Valmac Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valmac Industries, Inc. and Food Handlers Local #425, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 26- CA-5235 April 27, 1977 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On April 29, 1975, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding in which it adopted Administra- tive Law Judge Sidney D. Goldberg's findings that Respondent discharged employee Brenda Biffle in violation of Section 8(a)(l) of the Act and ordered, inter alia, that Respondent offer to Brenda Biffle immediate and full reinstatement to her former position or, if that position no longer existed, to a position substantially equivalent to that which she held on and immediately prior to July 9, 1974, and to make her whole for any losses of earnings she may have suffered. Thereafter, the Circuit Court of the United States for the Eighth Circuit enforced the Board's Order. 2 On June 28, 1976, Respondent filed a Petition for Reconsideration of Order, moving that the Board modify its Order with respect to requiring Respondent to reinstate Biffle to her former position or, in the alternative, that the Board direct a hearing in this matter for the purpose of adducing additional evidence. On July 6, 1976, the General Counsel filed an opposition to the petition. On September 3, 1976, the Board issued a notice to show cause why Respondent's petition should not be granted, and, on September 20, 1976, the General Counsel filed a response to the Notice To Show Cause. Thereafter, on October 27, 1976, the Board granted Respondent's petition for reconsideration of Order and ordered that a hearing be held before a duly designated Administrative Law Judge for the purpose of receiving evidence to resolve the issues raised therein. Pursuant thereto, a supplemental hearing was held and, on December 30, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief, a brief in answer to Respondent's exceptions, and a motion to strike portions of Respondent's brief.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 229 NLRB No. 54 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,4 and conclusions of the Administrative Law Judge, and to reaffirm our original Order in this proceeding. s ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby affirms its Order in this proceeding and hereby orders that the Respondent, Valmac Industries, Inc., Dardanelle, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Board's original Order in this proceeding, issued on April 29, 1975. 1 217 NLRB 580. 2 533 F.2d 1075 (1976). 3 The General Counsel's motion to strike portions of Respondent's bnef is hereby denied as lacking in merit. 4 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. The Administrative Law Judge found that discriminatee Biffle placed two personal checks in the petty cash box in the week prior to her discharge on July 9, 1974, whereas Biffe testified without contradiction that she placed the checks in the petty cash box in March and June 1974, respectively. We find, however, that this error is insufficient to warrant a different result herein. 5 In his Decision, the Administrative Law Judge found, and we agree, that from the time the Board issued its Order requiring Respondent to offer to Brenda Bifle reinstatement to her former position or, if it no longer existed, to a substantially equivalent position, to the time of the supplemen- tal hearing, Bife's former position was in existence. The Administrative Law Judge also found, and we agree, that inasmuch as Biffle's former position existed during this penod, Respondent was obligated to offer her reinstatement to that position as required by the Board's Order. In the Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 (1946). In reaffirming our prior Order, we hereby shall require Respondent to offer to Brenda Bime reinstatement to her former position as long as such former position exists, but in the event such former position no longer exists, to a substantially equivalent position. DECISION Posture of the Case THOMAS A. RiCCi, Administrative Law Judge: A hearing in this proceeding was held at Russellville, Arkansas, on November 30, 1976, pursuant to an order of the Board issued on October 27, 1976. In its Decision and Order dated April 29, 1975 (217 NLRB 76), the Board found that in July 1974 Valmac Industries, Inc., the Respondent, unlawfully discharged Brenda Biffle, in violation of Section 8(a)(3) of the Act, and ordered it to reinstate her to the job she had held, or to a substantially equivalent position. The Board's finding and order were enforced by the United States Court of Appeals for the Eight Circuit, in May 1976. When discharged, Biffle was an office clerical employee in 310 VALMAC INDUSTRIES, INC. the Respondent's Dardanelle, Arkansas, plant, where she had worked for 5 years. In May 1976, a few days after the circuit court order, the Respondent offered Biffle work in a clerical position at its Morrillton, Arkansas, plant; this is approximately 35 miles distant from the Dardanelle plant. Biffle rejected the offer because it was neither the position which she had been illegally deprived of, nor its substantial equivalent. With this, the Respondent, on June 28, 1976, filed a "Petition for Reconsideration of Board Order," requesting that the Board find, on the basis of facts the Respondent was prepared to show, that the clerical job at Morrillton was substantially equivalent to the one Biffie had lost at Dardanelle, and that such offer satisfied the reinstatement order of the Board in the unfair labor practice case. Over the General Counsel's objections the Board directed this hearing to receive evidence of the purpose of resolving "the issues raised." The Respondent's contentions In its motion to the Board the Respondent justified its offer to Biffle of a job at Morrillton solely on the ground that she could not be trusted with the petty cash; her old job in Dardanelle meant access to the petty cash, while the one at the other plant did not. Although stopping short of calling Biffle a thief, the Respondent asserts she unlawfully took money out of the cash box while on the job, and was therefore obligated to accept what was offered at Morrill- ton in May 1976. This is the issue on which the Board ordered a hearing. At the hearing the Respondent came forth with a second reason why, despite the Board order, it did not have to offer Biffle her old job at Dardanelle. It now says that job no longer exists and that therefore there is no way of using Biffle there at all. Facts: Conclusion Neither of the reasons now advanced by the Respondent for not reinstating Biffle to her job, as ordered by the Board, is sufficient. In the circumstances as shown, the job offered at Morrillton is not the substantial equivalent of the old one, Biffle had a right to refuse it, and the Respon- dent's liability to make her whole for loss of earnings is still running and will continue to run until it adequately complies with the Board's remedial order. The applicable rule of law in this situation is not that which applies to unfair labor practice proceedings, where the affirmative burden of proof rests upon the General Counsel. Where compliance is concerned, the wrongdoer who seeks to avoid or lessen its obligation has the burden of proving it has in fact met the remedial requirement. N.LR.B. v. Brown and Root, Inc., et al., 311 F.2d 447 (C.A. 8, 1963). When discharged in July 1974 Biffle worked in an office with two other women; all three were office clericals who made and kept records, filed papers, did typing, etc. Biffie also answered the phone and acted as receptionist at her desk. When she was fired the Respondent took Peggy Tapp, an employee then doing production work, and made her a clerical in Biffle's place. Tapp learned to do what Biffle used to do and was still doing it when this hearing took place. In the intervening 2 years a different method of recording production, deliveries, quantities received and shipped, was evolved. Besides the three clerical employees in the office where Tapp now works, the Respondent has about 20 more clericals, in various departments here and there. The total complement of employees in Dardanelle is over 600. No doubt the changed system of keeping records was reflected in the work of other clericals also, and as office clericals always do, they too like Tapp, did what they were told to do and learned whatever clerical duties were necessary. The idea that the work Tapp now does is not pure office clerical work as it always was at that desk is an obvious afterthought. When offering Biffie the job 35 miles away, Dunaway, the director of industrial relations, said nothing about that. When the Respondent filed its motion to convince the Board the Morrillton job is the equivalent of the one at Dardanelle, it again said nothing about Biffle's old work no longer existing in the old plant. Since the Respondent had no reason to advance this assertion in the past in justification for not complying with the Board's order, it is not surprising that the record here contains no evidence to support it now. At the outset of his testimony Dunaway had to be lead by company counsel before he said Biffle had been "primarily" a telephone receptionist. It is not true. Biffle explained, and no one contradicted her, that among the things she did were: (I) keep records of the number of chickens killed, (2) calculate "condemned pounds," "how many heads," "how much weight" each supplier supplied, (3) checked, corrected, and made copies of bills of lading, (4) added totals and reconciled the final figures, (5) typed stencils, and (6) "did any typing or small jobs that ... the plant manager or anybody . . . needed .... " After 5 years on the job she certainly could learn any new system of recording. Two company witnesses were called to prove Biffle's old job had changed so drastically it can no longer be considered the same. Leona West, one of the three girls in that office, said the reports had "changed some, but it's basically on the same pattern .... " She added that "maybe the weights and prices per pound and things like that have changed." Tapp, who now holds Biffle's job, said "The daily condemnation report . . . is a little different form now than what it was at the time," and "the shrinkage report was a shorter form than what it is now." These are the office girls talking about the clerical work that goes on. There is nothing of significance in the fact forms get longer or shorter, prices go up or down, and reports may be "a little different." The industrial relations director added nothing of substance by his conclusionary phrases that the job has "changed rather substantially," that this "we have to expect," that for all practical purposes "the old job doesn't exist today," the "job duties have changed very drastically . . . the job has gone through a metamorpho- sis." I find Dunaway's testimony on this point worthless, as, indeed, I discredit him entirely because he lied outright on a more significant question at the hearing. 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has for years been a practice, and it is still a practice today, for the girls in the office who need it, to borrow money from the petty cash and place there a personal IOU, or a check payable to the Company. They replace the chit later, but more frequently do so when on a later payday they have the money. Without belaboring the matter, Tapp, who has occupied Biffle's job since 1974, said that she had done so herself. More significant, Scott, the office girl who is more in charge of the petty cash than anyone else, said she did it before Biffle left and she has been doing it since. Dunaway's direct testimony that there is an absolute rule against any employee doing that, is just plain false. During the last week before her discharge Biffle had placed two checks in the petty cash box for a total of $48 for money she had borrowed. With knowledge that she was the next day going to be discharged for refusing to do struck work, on the last day in the office she removed her checks because she knew she would not have sufficient income to make them good on time. The next day, Scott, on checking the petty cash box, noticed the apparent shortage (she had seen Biffle's checks earlier), and advised the manager. The manager said nothing about it. The next day, Friday, Biffle came to the plant for her paycheck. She spoke to Scott, told her about having removed her checks, and said that as soon as she started to receive unemploy- ment benefits, she would come in and make the checks good. Again Scott so advised the manager, who again made no comment whatever. Biffle never did succeed in receiving unemployment payments until late in September or the beginning of October. As soon as she did, she came back to the plant and paid the $48 she owed to Scott. It is the fact of Biffle having removed those personal checks from the cash box when she was fired that Industrial Relations Director Dunaway said at the hearing showed a lack of "self control," or "self discipline," such as to justify now keeping her far away from the cash box and placing her 35 miles distant at the Morrillton plant instead. I find no merit in the contention. It is a gross exaggeration by the Respondent now belatedly to characterize what happened with those checks as a form of theft by the employee. The plant manager thought nothing of it when he learned about it 2 years ago. When Dunaway advised Biffle in May 1976 that there was no job for her at Dardanelle and that she therefore would have to go far away to Morrillton, he made no mention about this check business at all. Of necessity it follows that the entire incident was always deemed no more than normal, accepted activity, that is up until the moment the employee rejected the distant offer and a reason had to be found in the attempt to justify it. The truth of the matter is that when Biffle left she owed the Company $48. She made no attempt to conceal it; in fact, she took it upon of herself to be sure the Company's records were straight, and that they knew she owned the money. She voluntarily offered to repay it. Never, from that day until 2 years later, was either any step taken to recover the money, nor indeed any request made upon her. Moreover, justice requires that this be said also. If she was not able to repay the loan in July 1974, it was because the Employer wrongfully deprived her of her employment. The system was, as the Respondent's witnesses themselves said, that the employees normally made good what they borrowed out of their later salary. But it was the Respondent which made it impossible for Biffle to make good her promissory note, as it were, as she had always done. Further, however justified the Employer may have been to argue its innocence with respect to the discharge, it is still a fact that the unemployment benefits to the woman were delayed 2 months only because the Respondent went out of its way to attempt to prevent her from obtaining it. In the circumstances, now to call her a thief because she found herself in financial straights purely as the result of the Respondent's violation of law, will not do as a devious technique for avoiding the compelled compliance with the Board's order. There is another reason why the offer made to Biffle to go to such a distant plant is not what the Board means by straight reinstatement or "substantial equivalent." Restora- tion of the status quo means, of course, undoing the damage inflicted upon the individual victim of an employ- er's misconduct. It means more than that, however. Every unlawful discharge under this statute has a coercive effect upon all employees where the employee works. This woman was punished for engaging in protected activities at Dardanelle, where other employees of necessity knew what had happened. The status quo to be restored includes the assured state of mind of other employees in the shop. To relegate Biffle to a distant plant so many miles away, does not give the necessary assurance to the other Dardanelle employees that they may, with protection of law, carry on the concerted activities guaranteed by the statute. I find that Biffie was not obligated under the Board's order to accept the Morrillton job, and that that job did not constitute reinstatement or its substantial equivalent as called for by the Board's order. The Respondent hired four clerical employees during 1975, and two others during 1976. It could easily have taken Biffle back, as was its duty. It chose not to do so. With as many as 20 office clerical employees throughout the plant, there are many ways in which the Respondent can comply with the order. How it does so is its responsibility and neither that of the General Counsel nor of Biffme. 312