NLRB v. Plastilite Corporation

• Citation: 375 F.2d 343
• Decision Date: 30 March 1967
• Docket Number: No. 18443.,18443.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLASTILITE CORPORATION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

375 F.2d 343 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLASTILITE CORPORATION, Respondent.

No. 18443.

United States Court of Appeals Eighth Circuit.

March 30, 1967.

Nancy M. Sherman, Atty., N.L.R.B., Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, N.L.R.B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Burton L. Raimi, Atty. N.L.R.B., Washington, D. C., were on the brief with her.

John E. Tate, of Nelson, Harding, Acklie, Leonard & Tate, Lincoln, Neb., for respondent.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This case is before the Court upon the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136), 73 Stat. 519, 29 U.S.C. § 151 et seq., for enforcement of its order against respondent (Plastilite Corporation), issued June 21, 1965, and reported at 153 NLRB No. 7.

The Board adopted the findings, conclusions and recommendations of the Trial Examiner.¹ The facts as found by the Trial Examiner are outlined below. The respondent presented no testimony.

Max Lucore, a minor supervisory employee, was discharged by the respondent on December 12, 1963, because of a dispute regarding his hours of employment. Lucore directed the work of two (2) employees, and was responsible for maintaining the machines of his subordinates. However, other employees further along in the production process were dependent upon Lucore's performance of these duties in order to meet their own quotas. Lucore had been helpful to the employees by enabling them to meet their quotas and perform their tasks with greater efficiency. He not only relieved employees when they left their machines for short periods, but, on one occasion, defended an employee against a charge of slow production by showing the fault to be with the machine rather than with the employee's lack of skill.

Later the same day, Lucore was fired and twenty employees decided to strike in protest of his discharge. Before striking, however, Mable Kuklinski, the employees' spokesman, met with officers of the respondent and notified them of the decision to strike and the reason therefor. The respondent's president asked Kuklinski to keep the employees at work, promising to discuss the matter later in the day with them. The employees remained at work awaiting the promised talk by the respondent's president. When the meeting had not been called by one hour prior to quitting, the employees struck.

The strikers proceeded to a downtown Omaha bar where they held a meeting discussing Lucore's discharge and other grievances, including job quotas and factory ventilation. Mable Kuklinski, acting as the spokesman for the group, called Carl Lambach, a senior stockholder and father of Fred Lambach, the Company treasurer, at his home in Iowa and requested that he come to Omaha to meet with the employees. He said he would meet with them the following Monday, but urged the strikers to return to work the next day, Friday. Kuklinski replied that they would not return until the situation was settled.

That evening, Kuklinski and six other employees went to the plant to solicit support for the strike from the night shift. Their effort was unsuccessful.

On Saturday, December 14th, the Company president offered Kuklinski's position, as assistant supervisor, to Ethel Micek, one of the strikers, on the condition that she immediately return to work. The new job would pay $1.70 per hour as compared to the $1.40 per hour she had been receiving. Micek said she would think it over and notify him of her decision Monday morning.

On Sunday afternoon, December 15, all but three of the strikers met at Max Lucore's home where they again discussed their grievances. Kuklinski called the Company treasurer, Fred Lambach, and asked him to come to Lucore's home and discuss the situation. He refused, and stated that all the strikers' jobs had been filled. When Kuklinski reported this to the assembled strikers, they asked her to call the treasurer again and inform him of his father's promise to confer with them. She complied but was told by Lambach that his father's promise was based on the condition that the strikers return to work Friday morning, and that since they had not complied with the condition, his father would not meet with them. Kuklinski replied that the employees had no alternative but to contact a union, to which Lambach said, "That's your privilege."

On Sunday evening, Ethel Micek's sister called Fred Lambach asking to get her job back. She was told to call the Company president on Monday. She made the call and was asked if she had accompanied the girls who urged the night shift to join the walkout. Although she had, she denied involvement and was reinstated by the president. Early Monday morning, two other strikers, who requested reinstatement, were also rehired.

Ethel Micek met with the Company president on Monday morning, and informed him that she would return to work in Mable Kuklinski's job at the higher salary if he would agree not to rehire her. The president agreed. He then gave her cards containing the strikers' names, and asked that she indicate those she thought would be "good" to call back. When the president and Micek came to a card carrying Mable Kuklinski's name,² he set it aside, along with those she had pointed out as carrying the names of Kuklinski's relatives.

The president then instructed Micek to recall all of the strikers, except Kuklinski, her four relatives,³ and three other employees who had accompanied her to the plant on Thursday night. All but two of those called by Micek accepted the reemployment offer. The two who refused said they felt "we should all go back together." On Tuesday, seven more strikers called by Micek returned to work.⁴

However, on Monday morning, sixteen strikers had signed authorization cards with Sheet Metal Workers International Association Local Union No. 3. The union representative immediately wrote the respondent a letter requesting recognition and demanding reinstatement of the strikers by Wednesday, December 18. The respondent received the letter before work began on Tuesday, but did not immediately reply.

The union business agent visited the plant on Tuesday and asked the Company president to reinstate the strikers and discuss employee grievances. The president stated he was willing to meet, but would first have to talk with his attorney. He made no further contact with the union representative on Tuesday. On Wednesday morning, the union representative returned to the plant accompanied by the ten remaining strikers and asked that they be reinstated. The president said that their jobs had already been filled.

In summary, at least four new employees had been hired by Monday morning, and all positions formerly held by the complainants were filled by Wednesday morning.

The ten employees, denied reinstatement on December 18, 1963, filed charges and amended charges with the National Labor Relations Board on January 16, 1964, and February 27, 1964, respectively. The General Counsel issued a complaint alleging a violation of Sections 8 (a) (1) and (3) of the Act on March 13, 1964.

On March 3, 1964, the respondent offered to reinstate the ten remaining strikers to their old jobs under the same working conditions as existed prior to their December 12 walkout. They all reported to work on March 9, 1964, as requested.

The employees were dissatisfied with the employment conditions after returning to work, and eight of them struck for a second time one hour before quitting time on March 26, 1964. The next day, the respondent notified the strikers that they were being given a "one week disciplinary layoff" for their behavior. They, in turn, sent a wire to the respondent offering to return to work if they could do so under their original job conditions. The respondent then advised them to return to work at 8:00 a. m., April 3. They complied with the request.

The National Labor Relations Board found: (1) The strike, which began on December 12, 1963, was a protected economic strike precipitated by the discharge of Max Lucore. It took on an added cause with various other grievances. (2) The respondent's rejection, on December 18, of the complainants' application for reinstatement violated Sections 8(a) (1) and (3) of the National Labor Relations Act. (3) The respondent refused to reinstate the complainants not because it deemed them permanently replaced but because it feared that they would organize and cause another strike. (4) The record failed to show that complainants' jobs had been permanently filled prior to application for reinstatement.

Replacement did not constitute a defense to the refusal to reinstate because the strike had been converted into an unfair labor practice strike by respondent's intervening violations of the Act, namely: (1) offering Mable Kuklinski's job to Ethel Micek as an inducement to abandon the strike in violation of Sections 8(a) (1) and (3), and (2) stating that it would not meet with strikers because their jobs had been filled constituted a constructive discharge.⁵

The Board further found that the respondent violated Sections 8(a) (1) and (3) by: (1) discriminating with regard to the complainants' employment conditions when it rehired them in March, 1964, and (2) by imposing a one-week layoff on eight of the complainants when they again struck to protest the imposition of the discriminatory working conditions and by threatening to discharge the employees if they struck again.

THE DECEMBER 12TH STRIKE

The respondent's principal argument before the Board in connection with the December 12th strike was that no labor dispute existed within the meaning of the Act, and thus concerted activity to protest the discharge of the supervisory employee was unprotected. The respondent, urged, in the alternative, that...