Vulcan-Hart Corporation (St. Louis Division)

National Labor Relations Board - Board Decisions

Aug 17, 1982

263 N.L.R.B. 477 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vulcan-Hart Corporation (St. Louis Division) and
Stove, Furnace and Allied Appliance Workers
International Union of North America, AFL-
CIO, Local No. 110. Case 14-CA-13129
August 17, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 14, 1982, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it found, inter alia,
that in early October 1979, after employees had
gone out on strike and while bargaining over a
new contract was still in progress, the Respondent
violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, by offering to
reinstate William Lindhorst, president of the Local
and the Union's chief negotiator, if he would resign
his union office and agree not to run for office for
the 3-year period following his return to work. 2
Accordingly, the Board ordered the Respondent to
cease and desist from engaging in the aforesaid
conduct.
Thereafter the General Counsel moved that the
Board amend and/or modify its Order by provid-
ing for further appropriate relief in the form of re-
instatement and backpay. The Respondent filed a
memorandum in opposition.
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.
Based on the entire record in this case, the
Board has considered, and finds merits in, the Gen-
eral Counsel's motion.
By its very offer, the Respondent demonstrated
that it was prepared to reinstate Lindhorst, not-
withstanding that his earlier discharge might have
been justifiable. However, to the extent that rein-
statement was conditioned upon unlawful cohsider-
ations, the Act affords Lindhorst the same protec-
tion as it would an individual who is denied initial
employment solely because of his known or sus-
pected union activities. Both situations involve un-
lawful discrimination.3 The Act requires that both
1 262 NLRB 167.
' Lindhorst was discharged for insubordination on April 20, 1979. The
Board declined to issue a complaint as a result of this discharge. Howev-
er, the matter was later taken to arbitration and an award favorable to
Lindhorst subsequently issued.
3 The Respondent contends that there is no basis for finding that it vio-
lated Sec. 8(aX3) of the Act by offering to reinstate Lindhorst on the
conditions set forth above and that, by so finding, the Board denied the
Respondent procedural due process.
263 NLRB No. 64
individuals be allowed the opportunity to consum-
mate the employment relationship and that they be
made whole for any loss of work occasioned by
the discrimination practiced against them.4 That
either Lindhorst's striker status or the arbitration
award in his favor may impact on the effect of our
reinstatement and backpay remedy is but a matter
for compliance. In these circumstances, our failure
to provide for reinstatement and backpay in Lind-
horst's case was an inadvertent omission. We shall
amend our previous Order accordingly. In all other
respects we hereby reaffirm our original Decision
and Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Vulcan-Hart Corporation (St. Louis Division),
Kirkwood, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in our
original Order, as amended herein and set forth in
full below:
1. Cease and desist from:
(a) Refusing to bargain with Stove, Furnace and
Allied Appliance Workers International Union of
North America, AFL-CIO, Local 110, upon its re-
quest, as the exclusive representative of all employ-
ees in the appropriate unit.
(b) Discharging or in any other manner discrimi-
nating against its employees because of their union
or protected concerted activities.
(c) Conditioning employees' reinstatement upon
their resignation from union office or upon their
agreement not to run for union office.
(d) Denying its employees any earned seniority
rights in retaliation for their having engaged in
protected strike activity.
(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
We find no merit in these contentions. Although the General Counsel
did not expressly allege in the complaint or argue thereafter that the con-
duct in question violated Sec. 8(aX3), the matter has been fully litigated,
the same facts support a finding of violation under both Sec. 8(aXI) and
(3) and the two subsections of the Act are related with respect to this
particular conduct. See Fertilizer Company of Texas, Inc., 254 NLRB 1382
(1981).
4 Further, we would deem reinstatement and backpay essential as a
means of restoring the status quo ante in this case, even if we were to
have found that the Respondent violated only Sec. 8(a)() of the Act by
engaging in the conduct here in question; that is, without finding the req-
uisite discrimination.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Recognize and, upon request, bargain collec-
tively with Stove, Furnace and Allied Appliance
Workers International Union of North America,
AFL-CIO, Local No. 110, as the exclusive repre-
sentative of the employees in the appropriate unit
described below, with regard to rates of pay, hours
of employment, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement:
All production and shop maintenance employ-
ees in Respondent's South Oak Drive Plant,
excluding office clerical employees and all su-
pervisors as defined in the Act.
(b) Offer each of the following named employees
immediate and full reinstatement to their former
jobs or, if such jobs are no longer available, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dis-
charging, if necessary, any replacements hired on
or after November 1, 1979: Hill, Patterson, Huskey,
White, D. Lindhorst, Daniels, Carter, Pritchett,
Byndom, Oppelz, DeGeare, L. Simpkins, Williams,
Trifonas, Cox, Miller, Moon, D. Simpkins, Bur-
nette, Oatman, C. Karagiannis, Keyes, Montgom-
ery, Singer, Kaiser, R. Burnia, Moiser, Watson, G.
Karagiannis, L. Burnia, T. Simpkins, Young, and
Ranachowski.
(c) Make whole the above-listed employees for
any loss of earnings which they may have suffered
by virtue of the discrimination practiced against
them by paying them an amount equal to what
they would have earned, plus interest, from No-
vember 1, 1979, to the dates they are offered rein-
statement.
(d) Offer William Lindhorst full reinstatement to
his former job or, if it is no longer available, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, dis-
charging, if necessary, any replacement hired on or
after October 3, 1979.
(e) Make William Lindhorst whole for any loss
of earnings which he may have suffered by virtue
of the discrimination practiced against him by
paying him an amount equal to what he would
have earned, plus interest, from October 3, 1979, to
the date he is offered reinstatement.
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Kirkwood, Missouri, plant copies
of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by its representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to ensure that
said notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain with Stove,
Furnace, and Allied Appliance Workers Inter-
national Union of North America, AFL-CIO,
Local No. 110, as the exclusive representative
of the following appropriate bargaining unit
employees:
All production and shop maintenance em-
ployees in our South Oak Drive plant, ex-
cluding office clerical employees and all su-
pervisors as defined in the Act.
WE WILL NOT discharge, refuse to reinstate,
or otherwise discriminate against our employ-
ees because they have engaged in concerted
union activities or because they have engaged
in protected strike activity.
WE WILL NOT condition employees' rein-
statement upon their resignation from union
office or upon their agreement not to run for
union office.
478
VULCAN-HART CORPORATION
WE WILL NOT deny accrued seniority to any
of our employees because they have engaged
in protected strike activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain collectively with the aforesaid Union as
the exclusive representative of all the employ-
ees in the above-described appropriate unit
and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL offer the following named em-
ployees full reinstatement to their former jobs
or, if such jobs are no longer available, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, discharging, if necessary any re-
placements hired on or after November 1,
1979:
Hill, Patterson, Huskey, White, D. Lind-
horst, Daniels, Carter, Pritchett, Byndom,
Oppelz, DeGeare, L. Simpkins, Williams,
Trifonas, Cox, Miller, Moon, D. Simpkins,
Burnette, Oatman, C. Karagiannis, Keyes,
Montgomery, Singer, Kaiser, R. Burnia,
Moiser, Watson, G. Karagiannis, L. Burnia,
T. Simpkins, Young, and Ranachowski.
WE WILL offer William Lindhorst full rein-
statement to his former job or, if it is no
longer available, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges, discharging, if nec-
essary, any replacements hired on or after Oc-
tober 3, 1979.
WE WILL make whole the above-named em-
ployees for any loss of earnings plus interest
which they may have suffered by virtue of the
discrimination practiced against them.
VULCAN-HART CORPORATION (ST.
Louis DIVISION)
479