American Enterprises, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 114 (N.L.R.B. 1972)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Enterprises , Inc. and Sheet Metal Workers
International Association, Local Union No. 60,
AFL-CIO. Case 19-CA-4900
November 7, 1972
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 10, 1972, Administrative Law Judge'
Maurice Alexandre issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, the
General Counsel filed exceptions and a supporting
brief, and Respondent filed a brief in answer to the
General Counsel's exceptions.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that the backpay specification herein
be dismissed in its entirety.
, The title of " Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
MAURICE ALEXANDRE, Trial Examiner: On July 1, 1971,
the National Labor Relations Board issued a Decision and
Order in this proceeding directing Respondent to reinstate
John Gruver, Gene Wright and George Moore, and to pay
each of them a sum of money equal to the amount he
would normally have earned from July 21, 1971, the date
on which each was unlawfully discharged, to the date on
which each is offered reinstatement, less interim earnings.
191 NLRB No. 118.
On February 10, 1972, a backpay specification and a
notice of hearing were issued by the Regional Director for
Region 19, and on February 25, 1972, Respondent filed its
answer to the backpay specification. Pursuant thereto, a
hearing was held before me in Idaho Falls, Idaho, on
March 7, 1972. Upon the entire record, my observation of
the witnesses, and the briefs filed by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
In August 1970, following receipt of the initial unfair
labor practice charge herein, Respondent's vice president
and secretary, Thomas Watts, went to the office of Idaho
Employers Council, Inc., and was advised to reinstate the
three above-named dischargees. On August 25, 1970,
Respondent mailed to each of the three dischargees a
registered letter reading as follows:
We are inquiring as to whether or not you would be
interested in returning to work for us.
We will hold the job open until Monday, August 31,
1970. Should you be interested, we would like to hear
from you by then. If we do not hear from you by
Monday, we will assume you are not interested in
further employment with us.
Wright and Moore received their letters on or about
August 26, but did not respond thereto. Gruver was not at
home when delivery of the letter to him was attempted.
Although a notice of the attempt was left in his mailbox, he
failed to claim the letter. When Watts learned that the
letter to Gruver had not been delivered, he telephoned the
Council, which offered to write another letter to Gruver.
On October 5, 1970, a representative of the Council
mailed to Gruver the following letter which he received on
or about October 6:
We represent the above company [Respondent] in
labor relations matters.
Mr. Thomas E. Watts has advised me that on August
25, 1970, he addressed a letter to you offering re-
employment at the same job you previously held with
the company. He also informed me that this letter was
returned by the Post Office because you had refused to
accept it.
Mr. Watts has asked me to write to you on behalf of
the company and tell you that he is ready and willing to
re-employ you at your former job. He will hold this
position open until Monday, October 12, 1970.
If you have not reported by that date, the company will
assume that you are no longer interested in further
employment with them.
Apparently, the Regional Office advised Respondent that
the August 25 letters did not constitute adequate offers of
reinstatement . Accordingly, on September 16, 1971, the
Council's representative sent to Wright and Moore
identical letters which were received by them the following
day. These letters read as follows:
We represent American Enterprises, Inc. in labor
relations matters.
The Regional Director, Region 19, National Labor
Relations Board has ordered the company to again
offer you re-employment at your former position with
them.
Mr. Thomas E. Watts has asked me to write to you on
behalf of the company. Mr. Watts previously offered
you unconditional reinstatement by letter of August 25,
1970. You did not accept this offer. This is to advise
you that American Enterprises, Inc. is again willing and
ready to re-employ you at your former position with
them at your former rate of pay. This is an unequivocal
offer of re-employment. The company will hold this
position open until October 1, 1971. If you have not
200 NLRB No. 26
AMERICAN ENTERPRISES, INC.
reported by that date the company will assume that you
are no longer interested in further employment with
them.
Respondent insists that the letters of August 25, 1970,
constituted adequate offers of reinstatement. The General
Counsel contends that they did not. However, he conceded
at the hearing that if the letters were adequate, no backpay
is due to any of the three dischargees because of their
earnings during the backpay period. I find that the letters
of August 25 constituted adequate offers of reinstatement,
and that the three dischargees are not entitled to any
backpay.
In his brief, the General Counsel correctly states that a
discriminatee is entitled to a specific and unequivocal offer
of reinstatement, and that a mere inquiry concerning his
interest in returning to work does not constitute such an
offer. Rea Trucking Company, Inc., 176 NLRB No. 67;
Barr Packing Company, 82 NLRB 1.1 do not agree with his
contention that the August 25 letters were at most a
"careful" query concerning the dischargees' possible
interest to some "undescribed" job unaccompanied by a
specific offer of reinstatement. It is true that taken alone,
the first paragraph would not meet the applicable test. A
reasonable interpretation of the first sentence of the second
1 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.
115
paragraph, however, was that Respondent was holding
open the dischargees' jobs for them . Admittedly, the offer
to hold "the" jobs for the dischargees was not the most
felicitous choice of language ; and unquestionably , an offer
to the dischargees to hold "your" jobs open would have
been preferable . But as stated in Centac Corp., 179 NLRB
313 at 322, "If the men had doubt, they could have
inquired."
The record contains no evidence to support the General
Counsel's implication that Respondent 's offers were not
made in good faith . On the contrary, Watts credibly
testified that Respondent was busy and needed employees
in August 1970, that he sought the Council 's advice, that
the Council advised him to offer reinstatement to the
dischargees , and that he then sent the August 25 letters. I
am persuaded that Watts intended and attempted to follow
such advice . Accordingly, I reject the implication that the
letters did not constitute bona fide offers of reinstatement.
RECOMMENDED ORDER
On the basis of the above findings and conclusions and
the entire record, it is ordered that the backpay specifica-
tion herein be dismissed in its entirety.'
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.