Trident Seafoods Corp.

TRIDENT SEAFOODS CORP 25 Trident Seafoods Corporation and Charles M. Davis. Case 19-CA-10832 9 April 1985. SUPPLEMENTAL DECISION AND ORDER, By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 12 August 1982 Administrative Law Judge Russell L. Stevens issued the attached supplemental- decision. The Respondent filed exceptions and a supporting- brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Supplemental Decision and Order. This matter is before the Board as a compliance proceeding. In the underlying unfair labor practice case' (Trident 1), the Board found that the Re- spondent violated Section 8(a)(1) of the Act on 5 October 1978 by discharging 12 of its employees who were engaged in a lawful economic strike. Specifically, each employee involved was given a "notice of separation," which stated as the reason for discharge "terminated for refusal to work be- cause of existing pay scale," and noted that the em- ployee was "not eligible" for rehire. The Board found that following their termination the employ- ees were unfair labor practice strikers until 20 Oc- tober 1978, when they received letters from the Respondent 'informing them that.' their discharge notices. had been mistakenly sent and that the Re- spondent spondent would accord 'to them all the rights of strikers under the Act. Citing Abilities'& Goodwill,? the Board held,. that.the discharged strikers were entitled to back' ay from the date of their discharge until the, date they were offered reinstatement. In response to the Respondent's contention that an offer of reinstatement would have been futile, and therefore the employees were not entitled to back- pay, the Board also stated that, at the compliance stage, the Respondent could question each striker as to whether he or she would have agreed to con- tinue working or to return to work had the Re- spondent's notice of separation merely stated that the employees were on strike and remained eligible' 1 244 NLRB 566 (1979), enfd 642 F 2d 1148 (9th Cir 1981) 2 241 NLRB 27 (1979), enf denied on other grounds 612 F 2d 6 (1st Cir 1979) for rehire.3 That, issue is the subject of this, pro- ceeding.4 The judge found that it was not reasonably pos- sible to determine whether the employees would. have acted -'differently had-the termination slips been marked "eligible for rehire," and that the six employees who testified spoke in an equivocal, un- certain manner. The judge also found that their tes-' tiniony, and the parties' stipulation regarding seven other employees who were not called to testify, did not reveal whether the employees would have been willing to return to work had they received uncon- ditional offers of reinstatement, and therefore the Respondent did not meet its burden under Abilities & Goodwill of-showing that such offers would have been futile. The Respondent contends that the testimony and stipulation show that the employees would not have returned to work even if 'they had been ac- corded -the rights of strikers from the start. The Respondent asserts that it, met its burden of show- ing that the employees would not have been avail- able to work even ' if their termination slips had read I "eligible for rehire," and therefore they are not entitled to backpay for that period of time. We agree. ' The six employees who testified at the hearing and whose relevant testimony is set forth in the judge's decision all indicated that they would not have. abandoned their strike had their separation notices been marked eligible for rehire rather than not. eligible for, rehire. Employee Jeys acknowl- edged she realized that the Company, would have allowed her to return to work even after terminat- ing her, but was not sure if she would have accept- ed the Respondent's offer of a slight 'increase in pay' to $4 an hour. Employees Roszell, ' .Steele, Hanson, Nickell, and Owen ' testified that they would have required more negotiation on' the Re- spondent's part before abandoning their strike. Similarly, the stipulation of facts ' as to the other employees shows that at the time they received their discharge notices they were not -willing to 3 At fn 2 of its decision enforcing. the Board's Order, the court of ap- peals noted that the Respondent would be permitted ,to pose this question at the compliance hearing 4 The General Counsel argues that under Abilities & Goodwill, supra, the Respondent had the burden 'of proving that the employees would have rejected an unconditional offer to return to work in ,order to cut.off its backpay liability While this is an accurate statement of the Respond- ent's burden of proof under Abilities & Goodwill, the law of the case per- mitted the Respondent to elicit ' answers to the question set out in Trident I as an affirmative defense We find it unnecessary-and, indeed, counter- productive-to determine at' this point whether the question framed by the-Board in Trident I, and approved by the Ninth Circuit Court of Ap- peals, was "erroneous," as characterized by our dissenting colleague Chairman Dotson does not pass on Abilities & Goodwill because the case turns solely on the question posed in Trident I which is the law of the case 275 NLRB No. 3 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandon their strike and accept the Respondent's offer, but "wanted to negotiate to explore the pos- sibility of a higher wage rate and for the possibility of changes in other conditions." Based on the record testimony and stipulation, we find that the Respondent met its burden of proof as set forth in Trident I by showing that these employees would not have returned to work had their separation notices read "eligible for rehire." We shall therefore dismiss the backpay specification. ORDER The backpay specification is dismissed. MEMBER DENNIS, dissenting. I would affirm the judge's finding that the dis- charged employees are entitled to backpay for the period from 5 October through 20 October 1978 because, in my view, the employees' testimony es- tablishes that they were uncertain as to how they would have acted had the termination slips been marked "eligible for rehire."' Two of the employ- ees spoke only in terms of what they "possibly" would have done; all six testified, as the judge found, in an equivocal, uncertain manner.2 Under Abilities & Goodwill, the burden of proof rests with the Respondent, and I would not reverse the judge's factual finding. 1 I agree that the backpay period began 5 October 1978, the date the strikers were discharged, because the United States Court of Appeals for the Ninth Circuit, in enforcing the Board's Order in the underlying case, adopted the Board's application of Abilities & Goodwill, 241 NLRB 27 (1979), enf denied on other grounds 612 F 2d 6 (1st Cir 1979), to the facts of this case I therefore apply Abilities & Goodwill as the law of the case 2 The Board in Trident I erroneously posed the question to be asked of the employees in terms of what they would have done had their notices of separation read differently, rather than in terms of their reaction to an unconditional offer of reinstatement The Trident I question is the law of the case, however SUPPLEMENTAL DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. On May 29, 1979, Administrative Law Judge Leonard N. Cohen issued his decision in the above-captioned case. On August 23, the National Labor Relations Board (the Board) affirmed the rulings, findings, and conclusions of Judge Cohen' and, inter alia, ordered that Trident Sea- foods Corporation (Respondent): (b) Make the employees named below whole for any loss of earnings they may have suffered by virtue of the discrimination against them in the manner set forth in the Board's Decision, including any costs for round trip air fare from Seattle, Wash- ington, to Dutch Harbor, Alaska, and for room and board while serving on Respondent's food process- ing vessel, which may have been charged to them: Debora Jeys Mike Steele No Van Tram [sic] Russel Carithers Clyde Owen Francis Richard Michael Conway Gary Gallagher Ken Hanson Michael Price Victor Roszell John Nickell On June 15, 1981, the United States Court of Appeals for the Ninth Circuit entered its judgment enforcing in full the backpay provision of the Board's Order. The Board's decision referred to above stated, inter alia: In Abilities & Goodwill, we held that a discharged striker is entitled to backpay from the date of dis- charge until the date he or she is offered reinstate- ment and, accordingly, we overruled the cases relied upon by the administrative law judge. Apply- ing the Abilities & Goodwill decision to the facts of this case we find, in accordance with the conten- tions of the General Counsel and the Charging Party, that the backpay period runs from October 5, 1978, the date of discharge, to October 20, 1978, the approximate date the employees received Respond- ent's letter rescinding their terminations. Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- est thereon in accordance with Florida Steel Corp., 231 NLRB 651 (1977).2 Controversy having arisen over Respondent's liability for backpay under the Board's Order herein, as enforced by the Court of Appeals for the Ninth Circuit, the Acting Regional Director of the Board's Region 19, on Septem- ber 30, 1981, issued a backpay specification and notice of hearing. The matter was heard by me in Seattle, Wash- ington, on June 17, 1982. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, to argue orally, and to submit written briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. On the entire record, and from my observation of the witnesses and their demeanor, I make the following find- ings of fact and conclusions of law. The Issue The only issue is whether or not the individuals named above would have returned to work for Respondent if their reinstatement had been offered. Respondent's Contention Respondent contends that the discharged employees would not have continued working on the terms offered by Respondent, regardless of whether the termination slips, which stated "not eligible for rehire," had instead 1 244 NLRB 566 (1979) 2 Abilities & Goodwill, 241 NLRB 27 (1979) TRIDENT SEAFOODS CORP stated "eligible for rehire," and that, therefore, the loss of the wages was voluntary, and not subject to a back- pay order for the period October 5 to 20. The Testimony The six witnesses who testified stated, inter aha: I Deborah Jeys: Q. Now, I want you to assume that instead of the word "No" being written in there [on eligibility for rehire], the company had written in "Yes", okay? A. Okay. Q. Would you, then, have stayed on board and accepted the $4.00 per hour offer of the company? A. That's hard to say. Possibly I would have, yes. Q Well, why didn't you go to Mr Tucker at that time and say, "$4.00 an hour is acceptable to me; I'll stay?" (Pause) A. He got us off the boat so fast, there really wasn't time to do much of anything but pack. Q. Isn't it true that among your number there was at least one employee who changed his mind and accepted the $4.00 and punched in and went back to work? A. Yes. 2 Victor D Roszell: Q. Now, let us assume that Paragraph Number 4 there, instead of the word "No" being written in after "Eligible for Rehire", that Mr. Tucker had written in-or somebody from the company had written in-"Yes" and you'd gotten that piece of paper with "Yes" written in there instead of "No"; would you have stayed and gone to work for $4.00 an hour? (Pause) A. If the company could have negotiated and ex- pressed to us in some way that that is all they could have given us and discussed the other terms, I prob- ably would have gone back to work for them at $4.00 an hour once the negotiations were over and our claims had been at least talked about, but as it was, they didn't discuss it with us. They simply fired us. Q. So, whether it was "Yes" or "No", $4.00, alone, was not satisfactory to you? You had to have more than that, even if the "more" was only discus- sion of your grievance's A. Yes, sir; as a striking employee, I was entitled to that, I believe. Q. So, if they'd said "Yes," but refused to discuss your grievances, you still would have stayed out on strike? A There is a possibility if they sat down and dis- cussed with us any terms. 3. Michael W. Steele: 27 MR NIELSON: The answer is unresponsive JUDGE STEVENS- Answer the question "Yes" or "No", please. If that had said "Eligible for Rehire", would you have stayed aboard or worked? (Pause) THE WITNESS: I would have continued negotiat- ing. Q. You wouldn't have gone to work, but you would have stayed there trying to negotiate some further concessions or things that you wanted? A. The only thing in my mind was the wage. Q. Some further wages? A. More than $4.00 an hour. 4. Kenneth Hanson: Q. I want you to assume that when Mr Tucker handed you that on October 5 that instead of the word "No" being wntten in there he'd written in the word "Yes", you were eligible for rehire. Now, had the word "Yes" been there, would you have stayed on board and worked for $4.00 an hour, that being what the company had offered you? A. I can't answer that because if he'd have put "Yes" down there and still had not wanted to talk with us about anything and he said, "It's this way or it's no way at all", it may have-I may or may not have I can't answer that "Yes" or "No." Q. Well, isn't it true that $4.00 an hour, alone, at that time was not sufficient to you? You wanted to try to do more than that? You wanted to negotiate, see if you could get him up, see if you could get some other things settled that you didn't like? A. Yes; that's true. May I explain something? Q. Why, sure. A. Okay. Maybe I can-okay, I didn't go up to Alaska-I went up to Alaska to work $3.45 an hour at that time plus the overtime seemed like pretty good money to me at that point. Upon getting up there, there were some pretty bad working condi- tions that weren't told to us at all when I was in Medford and it starting to add up to this, that and the other and we thought that if we could get some more money and talk with them about that, that we would more than willing to stay up there, so I am willing to work-I work now as a painter which isn't very much fun at all and yet I work, so it's not a point of whether I wanted to get off the boat, I was tired working, that's not why we went on strike or anything and the $4.00 an hour may have been acceptable at the time, had we been given any chance at all to think about it, had talked about it. He may have been able to point out to us, "Okay, you guys are a little bit hot right now. Why don't you take it easy, sit down for this afternoon, think about the $4 an hour; it's the best we can do. We need you " I'm sure we would have all stayed, then. Speaking for myself, I would have stayed. Q So, if there had been $4.00 plus some negotia- tion of any acceptable kind with Mr. Tucker, you would have stayed? A. Without a doubt. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. John Nickell: Q. And, let's assume-I want you to assume- that instead of writing the word "No", Mr. Tucker had written the word "Yes", you were eligible for rehire when he gave you that separation notice, would you have stayed on board and worked for $4.00 an hour and no more negotiations. A Well, if they gaven us time to talk instead of just kicking us off the boat like that , I might have. Q. Wasn't the company making it clear to you that all they had to offer was $4 and nothing more? A. They really didn't talk about it too much, dust the $4 .00, take it or leave it. Q. Didn't they give you the choice of taking that or leaving the boat? A. That's what they did. Q. So, you didn't take it? A. No. Q.-And, isn't the reason that you didn 't take it is that you wanted the company to negotiate some more? A. That's correct. - Q. And, you would have wanted the company to negotiate some more whether that form said "Yes" or "No" about your eligibility for rehire? A: Well, they-gave us not too much time to think about things. They just scutled us off the boat and that was it. JUDGE STEVENS : Run it by again, please. [The re- quested question was again read back by the report- er.] THE WITNESS : That's correct, I suppose. 6. Clyde Owen: Q. Now, I want you to assume that when he handed that to you, instead of the word "No" being written in, like it is,- A. Yeah. Q. -that the word "Yes" had been written in there that you :were told you were eligible for rehire. Now, if the word "Yes" had been on there, would you have agreed to stay for the company's offer of $4.00 and nothing more, no more negotia- tions or anything, just $4.00? A. If there was a "yes", I would have-I think negotiations would have went further. Q. So, it's correct to say, then that you would have stayed if it said "Yes," provided there was fur- ther negotiations? A. Yeah, fairness in the negotiation. Counsel stipulated as follows: That if Michael Price, Van Tran, Russel Car- ithers, Francis Richard Gallagher, Michael Con- way, Gary Gallagher were called to testify, that they would testify as follows. One: That they were hired by Trident Seafoods and provided air tickets from Seattle to Dutch Harbor, Alaska with the understanding that the cost of airfare would be deducted from their pay if they voluntarily did not complete the season; • Two: That on October 5, 1978, they participated in a work stoppage by a number of employees who wished to negotiate higher wages and changes in working conditions; - Three:' That they were informed that Trident Seafoods was offering an increase to $4.00 per hour straight time, retroactive to the beginning of the season, and informed that Trident would not negoti- ate that- offer further, and would not negotiate changes in other conditions, and that if the employ- ees did not accept that offer and return to work at that time, they would have to pack their bags and leave. They were told or were given the impression that they were fired if they did not immediately accept the offer. They were provided formal no- tices of termination indicating that they were not el- igible for rehire; Four- That they were not then willing to accept the offer of $4.00 per hour and wanted to negotiate to explore the possibility of a higher wage rate and for the possibility of changes in other conditions, -Five: They would testify consistently with the general testimony of other witnesses.- . Discussion The fact that the employees illegally were discharged on October 5, without eligibility for rehire, is not in dis- pute. - Respondent argues that since one (unnamed) employee returned to work on the terms offered by Respondent, it can be assumed that the offer was a valid and proper one However, that employee did not testify, and there is nothing in the record to show when, or under what cir- cumstances, the offer was made to, and accepted by, that employee. There is no basis in the record upon which an inference can be drawn that the one employee's actions were taken under circumstances that were the same as, or were indicative of, the circumstances that surround the employees involved in the backpay specification. The return to work of that one employee therefore is irrele- vant to this controversy. - Respondent argues that , based on the employees'- testi- mony, it is immaterial whether the terniihation slips were marked "eligible" or "not' eligible" for rehire, but that ar- gument is at odds with the record. The testimony of em- ployees does not show what Respondent contends that it shows, and further, Respondent notified the employees by letter dated' October 183 that, if the slips of October 5 showed "not eligible for rehire," such a statement was a mistake, and should not have been-'made. Patently, Re- spondent believed as of October 18 that the wording of the slips was material. It is firmly established by Board decisions and court opinions that an offer of reinstatement must be uncondi- tional if it is to be legally effective Respondent's offer was not for reinstatement. It was conditional, and did not meet the requirements of the Act. The offer was for a 3 R Exh 14 TRIDENT SEAFOODS CORP. retroactive wage of $4 per hour' conditioned on its ac- ceptance by the employees, with the further proviso that failure to accept immediately would result in discharge. Respondent's principal options were to offer to negotiate with the employees, or to offer them reinstatement, or to replace the (economic) strikers with their rights under the Act intact. Respondent adopted none of the alterna- tives it had. Judge Cohen found that the strikers were fired in violation of the Act, and the decision; which was approved by the Board and the Court of Appeals for the Ninth Circuit, is not challenged by Respondent. Re- spondent's summary eviction of the employees from the ship4 precluded negotiations, and left the employees no time or, opportunity even for effective consultation among themselves. Respondent's basic argument is that the employees would not have returned to their jobs, even if they had been offered reinstatement. However, .that argument rests on speculation to a degree that- is not acceptable. The events that gave rise to the controversy occurred in Oc- tober 1978-almost 4 years prior to the trial discussed herein. As shown in the testimony quoted above, the em- ployees were uncertain as to whether-they would have acted differently had the termination slips been marked "eligible for rehire." Jeys testified that, had the slip read "eligible for rehire," she "possibly" would have accepted Respondent's offer. Roszell said, "There is a possibility if they [Respondent] sat down and discussed with us any terms." Steele said he wanted to continue negotiating. Hanson said he would have returned to work if Re- spondent was willing to negotiate with the employees Nickell 'said he "supposed" that what he wanted was more negotiations. Owen said he wanted further "fair" negotiations. All the witnesses testified in an equivocal, uncertain manner. Clearly, they wanted to keep their jobs, and wanted to talk with their boss about their prob- lems. They were met with Respondent's ultimatum. It is not reasonably possible at this late date to determine what the employees may have done, had the termination slips read differently. However, even the questions and answers quoted above miss the issue. They do not answer the question of the employees' willingness to return to work had they received an unconditional offer of reinstatement Whatever the slips may have stated, Respondent's offer was plain-either accept the. wage Respondent said it would pay, and return to work, or be fired and leave the ship. That is not negotiation, and 4 Respondent argues that the eviction was necessary in order to pro- vide living quarters for replacements That argument is without merit The strikers' quarters were included with their compensation , of which they were deprived in violation of the Act 29 such a tactic deprived the employees of their rights as employees under the Act. It was Respondent's burden to prove that the employ- ees would not have returned to their jobs if uncondition- al reinstatement was offered.' That burden was not met. The employees named above are entitled to backpay as set forth in the specification. The computations of the specification , including those relating to the employees' transportation expenses , are not disputed by Respondent. Respondent's liability for transportation expenses was settled in the earlier determination that the employees il- legally were discharged. Under their contract with Re- spondent, they would have been liable for their own transportation expenses only if they voluntarily terminat- ed their employment, which they did not do. The Backpay Period and Earnings Based on the record , including the pleadings, stipula- tions of counsel , and testimony, it is found: (a) The backpay entitlement of the 12 employees named below commenced October 5 , 1978, and ended October 20, 1978. (b) During the backpay period no employee had inter- im earnings (c) The 12 employees are entitled to backpay in the following amounts: Name Backpay Plus Expenses and Air Fare Interest Russell Carithers $1,791.11 $483.60 Michael Conway' 2,061.70 556.66 Gary Gallagher, 2,078 16 _ 561.10 Ken Hanson 1,908 22 515.22 Debra Jeys 1,912.58 516.39 John Nickell 1,698 .76 458.67 Clyde Owen 2,001.65 540.45 Michael Price 1,969.49 531.76 Francis (Richard) Gallagher 2,078.16 561.10 Victor Roszell 2,054. 84 554.81 Michael Steele 1,891.59 510.73 Van N Tran - -1,81055 - 488 85 RECOMMENDED SUPPLEMENTAL ORDER On.the basis of the foregoing findings and conclusions, it is ordered that Trident Seafoods Corporation pay to the employees named above the amounts of money set opposite their names, less tax withholdings required by Federal and state laws. ' 5 Mastro Plastics, 341 F 2d 179 (2d Cir ) 964), cert denied 384 U S 972 (1965)