Atlas Linen and Industrial Supply

National Labor Relations Board - Board Decisions

Dec 13, 1961

134 N.L.R.B. 1230 (N.L.R.B. 1961)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARIT
Fred H. Johnson,, Trustee Under the Will of Clay M. Thomas,
Deceased, doing business as Atlas Linen and Industrial Sup-
ply and Mollie S. Taylor, Mary J. Wagner, Inez L.. Bostic,
Juanita Donaldson, Grace Karnes , Phillip E . McBee, Floyd
Hall, Minta Justice , Otis Kinney, David W. Hall, Dicie P.
Newell, Victoria Branham , Mary B. Galbreath, Della M.
Gleason , Beulah Kuli, Marie H. Holbrook, Albert T. Rucker,.
Betty E. Hall, Harold James Comer , and Francis C. Burnard.
Cases Nos. 9-CA-1925,9-CA-1926,9-CA-1928, 9-CA-1929, 9-CA-
1930, 9-CA-1931, 9-CA-1932, 9-CA-1935, 9-CA-1937, 9-CA-1938,
9-CA-1939, 9-C.4-1941, 9-CA-1944, 9-CA-1946, 9-CA-1'952;,.
9-CA-1953, 9-CA-1955, 9-OA-1956, 9-CA-1972, and 9-CA-1975.
December 13, 1961
PROPOSED SUPPLEMENTAL DECISION AND ORDER 1
On February 28, 1961, the Board issued its Decision and Order in
the above-entitled proceeding adopting, with certain modifications,
the findings, conclusions, and recommendations of the Trial Ex-
aminer? Inter alia, the Trial Examiner had found that the Respond-
ent unlawfully discharged the Charging Parties as of April 10, 1959,
the date of the commencement of the strike, and that the Respondent
was therefore obligated to reinstate them when they indicated their
unconditional willingness to return to work after the termination of
the strike even if their jobs had been filled during the strike. This
finding that these employees had been unlawfully discharged was not
adopted by the Board, the reasons given: (1) the complaint alleged
that these employees had engaged in an economic strike at the con-
clusion of which the Respondent unlawfully refused to reinstate or re-
employ them, and did not allege discriminatory discharges; and
(2) the issue as to whether these employees had been discharged was
not fully litigated at the hearing.
Acting on our own motion, the Board 3 has reexamined its Decision
and Order herein, as well as the entire record herein. We have now
concluded that the Trial Examiner properly found that the Charging
Parties were discharged unlawfully, and that this finding of the Trial
Examiner should have been adopted.
1 Any party may, within 20 days from the date hereof , file with the Board in Washington,
D.C , seven copies of a statement setting forth exceptions to this Proposed Supplemental
Decision and Order , together with seven copies of a brief in support of said exceptions
and, immediately upon such filing, serve copies thereof on each of the other parties.
Should any party desire permission to argue orally before the Board, request therefore
must be made in writing to the Board simultaneously with the statement of any exceptions
filed, with proof of service on all other parties furnished with such request.
2130 NLRB 761.
'Pursuant to the provision of Section 3(b) of the National Labor Relations Act, as
amended , the Board has delegated its powers in connection with ease to a three-member
panel [Members Rodgers, Fanning , and Brown].
134 NLRB No. 108.
ATLAS LINEN AND INDUSTRIAL SUPPLY 1231
First, with respect to the scope of the complaint, while the better
practice might have been to specifically allege discriminatory dis-
charges, we do not think that the allegations that were made neces-
sarily excluded consideration of the issue whether these employees
had the right to reinstatement and reemployment arising from the
Respondent's discharge of them for engaging in the strike. As a gen-
eral proposition, an employer may replace economic strikers, but he
may not discharge them for engaging in protected activity prior to
their replacement; and if he does, his refusal to reinstate or reemploy
them upon their application is unlawful, even though in the interim
he actually may have hired replacements.4 Thus, it is not merely the
character-i.e., the purpose-of the strike which bears upon the right
of striking employees to their jobs. An allegation that an employer
has refused to reinstate or reemploy economic strikers because they
engaged in protected activity could encompass the issue in question
here. However, aside from the matter of whether the complaint al-
leged with sufficient particularity the discharge issue, we are con-
vinced that the parties fully litigated this question and it was thus in
issue at the hearing.
As more fully detailed in the Intermediate Report (attached to
the Decision and Order issued on February 28, 1961), considerable
testimony was introduced at the hearing establishing that immedi-
ately prior to the strike Respondent's supervisors warned employees
that if they did not report for work they would no longer have jobs,
and that they need not come back at all. One employee was told that
she was automatically out when she did not show up for work on the
first day of the strike. Many were told that they had "quit" their
jobs when they did not report for work. Warren C. Armstrong, the
personal representative of the Respondent, admittedly instructed
those in management positions with the Respondent that those em-
ployees who did not show up for work "were to be considered
discharged."
The record shows'that the Respondent had a rule providing for
the discharge of any employee who failed to report for work. It is
clear that by the warnings given to the employees here and by Arm-
strong's instructions to Respondent's officials that the Respondent in-
tended to invoke this rule as to all employees who participated in the
strike. It is also clear that the Respondent did in fact invoke this
rule and did discharge those who struck. Thus, one group, when they
sought reinstatement at the conclusion of the strike, were told that
they had had their chance once, and that they had been warned before
they went on strike that those who did not report for work need not
come back. Respondent's controller, Richard Castrop, admitted that
' Valley Die Cast Corp ., 130 NLRB 508 ; Vogue Lingerie, Inc., 123 NLRB 1009, 1011-
1012; N.LR.B. v. Clearfield Cheese Co, Inc, 213 F. 2d 70 (C.A. 3).
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had been given a list of names of those who did not report for
work on the first day of the strike, and that, about April 17, after
the end of the strike, he noted on the employment history cards of each
striker who had not been reinstated the following : "Date separated
4/10/59; Reason Vol. Quit-Failed to Report to Work." Armstrong
admitted that those who were reemployed at the end of the strike were
taken back as "new employees," that he told those whom he talked to:
"You are taken back as a new person," and that he instructed others
in the rehiring process to tell the returning strikers the same thing.
Armstrong also admitted that he told the strikers that they were being
hired back with loss of seniority and vacations.
From the above summary of evidence adduced at the hearing, it,
is clear that the discharges of these employees were placed in issue
and thoroughly litigated by the parties. In these circumstances, it
was proper for the Trial Examiner to consider the issue.' We also
think, and for the reasons given in the Intermediate Report, that the
Trial Examiner correctly found that the Respondent discharged the
Charging Parties as of April 10, 1959, because they engaged in, or
(in the case of Della Gleason) were thought to have engaged in, the
strike, and the Respondent thereby violated Section 8(a) (3) and (1)
of the Act. Accordingly, we now vacate the Board's prior finding,
and adopt the Trial Examiner's finding and conclusion in this respect.
The Board also found in its Decision and Order of February 28,
1961, that it was not established that any of the Charging Parties had
been replaced during the course of the strike, and that there was noth-
ing to indicate that new hires filled any of the jobs of the Charging
Parties. This finding is not supported by the record. To the con-
trary, considerable testimony was taken and a number of exhibits
were introduced for the purpose of showing that, with one exception,
all of the Charging Parties had been replaced. While for the most
part the testimony of Respondent's witnesses was to the effect that
there were no openings for the Charging Parties generally, in the case
of three of them, the names of their replacements were in fact given
on the record. Thus, we now vacate the Board's prior findings in
this respect. However, as noted above, and as the Trial Examiner
correctly stated, the Charging Parties, having been unlawfully dis-
charged as of April 10, 1959, were entitled to reinstatement upon
their unconditional application at the end of the strike even if their
jobs had been filled during the strike. The Respondent's refusal to
reinstate or reemploy them at that time and thereafter was violative
of Section 8 (a) (3) and (1) of the Act.
s Clearfield Cheese Company, Inc., 106 NLRB 417, 424. Cf. Monroe Feed Store, 112
NLRB 1336 ; Nassau & Suffolk Contractors ' Assoctiation, Inc., et al., 123 NLRB 1393, 1396,
footnote 8.
BEAR BRAND ROOFING, INC. 1233
In view of the foregoing, we shall modify the Decision previously
issued herein so as to conform to this Supplemental Decision. In all
other respects, the Board's Decision and Order shall remain un-
changed. In determining that the Board's Decision should be modi-
fied as set forth herein, we have considered whether or not the
Respondent has been prejudiced. Because the Order previously
issued herein remains unchanged, we have concluded that no prejudice
has resulted.
[The Board modified the Board's Decision issued on February 28,
1961.]
Bear Brand Roofing, Inc. and International Union of Operating
Engineers, AFL-CIO. Case No. 17-CA-1631. December 14, 1961
DECISION AND ORDER
On January 17, 1961, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, Respondent and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs. The Respondent also filed a motion to reopen the record.
On July 28, 1961, the Board, having issued a notice to show cause
on May 4, 1961, reopened the record and remanded the case for a fur-
ther hearing for the purpose of affording Respondent an opportunity
to cross-examine a witness on his statement to the General Counsel.
On October 2, 1961, the Trial Examiner issued his Supplemental In-
termediate Report adopting and reaffirming his Intermediate Report
of January 17, 1961. A copy of the Supplemental Intermediate Re-
port is attached hereto. Thereafter, Respondent filed exceptions to
the Supplemental Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the Supplemental Intermediate Report, the
exceptions 1 and briefs, and the entire record in this case, and hereby
l As noted above, the hearing herein was reopened and the case remanded to the Trial
Examiner for the purpose of affording the Respondent an opportunity to cross-examine a
134 NLRB No. 127.
630849-62-vol. 131-79