Aluminun Cruisers, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1978

234 N.L.R.B. 1027 (N.L.R.B. 1978)

ALUMINUM CRUISERS, INC.
Aluminum Cruisers, Inc. and Larry T. Wayne, Wil-
liam D. Colvin III, Joseph Hollenkamp,' Edward
Hollenkamp, Sr.,' Mark Steven Tucker, Michael
C. Leasor, Blaine Morgan, Jr., and Lawrence J.
Wesley. Cases 9-CA-11047-2, 9-CA-11047-3, 9-
CA-I 1047-4, 9-CA-11047-5, 9-CA-11047-6, 9-
CA-11047-7, 9-CA-11047-8, and 9-CA 11047-9
February 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 30, 1977, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge, to
modify his Remedy, 3 and to adopt his recommended
Order,4 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below, and hereby orders that the Respon-
dent, Aluminum Cruisers, Inc., Louisville, Kentucky,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order, as so
modified.
1. Substitute the following for paragraph I(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
In his Decision. the Administrative Law Judge misspelled the names of
Joseph Hollenkamp and Edward Hollenkamp, Sr. The correct spelling is as
shown.
2 In its exceptions, the Respondent contends that the Administrative
Law Judge denied it its right to a fair and impartial hearing by exhibiting
bias and prejudice towards it and by directing an ethnic slur against the
Respondent's president. We have carefully reviewed the entire record. An
Administrative Law Judge has the duty as set out in Sec. 102.35 of the
Board's Rules and Regulations "to inquire fully into the facts as to whether
the respondent has engaged in or is engaging in an unfair labor practice
.... " To fulfill that duty, an administrative law judge has the authority-
as set out in subsection (k) of Sec. 102.35 "to call, examine, and cross-
examine witnesses .... " Thus, it is fully proper for an Administrative Law
234 NLRB No. 157
Judge to question witnesses, when necessary, to elicit relevant facts and to
develop a full record. We reject the Respondent's contention that the
Administrative Law Judge herein, by questioning witnesses and attempting
to forestall improper questions and answers, assumed the role of a
prosecutor and departed from his role of impartiality. While there are
instances in the record before us in which the Administrative Law Judge
exhibited impatience and made somewhat intemperate observations, we
conclude that, viewing the proceedings as a whole, the Respondent had a
fair and impartial hearing. Further, we do not find that any of the
Administrative Law Judge's remarks could fairly be interpreted as an ethnic
slur against the Respondent's president.
3 The Administrative Law Judge, citing Florida Steel Corporation, 231
NLRB 651 (1977), inadvertently specified interest to be paid at 7 percent;
however, there the Board stated that interest will be calculated according to
the "adjusted prime rate" used by the U.S. Internal Revenue Service for
interest on tax payments. See, generally, Isis Plumbing d Heating Co., 138
NLRB 716 (1962).
4 In par. 1(b) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner,"
rather than the broad injunctive language, "in any other manner," which the
Board traditionally provides in cases involving serious 8(aX3) discrimination
conduct. We shall modify the recommended Order accordingly
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agel.cy of the United States Government
WE WILL NOT fail or refuse to reinstate econom-
ic strikers who have unconditionally requested
reinstatement when work for which they are
qualified becomes available.
WE WILL NOT offer the stock checker position
to a new employee until we have offered the
position to the last of the qualified strikers on the
preferential hiring list.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer one of the following economic
strikers whose name appears on the current
preferential hiring list immediate and full rein-
statement to the job of stock checker or to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges,
dismissing if necessary anyone hired on or after
January 15, 1977. The five qualified strikers are as
follows: Lawrence J. Wesley, Woodrow Small-
wood, Orville B. Patterson, Edward Hollenkamp.
Sr., and Wade A. Mahoney.
WE WILL make the reinstated strikers whole for
any loss of earnings they may have suffered
because of our discrimination against them by
payment to them of a sum of money equal to that
which they normally would have earned until the
date on which we make a valid offer of reinstate-
ment, plus interest.
ALUMINUM CRUISERS,
INC.
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge: This
proceeding arose out of charges filed by employees, Larry
T. Wayne, William D. Colvin III, Joseph Hollenkemp,
Edward Hollenkemp, Sr., Mark Steven Tucker, Michael C.
Leasor, Wayne Morgan, Jr., and Lawrence G. Wesley
against Aluminum Cruisers, Inc., referred to herein as
Respondent or the Company, pursuant to which the
Regional Director for Region 9, on March 30, 1977, issued
an order consolidating cases, consolidated complaint and
notice of hearing alleging that the Company had engaged
in unfair labor practices violative of Section 8(a)(3) and (1)
of the National Labor Relations Act, by failing to reinstate
an economic striker.
Upon the basis of the entire record herein, including my
observation of the witnesses, and after due consideration of
the posthearing brief filed by the Company, and the
General Counsel's statements of position in a telegram, I
hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Kentucky corporation with princpal
office and plant at Louisville, Kentucky, manufactures
aluminum cruisers. In the course and conduct of its
business, Respondent annually sells and ships goods and
materials valued in excess of $50,000 from its Louisville,
Kentucky, facility to points located outside the State of
Kentucky.
I find on the basis of the foregoing admitted facts that
Respondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Company's answer admits,
and I find that Shopmen's Local Union No. 682, Interna-
tional Association of Bridge, Structual and Ornamental
Ironworkers, AFL-CIO, referred to herein as the Union, is
and has been at all times material to this proceeding, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue Presented and The Facts
The issue presented herein is whether, as alleged in the
complaint, the Company violated Section 8(a)(3) and (1) of
the Act by hiring a new employee, Donald Hill, as a stock
clerk instead of selecting one of 20 employees whose names
appeared on a preferential hiring list following their
economic strike against the Company. The facts regarding
this issue are as follows:
On October 10, 1976, the Company's production and
maintenance employees who, at all times material herein,
were represented by the Union commenced an economic
strike at the Company's Louisville plant. On January 15,
1977, the Union, on behalf of the Company's production
and maintenance employees, made an unconditional offer
to terminate this strike and to return to work in accordance
with a settlement proposal containing the following provi-
sion for the economic strikers:
There will be contract language to provide that the
company shall have the right to determine which
employees will be called back and when these employ-
ees will be called back to work. With respect to the
employees who will be called back at the conclusion of
the strike, the company will notify these employees by
telephone. Likewise, with respect to employees who
have been permanently replaced, the company will
notify these employees in writing of their replacement.
It is anticipated that all employees who will be
returning immediately to the company will report back
for work on or before Tuesday, January 17, 1977.
On January 24, the Company and the Union agreed
upon a preferential hiring list containing the names of 20
striking employees who had been permanently replaced
during the strike. The list which was to be effective as of
January 15, contained the names of all of the Charging
Parties and the following additional employees:
Henry Kaminski
Jerry Knight
Wade Mahoney
Orville Patterson
Joseph L. Yates
David M. Compton
John Hauck
Willard Keeling
Michael Owen
Woodrow Smallwood
Ronald E. Gordon
Thomas Burns
At the time of the hearing in this matter, the Company had
recalled six of the strikers on the preferential hiring list.
The incident which gave rise to the complaint occurred
on January 31. On that date, the Company hired Donald
Hill as a stock clerk or as setout in the collective-bargain-
ing agreement "stock checker" to fill eventually the
vacancy left by Eldon Todd who was a stock clerk class A,
and who did not return to work following the strike.
According to the applicable descriptions of the Company
work's classifications set forth in Section 10 of the current
collective-bargaining agreement, Todd's duties and those
for which Hall was hired were as follows:
STOCK CLERK-CLASS A
Whose duties require orderly stock keeping functions in
stock room. Receive stock and dispense a variety of
supplies, raw materials parts, tools or finished stock.
Responsible for initiating orders to replenish and
maintain
STOCK CHECKER
Count out, handle and deliver stocks and supplies in a
stock room under direction of stock clerk. Sort and
distribute stock to and from manufacturing, processing
1028
ALUMINUM CRUISERS, INC.
or storage areas. Includes knowledge of identity of
materials and follows prescribed quantity and timing
schedules. Accumulate orders and take inventories.
Hill came to the attention of Company President Garcia
through the recommendation of Company Personnel Man-
ager Jerry Howard. Hill worked for an automotive parts
supplier, and waited on Howard on several occasions,
when the latter was purchasing parts for the Company.
Howard advised Garcia that Hill was conscientious and
helpful to customers. Prior to hiring Hill as a "stock
checker" the Company posted a notice on the plant
bulletin board announcing that the Company was seeking
a stock clerk class B. The duties of that classification as set
out in the current collective-bargaining agreement were as
follows:
STOCK CLERK B
Whose duties required orderly stock keeping functions
in stock room. Receives stock and dispenses a variety of
supplies, raw materials, parts, tools or finished stock,
etc. Includes knowledge of identity of materials, follows
prescribed quantity and timing, schedules, keeps inven-
tory. Works under a minimum of supervision.
One employee bid for the job but was rejected for lack of
experience. The Company did not notify any of the strikers
on the preferential hiring list of the stockroom vacancy.
Five of the strikers on the preferential hiring list testified
as to their work experience in the Company's employ. First
to testify was Lawrence J. Wesley, who began his employ-
ment with the Company in April 1974 as a helper, sweeping
floors, and washing and cleaning boats. For about I month
the Company employed Wesley to distribute parts from the
stockroom to the production area. By the time of the strike,
Wesley was an accessory installer, class A, having pro-
gressed from accessory installer, class C.
As an accessory installer class A, Wesley was, according
to the contract, "to assemble on boat all parts normally
installed in final assembly. He [was] capable of installing
wiring, engines, consoles, water systems, radios, light
plants, air conditioning and any equipment required on the
work order." The contract also stated: "Works with a
minimum of supervision."
As an installer, Wesley would occasionally go to the
stockroom and obtain parts necessary for his work. When
his regular work became slack, the Company would assign
Wesley to work in the stockroom, I day or 2 days at a time.
Wesley credibly testified that he could identify at least 90
percent of the parts kept in the Company's stockroom.
Since 1974 Wesley has assisted in taking an annual
inventory of the parts in the stockroom as well as parts
stored elsewhere in the plant.
On May 4, 1976, the Company notified Wesley that he
was being placed on 6 months' probation. The notification
was as follows:
You were discharged on Friday, April 30th, for
taking property belonging to The Louisville and Jeffer-
son County Air Board. It is the Company's position
that your conduct in this matter was intolerable and
that your discharge was justifiable punishment for the
humiliation you have caused this Company and its
management.
However, in consideration of your good work record
prior to this incident and of the fact that you have
made restitution to the Air Board as well as your
apparent sincerity in expressing regret for your wrong
doing, the Company is offering you one last opportuni-
ty to redeem yourself.
Your discharge is hereby ammended to disciplinary
lay off with loss of pay of one week and one day
beginning Friday, April 30th through Friday, May 7th.
Furthermore, you are being placed on probation for six
(6) months, beginning May 1, 1976. During such six
month period any infraction of Company Rules shall
subject you to immediate discharge.
Be it understood that this reduction in the penalty
for your offense does in no way exonerate you nor does
it reduce the seriousness of the act.
/s/ William J. Howard
Personnel Manager
Woodrow Smallwood began his employment with the
Company on November 8, 1971, as a boat cleaner. His
duties at that point were to clean the finished cruiser, wash
the windows, and touch up the screws. After approximately
4 months, the Company transferred Smallwood to a
position in the assembly area which required that he supply
wood and parts to employees assembling cruiser compo-
nents.
The Company transferred Smallwood to the position of
accessory installer class C, 2 months later. According to the
contract, his duties required the installation of ornamental
trim, horns, glass, cleats, and other components. In this job,
Smallwood was required to identify parts. Smallwood also
installed gas tanks and flooring and wired engines. Finally,
Smallwood became a glass installer. In this assignment, he
installed all the glass on the Company's cruisers. From
time to time, the Company assigned Smallwood to work in
the stockroom on a temporary basis. According to Small-
wood's credited testimony, these assignments occurred
"once a week." Working in the stockroom, Smallwood
issued parts, and received and signed in for them. During
his tenure with the Company, Smallwood participated in
five annual inventories, identifying and counting parts, and
filling out inventory cards.
Orville Patterson spent his first 4 years with the Compa-
ny as an electrical assembler. He began his employment
with the Company in November 1968 as a class C electrical
assembler. This job required Patterson to install the wiring
of electrical consoles and generally complete all of the
electrical portion of cruiser construction. This work also
required that he obtain his parts from the stockroom and
that he be able to identify all the parts he needed to
accomplish his task. Occasionally, when the stock clerks
were not available, Patterson would go into the stockroom
and obtain his parts. Patterson became acquainted with the
bilge pumps, trim tabs, cylinders, running lights, fuses,
circuit breakers, spotlights, switches and other fixtures.
After 2 months Patterson became a class A electrical
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembler. According to the current collective-bargaining
agreement classifications, the requirements of this are:
Wires consoles and instrument panels, makes harnass,
wires engines, and any electrical component on a boat.
Works under a minimum of supervision.
For the second 4 years of his employment, and until the
strike, Patterson was an engine installer. His duties were to
install engines and connect them to the drive shaft. In this
job, Patterson became acquainted with additional compo-
nents and parts in the Company's inventory, including
collars, shafts, propellers, nuts and bolts, and electrical
components associated with the engine. Again, in this
capacity Patterson was required at times to go to the
stockroom and obtain parts necessary to perform his
functions. For the last 3 years of his employment, the
Company required him to make out written requests for
parts, a task which required that he identify parts by name.
On occasion, the Company assigned Patterson to work in
the stockroom, where he assisted in receiving, storing, and
issuing parts.
Edward Hollenkemp, Sr., began working for the Compa-
ny on November 20, 1975, as a class C accessory installer.
As required by the job description for that classification,
Hollenkemp installed cleats, horns, and small accessories
on cabin cruisers. After 3 or 4 months, the Company
promoted Hollenkemp, Sr., to the class B accessory
installer classification. The description of this classification
in the current collective-bargaining agreement is as fol-
lows:
ACCESSORY INSTALLER - CLASS B
Whose duties require the ability to assemble on boats
all parts normally installed in final assembly. He works
under supervision and assists Group A installers in the
more complex installations such as radios, air condi-
tioners, light plants, etc.
In addition to the requirements of his classification,
Hollenkemp, Sr., also performed woodwork. Aside from
the parts required to do the woodwork, all of the parts used
by Hollenkemp, Sr., as a class B accessory installer, were
stored in the stockroom. Occasionally, when Hollenkemp,
Sr., ran out of work at his regular job classification, the
Company assigned him to the work usually for I to 3 days.
He was assigned to the stockroom for as much as 2 weeks.
On the first occasion, Hollenkemp, Sr., attached drainage
cylinders to sink assemblies, a job usually performed in the
stockroom by stockroom employees. On other occasions,
Hollenkemp, Sr., assembled waterlines and gaslines in the
stockroom, also tasks usually performed by stockroom
employees. Aside from the assemblies which he made
during his assignment in the stockroom, Hollenkemp, Sr.,
performed other stockroom duties including returning
extra parts to their proper place on the shelves.
Hollenkemp, Sr., while assigned to the supply room, also
built compartmented wheeled carts, called roll-a-ways,
which were used to transport parts from the stockroom to
1 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied
397 U.S. 920 (1970).
production areas. Two roll-a-ways were used for each
cruiser. One was used to carry woodwork. The second
carried the remaining accessories to be attached to the
cruiser. Each work classification assigned to construct a
given boat had its parts in a separate compartment on the
roll-a-way. The roll-a-way compartments were filled by
stockroom employees according to a parts list for the
specific boat to be constructed. The parts list contained the
names and numbers of the respective parts. The number
corresponded to the number assigned to the stock item in
the Company's stockroom.
Hollenkemp, Sr., was acquainted with the stockroom
contents. On the last two occasions, when Hollenkemp, Sr.,
worked in the stockroom, he received shipments of parts
from suppliers which he counted, marked, and shelved,
tasks usually performed regularly by the assigned stock-
room employees. Hollenkemp, Sr., also issued tools on
hand receipts as did the regular stockroom employees. He
knew the nomenclature and location of most of the tools
stored in the storeroom. He knew the names of most of the
parts kept in the stockroom, particularly, the ones with
which he had worked. As for those that he was not familiar
with, he would ask the regular stockroom employees for
assistance in identifying and locating such parts. In
addition to the spare parts the stockroom contained
chemicals, fiberglass, tubes of glue, and similar materials
used in the construction of the Company's cruisers. Of
these items Hollenkemp, Sr. was fully aware and also
testified as to the uses to which some of these products
would be put. The last occasion on which Hollenkemp, Sr.,
worked in the stockroom was a period of 2 days, October 8
and 9, just prior to the economic strike which began on
October 10.
The Company hired, Wade A. Mahoney, on June 21,
1974, and initially employed him as a floor sweeper. His
duties were to sweep in and around the plant and pick up
scrap and other refuse. After 9 months in that job, the
Company transferred Mahoney to other duties which
included cleaning cruisers. He cleaned off the sawdust,
wiped windows, touched up scratches, and painted screws
to match the color of the surrounding material. After 6 or 7
months on this latter assignment, the Company classified
Mahoney as a production welder class B. Initially, the
Company utilized Mahoney's welding skill on the construc-
tion of the bottoms of 28- and 37-foot cruisers. He also
welded on superstructures. Occasionally, Mahoney would
go to the stockroom to obtain a drill bit or a tool.
On occasion, the Company would assign Mahoney to
work in the stockroom for brief periods shelving parts. The
total time he spent in the stockroom during his employ-
ment with the Company was 2 to 3 weeks.
B. Analysis and Conclusions
The General Counsel contends that this case is governed
by the Board's decision in The Laidlaw Corporation, which
relied on the Supreme Court's decision in Fleetwood
Trailer.2 The General Counsel contends in essence that
under the Board's Laidlaw decision the qualified economic
2 N.LR.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967).
1030
ALUMINUM CRUISERS, INC.
strikers in this case who had made unconditional applica-
tion for reinstatement were entitled to be offered the
opportunity to fill the stock checker position for new
employees which Donald Hill was hired.
In its posthearing brief, the Company stated its position
as follows: "The evidence in this record is that the
Respondent decided to hire Hill only after a good faith
determination that no qualified person existed on the
preferential hiring list. Certainly this is a 'legitimate and
substantial business justification' for the Respondent's
hiring of Hill."
I agree with the General Counsel that the Company's
refusal to offer the stock checker job opening to one of the
employees on the preferential hiring list violated Section
8(a)(3) and (I) of the Act. My reasons follow:
In Brooks Research & Manufacturing, Inc., 202 NLRB
634, 635-636 (1973), the Board observed that the Supreme
Court in Fleetwood Trailer, supra at 381, had held:
[T]he status of the striker as an employee continues
until he has obtained "other regular and substantially
equivalent employment" .... If and when a job for
which the striker is qualified becomes available, he is
entitled to an offer of reinstatement. The right can be
defeated only if the employer can show "legitimate and
substantial business justifications." N.L.R.B. v. Great
Dane Trailers, 388 U.S. 26.
In Brooks, supra, 202 NLRB at 636, the Board in
discussing its earlier decision in Laidlaw, supra, declared
that:
. . . economic strikers who unconditionally apply for
reinstatement when their positions are filled by perma-
nent replacements are entitled to full reinstatement
upon departure of replacements or when jobsfor which
they are qualified become available, unless they have in
the meantime acquired regular and substantially equiv-
alent employment or the employer can sustain its
burden of proof that the failure to offer full reinstate-
ment was for legitimate and substantial business rea-
sons. [Emphasis supplied.]
Thus, under Supreme Court and Board doctrine, the
Company's reinstatement obligations to the strikers on the
preferential hiring list included reinstatement to positions
which the strikers were qualified to fill.
The job opening which the Company offered to nonstrik-
er Hill, as described in the collective-bargaining agreement,
required the counting out, handling, and delivering of
stocks and supplies from the stockroom under the direction
of a stock clerk. The job also entailed sorting and
distributing stock "to and from manufacturing, processing
or storage areas," and required knowledge of the identity of
the supplies and parts in the stockroom. The stock checker
was also required to accumulate orders for parts and
supplies and take inventories. I find from the testimony of
strikers Wesley, Smallwood, Patterson, Hollenkemp, Sr.,
and Mahoney, that each of them had sufficient experience
at the Company's plant to qualify them for the stock
checker position. In particular, their testimony shows
familiarity with the identity and location of a substantial
portion of the Company's parts and materials. Further, it
appears that the Company recognized their ability to work
in the stockroom at least as stock checkers for, on occasion,
the Company employed each of them in the stockroom
performing the very tasks described under the classification
"stock checker" in the current collective-bargaining agree-
ment. Thus, it appears that the General Counsel has shown
that five strikers were qualified for the position which was
ultimately bestowed upon Donald Hill.
I find no merit in the Company's claim that striker
Wesley was not qualified because he was on probation for
an unlawful taking of property, and could not be trusted in
the stockroom. First, the plain meaning of the Company's
May 4, 1976, notice quoted above, was that the 6-month
probationary period would end on November 1, 1976.
Further, the notice does not suggest that this probation
rendered Wesley unsuitable for work in the stockroom.
These facts cast doubt on Company president George C.
Garcia's testimony to the effect that the strike tolled
Wesley's probationary period until such time as the
Company offered him reinstatement, and that the Compa-
ny found him unqualified for the stock checker position
because of his earlier "stealing." Further, for reasons set
out below, President Garcia impressed me as an unreliable
witness and I have not credited his testimony regarding
Wesley's qualifications for the stock checker position.
In an attempt to escape a finding of violation here, the
Company sought to establish that before hiring Hill,
President Garcia and Personnel Manager Howard careful-
ly considered the personnel records of all of the employees
on the preferential hiring list. According to the Company,
only after determining that none of the employees on the
preferential hiring list were qualified, did the Company
turn to Hill whose background satisfied the requirements
of the stock checker position. Thus, according to the
Company, it has sustained its burden of showing a
legitimate and substantial business justification for not
selecting a striker from the preferential hiring list rather
than Hill. I do not agree.
In attempting to make out its defense, the Company
introduced into evidence as "Respondent's Exhibit I" a
typewritten list dated February 8, 1977, bearing the names
of 19 of the 20 strikers whose names appeared upon the
preferential hiring list. Next to and under each name are
set forth facts regarding the individual's experience with
the Company and with other employers. On direct exami-
nation, President Garcia testified emphatically that Re-
spondent's Exhibit I was compiled on February 8, 1977,
"for recalling people. We wanted to know what different
classifications were available." Again, under my examina-
tion and cross-examination, Garcia testified that, in deter-
mining whether any employee on the preferential hiring list
was qualified for the stock checker's job, he consulted
Respondent's Exhibit I and determined from that list that
none of the employees were qualified for the stockroom
position. Once again, on cross-examination, President
Garcia agreed that on January 31 he consulted Respon-
dent's Exhibit I. On redirect examination the following
exchange occurred:
Q. Now Respondent's I is dated February 8, 1977,
which is some days after Mr. Hill was employed. Will
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you tell us whether or not all the information which is
set on Respondent's I was considered by you at the
time you reviewed the list of all employees on the
preferential list?
A. Yes sir.
Q. Where did you get that information?
A. We got this from personal experience and the
others was from their personal applications.
Q. From their personnel records?
A. Yes.
When confronted with his unlikely chronology, Garcia
seemed surprised. Later, when I examined President
Garcia, he denied that he used Respondent's Exibit I when
he decided that he would not hire any of the employees
listed on that exhibit. He testified that he did not look at
that list "because we hired Hill prior to this". Under my
questioning, Garcia testified that he compiled the data on
Respondent's Exhibit 1 after Hill was hired and that he had
prepared the information in longhand and given it to his
secretary for typing. However, he could not remember
when he had prepared the longhand listing. Then, after
testifying that he probably gave the pencil notes to his
secretary on February 8, he admitted that he did not
remember doing so as a matter of fact. In an apparent
attempt to establish the existence of a penciled version of
Respondent's Exhibit 1, at the "proper" time counsel for
the Company posed the following ambiguous question:
In any event, Mr. Garcia, regardless of the date on
which you handed the longhand list to your secretary,
tell us whether or not the longhand list containing this
information was made up prior to the time you hired
Mr. Hill?
Garcia's answer was "Yes sir." However, the Company did
not come forward with either the longhand list or the
secretary's testimony.
President Garcia's hasty attempt to replace his incredible
chronology with more plausible testimony regarding Re-
spondent's Exhibit I cast serious doubt upon his credibili-
ty. His repeated attempts to use self-serving declarations to
answer questions posed by counsel for the General Counsel
also detracted from his reliability as a witness. On occa-
sion, Garcia also detracted from his credibility when he
sought to avoid answering questions through the diversion-
ary tactic of engaging in verbal fencing with counsel for the
General Counsel. His generally defensive attitude while
testifying under cross-examination provided further
ground for my impression that Garcia's testimony regard-
ing the Company's decision to fire Donald Hill was wholly
unreliable as a source of credible evidence.
Nor did Personnel Manager Howard's testimony aid the
Company's defense. Howard first testified that after the
class A stock clerk position was vacated, the Company
posted a vacancy notice on the plant bulletin board seeking
a class B stock clerk. The Company rejected the one
employee, a spray painter, who responded to the plant
notice. When asked what he did next about filing the
vacancy, without mentioning the preferential hiring list
Howard answered "at that time I called Mr. Hill." At this
point, counsel for the Company then asked the following
question: "Prior to or after calling Mr. Hill, did you give
any consideration to the eligibility or qualifications of
employees on the replacement list?" Thereafter, following
my ruling on an objection that the quoted question was
leading, counsel for the Company rephrased the question.
Howard answered that at about the same time that the job
was posted, the Company considered the qualifications of
the employees on the preferential hiring list. Howard then
went on to testify that prior to determining that none of the
employees on the preferential hiring list were qualified for
the stock checker job, the Company had prepared a
typewritten list showing their qualifications, including their
experience in the Company's employ and their experience
as shown on their application. He also testified that after
viewing that list he and Garcia determined "that we had no
one on that list with the qualification that we needed in the
stock room." On cross-examination, Howard, as did
President Garcia, without hesitation selected Respondent's
Exhibit I as the list that he and President Garcia had used
to appraise the strikers' qualifications.
Indeed, the troublesome question was asked twice on
cross-examination and Howard twice agreed that Respon-
dent's Exhibit I was the very list that he and President
Garcia had used. It was not until counsel for the Company
flagged the date of February 8 by showing Respondent's
Exhibit I to Howard, asking him to read it and then finally,
asking him to "tell us whether you meant this exact
document or a typed list containing the information that is
on this list?" At this point Howard appeared to be sorting
out his options. He hesitated and then testified: "It was Mr.
Garcia's translation made up that day." Upon further
redirect examination Howard testified: "We had a list that
was compiled at the end of the strike that was similar in its
appearance to that list [Respondent's Exhibit I]. It had all
these names on it". Thus, as did Garcia, Howard, when
faced with the unlikely circumstance that Respondent's
Exhibit I dated February 8 could have been used in the
Company's decision to hire Hill on January 31, attempted
to save the day by grasping at the possibility that another
document of similar appearance was used to accomplish
the task. However, this testimony does not square with
President Garcia's assertions that the tyewritten Respon-
dent's Exhibit I was probably not prepared until February
8 and that prior to that time he had before him a
handwritten tabulation showing the names and qualifica-
tions of the employees on the preferential hiring list.
Howard's contradictory testimony and his attempt to
provide a hasty expedient to explain the incongruity
between the February 8 date on Respondent's Exhibit I
and his testimony that he and Garcia used it to make a
decision dated January 31 of the same year, persuaded me
that he was not trying to provide a full and forthright
account of the circumstances surrounding the hiring of
Hill.
In sum, I find that the Company has failed to substain its
burden of proving that its failure to offer the stock
checker's position to one of the strikers on the preferential
hiring list was the legitimate and substantial business
reasons. Instead I find from its hasty repudiation on its
own exhibit, and the fumbling attempts by witnesses
Garcia and Howard to come up with a list predating
1032
ALUMINUM CRUISERS, INC.
January 31, that the Company's defense was an after-
thought devised to avoid a finding of an unfair labor
practice in this case. Further, that the Company posted the
stock checker's job at the plant and afforded no such notice
to the strikers on the preferential hiring list suggests that
the Company did not consider any of them before
recruiting Hill on January 31, and I so find.
The Company's failure to offer the stock checker vacan-
cy to the five qualified strikers before offering the job to
Hill was contrary to the authorities cited above. Accord-
ingly, I conclude that the Company violated Section 8(a)3)
and (1) of the Act by refusing to offer that vacancy to any
of the five strikers whom I have found qualified for
reinstatement to the stock checker position.
THE REMEDY
Having found that the Company has engaged in certain
unfair labor practices, I shall recommend that the Compa-
ny cease and desist therefrom and takes certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Company violated Section 8(aX3 )
and (1) of the Act by failing and refusing to offer
reinstatement to a qualified striker on the preferential
hiring list as a stock checker, a job which became available
following the strike. I shall order the Company to seek to
fill that position from the following qualified strikers on the
preferential hiring list: Lawrence J. Wesley, Woodrow
Smallwood, Orville B. Patterson, Edward Hollenkemp, Sr.,
and Wade A. Mahoney.
I shall order the Company to offer one of the five
qualified strikers on the preferential hiring list immediate
and full reinstatement to the position of stock checker
without prejudice to the employee's seniority or other
rights and privileges, dismissing employee Donald Hill or
any other employee not hired from the preferential hiring
list for that position, if necessary, to make room for him;
provided, however, that the Company shall not offer the
stock checker position to a new employee until the last of
the five qualified strikers named above has been offered
reinstatement to that position.
I shall also recommend that the Company make whole
the employee selected for reinstatement for any loss of
earnings he may have suffered by reason of the Company's
failure to reinstate him by payment to him of a sum of
money equal to that which he normally would have earned
until the date on which a valid offer of reinstatement is
made to him by the Company. Loss of earnings, as referred
to above, shall be computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
at 7 percent per annum as prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to reinstate a qualified
economic striker when work for which that striker was
qualified became available and after he had unconditional-
ly requested reinstatement, thereby discouraging member-
ship in the Union, Respondent has violated Section 8(aX3)
of the Act.
4. By the foregoing conduct, Respondent interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(aX ) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 3
The Respondent, Aluminum Cruisers, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate economic strikers
who have unconditionally requested for reinstatement
when work which they are qualified becomes available.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer one of the following qualified strikers on the
preferential hiring list immediate and full reinstatement to
the position of stock checker or a substantially equivalent
position without prejudice to his seniority or other rights
and privileges dismissing employee Donald Hill or any
other stock checker hired on or after January 15, 1977, if
necessary, to make room for him and make him whole for
any loss of earnings in the manner set forth in the section
of my decision entitled "The Remedy." The five qualified
strikers are as follows: Lawrence J. Wesley, Woodrow
Smallwood, Orville B. Patterson, Edward Hollenkemp, Sr.,
and Wade A. Mahoney.
(b) Preserve and, upon request, make available to the
Board's agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its Louisville, Kentucky, facility copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's autho-
4 In the event that 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 National 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."
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
1034