Owen Joist Corp.

OWEN JOIST CORPORATION 589 Owen Joist Corporation and International Brother- hood of Electrical Workers, Local No. 382, AFL-CIO. Case I -CA-7921 March 20, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 11, 1979, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein. 1 Respondent has requested oral argument This request is hereby denied as the record, the exceptions. and the brief adequately present the issues and the positions of the parties. 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producs Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Additionally, we are satisfied that Respondent's contention that the Administrative Law Judge was biased is without merit. In our opinion, there is nothing in the record to suggest that his conduct at the hearing, his rulings, credibility resolutions, or the inferences he drew were based on either bias or prejudice. We note the following inadvertent error in the Administrative Law Judge's Decision. The record indicates that employee Sulton testified he asked Superintendent Dyches "for my timecard to go back to work," and not "for my timecard and to go back to work," as the Administrative Law Judge found. (Emphasis supplied.) However, we find this to be an immaterial error and agree with the Administrative Law Judge's conclu- sion that Sulton made an unconditional offer to return to work. We agree with the Administrative Law Judge's dismissal of the allega- tion in regard to employee Hingleton, but only because the General Counsel failed to offer sufficient evidence that he made an unconditional offer to return to work. However, we do not adopt his finding that Hing- leton's offer was conditional, as Hingleton did not testify, and the evi- dence presented was too limited to determine the nature of his offer. Finally, we do not adopt the Administrative Law Judge's finding that Executive Vice President Scott admitted at the hearing that all of the al- leged discriminatees, except Gadson, made unconditional offers to return to work. The record does not indicate that he made such an admission. Nonetheless, we find that this does not affect the Administrative Law Judge's ultimate conclusions, which are based on his credibility findings and other evidence 3 The Administrative Law Judge included a broad cease-and-desist provision in his recommended Order. In Hickmotr Foods. Inc., 242 NLRB No. 177 (1979), the Board held that such an order is warranted only when a respondent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demon- strate a general disregard for the employees' fundamental statutory rights. We find this case does not fall into the above category. We therefore substitute a narrow cease-and-desist provision for the broad one in the recommended Order and conform the notice accordingly 248 NLRB No. 76 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, as modi- fied below, and hereby orders that the Respondent, Owen Joist Corporation, Cayce, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges vio- lations of the Act not specifically found herein. We note that the Administrative Law Judge inadvertently provided for the posting of "Appendix A," which is not a notice to employees Ac- cordingly, we hereby delete the language of "Appendix A" indicating that it is to be posted "Appendix ," the usual "Notice To Employees," is to be posted. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to reinstate employees who engage in an economic strike to their former positions, or to positions for which the employees are qualified when those positions become available, following their uncondition- al offer to return to work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Tony Hodge immediate and full reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent job, dismissing, if necessary, anyone hired as a welder since August 21, 1978. WE WILL make whole Tony Hodge, Cald- well Aiken, Craig A. Bolen, Henry Sulton, Gregory Richardson, and Eldred Page for any loss of pay or other compensation they may OWEN JOIST CORPORATION 589 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have suffered by reason of our refusal to rein- state them, with interest. OWEN JOIST CORPORATION DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard on May 21 and 22, 1979, at Colum- bia, South Carolina. The charge was filed on November 16, 1978, and amended on November 20, 1978. The com- plaint issued on January 19, 1979, and was amended at the hearing. The complaint alleges that Respondent vio- lated Section 8(a)(l) and (3) of the Act by failing to rein- state 9 employees because of their strike activity or union activity, following their economic strike. Upon the entire record and from my observations of the witnesses, and after due consideration of the briefs filed by General Counsel, Respondent, and the Charging Party, I hereby make the following: FINDINGS AND CONCLUSIONS A. The Evidence Respondent is engaged in the production of steel joist at its facility at Cayce, South Carolina.' During their morning break on August 16, 1978, various employees including several welders, decided to strike Respondent following their lunch break. On returning from lunch a number of employees engaged in a work stoppage. Shop Superintendent James Dyches testified that, upon returning from lunch at approximately 12:30 p.m. on August 16, he learned that a group of employees were refusing to work. Dyches walked back to the employees and asked what "their problem was, why they weren't working." Dyches testified, "They said that they wanted better working conditions and they wanted more money and that they wanted to talk to Mr. Scott [executive vice president and general manager]." One particular employ- ee, Tony Hodge, said to Dyches, "We are all busting our asses and we need more money, [Respondent] keep[s] pressuring production and [Respondent] didn't know what [it was] talking about." Dyches took Hodge into his office and showed him the production board in the hope of convincing him that the supervisors did know what they were talking about regarding production. Hodge testified that while he and Dyches were in Dyches' office Dyches offered him a leadman job and an increase in pay provided he would convince the employ- ees to return to work. Dyches denied that he made such an offer to Hodge. According to Dyches, he did tell Hodge that he was being considered for a 5-cent or 10- cent raise, but Dyches denied that he offered Hodge a I Neither jurisdiction nor the status of the Charging Party i at issue The complaint alleges, the answer admits, and I find that Respondent meets the Board's standards for the assertion of jurisdiction. Respondent also admits and I find that the Charging Party is a labor organization as defined in the Act. leadman job or that he offered a raise, contingent upon Hodge asking the employees to return to work.2 Executive Vice President and General Manager Victor Scott testified that the striking employees demanded air- -conditioning in the shop, more money, and a longer lunch hour, when he approached them on the afternoon of August 16. Scott asked the striking employees to leave the plant if they did not intend to return to work. Later that afternoon, after the employees continued to refuse to work, Scott had Dyches take the employees outside the plant where Scott read a statement. The statement in- cluded requests that the employees agree to discuss their grievances individually and a statement that the employ- ees had a right to engage in strike activities off company property. The statement warned that if the employees "continue in this manner, I will have no choice but to replce [sic] you." During the work hours on August 17 and 18, the em- ployees picketed Respondent's premises. Their picket signs read either, "No contract, no work," or "No work, no contract." 3 Tony Hodge testified that, as Superintendent Dyches was passing out checks to the striking employees on August 18, he asked Dyches, "When can I get my job back." According to Hodge, Dyches replied, "There ain't nothing I can do." Hodge was asked if he was of- fering to return to work when he made the above state- ment to Dyches. His reply, "Under the same conditions, no." 4 Employee Joseph Gadson testified that he asked to return to work on August 18. Gadson testified he was behind Tony Hodge in line to pick up his paycheck. Ac- cording to his testimony, he asked Dyches, "Mr. Dyches, can I get my job back?" Gadson testified that Dyches replied that Gadson's job had been replaced. Gadson testified about his alleged August 18 offer to return to work on cross-examination. Under further cross-examination, Gadson testified that when Dyches told him his job had been replaced Gadson asked Dyches could "I get my job back," and "did [Dyches] have any openings," to which Dyches replied, "No." After Gadson testified about his alleged August 18 offer to return to work, General Counsel recalled Tony Hodge. Hodge testified that on August 18, at the pay- check table, he heard Gadson ask, "When we were going back to work." 2 I do not credit Hodge's account of his August 16 meeting with Dyches. There were conflicts between Hodge's testimony and affidavits he had given the Region during the investigation of this case. Additional- ly, there were conflicts in Hodge's testimony during the hearing. For ex- ample, on direct examination, Hodge testified that, on August 21, he asked Dyches for his "timecard and my job." However, on cross-exami- nation Hodge denied asking for his timecard. I do not credit Hodge to the extent that his testimony conflicts with other evidence. ' The evidence, including stipulations, indicated that all the alleged dis- criminatees participated in the strike on August 16, 17, and 18, on August 17 and 18, or on August 16. ' Hodge testified that he also talked to Dyches on August 18 on the phone. Hodge testified that on that occasion he asked Dyches "did he know when all of this was going to be settled and we were going back to work"; Dyches said he did not know. Gadson testified that he overheard Hodge's and Dyches' phone conversation from an extension phone. Ac- cording to Gadson, Hodge asked for his job and back and asked if "we could come back to work and Mr. Dyches said no, our jobs had been replaced. " OWEN JOIST CORPORATION 591 On Monday, August 21, several of the alleged discri- minatees returned to the plant. Dyches admitted that five of the striking employees came to his office on the morn- ing of August 21. Those employees were alleged discri- minatees Tony Hodge, Gregory Richardson, Henry Sulton, Craig A. Bolen, and Caldwell Aiken. According to Dyches none of the five employees said anything, but he read the following prepared statement to the five: "You have been replaced. If your job should become available we will notify you." Hodge testified that he went to Dyches' office around 6:45 a.m. on August 21, and "I asked Mr. Dyches when I came into his office for my timecard and my job." Dyches then read the above statement to Hodge. Caldwell Aiken testified that he went into Dyches' office on the morning of August 21. Aiken said, "I'm ready to go back to work." Dyches said, "You have been replaced." Aiken asked, "What does that mean? Have I been fired or what?" Dyches, "You have just been replaced. If we need you, we will call you." Aiken, "Well, what does that mean? I might need to draw un- employment. I need to know." Dyches replied, "I don't know." Aiken, "Okay, I appreciate it." Craig Bolen testified that he went into Dyches office on the morning of August 21 and that Dyches was there with Victor Scott. Bolen testified he asked them "did I still have a job there." Scott replied, "No, you've been replaced. If we need you, we'll call you." Henry Sulton testified that he went to Dyches' office around 6:45 a.m. on August 21. Present were Dyches, "Asberry," an employee named Elwood, and Gregory Richardson. Sulton testified, "I came in, and I then asked for my timecard to go back to work. [Dyches] said that my job had been replaced and he would notify me if needed." Sulton admitted that Dyches read his reply from a pad. Gregory Richardson testified that, when he went into Dyches' office on August 21, he asked Dyches for his ti- mecard. Dyches got a piece of paper and read to him, "Your job has been replaced. Until your job is available, your job has hereby been replaced." Richardson asked Dyches "when a job came open, would he give me a call." Dyches answered that he would. Dyches said, "I'm sorry," and Richardson left. Richardson returned to see Dyches again in mid-September and asked if he had "any jobs come open yet." Dyches replied, "No, not yet, but we'll give you a call if any do." After that Richard- son called Dyches several times beginning in late Sep- tember. Dyches admitted that Richardson called "a couple of times." Dyches said that Richardson was "wanting to know if we were doing any hiring. He wanted to come back to work. I told him that we did not have an opening in the welding department at this time." Joseph Gadson testified that he also returned to the plant on August 21 and talked with Dyches. Gadson tesi- tified that he said to Dyches, "Mr. Dyches, I've come to get my job back." Dyches replied that Gadson's job had been replaced. Gadson said, "If you get any openings, give me a call." Gadson asked if Dyches still had his phone number and Dyches indicated that he did. Gadson testified that he returned 2 days later, on August 23, and talked with Assistant Shop Superintendent Donald Berry. According to Gadson, he asked Berry, "could I get my job back." Berry told him that his job had been replaced but that Gadson was a good worker and a good welder. Gadson said he then asked Berry, "if he'd get any openings." Berry replied that he would give Gadson a call. 5 Eldred Page testified that he returned to the plant during mid-September 1978, and spoke to Dyches. Page testified, "I asked him if he had any job openings, and he said no, if anything came up, we'd give you a call." Dyches admitted that Page came in, and called one time, and "wanted to know if we had any openings." Dyches testified that he told Page that "we did not need anyone in the welding department at this time." Jerry Butler testified that he came into the plant and talked with Dyches around mid-October 1978. Butler told Dyches that he would like to apply for a job. Dyches told Butler that he already had his application. Butler then said, "Well, if you need anybody, give me a call." Dyches replied, okay. Dyches recalled Butler coming in and talking with him on October 7 or 14. Dyches testified simply that Butler wanted to go to work. Dyches testified that he replied, "I told Jerry that we did not need anyone in the welding department at that time." Andrew Hingleton, Jr., did not testify. Dyches testi- fied that Hingleton sent word on August 28, asking if his job were available. Dyches sent word back that Hingle- ton's job was not available and when it became available he would be notified. Tony Hodge testified that he talked to Dyches again during mid-October 1978. Hodge said he "asked (Dyches) could I put in another application, and he said that he already had an application on me." Hodge ex- plained that he had changed his phone number and asked again if he could put in another application. Dyches said okay. Hodge completed and submitted the new applica- tion. The application, which was received in evidence, is dated October 10, 1978. Hodge testified that he started calling Dyches approximately 2 weeks after submitting the October 10 application, asking for a job. Dyches ad- mitted that Hodge called seven or eight times, "wanting to come back to work." Dyches testified that he told Hodge on each occasion, "we didn't have any openings in the welding department at this time." The parties stipulated that the following alleged discri- minatees received valid reinstatement offers from Re- spondent as shown below. Additionally, through stipulation and uncontested evi- dence, the record reflects that several employees were hired during the period on or before August 18, 1978, through approximately April 9, 1979. The list of those hires is attached hereto as Appendix A. I do not credit Gadson's testimony to the extent it conflicts with other evidence Counsel for the Charging Party admitted that Gadson violated the rule of sequestration after I had cautioned him not to discuss his testimony with other witnesses. Additionally, there were serious con- flicts between his first pretrial statement to the Region and his testimony at the hearing. In his affidavit, he stated that he did not talk to any com- pany officials on August 21. OWEN JOIST CORPORATION 591 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Date of Reinstatement Offer Eplaoyee Job Web Bender Laborer Web Bender Laborer Splicer Laborer Web Bender Laborer Splicer Laborer Clamp Carrier Clamp Carrier Accept/Decline Accepted Declined Declined Declined Accepted Accepted Accepted Accepted Eldred Page Caldwell Aiken Craig Bolen Henry Sulton Gregory Richardson Joseph Gadson Jerry Butler Andrew Hingleton, Jr. 1/30/79 1/30/79 1/30/79 2/07/79 2/08/79 3/07/79 1/24/79 1/79 or 2/79 B. Conclusions The issues in dispute are narrow. General Counsel contends that Respondent failed to reinstate nine employ- ees to the first available jobs following the protected concerted work stoppage of August 16, 17, and 18, 1978. The evidence is undisputed that the nine alleged discri- minatees did engage in a strike and that the object of their action was higher wages and better working condi- tions." That activity was protected concerted activity and I so find. Respondent defends on two points. It al- leges that one alleged discriminatee, Tony Hodge, en- gaged in misconduct on the picket line sufficiently seri- ous to justify Respondent's refusal to reinstate him and it argues that none of the alleged discriminatees made a valid unconditional offer to return to work at a time which would have required Respondent to reinstate them at an earlier date. Economic strikers who unconditionally apply for rein- statement when their positions are filled by permanent replacements remain employees and are entitled to full reinstatement upon the departure of the replacements, or when jobs for which they are qualified become available, unless they have in the meantime acquired substantially equivalent employment, or the employer can show a le- gitimate and substantial business justification for the fail- ure to offer reinstatment. The Laidlaw Corporation, 171 NLRB 1366 (1968). 7 There was no contention by the General Counsel that the employees employed by Respondent after the strike began on August 16 were not permanent hires (see Ap- pendix A) General Counsel offered no evidence demon- strating that any of those hires have departed Respon- dent's employ. General Counsel contends that by hiring on and after August 21, as demonstrated on Appendix A, Respondent illustrates an opening in that particular job. General Counsel further argues that the alleged discri- minatees were all qualified to fill any of the positions which became available on or after August 21 (again see Appendix A). I agree and so find. The evidence is un- contested s that the alleged discriminatees were all quali- I The General Counsel alleges Respondent was motivated in not rein- stating the alleged discriminatees by their strike and their union activity. The evidence fails to demonstrate that Respondent was aware of any union activity. Therefore, I find that the General Counsel failed to prove Respondent was motivated by its employees' union activities. fled welders who were qualified to perform other jobs including those for which employees were hired after August 21. Therefore, I find that the following jobs for which the alleged discriminatees were qualified were available on the date(s) represented: laborer, August 24, September 9, and October 10, 1978; welder 9 April 9, 1979 (three positions available), and April 10, 1979 (two positions available); web bender laborer, October 10, 1978; splicer laborer, September 19, 1978; clamp carrier, April 9, 1979; splicer, September 11, 1978; and shearman, September 18, 1978. Additionally, no evidence was offered and no argu- ment advanced that any of the alleged discriminatees had acquired substantially equivalent employment (until the time they were actually offered reinstatement by Respon- dent), or that Respondent refused to reinstate any of the alleged discriminatees because of legitimate and substan- tial business justification (except as to the alleged picket line misconduct of Hodge-see infra). Therefore, the dis- puted issues include whether the alleged discriminatees made unconditional offers to return and whether Hodge engaged in misconduct which would justify Respon- dent's refusal to reinstate him. 1. Unconditional offers During the hearing, General Counsel amended its complaint to allege that Tony Hodge and Joseph Gadson first unconditionally offered to return to work on August 18. The evidence does not support that allegation. As in- dicated above, I do not credit Hodge's and Gadson's version of the August 18 conversation at the pay table. I am convinced and I find that the comments on that occa- sion constituted nothing more than inquiries of whether the employees' demands would be satisfied. Superinten- dent Dyches testified that he was asked at the pay table if the Company had responded to the employees' de- mands. Dyches denied that any of the employees offered N.L.R.B. v. Fleetwood Trailer Company, 389 U.S. 375 (1967); Alumi- num Cruisers, In., 234 NLRB 1027 (1978). 8 Superintendent Dyches did testify that he was unaware Tony Hodge had performed any job other than welding. However, no effort was made to illustrate that Dyches would have been aware of all the jobs Hodge performed. Therefore, I credit evidence that Hodge could perform all the jobs in the shop except painting. 9 General Counsel has not contended that Respondent has any obliga- tion to transfer any of the alleged discriminatees to a welder position after that particular alleged discriminatee had been reinstated at a posi- tion other than welder. Therefore, I have not considered the issue. OWEN JOIST CORPORATION 593 to return to work. Assistant Superintendent Berry testi- fied that Gadson stated at the pay table, "it was hot out- side and had the Company decided to do anything, whether they decided to do anything or not." Berry also denied that either Gadson or Hodge offered to return to work. Gadson also testified that he overheard a phone call during the afternoon of August 18 between Hodge and Dyches. According to Gadson, Hodge asked for his job back. I do not credit Gadson's testimony. Hodge's ver- sion of the phone call differed from Gadson's. Hodge testified that he asked Dyches, "when all of this was going to be settled and when we were going back to work." On cross-examination, Hodge admitted that he was not offering to return to work on August 18, under the "same conditions." Therefore, I find that neither Hodge nor Gadson made an unconditional offer to return to work on August 18. General Counsel also alleged that Joseph Gadson made unconditional offers on August 21 and 23. The tes- timony by Gadson that he made an offer to Dyches on August 21, and another offer to Berry on August 23, is unsupported. Both Dyches and Berry testified that they did not see Joseph Gadson on August 21 or 23. Berry and Dyches denied that Gadson offered to return at any time until March 1979, when Gadson was reinstated. I indicated above that I do not credit Gadson's testimony. Therefore, I find that the evidence fails to support Gen- eral Counsel's allegations as to Joseph Gadson. General Counsel failed to offer evidence that employ- ee Andrew Hingleton, Jr., made an unconditional offer to return. Superintendent Dyches admitted that Hingle- ton sent word that he wanted his job back on or about August 28. Hingleton was subsequently reinstated fol- lowing a January 24, 1979, offer from Respondent. In view of the limited evidence, I am unable to find that Hingleton made an unconditional offer to return. The evidence indicates his offer was limited to his old job which was not available until after his reinstatement. a. August 21 Respondent admits that employees Hodge, Richardson, Sulton, Bolen, and Aiken returned to work on August 21, but denied that they made an unconditional offer. Re- spondent contends their offers were limited to their former jobs of welder and, therefore, not unconditional. According to the testimony of Respondent's witnesses Dyches and Berry, Hodge, Richardson, Sulton, Bolen, and Aiken, appeared at Dyches office. Dyches had been supplied with a statement which he read to the five em- ployees: "You have been replaced. If your job should become available we will notify you." Dyches and Berry testified that the five left without saying anything follow- ing Dyches' statement. All five employees testified that they made statements to Dyches regarding returning to work.l ° Hodge testi- ' I do not credit Dyches' and Berry's testimony that the five employ- ees made no comments on August 21. 1 was impressed with the demea- nor of witnesses Richardson, Sulton, Bolen, and Aiken and I credit their testimony regarding their comments to Dyches. The evidence does sup- port Dyches' and Berry's testimony that Dyches read the above-men- tioned prepared statement. However, I find unusual the assertion that fied he "asked Mr. Dyches, when I came into his office for my timecard and my job." Richardson testified he asked Dyches where his timecard was and, after Dyches read the above statement, Richardson asked, "when a job came open, would he give me a call." Sulton testified that he asked Dyches "for my timecard and to go back to work." Bolen testified that he asked "did I still have a job there." Aiken stated that he told Dyches, "I'm ready to go back to work," and, after Dyches read the state- ment, Aiken asked what the statement meant. According to Aiken, Dyches was unwilling to explain the meaning of his comment that Aiken had been replaced. I am convinced that the actions and comments of the five employees" who appeared on August 21 were broad enough to constitute unconditional offers. 2 More- over, Respondent admitted that they accepted the ac- tions of August 21 as unconditional offers. Executive Vice President Scott admitted in a pretrial affidavit and at the hearing that all the alleged discriminatees, except Joseph Gadson, made unconditional offers to return to work. Superintendent Dyches' testimony to the effect that he read his prepared statement to the five employees before they said anything demonstrates his belief that by being there those employees were seeking a job. There- fore, I am convinced that Respondent neglected its obli- gation to offer those employees jobs for which they were qualified. Additionally, I find that under the circumstances Re- spondent's actions demonstrated to the employees that there were no jobs available and that any effort to broad- en the scope of their offers to return would be futile. The facts convince me that Dyches' statement to the five employees was designed to mislead the employees into believing there was no work available. Although the welder jobs had been filled, production jobs were avail- able. Respondent argues that the employees were cer- tainly aware of the existence of nonwelder jobs through its newspaper advertisement. However, that advertise- ment also indicated welder jobs were available and Dyches' statement refuted that assertion. Therefore, it was reasonable for the employees to assume that Dyches' comments rendered the ad inoperable. Respondent offered no justification why it limited Dyches' statement to the returning strikers to welder po- sitions. Respondent was seeking production employees on August 21. Under normal circumstances an employer would naturally solicit an applicant with experience even though that applicant may be more interested in another position. In fact, Dyches admitted that Respondent occa- sionally does just that; i.e., place an applicant in a posi- tion other than the one for which he applied. However, Dyches read the statement without any comments from the employees either before or after the statement. Additionally, Dyches demonstrated confusion in his recollection of whether the employees came into his office together or in two groups. ' In view of Hodge's unreliability as a witness, I do not credit his testimony that he asked Dyches for "my job." However, as I indicate above, I find that his actions of August 21 convinced Respondent that Hodge was making an unconditional offer. 12 Decker Foundry Company, Inc., 237 NLRB 636 (1978). 13 On August 18, 19, 20, and 21, Respondent advertised "Immediate work available for Welders and Production Workers . in the Colum- bia, South Carolina newspapers. OWEN JOIST CORPORATION 593 594 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD in the instant case Dyches' cleverly worded statement would most likely lead the former strikers, who were ex- perienced in Respondent's production jobs as well as in welding, into believing there were no available jobs. Dyches' statement was prepared beforehand in obvious anticipation of the strikers returning on August 21. Dyches read the same statement, or replied in the same manner, regardless of the employees' request for work. 14 In the one August 21 situation where an employee asked for an explanation of Dyches' statement, Dyches refused to explain further. Therefore, I am convinced that, when Respondent prepared Dyches' statement, it was fully aware that the likely effect of that statement would be to convince em- ployees there were no available jobs. By proceeding to make the statement and not explaining that jobs were available, and not thereafter offering the first available jobs to the five, Respondent evaded its obligation to offer the returning economic strikers jobs for which they were qualified.' b. Eldred Page Page testified that he first returned for work in mid- September. He also talked with James Dyches. Page tes- tified, "I asked him if he had any job openings, and he said no, if anything came up, we'd give you a call." Dyches testified that Page "came back and called one time and wanted to know if we had any openings. I told him that we did not need anyone in the welding depart- ment at this time. At a later date, he came by to talk to his father who works over there with us. After he talked to his father, he stopped by the office on the way back and wanted to know if we had any openings. I told him we did not need any welders at this time." I am convinced that the testimony of Page and Dyches accurately reflects their respective recollections. Page asked for "any job openings." Even though Dyches' response was limited to the "welding depart- ment," Page understood Dyches to be indicating there was nothing available for him. I find that Page's request constituted an unconditional offer. Respondent, by limiting its response to the welding department, and thereafter failing to offer Page the next available job, evaded its obligation to offer him the next available job for which he was qualified. 6 14 As examples, Dyches admitted that Richardson called a couple of times after August 21, and asked "if we were doing any hiring." Dyches responded, "I told him that we did not have an opening in the welding department at this time." He admitted that Eldred Page "wanted to know if we had any openings. I told him that we did not need anyone in the welding department at this time." 's The evidence does not reveal how many jobs were actually avail- able on August 21. However, Respondent hired employees to positions for which the five strikers were qualified on August 24 and September 9, 11, 18, and 19. Additionally, the record is unclear as to the order in which the five employees applied for reinstatement on August 21. There. fore, I make no finding as to the order in which the five vacancies which occurred in August and September should have been filled. '1 The evidence demonstrates that two employees were hired on Octo- ber 10 to positions for which Page was qualified. c. Jerry Butler Butler testified that he talked to Dyches about return- ing to work in mid-October. Butler told Dyches, "I would like to apply for a job. I want to put in an appli- cation for a job." Dyches replied, "I already have an ap- plication on you already." Butler said, "Well, if you need anybody give me a call." Dyches replied that Butler came by on either October 7 or 14, 1978. Dyches testi- fied that Butler "wanted to go to work. I told Jerry that we did not need anyone in the welding department at this time." I find Butler's statement demonstrated an uncondition- al offer to return to work. Respondent was obligated to offer him the next available job for which he was quali- fied. However, on the basis of of Butler's testimony that his conversation with Dyches occurred in mid-October, and Dyches' testimony that the conversation occurred on either October 7 or 14, I have concluded that this con- versation must have occurred on October 14. The evi- dence reflects that no job for which Butler was qualified became vacant after October 14, until he was actually re- instated on January 24, 1979. Therefore, I find no viola- tion as to Butler. 2. Misconduct Respondent alleged that two striking employees en- gaged in serious misconduct on the picket line. Only one of the two was an alleged discriminatee, Tony Hodge. Employee Willie Davis testified that he did not partici- pate in the August strike. Davis testified that, as he came to work on August 17, the striking employees were lined up in front of the gate and someone (unidentified) told him he was not going in. An employee named Meyers opened Davis' car door and said he would pull Davis out. Tony Hodge jumped on the hood of Davis' car. Davis drove on in and Hodge fell off the hood. Davis testified that Hodge was "laying across (the hood), laying down facing me on it. He was laid flat out on it." Davis testified that Hodge did not stop him from going through the gate and Hodge did not say anything to him. In response to the question of whether Hodge was smil- ing or laughing or anything, Davis said, "He might have had a smile on, but I didn't pay no attention." Davis was then asked, did he have a smile on his face, and he re- sponded, "A little smile, yes, sir." Later Davis testified, "He had a little frown on his face. I reckon you call it a smile. I mean, I don't really know, but he wasn't sad looking or nothing." He was then asked, "You thought he was joking, didn't you?" Davis replied, "I didn't take it for granted or nothing." I found Davis to be a straightforward witness and I credit his account of the August 17 incident. Contrary to Respondent's contentions, I find that Re- spondent was not motivated by the Willie Davis incident in refusing to reinstate Hodge and I find that incident was not sufficiently serious to justify a denial of rein- statement. According to the testimony of Superintendent Dyches, Tony Hodge offered to return to work on August 21, when he appeared in Dyches' office, and on seven or OWEN JOIST CORPORATION 595 eight occasions after August 21, when Hodge called. Dyches testified that on each of those occasions he in- formed Hodge there were no jobs available in welding. The evidence demonstrates that Hodge was never told he was being denied reinstatement because of his miscon- duct on the picket line. Furthermore, no evidence was offered to explain why the alleged misconduct was never stated as a reason for denying Hodge reinstatement. Hodge testified that he asked Victor Scott about rein- statement in January 1979. During that conversation Scott said nothing about misconduct. Moreover, the action of Hodge in "laying across" Davis' automobile hood is not sufficiently serious to war- rant refusal to reinstate. The Board has consistently found such minor indiscretions on the picket line insuffi- cient to warrant a refusal to reinstate. 17 Upon the foregoing findings of fact and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW I. Respondent Owen Joist Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local No. 382, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate qualified economic strikers Tony Hodge, Caldwell Aiken, Craig A. Bolen, Henry Sulton, Gregory Richardson, and Eldred Page when work for which they were qualified became available and after they had unconditionally requested reinstate- ment, because they engaged in a protected concerted work stoppage, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent did not engage in unfair labor practices by failing or refusing to reinstate its employees Joseph Gadson, Andrew Hingleton, Jr., and Jerry Butler. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found Respondent unlawfully refused to re- instate Tony Hodge, and since the record reflects and I find that Tony Hodge's former job became available since Hodge offered unconditionally to return to work, I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former job, dismissing, if necessary, anyone employed as a welder since August 21, 1978, without prejudice to Hodge's se- niority or other rights and privileges. 18 Since I find that Respondent has already reinstated, or made valid offers ? Transportation Enterprises. Inc., 240 NLRB No. 74 (1979). is Although Tony Hodge is entitled to reinstatement to the position of "welder," his backpay entitlement would run from the time he could have occupied any position for which he was qualified to reinstate, Caldwell Aiken, Craig A. Bolen, Henry Sulton, Gregory Richardson, and Eldred Page, I shall recommend that Respondent be ordered to make Hodge, Aiken, Bolen, Sulton, Richardson, and Page whole for any loss of earnings they may have suffered as a result of its refusal to reinstate them. Backpay shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).19 Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER2 0 The Respondent, Owen Joist Corporation, Columbia, South Carolina, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to reinstate its employees who engage in an economic strike as jobs for which they are qualified become available, following their unconditional offers to return to work. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Tony Hodge immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, dismissing, if neces- sary, anyone hired as a welder since August 21, 1978, without prejudice to his seniority or other rights and privileges. (b) Make Tony Hodge, Caldwell Aiken, Craig A. Bolen, Henry Sulton, Gregory Richardson, and Eldred Page whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Cayce, South Carolina, facility copies of the attached notice marked "Appendix B."2 1 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by representative, 19 See, generally. Isis Plumbing d Hearing Co., 138 NLRB 716 (1962). 20 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 21 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 " OWEN JOIST CORPORATION 395 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX A Employee Ronnie D. Ballington Joseph Barton Crawford Bass Henry lemister Ozie Flemister, Jr. Joseph rcadson William General David lover Clenton Hartl Richard L. Hutto Curtis Jackson Allen Jones Samual K(eeney David F. Kirkland Brodie Lee Kneece Fdmond Long, Jr. Heyward Long Tony R. McLaughlin Anthony J. Medlock Jeffrey Monroe Jack B. Nelson Raymond Nesbitt, Jr. Charles E. Noble Jerry L. Oliver Herbert Reed Wilbur Reed Barry Stokes Anthony Williams Curtis M. Williams Eugene Williams Postell Williams Claude Witherspoon Herbert T. Young Date Hired 8/19/78 8/19/78 10/10/78 8/18/78 4/09/79 3/14/79 8/19/78 10/10/78 8/18/78 4/09/79 9/09/78 8/19/78 4/09/79 9/19/78 4/10/79 8/18/78 8/18/78 8/18/78 4/09/79 4/10/79 8/19/78 8/15/78 8/19/78 9/11/78 8/19/78 8/19/78 8/19/78 9/18/78 (no date) 8/18/78 8/19/78 8/24/78 8/18/78 Date Started Work 8/19/78 8/19/78 10/10/78 8/18/78 4/09/79 3/19/79 8/21/78 10/10/78 8/18/78 4/09/79 9/09/78 8/21/78 4/09/79 9/19/78 4/10/79 8/18/78 8/18/78 8/18/78 4/09/79 4/10/79 8/21/78 8/21/78 8/21/78 9/11/78 8/21/78 8/21/78 8/21/78 9/19/78 8/19/78 8/18/78 8/19/78 8/28/78 8/18/78 Position Clamp Carrier Welder Laborer Welder Welder Clamp Carrier Shear Operator Web Bender Laborer Welder Welder Laborer Welder Welder Splicer Laborer Welder Welder Welder Welder Clamp Carrier Welder Welder Welder Welder Splicer Welder Welder Welder Shearman Welder Welder Welder Laborer Welder