American Enterprises, Inc.

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Enterprises, Inc. and Sheet Metal Workers International Association, Local Union No. 60, AFL-CIO. Case 19-CA-4900 November 7, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 10, 1972, Administrative Law Judge' Maurice Alexandre issued the attached Supplemen- tal Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the backpay specification herein be dismissed in its entirety. , The title of " Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S SUPPLEMENTAL DECISION MAURICE ALEXANDRE, Trial Examiner: On July 1, 1971, the National Labor Relations Board issued a Decision and Order in this proceeding directing Respondent to reinstate John Gruver, Gene Wright and George Moore, and to pay each of them a sum of money equal to the amount he would normally have earned from July 21, 1971, the date on which each was unlawfully discharged, to the date on which each is offered reinstatement, less interim earnings. 191 NLRB No. 118. On February 10, 1972, a backpay specification and a notice of hearing were issued by the Regional Director for Region 19, and on February 25, 1972, Respondent filed its answer to the backpay specification. Pursuant thereto, a hearing was held before me in Idaho Falls, Idaho, on March 7, 1972. Upon the entire record, my observation of the witnesses, and the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS In August 1970, following receipt of the initial unfair labor practice charge herein, Respondent's vice president and secretary, Thomas Watts, went to the office of Idaho Employers Council, Inc., and was advised to reinstate the three above-named dischargees. On August 25, 1970, Respondent mailed to each of the three dischargees a registered letter reading as follows: We are inquiring as to whether or not you would be interested in returning to work for us. We will hold the job open until Monday, August 31, 1970. Should you be interested, we would like to hear from you by then. If we do not hear from you by Monday, we will assume you are not interested in further employment with us. Wright and Moore received their letters on or about August 26, but did not respond thereto. Gruver was not at home when delivery of the letter to him was attempted. Although a notice of the attempt was left in his mailbox, he failed to claim the letter. When Watts learned that the letter to Gruver had not been delivered, he telephoned the Council, which offered to write another letter to Gruver. On October 5, 1970, a representative of the Council mailed to Gruver the following letter which he received on or about October 6: We represent the above company [Respondent] in labor relations matters. Mr. Thomas E. Watts has advised me that on August 25, 1970, he addressed a letter to you offering re- employment at the same job you previously held with the company. He also informed me that this letter was returned by the Post Office because you had refused to accept it. Mr. Watts has asked me to write to you on behalf of the company and tell you that he is ready and willing to re-employ you at your former job. He will hold this position open until Monday, October 12, 1970. If you have not reported by that date, the company will assume that you are no longer interested in further employment with them. Apparently, the Regional Office advised Respondent that the August 25 letters did not constitute adequate offers of reinstatement. Accordingly, on September 16, 1971, the Council's representative sent to Wright and Moore identical letters which were received by them the following day. These letters read as follows: We represent American Enterprises, Inc. in labor relations matters. The Regional Director, Region 19, National Labor Relations Board has ordered the company to again offer you re-employment at your former position with them. Mr. Thomas E. Watts has asked me to write to you on behalf of the company. Mr. Watts previously offered you unconditional reinstatement by letter of August 25, 1970. You did not accept this offer. This is to advise you that American Enterprises, Inc. is again willing and ready to re-employ you at your former position with them at your former rate of pay. This is an unequivocal offer of re-employment. The company will hold this position open until October 1, 1971. If you have not 200 NLRB No. 26 AMERICAN ENTERPRISES, INC. reported by that date the company will assume that you are no longer interested in further employment with them. Respondent insists that the letters of August 25, 1970, constituted adequate offers of reinstatement. The General Counsel contends that they did not. However, he conceded at the hearing that if the letters were adequate, no backpay is due to any of the three dischargees because of their earnings during the backpay period. I find that the letters of August 25 constituted adequate offers of reinstatement, and that the three dischargees are not entitled to any backpay. In his brief, the General Counsel correctly states that a discriminatee is entitled to a specific and unequivocal offer of reinstatement, and that a mere inquiry concerning his interest in returning to work does not constitute such an offer. Rea Trucking Company, Inc., 176 NLRB No. 67; Barr Packing Company, 82 NLRB 1.1 do not agree with his contention that the August 25 letters were at most a "careful" query concerning the dischargees' possible interest to some "undescribed" job unaccompanied by a specific offer of reinstatement. It is true that taken alone, the first paragraph would not meet the applicable test. A reasonable interpretation of the first sentence of the second 1 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. 115 paragraph, however, was that Respondent was holding open the dischargees' jobs for them. Admittedly, the offer to hold "the" jobs for the dischargees was not the most felicitous choice of language ; and unquestionably, an offer to the dischargees to hold "your" jobs open would have been preferable. But as stated in Centac Corp., 179 NLRB 313 at 322, "If the men had doubt, they could have inquired." The record contains no evidence to support the General Counsel's implication that Respondent 's offers were not made in good faith. On the contrary, Watts credibly testified that Respondent was busy and needed employees in August 1970, that he sought the Council's advice, that the Council advised him to offer reinstatement to the dischargees, and that he then sent the August 25 letters. I am persuaded that Watts intended and attempted to follow such advice. Accordingly, I reject the implication that the letters did not constitute bona fide offers of reinstatement. RECOMMENDED ORDER On the basis of the above findings and conclusions and the entire record, it is ordered that the backpay specifica- tion herein be dismissed in its entirety.' 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.