Northwest Metal Products, Inc.

1042 DECISIONS OF' NATIONAL LABOR' RELATIONS BOARD Northwest Metal Products, Inc. and United Steel- workers of America, Local No. 31l[2'- AFL- CIO-CLC. Case 19-CA-11549'- 11, July 1985• ORDER REMANDING By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 7 May 1982 Aministrative Law Judge Earl- dean V. S. Robbins issued the attached supplemen- tal decision. The-Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the supplemental decision. The Board has considered the record and the at- tached supplemental decision in' light of the excep- tions and briefs and had decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent, herewith. . This. proceeding - was held to determine the amount of, backpay due discriminatee Phillip Hoefer pursuant 'to an earlier Board decision' hold- ing that the Respondent discharged him on 2 May 1979 for'discriminatory reasons while he was par- ticipating in an economic _ strike. - At the • backpay hearing the Respondent sought to show that ould 'not have accepted any - offer to Hoefer would' return to work during the strike, and therefore is not entitled to backpay during the strike; The Re- spondent's counsel posed the following question to Hoefer: •. [H]ad you not been discharged on May 2 would you-have crossed that picket line and returned to work before the strike ended on June 7? On objection by the General Counsel, the judge barred the question as speculative. The Respondent excepted and reiterated its position in its exceptions to the judge's supplemental decision. The Respondent argues, inter alia, that the judge barred the specific type of evidence described in Abilities & Goodwill2 as mitigating an employer's backpay liability in,these circumstances. Moreover, ,the Respondent asserts that the judges reason for excluding Hoefer's testimony, i.e., because it would be based on speculation` or conjecture, is erroneous, as the information the. Respondent sought to elicit from Hoefer is uniquely within his knowledge. We agree that the judge erred by excluding the type of evidence contemplated in Abilities & Good- will.3 Therefore, :we' will remand this -case to the i 252 NLRB 1219 (1980) None of the current Board Members partici- pated in the underlying decision 2 241 NLRB 27 (1979) 3 -Member Dennis agrees with the dissent in Abilities & Goodwill, 241 judge to reopen the record. The judge will then prepare and serve on the parties a second supple- mental decision containing any necessary credibil- ity resolutions, findings of fact, conclusions of law, and recommendations based' on the evidence re- ceived. - ORDER - It is ordered that the record in this proceeding be reopened and that a further hearing be held before the administrative law-judge for the purpose of taking the type of evidence which was excluded previously. - • ' IT IS FURTHER ORDERED that this proceeding be remanded to Judge Earldean V. S. Robbins for the purpose of arranging such hearing. . IT IS FURTHER ORDERED that upon conclusion of such further hearing ,the administrative law judge shall'prepare'and serve on the parties a second sup- plemental decision containing any credibility reso- lutions, findings of fact, conclusions of law, and recommendations based on the • evidence received and that, following service of the second supple- mental decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions shall be applicable. • more than 30 years of Board precedent requiring unlawfully discharged strikers to offer to return to work in order to initiate the running of back- pay Absent three, votes to overrule Abilities & Goodwill, Member Dennis will apply the remedy set forth in that decision Chairman Dotson would overrule Abilities & Goodwill and would ana' lyze backpay in this case in accordance with earlier Board precedent in analogous cases such as Valley Oil Co, 210 NLRB 370 (1974) SUPPLEMENTAL DECISION EARLDEAN V. S ROBBINS, Administrative Law Judge. On September 30, 1980, the Board entered an Order' in this matter in which it found that Respondent discharged Phillip Hoefer about May 2; 1979, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. The Board ordered Respondent, inter alia, -to make Hoefer whole for any loss of earnings suffered as a result of his discharge. Thereafter, on April 23, 1981, the parties en- tered into a stipulation whereby Respondent concedes that the Board's Order is valid and proper and that Re- spondent has no objections thereto and the parties ac- knowledge that they have been unable to reach agree- ment as to the amount of backpay due Hoefer and agreed that the Regional Director for Region 19 may issue an order setting a date for hearing before an admin- >_strative law judge to determine the amount of the back- pay. This controversy having arisen over the amount of backpay due under the terms of the Board's Order, on April 30, 1981, the Acting Regional Director for Region 19 issued a backpay specification and notice of hearing to NLRB 27 (1979), that the majority in that case improvidently overruled i 252 NLRB 1219 (1980) 275 NLRB No. 143 NORTHWEST METAL PRODUCTS which Respondent filed a timely answer. The matter was heard before me in Seattle, Washington, on February 16, 1982. The principal issues herein are whether (1) Hoefer's failure to abandon the strike tolls his backpay until the date that a striker with his seniority would have been re- instated after the cessation of the strike; and (2) Hoefer diligently sought other interim employment in order to mitigate his losses. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following FINDINGS OF FACT 1. THE GROSS BACKPAY Respondent is engaged in the manufacture- of sheetme- tal products at a facility in Kent, Washington, where its employees have been represented by the Union for a number of years On April 20,2 following the expiration of the collective-bargaining agreement and the failure to reach a new agreement, most of the approximately 160 unit employees commenced a strike against Respondent in support of the Union's proposals for a new agreement. The strike ended about June 7 and approximately 50 em- ployees abandoned the strike prior thereto. Hoefer, who became a union member only after he commenced em- ployment with Respondent on August 18, 1978, partici- pated in the strike from its inception.3 - During the course of the strike, Respondent mailed several letters to all the employees in the unit, addressed, "Dear Northwest Metal Products Employees." A letter dated April 21 states, "[W]e want you to know that your job is available to you. We encourage ,all employees to return to work " Other letters were sent to employees on April 23 and May 1 which also encouraged them to return to work. On May 2, Hoefer was discharged alleg- edly for picket line misconduct. On May 21, Respond- ent's letter to employees stated, "[W]e hope that all strik- ing employees will immediately return to work before the Company is forced to hire additional permanent re- placements for all the strikers: If you have any questions regarding . . returning to work, please feel free to con- tact me." The final letter, dated June 1, states, "unless you make yourself available, for work immediately and no later than June 15, the chances are that you will have been permanently replaced. . . . We urge all strikers to contact the company to see if we have work available for you. If you have any questions, please contact Dell Noack or me." Hoefer did not respond to any of these letters and con- tinued to picket Respondent's facility two to four times a week for at least a short period of time after his dis- charge Respondent argues that the May 21 and June 1 letters were offers of reinstatement which Hoefer de- clined. Respondent further argues that even if it had of- fered Hoefer reinstatement immediately following his dis- charge, he would have refused such an offer because of 2 All dates herein are in 1979 unless otherwise stated 3 This account is taken from the underlying decision in this matter '1043 his sympathy to the Union's cause with respect to the strike. In Abilities & Goodwill, 241 NLRB 27 (1979), the Board departed from its prior policy of requiring a dis- charged striker to request reinstatement and held that a discharged striker is entitled to backpay in the -same manner as any other discharged employee, from the date of discharge until the date he or she is offered reinstate- ment. However, the Board also held that the employer remains free to avoid or reduce its backpay obligation by establishing that the employee would not have accepted the offer if made, or by any other evidence showing the incurrence of a willful loss of earnings. - I find that the May 21 and June 1 letters addressed to all employees urging them to abandon the strike were not valid offers of reinstatement to Hoefer. However, along with the predischarge letters they are factors to be considered in evaluating Respondent's argument that Hoefer would not have accepted any offer of reinstate- ment proffered during the course of the strike. Respondent contends that its argument is supported by Hoefer's failure to respond to the letters and by his testi- mony that he voted to strike, occasionally called those employees who returned to work scabs, did not cross the picket line either before or after his discharge, picketed Respondent's facility before and after his discharge on 2 or 3 and sometimes 4 days a week, and received the free services of a union attorney, after his discharge, for rep- resentation at a criminal proceeding about July 10, which arose out of the same incident involved in his discharge. Other alleged indicia, which I find unsupported by the record, that Hoefer would not have abandoned the strike are that he sometimes picketed all day and all night;4 that he continued to pay union dues after he was rein- stated even though not required to do so in order to maintain his employment;5 and that, following his dis- charge, 'he continued to picket until the end of the strike.6 4 Although Hoefer's testimony often left much to be desired as to clar- ity, it is apparent that his testimony in this regard was that during the initial days of the strike, the picketing continued on a 24 -hour-a-day basis, not that he personally picketed all day and all night. s Hoefer testified that he does not know whether he paid union dues after his reinstatement According to him, he never paid dues directly to the Union However, he thinks employees were required to pay union dues while employed by Respondent and that dues were probably de- ducted automatically from his check until he quit his employment Re- spondent did not offer its union-dues checkoff records into evidence I find that Hoefer's testimony in this regard is not reliable In fact , Hoefer's lack of recall made him an unreliable witness in most respects He did not impress me as an untruthful witness Rather he just seemed to no longer recall with much specificity the details which Respondent attempted to adduce from him - e Hoefer testified that he picketed only for a short period after his dis- charge Respondent argues that Heeler's continued picketing is estab- lished by his testimony that the Union secured work through the Long- shoremen's hall only for employees who walked the the picket line and that Hoefer engaged in 5 days of longshore work from May 14 through May 30, 7 days from June 6 through June 15 , and 7 days from July 2 through July 19 Respondent contends that this indicates that Hoefer con- tinued to support the Union right up to the day he was reinstated How- ever, this does not establish necessarily that the longshore employment was available only to those who picketed during the same week or gener- al period of time, inasmuch as 12 of 19 days during which Hoefer ob- tained employment out of the Longshoremen 's hall was after the strike Continued 1044- DECISIONS OF -NATIONAL LABOR RELATIONS BOARD I find that Hoefer's failure to respond to Respondent's predischarge letters establishes only that at the time of the letters he chose not to abandon the strike and return to work: Once he was discharged, he could only con- clude that he no longer had that option,and the postdis- charge letters contain nothing which could reasonably be construed as urging employees discharged for picket line misconduct to return to work. I further find that the other evidence relied on by Respondent establishes noth- ing more than that, for at least. some period of-the time following his discharge, Hoefer continued as an active participant in the strike. This does not establish that Hoefer would not have abandoned the strike and re- turned to work if Respondent, had proffered a valid offer of reinstatement. As stated by the'Board in Abilities & Goodwill, supra at 28. When discharged strikers withhold their services after the date of the unlawful discharge, one cannot really be.certain whether their continuing refusal to work is voluntary, i.e., a result of the strike, or whether the reason for not making application. for reinstatement is that the employer, by discharging the employees, has unmistakenly impressed on them the futility of making such an application. Thus, "it becomes difficult, if. not impossible, to determine whether the employees would have continued to stake and,, if so, for how long,- had the opportunity to return to work been available." [Footenote omit- ted.] . . . [B]ecause the uncertainty is caused by the employer's unlawful conduct, we will not indulge in the presumption that the discharge itself played no part in keeping the employees out _of work. Rather, it seems to us more equitable to resolve the ambigu- ity against the wrongdoer and presume, absent indi- cations to the contrary, that the discharged strikers would have made the necessary application were it not for the fact that the discharge itself seemingly made,such application a futility. Accordingly, I find'that the, Respondent has not estab- lished that Hoefer would have refused a valid offer of re- instatement if it had been made during the course of the strike. I therefore find that Hoefer's backpay period begins on May 2, 1979, 'the day of his discharge, and ends on August 20, 1979, when he was reinstated by Re- spondent. . • net backpay Nor is there any dispute as to the number of hours Hoefer would have worked, the wage rate he would have been paid, nor the amount of his interim earnings However, Respondent argues that Hoefer will- fully failed to attempt to mitigate his losses in- that he failed to make reasonable efforts to find permanent em- ployment following his discharge. I find no merit in this contention. As set forth above, Hoefer did perform long- shore work on a temporary basis when such work was available to him He testified that he 'applied for work with other sheetmetal companies and checked newspaper ads in the local 'area for sources of employment. Inas- much as the burden of proof is on the Respondent, the fact that at the time of the backpay hearing, Hoefer did not recall the names of, nor how many, employers to whom he had applied for work, does not establish that he did not do so. Southern Household Products Co., 203 NLRB 881 (1973) Nor does the fact that he did not seek employment during the 3-1/2 months' backpay period in a city 25 to 30 miles away or through a private employ- ment agency, requiring the payment of a fee of several hundred dollars, establish a willful failure to mitigate damages. Further, his continued' participation in strike activities does not, by itself, establish such. Abilities & Goodwill, supra fn. 8 at 28. The burden is on the Re- spondent to show that he was unavailable or unwilling to accept or seek employment. Virginia Electric & Power Co. v. NLRB, 319 U S. 533, 544 (1943), NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972; NLRB 'v. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963). Respondent has not met this burden On the foregoing findings_ of fact and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended? ORDER The Respondent, Northwest Metal Products, Inc., Kent, Washington, its officers, agents, successors, and as- signs, shall make Phillip. Hoefer whole by payment to him of the sum of $2,395.718 with interest as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962) and Florida Steel Corp., 231 NLRB 651 (1977), less tax withholdings as required by law. II. NET'BACKPAY There is no dispute as to the method of calculating backpay, determining interim earnings, and of computing ended It establishes only that Hoefer apparently met whatever require- ments the-Union had for striking employees to receive these work assign- ments - 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations,, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 8 The 'computation is set forth in the backpay specification The amount owed , by calender quarters, is 2d Quarter 1979-$1,131 13 - 3d Quarter 1979-$1,264 58 , -