J. M. Sahlein Music Co., Inc.

842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J. M. Sahlein Music Company, Inc. and Teamsters, Warehousemen and Miscellaneous Union, Local No. 860, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Cases 20-CA-22390 and 20-CA--22598 September 25, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 6, 1989, Administrative Law Judge Clifford H. Anderson issued the attached de- cision. The Respondent and the Charging Party filed exceptions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, J. M. Sahlein Music Company, Inc., South San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. ' The Charging Party has excepted to some of the judge's credibility finchngs.The Board's established policy is not to overrule an admmistra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. We correct the following Inadvertent errors in the judge's decision. In sec. III,B, the date of the letter of the Respondent's counsel to the Union's business agent should be October 21, 1988. In the next to last sentence of sec. III,E,1,b,ii, par. 4, insert "not" before "unconditional." In the last line of sec. III,E,2,b, par. 3, the date of the Union's letter should be Apnl 14, 1989. In the remedy section, par. 1, the date of the Respond- ent's refusal to reinstate employees Hackett and Manzano should be No- vember 11, 1988. 2 While adopting the judge's finding that the Respondent failed to prove that any of the replacement employees were permanent employees, we note that it is the status of Whitebear and Nelson, who were the strik- er replacements at the time the Union made its unconditional offer to return to work, that is determinative of the issue of whether the striking employees had a right to immediate reinstatement. The Respondent ad- duced even less evidence regarding the asserted permanent status of Whi- tebear and Nelson than it did concerning the status of the replacement employees who succeeded them, Monterrosa and Manual. a We have reviewed the judge's recommended Order under the stand- ard of Mckmott Foods, 242 NLRB 1357 (1979), and have concluded that the narrow cease-and-desist language "in any like or related manner" is appropnate rather than the broad cease-and-desist language "in any other manner" used by the judge. We shall modify the judge's recommended Order accordingly. 1. Substitute the following for paragraph 1(d). "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. 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 ordered us to post and abide by this notice. WE WILL NOT fail and refuse to reinstate our striking employees on their unconditional offer to return to work when their positions are filled by temporary replacements. WE WILL NOT fail and refuse to acknowledge, sign, retroactively implement, and abide by our agreement with Teamsters, Warehouse and Miscel- laneous Union, Local No. 860, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, on terms of a new collective-bargaining agreement effective April 14, 1989. WE WILL NOT improperly withdraw recognition of the Union as the exclusive representative for purposes of collective bargaining of the employees in the unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL reinstate employees John Hackett and Sal Manzano to their former positions and WE WILL make them whole for any and all losses they may have suffered because of our failure to rein- state them on November 11, 1988, with interest. WE WILL acknowledge, sign, implement, and abide by our agreement with the Union reached by means of the Union's acceptance letter of April 14, 1989. WE WILL either prepare and submit to the Union a document reflecting the complete agree- ment of the parties or we will submit to the Union a document completely reflecting the specifics of our proposals so that the Union may prepare the new collective-bargaining agreement. In any event, WE WILL sign, acknowledge, retroactively imple- ment, and abide by such agreement. WE WILL make whole all unit employees, includ- ing discriminatees Hackett and Manzano, for any 299 NLRB No. 138 J. M. SAHLEIN MUSIC CO. 843 and all losses suffered as a result of our failure to acknowledge and apply the terms and conditions of the agreement reached with the Union on April 14, 1989, with interest. WE WILL recognize Teamsters, Warehouse and Miscellaneous Union, Local No. 860, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, as the ex- clusive representative of our employees for purpose of collective bargaining in the following unit: All regular full-time and part-time warehouse- men of the J. M. Sahlein Music Company, Inc., excluding all clerical employees, profes- sional employees, guards and supervisors as defined in the Act. J. M. SAHLEIN MUSIC COMPANY, INC. Barbara D. Davison, Esq., for the General Counsel. George King and Jordan J. Yudien, Esq. (King, Shapiro, Mittelman & Kolin), of Oakland, California, for the Re- spondent. Andrew H. Baker, Esq. (Beeson, Tayer, Silbert, Bodine & Livingston), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this case in San Francisco, California, on August 2 and 3, 1989. Posthearing briefs were submitted on Octo- ber 12, 1989. The matter arose as follows. On December 19, 1988, Teamsters, Warehouse, and Miscellaneous Union, Local No. 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Charging Party or the Union) filed a charge docketed as Case 20-CA- 22390 with Region 20 of the National Labor Relations Board against J. M. Sahlein Music Company, Inc. (Re- spondent). Following an investigation, the Regional Di- rector for Region 20 of the National Labor Relations Board on February 23, 1989, issued a complaint and notice of hearing regarding the charge and on April 19, 1989, issued an amendment to complaint. On April 18, 1989, the Charging Party filed a second charge against Respondent docketed as Case 20-CA- 22598. Following an investigation, the Regional Director for Region 20 issued a complaint and notice of hearing with respect to this charge on June 2, 1989. On that same date the Regional Director issued an order consoli- dating cases which consolidated the complaints for a common hearing and decision. The consolidated complaints allege that Respondent failed to reinstate three economic strikers in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (Act). The complaints further allege that Respond- ent reached agreement with the Union concerning terms of a collective-bargaining agreement covering certain of Respondent's employees represented by the Union, but that Respondent refused to sign a contract reflecting that agreement and, further, withdrew recognition of the Union as representative of unit employees, in each case violating Section 8(a)(5) and (1) of the Act. Respondent denies that it violated the Act as alleged in the complaints. More particularly, while Respondent did not contest it has failed and refused to offer the three striking employees reinstatement, it asserts it did so be- cause no positions became available to which the strikers were entitled. Respondent also contends one of the three strikers, Alan Mandujano, is a supervisor within the meaning of Section 2(11) of the Act and therefore not entitled to reinstatement under any circumstances. Fur- ther, while Respondent does not contest it has refused to sign any agreement with and has withdrawn recognition from the Union, Respondent asserts that no agreement was ever reached with the Union and that it withdrew recognition of the Union only after forming a good-faith belief that the Union no longer represented a majority of unit employees. All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, to examine and cross-examine witnesses, to argue orally, and to file posthearing briefs. On the entire record including helpful briefs from the General Counsel and Respondent, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing' FINDINGS OF FACT I. JURISDICTION At all times material, Respondent, a California corpo- ration with an office and place of business in South San Francisco, California, has been engaged in the nonretail sale of music products. In the course of its business oper- ations, Respondent annually purchases and receives goods and materials valued in excess of $50,000 directly from points outside the State of California. The pleadings establish and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a long-established wholesale musical in- strument distributor located in South San Francisco, California. Its president at all relevant times has been Alvin Cohen, its operations manager, Roberta Holden nee Cohen. Respondent's labor counsel has been George King, of the firm of King, Shapiro, Mittelman & Kolin. 1 As a result of the pleadings and the stipulations of counsel at the trial, where were few disputes of fact regarding collateral matters. Where not otherwise noted, the findings are based on the pleadings, the stipulations of counsel, or unchallenged credible evidence. 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent as part of its operations maintains a ware- house staffed, until the events in this controversy by three individuals: Alan Mandujano—foreman and Sal Manzano and John Hackett—warehousemen. At all relevant times until the events in controversy, the warehouse employees have been represented by the Union. 2 The last signed collective-bargaining agreement between the parties became effective in 1985 and expired by its terms on May 31, 1988. B. The 1988 Bargaining Strike, and Related Events In March 1988, the Union notified Respondent of its desire to open the contract "in its entirety." In July 1988, the Union sent a letter with the follow- ing text to Respondent's counse1:3 Enclosed please find the Memorandum of Terms of Settlement for Independent Employers from Teamsters Warehouse Union Local 860. Also, en- closed, are Subscriber Agreements for benefits. Please sign both Memorandum of Terms and Subscriber Agreement(s) to this Local Union. If you have any question, please contact Maria Griffith at the above phone number. Maria Griffith, business agent for the Union during a portion of the events in controversy, testified that she caused the memorandum of terms of settlement for inde- pendent employers to be mailed to Respondent before the first negotiation session between the parties. Re- spondent counsel's December 28, 1988 statement of posi- tion letter to the Regional Office investigating the charge notes that, as of the date of the Union's letter quoted above, the Union was insisting that Respondent sign the master settlement agreement negotiated between the Union and other employers. On September 21, 1988, the Union and Respondent met in negotiations. Respondent counsel's position letter describes the meeting succinctly: "[Ms. Maria Griffith] demanded that the Employer sign the pattern agreement, and the Employer insisted that they institute their own health and welfare plan." The parties met again on Octo- ber 21, 1988. Griffith testified that agreement was reached accepting the terms of the new master agree- ment except for its health, welfare, and pension provi- sions. As to these aspects Respondent counsel's position letter states: [Respondent] did not feel it was beneficial to its Employees that the Union employees should be treated any different than non-bargaining unit Em- ployees [capitalization in the original]. 2 The pleadings establish the following unit as Respondent's existing warehouse unit and its appropnateness as a unit for bargaining under Sec. 9(b) of the Act: All regular full-time and part-time warehousemen of Respondent excluding all clerical employees, professional employees, managers, guards and supervisors as defined in the Act. 3 The cover letter in evidence bears the dated receipt stamp of Re- spondent's law firm indicating the letter was received by the firm on July 6, 1988. By letter dated October 21, 1989, to Griffith, Respond- ent's counsel notified the Union: Reference is made to your demand for the com- pany's position in our recent collective bargaining negotiations. The company is willing to accept the terms and conditions of the Master Agreement, with the following exceptions: (1) the company will institute its own health and welfare plan, which we have previously supplied to you; (2) pensions will be deleted from the Collective Bargaining Agree- ment, and the company will include all employees in its present profit sharing plan. We believe that in the long run, our employees will be better benefited by this proposal and ask that you take this proposal to our employees as the company's final offer. We are, of course, available to sit down with you for further collective bargain- ing if you believe that it would be fruitful. We are also available for a federal mediator to be appoint- ed, if that is your desire. The company at this point in time is quite ada- mant that it will not change its position. Thank you for your consideration. A negotiation session was held on October 28, 1988. No change in position occurred. Griffith told Respond- ent's negotiators that she would talk to the unit employ- ees about Respondent's last offer and did so. The em- ployees rejected the offer4 and Griffith reported this fact back to the bargaining table. Respondent was unwilling to change its position. Griffith again consulted the em- ployees, polled them on the matter and, when the offer was rejected, commenced a strike in support of the Union's demands. All three unit employees ceased work and commenced picketing Respondent's premises. From the Union's perspective the strike went badly because the picketing was ineffective in disrupting ship- ping and receiving at the warehouse. Griffith spoke to King on the telephone on or about November 2, 1988. Griffith testified that she told King that the employees wanted to go back to work but that the health and wel- fare proposals of Respondent were a problem since the Union could not agree to a proposal that they were not fully familiar with. Under cross-examination by Respond- ent's counsel, Griffith reiterated that she did not tell King that the employees were unconditionally offering to return to work. Rather, she told King they were "thinking about going back" depending on developments respecting the employer's proposal. King responded that 4 As a result of a misunderstanding or miscommunication, the specifics of Respondent's existing nonrepresented employee health coverage—i.e., the coverage Respondent was proposing as part of a new agreement— was not accurately described to the unit employees who were told in error that no dental coverage was included in the proposed health plan. There was some evidence that this miscommunication regarding the health plan's coverage may have caused the employees to reject Re- spondent's offer and thereafter strike, where agreement might have other- wise been possible and the strike avoided, had the coverage been accu- rately described to employees. There is, however, no evidence or argu- ment that this circumstance should be in some manner held against Re- spondent in deciding the Issues. J M SAHLEIN MUSIC CO 845 he would send information on the proposal, talk to Presi- dent Cohen, and get back to Griffith Griffith testified that King called her on November 11, 1988, and told her that Respondent would immediately reinstate Alan Mandujano to his foreman position, but that warehousemen Sal Manzano and John Hackett had been permanently replaced King said Respondent was unwilling to fire the replacements but would recall the two strikers by seniority when vacancies became avail- able Griffith testified that she told King "we wanted to go back to work immediately" Griffith testified that King did not set a time limit on the employer's offer but told her that he was going on vacation and that he "probably" told her that his office would know where to reach him More specifically, King told Griffith of his itinerary and gave her a phone number where he would be reached during part of his holiday in New York Griffith did not immediately accept Respondent's offer respecting Mandujano and the other two individuals Following the telephone call she went to Respondent's premises to review the offer with the strikers She was unable to locate them and returned to the union offices There she reported the events to Union President Daniel Harnngton and told him to notify the members and take appropriate action Griffith then started a previously scheduled vacation Union President Harrington testified that shortly after Griffith went on vacation he telephoned Respondent's president Cohen He told Cohen that Mandujano had come in to the Union's offices and told Harrington that the other members were willing to let him go back to work Harrington added that he had learned that Cohen had discussed matters with Mandujano during the strike and that Harrington wanted to Icilarify a few of the issues" with Cohen Cohen, in Harrmgton's testimony, told Harrington that he wanted to end the conversation and directed Harrington to deal only with King on the matter Harnngton then contacted King's office but learned that King would be away until December 6 or 7, 1988 Harrington was not referred to another attorney in the firm nor did he ask that King be contacted by his office or how he could reach King directly Griffith returned from vacation on November 21, 1988 She went to Respondent's workplace and there polled the picketing employees who accepted Respond- ent's November 11, 1988 proposal to return Mandujano to work immediately and place the remaining two strik- ers on a recall list Griffith attempted to reach Cohen but was unable to do so She then called King's office and spoke to King's secretary, Cindy Collins Griffith asked Collins to tell Cohen that the Union had accepted Re- spondent's offer to reinstate Mandujano immediately Griffith testified that later Collins called her back and told her that Cohen was not "talking to anybody" until his counsel returned The following day Griffith was hospitalized and thereafter left her employ with the Union and had no further participation in the events Harrington called King on December 6, 1988 In that conversation Mandujano's circumstances were discussed King told Harrington that a permanent replacement had been hired for Mandujano so that no opening then exist- ed for any striking employees A meeting was scheduled for December 12, 1988 A second telephone conversation was held between King and Harrington on December 9, 1988, in which Respondent's position was described in greater detail On December 12, 1988, a meeting between King, Cohen, Harrington, and Mandujano was held Discussion of the various issues ensued Respondent held to its posi- tions respecting health and welfare and pension and profit sharing After discovery that dental coverage was mcluded in Respondent's proposal, Harnngton testified that he told the negotiators that the members accepted Respondent's proposal with the dental coverage included and that Respondent's "whole package was acceptable" save for the issue of reinstatement No agreement was reached however on the issue of striker reinstatement Respondent's position was that all positions had been permanently filled and that the strikers would be placed on a preferential hiring list without immediate reinstate- ment Harrmgton sought immediate reinstatement of all strikers or, failing that, immediate reinstatement of Man- dujano No further negotiations occurred On April 14, 1989, the Union's counsel sent a letter by facsimile transmission and postal service to Respondent counsel's offices with the following text As I advised you today, and as I advised George King yesterday, Local 860 wishes to accept the Employer's final offer for a collective bargaining agreement as articulated by the Employer on or about December 12, 1988 Please send a written col- lective bargaining agreement containing the terms agreed upon for Union signature at your earliest convenience On April 17, 1989, Respondent's law firm responded with a letter sent both by Postal Service and facsimile transmission to the Union's counsel with the following text My client has been apprised of Local 860's offer to accept the Employer's last proposal that was made in approximately October of 1988 It is my client's understanding that the Union no longer rep- resents a majority of the bargaining unit employees Additionally, at a minimum, my client has a good faith doubt based on objective considerations for be- lieving that the Union any longer represents a ma- jority of the bargaining umt employees For these reasons, my client is unable to accept the Union's offer to sign the Employer's last pro- posal To do otherwise would put the Employer in danger of violating Section 8(a)(2) of the National Labor Relations Act Similarly, for these same rea- sons( the Employer must withdraw further recogni- tion of the Union If you have any questions( please do not hesitate to contact me 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As of the time of the hearing Respondent has continued to refuse to sign any agreement and continues to deny that the Union any longer represents its employees C The Hiring of Replacement Employees and Their Union Sentiments The parties stipulated that the position of warehouse foreman was filled on November 16, 1988, with the hire of Ronald Disbrow Disbrow testified that he explicitly sought permanent work and was hired on that basis by Respondent The two warehouseman positions were filled on November 3 and 9 respectively but the replace- ments were discharged on December 19, 1988, on which date two new replacements were hired Edgardo Mon- terrosa and Hermogenes Manuel These three replace- ments remained in Respondent's employ at least until the time of the trial No contention was made that other po- sitions became available during relevant times or that these positions would not have been available to the strikers had they not been occupied by replacements Re- spondent was unwilling to remove Warehouse foreman replacement employee Ronald Disbrow testified to a telephonic meeting between him- self and the two other currently employed replacement employees at Respondent's facility utilizing a speaker- phone and counsel for Respondent Jordan Yudien who participated from his law offices In that discussion Dis- brow testified that he and each of the other two replace- ment employees told Yudien that they had been hired as permanent rather than temporary employees and that they had no interest in having the Union represent them Disbrow, the only witness to testify about this meeting, was unable to specify the date of its occurrence except in the most general terms Alvin Cohen, however, testified that counsel Yudien reported the conversation to him on April 16 or 17, 1989, which date he further testified was the day of or the day following Yudien's conversations with the replacements The employee meeting with Yudien was identified by Respondent as the first indica- tion of the sentiments of the replacement employees con- cerning union representation and was the sole basis for Respondent's April 17, 1989 withdrawal of recognition of the Union as representative of unit employees D The Supervisory Status of Mandurano The most recent collective-bargaining agreement cov- ering unit employees included a classification, "Foreman/Forelady " Mandujano held that position Mandujano originally obtained employment with Re- spondent in August 1986 in response to an advertisement seeking a warehouse manager Cohen testified Mandu- jano was hired as the warehouse supervisor, but in vari- ous correspondence signed by Cohen he refers to Man- dujano as the warehouse foreman Cohen testified that he expressly hired Mandujano as a statutory supervisor who was to be in charge of the warehouse and a member of the management team He also testified he made it clear to Mandujano dunng the hiring process that Mandujano was to be a supervisor who would direct and discipline employees rather than simply a lead or nonsupervisory employee Cohen testi- fied that during his employment Mandujano in fact ran the warehouse with warehouse employees reporting to him and generally being supervised by him Further, Cohen testified that Mandujano recommend- ed that Respondent hire warehouseman Hackett and that Cohen effectively relied on Mandujano's recommenda- tion substantially abbreviating the normal hiring proce- dures respecting Hackett on Mandujano's recommenda- tion Cohen also described a situation involving ware- house employee Dante Misenas Cohen testified that he learned that Misenas was not following Mandujano's in- structions, personally told Misenas that he was required to follow Mandujano's orders and, when Misenas de- murred, Cohen terminated him Misenas' termination letter stated in part You are being terminated because of your prior dis- ciplinary record and because of your direct insubor- dination today, June 2, 1987, to your Warehouse Foreman, Alan Mandujano In a general employment confirmation letter dated July 2, 1987, prepared at the request of Mandujano, Cohen confirmed Mandujano's employment and salary and added "As foreman, [Mandujaro] is in charge of the warehouse operators, including management of two fellow Teamsters warehousemen" On June 16, 1986, after Mandujano reported to Operations Manager Holden that Hackett was late to work, Holden prepared and Mandujano signed and delivered the following letter to Hackett This is your first warning letter In the past three weeks, you have consistently ar- rived late to work Per your contract, tardiness is not acceptable and will not be tolerated Sincerely, Alan P Mandujano Warehouse Foreman Alan Mandujano testified that he was much more a working foreman or lead employee rather than a statuto- ry supervisor and that he generally took all matters in- volving supervisory responsibilities to Cohen or his daughter for final decision Mandujano testified that he did not exercise the various authorities set forth m Sec- tion 2(11) of the Act and substantially diminished any su- pervisory role he had in the events reflected in the corre- spondence quoted above E Analysts and Conclusions The complaints present a variety of independent alle- gations and contentions They may be addressed as fol- lows 1 The striker reinstatement allegations a Alan Mandwano As discussed below, striking employees have certain reinstatement rights under the Act These rights however do not extend to supervisors Cf Armored Transfer Serv- ice, 287 NLRB 1244 (1988) Respondent contends that Termination Date (if any) Start Date J M SAHLEIN MUSIC CO 847 Mandujano was a supervisor This defense requires threshold consideration There was little direct factual dispute regarding Alan Mandujano's supervisory responsibilities To the extent testimony differed, I credit Alvin Cohen's testimony on the issue as being more direct, forthright, and credible His recitation of specific events and conversations was significantly more persuasive than Mandujano's attempts to discount his supervisory authority and his exercise of that authority Based on the testimony of Cohen which I have cred- ited above as well as the testimony of Holden and the documents Introduced, I find Mandujano in his capacity as warehouse foreman was a supervisor within the mean- ing of Section 2(11) of the Act He was explicitly given authority to direct other warehouse employees and he did so He was told his lure recommendation concerning employee Hackett was an effective one Further, I find that he did effectively recommend the hire of Hackett Cohen credibly testified he hired Hackett based on Man- dujano's recommendation substantially shortening the hiring processes usually undertaken by Respondent Further, a warning letter was issued over Mandujano's signature to a warehouse employee That employee at the very least was sure to regard Mandujano's authority over him as substantial irrespective of the circumstances of the letter's preparation At least one warehouse em- ployee was told by Cohen he must follow Mandujano's instructions That employee was subsequently discharged for "insubordination" towards Mandujano All the above justify a finding that Mandujano was a supervisor irre- spective of the subjective opinion Mandujano held re- specting his supervisory authority There seems little question that the other employees and management per- ceived Mandujano's authority as encompassing at least some of the mdicia set forth in Section 2(11) of the Act As the General Counsel conceded at the hearing, if Mandujano was employed as a statutory supervisor by Respondent he had no nghts to reinstatement under the Act and Respondent could not violate the Act by deny- ing or withholding reinstatement as alleged in the com- plaints Accordingly, having found Mandujano was su- pervisor, I shall dismiss that portion of the complaints dealing with him b John Hackett and Sal Manzano The General Counsel alleges John Hackett and Sal Manzano were denied their statutory rights to reinstate- ment in violation of Section 8(a)(3) and (1) of the Act Respondent does not deny failing to reinstate these em- ployees, but rather contends the strikers were not at any time entitled to reinstatement under Board law One of the venerable doctrines under the Act is that an economic striker is entitled to immediate reinstate- ment on an unconditional offer to return to work provid- ed there is a position available which has not been filled by a permanent replacement NLRB v Mackay Radio & Telegraph, 304 US 333 (1938), Laidlaw Corp, 171 NLRB 1366 (1968) It is appropriate therefore to consid- er separately below the unconditionality of the various offers made on the stnkers' behalf to return to work and the availability of employment, i e, the existence of per- manent replacements occupying the striking employees former positions, at the times the offers were made (1) The hire of replacements and the issue of their status The strike started on October 28, 1988, at which time the warehouse employees ceased work and joined the strike There is no dispute that the following individuals were hired as nonsupervisory replacement warehouse- men on the dates indicated and were terminated on the dates noted, if any Replacement Employee Name Michael Whitebear 11/3/88 12/19/88 Andrew Nelson 11/9/88 12/19/88 Edgardo Monterrosa 12/19/88 Hermongones Manual 12/27/88 - The record is devoid of direct evidence of any kind regarding the contract of employment entered into be- tween Whitebear and Nelson and Respondent and is equally devoid of evidence directly relevant to the ques- tion of the permanency of their employment There is in- direct evidence in the record of the statements made, as quoted supra and discussed below, by Respondent's counsel to the Union that the replacement employees had been lured permanently There is likewise no cogni- zable direct evidence of the permanent or temporary em- ployment status of Monterrosa and Manual 5 Respondent on brief simply states that it is "undis- puted" that Whitebear and Nelson were permanent re- placements as of their date of hire The General Counsel, citing cases discussed below, contends that Respondent failed to adduce any evidence on the permanency of the replacement employees and, accordingly, all replacement employees must be found to be temporary The Generals Counsel's argument requires consideration of the Board's decisional law on the burden of and sufficiency of proof of permanent employment status The status of a replacement employee as permanent or temporary is often critical to the resolution of striker re- instatement issues 6 The Board with court approval has 5 As discussed above, Warehouse Foreman Disbrow testified that he was offered and accepted permanent employment This is not evidence concerning the other replacements however, particularly since Disbrow testified that he specifically noted dunng his hire interviews he was not seeking temporary employment and was assured at the time of his hire that his position was permanent None of the other warehouse replace- ment employees testified nor did any agent of Respondent testify directly respecting the permanence of the replacements' employment Disbrow testified to certain statements made by other employees in his presence, but this evidence was clearly heresay and was not offered for the truth of what those employees reportedly said respecting the terms of their em- ployment nor would such hearsay testimony have been receivable for that proposition if so offered ° Respondent was apparently well aware of this issue's relevance to the allegations here Disbrow testified that counsel for Respondent, in prepar- Continued 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD explicitly held that the establishment of the status of re- placement employees as permanent, as opposed to tem- porary, is an affirmative defense with respect to which the employer bears the burden of proof Associated Gro- cers, 253 NLRB 31 (1980), and cases cited at 31-32 A belief that replacement employees are permanent existing "only m the mind of Respondent's president [is] a show- ing msufficient to satisfy Respondent's burden" Id The Board's decision in Hansen Brio& Enterprises, 279 NLRB 741 (1986), explicitly holds that an employer's statements to the union in negotiations that it intended to hire permanent replacements is not evidence of the hire of permanent replacements Rather, Hansen holds, in order to meet its evidentiary burden, the employer must present evidence of mutual understanding between the employer and the replacement employees that they were in fact hired permanently Given the explicit assignment of the burden of proof on this issue to Respondent and the specific rejection by the Board of the relevance of the only nonhearsay evi- dence extent on this record, it is clear that the General Counsel's arguments are supported by Board law and are persuasive Accordingly, based on the evidence and, more importantly, the lack of cognizable evidence on the subject, I find Respondent has failed to meet its burden of proving that any of the replacement employees7 were permanent employees Further, consistent with the Board decisions cited supra, I fmd the replacements were in fact temporary and not permanent (2) The unconditionality of the offers to return to work Griffith had conversations respecting the striking em- ployees desire to return to work with King on Novem- ber 2 and 11, 1988 Only Griffith testified concerning these conversations On November 2, 1988, Gnffith told King that the strike was not successful and the employ- ees were ready to go back to work On cross-examina- tion Griffith noted that the offer to return to work was not concrete but was rather tentative or exploratory De- spite the General Counsel's arguments to the contrary, I find the offer was not unconditional within the Board's interpretation of that term On November 11, 1988, King called Griffith and told her he had spoken with Respondent's president, King, and that Respondent was proposing to place the two nonsupervisory employees, Hackett and Manzano, on a recall list because Respondent did not intend to fire the replacement employees then occupying the stnkers' posi- tions Griffith told King in response "We wanted to go back to work immediately" I find that this statement by Griffith to Respondent's counsel was an unconditional offer made on behalf of the two nonsupervisory striking employees to return to work immediately Since Respondent was offering to put Man- dujano back to work immediately, the parties' positions mg for the instant litigation, noted that the question of the permanent or temporary status of the replacement employees was an aspect of the dis- pute being litigated 7 As noted supra, the Issue of Mandujano's reinstatement rights turned on his supervisory status and has been resolved against him Accordingly, Disbrow's status as a permanent or temporary replacement Is immaterial with respect to him were identical and the Union's offer may not be viewed as in some way conditional on Man- dujano's being offered reinstatement Griffith's demand that the two nonsupervisory striking warehousemen be put back to work immediately is at least impliedly a demand that the replacement employees then working be fired to make room for the two striking employees Such a demand, given Respondent's state- ment that it wished to retain the replacements, is not seemingly an unconditional offer to return to work Where the replacement employees are temporary em- ployees, however, the strikers have immediate rights to reinstatement The Board in Hansen Bros Enterprises supra, reversed an administrative law judge who found a similar demand unconditional The Board stated at 741 The judge found that the Union's offer on behalf of the striking employees to return to work was at all times coupled with a demand that all strikers be immediately reinstated to their former positions, and that any striker replacements in those positions be discharged We affirm the judge's finding for the reasons stated in his decision We disagree, however, with the judge's conclu- sion that this offer was not unconditional It is well established that economic strikers are entitled to im- mediate reinstatement upon an unconditional offer to return to work, provided their positions have not been filled by permanent replacements Thus, where the striker replacements are only temporary, an offer to return to work which demands no more than the discharge of those replacements is perfect- ly appropriate [Footnotes omitted ] Since I found Respondent failed to meet its burden of proof that the replacements were permanent and have found therefore that the replacements were temporary, it follows that the Hansen doctrine controls here Accord- ingly, I find that Griffith's November 11, 1988 statement to King, as quoted above, was an unconditional request on behalf of the two strikers to return to work Subsequent conversations between the Union's and Re- spondent's agents were argued to constitute additional unconditional offers, to return to work, to constitute modifications to earlier offers and to be circumscribed as litigable issues as a result of the manner in which the General Counsel pled her complaints I find it unneces- sary to address any of these arguments inasmuch as I find that the later conduct may not be fairly held to have either increased or in some way waived or modified the November 11, 1988 offer to return to work Respondent may not rely on later union demands made in response to a situation created by Respondent's failure to reinstate the two strikers Given the finding of an improper refus- al to reinstate based on the November 11, 1988 offer, the General Counsel's arguments about subsequent demands need not be considered for they do not change the result (3) Conclusion I have found that Respondent failed to meet its burden of proving that any of the replacements hired into the nonsupervisory warehouse positions were permanent J M SAHLEIN MUSIC CO 849 rather than temporary I have further found that Gnf- fith's November 11, 1988 offer to return to work made on behalf of Hackett and Manzano was unconditional Given the absence of permanent replacements or any other proffered reason for not reinstating the strikers at the time of their unconditional offer to return to work, I further find that Respondent was obligated to immediate- ly reinstate striking employees Sal Manzano and John Hackett on the Union's unconditional offer to return to work on their behalf made on November 11, 1988 I fur- ther find that by its failure and refusal to reinstate Hack- ett and Manzano at all times thereafter, Respondent vio- lated Section 8(a)(3) and (1) of the Act NLRB v Mackay Radio & Telegraph, 304 U S 333 (1938), Laidlaw Corp, 171 NLRB 1366 (1968) 2 The allegations of 8(a)(5) violations of the Act Two separate but related violations of Section 8(a)(5) and (1) of the Act were pled and litigated Respondent's withdrawal of recognition of the Union as the exclusive representative of unit employees and Respondent's denial that a binding agreement was reached with the Union on the terms of a new collective-bargaining agreement Since Respondent's defense to the withdrawal of recog- nition allegation has argued implication for the dispute concerning whether an agreement between the parties was reached, it is appropriate to address the withdrawal of recognition issue first a Respondent's withdrawal of recognition There is no dispute that, by means of the April 17, 1989 letter quoted, supra, Respondent withdrew recogm- ton of the Union and at all times thereafter maintained that position Nor is there any dispute that up until the time of Respondent's withdrawal of recognition, the Union had long represented umt employees and enjoyed at least a presumption of continuing employee support Respondent's defense to the General Counsel's allega- tion that it wrongly withdrew recognition of the Union as exclusive representative of its unit employees is straightforward and direct As Respondent counsel argues on brief Neither the facts nor the law are in serious dispute It is black letter law that during the term of a col- lective bargaining agreement, there is an irrebutta- ble presumption of the Umon's majority status, and following the expiration of the agreement that pre- sumption becomes rebuttable There is no dispute that in April, 1989, there was no agreement be- tween the parties, and thus the Union enjoyed a re- buttable presumption of majority status only This presumption may be rebutted by a showing of either good faith doubt of continuing majority status or an actual loss of majority status [Respondent] contends that the undisputed facts are that on April 17, when [Respondent] refused to accept the Union's offer to sign a collective bargain- ing agreement and withdrew recognition, the Union did not represent a majority of the unit employees Thus, not only was it lawful for [Respondent] to refuse to sign a contract and to withdraw recogni- non, but had it failed to do so, it could have been guilty of unlawfully extending recognition in viola- tion of Section 8(a)(2) and (1) of the Act Respondent's evidence of loss of union majority sup- port, and its sole justification for its good-faith belief of that fact, are the three replacement warehouse employ- ees' expressions of sentiment to counsel for Respondent Yudien as described above If these individuals' senti- ments are properly considered, no more than half of unit employees, less than a majority, sought union representa- tion The General counsel argues that the withdrawal of recognition was invalid because, as of the time the state- ments were made which formed the sole justification for Respondent's actions, employees Hackett and Manzano should have been reinstated and the temporary employ- ees on whose statements Respondent relied should no longer have been employed My findings, supra, respect- mg the General Counsel's striker remstatement allega- tions covering Hackett and Manzano support this argu- ment Disregarding the opinions of temporary employees Monterrosa and Manual, who were improperly holding the positions of Hackett and Manzano, Respondent's evi- dence fails to show either an actual loss of majority sup- port for the Union or evidence sufficient to support a good-faith belief by Respondent that the Union had lost its majority support among nonsupervisory unit mem- bers, i e, nonsupervisory permanent employees and strik- ers The General Counsel also attacks the credibility of the assertions of the three warehouse replacement employees to Yudien, argues that the statements were obtained un- lawfully, and that they were made in an atmosphere of unremedied unfair labor practices Finally, the General Counsel argues that under no circumstances could Re- spondent withdraw recognition, irrespective of employee sentiments howsoever polled, because of the Union's ear- lier acceptance of Respondent's last offer The General Counsel argues on brief Moreover, in view of the fact that the parties were bound to a collective bargaining agreement as of April 14, 1989, Respondent would not have been free to withdraw recognition and refuse to bargain even if it later obtained lawful grounds for believing that the Union had subsequently lost its majority status Parkview Furniture Manufacturing Co, 284 NLRB [947] (1986), United States Gypsum Company, 259 NLRB 1105 (1982) In view of my findings respectmg the strikers' rein- statement issues which render Respondent's arithmetic evidence of loss of employee union support insufficient, I find Respondent has failed to show either an actual loss or evidence sufficient to support a good-faith belief on its part that the Union had lost its majority support among nonsupervisory unit employees Having sustained the General Counsel's attack on Respondent's assertions in this regard, it is unnecessary to further consider the Gen- eral Counsel's other arguments in support of her attack on Respondent's justification for its withdrawal of recog- 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ninon Having found Respondent has an insufficient basis for withdrawal of recognition of the Umon, it follows that its actions were in violation of Section 8(a)(5) and (1) of the Act and I so find b The General Counsel's allegation that an agreement was reached The General Counsel argues that by December 1988, Respondent had an outstanding contract offer which, if not in a single writing, was nonetheless complete, specif- ic, and susceptible to acceptance by the Union The Gen- eral Counsel notes that the expired agreement plus the changes proposed by the Union specifically accepted by Respondent, coupled with the substitution of Respond- ent's existing profit-sharing and health and welfare plans for the Union's proposals, was Respondent's offer as of the final negotiation session on December 12, 1988 Respondent's defense on brief to these allegations of the General Counsel was limited to the arguments con- sidered under the withdrawal of recognition allegations portion of this decision, supra Counsel for Respondent during the trial also argued that there was no specificity of what master agreement was under discussion in nego- tiations and therefore no agreement could ever have been reached I reject this argument as unsupported by the evidence The record contains only one expired agreement and only one proposed set of changes to it of- fered by the Union The record does not support and I do not find any evidence of ambiguity regarding the Union's opening proposals which formed the basis for the modifications proposed by Respondent nor any other part of Respondent's final offer Respondent's October 21, 1988 letter to the Union, quoted supra, supports this finding Citing cases for the proposition that an offer remains outstandmg and susceptible to acceptance by the other side unless explicitly withdrawn or until circumstances arise which lead the parties reasonably to conclude the offer has been withdrawn, 8 the General counsel argues Respondent's offer was accepted by the Union's letter of September 14, 1989 I agree with the General Counsel and find a binding agreement was reached and Respondent was obligated on the Union's acceptance of Respondent's last offer on April 14—a date occurring before any suggestion that Respondent knew or believed the Union had lost its ma- jority support in the unit The various parts of the final agreement are clear The Union's proposals have been found clear and unambiguous above They are in evi- dence While those portions of the final agreement which were proposed by Respondent are not in the record, they were at the time of the 1988 negotiations existing benefits for nonrepresented employees and were presum- ably extant in written form There should be little if any difficulty in assembling the vanous proposals which con- stitute the complete agreement into a single document for signature Respondent's failure to acknowledge that 8 Shawns Launch Service, 261 NLRB 836 (1982), Pepsi Cola Bottling Co of Mason City Iowa, 251 NLRB 187 (1980), Pennasquitos Bottling Co, 236 NLRB 994 (1978), and, even where impasse has occurred, Bickerstaff Clay Products, 286 NLRB 295 (1987) an agreement has been reached and its failure to take rea- sonable steps to see that the agreement is reduced to writing and, further, its failure to sign, implement, and abide by the agreement is a violation of its bargaining obligation and a violation of Section 8(a)(5) of the Act Heinz Co v NLRB, 311 U S 514 (1941) F Summary I have found, supra, that Alan Mandujano was a su- pervisor within the meaning of the Act and had no statu- tory right to reinstatement with Respondent I shall therefore dismiss the complaints as to him I have found that John Hackett and Sal Manzatio through the Union offered unconditionally to return to work on November 11, 1988, at a time when their former positions were held by temporary employees The two strikers were there- fore entitled to immediate reinstatement Since Respond- ent, at that time and continuing to date has failed and re- fused to reinstate these two employees, I have found that Respondent's conduct violated Section 8(a)(3) of the Act I have found, supra, that Respondent withdrew recog- nition of the Union based on the sentiments of temporary employees holding the positions of strikers who had been improperly denied reinstatement Such sentiments are in- sufficient to show that the Union has lost its majority support among employees and are also insufficient to support an employer's good-faith belief that a union has lost employees' majority support Since Respondent therefore had no justification for withdrawing recogni- tion, I have found that by so doing Respondent violated Section 8(a)(5) and (1) of the Act I have found, supra, that as of April 14, 1989, Re- spondent had a complete contract offer outstanding which the Union could and by letter dated Apnl 14, 1989, did accept Accordingly, I further found that Re- spondent's failure and refusal at all times since that date to acknowledge, sign, implement, and abide by that agreement is a violation of Section 8(a)(5) and (1) of the Act REMEDY Having found the Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act I shall recommend that Respondent offer John Hackett and Sal Manzano full and immediate reinstate- ment to their former positions which they would have held, but for Respondent's wrongful refusal to reinstate them on November 11, 1989, discharging if necessary any employees hired to replace them Further, Respondent shall be directed to make Hackett and Manzano whole for any and all losses of earnings and other rights, benefits, and emoluments of employ- ment they may have suffered by reason of Respondent's discrimination against them, with interest Backpay shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), See also Florida Steel Corp, 231 NLRB 651 (1977), and J M SAHLEIN MUSIC CO 851 Isis Plumbing Go, 138 NLRB 716 (1962) The discnmma- tees shall also receive the benefits directed below re- specting contract remedies for Respondent's failure to acknowledge and apply the agreed on collective-bargain- ing agreement on and after April 14, 1989 Respondent shall be required to rescind its withdrawal of recognition of the Union and to affirmatively recog- nize the Union as the representative of its unit employ- ees Respondent shall be required to either prepare and submit to .the Union a complete collective-bargaining agreement reflecting the parties' agreement or to submit to the Union the written terms underlying its health, welfare, and profit-sharing proposals so as to allow the Union to prepare a written document reflecting the terms agreed on In either event, Respondent shall be re- quired to sign the completed agreement on request by the Union and to implement its terms retroactively to April 14, 1989, for all unit employees including the dis- cnmnatees named above, making all unit employees whole for any and all losses of benefits of any kind and shall pay appropriate interest on sums due and owing consistent with the cases cited above See also Ogle Pro- tection Service, 183 NLRB 682 (1970), for calculation of contractual backpay and Merryweather Optical Go, 240 NLRB 1213 (1979) Because Respondent's failure to reinstate its striking unit employees on their unconditional offer to return to work, its failure to acknowledge that it had reached an agreement with the Union on terms of a new collective- bargaining agreement and its withdrawal of recognition of the Union, collectively, strike at the very foundation of the Union's representational rights and goes to the heart of the Act I shall also require that Respondent be directed to not violate the Act in any other manner Hickmott Foods, 242 NLRB 1357 (1979) On the basis of the above findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 of the Act All regular full-time and part-time warehousemen, excluding all clerical employees, professional em- ployees, guards and supervisors as defined in the Act 4 The Union is the exclusive representative of Re- spondent's employees in the unit described above 5 Respondent's employees in the unit described above are covered by a collective-bargammg agreement be- tween the Union and Respondent which was agreed upon on April 14, 1989 6 Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing at all times since November 11, 1988, to reinstate striking employees Sal Manzano and John Hackett to their former warehouse positions 7 Respondent violated Section 8(a)(5) of the Act on and after April 14, 1989, by failing and refusing to ac- knowledge, sign, and apply an agreement on a new con- tract with the Union covering unit employees 8 Respondent violated Section 8(a)(5) and (1) of the Act on and after April 17,. 1989, by withdrawing and withholding recognition from the Union as the exclusive representative of unit employees for purposes of collec- tive bargaining 9 Respondent did not otherwise violate the Act as al- leged in the complaints On these findmgs of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, J M Sahlem Music Company, Inc , South San Francisco, California, its officers, agents, suc- cessors, and assigns shall 1 Cease and desist from (a) Failing and refusing to reinstate striking unit em- ployees to positions filled by temporary employees on the striking employees' unconditional offer to return to work (b) Failing and refusing to acknowledge, sign, imple- ment, and retroactively apply an agreement on a new collective bargaining with the Union reached on April 14, 1989 (c) Withdrawing and withholding recognition of the Union as exclusive representative of employees for pur- poses of collective bargaining in the followmg unit All regular full-time and part-time warehousemen of Respondent, excluding all clerical employees, pro- fessional employees, guards and supervisors as de- fined in the Act (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at South San Francisco, California facility copies of the attached notice marked "Appendix "1° Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily 9 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 10 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" 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (b) Offer employees John Hackett and Sal Manzano immediate reinstatement to their former positions, dis- charging, if necessary any erftployees hired to replace them (c) Make employees Hackett and Manzano whole for all losses of wages and benefits resulting from Respond- ent's wrongful failure to reinstate them on November 11, 1988, with interest, as provided for in the remedy section of this decision (d) Acknowledge and apply the agreement reached with the Union on Apnl 14, 1989, to all unit employees retroactively to that date making whole all employees who failed to receive contractual wages and other bene- fits since April 14, 1989, including discnmmatees Hackett and Manzano, with interest as provided in the remedy section of the decision (e) Either prepare a complete document reflecting the terms of the new agreement reached with the Union on April 14, 1989, or supply the Union with a complete document reflecting the terms of Respondent's proposals which were part of the agreement reached on Apnl 14, 1989, so that the Union may prepare a complete collec- tive-bargaimng agreement reflecting the terms agreed on In either event Respondent will acknowledge, sign, if re- quested by the Umon, retroactively implement, and apply the agreement through its life (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social secunty 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 (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply