Augusta Bakery Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 58 (N.L.R.B. 1990)

58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Augusta Bakery Corporation and Local Union No.
1, Bakery, Confectionery and Tobacco Workers'
International Union of America , AFL-CIO-
CLC. Case 13-CA-25812
March 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 28, 1989, Administrative Law Judge
Richard L. Denison issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a response to the
Respondent's exceptions, and the Charging Party
filed a response to the Respondent's exceptions and
brief in support of the judge's, decision.
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,2
and conclusions as modified below, and to adopt
the recommended Order.
1. The judge concluded that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by dis-
charging strikers Browarski and Dlugolecki be-
cause of alleged strike misconduct. In reaching that
conclusion, the judge found that the Respondent
did not have an honest belief that the two strikers
had engaged in strike misconduct sufficient to justi-
fy the discharges under NLRB v. Burnup & Sims,
379 U.S. 21 (1964), and Rubin Bros. Footwear, 99
NLRB 610 (1952). The judge further found that
even if the Respondent had an honest belief that
the two strikers had engaged in misconduct, the
General Counsel had proven that the two strikers
had not engaged in the alleged misconduct. Final-
ly, the judge found that, in any event, the alleged
i The Respondent has excepted to the ,fudge's refusal to permit the Re-
spondent to introduce into evidence employee Acevedo's affidavit, which
allegedly states that Acevedo reported to the Respondent that he saw
striking employee Browarski throw a board at the Respondent's window,
through an "offer of proof." In affirming the judge 's ruling, we find that
the affidavit is inadmissible hearsay evidence that does not fall within the
unavailable declarant exception to the hearsay rule because the Respond-
ent has not shown that it was unable to procure Acevedo's presence at
the hearing by process or other reasonable means. See Fed R.Evid
804(a)(5).
z The Respondent has excepted to some of the judge's credibility find-
ings. 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 sec. III,B of his decision the judge inadvertently stated that the Re-
spondent in letters dated March 27, 1987, notified striking employees
Browarski and Dlugolecki that they had been discharged The letters
were actually dated March 27, 1986.
strike misconduct (throwing boards at and breaking
windows at the Respondent's store) was de minimis
and not the type that tends to intimidate or coerce
employees under the principles set forth in Clear
Pine Mouldings, 268 NLRB 1044 (1984), enfd. mem.
765 F.2d 148 (9th Cir. 1985). The Respondent has
excepted to all these findings.
Assuming arguendo that the Respondent has es-
tablished an honest beliefs that Browarski and Dlu-
golecki engaged in strike misconduct, we fmd that
the General Counsel has presented sufficient evi-
dence to prove that the two strikers did not in fact
engage in the alleged misconduct. In this regard,
the judge credited the two strikers' denials that
they had engaged in the alleged misconduct and
we find no reason to overturn the judge's finding.
Accordingly, we affirm the judge's conclusion that
the discharges violated Section 8(a)(3) and (1).4
2. The judge further concluded that the Re-
spondent violated the Act by denying reinstate-
ment to strikers Majewski, Oleksyn, and Rapacki.
In so doing, the judge rejected the Respondent's
contention that these employees abandoned their
employment through their application and receipt
of their pension benefits during the strike. He
found that the Respondent's actions were discri-
minatorily motivated because the evidence estab-
lished a pattern of retaliation on the Respondent's
part and that the Respondent had seized on the fact
that the strikers had applied for their pension bene-
fits as a pretext to deny them reinstatement. The
Respondent has excepted to the judge's finding of
discrimination and argues that as pension benefits
are payable only when an employee ceases work,
the Respondent lawfully denied them reinstatement
because they had abandoned their employment. Al-
though we adopt the judge's conclusion that the
Respondent violated the Act by denying reinstate-
ment to these three strikers, we do so on the fol-
lowing basis.
I We do not rely on the judge's finding that the Respondent 's failure to
notify and discharge Browarski and Dlugolecki until 3-4 months after the
alleged misconduct occurred established that the Respondent did not
have an honest belief that they had engaged in the strike misconduct. The
Board has found that an employer had an honest belief that strikers had
engaged in strike misconduct where the hiatus between the alleged mis-
conduct and the notification of the discharge was similar to, or even
greater than, that in the present case. See, e.g, Clougherty Packing Co,
292 NLRB 1139 (1989) (striking employee Estopiman notified of dis-
charge 2-3 months after alleged misconduct occurred); United States
Gypsum, 284 NLRB 4 (1987)(four strikers notified of discharge 4-6
months after alleged misconduct occurred).
4 In affirming the judge's conclusion that the discharges violated the
Act, we do not rely on his statement that the alleged strike misconduct is
not the type that would reasonably tend to coerce employees in the exer-
cise of their rights We also do not rely on the judge's finding that Gen-
eral Manager Madoch conceded that broken windows at the Respond-
ent's premises had been left in need of replacement because the evidence
does not support that finding
298 NLRB No. 12
AUGUSTA BAKERY CORP. 59
An employer does not have any obligation to
offer reinstatement to strikers who have abandoned
their employment with the employer. In order to
establish an abandonment of employment sufficient
to relieve the employer of its reinstatement obliga-
tions, however, the employer must present "un-
equivocal evidence of intent to permanently sever
[the striker's] employment relationship .. ."
Harowe Servo Controls, 250 NLRB 958, 964 (1980)
quoting S & M Mfg. Co., 165 NLRB 663 (1967). In
Rose Printing Co., 289 NLRB 252 (1988), the Board
adopted a judge's finding that strikers who had ex-
ecuted statements of resignation in order to obtain
their retirement contributions had not abandoned
their employment so as to relieve the struck em-
ployer of its reinstatement obligations. The judge
relied on the following factual findings: the strikers
had expressed an economic need to obtain the con-
tributions; resignation was the only way to obtain
the contributions; the strikers' only purpose in re-
signing was to obtain the contributions; the strikers
had not obtained employment elsewhere; and the
strikers had not abandoned the strike following
their resignations. Id. We find that the reasoning in
Rose Printing is applicable here. Thus, all three
strikers in the present case testified that they had
an economic need to obtain the pension moneys,
they did not intend to quit by applying for their
pensions , cessation of employment was the only
way to obtain their pensions, and they had not
worked elsewhere. Under these circumstances, we
do not find unequivocal evidence of the strikers'
intent to sever the employment relationship perma-
nently. Thus, the Respondent has not established a
legitimate business reason for denying reinstate-
ment to Majewski,5 Oleksyn, and Rapacki. Ac-
cordingly, we affirm the judge's finding that the
Respondent violated Section 8(a)(3) and (1) by de-
nying them reinstatement.
ORDER
The National Labor Relations Board adopts the
recommended Order6 of the administrative law
judge and orders that the Respondent, Augusta
Bakery Corporation, Chicago, Illinois, its officers,
5 The Respondent also contends that Majewski was a striker who had
been permanently replaced and that, therefore , it had an additional lawful
reason not to offer him reinstatement As we have adopted the judge's
finding that the strike replacements were not hired permanently, we
reject the Respondent's contention.
B The Respondent has excepted to the judge's recommended Order re-
quiring the Respondent to offer reinstatement to strikers Hagy, Pio-
trowski, Siemiastko, and Zalewski. The Respondent contends that as
these strikers allegedly failed to notify the Respondent of their current
addresses , the Respondent does not have any obligation to offer them re-
instatement . We find the Respondent's argument to be without merit be-
cause the Respondent has not shown that it ever attempted to offer any
of these strikers reinstatement to their positions
agents, successors , and assigns, shall take the action
set forth in the Order.
Linda McCormick, Esq., for the General Counsel.
Kathy Arnold, Esq. and A. Eric Arnold, Esq., of Wauke-
gan, Illinois, for the Respondent,
Jacob Pomeranz, Esq. (Cornfield and Feldman), of Chica-
go, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Jfudge.
This' case was heard in Chicago, Illinois, on February
17, 18, and 19 and April 4, 5, 6, and 7, 1988 .2 Charge 13-
CA-25182 was filed by Local Union No. 1, Bakery,
Confectionery and Tobacco Workers' International
Union of America, AFL-CIO-CLC (the Union and the
Charging Party), on March 27, 1986, alleging violations
of Section 8(a)(1) and (3) of the Act. The complaint,
issued December 15, 1986, alleges violations of Section
8(a)(1) and (3) based on events which occurred during
and after a strike of Respondent's employees, which
began on November 20, 1985, and continued into early
1986.3 Basically, the General Counsel contends that Re-
spondent unlawfully failed and refused to reinstate cer-
tain economic strikers. The Respondent's answer denies
the allegations of unfair labor practices alleged in the
complaint, and, in addition, pleads certain affirmative de-
fenses. Respondent asserts that various alleged disc:rinmin-
atees were either permanently replaced, discharged for
strike misconduct, or retired and abandoned their jobs.4
i Counsel's unopposed motion to enter an appearance as counsel for
General Counsel in place of trial counsel Susan Brannigan , Esq., is grant-
ed.
a On October 14, 1986, I opened a trial in Case 13-CB -11291, based on
a charge filed April 7, 1986, and a complaint issued May 16, 1986, alleg-
ing a violation of Sec 8(b)(l)(A) of the Act against the Union, the
Charging Party in the instant proceeding, with respect to a separate and
distinct incident arising out of the same strike winch gives rise to Case
13-CA-25812. The hearing in Case 13-CB-11291 was recessed indefinite-
ly on October 14, 1986, to permit subpoena enforcement proceedings,
which, together with scheduling delays, prevented resumption until Feb-
ruary 1988 In the interim , on December 15, 1986, the Regional Director
for Region 13 of the Board issued a complaint in Case 13-CA -25812, and
the Respondent Employer moved to consolidate the two cases for hear-
ing. Since one of Respondent's asserted defenses was based on events in
Case 13-CB-11291, I granted Respondent's motion. The consolidated
proceeding opened on February 17, 1988, at which time counsel for the
General Counsel in Case 13-CB-11291 moved for severance and approv-
al of an informal settlement agreement between the Regional Office and
the charged party. The Charging Party Employer filed a brief in opposi-
tion to the motion , to sever and approval of the settlement . There was no
request for presentation of evidence, or other showing in opposition to
the settlement Following consideration of the Charging Party Employ-
er's brief, and oral argument on the record, I granted the motion after
having assured the Respondent Employer in Case 13-CA-25812 on the
record that I would afford it considerable latitude in utilizing evidence
stemming from Case 13-CB-11291 This has been done.
a All dates are in 1986 unless otherwise specified.
4 An amendment to Respondent 's answer also alleged that Section
10(b) of the Act barred any consideration in this proceeding of any con-
duct by Respondent with respect to failing and refusing to reuistate the
named discnminatees after March 27, the date on which Respondent first
failed and refused to reinstate them. Following oral argument , in which
Respondent argued that such consideration is unsupported by any charge,
Continued
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations in paragraphs II and III, re-
spectively, of the complaint, admitted in Respondent's
answer, I find that the Respondent is, and has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union is now, and has been at all times material,
a labor organization within the meaning of Section 2(5)
of the Act.
II. SUPERVISORY AND AGENCY STATUS
Based on the allegations contained in paragraph IV of
the complaint, admitted in the answer, I find that Re-
spondent's president, Lawrence J. (Larry) Madoch, and
its secretary-treasurer and manager, Robert Madoch, are
supervisors and agents of the Respondent within the
meaning of Section 2(11) and (13) of the Act, respective-
ly.
Paragraph IV of the complaint alleges, and the answer
denies, that Leonard Madoch is also a supervisor and
agent . The record shows that Leonard, the father of
Larry and Fobert, was president of Augusta until he sold
his interest to his sons and retired prior to the com-
mencement of the strike, which began November 20,
1985. However, following the start of the strike, Leonard
Madoch, according to credible testimony, interviewed,
hired, trained, and directed the work of strike replace-
ments . Therefore, during the period of time material, he
possessed and exercised authority attributed to a supervi-
sor by Section 2(11) of the Act. I find, for purposes of
this proceeding, that he is a supervisor, and, in any
event, an agent of Respondent within the meaning of
Section 2(13).
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's Business and the Strike of
its Employees
The Respondent, Augusta Bakery Corporation, owns
and operates a small family owned specialty bakery and
I ruled that the final clause in par. V(c) of the complaint , which states
"and since said date has continued to fail and refuse to reinstate said em-
ployees to their former or substantially equivalent positions of employ-
ment," was sufficient to encompass consideration in this proceeding of
any subsequent reinstatement rights which might have accrued to the al-
leged economic striker-discrimmatees , including any issues which might
arise within the ambit of the decisions in NLRB v. Fleetwood Trailer Co.,
389 U.S. 375 (1967); and Laidlaw Corp., 171 NLRB 1366 (1968).
On February 18, 1988, the Respondent filed a request for special per-
mission to appeal the above ruling and my ruling of February 17, 1988,
approving the settlement agreement in Case 13 -CB-11291, and severing
that case from the instant proceeding On or about March 28, 1988, the
Board denied Respondent 's request for special permission to appeal these
rulings. On April 1, 1988, Respondent petitioned the United States Court
of Appeals for the Seventh Circuit to review the Board's Order Re-
spondent 's subsequent effort to obtain a temporary restraining order
pending judicial consideration of the 10 (b) issue, including Respondent's
request for an injunction against consideration of post-March 27, 1986
evidence, failed . However, Respondent continued to maintain its position,
including a refusal to supply certain subpoenaed materials relating to
events after March 27, 1986. Accordingly , at various times during the
course of the hearing, the General Counsel relied on secondary evidence
with respect to events after March 27, 1986, and invoked the Board's
ruling in Bannon Mills, Inc., 146 NLRB 611 (1964), with respect to cer-
tain areas of the Respondent 's defense.
shop located on the northeast corner of North Ashland
Avenue and West Chestnut Street in the city of Chicago.
Its address is 901 North Ashland Avenue. Respondent
produces a varity of bakery products, with an emphasis
on specialty items catering to the tastes of Chicago's
large Polish-American community. Thus, bakery prod-
ucts produced in the shop in the rear of the building are
sold in the retail store in the front of the building facing
Ashland Avenue. The premises also contains Respond-
ent's office, and a garage for the trucks used for the dis-
tribution of Respondent's goods.
In 1979, Augusta's president, Leonard Madoch, sold
his interest in the family business to his sons. Lawrence
J. (Larry) Madoch became president, Ken assumed the
vice presidency, Ron became treasurer (and remained so
until his death in February 1987), and Robert became
secretary-treasurer and, in addition, general manager, in
which capacity he oversees the day-to-day operations of
the bakery.
Since sometime prior to 1965 the Respondent's pro-
duction employees has been represented by the Charging
Party. When in 1984 the Madoch brothers purchased
Heck's Bakery, Inc., a separate facility at another loca-
tion in Chicago, those production employees were in-
cluded in the bargaining unit by means of an addendum
to the existing contract. The most recent labor contract
was a 3-year agreement existing from June 1, 1985, until
May 31, 1985. After a number of bargaining sessions
failed to result in a new agreement, the Union called a
strike on November 20, 1985. The main differences be-
tween the parties which precipitated this action involved
wages, proposed changes in health insurance benefits,
and Respondent's cessation of payments for employees'
health insurance premiums. Following November 20,
1985, picketing was conducted by striking employees, in-
cluding the alleged discriminatees, at both Augusta's and
Heck's premises, utilizing signs captioned "This Plant On
Strike Local No. 1, Bakery, Confectionery, and Tobacco
Workers' International Union, AFL-CIO-CLC." The
Respondent maintains and the General Counsel concedes
that at all times material the strike of Respondent's em-
ployees was an economic strike. Following the com-
mencement of strike activity, the Respondent continued
to operate its business utilizing strike replacements.
Frank Acevedo, an employee who did not strike, filed
a decertification petition in Case 13-RD-1677 on March
10.5 On March 17, the Respondent, through its attorney,
Kathy Arnold, withdrew recognition, of the Union as
bargaining agent, by means of a telephone call and a
letter to Jacob Pomeranz, counsel for the Charging
Party.6 On March 24, Respondent's striking employees
offered to return to work. This offer was conveyed to
the Respondent by means of a letter from Pomeranz to
Arnold, which she received on the morning of March
5 Stipulated segments of the representation hearing concerning that pe-
tition, in evidence as A. Exh 20, are of considerable significance with
respect to the issues in the instant proceeding.
6 Counsel for the General Counsel and counsel for Respondent agree,
as confirmed by their briefs, that this action by the Respondent is not an
issue in this proceeding. I therefore leave the resolution of this matter to
the representation process.
AUGUSTA BAKERY CORP. 61
25, and which stated, in relevant part, "said employees
and the Union are offering unconditionally to immediate-
ly return to work ...." The offer specifically named 12
of Respondent's striking employees, including the 11 em-
ployees named as alleged discriminatees in the General
Counsel's complaint in this matter. Under a separate
cover, Pomeranz also sent Arnold a second letter dated
March 24, demanding "that you return to negotiations
immediately so as to reach agreement on a collective-
bargaining contract." The letter also asserted that the
employees who signed the petition which served as a
basis for the filing of the RD petition were temporary
and "therefore not appropriately in a bargaining unit of
regular and continuing employees represented by us,
thus, the Employer has no good faith basis to doubt our
continuing status as majority representative." Following
a telephonic conference with Robert Madoch later on
March 25, Arnold responded on March 27, Arnold's
lengthy letter, in relevant part, expressed doubts con-
cerning whether the Union's offer to return to work was
unconditional, and set forth the Respondent's position
concerning the status of each of the striking employees,
which may we summarized as follows.'
Frank Braun, a cake baker and decorator at Heck's
Bakery prior to the strike, was offered immediate rein-
statement to his former position. A letter addressed to
Braun, dated March 27, and signed by Larry Madoch,
confirmed the offer and requested advice concerning the
first day he could report for work.
Miroslaw Browarski, a bread baker on the 3 to 11 p.m.
shift prior to the strike, and Tadeusz Rllugolecki, who
worked cleaning and maintaining ovens, baking pans, and
the stockroom, were discharged for alleged strike mis-
conduct. They also received letters dated March 27 con-
firming this action.
Chester Rapacki, an overman on the morning pound
cake shift,' and Ivan Oleksyn, a cake baker-mixer on the 8
p.m. to 5 a.m. shift, were denied reinstatement on the
grounds that they had "abandoned" their employment.
Each of these employees received a letter dated March
27, explaining that the Respondent's position was based
on information it had received concerning each employ-
ee's receipt of pension payments from the Bakery and
Confectionery Union and Industry International Pension
Fund. In brief, Respondent claimed that these two em-
ployees had retired following the commencement of the
strike.
Concerning Matthew Majewski, a rye and white bread
baker-mixer on the afternoon shift prior to the strike, Re-
spondent declined to reinstate this striking employee on
the ground that it had received information that begin-
ning April 1, he would begin receiving pension payments
from the fund. Both the Union and Majewski were ad-
vised by separate letters dated March 27, that if Ma-
jewski intended to accept pension payments despite his
March 24 offer to return, then he would be treated as an
economic striker until April 1, after which he would be
considered to have retired. He was also advised that if
he elected not to accept; the pension payments he would
7 Except for Frank Braun, each individual discussed is an alleged dis-
criminatee
then be treated as an economic striker who had been per-
manently replaced, and his name would be placed on a
preferential recall list since the Respondent claimed there
were no openings at that time.
The remaining six strikers, Roman Czyszon,8 a morn-
ing shift pound cake baker; Marian Dybas, a wrapper
and packer on the night shift; Clifford Hagy, a baker-
mixer of sweet and fry cakes on the morning shift; Rys-
zard Piotrowski, an afternoon shift helpful on sweets,
cakes and rolls; Stanislaw Siemiastko, a caker baker's
helper on the night shift, and Jan Zalewski, an oven man
on the afternoon shift, were each notified by separate let-
ters dated March 27, that although their offer to return
to work had been received, they had been permanently
replaced, there were no available positions, and they
would be placed on a preferential recall list. It was the
Respondent's position that any reinstatement rights these
employees had were governed, under the circumstances
presented, by the Board's decision in Laidlaw Corp., 171
NLRB 1366 (1968).9
Based on credited testimony by Union President Maxie
Hill, picketing ceased on March 24, pursuant to his in-
structions, and the striking employees were briefed on
March 25 concerning the Union's offer. However, sever-
al days later, when it became clear from Respondent's
letters that it did not intend to reinstate the strikers, pick-
eting resumed with signs captioned "Augusta-Heck's
Bakeries is unfair to organized labor. They refuse to bar-
gain with Local 1, Bakery, Confectionery and Tobacco
Workers, AFL-CIO. Please don't buy their products."
The picketing was, accompanied by the distribution of
handbills to customers requesting that they not buy the
Company's products because the employees had not been
returned to work. At the commencement of the renewed
picketing the pickets were briefed concerning the
Union's reason for its resumption.'°
B. The Discharges of Tadeusz Dlugolecki and
Miroslaw Browarski
Robert Madoch testified that about noon on an un-
specified day in December, 1985, Frank Acevedo (the
employee who filed the decertification petition) came to
his office and stated that he had observed Browarski
throw a board at the window of Respondent's retail
store in the front of the building. Acevedo said the board
came from the garbage can fire that the pickets were
using to warm themselves outside. Madoch readily ac-
cepted Acevedo's report as true without any further in-
vestigation. There was no damage to the window. Ace-
8 This name also appears at times in the record and in briefs spelled
Czyszczon.
9 It was stipulated that as of February 19, 1988, the alleged discnmina-
tees had not been reinstated. The record reflects no change in their status
as of the close of the hearing on April 7, 1988
10 Robert Madoch testified that there was no break in the picketing.
He claimed that he remembered his attorney calling him every day be-
ginning March 23 to ask him if pickets were still present, and , conse-
quently, he remembered that they were there. However, Madoch could
not remember the names of any of the employee pickets present on any
day and asserted that there was no change in the wording of the picket
signs. I am persuaded that his memory is unreliable in this respect, and
that he exhibited a lack of candor in this area of his testimony.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vedo did not testify." Browarski first learned of his dis-
charge when he received his March 27, 1987 letter from
Respondent. He denied throwing the wood at the
window. He readily agreed that the strikers frequently
kept a fire burning in a metal barrel tied to the stop sign
at the comer of Ashland and Chestnut, a few feet from
the large plate glass window on the store, but noted that
he reported for picket duty each day at 2 p.m. and Ace-
vedo usually arrived about 2:30.
Robert Madoch testified further that on another un-
identified morning in December, 1985, Zladislaw (Ziggy)
Piekos, a -nonstriking employee, rushed into his office
and reported that "Taddy is breaking windows."
Madoch followed Piekos into the shop area where Ziggy
pointed to the windows in the shop area facing Chestnut
Street.12 Madoch said he observed a couple of broken
glass louvers, holes in the screen, and a piece of card-
board which the Company had stood in place to close
off the window, knocked down. Piekos pointed to Ta-
deusz Dlugolecki, who was picketing outside, as the
person responsible. Madoch conducted no further inves-
tigation, and took no action until he sent Dlugolecki his
March 27, 1987 discharge letter. Madoch conceded that
in the past from time to time portions of these louvered
windows had been broken and had been left in need of
replacement. It had become customary to place large
pieces of cardboard or peel boards (large pieces of wood
used to transport bread to and from the ovens) to keep
the windows closed.
Piekos remembered going to Madoch's office in Janu-
ary accompanied by Jan Organ, another nonstriking em-
ployee. According to Piekos, he reported simply that
"we saw the piece with the window going down and
making noise." This occurred about 1 p.m. Piekos ex-
plained that the window had been covered with peel
boards, and one of these had fallen. When he looked in
the direction of the noise, he saw Dluolecki standing out-
side the building holding a stick approximately 1-1/2 to 2
inches round and 2 to 3 feet long. He testified that he
and Organ then went to the office and told Robert
Madoch that Dlugolecki had "broke the window." How-
ever, Piekos conceded that he did not notice any damage
to the window, and later, on cross-examination, testified
that he only told Robert Madoch that the peel board fell
off the window and that he had seen Dlugolecki standing
outside. Although Dlugolecki was discharged for "the
threats which you made to your fellow employees," in
addition to damaging company property, Piekos testified
that he did not remember Dlugolecki saying anything to
him through the window.
Dlugolecki knew nothing of his discharge until he re-
ceived Respondent's March 27, 1987 letter. He denied
damaging the window, knocking out any board, or
threatening any employee. Furthermore, he denied that
the window in question had suffered any damage, and,
through the General Counsel's presentation, offered into
evidence photographs of the window in question which
11 An offer of proof based on Acevedo's affidavit to the Board, and
not raised by Respondent until surrebuttal, was rejected . Acevedo testi-
fied in the hearing in Case 13-RD-1677.
12 Shown 1n R. Bxh. 6.
failed to show any damage. Another photograph, in evi-
dence as Respondent's Exhibit 6, taken after the alleged
damage from 'a different angle, likewise fails to reveal
any breakage.
Strikers may lose their right to reinstatement by en-
gaging in serious strike misconduct. The standard by
which it is determined whether or not the participants
are disqualified has been enunciated by the Board in
Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765
F.2d 148 (9th Cir. 1985), i.e., "whether the misconduct is
such that, under the circumstances existing, it may rea-
sonably tend to coerce or intimidate employees in the ex-
ercise of rights protected under the Act." Thus, violent
behavior which might appear "relatively innocuous"
when compared to more extreme conduct by others may
nevertheless justify discharge if it might reasonably tend
to coerce or intimidate employees in the exercise of their
Section 7 rights. GSM, Inc., 284 NLRB 174 (1987). In
proceedings before the Board where an employer-re-
spondent is, as here, defending against charges that is
discrminatorily discharged such strikers, it is sufficient,
to meet its burden of presenting evidence, for the re-
spondent to show it had an honest belief that the alleged
discriminatees engaged in strike misconduct. NLRB v.
Burnup & Simi Inc., 379 U.S. 21 (1964); Rubin Bro. Foot-
wear, 99 NLRB 610, 611 (1952). Once an honest belief
has been established, the General Counsel from whom
the overall burden never shifts with respect to proving
discrimination in violation of the Act) can still prevail by
producing evidence to show that the employees did not
in fact engage in the misconduct for which they were
discharged, or that the misconduct was not serious
enough to warrant the severe sanction of denial of rein-
statement . Geo. A. Hormel & Co., 287 NLRB 693 (1987).
In the instant case I am not persuaded that Respondent
has proved it in good faith maintained an honest belief
that Browarski and Dlugolecki engaged in disqualifying
strike misconduct. According to Robert Maddch, the in-
cidents on which Respondent relies allegedly occurred
on undetermined days in December 1985. It must be kept
in mind that the alleged discriminatees were not simply
denied reinstatement, they were discharged, the fact of
which they were never notified until March 27, 1986.
Robert Madoch testified that it was only after the March
25 receipt of the Union's offer to return the strikers to
work that he and his attorney, Arnold, conferred about
what to do about the strikers, including who should be
discharged. Lawrence Madoch confirmed this discussion
in his testimony, and, indeed, Arnold, who later ap-
peared as a witness, phrased questions to Lawrence
about the conference in terms of having to decide wheth-
er people should be discharged and who would be dis-
charged.13 Therefore, it is evident that, had Respondent
truly believed at the time of the alleged events in De-
cember 1985, Browarski and Dlugolecki had engaged in
serious misconduct warranting discharge, it would have
been reasonable and prudent to terminate them then, in
order to discourage further incidents and to demonstrate
support for its nonstriking employees. The accuracy of
13 Tr. 280-282.
AUGUSTA BAKERY CORP. 63
this observation is reinforced by the earlier noted incon-
sistencies in the accounts of Robert Madoch and Zladis-
law Piekos, whose testimony further suffers from lack of
corroboration. I therefore find that the Respondent did
not have a good-faith belief that Browarski and Dlugo-
lecki committed dischargeable or disqualifying strike mis-
conduct.
Furthermore, because of the contradictions in the testi-
mony of Respondent's witnesses described above, consid-
ered together with Browarski's and Dlugolecki's forth-
right demeanor and unshaken denials supported by pho-
tographic evidence, I credit their testimony over that of
Respondent's witnesses to the alleged incidents. I find
that Browarski and Dlugolecki did not commit the acts
for which they were discharged. I am persuaded that, in-
stead, these alleged events were contrived following the
Union's offer for the purpose of avoiding the reinstate-
ment of these two strikers and to retaliate against them
for their activities on behalf of the Union. Thus, the
General Counsel's burden of proving that the employees
did not engage in the strike misconduct has been satisfied
through evidence persuading the trier of fact that the al-
leged events did not occur.
Finally, since it is clear from the testimony of Re-
spondent's witnesses, that even if the two alleged inci-
dents occurred as they described, there was no injury to
persons or property nor was anyone threatened, I find
that the alleged misconduct is, under the circumstances,
de minimis and not the type which tends to coerce or in-
timidate under the Clear Pine standard. During the many
years of its experience in promoting industrial peace
through enforcement of the Act, the Board has devel-
oped great expertise in maintaining the delicate balance
between protecting the right to strike guaranteed by Sec-
tion 7 and applying sanctions to discourage strike vio-
lence and other abhorrent forms of strike-related miscon-
duct. In so doing, it has long recognized that while non-
striking employees' have the right to protection from co-
ercion, the workplace is not intended to be a haven for
the shy and the timid. Nor can one reasonably expect a
strike to be conducted, or work to be carried on during a
strike, in an atmosphere which observes standards of
conduct appropriate only at a garden party. In a time
when workers, not to mention the many other interest
groups in our society, with differing viewpoints are cog-
nizant of and do not hesitate to assert their rights, and to
both engage in or refrain from collective action, and
when employers have sophisticated means of protection,
the potential for effective coercion still exists. However,
it is, in my view, lessened greatly in the absence of seri-
ous threats, personal in jury, or property damage. By
permitting strikers to be denied reinstatement for insignif-
icant events such as the alleged incidents which consti-
tuted the basis for Respondent's action, I would be set-
ting an absurd precedent directed toward forcing em-
ployees into a Hobson's choice between not exercising
their right to strike, and facing almost certain discharge
in retaliation for striking, based on the slightest infraction
or, in some instances, a manufactured excuse. The practi-
cal effect would be to nullify the right to strike. Con-
gress did not intend the Act to be so construed and,
therefore, I choose not to do so here. I find that by dis-
charging Browarski and Dlugolecki Respondent violated
Section 8(a)(1) and (3) of the Act.
C. The Refusal to Reinstate Majewski, Rapacki, and
Oleksyn on the Ground that they had Abandoned their
Employment by Retiring During the Strike
Having been specifically included in the Union's
March 24 offer to return to work, Chester Rapacki, Ivan
Oleksyn, and Matthew Majewski made no response to
Respondent's March 27 letters to them described in sec-
tion III,A of this decision. The evidence offered in sup-
port of the Company's affirmative defense that these
three employees had abandoned their employment is as
follows: Robert Madoch testified that all he knew prior
to sending the' March 27 letters was that he had received
sometime in February and March, from the pension fund,
forms for him to complete and return seeking informa-
tion about the three employees. He stated that he nor-
mally received such forms only when an employee was
contemplating retirement. Madoch filled out the forms
and send them to the fund's offices in Maryland. In early
March he told Arnold about having done this, and that
he thought the employees had retired. Arnold called
Lewis Davis, the union's director of disbursements and
payments, who, she testified, stated that Rapacki and
Oleksyn were receiving their pension payments, and that
Majewski was slated to begin receiving them on April
1.14 On March 25, having received the Union's offer, she
called Davis again and obtained an assurance that Ra-
packi and Oleksyn were still receiving pension checks,
and that Majewski would start being paid on April 1.
Davis also told Arnold that if she desired written verifi-
cation, she would need to make a written request.
Arnold did so by telegram on April 1. In a letter dated
April 2, Davis wrote that Rapacki's and Oleksyn's pen-
sions were effective March 1, and that Majewski's was
not yet effective for lack of a "husband and wife
election/rejection form."
Chester Rapacki, who worked as an overman on the
morning pound cake shift, has been employed by Re-
spondent since 1,953 and covered by the health and pen-
sion benefit plan since its inception in 1955. At the time
of the hearing he was 63 years old. He testified credibly
that prior to the strike, one Sunday in early November,
Leonard Madoch came to him by his oven and asked if
he had enough time to go on retirement. When Rapacki
answered that it was none of his business , Leonard said
that if Rapacki went on strike he could not come back to
work.15 Nevertheless, Rapacki went on strike, and
served as a picket. He said that he applied for his, pen-
sion benefits because he needed the money to pay his
bills and his mortgage. He stated that he did not intend
to quit his job with the Respondent by taking this action,
and that he had not given any indication to the Company
that he intended to quit. Instead, he said that he intended
to return to work at the Company, if he was offered re-
instatement. He, noted that if he returned he would lose
his pension for 2 years, but that it would again become
14 Davis was not called to testify.
15 Leonard Madoch did not testify
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
available when he reached age 65. Except for the Com-
pany's March 27 letter, which he agrees he received, he
has had no further communication from the Respondent.
He has not worked for any other bakery.
As of the start of the strike, Matthew Majewski had
worked for Respondent for 5 years as a mixer of rye and
white bread. A union member since 1944, Majewski was
approaching his 62d birthday at the time of the hearing.
He also went on strike and served as a picket. He testi-
fied that a day or two before the strike he had a brief
conversation with Larry Madoch in his office in the
presence of Robert Madoch. When Majewski announced
that he had come to obtain his paycheck, Harry Madoch
stated, "This is your last check." Lawrence Madoch did
not testify about the incident. Robert Madoch testified
that he either did not remember or did not hear the con-
versation between Lawrence and Majewski. I credit Ma-
jewski, but find that Lawrence Madoch's statement to
him is too ambiguous to serve as evidence revealing Re-
spondent's motive in failing to reinstate Majewski. Ma-
jewski testified that he applied for pension benefits after
the strike began because he needed the money to pay
hospital bills for his wife, since he has no health insur-
ance. He remembered receiving the Company's March
27 letter addressed to him, but could not remember the
exact date on which he received it. He said that he had
not worked elsewhere, did not intend to quit his employ-
ment with Respondent, and would return to work if
given the opportunity. He began receiving his pension
benefits in June, and at the time of the hearing was still
receiving them.
Ivan Oleksyn, age 62, had worked for Augusta since
1972, and at the time of the strike was a cake
baker/mixer on the 8 p.m. to 5 a.m. shift. He participated
in the strike and served as a picket at the Heck's facility.
He testified that 2 or 3 days before the strike, in the
Company's office, in the presence of Robert Madoch,
Leonard Madoch asked him if he had enough time in for
his pension because there was no way the Company
could sign any more contracts with Local 1, and he
would not be able to work any more for them. Oleksyn
answered by asking what the dispute with the Union had
to do with his pension, since that had nothing to do with
the Company. Leonard Madoch did not testify, but
Robert Maldoch remembered the conversation in the
context of Oleksyn's reporting to the office to receive his
final paycheck before the strike. No one else was
present. According to Robert, Leonard said that if Olek-
syn was going on strike there was no way the Company
could pay the insurance premiums which the Union was
seeking (in bargaining), and since Oleksyn had so many
years in and the age required (to qualify) he might as
well get some money out of his pension. Robert Madoch
did not actually deny that Leonard may have also made
the statement attributed to him by Oleksyn, nor did
Oleksyn say that his account was necessarily complete. I
am persuaded that both witnesses are telling the truth
and that a composite of their testimonies concerning this
incident represents a complete account. Oleksyn testified
further that after the strike began he applied for and
began receiving pension fund payments. At the time of
the hearing he was still receiving them. He said that he
needed the money to pay his medical bills and insurance,
but that he had never told the Company he quit and had
had no further contact with them, except that he re-
ceived Respondent's March 27 letter. He has not worked
elsewhere, and said that he would return to work at Au-
gusta if given the opportunity to do so.
Unless they have obtained substantially equivalent em-
ployment elsewhere, employees out of work as a result
of a labor dispute remain employees of their employer.
One of the essential criteria in determining whether or
not an economic striker has abandoned the job which he
left to go on strike, is the existence or the absence of an
intention to return to that job. Thus, the striker continues
to have employee status unless the evidence shows an
intent to abandon his job. In cases such as the instant
case, it is the Respondent Employer's burden to prove
abandonment by demonstrating that it had reason to be-
lieve the employee was no longer interested in the job
through evidence of its efforts to determine the striker's
intentions. One of the factors considered to be objective
evidence of an intention to return to work is the striker's
inclusion in an unconditional offer to return at the end of
a strike.
The question to be determined is whether, having re-
ceived the Union's offer to return, specifically naming
these three employees among those desiring reinstate-
ment, did Respondent take an adequate number of steps
to ascertain their intentions sufficient to overcome any
evidence giving rise to an inference of a discriminatory
motive. If Rapacki's, Oleksyn's, and Majewski's respec-
tive cases are examined superficially, individually, and in
isolation from the total circumstances which comprise
this case as a whole entity, it becomes relatively easy to
conclude that their cases should be dismissed. A close
examination, however, in the light of all the existing cir-
cumstances discussed in this decision, compels a different
result, since a pattern of retaliation emerges . The evi-
dence as a whole clearly reveals that Respondent did not
want anything further to do with Local 1. It had imme-
diately withdrawn recognition from the Union following
the filing of the decertification petition, and refused for
various reasons, the merits of which are discussed herein,
to reinstate all but one of the economic strikers. Leonard
Madoch told Rapacki and Oleksyn that if they went on
strike they could not return. All these events considered
together with Leonard's inquiries about their pension eli-
gibility, and a statement to Oleksyn that there was no
way the Company could sign any more contracts with
Local 1, gives rise to a clear inference that Respondent's
conduct toward the three "retirees" was based on an un-
lawful motive. Cf. Giddings & Lewis, Inc., 240 NLRB
441, 457-458 (1979), cited by Respondent, wherein evi-
dence of antiunion animus and a discriminatory motive
was absent. It is undisputed that based on Robert Ma-
doch's receipt of questionnaires regarding these employ-
ees, prior to sending the March 27 letters, Arnold made
two telephonic inquiries to Davis from which she
learned that Rapacki and Oleksyn were receiving pay-
ments and Majewski was scheduled to begin payments
on April 1. It was not until April 1, however, that
Arnold requested written confirmation which, when re-
AUGUSTA BAKERY CORP 65
ceived, revealed that Majewski's pension was not yet ef-
fective and approval had been delayed. Respondent did
not pursue the matter further. It made no proper effort
to check the newly acquired information from the fund
with the employees.' 6 It is clear that the three employ-
ees themselves did not respond to the March 27 letters
from the Company, but I am persuaded, in view of their
offer to return, that they were not obliged to do so, since
the letters were not simply inquiries concerning their in-
tentions, but were couched in terms of a choice they
were not legally compelled to make at that time. I find
that Respondent has not offered evidence sufficient to
overcome the inference that its actions toward Rapacki,
Oleksyn, and Majewski were discriminatorily motivated,
and that Respondent seized on the information it ob-
tained from the fund to establish a pretext for retaliating
against these strikers for exercising their right to strike
and for serving as pickets in their Union's contract dis-
pute with their Employer. Thus, Respondent further vio-
lated Section 8(a)(1) and (3) of the Act.
D. The Refusal to Reinstate the Alleged
Discriminatees on the Grounds that Their Offer to
Return to Work was not "Unconditional, and that they
had been Permanently Replaced
It has long been established that during a strike an em-
ployer may hire permanent replacements to continue op-
erating its business, and that proof of such action consti-
tutes legitimate and substantial business justification for
refusing to reinstate those economic strikers so replaced.
NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967);
NLRB Y. Mackay Radio Co., 304 U.S. 333, 345-346
(1936). The permanently replaced economic strikers
status as an employee continues, however , unless and
until he finds other substantially equivalent employment.
If, in the meantime, a job for which he is qualified be-
comes available at the struck employer, he becomes enti-
tled to reinstatement. NLRB v. Fleetwood Trailer Co., 389
U.S. 375 81 (1961); Laidlaw Corp. v. NLRB, 414 F.2d 99
(7th Cir. 1969), enfd. 111 NLRB 1366 (1968). These rein-
statement rights of economic strikers are activated by
their making an unconditional offer to end the strike and
return to work. Respondent argued at the hearing, and
renews the argument in its brief, that the Union's March
24 offer did' not constitute a bona fide unconditional
offer, since' Respondent received a second letter from the
Union, also dated March 24, containing the statement,
"we demand that you return to the negotiations immedi-
ately so as to reach agreement on a collective-bargaining
contract " Respondent urges that this "demand" by the
Union, together with Respondent's claim that "the pick-
eting never abated," makes the Union's offer conditional.
I disagree. I have already found, for reasons stated earli-
er, that, based on the credible testimony of Hill, the pick-
eting ceased after the March 24 offer, and resumed, with
different or altered signs, only after Respondent refused
to reinstate the strikers.
16 From Respondent's viewpoint, there was no impediment to making
such attempts since it had already withdrawn its recognition of the
Union
The contention that the second union letter of March
24 renders the offer conditional likewise lacks merit. This
conclusion becomes readily apparent when the relevant
text and the sequence of the correspondence described in
section III,A of this decision is closely reviewed. 'Thus,
Pomeranz wrote Arnold two letters on March 24. One
states only, in plain language, that the listed "employees
and the Union are offering unconditionally to immediate-
ly return to work." That letter contains no reference to
any other topic, or correspondence. The second letter
contains no mention of the offer. In addition to demand-
ing the resumption of the negotiations for the purpose of
reaching agreement on a contract, it also contains a
second paragraph which sets out the Union's position
that the signers of the decertification petition are "tem-
porary employees" and thus "the employer has no good
faith basis to doubt our continuing status as majority rep-
resentative." This letter is a clear response to Arnold's
letter of March 11 withdrawing recognition. Indeed, the
Union made no other answer. To construe it otherwise,
as Respondent has, one must give undue emphasis to the
date on which it was written, while ignoring part of the
text and the chain of circumstances in which it was sent.
Therefore, under all the circumstances, I find that the
Union's March 24 offer to return to work was uncondi-
tional, and was composed only of the single March 24
letter listing the names of the employees on whose behalf
it was made.
Since the General Counsel has satisfied his burden of
producing evidence which proves the occurrence of a
strike and an unconditional offer by the strikers to return
to work, the burden now shifts to the Respondent to
prove that its failure and refusal to recall the strikers was
caused by legitimate and substantial business justifica-
tions. Accordingly, it is Respondent's burden to prove its
affirmative defense, raised in its answer, that the alleged
discriminatees were permanently replaced.'' Fleetwood
Trailer, supra; Aqua-Chem, Inc., 288 NLRB 121 (1988);
Mars Sales & Equipment Co., 242 NLRB 1097 (1979),
enfd. 626 F.2d 567 (7th Cir. 1980); Murray Products, 228
NLRB 268 (1977), enfd. 84 F.2d 934 (9th Cir. 1978).
Such proof must' be specific and must show a mutual un-
derstanding between the employer and the replacements
that they are permanent. Hansen Bros. Enterprises, 219
NLRB 741 (1986); McCormick-Shires Millwork, 286
NLRB 754 €n. 12 (1987).
I find that the Respondent has failed to establish that
any of the strike replacements were hired as permanent
replacements. The evidence shows that the strike began
on November 20, 1985, and that almost immediately
thereafter the Respondent, through its supervisors and
agents, began contacting and hiring replacements. None
of those 16 hired were called by Respondent to testify in
this proceeding. However, the parties introduced into
evidence by stipulation, Joint Exhibit 20, which consists
1' Respondent did not assert in its answer any other form of legitimate
and substantial business justification. Moreover, its unsupported assertion
late in the hearing of the previously unannounced affirmative defense that
it suffered a decline in business from a loss of customers during the strike
is also rendered inappropriate by its refusal to produce subpoenaed
records Bannon Mills, Inc., 146 NLRB 611 (1964)
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of mutually selected relevant portions of the hearing in
Case 13-RD-1677 on March 31, 1986, in which replace-
ments Robert Jednock, Joseph Lis, and Tadeusz Gole-
biowski testified about the circumstances of their em-
ployment by Augusta. Robert and Larry Madoch also
testified in that proceeding, as they did here, about the
circumstances in which the replacements were hired.
Jednock, who was hired over the phone by Leonard
Madoch in November 1985 as a baker, testified that no
one at the Company ever told him whether or not the
job was for a limited time. He stated that he never asked,
and no one from the Company ever told, him, what
would happen to his job when the strike ended. Joseph
Lis was interviewed by Robert Madoch. He testified that
Madoch never said anything to him about whether or
not the job was limited, and he never asked what would
happen if the strike ended. Tadeusz Golebiowski was
hired on December 27, 1985, as a baker's helper. He was
interviewed in the office by Leonard Madoch, who told
him what his job would be. However, Madoch never
said anything about what would happen if the strike set-
tled, and he never asked. He testified that he concluded
that it was for an unlimited time, but that none of the
Company's supervision ever told him this. Robert
Madoch testified in the representation hearing that he
talked to all of those replacements hired after November
20, 1985, either in person or over the telephone. In some
instances the applicants did not speak English, and
Madoch used the services of an interpreter. During the
interviews he did not ask anyone how long in the future
they were available for work, and except for Andre
Durag, who said he wanted to work for Augusta a
couple of weeks on a trial basis before leaving his other
job, none of the interviewees said anything about how
long they could work. According to Madoch, he told
each one that "if they worked out and did their job, they
had a job." He stated that he hired them as "replace-
ments to keep the bakery operating." In his testimony in
the instant proceeding, neither Robert nor Larry
Madoch made any reference in his testimony to conver-
sations with replacements concerning the temporary or
permanent nature of their jobs in the event the strike
ended. However, Larry Madoch testified in the represen-
tation proceeding that both he and Leonard Madoch
talked to Tadeusz Golebiowski about a job after the
strike began. According to Lawrence'Madoch, Leonard
"brought him" to the bakery after Golebiowski had been
recommended by a friend. However, the record is silent
concerning Larry Madoch's account of the conversation
which occurred during the interview. Consequently, Go-
lebiowski's version, recited above, is credited.1fl
18 All parties to this proceeding spent a considerable amount of time
off the record conferring privately concerning which pages of the repre-
sentation case transcript should be included or excluded from A. Exh. 20,
which was then offered into evidence by stipulation in lieu of the testi-
mony of the respective witnesses in that proceeding in these areas It was
also stipulated that the administrative law judge might make credibility
findings based on that exhibit, and that the parties were free to offer fur-
ther evidence in the instant proceedings on those areas where they
deemed it necessary. Pursuant to this stipulation, Tr. 329, a segment of
Lawrence Madoch's testimony was offered. Tr. 429 to 434, 493 to 505,
and 587 to 595' of his testimony were also offered Tr. 329 is thus an iso-
lated and extremely fragmentary segment It describes how Golebtowski
Thus, there is a total absence of evidence in this
record to show that the replacements and the Respond-
ent actually had, or had any basis on which to have had,
a mutual understanding between them that they were
hired as permanent employees. Under these circum-
stances. Respondent's March 27 letters to alleged discri-
minatee-economic strikers stating that they had been per-
manently replaced are simply self-serving statements of
no evidentiary value. I find and conclude that the Re-
spondent has failed to prove that any of the replacements
were permanent. This conclusion is confirmed by the re-
vealing admission of Robert Madoch, referred to earlier,
that it was not until his March 25 phone conversation
with Arnold that they decided "whether they (the strik-
ers) go on a Laidlaw, call them back to work, or what we
do."
Therefore, I further find that the Respondent violated
Section 8(a)(1) and (3) of the Act by failing and refusing
to reinstate the alleged discriminatees as economic strik-
ers upon their March 24 offer to return to work.19
came to be interviewed by Respondent but stops short of providing any
account of the interview . Tr. 329 also contains a fragment of Lawrence
Madoh's testimony which states-
It is a permanent position . Because he inquired about the strikers, I
recall that. That the job would be ended when the strike was over.
He said we were filling permanent positions. We do not know what
is going to happen.
Q Do you recall anything more from the conversation at this
time?
A. No, I do not.
HEARING OFFICE GRINAGE. How long do you suppose the inter-
viewed [sic] lasted?
THE WITNEss: Twenty-twenty five minutes.
By Ms. Arnold-
Q. Why would it be so long for what you just told us?
A. I showed him around the plant, showed him what he would be
doing roughly . He asked some questions. He met a couple of people.
I would say under half an hour.
Q. Mr. E Data, do you recall, I'm sorry, he started before the
strike. Mr. T. Golebtowski, did you interview hnn?
The above reference to "permanent positions" is the only testimony in
this record or the representation case record which gives the slightest in-
dication that company officials, or anyone else for that matter, claimed
they had told anyone that the strike replacements were permanent. To
whom this alleged statement was made is not identified by the evidence
in this record. Moreover , the statement is qualified immediately thereafter
by the remark "We do not know what is going to happen " I therefore
find that this fragment of testimony is ambiguous and completely unreli-
able when compared to all of the other testimony clearly pointing to a
contrary conclusion.
19 It therefore is unnecessary for me to make findings and conclusions
with respect to the complex issue, litigated in full in this proceeding, of
whether or not certain of the replacements were otherwise temporary by
reason of the consequences flowing from the action taken by the United
States Immigration and Naturalization Service on February 12 under the
provisions of the Immigration and Nationality Act (June 22, 1952, Ch.
411,66 Stat 163, 8 U.S.C. § 1101 et seq as amended). Likewise, Respond-
ent's defense, based on an incident related to the I N S. inspection which
provided the basis for Case 13-CB-11291, now settled, is, under the cir-
cumstances, immaterial. Finally, my finding that the strike replacements
were at all times temporary , obviates the necessity of making findings
and conclusions with respect to the exercise of rights they otherwise had
under the Board's Laidlaw decision, since the record shows that, of the 4
nonstriking employees and replacements listed on J. Exh. 19, 17 have left
Respondent between March 24 and April 4, 1988. Cf. Aqua Chem, Inc.,
supra
AUGUSTA BAKERY CORP. 67
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent's president, Lawrence (Larry) Madoch,
and its secretary-treasurer and manager, Robert Madoch,
and Leonard Madoch are and have been at all times ma-
terial supervisors and agents of the Respondent within
the meaning of Section 2(11) and (13) of the Act, respec-
tively.
4. By discharging Miroslaw Browarski and Tadeusz
Dlugolecki, and by failing and refusing to reinstate Mir-
oslaw Browarski, Tadeusz Dlugolecki, Roman Czyszon,
Marian Dybas, Clifford Hagy, Ryszard Piotrowski, Stan-
islaw Siemiastko, Jan Zalewski, Matthew Majewski, Ivan
Oleksyn, and Chester Rapacki, immediately on their
March 24, 1986 offer to return to work, the Respondent
has, by each of said acts, discriminated, and is discrimi-
nating, in regard to the hire and tenure and terms and
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization in viola-
tion of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion (6) and (7) of the Act.
6. The Respondent has not violated the Act in any re-
spects other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having unlawfully failed and refused
to immediately reinstate the economic strikers named in
paragraph 5 of the section of this decision entitled Con-
clusions of Law, on their unconditional offer to return to
work, the Respondent will be ordered to offer them rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights and privileges
previously enjoyed. In addition, I shall further order that
the Respondent make them whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them. Backpay shall be computed in the
manner prescribed in F W Woolworth Co., 90 NLRB
289 (1980), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).20 The Respondent
will also be required to expunge from its files any refer-
ence to the discharges of Miroslaw Browarski and Ta-
deusz Dlugolecki and its espoused reasons for that
action; and to post an appropriate notice.
On these findings of fact and conclusions of lam, and
or the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Augusta Bakery Corporation, Chica-
go, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging and otherwise discriminating against
its employees in regard to the hire and tenure or terms
and conditions of employment, thereby discouraging
membership in a labor organization in violation of Sec-
tion 8(a)(l) and (3) and Section 2(6) and (7) of the Act.
(b) Failing and refusing to reinstate economic strikers
who have unconditionally offered to return to work, to
their former or substantially equivalent positions, where
those positions have not been filled with permanent re-
placements and absent any other legitimate and substan-
tial business justification for failing and refusing to do so.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the employees named below immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges
previousy enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the
remedy section of this decision.
Miroslaw Browarski Stanislaw Siemiastko
Tadeusz Dlugolecki Jan Zalewski
Roman Czyszon Matthew Majewski
Marian Dybas Ivan Oleksyn
Clifford Hagy Chester Rapacki
Ryszard Piotrowski
(b) Expunge from its records and files any and all ref-
erences to the unlawful discharges of Miroslaw
Browarski and Tadeusz Dlugolecki and any reasons
which has been espoused for that action, and notify these
employees, in writing, that this has been done, and that
evidence of these actions will not be used as a basis for
future personnel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
a° Under New Horizons, interest is computed on the "short term federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
21 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.
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its operations in Chicago, Illinois, copies of
the attached notice marked "Appendix."22 Copies of this
notice, on forms provided by the Regional Director for
Region 13, alter being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against our employees in regard to the hire and tenure or
terms or conditions of their employment in retaliation for
their having engaged in lawful activities in support of
Local Union No. 1, Bakery, Confectionery and Tobacco
Workers' International Union of America, AFL-CIO-
CLC or other concerted activities protected by the Act.
WE WILL NOT refuse to reinstate economic strikers
who offer to return to work before they have been per-
manently replaced.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer the employees named below immediate
and full reinstatement to their former jobs or, if those
jobs are no longer available, to substantially equivalent
jobs, without prejudice to their seniority or other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits they may have
suffered by reason of the discrimination against them,
with interest.
Miroslaw Browarski Stanislaw Siemiastko
Tadeusz Dlugolecki Jan Zalewski
Roman Czyszon Matthew Majewski
Marian Dybas Ivan Oleksyn
Clifford Hagy Chester Rapacki
Ryszard Piotrowski
WE WILL expunge from our files any references to the
discharges of Miroslaw Browarski and Tadeusz Dlugo-
lecki in March 1986, and WE WILL notify them, in writ-
ing, that this has been done and that evidence of the un-
lawful refusal to hire them will not be used as a basis for
future personnel actions against them.
AUGUSTA BAKERY CORPORATION