Associated Grocers

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 806 (N.L.R.B. 1989)

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Associated Grocers and Transport and Local Deliv-
ery Drivers, Warehousemen and Helpers, Local
Union No. 104, an affiliate of International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.
Cases 28-CA-4911, 28-CA-5091, and 28-CA-
5153
June 15, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On December 21, 1984, Administrative Law
Judge David G. Heilbrun issued the attached sup-
plemental decision . Thereafter, the Respondent, the
General Counsel, and the Charging Party filed ex-
ceptions and supporting briefs and all parties filed
answering 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
' The Respondent and the Charging Party have excepted to some of
the judge 's credibility findings . The Board 's established policy is not to
overrule an administrative 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 reversing the findings.
In adopting the judge's finding that the General Counsel did not estab-
lish that Larry Broyles' July 1983 letter to the Respondent recommenced
his right to reinstatement and backpay , we note that the letter appeared
to be one of general inquiry rather than a firm committment to return to
the Phoenix , Arizona area to work for the Respondent at any specified
time.
In adopting the judge 's finding that the fourth quarter of 1978 should
be excluded from Jack Allen's backpay entitlement , we note Allen 's testi-
mony that he did not begin his search for interim employment in the
Phoenix area until early 1979, after his return from Dayton, Ohio, and
that during his 5 weeks in Dayton visiting his family , he only sought
work at two bakeries . This testimony indicates that Allen did not serious-
ly seek interim employment in this quarter.
Thomas Cantele's backpay entitlement subsequent to his quitting inter-
im employment at Shamrock Foods in November 1981 is governed by
the principles set out in Knickerbocker Plastic Co ., 132 NLRB 1209, 1215
(1961).
Contrary to the judge, we would not deny Bruce Anderson all back-
pay from February 26, 1979 , onward but instead would compute what he
was earning at the Respondent , when he was fired on that date , as con-
structive interim earnings during the balance of the backpay period and
then apply the offset formula set out in Knickerbocker Plastic, supra, 132
NLRB at 1215.
8 In adopting the judge 's rejection of the Respondent 's claim that set-
tlements had been reached concerning the backpay due discnminatees
Ashline, Chase , Cook, Dial, and Jacobi and that those settlements should
preclude the award of backpay in any greater amount than was previous-
ly agreed on , we do not rely on any implication that no settlement can
ever be regarded as valid in the absence of approval by the Regional Di-
rector . See American Pacific Concrete Pipe Co., 290 NLRB 623 (1988). We
agree, however, that the payments to which the Respondent refers were
not true settlements and cannot bar an award based on evidence support-
ing the amended backpay specification. These discriminatees accepted the
payments in question based on the representation that they were full pay-
conclusions2 only to the extent consistent with this
Supplemental Decision and Order.3
1. In his decision the judge concluded that back-
pay claimants Jon Martin , James Wood, and
Thomas Pickart should not receive the backpay
sought for them by the General Counsel. Specifi-
cally, the judge found that both Martin and Wood
had received valid offers of reinstatement that
thereafter tolled their entitlement to backpay, and
that Pickart was only a casual employee who,
during the strike, had obtained substantially equiva-
lent employment elsewhere. The judge further
found that no backpay was owed claimant Arnold
Babb for the period after December 19, 1978, and
that claimant Larry Holland should be excluded
from receiving backpay until the third calendar
quarter of 1983. The General Counsel has excepted
to these findings and, for the reasons set forth
below, we find merit in these exceptions.
The Respondent 's employees engaged in an eco-
nomic strike between April 12 and October 4,
1978.4 By mailgram dated October 4, the Union in-
formed the Respondent that the strike would end
the following morning and that the strikers were
making an unconditional offer to return to the same
or to substantially equivalent positions to those that
they had held prior to the commencement of the
strike . Thereafter, a program of reinstating former
strikers was begun . The Board, in the underlying
unfair labor practice proceeding,5 found that the
Respondent had discriminatorily denied reinstate-
ment to returning strikers who are the backpay
claimants in this proceeding.
I. JON MARTIN
Claimant Jon Martin was employed by the Re-
spondent as an order selector in the dry grocery
warehouse. Prior to the strike he was working the
night shift, which began at 9 p.m., with Fridays
and Saturdays off. After the strike ended, Martin
was contacted by the Respondent's vice president
ment of what was owed or , in the case of Dial, that he was being paid all
except for an amount that would be resolved by the litigation of a par-
ticular issue It was subsequently discovered that data on which the Re-
gional Office 's preliminary calculations had been made were in error, and
because the case was still being litigated, the backpay specification was
amended accordingly At no time did the discriminatees agree to settle
their claims for less than the Regional Director determined was owing
a Interest on backpay will be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In light of our modifications to the judge's backpay determinations, as
well as his election not to provide final backpay determinations , we shall
remand this proceeding to the judge for the purpose of providing such
final calculations . We note, however , the judge's reference to the parties'
expressed inclination to recalculate the backpay amounts on the resolu-
tion of the issues in this proceeding . If mutually agreed on , this may pre-
clude the need for the judge to issue a detailed backpay schedule.
4 All dates are in 1978 unless otherwise indicated.
5 Associated Grocers, 253 NLRB 31 (1980), enfd . 672 F 2d 892 (D.C.
Cir. 1981 ), cert denied 459 U .S. 825 ( 1982).
295 NLRB No. 81
ASSOCIATED GROCERS
of operations , William Cooksey , and offered a posi-
tion in the dry grocery warehouse beginning at 3
p.m., with Tuesdays and Wednesdays off. Cooksey
further advised Martin that unless this position was
accepted , Martin would be terminated from the
Respondent's employ. Martin nevertheless rejected
the offer because it was not to his former job.
The judge found that minor differences in shift
time and days off, while distasteful to this employ-
ee, are not of such significance as to render the
offer invalid. He accordingly tolled Martin's back-
pay as of January 23, 1979, the date the Respond-
ent's offer of reinstatement was made . We disagree.
The Board has long held that an employer is ob-
ligated to accord economic strikers preferential
status and to reinstate them on application , or if re-
placed , when their previous or substantially equiva-
lent positions become available , in the absence of
legitimate and substantial business justifications.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967); Laidlaw Corp., 171 NLRB 1366 (1986),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970). The Board has further held that an
offer of employment for a different shift is not
"substantially equivalent ." Thus, an employee's re-
fusal to accept such an offer does not alter his or
her status as a former economic striker desiring re-
instatement or operate to remove him from the
preferential hiring list . See, e .g., Harvey Engineering
Corp., 270 NLRB 1290, 1292 (1984); U.S Mineral
Products Co., 276 NLRB 140, 142 (1985). Here, the
9 p.m. shift was still in operation when the Re-
spondent offered Martin work on the afternoon
shift with less favorable days off. 6 No reason was
advanced by the Respondent for not offering
Martin a job on his former shift other than that it
viewed the afternoon shift to be equivalent to the
later shift. We do not find that reason sufficient to
justify the Respondent 's failure to offer Martin his
former job on his prestrike shift. Accordingly, we
find that the Respondent's January 23, 1979 offer
to Martin of a different shift with different days off
was not to his former job and was not of substan-
tially equivalent employment and that he continues
to retain his status as a former economic striker en-
titled to a valid offer of reinstatement.
II. JAMES WOOD
James Wood had been employed in the Respond-
ent's repack shipping department . On March 8,
1979, Cooksey sent Wood a certified letter that
stated that work was available in the grocery ship-
ping area and that Wood had until 10 a.m.
8 Before the strike , Martin had worked his way up to a job that gave
him weekends off.
807
Monday, March 12, 1979, to reply. Like Jon Mar-
tin's conversation with Cooksey, the letter conclud-
ed that unless there was a timely response, Wood
would be terminated from the Respondent's
employ.
According to Cooksey's credited testimony,
Wood failed to contact him until after the March
12 deadline had passed at which time Wood ad-
vised him that he wanted to return to his former
position in general merchandise . Cooksey further
testified that despite the fact that he encouraged
Wood to accept the offer and to exercise his trans-
fer seniority at a later time , Wood nevertheless
turned the offer down.
The judge found that the Respondent's offer of a
position in the grocery shipping department to a
former repack department employee was valid. He
further observed that there is no evidence to sug-
gest that Wood complained of insufficient time
within which to consider the offer. The judge ac-
cordingly concluded that the General Counsel's
claim on behalf of Wood, to the extent of backpay
beyond that admittedly due, is without merit.
Contrary to the judge, we find, for reasons simi-
lar to those set forth with regard to Martin, that
the Respondent's offer to Wood of a position in
grocery shipping is not substantially equivalent to
his former job, as required by the Board 's Order.
Moreover, as noted by the General Counsel, the
judge's findings on the question of whether Wood
timely responded to an invalid offer of reinstate-
ment are completely irrelevant.? We therefore con-
clude that the Respondent 's backpay obligation to
Wood extends from October 9, 1978, until May 26,
1980, the date on which Wood explicitly expressed
a binding intent not to return to the Respondent's
employ.
III. LARRY HOLLAND
Claimant Larry Holland was employed as a
truck serviceman at the time of the strike . Holland
has never received an offer of reinstatement and
we agree with the judge's finding that he remains
entitled to one. A question arises, however, con-
cerning the amount of backpay to which Holland is
entitled . The judge found that as a result of serious
health problems, Holland was unavailable to work
from a period beginning sometime during the strike
until the third quarter of 1983.8 Consequently, the
I The Board made clear in Consolidated Freigktways, 290 NLRB 771
(1988), that "It is thus incumbent on the Respondent to extend to the
injured employee a facially valid offer of reinstatement before the burden
shifts to the injured employee to accept or reject the offer."
8 Because of Holland 's health problems , the backpay specification ex-
cludes backpay for him for the following periods. the period from the
fourth quarter of 1978 into the second quarter of 1979, and the period
Continued
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge confirmed the General Counsel 's claim for
backpay for Holland only for the portion that ac-
crued from that quarter onward . The General
Counsel maintains that this finding is at odds with
the evidence . We find that Holland 's backpay
period begins later than the General Counsel con-
tends but earlier than the judge found.
The evidence shows that from the time of the
strike in April 1978 until January 1982, Holland
was only able to work sporadically because of a
physical disability that required several operations.
Thus, although Holland worked for a gas station in
Washington State and thereafter for Hank's
Towing Service and Precision Sheet Metal in Ari-
zona , he was forced to leave each of these jobs
after only several months because he was physical-
ly unable to maintain them . During this period, he
also took a job as a night watchman based on his
doctor 's advice that he could not do truck and
automobile servicing, and he also enrolled in a
CETA training course to be trained for lighter-
duty work . After Holland 's employment with Pre-
cision Sheet Metal , he was unable to work for the
next year and a half. On this basis, we agree with
the judge that the General Counsel 's claim that
Holland be accorded backpay for the last three
quarters of 1979 and the first three quarters of 1980
be denied . In late 1981 , however, Holland received
a complete medical release and subsequently began
working for Bill 's Auto Body . Thus, we find that
Holland 's entitlement to backpay should commence
with the first quarter of 1982 , when his health
problems subsided , he reentered the labor market,
and he was again available to work full time.
IV. THOMAS PICKART
Thomas Pickart was a college student who had
been employed full time by the Respondent before
resigning that position in late 1977 to pursue his
education . In February 1978 Pickart was rehired
by the Respondent and assigned to work as an
order runner in the produce department . Accord-
ing to Pickart's unrefuted testimony , he regularly
worked three scheduled 8-hour shifts per week, on
Wednesday , Saturday, and one other day that he
could not recall . In late March 1978 Pickart sus-
tained an industrial injury and was unable to work
for about a month , by which time the strike had
commenced . Pickart testified that as a consequence,
he crossed the picket line for the sole purpose of
submitting his medical release , and left . Although
he periodically checked with the Union and
from the fourth quarter of 1980 through part of the fourth quarter of
1981
stopped to talk to Cooksey in 1983, he has had no
other contact with the Respondent.
According to the testimony of the Respondent's
assistant personnel manager, Thomas Martinez,
Pickart was hired in 1978 as a casual employee.
Martinez further testified, however, that once an
individual was hired and assigned to a department,
it was the department supervisor who thereafter
scheduled the employee's hours or called him to
work when his services were needed . Martinez re-
called that Cliff Poulson was Pickart's supervisor
in the produce department and would have been
responsible for scheduling Pickart's hours. Never-
theless, although Poulson was called to testify, he
did not contradict Pickart's testimony concerning
his work schedule. Contrary to Martinez, Pickart
denied that he was told, when rehired in 1978, that
the nature of his position was casual.
The judge found that Pickart was a casual em-
ployee , basically engaged for miscellaneous , call-in
work on an as-needed basis . In arriving at this de-
termination , the judge concluded that the disjoint-
ed set of shifts Pickart was working in the several
weeks prior to his industrial injury were insuffi-
cient to convert his status from a casual to a regu-
lar part-time employee. Alternatively, the judge
concluded that the position Pickart acquired at
A. J. Bayless, thereafter, was of substantial or
greater equivalence to his former position with the
Respondent. The judge accordingly found that
Pickart is not entitled to reinstatement or backpay.
We disagree.
The unrefuted evidence demonstrates Pickart
was a regular part-time employee and eligible for
reinstatement on that basis . Thus, his testimony
shows that he worked a regular schedule each
week and, contrary to the judge's finding, was not
called on a casual, as-needed basis . See Etna Equip-
ment & Supply Co., 236 NLRB 1578 (1978); Berger
Transfer & Storage, 253 NLRB 5, 10-11 (1980),
enfd. 678 F.2d 679 (7th Cir. 1982). We accordingly
conclude that Pickart is not barred from an offer of
reinstatement and backpay.
We also disagree with the judge's alternative
finding that Pickart 's position as a part-time clerk
at A. J. Bayless, a retail grocery store, was sub-
stantially equivalent to his position as an order
runner in the Respondent 's produce department. It
is well established that the burden of showing that
a striker has obtained regular and substantially
equivalent employment rests with the employer.
Lone Star Industries, 279 NLRB 550, 554 (1986),
enfd. mem. in pertinent part 813 F.2d 472 (D.C.
Cir. 1987); Salinas Valley Ford Sales, 279 NLRB
679 (1986). Moreover, the question of what consti-
tutes "regular and substantially equivalent employ-
ASSOCIATED GROCERS
ment" is determined not by a "mechanistic applica-
tion of the literal language of the statute," but
rather through the objective appraisal of several
factors, both tangible and intangible, including the
desire and intent of the employee concerned. Little
Rock Airmotive, 182 NLRB 666 (1970), enfd. in rel-
evant part 455 F.2d 163 (8th Cir. 1972).
In the instant case, the Respondent's assertion
that Pickart had obtained a position of substantial
or greater significance is primarily predicated on
the facts that at the time of the hearing Pickart had
been employed by Bayless on a part-time basis for
approximately 4 years and had been sent by Bay-
less to a management training program sponsored
by the food industry at the University of Southern
California. Nevertheless, a review of the evidence
further establishes that Pickart's job responsibilities
as a retail clerk at Bayless are very different from
his responsibilities as an order selector in the Re-
spondent's grocery warehouse. This is evidenced
by testimony that Pickart's job at Bayless encom-
passed stocking and receiving groceries at the retail
level, whereas his job with the Respondent encom-
passed stocking and pulling wholesale groceries
using a forklift or other warehouse machinery. Ad-
ditionally, as the General Counsel points out, Pick-
art's hourly wage at Bayless has been throughout
the backpay period, several dollars less than his
wage at the Respondent. Finally, we note that the
judge gave no weight to the fact that the Respond-
ent at no time sought to ascertain the intentions of
Pickart concerning recall with the Respondent. In
any event, it is clear that Pickart maintained a con-
tinuing interest in returning to his job as demon-
strated by his contact with the Union and his per-
sonal contact with Cooksey in 1983. Under these
circumstances, we conclude that Pickart, after ac-
cepting employment with A. J. Bayless, did not
abandon his employment with the Respondent. We
accordingly find that Pickart remains entitled to an
offer of reinstatement and backpay.
V. ARNOLD BABB
At the time of the strike, claimant Arnold Babb
was employed as a resident driver in Parker, Ari-
zona.9 According to Babb's credited testimony, on
November 19, 1979, Cooksey telephoned him to
offer him a job as a city pool driver. Babb declined
the offer and has had no further contact with the
Respondent.
The judge found that the Respondent eliminated
Babb's former position in December 1978, 2
months after Babb's backpay period had begun to
9 When the strike began, Babb was recuperating from an operation he
had undergone in February He was thereafter released to return to work
in May.
809
run. The judge further found that although the sub-
stantially equivalent position of city pool driver
was available to Babb at that time, it was not until
November 19, 1979, that the Respondent offered
the position to Babb. Despite these findings, how-
ever, the judge inexplicably tolled Babb's backpay
period on December 19, 1978, 11 months before
the Respondent's offer of reinstatement was made.
It therefore appears that the judge may have mis-
takenly confused these dates and as a result errone-
ously denied Babb backpay to which he was enti-
tled.1 ° Babb's backpay period is accordingly tolled
as of November 19, 1979, the date on which he ex-
pressly declined the Respondent's offer.
2. The Respondent has excepted to the judge's
treatment of the so-called "slotting" issue, contend-
ing that certain discriminatees are being given
more backpay than was due because of the way in
which reinstatement dates were calculated. Because
the Respondent's contentions rest on speculations,
not certainties, about what might have occurred
had it timely reinstated certain employees prior to
the end of the strike, we reject the Respondent's
exception.
The problem arises because of differences be-
tween two groups of discriminatees with respect to
dates for calculating the commencement of back-
pay, i.e., the class of discriminatees known as the
"polygraph discriminatees"-employees who
sought to return before the end of the strike but
were deterred by the Respondent's unlawful impo-
sition of a polygraph test-and the discriminatees
covered by the Union's October 4, 1978 uncondi-
tional offer to return. Backpay commencement
dates for the polygraph discriminatees (which are
not indispute here) were the dates on which they
were denied reinstatement because of failure to
accede to the polygraph requirement. Regarding
the other class of discriminatees, because it was
agreed that the order of reinstatement would be de-
termined by seniority, the most senior strikers were
entitled to fill positions of temporary replacements
as of October 9. Because they were not then rein-
stated, their backpay ran from that date. Less
senior unreinstated strikers' backpay commence-
ment dates matched the dates of subsequent open-
ings that occurred. The matchup of particular strik-
ers to' particular openings (whether on October 9
or thereafter) was referred to as "slotting." Obvi-
10 In the event the judge's tolling backpay for Babb on December 19,
1978, is based on the elimination of Babb 's prestrike position rather than
on his confusing relevant dates, the judge has erred because Babb was
entitled to an offer of reinstatement to a substantially equivalent position
if his former job had been abolished No such offer was forthcoming until
November 19 , 1979, and hence Babb's backpay period continued to run
to the date he declined that offer.
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ously , the greater the number of strikers "slotted"
for reinstatement on October 9, the earlier the rein-
statement dates into which less senior strikers
would be "slotted."
The Respondent argues that the number of avail-
able openings on October 9 (i.e., the number of po-
sitions then held by temporary replacements)
should be treated as reduced by the number of
polygraph discriminatees whose backpay was run-
ning as of that date . It reasons that if the latter had
been reinstated when they applied, they would
have occupied jobs held by temporary replace-
ments on October 9 and those jobs would then not
have been available to the later returning strikers.
Accordingly , it argues that certain less senior strik-
ers assigned October 9 backpay dates should have
been relegated to the dates of subsequent openings,
with consequent "bumping," down the line of still
less senior strikers to even later reinstatement dates.
The Respondent's argument has surface appeal,
but we agree with the General Counsel that, under
the established principle that a wrongdoer should
bear the consequences of uncertainty that his own
conduct has created , ' 11 we should not penalize indi-
viduals in either class of discriminatees on the basis
of speculations about what might have occurred
had the Respondent acted lawfully with respect to
the polygraph discriminatees . Thus, for the purpose
of compensating the polygraph discriminatees we
assume, in the absence of any way of definitively
determining the issue, that they would have re-
turned to work on the dates they were unlawfully
precluded from returning and that they would have
continued in those positions through the end of the
strike . But it is possible one or more of them might
have left before the end of the strike, in which case
they could not have been holding a position that
would otherwise be held by a temporary replace-
ment . Furthermore, it should be noted that the Re-
spondent apparently had openings at the time it
made the invalid offers to the polygraph discrimin-
atees, and the Respondent has not established that
it subsequently filled those openings with tempo-
rary replacements. Hence , even if the polygraph
discriminatees had been reinstated, the same
number of temporary replacements might have
been working at the end of the strike. Thus, for the
purpose of compensating the strikers covered by
the unconditional offer to return , we decline to
speculate that, had the Respondent behaved lawful-
ly, there would have been fewer available positions
at the strike's end than were actually then held by
temporary replacements. Accordingly, we affirm
the backpay dates determined by the judge.
11 See, e.g., Rainbow Coaches, 280 NLRB 166, 169 (1986); NLRB V.
Miami Coca-Cola Bottling Co, 360 F.2d 569 , 572-573 (5th Cir. 1966).
3. The General Counsel has excepted to the
judge's denying backpay for William Manley
during the first quarter of 1979, and for Leon Mul-
lins during the first and second quarters of 1979.
We find merit in the General Counsel's exceptions.
Manley, who was a warehouseman for the Re-
spondent 9 years prior to the strike , made numer-
ous applications for interim work prior to his rein-
statement . He applied at several grocery ware-
houses (Fry's, A. M. Lewis, El Rancho, and S. E.
Rykoff) as well as other area employers . Accord-
ing to his credited testimony, Manley also checked
newspaper classified ads regularly , pursued leads,
and periodically canvassed the commercial sector
of Phoenix for interim work. There is no question
but that Manley made reasonable efforts to obtain
interim work. Mullins, a 15-year employee with the
Respondent , similarly testified without contradic-
tion that he made numerous applications for inter-
im employment . Mullins registered at the union
hiring hall and applied at several companies, in-
cluding freight companies because of his truckdriv-
ing experience . Mullins also pursued newspaper ads
and personal leads.
Notwithstanding their numerous efforts to find
interim work, the judge denied backpay to Manley
and Mullins during portions of 1979 because they
did not seek interim employment at some (or, in
the case of Mullins, any) Phoenix-area grocery
warehouses where fellow strikers had found work.
The judge found that by this conduct, Manley and
Mullins willfully incurred the loss of interim earn-
ings.
It is well settled that discriminatees are not held
to the highest of diligence in seeking interim em-
ployment. They need only make reasonable efforts
to mitigate backpay liability. See, e.g., NLRB v. Ar-
duini Mfg. Corp., 394 F.2d 420, 423 (1st Cir. 1968).
Moreover , "[a]s a general proposition, entitlement
to back pay does not turn on a showing that the
discharged employee sought precisely the same
type of interim employment as that from which he
was discharged." Avon Convalescent Center, 219
NLRB 1210 (1975), enf. denied 549 F.2d 1080 (6th
Cir. 1977). See also Fugazy Continental Corp., 276
NLRB 1334, 1341 (1985); Blue Hills Cemetery, 240
NLRB 735, 736 (1979).
Here, Manley and Mullins admittedly applied at
numerous companies for interim work . The Re-
spondent, who has the burden of establishing that
these discriminatees willfully incurred the loss of
interim earnings, did not establish that Manley and
Mullins applied for positions that did not involve
warehouse work or that were not substantially
equivalent to their jobs with the Respondent. Nei-
ther did the Respondent prove that these discrimin-
ASSOCIATED GROCERS
atees clearly would have obtained substantially
equivalent employment had they applied to other
area grocery warehouses. See generally Champa
Linen Service Co., 222 NLRB 940, 942 (1976). Al-
though the judge found that many fellow strikers
obtained work with the Respondent's competitors,
in view of the approximately 400 employees that
struck the Respondent, there is no reasonable cer-
tainty that Manley and Mullins would have similar-
ly succeeded.
Knickerbocker Plastic Co., 132 NLRB 1209
(1961); NHE/Freeway, Inc., 218 NLRB 259 (1975),
enfd. 545 F.2d 592 (7th Cir. 1976); and Neely's Car
Clinic, 255 NLRB 1420, 1421 fn. 6 (1981), do not
require a contrary result . We read these cases as re-
quiring only that an individual with extensive expe-
rience in a specialized field, be it as a captain of
waiters, nurse's aide, mechanic, or musician, etc.,
must at least seek interim work within this special-
ty. Manley and Mullins, as warehousemen, would
appear to have generalized skills that could readily
transfer to any number of working environments.
Moreover, as discussed supra , the Respondent does
not contend that these employees neither sought in-
terim warehouse work nor work utilizing the skills
they developed with the Respondent.
Accordingly, on this record, we would award
Manley backpay for the first quarter of 1979 and
Mullins for the first two quarters of that year.12
12 Chairman Stephens agrees that William Manley is entitled to back-
pay for the first quarter of 1979 , but would find that Mullins forfeited his
right to backpay during the first two quarters of the year . Mullins admit-
ted that he did not look for any jobs at grocery warehouses . He gave
varying reasons for his doing so. At one point in explaining why he did
not seek work at any of the Respondent 's competitors (other grocery
warehouses), he replied, "I got one ," meaning his job with the Respond-
ent. He went on to testify that he did not want to go to work at another
grocery warehouse "and do the same thing again, go out on strike and
have to start all over again ," even though he conceded that none of the
other warehouses were then on strike because "[t]he other ones we[re]
settled." But the real reason he did not apply for work at grocery ware-
houses appears to have been , as he acknowledged in his testimony, that
he simply did not want to work at any grocery warehouses other than
the Respondent Thus, it is clear that Mullins made a conscious decision
not to look for work at grocery warehouses and that that decision was
not based on any legitimate substantive or personal ground Unlike his
colleagues, the Chairman does not view the issue as whether Mullins
would have secured employment at grocery warehouses , but as whether,
under the circumstances establishing that employment at such warehouses
was at material times available , Mullins should have at least tried to get
jobs in the industry in which he had worked and had experience . Mullins
did not even try
Accordingly , Chairman Stephens finds that Mullins ' failure constituted
a willful withdrawal from the industry job market and that this failure is
not overcome by the fact that he did some job seeking outside his indus-
try. The Chairman does not quarrel with the general proposition that en-
titlement to backpay does not turn on discnminatees seeking precisely the
same kind of employment with interim employers that they had when
discharged . That proposition , however , does not mean that backpay
claimants are free to ignore potential employment opportunities in their
own industry . Therefore , he agrees with the judge that Mullins should be
denied backpay for the particular quarters in question . NHE/Freeway, 218
NLRB 259, 260 ( 1975), enfd 545 F.2d 592 (7th Cir . 1976) (Hunt) (willful
loss of earnings for the failure of a nurse's aide to look for work as a
nurse 's aide although aware such work existed ). Heinrich Motors, 166
811
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Associated Grocers, Phoenix, Arizona,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order as modified.
1. Include claimants Jon Martin, James Wood,
and Thomas Pickart and their backpay amounts.
2. Restore tolled backpay amounts to claimants
Arnold Babb and Larry Holland.
IT IS FURTHER ORDERED that this proceeding is
remanded to the administrative law judge for the
purpose of calculating the specific amount of back-
pay owing to each individual claimant who has
been found in this backpay proceeding to be enti-
tled to backpay.
NLRB 783, 791-792 (1976), enfd . (re Cira) 403 F.2d 145 (2d Cir 1968)
(Knaack) (failure to seek work in type of establishment in which claimant
was employed constitutes a willful loss of earnings).
Jane V. Goldman and Kenneth D. Meadows, Esqs., for the
General Counsel.
Jerome L. Froimson, Ltd., of Phoenix, Arizona, for the
Respondent.
Michael J. Keenan (Ward & Keenan, Ltd.), of Phoenix,
Arizona, for the Charging Party.
SUPPLEMENTAL DECISION
DAVID G . HEILBRUN , Administrative Law Judge. On
October 4, 1982, the United State Supreme Court denied
Respondent 's petition for certiorari to the Court of Ap-
peals for the District of Columbia Circuit which had, on
December 1, 1981, entered judgment enforcing the
Board 's Decision and Order in this matter as reported at
253 NLRB 31 (1980). Such adjudication affirmatively re-
quires that Respondent reinstate numerous nonperman-
ently replaced strikers to their former jobs or, if such no
longer exist, to substantially equivalent positions, and
make them whole, with interest , along with other em-
ployees who suffered loss of pay as a result of discrimi-
natory polygraph tests.
Controversy having arisen over the amount of back-
pay due under terms of the Board 's Order, and over
other issues contained in an amended backpay specifica-
tion and as separately raised by the Charging Party, the
matter was heard in supplementary proceedings at Phoe-
nix, Arizona, on various days during February and
March 1984 . Upon the entire record , ' my observation of
witnesses , and consideration of posthearing briefs, I make
the numerous determinations that follow.
I. SALIENT BACKGROUND
Respondent is a major grocery wholesaler of the
Southwest, whose operations can be generalized as the
1 The General Counsel's unopposed motion to correct the record dated
August 3 , 1984, is noted and granted.
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
receipt of food and grocery products in bulk for re-sale,
shipment , and delivery to retailers and other users . It uti-
lized an expectable work force of warehouse and
produce packaging employees , drivers, mechanics, and
miscellaneous supporting personnel . Teamsters Local
104, the Charging Party herein, has been collective-bar-
gaining representative for many years, however contract
negotiations in 1978 led to commencement of a strike on
April 12 of that year . Operations were nevertheless con-
tinued with hundreds of replacement employees hired
during the 6 months that the strike was in effect.
This economic strike ended October 4, 1978, by blan-
ket notification from Teamsters Local 104 to Respondent
that all striking members unconditionally offered to
return to work. A program of recalling former strikers
was then generated , the details of which shall be set out
below. Contract negotiations between Respondent and
the Union had been suspended in late 1978 and remained
dormant for several years . The hearing on consolidated
complaints of employer unfair labor practices occurred
during spring 1979, and the Board 's ultimate Decision
and Order modifying the administrative law judge's De-
cision and recommended Order issued in late 1980. Ap-
peals followed this and it was not for another 2 years
that compliance contacts began between personnel of
NLRB Region 28 and Respondent 's counsel . Negotia-
tions had also resumed between the parties . This yielded
their first collective-bargaining agreement since expira-
tion of that having a 1975-1978 duration , the attempted
renewal of which had precipitated this entire labor dis-
pute of such extended scope in terms of subject matter
and chronology . The new agreement , effective from De-
cember 5, 1982, through February 29, 1984, recited rec-
ognized seniority districts as utilized in past years, these
being in the contractually stated order (1) produce ware-
house, (2) grocery warehouse , (3) drivers, (4) truckshop,
(5) meat production , (6) sanitation , (7) warehouse mainte-
nance, (8) fork repair, (9) package meat, and (10) bakery
(Baird Division) drivers . When the strike began in April
1978, unrepresented employees of the maintenance de-
partment , numbering approximately a dozen including
those doing refrigeration work, had been the object of
then-inconclusive efforts by Teamsters Local 104 to in-
clude them in the bargaining unit.
The numerous points in controversy include episodal
matters, application of legal , logical , or conceptual prin-
ciples, resolution of operational factors relative to the
Board 's ordered remedy, group and individual assess-
ments in regard to reinstatement rights or the validity of
backpay computations, and various fact situations that
pertain to particular persons, all in a timeframe preceding
commencement of the strike to instances in which claims
exist for present fulfillment of reinstatement rights with
continuing accumulation of backpay and interest.
II. COMPLIANCE NEGOTIATIONS
A. Generally
After unsuccessful appeal to the United States Su-
preme Court, the compliance phase of this case began.
With the Board 's Order having validated only 237 striker
replacements as being of a permanent nature, practically
all striking employees were legally entitled to immediate
reinstatement following a 5-day grace period from appli-
cation , or a deferred remedy based on their departmental
seniority.
Region 28 has been directed for more than 10 years by
Milo V. Price . The regional organization does not in-
clude a compliance officer per se, instead supervisory as-
signment for natural follow-through determines the ordi-
nary mode of fulfilling case compliance . The unprece-
dentedly massive scope of this case necessitated use of all
professional staff personnel in the process of handling
several hundred potential claimants and refining perti-
nent documentation for disclosure to Respondent. As the
process escalated into 1983 Respondent came into posses-
sion of voluminous material , and from this an early prac-
tice emerged of liquidating certain backpay claims by in-
formal dealings with staff of the Region and officials of
the Union. By mid- 1983 a more formalized approach to
compliance had been reached, and certain payments
which are now matters of dispute were made under aus-
pices of Board agents.
B. Claimed Accord and Satisfaction
Respondent maintains a motion to strike various ex-
cesses in monetary claims now made as amendments to
the original backpay specification , in regard to James
Ashline, Ray Chase, Ronnie Cook, Henry Dial, and Nor-
bert Jacobi . Respondent argues that principles of accord
and satisfaction , or alternatively those of estoppel , shield
it from further liability to any of the named individuals.
Each of these cases had involved determinations within
the pool of Regional staff work, overseen as was best
possible to do under the circumstances , with the most
critical resolutions being those relating to the validity
and timing of a reinstatement offer as such might fulfill
that aspect of compliance and establish a cutoff point to
which backpay might be calculated.
Regional Director Price, testifying with the General
Counsel 's written consent, described that by mid-1983
the shakeout had left the incumbent of his assistant's po-
sition , in functional cooperation with a team supervisor
of the case attorney, as persons with theoretical general
shared responsibility for securing compliance. As it hap-
pened Kenneth Meadows was both trial and or senior
counsel on the unfair labor practice case and a team su-
pervisor . Jane Goldman of the Region's staff became the
person then identified by Regional Director Price as
chief contact representative , and in fact she sent subse-
quent letters to Respondent 's counsel which are claimed
to be of controlling relevance on this issue.
An earlier letter dated July 22, 1983, to Jerome L.
Froimson , as counsel for Respondent, from Regional Di-
rector Price dated July 22, 1983, alluded to a report that
by then only 20 out of 300 discriminatees had received
backpay, and that the intention was to issue a backpay
specification no later than August 31 , 1983, covering all
persons "whose claims have not been satisfied by [that]
date." This letter had also set forth a general outline of
compliance activity within the Region as to discriminatee
interview, further investigation , obtaining Social Security
reports and verifying actually earned amounts during the
ASSOCIATED GROCERS
backpay period , and conversion of this information into
appropriate individual backpay amounts . This letter also
stated:
Based upon your representations and requests and
in anticipation of quick agreement on backpay
amounts for most of the discriminatees , this office
provided you, beginning as early as April 13, 1983,
with copies of the computations for the discrimina-
tees, reflecting the amounts of backpay owed and
how said amounts were computed , including full
descriptions of interim employers . As of this date,
you have been provided with computations for ap-
proximately 90 percent of the discriminatees. Some
of the backpay computations have been in your pos-
session for more than three months . However, to
date, the Region has been provided with no evi-
dence of any payments being made, although I un-
derstand that you are prepared to show that 20 dis-
criminatees have been paid their backpay.
Regional Director Price wrote Attorney Froimson
again on July 25, 1983 , the complete text of his letter
being:
The Region has been orally informed that 20 of
the discriminatees in the above matter have been
given checks for the amounts of backpay and inter-
est agreed upon by the Respondent and Regional
Office representatives on July 1, 1983, to be due
them . However, despite our prior understandings,
the Region has received no signed receipts , copies
of checks or other evidence that any discriminatees
have in fact been paid the monies owed them, nor
any evidence of the date of any such payment by
the Respondent . Without such evidence , the Region
cannot conclude that they have been paid.
It should be noted that whether to allow direct
distribution of backpay by the Respondent is within
the discretion of the Regional Director and, if so,
permitted only on terms and conditions prescribed
by the Region. Therefore, in order to have an or-
derly distribution of backpay by the Respondent, it
must be conducted on the following basis:
(1) Once an amount of backpay has been agreed
upon between the Respondent and the Region, a
specific date, not later than seven days from the
date interest is tolled , will be set for distribution of
the checks.
(2) A signed receipt, on a form provided by the
Regional Office , must be secured from each individ-
ual receiving a check in person and must be for-
warded to the Board office not later than the day
following the distribution of the check.
(3) All checks which cannot be delivered to the
discriminatee in person by the Respondent must be
delivered to the Regional Office for transmission to
the backpay claimant on the payment date specified.
(4) When an amount to be paid to a discriminatee
and a date for payment has been agreed upon, the
Regional Office will inform the affected discrimina-
tee by letter of the amount to be paid and the date
on which he will receive his check(s).
813
(5) In the event an agreed -upon payment is not
made to the discriminatee or delivered to the Re-
gional Office on the date specified , the interest on
the backpay amount will continue to accumulate to
the date of payment.
In the event the guidelines set forth above are
not followed , the Regional Office will reconsider its
permission to allow the Respondent to distribute the
backpay checks.
On July 26, 1983, Field Attorney Goldman wrote At-
torney Froimson alluding to their meeting the day before
and to understandings reached with respect to 36 discri-
minatees as to date , manner, and verification of backpay
checks to them. She wrote again on August 24, 1983, in
much the same vein , however, this letter included the
following paragraph:
The amounts to be paid to 10 additional discri-
minatees listed on Appendix B constitute payment
of the undisputed portions of their backpay and in-
terest . It is understood that this office takes the po-
sition that additional backpay is owed to these dis-
criminatees for the various reasons we discussed on
August 19, 1983, and that additional backpay, with
appropriate interest , will be sought for each of these
individuals . All receipts secured from the discrimin-
atees listed on Appendix B will recite that the
checks are part, rather than full payment of back-
pay.
Comparable letters were written by Field Attorney
Goldman to Attorney Froimson on September 6 and No-
vember 14, 1983 . Taking the attachments to these four
letters from Field Attorney Goldman as a whole, the
cases of Ashline, Chase, Cook , Dial, and Jacobi were
each listed , in all cases except Dial signifying that full
backpay would be tendered. Respondent did so to these
four persons, with all but Cook (he disregarding the ac-
companying receipt) signing an acknowledgment of pay-
ment . The reference to Dial , and the accompanying re-
ceipt tendered him, signified that only partial backpay
was being made and that an amount remained in dispute
as part of the class issue relating to a correct starting
date for backpay computations.
In late 1983 a comprehensive file review was under-
taken within the Region for the purpose of assuring ac-
curacy and consistency in the theory and application of
backpay pleadings . In the course of this it was discov-
ered that the five individuals named in Respondent's
motion to strike had each been the subject of error, and
following this steps were taken to advise Respondent of
the changed outlook and to make recomputations of
backpay. The details and chronology of this discovery,
rectification, and rationale are fully set forth in a memo-
randum dated February 17, 1984, from Field Attorney
Goldman to Regional Director Price. A related docu-
ment is Regional Director Price's memorandum to file
dated February 6, 1984, which in turn harmonizes with
statements of record by General Counsel and its brief on
this issue . Simply stated it is explained that the task of
making an error-free compliance analysis during 1983
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was not equal to the magnitude involved , but that revela-
tions as are now the basis for revised claims were timely
presented to Respondent and coupled with a fair oppor-
tunity to refute.
Respondent contends that finality should necessarily
attach to its mid-to-late 1983 handling of these claims,
both because the related documentation sufficiently so
termed the payments and because Regional Office per-
sonnel should be held to the consequence of their appar-
ent authority . Respondent analogizes its actions to pri-
vate accord and satisfaction of claims, adding that both
the affected individuals and the Union consented, in
Cook's case at least by retention of money proceeds, and
that it would not necessarily have acquiesced in these
cases had there been knowledge they might later have
been enlarged.
Regional Director Price testified to the definite extent
that under well-settled agency policies , practice, and reg-
ulation , he is the sole individual with authority to ap-
prove any settlement of formal aspects in a case and that
with regard to the individuals in dispute he had not ex-
tended such approval . He likened the situation of mid-
1983 dealings between Respondent and his staff as a pre-
liminary winnowing process, under which only the issues
identified as stubbornly remaining in dispute would be
necessary to prepare for actual hearing . The General
Counsel 's position rejects the characterization of these
payments as a "settlement " of claims, arguing instead
that only upon an informed , authoritative basis could a
claimant be viewed as having full and satisfactory pay-
ment as a reflection of what the Board , with court sanc-
tion, has ordered be done. The General Counsel adds
that the actual sequence of backpay hearings left ample
time for Respondent to deal with what was presented,
and that in any event it advanced no evidence of preju-
dice on the subject.
The Board and courts have long affirmed that where
error , delay, or arguable prejudice has arisen in the
course of compliance undertakings this does not warrant
the disadvantaging of innocent employees nor excusing a
party having liability for unfair labor practices from ulti-
mately fulfilling an ordered remedy . Here the timeframe
was not excessive in terms of the extraordinarily large
number of individuals being processed , nor did the claim-
ants have any role beyond passive cooperation in what
was sought of them . I recognize that Respondent 's coun-
sel is understandably dismayed over the abrupt with-
drawal from what appeared to have been concluded as a
matter of documented waiver and ordinary reliance in
professional dealings . This is not, however , a sufficient
basis to stray from controlling principles whereby public
policy in the realm of labor-management relations is ful-
filled with the vindication reflected in monetary amounts
flowing to wronged employees. NLRB v. J. H. Rutter-
Rex Mfg. Co., 396 U.S. 258 (1969). A recent illustration
of the principle is found in Neely's Car Clinic, 255 NLRB
1420 (1981 ), in which decisional language referred to re-
liance on the advice of a Regional compliance officer
being "misplaced," as determinations by that functionary
were "reviewable by the Regional Director," and in turn
the Board itself. On this basis I now determine there is.
insufficient merit to Respondent 's contention in this
regard , and deny the motion to strike.
III. ISSUES PRESENTED BY CONSOLIDATED BACKPAY
SPECIFICATION (AS AMENDED)
A. Claimed Strike Misconduct
1. Mark Martinez
The first of several alleged strike misconduct cases re-
lates to Mark Martinez, and as to this individual the
proofs are solely found in testimony of John Gulledge
and associated evidentiary exhibits plus connective testi-
mony from former Security Supervisor Gary Abbott as
to a photo identification procedure carried out under Re-
spondent's auspices.
Gulledge was a strike replacement employee who
worked briefly during the spring of 1978 and again later
that summer. He was a day-shift warehouse worker fre-
quently finishing in late afternoon after having used a bi-
cycle for transportation to Respondent's facility. This
had been the general circumstances on June 6, 1978, as
Gulledge left work through the 27th Avenue gate to
proceed north intending to make an eastbound crossing
of the 1-17 Freeway on Jefferson Street. While bicycling
that route he approached access roadway 23d Avenue
and was at that point on the north side of Jefferson. Gul-
ledge testified that he had sensed a car overtaking him
and at or about that moment experiencing a thrown rock
hit his front bicycle tire. As the car proceeded to decel-
erate for a stop sign while on the south side of Jefferson,
Gulledge observed the driver and another person facing
him while sitting halfway outside on the car 's passenger
windowsill . The episode had occurred during a traffic
break with no other automobiles around , and Gulledge
looked directly at the car 's driver then took its license
number . During these moments Gulledge also recalled
that profanity and the word "scab" was yelled at him
from the passing automobile. Subsequently through Re-
spondent 's security department Gulledge examined sever-
al photographs and identified Martinez , who was in fact
the registered owner of the car in question, as being its
driver when the rock was thrown.
Aside from its uncontradicted nature, Gulledge's testi-
mony was intrinsically highly credible with respect to
candor, precision in detail , and earnestness of delivery.
Cross-examination established a response that in a 1978
contempt proceeding before the Maricopa County Supe-
rior Court, Gulledge had testified that the car's passen-
ger had done all the shouting . However, the actual tran-
script of that proceeding does not show this to have
been his final particularizing description on the point, or
that he had as limited his recollection during a prehear-
ing deposition concerning the contempt matter . Thus in
this regard and generally with respect to Gulledge's ear-
lier testimony, I find no significant inconsistencies and
use his rendition as the controlling basis of fact. From
this it is plainly apparent that Gulledge had been stalked
by the car which Martinez was driving , and amidst hos-
tile utterances a rock was hurled at Gulledge by a pas-
senger situated only as to be in the process of commit-
ting an uncommon act. This situation leads to the evident
ASSOCIATED GROCERS
characterization of Martinez as a participant in the epi-
sode, and he was so found in the contempt proceeding to
have been an "aider and abettor" in violation of an exist-
ing temporary restraining order.
In Clear Pine Mouldings , 268 NLRB 1044 ( 1984), the
Board reviewed past doctrine regarding strike miscon-
duct of a nature that results in loss of statutory protec-
tion , including, insofar as main opinion writers were con-
cerned , relevant legislative history . The context and
holding of Clear Pine concerned verbalisms, and a more
restrictive test was adopted . Henceforth menacing utter-
ances could carry the consequence of disqualification for
such reinstatement rights as would otherwise exist, when
the person to whom such remarks were directed would
reasonably tend to be coerced or intimidated as reasoned
by the court in NLRB v. W. C. McQuaide, Inc., 552 F.2d
519 (3d Cir . 1977). Beyond this rule of the case, the
Board set forth an explicit view that strike activity did
not sanction conduct other than "peaceful picketing and
persuasion." Cf. PBA Inc., 270 NLRB 999 (1984).
The General Counsel argues that the episode is at
worst trivial , did not result in actual injury, and must be
balanced against the employer 's own conduct . While it is
true that minor, isolated acts of malevolence by strikers
have escaped sanction , here the prospects for serious
injury were present and the perpetrators displayed reck-
less disregard for the various ways in which a tragic
consequence could have resulted . As to any balancing
argument , the Employer here was essentially accused of
institutional unfair labor practices with respect to a vig-
orous collective-bargaining representative of its employ-
ees, and its total conduct was not viewed to be unlawful
in any regard until review of the underlying case was
completed by the Board in 1980. I thus conclude that by
present applicable standards the facts of this episode
allow no privilege to attach when a rock is perilously
flung toward a bicyclist proceeding at the edge of a
public thoroughfare , and for this reason determine that
Martinez is disqualified from reinstatement and thus enti-
tled to no backpay.
2. Wallace Strickland
In the case of Strickland Respondent relies on the tes-
timony of David Vaughn. He is a 10-year employee who
initially joined the strike and then returned to his former
job on May 19, 1978 . Vaughn is presently and for the
past 4- 1/2 years has been a working foreman. He attend-
ed a union meeting held in the Plumbers hall a few
weeks after the strike started at which several hundred
members of Teamsters Local 104 were given a report on
negotiations , following which they overwhelmingly
voted to reject the employer 's offer as then constituted.
Vaughn had traveled to the meeting with coworker
Virgil Lewis, and initially spoke randomly with several
persons while still outside the building. He then entered
to sit with Lewis during the approximate 2-hour period
that the meeting consumed . Vaughn testified that during
a break in proceedings Strickland and Gerald Christman
approached his row of seats and stood in front of him.
He testified that Strickland stated he had a bullet for
Vaughn's head , and that Christman added Vaughn
would never live through a choice of going back to
815
work. Vaughn forced a smile while answering back that
it would make his wife a rich woman . He recalled that
Strickland continued to nag the subject for about 5 min-
utes, and then moved to the end of the aisle and stared
back. After this initial confrontation about 15 other per-
sons said that he stood a chance of getting hurt if he
should return to work. Following the meeting, and as
Vaughn was again outside in the parking lot , he recalled
several persons approached to ask if he was returning to
work and that Bruce Anderson civilly debated the pros-
pect with him . In fact Vaughn returned the following
day, traveling in the van of other persons also working
at the time and positioning himself so as not to be seen
from outside the vehicle . He continued this mode of
travel to work for about 2 months.
Strickland flatly denied making any remarks to
Vaughn of the type attributed to him, but elaborated
how he had an unspecified exchange of words with
Vaughn both outside the building before the meeting
commenced and inside while those in attendance were
settling down for the start. Christman corroborated all of
Strickland 's denials ; however, his testimony did not fore-
close that there could have been occasions during all the
hubbub of the meeting when he would not have been
present for an exchange of words between Vaughn and
Strickland. Earnest Trujillo testified to being at this
meeting , and recalled how Vaughn had approached a
group of members afterwards to offer comment that he
felt a good contract had been proposed . Trujillo de-
scribed how those present laughed off his viewpoint, and
called him dumb for thinking this way.
It is axiomatic that an employer has the burden of
proof in establishing engagement in disqualifying strike
misconduct . See NLRB v. Burnup & Sims, 379 U.S. 21
(1964). I am not persuaded by Respondent 's case as to
Strickland for the principal reason that demeanor factors
cause me to discredit Vaughn's testimony . Recognizing
that he could have courageously sought to earn a living
as he saw fit during the enormously destabilized period
of the strike's early weeks, I am not impressed with ac-
curacy of his recollection in identifying Strickland as the
source of such an ominous threat as was described. Addi-
tionally, the credible denials of Strickland and Christ-
man, the latter being particularly telling insofar as
Vaughn had placed Christman as directly involved in the
claimed essentially life-threatening utterances , are inde-
pendent reasons to reject Respondent 's contention with
respect to Strickland. It is of further significance that ac-
cording to Strickland's credited version Vaughn uncon-
cernedly later crossed the picket line, and by fall of that
year was on practically amicable terms with Trujillo
who would reasonably have been associated with a yet-
lurking peril. Respondent 's countering arguments to the
effect that Vaughn simply resigned himself to living with
danger while ultimately relaxing his precautions are
noted, along with what was established concerning Tru-
jillo's angry repudiation of a reinstatement job. Overall
the requisite burden of proof has not been met, and I de-
termine that Strickland is not disqualified from reinstate-
ment and thus entitled to this as an individual remedy
plus running backpay.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Robert Harry
As to this individual Respondent raises two incidents
which are assertedly the justifiable basis for its denial of
reinstatement . The first of these occurred in course of
the strike at a time fixed only as around July 1978.
During a late afternoon as Garage Supervisor Frank
Wood was exiting Respondent 's 27th Avenue gate he
had occasion to stop , scrutinize the driveway in front of
his vehicle , pick up nails, and then proceed on. In the
course of this a line of pickets was at the gate, and other
individuals were across 27th Avenue . Former security
employee Robert McCullough testified , after orienting
himself with a sketch of the physical layout, that from
his position in a guard shack 100 feet away he had seen
Harry walk to the front of Wood 's stopped truck and
bend down . This would have taken Harry a few feet
inside the premises from the public sidewalk . McCul-
lough recalled that after Harry 's movement , Wood then
went to the front of the truck and picked up a pointed
star nail in seeming anger.
Keith Strader is now with the security company serv-
ing Respondent and was formerly in its security depart-
ment as of 1978. He recalled observing an afternoon inci-
dent from about 70 feet away , in which Wood had
paused in his exit to pick up nails from the driveway fol-
lowing which Harry ran across 27th Avenue to kneel
down and apparently place another nail ahead of Wood's
truck tire . Strader testified that Wood picked it up as
Harry returned across the street, and handed it to securi-
ty guard Clayton Thoreson. The writeup of the incident
was actually done by Thoreson , who at the time was a
contract guard and is now a supervisor of uniformed
guards for Respondent . Thoreson testified that while on
gate duty in a midafternoon he witnessed Wood leaving
the property and making his customary stop to pick up
nails . Thoreson added that Wood returned such nails to
the pickets and reentered his truck to complete the exit.
Before he could do so, Harry and others ran across 27th
Avenue and , midst much confusion and milling around,
Harry knelt down to place a nail directly under Wood's
front tire . According to Thoreson, Wood dismounted
again to pick up the nail as Thoreson himself called to
the police.
Harry testified to being an assistant picket captain
during the strike . He asserted that pickets themselves
cleared the 27th Avenue driveway of nails on a daily
basis, and recalled the one occasion when Wood had to
stop his truck in the process of exiting . Harry testified
that on this unusual occasion Wood only told pickets
that he was tired of harassment and would run over the
next person who blocked his truck . Harry denied ever
placing a nail ahead of Wood's vehicle, or of generally
spreading them himself during any months of the strike.
I cannot credit the testimony of Respondent's wit-
nesses as to this episode for they each displayed an un-
convincing demeanor , a vagueness of recall , and insuffi-
cient internal harmony in their recollection of what
should have been so vivid . The composite of their testi-
mony does not comport with probabilities of a general
scene such as was described , nor does Thoreson even
corroborate that part of Strader's testimony as indicating
that he immediately received the pointed object from
Wood. Moreover Harry's general and specific denials of
misconduct in this regard are credited on the basis of his
persuasive demeanor . Most importantly Wood, in the
course of twice being called as Respondent 's witness,
gave no testimony on the incident, and this silence from
the person best situated to know what happened control-
lingly undercuts Respondent 's case.
On the second branch of what Respondent points to as
Harry's claimed disqualification from reinstatement
rights, the testimony of Robert Hamilton was presented.
As a rank-and-file warehouseman he had initially joined
the strike but returned to work in July 1978. He was
soon appointed a grocery supervisor and progressed
from that to his present position of grocery shipping su-
perintendent . During the prestrike period of his employ-
ment Harry had been a coworker with whom Hamilton
carpooled . They were each residents in the Tempe-Mesa
area of metropolitan Phoenix . Hamilton testified that
about midnight of a day in August 1978 he was proceed-
ing eastbound by automobile and at a stoplight on Mesa's
Southern Avenue, when he sensed the headlights of an-
other car coming up fast behind him. Believing that this
signaled a possible follower he turned north, then east,
north again, west on Broadway , and finally northbound
again to the large intersection of Stapley Drive and Main
Street where he pulled into the parking lot of a Dunkin
Donut Shop. The same car had tracked all these maneu-
vers, and when that driver got out it was Harry . Hamil-
ton asked why the harassment was occurring , but could
not recall any verbal response that might have been
made. He then drove to Mesa's nearby Greyhound bus
station and pulled into its parking lot where Harry had
again followed. Both men got out of their cars where
Hamilton attributes the statement to Harry that, "It's a
shame about your kids." Hamilton testified that this
greatly angered him and he drove off without answering
back.
Harry's version of any contacts with Hamilton that
summer was that he had received telephone calls from
him early in the strike, and had later seen him at a cab
stand near the bus station . At that point in time of
summer 1978 Hamilton was driving a cab, and Harry
had gone there to apply for such work. A second occa-
sion was at the donut shop when Hamilton came in as
Harry was having coffee. By this time Hamilton had re-
turned to work and the conversation between the two
was tense . Harry testified to saying that Hamilton was
setting a bad example , and should choose to support his
family some way other than crossing a picket line. Harry
denied threatening Hamilton's children at any time, or
that he had said it was "a shame" about them. Cross-ex-
amination established inconsistency in Harry's testimony
during the underlying unfair labor practice hearing inso-
far as spacing of telephone calls from Hamilton was con-
cerned, whether Hamilton had importuned him to aban-
don the strike , and that Harry harbored a definite anger
toward Hamilton based on their respective actions as em-
ployees of Respondent. I note these variances and that
Harry seems strangely inaccurate on the separate random
matter of estimating mileage distances in regard to
ASSOCIATED GROCERS
Mesa's downtown area bus station and the Stapley Drive
and Main Street vicinity not far east of there.
Given that there are infirmities in Harry's testimony I
nevertheless reject Respondent 's contention here because
Hamilton 's own testimony lacks credible or persuasive
character . His demeanor and unassured recollection are
largely the basis of this assessment . However, I find reli-
ance in Harry's credibly voiced denial of the cryptic
words attributed to him , and when this much is removed
from the case no reason remains to view Respondent's
burden of proof as having been met . On the overall issue
as to Harry, I determine that he is not disqualified from
reinstatement and thus entitled to this as an individual
remedy plus running backpay.
B. Computation of Vacation Pay
A "make whole" remedy as applies to this proceeding
embodies the award of vacation pay lost by the employ-
er's discrimination. Sioux Falls Stock Yards, 236 NLRB
543 (1978); Central Freight Lines, 266 NLRB 182 (1983).
At the threshold of this subject one looks to the labor
contract provisions of the 1975- 1978 period , and their
admitted carryover into the backpay period. Under these
an employee of Respondent was entitled to vacation pay
in terms of increasing ranges of service. The individuals
also had an election to take pay in lieu of vacation upon
timely notice to the employer.
There are 15 discriminatees in dispute as to whom the
parties have stipulated respective amounts would be due
were the General Counsel's contention on the subject to
prevail over Respondent 's. In such cases these individ-
uals secured interim employment at which vacation ben-
efits were paid . From this the General Counsel argues
that the denied employment at Respondent should be
looked to in calculating a value for remedial vacation
pay, and permit this to be affected only by the actual
extent of working time spent at the interim employer.
Contrarily Respondent would offset gross backpay only
to the extent of interim employment , to which a quarter-
ly portion of actual vacation accrual has been added.
The parties stipulated to a document illustrative of
their respective positions under a given hypothet, with
1/52 of gross backpay allocated as "vacation pay differ-
ence" between an individual 's entitlement as an employee
of Respondent and what was available from an interim
employer . Using a factor based on a presumed 3-week
differential in vacation entitlement , General Counsel
would reduce interim earnings by 3/52 of quarterly gross
backpay and subtract this arithmetical product from in-
terim earnings to yield a certain net backpay amount.
Respondent 's calculation would multiply the same 3/52
factor by the quarterly interim earnings, and reduce total
interim earnings only by such lesser amount . The effect
under Respondent 's approach is to shelter interim earn-
ings from the vacation pay reduction with the result of
lowered net backpay.
The General Counsel contends that established con-
tractual practices of employment at Respondent would
militate against assuming that discriminatees would not
have elected some vacation pay; moreover , that given a
choice prudence would dictate that relatively lower
paying jobs would result in relatively less likelihood of
817
employees working in lieu of vacation time off . Respond-
ent, citing Heinrich Motors, 166 NLRB 783 (1967), con-
tends that the focus should be on interim employment
and just as excessive overtime earnings need not disad-
vantage a claimant the essence of any calculation here
should be confined only to so much as is represented
"during the time the employee would have worked for
the Respondent ," and thus undertake a set-off based on
the interim employer's grant of vacation pay.
I am satisfied that flaws in Respondent 's proposed ap-
proach have been successfully detected , that the General
Counsel's theory is better in keeping with a full remedial
vision of how discriminatees should be reimbursed when
employed in a highly structured setting as is present
here, and that the resolution of vacation pay controversy
in Heinrich is distinguishable from what Respondent
argues here . The significance of having a vacation pay
election in lieu of time off must be recognized, as was
the case in Sioux Falls and Central Freight, supra. More-
over, the Board recently held that probabilities in regard
to vacation pay usage or scheduling should be reason-
ably assumed when the fringe benefit is being factored
into compliance . ITO Corp. of Rhode Island, 266 NLRB
503 (1983). Accordingly , I determine that the General
Counsel 's formula is more valid and appropriate to the
case , which confirms the additional dollar amounts due
as set forth , among other matters, in stipulated General
Counsel 's Exhibit 26.
C. Critical Contacts Preceding October 1978
1. Striker status
There are two unique situations that relate to prestrike
dynamics of employment. The General Counsel briefed
these as "special backpay eligibility issues" in terms of
whether the concerned individuals were within "the
class of striking employees ." Respondent contends that
one of the persons involved was merely a casual whose
employee status did not transcend the strike , and that the
other person lost any employee status by reason of
having resigned prior to the strike.
a. Thomas (Tom) Pickart
Pickart testified that he had originally been hired as a
casual employee and then became full time at Respond-
ent's grocery warehouse in the years 1976 and 1977. Fol-
lowing this he had quit to attend college at Arizona
State University, but around February 1978 returned on
a work schedule of Wednesday nights, Saturday morn-
ings, and some established third night. His job on this oc-
casion was as a produce department order runner. On
both occasions of being hired by Respondent he was
processed by Thomas Martinez of the personnel office.
He was still attending college as of early 1978 when he
was injured while at work in late March 1978 and re-
ported this to a supervisor. About a month later he was
medically released to return to duty, and provided this
document to Martinez after crossing the picket line
which was then in place . Pickart testified that Martinez
remarked that he could be useful, but Pickart told him
he was choosing not to return to work at the time giving
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the pending strike as the most particular reason . Pickart
testified that he had no further contact from Respondent
although he checked periodically for a year or so with
the Union and later had a brief contact last year with
William Cooksey, currently Respondent 's vice president
of distribution. Pickart had started work at the A. J.
Bayless Company on September 8, 1978, on an approxi-
mate 36-38-hour-per-week basis . He continued his studies
and recently had a university management degree con-
ferred after participating in a food industry scholarship
program. Pickart denied that during his second span of
employment with Respondent he was told the nature of
the job was casual.
Martinez testified that Pickart's second span of em-
ployment was as a casual and that he did not recall a
medical release being furnished by the individual. Marti-
nez had no role in work scheduling once a person's
hiring was processed , and he recalled that during the
early 1978 period the official having this function was
Produce Warehouse Supervisor Cliff Poulson.
I am not persuaded from the meager evidence on this
case that Pickart was more than a casual employee as
Respondent has asserted . The General Counsel assumes
the burden of proof in such an instance, and the fact that
Pickart was for several weeks before the strike working
a disjointed set of work shifts does not elevate his em-
ployment to a station beyond what is ordinarily connot-
ed by the term casual . To the extent that some regularity
is shown, the relationship went beyond the even more
tenuous notion of sporadic or intermittent, however the
evidence is not sufficient to show that Pickart was basi-
cally engaged for more than miscellaneous call-in work
as needed.
A second independent basis exists to reject his claim,
for it is plain from the unique career followed by Pickart
at Bayless that it became from the time first acquired in
September 1978 a regular position of substantial or great-
er equivalence to his former limited capacity with Re-
spondent when viewed by the letter and intent of Sec-
tion 2(3) of the Act. I am thus in agreement with Re-
spondent 's contention in this regard , and as an overall
matter determine that Pickart has no entitlement to rein-
statement nor to backpay in any amount.
b. Larry Holland
Holland testified to having worked at Respondent for
over a year , and by spring of 1978 being a truck service-
man on day shift . He recalled being spoken to just before
the start of the strike by truck maintenance superintend-
ent Frank Wood (the same individual previously termed
"garage supervisor"). In the course of this Holland re-
marked that if the imminent strike occurred he would
take a job with his brother in the State of Washington.
In fact Holland went on strike as did so many others, but
in May 1978 he joined his brother in Chelan, Washing-
ton, to work at a gas station. His family stayed in Phoe-
nix where their home was owned. Holland experienced
health problems causing his return to Phoenix in 1979.
He has never received a reinstatement offer from Re-
spondent.
Wood testified that the conversation with Holland was
immediately before the strike, and in it Holland had said
that he was intending to terminate employment and
move . On this basis Wood prepared an employee evalua-
tion form for the personnel office, rating him as an aver-
age employee . The form was executed on April 10, 1978,
indicating that as the likely date of the conversation, and
Wood did not claim that Holland ever saw the paper.
Wood had at that point in time undertaken conversations
with various employees of his department concerning the
likely impact of an expected strike on them . In his own
managerial planning for the strike contingency, he had
not ascertained specifically whether any of his employees
would or would not continue working.
While I reserve total comment on Wood's credibility
with respect to overall operational matters of his depart-
ment, I am not persuaded that his recollection of the
Holland conversation in April 1978 was at all accurate.
Admittedly he did not recall it with exactness, but more
importantly I find Holland a sufficiently credible witness
when his demeanor, consistency of testimony , and detail
of recollection are considered . I am satisfied that his case
has been grossly misconstrued by Respondent, for there
is a clear insufficiency of proof insofar as showing that
Holland had expressed any intention to terminate from
employment . When all facts are considered he emerges
as an individual who took unique steps following the
strike, but in no way so as to have left himself beyond
the scope of the Board 's general remedy . I determine
that he was not a prestrike quit, and no reason exists to
do other than confirm the General Counsel 's claim for an
offer of reinstatement to Holland.
However, the amount of running backpay due Holland
is another matter. In contrast to his testimony regarding
prestrike dynamics, the rendition of the years spanning
late 1978 into 1983 raises serious questions of his work
availability . While not fully susceptible to reconstruction
from the evidence , it is clear that Holland was constantly
plagued with health problems, compounded by oper-
ations and a perception of his own that he was physically
unfit for most ordinary employment (Tr. 377-388). While
Holland underwent CETA training during this timespan
and had brief employment as a machine operator , his sit-
uation was not that of a person typically within the po-
tential of ordinary labor market consideration. In a situa-
tion of mixed health and personal considerations, the
Board has looked to a "totality of the circumstances" in
limiting backpay entitlement . Midwest Hanger Co., 221
NLRB 911, 925 (1975). With a record of sorts on the
subject and the parties having tacitly briefed this point,
the issue of what amount of backpay might be due Hol-
land became a sufficiently fully litigated matter. Here I
note that the General Counsel characterized Holland as
one who "looked for interim work immediately," while
Respondent 's brief makes argument based on his "physi-
cal problem," "health problems," and "intervening as-
pects with regard to his health ." For the "combination of
reasons" that pertain to Holland's chronic and peculiar
circumstance of being constructively disabled from con-
sistently gainful employment, I believe that the General
Counsel has not made a realistic exclusion of calendar
quarters falling within Holland's theoretical backpay
period. Cf. Big Three Industrial Gas, 263 NLRB 1189,
ASSOCIATED GROCERS
1201-1202 ( 1982). On this basis I further determine to ex-
clude all calendar quarters through 1983-1982, and con-
firm only the balance of 1983-1983 onward as not affect-
ed by any failure to be within ordinary labor market
availability.
2. Polygraph discrimination
Respondent makes a comprehensive threshold argu-
ment on this issue to the effect that the General Counsel
is barred from seeking consideration of any individual
not named in allegations of the underlying consolidated
complaint . The large group of persons so named are con-
tended to be an exclusive "all- encompassing" class,
beyond which the General Counsel cannot now reach in
asserting that other individuals are entitled as claimants
under this heading. Further, Respondent argues that the
factual findings of the administrative law judge in the un-
derlying case were undisturbed by the Board , notwith-
standing its contrary view as to legal conclusions, and
that discussion of factual issues as presented at that time
should be confirmed when an individual 's conduct was
no more than "equivocal."
As to those actually named in the complaint originally,
Respondent argues the principle of res judicata attaches,
and that as in Ace Beverage Co., 233 NLRB 1269 (1977);
Schorr Stern Food Corp., 248 NLRB 292 (1980); and
Valley Cabinet & Mfg., 253 NLRB 99 (1980), the earlier
litigation bars any surviving claim when they had not
clearly been found victims of the polygraph test require-
ment . Respondent urges that a second opportunity to tes-
tify on the subject should not arise, particularly when the
time to present all evidence was so clearly present
before.
I reject Respondent 's legal defenses as summarized
above because a tracing of the polygraph test issue gives
no indication that all matters surrounding it, other than
its effect in its alleged conversion of the strike's charac-
ter, carried the potential of resolution in a future compli-
ance proceeding. It was first a fragmented subject in the
sense that facts relative to the strike period show that a
first polygraphing phase occurred in the May 18-19,
1978 period , and then no striker sought reinstatement
until early June at which point more thorough proce-
dures for handling those leaving the strike had evolved.
Secondly the treatment of contacts being made to man-
agement around this time , and including as they did re-
lated subjects such as intended strike abandonment, were
analyzed only "cursorily." Additionally the administra-
tive law judge's explication generalized matters by re-
peated reference to "a number" and "many" employees,
with great variations being present as the ponderous pro-
gram unfolded . Most significantly , however, is the
Board 's own treatment of the subject in reversing on the
fundamental issue of whether there had been justification
to use the polygraphing technique . Plainly finding none
to exist, the Board held that its discriminatory use "as a
condition of reinstatement" was the essential unfair labor
practice for which a make-whole remedy was ordered
(emphasis added). For these reasons I proceed to individ-
ual treatment of cases known from this record as the
polygraph discriminatees.
819
a. Zeck Raney
Raney is now retired and was first employed with Re-
spondent in March 1965 . By the time of the strike he was
working in the freezer department on day shift perform-
ing meat receiving work involving forklift operation,
stocking, and checking . About 2 months into the strike
he had spoken informally with his former supervisor,
Larry Link, who told him that the strikers could be re-
turned to work on condition of passing a physical , taking
the polygraph examination, and relinquishing their union
card. Soon after this he telephoned Warehouse Superin-
tendent Randy Hendley, and was told the same thing by
this official. Raney testified to telling Hendley that in
such a respect he was not interested in employment,
adding that the idea of a polygraph examination was of-
fensive because it carried the implication of his being un-
truthful after many years of employment with the com-
pany . Cross-examination established that in November
1978 and again in January 1979 Cooksey had telephoned
Raney offering a night job which Raney had declined on
both occasions . During this intervening time he was
seeking work through classified want ads, direct contact
to prospective employers, and weekly job visits to his
own and a sister Teamsters local hall . He later took
work with Kunkle Moving Company, performing the
physical work necessary to place merchandise cartons on
pallets after receiving them from freight trailers . He ulti-
mately returned to duty with Respondent on July 9,
1979.
Raney's uncontradicted testimony respecting his
summer of 1978 contract to Hendley establishes him as
an actual polygraph dicriminatee because of such a re-
quirement being among those presented to him . There is
no significance to Respondent showing here that Raney
was only considering a return to work at that point in
time, or that he was well aware of the violence as had
and was occurring . The single controlling point is that
evidence respecting Raney fits exactly the Board's or-
dered remedy, and I thus determine the General Counsel
has supported its claim for him by adequate proof.
Raney also represents the first instance of discussing
diligence in a discriminatee 's search for work, as well as
the intriguing notion of whether Respondent 's off-shift
work offers represented instances, when declined, of
willful failure to mitigate damages. Both of these points
will be treated further below , but preliminarily I find
Raney to have made regular and varied efforts at acquir-
ing interim employment so as not to suffer any tolling of
backpay on this basis . On the second point I reject Re-
spondent's argument, implicit or explicit as it might be in
regard to Raney himself, that his declination on two oc-
casions of a night-shift job at the facility was a failure to
mitigate . Noting both that Raney had left the State en-
tirely in one interim work effort, and that he undertook
physical labor with Kunkle that was fully as arduous as
any known to exist among Respondent 's classifications, it
is neverthelesss true that as to the employer found to
have committed unfair labor practices the obligation to
reinstate is fundamentally the stringent requirement of a
beneficiary's former job , and only when it does not exist
an alternative of substantially equivalent character. An
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer did not prevail on a' mitigation argument
where a discriminatorily discharged meatcutter had been
offered a meat manager trainee position , the Board
noting that the individual was not under an obligation to
accept such a job because his former position "still exist-
ed." Wonder Markets, 249 NLRB 294 (1980). But cf.
Kansas Refined Helium Co., 215 NLRB 433 (1974). Here
Raney is discussed as the first of numerous cases in
which this configuration , or a variation thereof, existed,
and because of policy considerations behind the Board's
reinstatement remedy plus the fact that Respondent oper-
ated under a fundamental misconception that it need re-
introduce a discriminatee only into their former seniority
district, I hold and determine that job offers extended to
Raney in November 1978 and January 1979 are without
effect on the remedy to which he is entitled . The more
significant analyses of the issue , when reinstatement
offers were to the same work shift, will appear below.
Cf. Ramona 's Mexican Food Products, 203 NLRB 663,
686 (1973).
b. Thomas Cantele
Cantele testified to being hired by Respondent in Sep-
tember 1972 and working as a truckdriver . He was on in-
dustrial leave at the time the strike commenced because
of a hand injury, and he recalled that 3 days after com-
mencement of the strike he was telephoned at his home
by one of Respondent 's officials . He was told in this con-
versation that the Company had received a medical re-
lease concerning his injury and he was asked to come
into work . He declined to do this saying at the time that
he would not cross the picket line. However , in June
1978 he went to the transportation office and spoke with
Manager Gary Morgan about returning to work , observ-
ing that the Union seemed to him to have lost the strike.
Morgan advised him that a polygraph examination would
be required and Cantele declined this saying it should
not be necessary . He testified that Morgan then raised
the subject of vacation pay, and explained this could be
available to Cantele if he would sign certain documents.
Cantele was financially pressed at the time and testified
that for this reason he followed up on Morgan's sugges-
tion by signing what was tendered. He has not after that
time had any offer of reinstatement from the employer.
After various interim employment at Shamrock Compa-
ny, C and H Trucking , and other firms he obtained a po-
sition with Thunderbird Fire and Safety where he is now
permanently employed.
Gary Morgan testified that he was formerly Respond-
ent's transportation supervisor and recalled Cantele as an
employee on industrial injury when the strike began. He
recalled that in early June 1978 Cantele appeared at his
trailer office , and after pleasantries inquired about return-
ing to work. Morgan testified that he spoke of the re-
quirements including that of a willingness to take a poly-
graph test . From this the conversation drifted to vaca-
tion pay, which Cantele obtained on the signing of a vol-
untary resignation . Morgan also possessed inconsequen-
tial knowledge concerning employment later assumed by
Cantele at Shamrock.
Robert Gray testified that he has been operations man-
ager of Shamrock Foods for 7 years, and was previously
a management employee of Respondent where he had
supervised Cantele . He recalled Cantele being employed
by Shamrock during 1978 as a truckdriver , and after
having two preventable accidents transferring to a night
crew job . Cantele then briefly worked as a relief dis-
patcher, transferred to the beverage department, and
spent the last 6 months of his employment with Sham-
rock as a night-shift dispatcher supervisor . Gray identi-
fied a termination form of Cantele indicating the employ-
ee wanted to enter a different line of work , and testified
that this was what Cantele communicated to him at the
time of termination in November 1981. Shamrock re-
structured the dispatcher supervisor job after Cantele's
termination , in consequence of which there was no spe-
cific replacement for the position . Gray denied that he
had told Cantele prior to the termination of a layoff
being imminent.
This is another plain case of the General Counsel es-
tablishing from the facts that an entitled polygraph dis-
criminatee is proven up. The obvious condition voiced
by Morgan in June 1978 shows this to be the case, and
mandates the determination whereby Cantele's claim is
confirmed insofar as his quit being null and void with a
continuing , unfulfilled entitlement to an offer of reinstate-
ment . However, Respondent has offset his backpay claim
by sufficient proof of his having willfully relinquished in-
terim employment from and after November 1981, when
Gray's credible testimony shows that he quit Shamrock
without cause . I reject the General Counsel 's theory that
it was necesssary for Respondent to plead this specific
defense, and otherwise find that Shamrock 's restructur-
ing was an afterthought in much the same vein as ap-
peared from Respondent's own handling of the settled
Henry Kochn and Edward McGinnis cases, as well as
adjustments made following departure of long-time
Maintainence Department Welding Supervisor Curtis
Christianson (to be discussed below ). It is not unusual for
such business changes to occur only when a position be-
comes vacant , and I determine from the evidence that
Cantele's duty to mitigate was breached upon his depar-
ture from Shamrock.
c. Rodolfo (Rudy) Castillo
Castillo testified that he was hired into Respondent's
meat department in May 1977 , and worked there until
the strike . He observed the strike for some months and
then around July telephoned Cooksey from his home
stating a willingness to return . Castillo testified that
Cooksey stated conditions to reinstatement were the
taking of a polygraph examination and surrendering his
union card to Respondent. After agreeing to this Castillo
reconsidered and did not appear for the scheduled poly-
graph examination . He testified there was no further con-
tact until late January 1979 when Cooksey telephoned
him to offer a return to the meat department . Castillo re-
called Cooksey adding that the Union was out, and for
this reason Castillo declined the prospects of resuming
work . He then received a letter dated January 27, 1979,
notifying him of his termination because of having de-
clined an available position.
ASSOCIATED GROCERS 821
Respondent does not dispute that Castillo was told of
the polygraph requirement , but instead contends that his
motivating reason for not returning both in summer of
1978 and January 1979 was that the Union was not
present to provide representation . Again this is unavail-
ing in view of the Board 's Order, for clearly the poly-
graph test was voiced as a requirement of reinstatement
and Castillo was so scheduled . On this objective basis
Castillo's status as a polygraph discriminatee has been
adequately established , and documentary evidence show-
ing mid-June 1978 to have been the point of contact pre-
vails over his own reference to the month of July. I thus
determine that his backpay claim as set forth in appendix
C of the amended backpay specification is confirmed.
d. Dennis Falls
Falls testified that he was employed by Respondent in
1964 for the grocery shipping department on the night
shift running orders and loading trucks . After a year of
this he transferred to the nonfood department and even-
tually became a working foreman there. The last 10 or
more years of his employment prior to the strike were
spent as a working foreman in the salvage department.
After initially supporting the strike he telephoned Super-
visor Randy Hendley from his home one morning in
June 1978 to inquire about the chances of returning. He
was told his former position was open but a polygraph
examination must be taken . Falls answered that he would
not do so , but about a month later he received a call
from Hendley who was checking on his current inten-
tions . A polygraph examination appointment was offered
him, but his sentiments about it had not changed. There
was a third telephone conversation with Hendley in
August, at which time Falls was becoming increasingly
financially pressed by medical bills . He learned in this
conversation that upon a return to work resumed medi-
cal coverage would not commence for 90 days. Falls
eventually did return to duty November 12, 1978, with
his reinstatement being to a position of order runner on
night shift.
Falls has uncontradictedly been shown to be a poly-
graph discriminatee, this being the clear consequence of
his contacts with Hendley and in harmony with his cred-
ible testimony as to why he did not return to work earli-
er. Falls is also the first of several instances in which
those who had been working foremen , or in other cases
leadmen, with 20-cent and 10-cent -per-hour pay differen-
tials, respectively, were not returned to such capacities
nor to the associated pay levels . Respondent makes a
blanket defense in this regard , arguing that the employ-
er's assignment to such a position is discretionary as a
matter traceable to the collective-bargaining agreement
and its noneconomic language dealing with management
rights . From this Respondent asserts that a legitimate
"sphere of authority" exists whereunder it is not obligat-
ed to make these exact positions available to returning
strikers.
I reject Respondent 's argument on the working fore-
man issue (and relatedly as to appropriate leadmen
cases), for the Board's Order supersedes any contention
that employer discretion reposes because of a current or
former contractual right . Falls has thus not as yet been
reinstated to his former position , nor has its nonexistence
been shown . I thus determine that Falls is a polygraph
discriminatee , and confirm the General Counsel 's asser-
tion that his right of reinstatement is yet unfulfilled, and
his appropriate backpay plus a further running amount
for the working foreman differential.
e. John Sirovatka and Ray Canales
These two individuals are similarly situated . The rein-
statement inquiry call -in list maintained by Cooksey
during summer of 1978 shows, in harmony with his own
testimony on the point, that each of them telephoned
him about returning to work but initially demurred when
told of the polygraph requirement.
As to Sirovatka Respondent defends by arguing that
his testimony in the underlying unfair labor practice
hearing did not establish that any delay in a return to
work was motivated by the polygraph test, and no evi-
dence of record is present now to change this status. As
to Canales, Respondent argues only that the General
Counsel has a burden of proof in showing why any ini-
tial refusal to return occurred, and this has not been ful-
filled in the particular case.
I reject Respondent 's defenses in both regards . It is not
a matter of Sirovatka never before articulating why he
had not returned nor is it true that the General Counsel
has a burden of proof of the type envisioned by Re-
spondent in its brief. The point is quite direct that record
evidence shows both individuals were confronted with
the polygraph test requirement upon their return to work
inquiry, and this is exactly what the Board 's Order runs
to. I therefore determine that in both cases a polygraph
discriminatee status has been established , and confirm the
General Counsel 's backpay claims for both Sirovatka and
Canales as set forth in special appendix D.
f. Samuel Stippick
Stippick was employed in Respondent 's grocery ware-
house in 1977 on the 9 p .m. to 5 a .m. work shift as an
order selector and truck loader. He testified that around
June or July 1978 he telephoned Cooksey, and conversed
with him knowing that Hendley was on the line. Stippick
stated he wanted his job back and was agreeable to
taking the required polygraph examination. He had
added a preference to actually resuming work after
making a personal trip to Wyoming , and his polygraph
examination was scheduled for the next day at 8:30 a.m.
Stippick testified to reconsidering the matter and chose
not to take the exam , asserting that aside from this condi-
tion he would have gone back to work immediately.
This sequence of events is strictly in keeping with what
shows on Cooksey 's log, when Stippick is listed in early
July but recorded as a "no show."
Respondent 's defense in regard to Stippick parallels
what was raised as to Sirovatka above. While a named
person alleged to have been affected by polygraph dis-
crimination as set forth in the original unfair labor prac-
tice complaint , Stippick was not among the 14 witnesses
whose testimony was actually discussed by the adminis-
trative law judge . This consequence is even less reason
to adopt Respondent's argument as to Stippick , and from
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the record evidence of this case and import of the
Board's Order as now so repeatedly mentioned, I deter-
mine him to be a polygraph discriminatee and confirm
the General Counsel's computation of backpay due him.
g. Richard (Sammy) Williams
Williams testified that he was originally hired in 1965
for work in the dry grocery warehouse, and by the time
of the strike was a truck spotter working an afternoon
shift. He testified to telephoning Respondent 's personnel
office on August 27, 1978, and speaking with either Mar-
tinez or Former Personnel Manager Jay Pickup, asking
what it would take to get his job back. He was told that
a polygraph examination probably must be administered
which he declined to take feeling it was not necessary.
He then inquired about vacation pay and was told he
must terminate in order to get that money . This conver-
sation also involved reference to the possibility that
Cooksey might want to speak with him. He went into
the personnel office the following day, accompanied by
his wife Rose Marie Williams , and saw Martinez. He re-
turned certain company keys and signed papers that
were tendered to him for obtaining vacation pay, which
was received about a week later . Williams testified that
following this he made remarks to various former co-
workers as he exited through the produce department,
with reference to Respondent 's president as a dictator.
Williams explained that this was his own reaction to Re-
spondent's persistence with the polygraph test, noting
that his loyalty to the Employer had been demonstrated
in part by the 60-day sick leave accumulation that existed
in his case at the time of the strike. By mid-July 1978
Williams had become a casual employee at Golden State
Foods, earning about the same as an interstate driver as
he had while with Respondent . He later obtained regular
employment at Fry's.
William's wife corroborated his testimony insofar as
whether or not the couple were present with any compa-
ny functionary other than Martinez himself, and whether
there had been any opportunity for him to have made
angry remarks in the personnel office area itself as are at-
tributed to him. Further, she recalls that what her hus-
band did say about "a dictator" was done in a normal
voice tone, and after the signing of all termination
papers . Finally, she denied that he had tarried on their
way out from the offices, or that he had left the immedi-
ate reception area in which she waited briefly upon their
first arrival.
Respondent presented Thomas Martinez and James
Grammatico as witnesses on this issue. Martinez was as-
sistant personnel director as of the summer of 1978 and
recalled the occasion of Williams coming in to terminate.
Martinez testified that Williams had said he was there for
his vacation pay and to see someone in management.
Martinez recalled that after a short span of time he saw
Williams again , and this time he indicated - that the termi-
nation process was complete and he was awaiting his
check. Martinez does not remember any mention of the
polygraph with Williams.
James Grammatico testified that he was Respondent's
warehouse coordinator as of August 1978, sharing a
front office with Superintendent Tom Gardner. He re-
called the occasion of recognizing Williams' voice, and
then observing him speaking to a secretary as he said he
would no longer work for a dictator. At or about this
point Gardner appeared to ask if the remark meant that
Williams was quitting , and when this was affirmed Gard-
ner left to get a termination form. James Grammatico
then saw Williams proceed into Martinez ' office.
This claim involves several evaluations of credibility.
As to the original telephone conversation of August 27,
1978, the testimony is uncontradicted for neither Marti-
nez nor Jay Pickup, in his appearance as a witness on
other matters, alluded to the subject. The events of
August 28, 1978, and the light they might shed on Wil-
liams' reasons for signing the termination form, are what
constitute the factual dispute . I am not satisfied that Wil-
liams has given a fully accurate rendition of all that tran-
spired, and while Rose Marie Williams was impressively
candid this does not mean that she necessarily retains a
complete memory of what unfolded. Martinez displayed
a limited capacity for details and was generally vague on
the incident , however, James Grammatico was a witness
of singularly impressive demeanor and delivered a per-
suasive version of what actually occurred. I am con-
vinced from this that Williams had brief contact with
Gardner, and that he was sufficiently animated to have
made the "dictator" remarks while still in the personnel
office.
The larger question here is how this translates in
regard to the claim advanced on Williams ' behalf, with
particular reference to the originating telephone call of
August 27, 1978. Here the phrasing by whomever it was
he spoke to about a polygraph test was that it "prob-
ably" would be asked of him. However, a probability is
not a condition, and there is no indication that Williams
had any contact with Cooksey who was chiefly handling
reinstatement inquiries. Practically all significant contacts
by inquiring strikers during the summer of 1978 months
were made to Cooksey, with Hendley being the person
next most likely to make authoritative comment. This
general pattern can be seen from the administrative law
judge's treatment of 14 separate witness evaluations in
the underlying unfair labor practice case decision. It is
also noteworthy from the affidavit of Gerald Manning,
in evidence as Respondent 's Exhibit 43 on an unrelated
point, that this individual remembered his own call-in to
Martinez in August 1978 and that nothing was mentioned
about polygraph testing in the conversation that ensued.
The credited events in the personnel office on August
28 only add direction . From James Grammatico's clear
and confident description it is seen that Williams was
specifically interested in his vacation pay. It is conjectur-
al as to what Williams may have been aggravated by as
the 2 eventful days unfolded, for that point in time was
halfway through a period in which all contract negotia-
tions between the parties were stalled and he was being
frustrated in his own individual case by processing poli-
cies that denied immediate receipt of accumulated vaca-
tion pay. I do not, however, attach any weight to the re-
corded reason for termination , that of seeking other em-
ployment, because the record does not establish this to
be anything more than a perception of whichever official
ASSOCIATED GROCERS 823
handled the termination process and Williams in this
regard credibly denied that he had so reported . Overall,
I do not view Williams as a polygraph discriminatee, for
there is insufficient probative evidence to show that this
aspect was ever raised as legally to be a condition prece-
dent to reinstatement . I thus determine that Williams'
claim is without merit and he is owed no backpay.
3. Vacation pay quits
An employer cannot be forced to accept vacillation in
regard to whether employees are or are not on strike.
The law and related doctrine has carefully balanced the
respective rights involved when economic pressures are
applied . In an economic strike, and this one remained at
all times only of that character , it is only the uncondi-
tional offer of a return to work that removes the employ-
ee as one voluntarily withholding services . It is this pros-
pect to which the employer's antennae must be constant-
ly attuned , for to ignore such an act is to face the peril
of accumulated monetary liability . However, absent that
particular act the striker remains only as an instrument of
the economic pressure and its fundamental objective.
Except for extraordinary cases which some unfair labor
practice conduct may be associated to in an apparent act
of terminating while on strike, the ordinary meaning and
consequence of a severance from employment will
follow.
On this issue the General Counsel contends that
Roylyn, Inc., 178 NLRB 197 (1969), and P. B.R. Co., 216
NLRB 602 ( 1975), control , as illustrations of the princi-
ple that strikers who resign merely to obtain vacation
pay do not lose their protected employee status. Re-
spondent contends that where vacation pay is not avail-
able to employees under contract language as reasonably
interpreted , the quitting of employment by a striker to
advance their receipt of vacation pay severs the employ-
ment relationship and exonerates the employer from any
backpay claim.
I conclude that Respondent's view of the facts and law
is more valid respecting this issue . There is no showing
that any of the requesting employees were entitled to va-
cation pay in terms of their own anniversary dates or the
last contract language on the point . More importantly
there was no showing that any nonstriker or returning
striker was extended any consideration beyond the limits
of what was available to the striking employees involved
in these claims.
Roylyn was a representation ("R") case proceeding in
which various eligibility issues turned on "abandon[ment]
of [striker] interest in their struck jobs" with the Board
rendering its decision "On the facts of this case." It is
significant that in Roylyn the Board added the following
observation:
We do not , of course , question the validity of the
statement that an employer need not finance a strike
against itself. [Fn. 3.]
The same emphasis on "abandon[ment ] of interest" in a
struck job was perpetuated by the decision in P.B.R.,
which again was an "R" case in which the Board also
significantly alluded to the determinations being made as
reached "on a case-by -case basis ." An interpretation
comparable to that made here was present in Ipco Hospi-
tal Supply Corp ., 255 NLRB 819 (1981 ), and I am satis-
fied that this recent Board decision , coupled with its
holding in Laredo Coca Cola Bottling Co., 258 NLRB
491, 501 -503 (1981 ), and cases there cited , is the relevant
posture of doctrine on the subject . To hold otherwise
would permit the scenario of all 400 strikers , or as many
of them as had not taken 1978 vacations , applying en
masse for this benefit , and if required of the employer
having the sudden effect of cash outlay in the general
range of one-quarter million dollars . I do not read the
cases as indicating this to be a result the Board would
countenance in its balancing of legitimate statutory inter-
ests.
a. Richard Bacchus
Bacchus testified that he had worked for Respondent
since 1970 . At the time of the strike he was working a
midnight shift in the salvage department emptying trucks
of damaged goods or returns . After the strike was under-
way Bacchus telephoned Pickup in August 1978 to in-
quire about owed vacation . He was told that a termina-
tion from employment was needed before vacation pay
could be disbursed . A few days later he met with Pickup
and executed the termination form on grounds that he
needed his vacation pay immediately . Bacchus testified
that he was not employed at the time of making the first
telephone contact to Pickup , but by August 14, 1978,
had been employed at Safeway at a point in time prior to
turning in his resignation . Safeway had not pressured
him to resign from employment with Respondent in
order to take that job.
The General Counsel contends that a make-whole
remedy applies to Bacchus, noting there is evidence of
record that Martinez had advised him how a polygraph
test would be required for his return to work . Although
raising this point in the brief, the General Counsel does
not adopt the concomitant claim that Bacchus' backpay
period begins any earlier than October 9, 1978 . Respond-
ent contends that Bacchus had secured a favorable job
with Safeway , and took his vacation pay only as part of
winding up any affairs with Respondent.
On the fundamental point I hold for reasons outlined
above that even if Bacchus quit solely to receive vaca-
tion pay, this did not disturb the consequences of his be-
coming a former employee who happened to leave in the
course of the strike . On the additional point of the poly-
graph subject being injected , I discount the General
Counsel 's argument that the evidence shows this to have
been said . Bacchus did not thus testify himself, a void so
significant under circumstances of this case as to inde-
pendently show it a nonexistent matter . Additionally, I
have expressed reservations above about Martinez'
memory, and I give no weight to his vague and uncer-
tain association of the polygraph subject with any con-
tact received from Bacchus . On this basis I determine
that the claim on behalf of Bacchus is without merit, and
remedial action is not available to him.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. David Grammatico
David Grammatico testified that he was hired in
August 1975 and by time of the strike was working in
the dry goods department on an afternoon shift loading
and spotting trucks . In late July 1978 he telephoned Re-
spondent 's personnel office to inquire about vacation pay
and spoke with Martinez . He was told that this could be
obtained only upon crossing the picket line to work or
by quitting . He then spoke by telephone with Hendley
and was told the same thing . Being desperate for money
at the time he followed through on steps to obtain his
vacation pay, although not actually recalling that a vol-
untary termination was signed . Grammatico testified that
he has never received an offer of reemployment from
Respondent . He sought interim employment after the
strike commenced and worked a series of jobs until
around 1982 when he obtained regular employment at
Don Sanderson Ford as a technician at $10 per hour.
Earlier he had worked at Pioneer Ford , Mel Clayton
Ford, Sunland Lincoln -Mercury, briefly at Campbell
Transmission , and then Greenway Automotive for about
a year immediately preceding Sanderson . He testified
that his work at Sunland Lincoln -Mercury was terminat-
ed over a radio-playing incident, which merely involved
his use of a personal radio while at work which was un-
justifiably interfered with by a relative of that company's
service manager.
Here the General Counsel contends that a make whole
remedy remains applicable to David Grammatico, while
Respondent contends he merely needed and obtained
extra money in the course of returning to his more fa-
vored work as a mechanic . On the basis of reasons out-
lined above, I determine that the claim on behalf of
David Grammatico is without merit, and remedial action
is not available to him.
c. Hanley Henderson
Henderson testified that after originally being a casual
employee he went on fulltime with Respondent in Janu-
ary 1976 as a truckdriver hauling produce on local runs.
After originally supporting the strike he telephoned the
personnel department in July 1978 inquiring about vaca-
tion pay . He was told at this time it was payable only
should he resign , and later that month he went to Re-
spondent 's transportation office where Supervisor Ed
Schaefli, with Supervisor Gary Morgan present, ten-
dered him the papers for a voluntary termination. During
this conversation Henderson mentioned to Schaefli the
possibility of returning to Indiana , and in fact the termi-
nation form showed relocation to another state as the
given reason . In the final contact with Schaefli this offi-
cial had asked if he was quitting Respondent , to which
Henderson had replied in the affirmative adding that it
was done "under these circumstances." This action gen-
erated the issuance of vacation pay later that summer.
Henderson testified that he had no real intention of re-
signing from Respondent , but did so only to obtain
needed money . In actuality he did return to Indiana in
late July, seeking work and living with a relative there.
His Phoenix area home was listed with a realtor and sold
the following month . He obtained work on September 8,
1978, with McCune Company in Indiana as a truckdriver
and had gross earnings there in the first full calendar
year 1979 of around $30,000 . This interim employment
slacked off during 1980, in which based on sporadic em-
ployment Henderson grossed about $15,000 . He testified
that while vacationing back in the Phoenix area in De-
cember 1979, he had told company official George
Brown about having an interest in returning to duty with
Respondent . Henderson returned to the Phoenix area and
obtained work at Fry's in May 1981 where he remains.
Here the General Counsel contends that the facts do
not show abandonment of interest in employment, while
Respondent contends that Henderson simply resigned to
move to Indiana without any intention of returning. This
relatively short-term employee displayed most ordinary
indications of severing employment with Respondent. It
is a strained interpretation of the limited evidence show-
ing any retention of interest on Henderson 's part to say
that because of token contact to Respondent over a year
after a resignation, and an ultimate return to the Phoenix
area as a personal relocation , that he did other than
manifest any ordinary termination from employment
before the end of the strike in which he had participated.
On this basis I determine that the claim on behalf of
Henderson is without merit, and remedial action is not
available to him.
d. Jack Scheeringa
A current affidavit of this individual , coupled with his
letter to Respondent dated September 10, 1978, is the
sole extent of facts respecting his claim . In these Scheer-
inga states he had been a warehouseman since 1975, and
had joined the strike as an actual picketer . After' his
strike benefits ran out he became pressed for money.
Having talked some months earlier with Hendley for in-
formation on the point, he had learned that to obtain va-
cation pay it was necessary to terminate . Believing from
this that a written resignation was necessary he wrote
the letter , referring to it only as a "formal resignation"
and as an expression of appreciation for the "week's va-
cation pay I have coming at this point" with pleasant
gratuitousness added.
The General Counsel rests on the essential theory of
its vacation pay quit argument , while Respondent con-
tends Scheeringa's resignation is entitled to acceptance at
fact value . From these known facts I see nothing to dis-
tinguish this case from others in which I believe that a
desire for receipt of vacation pay, knowing that it must
be accompanied by an official termination as a legal sev-
erance from employment by the individual , is outside the
scope of any remedy available here . Cf. NLRB v. Mara
Sales & Equipment Co., 626 F.2d 567, 575 (7th Cir. 1980).
On this basis I determine that, for reasons given above,
the backpay claim on behalf of Scheeringa is without
merit, and remedial action is not available to him.
e. Wayne Zuhlke
Zuhlke testified that he was first hired by Respondent
in September 1970, and for the approximate 3-year
period prior to the strike worked an afternoon shift in
the nonfoods ("re-pack") department stamping cigarettes
ASSOCIATED GROCERS 825
and pulling orders . After initially supporting the strike he
telephoned Hendley around early July 1978 and offered
to take the polygraph examination which he understood
was being routinely required . An appointment was
scheduled for him but he reconsidered taking the poly-
graph because of personal pride in not wanting to cross
the Union's picket line. Zuhlke testified that later his fi-
nances were low and he needed vacation pay, which Re-
spondent's personnel department had told him was pay-
able only upon voluntary termination or the arrival of
his vacation anniversary date that September . On this
basis he went to the personnel department and spoke
with Pickup , telling him that because of desperate finan-
cial straits he would sign termination papers . This was
done and he commenced employment at $5.50 per hour
as a yardman with Smith Pre-Cast, a supplier to the con-
struction industry , where he promised that he would ter-
minate himself from Respondent in connection with their
offer of employment . In November 1979 he saw help-
wanted ads by Respondent and contacted Martinez, then
went into the personnel department to make application
from which there was no response . Early in 1980 he
started employment at Fry's after telephone contact with
Pickup to inquire about what sort of reference he would
be given and whether he had been blacklisted for em-
ployment by Respondent . Pickup agreed to get back to
him about his inquiries, and several days later made con-
tact saying that company policy affecting him was that
of not hiring back those who had quit during the strike.
Zuhlke had a final telephone conversation with Cooksey
in 1980 inquiring about openings, and was told that Re-
spondent was laying off at the time as well as reference
again to the concept of his having quit during the strike.
His employment at Fry's became of regular permanent
character in June 1980, although he has retained a desire
for reinstatement with Respondent.
The General Counsel again contends that the individ-
ual exhibited no real intention to abandon employment,
while Respondent contends that Zuhlke was motivated
by the desire to take immediate employment while the
strike continued and to avoid recrimination by those still
supporting the Union . There is nothing to distinguish
Zuhlke's case from others in which vacation pay was
sought, and in fact his testimony is the best clear reflec-
tion of how the principle of deferred vacation pay until
an individual 's anniversary date was reached is set forth.
The General Counsel makes no contentions that the asso-
ciation of the polygraph test with any contacts by
Zuhlke is applicable to his claim . On this basis I deter-
mine that the claim on behalf of Zuhlke is without merit,
and remedial action is not available to him.
D. Slotting
The Union 's unconditional offer on October 4, 1978, of
a return to work by all its striking members established
October 9 , 1978, as the date from which nonpermanently
replaced but unreinstated strikers would he entitled to
the commencement of backpay rights . As the parties
achieved individual resolution of claimant cases during
the time period prior to the backpay hearing, an issue
arose as to how this date of October 9, 1978, would be
applied . This related to the numerous instances in which
Respondent resolved polygraph discriminatee claims as
to persons who, but for the polygraph test, would have
returned to work at an earlier time than the end of the
strike . Additionally there remained the question of what
impact, if any, shall result from resolutions reached in
this supplementary proceeding , with respect to those liti-
gated as polygraph discriminatees and other special
cases, including individuals whose claims were pressed
solely by the Union as a separate party in interest. The
basic group affected is individuals of the warehouse,
transportation , and produce departments , who were con-
sidered by their respective seniority ranking for reinstate-
ment . The issue , variously described in the record as
"slotting," "starting date," or "domino effect," is com-
plex and highly conceptual , thus lending itself as one for
which the parties respective briefs on the point sharpen
what is at stake . These contentions read in part as fol-
lows, with excerpts being first from the General Coun-
sel's brief and then that of Respondent:
The forty discriminatees in issue all have backpay
beginning dates postdating October 9, 1978, and
were listed in Appendix B of GCX 2 and 28. Their
respective post October 9, 1978, backpay beginning
dates coincide with the dates that vacancies oc-
curred after the strike, to which they should have
been reinstated . However, inasmuch as backpay be-
ginning dates were established and assigned by se-
niority ranking and eligibility as reflected on GCX
7, 8, and 9, the correctness of the post-October 9,
1978 backpay beginning dates would be dependent
upon the computation of the backpay beginning
date for the other two [those referred to as "poly-
graph discriminatees" and those who were assigned
a backpay beginning date of October 9, 1978] cate-
gories . It should be noted that the parties agree that
this particular issue involves only a mechanical ap-
plication and analysis of GCX 7, 8, and 9 and does
not address the different and much larger issue as to
what positions should have been offered to the dis-
criminatees ... .
In order to understand how the backpay begin-
ning dates for the partially paid discriminatees listed
in GCX 26 were determined , it is necessary to un-
derstand the structure and composition of GCX 7,
8, and 9. These seniority district worksheets list the
striker/discriminatees in order of their seniority as
of the strike 's October 4, 1978, termination date.
October 9, 1978, backpay beginning dates were then
assigned to the most senior strikers in numbers par-
alleling the numbers of temporary strike replace-
ments employed as of the strike 's termination within
the three affected seniority districts: warehouse,
transportation , and produce . Once the number of
temporary strike replacements were exhausted, post-
October 9, 1978 vacancy dates were then assigned,
continuing to follow the seniority rankings. The
starting date dispute between General Counsel and
the Respondent is explained , in part by the General
Counsel 's modification of the "10-09-78" backpay
starting dates originally assigned by the Respondent
to certain striker/discriminatees characterized on
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the record as "polygraph discriminatees" and listed
in Appendix C of GCX 2 and 28. . . . Consistent
with the General Counsel's theory that [certain
fully paid polygraph discriminatees] backpay start
dates should coincide with the date that their appli-
cations for reinstatement were denied because of the
Respondent 's polygraph procedures , previously
found by the Board in the underlying procedure to
be unlawful, their "10-09-78" backpay start dates
were modified to reflect the dates set forth in GCX
7, 8, and 9. As indicated on GCX 7, 8, and 9, this
modification, in the General Counsel 's opinion, then
created additional October 9 , 1978, start dates to
then be assigned to those individuals whose seniori-
ty ranking had previously only entitled them to a
post-October 9, 1978, backpay start date. This
"ripple" or "domino effect" would have corre-
spondingly "moved up" the post-October 9, 1978,
backpay start dates of all discriminatees whose
backpay commenced after October 9, 1978. .. .
Logic would suggest that the General Counsel is
correct in his contention that if someone previously
assigned an October 9, 1978 , backpay start date has
an actual backpay start date pre-dating October 9,
1978 , then this creates an additional October 9,
1978 , position to be given out. It should be remem-
bered that the October 9, 1978, start dates parallel
the number of temporary strike replacements still em-
ployed as of October 4, 1978, and who accordingly
should be displaced by returning strikers.... The
fallacy with [Respondent 's] argument is that it treats
the polygraph discriminatee as a temporary replace-
ment as of October 4, 1978. The polygraph discri-
minatee, who should have been reinstated prior to
the strike's conclusion, is a permanent employee en-
titled to the same status as a non -striker or any
other striker reinstated prior to the strike's conclu-
sion . If the Respondent argues that if it had to rein-
state a polygraph discriminatee prior to October 4,
1978, then it would not have hired a temporary
strike replacement , then such an argument is specu-
lative. As found . . . in the underlying proceeding,
the Respondent's personnel department was taxed
to the limit to find replacements for the more than
300 individuals who had struck. There was signifi-
cant turnover among the strike replacements during
the strike and the more than 1000 strike replace-
ments hired during the strike all signed statements
acknowledging that they were temporary employ-
ees. Given such a 3:1 turnover ratio, no one could
predict what and how many temporary employees
would still be employed as of October 4, 1978.
Therefore, it cannot be said that the number of tem-
porary replacements, as of October 4, 1978, the cru-
cial determinant of the number of strikers [who]
would be accorded October 9, 1978, backpay start
dates, could be influenced in any degree by the pre-
October 4, reinstatement of polygraph discrimina-
tees. [G.C. Br. pp. 4-9. Footnotes and transcript ref-
erences deleted.]
Persons who were assigned [the 10/9/78 starting
dates originally] received them because of the
Board 's Decision . In that Decision , there were two
categories of discriminatees, those that resulted
from the polygraph test and those that resulted
from Respondent's treating all strike replacements
as permanent . The parties have agreed that there
were eight positions in the produce department not
held by pre-strike employees or permanent replace-
ments at the end of the strike , thus, eight positions
in the 10/9/78 starting dates for them . One of these
persons was shown originally as being Gerald
Miner. [See GCX 9.] However, if Miner is treated
as being entitled to a backpay starting date of
6/21[78] and extending beyond 10/9, as it was in
this case, the 10/9 slot for him remains filled be-
cause he is treated as holding one of the slots held
by a temporary replacement . (The existence of eight
temporary replacements in the produce department
at the end of the strike is the reason for creating
eight slots in the first place .) Miner, therefore, still
continues to oust the temporary replacement hold-
ing his slot, and only seven then remain for alloca-
tion to the other seven most senior people on the
list as of 10/9. Thus, Miner's moving up to the 6/21
date does not vacate the slot . He continues to fill
that position since he is treated by both parties as
hypothetically still holding that position at 10/9 for
purposes of computing his back pay.
If General Counsel 's position were to be sus-
tained , the result would be that there would be nine
discriminatees receiving backpay, starting at 10/9,
when there were only eight 10/9 positions to be
filled hypothetically for purposes of determining
backpay . General Counsel's position would assume
that Miner could be holding a position actually held
by a permanent employee, that is, a non -striker, re-
turned striker, or permanent replacement. That
cannot be the case since the "still out" lists were
constructed based on the fact that these persons
were still at [Respondent] as of the end of the strike
and entitled , as the Board found , to be retained by
the Respondent . So Miner cannot be said to be
holding one of those positions.
The same thing holds true for the warehouse and
drivers lists, but affecting a larger number of indi-
viduals. [R. Br. 180-182.]
I believe the General Counsel has more realistically
analyzed the essence of this controversy . It is particular-
ly significant that the point in time of early October 1978
was still one of disruption from effects of the strike, and
Respondent administered a polygraph test as late as Sep-
tember 25, 1978. The overabundance of temporary em-
ployee replacements had not as yet settled out in terms
of their remaining in employment , either of their own
volition or as a matter of imminent displacement by re-
turning strikers . More importantly it would follow that
operational distortion would still exist in terms of job fa-
miliarity and adequacy of task performance . The conjec-
ture surrounding these factors is what validates the Gen-
eral Counsel 's essential point, that regardless of whether
ASSOCIATED GROCERS 827
a polygraph discriminatee actually had been reinstated
prior to October 9 , 1978, the situation on that exact date
is what must be looked to and from this it can be accu-
rately determined that the greater number of job spaces
were then available to returning strikers. The General
Counsel terms Respondent 's contrary argument to con-
tain the "fallacy" of considering that reinstated poly-
graph discriminatees had no better standing than a tem-
porary replacement, and while I adopt this view I add
that Respondent is essentially attempting to substitute by
a showing of dollars paid out in backpay what could
only have been achieved by proof that an even greater
number of individuals had in fact then been engaged on a
permanent basis . Since the finite number of such persons
so found by the Board is the outer limits of this defined
group , I determine that the General Counsel 's theory is
valid and appropriate in resolution of this "slotting"
issue . See MCC Pacific Valves, 244 NLRB 931 (1979);
Harrison Ready Mix Concrete Co., 272 NLRB 331 (1984).
E. General Elements of Respondent 's Reinstatement
Program Subsequent to October 1978
As Respondent 's vice president in charge of operations
during 1978, Cooksey had been responsible for reinstat-
ing former strikers . The essential procedure he estab-
lished was to work from departmental seniority lists and
make contact with the most senior unreturned person as
openings arose . In carrying this out Cooksey did not
narrow such opportunities to a specific functional or
"cost center" area of a department , but instead treated
those from a given seniority department as potentially
available for any position within that department. As the
largest of the departments the variations in grocery
warehousing were most prominent , and here Cooksey
routinely inquired of former specialty employees , such as
those in grocery repack , deli operations , or the new insti-
tutional department , whether they were available for
grocery shipping work as an entry level position which
often came open . While there are minor internal vari-
ations in starting time of shifts, Cooksey considered the
facility to be fundamentally on a day or night basis, and
this was a controlling notion in whether to permit an un-
reinstated striker to pass an offer of recall and yet remain
eligible for further consideration. More specifically an in-
dividual previously on days would not forfeit any rein-
statement rights by declining a night job , and persons
who did return to positions other than those formerly
held were advised that job bidding procedures of the
past would still be applicable should there be a desire for
future change.
Contact by Cooksey was typically by telephone and
he maintained extensive notes of whatever resulted. Fre-
quently he would write followup letters of confirmation
relative to understandings reached for individual cases,
or to record a termination from employment where this
in his view was the consequence of the contact. Cook-
sey's source material in making the contacts was primari-
ly what was on record in Respondent 's personnel office
insofar as employee addresses and home telephone num-
bers were concerned , including any changes reported
during the poststrike period.
As a supplementary proceeding to the basic litigation
which this case concerns , the standard truisms concern-
ing rights retained by economic strikers are an accepta-
ble prelude to various aspects of the backpay controver-
sy. Thus the economic strikers for whom an uncondition-
al group application for reinstatement was presented
have an entitlement to their former positions where per-
manent replacements do not occupy such jobs. Laidlaw
Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969). This fundamental right of reinstatement may
end when , among other things, "regular and substantially
equivalent employment" has been obtained by an individ-
ual discriminatee . The Board declines a "mechanistic ap-
plication" of such statutory language, and instead deter-
mines ad hoc by "an objective appraisal of a number of
factors, both tangible and intangible " whether or not
such a condition has eventuated . Among the factors
noted are "fringe benefits (retirement , health , seniority
for purposes of vacation , retention , and promotion), loca-
tion and distance between the location of the job and an
employees' home , differences in working conditions"
Little Rock Airmotive, 182 NLRB 666 (1970). The right
of reinstatement also extends to jobs which become
available and for which a discriminatee is qualified, this
in keeping with employer policies that uniformly and
nondiscriminatorily apply an objective basis of recall
such as seniority. See Carruthers Ready Mix, 262 NLRB
739 (1982). Although the Board does not require a spe-
cific rule that an offer of reinstatement take any particu-
lar form , it must be "a good-faith effort to communicate
such an offer" and that the effort shows "all measures
reasonably available" were utilized to make known that
the former striker "is being invited to return to work."
J. H. Rutter-Rex Mfg. Co., 158 NLRB 1414, 1524 (1966).
F. Credibility
Major issues of this supplementary hearing arise from
the contacts made by Cooksey, both in terms of the
number of claimants involved and in terms of the funda-
mental controversy over what constituted a valid offer
of reinstatement in terms of the Board 's remedial author-
ity and subsidiary questions such as a discriminatee's ob-
ligation to reasonably maintain his whereabouts on file
with the employer in circumstances such as this.
As an overall matter I am considerably impressed with
the testimony of Cooksey, and on demeanor grounds
strongly tend to give it full credence . His recitations of
contacts made was done with substantially persuasive
detail , giving rise to a decided impression that an honest
attempt at accurate recall was being presented . I am fully
mindful of the self-interest that is involved , and have
considered the General Counsel 's forceful countering ar-
guments that Cooksey's testimony was wooden , suspi-
ciously repetitive , and unreliable because of the over-
whelming number of contacts from which confusion
could well have resulted. After careful reflection on the
significant point , I credit Cooksey as a general proposi-
tion , making exception only in those specific instances in
which the record as a whole convincingly shows him to
have been mistaken . I recognize that this finding involves
discrediting of the testimony of various other witnesses,
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
many of whom left no particular indication of intending
to conceal the truth . As to this I can only allude to the
high degree of suggestibility that carried over from the
extraordinary events of 1978, and that countervailing
self-interest is fully present on the part of the General
Counsel 's many claimants . The stated resolution of credi-
bility, however, is what affects many of the individual
treatments to follow.
G. Critical Contacts Subsequent to October 1978
1. Jerry Dawa
Dawa testified that he was hired into Respondent's
produce department in March 1977 , and by the time of
the strike was working an afternoon shift of 5 p.m. to ap-
proximately 2 a.m. doing order pulling and truck loading
at $7.17 per hour . He recalled that in April 1980 Cook-
sey had telephoned him at home, offering a night job in
the grocery warehouse with Tuesdays and Wednesdays
off. Dawa declined this stating he was unfamiliar with
operations of that department and apprehensive that he
would not be able to meet production quotas that applied
there . He recalled Cooksey saying that if he declined the
offer it would mean termination, and in fact Dawa did
receive a letter to that effect soon thereafter . He denied
receiving an earlier letter dated in May 1979, signed by
Cooksey and sent to his home address at the time,
making an offer of employment in the grocery depart-
ment with express reservation of an entitlement to trans-
fer into produce upon a vacancy occurring there.
Cooksey testified that he had first contacted Dawa in
May 1979 at a point when , upon the main body ware-
house seniority roster being exhausted (as to prior shift),
he was following a subsidiary procedure of contacting
produce district discriminatees to offer them grocery
work before outside hiring was undertaken . As part of
this approach Cooksey testified that he sent Dawa a
letter dated May 29, 1979 , to that effect , and a certified
mail receipt card was signed for by Dawa on May 31,
1979 . Cooksey testified further that when Dawa's name
came up in April 1980 for a return to produce , he tele-
phoned this employee and had the job declined because
of holding better employment . Dawa was then sent a
subsequent letter of termination by Cooksey dated April
25, 1980, alluding to their telephone conversation on the
previous evening . Respondent placed in evidence an-
other certified mail receipt signed by Dawa on April 26,
1980.
It is evident here, and I so find , that Dawa is confused
insofar as his recollection of contacts from Cooksey is
concerned . As shall be implicit in several of the cases to
follow under this heading , I expressly discredit the testi-
mony of Dawa on critical factual issues of his claim.
Other individuals were shown to have been receiving
comparable contacts at the time , and the existence of
both postal receipts is fully indicative of Cooksey 's credi-
bly described version of the Dawa case. The April 1980
offer of produce department work was a valid fulfillment
of his reinstatement rights, and I expressly find that he
did so decline this position as Cooksey contends and
shows to have been confirmed in writing. I determine
that the General Counsel 's claim on behalf of Dawa is
without merit, excepting only such admitted backpay
and accrued interest as is due him for a portion of 1980's
second quarter.
2. Jesus (Jesse) Fernandez
Fernandez testified that he was hired by Respondent
in February 1961, and initially performed order and load-
ing work on the night shift . He then went to grocery re-
ceiving work where he remained for succeeding years,
becoming the senior working foreman in that department
by 1967 . This put him in charge of boxcar unloading at
the rail dock, where he directed or assisted in such ac-
tivities . His superior was John Roberts, supervisor of the
grocery receiving operation. Fernandez testified that he
originally supported the strike , but at a time in August
1978 stopped at Roberts ' home for conversation with this
individual with whom he had come to be on friendly
terms over the years . Fernandez testified that Roberts re-
marked to him in this conversation that he and other
working foremen would never be returned by Respond-
ent to their exact former positions . In November 1978
Cooksey telephoned with the offer of a night-shift posi-
tion , explaining that he could pass on it if he chose. Fer-
nandez did so at the time, but the following January he
contacted Cooksey to then request the work that had
been offered . Fernandez was returned to a job running
orders on the midnight shift under Supervisor Jim Bris-
ter, and without having a working foreman premium
added to his hourly rate . After returning he often asked
for his old job, and noticed that when more desirable
forklift assignments arose on the shift they were never
provided to him even though highest in seniority for
such fill -in. He testified that after 2 weeks and 2 days in
this situation he resigned in frustration over the condi-
tions . Fernandez added that Cooksey's response , and that
of Brister and Roberts , to his inquiries about converting
to a working foreman, was to have "no idea " what those
prospects might be.
Respondent contends that Fernandez had relinquished
the order runner job in the warehouse on the midnight
shift for no better reason than that he did not like it, and
that his interim employment at both Pacific Motor
Trucking (PMT) and Consolidated Freightways was sub-
stantially equivalent to his former job . I reject both de-
fenses, noting first that the reinstatement to grocery ship-
ping on midnight , even though it is shown Fernandez
was making quota as he worked, was not a valid fulfill-
ment of his rights because it did not include the capacity
of benefits of the working foreman position he had occu-
pied for so long a time before . The job at Pacific Motor
Trucking is not known in detail beyond its nature as a
checker at a given hourly rate, and the position at Con-
solidated Freightways , while reaching an hourly rate of
$13.20, involved work as a dockman but without the
characteristics present before when Fernandez was the
most senior working foreman at Respondent 's large facil-
ity and first substitute for the divisional supervisor. On
this basis I determine to confirm the General Counsel's
claim on behalf of Fernandez for reinstatement and run-
ning backpay , including as it does a calculation for
unpaid working foreman differential.
ASSOCIATED GROCERS 829
3. Gerald Christman
Christman testified that he was hired by Respondent in
July 1972, and first worked in dry grocery shipping on
the night shift . This involved filling orders and loading
trucks . After about a year he moved to a job spotting
trailers on the midnight shift, but with weekends off for
the first time . He then changed to the frozen food and
deli operation , filling orders and loading trucks. By the
time of the strike he was working in a new department
serving institutional customers . Christman supported the
strike and after it ended was eventually contacted by
Cooksey via telephone in March 1979 . He was offered a
job in the dry grocery department with an answer ex-
pected from him by the next day. Christman told Cook-
sey that he understood being entitled to pass on such an
offer, if it was not to his former job as it existed when
the strike commenced . To this Cooksey answered that
his only obligation was to offer a warehouse job with re-
stored seniority . Christman telephoned back to Cooksey
before the final deadline on acceptance or rejection, and
said that the Union had confirmed he was entitled to
pass on the offer which he had decided to do. Cooksey
said that such a course would be at peril of being termi-
nated , and Christman in fact soon received a termination
letter . He testified that he declined the offered work in
grocery shipping because the work surroundings were
hot and dirty , that he was not comfortable running
orders and that it was hard for him to meet the produc-
tion quota used in that operation . He added that over his
years of experience with Respondent jobs in dry grocery
shipping were considered merely entry level for new em-
ployees.
Respondent relied on its contention that the offer of
any position of the same shift within the warehouse dis-
trict to one holding that seniority extinguishes their rein-
statement and backpay rights . Here Cooksey testified in
agreement with Christman that in early March there
were conversations between them in which the point
was deliberated , particularly insofar as Christman had
obtained advice from the Union that he need not accept
the grocery warehouse work . The termination from em-
ployment that was visited on Christman was set forth in
Cooksey's letter dated March 8, 1979 . This letter alluded
to the dispute over the correct "return procedure"
where an offer was not to a "former work area," and to
an asserted contact by Cooksey with Christman's wife to
ascertain his answer on the point . The letter stated that
absent a final reply by March 12 , 1979, the letter would
serve as Christman's termination . Cooksey denied hear-
ing from Christman after the date of the letter.
This is an instance in which I credit Christman 's testi-
mony of having given Cooksey a final answer on the job
offer before the March 12, 1979 deadline expired . Christ-
man so testified , however, that it is actually academic to
the issue because this reinstatement offer was part of the
pattern which I believe as a matter of law to be insuffi-
cient in fulfilling Respondent's obligations under the
Board 's Order . Job tasks and various working conditions
were highly dissimilar between the physically demanding
work of running grocery orders and the specialized prep-
aration of institutional product orders in an entirely dif-
ferent environment . On this basis I determine to confirm
the General Counsel's claim on behalf of Christman for
reinstatement and running backpay.
4. Jon Martin
Martin testified to having been hired by Respondent in
February 1971 for work in the dry grocery warehouse as
an order selector . This was still his position when the
strike commenced , at which point he was working at the
9 p.m. to 5 : 30 a.m . shift with Fridays and Saturdays off.
After the strike terminated he was first contacted by
Cooksey in a 10 p .m. telephone call to his home on Janu-
ary 23, 1979, with the offer of a job in the dry grocery
warehouse , carrying a 3 p.m . starting time and Tuesdays
and Wednesdays off. The terms were that it must be ac-
cepted or he would be terminated from employment.
Martin answered that he would not accept on those con-
ditions and Cooksey could do what he saw fit. Martin
was given to expect that a termination letter would issue,
but he denied ever receiving one or that he was ever of-
fered another position by Respondent . At the time he
was performing temporary work at $3.50 per hour, and
his specific reason for not accepting Cooksey's job offer
was because the Union's business agent had advised it
was not necessary to accept on changed terms. While
last working at Respondent, Martin was attending
evening classes at a community college of the area, and
by early 1979 was still pursuing a random course of
study.
The uncontradicted facts of this case show a valid
offer to have been made . The general context of Re-
spondent 's reinstatement program was not one in which
manipulation , subterfuge, or recrimination were opera-
tive factors in Cooksey's undertakings . Cf. Flite Chief,
Inc., 258 NLRB 1124, 1126 (1981 ). Minor differences in
shift time and days off, while distasteful to this particular
individual , are not of such significance as to make the
offer other than one sufficiently within meaning of the
Board 's Order . There has been no showing that Cook-
sey's methodical program of reinstating strikers con-
cealed any open positions which exactly matched what
they had formerly done . It must also be remembered that
at this point in time of early 1979 many union members
were involved with interim employment , the potential
for which was to have the same practical effect as
though a full reinstatement offer of unarguable validity
had been extended , where such interim employment in-
volved a different or inconvenient work location, mark-
edly different tasks, different wages and benefit patterns,
and uncertain prospects of continuity . Notably, too,
Martin did not express any inkling to Cooksey at the
time about what is now obliquely raised as a pursuit of
college studies which would be interfered with by the
later starting time . In this regard Martin admitted the
predictable fact that the institution at which he was in at-
tendance offered a variety of morning courses as well as
those he was accustomed to taking in the evening. Cf.
Markle Mfg. Co., 239 NLRB 1142, 1148-1149 (1979). On
this basis I determine that the General Counsel 's claim
on behalf of Martin is without merit, excepting only such
backpay and accrued interest as is due him for the period
of October 9, 1978, to January 23, 1979.
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Bruce Anderson
Anderson testified to being hired by Respondent in
February 1964 in grocery receiving. By the time the
strike commenced he had been in the frozen foods de-
partment for about 3 years working a 6 a.m . to 2:30 p.m.
shift with about 10 to 15 other employees . He had bid
into this line of work and was high in seniority among
his colleagues . Shortly after the strike ended Cooksey
telephoned him at home with the offer of night-shift
work . After considering this for a few days Anderson ac-
cepted, and returned into the grocery shipping depart-
ment as an order runner on production quota working
until approximately 5:30 a .m. This was the type of work
he had last done 5 or 6 years previously . He testified that
in the past forklift assignments , to the extent they arose
in such an operation, were distributed by supervisors ac-
cording to seniority . After about 90 days in this position
he was terminated in February 1979 for not precisely
meeting the minimum 90 -percent of production quota.
His supervisor over that period of time had been Jim
Brister, whom he had known for about 10 years as a co-
worker at Respondent and with whom he was on gener-
ally friendly terms . During this 90-day period Brister had
counseled him concerning job requirements , and a writ-
ten industrial vehicle operator test was scheduled which
Anderson did not pass.
In Respondent 's defense to this claim Former Night
Grocery supervisor James Brister credibly testified that
he had sympathetically spoken with Anderson about
how the latter 's excessive talking while at work was
hampering his ability to do a satisfactory job. Brister
twice reprimanded Anderson in writing , unavailingly of-
fered him a trainer to assist in improving his work, and
in late January 1979 suspended him for 2-1/2 days in the
course of progressive discipline preceding his actual ter-
mination.
John Lopez is Respondent 's safety and training super-
visor with responsibility for administering forklift opera-
tor examinations both in regard to an obstacle course
portion and the necessary written examination. Lopez
testified that after operations returned to a normal phase
following commencement of the strike there were no-
tices posted informing employees that recertification
would be necessary for forklift operators . Following An-
derson 's return to duty he failed the written portion of
the examination. Lopez then personally notified him of
the necessity of retaking this written portion , and ob-
tained a confirming signature of Anderson to this effect
on February 13, 1979. Lopez credibly recalled that while
other employees routinely retook the written portion
with success, Anderson never contacted him to make ar-
rangements.
I largely adopt Respondent 's contentions in the Ander-
son case, believing that a position of genuine potential to
contemporary earnings capacity and future transfer pros-
pects had been made available to him . There is no indi-
cation that a retaliatory motive touched Anderson, and
the forklift test was a matter that had survived the claim
of illegality in the underlying case as well as having been
credibly shown to have fairly applied to Anderson upon
his recall . This case is one of a willful failure to maintain
suitable interim employment which constitutes a disquali-
fication from backpay to the extent of such failed mitiga-
tion . Cf. Carter 's Rental, 250 NLRB 344, 347 ( 1980). On
this basis I determine that he is entitled to no backpay
for the period February 26, 1979, onward . I determine
further that consistent with other cases his entitlement to
an offer of reinstatement to the former position of em-
ployment survives , and as to this Anderson retains pref-
erential reinstatement rights with Respondent.
6. Gilbert Pena
Pena testified that he was hired by Respondent in
1962, and for the approximate 10-year period prior to the
strike worked in the freezer on day shift . The last 6 to 7
years of this period were as leadman , with a 10-cent
hourly pay differential plus extra for freezer work. His
duties involved arriving early for the shift and setting up
paperwork preliminary to receipt of merchandise from
independent suppliers . He checked incoming orders,
signed necessary paperwork , and occasionally ran a fork-
lift. After supporting the strike he received an early
morning telephone call from Cooksey around April 1979
with the offer of a day job in warehouse receiving, cou-
pled with the statement that it must be taken or termina-
tion would result . Pena answered that whatever must be
done would follow , knowing that his allergies would be
aggravated by the hot, dusty conditions of the ware-
house . Pena testified that Cooksey hung up on him with-
out particularly listening to details of any response, and
the next day a notice of termination arrived . At the time
of the call from Cooksey, Pena was employed at Pacific
Motor Trucking where he worked for about a year. In
1980 he became employed in dock work at Consolidated
Freightways and remains with that company. Pena
denied any further contact from Respondent after the
Cooksey call and related letter.
Respondent had no evidence to contradict Pena's gen-
eral version of the facts, but contends that he has been
exposed to dust and adverse weather conditions during
his interim employment so that any excuse premised on
his suffering from allergies should be discounted. It is
also argued that his leadman position was supervisory in
nature, and that interim employment in his case constitut-
ed the aquisition of substantially equivalent employment
in the statutory sense.
I reject all Respondent defenses and uphold this claim
in full. Pena's work in the freezer operation was unique
and the offer of recall to grocery receiving, separate
from circumstances under which it was made, did not
fulfill the obligation of tendering a striker his former po-
sition . The record fails to show that Pena 's leadman ca-
pacity ripened into that of a statutory supervisor, for
here his testimony relegated any assignments or direction
he might make, particularly in the regular supervisor's
absence, to the level of mere routine and nonjudgmental
efforts at more efficiently utilizing the services of co-
workers already well qualified to their jobs. Respond-
ent's final argument is unavailing , for as found in a com-
parable instance above the dock work at both Pacific
Motor Trucking and Consolidated Freightways is con-
siderably dissimilar from the more specialized warehouse
functions of this facility, and particularly so in Pena's
ASSOCIATED GROCERS 831
case where he had paperwork responsibilities . On this
basis I determine to confirm the General Counsel 's claim
on behalf of Pena for reinstatement and running backpay
with leadman differential.
7. Ronald Hager
Hager testified that he was hired by Respondent in
April 1972 for the grocery shipping department, per-
forming trailer loading on night shift. After a short time
he bid to the frozen and deli department of 25 to 30
other employees , and worked there as an order runner or
linestocker on an afternoon shift . For the approximate 2-
year period before start of the strike Hager was the only
linestocker on his shift in the department , a position that
involved filling shelves, rotating stock , and answering
calls. Hager testified that around February 1979 Cooksey
telephoned him at home in the evening offering work as
an order runner in the grocery department with Wednes-
days and Thursdays off. Hager answered that he wanted
an exact return to duty on his former job with weekends
off, and recalled Cooksey saying he must take the offer
or be terminated . Hager denied being told on this occa-
sion that he could subsequently move from that position,
or that the telephone offer was one on a shift starting
around 3 p.m. He has had no further contact from Re-
spondent since that time . Hager has been employed on a
midnight shift as a dock driver for Consolidated
Freightways since October 1978 , a regular position of 40
hours work per week but more strenuous in nature than
his last job with Respondent.
Cooksey confirmed Hager's version of the telephone
contact , and Respondent seemingly does not pursue this
case other than arguing that substantially equivalent em-
ployment had been acquired by reason of Hager's hiring
in permanently with Consolidated Freightways in Octo-
ber 1978. As to this he has performed dock work and
trailer moving, while often experiencing shift changes
from cutbacks . As with other claimants who ended up
with this interim employer, I find that the working con-
ditions and job benefits at Consolidated Freightways are
dissimilar to those in effect with Respondent that the po-
sition cannot successfully be labeled substantially equiva-
lent in the statutory sense to the discrete job into which
Hager had settled in Respondent's deli operation . On this
basis I determine to confirm the General Counsel 's claim
on behalf of Hager, insofar as it seeks fulfillment of his
continuing entitlement to a valid offer of reinstatement.
8. Charles L. Fisher
Fisher testified that he had been hired by Respondent
in August 1969 for night work in the grocery shipping
department . He continued in this work to the time of the
strike, with his duties at the time being linestocker work-
ing from 9 p.m. until needs of the operation were fin-
ished the following morning . Fisher testified that Cook-
sey telephoned him around early February 1979 , offering
order runner work in his former department , except for a
1-hour difference in starting time and different days off.
Fisher had an injured left hand at the time treated by
stitches and a splint , which upon a medical release from
such condition allowed a return to duty as an order
runner on March 9, 1979. About 2 years after this rein-
statement he resumed being a linestocker on the day shift
and continues in this occupation.
As to this reinstated employee this issue is to whether
the order runner job was one of substantial equivalence
in terms of his injury as it existed at the time . If so, his
temporary disability would excuse Respondent from li-
ability for the delay in reinstatement of several weeks.
Fisher has persuasively established from his testimony
that with order running there is a constant requirement
of heavy lifting as would increase the likelihood of
stitches pulling accidently from his injured hand. This
risk was greatly lessened with ordinary tasks of the lines-
tocker, primarily because the work involved handling
product by forklift. It has not been sufficiently shown
that Fisher unjustifiably delayed his return to work. On
this basis I determine to confirm the General Counsel's
backpay claim on his behalf.
9. Robert Ramey
Ramey testified that he was hired by Respondent in
August 1965 for shipping work in the grocery warehouse
on a shift commencing at 4 a.m. By the time of the strike
he was working in repack department on a Monday
through Friday shift starting at 7 a.m., and primarily per-
forming cigarette stamping , receiving, linestocking, and
related duties in nonfoods with approximately 15 em-
ployees working this shift . As time passed following the
end of the strike Ramey heard rumors that his recall was
imminent , but that he could not expect to last long on
the job planned for him. Around July 1980 he received a
job inquiry letter from Respondent , and on this basis
conversed with Cooksey by telephone . He testified to
asking to be returned to his former job, on which Cook-
sey answered that Respondent's only obligation was as to
starting time and days off and the current opening was
on the day shift. Ramey informed Cooksey that he
would not again work on the boxcars, as this was an
entry type occupation which he had done years before
when first starting with Respondent. He received a letter
of termination soon after this conversation, and has had
no contact from Respondent since that time . Cooksey's
letter of July 16, 1980, alluded to a conversation of that
date, in which Ramey stated he "would not be returning
to Associated Grocers" because of satisfaction with a po-
sition then held . Ramey had been on the Union's negoti-
ating committee during 1978 , and in February 1979 was
elected to a position as assistant business agent which he
held for over a 3-year period. Following this he was un-
employed for 6 months while looking for warehouse or
truckdriving work, and eventually secured a salaried po-
sition with Safeway as a night supervisor in its ware-
house.
In this case Respondent relies on the terms of Cook-
sey's letter of July 16, 1980, in contending that Ramey
turned down an appropriate job offer because of content-
ment in his position with the Union that left him never
thinking of a return to the old employment . The defect
in this argument is that Ramey was never extended an
offer of sufficient content that it could be evaluated for
equivalence. Since Cooksey has not elaborated on the
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
telephone conversation of July 1980 , Ramey's recollec-
tion must be accepted and from this it is seen that he was
merely parrying whatever Cooksey may have been inti-
mating as to work back at the facility but not in the
former repack function.
On this much of a record I cannot hold that a proper
offer of reinstatement occurred , nor does the evidence
show Ramey to have contributed in any way to his loss
of employment with the Union . His occupational endeav-
ors after that were mixed , with a period of unsuccessful
job seeking followed by the regular position now held. If
he is truly willing to return with Respondent this will be
learned when an appropriate offer is actually made. On
this basis I determine to confirm the General Counsel's
claim on Ramey's behalf for reinstatement and running
backpay.
10. Edward Calles
Calles testified that he was hired by Respondent in
December 1973 as an order runner in its grocery depart-
ment on a shift beginning at 8 p .m. After about 3 months
of this he bid into the frozen food department and
worked there as an order runner for about 3 years. He
moved from this to a position as working foreman on the
dock loading operation , with the shift beginning at 3
p.m. and a 20-cent hourly differential paid to him. After
about 1-1/2 years in that position he relinquished the
working foreman capacity to transfer into a new food
service department on a shift beginning at 6 p .m. worked
by about three other employees . His duties there were
order running and truck loading.
Calles further testified that he supported the strike, and
around March 1979 he was telephoned by Cooksey at his
home with an offer of work in the grocery department
on a shift starting at 1 p.m. By that time Calles was
working at Tanner Company as a cement mixer truck-
driver and attending school at night . Calles testified that
upon explaining this Cooksey arbitrarily concluded that
his explanation meant he intended to terminate and
abruptly hung up the telephone as Calles was speaking in
midsentence . Calles testified that he could have made ar-
rangements to accept the offered position, and that he
has no contact from Respondent since that time.
This is a case in which Cooksey 's testimony about the
telephone conversation to Calles is so vague and incom-
plete that I credit the latter with respect to what unfold-
ed. Aside from the established infirmity in offering ware-
house district employees specific positions other than
those from which they went on strike, here the com-
pounding factor is that credited evidence shows Calles
was not even heard out on his reaction to the recall pros-
pect. Thus even if a close analysis would make the order
runner jobs of the grocery warehouse and the institution-
al department comparable for reinstatement purposes,
there has been no effective offer with respect to its me-
chanics.
Respondent has not shown that any schooling Calles
had underway affected his potential for recall , nor that
the position with Tanner Company had sufficient compa-
rability of function and benefits so as to have been sub-
stantially equivalent in terms of the Act. There was no
guarantee of employment at Tanner nor the feature of
sick leave with that employment . I reject Respondent's
several defenses here, and on this basis determine to con-
firm the General Counsel's claim on behalf of Calles for
reinstatement and running backpay.
11. Arnold Babb
Babb testified that he was hired by Respondent in
April 1969 as a city pool driver, delivering groceries to
members of the Associated Grocers cooperative . In Sep-
tember 1970 he successfully bid to the Flagstaff, Arizona
resident run, where two employees rotated as a team on
2-week cycles between runs to Phoenix for merchandise
and customer deliveries in that area . At the time there
were a total of six drivers at the Flagstaff resident loca-
tion . In February 1971 Transportation Superintendent
Gary Morgan asked Babb to take a similar resident posi-
tion in Parker , Arizona. Babb did so and at that location
rotated with one other employee on a system in which
they alternated 2 weeks of night running to Phoenix for
merchandise with 2 weeks of customer deliveries
throughout the area . Babb testified that at the time of the
strike he was recouperating from surgery of February
1978 and was released for return to duty in May.
Babb testified that on November 19, 1979, Cooksey
telephoned him early in the morning to offer a job in the
city pool. Babb declined it at the time, and has had no
contact from Respondent since then . He has observed
that Respondent still makes deliveries to the former stops
serviced out of the Parker resident location. His initial
interim employment began February 19, 1979, as work of
loading a cotton gin. He then hauled melons over the
summer season , and had subsequent employment trans-
porting the trucks of this operation back to a base in
Stockton , California . Babb has been physically disabled
from usual employment since June 1980 because of heart
problems, and has been awarded Social Security disabil-
ity.
This claim is one in which credibility evaluation favors
the General Counsel 's witness. Cooksey testified that his
call to Babb was made on December 19, 1978, but aside
from this bare recollection he offered nothing to harmo-
nize that day with operational events of the time. Babb
was a witness of impressive demeanor , and fortified his
persuasive testimony with a home calendar entry for No-
vember 19, 1979, indicating that the call from Cooksey
had not come until that date.
However the evidence also shows that Respondent
made significant adjustments to its outstate distribution
patterns , and Cooksey has provided sufficient explanation
for the change from 10-man-days per week to the lower
level of only as reestablished for the Parker run in 1978.
To the extent that there have been substantial flunctua-
tions in number of units making delivery into the Parker
(and Lake Havasu City/Blythe) vicinity , this is but an
expectable business variation . On the total record it is es-
tablished that a good-faith realignment of function oc-
curred, and Babb's position was eliminated as of Decem-
ber 1978. Cf. C. K Smith & Co., 227 NLRB 1061, 1075
(1977). By admitting the offer of a city driving position
at that point in time, Respondent concedes that such po-
sitions of substantial equivalence then were available in
ASSOCIATED GROCERS 833
lieu of the job no longer in existence . It is reasonable to
accord Babb backpay only from the October 9, 1978
start date to the point of December 19, 1978, when by
Respondent's version at least a position would have been
available to him provided a Phoenix relocation was
agreeable . On this basis I determine to confirm the Gen-
eral Counsel 's claim on behalf of Babb, but only to the
extent of a backpay period that ends December 19, 1978,
and with accumulated interest thereon.
12. William Malone
Malone testified that after an initial 2-year stint with
Respondent he was rehired in 1973 as a truck mechanic.
By the time of the strike he was a working foreman in
this function on night shift under Supervisor Frank
Wood. In January 1979 he was telephoned by Cooksey
at his home with the offer of a mechanic 's job on day
shift . Malone answered that this was not equal to his
former position, but he would like to check with the
Union. Upon doing so he recontacted Cooksey saying he
would decline because comparable work was not being
offered , and Cooksey advised this would lead to his ter-
mination . By letter dated January 15, 1979, Cooksey con-
firmed this action , alluding in the process to Malone's ad-
mitted initial statement that he would promptly return to
work on the terms offered . Malone has had no contact
from Respondent since that time . He had obtained work
at A. M. Lewis Company in January 1979 as a truck me-
chanic, and soon thereafter transferred to a similar ca-
pacity at Milne Truck Lines. Malone is aware that his in-
terim earnings have exceeded gross backpay, but affirma-
tively testified that he desires reinstatement to his former
position as a working foreman with Respondent.
Cooksey testified that he conversed by telephone with
Malone on January 15, 1979, and after offering him the
open mechanic job heard Malone decline because of
wanting to continue in his position at A. M . Lewis Com-
pany in particular terms of his pension status . Cooksey
was familiar at the time with the pay and benefit package
A. M. Lewis Company had for its employees, and be-
lieved from this that by holding a mechanic 's position
with that employer Malone was very similarly situated
to what he would have been with Respondent.
Respondent 's defense here is rejected for two reasons.
In this instance I credit Malone respecting the telephone
conversation of January 1979, for his testimony is nota-
bly convincing as a matter of demeanor and seeming
ability for accurate recall . I thus find that he did not ex-
press a disinterest in returning to work for Respondent,
and although tacitly agreeing to do so had also stated
that he would inquire of the Union about the offer. From
this Respondent 's contention that Malone had abandoned
his claim for reinstatement is unavailing . Moreover the
job offered to him was not his former position within
meaning of the Board's Order, for it lacked the feature of
again being a working foreman and it did not indicate
that an appropriate pay rate would attach . On this basis I
determine to confirm the General Counsel 's claim on
behalf of Malone , insofar as it seeks fulfillment of his
continuing entitlement to a valid offer of reinstatement.
13. William Eshenbaugh
Eshenbaugh testified that he was hired by Respondent
in September 1968 as a night -shift loader in the grocery
shipping department . After approximately 5 years he
transferred to frozen foods deli department on a day shift
with weekends off. By the time of the strike he was rela-
tively low in seniority among the 10 to 12 employees of
the shift , and was carpooling to work with Zeck Raney.
Eshenbaugh performed a variety of duties in this depart-
ment, including receiving merchandise by forklift, lines-
tocking by forklift, running shorts , working damaged
merchandise, setting up new items and operating "Bar-
rett" and "Raymond" machines . About 2 to 3 months
after the strike started he conversed with Cooksey, but
nothing materialized at the time . In April 1981 he was
offered a linestocking job on day shift in the grocery re-
ceiving department by Cooksey, but he responded to this
by saying he preferred his old job. Eshenbaugh recalled
being told he did not have this option, nor the opportuni-
ty to talk about the prospect with the Union. Following
this he received a letter stating his employment with Re-
spondent was terminated . His only previous experience
in grocery receiving was during a 3-month period sever-
al years before, and Eshenbaugh testified that he de-
clined the offer because the job would not be equivalent
in terms of conditions , the monotony of its tasks, and
that he could no longer carpool. Eshenbaugh obtained
interim employment at Conrock of Arizona's predecessor
in September 1978 and has continued at that enterprise.
Eshenbaugh 's interim employment history was detailed
by Donald Grundy, Conrock' s treasurer and assistant
secretary . This firm had taken over operations of Arizo-
na Sand & Rock on September 1, 1983, and continued
the employee complement of that time . An employment
application of Eshenbaugh's showed that he had reported
employment at Arizona Sand & Rock from September
1978 onward as a mechanic on an initial hourly wage of
$11.27. Grundy testified that Conrock maintains a labor
contract with Teamsters Local 83, having pension,
health and welfare , vacation and holiday features, but
not sick leave benefits.
Consistent with the settled doctrine as applied to vari-
ous claims above, I find that the April 1981 job offer to
Eshenbaugh was not that of his former position nor legi-
timatized because such did not exist . As Respondent's
contention that he had achieved substantially equivalent
employment with Arizona Sand & Rock , I cannot agree
that such was the case when the respective occupations
are compared . The work as a mechanic was tangibly dis-
similar and more physically demanding as a matter of
regular tasks, while it also existed on an afternoon shift
as contrasted with days as Eshenbaugh had been so
working for several years . Respondent characterized his
1982 layoff from this interim employment as "brief," yet
this is hardly a fair statement when a duration of 11-1/2
months is viewed . Eshenbaugh is not shown to have ever
experienced a layoff from Respondent, and that employ-
ment also carried a well-structured sick leave program.
Overall , the interim employment was clearly not of sub-
stantial equivalence as to extinguish his employee status
in 1978 or at any later date. On this basis I determine to
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
confirm the General Counsel's claim on behalf of Eshen-
baugh for reinstatement and running backpay.
14. Henry Dial
This is the first individual treatment of the group
claims that survive following denial of Respondent's
motion to strike as resolved in section II ,b, above. Dial
testified that he was hired by Respondent in 1972 and
worked exclusively thereafter in the salvage department
on the afternoon shift. This work entailed the handling
and restocking of damaged or returned merchandise. He
unloaded trailers in which salvage items were brought
back to the facility , using a forklift if palletized merchan-
dise was already in place . Absent this he manually
picked up scattered items and stacked these on pallets
before removing them from the trucks for eventual re-
loading.
Dial recalled that after the strike was over he was tele-
phoned by Cooksey early in a morning during March
1979. Cooksey's offer was that of a night shipping job, to
which Dial asked for something in salvage . Cooksey
took this as a refusal and said that Dial would be termi-
nated , which was confirmed in a letter he received a few
days later . Dial testified that his reason for declining in
grocery shipping was because at age 59 he doubted he
would be able to keep up with production quotas of the
system he knew to be in effect . He had obtained work at
Fry's in the salvage department in December 1978,
where the established hourly rate was about $2 less than
for his comparable work at Respondent . Dial retired in
January 1982.
Dial's refusal to accept the physically arduous job of
order running in the grocery warehouse , populated as it
was by younger , more vigorous workers, was not dis-
qualifying. Cf. Central Cartage, 236 NLRB 1232 (1978).
This is but another instance of how Respondent has
failed to meet its obligation under the principle that an
effective offer of reinstatement in this situation must or-
dinarily be to the individual 's particular former position,
as to which no evidence was presented here that tradi-
tional salvage work did not continue to exist as of March
1979. On this basis I determine to confirm the General
Counsel 's claim on behalf of Dial for backpay in excess
of which he has already received.
15. Gary Clark
Clark testified that he was hired by Respondent in
June 1976 for night-shift work in the produce shipping
department, in which his tasks were running orders and
loading trucks . He remained in this employment at the
time of the strike with an address of record on North
Biltmore Drive, Phoenix , where he at times actually re-
sided during this employment . Clark went on strike and
then in June 1978 relocated to Lakeside, Arizona, to live
with his parents who had P.O. Box 731 there for mailing
purposes . This had been Clark's own prior address, and
the post office box number is what he had entered on his
employment application . Clark testified that he filed a
postal change of address in connection with this move to
Lakeside. He then commenced working for his father's
trucking company in Lakeside until quitting in 1983 to be
at home with his pregnant wife.
By letter dated May 29, 1979, Respondent had offered
Clark a position in the grocery warehouse with the
option of waiting for his old job should he decline. The
letter provided a week in which to respond, and ulti-
mately was delivered to Clark at Lakeside as a forward-
ed item of mail. Clark testified that he had no desire to
work in an area other than produce , but upon receiving
this letter he telephoned Respondent's personnel office
and gave his new Lakeside address . He has had no con-
tact with Respondent since, except for his own recent in-
quiry concerning the possibility of being rehired.
W. D. Clark testified that he is the father of Gary
Clark and five other sons, and that he started a trucking
company in July 1978 by purchasing a tractor and leas-
ing it to the Roadrunner Company of Albuquerque, New
Mexico . He operated out of his home in Lakeside, Arizo-
na, and initially employed an older son , Mike, as driver
with Gary riding in a student role. After Mike quit in
November 1978 the driver's compensation was directed
to Gary, and then in March 1981 W. D. Clark began
paying Gary's wages directly on a mileage basis that
ranged from 15 cents per mile to a high of 19 cents.
After Gary married Shelly in February 1983 she began
riding with him to learn the role of a driver. Ultimately
the two became a driving team covering much of the
western United States, for which they shared driver's
compensation on a mileage basis . W. D. Clark had item-
ized earnings from his trucking company records which
showed the breakdown on a quarterly basis of earnings
and respectively to Gary and to Shelly.
Cooksey testified that as he had done with Dawa, the
May 29, 1979 letter was an inquiry to Clark about early
return to work with Respondent should he choose to do
so in the grocery warehouse while awaiting transfer to
his old department . Cooksey had taken the address for
the letter from personnel files, and a certified mail re-
ceipt was returned to him showing delivery of the letter
to Clark. When a position in produce became available
about a year later, Cooksey attempted telephone contact
to Clark, and when this failed he wrote a letter dated
April 2, 1980, addressed as had been done before to the
North Biltmore Drive address, which confirmed the
offer of reinstatement and provided a week 's period to
make contact . By its terms, this letter also constituted a
record of termination should timely contact not be made.
This letter was returned as undeliverable , and there was
no further contact until early 1984. Cooksey noted that
because of this an arrangement was made to rehire Clark
effective March 25, 1984.
On this issue Respondent contends that Clark failed to
reasonably maintain his correct address on file, and in
any case evinced an intent to abandon employment at
Respondent and associate with his father's business. The
General Counsel argues that pay, benefits , and prospects
for job stability were so dissimilar at the Clark Trucking
operation that it could not be considered substantially
equivalent to Clark 's former work in Respondent's
produce warehouse. Additionally, he never acquired any
ownership role in the business at which he admittedly
ASSOCIATED GROCERS 835
achieved , for certain calendar quarters and particularly
in 1982 , high interim earnings . The General Counsel also
introduces the notion that Respondent should have uti-
lized records of the employee credit union to supplement
its files on Clark's whereabouts.
I reject the General Counsel's theory that this employ-
er should have turned to the credit union which bears its
name as part of any steps necessary to reasonably at-
tempt contact with former strikers. Cooksey credibly and
predictably testified that there is no business connection
between Respondent and the credit union serving its em-
ployees, and that aside from a trailer originally operated
for convenience at the facility in 1978 the credit union's
office has been physically housed several miles away.
This novel assertion has some logic to it, but as a practi-
cal matter I see no reason to saddle an employer with
the obligation to reach out to an entity with which it has
no real bond, on the problematical grounds that a more
current address for an individual may be found . This is
excessively burdensome , and could well lead to compli-
cations in terms of both the credit union 's disclosure of
information and the individual 's desire for its release. Cf.
Bodolay Packaging Machinery, 271 NLRB 10 (1984). The
subject is one in which the countervailing responsibility
of an individual having any semblance of intent at recall
to an employer from which he has been separated from
active employment for an appreciable period of time
should be held to be the simple duty of seeing that an
ordinary act of notification be done.
In Clark's case I discredit his claim of having made
such notification . His description of the alleged tele-
phone call was vague, unpersuasive, and testified to in a
manner that leaves me totally in doubt that such was the
truth. More importantly, his version is intrinsically un-
worthy because he claimed to have made contact to the
personnel office "sometime in '78 ," but the letter sup-
posedly triggering such contact did not even materialize
until months later. Notwithstanding that Clark may have
given the credit union office an address change, and re-
ceived poststrike account statements from them at the re-
sumed Lakeside address, this is without consequence to
Respondent's liability which is avoided whenever their
efforts have been reasonable in such a phase of reinstate-
ment procedures . At the time of sending the second
letter Cooksey had no reason to address it in any fashion
other than as he did, and with its terms complete and ap-
propriate to the reinstatement obligation as it would run
to Clark its termination of this employee was validly
done . I take judicial notice of the everyday fact that the
United States Postal Service honors an indivlidual's
formal , written change of address order only for a 1-year
period from the time it is filed . The informative language
on the point reads:
THIS ORDER PROVIDES for the forwarding of
First-Class Mail and all parcels of obvious value for
a period not to exceed 1 year. (PS Form 3575, Sep.
1981.)
Clark was the cause of his own misfortune by failing
to follow through with the self-evident need to inform
Respondent in mid - 1979 that his current address was no
longer in Phoenix . See Burnup & Sims, Inc., 256 NLRB
965 (1981 ). On this basis I determine that the General
Counsel's claim on behalf of Clark is without merit, ex-
cepting only the extent to which it is calculated for a
period prior to the admitted backpay tolling date of
April 2, 1980. In view of the certainty of grounds upon
which Clark's excess backpay claim is rejected, I do not
treat matters of interim earnings as stemming from the
testimony of W. D. Clark.
16. Ronald Goff
Goff testified that by the time of the strike he had
worked for 3 years with Respondent as a garage service-
man on the midnight shift, maintaining truck engines,
fueling refrigeration units, and hooking up rigs . At some
point after the strike, the date of which Goff is unable to
fix, he recalled being telephoned by Cooksey who of-
fered reinstatement to a comparable day-shift job. Goff
declined this because the Union was not back with full
recognitional rights and he wanted representation should
he return to work. At the time Goff was employed at
Thunderbird Freight on a higher paying job , and later he
obtained employment at General GMC.
Cooksey placed the call to Goff as being on Novem-
ber 8 , 1978, and in it Goff termed his disinterest in re-
turning as because a labor dispute was still in progress.
The confirming letter sent by Cooksey referred to this as
Goss' stated reason for declining the serviceman position
offer, and by its terms constituted a record of termina-
tion from employment.
This is a case dismissible out of hand. Respondent's job
offer was fully within terms of the Board's Order, par-
ticularly where Goff testified to a preference for the pro-
posed shift time. While the letter as dated on January 14,
1979, does not coincide with Cooksey's recollection of
the contact having been 2 months earlier, there is no var-
iation in the essence of what was said . Goff made a plain
declination of recall to employment for reasons that,
while important to him , were without significance inso-
far as his statutory rights were concerned . Numerous
other individuals were returning at this general point in
time, and there was never a repudiation of the Union's
collective-bargaining status, only that a noncontract
period was in effect . On this basis I determine that the
General Counsel's claim on behalf of Goff is without
merit, excepting only backpay and accrued interest cal-
culated to January 14, 1979.
17. Ray Chase
Chase testified that he was hired by Respondent in
May 1961 and performed a variety of warehouse jobs
over the years. At the time of the strike he was in the
repack department, doing linestocking of health and
beauty aid products. After the strike concluded he was
offered a job in the grocery warehouse by Cooksey in
November 1978, structured as Sundays through Thurs-
days on the night shift . Chase declined this and was
called again by Cooksey in March 1979 at his Kearny,
Arizona residence with the offer of a day-shift job in
grocery receiving. Chase testified that this second offer
on the day shift did not specify a particular job assign-
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment, and that he was 56 years old at the time. Chase
recalled telling Cooksey that the offer put him in a bind
in terms of notice to another employer , but he was cut
off from saying more by Cooksey 's statement that Re-
spondent would clear its files by sending him a notice of
termination . Chase's interim employment had begun in
August 1978 at Kearny, and involved work as a truck-
driver at Kennecott Copper Corporation lasting until
permanent layoff in May 1982. Chase had sold his Phoe-
nix home in connection with taking this employment and
relocated to Kearny where he bought another house.
Cooksey testified that after reaching Chase by tele-
phone at Kearny to make the day-shift offer of grocery
receiving work, the employee advised that he would not
be returning because of the job he then held . Cooksey
also described typical grocery receiving work as half re-
quiring use of slip-sheet forks for machine movement
into the warehouse , with another portion removed by
forklift from trucks or boxcars and the balance by hand.
I do not agree with all aspects of Respondent's de-
fenses to this case . While Chase used a forklift fulfilling
his duties in the repack department, the quantities were
small and the items relatively light . This was dissimilar
to the miscellaneous run of merchandise that would
arrive in the general receiving function , and concededly
an amount of manual handling , much of which could be
arduous, was involved in the regular flow. For this
reason I do not find that the two positions were equiva-
lent, however , the record does not establish that Chase
was confronted with this specific prospect of regularly
working the general grocery receiving function.
His position at Kennecott Copper had characteristics
of substantial equivalence in terms of a better pay rate as
an offset to lower entering benefits, union representation,
and, although in a different industry , was a truckdriving
job that Chase found easier than the work he had done
with Respondent . More importantly, I discredit his at-
tempted refinement at nuances of the March 1979 tele-
phone conversation with Cooksey, finding instead that
an affidavit he gave in March 1983 more accurately re-
flects what he said about being in a bind because of his
geographic relocation . This version brings the conversa-
tion more in harmony with the extent of Cooksey's cred-
ible recollection on the point, and shows that Chase ef-
fectively declined recall to employment with Respondent
because he was suitably relocated and without any objec-
tive intention of return to the Phoenix labor market area.
This voluntary removal from consideration serves as a
bar to any further backpay beyond the amount now paid
in discharge of Respondent 's obligation from the general
start date to March 19 , 1979. On this basis I determine
that the General Counsel 's claim on behalf of Chase for
additional backpay beyond what he has already received,
with interest, is without merit.
18. Norbert Jacobi
Jacobi testified that he was hired by Respondent in
1971 for midnight shift work in the grocery shipping de-
partment . He later bid into repack, and had been there
for about 5 years prior to the strike. His shift in repack
was 1:30 to 11 p.m., and duties there involved order se-
lection , forklift work, and linestocking . His only rein-
statement contact from Cooksey occurred on February
23, 1979, via an early morning phone call . Jacobi testified
that Cooksey's offer was of third-shift work starting ap-
proximately 9:30 p .m. in an unspecified major function of
the grocery department . The particular opening was one
with Wednesdays and Thursdays as scheduled days off.
Jacobi resisted the offer, saying it was not his former de-
partment, shift, or days off. He recalled Cooksey then
asking if this meant that Jacobi was quitting , and Jacobi
denied that as the effect of his persistence . Jacobi testi-
fied further that Cooksey nevertheless said it was impos-
sible to accommodate him and this would mean termina-
tion . To this, Jacobi repeated his statement that his posi-
tion on the offer did not constitute a quit . He soon re-
ceived a letter from Cooksey dated February 23 in
which it was recited that Jacobi had wanted his former
department and work shift in terms of recall , and since
Respondent considered the offer of night-shift work to
be adequate he was terminated from employment.
Respondent contends that Jacobi was engaged in desir-
able, more higher paying work at Fry's when the tele-
phone contact occurred , and from this circumstance it
should be inferred that no real intention to ever return
was present . Additionally , Respondent points to evidence
showing that Jacobi was subject to a production quota in
his employment at Fry's, and that during job changes
there he had worked a third shift of an 8:30 p . m. starting
time for 1 to 2 years.
In this case , the controlling notion is that Cooksey's
offer of February 23, 1979, was not to Jacobi's former
position of employment as required under the Board's
Order . As seen with other repack employees , and as ef-
fectively described in Jacobi 's forthright testimony, as-
signment to this department meant the handling of small-
er, lighter products on a team basis involving less job
pressure and freedom from a quota requirement. The dis-
tinction in job content as well as the pronounced differ-
ence in one's workday starting at 1:30 p.m. as opposed to
9:30 p .m. leaves clear reason to say that the offer was in-
effectual. Further, Jacobi gave Cooksey no reason to
conclude that he was relinquishing recall rights with Re-
spondent , and the circumstances of his interim employ-
ment then underway did not support such a belief. On
this basis I determine to confirm the General Counsel's
claim on behalf of Jacobi for reinstatement and running
backpay.
19. Ronnie Cook
Cook testified that he was hired by Respondent in
1961 as a night-shift order runner in the repack depart-
ment . By the time of the strike and for 12 years prior
thereto, he had been a leadman receiving clerk for in-
coming nonfood merchandise handled in the repack de-
partment. Cook described his job as devoid of physical
work with mostly paperwork duties of checking inbound
freight as to bills of lading and purchase orders, and con-
verting the products to computer records for selling
units . He was on a day shift which began at 6 a . m. in the
fall of 1978 he had a recall offer from Cooksey to night-
shift grocery order running which he passed. Then
around March 1979, Cooksey telephoned again, this time
ASSOCIATED GROCERS
with an offer back to day-shift work in the grocery de-
partment . Cook recalled questioning about what the job
would be, and from the information provided stating that
he would only want his old job and the enhanced pay
scale of a 10-cent-per-hour leadman differential . On this
basis , Cooksey advised that he would be terminated from
employment.
Respondent contends that the job offer of early 1979
to Cook was functionally identical to his former position,
and that Cook's response was tantamount to a declina-
tion because of then holding a better paying job which
he intended to keep following successful completion of a
mere 30-day probationary period . This interim employ-
ment at Consolidated Freightways was also shown to
have been dock unloading of freight by forklifts largely
similar in function to what Cooksey had offered in the
second contact . Respondent also elicited that Cook was
wary of returning to Respondent without a union con-
tract in effect, although the witness maintained that he
would under any circumstances have come back to his
old job.
I reject Respondent 's argument that a valid offer has
been made to Cook , because it envisioned work too dis-
similar to his former position as a nonfoods receiver and,
equally important, did not recognize the leadman pay
differential to which he was entitled as a long -settled
part of his former employment package . Cook's work at
Consolidated Freightways , while remunerative , had ir-
regular characteristics. It necessitated long days in conse-
quence of meaning that it was not substantially equiva-
lent to what he had held before, even upon discounting
Cook'a inaccurate characterization of having previously
been required to perform no physical exertion on his job.
His questioning of Cooksey, and stated preference during
the March 1979 telephone conversation about how he
would prefer to return , did not constitute a quitting from
employment . On this basis I determined to confirm the
General Counsel 's claim on behalf of Cook for reinstate-
ment and running backpay.
20. James Ashline
Ashline testified that he was hired by Respondent in
1971 and worked about 7 years as an order runner and
truckloader on night shift in the warehouse. In late 1977,
he became one of a small group of employees that start-
ed up the new deli institutional department on a shift
that commenced at 4 p . m. Ashline described his work
there as handling lighter food products to supply restau-
rants, in an operation of more desirable working condi-
tions than the dry grocery department . His recollection
of a sole contact from Respondent following the end of
the strike was that in late 1979 Cooksey telephoned with
the offer of a night-shift job running orders with Thurs-
days and Fridays off. Ashline testified that to this he
asked for his old job back , but was told by Cooksey that
he would be terminated for not accepting the offer. Ash-
line has had no contact from Respondent since that time.
As a preliminary matter, I note little reason to accord
credence to Ashline 's rather poor recollection of events.
He could not recall the name of Christman although
working for 6 months with the individual in a newly
structured department and he placed the telephone con-
837
tact from Cooksey improbably as "late" in 1979 when he
was actually working at Northwest Transport . Cooksey
more credibly recalled that Ashline had mentioned Con-
solidated Freightways as his interim employer at the
time, and he was further inconsistent in setting forth
whether or not medical coverage benefits attached to his
salaried position as a dock supervisor at Northwest
Transport . The first issue here relates to the validity of
offering Ashline grocery shipping work when his former
position was in deli institutional , a job admittedly lighter
in nature . As to this , Ashline is situated similarly to
Calles and Christman as a person whose entitlement to a
reinstatement offer to their former position of employ-
ment was not fulfilled.
However , it is also seen from the record as a whole
that by April 1979 Ashline had acquired a valuable posi-
tion, one of enhanced earnings potential and union repre-
sentation under the master freight agreement of that area.
While functionally different , these other factors in his
case , coupled with his accession to a salaried position
with that company , constituted the Northwest Transport
employment as substantially equivalent to what he had
formerly held with Respondent . On this basis I deter-
mine that the General Counsel 's claim on behalf of Ash-
line is without merit , to the extent that an offer of rein-
statement is currently sought and backpay claimed
beyond amounts previously paid to him.
21. J. W. Seymour
Seymour testified that he was employed by a prede-
cesssor firm that became the Baird Bakery Division of
Respondent . He had earlier been a bread deliverer pull-
ing a semitrailer on a midnight shift to points south of
Phoenix . By the time of the strike he was making local
city deliveries of bread with the same type of equipment,
a job to which he switched at his request because of
family care needs at his Phoenix home. This job was
paid on hourly rate . Seymour recalled that on or around
April 10, 1979, he was telephoned by Baird Division
Sales Manager John Thompson, and offered a day job
located at Camp Verde, Arizona , about 80 miles north of
Phoenix . Seymour declined this because of his child care
responsibilities and to attend property owned locally.
Thompson telephoned again about May 12, 1979, with
another day-shift job offer in Phoenix . This would have
involved delivering bread from small trucks and shelving
it at the customer, a line of work which Seymour under-
stood at the time to be paid on commission. He also de-
clined this second offer, telling Thompson that he could
not work days because of being a single parent who had
to care for school age children . Following this , Seymour
was terminated from employment and has had no con-
tact from Respondent since that time.
Thompson testified that he had worked 14 years for
the Baird Company until 1971 and returned to the oper-
ation as a sales supervisor in 1977, at which point it had
become a division of Respondent . By early 1978, he was
general sales manager in charge of drivers delivering
bread from the bakery to stores and various other cus-
tomers . The vehicle fleet included semis and eight step
vans, with specialty runs outside the metropolitan Phoe-
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nix area . Semi drivers were paid 10 cents more per hour
than for operating step vans, however, a van driver for-
mally qualified to operate a semi received the differential
when actually assigned for vacation or other fill-in pur-
poses to such work . Thompson found upon his return
that Baird 's prior practices of shelving bread as part of
the delivery process and paying van drivers on a com-
mission basis had both been discontinued . As of 1978 the
smaller trucks also dropped products at the customer
premises as done by the semis , and both classifications of
drivers were on hourly rate . Thompson depicted the uti-
lization of drivers in terms of type of equipment used
and hours worked as subject to seasonal fluctuation, vari-
ous types of absence by other drivers which required
coverage , and the unpredictable needs of specialty cus-
tomers such as schools and colleges.
When the strike ended , Thompson was placed in
charge of recalling Baird drivers. After coordinating the
responsibility with Cooksey , he used a seniority list to
contact individuals as openings occurred . In this process
he made telephone calls to Seymour in April 1979 and
again in May, offering him the Camp Verde run and step
van delivery in Phoenix , respectively . Thompson placed
starting time for the second offered job as from 2 to 4
a.m., the variation being based on an evaluation of time
required for the particular day's load. He recalled Sey-
mour answering that the route would leave him prob-
lems with his children , and that he finally expressed dis-
interest.
There are two preliminary matters for discussion. As
with much of his testimony, Seymour was vague or inac-
curate in recalling that his "starting times" upon his
truck being loaded was 10:30 or 11 p.m., whereas the
time records show almost universally that he began at
12:30 a .m. and did not finish of until 9 a.m. To the extent
that Seymour had child care responsibilities, there is no
ordinary pattern of school attendance which would
permit him the opportunity to prepare his children for
morning departure regardless of whether he worked only
to 9 a.m. or a time several hours later . On a second point
Respondent contends that Seymour was motivated to de-
cline recall because of demands generated by his owner-
ship of rental properties . However, that is a collateral
matter not shown to have been absent prior to Sey-
mour's status as a discriminatee and, more importantly,
from Thompson's more credible version of telephone
contact between the two individuals not even mentioned
by Seymour when mulling over the second offer.
The key issue in Seymour's case is the validity of
Thompson's telephoned job offer as made on May 12,
1979, and here the essential question is whether that was
his former position or, if necessary from circumstances,
the equivalent . It is evident that the Baird drivers did not
have the structured setup of the warehouse employees,
and even though much regularity of assignment was
practiced this was subject to complete and sudden
change . The particular runs were not open to a bidding
procedure and Thompson credibly recalled that no
driver had ever considered a job change to have been
imposed against his will . Significantly, Thompson also
credibly established that Seymour's switch from outstate
to city semitruck driving was not a matter of personal
accommodation , but instead arose because a key custom-
er changed its distribution practices of the past. I see
from this total configuration an operation in which such
sufficient flexibility continued to repose with the employ-
er that an offer of delivery work within the division, at
the same general time of day and in the individual's
former geographical area, coupled with a continuation of
the entitlement to hourly paid differential if semi driving
work was to be involved, was tantamount to an offer of
a former position to Seymour in this branch of Respond-
ent's business . While it is true that semi drivers Crowsen
and Manning typically had midevening' starting times of
8 to 9 p.m., semidriver Leo Ockenfels started at the same
general time yet worked most days until 8 a.m. or later,
while semidriver George Ottinger, more notably, usually
started just before 2 a.m. and during his illustrative work
spans as taken from company records did not finish until
9 a.m. or later nearly half the time . Seymour was out of
touch as to current operating practices at the division,
and erroneously assumed city deliverers by van were still
on a commission basis . The fact of the matter was other-
wise, and overall there is insufficient basis from the
record as a whole to say that Thompson's second offer
failed to satisfy the Board 's Order as to this case . On this
basis I determine that the General Counsel 's claim on
behalf of Seymour is without merit, to the extent that an
offer of reinstatement is currently sought and backpay
claimed subsequent to May 12, 1979.
22. James Byrd
Byrd testified that he worked for Baird Division or its
predecessor since 1973 and prior to the strike was em-
ployed on a bread delivery route south of metropolitan
Phoenix, which commenced at 1 a .m. and finished at ap-
proximately 9 a.m. During the course of the strike he
had obtained dock work at Pacific Motor Trucking, and
by October 1978 was full time with that company on an
hourly rate in excess of $9. This employment ended in
layoff during 1980 and Byrd has since relocated to Colo-
rado . He recalled a telephone job offer from Thompson
in 1979 of the Camp Verde run which he declined. Byrd
denied having any further contact from Respondent
other than receipt by his wife or a certified mail letter
dated May 14, 1979 , alluding, among other things, to a
contact on May 12, 1979, regarding "employment in .. .
the local Phoenix area." The letter recited that as with
an earlier offer in April Byrd had refused on the basis
that it was not in his best interests to return. By its fur-
ther terms, this letter constituted a termination of Byrd
from employment with Respondent. Byrd denied having
received this second telephone contact.
Here Thompson associates Seymour and Byrd, recall-
ing them in immediate seniority order for reinstatement
and that he followed his calls to Seymour with similar
job offers to Byrd . From this , Thompson credibly de-
scribed the first contact in April as that of offering the
Camp Verde work, and when Byrd declined he was told
to expect another contact when a Phoenix opening arose.
Thompson placed his next call to Byrd in May 1979, and
that it would have been a delivery route offer in Phoenix
using a small truck starting at 2 to 4 a.m. After some dis-
ASSOCIATED GROCERS
cussion, Thompson recalled Byrd saying that he liked
making more money instead with the company at which
he was then employed . With this as the upshot, Thomp-
son sent the termination letter described above.
I specifically credit Thompson over Byrd on demean-
or grounds , the former projecting generally persuasive
testimony and the latter appearing uncertain and disinter-
ested in accurate recall of facts. For this reason, I find
that the second job offer as described by Thompson was
communicated to Byrd , and for reasons set forth in dis-
cussion of Seymour 's case above consider it to have been
a valid offer within terms of the Board 's Order as appli-
cable to him. On the plane of the equivalency , I am in-
fluenced by the fact that van drivers Gerald Biller and
Robert Wallen often started work at around 2 a.m.,
while the usual starting time of van driver Robert Stair
was midnight or later. On this basis I determine that the
General Counsel 's claim on behalf of Byrd is without
merit, to the extent that an offer of reinstatement is cur-
rently sought and backpay claimed subsequent to May
12, 1979.
23. James Wood
This individual is a discriminatee who was unlocatable
until the time of the trial , at which point he was discov-
ered in Canada. His backpay period commences October
9, 1978 , and General Counsel 's Exhibit 45 is a document
summarizing calendar quarter computations under which
Respondent 's admitted liability running to 1979-1981 is
$2,350 . 16 while the General Counsel claims $15 ,938.13 to
1980-1982 at which point , concededly on May 26, 1980,
Wood expressed a binding intent not to return . Wood's
prestrike work station was the grocery repack shipping
department.
Cooksey attempted to reach Wood in early March
1979 and upon finding he had no telephone wrote a
letter dated March 8, 1979, for which Wood signed a
certified mail postal receipt on March 9. This letter ad-
vised that work was available in "the grocery shipping
area," and Wood had until 10 a . m. on Monday, March
12, 1979 , to make contact with Cooksey at a stated tele-
phone number . The letter ended with a typical conclu-
sion to such correspondence of that era that absent such
contact, a termination from employment would be re-
corded for the addressee.
What exactly transpired following this is intricate to
extract from Cooksey 's testimony on the point. The Gen-
eral Counsel contends that Wood was treated similar to
numerous other discriminatees to whom invalid offers
were made in terms of their former functional areas of
work . The General Counsel further intimates that Wood
responded to the letter before March 12 , 1979, and con-
versed with Cooksey along the only known lines, those
of Cooksey's own testimony in which he recalled how
Wood stated that he wanted to return to his former job
in general merchandise even though Cooksey encour-
aged him to accept the opening and exercise his transfer
seniority at a future time. However, the predominance of
the evidence is that the conversation occurred after
March 12, 1979, and after Cooksey had informally re-
corded Wood as a "quit" on his file copy of the letter
and then generated termination paperwork through Re-
839
spondent 's payroll and personnel offices . In his first ex-
planation on the point , Cooksey said expressly that
Wood had not responded by the deadline given (Tr.
138). When questioned again on the sequence , Cooksey
fixed March 15, 1979, as the date of the conversation,
and reiterated this date when cross -examined more per-
sistently on the episode (Tr. 2889-2890). While some am-
biguity preceded this testimony in terms of the phraseol-
ogy "time frame" of the correspondence , the more con-
vincing proof is that the deadline had clearly passed
before Wood made his belated response . This I find to be
a satisfaction of Respondent 's burden of proof in show-
ing adequacy of its offer of reinstatement to Wood, and
the General Counsel has not sufficiently rebutted such
proof on this narrow issue of fact . As to the content of
the offer, it was one Cooksey described as the general
grocery shipping area ; however, this does not establish
that Wood himself necessarily considered that unaccept-
able at a point in time prior to the deadline being
reached . In fact others such as Fernandez and Anderson
had accepted just such offers, and but for the particular
issues arising in their cases would not have been within
this supplementary litigation.
The Board does not attempt to prescribe what is a rea-
sonable time in which to consider whether to return to
work upon receipt of an offer of reinstatement . Michael
M. Schaefer, 246 NLRB 181 (1979); Penco Enterprises,
216 NLRB 734 (1975). Cf. Southland Knitwear, 260
NLRB 642, 655 (1982); Woodland Supermarket, 240
NLRB 295 (1979); Seminole Asphalt Refining, 225 NLRB
1202 (1976). Further, it has authoritatively been held that
an individual 's failure to complain of a time limitation
precludes the argument of reasonableness of reporting
time, and permits a good -faith offer to be construed as
satisfying an employer 's obligation to extend reinstate-
ment rights . NLRB v. Betts Baking Co ., 428 F.2d 156
(10th Cir. 1970). In Wood's case, there is nothing to un-
dermine the presumptively bona fide nature of the offer
made to him, and under the only known version of his
contact to Cooksey there is no indication he complained
of insufficient time in which to give it consideration.
Thus the amount of time extended to Wood , and the
time period actually available to him, were reasonably
adapted to the overall recall program and his own enti-
tlements. On this basis I determine that the General
Counsel's claim on behalf of Wood is without merit, to
the extent of backpay beyond that amount admittedly
due.
H. Working Foremen and Leadmen
There is a class of individuals who were either work-
ing foremen or leadmen at the time the strike com-
menced , earning an hourly premium of 20 cents or 10
cents, respectively, as to whom the parties have stipulat-
ed the issue . The General Counsel contends that the in-
trinsic failure to restore the added indicia of such a per-
son's former occupation , including primarily the extra
pay that attaches for the special responsibilities beyond
others of the bargaining unit, makes reinstatement of
such persons as has otherwise been achieved legally in-
sufficient . Further, the General Counsel points to unre-
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
butted testimony given by Fernandez , Gabriel Molnar,
and Koehn to the effect that Grocery Department Su-
perintendent John Roberts had separately stated to each
of them that former working foremen would never be re-
stored to this full capacity as an implied or express deter-
mination of Respondent 's top management . Respondent
contends that none of the individuals involved are enti-
tled to this additional aspect of a reinstatement offer be-
cause of a management -rights article of the past collec-
tive-bargaining agreement in which direction if the work
force is defined as a discretionary function of the em-
ployer alone. Respondent argues from this that the
"zipper" clause of that same agreement suffices to show
that the Union had not in the course of bargaining re-
moved the discretionary assignment of persons to such
recognizably special positions from the employer's au-
thority . The essence of this contention , and my prelimi=
nary treatment of it, is found in section C,2,D, above,
where the Dennis Falls' claim is discussed.
Taking into account the General Counsel 's series of
amended pleadings , and more helpfully a stipulation of
record (Tr. 960-961 ), the persons involved solely in this
issue are Billy Bob Lyster, John Matzinger , Gabriel
Molnar, James Veach , Vadas Baker, Arnulfo Cornejo,
Dickie Brown , and Louis Valdivia, who had held respec-
tive positions of repack department working foreman,
dry grocery department working foreman , grocery re-
ceiving department working foreman , produce ware-
house working foreman , produce warehouse leadmen
(both Baker and Cornejo), grocery shipping department
working foreman , and deli freezer working foreman. Be-
sides this main group , Falls, Fernandez , Pena, Malone,
and Cook , whose cases have been determined above, are
individuals whom the premium rate issue , as applicable,
is also present.
Molnar testified that at the time of the strike he had
been a working foreman on day-shift receiving work
with John Roberts as his supervisor. In early February
1979 Molnar accepted reinstatement to a night -shift posi-
tion which turned out to be running orders as he had
done in this function 15 years earlier . On returning to
Respondent he noticed that Lyster and Brown , both for-
merly working foremen of the repack and night shipping
department , respectively, had not been returned to their
positions. Molnar testified that after approximately 4
months back with Respondent , during which he convert-
ed to day-shift work , a conversation occurred with Rob-
erts in which he was told Company President Nichols
had said none of the former working foremen or lead-
men would ever get their jobs back because of being
union members.
Respondent 's argument here is totally unavailing, for
aside from questionable viability of the former collective-
bargaining agreement as to matters arising more than 6
months following its expiration , the more compelling
point is that a statutory test controls under the Board's
settled authority to remedy unfair labor practices. There
is no known precedent for Respondent 's novel assertion,
and the additional sums set forth insofar as backpay cal-
culations have been made, or to a postreinstatement point
in time when specific individuals were reestablished in
their former positions , remain due and unpaid. See Eagle
International, 221 NLRB 1291 ( 1975). This holding is all
the more inevitable on consideration of credible evidence
that a recriminatory motive affected Respondent 's deal-
ings with this class . A unique factor applies to Valdivia,
whose recall satisfied neither his entitlement to the work-
ing foreman differential nor a deli-freezer premium of 12-
1/2 cents per hour, thus entitling him to this special
added amount up to the point of his reported retirement.
On this basis I determine to confirm these summarized
backpay claims for persons so entitled . Cf. Harvey Engi-
neering, 270 NLRB 1290 (1984).
I. Duty or Mitigating Damages by Diligent Search
for Work
1. Generally
Mitigation of damages , for which the burden of proof
rests on Respondent, may be established by showing that
a discriminatee "wilfully incurred" loss by "clearly un-
justifiable refusal to take desirable new employment"
Phelps Dodge Corp. v. NLRB, 313 U.S . 177, 199-200
(1941). Accord: NLRB v. Brown & Root , 311 F.2d 447,
454 (8th Cir . 1963); NLRB v. Mooney Aircraft, 366 F.2d
809, 813 (5th Cir . 1966). When underlying proceedings
have established the commission of unfair labor practices
for which a respondent must be accountable under terms
of such remedial action as has been ordered and en-
forced , this does not affect classic mitigation principles
that have been broadly established and applied by the
Board . See Aircraft & Helicopter Leasing, 227 NLRB 644
(1976).
An individual 's age, aptitude, education , skills, qualifi-
cations, experience , training , motivation , and personal
mobility, taken in connection with labor market condi-
tions in the area under consideration , are the chief fac-
tors in determining whether a substitute job could be ob-
tained by one seeking it with reasonable diligence.
Mastro Plastics Corp., 136 NLRB 1342 (1962); NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir.
1966), enfg. 151 NLRB 1701 (1965); Madison Courier,
180 NLRB 781 (1970). Ultimate success is not the test at-
tached to an employment search, only that a discrimina-
tee make "reasonable efforts to mitigate . . . loss of
income" but not to mean that "the highest standard of
diligence" was necessarily manifested in the process, pro-
vided there was "an honest good faith effort ." NLRB v.
Arduini Mfg. Corp., 394 F . 2d 420 ( 1st Cir. 1968); NLRB
v. Cashman Auto Co ., 223 F . 2d 832 ( 1st Cir. 1955).
2. Examination of claimants
In accordance with Board practice and comporting
with principles of full discovery Respondent called the
several individuals here in dispute to testify concerning
the extent of their efforts at securing and retaining inter-
im employment . The summaries of such testimony are as
follows:
a. Jack Allen
This former striker had been employed as a bread de-
liverer in the Baird Bakery Division and its independent
predecessor for a total of about 15 years. Following ces-
ASSOCIATED GROCERS 841
sation of the strike he went to Dayton, Ohio, for 5
weeks, testifying that he stayed with his parents there
while looking for a driving job with bakeries of the
local. Allen then returned to Phoenix and in his main
search for work unsuccessfully contacted Holsum,
Rainbo, and Oroweat as among bread companies, plus
miscellaneous small commercial or retail firms . He fol-
lowed newspaper leads weekly and suggestions from
friends, as well as engaging in miscellaneous odd job en-
deavors before later profit-making ventures as a self-em-
ployed person . In the latter part of 1979 he and a partner
operated a concrete laying business to which Allen testi-
fied most of his time was devoted to job estimating. This
business was not profitable , however, and Allen was then
offered reinstatement by Respondent which he accepted
effective late January 1980.
b. Charles Wilson
This individual testified to being particularly active in
the course of the strike , although he had commenced
looking for work before the picket signs went down.
Subsequent to this he registered regularly with the State
Unemployment Office and applied for work at various
transportation companies of the vicinity including Trans-
con Freight and Yellow Freight. Additionally he testi-
fied to checking with Honeywell , Goodyear, and various
smaller firms . He completed an NLRB search for work
questionnaire form in 1983, listing one employer for each
of the 9 months covered by his backpay period using in-
formal personal records he had at the time . This listing
includes several area companies of the construction in-
dustry. Wilson testified that he had tried to be hired
through repeated visits to certain of the listed employers,
and that other freight lines contacted besides those so re-
corded were Time DC, Leeway Motor Freight, and
Thunderbird Freight System . Records of the Arizona
Department of Employment Security (DES) were intro-
duced as General Counsel 's Exhibit 30 to reflect periodic
registration at that agency during the backpay period.
Wilson also testified that at some point he had harbored
plans to establish a restaurant business with his girl-
friend's mother, and through these persons was loaned
$7,500 to assist in meeting living expenses while unem-
ployed. These plans were not pursued when Wilson was
recalled to work for Respondent effective July 6, 1979.
c. Gerald Manning
This individual worked in Respondent 's warehouse
since October 1977, and following the strike returned to
duty in April 1979. During the strike he was employed
at Pacific Motor Trucking , East Texas Motor Freight,
and as a framer at Del Wobb Corporation on a job
which lasted for approximately 6 months until January
1979. Manning testified that following layoff from Del
Webb he made various efforts to obtain other work. He
described contacting small construction companies, gro-
cery warehouse firms of the vicinity , Western Electric,
his former employers PMT and East Texas Motor
Freight, public employers, and the postal service. He
specifically named Fry 's, Smitty's , A. M. Lewis, and
Safeway as companies where he sought work , testifying
that with regard to most target firms he went there sev-
eral times . He registered regularly with the Arizona
DES, and maintained contact for possible employment
with Teamsters Locals 104 and 83. Manning 's search for
work questionnaire contains only the names of four em-
ployers, which he explained resulted from his under-
standing that it was not necessary to be more elaborate.
d. William Manley
This individual had been employed by Respondent for
9 years preceding the strike and resumed work there on
January 16, 1979. In the time between the end of the
strike and that date, he had sought employment at Fry's,
A. M. Lewis, El Rancho, Yellow Freight, various indus-
trial companies, the Salt River Project, and the postal
service . Manley followed leads from other individuals on
the likelihood of job openings, and although none materi-
alized he did check back periodically . Manley conceded
that he had not tried other grocery warehouse firms of
the vicinity, and that he gleaned a belief in the process of
seeking work that he was not likely to be hired by a new
company because of having been a striker and expected
to return to former employment . Manley testified that he
checked newspaper want ads daily, and would periodi-
cally canvass in the commercial west side of metropoli-
tan Phoenix . During his backpay period he had brief
casual employment with restaurant supplier S. E.
Rykorf, and was a registrant at the Arizona DES.
e. Leon Mullins
This individual had been employed by Respondent for
about 15 years preceding the strike , and eventually re-
turned to work as a warehouseman on the day shift in
June 1979. His search for work had included registering
at the union hall , in addition to checking out classified
want ads several times a week . Mullins named Crown
Zellerbach, Coca-Cola, Goodyear Tire, and several
freight lines as particular companies at which he sought
work in efforts that manifested two or three times per
week . He had specifically refrained from seeking work at
other grocery warehouse companies , because this seemed
inappropriate to him after a strike had disrupted his long
career in a similar business at Respondent. Mullins re-
called a telephone call from Cooksey in December 1978
in which a night-shift order runner 's job was offered,
which he had declined for fear of adversity if not meet-
ing production quotas for that function.
f. Keith Brooks
This individual had been a grocery driver for Re-
spondent, who after participating in the strike was rein-
stated in early April 1979. He testified to expecting
prompt recall when the strike ended , but as this did not
materialize he began looking for a business to operate.
He acquired a grease trap and septic tank cleaning busi-
ness in late December 1978, continuing its operation
under the former name Norm 's Silver Dipper . For ap-
proximately 10 days preceding formal ownership, he fa-
miliarized himself with the operation by riding to cus-
tomers with the seller . The business was originally un-
profitable, but then prospered until Brooks resold it in
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1982. Following his recall to Respondent 's facility he
had worked at the business as a supplementary enterprise
with assistance from family members.
g. Charles E. Fisher
The General Counsel reports that this individual died
on May 4, 1979, and contends from this that a residual
backpay amount is owed to his estate . Respondent has
not disputed this case on the record nor briefed the
point . The claim is thus essentially uncontested , and I de-
termine that it warrants confirmation in the manner al-
leged by the General Counsel.
3. Respondent 's evidence
Thomas Cook testified that he has been employed by
Fry's Food Stores of Arizona for 7 years . He was initial-
ly a food clerk and transferred to the position of employ-
ment specialist in June 1978. More recently he became
personnel supervisor and is a custodian of records for
that employer . Cook testified that Fry's follows a policy
whereby employment applications which have not result-
ed in the individual being hired are discarded after 18
months . By 1978 his company had recently opened a
grocery warehouse operation which was smaller in scope
than that of Respondent , with an initial complement of
60-70 employees . Cook produced records showing that
24 former Associated Grocers strikers had applied and
been hired on a part -time basis by Fry's in a period from
1978 onward . In the case of the other individual, Jesus
Dominguez , his record of hire was missing as contrasted
with 24 others of the group , and for this reason Cook
could only speculate concerning the actual time he had
been employed.
Wayne Clairmont testified that after holding a series of
positions he is now assistant terminal manager for Con-
solidated Freightways , where he is custodian of person-
nel records . He produced such records concerning
Ronnie Cook, Ronald Hager , Jesus Fernandez , and Gil-
bert Pena. Regarding these four individuals for whom
records were available , their employmont applications
showed that they had been working until April 1978 for
Respondent and were no longer there because of a strike
or labor dispute with that employer . Each of them was
initially hired in a commonly used category of
driver/salesman as applicable to new employees of Con-
solidated . Cook was employed on February 26, 1979, at
$9.37 per hour under a Teamsters Union master freight
agreement , and remained a dockman at the current
hourly rate of $13.20. A similar pattern applied for
Hager , whose hiring date was October 16, 1978. Fernan-
dez was not hired until March 17, 1980, at which time
the applicable hourly rate was $10 .66. In the case of
Pena his employment date was March 17, 1980, and he
was at the latest $ 13.20 contractual hourly rate. Clair-
mont testified that in 1978 his company utilized approxi-
mately 15 dock employees and 20 city drivers.
James Brooks testified that he is distribution services
representative for Golden State Foods, and appearing as
a custodian of records substituting for his company's un-
available personnel manager, Mike Wilson . The records
produced by Brooks showed that Richard Williams had
been hired in 1978 as a casual employee, that Larry Led-
ford had been hired on July 10, 1978 , as a temporary or
casual swamper (unloader), that Frank Cooley had been
hired on November 2, 1978, on the same basis as Led-
ford, and that Frank Bowley had been hired on April 7,
1981, as a casual truckdriver at $9.05 per hour and con-
verted to permanent later that year . None of the records
available to Brooks showed any reason for Williams
having terminated.
Norma Thelen testified that she has been human re-
sources manager for Alfred M. Lewis Company since
February 1979, and is a custodian of personnel records
for that company . A search of records showed nothing
for individuals surnamed Manley, Manning, or Wagner;
however, records of employment were available for
George Sokolis, Neil Little, William Gill , Kearney
Ebarb, and Charles Fisher, all of whom had been em-
ployed during late 1978, and in Fisher 's case into early
1979, as "extra" or "casual" employees pursuant to ter-
minology and provisions of the applicable Teamsters
Local 104 contract . Employment records showed that
Sokolis had worked in the warehouse , while the other
four individuals were semidrivers.
Catherine Casillas has been an employment representa-
tive for Safeway Stores, Inc., for at least 9 years and en-
gages in all hiring for both warehouse and store loca-
tions . She testified from company records concerning the
scope and type of employment engaged in by Emilio
Gonzales, Richard Bacchus, Gerald Miner, Allen
Watson, Frank Bowley , Refugio Rublaclava , Dennis
Stetler, and Dennis Falls. Casillas stated that all the indi-
viduals named were employed in situations with compa-
rable job benefits under the Teamsters contract . In 1978
Safeway had six or seven warehouses around metropoli-
tan Phoenix with a total of about 300 employees in the
various locations and a production quota system in effect
for order filling . Its various departmental functions
within a warehouse paralleled the breakdown used by
Respondent . Specifically as to Dennis Falls company
records showed that he was employed on August 21,
1978, and terminated by reason of layoff on October 30,
1978.
Mark Newton is now dispatcher in the automobile di-
vision of Pacific Motor Trucking (PMT), and until its
recent closure was terminal manager for the L.T.L. Di-
vision in charge of hiring and firing there . He had held
this latter capacity for approximately 10 years until this
division was closed for business reasons in January 1984.
Testifying from business records Newton stated that
Jesus Fernandez, J: R. Byrd , and Gilbert Pena had all
been employed during 1978 by PMT at beginning hourly
rates of $9.37, and were eventually terminated at various
times around 1980 because of a reduction in force based
on decreasing business volume.
Sue Caicedo has been employed in the personnel func-
tion of the Tanner Companies since at least 1978 . Testi-
fying from a computer printout concerning the employ-
ment of Edward Calles as beginning in August 1978, she
itemized his hours worked and wages paid for regular
time, overtime, and special compensation over the years
1978 through early 1984. Caicedo added that Calles is
ASSOCIATED GROCERS 843
classified as a truckdriver and hourly employees at
Tanner are covered by union contract of Teamsters
Local 83.
4. Analysis
Initially I note Respondent 's contentions , as made in
its brief, that the "large metropolitan area" of Phoenix
had "large numbers of potential employers " with "job
available during late 1978 and 1979," leading to the ap-
parentness that "work was available for those who
sought it in the Phoenix area ." While appropriate weight
should be given to testimony of the hiring officials who
tend to support such contentions , the more controlling
considerations arise from what is specifically known re-
garding a claimant's particular endeavors in this regard.
Cf. Midwest Hanger, supra at 919 . Neely's Car Clinic,
supra.
As a composite matter of the probative evidence ap-
plied to legal principles by which adequacy or a search
for work is evaluated , I find that as to Allen he was
without a sufficient interest in interim employment for
the immediate period following the end of the strike. His
description of time spent in Ohio does not convincingly
show a sincere search for work , particularly given the
time of year and surroundings to which he returned. On
this basis I determine to exclude calendar quarter 1978-
1984 from his backpay entitlement , and confirm the bal-
ance of time as not affected by any failure of mitigation.
Wilson's search for work was adequate at its inception;
however, his testimony shows a loss of interest in finding
interim employment roughly by spring of 1979. It is ad-
ditionally shown that he was involved with extraneous
goals that effectively removed him as a candidate for in-
terim employment in the local labor market . On this
basis I determine to exclude calendar quarter 1979-1982
from his backpay entitlement , and confirm the earlier
balance as not affected by any failure of mitigation.
Manning's search for work during his backpay period
was convincingly sufficient from his credible testimony
on the point . I am satisfied that his limited entry of
places visited on an administrative reporting form does
not signify any real flagging of his efforts . This is notori-
ously common among discriminatees , and his enlarge-
ment on the point when actually testifying in open court
was not suspect . On this basis I determine to confirm the
full amount of his backpay claim as not affected by any
failure of mitigation.
Manley's search for work was self-limited by reason of
not visiting grocery warehouse firms where it was
shown numerous former strikers had acquired employ-
ment . His explanation on the point is legally insufficient.
On this basis I determine to exclude calendar quarter
1979-1981 from his backpay entitlement , and confirm the
earlier balance calculated for 1978-1984 as not affected
by any failure of mitigation.
Mullins' case has the same infirmity. He chose not to
work where so many others were prevailing, and thus
willfully incurred probable loss of income . There are
often imponderables following the disruptive effects of a
major strike , and it is reasonable to presume that Mullins'
personal choice of disdaining the grocery warehouse in-
dustry would not necessarily have impacted the underly-
ing duty to effectively search for work until the holiday
1978 period was over . On this basis I determine to ex-
clude only calendar quarters 1979-1981 and 1982 from
his backpay entitlement , and confirm the earlier balance
calculated for 1978-1984 as not affected by any failure of
mitigation.
Brooks disclaimed any efforts at securing work in the
immediate period following the end of the strike. His
earlier job applications to Fry's and Golden State Foods
were stale by reason of having been submitted in the
timespan of June to August 1978, and there is no indica-
tion that he attempted to update these applications or
check on their status . Given these facts, I am satisfied
that Respondent has met its burden of proof in establish-
ing a failure of mitigation for a temporary period count-
ing from early October 1978 . However Brooks' subse-
quent steps in locating , acquiring , and effectively running
a private business were fully efficient in meeting his duty
to mitigate damages . The fact that profitability did not
initially arise is a vicissitude of doing business, and so
long as Brooks was engaged in the effort he cannot be
faulted . There was no assurance upon his assumption of
the business as to when, if ever, he would be recalled,
and this choice of gainful employment was not only ap-
propriate but, in the long run , quite astute . It is reasona-
ble to establish only an initial period as one in which
Brooks, by his own admissions , was disqualified from
backpay . On this basis I determine to exclude the 8-week
period of October 9 to December 3, 1978, from his back-
pay entitlement , and confirm the balance of the claim
made on his behalf as not affected by any further failure
of mitigation.
J. Claimed Recommencement of Backpay Periods
The general context of this issue is the situation of 13
or more discriminatees who were sent letters bearing an
offer of reinstatement to last known addresses, which
were not received because the individuals had moved
and no forwarding address was available . For this reason
such letters , as mailed at various times in the early years
of the recall program , were returned to Respondent.
During the major compliance undertaking of 1982-1983,
these employees were located and more current data
concerning them was made available to Respondent as
part of the effort of limiting the scope of backpay litiga-
tion by disposition of as many claims as possible. This
phase was marked by issuance of the original consolidat-
ed backpay specification on August 31, 1983, and as mat-
ters progressed Field Attorney Goldman wrote Attorney
Froimson on December 19, 1983, setting forth certain re-
finements to the General Counsel 's various categories of
its total remedial theory. This letter alluded to the pre-
sumed assistance it would have in Respondent 's pursuit
of "voluntary compliance settlements " as to many of the
individuals listed in a 2 -page enclosure , and contained
the sentence, "Please contact me for current addresses of
these individuals ." Subsequently , during the course of
the hearing , the General Counsel successfully offered
this letter into evidence as General Counsel 's Exhibit 27,
in which was also embodied the assertedly current ad-
dress of 52 individuals . It was clearly emphasized on the
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record that never prior to February 16, 1984 , the date
this exhibit was received , had Respondent or its attorney
been supplied with an organized list of this type. In a
statement of record at that time , Field Attorney Gold-
man identified the list as containing names of persons
which the General Counsel contended were "still owed
an offer of reinstatement," and her further statement of
record asserted that as of December 19, 1983, Respond-
ent "had by [that ] time secured affidavits of most of the
people listed on the attachment and hence , had the ad-
dresses of all the individuals on the affidavits which it
had in its possession ." Finally, the General Counsel sets
forth in its brief a satisfaction in the belief from informa-
tion not a part of this record , that Respondent has made
the required contacts in late March 1984 and in this re-
spect "stipulate [s]" to that development.
A separate situation applies to Larry Broyles, one of
the 52 individuals named on the final two pages of Gen-
eral Counsel 's Exhibit 27. Broyles had written to Re-
spondent in the summer of 1983 , and to this Cooksey
made the following reply by letter dated July 28, 1983:
Received your inquiry letter as to your job status
with Associated Grocers. On Sept. 14, 1979, we
sent you a letter advising that we had "casual em-
ployment" available if you were interested. The
letter was sent to your address at 2033 E. Everett,
Phoenix, Arizona 85022 . You did receive the letter
as we have a signed receipt.
On August 13, 1980, we sent a letter to the same
address and it was returned as your forward order
had expired . This letter offered you a full time driv-
er's job . Since you did not respond to the letter of
Aug. 13, 1980 your employmont with Associated
Grocers was terminated on August 21, 1980.
Respondent 's general contention here is that counsel is
not an employer's agent for these purposes, so notwith-
standing what may have been "glean [ed]" from material
supplied on these individuals during 1983, there is no
basis to say that any duty to again extend offers of rein-
statement applied to this corporate client. A secondary
assertion is that Respondent was not obliged to utilize al-
ternate sources of information, when the original em-
ployee addresses taken from its files were the most reli-
able available information at the time and presumptively
into the future.
Jay Co., 103 NLRB 1645 (1953), established the princi-
ple that a written offer of reinstatement which is not, in
fact, received by a discriminatee does not qualify as a
valid offer for purposes of fulfilling the reinstatement
aspect of a Board Order on behalf of such a beneficiary.
However, if made in good faith such a letter would
serve to toll backpay as of the date of attempted deliv-
ery. The issue in Jay Co. related to a single discriminatee,
and when this case was enforced as NLRB v. Jay Co.,
227 F.2d 416 (9th Cir. 1955), the court treated the matter
of unlocatable beneficiaries by writing , "A few inquiries
might and probably would have resulted in learning
where Shannon could have been contacted."
Recent consideration of the point has not shown a
willingness on the Board's part to apportion a significant
burden on the employer in cases where a person has re-
located . In Bodolay Packaging Machinery, supra, the argu-
ment was advanced that when a discriminatee appeared
for an unfair labor practice hearing following an unsuc-
cessful good-faith effort at communicating a written offer
of reinstatement to him, this obliged the employer's rep-
resentative , also present with the discriminatee , to reiter-
ate the offer. Presented with a clear opportunity to place
an onus on the wrongdoer , the Board , with one member
in modified concurrence , instead held it "[in]appropriate"
to order the claimed backpay other than for an undis-
puted portion.
Here the general circumstances are those of a massive
backpay proceeding , with the Regional Office increas-
ingly demanding urgency of handling from mid-1983
onward . With that as flavor, the natural question is why
the Regional Office did not supply these claimedly sig-
nificant addresses in orderly fashion as of late December
1983, when it seemed as compelling that Respondent was
to have them . An even greater question is that of what
obligation the individuals had to take personal responsi-
bility for giving current notification to Respondent, as to
whom they still maintained a statutory employment rela-
tionship.
There is no claim nor proof that the offers of this cate-
gory were not made in good faith, this being one of the
elements to at least toll backpay if not extinguish rein-
statement rights. Cf. Salem Paint, 257 NLRB 336, 341
(1981); Burnup & Sims, supra . As to the general mid-
period of 1983, I note that this is the era in which the
General Counsel has profusely explained the perplexing
difficulties of correctly winnowing remedial data even
by use of its entire regional staff, and has apologetically
explained that the startling inconsistencies which ensued
were a reflection of the magnitude of the problem. As to
late 1983, 1 see no reason to say that Respondent was
obliged to request what readily could have been provid-
ed to it, particularly as a major new amended consolidat-
ed backpay specification was imminent and in fact did
issue on December 23, 1983. I am particularly confident
that the General Counsel's belated introduction of this
group on February 16, 1984, literally in the midst of
rigors of an extended trial in which Respondent was
faced with still further major amendments many of
which occurred on the eve of the trial opening on Feb-
ruary 7, 1984, with significant reversals of position
throughout the hearing , and with the added necessity of
dealing with important issues raised by the union's notice
of intent (to be dealt with below) as filed only on No-
vember 29 , 1983, did not for these reasons give rise to
any requirement that Respondent face and deal with
such a legalistic matter as an immediate duty.
Notions of fairness and due process would clearly be
offended by such a sanction , and I would not have estab-
lished any date earlier than April 1, 1984, as that on
which Respondent need address this new data, after free-
ing itself from the all-consuming concerns of this litiga-
tion. I am fully mindful that overall public policy is to
extend remedial benefits in all reasonable ways ; however,
here the circumstances do not warrant what would be
heavy-handed is not punitive in character . I find such an
ASSOCIATED GROCERS
evaluation also in harmony with Seyforth Roofing Co.,
263 NLRB 368 (1982), in which the Board reinstated the
requirement of a job offer but expressly permitted that
employer to present in compliance proceedings , "that the
method it employed . . . while tenuous , was nevertheless
reasonable under the circumstances , and thus sufficient to
toll its backpay obligation ... .
On this basis I determine that the individuals to whom
this issue relates were subject to a tolling of backpay
which did not admit of any recommencement ; however,
should individual cases show a late March 1984 offer of
reinstatement to have been invalid this period of such
tolling would end effective April 1, 1984.
With respect to Broyles ' individual case , the letter of
July 28, 1983, carried an implication that the "full time
driver's job" was appropriate and made in good faith at
the point in time of 1980. The holding in Jay Co ., termed
by the General Counsel as the "lead case" in this area,
involved a resurrection of backpay liability, in part, be-
cause the discriminatee belatedly learned of the offer and
then "informed . . . or his availability for work ...."
Given the circumstances of this case and whereabouts of
Broyles' nearly 2000 miles distant from Respondent, I am
influenced by the lack of evidence that he gave any post-
July 1983 notification of employment availability in Ari-
zona, and for this reason determine further in his specific
instance that the tolling of backpay did not lift any more
so than with the approximately one dozen others in-
volved.
IV. ISSUES PRESENTED BY THE CHARGING PARTY
A. Pension Plan Payments
The 1975-1978 contract provided for employer contri-
butions to the Western Conference of Teamsters' Trust
Fund in monthly amounts scaled from full-time employ-
ees to those working as little as 1 hour per day . The con-
tributions continued following expiration of the agree-
ment in February 1978; however , upon commencement
of the strike Respondent ceased making its payments on
behalf of any individuals whether strikers or not . During
the intensive negotiations that preceded the strike Re-
spondent , on or about April 8, 1978, made a comprehen-
sive "full and final proposal" for a new 3-year agree-
ment. As to employee pension coverage , Respondent's
offer was to initially increase its hourly contribution in
maintenance of benefits , then effective in December 1980
provide additional benefits for the balance of any re-
newed contract with a further 7 -cent-per-hour payment
for costs . The cessation of payments as of April 12, 1978,
remained in effect until the new contract between the
parties was reached in December 1982. Thus for a 4-1/2-
year period no pension coverage attached to employ-
ment within the bargaining unit.
The Union , as the Charging Party with standing to ad-
vance matters relative to implementation of the Board's
Order, contends that Respondent 's written prestrike pro-
posal on this subject constituted a firm and final offer
which must be deemed to have its terms incorporated
into the make -whole remedy to which discriminatees are
entitled . Acknowledging that the General Counsel does
not now join in this position , the Union asserts that from
845
1980 to mid-1983 a contrary view was taken by the Re-
gional Office , and this as testified to by present Secre-
tary-Treasurer and Executive Officer Tony Lock is what
the Union relied upon . Lock had been a principal negoti-
ator during 1978 as an assistant business agent at the
time, and although he changed capacities in succeeding
years a residual responsibility was at all times to monitor
the main case as it proceeded through litigation. Lock
testified that the firm and final offer with respect to pen-
sion was never modified in any dealings between the par-
ties, and that he had learned of the discontinuance of
pension contributions during the summer of 1978. He re-
called numerous discussions with Board agents following
issuance of the Board Order in 1980 in which the recov-
ery of pension contributions was specifically contemplat-
ed, and in fact he was asked to use his contacts in ascer-
taining what the actual unpaid amounts would be. In
mid-1983 this expectation was changed when Regional
Office personnel advised Lock that the matter of pension
contributions would not be contained in a backpay speci-
fication because no 8(a)(5) charge had been filed on the
point in connection with the underlying case.
Respondent 's defense here is that the Board 's Order
did not affirmatively provide for retroactive pension con-
tributions , and no requirement to that effect should be
read into it . Respondent argues that it is too late under
the time limitations of Section 10(b) of the Act to now
raise the issue, and the Union was fully capable of
having timely done so when it is seen that several other
8(a)(5) subjects had been litigated , one at least of which
was successful. More fundamentally Respondent con-
tends that no violation of the Act has arisen from the
unilateral changing of terms and conditions of employ-
ment by cessation of pension contributions and knowl-
edge of union agents, actual or constructive , is sufficient
to now bar the claim.
I see no justification for the Union 's position because
of the controlling fact that a mere proposal on a subject
cannot vitalize a particular fringe benefit as a future con-
dition of employment . It is the actuality of what obtained
throughout the work force from mid-April 1978 onward
that matters, not what might have been had the impasse
in negotiations not occurred . All individuals, nonstrikers,
strike replacements , and returned strikers were treated
alike, and the scope of their poststrike employment
simply did not include a funded pension plan. Cf . South-
side Electric Cooperative, 243 NLRB 390 (1979). There
can be no claim of unlawfulness on the point, because
the employer 's action was not tested by filing a timely
8(a)(5) charge, and the fact that other unfair labor prac-
tices were committed does not alter what actual terms of
employment were in effect . I believe Respondent cor-
rectly cites NLRB v. Cauthorne Trucking, 691 F.2d 1023
(D.C. Cir . 1982), in making the point that the good-faith
nature of impasse reached in 1978 limits the range of a
make-whole remedy to what it was as a matter of actual
job benefits which survived consequences of the strike.
In East Wind Enterprises , 268 NLRB 655 (1984), the
Board approved dismissal of the pension aspect of a
backpay specification when its original order did not ad-
dress the point, and factually the evidence showed pen-
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion contributions to have been "completely discontinued
for all employees ." The Union's case authorities are all
clearly distinguishable , and its argument on this point de-
volves largely to unavailing urgings that general princi-
ples of equity should govern the subject . On this basis I
determine that the Board's make-whole remedy for dis-
criminatees is properly fulfillable without the retroactive
imposition of pension contributions for the period in
issue.
B. Health and Welfare Benefits
Relatedly, the Union contends that Respondent's uni-
lateral establishment of a substitute health and welfare
plan for employees in September 1978 gave rise to the
liability of refunding employee portions of premiums
paid thereunder . The last group insurance contractually
in effect between the parties provided a monthly contri-
bution for each full-time employee to the Southwest
Teamsters Security Fund to cover health and welfare
benefits including hospital , surgical, lost time, and vision
care . It was stipulated on the record that trustees of this
fund determined shortly after April 8, 1978, not to
accept further employer contributions , which led to a
lapse of coverage for its employees . The substitute plan
later in 1978 was underwritten by Aetna Insurance Com-
pany, and constituted an action in which the Union ac-
quiesced in principle . However, Lock testified that he
was not aware of any requirement that employees pay a
portion of their health care premiums until early in 1984.
He also verified that Respondent's firm and final offer of
April 1978 had proposed to continue this benefit, with
the addition of dental care and further funding for retir-
ees. As with the prior subject, Lock testified that this
proposal was never altered by Respondent.
Here the Union contends that the Aetna plan provided
benefits inferior to those defined by the firm and final
offer on the subject , and employees were burdened with
premium contributions calculated proportionately from
their annual income . The Union's theory parallels that
advanced with regard to pensions , while Respondent re-
peats its essential arguments as premised on Section 10(b)
and the absence of a timely 8(a)(5) charge on the point. I
see nothing to differentiate the holding here from that
applicable to the issue of pension plan contributions.
Both Cauthorne and East Wind have a similar bearing on
the issue, and it is again a matter of noting that the actu-
ality of what obtained in terms of job benefits during
several years following the strike is what controls. It is
not inconsistent , nor inequitable, to hold that the Board's
make-whole remedy shall require only such "rights and
privileges" as were lawfully in place , and not what
might have been negotiated differently or adjudicated fa-
vorably upon the theory of a timely charge. On this basis
I determine that the Board's make-whole remedy for dis-
criminatees is properly fulfillable without the retroactive
requirement that Respondent refund group insurance
premiums paid by employees . This determination is inde-
pendent of the matter of medical expenses incurred by
discriminatees , a separate issue which the parties have
stipulated as being contingent on basic rulings in the
cases of individual discriminatees (Tr. 1460-1462).
C. Individual Claims
1. George Grace
This individual was a high seniority employee in the
drivers department, having been with Respondent since
1965. In 1973 he experienced a slight stroke limiting him
to lifting not more than 25 pounds , and for this reason he
was assigned a job of trailer pickup . This entailed drop-
off and hauling trailers at and from Respondent 's suppli-
ers, with a job variation being that from twice a week to
twice a month Grace would take a grocery load because
drivers were short in that main function . He was one of
three persons in this particular job setup , with highest se-
niority of the group.
Grace was age 61 when the strike started, and he
began receiving Social Security payments upon turning
62 in July 1978 . He also took his Teamsters pension that
summer . Grace testified that his original application to
Social Security was motivated by his desire not to fall
delinquent on a $5000 loan taken in March 1978. His
Teamsters pension payments began in November 1978
retroactive to the previous July. Notwithstanding this
Grace worked several weeks during the strike for an
Oklahoma-based asphalt hauler, until need for him was
over . He testified to making occasional inquiry of Re-
spondent's management as to work prospects there, but
nothing materialized until a time after the strike was
over . Grace was registered for employment with the
Teamsters Local 104 office at the time and he periodical-
ly checked newspaper want ads . Grace recalled contacts
with Cooksey as occurring subsequent to those with
Tom Gardner, and that on two such occasions those
with Cooksey were merely "friendly conversations"
which dealt inconclusively with Grace 's chances of re-
turning to work . Grace's further recollection was that
Gardner called him in February 1979 with the offer of a
job delivering groceries. Grace explored this personally
with Gardner, but ended up telling him that with its fre-
quent requirements of lifting in excess of 25 pounds this
was actually the same sort of work he had been taken off
5 years before . Grace testified that at the time there were
lower seniority employees occupying the position of
which he had formerly been one of the three . Following
this he made continued unsuccessful contacts with Re-
spondent , but nothing further materialized . Grace stated
that after becoming age 65 in 1981, he did not thereafter
plan to resume working.
Cooksey testified to telephoning Grace in December
1978 and offering him the "same program " as he had
done before, to which Grace allegedly answered he had
become too old to haul delivery loads any more. Cook-
sey recalled that Grace indicated he would for this
reason not return , and there has been no further contact.
With respect to the sporadic fill-in by pickup drivers in
the past, Cooksey testified that these were selected to
take any awaiting grocery loads by seniority.
I am satisfied that Grace is disqualified for several rea-
sons. In the first instance he manifested an intention to
remove himself from labor market consideration when,
after short employment while the strike was still in
progress, he resumed his Social Security annuity and has
ASSOCIATED GROCERS
not by overall probative evidence in his case made any
real change from the significance of this new retirement
status . I credit Cooksey with respect to both his testimo-
ny of what job was offered Grace, and that his former
position involved an unpredictable amount of grocery
delivery work in which truck unloading was required.
The Union argues that such assignments were to be
made by seniority , but it is equally true that both heavy
workload and absenteeism as the causes of such assign-
ment make it problematical whether Grace would have
received an appreciable number even before the strike.
Thus the offer to him in December 1978 was essentially
his former position, and to the extent that by December
1978 strike-related variations in operation were still a
factor it was substantially equivalent to what he had usu-
ally done before . I note that Grace stated he had not had
the intention of retiring until age 65, and that he often
looked for work with area trucking companies in the
time following 1978 . The former point is immaterial and
I discredit the latter portion of his testimony , for it was
so peculiarly at variance with a prior affidavit on the
subject and otherwise offered in a manner that did not
persuade me to believe what he claimed had occurred. I
believe instead that his last serious effort at continuing
with further postretirement employment of any reason-
ably gainful nature ended by October 1978, and he has
not shown himself to be within scope of the Board's
Order in this case . On this basis I determine that the
Union 's claim on behalf of Grace is without merit, and
that he is not entitled to backpay in any amount.
2. Forrest Craghead
This individual was another relatively high seniority
employee of over 20 years' service , who worked the last
3 years prior to the strike in the nonfoods warehouse
function of stamping cigarettes . This job involved stand-
ing and moderate lifting to stack pallets . When the strike
commenced Craghead was also age 61. Upon reaching
his 62d birthday in August 1978 he applied for Social Se-
curity benefits , and these commenced the following
month . He also went on pension under the Union's re-
tirement plan.
Based on a written offer of day-shift employment from
Cooksey dated April 30, 1979, Craghead returned to
duty but was assigned the unloading of boxcars by use of
skids, forklift , and hand lifting of up to 70 pounds. After
a week of this he was transferred to the unloading of in-
coming merchandise off trucks by forklift. He soon expe-
rienced aggravation in this job to a varicose vein condi-
tion, and notified Supervisor John Roberts that the work
gave him leg trouble . After asking his foreman several
times over the next 2 months for a return to his former
job, Craghead spoke with Roberts saying he had to
choose between his Social Security and the difficulty of
continuing in that job . Finding no other alternative of-
fered by Roberts, Craghead quit at that time and has
since, except for discretionary contribution of his time to
a church organization , not sought other gainful employ-
ment.
In this case the Union argues that Respondent did not
reinstate Craghead to his former position of employment,
a job not shown to have been filled by any permanent
847
replacement during the course of the strike . It is noted
that the receiving work both at the boxcars and the
truck unloading dock was heavy, arduous , and typically
performed by much younger individuals . As to particular
comparative tasks the Union refers to Craghead 's uncon-
tradicted testimony that constant standing - on his ciga-
rette stamping job had not affected the varicose vein
condition, but it was the jolting use of foot pedal con-
trols on the forklift that caused the aggravation , without
which he would not have been obliged to quit.
I cannot hold for Craghead because his decision to
become a Social Security annuitant was tantamount to a
withdrawal from labor market consideration for backpay
purposes . The Union argues that he was "forced" to
make the move, but this overlooks the plain truth that it
was the effects of the economic strike which impacted
on Craghead in a way that his own personal course of
action was to retire . I recognize that he has testified to
an intention of not doing so until age 65, however, it is
the reality of the case that must be looked to . Respond-
ent established that aside from minor endeavor based on
family affinity Craghead did no more at seeking interim
employment prior to his recall in spring of 1979 than he
did afterwards . It is evident that he was interested in re-
sumed earnings , however , he also admittedly watched
the accumulation of these so as to avoid loss of Social
Security benefits . The employer was no more correct in
its offer of grocery receiving work to this former incum-
bent of a light repack position than it has been in numer-
ous other cases, however, here the essence of the situa-
tion is that Craghead had lost statutory employee status
prior to 1979 by manifesting one of the most basic of all
indicators that a person has converted to the postem-
ployment phase of his life . On this basis I determine that
the Union 's claim on behalf of Craghead is without
merit, and that he is not entitled to backpay in any
amount.
3. Charles (Rusty) Ahart III
This individual had been employed in the grocery
merchandise repack area of the warehouse since 1972.
He participated in the strike , but by summer 1978 was
facing foreclosure on land he owned . Ahart secured the
Union's permission to enter Respondent 's premises for
discussion , and this was carried out in Cooksey's office
on August 14, 1978 . He explained his financial problems
and offered to return to work to which Cooksey said this
could be arranged providing he would cross the picket
line. Ahart answered that he had too many friends on
strike to do this, to which Cooksey set forth the choices
of (1) staying on strike, (2) crossing the picket line, or (3)
quitting . Ahart testified that he also displayed a doctor's
letter recommending move to a different climate in aid
of a sinus condition , and that he had at the time an offer
from his father of a place for him and his family in Colo-
rado . Ahart then reviewed his choices and decided to
quit, following which he filled out a termination form.
He did thereupon move to Colorado and held a variety
of jobs there , the last one of which has lasted for over 5
years . Ahart recontacted Respondent in late fall 1978 to
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ask if he would be in any recall group , but was told this
would not happen.
There is no valid theory upon which Ahart may pre-
vail. Additionally his testimony is vague and implausable
as concerns the doctor 's letter which he had in his pos-
session for 2 months prior to the Cooksey visit, and
which Berton Siegel, doctor of osteopathy , denied
having given for tax purposes as Ahart stated when en-
larging on the subject . To the extent that the Union
argues Ahart's expressed intentions of returning to work
at Respondent , and following the strike being presum-
ably available to do so, this is without materiality be-
cause of his voluntary act of resigning as he did. The
point needing emphasis here is that there is absolutely no
indication of record as to why Ahart was in any better
position , financial or otherwise , by executing his termina-
tion papers on August 14 as opposed to simply walking
away from Cooksey 's office to his former status as a
striking employee whether to continue residing in the
Phoenix area or whether to immediately relocate to Col-
orado . Ahart's case is simply that of a quit, and the issue
is no larger than this essential fact . On this basis I deter-
mine that the Union's claim on behalf of Ahart is utterly
without merit, and that he is not entitled to backpay in
any amount.
4. Charles O'Banion
This individual had been a garage serviceman for Re-
spondent since 1970. The strike left him financially desti-
tute, and by late summer 1978 he had the recommenda-
tion of a job at Southwest Forest Industries provided he
would quit at Associated Grocers . With this in mind
O'Banion saw his former Supervisor Frank Wood and
signed a termination form , after which he started at
Southwest on September 20, 1978 . O'Banion testified that
his conversation with Wood involved advice that he was
quitting because of the other company's insistence, and
that he did not express any disinterest in again working
for Respondent . After a month at Southwest O'Banion
went into diesel repair work on a self-employed basis and
otherwise , and then eventually to employment with
A. M. Lewis.
Respondent established that O'Banion had not includ-
ed a specific written reason for quitting , nor had he ad-
vised those at Southwest about his supposed interest in
returning to Respondent. The Union contends, however,
that as with Ahart this is a case of a "technical" quit to
which the individual need not be held. Here I place no
weight on the "undisputed" fact that O'Banion was faced
with a condition of obtaining the particular employment
of Southwest . At that time the strike was still in
progress . His plight was no different from the several
hundred other strikers , and there is a need for certainty
in such a situation since otherwise the carefully balanced
rights of employers and employees would be distorted if
an individual could secure continued statutory rights on
such tenuous grounds . The Union cites Big Sky Sheet
Metal Co., 266 NLRB 21 (1983), but here the Board
noted appropriately that it was the employer 's unlawful
conduct that forced the individual to resign . On this basis
I determine that the Union 's claim on behalf of O'Banion
is without merit, and that he is not entitled to backpay in
any amount.
5. Robert Prusak
This individual was hired in 1972 and held a prestrike
position of truckdriver delivering grocery loads to points
away from Phoenix . During the strike period he was in-
jured in an auto accident , and then a second one around
October 1978 . Prusak testified that these accidents left
him successively unable to drive a truck for a period ex-
tending toward the end of that year.
However, around October 1978, Prusak started a
vacuum cleaner business , which did not require the sort
of physical exertion for which he was limited . He contin-
ued running the business and in April 1980 was contact-
ed by Cooksey with the offer of a truckdriver's job.
Prusak recalled telephoning Cooksey to advise that he
was unable to return immediately because the business
could not be sold on such short notice . He recalled that
next he received a letter in June 1980 concerning his
return to work subject to medical clearance . Prusak testi-
fied that he or his doctor arranged to send the employer
a letter, and contemporaneously he advised Cooksey that
he was still making an effort to sell the business to a re-
sponsible buyer . Prusak recalled Cooksey stating that if
he did not return to work by July 3, 1980, he would be
terminated . The Union introduced Charging Party's Ex-
hibit 6, a letter dated June 30, 1980, "To Whom It May
Concern" from Joseph S. Habros, M.D., in which Prusak
was named as a patient under care for low back strain
which had recently improved permitting return to his
usual occupation . Prusak testified that in his final conver-
sation with Cooksey he expressly informed of being
physically able to resume driving, but that he needed
more time to dispose of the business . Prusak has had no
contact from Respondent since then.
Cooksey testified that he had notified Prusak of the
availability of casual work shortly after the strike ended,
and then offered him regular full-time employment via a
telephone call in April 1980 . He recalled Prusak answer-
ing that he was hurt and unable to work, to which Cook-
sey requested a medical release whenever possible.
Cooksey subsequently sent Prusak a letter dated June 25,
1980, requesting advice as to availability for work and a
medical release to such effect . The letter stated that
unless contact was made by Prusak to Cooksey by July
3, 1980, it would serve as a termination of his employ-
ment from Respondent . Cooksey denied any further con-
tact from Prusak , or that Respondent had ever received
Dr. Habros' letter.
This is a claim that turns largely on credibility because
of the extreme differences in the testimony of Prusak and
Cooksey . On demeanor grounds which are particularly
convincing in this instance, I credit Cooksey in full and
largely discredit Prusak 's fanciful rendition of events
during the 1978-1980 period. Prusak 's testimony was
confused , contradictory , and grossly at odds with an affi-
davit given by him in 1983 . I find the fact of the matter
to be that Prusak had not formed the intention of resum-
ing work as a truckdriver after his auto accidents at any
time subsequent to termination of the strike, and that this
ASSOCIATED GROCERS
was the advice he gave to Cooksey in the first contact of
April 1980 . Further I reject Prusak 's version of any June
1980 contact , finding here that as Cooksey testified the
only revelations having to do with Prusak 's physical
condition had been made 2 months earlier , and as to
which there was no known followup in terms of submit-
ting a medical opinion . Cooksey's action of finally setting
a written deadline was reasonable under the circum-
stances, for it was sufficiently apparent that by then
Prusak was not only unlikely to reach a condition of
again being able to perform truckdriver duties but was as
disinterested in returning to this employment that he ig-
nored the written request for a• medical evaluation.
Beyond this Prusak is shown to have been permanently
committed to business endeavors, and his explanation of
how 2 months constituted insufficient time in which to
sell his vacuum cleaner business does not suffice in terms
of holding employment open to him for such a length of
time . It is illuminating to compare Prusak 's conduct to
that of Brooks , as to whom the General Counsel 's brief
accurately summarizes the facts of this individual being
in the midst of conducting an interim commercial busi-
ness but upon an offer of reinstatement "accepted imme-
diately ." On this basis I determine that the Union 's claim
on behalf of Prusak is without merit, and that he is not
entitled to backpay in any amount.
D. Maintenance Department
1. Setting
Before certain additions that were completed by 1981,
Respondent's facility comprised a structure of roughly
one-half million square feet with specialty areas for deli
products, frozen foods, produce, meats, and dairy items.
There were approximately 50 loading docks at which
elevatable steel dock plates were positioned, and an ex-
tensive yard area for the parking of tractors and trailers.
Following additions to the warehouse in 1981 there were
then about 80 loading docks, which required mainte-
nance both as to damaged dock plate surfaces or mecha-
nisms as well as debris removal from beneath the dock
plate for sanitation purposes. Over the years 1979-1981 a
major warehouse addition of 200,000 square feet was
constructed, and other modifications made with respect
to the layout of merchandise areas and of offices. Small
structures were also built at that time along the west side
of the premises for use as a drivers' room and a mainte-
nance office out of which Superintendent Max Brook-
bank worked. In the years following seven further addi-
tions have been made to the facility. In the older portion
of the general grocery warehouse 12-foot high steel
racks were used for the stocking of merchandise, which
would reach a total of 16 feet in height when loaded to
full vertical capacity. The warehouse addition of 1981
was higher, and resulted in use of 24-foot high steel
racks which would load to a total vertical height of 32
feet. The frozen foods department also used steel racks
for the storage of goods and these were, as needed, rein-
forced with welded angle iron and braced with diagonal
struts as was the case with typical dry goods racks.
Movement of products was achieved by battery operated
forklift trucks or "tugger" vehicles, on which there was
849
a platform for the operator to stand . The batteries used
to power forklifts were large heavy high-voltage units
that rode on the rear portion of the vehicle. The batter-
ies were amenable to repair by cell changing as needed,
but more typically were simply replaced when too many
cells were low or inoperable . An older method of re-
placement involved removing and replacing by chain
hoist operated off of a traveling beam, while newer
design permitted a forklift to raise and place the new bat-
tery on a unit . The facility had a total of about 3000
quick carts, which were open steel carriers on four
caster wheels that could be left at customer premises for
unloading and later pickup . These quick carts had a steel
tongue device welded to the front and a hitch at the rear
to allow a series of them being hooked together and
drawn . For movement within the warehouse in the load-
ing process about 500 dollies were available , which were
flat bed carriers having a caster at each corner and a
support or barrier bar at the front end.
2. Evidence
Brookbank testified that historically the Respondent's
organization included a transportation department, one
for truck maintenance which involved anything on
wheels, and a warehouse maintenance function concern-
ing the building and its facilities . Following major oper-
ational changes during the years 1979 to 1981 all battery
work is now done by the forklift maintenance depart-
ment under Supervisor Frank Wood, and his function
also performs repair work on dollies . The quick carts
which previously required the predominant amount of
welding repair work as between such units and the
"green" dollies have been eliminated as too costly a
method of handling products. Brookbank testified that
prior to the strike his warehouse maintenance department
included five employees for refrigeration and seven or
eight general maintenance employees plus Supervisor
Dale Baker . Outside contractors performed major work
while the maintenance department performed general
emergency repairs and building maintenance including
painting and flooring work as time would permit. Brook-
bank characterized former employee James Milostan as
specializing in general welding after learning this trade
from Curtis Christianson , that former employee Frank
Wright was primarily engaged in conveyor and electrical
work, and that former employee Ronnie Ray Fleming
performed a wide range of miscellaneous maintenance
work including repair of conveyers. In further regard to
dock plates Brookbank testified that with the warehouse
expansion new lightweight , more easily maintained dock
plates were installed, in consequence of which there has
been of less of that type work over the last 2 years than
was previously the case . He added that presently em-
ployees John Ramirez and William Lee Evans are the
only persons doing welding repair on dock plates.
Brookbank testified concerning the individual named
James Cox, for whom work records were maintained in
the past. Brookbank recalled that this individual occa-
sionally worked away from the facility, including con-
struction work on a cash and carry outlet in Flagstaff,
the building of a checkout office and subfloor in Tucson,
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enlargement on another cash and carry operation at
Yuma, and a partition enclosure at Kingman . At various
times in the past Brookbank put a requirement in effect
that all employees of his department submit daily work
reports ; however, ordinarily these would be discontinued
after about 2 months.
Dale Baker testified that he worked over 25 years for
Holmes & Son Construction as their field superintendent
for commercial jobs . During this span Holmes performed
major construction work at Respondent 's main facility,
the first of these being in 1965 when a print shop and
storage area was constructed . After overseeing various
additional jobs for this customer over the next 11 years,
Baker was hired by Respondent as its supervisor of con-
struction and maintenance in May 1976 at a time when
the meat department expansion was desired . Following
this Baker, in conjunction with Brookbank , provided
necessary inside coordination for the 200 ,000 square foot
warehouse addition by handling all necessary subcon-
tracting efforts . In his capacity with Respondent Baker
supervised eight maintenance employees, including
Christianson who was an experienced specialty welder
for dolly repair , overhead work , and packaging equip-
ment . Other employees of the department worked spo-
radically on quick cart repair , with Baker estimating this
to constitute approximately 30 hours per week of which
Milostan performed about one-half the amount. Chris-
tianson retired 2 weeks after commencement of the
strike, and Baker then recruited Ramirez, a person who
he knew from the local construction industry as experi-
enced on layout and an accomplished all-round and
overhead welder. Ramirez started with Respondent in
May 1978 , and according to Baker essentially replaced
Christianson with the performance of specialty welding
including warehouse rack repair . Baker considered at
that time and up to the present that other persons of the
maintenance department with some welding capabilities
were not of sufficient competence to equal the sort of
work performed by Ramirez . After commencement of
the strike Cox began performing remodeling and painting
work throughout Respondent 's office areas . This, ac-
cording to Baker, was not a type of work previously
done by regular maintenance employees , but had been
performed by himself as an accomplished finish carpenter
and cabinet maker with assistance from those of his de-
partment . Baker termed Cox as a person who only did
construction work, and nothing of a type that regular
maintenance employees of the department could have
done. Baker testified that the phenomenon of performing
necessary warehouse maintenance functions with four
employees in contrast to the larger number utilized
before the strike was attributable to different modes of
supervision and work habits among the remaining indi-
viduals.
Fleming testified that he had worked in Respondent's
maintenance shop since February 1970 and was during
that timespan a supervisory working foreman. He had
been returned to his capacity as a maintenance mechanic
about 3 months before the strike . At this point in time
the rank-and-file employees of the maintenance depart-
ment were not in the principal bargaining unit. Fleming
outlined his representative duties as rack and dock plate
repair, lighting and electrical work , plumbing, partition
building, painting , tile laying , concrete floor repair, and
finish carpentry . He described his tasks when doing
welding as the repair of dollies and secondarily quick
carts as filler work when time permitted . Fleming in-
curred industrial injury disability in early April 1978 and
continued in this status until released for prospective
return to duty in late 1979, which he communicated to
Respondent 's personnel office . He had received an avail-
ability inquiry letter from Respondent but has never been
offered actual reinstatement to his former department.
Fleming's seniority was immediately below that of
Evans, the last person returned to work following the
strike.
Wright testified that he had worked as a warehouse
maintenance mechanic for Respondent since 1970. His
job duties entailed general building maintenance , office
renovation , dock plate work , and equipment repair. As
to the latter he recalled doing more work on the "green"
dollies than on quick carts, and these involved hitch
welding, bearing and wheel replacement, plus handle
repair . He had experience in welding although not certi-
fied in such work at Respondent . Wright was junior in
seniority to the entire department except for Milostan.
He recalled working on renovation of the 35th Avenue-
Glendale store building, at which he built partitions and
performed electrical , tile, and painting work . Wright re-
called the fundamental separation of the forklift area
from building maintenance as occurring about a year
before the strike, and that notwithstanding he and other
maintenance mechanics continued to perform battery
charging as they had done before . His assignment to this
task was irregular , but it could on occasion span a 2-
week period in which it would occur 2-3 hours on each
day. Wright has not received an offer of reinstatement to
his former position.
Milostan testified that he had been a maintenance me-
chanic for Respondent since September 1972, and as
such was the lowest seniority employee of the depart-
ment. He corroborated the general range of duties out-
lined by Fleming and described a "major part" of his job
as being arc and acetylene welding as trained to do over
the years by Christianson . He testified to doing the heav-
ier and noncritical welding tasks such as on a dock board
or conveyor, and that Christianson did small , specialty
work in the departmental shop . • Milostan estimated his
own welding work, including related layout and prepara-
tion, as constituting about 80 percent of his total working
time on a representative prestrike average. As to the bal-
ance of his time he further estimated green dolly repair
at 10 percent and quick cart welding as 5 percent or
more . In elaborating on these estimates he believed the
actual time of welding itself of the total from this func-
tion was about 25 percent, and he added that both Flem-
ing and Wright did a "little" amount as was the case
with all departmental employees . While Milostan had
done battery changing in the past, this phased out to
only occasional instances over the several months prior
to the strike.
Immediately upon the strike ending Milostan had vis-
ited Respondent's personnel office to inquire about
ASSOCIATED GROCERS
recall . This did not materialize and he later received a
letter from Cooksey dated February 17, 1979, intending
to determine his interest in a return to former capacity.
By this time he was in the habit of periodically visiting
to assess job recall prospects , and he spoke inconclusive-
ly with Cooksey about the letter . Milostan has never had
an offer of reinstatement from Respondent . He also re-
called a conversation with Baker that he placed various-
ly at just after the strike up to 2 years later, in which
Baker had remarked that none of the three remaining in-
dividuals from the maintenance department were likely
to be returned to work , because Brookbank for some un-
specified reason did not want Fleming to again work in
the department.
Evans testified that he has 16 years with Respondent,
and was recalled to his maintenance mechanic job in
1981. With this reinstatement he resumed the same type
of duties as before, these being warehouse rack repair,
painting , welding, electrical work, and carpentry. He re-
called working with Cox, who did actual maintenance
work , wore a departmental badge, and reported in at the
same morning time as other employees . Evans worked "a
couple times" with Cox, as the two jointly assembled
racks and removed shelving . Evans confirmed that the
former dolly and quick cart repair work had been trans-
ferred to the forklift shop by the time of his return.
While this type of welding was no longer then being
done, Evans testified that he continued to perform rack
repair and in fact completed about 95 percent of all that
was required . As to this Evans testified that he had
worked nearly exclusively on moving racks, with period-
ic assistance by Janitorial Foreman Virgil Lacey, noting
that Fleming, Wright, or Milostan only occasionally pre-
viously worked with him on this function. He has
worked with Ramirez on lighting and conveyors, but
generally now performs more electrical work than was
previously the case . His former duties involving battery
charging were no longer required because he found on
his return that it was completely removed to a new de-
partment. The amount of general welding he performs
since his recall is greater than what came up in his job
prior to the strike . As to this prior working time Evans
estimated that he spent about 30 percent in repair weld-
ing on quick carts.
3. Analysis
On this issue the Union cites NLRB v. Fleetwood Trail-
er Co ., 389 U . S. 375 ( 1967), for the controlling principle
that a failure to return economic strikers to former posi-
tions of employment must rest on legitimate and substan-
tial business justification as to which the burden of proof
is placed on the employer. From this it is contended that
the composite of factors shows merely a substitution of
personnel , a rearrangement of duties , and a relocation of
work stations , that leaves unchanged the essential nature
of what the three persons for whom the Union advances
separate claims had done before.
The Union's argument fails because a considerable
array of proof establishes with convincing certainty that
an inevitable change in the role of the maintenance de-
partment followed facility modernization and more pur-
poseful alignment of skills with needed duties . It is per-
851
suasive to set forth that a substantial enlargement of
space will facilitate warehouse operations that do not
lead to constant maintenance support , and the higher
storage racks are understandably now the repair respon-
sibility of Ramirez whose heavy welding background is
clearly superior to any persons associated with the de-
partment past or present . This is also true as to dock
plate repair , and here Ramirez is shown as one whose
skills coordinate more usefully with the outside contrac-
tor serving these units . The services formerly provided
by Cox did involve overlap to standard maintenance
functions , but not so much as to be significant nor neces-
sarily in the same character when his extensive experi-
ence in carpentry is considered. Granted that mainte-
nance department employees were credibly shown to
have assisted in the 35th Avenue-Glendale store renova-
tion, this one-time activity does not provide a governing
basis to change any assessments . The reconstituted bat-
tery repair and recharging operations have been ade-
quately explained in terms of business efficiency, with
Joe Pena as the recognized specialist for the work and
the complete discontinuance of the somewhat ramshakle
quick carts is another expectable change with the pas-
sage of years . Related to this is the matter of green dolly
repair, again a matter of convincing explanation in terms
of allocating what everyone agrees was fill -in work to a
department having a regular night shift during which
such work could more conveniently be accomplished.
I have considered Milostan 's uncontradicted testimony
that he was cryptically told of some unexplained dismay
toward Fleming as might disadvantage this individual
and those below him in seniority , however, such a free-
floating remark does not suffice to discredit the ample
showing of why the former maintenance department has
never resumed its numerical complement of the past. It is
instructive to note that little more has occurred here
than did when shortly before the strike the new institu-
tional department was formally structured . As to this the
General Counsel has correctly argued that the positions
of that function became distinctive in terms of a striker's
entitlement to have that specific job offered , and it is just
such a recognition of evolving business changes that legi-
timatized the claim of individuals such as Ashline, Calles,
and Christman.
I have considered Interurban Gas Corp., 149 NLRB
576 (1964), and Nolan Systems, 268 NLRB 1248 ( 1984),
and find them each distinguishable , believing instead that
the situation is more analogous to Textron, Inc., 257
NLRB 1 (1981), in which industrial practices coupled
with customer demand were such that the production re-
quirements for an inventory buildup following a strike
"were such as not to require the hiring of a substantial
number of additional employees until ." See Lapeer
Foundry & Machine, 272 NLRB 566, 567 fn. 4 (1984). In
this final vein it is conceded on the record that the three
individuals on whose behalf the Union presses these
claims remain preferentially entitled to reinstatement,
however, beyond that I determine what they are not
owed backpay in any amount.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. DISPOSITION
The numerous determinations set forth above shall
constitute conclusions of law, and in all instances of
"running backpay" the protection shall continue , with in-
terest, until a valid offer of reinstatement is rendered or
some other event serves to legally terminate the liability.
The parties set forth a satisfactory inclination to have
specific backpay amounts recalculated following resolu-
tion of the various issues in dispute. (Tr. 893, 964.) On
this basis I refrain from setting forth detailed schedules
(appendices) of backpay due individual claimants as cal-
culated on a calendar quarter basis, in the interests of
avoiding unintended ambiguity and to leave the parties
best situated to achieve final disposition of this protract-
ed litigation.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondent, Associated Grocers, its officers,
agent, successors , and assigns , shall make offers of rein-
statement and pay to each entitled discriminatee an ap-
propriate backpay sum based on the determinations of
this supplemental decision , together with interest as set
forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
8 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.