Tenneco Chemicals, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1969

176 N.L.R.B. 611 (N.L.R.B. 1969)

NUODEX DIVISION OF TENNECO CHEMICALS 611
Nuodex Division of Tenneco Chemicals, Inc. and
Dolores Easton . Case 22-CA-3619
June 12, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On February 26, 1969, Trial Examiner Sydney S.
Asher, Jr., 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 and the General Counsel
filed exceptions to the Trial Examiner's Decision
and supporting briefs.'
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, as herein modified.2
ORDER
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner: On November
1, 1968, Dolores Easton, of South Plainfield, New Jersey,
filed charges against Nuodex Division of Tenneco
Chemicals, Inc., Piscataway, New Jersey, herein called the
Respondent. On December 4, 1968, the General Counsel
of the National Labor Relations Board issued a
complaint, alleging that on or about October 3, 1968, the
Respondent warned Easton that she would be discharged
if she continued to refuse to cross a picket line around the
Respondent's plant and that on or about October 9, 1968,
the Respondent discharged her, and since then has failed
and refused to reinstate her, because she refused to cross
the picket line mentioned above. It is alleged that this
conduct violated Section 8(a)(1) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. Thereafter the Respondent filed an
answer admitting that on or about October 3, 1968, the
Respondent sent Easton a telegram requesting her to
return to work and stating that if she did not do so she
would be presumed to have abandoned her position; and
further admitting that on October 7 and 8, 1968, Easton
informed the Respondent that she would not cross the
picket line and that as of October 8, 1968, Easton was
presumed by the Respondent to have abandoned her
employment whereupon she was terminated pursuant to
earlier notice. The answer sets up certain defenses,
namely, that Easton's actions were independent and not
concerted, and that they did not constitute activities for
mutual aid or protection.
Upon due notice, a hearing was held before me on
January 6, 1969, at Newark, New Jersey. All parties were
represented and participated fully in the hearing. After the
close of the hearing the General Counsel and the
Respondent filed briefs. These have been duly considered.
Upon the entire record in this case, and from by
observation of the witnesses, I make the following:
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, and
orders that the Respondent, Nuodex Division of
Tenneco Chemicals , Inc., Piscataway , New Jersey,
its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
'The Respondent also requested oral argument . The request is hereby
denied , as the record , the exceptions and the briefs adequately present the
issues and positions of the parties.
'The General Counsel excepted to the Trial Examiner 's failure to find
that Dolores Easton , the Charging Party herein, did in fact apply for
reinstatement to her former position . However , such a finding is
unnecessary in view of the fact that as a discriminatorily discharged
sympathy striker , Easton was under no obligation to request reinstatement.
See Union Carbide Corporation, 174 NLRB No. 147; Difco Laboratories
Inc. 172 NLRB No. 235; and Southern Greyhound Lines . 169 NLRB No.
148. Ford Radio d Mica Corporation 115 NLRB 1046, 1048-9, enfd.
denied , and remanded 258 F .2d 457 (C.A. 2), Supplemental Decision 122
NLRB 34, and the other cases he cites and Southern Greyhound Lines.
supra. It appears that the Trial Examiner failed to take into account that
Southern Greyhound Lines unlike the cases he cites , involved a discharged
sympathy striker.
FINDINGS OF FACT
1. The Respondent is, and at all material times has
been , a Delaware corporation with its principal office in
New York, New York. It maintains various other
facilities, including a plant and office at Piscataway, New
Jersey, where it is engaged in the manufacture , sale and
distribution of liquid and powder chemicals and related
products.
2. During the 12 months preceding December 4, 1968,
the Respondent shipped products valued at more than
$50,000 directly from its Piscataway plant to destinations
outside the State of New Jersey . The Respondent admits,
and it is found , that the Respondent is, and at all material
times has been, an employer engaged in commerce within
the meaning of the Act.
3. Local 8-575 Oil, Chemical and Atomic Workers,
AFL-CIO, herein called the Union, is, and at all material
times has been, a labor organization within the meaning
of the Act.
4. J. F. Robertson , personnel manager ; Frank Grubic,
supervisor accounting department; and Alice Hall Heims,
supervisor order sales department ; are, and at all material
times have been, supervisors within the meaning of the
Act and agents of the Respondent acting on its behalf.
5. All production, maintenence, shipping , receiving, and
boiler room employees employed at the Respondent's
Piscataway plant, including leadmen , but excluding office
176 NLRB No. 79
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and plant clerical employees, laboratory employees,
cafeteria employees , professional employees , guards and
all supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of the Act.
6. Since 1962, the Union has represented the employees
in the above-described unit for purposes of collective
bargaining with the Respondent.
7. From on or about October 1, 1968, to on or about
November 12, 1968, certain employees of the Respondent
employed in the above-described unit ceased work
concertedly, went out on strike, and maintained picket
lines around the Respondent ' s Piscataway plant , with the
authorization and sanction of the Union.
8. At all material times , Dolores Easton was employed
by the Respondent as an office clerical employee in the
office of its Piscataway plant . She was not a member of
the above-described unit.
9. On October 1,' the first day of the strike, Easton
went to the vicinity of the plant , but remained standing
across the street and did not cross the picket line. As
Heims, Easton ' s immediate superior , was entering the
plant, Easton called to Heims , stating that Easton's
husband would not permit Easton to come to work. Later
that day, Easton telephoned to Heims and repeated that
Easton ' s husband would not permit Easton to cross the
picket line.
10. Easton did not report for work on October 1, 2 or 3
and was not paid for these days. On October 3 Easton
again called Heims on the telephone and repeated that it
was Easton ' s husband ' s wish that Easton not cross the
picket line . On the same day, Grubic informed Robertson
of this conversation (which presumably Heims had related
to him ). Robertson then sent Easton the following
telegram:
IT IS HEREBY REQUESTED THAT YOU RETURN TO WORK
NO LATER THAN MONDAY OCTOBER 7TH AT 9AM IF YOU
DO NOT APPEAR FOR WORK YOU WILL BE PRESUMED TO
HAVE ABANDONED YOUR POSITION IN [SIC] THEREFORE
TERMINATED AS OF THAT DATE
J F ROBERTSON TENNECO CHEMICAL
11. In response to the above -described telegram , Easton
reported to the Respondent's personnel manager at 8:30
a.m. on October 7, then went to her desk. She told Heims
that she (Easton ) hadn ' t been able to come to work
because her (Easton's) husband still objected to her
(Easton ) crossing the picket line, adding that "she
(Easton ) had to live with him and that was her problem."
Later that day Easton told Grubic that her refusal to
cross the picket line had been due primarily to her
husband ' s wishes that she honor the picket line. She asked
Grubic "if there was any chance of getting a leave of
absence"; Grubic replied that he would speak to
Robertson about the matter. Still later that day, Grubic
informed Easton that he had spoken to Robertson and
that Easton could not have a leave of absence . He added
that if Easton "couldn ' t cross the picket line , that was it."
Easton replied that she would go home and speak to her
husband "and try to convince him [she] could cross the
picket line" and report the result the next morning in
person. Grubic responded "that she would be terminated
if they did not do so." Easton worked a full workday, and
was paid for it.
All dates hereafter relate to the year 1968 unless otherwise noted.
12. On October 8, at 8 : 30 a.m . Easton appeared at the
Respondent' s plant and informed Grubic that she could
not convince her husband "that [she] should cross the
picket line." Grubic then " informed her of her
termination ." She left the plant at about 11 a.m. and was
paid for a full day.
13. Although it was Grubic who told Easton of her
termination , the decision that she be terminated was made
by Robertson . At the hearing , Robertson testified as
follows:
Q. (By the Trial Examiner ): Why did you arrive at
that decision?
A. I separated Mrs. Easton as I would separate any
of the employees or recommend they be separated who
would not report for work , certainly as the result of
outside influence at home.
14. To fill Easton ' s position, the Respondent recalled a
former employee on a temporary basis.
15. On November 14, following the end of the strike
and after the charges herein had been filed , Easton
telephoned to Grubic and inquired as to her job status.
Grubic replied that "she was officially terminated." She
has not been offered reinstatement since then.
Contentions of the Parties
The General Counsel contends that the refusal of
Easton, a non-unit employee, to cross the picket line
maintained by her fellow employees at her place of
employment constitutes concerted activity protected by
Section 7 of the Act. He maintains that her motive for
engaging in such protected activity is immaterial.
Therefore, he argues, Easton was illegally coerced on
October 3 by the telegram threatening discharge, and
again on October 8 by the discharge itself.
The Respondent, conversely, maintains that Easton's
conduct does not constitute activity protected by Section
7, because it was individual rather than group action,
therefore not "concerted "; and also because it was not
"for mutual aid or protection." On this point, the
Respondent states in its brief
Her refusal to cross the picket line was not based on
her desire to assist her fellow workers, nor on sympathy
for their cause . . . [it] "could only have been for the
benefit and aid" of those represented by a union, which,
as bargaining representative , did not represent her and,
consequently, could have obtained nothing from
respondent for her benefit.
Conclusions
It is by now too well settled to require extensive
discussion that an employee who refrains from crossing a
picket line established by his fellow employees at their
mutual place of employment thereby makes common
cause with them and joins them in their concerted
activities. And this is true even when the picket line
consists of workers in a bargaining unit in which the
employee in question is not included .' Therefore the
Respondent's view that Easton's honoring the picket line
constituted individual, as opposed to concerted, activity is
ontag ros., Inc, 51 NLRB 366, 372, enfd. 140 F.2d 730 (C.A. 5):
West Coast Casket Company, Inc, 97 NLRB 820, enfd. 205 F.2d 902, 908
(C.A. 9); Texas Foundries, . c., 101 NLRB 1642, 1643, 1681, enforcement
denied on other grounds 21 F.2d 791 (C.A. 5); A O. Smith Corporation,
N UODEX DIVISION OF TENNECO CHEMICALS
without merit and must be rejected.'
The Respondent' s remaining contention, that Easton's
motives are important, is also unconvincing. In a similar
situation, the Board stated:
the focal point of inquiry in determining whether
Kraucalis' refusal to cross the picket line to perform
production work was a protected activity must of course
be the nature of the activity itself rather than the
employee's motives in engaging in the activity.'
So also, here, Easton's motives in honoring the picket line
are not a legitimate subject matter for inquiry.
Accordingly I need not, and shall not, determine what her
motives were.
It is concluded that Easton's refusal on and after
October l to cross the picket line maintained by the
Union at her place of employment constituted concerted
activity for mutual aid and assistance protected by Section
7 of the Act. It follows, and it is found, that the
Respondent's threat to Easton on October 3, its discharge
of her on October 8, and its failure thereafter to reinstate
her to her former position constitute interference, restraint
and coercion of employees in the exercise of rights
guaranteed them in Section 7 of the Act, and therefore
violated Section 8(a)(1) of the Act.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Nuodex Division of Tenneco Chemicals, Inc., is, and
at all material times has been , an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By threatening to discharge and discharging its
employee , Dolores Easton , and by thereafter failing and
refusing to reinstate her to her former position , because
she honored a picket line established by her fellow
employees at their mutual place of employment thereby
interfering with , restraining and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(I) of
the Act.
3. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Granite City Plant . 132 NLRB 339, 340, 400-401; Canada Dry
Corporation, 154 NLRB 1763, 1764, fn. 2; and Southern Greyhound Lines.
Division of Greyhound Lines, Inc., 169 NLRB No. 148 . See also Truck
Drivers Union Local No. 413, etc. v. N.L.R.B.. 334 F.2d 539, 542-543
(C.A.D.C.)
'The Respondent cites N.L.R.B. v. Illinois Bell Telephone Company.
189 F.2d 124 , 129 (C.A. 7), in which the Court of Appeals refused to
enforce the Board 's Decision , 88 NLRB 1171 , 1176. With due respect for
the Court of Appeals , I, as a Trial Examiner, am bound "to apply
established Board precedent which the Board or the Supreme Court has
not reversed ." Insurance Agents ' International Union, AFL-CIO (The
Prudential Insurance Company of America). 119 NLRB 768, 772-773-
Novak Logging Company, 119 NLRB 1573, 1575-76; and Scherrer and
Davisson Logging Company, 119 NLRB 1587-89 . Accordingly I am
required to follow the Board 's decision in Illinois Bell Telephone rather
than that of the court of appeals.
4The Cooper Thermometer Company. 154 NLRB 502, 504. See also
Montag Bros ., Inc., supra.
THE REMEDY
613
It will be recommended that the Respondent cease and
desist from the unfair labor practices found, and from in
any like or related manner infringing upon the protected
rights of its employees. However, I am not convinced that
the unfair labor practices were motivated by opposition to
the Union or to unionism in general. Rather, I view them
as the result of the Respondent's pique against Easton
because it believed (correctly or mistakenly) that she
placed obedience to her husband's wishes above loyalty to
her employer. Accordingly, I shall recommend the use of
a narrow, rather than a broad, cease and desist order.
Let us turn now to the question of appropriate
affirmative relief. In Ford Radio & Mica Corporations
employees were discharged while on strike. The Board
said:
.The Trial Examiner found that three of the
strikers, Durkin, Babino, and Renna, did not formally
request unconditional reinstatement. . .He therefore
recommended that these employees not be given any
reimbursement for loss of earnings unless "the
Respondent should fail to offer them reinstatement....
In that event, back pay shall begin to run from 5 days
after the employee unconditionally requests
reinstatement."
The General Counsel and the Union took exception
to these findings and recommendations. The General
Counsel maintains that, as practically all the strikers
applied for reinstatement on May 5, 1954, the number
of applications served as notice to the Respondent that
the strike was terminated, and constituted a request for
the reinstatement of all the strikers. He contends,
therefore, that all the strikers should get back pay from
May 5, 1954. We do not agree with this contention as
these were individual requests and not a collective
request.
On the other hand, we do not agree with the Trial
Examiner that the individuals in question, as
discriminatorily discharged strikers, were required to
make "formal unconditional requests for reinstatement
addressed to the Respondent," but find, rather, that
they were required only to indicate that they were ready
to abandon the strike and return to work. The Board
generally requires reinstatement and back pay for
discriminatorily discharged employees from the date of
their discharge. It does not, however, award back pay
to employees discriminatorily discharged while on strike
during the period when they remain on strike on the
theory that, until it appears that the employees who
desire employment have given up the strike, it cannot
be established that the loss of pay was conclusively
attributable to the Employer's conduct. [Footnote
omitted.1
It follows therefrom that the duty which devolved
upon the discriminatorily discharged strikers in the
present case was merely to indicate that they had given
up the strike.
Subsequent cases followed this principle, requiring as a
condition precedent to reinstatement some sort of action
by the discharged striker, either an unconditional request
for reinstatement transmitted to the employer, or at least
some indication of desire to return to work. Moreover,
backpay did not begin to run until the dischargee had
'115 NLRB 1046, 1048-49, enforcement denied and remanded 258 F.2d
457 (C.A. 2), Supplemental Decision 122 NLRB 34
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken such action . ' However , in speaking of a discharged
striker in Southern Greyhound Lines, Division of
Greyhound Lines, Inc., 169 NLRB No. 148, cited in both
briefs herein , the Board stated:
Respondent has never at any time offered Anderson
reinstatement . To be sure, as Respondent' s counsel says
in its brief, Anderson did not apply for reinstatement,
but having been discharged ... she had every reason to
believe that an application for reinstatement would have
been futile . . . . If an employee is unlawfully
discharged , the employer must remedy the wrong by
seeking out the employee and offering reinstatement.
[Emphasis supplied.]
The Board then ordered an immediate offer of
reinstatement, but regarding back pay stated:
Since it is a fair inference from Anderson 's testimony
and conduct that she would not have returned to work
prior to the termination of the strike on April 10, 1967
even if she had not been discharged , Respondent will be
required to . . . [pay] to her... the sum which she would
normally have earned on and after April 10 to the date
Respondent offers her reinstatement....
It seems to me there is an irreconcilable conflict between
Ford Radio and the cases which followed it, which require
some action by the dischargee, and Greyhound, which
puts the burden on the employer to seek out the
dischargee and offer reinstatement , and entitles the
dischargee to back pay from the end of the strike,
regardless of whether the employee sought reirrstatement.
As Greyhound is the more recent case , I assume that the
Board thereby sub silentio reversed Ford Radio and the
cases which followed it.
Applying here the principle enunciated in Greyhound, it
is concluded that Easton would not have returned to work
prior to the end of the strike on November 12, 1968.
Accordingly, it will be recommended that the Respondent
offer her immediate and full reinstatement to her former
or a substantially equivalent position, without prejudice to
the rights and privileges she previously enjoyed . It will
further be recommended that the Respondent make her
whole for any loss of pay she may have suffered by reason
of the discrimination against her , by paying to her a sum
of money equal to the amount she would normally have
earned from November 12, 1968, the date when the strike
ended , to the date of the offer of reinstatement, less her
net earnings during this period, computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, including 6 percent
interest as set forth by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
Finally, it will be recommended that the Respondent
preserve and make available to the Board , upon request,
all records necessary to compute the amount of backpay
due hereunder and post appropriate notices.
Upon the basis of the above findings of fact and
conclusions of law , and upon the entire record in this case,
I make the following:
'Morris Fishman & Sons, Inc.. 122 NLRB 1436, 1438-39; Central
Oklahoma Milk Producers Association , 125 NLRB 419, 422; Elm Tree
Baking Company , 139 NLRB 4, 6-7; Sea- Way Distributing , Inc. 143
NLRB 460; and Artim Transporation System . Inc. 166 NLRB No. 87, In
3.
RECOMMENDED ORDER
It is recommended that Nuodex Division of Tenneco
Chemicals, Inc., Piscataway, New Jersey, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening to discharge or discharging employees
or otherwise discriminating against them in regard to their
hire, tenure of employment, or any term or condition of
employment, because they honor picket lines established
by their fellow employees at their mutual place of
employment.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section
8(aX3) of the Act.
2. Take take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Dolores Easton immediate and full
reinstatement to her former or a substantially equivalent
position, without prejudice to her seniority and other
rights and privileges previously enjoyed, and make her
whole for any loss of pay she may have suffered by reason
of the Respondent's failure to reinstate her after the end
of the strike on November 12, 1968.
(b) Notify Dolores Easton, if she should currently be
serving in the Armed Forces of the United States, of her
right to full reinstatement after discharge from the Armed
Forces, upon application in accordance with the Selective
Service Act and Universal Military Training and Service
Act, as amended.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due
under this Recommended Order.
(d) Post at its plant in Piscataway, New Jersey, copies
of the attached notice marked "Appendix."' Copies of the
said notice, on forms to be provided by the Regional
Director for - Region 22, after being duly signed by the
Respondent's 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 the
Respondent to insure that these notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days of the receipt of this Decision, what steps have
been taken to comply herewith.'
'Should this Recommended Order be adopted by the Board, the words
"the Recommended Order of a Trial Examiner " shall be stricken from the
notice , and the words "a Decision and Order" shall be substituted therefor.
Should the Board ' s Order be enforced by a decree of the United States
Court of Appeals the words "a Decision and" shall be stricken from the
notice and the words "a Decree of the United States Court of Appeals
Enforcing an" shall be substituted therefor.
'Should this Recommended Order be adopted by the Board, this
provision shall be modified to read - "Notify the said Regional Director, in
writing, within 10 days from the date of this Order, what steps have been
taken to comply herewith."
NUODEX DIVISION OF TENNECO CHEMICALS 615
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended ' Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that: '
WE WILL NOT threaten to discharge or discharge
employees , or otherwise discriminate against them with
regard to their wages , hours , or other working
conditions, because they honor picket lines established
by their fellow employees at their mutual place of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist
any union , to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from such activities, except to the extent that
such right may be affected by an agreement requiring
union membership as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL offer Dolores Easton immediate and full
reinstatement to her former or a substantially
equivalent job, with the same rights and privileges she
previously enjoyed , and reimburse her for any loss of
pay she suffered because of the discrimination against
her, with 6 percent interest . If she should currently be
serving in the Armed Forces of the United States, WE
WILL notify her of her right to full reinstatement after
discharge from the Armed Forces, upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended.
Dated By
NUODEX DIVISION OF
TENNECO CHEMICALS,
INC.
(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
Building , 16th Floor, 970 Broad Street, Newark, New
Jersey 07102, Telephone 201-645-2100.