W.C. McQuaide, Inc.

W. C. McQUAIDE, INC. W. C. McQuaide, Inc. and Robert V. Lesnak and In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110. Cases 6-CA-7509 and 6-CA-7770 December 8, 1978 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 31, 1978, the National Labor Relations Board issued a Supplemental Decision and Order ' in the above-entitled proceeding in which it adopted, with certain modifications, the findings and conclu- sions of the Administrative Law Judge as contained in his Supplemental Decision of February 16. 1978. The Board ordered, inter alia, that Respondent offer full and immediate reinstatement to certain named employees and make those and other named employ- ees, including John Dikum, whole for losses they suf- fered by reason of Respondent's unfair labor prac- tices. Thereafter, on August 22, 1978, the General Coun- sel filed a motion for reconsideration, requesting that the Board reconsider its Order and direct Respon- dent to offer Dikum reinstatement and make him whole for any losses suffered by him until such offer is made. The General Counsel contends that al- though Dikum indicated, in response to questioning by the Administrative Law Judge, that he did not at the time of the hearing wish to return to work for Respondent, Respondent had not itself offered Di- kum reinstatement, and, therefore, the Administra- tive Law Judge incorrectly concluded that, "Dikum's statement in open court was sufficiently clear and uncoerced to absolve the Respondent of any further duty to offer him reinstatement and to toll backpay as of that date." Respondent has filed an opposition to the General Counsel's motion, contending that the issue raised therein has been fully litigated. 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, having duly considered the matter, is of the view that the General Counsel's contentions have merit. The Board has long held that "[o]nly when a prop- er offer is made and unequivocally rejected by the employees is the employer relieved of his statutory 1237 NLRB No. 26. duty to reinstate." 2 As the General Counsel points out, the Administrative Law Judge was in no position to offer Dikum reinstatement and, in the absence of a valid offer by Respondent, Dikum's responses to the Administrative Law Judge's question do not con- stitute a waiver of his right to reinstatement.' Ac- cordingly, Dikum has never been afforded an "op- portunity to make a considered choice whether to retain this present employment or return to his for- mer employment." 4 Furthermore, as Dikum's colloquy with the Ad- ministrative Law Judge 5 indicates, his lack of desire to return to work for Respondent was qualified by his apprehension that if he did return he might subse- quently be fired because of his previous testimony against Responde-t at an unemployment hearing. In these circumstances, it cannot be said that Dikum's statement manifested an "unequivocal resolve not to accept reinstatement." 6 In view of the above, we find in agreement with the General Counsel that John Dikum is entitled to the same offer of reinstatement as the other employ- ees named in the Administrative Law Judge's recom- mended Supplemental Order. Accordingly, the Gen- eral Counsel's motion is hereby granted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National l.abor Re- lations Board hereby orders that the Respondents. W. C. McQuaide. Inc.. Johnstown, Pennsylvania, its officers, agents, successors, and assigns. shall take the action set forth in the Administrative Law Judge's recommended Supplemental Order (at 237 NLRB No. 26) as modified below: I. Substitute the following for paragraph (a): "(a) Offer to Nevin Barefoot, Alan Carr, John Di- kum. Steven Edwards, Kenneth Huntzinger. Ray- 2Lpman Bros, Inc., el al, 164 NLRB 850. 853 (1967) See Heinrich Motors. Inc. 166 NLRB 783, 785 786 (1967}. enfd 403 F. 2d 145 (2d Cir 1968), Borg-'arner Controls, Borg-Wbrner (;orportrirn. 128 NLRB 1035. 1044, fn. 15 (1960). 4 Dobbs Houses. A Division of Squibb-Beechnut, Inc.. 182 NLRB 675, 682 (1 970). 5 The colloquy is as follows: JUtxE MALocEY DO you want to go back to McQuaide or not' T.IA WITNEs I don't know how to answer that. I wanted to go back with some type ofjob security. If you understand what I mean I don't want to go back to work and take the chance of getting fired. I testified against him at a hearing. the !etters were sent after the heanng J;u.GE M.LONEY What hearing did you testify against him at' THE WrTneS I guess you would sav it would be at the Unemplo ment hearing. I testified on behalf of the dock workers so. what would have kept him from when I went back to work and him saying well. John. I just don't need you anymore and that would have been it JUrGs MaLoNEy My question to you is. do You want to go hack to work at this point in time or don't you' THm WiTEm No See Dobbs Houses. supra at 682, fn 22. and cases cited therein 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mond Josephson, and Richard J. McNulty full and immediate reinstatement to their former positions, or, in the event that their former positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights which they formerly enjoyed, and make said employees and Robert J. Kessler, Thomas Prudhoe, Gary Marion, and Thomas Spisak whole in the manner described above in the section entitled 'Remedy.'" 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government W. C. McQuaide, Inc., is posting this notice to com- ply with an order of the Board. This order was issued after a supplemental hearing before an Administra- tive Law Judge in which we were found to have vio- lated certain provisions of the National Labor Rela- tions Act. This notice is an addition to the notice which we previously posted. WE WILL NOT fail or refuse to offer full and immediate reinstatement to dockworkers upon their unconditional offer to return to work. WE WILL OFFER full and immediate reinstate- ment to Nevin Barefoot, Alan Carr, John Di- kum, Steven Edwards, Kenneth Huntzinger, Raymond Josephson, and Richard J. McNulty to their former positions, or, if those positions are no longer available, to substantially equiva- lent positions, without prejudice to their senior- ity or other rights which they formerly enjoyed. WE WILL make whole the above-named em- ployees and Robert J. Kessler, Thomas Prudhoe, Gary Marion, and Thomas Spisak for any loss of pay which they suffered by reason of the dis- crimination practiced against them, with inter- est. W. C. MCQUAIDE. INC. 672