Birmingham Oramental Iron Co.

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Birmingham Ornamental Iron Company and United Steelworkers of America, AFL-CIO-CLC. Case 10-CA-14885 August 27, 1980 DECISION AND ORDER On May 20, 1980, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in opposition thereto. 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. l ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i In adopting the Administrative L.aw Judge's Decision, we find that the duty to notify unfair labor practice strikers of the date upon which they should return to work rests with the employer This notification is an integral part of the employer's obligation to offer reinstatement upon the employees' unconditional offer to return to work. However, it is well settled that a union has the authority to make an unconditional offer to return to work on behalf of all the strikers. as the Union did here. And, by the same token, an employer may discharge its duty, as Respondent did herein, by making a collective offer to reinstate through the union, the strikers' agent. Trinity Valley Iron and Steel Works, 158 NLRB 890, 893 (1966); J I. Rutter-Rex Manufacturing Company, 158 NLRB 1414, 1424 (1966) and Gladwin nduslries. 183 NLRB 280(), 281 (1970). Thus, by making such an offer of reinst;tement the employer has collectively noti- fied the employees of the date they should return to work and thereby satisfied its notification obligation. We further note that there is no evi- dence that Respondent's offer to the Union was invalid or that Respond- ent's hiring of replacement welders as motivated by anything other than legitimate business considerations. DECISION STATEMENT or THE CASE DAVID L. EVANS, Administrative Law Judge: This proceeding was heard before me in Birmingham, Ala- bama, on March 24, 1980. The charge was filed by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, on August 6, 1979.' The com- plaint, issued on September 25, alleges that since on or about July 10, Respondent has discharged and/or failed to reinstate Tyrone Kidd after an unfair labor practice I All dates are in 1979, unless otherwise specified 251 NLRB No. 115 strike. Respondent duly filed an answer admitting certain allegations but denying the commission of any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISD)ICTION Respondent, an Alabama corporation, is engaged in the manufacture of furniture at a place of business locat- ed in Birmingham, Alabama, where during the calendar year preceding issuance of the complaint, it purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Alabama. Re- spondent admits, and I find and conclude, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. [I. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find and conclude, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. 'HE AIIEGEI) UNFAIR I.ABOR PRACTICES On January 27, 1978, the Union was certified by the Board as the collective-bargaining representative of Re- spondent's production and maintenance employees. Since on or about that date, the Union has requested Respond- ent to bargain with it as the representative of those em- ployees. At all times through the date of the hearing, Re- spondent refused to bargain with the Union. On Febru- ary 23, 1979, the Board found that this refusal to recog- nize and bargain with the Union was an unfair labor practice. The Board decision is reported at 240 NLRB 898 (1979). The order was enforced by the Court of Ap- peals for the Fifth Circuit on April 17, 1980. According to the undisputed and credible testimony of Union Staff Representative David Newell, because of the refusal to bargain, the employees voted to initiate a strike against Respondent on March 26, and the strike began that date. 2 The strike ended on June 18 when the em- ployees voted to return to work at a meeting conducted by the Union. As Newell testified that it was reported to him, the attorneys for the parties agreed that the employ- ees could begin reporting for work on June 20. There was no express agreement as to who would inform the employees that the strike was terminated, and that Re- spondent had agreed to reinstate all strikers beginning June 20. At the meeting of June 18, according to Newell: After telling the employees when to return to work and asking them to notify the other employees who weren't at the meeting or that they knew that had other jobs, we adjourned the meeting. Then we contacted John Faulkenbury [the Union's attorney] and told him what had taken place at the meeting and that the employees were returning to work. We Upon this testimony I find that the strike as caused by Respond- ent's refusal to bargain with the Union which was foulnd to be an unfair labor practice in the above-cited case BIRMINGtIAN ORNAMENIAL. IRON COMPANY 815 went from there to the plant to the picket line and informed those employees that were manning the picket line what had taken place at the meeting. One of the strikers was Tyrone Kidd, a welder, who began working for Respondent on November 290 1978. In addition to picketing, Kidd worked different jobs during the strike. On June 14, lie took an over-the-road truckdriving job with Arrow Truck lines. On Friday. July 6, Kidd had an accident while driving one of Arrow's trucks. Kidd acknowledged that he believed that he would he fired because of the accident. On Sunday, July 8, according to Kidd, he returned to Bir- mingham and called his brother, a fellow worker and striker, and asked if the strike was continuing. According to Kidd, it was in this telephone call that he first learned that the strike had previously been terminated. Although he returned to Birmingham for "about four or five days" between June 14 and July 8, he did not on those occa- sions ask his brother or any other striker if the strike had terminated. He called his wife a few times while e was on the road. but in none of these calls, according to this record, did he ask her to find out if the strike was con- tinuing. On the morning of Monday, July 9, further according to Kidd, before Arrow could fire him, he went to that employer and quit. During the same morning he called Respondent's operations manager, Mack Musgrove, and stated that lie wished to return to work. Musgrove told Kidd to conic in to the plant the next morning On July 10, Kidd reported to the plant. Musgrove had Kidd fill out an application and, according to Kidd: I filled out the application and then he came around there and we went back in a little small room back there and he told me that he didn't have any weld- ing openings: said he had a position but he knew I didn't want to work for peanuts and I told him he was right. So he told me I should look for another job and he would hold my application on top of the file. Musgrove testified that 125 employees were reinstated on June 20 and others had applied for and were granted reinstatement during the strike. Further, according to Musgrove, he, Personnel Director Larry York, and Op- erations Manager Gary Roth waited for what they con- sidered a reasonable time after the June 20 date, namely July 2, and decided to invoke Respondent's established, written rule which specifies as "just cause for discharge" 3 consecutive days, unexcused absence. Musgrove credi- bly testified that it was assumed by himself, York, and Roth that the forty or fifty people who failed to appear were no longer interested in continuing their employ- ment with Respondent and they, including Kidd, were terminated pursuant to the absence rule so that Respond- ent could begin hiring new employees in order to resume production. Musgrove further testified that on July 2 and 5, Respondent hired employees Dough Griffin and Robert Johnson. Respectively, both as welders, and Re- spondent needed no more welders when Kidd applied. Musgrove places the date of Kidd's telephone inquiry about a job at May 6 rather than May 9, but there is no critical dispute about what %,as said in that telephone call. Musgrove credibly testified that on July 10, when Kidd appeared at the plant, he told Kidd that he had been terminated but that he offered Kidd a job as a grinder (because there were no weldinq jobs open), but Kidd refused that offer. York testified on behalf of Respondent that 107 em- ployees returned to work during the strike: 125 returned to work or otherwise satisfactorily explained their ab- sences on June 20: and between June 20 and July 2, 5 more employees appeared at the plant and were reinstat- ed. Forty-five employees, including Kidd, were terminat- ed on July 5, effective July 2, pursuant to the 3-day ab- sence rule quoted above, and only Kidd has been heard from since. ANAI YSIS AND CONCI USIONS At the hearing counsel for the General Counsel con- ceded that there is no case authority for the proposition that an employer has the absolute duty to notify striking employees that a strike, even an unfair labor practice strike, has been terminated. Counsel for the General Counsel argued, citing Stauffer Chemical Company. 242 NLRB 98 (1979), that "the facts of this case when ana- lyzed in light of Stauffcr, compel the finding that Re- spondent had the obligation to notify striking employees of their right to return to work." In Stauffcr, the Board disagreed with the statement of the administrative laxw judge that, "the obligation to notify and reinstate striking employees rests solely with Respondent, and cannot be transferred to the union." The Board stated: While we do not quarrel with the Administrative Lawv Judge's finding that the responsibility for rein- stating strikers is exclusively an employer's, we dis- agree with his further conclusion that the obligation to notify striking employees of the recall terms of a bargained-for strike settlement agreement. at least under circumstsnces as here, is also vested immuta- bly in an employer. The Board further noted: Obviously, it was incumbent upon one of the parties to inform the strikers of the details of the settlement agreement in order to accord them the opportunity to comply therewith. In the ordinary case, the em- ployer, anxious to resume operations, may prefer to take the lead in recalling employees. Here, howev- er, Respondent rejected that role and the Union agreed to accept that responsibility. Here, Respondent did not "prefer to take the lead in re- calling employees," and Sauffer does not announce an absolute rule that it should have done so anyway. The most that can be said of Stauffer is that it appears that the facts of each case will determine which party has the duty to notify strikers that a strike has terminated, but an employer can reject the responsibility. The only circumstances to which the General Counsel alludes is the fact that it was an unfair labor practice strike. In cases where an unfair labor practice strike is 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still in progress at the time a Board order issues, the tra- ditional remedy is that upon application employees be granted reinstatement to the same or substantially equiva- lent positions. The General Counsel cites no authority that the appropriate remedy for strikers caused by unfair labor practices ever includes an affirmative duty to notify each and every striker of the termination of the strike once that event occurs. Therefore, circumstances other than the nature of the strike must be examined. Here, there was no lockout. The Union called and ter- minated the strike at times which it determined without, according to this record, any reference to any specific action of Respondent other than the refusal to bargain which had ensued some 2-1/2 months before the strike was called. Moreover, the Union did not request Re- spondent to notify the employee: it began notifying them itself. When 125 employees appeared 2 days later, Re- spondent was justified in assuming that the Union had undertaken and successfully executed an obligation to notify the individuals it had led on strike. Therefore, under the circumstances of this case, if there is to be im- posed a burden on one party to notify additional employ- ees of the termination of the strike, equities would seem- ingly compel it to be imposed upon the Union.3 :' As well as determining what are the respective duties of Respondent and the Union, an inquiry should also be made about whether, under the In summary, Kidd was not discriminated against be- cause of his union or strike activities. Accordingly, I find and conclude that Respondent has not violated Section 8(a)(l) or (3) of the Act by its treatment of Kidd, and I shall issue the following recommended: ORDER 4 The complaint is dismissed in its entirety. circumstances of such cases as this, there is also some responsibility on the part of the employee. At minimum. fairness would require that a tras- eling employee make some small effort to ascertain if his employment in which he claims to retain a continued interest is still the subject of a strike. That is, if before the job-ending accident at Arrow. Kidd pos sessed the least interest in his continued employment with Respondent (a claim which he made but which I find incredible) he would have cn- tacted Respondent, the Union. his brother and/or any other striking m- ployee during the "four or five days" he was in Birmingham. and/or asked his wife to do so while he was awa, According to this record. Kidd did none of these things. 4 In the event no exceptions are filed as provided by Sec. 102 4h if the Rules and Regulations of the National l abor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules ad Regulations, he adopted by the Board and become its findings. conclusions, and Order, anti all objections thereto shall be deemed waived fi)r all purposes.