Cargill Poultry Co.

738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cargill Poultry Company and Industrial Union De- partment and Retail, Wholesale, and Depart- ment Store Union, AFL-CIO-CLC, Party in Interest. Case 10-CA-22292 January 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 17, 1987, Administrative Law Judge Philip P. McLeod issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. On the morning of December 31, 1986, 24 em- ployees working in the cut-up department at the Respondent's Buena Vista, Georgia facility concer- tedly stopped work because the temperature in their work area was too low. The employees dis- cussed the work stoppage that morning in a meet- ing with General Manager Bill Tracey, Personnel Director David Black, and one Tim Erslinger.l Tracey offered to discuss the problem with the em- ployees after their shift, but asked them to go back to work. None of the employees returned to work, however. Tracey informed the employees that if they did not return to work they would be re- placed, and he also told them that if they did not return to their work stations in 5 minutes they would be "clocked out." Tracey and Black left the meeting at that point. When Black returned to the meeting 10 minutes later, 22 of the employees said they were not going.back to work.2 Erslinger then informed the employees that they were clocked out and that they should leave the premises. Erslinger and Black accompanied the employees to the gate of the plant. At the gate, the employees asked Personnel Director Black to explain their employment status. Black admits that he "advised them that they were suspended pending investiga- tion." On being asked if the employees were fired, Black reiterated that they were suspended pending investigation, and that the employees would be no- tified by telephone or by mail.3 That same day, 1 Erslinger's position with the Respondent is not revealed in the record. In its brief, however, the Respondent characterizes Erslinger as a "supervisor." 2 The other two employees returned to their work stations. I In his affidavit, introduced by counsel for the General Counsel as the major part of his case-in-chief, Black referred several times to "the cut- Black sought and obtained commitments for re- placements for 16 of the 22 employees involved in the work stoppage. Between December 31 and January 14, 1987,4 Black spoke by telephone with four of the employ- ees who had refused to return to work. Three of the employees asked for their jobs back, and the fourth asked, "what about her job." Black ex- plained to all four that they had been replaced. On January 2, Black again met at.the plant gate with approximately 12 of the 22 employees and in- formed them that they had been replaced.5 On Jan- uary 8, an article appeared in the Columbus, Geor- gia, Enquirer, containing a statement by Tracey that new employees had been hired to replace the 22 women after they had left the plant, but that the latter employees were subject to recall if jobs became available within the plant. On January 14, the Respondent sent letters to each of the 22 em- ployees, explaining their status with the Respond- ent. The letters informed the employees that they had been replaced, but that they would be placed on a hiring list and considered for any job openings for which they were qualified if they made an un- conditional offer to return to work. On February 5, the Respondent mailed an almost identical letter to the 19 employees who at that time had not made offers to return to work. Black testified that at the time of the hearing all but 4 of the 22 employees had returned to work. Unbeknownst to the 22 employees, the Respond- ent did not place records of suspension in their per- sonnel files, but instead carried them on its records in a leave-of-absence status. The Respondent also continued the employees' insurance coverage through February 1; that action, however, was dis- closed to the employees for the first time in the January 14 letters. 1. The judge found, and we agree, that the 22 employees were suspended for participating in ters" as a group, and said nothing to indicate that fewer than all the 22 employees were at the gate during this colloquy. At the hearing, howev- er, on direct examination by the Respondent's counsel, Black testified that although a "great majority" of the employees were present, "to the best of [his] knowledge" not all were there. 4 Except for December 31, 1986, all dates are in 1987. 6 Black testified that the employees asked if they had been fired, and that he answered that they had been replaced. The employees also asked how they could receive money from their "401K" retirement accounts, and Black indicated that they could not get money out of those accounts because, inter alia, they had not been terminated. The record does not reflect whether the 12 employees asked for their jobs back. 6 The Respondent contends that there is no proof that all 22 of the em- ployees heard Black's suspension statements, and points to Black's testi- mony that, to the best of his knowledge, not all the employees were present when he made those statements. See fn. 3, supra. We disagree. In his affidavit, which was received in evidence, Black repeatedly referred to "the cutters" in a context in which that term clearly was meant to apply to all the affected employees, and he used the term again in de.. Continued 292 NLRB No. 72 CARGILL POULTRY CO 739 protected concerted activity, in violation of Section 8(a)(1) of the Act' Viewing the Respondent's ac tions, as we must, through the eyes of the employ ees,8 we agree with the judge that the employees, having heard Personnel Director Black's unequivo- cal statements that they were "suspended pending investigation," reasonably would have concluded that they were, in fact, suspended because they re- fused collectively to return to work By making statements that would lead the employees reason ably to believe that they had been suspended be- cause of their concerted protected activities, the Respondent violated Section 8(a)(1) of the Act 9 The Respondent nevertheless contends that the totality of its actions belie the conclusion that Black actually suspended the 22 employees The Respondent analogizes to a series of decisions in which the Board found that employers had not dis- charged striking employees, even though they had made statements indicating that the strikers either had been or would be fired, because the employers later had taken actions that were inconsistent with actual terminations 10 The Respondent contends that, apart from Black's unfortunate statements, its actions toward the 22 employees were entirely con- sistent with the lawful treatment of economic strik- ers 11 According to this argument, Black's state- scribing the scene at the plant gate Given Black s later equivocal tests mony ( To the best of my knowledge they were not all there ) and his admission that the great majority were present at the gate we believe there was sufficient evidence in the record to support the judge s implicit finding that all 22 affected employees were present when Black an pounced the suspensions ' It is clear that the employees group walkout in protest over working conditions was protected concerted activity See NLRB v Washington Aluminum Co 370 U S 9 (1962) 8 Pennypower Shopping News 253 NLRB 85 (1980) enfd 726 F 2d 626 (10th Cir 1984) 8 Id at 85 We decline the Respondents invitation to draw an adverse inference from counsel for the General Counsel s failure to offer testimo ny by any of the affected employees concerning their understanding of the Respondents statements and conduct The test for determining whether the employees were suspended is an objective one i e whether a reasonable employee would conclude from the employer s actions that he had been suspended Cf Famous Supply Co 254 NLRB 768 770 (1981) (discharge) It is not a subjective inquiry into the employees state of mind Roncas Exxon Service 268 NLRB 1157 1161 ( 1984) Here Black has admitted informing the employees explicitly that they were suspended and we think that a reasonable employee would have con cluded that he meant what he said Accordingly it was not counsel for the General Counsels burden to show what the employees subjective understanding was and no adverse inference can be drawn from his fail ure to do so io Kerrigan Iron Works 108 NLRB 933 (1954) enfd sub nom Iron Workers Local 733 v NLRB 219 F 2d 874 (6th Cir 1955) cert denied 350 U S 835 (1955) Crookston Times Printing Co 125 NLRB 304 317- 318 (1959) Floyd Fuel Co 126 NLRB 453 461-463 (1960) Maxville Stone Co 166 NLRB 888 (1967) Hanley Dawson Chevrolet 168 NLRB 944 (1967) Matlock Truck Body 217 NLRB 346 (1975) Woodlawn Hospi tal 233 NLRB 782 788 (1977) enf denied 596 F 2d 1330 (7th Cir 1979) Brunswick Hospital Center 265 NLRB 803 (1982) "We We agree with the Respondents oblique suggestion that Blacks co ercive statements would have violated Sec 8(a)(1) even if we were to find that they had not actually effected the suspension of the 22 employ ees ments should be regarded as having done nothing more than create an ambiguity concerning the em- ployees' status-an ambiguity that was clarified no later than January 14, when the first letters were sent to the employees explaining their status as re- placed strikers The Respondent's arguments are misplaced, however, because its actions with respect to the employees who engaged in the work Stoppage were not, so far as the employees knew, incompati ble with their suspensions 12 Thus, the Respondent never retracted or disavowed Black's suspension statements, and there is no evidence that it told the employees that they were being carried on its records as on leave-of-absence status instead of as suspended The Respondent's decision to continue insurance coverage for the 22 employees until Feb- ruary 1 would appear at least as consistent with their being temporarily suspended as with their having been permanently replaced The Respond- ent's informing the employees that they would be, and later that they had been, replaced was not in- consistent with the statements that they had been suspended, if anything, the Respondent's statements concerning replacements may well have caused the employees to believe, reasonably, that their suspen- sions actually were indefinite The Respondent excepts to the judge's exclusion from evidence of unemployment compensation forms completed on January 12 by a number of the employees In the documents, according to the Re spondent, the employees stated as the reason they were unemployed, not that they had been terminat ed or suspended but that they had left the plant be- cause of working conditions there 13 The Respond ent contends that the employees' failure to claim that they had been suspended or terminated indi cates that they did not reasonably believe that such actions had taken place, and therefore that the doc uments were probative of the employees' state of mind and should not have been excluded We find no merit in the Respondent's evidentiary exception In the first place, as we have noted, whether the employees here were unlawfully sus- pended is to be determined by an objective assess- ment of the Company's actions, not by how the employees (or some of them) may have perceived 12 In this regard this case differs from those relied on by the Respond ent (see fn 10 supra) in which employers reinstated strikers who had previously been told they were discharged Reinstatement of dis charged employees is inconsistent with their actually having been dis charged whereas reinstatement of suspended employees is not inconsist ent with actual suspensions 12 Because the documents in question were neither received in evi dence nor placed in a rejected exhibits file our description of their con tents is based on representations made by the Respondents counsel at the hearing 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those actions 14 In any event, as the judge recog razed, it is risky to speculate about a person's be liefs or state of mind on the basis of something he or she does not say Here, moreover, such specula- tion would be especially unwarranted Between December 31 and January 12, when the employees filled out the unemployment compensation claim forms, the Columbus, Georgia newspaper carried an article on January 8, quoting General Manager Tracey as stating that "while those employees have been replaced, they are subject to recall if jobs become available within the plant " It would have been reasonable for any employee who read that article to conclude from it that the December 31 suspensions had been lifted as of January 8 Ac- cordingly, it would be understandable that any such employees would not have mentioned suspen- sion as a reason for their unemployment as of Janu- ary 12 However, the fact that the suspension had been lifted is in no way inconsistent with its having earlier taken place, or with the employees' reasona- ble belief, prior to January 8, that they had been suspended Thus, even if the proffered documents had been received in evidence, we would not draw the conclusion urged by the Respondent 15 Conse quently, the Respondent was not prejudiced by the judge's ruling 16 2 Having determined that the December 31 sus pensions were unlawful, the judge ordered the Re- spondent to offer to reinstate the suspended em ployees to their former jobs, discharging if neces- sary any replacements hired during the period of the suspension, and to pay them backpay from the date of the suspension, consistent with Abilities & Goodwill, 241 NLRB 27 (1979) The Respondent excepts to the judge's recommended backpay remedy, contending that if any backpay is due, it should be assessed only from the dates the suspend- ed employees offered to return to work 17 We find no merit in the Respondent's exception 14 See fn 9 supra 15 Brunswick Hospital Center 265 NLRB 803 813 (1982) does not contrary to the Respondent require a different result Although docu ments similar to those excluded in this case were admitted into evidence in Brunswick the Board apparently did not rely on that evidence in its analysis Id at 813-814 Moreover in Brunswick the union steward was informed that the employer had changed its previously stated position that the strikers would be fired Id at 811 814 16 Indeed there appear to have been ample grounds for the judge to exclude the unemployment compensation forms for reasons unrelated to their asserted relevance At the hearing the judge characterized certain of the documents as illegible or as not obviously related to specific em ployees The Respondent did not take issue with that characterization at the hearing and does not do so before the Board Nor did the Respond ent offer to produce any of the employees to authenticate those docu ments 17 In fact the Respondent excepts to the judge s entire recommended remedy including the portion calling for reinstatement In its brief how ever the Respondent does not argue against reinstatement instead its contentions concerning the remedy are addressed only to the backpay issue We conclude that the Respondents exception to the entire remedy In Abilities & Goodwill, the Board held that dis- charged strikers are entitled to backpay from the date of their discharge until they are offered rein statement 18 The Board first reiterated the settled principles that (1) unlawfully terminated (nonstrik ing) employees are entitled to backpay from the date of their terminations, because their loss of earnings is unequivocally the result of the employ er's unlawful act, whereas (2) striking (but not ter- minated) employees are not entitled to backpay until they request reinstatement, because their loss of earnings is voluntary 19 However, the Board continued, the situation of unlawfully terminated strikers is ambiguous because it cannot be deter- mined for certain whether they continue to with hold their services because of the strike or because the employer, by discharging them, has demon- strated to them the futility of applying for rein statement 20 In such situations, the Board held, it is more equitable to resolve the ambiguity against the wrongdoer and to presume that the discharged strikers would have applied for reinstatement had the fact of their discharges not made the act of ap- plication seem futile 21 The judge rejected the Respondent's argument that the suspended employees in this case had no basis for believing that an offer to go back to work would be futile, because several employees who did attempt to go back to work before January 14 were informed that they had been replaced Ac cordingly, the judge concluded that the suspended employees should receive backpay as set forth in Abilities & Goodwill We agree At the beginning of the strike, Person- nel Director Black reiterated that the employees were suspended pending investigation and that they would be notified by telephone or mail Black thereby informed the employees that the Respond ent no longer desired their services Consequently, the employees had no reason to notify the Re- spondent that they were ready to resume work at a later date In these circumstances, [a]n application for reinstatement would have been a completely useless ritualistic act "22 Accordingly, it was is based on its contention that no violation of the Act occurred In any event no citation of authority is required to support the proposition that employees who have been unlawfully ousted from their jobs are entitled to reinstatement to those jobs forthwith even if their replacements must be discharged to make room for them 18 241 NLRB at 27 19 Id at 28 20 Id 21 Id 22 NLRB v Southern Greyhound Lines 426 F 2d 1299 1303 (5th Cir 1970) In this respect unlike our dissenting colleague we find no substan tive distinction between these unlawfully suspended employees and the unlawfully discharged employees in Abilities & Goodwill This is especial ly so where as here the Respondent put no time limit on the suspensions Continued CARGILL POULTRY CO 741 proper for the judge to assess backpay from the date the employees were suspended to the date on which they are unconditionally offered reinstate ment 2 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cargill Poultry Company, Buena Vista, Georgia, its offi cers, agents, successors, and assigns, shall take the action set forth in the Order CHAIRMAN STEPHENS , dissenting in part I join my colleagues in finding that the Respond- ent unlawfully suspended the employees on De- cember 31, 1986, and that the judge properly or- dered the employees' reinstatement Unlike the ma- jority, however, I find that it was inappropriate for the judge, citing Abilities & Goodwill,' to order the Respondent to pay backpay to the employees be- ginning on the date of their suspensions I reach this result because, in my view, the logic of Abilities & Goodwill, as set forth in the majority opinion, is far less appropriate to suspended strikers than to discharged strikers I see no basis for assum- ing that, by suspending an employee, an employer impresses on him the futility of seeking to return to work A suspension, in contrast with a discharge, simply cannot be reasonably construed as meaning that the affected employee is never to return to work again 2 Thus, because there is no reason to and left the clear impression the suspensions would remain in effect at its discretion an impression that was reinforced by the Respondents hire of replacements and its subsequent letters offering the suspended employees only the opportunity of being put on a preferential hiring list (see fn 23 below) 23 We do not of course view the Respondents January 14 letters as unconditional offers of reinstatement inasmuch as the only offer con tamed in those letters was the opportunity to be placed on a hiring list and to be considered for any job openings that might apse on the em ployee s unconditional offer to return to work Personnel Director Black testified at the hearing that the Respondent eliminated its cut up department after the affected employees were sus pended (The elimination of the cut up department is not alleged to be unlawful ) He also testified that all but four of the suspended employees had been rehired although in some cases apparently at lower pay rates in a different part of the plant and that the four who had not returned had been offered available jobs We cannot discern from this record whether the Respondent has actually taken all the steps that the Act requires to effect the reinstatement of the suspended employees Therefore we order the reinstatement of all 22 Any questions concerning the details of their reinstatement will be left to the compliance stage of this proceeding i 241 NLRB 27 (1979) 2 NLRB v Southern Greyhound Lines 426 F 2d 1299 (5th Cir 1970) cited by the majority lends scant support to its position In the first place that case concerned an employee who was fired -not suspended- at the outset of a strike for refusing to cross a picket line Moreover in Southern Greyhound (which preceded Abilities & Goodwill) the Board as sessed backpay only from the end of the strike not from the date of the discrimination think that suspended employees normally would view seeking reinstatement as futile,3 I would pre sume, absent contrary evidence, that the failure of suspended strikers to seek reinstatement is the result of their continued voluntary withholding of their services In this case, however, such contrary evidence does exist On January 2, approximately 12 of the 22 striking employees appeared at the plant gate and were informed by Personnel Director Black that they had been replaced In my view, a reason- able striker (including those who did not go to the plant on January 2) would have concluded at that point, from the fact that more than half of the strikers had been replaced, that it would be futile to apply for reinstatement Accordingly, and con- sistently with the rationale of Abilities & Goodwill, I would assess backpay for all the strikers beginning on January 2 4 3 Indeed where (as here) employees are suspended indefinitely because they have refused to return to work there is every reason to assume that (again as here) employees who are ready to return to work will make appropriate inquiries 4 If before January 2 any strikers requested reinstatement and/or were informed that they had been replaced they should receive backpay from the earlier date Richard P Prowell Esq, for the General Counsel Robert 0 Sands Esq (Ogletree Deakins Nash Smoak & Stewart) of Atlanta, Georgia, for the Respondent Donna Musil, of Riverdale Georgia, for the Charging Party DECISION STATEMENT OF THE CASE PHILIP P MCLEOD, Administrative Law Judge I heard this case on 4 June 1987 in Buena Vista Georgia The charge that gave rise to this case was filed on 4 February 1987 by Industrial Union Department, AFL- CIO (the Union) against Cargill Poultry Company (Re spondent) On 20 March 1987, a complaint and notice of hearing issued, which alleges inter alia, that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) by suspending 22 named employees be cause they concertedly engaged in a work stoppage to protest working conditions In its answer to the complaint, Respondent admitted certain allegations including the filing and serving of the charge its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the status of Person nel Director David Black as a supervisor and agent of Respondent within the meaning of Section 2(11) of the Act Respondent also admitted that the named individ uals ceased work concertedly and engaged in a work stoppage Respondent denied that it suspended these in dividuals and denied having engaged in any conduct that 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would constitute an unfair labor practice within the meaning of the Act At the trial here all parties were represented and of forded full opportunity to be heard , to examine and cross examine witnesses , and to introduce evidence Fol lowing the close of the trial, counsel for the General Counsel and Respondent both filed timely briefs with me that have been considered On the entire record in this case and from my observa tion of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Cargill Poultry Company is , and has been at all times material, a Delaware corporation with an office and place of business at Buena Vista Georgia, where it is en gaged in the processing of poultry During the past cal endar year, which period is representative of all times matenal Respondent sold and shipped from its Georgia facility products valued in excess of $50 000 directly to customers located outside the State of Georgia Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE UNFAIR LABOR PRACTICES During the morning of 31 December 1986, employees working in Respondents cut up department, where whole chickens are cut into appropnate parts concerted ly stopped work because the temperature was too cold in their work area General Manager Bill Tracey Personnel Director David Black, and Tim Erslinger , whose posi tion with Respondent is not identified in the record, held a meeting with employees of the cut up department in the employee breakroom in order to discuss the problem that led to this work stoppage Employees explained that they were bothered by a fan blowing cold air from the outside in on them Tracey told employees the fan was an exhaust fan that blows air out not in Tracey told em ployees it was the middle of the production day and asked them several times to return to work Tracey told the employees that if they wanted to he would discuss their problems further after the shift was over but that they needed to go back to work None of the employees responded or returned to work One employee whose identity is unknown, asked Tracey if the employees were going to be fired Tracey replied No one is going to be fired Tracey told the employees that Respondent had customer orders to fill and told them how many chickens had to be processed Tracey then told the employees that if they did not return to work , they would be 're placed It was then approximately 10 30 am Tracey told employees that he expected them to return to their work stations by 10 35 am or that they would be clocked out Tracey and Black left the employee breakroom, while Erslinger stayed with the employees Black returned to the breakroom approximately 10 minutes later As Black admits, Collectively the cutters said they were not going back to work ' Erslinger in formed the employees that they were clocked out and that they should leave the premises Erslinger and Black accompanied the employees to Respondents entrance gate When they arrived at the entrance gate employees asked Black what their present status was with Respond ent As Black admits, I advised them that they were suspended pending investigation Employees asked if they were fired , and Black again told employees they were suspended pending investigation ' Black then tes tified, I informed them that we would notify them by phone or through the mail After these employees left Respondents facility on 31 December Black immediate ly telephoned contacted and obtained employment com mitments from replacements for all the employees who participated in this work stoppage Black testified that on 1 January 1987 employee Fannie Pugh, who Black referred to as a former cutter, telephoned Black and stated that she wanted to return to work Black told Pugh that she had been re placed and her job was not available Many of the employees who engaged in the work stoppage on 31 December returned to pick up their pay checks on Friday, 2 January When they did so, they gathered at Respondents entrance gate and were met by Black After Black distributed the paychecks to the em ployees, someone in the group asked Black if they had been fired Black, who was not able to identify particular individuals who were in the group at that time , testified that he told the group they had been replaced Between 31 December and 14 January Black received telephone calls from at least three employees including Annie West Gwenda Crawford , and Annette Wood ward, asking if they could return to work Black testa fled I explained to them all that they had been re placed Black does not claim that he told any of these individuals about any prospect of returning to work with Respondent In an effort to show that employees were neither dis charged nor suspended , but were simply replaced in the same manner that economic strikers may be replaced, Respondent offered into evidence two newspaper articles from the Columbus, Georgia Enquirer" dated 3 and 8 January 1987 The article dated 3 January contains the following relevant paragraphs Twenty one employees of Cargill Poultry s proc essing plant here claim they re being replaced after seeking better working conditions [Employee Zelma Ghant] said workers were told they had 3 minutes to go back to work or clock out They refused and were told they were suspend ed and ordered to leave, she said They [employees] said they later heard from other employees that they had been fired The article that appeared on 8 January contains the followingrelevant paragraphs A group of workers who were fired by Cargill Inc last week are picketing the poultry processing company's Buena Vista, Georgia, plant until they get justice,' a spokeswoman said Wednesday CARGILL POULTRY CO 743 New workers were hired to replace the 22 women the day after they left the plant General Manager William Tracey said in a prepared state ment While those employees have been replaced, they are subject to recall if jobs become available within the plant," Tracey said He refused to answer spe cific questions about the walkout The article dated 8 January does not contain any state ment by Tracey that would indicate he specifically denied or attempted to respond to the statements con tained in the article dated 3 January that employees had been "suspended or had been fired' On 14 January 1987, Respondent mailed letters to each of the employees setting forth their status with Respond ent The letter first referred to the fact that ' replace ments" had been hired in their place The letter then in formed them of their status as follows In order to be considered for any job vacancy occurring in the plant you must make an uncondi tional offer to return to work If you wish to make an unconditional offer to return to work, you should personally contact David Black, the person nel manager You will be placed on a hire list You will then be eligible for any plant openings for which you are qualified unless you have in the meantime obtained regular and substantially equiva lent employment Your life, dental and health insur ance benefits will continue through February 1 1987 You may continue these benefits by paying the cost yourself If you wish to continue coverage, you will have to contact David Black before Janu ary 23, 1987 On 5 February 1987, Respondent mailed another, almost identical letter to employees After these letters were sent to employees, five employees responded by contacting Black At some later date, all five of these employees were offered positions with Respondent and four of the five have returned to work Analysis and Conclusions The position of counsel for the General Counsel is simple and straightforward He points out Respondent admits that the employees action in ceasing work on 31 December was concerted The work stoppage resulted from employee complaints concerning it being too cold in their work area and therefore related to their working conditions Accordingly, the employees conduct was both concerted and protected activity The General Counsel argues that based on the admissions of Personnel Director Black it is clear that employees were suspend ed Citing Conair Corp, 261 NLRB 1189 1190 (1982) and Pennypower Shopping News, 253 NLRB 85 (1980) the General Counsel argues that Respondents conduct con stitutes a clear violation of Section 8(a)(1) of the Act Respondents position is more convoluted In its post trial brief, Respondent argues, The cases establish that the General Counsel has the burden of proving that the employer engaged in a course of conduct which would have led reasonably prudent striking employees to con clude that they had been discharged (Emphasis sup plied) Respondent argues at length why it should be found that the employees involved in this work stoppage were not discharged Respondent discusses numerous cases and, in conclusion, argues that its own conduct is inconsistent with a finding that its employees were dis charged This entire line of argument is misplaced for the simple reason that the complaint does not allege, and the General Counsel does not argue that the employees were discharged Rather, the complaint alleges that the employees who engaged in the work stoppage on 31 De cember were suspended Reduced to its simplest form, Respondents primary ar gument is that the employees were not actually suspend ed for engaging in the work stoppage on 31 December Personnel Director Black admits he told the employees who engaged in the work stoppage on 31 December that they were suspended pending investigation ' In its post trial brief, Respondent acknowledges Counsel for Gen eral Counsel will argue that the use of the word suspen sion is disciplinary in nature The brief continues, The company concedes that this is the usual connotation of the term Nevertheless, Respondent argues that the Act of suspension never took place Respondents argu ment that employees were not actually suspended is based on the fact that no record of a suspension was ever made on employee personnel files the employees were carried on company records in a leave of absence status and Respondent continued insurance coverage of the em ployees and eventually informed them in writing that they had the right to continue insurance coverage by paying the premiums themselves In essence Respondent argues it should not be found to have suspended the em ployees because the Company treated the employees consistent with their status as strikers I reject Respond ent s argument that these facts may be relied on to find that the employees were not suspended To rely on these facts is to analyze the situation from Respondents own perspective In its posttnal brief Respondent acknowledges that the appropriate standard necessarily requires the Board to view the communications made by the employer through the eyes of the employees Respondent, like counsel for the General Counsel, cites Pennypower Shop ping News supra I conclude that through the eyes of the employees, they had every reason to believe they were in fact, suspended by Respondent for the engaging in the protected concerted work stoppage on 31 December While employees were told on 31 December that no one was going to be fired for engaging in the work stoppage, they were also told that if they did not return to work in 5 minutes they would be clocked out After being clocked out Personnel Director Black accompanied the employees to Respondents entrance gate At that point Black informed the employees not once but twice that they were suspended pending investigation Black also told the employees that Respondent would inform them of their status by telephone or through the mail The em 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees were in no position to know that Respondent carried them on company records in a leave-of-absence status. Nor did they have anyway of knowing prior to 14 January that Respondent was continuing insurance cov- erage for their benefit. Black admits that between 1 Janu- ary and Respondent's letter on 14 January, at least four employees telephoned Black asking about their job status and/or seeking to be reinstated. Black simply told them that they had been replaced, a fact not inconsistent with a disciplinary suspension. Black does not claim to have told any of these employees that they had not actually been suspended, that he misspoke when he told them they had been suspended, or that Respondent was treat- ing them as "strikers." As Respondent's own evidence indicates, the employees were quoted in a newspaper ar- ticle on 3 January as having been told by Respondent that "they were suspended and ordered to leave." Al- though General Manager Tracey released a prepared statement to the news media on 7 January, which was quoted in part in an article on 8 January, Tracey simply stated, "While those employees have been replaced, they are subject to recall if jobs become available within the plant." Tracey said nothing in his statement to counter or correct Black having told employees that they had been suspended or the statements reported in the prior news article of 3 January that employees had been "sus- pended and ordered to leave." Through the eyes of the employees, they had every reason to believe they had been suspended, as they had been told, not by a supervi- sor, but by Respondent's own personnel director. Based on the above, I also find that the employees who en- gaged in the protected concerted work stoppage on 31 December were in fact suspended for doing so, and Re- spondent thereby violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent Cargill Poultry Company is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The employees of Respondent, named below, who worked in Respondent's cut-up department, engaged in a concerted work stoppage to protest working conditions at Respondent's facility, and that work stoppage was protected concerted activity within the meaning of the Act. 3. Respondent suspended the employees named below because they engaged in a protected concerted work stoppage, and Respondent thereby violated Section 8(a)(1) of the Act: Brenda Porter Ernestine Chinn Elnora Taylor Annette Woodward Bernice Richardson Loretta Hudson Beverly Riggins Patsy Carter Mary Banks Virginia Hubbard Teresa Thornton Zelma Ghant Emma Street Gail Denmark Sylvia Wilson Gloria Smith Barbara Hall Shirley Sistrunck Ellin.e Johnson Gwen Crawford Fannie Pugh Annie West 4. The unfair labor practices that Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Counsel for the General Counsel argues that because employees were discriminated against while engaged in a protected work stoppage, i.e., a strike, the appropriate remedy should include backpay from the date they were suspended to the date when Respondent should offer them reinstatement, and not from the date of any uncon- ditional offer by them to return to work. The General Counsel relies on Abilities & Goodwill, 241 NLRB 27 (1979), cited with approval by the Board in GSM, Inc., 284 NLRB 174 fn. 4 (1987); and Goodie Brand Packing Corp., 283 NLRB 673 (1987). Respondent argues that the type of remedy set forth in Abilities & Goodwill, supra, is not appropriate. Respond- ent argues, "Abilities & Goodwill applies only in the case of the discharge of strikers, which in theory generally makes an offer to return to work by the strikers a futile effort." Alternatively, Respondent argues that if backpay is appropriate, "It is apparent that the amount of back- pay should not exceed the period of suspension," which Respondent argues ended by its letter to employees on 14 January. At first blush, Respondent's argument that the suspension of the employees ended with its letter to them on 14 January carries considerable appeal. There is no question that Respondent's letter of 14 January put the employees in the same position they would have been in had they gone out on strike on 31 December and remained on strike throughout that period. As of 14 Jan- uary, Respondent acknowledged to the employees that it would accord them rights due economic strikers as re- quired by Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The flaw in Respondent's argument, however, and the reason I reject it, is that Respondent's letter to employees on 14 January did not in fact remedy the unfair labor practice. Replacements were hired not while the employees were on strike but while they were sus- pended. While Respondent argues that the type of remedy in Abilities and Goodwill, supra, is not appropriate because it applies only when an offer to return to work by the strikers would be a futile effort, and according to Respondent the strikers in this case had no basis for be- lieving that an offer to return to work would be futile. The facts here show that at least four employees who did attempt to return to work between 31 December and 14 January were told they could not do so because they had been replaced. Thus, while the unfair labor practice had not been remedied, the efforts of the employees to CARGILL POULTRY CO return to work were flatly rejected by Respondent Re spondent should not be allowed to benefit from its unfair labor practice by securing replacements for the discri manatees while they were on suspension I fmd that Re- spondent s unfair labor practice cannot be fully remedied until it offers to reinstate the suspended employees to the job positions they held prior to being suspended, even if it means discharging, if necessary, the replacements that were hired during the period of the suspension For this reason, I conclude that the backpay remedy set forth in Abilities & Goodwill, supra, is the appropriate remedy to use in this case Counsel for the General Counsel has requested that the remedy include a visitatonal clause giving the Gener al Counsel certain specific discovery powers during the compliance stage of this proceeding The Board has granted such a request only on a case by case basis when it has felt such a clause is warranted Counsel for the General Counsel points to no specific facts and no spe cial circumstances that would warrant such a clause in this case and the request is denied On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edi ORDER The Respondent Cargill Poultry Company, Buena Vista Georgia its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Suspending or otherwise discriminating against em ployees for engaging in a protected concerted work stop page called to protest working conditions (b) In any like or related manner interfering with, re straining or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Brenda Porter, Ernestine Chinn, Elnora Taylor Annette Woodward Bernice Richardson Loret to Hudson, Beverly Riggins Pasty Carter Mary Banks, Virginia Hubbard, Teresa Thornton Zelma Ghant, Emma Street, Gail Denmark Sylvia Wilson Gloria Smith Barbara Hall Shirley Sistrunck Elline Johnson, Gwen Crawford, Fannie Pugh and Annie West immedi ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, discharging if necessary any replacements for these employees (b) Make whole the employees named above for any loss of earnings or benefits they may have suffered by reason of the discrimination against them by paying them a sum of money equal to the amount they normally would have earned from the date of the discrimination to the date of Respondent's offer of reinstatement less net ' 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 745 interim earnings, with backpay to be computed in the manner described in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner pre scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) (c) Remove from its files any reference to the suspen sion of the employees named above and notify them in writing that this has been done and that evidence of the unlawful suspensions will not be used as a basis for future personnel actions against them (d) Preserve and on request, make available to the Board or its agents for examination and copying, all pay roll records, social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its Buena Vista, Georgia facility copies of the attached notice marked Appendix 2 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 2 If 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT suspend or otherwise discriminate against employees for engaging in a protected concerted work stoppage called to protest working conditions 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act WE WILL offer Brenda Porter, Ernestine Chinn, Elnora Taylor, Annette Woodward, Bernice Richardson Loretta Hudson, Beverly Riggins, Pasty Carter Mary Banks, Virginia Hubbard, Teresa Thornton, Zelma Ghant, Emma Street, Gail Denmark, Sylvia Wilson, Gloria Smith, Barbara Hall, Shirley Sistrunck, Elllne Johnson, Gwen Crawford, Fannie Pugh, and Annie West immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges WE WILL make whole the individuals named in the preceding paragraph for any loss of earnings or benefits they may have suffered by reason of the discrimination against them and pay to them a sum of money equal to the amount they normally would have earned from the date of the discrimination to the date of our offer of rein statement, less net interim earnings, with appropriate in terest WE WILL remove from our files any reference to the suspension of the individuals named above and notify them in writing that this has been done and that evi dence of the unlawful terminations will not be used as a basis for future personnel actions against them CARGILL POULTRY COMPANY