- spondent about 21 years. went into a grocery store behind the bank to buy a snow brush for his car. While in the store. he came upon a Kevin Hupp, whom he recognized as being a strike replacement. In an aisle of the store, Mauno said to 722 St'PERIO)R N IIONAI HANK Hupp that he was a "dan scab" anti should not he work- ing at the hbank. Hupp testified that Mauno then "took a swing" at him hut missed.' A tew minutes later, as Hupp was stranding in line to pa! for the cookies he wanted to purchase. Mauno humped into him. Mauno testified that this w;as an accident. that he said "pardon me." and that I upp replied, "()f course." I upp denied that Mauno said anthing to him at the time aind affirmativelv contended that M\auno pushed him. althouch he did not see Mauno do so. When lupp returned to work, he told the assistant cash- ier. Steve Palosarri. something of what happened. The stor was relaved to Campbell. who told them to go hack to the store and see if they could ind an' wiItnesses. Then Palo- sarri and lupp left the hank hut took a circuitous route to the store. making at least three stops on the s ,N. )urlng the course of their tra els. the! sasw Mauno on the pickel line, and ttupp identitied him as being the indliJduail in question. The fund no witnesses at the store and returned to the bank. Palosarri told (Campbell what he had learned. and Campbell. he testified, determined to discharge Mlauno because of Maiuno's act of "assiaulting an emplosee in the grocery store. It is noted that hile Palosarri indicated that the stor! related hy Itupp was "out of character" for Mauno. an individual he had known for about 5 ears. he did not ask Mauno his side of the story. Nor did Campbell attempt to contact Mauno to find out his version of v hat happened before determining to discharge him. Rather. Campbell acted on the assertions of a 2-day employee to discharge one of 21 ears' tenure. Following receipt of the discharge letters, the employees met with the Union's business manager. Richard Eiden. during which time Eiden told the employees that he be- lieved the discharges were unfair labor practices on the part of the C(ompany and recommended that they change their picket signs to read that the Compan was "unfair." The employees determined to do so, and also a handbill was distributed beginning on December I. the essence of vhich was that the Company had unlawfully discharged two strik- ing employees. The last negotiation session before the strike was Novem- ber 8. The parties met again on December 4 and II. T1he next meeting was on April 10, during the course of which Eiden, on behalf of the employees, requested that they be reinstated immediately to their jobs, and at the same time each of the striking employees submitted an application for reinstatement. The Company denied the blanket request for reinstatement, contending that the employees were eco- nomic strikers and that they would be placed on a preferen- tial hiring list. In fact, subsequent to April 10, 3 employees have been reinstated but the remaining 21 strikers, includ- ing DeForge and Mauno, have not been reinstated. 'I credit Mauno's denial that he swung at Hlupp. First. I felt thai Mauno's demeanor was more positive than Hlupp's. Mauno did not appear Io he particularly aggressive. and further the surrounding circumstances were not such as to expect that even an aggressive person would "take a swing" and upon missing move on, as is the essence of Hupp's story. Second. witnesses for Respondent who testified concerning what Mauno had old them imme- diately following the incident did nol recall that he said anNthing ahoui "taking a swing" at Hupp. B. /ssr s As indlicated above. the t o principal issues in this mat- te are vshether )DeF:orge and M\auno vere discharged in violation of Section 81a) 3) of the Act and if so vshether the iulaI Iul ischarge(s) contierted the economic strike into an untair labor practice strike. thus requiring Respondent to rcinstate upon demand all striking employees. ('. nil/i .sis id ( iot/tilig ilndin'gs U nlike most cases in, ol ing the alleged discrimination of anll emploee because of llis union actiits, motive here is not dispositi e. hus it is ell settled that once the General (Counsel establishes that the discharged cmployees vere en- gaged in protected ac.tivit. e.g.. an economic strike. and the discharges arose out f that acti. it%. then the burden shifts to RespondIent to demonstrate that t it had a good-faith he- lieft that tihe etnplo)ees discharged ere guilt> of sufficient mIisconduct to render them unemplo hable. If Respondent is able to meet this burden, then the General Counsel must come forw kard with evidence to den that a given employee did what it is claimed he did, and or that the activitN was not sufficient to justil\ his discharge. The burden then re- turns to Respondent to rebut such denials. In determining whether a striker's conduct is so serious as to vsarrant discharge or denial of reinstatement once the strike is concluded all the circumstances must be consid- ered. Such ealuation begins with noting that strikers, be- cause of the nature of strikes. many times do things which. vshile not to he condoned. nevertheless cannot be consid- ered sutlicient to justify removal of protection of the Act.' In distinguishing between "a trivial rough incident or a moment of animal exhuberance"' and one sufficiently egre- gious so as to den an emploee the continued protection of the Act. the Board distinguishes basically between acts of annoyance as opposed to actual physical violence upon people or property. Thus, inserting 22 nails point up in an expansion crack of a roadvay leading to the plant gate was found to be sufficient to deny reinstatementl as was threat- ening a nonstriker while actually physically assaulting an- other, which gave credibility and immediacy to the threat. On the other hand, just abusive language directed to non- strikers." throwing gravel or eggs.l 0 or spitting on nonstrik- ers' is not sufficient to deny reinstatement. In short, passive behavior of strikers is not required; however, there is a limit to permissible activity. That limit is 4 Rufin Bros Fooisear, Inc. and Rubin Brothers Fii ear, Inc, 99 NL.RB 610 1952). (rorone ('asual.r Inc.. 207 NLRB 304 (1t973). where an additional factor considered n determining whether the particular act of misconduct was suf- ficient Io deny reinstatement was the company's unfair labor practices which had prosolked the strike. Here. at the time of the discharges the strike was economic. Nevertheless, the Board's conclusion that not every act of miscon- duct strips from the employee the protective mantel of the Act is equally applicable here I ilA tikagon Drivers Union v IWead-msni or Dairies. Inc. 312 I S. 287, 293 1941) Borman's. Ins.. 199 NI.RB 1250 (1972). u C ( McQuaide. Inc.. 220 NLRB 593 11975). W . (' t( Qualde, Inc. upra 0 ('urtuler ('aual/, Inc . upra Rbhhm, (Colnpan. 233 Nt.RB 549 19771 723 l)E('ISIONS 01 NAIONIAL I.AH()BOR Rl.A'I IONS BOARI) the premeditated and repeated acts of phsical violence upon others and upon property. But even though Respon- dent's discharge of a striker may be prompted bh his picket line misconduct. such does not relieve Respondent from li- abilitl that it is an unfair labor practice it' it is found that the misconduct Uwas not of sufficient gravil under all the facts and circumstances.'' The incidents relied (on by Respondent to justit\ the dis- charges of DeForge and Mauno. even ift' the, occurred pre- cisel\ the way testilied to by Respondent's s itnesses, are simply too trivial to support a conclusion that I)eForge and Maunl thereby lost the protection of the Act. Paaso was called a scab and by her account was shaken briefl b DeForge. en if Paavo was shaken as she and Campbell recounted. she wias not in an! was harmed. I hlis isolated incident on the part of [el'Forge falls ilar short ot acts of physical violence fountd by the Board to justit' the discharge of a striker. Further, however. I d(o not believe C('ampbell and Paavo. Rather. I credit Jacalyn Strong, a more disinterested witness, who observed the entire scene. She testified that DelForge walked with P'aaso to the bank entrance, tried to dissuade her from going to work. and toward the end of their walk put her right hand on Paal\o's left arm. This. I believe. was the nature of the event ('allp- bell and Paavo later decided was a shaking and pushing. While Paavo was perhaps upset at being called a scab (and this may have caused her to cry). this encounter, even with the touching, was certainly not sufficiently severe to justify Respondent's discharge of I)eForge. And ('ampbell, having witnessed it, could not have a "good faith" belief that it was more serious than it was. While I ound Mauno to be a more believable witness than Hupp, I also found credible Joan Waara and ('indy Hill, who were witnesses for Respondent. In essence they testified that, on returning to the strike headquarters Mauno joked that he had bumped into (or shoved) llupp and then sarcastically said "Excuse me." Mauno did not tell them at this time that he had taken a swing at Hupp. Mauno's testimony about the grocery store event tracks the testimony of Waara and Hill concerning what he told them, differing only in emphasis. And in this respect I be- lieve Mauno was puffing a bit -taking credit for something (shoving Hupp) that he did not do. Had Mauno tried to hit Hupp it is more likely than not he would have reported this too. In short, I conclude that the grocery store confrontation (if it can be called that) between Mauno and Hupp hap- pened generally as described by Mauno and was trivial in the extreme. But even if these events occurred precisely as testified to by Hupp, it is still a trivial matter. Totally cred- iting Hupp would support only that Mauno called him "a god damn f--g scab," swung and missed, and some minutes later bumped into him. It is noteworthy that Mauno was an employee of the bank fr 21 years, yet Campbell chose to believe the version of these events as related by an employee of 2 days rather than even attempt to contact Mauno. And the attempt of Palosarri to find witnesses was carried out in such a manner as to suggest that he really was not interested in finding 12 W . ,McQuaide, Inc.. supra. any. IFrom these facts I certainly can inter that Respondent seized upon the grocer) store event as an excuse to dis- charge the senior unit emplosee because of his participation in the strike. 'I hus I conclude that Respondent was in lct discriminatorily motisated in discharging Mauno beyond that implicit in discharging an economic striker for insuffi- cient justification. In short. I conclude that the events relied on by Respon- dent are simply too trivial to justify the discharge (o an ec(onomic striker and. indeed. I affirniativels conclude that Respondent was motivated to discharge D)eForge and M.uno because they were engaging. along with other em- ploees. in an economic strike. The acts iof I)eForge and Mauno were seized upon hy (Camphell to discharge strikers. I therefore conclude that Respondent violated Section 8(. f(31 of' the Act by discharging DeForge and Mauno oin November 29. I further conclude that following these un- lawluAl discharges the remaining economic strikers met with their union representative, discussed the situation,. and de- termined to continue to strike in part because of Respon- dent's unfair labor practices. I accordingly conclude that as of November 29 the strike was converted to an unfair labor practice strike. Respondent correctly contends that the commission of unfiir labor practices is not alone sufficient to establish con- version of' an economic strike to an unfair labor practice strike.' A causal connection between the unfair labor prac- tices and continuance of the strike must be shown. Additionally. Respondent argues in effect that to prove such a causal connection it must be shown that the strikers abandoned their initial purpose in striking. And here, since after November 29 the parties were still apart on economic issues indeed the nion apparently increased its de- mand the strike continued to be economic irrespective of the unfair labor practices. The Board has never adopted such an approach. Thus if the unfair labor practices can be shown to have been a factor in prolonging the strike, even i there were still eco- nomic goals. the strike is nevertheless converted.'4 As the Board stated in the context of an initial strike (a matter of' no substantive distinction), "It is well established by Board and court precedent that a strike is an unfair labor practice strike if only one cause, even if not the pri- mary cause, was the employer's unfair labor practice, not- withstanding the presence of economic issues."' Notwithstanding that the employees continued to press their economic demands, the evidence is clear that they continued to strike in part because two strikers had been unlawfully discharged. They met, discussed the matter, changed their picket signs, and passed out literature to the effect that the Company was being unfair. Such is sufficient to support the conclusion that the strike continued as an unfair labor practice strike. As Respondent refused the request of' the unfair labor practice strikers ftr reinstatement on April 10, 1979, it thereby violated Section 8(a)(3) of the Act.'6 " Anchor Rome Mills, Inc., 86 NLRB 1120 (1949). 4 Rohbbins