Liberty Electronics Corp., 1074 (1962)

DECISION AND ORDER

On June 1, 1962, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and Were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter mediate Report. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and i The request for oral argument, filed by the Respondents , is hereby denied as the record, including the Respondents' exceptions and brief, adequately presents the issues and the positions of the parties.

2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Leedom and Brown] 138 NLRB No. 110.

LIBERTY ELECTRONICS CORP., ETC. 1075 recommendations of the Trial Examiner with the following exceptions and modifications.

We agree with the Trial Examiner that the Respondents' letter of August 30, 1961, to the employees who went out on strike on August 29, constituted a discharge of these employees because of their concerted activities, and that Gallegos was later discharged for the same reason, in violation of Section 8(a) (3) and (1) of the Act. However, it is the Board's established practice to award employees who are discharged while on strike backpay only from the date on which they make unconditional application for reinstatement. In this case, the strikers made such application as of September 22, and their unconditional offers were refused by the Respondents that day. We shall, accordingly, modify the Trial Examiner's Recommended Order to provide that the 17 employees discriminated against be made whole by the Respondents from September 22,1961.

For the reasons stated in Isis Plumbing & Heating Co., 138 NLRB 716, we agree with the Trial Examiner that the backpay obligation of the Respondents should include the payment of interest, which shall be computed at the rate of 6 percent in the manner set forth in the Isis Plumbing case.' ORDER

The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications :

1. Section 2 (a) shall be modified to read :

   Offer to the 17 employees named in the appendix attached to the Intermediate Report immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole from September 22, 1961, for any losses suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled 'The Remedy,' as modified by the Board's Decision and Order.

2. The following note shall be added to the bottom of the notice immediately below the signature :

   NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces.

3. Change the notice by substituting the words '60 consecutive days from the date of posting.' for the words '60 days from the date hereof. ....' 8 Member Leedom dissents from the inclusion of interest in the backpay obligation for the reasons stated in the dissent in the Isis Plumbing case.

   662353-63-vol. 138-69 INTERMEDIATE REPORT AND RECOMMENDED ORDER

   STATEMENT OF THE CASE

   This case was heard at Los Angeles, California, on December 7, 8, 13, 14, 19, and 20, 1961 before Trial Examiner Martin S. Bennett. The complaint' alleges that Respondents, Liberty Electronics Corp. and Flight Electronic Supply Corp., herein called Liberty and Flight, had engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. More specifically, it alleges that Respondents, on August 30, discharged 11 Liberty and 6 Flight employees who had commenced a strike on August 29, 1961 The Liberty employees are Kenneth Gene McBride, Valerie E. Glover, Glen T. Harbeck, Esther Gallegos, Rene L.

   Thezan, Gwendaline Lyrics, Irene Davis, Betty Fletcher, Jackie Jackson, Fred Martinez, and Alice Miller. The Flight employees are Shirley A. McCright, Jean Marie Donahue, Jacqueline King, Margie Harbeck, Elvin E. Talley, and Roger B.

   Williams. Oral argument at the close of the hearing was waived and briefs have been received from all parties.2

   Upon the basis of the entire record in the case, and from my observation of the witnesses, I make the following:

   FINDINGS OF FACT

   1. THE BUSINESS OF RESPONDENTS Liberty Electronics Corp. and Flight Electronic Supply Corp. are commonly owned and controlled California corporations which maintain their principal offices and places of business on adjacent premises in Inglewood, California, where they are engaged in the assembly and distribution of electronic components. During the year prior to the issuance of this complaint, each corporation received goods and materials valued in excess of $50,000 which were shipped to it directly from points outside the State of California.

      The record demonstrates that these corporations are one integrated employer.

      Liberty handles five lines of electronic components and Flight handles two other lines, all in the same general category. Irving Zeiger is the central and controlling figure of these companies, owning more than 50 percent of the stock. He is the president and chief executive officer of both and his wife is their vice president; moreover, both concerns have the same secretary-treasurer. These officers are also the board of directors for each corporation and Zeiger normally fashions labor relations policies for all.

      Frederick Corrick is accounting supervisor at Liberty and is also supervising accountant at Flight. There are two other affiliated corporations, one of which is identified herein as Orbit. Corrick coordinates all four concerns, is general supervisor of all, and is also accounting supervisor of all. The office staffs of these four firms are under his direction and he spends most of his time at the Liberty office. The record discloses that Flight, Liberty, and Orbit are in close physical proximity. In at least one case during the strike described below, Flight work was done for 2 days on Orbit premises and the employee was thereafter temporarily transferred to Flight. Norman Jones, who plays a major role herein, was retained as a labor relations consultant to handle the dispute involving Liberty and Flight and it is clear that one single uniform policy was applied to the employees of both concerns.

      I find that the operations of Respondents affect commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdicition herein.

      H. THE LABOR ORGANIZATION INVOLVED Warehouse Processing & Distribution Workers' Union, Local 26, International Longshoremen's and Warehousemen's Union, is a labor organization within the meaning of Section 2(5) of the Act.

      'Issued October 29, 1961, and based upon a charge and amended charge filed September 22 and October 12, respectively, by Warehouse Processing & Distribution Workers' Union, Local 26, International Longshoremen 's and Warehousemen's Union, herein called the Union. The corporate names of Respondents appear as amended at the hearing 2 Respondents have also submitted a reply brief which the General Counsel has moved to strike. As the Rules and Regulations of the Board make no provision for this, it has not been considered. The motion to strike is hereby granted and the document is ordered transferred to the rejected exhibit file.

      LIBERTY ELECTRONICS CORP., ETC. 1077

   3. THE UNFAIR LABOR PRACTICES A. The issue; sequence of events Employees of Liberty and Flight jointly commenced a strike for union recognition on August 29, 1961. The issue here is whether Respondents, pursuant to a decision made on August 29, terminated and discharged 17 strikers on August 30, 11 at Liberty and 6 at Flight, or whether Respondents merely paid them their accumulated wages allegedly pursuant to the requirements of California law but did not terminate their employment.

      The Union commenced organizational activity among the employees of Respondents in mid-August 1961, and ,many employees of both concerns signed up. On August 28, the Union sent a night telegram to Respondents wherein recognition was requested. International Representative Chester Meske and other union representatives met with President Zeiger of Respondents at approximately 9 a.m. on Tuesday,

      August 29, and Zeiger acknowledged receipt of the wire. The union representatives offered to prove their majority by a card check but Zeiger refused, claiming, as Meske testified, that he wanted 'some Government agency to conduct an election.' The union representatives immediately telephoned the Regional Office of the Board as well as the California State Conciliation Service. They then told Zeiger that either of these agencies could hold an election in 1 or 2 weeks if Zeiger consented to it.

      The details of the consent election, including unit and elegibility list, were explored and the parties were in agreement thereon, although not on the date of an election. In fact, Zeiger stated that he had no objections to a single unit of Flight and Liberty employees. He then insisted that he would not agree to a consent election either under the auspices of the Board or the State agency. Immediately thereafter, Meske met with the employees of both plants in...