Continental Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Industries, Inc. and Shopmen's Local No. 620 of the International Association of Bridge, Structural and Ornamental Iron Work- ers. Case 16-CA-9761 September 27, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On April 14, 1982, Administrative Law Judge David L. Evans 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Continental In- dustries, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' Respondenl hai excepted to certain credibility findings made by the Administralive i aA Judge It is he Board's estlablished policy not to overrule an administraltive law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relesant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully exanined the record and find .(no basis for reversing his findings. 2 Member Jenkins ssould compute interest in accordance with the for- mula set forth in his partial lissent in, Olympitc Medical Corporalion, 250 NILRB 146 (1980) DECISION STIA'IFMNI O1 IHIE CASE DAVID L. EVANS, Administrative Law Judge: The charge herein was filed on April 2, 1981, by Shopmen's Local No. 620 of the International Association of Bridge, Structural and Ornamental Iron Workers (herein called the Union) against Continental Industries, Inc. (herein called Respondent). The complaint issued on May 13, and a hearing thereupon was conducted by me on De- cember 14. Respondent filed an answer admitting juris- diction but denying the commission of any unfair labor practices. Upon the record' as a whole, including my observa- tion of the witnesses, and upon consideration of the briefs submitted, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is and has been at all times material herein an Oklahoma corporation maintaining a facility in Tulsa, Oklahoma, where it is engaged in the business of manu- facturing gas distribution products. During the 12 months preceding issuance of the complaint, Respondent, in the course and conduct of its business operations in Tulsa, sold and shipped goods valued in excess of $50,000 directly to purchasers located in points outside Oklahoma. Therefore, Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. LABOR ORGANIZATION INVOLVED The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR I.ABOR PRACTICES The Union was certified as the collective-bargaining representative of Respondent's production and mainte- nance employees on April 18, 1980.2 After bargaining was conducted for some period of time, the employees began a strike on September 19. It is undisputed that the strike was economic in nature; that is, it was not caused or prolonged by any unfair labor practices by Respond- ent. The law is that economic strikers are entitled to full reinstatement to vacancies in their former jobs or in sub- stantially equivalent jobs when an unconditional offer to return to work is made by them or by an agent on their behalf. In The Laidlaw Corporation, 171 NLRB 1366, 1369-70 (1968), the Board held that: . . . economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (I) remain em- ployees; and (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substan- tially equivalent employment or the employer [can show business justification for refusing to reinstate the strikers]. Just what constitutes an unconditional offer to return to work, so that, Laidlaw rights accrue to the employees, is an issue in this case. Unconditional offers to return to work from a strike can be worded in many different ways. No specific words are required to make an offer unconditional; an application for reinstatement will not be treated as conditional unless an employee, or his agent, has given the employer reason to conclude that I Certain errors in the transcript are hereby noted and corrected. 2 All dates hereafter are in 1980 unless otherwise specified. 264 NLRB No. 17 120 CONTINENTAL INDUSTRIES any offer of equivalent employment would be rejected. Hlartmann Luggage Company, 183 NLRB 1246 (1970). When the strike began, Respondent was operating two shifts. One of the classifications in Respondent's plant was an automatic screw machine operator. Seven of the day-shift employees and four of the night-shift employees were so classified at the time the strike began. Floyd Cox and Pat Grumbles were two of the day-shift em- ployees classified as automatic screw machine operators, but Cox was actually a leadman of the day-shift automat- ic screw machine operators rather than an operator him- self. The second shift had a leadman also, Darryl Styer. During the strike Respondent endeavored to hire perma- nent replacements. One individual who was hired as a temporary employee and assigned to work as an auto- matic screw machine operator was Jim Harris who was so employed on October 7. On October 22 Harris was hired as a full-time permanent employee and assigned to the job of "tool cutter and grinder C." Eldon Morain, Respondent's vice president, testified that throughout the strike employees were allowed to return to work if they wished. Their timecards were always in the rack, and all they had to do was come to the plant, pull the card, punch in. and go to work. On October 23 several employees crossed the picket line and presented themselves for reinstatement and were reinstated by Respondent. Morain testified that also during the "afternoon" of October 23 four automatic screw machine operators telephoned him and asked for reinstatement. These four were Tom Warner, Leonard Warner, Richard Simons, and Steve White. Morain testi- fied that he agreed with the four that they could begin working on October 27. It is stipulated that the four did, in fact, begin working on October 27. On direct examination, Cox was led to testifv that it was on "approximately October 22nd or 23rd" that he and other employees noticed several employees crossing the picket line to return to work, "so we called an emer- gency meeting at the Union hall for the rest of the em- ployees." At that meeting employees voted "to go back to work." Cox testified that a "Union official," whose name he could not recall, prepared a handwritten letter which he took to Morain. Cox did not state on direct ex- amination whether he took the letter to Morain on "Oc- tober 22nd or 23rd" or on October 24. Whichever it was, Cox testified that he told Morain "we all wanted to come back to work" but Morain replied that "he couldn't acept that handwritten letter, it would have to be an official letter." Cox returned to the union hall where, "[w]ell, they, you know, decided that they would, I guess, write another letter, or, you know, an of- ficial letter." On cross-examination Cox testified that it was the "23rd or 24th" that he first talked to Morain about a pos- sible return to work. He did not recall if he first tried to reach Morain by telephone. He repeated that the letter he brought Morain was handwritten, but he could not remember the wording, except that it stated that the strike was over. Cox did not know what happened to the handwritten letter; he first testified that he believed that he took it back to the union hall; then he testified that he could no: remember if he had done that or left it with Morain. During cross-examination, Cox was shown a typewritten letter dated October 24 which was signed by Gerald E. Williams, business agent of the Charging Party. The text of the letter is: In accordance with the wishes of your employees, this officially informs you that for all intent [sic] and purposes, the existing strike at your plant is over, effective October 23, 1980. Local Union No. 620 will however expect your Company Representatives to continue meeting to negotiate a Collective Bargaining Agreement to a successful conclusion. We also expect your Company to return striking employees to their jobs as they become available in accordance with employees seniority. Cox denied that this was the letter that he brought to Morain and again insisted that the one he brought was handwritten. Morain testified that he did not meet with Cox on Oc- tober 23. He did testify that his receptionist notified him on October 23 either that Cox was there and wanted to negotiate about the end of the strike or that Cox had called and wanted Morain to return his call so that the end of the strike could be negotiated; Morain could not remember which. Whichever it was, Morain neither called nor saw Cox on October 23. Morain, rather than responding to Cox, called his lawyer instead. The lawyer told Morain not to talk to Cox because the settlement ne- gotiations should be undertaken with the Union. Morain testified further that on October 24 Cox brought to the plant the above-quoted typewritten letter (and at no t'me did Cox bring a handwritten letter to him). At the time he presented the typewritten letter, according to Morain, the following occurred: Q. (By Mr. Andrew) During the conversation, did you inquire of Mr. Cox, as to whether he was interested in returning to work as an automatic screw machine operator? A. Yes, sir, that's right. Q. What was his answer? A. That he wanted to return to the job he had before the strike went on .... And I said, "Would you take a job as a day or night screw machine operator?" And he said, "No, I want my job back that I had before we went on strike." JUDGE EVANS: And did you respond to that? A. I said that I would have to wait and see, that I would have to contact him later, and see where we were at. There was no further direct contact between Morain and Cox. Morain was asked what action, if any, he took on the October 24 letter. He replied that he consulted his lawyer who told him it was "not something we could recognize at that point and time " Morain explained this response by stating that he and his attorney concluded 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the letter was meaningless because it had not come through the mail from the Union. Morain was ill advised. Whether the letter came through the mails, or delivered personally by Cox (who was a member of the Union's negotiating committee), the letter of October 24 was indisputably a communication from the collective-bargaining agent selected by the em- ployees, and, as I find on the basis of Hartmann Luggage Company, supra, it was, on its face, an unconditional offer to return the employees to work. I credit Morain's testimony that he and Cox did not meet until October 24, and I credit his account of what was said in that meeting. As the quoted testimony of Cox reflects, he was confused about the sequence of events, and his account of a handwritten note is totally uncorro- borated. I further credit Morain's testimony that Cox stated that he would only accept a leadman's job. There was nothing in Morain's demeanor to belie him, and Cox was unimpressive himself. But more importantly, al- though called to testify in rebuttal, Cox did not deny Morain's testimony that he specifically refused to take any job other than first-shift leadman. Therefore, I conclude that, although the offer to return to work which was presented by Cox on October 24 was, on its face, an unconditional offer to return to work on behalf of all employees, Cox verbally excepted himself from that offer and conditioned his own return upon the assignment of the job of day-shift leadman of the automatic screw machine operators. It is undisputed that on October 24 the job of first-shift leadman was filled by Styer. Styer had not participated in the strike and had transferred to the first shift, as lead- man, when Respondent discontinued the second shift upon the inception of the strike. Therefore, since Cox in- dicated he would only take a job that was filled, rather than any substantially equivalent job, Respondent did not violate Cox's right to reinstatement on October 24. Grumbles testified that it was on "October 22nd, 23rd, in that area" that the employees decided to call off the strike. She testified that a letter was written which Cox was to take to Morain. When Cox returned, Ray Watt, International representative of the Charging Party, told the employees, "[W]e ought to go back down there and try to get our jobs back." Grumbles testified that around 9:30 a.m., on October 24, she and a group of 20 employ- ees went to the plant.3 According to Grumbles, when she met with Morain: Q. And what, if anything, did you say to Mr. Morain, when you met with him? A. I asked him if my job was available, and he said that there were four other people ahead of me, for seniority. Q. Did he identify who those four people were? A. Yes, ma'am, he did. Q. Who would the people be? 3 Grumbles makes no mentioll of a handwritten letter, and does not indicate when (the 23d or 24th) Cox took any letter to Morain. Since I conclude that Morain was accurate in his testimony that the only meeting with Cox was on October 24, and since Grumbles testified that it was after Cox went to the plant to present some letter to Morail, I conclude that Grumbles was correct il her testimony that she went to meet with Morain on October 24. A. Merrill Stout. Tom Warner, Leonard Warner, and Billy Emerton. Q. What did he say to you in that conversation? A. He said that he would have to wait until he contacted those people, to see if they was coming back in to work. Q. Was there anything else said or discussed be- tween you at the meeting? A. He said that he would call me by 5:00 o'clock that evening. Q. Did he? A. No, ma'am, he did not. Q. And what did you do when he didn't call? A. I called back down there on Monday, two or three times, and they kept telling me that he wasn't in the office, and then I called back again and they said he would get back in touch with me. He never did, for two days. so I finally called back down there, and they said he wasn't down there. I waited for a little bit, and went down there, and he told me that I was on temporary layoff. Q. Do you remember what approximate date that was? A. The 29th day of October. On direct examination Morain placed the meeting with Grumbles on the evening of Thursday, October 23.4 Morain was led to testify that it was on the "afternoon" of October 23 that he made the commitment to the four other automatic screw machine operators to return to work on October 27. Because of the prior commitments he made for October 27, Morain explained, he needed no more operators, and for that reason Grumbles was not recalled. Morain was asked and testified: Q. And did each of those individuals keep their commitment and return to work? A. Yes, we had a commitment that they would begin work Monday morning, the 27th: and they all showed up, and they all went to work. Q. Now, Ms. Grumbles indicated that you told her that you would get back to her? A. That is correct. Q. Did you do that? A. Not immediately. Q. Did you indicate that you would get back to her? A. Yes. Q. What was it you were trying to find out re- garding her return to work? A. Whether I had a job or not, whether I had enough machines, in order to put her back to work as a screw machine operator. On cross-examination Morain testified that he made the commitments to the other automatic screw machine operators on "The 22nd, 21st of October." Morain fur- ther acknowledged that while other employees had simply come to work, without prior notice, the four As stated ill the prci(ding footnorte, I credit Grumbles that the meet- ing occurred on October 24 122 CONTINENTAL INDUS FRIES automatic screw machine operators called in to ask if their jobs were still available. Morain was not asked why the delay from "[t]he 22nd, 21st of October" to the 27th for return of these four; nor was he asked why he had not mentioned to Grumbles (either immediately when she applied, or later when she tried repeatedly to reach him) that he had made prior commitments to the other strikers. Although Morain was not asked the questions, and should have been, it is simply too much to believe that all four called in for permission to return to work before the strike ended, when none of the others did so, then delayed their returns for 6 or 7 days. It is further incredi- ble that Morain would have failed to tell Grumbles im- mediately upon her application that he had made prior commitments which would have the effect of barring her immediate reinstatement, if it were true; and it is further incredible that Morain would leave such statement out of testimony recounting his conversation with Grumbles. It further detracts from Morain's testimony that he had to be led to the "afternoon" of October 23 for the making of the commitment to the four other automatic screw machine operators on direct, but then, on cross-examina- tion, placed the date for this commitment at October 21 or 22. Finally, Morain admitted that he indicated to Grumbles that he would "get back to her" after her ap- plication. When asked on direct examination if he had done so, he replied, "Not immediately." This answer was false; he did not get back to her at all.5 This duplicitous answer, coupled with inherent improbabilities involved in Morain's account of the purported prior commitments, leads me to believe that Morain's testimony was not true. I believe, and find, that, as Grumbles testified, Morain told her that he wanted to check to see if employees senior to her6 wished to return before he reinstated her. I believe, and find, that it was thereafter that he commu- nicated with the other automatic screw machine opera- tors and made the commitments for the Warners and Richard Simons and Steve White (both of whom had less seniority than Grumbles) to return to work on Octo- ber 27. Respondent argues that the fact that the Warners, White, and Simons returned to work on October 27 proves that prior commitments were made. This is true, but it hardly proves that commitments were made prior to the receipt of the unconditional offer made on her behalf in the union letter delivered on October 24 by Cox. It proves nothing that Morain testified that, after appli- cation was received, Respondent decided that the auto- matic screw machine operator employees were to be re- instated by grades: "A's" by seniority; then "B's," "C's," and "D's." Grumbles was a "D" operator and Simons and White were "C's." While "C" operators may have had some more skills than "D's" as Morain testified, Re- spondent produced no proof that it had no need for, or could not have used, a "D" operator such as Grumbles when the unconditional offer to return to work was 5 Specificall), Morain did not deny Grumbles' categorical lestimony that their last telephone contact was October 29 when she called him and he told her that she %was on "temporary layoff." 6Merrill Stout, Tom Warner. Leonard Warner. and Billy Emerton made on October 24. 7 Such proof is the burden of the employer. Having failed to meet that burden, it must be concluded that Respondent, by preferring the junior em- ployees White and Simons over Grumbles, violated Grumbles' statutory rights under Section 8(a)(1) and (3) of the Act. Morain testified that on November 4 he received an- other copy of the above-quoted October 24 letter. (Morain explained that the delay was probably caused by the fact that the envelope w as addressed to Respondent's street address rather than its post office box which nor- mally causes a delay.) On cross-examination, Respond- ent's attorney acknowledged that after the (identical) letter was received on November 24 it was treated as un- conditional. On January 26, 1981, employees Steve Childress and Leo Kelly, who were classified as automatic screw ma- chine operators, quit. Rather than recall Cox or Grum- bles. Respondent transferred Jim Harris to that position. (As mentioned earlier, Harris had been hired on October 7 as a temporary automatic screw machine operator and on October 22 was made a permanent employee and made a tool grinder.) Morain testified that Childress and Kelly had been, in effect, surplus employees, and that Harris was given one of the surplus positions because he was a good employee. I do not believe that Respondent had kept Childress and Kelly on the payroll out of largess. It defies all con- cepts of business logic to conclude anything other than that they were kept on the payroll because they were needed. Rather than to call former strikers Cox or Grumbles, Respondent transferred employee Harris. who was in another classification, to the position of automatic screw machine operator. This action violated the rights of Cox to be recalled.9 While the October 24 statement of Cox that he was applying only for the leadman position made his written offer conditional, there was no condition upon the offer received by Respondent on November 4. That offer was unconditional, and Respondent treated it as such accord- ing to the testimony of Respondent's counsel. Therefore, on November 4, Respondent was in receipt of an uncon- ditional offer of the employees to return to work, and it in no wtay excluded Cox. Thus, when a vacancy oc- curred thereafter in a position Cox was qualified to fill, Respondent had a duty to offer it to Cox, rather than transferring Harris, or any other employee on the payroll to fill the job.to This occurred on January 26, 1981. and from that date until Cox was offered reinstatement on May 13, 1981, Respondent was in violation of Section 8(a)(3) of the Act. 7 While Morain restified that there ,sas no need for a "D' operator aftcr his commitments to the otliher four autcmatic s.rew ma.hinc opera- tors. i hase discredited his testimolly that commitments were made before the unconditional offer of October 24 Flecthw'id Frailer Co.. Inr. 389 L S 375 ¢190 7 ) This buiden i, not relieved bclause. as Respondent argues. the Union did nothing to assist in desi ing a fair method of choosing among the employees those which were t,. he given first preference for vacancies. I .1CC Pacijic Valves, a Unit of Muark Co,otr Cpotrratiin. 244 NLRB 931 (1979): Crossroads Chevrolet. Inc., 233 NLRB 72F (19771. l Id 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Re- spondent unlawfully failed to recall or reinstate Patricia Grumbles on October 24, 1980, and I shall recommend that Respondent make her whole for wages lost from that date until she was offered reinstatement on May 13, 1981. Respondent unlawfully failed to recall or reinstate Floyd Cox on January 23, 1981, at which time a vacancy existed in the job classification for which he was quali- fied, and I shall recommend that he be made whole for the wages lost between that date and May 13, when he was unconditionally offered reinstatement. Backpay for both Grumbles and Cox shall be less any interim earn- ings during such period and shall be calculated on the basis of calendar quarters in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950); Florida Steel Corporation, 231 NLRB 117 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCI USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has violated Section 8(a)(1) and (3) of the Act by failing to recall and reinstate employees Grumbles and Cox when vacancies existed in their former or substantially equivalent positions following their unconditional offer to return from an economic strike. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER t The Respondent, Continental Industries, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Failing to recall and reinstate economic strikers fol- lowing an unconditional offer to return to work to their II 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 objectiits thereto shall be deemed waived for all purposes. same or substantially equivalent positions if and when va- cancies exist in said positions. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make employees Patricia Grumbles and Floyd Cox whole for any loss of earnings they may have suffered by reason of Respondent's unlawful discrimination and failure to recall and reinstate each of them in the manner set forth in the section of this Decision entitled "The Remedy." (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 other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Tulsa, Oklahoma, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 In the event that this Order is cilforced bN a Judgnment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Lab hor Relations Board" shall read "Posted Pursu- 1ant to a Judgment of the United States Court of Appea: Enforcing an Order of the Natil inal l.alior Relations Board." APPENDIX No-rICI To EMPI.OYFI S POSTEI) BY ORDIER OF TElt NA-rIONAt LABOR RF.LATIONS BOARD An Agency of the United States Government After a hearing at wrhich all sides had an opportunity to present evidence and state their positions. the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WF Wlll. NOT fail to recall and reinstate econom- ic strikers following an unconditional offer to return to work to their same or substantially equivalent po- sitions if and when vacancies exist in said positions. WE Wit I NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. 124 CONTINENTAL INDUSTRIES WE WILL make Patricia Grumbles and Floyd Cox whole for any loss of earnings, plus interest, because of our failure to recall and reinstate them at the earliest date a vacancy in their former or sub- stantially equivalent positions existed. CONTINENTAL INDUSTRIES, INC. 125