Duquesne Electric and Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 142 (N.L.R.B. 1974)

142 DECISIONS OF NATIONAL
Duquesne Electric and Manufacturing Company and
Melanie R. Casey. Case 6-CA-6931
June 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 27, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 and brief
and has decided to affirm the rulings,' findings,2 and
conclusions I of the Administrative Law Judge, as
clarified, and to adopt his recommended Order, as
modified herein.
AMENDED CONCLUSION OF LAW
Delete the Administrative Law Judge's Conclusion
of Law 3 and substitute the following:
"3. By discharging Melanie R. Casey, Debbie
Hart, and Sharon McGoughey on June 6, 1973, for
engaging in protected concerted activities for their
mutual aid and protection, Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act."
i We find merit in Respondent 's exceptions to the Administrative Law
Judge's refusal , sua sponte, to admit into evidence copies of decisions made
by a referee of the Pennsylvania Bureau of Unemployment Security that the
three clericals had quit their Jobs, and the statement by employee Devine,
who is not a party , on her application for unemployment benefits that she
had quit herjob The decision of a state unemployment compensation agency
may be judicially noticed Cf The Sun Company of San Bernardino , Califor-
nia, 105 N LRB 515, 521, Nashville Corporation and A vco Manufacturing Cor-
poration , 94 NLRB 1567 , 1569 Such decisions , however , are not controlling
Supreme Dyeing & Finishing Corp and Valley Maid Co , Inc. 147 NLRB 1094,
1095, in I Accord N L R B v Tennessee Packers, Inc, Frosty Morn Div, 339
F 2d 203 (C A 6, 1964), N L R B v Pacific Intermountain Express Company,
ei at, 228 F 2d 170 (C A 8, 1955) We have considered those decisions of the
state agency in this proceeding , but they are insufficient to overcome the
other factors relied on by the Administrative Law Judge to find a violation
2 Respondent has excepted to certain credibility findings made by the
Administrative Law 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, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record
and find no basis for reversing his credibility findings
3 The Administrative Law Judge found that Respondent's conduct violat-
ed Sec 8 (a)(3) as well as Sec 8 (a)(1) of the Act We have found herein that
the discharges violated Sec 8(a)(1) and have ordered full reinstatement and
backpay for the dischargees Under these circumstances , and as the policies
of the Act will be fully effectuated by our remedial order herein , we find it
unnecessary to decide whether Respondent 's conduct also violated Sec
8(a)(3) of the Act
LABOR RELATIONS BOARD
ORDER4
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
Order of the Administrative Law Judge, as modified,
and hereby orders that Respondent, Duquesne Elec-
tric and Manufacturing Company, Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified herein:
1. Delete paragraph 1(b) from the Administrative
Law Judge's Order and reletter l(c) as I(b).
2. Substitute the attached notice for the notice at-
tached to the Administrative Law Judge's Decision.
4 Subsequent to the transfer of this proceeding to the Board the Charging
Party requested that the Board cease all deliberation on her behalf and
indicated that she has made no effort to secure employment , and that she has
no desire to return to work for Respondent The question of backpay , if any,
and the reinstatement desires of the Charging Party will be considered when
compliance with our Order is undertaken However, a request to withdraw
the charge will not be granted in view of the rights of other employees
involved in this proceeding and the need to effectuate the policies of the Act
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice; and we intend to
carry out the Order of the Board, and abide by the
following:
WE WILL NOT terminate you or otherwise take
reprisal against you because you engage in con-
certed activities for your mutual aid and benefit
of a protected nature under the National Labor
Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed employees in the National La-
bor Relations Act, which are as follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represent-
ative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
212 NLRB No. 8
DUQUESNE ELECTRIC 143
To refuse to do any or all of these things.
Since it has been found that we unlawfully
discharged Melanie R. Casey, Debbie Hart, and
Sharon McGoughey, WE WILL offer them back
their regular jobs or, if those jobs no longer exist,
we will give them substantially equivalent jobs
without prejudice to their seniority, or other
rights and privileges; and WE WILL pay them for
the earnings they lost because of the discrimina-
tion against them, plus 6-percent interest.
DUQUESNE ELECTRIC
AND MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: The pro-
ceeding herein was tried before me on January 16 and 17,
1974,' in Pittsburgh, Pennsylvania, upon a complaint by
General Counsel 2 alleging that Respondent discharged Me-
lanie R. Casey, Debbie Hart, and Sharon McGoughey,
thereby independently violating Section 8(a)(1) and (3) of
the Act. In its answer, Respondent denies the alleged viola-
tions. Briefs submitted by General Counsel and Respondent
have been duly considered.
Upon the entire record, and upon my careful observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent maintains a plant and principal office in
Pittsburgh, Pennsylvania, where it is engaged in the manu-
i All dates are in 1973, unless otherwise specified
2 The original charge was filed and served by registered mail on August
27, and an amended charge was similarly served on November 7 The com-
plamt issued on November 9.
facture and nonretail sale of electrical equipment. During
the year preceding issuance of the complaint, Respondent
had a direct inflow and a direct outflow in interstate com-
merce, in each instance, valued in excess of $50,000. Re-
spondent admits, and I find, that it is engaged in commerce
within the meaning of the Act.
II LABOR ORGANIZATION
International Union of Electrical , Radio and Machine
Workers, Local 643, AFL-CIO-CLC, herein called the
Union , has represented under contract Respondent's pro-
duction and maintenance employees , excluding office cleri-
cal employees , and is herein found to be a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Essential Issues
1. The principal issue is whether on June 6 Respondent
explicitly or constructively discharged Casey, Hart, and
McGoughey, office clerical employees, because they en-
gaged in protected concerted activities, or, as contrarily
contended by Respondent, whether they permanently re-
signed from their employment at such time. In substantial
part, the question is presented in terms of directly conflict-
ing testimony requiring the resolution of credibility.
2. As clarified at the hearing, General Counsel further
alleges that, even if it is assumed that the three clericals were
not discharged but had resigned, they were discriminatorily
denied reemployment, upon their subsequent "uncondition-
al" applications for vacant positions, because of their union
and concerted activities.
B. The Concerted and Union Activities-to June 6
During the material events, Respondent employed four
office clerical employees. They were excluded from the con-
tract unit of about 35 production and maintenance employ-
ees represented by the Union. Melanie Casey was hired in
January 1969 as receptionist and later, in addition to such
duty, became "basically" the secretary to Robert J. Casey,
chairman of the board and sole stockholder of Respondent.3
Debbie Hart was hired in September 1972 and performed
accounting and payroll functions essentially as secretary to
John C. Hess, the secretary-treasurer. Connie Devine, hired
August 1971, was in charge of filing; she also assisted Roy
Neer, company president, and to a lesser extent Robert
Brenza, vice president in charge of engineering. Sharon Mc-
Gouchey was hired in July 1972 and performed general
secretarial duties. In addition, to an extent, the assigned
duties of each clerical and certain common office work were
shared by all four of these employees.
Melanie in 1969 was hired by a female office manager.
However, it appears that no actual or acting office manager
was employed for a lengthy period preceding May 1973.
3In April 1973, the son of Robert J Casey married Melanie Casey.
Respondent's request in its brief that the complaint be dismissed in its entire-
ty on the ground that the issue involved an intrafamily dispute is denied as
without substance in fact or law.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Questions which arose concerning matters of supervision of
the office clericals were relayed by Melanie to and from
Chairman Casey and the other clericals. Beginning in late
December 1972, all the clericals discussed among them-
selves various dissatisfactions, including the office manager
situation and pay raises. In April, they had described their
complaints to Clyde Giegel, vice president for sales, who
suggested to them that they organize their problems and go
in together to see Casey. In May, President Neer removed
McGoughey from her secretarial duties and permanently
reassigned her to perform expediting work; e.g., telephoning
Respondent's suppliers to expedite deliveries. As a result
McGoughey's secretarial functions were distributed among
the remaining three clericals. And McGoughey complained
to the others that she had been employed to do secretarial
work and would tend to lose her skills by reason of the new
assignment. This event precipitated a mutual decision of the
clericals to delegate Melanie to present certain grievances to
Casey. Such problems included the McGoughey reassign-
ment, pay raises, replacement of old typewriters which were
occasionally defective, and the request that Melanie be giv-
en the job of office manager-so that someone in authority
could be present among the clericals to give them prompt
supervisory decisions. On May 29, Melanie approached Ca-
sey in his office, described in detail the various concerns of
the clericals, supra, and requested or recommended certain
remedies. Casey remarked that the requests did not sound
unreasonable and asked Melanie to type up a memo. She
went back to her desk, typed a quick note listing the re-
quests, made a copy for the girls which she gave to Mc-
Goughey, and returned to Casey about an hour later with
the memo, as follows:
May 29, 1973
Inter-Office Memo To RJC
Ref: Meeting of this date
1. I would like the power to hire and fire the girls.
2. I would like the power to review the girls every 6
months from their anniversary date and give raises
or criticism. In this way, we would be giving raises
in dabbles throughout the year instead of all at once
in a large lump sum.
It would be explained to the girls that not only would
their work be taken into consideration, but also their
attendance and attitude.
In this way they would know exactly where they
stand and it would also be an incentive for them to
concentrate all of their efforts toward their work.
3. I want Sharon to continue working as a regular
office girl, doing the dictation and typing that she
was hired to do.
If we need a girl to handle this work for Walt and
Frank, I suggest that we hire a high school girl to
work part time to handle this load (sic) by doing this
we would pay her minimum wage, give no benefits,
and when she was not busy she could cut plates, etc.
This girl could also be trained on other jobs, so in
case of an opening she could step into the job, com-
pletely trained.
4. Memo re R. Neer not telling anyone where he is
going or at least when he expects to return.
5. I would like a substantial increase in salary.
6. I would also like to have a new typewriter for
Sharon's office, we have already put more money
into it than it is worth. I feel by keeping it we are
throwing good money after bad.
Casey took the memo, read it "thoroughly," and told Mela-
nie to see him on Friday, June 1, for his response. He
undertook on the same day to obtain from Hess the employ-
ment data and previous pay raises for each of the clericals.
This information he notated in handwriting at the bottom
of the memo 4 On May 31, the four clericals visited the
Union's office, described their problems to a union repre-
sentative, and signed authorization cards. On June 1, when
Melanie returned to his office, Casey told her he had been
occupied with business and personal matters, had not
reached a decision, and asked her to come back to him the
next week.
The various complaints and requests of the four clericals
were fully described in her verbal discussions with Casey on
May 29. The subjects of McGoughey's reassignment, peri-
odic wage reviews, replacement of old typewriters, and the
appointment of an office manager were, as I find, directly
related to the clericals' conditions of employment. Respon-
dent argues in its brief that the attempt of the clericals to
have Melanie installed as office manager, with power to
hire, fire, and award wage increases, constituted an unpro-
tected activity in seeking to bring about a change in the
managerial hierarchy. The argument lacks merit.5 At this
juncture at least, the clericals were merely presenting a re-
quest for the appointment of Melanie as a supervisor to a
vacant position, and not applying economic pressure on
Respondent. Even assuming that they threatened or actuat-
ed economic power in furtherance of such an object, the
question of the Act's protection is determined under the
following settled standards of the Board:
Each case must turn on its facts. Where, as here, such
facts establish that the identity and capability of the
supervisor involved has a direct impact on the employ-
ees' own job interests and on their performance of the
work they are hired to do, they are legitimately con-
cerned with his identity. Therefore, strike or other con-
certed action which evidences the employees' concern
is no less protected than any other strike which employ-
ees may undertake in pursuit of a mutual interest in the
improvement of'their conditions of employment.'
In the circumstances present, I find the filling of the position
of office manager, and the identity and capability of the
4 Casey's notations indicate that Melanie was then earning $6,000 per year,
since July 1972, and the other clericals were receiving $350 or $375 per
month
5I find as clearly distinguishable Respondent's citation of Retail Clerks
Union, Local 770, Retail Clerks International Association, AFL-CIO, 208
NLRB No 54, where the Board found that an employee has no protected
right to engage in activities designed "solely" for the purpose of influencing
orbproducing changes in the management hierarchy.
Plastilite Corporation, 153 NLRB 180, 182 (and cases discussed therein),
enfd 375 F 2d 243 (C A 8, 1967 ) See also, e.g, Cubit Systems Corporation,
194 NLRB 622
DUQUESNE ELECTRIC 145
individual appointed to such supervisory role, would have
a direct impact on the legitimate job interests of the four
clericals. It is manifest that, in their approaches to Respon-
dent on May 29 and the continuation thereof on June 6,
described below, they were engaged in concerted activities
for their mutual aid and protection within the express lan-
guage of Section 7 of the Act.
C The Events of June 6
The detailed versions given by Melanie Casey and Deb-
bie Hart are fairly consistent-to the effect that the four
clericals were, or believed they were, discharged. Chairman
Casey's testimony is in direct conflict-to the effect that
they had "quit." Connie Devine did not testify. Sharon
McGoughey, who was called by Respondent as an adverse
witness, was not questioned concerning these events. In
view of the background and surrounding facts, and my close
observation of the witnesses, I am strongly persuaded to
credit the testimony of (Melanie) Casey and Hart.
On Wednesday, June 6, about 8:15 a.m , Melanie entered
Casey's office Hart testified that, during this time, she was
in McGoughey's office, directly across the hall; that Casey's
doors were open; and that she heard the conversation be-
tween Casey and Melanie. I describe in substance the ac-
count given by Hart
Asked by Melanie whether he had looked over the re-
quests, Casey replied, "I have and I haven't." Melanie re-
marked she did not understand. At that point, Casey stated:
"I own the Company. I don't owe you any explanations. If
you don't like the way I run things around here, then you
can get the hell out." Thereupon Casey called out-"Shar-
on, Debbie, Connie, come in here." Hart and McGoughey
came into Casey's office; Devine had not yet arrived at
work. Casey pointed in turn to Hart and McGoughey and
told each of them "if you don't like the way I run things,
you can get the hell out." Informed that Devine had not yet
reported to work, he said, "Well, get out of here. When
Connie comes in, I want to see all of you again." A few
minutes later Connie arrived, and all four clericals reentered
Casey's office. He asked Connie if she knew what had gone
on, and she said, "yes, I think so." He asked if she realized
that, if Melanie was made office manager, "she would fire
you if she found you reading magazines . . . on Company
time." She answered, "yes, Mr. Casey " As he started to
address Debbie, Melanie interjected that the girls had previ-
ously discussed these requests and knew she was coming in
to talk with him. He directly inquired of Sharon and Connie
whether Melanie was speaking for them, and they individu-
ally responded in the affirmative. Debbie (this witness) said
she was speaking for herself and asked him, "Mr. Casey,
can't we talk about this, can't we try to compromise?" His
response that Melanie had come in this morning and "de-
manded" was promptly contradicted by Debbie, who stated
she had been standing outside his office and Melanie had
"demanded nothing." Then he pointedly told them "if you
girls don't like the way I run things around here, you can
just get the hell out and don't use me for a reference." As
indicated in other testimony, Melanie retorted that they did
not want his recommendations. They proceeded back to
their desks to gather their personal things and depart the
premises. The phone rang, normally heard in all the offices
Still close to Casey's open door, Melanie called out, "Don't
pick it up. You've been fired." Before leaving the building,
the four clericals as a group stopped in to bid their good-
byes, among others, to Giegel, Hess, and Brenza. In the
testimony of these officials, no questions were raised nor
mention made of the reasons for this sudden departure.
According to Giegel, the girls merely said they had cleared
out their desks and were leaving.
Casey gave the version, in essential part. On June 6, first
talking to Melanie alone, he said he had not had a chance
to make a decision, but had come to certain conclusions. On
the request that Melanie be made office manager, he indi-
cated she had many absences for reasons other than vaca-
tion time. Turning to him, she stated, I demand an answer
immediately to these questions." He asked her what she
intended to do if he did not give an answer immediately. She
said, "We intend to quit,"-specifying all of the girls. Short-
ly thereafter, when the four clericals reported to his office
as instructed, he told them of Melanie's statement that they
were going to quit if he did not give an immediate answer
to their requests. Then he asked them individually whether
Melanie was speaking on their behalf. Each confirmed this
fact. Whereupon he told them, "Girls, you may leave," and
do not ask anybody in this firm for recommendations.
Casey and Giegel could not recall having heard Melanie
call out, "Don't answer the phone. We have been fired " I
find it most likely that Casey and Giegel did hear this loudly
expressed reaction of Melanie (at the ringing phone), and
find in any event that Respondent was aware of it at this
time, directly or through other officials within earshot. Of
course, Melanie's own statements or conception that the
four girls had just been fired does not establish the fact of
the issue. But it does at least indicate clear notice to Respon-
dent that such was the employees' apparent interpretation
of Casey's remarks to them in his office.' It is also curious
that in their farewell visits with Respondent's executives,
demonstrating the sudden deprivation of the entire clerical
staff, no reasons therefore were asked or discussed, nor
mention made of the present and future intention of these
secretaries with whom the officials were associated for long
periods of employment.
Brenza, working at his desk, could hear all or portions of
the clerical conversations in Casey's office. It is sufficient
that he ultimately testified he could not recall what was said
on the subject in issue of resignation versus discharge. Hess
testified he heard emanating from Casey's office a female
voice, which he could not identify, saying the words, "I
quit," or "we quit " This is all he recalled, as his listening
was diverted when he became involved in a continuous
telephone conversation At 9.30 a.m., Casey came to Hess'
office and told him the girls had quit. Giegel knew the
background of the secretaries' grievances. He stated he
heard the expression in Casey's office of "leaving or quit-
ting"; he was not sure On the matter in question, there is
a vast difference between the two single words he retained
in his testimony. I regard such testimony by Hess and Gie-
7 It is not necessary to consider the legal implication of a res gestae utter-
ance by Melanie in the contemporaneous circumstances and context of the
disputed conversations in Casey's office
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gel as too fragmentary and dubious to serve as corrobora-
tion of Casey. In my opinion, it is implausible to any pru-
dent experienced business mind that four employees,
constituting an entire office staff, would at once without
prior plan, decide permanently to resign their employ-
ment-especially in the present circumstances. Further per-
suasion for the version of the office clericals stems from the
evidence of what transpired in the ensuing days, briefly
described below, which reflects an adamancy and arbitrari-
ness consistent with the testimony of Hart and Melanie.
Also noted, for example, is Hart's reasonable question that
morning of June 6-"can't we talk about this, can't we try
to compromise?"-which was summarily rejected.
I am convinced that the four clericals were reasonably led
to believe they were discharged on the morning of June 6.
It was therefore clearly incumbent on Respondent, if it did
not intend such an effect, overtly to clarify and remove the
implication that these clericals had indeed been dis-
charged.' Almost contemporaneously and thereafter, it had
ample opportunity but made no attempt to talk to any of
these employees, even though beginning June 7 specific
requests were made of Casey to permit the clericals to come
into the plant merely to discuss the matter with him. It was
plain for all to see early the very next morning, June 7, that
the four clericals were outside the plant, scarcely displaying
an attitude of having voluntarily decided to sever employ-
ment relations with Respondent. In light of all these events,
I reach the conclusion that (Melanie) Casey, Hart, and Mc-
Goughey 9 were directly or constructively discharged by
Respondent on June 6 for the unlawful reason that they
were engaged in the protected concerted activities of at-
tempting to present legitimate grievances to Respondent.10
The complaint allegations that Respondent thereby violated
Section 8(a)(I) and (3) of the Act are sustained.
It is quite clear that the clericals had not resigned. Consid-
eration, therefore, need not be given to General Counsel's
subordinate contention that the same clericals, as new appli-
cants for existing vacancies, were discriminatorily denied
employment upon their later "unconditional" request to
return to work. However, an alternate theory exists within
the framework of the complaint and supported by the re-
cord that, in any case, the four clericals had concertedly
ceased work on June 6 as a continuation of their protected
activities, that they had made known to Respondent on
June 7 their desire to resume work, and that Respondent
refused to allow their return. On this basis, the results and
remedy would be the same as in my finding in the preceding
paragraph, diminished only by a small difference in back-
pay for the three named discriminatees.
D. Pertinent Subsequent Events
On June 7, about 7:45 a.m., the four clericals were togeth-
er outside the plant entrance. The testimony is conflicting
whether they were actually picketing or carrying signs that
morning, or beginning on the following day.11 It may be
s Eg, Precision Tool and Die Mfg, Co, 205 NLRB No 66 (ALJD)
Devine is not named in the complaint
10 E g, B & P Motor Express Incorporated, 171 NLRB 1289 (cited by
General Counsel)
accepted that Respondent's production employees arriving
for work on June 6 became aware of a controversey involv-
ing the clericals and refused to enter the plant. Bill O'Day,
the shop steward, asked the clericals if they were willing to
return to work, each answering in the positive. O'Day en-
tered the plant, about 8 a.m., and told Casey the men re-
fused to work because the girls were picketing. He asked
Casey if he would consider bringing the girls back so that
the men could go to work. Casey's answer was "No!" Casey
called Homer Leacock, president of Local 643, at his place
of employment with another company. In this conversation,
Leacock indicated that the clericals had given the Union
authorization to represent them, which was then under con-
sideration by the Union as to procedure. Leacock came to
the plant early that morning. In an initial conversation,
Casey told him the girls had quit the day before, that their
"picket line" was interfering with the plant employees, that
the Union had a no-strike contract with Respondent, and
that Leacock should promptly get the men back to work.
Leacock then spoke to the clericals outside, and was given
their account of the affair-they were fired. Melanie asked
Leacock to talk to Casey to see whether he would let them
come back, allowing the problems of the clericals to be
deferred for a future time. Leacock and O'Day reentered
and met with Casey, together with other company offi-
cials.12 A major subject was the sympathy strike of the pro-
duction employees, who were represented as ready to return
to work if Casey would talk to the girls. Leacock credibly
testified he stated the girls were willing "to come in uncondi-
tionally at this point," and "we can discuss their problems
at some future date." Casey replied, "No." On June 12, a
letter prepared by the Union and signed by all four clericals,
was received by Respondent, viz:
We the undersigned office employees of Duquesne
Electric and Manufacturing Company hereby make
application for unconditional reinstatement of our po-
sitions.
Respondent failed to respond. While not directly material,
I agree with General Counsel's conclusion on the evidence
that the clericals were not permanently replaced as of June
12. Nor were they on June 7,13
The foregoing facts sufficiently complete the picture. As
earlier alternatively decided, the clericals remained employ-
ees on June 7 on the theory, in any event, that they were
engaged in a protected cessation of work. And I find and
11 A variety of signs were displayed by the clericals in front of the plant,
e g. "Management threw us out", "Rebuild communications , not work",
"No way, R J ", "We're overworked and underpaid ", "I am significant"
The production workers' strike lasted 2 weeks In the latter stage, the "Na-
tional Organization for Women" became involved and carried placards simi-
lar to those of the clericals
12
Giegel, Neer, and Frank Rose, plant superintendent
^3 Respondent argues that Hart should be discredited on the grounds that
Hart testified that she and Melanie were at the bank together while each of
them was cashing Respondent's final paycheck, that Hart alone composed
the language on the check endorsement (to the effect that she was fired); and
that neither she nor Melanie consulted with each other as to the particular
words used (which appear to be identical) Conceivably a good explanation
exists On such a peripherally minor item, I will not discredit Hart and the
entire corroborated version of the clericals-a result which Respondent
seeks
DUQUESNE ELECTRIC 147
conclude that, on June 7, the Union conveyed to Respon-
dent what was tantamount to an unconditional request of
the clericals to return to work, and that such request was
unlawfully refused by Respondent.
IV THE REMEDY
Section 8(axl) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the above findings of fact , conclusions of law, and
the entire record in the case , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. A broad cease-and-desist
order appears warranted, particularly by reason of the dis-
criminatory discharges which go "to the very heart of the
Act." 14
It has been found that Respondent discriminatorily dis-
charged Melanie R. Casey, Debbie Hart, and Sharon Mc-
Goughey. It will therefore be recommended that
Respondent offer these employees immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings suffered by reason of the
discrimination against them, by payment to them of a sum
of money equal to that which they normally would have
earned, absent the discrimination, less net earnings during
such period, with backpay computed on a quarterly basis in
the manner established in F. W. Woolworth Company, 90
NLRB 289. Backpay shall carry interest at the rate of 6
percent per annum, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. It will be further recommended that
Respondent preserve and, upon request, make available to
the Board all payroll records, social security records, time-
cards, personnel records and reports and all other records
necessary and useful to determine the amounts of backpay
due and the rights of reinstatement under the terms of these
recommendations. '
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Melanie R. Casey, Debbie Hart, and
Sharon McGoughey on June 6, 1973, for engaging in pro-
tected concerted activities for their mutual aid and protec-
tion, and additionally to discourage membership in the
Union, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. By the foregoing conduct interfering with, restraining,
and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
14 N.L.R.B. v. $xpress Publishing Company, 312 U.S. 426 (1941); N L.R.B.
v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941).
ORDER15
Respondent, Duquesne Electric and Manufacturing
Company, Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Terminating or otherwise visiting any reprisals
against employees because they engage in concerted activi-
ties for their mutual aid and protection within the meaning
of the Act.
(b) Discouraging membership in International Union of
Electrical, Radio and Machine Workers, Local 643, AFL-
CIO-CLC, or in any other labor organization, by discharg-
ing employees, or in any other manner discriminating in
regard to hire or tenure of employment, or any term or
condition of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Melanie R. Casey, Debbie Hart, and Sharon
McGoughey immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings, in the manner set forth in "The Remedy"
section of the Decision of the Administrative Law Judge.
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set forth
in the "The Remedy" section of the Decision of the Admin-
istrative Law Judge.
(c) Post at its Pittsburgh, Pennsylvania, plant, copies of
the attached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 6, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for 60 consecutive days. Reason-
able steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
16 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."