Atlantic Creosoting Co.

DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Atlantic Creosoting Company, Inc. and United Steel- workers of America, AFL-CIO. Case 10-CA-12436 May 14, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPIIY, AND TRUESDALE On October 7, 1977, Administrative Law Judge Robert Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief and a motion to reopen the record and receive additional evidence, and the General Counsel filed exceptions and a supporting brief and a response to Respondent's motion to reopen the record and receive additional evidence.' 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified below, and to adopt his recommended Or- der.2 as modified herein. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) and (3) of the Act by conditioning reinstatement of economic strik- ers upon their execution of work application forms and by placing a time limitation upon their applica- tions,3 and violated Section 8(a)(5) of the Act by tak- ing such action without notification to or consultation with the Union.4 However, as set forth below, we do not adopt the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(1) and (3) of Respondent has moved to reopen the record and receive additional evi- dence for the purpose of explicating the status of employee Prince Jackson. Jr. However, inasmuch as we have found, as fully set forth below, that the issue of whether Respondent unlawfully refused to reinstate employee Jack- son was not timely raised or fully litigated, we deny Respondent's motion. 2 In his recommended Order, the Administrative L.aw Judge uses the nar- row cease-and-desist language. "in any like or related manner." Respondent here has committed violations which go to the very heart of the Act. We shall, therefore, require Respondent to cease and desist from in any other manner infringing upon the rights guaranteed employees by Sec. 7 of the Act. N.L.R.B. v. Entwirtle Mfg. Co. 120 F.2d 535. 536 (4th Cir. 1941): Electrical Filings Corporation a subsidiary of I-T-E Imperial Corporation. 216 NLRB 1076 (1975), On November 17 and 18. 1976, Respondent hired replacements for the strikers. The Administrative Law Judge found, and we agree. that the re- placements were permanent and that Respondent did not violate the Act by replacing the strikers prior to their unconditional offer to return to work. 4 Although the Administrative Law Judge cited no precedent for the find- ing that by this conduct Respondent violated Sec. 8(aS) of the Act. we note that the Board has held that the imposition of notification and registration requirements on former strikers constitutes a mandatory subject of bargain- ing. Food Service Company, 202 NLRB 790. 804 (1973) There is an obliga- tion to bargain even with regard to the unilateral and unlawful implementa- tion of changes in employment conditions. Aero-Motive Manufacturing Company, 195 NLRB 790, 792 (1972). the Act by failing and refusing to reinstate employee Prince Jackson, Jr., on November 22. 1976.5 Respondent has excepted to the finding that the failure to reinstate Jackson was unlawful, contending, inter alia, that there was no allegation, either in the complaint or at the hearing, that the status of any individual employee presented a unique issue: coun- sel for the General Counsel raised Jackson's status as an issue for the first time in his posthearing brief to the Administrative Law Judge: the issue, accordingly. has not been fully and fairly litigated by the parties nor timely raised; and the Administrative Law Judge's reliance on Los Angeles Chemical Compan, 204 NLRB 245 (1973), in finding this additional vio- lation, is misplaced. We find merit in Respondent's contentions. On October 1. 1976, approximately 63 bargaining unit employees commenced an economic strike which lasted until November 22, 1976, when, as the Admin- istrative Law Judge found, the strikers made uncondi- tional offers to return to work. Prior to the strike, Jackson and employee Abraham Moran cleaned the office, mowed the grass, and raked leaves. Jackson honored the picket line, while Moran did not. As Respondent contends, there was no allegation in the complaint. and no amendment to the com- plaint at the hearing, that would put Respondent on notice that there was a separate issue regarding the reinstatement of Jackson or any other individual striker.6 Indeed, the only discussion involving Jackson at the hearing was the following exchange between counsel for the General Counsel and Respondent's plant manager, Steyaart:7 Q. Do you know a man named Mr. Prince Jackson? A. Yes sir. Q. Why hasn't Mr. Jackson been reinstated? A. We discovered that Mr. Abraham Moran, Respondent's motion to reopen the record states that Jackson was rein- stated to a laborer's position at a date subsequent to the hearing herein arid prior to issuance of the Administrative Law Judge's Decision. I It is true, as our dissenting colleague points out. that Jackson was one Af the strikers named n the complaint However, as we have emphasized. there was nothing raised in the complaint or at the hearing that would have pat Respondent on notice that there was a peculiar or unique issue as to the reinstatement of any striker. including Jackson. It is clear from Steyaart's testimony that the considerlionv which nra'i- iated Respondent not to reinstate Jackson were discovered during the strike. And it was on this fact that the Administrative L.aw Judge based his conclu- sion (albeit erroneous) that such failure was unlawful. Our dissenting cl- league states that Steyaart testified that Moran "performed the work n r- mally done by Jackson." and finds this contradictory of subsequent testimony to the effect that during the strike Moran perfiormed janitorial duties at a Respondent-owned facility away from the struck site. However. Steyaart merely stated that Respondent discovered. during the strike. that Moran "was able to do both jobs." While Steyaart did not speclly how tie discover) was made, the fact hat Moran was performing his janitoral duties at a different location in no way precluded Respondent from concluding that Moran could alone perform the tasks pre iousl) assigned to two individuals. 242 NLRB No. 35 192 ATLANTIC CREOSOTING COMPANY. INC. who is I believe a porter, was able to do both jobs. Q. When did you discover this? A. I believe it was during the strike, sir. Q. What type of work were Mr. Moran and Prince Jackson doing? A. They clean up the office, rake the leaves, mow the grass. Q. Assuming that the employees hadn't gone on strike, Mr. Moran and Mr. Jackson would be working today? You would have had the two men working doing this type of work? A. That's an assumption, sir. Probably yes. In his brief to the Administrative Law Judge, the General Counsel urged for the first time in this pro- ceeding that there was a separate issue as to Jackson and that Jackson was entitled to reinstatement. The Administrative Law Judge concluded that, because the consolidation of the preelection duties of Jackson and Moran was "based primarily on considerations resulting from the strike" (citing Los Angeles Chemi- cal Company, supra), Jackson was entitled to rein- statement as of November 22, 1976. The Administra- tive Law Judge accordingly concluded that Respondent's failure to reinstate Jackson on that date violated Section 8(a)(1) and (3) of the Act. Even if we were to reach the merits, we would find insufficient evidence to support the violation. In effect, the Administrative Law Judge concluded that Jackson was unlawfully denied reinstatement be- cause Respondent discovered during the strike that employee Moran could perform the duties formerly performed by Moran and Jackson, and that Respon- dent's subsequent refusal, for that reason, to reinstate Jackson at the end of the strike was, therefore, be- cause Jackson went on strike. However, this is falla- cious post hoc ergo propter hoc reasoning. That Jack- son's absence was due to a strike, rather than illness, vacation, or some other cause, does not by itself lead to a conclusion that Respondent's failure to reinstate Jackson was unlawfully motivated.' The mere fact that Respondent then discovered that one man could do the work formerly done by two and, as a result, combined the duties of the two men, thereby elimi- nating Jackson's former position, does not, absent evidence of unlawful motivation, afford sufficient ba- sis for a finding that Respondent's refusal to reinstate I As we point out below, Jackson's absence was the occasion for Respon- dent's discovery that one employee could do the work of two. That such occasion was due to employees' (including Jackson's) concerted activities does not necessarily lead to a conclusion that Respondent's subsequent fail- ure to reinstate Jackson was in retaliation for his participation in the strike. With regard to Jackson, the Administrative Law Judge essentially found only that, as a matter of law, the reason asserted would not serve as a defense because it was based on "considerations resulting from the strike." Accord- ingly, the crucial element of unlawful motivation neither has been explicity found nor can be inferred from Respondent's conduct. Jackson violated the Act. Certainly Respondent's conduct with respect to Jackson does not carry with it its own indicia of improper intent or warrant an infer- ence that it was directed against Jackson because of his union or strike activity. In this regard, we note that the Administrative Law Judge found that the General Counsel failed to establish that Respondent, in replacing the strikers generally, was acting pursu- ant to an unlawful plan to defeat the strikers' rights to immediate reinstatement. Instead, as the Administra- tive Law Judge found, Respondent "lawfully replaced the economic strikers prior to their making an uncon- ditional offer to return to work." And, with regard to Jackson, the Administrative Law Judge made no finding that Respondent's conduct was either unlaw- fully motivated or that Jackson was treated dispa- rately. In fact, the Administrative Law Judge did not question the bonafides of Respondent's asserted busi- ness justification for consolidating the duties of Mor- an and Jackson.9 As has been noted, the Administrative Law Judge found, and our dissenting colleague apparently agrees, that Respondent, without unlawful motive, permanently replaced approximately 62 striking em- ployees with 80 laborers. The employees thus lawfully replaced had occupied a variety of "job classifica- tions" including, inter alia, sling crane operator, bore- man, treating engineer, etc. The replacements, who had been hired as laborers, were then trained to per- form the jobs to which they were assigned. The Administrative Law Judge found that Jackson was in a "clean-up office" classification. In fact, Jack- son's job classification is listed on Respondent's se- niority list as "janitor." Respondent contends, how- 9 In these circumstances, the Administrative Law Judge's reliance on Los Angeles Chemical Compani is misplaced. There the Board's finding of a vio- lation turned on the fact that the respondent had not "sustained its burden of proof of showing that [the] job had been eliminated." Here, there has been no finding that Respondent failed to meet its burden of coming forward with economic or businessjustifications for its failure to reinstate Jackson. Rather, as we have noted, the Administrative Law Judge apparently credited Re- spondent's reasons but found them unacceptable because they were discov- ered during the strike. However, if an employer, attempting during a strike to maximize its chances for economic survival by increasing its operating effi- ciency, experiments with different staffing patterns and finds that certain positions can be eliminated by redistrbuting the job functions previously performed by striking employees, the employer's subsequent refusal. on that basis, to reinstate a former striker to his or her former (and now nonexistent) position would not be unlawful. The Board so found in Pillows of California, 207 NLRB 369 (1973). Fur- thermore. in N.L.R. B v, Fleetvood Trailer Company, Inc., 389 U.S. 375, 3,9 (1967). the Court noted that, while it did not consider such a defense in that case because it was not presented by the facts, the Board had argued that acceptable "legitimate and substantial business justifications" would exist "when the striker's job had been eliminated for substantial and bona fide reasons other than considerations relating to labor relations: for example. 'the need to adapt to changes in business conditions or to improve effi. ciency.'" (Emphasis supplied.) Similarly, for economic reasons, an employer leaves vacant a striker's position and fails to recall a striker to fill that posi- tion, there is no discrimination. See Kenned & Cohen of Georgia. Inc., 218 NLRB 1175, 1176 (1975). 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, that prior to the strike, Jackson was a laborer'0 receiving laborer's pay, and that his janitorial duties were encompassed within the contractual "laborer" classification. The record is devoid of contrary evi- dence. Our colleague observes that Jackson was not included in the "laborer" classification on Respon- dent's seniority list, and states that, inasmuch as all replacements were hired as laborers, no replacement for Jackson was ever hired by Respondent. Since no one contends that Respondent did hire a replacement for Jackson, we are perplexed by our colleague's ar- gument in this regard. Rather, Respondent has simply contended that Jackson's position was eliminated during the strike. Furthermore, since the jobs of all replaced strikers were filled by laborers, Jackson's prestrike job classification is immaterial. Our colleague would find, based primarily on bur- den of proof considerations, that Respondent's failure to reinstate Jackson violated Section 8(a)(3) and (I). In the circumstances here, this amounts to an asser- tion that, while Respondent's refusal to reinstate 62 strikers was lawful, its refusal to reinstate 1, Prince Jackson, Jr., violated the Act. In other words our col- league would find that, while Respondent has rebut- ted any presumption of unlawful motive with regard to its failure to reinstate the vast majority of strikers, Respondent's failure to reinstate Jackson should be presumed to be unlawfully motivated." This strikes us as nonsensical, especially in view of the total absence of evidence indicating that Jackson had given his employer any reason to treat him differ- ently from other employees. Prince Jackson was not, apparently, an active or vocal union member. From the record, the most that can be assumed is that he merely went on strike with the other employees. Moreover, as the Administrative Law Judge found, Respondent lawfully hired "surplus" laborers in ex- pectation of an initially high attrition rate. Presum- ably, if Respondent had wished for any reason (e.g., to have necessary work performed or to avoid an un- fair labor practice allegation) to fill Jackson's former position with one of these laborers, it could have done so. That it did not lends credence to the reason it advanced for failing to reinstate Jackson. Thus, the total circumstances of this case rebut any inference 0 Plant Manager Steyaart testified, without contradiction, that "laborer" was a job classification under Respondent's expired collective-bargaining agreement with the Union, and that laborers are "fairly statically assigned" but are also transferred to other jobs as needed. 1I Moreover, as noted, Respondent's explanation of its reason for not rein- stating Jackson, while brief, was neither controverted nor discredited. How- ever, while our colleague has cast his dissent in different terms (i.e., burden of proof) from those of the Administrative Law Judge, he has fallen into the same post hoc fallacy by his agreement with the Administrative Law Judge that Respondent unlawfully failed to reinstate Jackson after the strike be- cause of considerations related to the stnke. that unlawful motive played a part in Respondent's decision not to reinstate Jackson.' 2 Accordingly, we find that there is insufficent evi- dence to warrant consideration of Jackson's status apart from that of any other striker, and we agree with Respondent that the issue of Jackson's particular reinstatement rights has not been timely raised or fully and fairly litigated. However, on the state of the present record, were we to make a finding on this issue, we would find that Respondent's failure to rein- state Jackson on November 22 was due to valid eco- monic reasons. Accordingly, we do not adopt the Ad- ministrative Law Judge's finding that the failure to reinstate Jackson on that date violated Section 8(a)( 1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Atlantic Creosoting Company, Inc., Savannah, Georgia, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph (d): "(d) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Delete paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly. 3. Substitute the attached notice fr that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I join in all my colleagues' findings except their failure to adopt the Administrative Law Judge's find- ing that Respondent unlawfully refused to reinstate employee Prince Jackson, Jr., on November 22, 1976, in violation of Section 8(a)(3) and (1) of the Act. Ineed, I am perplexed by their enigmatic conclusion that the issue of Jackson's reinstatement rights has not been fully or fairly litigated or timely raised. The reinstatement rights of unreplaced economic strikers are controlled by the principles stated by the 12 Since, as pointed out in In. 9, supra, the Board has found that a refusal to reinstate a striker ior "legitimate and substantial business justifications," i.e., economic, is lawful; Respondent claims it did not reinstate Jackson for economic reasons;: and as evidence adduced on this issue supports its claim of economic justification, we are puzzled by the dissent's argument that Re- spondent's motive as to Jackson is "irrelevant." In these circumstances, any presumption of illegality which may have existed with respect to Jackson's situation appears to have been rebutted, and, thus. contrary to the dissent, absent an unlawful motive, the mere fact that Jackson was not reinstated though not replaced is insufficient to establish a violation. 194 ATLANrTIC CRFOSOrTING COMPANY, IN('. Supreme Court in N... R. B. v. Flctvtoodt Trailer (.. Inc., 389 U.S. 375,. 378 (1967). as follows: Section 2(3) of the Act . . . provides that an individual whose work has ceased as a con- squence of a labor dispute continues to he an employee if he has not obtained regular and sub- stantially equivalent employment. If, after con- clusion of the strike, the employer refuses to rein- state striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed b § 7 and 13 of the Act ... Under § 8(a)(l) and (3) ... it is an unfair labor practice to interfere with the exercise of these rights. Accordingly. Iunless the employver who refitses to rinstalte .strikers can shol1 that his action was hrie to legitimate anlt suh.sln- tial huline.ss jlustffication, "he is guio' o'an utlfiir' labor practice. R. . .I..R. . Great Dane Tra 7 iler, 388 U.S. 26. 34 (1967). The rbureent of lroing juv- tliicaion is on the emplo/over. [Emphasis supplicd. Thus, the General Counsel establishes a prima i i case by showing that: (1) the alleged discriminallee participated in a lawful economic strike, and (2) upon the employee's unconditional offer to return. the em- ployer refused to offer the employee reinstatement to his or her former position or its substantial equiv- alent. The burden then shifts to the employer to prove it had legitimate and substantial business justifica- tions for failing to reinstate the employee. 3 In the instant case. the General Counsel established a primea liwie case at the outset through the admis- sions contained in Respondent's answer, and the hur- den thereafter shifted to Respondent to establish that it had legitimate and substantial business justitication for failing to reinstate Jackson. 'Ihis. in opinion. Re- spondent has failed to do. Jackson was specifically named in the complaint as a discriminatee, and the complaint alleged that Jack- son and other employees engaged in a strike, and thereafter sought reinstatement, which offer was re- fused by Respondent. in violation of Section 8(a)(3) and (I) of the Act. Respondent. in its answer, admit- ted that the employees named in the complaint, in- cluding Jackson, were engaged in a strike, and that the striking employees were not reinstated. Respon- dent contended, as an affirmative defense, that the n The majority's statement that the3 find notnsensical" m position that Respondent's failure to reinstate Jackson should he presumed unlawful is puzzling. The quotation above from the Supreme ('olirt's opinion in N. L.R.B. v. Fleeltood Trauetr ('o is clear: an employer who retuses I, rein- state economic strikers is presumed guilty of in unfair labor practice. It is the emploser's burden to oercome that presumption Moreoser. m cl- leagues discussion of Respondent's motiise lor refusing to reinstate Jacksin is simply immaterial, for it is ell settled. and until noru unquiestioned, that an emploer's mtie fr failing to reinstate unreplaced econoilmic strikers is irrelevant The l.adlal ('orporation. 171 N L.RB 1366 (1968, enfd 4 14 1 2d 99 (7th ir 1969). cert denied 397 t:.S 92(1 1970) strikers were not reinstated for the reason that perma- nent replacements fr such employees were hired dur- ing the strike. However. during the hearing Respon- dent's plant manager. Steyaart, testified that a nonstriking employee, Moran. performed the work normally done by Jackson. and Steyaart admitted that probably Jackson would be working for Respon- dent if the employees had not gone on strike. 4 Yet. shortly thereafter. Stevaart further testified that Mor- an did not even work at Respondent's plant during the strike, bhut rather was transferred to work at a tennis club and lodge so he would not have to cross the picket line. and that only following the strike was Moran transferred back to the plant. Thus. although Stevaart testified that he believed it was during the strike that he discovered that Moran was able to take over Jackson's job duties as well as his own. he fur- ther testified that Moran did not even work at Re- spondent's plant during the strike. This equivocal tes- timony. without further proof, does not establish that Respondent had "legitimate and substantial business justifications" for failing to recall Jackson.' and can- not overcome the presumption established by the General ('ounsel's prima 1f4ie case. Nonetheless, Respondent contends. and the major- it) finds. that the issue of Jackson's "particular" rein- statement rights has not been fully or fiirly litigated. or timely raised. In support of its finding. the majority states that there was nothing which would put Re- spondent on notice that there was a "separate issue" regarding Jackson or an , other indi.idual striker. In doing so. my colleagues ignore the point that the sole fact distinguishing .lackson from the other alleged dis- criminatees is the issue of Respondent's justification for refusing to rinstate Jackson. an affirmative de- tense on hich Respondent bears the burden of proof. .. I.. R. v. heetlrood 7railer Co.. supra: New Orlear Rosevelt ( orporatlion 132 NLRB 248 ( 1961 ). Accordingly. it is irrelevant whether the General Counsel advised Respondent that Jackson presented any issue different from the other alleged discrimi- natees. In any event. it was Respondent that refused to reinstate Jackson and Respondent was therefore in a better position than the General Counsel to come forward and explain why it so refusedJ. If it indeed failed to do so adequately. as the majority apparently maintains. the inference should run against Respon- dent's interest, not in its favor. E qually specious is my colleagues' finding that Jackson was properly classified as a laborer. rather 1u Ai no time did Respondent contend that Jackson had been replaced h ;Inslilc lother than Mran. including ans ol the permanent replacements " See Slllril Bwi Sncrti. 11i, 210 NI[RB 63 (19741; Is 4ngele ('hernl- cal (.ipreii 2(4 NlRB 245 1973). i See 'i ()rclLIni R,.i..l h (',r[iralii.L. uptri 195 I)ECISIONS OF NA'IONAL LABOR RELATIONS BOARD than in a "clean-up office" classification as found by the Administrative Law Judge. This proposition, which was first advanced in Respondent's "Motion to Reopen Record and Receive Additional Evidence" attached to Respondent's exceptions to the Adminis- trative Law Judge's Decision, is without support in the record, and indeed contradicts Respondent's own seniority chart, which Respondent introduced into evidence at the hearing. That chart, entitled "Senior- ity List by Job Classification," contains 22 job classi- fications, including one marked "laborers" and one marked "clean-up office." Jackson's name appears under the "clean-up office" classification, with the job of 'janitor."' 7 The only other employee listed in the "clean-up office" classification is Moran, whose job appears as "porter." Additionally, the chart shows that Jackson had not been replaced as of November 22, 1976, even though the same chart shows that Re- spondent had hired 16 more laborers than it needed to replace those laborers who had participated in the strike. Under these circumstances, I am unable to conclude, as my colleagues apparently do, that Jack- son should be included within the "laborer" classifi- cation. Thus it is clear that Jackson was not in the "la- borer" classification and it is therefore undisputed that no replacement for Jackson was ever hired by Respondent, inasmuch as all replacements were hired as laborers and were so classified by Respondent. Ac- cordingly, I must conclude that, as Respondent never replaced Jackson, and failed to carry its burden to show that it had legitimate and substantial business justification for failing to reinstate him, Respondent has failed to rebut the prima facie case established by the General Counsel. Thus, it is apparent to me that my colleagues have misconceived the nature of the pleadings, the evi- dence, and the respective burdens of proof herein. The violation is clear, and I would affirm the Admin- istrative Law Judge's finding that Respondent vio- lated Section 8(a)(3) and (1) by refusing to reinstate Prince Jackson, Jr. 1 My colleagues' assertion that Jackson's job classification is listed on Respondent's seniority list as "janitor" is incorrect An examination of the seniority list reveals that Jackson's job classification was "clean-up office." while his position inside that classfi(ation was "janitor." APPENDIX NOTICE TO EMPI.OYEF.S POSTED BY ORDER OF T-IE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain collectively through representa- tives of their own choosing To engage in concerted activity for the pur- poses of collective bargaining or other mutual aid or protection To refrain from any and all such activities. WE WILL NoI discriminate against our em- ployees because of their activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT require our striking employees to execute any form or document containing a time limitation on their right to reinstatement as a condition to their right to reinstatement to their former jobs or positions. WE WILL NOT require striking employees to ex- ecute any document, or otherwise alter the hire or tenure of employment or conditions of em- ployment of our employees without notice to and consultation with United Steelworkers of Amer- ica, AFL-CIO, as their collective-bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights guaranteed them in Section 7 of the Act. ATLANTIC CR()OSO()IN(; COMPANY, IN(C. DECISION SIA1IMENI OIF 1HE CASE ROBERT CoolN, Administrative Law Judge: This proceed- ing, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act). was heard at Savannah. Georgia, on May 4 6. 1977, pursuant to due notice. The principal issues to be resolved relate to the fail- ure of Atlantic Creosoting Company, Inc. (herein the Com- pany or Respondent). to promptly reinstate certain strikers bollowing an economic strike called by their bargaining rep- resentative. United Steelworkers of America, AFL-CIO (herein the Union). Also involved are allegations of certain unilateral conduct engaged in by Respondent without con- sultation with the Union. which allegedly constitutes viola- tions of Section 8(a)(5) and (I) of the Act.' Following the hearing, helpful posthearing briefs were filed by counsel for the General Counsel and by counsel for Respondent. which have been fully considered. Upon the entire record in the case, including my observa- tion of the demeanor of the witnesses, I make the following: I The original charge was filed November 29. 1976: the complaint issued on March 16, 1977. 196 A I ANI- I (REOSOlINiG (COMPANY. INC. I-l\ l)l(;S ,\) ('IIX(I SIt)NS Il. I (IDt\1\ I I ( ) t R I tR t'R\( 1( IS A. 7he F't~ i At all times material herein. the Respondent has been engaged in the business of manutfcture and sale of pres- sure-preserved lorest products on large tract of land near Savannah. Georgia. For a substantial number of years prior to the events here in question. the Respondent has been in contractual relations with the Union as representative of its production eniployees: the last contract prior to the strike herein extended from September 1973 until September 2. 1976.1 Prior to the expiration of the aforesaid contract. the parties engaged in collective-bargaining negotiations but were unable to reach an agreement. whereupon the Union called a strike which commenced on October . Substan- tially all of the emplo)ees in the bargaining unit (whlich numbered approximately 63) went out on strike: there is no contention that the strike was other than economic in char- acter. The parties continued to negotiate following the strike but remained unsuccessful in reaching an agreement. Within several weeks following the October 29 meeting be- tween the parties, at which time a Federal nediator w.as unsuccessful in resolving the dispute between them, the (Company reached a decision to commence hiring replace- ments fr the strikers.4 To implement this decision. the Company secured a hiring hall in downtown Savannah and placed an advertisement in the local new spaper which ap- peared on Wednesday and Thursday. November 17 and 18.' The Company interviewed and hired approximately 8() applicants on those 2 days. and then closed the hiring hall. Also, the Company bused the replacements from Sava;nnah to its plant some 8 miles away on Thursday and Friday. November 18 and 19. as well as on Mondal. November 22. and for some period of time thereafter. 2 There is no issue as to the Board'sjurisdiclion or the status of the Charg- ing Union as a labor organizatiln. The complaint alleges sufficienl facts respecting direct utflow of gooids from the State of Georgia. which are admitted by answer, and upon which I may. and do hereh,. find that the Respondent is engaged in commerce within the meaning of Sec. 26) and (71 of the Act. It is a l alleged. and admitted. that the L nmon is a labor organi- zation within the meaning of Section 2(5) of the ct. All dales hereinafter refer to the calendar year 1976. unless otherwise indicated. 4 Prior to this point. the Comrany had made no determined eflrt to hire replacements. It had remained in operation through the work of super isors and a few strikers who had drifted back to work. The record also shows that the Company had shifled some of its production to another location in Geor- gia. The advertisement read as follows: JOBS A 11It lN I Immediate emplosment with local manufacturing firm. Appli at 32 Bull Street hiring office at corner of' Bull and Congress. 9:00 AM to 5 PM weekdays Telephone Number 233 5217. General Mechanics Diesel Electric Crane Operators Operators for large fork lilts Laborers Other Positions Meanwhile, on the afternoon of Wednesday, November 17. Union Representative Buckley telephoned Compans Attorney Lanquist and advised him that the Union wanted a meeting for the purpose of reaching it contract and eniding the strike. Lanquist responded that there was no need to meet unless the Union was willing to alter its position sig- nificantly. Buckley reiterated that the Union was inlerested in getting a contract and ending the sItike. and tha it would he willing to take such measures as would accom- plish such end. The parties met on the afternoon of Fridav. November 19. and reached an agreement based upon the Compan,'s last offer. Buckley' asked Lanquist when he wanted the strikers to report to work, and l.anquist responded that he did not know what the Company wanted to, do about the strikers- he presumed that the (onmpan) ,ouldl be willing to accord the strikers whate er rights are pro\lided them under the law. The tollowing day. the union committee no- tified the strikers that the strike had been ailled ffl and the picket signs would cotle dlon, and told all of them to re- port for work the following Monday. B. 7ie Reini,tat'tctl rS',, liAers At approximatels 7:30 a.m. (starting time). (on MIondai. November 22. substantiall all the strikers (except for the few who had previously returned to work) reported at the Compan 's gate. They were advised h ait compan guard that none of them were allowed to come in until a repre- sentative of the CompanN's management came down to speak with them. Shortly thereafter. Assistant Plant Mal- ager Cliett appeared with another Cormpany representatie and spoke to the strikers who remained outside the gate. Cliett brought with hinm some forms and advised the strikers that they were required to complete such fornls so that the Company would h;ae the names and addresses for the pur- pose of knowilng how to contact them to come back to work.? The strikers' spokesman a Mr. England was re- luctant to have the strikers sign ansthing. at least until it was learned how many would return to work. Therefore Cliett contacted the plant manager and subsequentl gave England the names of seven employees whom Respondent ' The form states as follows: I herehy appl 5 tor reinslaltement to my tormer posimin wth itlanic Creosoling (ompan. Port Wen\A orth. Georgia I ill will nt (check ne) accept anolher position with Ihe ( ,nlrp. l1 if it is offered to me. (I understand that it could be .ia . er pri sig job than the one I had belfre I I can he contacled at the Iull,, ing a.ddress Street (it. State. Zip (ide telephone Number, Signed It s understd tha; this application ill be consi dered is curren tor a period of thirty (301 days. 197 I)('ISIONS ()1: NA I'()NAI. IABOR RIi .ATIONS B()ARI) wished to return to work imnliediatel: howeer. that nunin- her was all that the ('ormpan ' was prepared to reinstate itl that time. he strikers refused to sign thie illrm until thex could meet with [inion Respreseriilatise Buckle . At such meeting the strikers ere apparently advised to sign the fori. aiind they subsequentl did so.' The ('ompany's polics was not to reinstate an)l striker who had not filled out the fiorn. TIhe ('omlpan did not hire any replacements subsequent to Novembher 18. toweser. Plant M;lanager Steyaart testi- fied that the ('ompan received more applications dlurinig the 2-day hiring period (November 17 and 18) than the expected. arid that the) hired approximately 18 more em- ployees (laborers) than the ompany had positions lor. This was one. according to Steyaart. because thes ex- pected some of the newc employees to quit, not be able to perform the work, or lease because of the existing strike situation. Steaart ifurther testified that the ('ompan ein- ploed all striker replacemlents i the general caetegors ofl "laborei .- and roml this general caltegor the ('ollpall would select those that thes elt were qualified or rainable to perfoirm tiasks requiring greater skills. The record is undlisputed that arin time that ;a striker e- placement has left the (onilpais's emplo merit since No- vember 19 for an reason, the openling is filled 'rom the list of strikers. It is the ('ompa;n's polico that if there arlc sev- eral strikers ithin a particular categors whonl the ('orn- pan) seeks to reinstalte and the ('ompanv needs onl onile such emploee. the mnlst senior miain is selected (assuning equal pertorlrlltancc). Stecaart i'irther testified that there had been onl to strikers wIl, had retutiled to work at jobs palsirig a loer wage rate thani tIheir rmle jobhs (Jailes I-oster alid Robbie Jones). All the other strikers returned to their exact liornicr position uhcll tilhe\ \Cr C\venlltu;ll recalled bh, the ('o11- pan All oip;ians oici;lls inlveid i the recruitinelit ot rc- placements tor the strikers on Novemer r 17 ald 18X testified that the applicants ere told that the jb io ' which thce were applying wIs a pcIIrnanenit not a teilpora Prosi- tion. lowever, the onls strike replacement to tstil; a tlhe hearing w;as called ais a witness hb the (icera; l (ouLiscel arid was not interog;lated specificall as to what hie was told i? managemenllt reprleseltaltics t the tliTle he applied tor and was hired to slrk lfr the ('olllpan. Sometimie during Mlarch 1977. the plant malinaer distrih- uted a forin among the striker replacements then working for the (orlpany which stated as fillows: 1. . make the fillowing statement reel' and \sol- Untarilv. When I ;as hired C h Atlantic ('reosoting ('orlpai' I Uwa told that I ias hbeing hired as a permiianent em- pl)elc. At ito time has anvline told nle that I was lot a permianent employee anld nothinl has happened which 7 See testlrliiy so tingland h sled iIIha f e.l to the (rlllpian? ind signed the ,ornm ii i tller dale alter he rumnd uit , it te Iri was ari d was advised to sIgni ii Al the i me if the hearing . sa hsubstantial nnher rof striker hd heen recelied hs the ( nlpailn. bthi the rec ri des n ot relectl the exalt iinmbher would make me heliese I was not a permanent em- pl, ee. Signature Witnesses: Steaart testified that he distributed forms to about two- thirds ot' the new hires, that he read the ft'rm in its entiretv and told them that it was a purely voluntary matter, and that none of them refused to sign it. Also on or about March 17. 1977, the ('ompany sent the following better to all strikers who had either not been re- called or had not kept their applications "current": March 17. 1977 We note that ' 1ou do not hase a current application tor reassignment to Sour Iformer (or some other) position , ith Alantic ('reosoting ('onipans:. In order for us to keep our records up to date. we would ask that you complete the attached question- naire alid return it to us in the envelope which we have enclosed lt r otul r t COnVeicllCe. 9 Yours truls. A''Il AN ' (RI ()SOIINCG CO.. IN('. J. L. Steaart Plant Manager ('. l1t,[ i alnd ( l /inting / 'ndolng' It is ell settled that Ioll(oing a strike economic strikers Who hIvde milde all uLncsinditionl;l oftter to return to work are enlithi'd to their old jobhs unless. prior to such ofler. they ha'ec been piimeilntl replaced h) their enployer. Al- thoughl nither I the I nion nor the indi`idual strikers in this ca e nlade an 1lrlcollditionail oller in haclc rerha, Plant Man- acer Steaiari- testilied that tc execution b the strikers otf the orm set orth abose (i. ('. xh. 2) constituted for the ('ompan the unconditiotnal offer to return to work. A criti- cal question t be rsoled. therefre. is hether the re- placements hired h the (ormpant on Nosremher 17 and 18 cr ere "pernlaient replacements" so as tol thwvart the strikers' rieht at that time to their old jobs. A,s presiousl noted. all of the testilnonl of Respondent's w itnesses ho were involved in the hiring of the striker replacements stated that such replacements were told at that time that the jobs for which thes were being hired were peCrllanlellt alId not temporary. I he one striker replace- mcrit called is a witness bs the Cieneral Counsel did not confirim this testinmonIl, but neither did he testift that he was told tlHait the joh was temporary. Although the circum- stalices are rendered so mewh;lt suspicious hb Respondents ' lhr atta.hced queslirlnnaire requesied the striker t indir;ale hether he was still iterested in returning to, olrk fir the (onmpan and poided thai if hle ; as still inlcresled. he requested Ihe ( omrpa ln It cnsider his applicalion as current orit anolher 60 da,s the qestlrnllnairre als asked the striker o irdi;lte I etlhecl tle ihad r haid nt ohbtained ther emplosnirent 198 ATLANTIC CREOSOTING COMPANY. INC. conduct in March, when a fo:m was circulated among the striker replacements to confirm the permanency of their jobs, I find, after a consideration of all the evidence in the record, that Respondent's intent was to hire striker replace- ments who would permanently replace the employees on strike. The principal contention of the General Counsel on this point appears to be that the replacements should not be considered permanent because they were hastily hired and were placed on the job without inquiry as to their experi- ence and/or character: i.e., their references w'ere not checked, nor were they given a physical examination as had been the practice in the past. However. these factors do not appear to detract from the issue of the permanency of the replacements. As the Board said in HIot Shopper, In(c., 146 NLRB 802, 804 (1964): There is no evidence that special skills or experience were a prerequisite to being hired as a handler or helper in the transportation department. And under established Board precedent the fact that the replace- ments lacked experience and required some training, and that some did not remain permanently in Respon- dent's employ, does not detract from Respondent's in- tent at the time of hiring that the replacements become the permanent replacements of the strikers [citing 4n- derson Clayton & Co. Foods Division. 120 NLRB 1208. 1214]. Although some of the job classifications in the instant case required some degree of training and experience, most were unskilled or semiskilled jobs which could be learned with a matter of a few days' training. Under such circum- stances, I am of the view that this issue is controlled by the above-cited precedents and that the striker replacements hired by Respondent on November 17 and 18 were perma- nent replacements, so as to thwart the right of the strikers to their jobs upon their unconditional offers to return to work on or about November 22. In his brief. counsel for the General Counsel argues that Respondent was acting pursuant to an unlawful plan to defeat the strikers' right to immediate reinstatement. How- ever, I find a lack of substantial evidence in the record to support such contention. Thus, it is unrefuted that Respon- dent embarked upon the decision to replace the strikers. leased the hiring hall, advertised for replacements. and commenced hiring-all before Buckley telephoned Lan- quist on the afternoon of November 17 to request a meeting to negotiate a contract and end the strike. Indeed. the infer- ence might as easily be drawn the other way: i.e., that the Union learned of Respondent's preparations to hire re- placements and then made the telephone call. However, it would appear that some of the conditions imposed by Respondent upon the strikers ran afoul of the principles laid down by the Board in the Laidl/a case.'0 Thus Laidlaw teaches that economic strikers who have been permanently replaced remain employees and are entitled to full reinstatement upon the departure of the replacements. I0 The Laidlaw Corporation, 171 NIRB 1366(1968), enfd 414 F.2d 99 17th Cir. 1969), cert. denied 397 Ut.S. 920. unless they have in the meantime acquired regular and sub- stantially equivalent employment. In Brooks Research Manul/rcturing, Inc., 202 NLRB 634, 636 (1973), the Board rejected the contention that a time limitation could legiti- mately be placed upon the reinstatement rights of economic strikers. Here, the inclusion of the 30-day currency limita- tion would seem to run counter to the Board's rule as pre- scribed in Brooks, and it therefore constituted interference. restraint, and coercion of employees' rights in violation of Section 8(a)( ) of the Act. Moreover. it would seem that requiring strikers to com- plete the form before they would be considered hb Respon- dent as making an unconditional offer to return to work should be considered violative of that Section. That is to say, it seems clear from the totality of the evidence that the Union and the strikers intended, tollouing the consumma- tion of the collective-bargaining agreement on November 19. that the strikers would apply for their old jobs as soon as possible and they did so on the morning of November 22. There is certainly no evidence that Respondent considered that there were any conditions attached to their offer to return to work.' Accordingly. for Respondent to impose a condition that the employees fill out a tfrm as a condition precedent to being considered as having made an uncondi- tional offer to return to work constitutes an unlawful inter- ference with the strikers' rights.'l However, contrary to the contention of counsel for the General Counsel. I find no authority which would prohibit the Respondent from inquiring whether a striker would ac- cept another position with the Company if it was offered (with the understanding that it could be a lower pa`ing job than the one he had before). The testimony in this case is consistent that the employees understood that should they accept such lesser position, it would be temporary pending an opening in their ormer position.' l In any event, the rec- ord shows that only two strikers (James Foster and Robbie Jones) have returned to lower paying jobs, and there is no evidence that Respondent has otherwise deviated from the requirements of' Latll . That is to say, the Respondent has hired no striker replacements since November 19 and has filled all positions in the unit b recalling strikers when striker replacements leave Respondent's emplo. In sum, I find and conclude that the Respondent law fulls replaced the economic strikers prior to their making an un- conditional offer to return to work. However. the Respon- dent imposed certain unlawful conditions respecting their application, and admittedly did not consult with the Uliion 11 (liet teslified that he assumed from the fcl that the trikers appeared at the gate. that the weere to come hack to work T2 hat is not to saN that Respondent ma\ not have legillmatelt requested the strikers Io ill out firms containing current ntormatlon respecting their addresses and telephone numbers for purpose of facilitating uture contact (Cf Elsing anuljcturing Co . 209 NLtRB 1089 (1974) sev er. it i e ident that Respondent went much further than that in this case t See testimon? of Rohhie Jones and Daniel Pov ell Cf. Elslg rtanufiw- luring (, suprra at 1102, where the Administraiise L.aw Judge tated The benefit nrmall derlsed h an emploee Im agreeing io accept another jobh is a greater assurance orf hlaining reintrstellnenl irid a speedier return to iork 199 I)0E(ISIONS 01 NATIONAL. LABOR RELATIONS BOARD) concerning such conduct. in violation of Section 8(a) ). (3). and (5) of' the Act.'" Finally. the record presents an issue lr resolution pecu- liar to one striker. Prince Jackson. Jr. Jackson was one of the two employees assigned to the "clean-up office" classifi- cation prior to the strike. Plant Manager Steyaart testified that the reason Jackson has not been reinstated is that the Company discovered, during the strike, that the other man. Abraham Moran, was able to do both jobs (cleaning up the office, raking the leaves. mowing the grass. etc.). Steyaart further testified that if' the employees had not gone on strike. both men would probably still be working for the Company. In Lo. Angeles Chenictl Coniian.', 204 NLRB 245 (1973). the Board held that a striker (Patino) was enti- tled to reinstatement since there was no evidence showing that his job "would have been terminated if he had not gone out on strike . .. [and] . . . the record shows the reorganization was based primarily on considerations re- sulting from the strike." I therefore find and conclude that Jackson was entitled to reinstatement as of November 22. Upon the basis of' the foregoing findings of fact, and upon the entire record in the case. I make the following: CONCLUSIONO 01 LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully refusing to reinstate its employee. Prince Jackson. Jr., as found herein. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 4. By conditioning reinstatement of strikers upon their execution of' a work application form, and by placing a time limitation upon their application, in the manner aforesaid Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 5. By engaging in the aforesaid acts and conduct without notice to or consultation with the Union as their strikers collective-bargaining representative. Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (I ) of the Act. TlE REMmIl)Y Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully failing and refusing to reinstate Prince Jackson, Jr.. I will recommend that Re- spondent immediately offer him full reinstatment to his for- 4 It is alleged in the complaint, and the General Counsel contends, that the form distributed bhy the Respondent to the strikers on November 22 constituted an 'employment application." I disagree. It differs substantially from the regular employ ment applications utilized by Respondent (see G. C. Exhs 8 and 10) which contain various questions relating to the applicant's marital status, physical history, criminal record education. past experience or training. etc. None of these questions which are normally contained in employment applications appear in the form distributed by Respondent on November 22. mrer position or, if that position no longer exists, to a sub- stantially equivalent position. without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits suffered because of Respondent's discrimination against him. His loss of earnings shall he computed as prescribed in F. W. Woolwori C'ompanlltv. 90 NLRB 289 (1950)., plus interest as set forth in lI.is Plumbing Hllealing C(o. 138 NLRB 716 (1962). and Floritda Steel Corporation. 231 NLRB 651 ( 1977).1 Upon the foregoing findings of fact, conclusions of law. and the entire record in the case, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER'6 The Respondent. Atlantic Creosoting Company. Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discriminating in regard to the hire or tenure of em- ployment or any term or condition of 'employment in order to discourage membership in United Steelworkers of Amer- ica, AFL-CIO. or any other labor organization. (b) Unilaterally requiring striking employees to execute forms or documents containing time limitations upon their application for reinstatement as a condition of their making application for reinstatement to their former jobs or posi- tions. (c) Engaging in the conduct described in subparagraph (b) above, without notice to or consultation with the above- named Union. (d) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of self- organization, to form, join. or assist United Steelworkers of America. AFL-CIO. or any other labor organization, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action which is de- signed to effectuate the policies of the Act: (a) Offer to Prince Jackson. Jr.. immediate reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed. and make him whole for any loss of pay he may have suf- fered by reason of the discrimination against him, in the manner described in "The Remedy" section of this deci- sion. (b) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all pay- 15 In accordance with the Board's decision in Florida Steel Corporatrion. supru, the current 7 percent rate of' interest still applies for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax pay ments 'was at least 7 percent. See Warren L. Rose Casing. Inc. d/h/a V & W Castings 231 NLRB 912 fn. 10(1977). 16 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. 200 ATLANTIC CREOSOTING COMPANY, INC. roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary and relevant to analyze the amount of backpay due and the rights of employment under the terms of this rec- ommended order. (c) Post at its Savannah, Georgia, plant copies of the notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 10. 1" In the event that this Order is enforced by a 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found in this Decision. 201