Famous Supply Co., Inc.

ncltlfNC CiF NATINILAI R RFI ATIINIZC i:h'An 768 ' 1 Famous Supply Company, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 697. Case 6-CA-12424 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 30, 1980, Administrative Law Judge James T. Youngblood issued the attached Decision in this proceeding. Thereafter, the Re- spondent filed exceptions 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 proceding 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, findings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 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, Famous Supply Company, Inc., Washington, Penn- sylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: I The 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 Products. Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings In affirming the Administrative Law Judge's finding that the Respon- dent discharged the striking employees as of May 4 when they refused to return to work, the Board notes the following additional points. In its May 2 letter to the employees, the Respondent enclosed their pay for time worked on April 26, 27, and 30; i.e., the Thursday, Friday, and Monday preceding their strike on May I The Respondent's ordinary payday, however, was Friday, and employees were then paid for work from Thursday to the Wednesday before the payday. Hence, Respon- dent's letter of May 2-sent on a Wednesday-enclosing pay for the period worked up to that time was not sent in the normal course of busi- ness events and would not have been taken by the employees to contain a normal paycheck. Rather, the employees would reasonably have con- strued it as a "inal" check, as the Administrative Law Judge concluded, subject only to their being "expected" to be at work oin May 4 as the letter dictated. When the employees did not return to work on May 4, they could have reasonably believed they were discharged as found by the Administrative Law Judge and as elaborated on by him in his Deci- sion. 2 We conclude that only a narrow order is necessary to remedy the violation found, and we modify the recommended Order and notice ac- cordingly. See lickmott Foods, Inc., 242 NLRB 1357 (1979). 254 NLRB No. 91 1. Substitute the following for paragraph (b): "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 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 WE WILL NOT discharge or otherwise dis- criminate against any of our employees be- cause they assist a labor organization by refus- ing to cross a lawful picket line at their place of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole William Barrett, Rus- sell Fullman, Richard Bonato, William Briggs, Dale Hampton, Douglas Knox, Edward Mer- edith, Jr., Padevuth Vann, Gordon Ware, Jr., Robert Winfield, and Edward Winters for any loss of pay suffered by reason of their unlaw- ful discharges, with interest. FAMOUS SUPPLY COMPANY, INC. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge: The complaint which issued on August 31, 1979, alleges that on May 1, 1979, Famous Supply Company, Inc. (herein Respondent or Employer), discharged certain of its employees because they refused to cross the picket line of International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union 697 (herein the Union), in violation of Section 8(a)(l) and (3) of the Act. In its answer Respondent admits the jurisdictional allegations of the complaint; that the Union is a labor organization within the meaning of Section 2(5) of the Act; and that certain individuals named in the complaint are supervisors and agents of Re- spondent, but denied the commission of any unfair labor practices. This matter was heard before me in Pittsburgh, Pennsylvania, on December 20, 1979. Following the hearing, the General Counsel and the Respondent sub- mitted post-trial briefs, which have been duly considered. Upon the entire record, including my observation of the witnesses and their demeanor, and after due consider- ation of the briefs filed by the General Counsel and Re- spondent, I make the following: - -1 .,- \urr v . - uv1 - FAMOUS SUPPLY COMPANY, INC. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent, a Pennsylvania corporation, has an office and place of business in Washington, Pennsylvania, where it is engaged in the nonretail sale of building ma- terials. Additionally, Respondent, among others, operates facilities at Wheeling, West Virginia, and at Uniontown, Pennsylvania. The complaint alleges, Respondent admits, and I find, that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The employees at Respondent's facility in Wheeling, West Virginia, are represented by the Union. The em- ployees at Respondent's facility in Uniontown, Pennsyl- vania, are represented by Teamsters Local 491, I.B.T. As a result of a breakdown in negotiations, in late April 1979,' the Union and Teasmsters Local 491 instituted strikes at Respondent's Wheeling and Uniontown facili- ties, respectively. On May 1, the Union and Local 491 established an informational picket line in front of Re- spondent's Washington, Pennsylvania, facility. At that time the employees of Respondent at the Washington, Pennsylvania, facility were unrepresented. On May 1, II employees of Respondent refused to cross the picket line established by the Union and Local 491. When William Green, the regional manager of five of the Employer's facilities, and manager of the Washington facility, arrived at the facility he observed some individuals carrying picket signs. He said some of the individuals were em- ployees of the Uniontown and Wheeling facilities. He also observed employees of the Washington facility who were among the employees but were not picketing. Green stated that Amos Courtney, business agent of Local 491, explained to Green that the Union and Local 491 had extended their picket line to the Washington fa- cility. Green said that he ordered his Washington em- ployees to return to work and was informed by one of the employees that they were honoring the picket line. He indicated that there was nothing he could do and drove away. When Green arrived at work, he called Blaushild, Respondent's president, and informed him of the labor problems at the Washington facility, and told Blaushild that, as far as he was concerned, when the em- ployees failed to report to work, they were no longer employees. In the meantime, the employees of Respondent's Washington facility who honored the picket line signed authorization cards for the Union. Thereafter, at approxi- mately I1 a.m. Knollinger, president of the Union, tele- phoned Green and, based on the authorization cards I Unless otherwise specified all dates refer to 1979 which the employees had signed, informed Green that the Union represented a majority of the employees at the Washington facility and requested recognition. His re- quest was denied by Green. Thereafter, Knollinger re- turned to his Wheeling office where he composed a letter addressed to Blaushild requesting recognition. On May 2, when the employees still had not reported to work, Green spoke with Blaushild about sending a letter to the employees. Thereafter, with Blaushild's ap- proval, a letter (G.C. Exh. 5) dated May 2 was sent to all the employees. That letter reads as follows: EMPLOYEES OF FAMOUS SUPPLY COMPANY OF WASH- INGTON: You did not report to work Tuesday, May 1, 1979, as scheduled, therefore, your check for time clocked April 26, 27, and 28, 1979 is enclosed. 2 You will be expected to be at work Friday, May 4, 1979, at 7:30 A.M. FAMOUS SUPPLY COMPANY W. W. Green Regional Manager Green testified that although the letter did not state that if the employees did not return to work they would no longer work at the facility, that was his thinking. The employees did not return to work on May 4, and on May 7 began actively picketing for union recognition. On May 8, the Union filed a representation petition seek- ing to represent all warehousemen, truckdrivers, and counter people at the Employer's Washington, Pennsyl- vania, facility. Thereafter, the employees continued to picket until they returned to work on July 30, in re- sponse to Respondent's July 17 offer of reinstatement. Union President Knollinger testified that on May 22 he had a telephone conversation with Respondent's presi- dent, Blaushild. Blaushild told him that he should con- tact the Local business representative in Washington, Pennsylvania, and see if he could get jobs for the em- ployees at the Respondent's Washington facility, because as far as he was concerned they were no longer em- ployed there. This conversation is specifically denied by Blaushild. ' On May 24, employee Briggs was approached on the picket line by William Green who suggested to Briggs that he come in to the facility and fill out an application, and maybe they would have a job for him. Also around the end of May, employee Richard Bonato personally called Green and requested that he be permitted to return to work to support his family. Green responded that he was no longer considered an employee and that he could not report to work. This record clearly reflects I2 t as later developed that the April 28 date vwas a mistake and that it should hase been April 30 a Although laushild denied this conversation. I do not credit his denial because this testimony seems to be consistent with the position taken by both Green and Bllaushild in the representatiol hearing oin June 1, when they both testified that, when the employees fliled to report to · vork il May I and 4. ihel conlsidered hen to hbe n longer employees of Responldenlt Ihus. it appears clear that he ionsidered the employee, to he tcrnlinated .is f at least Ma 4 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at all times material herein both Green and Blaushild considered all of the 11 employees who failed to report to work on May I and 4 as being discharged. In fact in an affidavit given to the Board on June 25, Green once more confirmed that in his view the employees were fired as of May 1, because he indicated that if they un- conditionally offered to return to work they would not be accepted. By letter dated July 17, Blaushild offered reinstatement to the employees and the employees did in fact return to work on July 30. It appears that within 7 or 8 days after they returned to work the employees again went out on strike. Conclusions The General Counsel argues that by the May 4 letter Respondent clearly discharged its employees for failure to cross a picket line and return to work and that this termination was amplified by Respondent's subsequent actions. Thus, the General Counsel requests that Respon- dent be found guilty of violations of Section 8(a)(1) and (3) of the Act, and that it pay backpay to the striking employees from May 4 until their offer of reinstatement on July 17. Respondent on the other hand contends that the strik- ing employees were never discharged, and as striking employees it was incumbent upon the employees to make application for reinstatement. And as the employees never applied for reinstatement, they were never refused reinstatement and therefore they were not terminated. Additionally, Respondent argues that as the employees accepted reinstatement when offered by Respondent its duty to the employees ended at this point. The law is well settled that employees have the right to honor picket lines of unions, and in exercising this right the employees are engaged in protected activity. It is clear that the employees here were involved in pro- tected activity from May I through 6, in that they were acting in sympathy with the striking employees at the Wheeling and Uniontown facilities of Respondent. There is no question that the employees of the Employer's fa- cility at Wheeling, West Virginia, and Uniontown, Penn- sylvania, were engaged in a lawful economic strike, and that the Washington employees in joining that strike and refusing to cross the picket line were thus engaged in protected activity. On May 7, the employees at the Washington facility began their own economic strike against the Employer in that they began informational picketing for recognition. Thus, at all times material herein the striking employees were economic strikers en- gaged in protected concerted activities and protected union activities. As such the economic strikers, unless re- placed, were entitled to reinstatement to their jobs with- out prejudice upon application for reinstatement. Al- though the striking employees never made an application for reinstatement, 4 they did in fact continue their eco- nomic strike until Respondent offered them reinstatement on July 17, which they accepted on July 30. The General Counsel, however, contends that the em- ployees were discharged on May 4, when they did not 4 Except fr employee BHionato comply with Respondent's letter, and thereafter it was incumbent upon Respondent, the wrongdoer, to offer the illegally discharged employees reinstatement, and that they are entitled to backpay from May 4 until July 17, 1979, when Respondent offered reinstatement even though they were in fact engaged in an economic strike against Respondent. Thus, the issue in this case is simply whether these employees were in fact terminated on May 4 or at any other date thereafter, or whether they were in fact economic strikers to whom the employer owes only the duty of granting them reinstatement upon application. The Board has frequently been confronted with the question, whether, in a particular case, a discharge has occurred. In a most recent decision, Ridgeway Trucking Company, 243 NLRB 1048 (1979), the Board reiterated the standards for determining whether a discharge has occurred by stating that the test for determining whether an employer's statements constitute an unlawful dis- charge depends on whether they would reasonably lead the employees to believe that they had been discharged. The Board added quoting from N.L.R.B. v. Trumball As- phalt Company of Delaware, 327 F.2d 841, 843 (8th Cir. 1964): [T]he fact of discharge does not depend on the use of formal words of firing . . .. It is sufficient if the words or actions of the employer would logically lead a prudent person to believe his tenure has been terminated. To support its contention that the employees were dis- charged, the General Counsel relies on Respondent's May 2 letter to the employees who honored the picket line and failed to report to work. This letter contained the employee's check for work clocked in up to that date, and closed by stating: You will be expected to be at work Friday May 4, 1979, at 7:30 a.m. The General Counsel concedes that on its face the letter contains no words of discharge, but reasons that it is clear from the language used, the circumstances under which it was received, and Respondent's subsequent ac- tions that the letter constituted a discharge. The General Counsel relies on Livingston Shipbuilding Company, 235 NLRB 578 (1978), in which two employees were alleg- edly discharged for refusing to cross a legal picket line. One of two striking unrepresented employees who re- fused to cross the picket line received a letter which stated: This is to advise you that Livingston has work for you, and you are to report to work by Wednesday, April 20, 1977. The other employee received a phone call to the same effect. Records later of termination were put into the files of the employees 5 days later. In finding that this action constituted a discharge, the Administrative Law Judge found that in very plain language what the Com- pany was saying to these men in April was that "strike 770 FAMOUS SUPPLY COMPANY, INC. or no strike, picketing or no picketing, when we want you to come back to work you must and if you do not we will fire you." The Administrative Law Judge in that case relied very heavily on the fact that records of termi- nation had been placed in the employee's personnel file on April 25, 5 days after the letter. And putting the two acts of the Employer together the Administrative Law Judge concluded that the employees were discharged as of April 25, the date on which the letters of termination were placed in the employees file. This decision was adopted by the Board. In Ridgeway Trucking Company, supra, two employees engaged in protected concerted activities in protesting their wage levels by engaging in a work stoppage. There the question was whether or not the respondent in fact had discharged the employees as alleged in the com- plaint. In that case a supervisor ordered the drivers en- gaged in the work stoppage to leave the premises unless they were going to go to work. By their subsequent ac- tions this statement was construed by the employees to mean that they were discharged, and in response to this statement they immediately requested that they be paid on that day despite the fact that it was not the normal payday. In addition, they requested that they be allowed to remove all of their personal belongings from the com- pany trucks. The supervisor did nothing to dispel the employees that they were not discharged and in fact agreed to their requests. Additionally, in that case two supervisors were talking and one informed the other that if the employees did not want to go to work they could go some place else and work. The Board concluded that although the employees could not rely on this statement in forming their belief that the supervisor had discharged them, because they had no knowledge of it, these re- marks demonstrated a clear intent on the part of the su- pervisor to discharge the employees if they continued in their work stoppage. Thus the Board concluded that this statement shows that the statement to the employees to work or leave the premises was meant by him as a dis- charge ultimatum. The General Counsel argues that in the case at hand Respondent's statements and actions strongly communi- cated to the employees that they were discharged. In the instant case the employees did not even have to ask for their final checks, Respondent took the initiative and en- closed them with its May 2 letter. Thus, the General Counsel concludes that this action was an act of dis- charge sufficient to justify a reasonable prudent person to believe that he had been terminated. On May 24, while employee Briggs was picketing, Green approached him and told him that if he wanted a job he would have to fill out an application and that maybe the Employer would call him to work. This clearly indicated to Briggs that he was no longer employed. Also on May 22, Presi- dent Blaushild informed President Knollinger of the Union, that Knollinger should contact the Local business representative in Washington, Pennsylvania, and see if he could get jobs for his people at the Washington facility because as far as Blaushild was concerned they were no longer employed by Respondent. Also in a telephone conversation around the end of May, employee Richard Bonato personally phoned Manager Green and begged to be permitted to return to work. Green responded that he no longer considered him an employee and he could not return to work. Bonato testified that he informed the other employees of this reply. Additionally, on the very first day of the strike, Manager Green, in charge of hiring and firing at the Washington facility, phoned President Blaushild and told him that as far as he was concerned the employees did not work there anymore. Moreover, this record reflects that insofar as Manager Green and President Blaushild were concerned the em- ployees no longer worked at the Washington facility after May 1. Also Green admitted that had the employ- ees come to him on June 25 and asked for their jobs back he would not have accepted them. Under the circumstances of this case it is my conclu- sion that Respondent intended to, and did in fact, dis- charge its employees on May 4. It is also my conclusion that Respondent discharged the 11 economic strikers on May 4, when they refused to comply with its request to return to work and such discharge was predicated on their failure and refusal to cross the picket line. As such discrimination clearly discourages union membership, Respondent has engaged in conduct violative of Section 8(a)(l) and (3) of the Act and I so find. IV. THEil EFFECTS OF THE UNFAIR ABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, oc- curring in connection with its operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. v. TH Rt.MEll)Y Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act by discriminatorily discharging striking employees, I shall order that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act.5 Because I have concluded that the employees were discharged on May 4, 1979, when they failed to respond to the Employer's letter, I find that they are entitled to receive backpay from the date of their unlawful dis- charge until the offer of reinstatement was made to them on July 17, 1979. See Abilities and Goodwill Inc., 241 NLRB 27 (1979). Backpay shall be computed with inter- est thereon in the manner prescribed in F W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977).i Upon the basis of the foregoing findings and conclu- sions, and upon the entire record, I make the following: Becaul the discharge f crnplo,, c, in repri,al fir their lengagitig in protlced col-tcerltdl cti irl i uppor of a lahbor rgaull/ii.tinl irike at the s,.r, root if ermploixcr rights silfegulalrded h Sec 7 hI lhe.. Act. find thlt a broid order requiring Respondent itio Cej.e iid d,ist frulnl llfrillg- ing in ;1ln other I1LnnIlIr upi) the rights guaratirlleCd h S' 7 , the AcI IN warranted h See. genrall .i I ' l,,,hiog & tlairig C,. 13 NRB 71 tl t62) 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, Famous Supply Company, Inc., is engaged in commerce within the meaning of the Act. 2. By discriminatorily discharging its employees who on May I honored a lawful picket line, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent, Famous Supply Company, Inc., Washington, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against its employees, because they assist a labor organization by refusing to cross a lawful picket line at their place of work. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National I.abor Relations Board, the find- ings, conslusions and recommended Order herein shall, as provided in Sec 12.48 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 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole William Barrett, Russell Fullman, Richard Bonato, William Briggs, Dale Hampton, Doug- las Knox, Edward Meredith, Jr., Padevuth Vann, Gordon Ware, Jr., Robert Winfield, and Edward Win- ters for any loss of pay suffered by reason of their un- lawful discharges on May 4, 1979, until Respondent's offer of reinstatement on July 17, 1979, with interest. (b) 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 records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Washington, Pennsylvania, facility copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Re- spondent's authorized representative, 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the wo rds 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 ()rder of the National Labor Relations toard " 772