Lipman Bros., Inc.

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lipman Bros., Inc., Lipman Poultry Products , Inc., Riverside Poultry Farms, Lipman Poultry Farms, Inc., By-Products, Inc., Samuel Lipman Sons, Pine Crest Hatcheries , Inc.' and Local 385, Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Cases 1-CA- 3931 and 4080. May 22,1967 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 30, 1964, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,2 finding, inter alia, that the Respondents had discriminated against Charles Bolduc, Robert Duplessis, Simon Gilbert, and Leo Levasseur in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the First Circuit, and a decree was entered on January 21, 1966, against the Respondents.3 The decree provided, inter alia, that Respondents make whole the employees named therein for any loss of pay suffered by reason of Respondents' discrimination against them. On July 8, 1966, the Regional Director for the National Labor Relations Board for Region 1 issued a backpay specification, thereafter amended to show that Simon Gilbert voluntarily removed himself from the labor market because of a physical disability from May 7 to July 7, 1963. The Respondents filed an answer thereto. Upon appropriate notice issued by the Regional Director, a hearing was held on August 30 and 31, 1966, before Trial Examiner Benjamin B. Lipton, for the purpose of determining the amounts of backpay due the discriminatees. On November 15, 1966, the Trial Examiner issued his Supplemental Decision, attached hereto, finding that the discriminatees were entitled to the following payments, with the exceptions of Levasseur whose payment represents a lump sum settlement, interest at 6 percent per annum until paid computed on the basis of the quarterly amounts of net backpay due, less any tax withholding required by law: Leo Levasseur, $3,500.00;4 Charles Bolduc, $3,369.44; Robert Duplessis, $4,833.12; Simon Gilbert, $8,275.93. Thereafter, the Respondents filed ' Hereinafter referred to collectively as Lipman or the Respondents 2 147 NLRB 1342 3NLRB v Lipman Bros, Inc,355F2d15(C.A 1) " During the hearing the parties entered into a stipulation wherein it was agreed that the payment to Leo Levasseur of $3,500 would liquidate all backpay and interest due him exceptions to the Trial Examiner's Supplemental Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Supplemental Decision, the exceptions and briefs,5 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. We agree with the Trial Examiner's finding that the efforts of the Reverend John J. Curren to inter- cede in September 1962 with Duplessis and Gilbert at the behest of the Respondents, and induce them to return to work did not constitute a firm or unconditional offer of reinstatement sufficient to toll backpay to these employees. However, we find, contrary to the Trial Examiner, that the Respondents' offer to reinstate Duplessis, Gilbert, and Bolduc, which was made to the Union during the bargaining session on May 18, 1963, did constitute such a valid offer. Respondents and the Union met during 1963 (on March 16, May 18, and October 31) in a series of negotiating meetings which resulted in a collective- bargaining contract which was signed in November 1963. It appears from the credited testimony of Respondents' attorney, Murray Brown, that the question of reinstating the discharged employees was brought up by the Union and discussed during these meetings. At the May 18 meeting, the Union told Lipman "he had better straighten out these people," and Lipman responded "that Gilbert and Duplessis were free to come back any time they wanted to," that their jobs were "open for them," and that Bolduc could have the watchman's job if he wanted it. The Trial Examiner did not find that the offer made by Respondents to the Union was not an offer of reinstatement, but found rather that the Union was not the agent of the employees for the receipt of an offer of reinstatement. We do not agree. We have found in the past that offers of reinstatement conveyed to employees through the medium of their bargaining representative are valid offers of reinstatement.6 The only question we see 5 The Respondents excepted to the Supplemental Decision on the ground that the Trial Examiner manifested bias against the Respondents dirmg the course of the hearing Upon a careful examination of the entire record, we are satisfied that the contentions of the Respondents in this regard are without merit 6 See Art Metalcraft Plating Co, Inc, 133 NLRB 706, 707, enfd 303 F 2d 478 (C A 3) 164 NLRB No. 115 LIPMAN BROS., INC. present here is whether the Union here was in fact the designated agent of the discriminatees. As noted, it was the Union which brought up the subject of reinstating the discharged employees. The subject was first mentioned at the initial bargaining session on March 16, 1963, in the presence of Bolduc, who was a member of the Union's negotiating committee. Bolduc did not then, or at any time thereafter, challenge the Union's action in speaking for the discriminatees, and we have no reason to believe that the Union was without authority to speak on behalf of Duplessis, who was chairman of the Union's organizing committee, or Gilbert, who was a member of that committee. Certainly the Respondents had no reason to believe that the Union was without authority to engage in efforts to secure the reinstatement of the discriminatees. Under the circumstances we find that the Union had authority to act as agent for the discriminatees in the matter of receiving a valid offer of reinstatement. Therefore, when on May 18, 1963, the subject was again mentioned and Lipman informed the Union that the discriminatees could return, Duplessis and Gilbert to their former jobs, and Bolduc to a watchman's job,7 the offer consituted a valid offer of reinstatement to Duplessis, Gilbert, and Bolduc and served to toll the Respondents' backpay liability as of that date. We find, accordingly, that the following employees are due the following sums for the period from the dates of their discharges to the end of the first calendar quarter of 1963: Charles Bolduc, $1,167.87; Robert Duplessis, $1,402.51; and Simon Gilbert, $1,479.84; and, in addition, in the case of Bolduc and Duplessis, net backpay for the period April 1 to May 18, 1963; and, in the case of Gilbert, net backpay for the period April 1 to May 7, 1963,8 all plus interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and that Leo Levasseur is due $3,500. ORDER On the basis of the foregoing Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondents, Lipman Bros., Inc., Lipman Poultry Products, Inc., Riverside Poultry Farms, Lipman Poultry Farms, Inc., By-Products, Inc., Samuel Lipman Sons, Pine Crest Hatcheries, Inc., their officers, agents, successors, and assigns, shall pay to Charles Bolduc, Robert Duplessis, Simon Gilbert, and Leo Levasseur the amounts of money set forth by their names, above, and shall, in addition, pay to Charles Bolduc and Robert Duplessis net backpay computed from April 1, 1963, to and including May 18, 1963, and to Simon Gilbert net backpay computed from April 1, 1963, to and 851 including May 7, 1963, all with interest at the rate of 6 percent per annum in the manner set forth above. ' In view of the Trial Examiner's findings, and Bolduc's admission, that his physical condition had not changed throughout the backpay period and Bolduc's further concession in January 1966 that he was physically unable to work the hours on any job that might be available in the plant, we find in the circumstances that Respondents' offer of a watchman's job at its warehouse in May 1963 became a valid offer of reemployment for the only available position that Bolduc was physically able to perform " The record shows that Gilbert voluntarily removed himself from the labor market, because of a physical disability, for a period of time after May 7,1963 TRIAL EXAMINER'S SUPPLEMENTAL DECISION BENJAMIN B. LIPTON, Trial Examiner: This supplemen- tal proceeding was instituted for the sole purpose of determining the amounts of backpay due Charles Bolduc, Robert Duplessis, Simon Gilbert, and Leo Levasseur, found to have been unlawfully discharged under a prior Board Decision and Order, enforced by the United States Court of Appeals for the First Circuit. I On August 30 and 31, 1966, a hearing was held before me in Augusta, Maine, at which all parties were afforded full opportunity to present relevant evidence and to argue orally on the record. Briefs filed by the General Counsel and Respondents have been duly considered. Upon the entire record in the cases, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS A. Stipulations and Amended Pleadings Respondents ' answer was amended to admit the allegations in the backpay specification relating to the gross backpay formula applied to all four claimants. General Counsel amended the specification to reflect that Simon Gilbert voluntarily removed himself from the, labor market , because of a physical disability, from May 7 to July 7, 1963. And the parties entered into a stipulation that Respondents ' payment to Leo Levasseur of $3,500 would liquidate all backpay and interest due this claimant.2 B. Respondents' Contentions In their brief, Respondents state as the issues in the case: (1) Were unconditional offers of reinstatement made to the alleged discriminatees so as to toll backpay prior to January 25, 1966?3 (2) Did the physical condition of one alleged discriminatee (Charles Bolduc) toll backpay for the entire backpay period? C. Interim Earnings At the hearing, all the claimants were made available by the General Counsel for Respondents' cross-examination. ' Lipman Bros , Inc , et al , 147 NLRB 1342, enfd 355 F 2d 15 (C A 1) I The General Counsel reported that Levasseur gave his approval of this settlement 3 As of January 28, 1966 , letters containing valid offers of reinstatement were received by each of the four claimants, as conceded by the General Counsel 298-668 0-69-55 852 LIPMAN BROS., INC. Respondents admitted as correct the interim earnings set forth in the specification for Duplessis. Those computed for Bolduc and Gilbert were contested, with the implication that there were issues as to whether they exercised due diligence in finding and holding interim employment. Bolduc, called by Respondents, was not questioned concerning his interim earnings , and no other evidence was produced. Gilbert was cross-examined at length on this subject. His unrefuted and credible testimony shows that, during the pertinent periods of his unemployment, he applied for work with various specified employers, and that he registered with and reported regularly, at least for a substantial time, to the (government) unemployment office in search for employment. As above indicated, no issues are raised in search for employment. As above indicated, no issues are raised in Respondents' brief relating to the interim earnings of any claimant. D. Physical Condition of Bolduc In the earlier complaint proceeding, the question of Bolduc's physical disability was fully litigated and findings thereon were made by the Board and the court. Thus, it was found that, for approximately 2 years prior to his termination, Bolduc satisfactorily performed his regular job of "releasing birds," while he had a heart condition described as "chronic coronary insufficiency." Because he was discriminatorily reassigned to various onerous jobs, harassed, and criticized, Bolduc was torced to call Respondents' attention to his physical ailment by obtaining a note from his physician indicating that Bolduc had been advised to avoid strenuous work. Thereafter, Respondents seized upon this report of Bolduc's disability as a pretext to offer him a job as night watchman at a grain mill several miles from the main plant and outside the bargaining unit . Bolduc's refusal to accept the job, resulting in his severance, was held as a constructive discharge violating Section 8(a)(3). However, as it appeared that "for some while" prior to the complaint hearing in January 1963, the job of "releasing birds" had been completely eliminated, the Board's remedial Order required "that Bolduc be offered immediate and full reinstatement to a position within the unit suitable to his physical condition, without prejudice to his seniority and other rights and privileges," and that he be made whole in accordance with Board policies. At the backpay hearing herein, Respondents estab- lished that Bolduc's "chronic coronary insufficiency" continued throughout the backpay period (from September 14, 1962, to January 28, 1966), that Bolduc had accepted work as a full-time watchman with an interim employer from April to September 1965,4 and that Respondents' written offer of reinstatement in January 1966 "to a position within the bargaining unit suitable to your fiscal [sic] condition," was declined by Bolduc on the ground that he was "presently fisically [sic] " For a substantial period, Bolduc also held interim jobs as a carpenter's helper and as a cleaner (sweeping floors, etc ). 5 Leedtng Sales Co , Inc, 155 NLRB 755 b E g, Harrah's Club, 158 NLRB 758, Clayton E Smith and Willard Smith d/b/a Clayton-Willard Sales, 126 NLRB 1325, Isaac Andrews d/b/a Andrews Company, 87 NLRB 379. r Father Curren had come to Augusta, Maine, in March 1962 to assume a Roman Catholic parish of 1,600 families Although the Duplessis and Gilbert familes were among his parishioners, his first acquaintance with them took place at this time, in September unable to work the hours that would be required on any job that you might have available." No merit is found in Respondents' position that Bolduc is not entitled to any backpay because his physical condition following his discharge prevented him from accepting an offer of reinstatement to a bargaining unit job. Bolduc's ailment was unchanged after his discharge, and prior thereto the entire matter was resolved by the Board's finding and Order, which are res judicata on the issue. Respondents' assumption that Bolduc would have declined a valid offer, if made, prior to January 1966 is "speculative and unwarranted."5 Bolduc was entitled to a clear and unconditional offer, such as he received in January 1966, and to decide for himself at the time whether or not to accept. The obligation properly rested with Respondents, and it could be satisfied, in the public interest, only by an actual and unequivocal reinstatement offer made to the discriminatee.0 E. Alleged Reinstatement Offers Through the "good offices" of Father Curren Reverend John J. Curren testified concerning his interviews with claimants Gilbert and Duplessis early in September 1962,7 shortly after they were discharged by Respondents." In substance, he related the following: He was approached by Tony Violet, a prominent businessman associated with the local chamber of commerce. Violet informed him "about the Union trying to organize the Lipman employees," and asked him to use his "office" to talk to the two boys "who were in trouble." As explained by Curren, "we don't like any anti-strike or labor trouble, and we didn't want the boys to lose their )obs. They are nice people, good families, that was their reason." Violet told him what the boys were doing that had gotten them into trouble. As Curren understood it, one of the reasons was "because they were passing papers in the shop." Thereafter, he arranged and held an "interview" at the church rectory with Simon Gilbert,`' his mother,10 Robert Duplessis, and his father. His purpose was to "get their side of it." They "talked about the unions." He told the boys, inter alia, "you have to put in a good days work for good days pay, and you can't take time off to work for the union." He was not asked and did not mention who had requested him to intercede. Thereafter, he called upon Bernard H. Lipman, Respondents' president, "to get the other side." Lipman was told "what the boys complained of." Lipman said their jobs were open on one condition, that "they would not work to organize a union during the working hours"; and he gave Curren his promise there would be no reprisals. Several days later, Curren spoke to Duplessis and his parents at their home.11 He told them that Violet had "contacted" him in order to help the boys, and he described his calling on Lipman and what Lipman had said. He suggested to Duplessis that he go back to work "because his family needed it," but Lipman "didn't want them to work for the Union and pass papers around 1962 8 Gilbert was discharged on August 6, 1962, allegedly for damaging a tool, and Duplessis was discharged on August 29, 1962, allegedly for assaulting a coworker The Board found that these asserted causes were pretexts and that these employees were actually terminated because of their union advocacy Gilbert was 17 years old " Curren did not recall that Mrs Gilbert was present, but it is clear in the record that she was, infra " Curren could not recall whether Gilbert was also there. LIPMAN BROS., INC. and so forth during the working hours." Duplessis said he did not "feel like going back until the Union question is settled." About a week later, he met Gilbert and Duplessis "casually on the sidewalk," and he told Gilbert "the same message." Gilbert was concerned that Respondents, in reprisal, would throw him out after he was back on the job. Curren answered that he had Lipman's promise "that they would be treated fair and there would be no trouble." Although Curren stated that he was then aware of the scheduled election (for September 20 and 21, 1962), he did not discuss the election with the boys at any time.' 2 Lipman testified that "when Duplessis and Gilbert were discharged," he got in touch with Violet and told him that he "didn't feel as though those two boys knew what they were doing." He asked Violet to approach Father Curren to tell these young men that their jobs were available. Subsequently, Curren came to see him. He told Curren "to use his good offices" to explain to these men that their jobs were still available, and that they could come back to work without prejudice, on the sole condition that "there was to be no union activity during working hours." Within a few days, Curren returned and reported that he had spoken to the young men and they said they would come back after the election.'3 George H. Duplessis, father of claimant Robert Duplessis, 14 gave rebuttal testimony for the General Counsel. The meeting at the rectory with Father Curren took place within a week of Robert's discharge. Mrs. Gilbert and her son were present. Among other things, Curren stated the following: He had been asked to intervene by a prominent businessman who had been approached by the Company-to try to get the boys to stop working for the Union. If a union got into the plant, the Company was ready to shut its doors. He knew what a company could do to employees working for a union; they could be blackballed all over the State. He asked the boys if they were willing to go back. They responded they would "think it over." They also said they did not wish to return until after the election. 15 Curren then indicated that he would talk to Lipman. After a few days, Curren again spoke to Duplessis and his son at the rectory; the Gilberts were not there. He merely told them "he was very sorry, the job wasn't available." Rose E. Gilbert, Simon's mother, 16 also testified for the General Counsel. At the first meeting at the rectory, Curren discussed the Union, the work at the plant, and the "grievances" related by the Company. He asked the boys "what kind of trouble" they had gotten into, and whether they were being paid by the Union. Questioned by Mrs. Gilbert, Curren said "a parishioner" had approached him. He said he was going to talk to Lipman and see what '2 The foregoing is based largely on Curren's cross- examination , his direct examination was confused and disorganized, partially as a result of the manner in which he was questioned in general his testimony was sketchy, changing, uncertain in memory, and distinctly reflected an inclination to state his judgments and conclusions rather than the substance of the conversations ' 7 Curren did not testify that he reported back to Lipman. '" Although available, he was not called to testify 's This statement was the sole significant addition elicited on cross-examination (Duplessis was confused by the questioning of Respondents' counsel directed to whether Father Curren was "incorrect" in certain of his testimony.) 'fi Simon Gilbert, though called to testify by Respondents, was not questioned concerning any discussions with Curren. 'r E g, N L R B v MooneyAircraft, Inc , 366 F 2d 809 (C A 5), 853 he could do if the boys wanted to go back to work. Mrs. Gilbert firmly testified that she and her son had no other meetings with Curren. Conclusion First, it is well to state certain established legal principles applicable herein. The remedy of reinstatement and backpay is a public right granted to vindicate the law against one who has broken it, and has the general object of discouraging discharges contrary to the policies of the Act." An employer's offer of reinstatement to discriminatees must be firm, clear, and unconditional. 18 The offer must actually be conveyed to the affected employees, and put them to a true test of having to make a reinstatement decision.'`' The burden is fully upon the employer to present probative evidence of a good-faith effort to communicate such an offer to the discriminatees.20 In particular circumstances, employees being offered reinstatement are entitled to clear reassurance that the employer has altered his policy of discriminating against employees who seek union representation.21 Only when a proper offer is made and unequivocally rejected by the employees is the employer relieved of his statutory duty to reinstate.22 There is ample reason for rejecting Respondents' contention that, as a result of the "interviews" conducted by Father Curren in September 1962, the running of backpay was halted as to Duplessis and Gilbert. The various versions and conflicts in the testimony exemplify the difficulty when, long after the events, an attempt is made to prove oral offers of reinstatement through the medium of third party intermediaries. Here especially, Respondents' good faith in the use of these means is unsustainable. The alleged offers were made immediately after the discriminatory discharges of these two claimants, even while Respondents were engaged in other serious unfair labor practices opposed to unionization of the employees.23 Furthermore, if Respondents truly desired to transmit proper offers of reinstatement, it could readily have accomplished such purpose, as it finally did much later, by written communications directly to the claimants. Nor in the existing context were statements that jobs were "available" or "open" the equivalent of a firm offer from Respondents. The roles played by Violet and Curren were clearly not those of agents of Lipman authorized to carry out a simple assignment of delivering a reinstatement offer. Through Violet, Curren was induced to intervene, essentially as a mediator, ostensible to help the boys, his parishioners, because they "were in trouble." Thus, the onus was put on the boys, rather than on Respondents where it belonged. As Curren understood it, their Clayton-Willard Sales, 126 NLRB at 1326. 's E g , Cello-Tak Company, 143 NLRB 295, 304, R E Edwards, d/b/a Edwards Trucking Company, 129 NLRB 385, 387. '" E g , NLRB v Jay Company, Inc, 227 F.2d 416 (C A 9), Burnup and Sims, Inc, 157 NLRB 336, Ertel Manufacturing Corp, 147 NLRB 312; Arista Service, Inc, 127 NLRB 499; Andrews Company, 87 NLRB at 397 21 E g , J H Rutter-Rex Manufacturing Company, Inc, 158 NLRB 1414, 1524, Edwards Trucking Company, supra, at 387 i' E g , Art Metalcraft Plating Co , Inc , 133 NLRB 706, 707, enfd 303 F.2d 478 (C.A 3) u E g , LeedingSales Co , Inc., 155 NLRB 755, Crown Handbag of California, 137 NLRB 1162, 1164, J. E Plastics Mfg Corp, 131 NLRB 299, 300. 23 As found in the prior complaint proceeding, supra. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "trouble" related to their union activities, and their termination came about in part "because they were passing papers in the shop." Unquestionably, Curren interceded then and gave testimony in this proceeding with the best of motives. However, his testimony, as elicited by Respondents' counsel, falls considerably short of the probity and clarity necessary to support the alleged basis for tolling backpay. Under any view of the evidence, it can immediately be ruled out that Curren transmitted any kind of reemployment offer in his first interview, with both claimants and their parents at the rectory, before he met with Lipman. On the second occasion, after he had seen Lipman, Curren held his interview only with Duplessis and his father. Assuming, though it is strongly contested, that Curren told Duplessis that his job was available on the condition that he did not engage in union activities during his working hours, I would find that this was not a valid offer of reinstatement, particularly in the light of the whole background of events, as described. Inter alia, such offer was not unconditional. Duplessis was not "in trouble" because he had violated a no-solicitation rule, as Curren was erroneously led to believe. While in certain established circumstances, a no-solicitation rule during working hours is presumptively valid,24 the factual and legal implications are such that Duplessis could not reasonably be expected to comprehend and agree that such a condition to reinstatement was a matter of right in the employer.25 More especially is this so under the facts here, where Respondents only recently discharged Duplessis for his union activities, and were continuing a course of coercive conduct. It was scarcely a redeeming consideration that Lipman gave Father Curren his assurance there would be no reprisal. Nor can it otherwise be found that Duplessis was properly put to the test of having to make a reinstatement decision, or that he did unequivocally evince a resolve not to accept a valid offer. These same findings would of course apply to Gilbert if he had heard the same proposition as Duplessis. But in any event, I cannot accept as adequate for purposes of an asserted backpay curtailment the testimony elicited from Curren merely that, a week later'26 he met Gilbert "casually on the sidewalk" and gave him "the same message." In the circumstances, I would incline to credit Mrs. Gilbert that neither she nor her son had any meetings with Curren after the first interview at the rectory. F. Alleged Reinstatement Offers During Negotiations With the Union Beginning in March 1963, Respondents entered into a series of negotiating meetings with the Union looking toward recognition and a collective-bargaining contract, ultimately consummated in November 1963.27 Respondents' Attorneys Murray Brown and Bernard H. 24 Walton Manufacturing Company, 126 NLR B 697 25 See Evans Products Company, 160 NLRB 1822 11 It is curious that Gilbert and his mother were not promptly summoned or notified, if Curren carried from Lipman such an important message as an unconditional offer of reinstatement 21 On June 30, 1964, in its Decision and Order (147 NLRB 1342), the Board set aside the election conducted on September20 and 21, 1962, upon findings of interference by Respondents 23 The union representatives and other persons present in the negotiations were not called to testify tv At this session, the parties also discussed the subject of recognition on the basis of having a third party conduct a cross- check of authorization cards against the employees' signatures. Lipman gave testimony of discussions at these meetings regarding the subject of reinstating the discriminatees.28 The following is based essentially on the version of Brown: At the March 16 meeting, Lipman was asked by a union spokesman, "what about the people that were discharged and . about paying these people who had been suspended." Lipman stated he would offer reinstatement to Gilbert and Duplessis, but would not take back Levasseur or Bolduc. The "union simply said they would see the boys about it." At the May 18 meeting,29 the Union remarked that Respondents "better straighten out these people" who had been discharged and suspended. The response was that Gilbert and Duplessis "were free to come back any time they wanted to" and that their jobs were "open for them." As to Bolduc, Lipman said in substance, "the doctor's certificate says that he has a heart condition, and that he can't do strenuous work. We can't put him back in the plant. The only job we have available would be the watchman's job. We offered that to him at the time he got through, and if he wants ... he can come back and take it." Toward the conclusion of the October 31 meeting, "the only issue left open ... was talk . about these fellows coming back." Brown remarked that he had previously told them "to send back Duplessis and Gilbert, and they haven't showed up," and that the only job they had for Bolduc was the watchman's job. For the Union, "there was talk that well, we are not sure whether they want their jobs or not-we will ... let you know."30 Lipman testified that at two further meetings with the Union in early November, it was again "agreed" that Duplessis, Gilbert, and Bolduc would be reinstated. On the first occasion, when all the contract issues were finally resolved, Lipman "instructed" the union representatives to "contact these people to come back to work." A few days later, when the contract was signed, the union representatives told him that Duplessis and Bolduc were working elsewhere, and Gilbert was in Connecticut, and that "they didn't want to come back to work." I am unable to accept the foregoing account of conversations with the Union subsequent to the October 31 meeting, in view of the lack of corroboration, the inconsistencies in Lipman's testimony was that of Attorney Brown, and the conflicts and implausibilities in his testimony elsewhere. In particular, I do not credit his testimony, on cross- examination, that the union representatives advised him they had talked to Duplessis, Gilbert, and Bolduc, and that these three men indicated they did not wish to come back to work.-'[ Conclusions For purposes of receiving a valid offer of reinstatement, the Union was not the agent of the claimants. It was not "' Lipman's version was that, at the May and subsequent meetings, Respondents agreed to reinstate Bolduc, as well as Gilbert and Duplessis, without qualification. He also testified, interalia , that reinstating these men "was one of the conditions in the negotiations ", that they talked about "settlement" of this matter at the October 31 meeting, and that Respondents had requested the Union to withdraw its pending charges before the Board, and he "assumed" there were conditions attached to such request. Although in June, the Trial Examiner's Decision found against Bolduc (which the Board reversed a year later), Lipman stated that he nevertheless offered unconditional reinstatement to Bolduc "to buy peace." 31 Bolduc credibly testified, in effect, that he was not informed by the Union of any reinstatement offer at such time LIPMAN BROS., INC. the certified bargaining representative of the plant employees and, so far as it appears, it was not accorded voluntary recognition until the contract was signed in November 1962.32 Even if the Union were the statutory bargaining representative during all of the negotiating meetings, Respondents' legal obligation would not be fulfilled merely by conveying a reinstatement offer to the Union on the claimants' behalf.33 The fact that the claimants formerly engaged in union activities, or were at any time union members, would not thereby vest an agency in the Union to receive reinstatement offers in compliance with an outstanding remedial order. 34 Nor was the Union utilized as an ad hoc agent of Respondents for the purpose of conveying to claimants a proper reinstatement offer35 so as to be binding on the claimants, or satisfy the Act's requirements. It is necessary, at least, that such an agency be made clear to the Union and in turn to the claimants; that the offer be actually communicated to the claimants; that the claimants be put to a true test of deciding whether to accept reinstatement; and that they reveal an unequivocal rejection of the offer. None of these elements is established in Respondents' evidence. Here again, no good reason appears why Respondents could not have transmitted a valid offer directly to the claimants in the manner that was ultimately done in January 1966. Even assuming that in the negotiations Respondents "agreed" to reinstate the claimants, the obligation would still remain with Respondents to effectuate such agreement by seeing to it that a proper offer reached the claimants. In all events, it is evident that the Union was interested in having Respondents remedy the unfair labor practices, including reinstatement of the claimants, that this was a "condition" in the negotiations, and that an attempt was being made to reach a "settlement" of this matter. However, it has been repeatedly held that compliance with the Board's reinstatement order involves not a private, but a public right, and that such settlements may properly be negotiated only with the Regional Director, and subject to the approval of the Board.36 32 The contract was not offered in evidence c Jersey Farms Milk Service, 148 NLRB 1392, cited by Respondents, is plainly inapposite The question there did not involve a duty to offer reinstatement to unlawfully discharged employees, as here , but an obligation to bargain with the union The employer had violated Section 8(a)(5) by unilaterally subcontracting out unit work, and the Board found that a backpay order was not warranted because the employer did appropriately meet and bargain with the union with respect to minimizing the effects on employees " Cf Brown and Root, Inc , 99 NLRB 1031, involving a union's blanket unconditional application for reinstatement of unfair labor practice strikers at the same time the union announced termination of the strike G. Advice ofBoard Agent as Alleged Waiver of Reinstatement Offer 855 Attorney Brown testified that, on at least three occasions, he and Lipman had been to the Regional Office to discuss settlement of the Board's reinstatement and backpay order. On May 11, 1965, while engaged in such a conference, they were informed by the assigned Board agent that Bolduc was not available for employment, and he did not wish to return to work for Respondents.37 Suffice it to state that, without evidence of a bona fide offer of reinstatement by Respondents, no earlier cutoff of backpay is warranted, even if a waiver representation by Bolduc to the Regional Office be assumed.:[' H. Concluding Findings and Recommendations Upon the basis of the foregoing findings, and the entire record in the cases, it is concluded that the employees named below are entitled to backpay in the amounts listed opposite their names. Except as to Levasseur, for whom the amount stated represents Respondents' entire obligation pursuant to stipulation, interest shall be added at the rate of 6 percent per annum on a quarterly basis in accordance with Board policy.3' Appropriate deductions shall be made for Tax withholding as required by Federal and State laws. Leo Levasseur $3,500.00 Charles Bolduc $3,369.44 Robert Duplessis $4,833.12 Simon Gilbert $8,275.93 RECOMMENDED ORDER It is recommended that the Board adopt these findings and conclusions, and order the Respondents, their officers, agents, successors, and assigns, to pay the sums indicated. 3s In Bolduc's case, the alleged offer referred to the same job offer of watchman found discriminatorily motivated and rejected as improper by the Board in the complaint proceeding, supra 36 E.g , American Compress Warehouse, 156 NLRB 267, 272, Wix Corporation, 140 NLRB 924, 942, Armstrong Tire & Rubber Company, 119 NLRB 353, 355, Texas Miller Products, Inc., 83 NLRB 616, 632. 34 Bolduc testified that he had made no decision to decline reinstatement at any time prior to his receipt of Respondents' offer of January 1966 " The Triple AAA Water Co, 142 NLRB 803, 810, Crown Handbag ofCalifornia, 137 NLRB 1162, 1164 3" Isis Plumbing & Heating Co , 138 NLRB 716