NLRB v. Frick Company
| Decision Date | 17 June 1968 |
| Docket Number | No. 16892.,16892. |
| Citation | 397 F.2d 956 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRICK COMPANY, Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
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John Nevins, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Paul J. Spielberg, Attorney, N. L. R. B., on the brief), for petitioner.
Bernard G. Link, Baltimore, Md., for intervenor.
Lacy I. Rice, Sr., Rice, Hannis, Rice & Wagner, Martinsburg, W. Va. (Lacy I. Rice, Jr., John M. Miller, Martinsburg, W. Va., on the brief), for respondent.
Before BIGGS, SEITZ and VAN DUSEN, Circuit Judges.
The National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), seeks enforcement of its order against the Frick Company based on a finding that the latter violated Sections 8(a) (1) and (3) of the Act by dropping1 union employees from its payroll and by depriving them of earned vacation benefits because they engaged in an economic strike. The Board also based its order on a finding that Frick had violated Section 8(a) (1) by threatening striking employees with the forfeiture of vacation benefits and the loss of job rights; by dealing directly with the strikers in an effort to induce them to abandon the strike; and by engaging in surveillance of strikers who were soliciting funds to support the strike.2
The relevant facts are as follows. After a one day strike, Frick agreed, on April 1, 1965, to recognize the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, as the bargaining representative of the production and maintenance employees of its Waynesboro, Pennsylvania plant. Between April 5 and May 14 the parties, except for one minor exception, met on Monday and Friday of each week in bargaining sessions aimed at concluding a mutually satisfactory collective bargaining agreement. The sessions resulted in an impasse and consequently, on May 17, the union called a strike.3
At some time subsequent to the meeting on May 14, the following form was prepared for all employees who went on strike on May 17 and in accordance with its terms was marked to be effective on May 24. A copy was made for each employee and placed in his official file.
"CHANGE IN EMPLOYEE\'S STATUS
Employee Clock Effective Name........... No......... Date 5-24-65 Detail of Removed from payroll as a Quit effective Change May 24, 1965; absent seven calendar days on unauthorized basis.
The manual was given to every new employee and explained to him. Its provisons were in effect during 1965 and for many years prior thereto.
Subsequently, on or about July 8, the following letter was mailed to all hourly paid employees:
The standard vacation plan operative at the Frick plant provided for vacation pay on a graduated scale after one year or more of active employment, as of the pay period ending the nearest June 30th. Any employee who had worked at least 75 percent of the pay periods during the preceding year, subject to exceptions not here material, was entitled to the benefits of the plan. The vacation week was fixed as the third full calendar week in July of each year, which was in 1965 the week bginning on July 19, and payment was fixed for the week preceding the vacation week. However Section 8 of the plan reads as follows: "No vacation or vacation pay will be allowed or paid to any person who is not on the payroll of the Company on Wednesday preceding the week in which vacation pay is distributed."
Thus the action of the Frick management in removing from the payroll the names of the striking employees brought into play the terms of Section 8 of the vacation plan. This action had the effect of denying all vacation benefits to the strikers unless they returned to their jobs.
Beginning about July 9 and extending into August, Frick, through its supervisors, attempted to persuade the striking employees to return to their jobs through personal contact both at the picket line and at the employees' homes and over the telephone. The Trial Examiner found, from the testimony of supervisors Kirkpatrick, Orner, McNew, Poole, and Martin, that some of these overtures included statements relating to vacation pay forfeiture similar to that contained in the company's letter dated July 8. It was also found that some employees, according to the testimony of employees Riber, Stoops, Beard, Hartman, Plum, Carbough, and Nunemaker, were told by the supervisors that if they did not return to work on the date given they would have no job or would have to be hired as new employees.
It is undisputed that on July 9 Frick's Industrial Relations Director Hoff and Chief of Plant Guards Miller drove to the entrances of the Fairchild plant and the Mack Truck plant in Hagerstown, Maryland for the purpose of taking photographs of those individuals who were soliciting strike funds in behalf of the Frick strikers and that seven photographs were taken of the solicitors, among whom were Frick employees, for the purposes of identification.4
The Trial Examiner concluded that Frick committed unfair labor practices in violation of Sections 8(a) (1)5 and 8(a) (3)6 of the Act by threatening the strikers with loss of vacation pay, loss of job, of rehire only as new employees, of refusal of a recommendation for another job; by failing to pay vacation benefits to the strikers; by dealing with employees in an effort to persuade them to abandon a strike which had become an unfair labor practice strike; and by engaging in acts of surveillance through photographing strikers who were soliciting strike funds at the plant gates of other companies.
The Trial Examiner further concluded that Frick's letter of July 8, received by the employees on July 9, or thereafter, had the effect of prolonging the strike and thus turned an economic strike into an unfair labor practice strike as of July 9. Consequently, the Examiner ordered Frick, in addition to paying the withheld vacation pay, to offer reinstatement to all strikers, with full privileges, who had been on strike on or after July 9 and had not been replaced as of that date and to make such employees whole for any loss they might have suffered by reason of Frick's refusal, if any, to reinstate them.7 See Internation Union of Electrical, Radio and Machine Workers, Local 613 v. NLRB, 328 F.2d 723, 726 (3 Cir. 1964). The Examiner further ordered the same remedy for those strikers who were replaced subsequent to May 24 but prior to July 9 on the grounds that Frick's action of putting the strikers' names in the "Quit" file effective May 24, was a discriminatory discharge in violation of Section 8 (a) (3) of the Act. As noted the Board adopted the findings of the Trial Examiner and entered an order accordingly. We grant partial enforcement of that order.
We note primarily that we find substantial evidence in the record to support the Trial Examiner's conclusion that Frick violated Section 8(a) (1) of the Act by having its supervisors threaten the strikers with loss of their jobs, by improperly asserting that the strikers if they did not abandon the strike could only return, if at all, as new employees, and by taking photographs of the strikers as they solicited for strike funds. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).8
We turn to the finding that Frick violated Section 8(a) (1) and (3) in transferring the names of the strikers to its inactive "Quit" file and consequently depriving the strikers of their vacation pay. As has been noted previously in this opinion, the strikers were notified on July 9 or thereafter that the effect of their strike was to have their names taken off the payroll and thus cause them to lose their vacation pay unless they abandoned the strike and returned to work on the specified days. We agree with the Trial Examiner and the Board that this communication and the subsequent denial of vacation benefits was an unfair labor practice in violation of Section 8(a) (1) and (3).
Frick contends that, contrary to any evidence of the necessary "discrimination" required by Section 8(a) (3),9 it merely applied a longstanding rule to the strikers as it would have applied to any other employee10 who was absent from work for an unauthorized reason. As should be noted, the rule does not apply to all employees. It applies only to those employees who are absent for an "unauthorized or unexplained reason." Thus, under the company rule, Frick is free to authorize an absence for any purpose it feels...
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