Sigma Service Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sigma Service Corporation and Willie London. Case 15-CA-6089 June 20, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 16, 1977, Administrative Law Judge Joseph L. Battle issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's 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 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, find- ings,1 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 Respondent, Sigma Service Corporation, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JOSEPH L. BATTLE, Administrative Law Judge: This case was heard at Baton Rouge, Louisiana, on July 28 and 29, 1976, upon a complaint issued by the General Counsel of the National Labor Relations Board and an answer filed by Sigma Service Corporation, hereinafter called the Respondent. The issue raised by the pleadings relates to whether or not the Respondent discharged alleged discri- minatees Raymond Brazil, Alex Dewey Chambers, Ephren Harrison, Claude L. Jackson, Willie London, Herman Majors, George Randall, Jr.,1 Eddie Singleton, Albert I The complaint was amended at the hearing to change "George Reynolds, Jr.," to "George Randall, Jr." 230 NLRB No. 39 Valmore, and Floyd Woolridge on or about January 13, 1976, and thereafter failed and refused to recall said alleged discriminatees in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. Briefs have been received from the General Counsel and the Respon- dent and have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: FnNDoNGs OF FACT The complaint alleges, the answer admits, and I find that the Respondent is engaged in the construction of railroad tracks for private industry; its purchase and receipt of goods and materials in interstate commerce are sufficient to satisfy the Board's standard for the assertion of jurisdiction; and the Respondent is an employer within the meaning of the Act. In December 1975, the alleged discriminatees sought a pay increase from their supervisor, Nelson Chambers, who relayed their request to the Respondent's construction superintendent, Jim Downs. On the morning of January 13, 1976, while riding to work with Foreman Chambers, alleged discriminatees Randall and Valmore again talked with Chambers about a pay raise. Foreman Chambers told them to talk with Superintendent Downs. When the alleged discriminatees who were riding with Foreman Chambers arrived at work about 6:50 a.m., they met with the other alleged discriminatees. They all talked about requesting a raise. According to the testimony of alleged discriminatees Randall and Valmore, these two men then asked Superin- tendent Downs for a 25-cent-per-hour raise on behalf of all of the alleged discriminatees. Valmore further testified that, in response to their request, Superintendent Downs told the employees that "he had asked for our raise but the man say he wasn't giving no raise, to take what we were getting or go home." Superintendent Downs then went into the office. Later, he returned to the parking lot to give Foreman Chambers instructions for the day. After Super- intendent Downs noticed that no preparations were being made for work, Foreman Chambers informed him that the men said they were no longer going to work for their current pay of $2.75 per hour. Superintendent Downs then instructed Foreman Chambers that "if the men were not going to any longer work for $2.75 an hour, to fill out their time for that week and turn it in." Chambers turned in the timesheets and returned to the alleged discriminatees. Several times he asked them to go to work for the current wage rate, but they did not. Alleged discriminatees Jackson and London testified that the employees were waiting to present their request to the Respondent's president, Al Smith. Other alleged discriminatees testified that they didn't know which tools to load into the truck or what to do to prepare for work since Foreman Chambers had not given them their usual instructions for the day. According to alleged discriminatee London, the employees told Chambers that "we wasn't quitting the job at all. We just want a raise." Chambers then informed another of the 316 SIGMA SERVICE CORPORATION Respondent's construction superintendents, George Carl- ton, of the men's decision not to work without a raise. About 9 a.m. Superintendent Carlton relayed the men's decision to President Smith. President Smith and Superin- tendent Carlton discussed what to do in the situation. President Smith "understood" that the alleged discrimina- tees had quit by telling Foreman Chambers that they were not going to work anymore for the current rate. After his conversation with President Smith, Superintendent Carlton had paychecks prepared from the timesheets of the alleged discriminatees. A little after 9 a.m. the paychecks were handed out by Superintendent Carlton in the parking lot. At the request of the alleged discriminatees, Superinten- dent Carlton also gave them pink slips entitled "Payroll Change Notices." All of the notices were marked "left," if marked at all. None were marked "discharged" or "laid off." By an area indicating "would you reemploy," some of the notices were marked "No." According to the testimony of Superintendent Carlton, he did not consciously mark one notice differently than any other notice. According to the testimony of Superintendent Downs, the employment of the alleged discriminatees was at an end when they received their payroll checks and notices. Alleged discriminatee Randall testified that when he received his notice, he told Superintendent Carlton that he had not left the job, that the men had only asked for a raise. Alleged discriminatee Randall concluded that he was terminated "because I got my check and my pink slip with it .... I had to went, I got my check and pink slip." Alleged discriminatee Valmore thought he was terminated and didn't tell the Respondent he wanted to keep his job because "they gave us our money. We was fired." He did not reapply "because I was fired and I feel they wouldn't hire me back." Alleged discriminatee Jackson did not reapply for reinstatement "because the pink slip said I had left and had 'no' where it said I would not be rehired." Likewise, after alleged discriminatee Majors read his notice, he did not reapply. After the alleged discriminatees received their payroll checks and notices, the ones who lived out of town returned home in Foreman Chambers' truck which was loaned to them. Within a day or two later, replacements were hired for the alleged discriminatees. President Smith testified that he later asked alleged discriminatee Randall to return to work. Supervisor Chambers testified that he later asked alleged discriminatee London to return to work. Alleged discriminatees Wool- ridge, Brazil, and Majors returned to work on January 17, March 1, and April 18, 1976, respectively. Alleged discriminatee Woolridge was rehired after Foreman Cham- bers, at Woolridge's request, asked Superintendent Downs to rehire him. Alleged discriminatee Brazil testified that when he was rehired, Foreman Chambers had been asked to "get anybody you can," but only Brazil was asked to return to work. According to the testimony of alleged discriminatee Majors, when he was asked to return to work, Foreman Chambers told him that the Respondent was not going to rehire any of the alleged discriminatees. Subsequently, by letter dated June 4, 1976, the Respondent invited all of the remaining alleged discriminatees to return to their jobs with the same terms and conditions of employment which existed on January 13, 1976. This offer was made after the unfair labor practice charges were filed in the case at bar. Applicable Principles of Law Section 8(aX)(1) of the Act makes it an unfair labor practice for an "employer ... to interfere with, restrain, or coerce employees in the exercise" of their Section 7 rights. Section 7 of the Act guarantees employees the right to "engage in . . . concerted activities for the purpose of mutual aid or protection." A request for a wage increase made by one or more employees on behalf of other employees is a protected concerted activity within the meaning of Section 7 of the Act. Section 501(2) of the Act defines "strike" to include "any strike or any other concerted stoppage of work by employees . . . and any concerted slow down or other concerted interruption of operations by employees." Thus, a cessation of work may be no less a strike even though employees neither label it as such nor engage in additional activities, such as picketing, which usually accompany a strike. By striking in support of economic demands, employees clearly engage in concerted activity for "mutual aid or protection" within the meaning of Section 7 of the Act. They do not, by striking in these circumstances, cease to be employees and their discharge for engaging in the strike is, accordingly, a violation of Section 8(a)(1) of the Act. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967). When faced with an economic strike, an employer is free to hire replacements for the strikers at any time prior to their unconditional request for reinstatement; however, it is an unfair labor practice to discharge economic strikers prior to the time their jobs are filled. N.LR.B. v. United States Cold Storage Corp., 203 F.2d 924, 927 (C.A. 5, 1953), cert. denied 346 U.S. 818 (1953), enfg. 96 NLRB 1108, 1112 (1951). The use of special words is not necessary in order to discharge an employee. The test of whether an employee has been discharged or whether he quit is whether the statements and actions of his employer would reasonably lead him to believe that he had been discharged. AMP, Incorporated, 218 NLRB 33, 36 (1975). A discharge may occur where an employer terminates an employee by placing him in a "quit" status. Cone Brothers Contracting Cornpany, 135 NLRB 108, 109 (1962), enfd. 317 F.2d 3, 7 (C.A. 5, 1963), cert. denied 375 U.S. 945 (1963). Economic strikers who are unlawfully discharged prior to the time their jobs are filled are entitled to unconditional reinstate- ment. N.LR.B. v. International Van Lines, 409 U.S. 48, 52- 53 (1972). This is so because "reinstatement is the conventional correction for discriminatory discharges," Phelps Dodge Corp. v. N.LRB., 313 U.S. 177, 187 (1941), and is clearly within the Board's authority. Section 10(c) of the Act. An employee who is discriminatorily discharged while on strike must indicate abandonment of the strike and a willingness to return in order to establish a right to his job and a resumption of his wages, unless there is a showing that such application would have been futile. Valley Oil Co. Inc., 210 NLRB 370 (1974). Where such a showing of futility has been made, the employer itself must affirmatively offer reinstatement to the unlawfully dis- charged employee, regardless of whether or not the 317 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged employee makes application for reinstatement. Moreover, where a showing of futility has been made, an unlawfully discharged employee is entitled to an uncondi- tional offer of reinstatement at the termination of the strike, and his right to backpay commences at that time despite the fact that he did not apply for reinstatement. N.LR.B. v. Southern Greyhound Lines, 426 F.2d 1299, 1303-04 (C.A. 5, 1970), enfg. 169 NLRB 627 (1968); Eagle International Inc., 223 NLRB 29 (1976). Analysis The Respondent contends that no concerted activity is present herein because, in the Respondent's view, alleged discriminatee Randall, alone, sought a wage increase from Superintendent Downs only for himself. However, subse- quent to this conversation, the alleged discriminatees as a group communicated to the Respondent the fact that they were refusing to work unless they received a 25-cent-per- hour raise. Thus, it is clear that the alleged discriminatees, in seeking a pay increase, engaged in concerted activity. The Respondent contends that by their action, the alleged discriminatees, in effect, quit, so that their conduct is not protected by Section 7 of the Act. However, the alleged discriminatees did not cease to be employees by engaging in an interruption or stoppage of work in support of economic demands. Whether the alleged discriminatees were waiting to be told what tools to use, or what to do, or were waiting to see President Smith, it is clear that they did not voluntarily leave the Respondent's premises, but, instead, remained as employees who were engaged in a protected concerted effort to seek a 25-cent-per-hour wage increase. Through Foreman Chambers, the Respondent's higher level management officials, Downs, Carlton, and Smith, were aware of the employees' concerted wage request. In light of the employees' continuing strike in support of their economic demands, the Respondent could have hired replacements for them. Instead, the employees' efforts to better their wages caused the Respondent to give the strikers their final paychecks and notices, most of which indicated that the strikers had "left" their employment and would not be rehired. Whatever the paychecks or notices meant to the Respondent, it is clear from the testimony of the alleged discriminatees that the Respondent's actions reasonably led the strikers to believe that they had been discharged and that application for reemployment would be futile. The Respondent points out that several of the strikers subsequently knew that other strikers had been rehired. However, the Respondent's actions and the testimony of Foreman Chambers indicate that, in fact, the Respondent engaged in a selective recall of the employees with little indication, until the Respondent's letter of June 4, 1976, that the Respondent would meet its obligation of offering unqualified reinstatement to all of its employees.2 Based upon the circumstances of this case, I conclude that the Respondent violated Section 8(a)(1) of the Act by 2 Whether the Respondent's subsequent reinstatement of alleged discrin- minatees Woolridge, Brazil, and Majors and the Respondent's offers of reinstatement by President Smith and Foreman Chambers to alleged discriminatees Randall and London, and the Respondent's letter of June 4, 1976, constitute the type of unconditional reinstatement or offer of discharging the alleged discriminatees for engaging in protected concerted activity. I further conclude that the alleged discriminatees could reasonably believe that any application for reinstatement initiated by them would be futile. Accordingly, it follows that the discharges violated Section 8(a)(1) of the Act and that the usual remedy of reinstatement with backpay should be granted to the alleged discriminatees. Since the strike ended when the employees were terminated and went home, no loss of backpay is attributable to the strike. Thus, the Respon- dent's backpay obligation runs from January 13, 1976 (the date the alleged discriminatees were terminated), to the date upon which each of the alleged discriminatees received or receives an unconditional offer of reinstatement from the Respondent. REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(aXl) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent discharged the alleged discriminatees because of their concerted activities in seeking an improvement in their wages, I shall further recommend that the Respondent be ordered to offer them, if it has not already done so, immediate and full reinstatement to their former jobs or, if those jobs no longer are available, to substantially equivalent employ- ment without prejudice to their seniority or other rights and privileges. I shall further recommend that the Respon- dent be ordered to make them whole for any loss of earnings they may have suffered as a result of their discharges by payment to each of them of the amounts they normally would have earned from January 13, 1976, until the date of the Respondent's offers of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Sigma Service Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Raymond Brazil, Alex Dewey Cham- bers, Ephren Harrison, Claude L. Jackson, Willie London, Herman Majors, George Randall, Jr., Eddie Singleton, Albert Valmore, and Floyd Woolridge on or about January 13, 1976, because of their concerted activities in seeking improvement in their wages, the Respondent has engaged in and is engaging in unfair labor practices affecting reinstatement necessary for the Respondent to meet its obligation under the Act, and whether the June 4, 1976, letter was actually received by each alleged discriminatee, is a matter for the compliance stage of this proceeding. 318 SIGMA SERVICE CORPORATION commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 3 The Respondent, Sigma Service Corporation, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from discharging its employees because they engage in concerted activities for the purpose of seeking improvement in their wages, or in any other manner interfering with, restraining, 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 necessary to effectuate the policies of the Act: (a) Offer Raymond Brazil, Alex Dewey Chambers, Ephren Harrison, Claude L. Jackson, Willie London, Herman Majors, George Randall, Jr., Eddie Singleton, Albert Valmore, and Floyd Woolridge, if it has not already been done so, immediate and full reinstatement to their former jobs or, if those jobs are not available, to substantially equivalent employment without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of their discharges in the manner set forth within the section of the Decision entitled "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, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraph (a) above. (c) Post at its Baton Rouge, Louisiana, place of business, copies of the attached notice marked "Appendix." 4 Copies of said notice on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative, shall be posted by it 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 the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 objections thereto shall be deemed waived for all purposes. 4 In the event the Board's Order is enforced by Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any of our employees because they engage in concerted activities for the purpose of seeking improvements in their wages. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Raymond Brazil, Alex Dewey Chambers, Ephren Harrison, Claude L. Jackson, Willie London, Herman Majors, George Randall, Jr., Eddie Singleton, Albert Valmore, and Floyd Woolridge, if we have not already done so, immediate and full reinstate- ment to their former jobs or, if those jobs no longer are available, to substantially equivalent employment without prejudice to their seniority or other rights or privileges and wE wnLL make them whole for any loss of earnings they may have suffered as a result of their discharges from the date we discharged them to the date we offer (or have offered) full reinstatement to them. SIGMA SERVICE CORPORATION 319