Nuclear Automation

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nuclear Automation Division of Esterline Electron- ics Corporation and Sara B. Eichelberger. Case 6-CA-15864-2 August 11, 1988 SUPPLEMENTAL DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 30, 1985, Administrative Law Judge Lowell Georlich issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief to the Respondent's exceptions. The Respondent filed a reply to the General Counsel's motion to strike its exceptions and to the General Counsel's limited cross-exceptions. 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 Decision and Order. The judge found that the Respondent's offer of reinstatement to discriminatee Sara Eichelberger contained in its November 23, 1982 letter was in- valid and that Eichelberger was therefore entitled to backpay through June 30, 1984, when the Re- spondent made a valid offer of reinstatement to her. We cannot agree with the judge's conclusion and, for the reasons set forth below, have decided it is necessary to modify current Board law regard- ing a discriminatee's duty to respond to an offer of reinstatement once it has been made. As credited by the judge, the letter sent to Ei- chelberger, dated November 23, 1982, was signed by the Respondent's vice president of operations and stated: Please be informed that the company is of- fering you immediate reinstatement of employ- ment of the same position you last held with the Company or a comparative position. You are to report to work Wednesday, No- vember 24, 1982. Eichelberger received the letter later that same day, November 23, 1982, but did not communicate ' The General Counsel has filed a motion to strike the Respondent's exceptions. We deny the General Counsel's motion. As part of the remedy the General Counsel seeks an order which will include a visitatorial clause authorizing the Board, for compliance pur- poses to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order . We have concluded that under the circum- stances of this case such a clause is not warranted . Cherokee Marine Ter- minal, 287 NLRB 1080 (1988). with the Respondent.2 She ultimately returned to work on July 2, 1984, in response to a second offer of reinstatement dated June 27, 1984. The judge found that the time allotted for Ei- chelberger to report to work was wholly inad- equate and that the Respondent's letter of Novem- ber 23, 1982, was therefore not a valid offer of re- instatement. In so finding the judge relied on prior Board precedent as enunciated in such cases as Penco Enterprises, 216 NLRB 734 (1975); Murray Products, 228 NLRB 268 (1977), enfd. 584 F.2d 934, 940 (9th Cir. 1978); Brenal Electric, 271 NLRB 1557 (1984); and Fredeman's Calcasieu Locks Ship- yard, 208 NLRB 839 (1974). In Penco Enterprises, the Board reiterated its policy that a discriminatee, on receiving an offer of reinstatement, has a "fundamental right to a reason- able time to consider whether to return."3 There is no rule on the period of time that will constitute reasonable notice to the discriminatee, however, and as the Board noted in Fredeman's Calcasieu Locks Shipyard, what constitutes a "reasonable time" will depend essentially on the situation in which an employee finds himself.4 Significantly, the Board added, "obviously, if there is no valid reason for a discriminatee's not being able to return to work at the fixed date, we will likely view that date as dispositive of the issue." Nevertheless, under established Board precedent, the burden does not shift to the discriminatee to contact the em- ployer and request additional time. Rather, it has been our view that such a requirement places an undue and unwarranted burden on the discrimina- tee to make a counterproposal. Harrah's Club, 158 NLRB 758, 759 at fn. 1 (1966), revd. in pertinent part 403 F.2d 865 (9th Cir. 1968). We have reconsidered the question regarding a discriminatee's duty to respond to an offer of rein- statement because several courts that have re- viewed the Board's current rule have rejected it. The reasons for rejecting the Board's current rule 2 On receiving the letter, Eichelberger telephoned Board Agent Thomas Stefanic, but was unable to reach him until the following day. According to Eichelberger's testimony, when she did speak with Stefanic on November 24, he asked her if the letter directed her to call the Re- spondent and talk to its vice president of operations, Ray Rambler. When she replied it did not, he told her not to worry about it and that he would talk to the Respondent's attorney . Stefanic further stated that, "it may be just a way of tolling wages." 8 See also Highland Plastics, 256 NLRB 146, 159 (1981); Mid-County Transit Mix, 264 NLRB 782, 792 (1982); Brenal Electric, 271 NLRB 1557 (1984). 4 With regard to an offer that demands the employee accept and return to work on the same day he receives it, the Board has stated, "[t]hat would, except in unusual circumstances , be an unreasonable condition to which we would not require strict compliance by the employee; nor would we find such an offer to have terminated the backpay period." Fredeman 's Calasieu Locks Shipyard at 839. 290 NLRB No. 92 ESTERLINE ELECTRONICS CORP. 835 were best stated by the Tenth Circuit in NLRB v. Betts Baking Co., 428 F.2d 156, 158 (1970):5 Both employer and employee are bound by the requirement of good faith dealings with each other. And it does not place an undue burden on the employee to require him to inform his employer of his intentions concern- ing reinstatement within a reasonable time after notice. Thus, the court in Betts reasoned that an offer of reinstatement is not rendered invalid simply be- cause it affords the discriminatee what may be re- garded as an unreasonably short period of time in which to consider it. We agree. When a discriminatee receives a letter that un- conditionally offers reinstatement and that also states a report-back date, we will not find the offer invalid simply because the specified reporting date appears unreasonably short. The offer will be treat- ed as invalid, however, if the letter on its face makes it clear that reinstatement is dependent on the employee's returning on the specified date or if the letter otherwise suggests that the offer will lapse if a decision on reinstatement is not made by that date. If the letter does not expressly condition the offer on compliance with the report-back date, the discriminatee cannot know, until he or she calls the employer, whether that date is inflexible and whether a reasonable time for making a decision on the offer will be granted. Similarly, until the discri- minatee replies, the employer cannot know when the discriminatee would be able to return. A discriminatee who receives an offer that is in- valid under the rule just stated will not have back- pay tolled as a result of failure to respond, since there has been no valid offer to trigger a response. A discriminatee who receives an otherwise valid offer, however, cannot rely on the mere inclusion of an unreasonably short report-back date in the letter to justify a failure to make some response to the employer, if only to ask for more time to con- sider the offer. A failure to make such a response within a reasonable time after the offer has been made will toll the running of backpay.6 This ap- proach, we believe, satisfies the "requirement of good faith dealings" properly imposed on both em- ployer and employee. In the instant case, discriminatee Eichelberger re- ceived a letter on November 23, 1982, uncondition- 5 The Ninth Circuit also rejected this rule. Harrah's Club, supra. See also Consolidated Frelghtwaays K NLRB, 669 F.2d 790, 796 fn. 11 (D.C. Cir. 1981), noting that where an offer contains a time condition on ac- ceptance, "courts look to the reasons why an employee failed to accept the offer of reinstatement within the time imposed by the employer before inquiring into whether the time condition is unreasonable." ° To the extent that Harrob's Club, supra, and other like cases are in- consistent with the analysis set forth; they are overruled. ally offering her reinstatement and directing her to report to work the next day. The letter did not state that the offer would lapse if she was unable either to report the next day or to commence work then or soon thereafter. Yet she gave the Employer no clue why she could not respond to that offer; indeed, she made no response at all. In these cir- cumstances, we will toll Eichelberger's backpay as of a reasonable time after this unconditional offer of reinstatement was made. In determining what constitutes a "reasonable time," we find that the Respondent's existing poli- cies and agreements governing bargaining unit members are helpful.? Thus we find that the Re- spondent's reinstatement offer to Eichelberger dated November 23, 1982, remained open for 10 days thereafter, at which time its backpay liability was tolled. ORDER The National Labor Relations Board orders that this proceeding is remanded to the Regional Direc- tor for Region 6 for the purpose of recalculating Eichelberger's backpay in accordance with our de- cision above.8 r The Respondent submitted evidence that its standard practice with respect to recalls from layoffs of bargaining-unit members was to consid- er that a recalled employee had rejected the recall offer and become a voluntary quit unless he failed to return within 10 days of the postal date on the notice; an employee who was unable to return in that time be- cause of illness and disability was only under a duty to give notice of such illness or disability within that period . Eichelberger was not a bar- gaining-unit member, and the judge found no credible evidence that she had ever been advised that the 10-day policy would apply to her. The judge thus rejected the suggestion that the policy governed the Respond- ent's offer to her as "spurious and an afterthought." Although we agree with the judge that this policy was not directly applicable to Eichel- berger, we find that 10 days also is a reasonable time for our purposes here. ° The General Counsel's exhibits include, inter alia, backpay computa- tions for the third and fourth calendar quarters of 1982 . We note that the revised backpay calculation will include all the net backpay for the third quarter of 1982 and that portion of the $4482 .52 net backpay for the fourth quarter of 1982 that accrues up to and including December 3, 1982. Mary Theresa Enyart, Esq., for the General Counsel. Timothy G. Hewitt, Esq., of Latrobe, Pennsylvania, for the Respondent. Sara B. Eichelberger, of North Huntingdon, Pennsylva- nia, in propria persona. DECISION IN BACKPAY PROCEEDING LOWELL GOERLICH, Administrative Law Judge. On 9 August 1985 a backpay specification and notice of hear- ing was issued alleging that a controversy had arisen over the amount of backpay due under the terms of the Board's Order.' 1270 NLRB 658. 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 18 October 1985 the matter came on for hearing at Pittsburgh, Pennsylvania, on the backpay specification and the answers of the Respondent, Nuclear Automation Division of Esterline Electronics Corporation. Each party was afforded a full opportunity to be heard; to call, examine, and cross-examine witnessess ; to argue orally on the record: to submit proposed findings of fact and conclusions; and to file briefs. All briefs have been care- fully considered. FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS Neither the formula nor the method used in the calcu- lation of the discriminatee's backpay is disputed. The controversy is whether a letter sent by the Respondent on 23 November 1982 and received by the discriminatee on 24 November 1982 between 1 and 3 p.m. cut off backpay on 24 November 1982 because the discriminatee did not return to work in response to the offer of rein- statement set forth in the letter. The letter is as follows: November 23, 1982 Mrs. Sara Eichelberger 1311 Hillview Ave. North Huntingdon, PA 15642 Certified Mail P01 1662540 Sara, Please be informed that the company is offering you immediate reinstatement of employment of the same position you last held with the company or a comparative position. You are to report to work Wednesday, Novem- ber 24, 1982. Very truly yours, NUCLEAR AUTOMATION /s/ H. Ray Rambler Vice President of Operations The discriminatee did not respond to the letter by re- turning to work as directed.3 The discriminatee returned to work on 2 July 1984 in response to a letter from the Respondent dated 27 June 1984. Thus the sole issue before me is whether the Respondent's letter to the dis- criminatee dated 23 November 1982 was a valid uncondi- tional offer to return to work, which tolled the discri- minatee's backpay. If the letter is found to be an invalid offer to which the discriminatee was not legally obligat- ed to respond, then all else is immaterial since the discri- minatee was legally required only to respond to a valid offer of reinstatement. Cf. Burnup & Sims, Inc., 157 NLRB 366 (1966), enfd. 383 F.2d 987 (5th Cir. 1967).' 2 The facts found are based on the record as a whole and the observa- tion of the witnesses. I On receiving the letter the discriminatee telephoned Board Agent Thomas Stefanic on the afternoon of 23 November 1982, but was unable to reach him until the next day. After the discriminatee related the con- tents of the letter to Stefanic, Stefanic told her "not to worry ... he would talk to Mr. Hewitt" (the Respondent's attorney) and that he "felt" that it was "just a way of tolling wages." 'In Harrah's Club, 158 NLRB 758 fn. 1 (1966), the Board opined "[t]he reinstatement obligation properly rest with Respondent and is satis- fied only by a valid and unconditional offer of reinstatement." "The Board has long held that "[o]nly when a proper offer is made and unequivocally rejected by the employ- ees is the employer relieved of his statutory duty to rein- state." W. C. Mcquaide, 239 NLRB 671 (1978). A situation comparable to the facts in the instant case was considered by the Board in the case of Penco Enter- prises, 216 NLRB 734 (1975). In that case the discrimina- tee received a letter dated 10 March 1972 on 13 March 1972 offering reinstatement that contained this language, "We request you report for work 7:00 a.m. on Tuesday March 14, 1972." The Board found that the letter was not a valid offer of reinstatement. The Board opined (216 NLRB at 734, 735): More importantly, however, it is clear that no matter what interpretation is given to the third paragraph, 5 Respondent's letter provided Mooney only 1 day at the most to decide whether to accept the offer of reinstatement. It is also clear that a dis- criminatee, upon receiving an offer of reinstatement, has a fundamental right to a reasonable time to con- sider whether to return, While we do not attempt to precribe what is reasonable in every circumstance, we do not view the time alloted herein as reasona- ble. Mooney would have had to inform Respondent of his intentions the same day he received the letter or else report for work the following morning. We find this totally inadequate. Applying this reasoning of the Board, I find that in the instant case the time allotted for Eichelberger to report for work was wholly inadequate and thus the Respond- ent did not make a valid offer of reinstatement to her by its letter of 23 November 1982.6 See also Standard Tank Cleaning Corp., 197 NLRB 873 (1972); Murray Products, 228 NLRB 268 (1977); Brenal Electric, 271 NLRB 1557 (1984); Michael M. Schaefer, 246 NLRB 181 (1979); Fre- demen's Calcasieu Locks Shipyard, 208 NLRB 839 (1974). In the latter case the Board said the most extreme exam- ple of this kind of offer is one that demands the employ- ee to accept it and return to work on the same day he receives it." In the instant case since the normal report- ing time was 8:30 a.m. the discriminatee was given less than 24 hours to return to her job. Because I have found that the Respondent's offer of reinstatement contained in its 23 November letter was in- valid, and that the Respondent has not contested the backpay computations of the General Counsel, I find that there is due and owing the discriminatee Eichel- berger $36,036.88, plus interest accrued thereon to the date of payment, minus social security and income tax b The third paragraph, "In the event you do not wish to return notify this office by phone, or mail on Monday March 13, 1972, or we must remove your name from the recall list." (216 NLRB 734.) 6 The Respondent claims that the discriminatee had at least a 10-day period to respond to the offer, during which period alternative arrange- ments could have been made for her convenience. But there is no credi- ble evidence that the discriminatee knew or was advised by the Respond- ent of such elongation of the reporting period. The letter is clear and un- ambiguous . I consider the contention to be an afterthought and spurious. ESTERLINE ELECTRONICS CORP. 837 deductions, if any, as required by state and Federal laws, as set forth in the specification.? On these findings of fact and conclusions of the law and on the entire record, I issue the following recom- mended8 I I have examined the cases relied on by the Respondent and because of the cases cited above I find them inapposite. ' 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. ORDER The Respondent, Nuclear Automation Division of Es- terline Electronics Corporation, North Huntingdon, Pennsylvania, its officers, agents, successors, and assigns, shall pay to Sara Blanche Eichelberger the sum of $36,038.88, plus interests accrued there on to the date of payment, social security and income tax deductions, if any, as required by state and Federal laws.10 ' Interest is to be computed as provided in the enforced Order. 10 I find no present need for recommending the visitatorial clauses re- quested by the General Counsel.