Axelson, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1987

285 N.L.R.B. 862 (N.L.R.B. 1987)

862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Axelson, Inc. and International Association of Ma-
chinists and Aerospace Workers, AFL-CIO and
Edmond R. Jones and William Pegues and
Douglas A. Wheelis. Cases 16-CA-8677, 16-
CA-8835, 16-CA-8877, 16-CA-8966, 16-CA-
9058, 16-CA-8754, 16-CA-8907, and 16-CA-
9276
18 September 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSON, BABSON, AND STEPHENS
On 8 July 1981 Administrative Law Judge Timo-
thy D. Nelson issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
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
conclusions2 only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.
Employees Q. Ray Williams, Jimmy G.
McGrede, and S. L. Curtis were former economic
strikers who had been permanently replaced by the
Respondent and were awaiting reinstatement pursu-
ant to the Respondent's reinstatement program.
The Respondent terminated the reinstatement
rights of all three under the program, effectively
discharging them, because of their alleged miscon-
i The General Counsel and the Respondent 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.
2 We adopt the judge's conclusions that the Respondent did not violate
Sec. 8(a)(3) and (1) by denying reinstatement to employees Arthur
Kingsby and Edmond Jones However, we do not endorse the judge's
implication that economic strikers are charged with a special duty of dili-
gence with regard to keeping the employer informed of unusual circum-
stances that might affect their receipt of notices of recall and job bid op-
portunities, and with regard to responding to such notices. Rather we
find that in the circumstances the Respondent's notice and opportunity tb
respond were reasonable concerning each employee, neither Kingsby nor
Jones offered acceptable reasons for failing to respond in a timely
manner
In finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by refusing to offer reinstatement to employee Donald Sapp, the judge
evaluated the evidence in light of several Board cases dealing with the
question of an employee's "abandonment" of his struck job. The judge's
analysis resulted in his formulation of a "Yule" providing, inter alia, that a
striker may retain his employee status even if he accepts a regular and
substantially equivalent position elsewhere. In the absence of exceptions,
we find it unnecessary to consider the judge's analysis of the issue
We agree with the judge that the Respondent violated Sec 8(a)(3) and
(1) by refusing to reinstate six employees because they did not pass a
physical exam that had been discriminatorily imposed as a requirement
for reinstatement. However, because the judge found that the Respondent
lacked legitimate and substantial business justifications for imposing this
requirement, we find it unnecessary to rely on his finding that the Re-
spondent's conduct was inherently destructive of important employee
rights under the Act
duct during the strike. The judge found that the
Respondent's action violated, Section .8(a)(3) and (1)
concerning all three employees because, the Re-
spondent did not establish its "honest belief ' that
they had engaged in strike misconduct justifying
discharge.3 We find, contrary to the judge, that the
Respondent satisfied its "honest belief' evidentiary
burden with respect to employee Williams. With
the Respondent's honest belief claim unrebutted,
we conclude that the Respondent did not violate
Section 8(a)(3) and (1) by terminating Williams' re-
instatement rights. Although, we agree with the
judge that the Respondent failed to meet its honest
belief burden with respect to employees McGrede
and Curtis and that the termination of their rein-
statement rights violated the Act, we find never-
theless that neither McGrede nor Curtis is entitled
to reinstatement or full backpay ^ rights in light of
the proven misconduct in which they engaged.
Following the expiration of the collective-bar-
gaining agreement between the Respondent and the
Union on 18 February 1979,4 all the Respondent's
320 bargaining unit employees initiated an econom-
ic strike that lasted until 31 May. During the strike
the Respondent continued to operate by means of
replacements and the return of a small number of
employees who had abandoned the strike. Violent
activity and threats of violence were not rare
during the strike, especially after the Respondent
began hiring the replacements and putting back to
work those employees who had renounced the
strike. On 14 March the local district court issued a
temporary restraining order enjoining the Union,
its agents , and representatives from engaging in
various disruptive acts, including mass picketing
and threatening, harassing, or assaulting the Re-
spondent's employees or members of their families.
Violent incidents nevertheless continued for the du-
ration of the strike. The Respondent recorded re-
ports of misconduct both on and away from the
picket line involving, individual striking employees.
On 31 May the striking employees, through the
Union, offered unconditionally to return to work.
At that time all the strikers had been permanently
replaced. The Respondent instituted a reinstate-
ment program, recalling the former strikers as posi-
tions became available .5 At a decertification elec-
tion held on 13 September; the Respondent chal-
lenged the ballots of several of the former strikers
awaiting reinstatement, using its records of strike
misconduct as the basis for the challenges., Wil-
3 This is part of the test for determining the lawfulness of discharges
for strike misconduct. See General Telephone Co. of Michigan, 251 NLRB
737 (1980), and discussion infra.
4 All subsequent dates refer to the year 1979 unless otherwise specified.
5 The validity of the reinstatement program is not at issue in this case.
285 NLRB No. 118
AXELSON, INC. 863
hams, McGrede, and Curtis were among those
challenged. Subsequent to the election, the Re-
spondent terminated the reinstatement rights of
these three, among others, because of their alleged
strike misconduct.6
McGrede was terminated) for various alleged in-
stances of strike misconduct, including a barely
veiled threat to a nonstriking employee. McGrede
himself testified, first on the inquiry of the General
Counsel and then in greater detail during the Re-
spondent's cross-examination, that near the end of
the strike he confronted nonstriker Bobby Huey Jr.
near the Respondent's plant. McGrede did not
know Huey well but he did know that Huey had
initially joined the strike and had subsequently re-
turned to work. Following a short conversation
McGrede told Huey to "be careful on the way to
Kilgore." When Huey asked why, McGrede re-
sponded, "Because I would hate for anything to
happen to you." At that point they parted. Huey
filed a complaint with the local police based on the
incident. Pursuant to an arrest warrant McGrede
appeared and was required to post a property
bond.
McGrede was also allegedly involved in another
instance of misconduct with fellow strikers S. L.
Curtis and Kevin Adair.7 The judge resolved the
conflicting testimony with respect to this issue by
crediting the testimony of employee Doyal Stevens
over that of McGrede. According to Stevens, the
incident took place on a night in mid-April within
a few weeks after he quit the strike and returned to
work. Stevens had finished his shift at the Re-
spondent's plant about 1 a.m. and was driving
home when he noticed he was being followed by a
brown pickup truck. When Stevens increased his
speed or slowed down, the pickup kept pace with
his vehicle. It neither passed nor turned off. When
Stevens arrived at his house, the pickup went far-
ther down the road, turned around, and slowly
passed his home. It then proceeded to a gas station
in view of the house and stopped, apparently wait-
ing, with its parking lights on. Stevens summoned
the local police. When a police car arrived and
Stevens got in, the pickup truck pulled out, of the
gas station and headed away. The police stopped
the truck and Stevens identified McGrede, Curtis,
and Adair.
Q. Ray Williams was accused of brandishing a
revolver and threatening to kill two striker replace-
ments. According to the credited testimony of em-
6 Williams and McGrede received written notices of their terminations
in October. Although Curtis did not receive such a notice, the Respond-
ent maintains that he too was ineligible for reinstatement because of his
strike misconduct
7 No Issues of discharge or denial of reinstatement concerning Kevin
Adair are before us.
ployee James Baugher and the corroborating testi-
mony of employee Russ Roebuck, the incident oc-
curred as follows. At some point in April, about a
month after Baugher and Roebuck were hired, the
two were followed from the plant after finishing
their shift by a dune buggy occupied by two strik-
ers. A chase ensued at speeds up to 85 miles per
hour. At different points during the chase beer bot-
tles thrown from the dune buggy struck Roebuck's
car. When Roebuck was finally forced to stop be-
cause of a red light, the dune buggy pulled along-
side. The striker in the passenger seat pulled a re-
volver from the rear of the dune buggy, displayed
it for Roebuck and Baugher to see, and laid it in
his lap. He then told the two replacements that if
they went back to work, "[w]e will kill you." The
dune buggy turned around and drove off.
On the following day Roebuck quit his job with
the Respondent because of the threat. Baugher,
however, continued to work, and he filed a report
of the incident with the Respondent. Not knowing
the names of the strikers at the time, he was
brought out to' the picket line by an employee on
the Respondent's security staff, Huffman, where
Baugher identified the striker who held the gun
and threatened to kill them. ' Huffman informed
Baugher the striker's name was Williams.
The judge concluded that the Respondent's ac-
tions against Williams, McGrede, and Curtis violat-
ed Section 8(a)(3) and (1). With respect to all three,
he found that the Respondent had not met its
burden of demonstrating that it held an "honest
belief" that they had engaged in strike misconduct,
pursuant to the standard set down in Rubin Bros.
Footwear, 99 NLRB 610 (1952), and on which the
Board elaborated in General Telephone Co., 251
NLRB 737 (1980). Concerning Williams, the judge
found that he had not been sufficiently identified as
the person sitting in the passenger seat of the dune
buggy since the Respondent did not show that the
security employee who supplied Baugher with Wil-
liams' name was knowledgeable regarding Wil-
liams' identity. The judge further found that the
Respondent did not demonstrate that the identifica-
tion of Williams as the culprit was "communicated
to some responsible agent of Respondent and was
relied on." For the reasons given below, we dis-
agree with the judge's evaluation of the Respond-
ent's honest belief burden in connection with Wil-
liams and find that the Respondent acted in good
faith in discharging him.
As the judge noted, Rubin Bros. is the seminal
case elucidating the respective burdens of the Gen-
eral Counsel and the Respondent when strikers are
denied reinstatement because of strike misconduct.
Under Rubin Bros., once the General Counsel has
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
established that strikers were- denied -reinstatement
for conduct related to the strike, the burden of
going forward shifts to the respondent to demon-
strate an honest belief that the strikers had engaged
in strike misconduct. Rubin Bros., 99 NLRB at 611.
If the respondent meets its honest belief responsibil-
ity, the burden of going forward shifts back to the
General Counsel to prove that the strikers did not
in fact engage in the alleged misconduct. In, delin-
eating this procedure the Board noted that it
merely reflects the General Counsel's obligation to
carry the ultimate burden of proving that illegal
discrimination has occurred.
We emphasize that Rubin Bros. indicates that the
respondent's honest belief burden does not extend
to proving that the strikers did in fact engage in
the misconduct.. Once an honest belief is estab-
lished, it is for the General Counsel to demonstrate
the 'strikers' innocence and thus establish that the
respondent's conduct is illegal. To the extent that
there is a lack of evidence on this issue, it must be
resolved in favor of the employer, because the
General Counsel has the burden of proof on this
question. See Schrieber Mfg. v. NLRB, 725 F.2d
413 (6th Cir. 1984). We also note that the- Rubin
Bros. procedure has been implicitly endorsed by
the Supreme Court. See NLRB v. Burnup &Sims,
379 U.S. 21 at fn. 3 (1984).
In General Telephone Co., 251 NLRB 737 (1980),
the Board discussed in detail the employer's re-
sponsibility in meeting its honest belief burden: ,
[T]he burden of establishing an "honest belief'
of misconduct requires more than the employ-
er's mere assertion that an "honest belief" of
such misconduct was the motivating force
behind the meting out of discipline. Meeting
the burden also requires more than a ' general
statement about the guidelines used in estab-
lishing the alleged "honest belief." Rather, it
requires ' some specificity in the record, linking
particular employees to particular allegations of
misconduct. [Id. at 739, emphasis added.] '
The Board explained that specificity is required in
order to afford the General Counsel a fair and rea-
sonable opportunity to prove that an employee did
not in fact engage in the alleged misconduct. Id. at
739-740.
We find that the judge demanded' more of the
Respondent to establish its honest belief than is re-
quired under Rubin Bros. and General -Telephone in
connection with Williams. The judge' s conclusion
that the identification of Williams was unsatisfac-
tory implicitly required that the Respondent prove
that Williams in fact committed the alleged miscon-
duct. In effect, the judge required a concrete, con-
clusive linkage between Williams and the dune
buggy incident. This is far more than "some speci-
ficity"; plainly, it is more than is necessary to dem-
onstrate the Respondent's honest belief. -
As the record stands, employee Baugher testified
that he witnessed the incident, reported it to, the
Respondent, identified Williams on the picket lines
as a participant, and was supplied with Williams'
name by an employee on the Respondent's security
staff. That the identification was ' passed on to a
"responsible agent of Respondent and relied on" is
reasonably inferrable from the circumstances. The
Respondent's evidence is quite sufficiently specific
to ' link Williams to the incident and fairly shift the
burden of going forward to the General Counsel. It
was the General Counsel's responsibility to prove
that Williams did not in fact, engage in the alleged
misconduct. This the General Counsel might have
done quite simply by bringing back Williams, who
had earlier in the hearing generally denied involve-
ment in, any misconduct, for identification by
Baugher at the hearing. The General Counsel did
not do this, nor did he make any other attempt to
rebut Baugher's testimony. As we noted above, to
the degree that there is a, lack of evidence on the
misconduct once an honest belief has been estab-
lished, it is resolved in the Respondent's favor, be-
cause the burden of proof here falls on the General
Counsel.
Having found that the Respondent established its
honest belief that Williams' misconduct occurred,
we, further find that the General Counsel did not
meet the burden of proving, that this misconduct
did not in fact occur. Therefore, for the purpose of
further analysis, we must assume that Williams en-
gaged in the misconduct attributed to him. Furr's
Cafeterias, 251 NLRB 879 (1980). In Clear Pine
Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d
148 (9th Cir. 1985), we stated that.' an employer
may legitimately deny reinstatement to strikers
whose strike misconduct under the circumstances
reasonably tends to coerce or intimidate employees
in the exercise of their rights protected under the
Act. 'Id. at 1046. Section 7 as clearly protects the
right of an employee to refrain from-taking part in
a strike as it does the right of an employee to par-
ticipate peacefully in one. Strikers are not protect-
ed when they engage' in conduct that tends to
coerce or intimidate nonstrikers in the exercise of
the right not to strike, and they run the consequent
risk of being lawfully denied reinstatement."
8 It is not contended that provocation is a defense to the alleged strike
misconduct in this case. Therefore, we find it unnecessary to resolve the
issue left open in Clear Pine Mouldings, above, whether provocation can
ever be a defense.
AXELSON, INC. 865
Striker Williams was a participant in the high-
speed car chase of Roebuck and (Baugher, both
striker replacements. During the chase, beer bottles
were thrown that struck Roebuck's car. At the end
of the chase, Williams brandished a revolver for
both of them to see. He then told them they would
be killed if they continued to work for the Re-
spondent . The experience was intimidating enough
for Roebuck to quit his job. We need discuss this
incident no further to find that Williams' conduct
reasonably-tended to coerce Roebuck and Baugher
in the exercise of their right - not to join in the
strike. Accordingly, we find that Williams was dis-
qualified from the protection of the Act because of
his coercive and intimidating conduct and conclude
that the Respondent was justified in discharging
him. We shall therefore dismiss the allegations
against the Respondent of violations of Section
S(a)(3) and ( 1) as they relate to Williams.9
With regard to McGrede and Curtis, we agree
with the judge's finding that the Respondent failed
to satisfy its honest belief burden because it did not
demonstrate that it knew about and relied specifi-
cally on McGrede's "Kilgore" threat and the
Doyle Stevens incident in terminating their rein-
statement rights. We also agree with the judge's
finding that Respondent did not learn of these inci-
dents until testimony concerning them was intro-
duced at the hearing on 29 October 1980.10 Hence,
9 We adopt the judge's conclusions that strikers Clarence Dorsey and
William Pegues were lawfully discharged because of their strike miscon-
duct. However, in reaching our decision we have relied solely on the
Clear Pine standard . Dorsey's threats against nonstriking employee Paul
Lewis reasonably tended to coerce and intimidate Lewis in the exercise
of his right not to participate in the strike We draw the same conclusion
with regard to Pegues, who terrorized striker-replacement Elizabeth
Shankle and her two children in a high-speed car chase and by his subse-
quent threat that he would "get" her. The judge inadvertently failed to
include the names of Dorsey and Pegues on the list of individuals who
were not unlawfully treated by the Respondent We will correct this
error by adding their names , as well as the name of Q. Ray Williams, to
the list.
We affirm the judge's credibility finding that striker William Bryant's
4-year-old grandson, and not Bryant himself, pointed a toy gun at a
group of picketing employees and guards. Thus we agree that the Gener-
al Counsel proved that Bryant did not in fact engage in misconduct and
that the Respondent's discharge of him was unjustified. However, we
also agree with the judge that the Respondent established an honest belief
that Bryant was guilty of misconduct Accordingly we conclude that
Bryant's discharge violated Sec 8 (a)(l), we find it unnecessary to analyze
the circumstances under Sec . 8(a)(3). See, e.g., NLRB v Burnup & Sims,
379 US 21 (1964); Coca-Cola Co of Memphis, 269 NLRB 1101 fn 1
(1984) Also, we disclaim any reliance on the judge's hypothetical conclu-
sion that even if Bryant himself had pointed a gun at the picketing em-
ployees and guards, the Respondent's discharge of him would not have
been justified.
to If there had been evidence of the Respondent's knowledge of and
reliance on these incidents in acting against McGrede and Curtis, it
would have been in the Respondent's possession and, thus, the Respond-
ent's burden to produce it. Accordingly, in the absence of a showing by
the Respondent , it was reasonable for the judge to infer that it had no
such knowledge prior to the hearing In addition, we note that the Re-
spondent did not except to this finding
we adopt the judge's finding that the Respondent's
actions against McGrede and Curtis violated Sec-
tion 8(a)(3) and (1). However, as we indicated
above, we conclude that neither employee is enti-
tled to reinstatement or full backpay in light of the
proven strike misconduct in which they engaged.
The threatening, intimidating character of
McGrede's "Kilgore" statement to nonstriker Huey
is apparent . It occurred near the end of a strike
marked by violence and threats. McGrede uttered
it to an employee he did not know particularly
well. He did know, however, that Huey had been a
striker originally, but had crossed the picket line
and returned to work. The remark clearly suggest-
ed the threat of bodily harm. Huey felt threatened
enough to report the incident to the police. We
find that McGrede's statement reasonably tended
to coerce Huey in the exercise of his right to re-
frain from striking.
Similarly, the conduct of McGrede and fellow
striker Curtis in following employee Stevens and
remaining in the vicinity of his home is another in-
stance of intimidation directed against a nonstriker.
Stevens, who had withdrawn from the strike and
returned to work, was followed late at night in a
manner meant to create a sense of apprehension.
When Stevens arrived home, McGrede, Curtis, and
the third striker accompanying them cruised slowly
past his house, then parked close enough to see and
be seen . It was not until the police, summoned by
Stevens, rousted them that they left the area. We
find that this conduct of McGrede and Curtis rea-
sonably tended to coerce Stevens in the exercise of
his right not to participate in the strike.
It is quite clear that the Respondent would have
been, justified in terminating McGrede's and Curtis'
reinstatement rights if it had known about and
relied on these incidents of misconduct. In Clear
Pine Mouldings, above, the Board noted that when,
as here, strike misconduct 'reasonably tends to
coerce or intimidate employees in the exercise of
their Section 7 rights, the Board will tailor its rem-
edies in order to discourage such misconduct by
denying reinstatement and backpay to those who
engage in it. 268 NLRB at 1046-1047. Pursuant to
this policy, we will not order the Respondent to
reinstate McGrede and Curtis. Further, with re-
spect to backpay, the Board has, in some cases,
denied all backpay rights to discriminatees who
have participated in strike misconduct, without
regard to whether the employer had relied on such
misconduct in discharging them. See Western-Pacif-
ic Construction, 272 NLRB 1393 (1984), enfd. sub
nom. Teamsters Local 162; v. NLRB, 782 F.2d 839
(9th Cir. 1986); Blair Process Co., 199 NLRB 194,
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fn. 3, 196-197 (1972) (misconduct of employee For-
shey).
We have affirmed the judge's finding that the
Respondent's termination of McGrede and Curtis
was discriminatory and violated Section 8(a)(3) and
(1). In determining the appropriate remedy, we
take into account our finding that McGrede and
Curtis engaged in strike misconduct. Thus the Re-
spondent could have terminated the reinstatement
rights of McGrede and Curtis or discharged them
from their jobs if they already had been recalled
pursuant to the Respondent's reinstatement pro-
gram.
However, with respect to backpay, we will bal-
ance our responsibility to remedy unfair labor prac-
tices and our policy of discouraging strike miscon-
duct. Accordingly, backpay will not be automati-
cally barred for the misconduct, but we will limit
backpay rights by cutting them off at the time the
employer acquired knowledge of the misconduct if
it demonstrates that the misconduct meets the Clear
Pine standard and that it is not conduct of ^a sort
that it has tolerated in the past.11
The Board has used a similar remedial approach
in a case involving employee-misconduct not relat-
ed to a strike. Cf. East Island Swiss Products, 220
NLRB 175 (1975). We believe that it was a reason-
able remedy in that case and that it is no less rea-
sonable here.- To the extent that Western Pacific and
Blair, above, and other cases are inconsistent with
the remedy here, we overrule them.
In applying the foregoing principles to this case,
we find, as explained above, that the misconduct
meets the Clear Pine standard, and we see no evi-
dence that the Respondent would have tolerated
this kind of conduct had it known about it. We also
have affirmed the judge's finding that the Respond-
ent first acquired knowledge of this misconduct at
the hearing (see fn. 10 supra). The remaining issue
for compliance is whether McGrede or Curtis
would have been recalled pursuant to the reinstate-
ii We emphasize, however, that the steps in the analysis that have led
us to limit the backpay rights of McGrede and Curtis would not neces-
sarily be identical to those in cases involving a respondent employer's
after-acquired knowledge of misconduct that does not involve acts that, as
here, were calculated to intimidate other employees who were exercising
their own Sec. 7 rights to refrain from strike activity In cases involving
other types of employee misconduct, we might well impose an even
heavier burden on a respondent employer who contends that the tradi-
tional remedies for an unlawful discharge-reinstatement and full back-
pay rights-are unwarranted.
Contrary to our dissenting colleague, we do not perceive our order
granting limited backpay rights as a "misuse" of our remedial authority
or as a potential "windfall" for wrongdoers Rather, in circumstances in
which both employers and employees have engaged in misconduct con-
trary to the policies of the Act, we seek a remedy that will discourage
both types of misconduct We would be granting an undue windfall if we
either granted reinstatement and full backpay to the employees guilty of
the strike misconduct or if we relieved the Respondent of all backpay li-
ability and required it only to cease and desist the unlawful conduct and
post a notice.
ment program prior to the time- the Respondent ac-
quired knowledge of the strike misconduct. That
determination will reveal if, or how much, backpay
is actually owed to McGrede and Curtis.
AMENDED' CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 4.
"4. By discharging or denying reinstatement to
the employees listed below for their strike-related
activities, Respondent has engaged in, and is engag-
ing in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) of the
Act. The employees thus discriminated against are:
William J. Bryant
Jimmy G. McGrede
S. L. Curtis"
2. Substitute the following for. Conclusion of
Law 6.
"6. The Respondent did not violate the Act-
either as alleged in the complaint or under any
other set of circumstances that were fully and
fairly litigated-by its treatment of the individuals
listed below:
"Clarence Dorsey
Jackie Orms
William Pegues
Q. Ray Williams
D. R. Daniel
J. D. Burkett
Bennie Jackson, Jr.
Edmond Jones, II"
Eugene Ashley
Dan Watts
Floyd Stevenson Snider
Ed Perry
Betty Phillips
Thurman O. Haywood
Arthur Kingsby
AMENDED REMEDY
We affirm the judge's remedy with the qualifica-
tion that all references to Q. Ray Williams are to
be disregarded, and with the further qualification
that Jimmy G. McGrede and S. L. Curtis are to be
made whole for any losses due to the Respondent's
discrimination against them only up to 29 October
1980, the time when the Respondent acquired
knowledge of their strike misconduct constituting a
lawful basis for discharge, as explained above in
our decision. 12
1S In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S.C § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
AXELSON,_'INC.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders, that the Re-
spondent, Axelson, Inc., Longview, Texas, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph l(b).
"(b) Discharging employees for striking or for
engaging in strike-related conduct unless such em-
ployees engaged in misconduct which under the
circumstances may reasonably tend to coerce or in-
timidate employees in the exercise of their rights
protected under the Act."
2. Insert the following for paragraphs 2(a) and
(b) and , reletter the subsequent paragraphs accord-
ingly.
"(a) Offer to the following named employees im-
mediate, full , and unconditional reinstatement to
their appropriate positions of employment or, if
those positions no longer exist , to substantially
equivalent ones, without prejudice to their seniori-
ty and other rights and privileges and, if necessary,
discharge employees hired 'since the discrimination
against them in order to make room for them; and
make them whole, with interest, for any losses of
wages or benefits that they may have suffered as a
consequence of the discrimination against them-all
in a manner consistent with the discussion con-
tained in the remedy section as amended by the
Board:
"C. C. McKee Donald L. Sapp
Otis D. Nichols William J. Bryant
J. E. Allen Donald E. Brightwell
Robert Washington Douglas Wheelis
R. D. McGrede Robert H. Brenner
John E. Kemp Bobby J. Ballard
"(b) Make whole Jimmy G. McGrede and S. L.
Curtis for any lost earnings from the date of their
respective unlawful discharges through 29 October
1980, the date the Respondent first learned of their
strike misconduct constituting a lawful basis for
discharge , the computation to be made according
to the manner set forth in the remedy section."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, I would not allow
any backpay for Jimmy G. McGrede and S. L.
,Curtis . My colleagues find , and I agree, that the
Respondent violated Section 8(a)(3) by terminating
the reinstatement rights of economic strikers
McGrede and Curtis. They further find, and I
again agree, that these employees engaged in strike
misconduct that bars their reinstatement. Our point
867
of disagreement lies in my colleagues ' decision to
grant backpay to these employees until the time the
Respondent acquired knowledge of their miscon-
duct . This decision is ill-advised and misuses the
Board 's remedial power.
The central rationale underlying my colleagues'
decision appears to be the need to balance the
Board's responsibility to remedy unfair labor prac-
tices with the policy of discouraging strike miscon-
duct. They reach this balance by barring reinstate-
ment but giving a little backpay. Although they
emphasize that this analysis is applicable only to
cases involving strike and not other forms of em-
ployee misconduct, they choose the remedial ap-
proach of a case involving misconduct not related
to a strike ' and reject the remedial approach of a
case which involves strike misconduct .2 Their rea-
soning is not persuasive.
More is at issue in this case than the Board's re-
sponsibility to remedy unfair labor practices and to
discourage strike misconduct . There is also the
question of the effect of the Board's remedial
power to grant backpay. Under the majority view,
that power is used to give payment to employees
who indisputably have engaged in misconduct that
warranted immediate discharge and termination of
further paychecks at the time it occurred. Yet be-
cause the Respondent did not learn of the miscon-
duct until a later date, the employees receive
money from this Board to which they otherwise
would not be entitled . In the language of Western
Pacific, supra, backpay in these circumstances con-
stitutes a windfall to a serious wrongdoer.
I fail to see how such a windfall in any way ad-
vances the Board's responsibility to remedy unfair
labor practices . The denial of reinstatement and all
backpay does not leave the Respondent 's unlawful
conduct unremedied. The Respondent is ordered to
cease and desist from such conduct and to post a
notice to that effect. This traditional remedy is the
sole one, given in otherinstances of unlawful con-
duct not involving discipline resulting in loss of
pay. I see no reason why it is not sufficient in - a
case in which unlawfully discharged employees
have engaged in -misconduct barring their reinstate-
ment.
Accordingly, I would use the Western Pacific,
supra, approach for all types of employee miscon-
duct and would deny reinstatement and all backpay
when an employee who has been unlawfully dis-
charged has committed misconduct that plainly
would have led to immediate discharge . In such
' East Island Swiss Products, 220 NLRB 175 (1975)
a Western Pacific Construction , 272 NLRB 1393 ( 1984), enfd sub nom
Teamsters Local 162 e NLRB, 782 F.2d 839 (9th Cir 1986)
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cases I would require only a cease-and-desist order
and the posting of a notice.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to reinstate former strikers
who have unconditionally offered to return to
work simply because they may have obtained other
jobs during the strike and when they have not, in
fact, abandoned their interest in continued employ-
ment with us.
WE WILL NOT discharge or discipline employees
for their strike-related activities unless such em-
ployees engage in misconduct which under the cir-
cumstances may reasonably tend to -coerce or in-
timidate other employees in the exercise of their
rights protected under the Act.
WE WILL NOT require former strikers to submit
to and pass physical examinations as a condition to
reinstating them to active employment as jobs
become available for them.
WE WILL NOT in any like or related manner
interfere with, restrain, coerce, or discriminate
against employees because they have engag in a -
lawful economic strike or have engaged other
activities protected by the Act.
WE WILL offer to the employees listed below,
immediate, full, and unconditional reinstatement to
their appropriate positions of employment, without
prejudice to their seniority or other rights and
privileges; and WE WILL make them whole, with
interest, for any wages or benefits they have lost as
a consequence of our discrimination against them:
C. C. McKee Donald L. Sapp
Otis D. Nichols William J. Bryant
J. E. Allen Donald E. Brightwell
Robert Washington Douglas Wheelis
R. D. McGrede Robert H. Brenner
John E. Kemp Bobby J. Ballard
WE WILL make Jimmy G. McGrede and S. L.
Curtis whole for any lost earnings due to our un-
lawful discrimination against them for a limited
period described in the Order.
AXELSON, INC.
J. O. Dodson, Esq., for the General Counsel.
Frank B. Wolfe III and Richard L. Barnes, Esgs. (Kothe,
Nichols & Wolfe, Ina), of Tulsa, Oklahoma, for the Re-
spondent.
J. D. Crow, of Dallas, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
1. INTRODUCTION
TIMOTHY D . NELSON, Administrative Law Judge. I
heard these consolidated cases involving alleged unfair
labor practices by Axelson, Inc., (Respondent) in three
separate trial sessions comprising 11 days of trial be-
tween September 15 and December 4, 1980 .1 Trial pro-
ceedings were conducted at various hearing sites in Mar-
shall and Longview , Texas.
The cases involve Respondent 's allegedly discriminato-
ry treatment of employees who were engaged in an eco-
nomic strike against Respondent called by International
Association of Machinists and Aerospace Workers,
AFL-CIO (the Union) between February and ^ May
1979.2
In the aftermath of the strike and continuing through
July 1980 , the Union and certain individual employees
filed numerous unfair labor practice , charges against Re-
spondent alleging some form of discrimination against
former strikers . These charges were investigated by the
Regional Director for Region 16 of the ,National Labor
Relations Board (the Board), who, issued a series of com-
plaints against Respondent . At various' stages, preexisting
complaints were consolidated with new and related com-
plaints . The ultimate comprehensive consolidated com-
plaints issued on August 28 , 1980 . That complaint was
itself subsequently , amended at trial on motion of the
General Counsel , either to supplement ' or modify allega-
tions pertaining to individual employees who already fig-
ured in the complaint , or to delete certain allegations as
to which there was no prima facie evidence . In addition,
successful settlement negotiations among the parties re-
sulted in my granting of numerous requests for the with-
1 The trial was scheduled to commence on September 15 and I met
with the parties on that date for pretrial discussions At the joint request
of the parties, I did not open the record until September 16 in order to
afford time to the parties to try to reach settlements in many of the indi-
vidual cases originally noted for trial, and to review extensive records
under subpoena and to reach stipulations Additional time for these pur-
poses was likewise allowed after the record opened on, September 16.
2' Hereafter , all date references are to 1979 unless otherwise specified.
2 This was contained in the fifth order consolidating cases, consolidat-
ed complaint and notice of hearing (G C Exb. l(uuu)), hereafter called
the complaint or the ultimate complaint, for shorthand purposes.
AXELSON, INC. 869
drawal and dismissal of specific charges and/or individ-
ual situations from the overall case.4
II. THE ISSUES
Although the scope of the complaint has been substan-
tially narrowed by the settlement and other develop-
ments indicated above, there remains a congeries of
issues relating to Respondent 's poststrike treatment of 29
individual employees, 26 of whom are covered by para-
graph 10 of the complaint . In all outstanding cases, the
General Counsel' maintains that the complained-of treat-
ment constituted a form of impermissible discrimination
by Respondent because the employees participated in the
strike, thus violating Section 8(a)(3) and ( 1) of the Na-
tional Labor Relations Act (the Act).
The complaint did a singularly poor job of providing
adequate notice of the real conduct by Respondent that
was being challenged and, therefore, of the General
Counsel's theory of violation, as is further discussed
below, Paragraph 10 of the ultimate complaint, which
the General Counsel conceded covered "90 per cent" of
his- case, is couched in "discriminatory failure to recall"
language, thus suggesting that the issue in the case of
each of the persons named therein is whether or not Re-
spondent had a job vacancy for, each such named indi-
vidual about the date set forth opposite his name;5 and, if
so, whether Respondent had legitimate and substantial
business reasons for denying recall to that individual,
notwithstanding the vacancy.
It became evident during litigation, however, that
most of the individual cases involved other questions
than might be inferred from the language of complaint
paragraph 10. I indicate the range of these other ques-
tions below.
Thus, as is set forth in greater detail within my find-
ings, infra, there are several features common to groups
of employees within the overall class of alleged discri-
minatees, even though there are many individual nuances
to a discussion of even those common features . Several
employees were admittedly denied reinstatement after
4 More specifically, I granted requests for withdrawal and dismissal of
allegations contained in the ultimate complaint , as follows : The entirety
of Case 16-CA-8735 involving individual Charging Party Billy J Chism,
resulting in the deletion of pars. 20 and 21 of the complaint; the entirety
of Case 16-CA-8765 involving individual Charging Party Gary L. Drew,
resulting in the deletion of pars 12 through 19 of the complaint, and all
allegations pertaining to Marion E Williams, resulting in the deletion of
par 23 of the complaint, and that portion of par . 24 pertaining to said
Williams : Finally, par . 10 of the complaint, which alleged originally that
39 named employees had been discriminated against with respect to post-
strike reinstatement, was amended, pursuant to withdrawal requests, to
delete the names of 13 employees These employees , whose situations are
no longer before me, are-
Billy D. Skinner Arnulfo R. Aquirre
S. R Lanier E. C Fletcher
Wadell B. Thompson Joseph L. Hamilton, Jr
Claude L. Porter Billy M. Northcutt
Danny C. Reaves Albert P. Garcia
John T . McDonald Jimmy Rowlett
Billy J McElroy
This was especially so in the cases of named individuals who were
allegedly bypassed'on dates well after the strike was called off (see discu-
sion below).
the strike ended because Respondent claims that they
forfeited their right to reinstatement by having engaged
in unprotected misconduct during the strike. Several em-
ployees were admittedly denied reinstatement to vacant
jobs because Respondent believed that they had accepted
permanent employment elsewhere and thereby had aban-
doned rights to reinstatement (although Respondent later
withdrew that position regarding all but one of them).
Several employees were denied reinstatement after they
failed to pass medical examinations, which were imposed
by Respondent as a condition to their reinstatement.
Concerning this latter feature, in some cases, Respondent
initially denied reinstatement to some employees in those
groups for having accepted permanent employment else-
where, but later abandoned these defenses and offered
reinstatement to some employees in those groups subject
to the medical examination condition. Accordingly, some
of the employees are alleged, in effect, to have suffered
compounded, multiple-stage discrimination with respect
to reinstatement.
There is a group of unreinstated strikers whose indi-
vidual situations have little in common, and about whom
the General Counsel makes a variety of claims detailed
elsewhere below-ranging from contentions that an un-
reasonably short deadline was imposed on acceptance of
a reinstatement offer to claims that, contrary to a general
policy followed by Respondent of using seniority in
recall, a more senior employee was denied reinstatement
in preference to a more junior employee.
The foregoing summary is intended to provide no
more than a suggestion of the range of issues raised by
the complaint herein. Respondent's defenses to the indi-
vidual claims are too varied to be susceptible of summa-
ry characterization and they are detailed in the case-by-
case findings and discussions below. Suffice it to state
here that Respondent denies all claims of wrongdoing.
Respondent also affirmatively raises a 10(b) limitation de-
fense regarding certain individuals, in addition to deny-
ing any substantive wrongdoing.
It may be useful at this juncture to address, as well,
what issues I do not believe are properly before me for
resolution. These comments are triggered by the General
Counsel's attempts, after the closing of the record, and
through the device of a brief, to suggest that Respondent
discriminatorily bypassed or otherwise discriminated
against certain employees at some point other than about
the dates appearing in the complaint opposite their re-
spective names. For reasons more fully set forth below,
it is my judgment that the General Counsel's failure and
refusal to accede to repeated and reasonable requests by
Respondent and by me for clarification and/or amend-
ments to his complaint, all the while averring that his
complaint was "clear, concise, and adequate for notice
purposes," estops him from such belated efforts to
expand the scope of the complaint from that which he
formally limited himself to.
The unique background that estops the General Coun-
sel from such shifts in position is as follows:
Paragraph 10 of the complaint alleged initially that 39
individually named former strikers were denied "recall"
by Respondent "Since on or about the dates set forth
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
beside their respective names, and continuing to date.
." (Emphasis added.)
The dates selected by the General Counsel as the
points at which named employees were wrongfully
denied recall vary, name-by-name, from May 31, 1979, to
as late as April 1980. Especially regarding those employ-
ees who were allegedly denied recall on dates other than
the date that the strike was called off (i.e., May 31),
there is an implicit concession by the General Counsel
that Respondent had no obligation to reinstate such em-
ployees at any earlier date. These allegations, therefore,
clearly relate to a bypass theory of discrimination.
The language in paragraph 10 raises this immediate
question: What, exactly, does the General Counsel mean
by the ambiguous phrase, "and continuting to date"
(which qualifies the allegation that, since a certain date,
Respondent has refused to recall a certain employee)?
The more obvious interpretation was that the General
Counsel was merely expressing a claim that Respondent
has persisted since the identified date in failing to recall a
former striker to an appropriate job vacancy that first
arose on the identified date.6 A less obvious possibility
was that the General Counsel was trying to leave room
for litigating a contention that some other independent
or discrete act of discriminatory failure to recall oc-
curred at some point after the identified date, when some
other job vacancy may have arisen.
Respondent had similar difficulties in interpreting ex-
actly what the complaint intended to call into question.
Because of this, on July 7, 1980, Respondent filed a
motion to make more definite and certain about the alle-
gations of paragraph 10;' There, Respondent argued, in
substance,- that paragraph 10 of the complaint failed to
indicate which of the hundreds of hiring and/or rein-
statement decisions it had made were being called into
question, thus rendering it ". . . impossible for Respond-
ent to prepare and present a defense to whatever alleged-
ly unlawful conduct it may be charged with."
The General Counsel filed a reply8 in which it averred
that paragraph 10, ". . . when viewed in conjunction
with paragraphs 7, 8, and 119 . . . is completely clear
6 This interpretation is supported by the General Counsel's remarks at
the outset of the trial in which he stated that the only aspect of his com-
plaint that might require amendment was the allegation that Respondent
had "continued" to fad to recall certain named former strikers. The Gen-
eral Counsel explained that he had been made aware that Respondent
had, after the issuance of the complaint , reinstated some of the employees
about whom it had been alleged that Respondent was "continuing" to
deny them reinstatement . Tr. 45 13-21
7 The General Counsel neglected to include Respondent 's original
motion for particulars in the formal papers, but promised on the record at
the outset of the proceedings to supplement the exhibit file with this
pleading as soon as time permitted . An exhibit number (2) was reserved
for this purpose My review of the exhibits and the transcript reveals that
the General Counsel failed to follow through I therefore direct that the
General Counsel furnish the Board with the original and the requisite
number of copies of that pleading for insertion into the record as the
Board deems appropriate.
s G C. Exh. 1(ooo).
s The General Counsel was here referring to paragraphs that alleged,
respectively, that Respondent 's employees were engaged in an economic
strike between February 18 and May 31, that the Union made an uncon-
ditional offer to return on their behalf of May 31 , and that Respondent
refused to recall the employees named in par 10 because of their union
activities.
and concise, adequately putting Respondent on notice of
the unfair labor practices with which it is charged." In
addition to the conclusionary assertion that paragraph 10
gave Respondent "clear and concise,. .. adequate .. .
notice" of the actions being challenged by the complaint,
the General Counsel contended that it was not required
to "plead evidence," and asserted that Respondent was,
merely attempting to obtain unwarranted, pretrial "dis-
covery" of the General Counsel's evidentiary case., The
General Counsel further claimed that Respondent's own
hiring and other employment records were the best
sources of information for Respondent to rely on in de-
termining how to prepare to meet the allegations of para-
graph 10, and represented that the General Counsel had
issued a subpoena duces tecum for all such records, so
that the same would be available to the General Counsel
for use at trial. 10 It should be noted here that this posi-
tion could only have been true if the dates in the com-
plaint, were reliable-and they were not (see below).
Respondent filed a timely reply" to the General
Counsel's opposition in which it disavowed any attempt
to obtain discovery of the General Counsel's evidentiary
case. Rather, argued Respondent, all it wanted was -a
"plain statement of the facts claimed to constitute an
unfair labor practice."12 Addressing the General Coun-
sel's assertion that Respondent's own; records would
enable it to defend against the allegations of paragraph,
10, Respondent made the following observation: "This
... assumes that the dates listed [in paragraph 10] coin-
cide with some action Respondent took which affected
the rights of the alleged discriminatees, which they do,
not." 13 In its reply, Respondent also expressed its dilem-
ma most plainly when it said:
Respondent asks simply: "To which positions were
they [the discriminatees alleged in paragraph 10] en-
titled and bypassed on the date, alleged?" 14
The foregoing pleadings were considered by Deputy
Chief Administrative Law Judge James T. Barker, who
issued a pretrial order on July 3115 denying Respond-
ent's motion in light of the position taken by the General
Counsel, but further providing leave for Respondent to
make a motion before me to require the General Counsel
ro A copy of the subpoena was attached to the General Counsel's re-
sponse Rather than calling for identified records, however, the subpoena
demands that Respondent prepare lists of employees falling into certain
categories, together with various data pertaining to dates of hire, job
classifications, etc As such, the subpoena was more in the nature of an
interrogatory than an attempt to compel production of records. The trial
transcript shows, however, that the-relevant records were available to
the General Counsel throughout the roughly 3 months from opening to
closing of the proceedings and that the General Counsel had early and
ample opportunity to study them
i 1 G.C. Exh. l(ppp).
12 Id at 2.
13 Id. at 3. In an extraordinary number of cases, it developed at trial
that the dates chosen by the General Counsel bore little relation-some-
times no relation whatsoever-to the evidence that the General Counsel
adduced during his case-in-chief regarding the alleged bypassing of par-
ticular individuals. Respondent therefore was not merely engaging in
some pretense ; but, rather , it had a genuine and reasonably grounded dif-
ficulty in understanding what the complaint was challenging.
14 Id at 2.
is G.C. Exh. l(sss).
AXELSON, INC.
"through opening statement or otherwise , to provide
greater specificity and definition to the allegations of
paragraph 10."16
At the outset of the trial, the General Counsel made
an opening statement that he called a "general outline"
of his "theory" of the case and which in no way clarified
his position as to the meaning of the paragraph 10 "fail-
ure to recall" allegations.17
Shortly before the General Counsel began his presen-
tation of evidence, Respondent filed a second motion to
make more definite and certain18 in which it again
sought clarification from the General Counsel concern-
ing which job classifications it had allegedly failed to
recall the employees named in paragraph 10, and the
names of the employees whom Respondent allegedly
placed instead in the classifications that it allegedly
should have filled by such former strikers. The General
Counsel's response was simply to incorporate by refer-
ence the opposition that he had filed to Respondent's
pretrial motion for particulars.
After extensive , but unilluminating colloquy I asked
the General Counsel whether, based on the substantial
opportunity he had enjoyed to review the records that
he had subpoenaed from Respondent, he wished to make
any amendments to the complaint "particularly with re-
spect to paragraph 10 regarding the dates on which indi-
viduals were bypassed." The General Counsel replied:
"None at this time."19 It was by then , evident that the
General Counsel was content with the allegations in
paragraph 10 and had no intention to ' revise or clarify
them. I cautioned the General Counsel that the trial
would not be a "discovery" forum, and that the record
would not become a "grab bag" for the introduction of
evidence unrelated to existing allegations in the com-
plaint, and that the measure of relevancy would not be
whether evidence might support some potential discrete
violation that was never clearly alleged, but whether it
related to issues framed by the complaint in its then-cur-
rent form. I further entreated with the General Counsel
to make whatever amendments or clarifications were
necessary to give Respondent appropriate , plain notice of
any conduct that the General Counsel wished to chal-
lenge, remarking that he would not be permitted to pro-
mulgate theories of violation at his leisure , after review-
ing the record and seizing on incompletely litigated mat-
ters that might suggest a potential violation . 20 With
those admonitions , I denied Respondent's motion, view-
ing the General Counsel 's stated position as being tanta-
mount to a binding assurance that the dates in paragraph
10 were the only dates on which the General Counsel
was contending that a bypassing violation took place re-
garding a named individual.
I therefore reject, pro forma, the General Counsel's
belated efforts in many instances to resurrect a violation
by reference to some evidence arguably tending to show
16 Id. at 2.
17 Tr. 9-10.
is R Exh. 1.
" Tr. 43.18-44:3.
20 Tr. 44.19-45:12; 49.14-24. See also Tr. 177-183:6; 460.11-464.20; (es-
pecially 461:19-24; 463:8-464:20); 471:22-472:7; 638:9-639.15; 822 8-
828:15; 996:4-10, 999:5-1000 : 12; 1001 . 8-1002:1 ; 1977:15-1983.25.
871
that Respondent wrongfully "bypassed" or otherwise
discriminated against a former striker named in para-
graph 10 at some point other than the date that the Gen-
eral Counsel chose to use in the complaint. The General
Counsel „imply had too many opportunities that he chose
not to avail himself of to amend or clarify his complaint
to give plain notice of such potential independent viola-
tions; and to entertain any such belated attempts to
expand the scope of the complaint would only encourage
the type of mischievous shell game' that the General
Counsel sought to play with his "real" theory of viola-
tion as to certain individuals.21
Accordingly, while I have thoroughly reviewed the
entire record, I do not dwell below on any evidence sug-
gesting that Respondent may have committed some vio-
lation or engaged in some irregularity of treatment with
respect to returning strikers except insofar as it bears a
reasonable relationship to the date chosen by the General
Counsel in paragraph 10 of the complaint as the date on
which a violation first occurred and became perfected.
Nothing else was properly noticed for litigation and
nothing else was fully litigated.22
All parties had full opportunity to participate in the
trial proceedings and to submit posttrial briefs.23
On the entire record, I reach these
FINDINGS OF FACT
III. PRELIMINARY CONCLUSIONS
A. Respondent's Longview Operations
Respondent, a subsidiary of U.S. Industries, Inc., is in-
corporated in Delaware and manufactures oil production
and refinery equipment at its plant in Longview, Texas,
the only facility involved herein.24 Until its status was
challenged in a still-unresolved representation proceeding
(see below), the Union was the recognized representative
of production and maintenance employees at the Long-
view plant and had occupied that status for at least 20
years (even though there were intervening ownership
changes).
21 The extent of the General Counsel's attempted shifting of positions
regarding certain individuals is indicated in my findings below in the sec-
tion labelled "Miscellany " It is elsewhere likewise apparent that the
"bypass" dates in the complaint were often misleading and unreliable, but
I have ignored those aberrations because the real issues were readily evi-
dent and the facts underlying them were fully and fairly litigated.
22 See, e g, Camay Drilling Co, 254 NLRB 239, 249 at fn. 9 (1981), in
which the Board made a similar disposition under far less aggravated cir-
cumstances than those presented by the General Counsel's conduct here.
22 The original due date for briefs here was January 9, 1981. I granted
three additional extension requests filed by Respondent for good cause
shown and in the absence of any opposition thereto by the other parties
The General Counsel and Respondent submitted briefs before the final
due date of March 11, 1981 The former's brief was largely confused
and/or obscurantist in character; the latter 's was helpful
24 During the representative calendar year preceding the issuance of
the complaint, Respondent purchased and received goods and materials
valued in excess of $50,000 directly from suppliers located outside Texas
and also sold manufactured products valued in excess of $50,000 directly
to customers located outside Texas
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Strike
The most recent labor agreement between those par-
ties expired at midnight on February 18. The approxi-
mately 320 employees in the bargaining unit immediately
thereafter began an economic strike25 that lasted until
May 31, at which time the Union formerly notified Re-
spondent by telegram as follows:
Be advised that Local Lodge 1923, I.A.M. is re-
moving it's [sic] picket line effective this date and
all employees in the I.A.M. bargaining unit will be
returning to work unconditionally.26
C. Respondent's use of Replacements and Striker
Recall Program
Respondent continued to operate during the strike. Al-
though the entire unit of employees initially joined the
strike, an undisclosed, but apparently small, number of
strikers abandoned the strike and returned to work
before it was called off. Respondent also hired replace-
ments on a wholesale basis .throughout the strike. Al-
though the record does not disclose the precise number
of replacements hired during the strike, I infer from a va-
riety of sources that the jobs of virtually all strikers who
did not return to work before May 31 were filled by re-
placements.2 7
25 Respondent argues at the outset that the General Counsel never es-
tablished a principal element in its prima facie case that the striking em-
ployees in question were engaged in concerted activity protected by Sec.
7 of the Act In this regard, Respondent stresses that the General Coun-
sel never demonstrated that the Union gave the appropriate 60-day notice
required by Sec 8(d) of the Act before the strike began. I reject that
contention Striking to obtain a new labor agreement is, prima facie, pro-
tected activity and the burden is on Respondent affirmatively to plead
and prove such an 8(d) defense Greens Disposal Service, 253 NLRB 404
(1980). Respondent failed to do this In any case, Respondent waived any
such defense through its announced policy of offering reinstatement to
former -strikers as job openings developed (see findings, infra). It thereby
condoned the strike insofar as there might have been a failure by the
Union to comply with the 8(d) requirements See, e,g., Teamsters Local
805 v. NLRB, 312 F 2d 108, 113 (2d Cir 1963), Packers Hide Assn. V.
NLRB, 360 F 2d 59, 62 (8th Cir. 1966), and cases cited
26 This was an effective offer on behalf of all strikers. Home Insulation
Service, 255 NLRB 311, 311-312 ( 1981) It thus triggered their recall and
reinstatement rights set forth in NLRB v Fleetwood Trailer Co, 389 U S.
375 (1967), and Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99
(7th Cir, 1969), cert denied 397 U S 920 (1970) Moreover, each former
striker here except J. E. Allen and Floyd S Snider personally delivered
or otherwise transmitted individual notices to Respondent indicating his
unconditional offer to return to work Finally, Respondent has treated all
alleged discrimmatees here as having Laidlaw recall rights, save only
those accused of being ineligible for reinstatement for one or more specif-
ic reasons , such as strike misconduct , or permanent employment else-
where
27 E g , John Teegerstrom, Respondent's manager of industrial rela-
tions who assumed that position in July, credibly testified without contra-
diction that when he came on board there were still 200-300 unremstated
strikers, even though the recall of former sinkers had been in progress
since shortly after the strike ended In addition, J D Crow, the Union's
grand lodge representative who appeared at trial on behalf of the Union,
stated (in the nature of a concession from counsel table ) that as of May
31, " the Union knew that they [i e , Respondent] had pretty well a
full complement of employees working There were not any vacancies
immediately "
1. Status of replacements
This record contains no direct, affirmative, evidence
that the replacements that Respondent hired were "per-
manent," rather; than "temporary"; but it is nevertheless
implicit from the pleadings and from other noticeable
records that the replacements were, in- fact, permanent.
Thus, as noted above, the complaint` (par. -10) 'does not
uniformly allege that all former strikers should have been
reinstated as soon-as the strike was called off and the
Union made an unconditional offer on behalf of the strik-
ers to return to work-an allegation that clearly would
have been included if there were any question about the
"permanency" of `the replacements. Instead, the allega-
tions that many of the employees should have been re-
called-on certain dates well after the conclusion of the
strike constitute an implicit, concession by the General
Counsel that Respondent had no obligation to return
those employees until such time as their jobs were vacat-
ed by the individuals hired in their stead; and this is tan-
tamount to a concession that those replacements were
"permanent." Further, the General Counsel has never af-
firmatively contended in any manner that the replace-
ments were mere temporaries-neither during the litiga-
tion nor' on brief.
I also take administrative notice from the record in the
related RD case '(further discussed below)" that replace-
ment employees voted in the September 13 decertifica-
tion election without challenge to their eligibility on the
grounds that they were temporary. Finally, and most di-
rectly probative, Employer's Exhibit 23, received in the
RD case and appended to the hearing officer's' report to
the Board, is a notice dated May ' 18, 1979, from Re-
spondent's president to all employees in which Respond-
ent seeks to reassure both strikers and replacements con-
cerning their respective employment rights. There, re-
placements are told that they' are "permanent" and that
.. the Company intends to protect-the employment
security rights of these permanent replacements"; and
strikers are told that they will not be terminated, but will
"be eligible to fill jobs which [are presently, or will
become] available." Thus, by this message, if by not
other means, Respondent made it clear to replacements
hired during the strike that they occupied' "permanent"
status-and did so before any of the former strikers in-
volved here and made unconditional offers to return to
work. Associated Grocers, 253 NLRB 31, 31-32 (1980).
Accordingly, while Respondent'has the conventional
burden of proving that replacements were "permanent"
as a defense to a failure to reinstate an economic striker
who has unconditionally offered to return to work, the
foregoing factors permit the general finding here that the
replacements were permanent.
2. Recall program
Principle features of Respondent's striker recall pro-
gram28 were:
1. When a vacancy in a particular classification arose,
the job was offered to an unreinstated striker on the basis
28 The recall program was nondiscriminatory in its general outlines
and it is not challenged by the complaint.
AXELSON, INC.
of "classification seniority"; that is, the offer went to the
striker who had held the classification for which there
was a vacancy for the longest time. If that person de-
clined the offer, the next most senior striker in that clas-
sification received the offer, and so on.
2. If there were no unreinstated strikers who held the
particular classification for which there was a vacancy, a
reinstatement offer was made to the most senior unrein-
stated striker who was qualified to fill the vacancy. If
that person declined the offer, it was made to the next
most senior qualified person, and so on.29
The reinstatement program was still being implement-
ed at the time of the trial here, although the number of
yet-to-be reinstated strikers had been reduced to about
30, crediting Teegerstrom's uncontradicted testimony.
D. The Decertification Election and Aftermath
On the same day that the strike was called off, a de-
certification petition was filed in Case 16-RD-841 by a
petitioning group calling itself "Employees, of Axelson,
Inc." Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted at 'Re-
spondent's premises on September 13. As of that time,
Respondent had not formally communicated to any of
the former strikers that they had been terminated for any
reason. During the strike, however, Respondent had
monitored instances of arguable strike-related misconduct
by individual strikers, and had also made some effort to
determine whether some of the strikers had obtained sub-
stantially equivalent employment elsewhere. In anticipa-
tion of the election, Respondent reviewed its records and
prepared a list containing the names of former strikers
who it believed had either engaged in strike misconduct
worthy of discharge or who had obtained substantially
equivalent employment elsewhere. The list was to be
used by Respondent's observer at the election to chal-
lenge any-of the listed former strikers who might appear
to vote. Shortly before the election, Respondent fur-
29 Between May 31, 1979, and February 29, 1980, Respondent notified
all strikers of each such vacancy by registered mail at a cost of $3 15 per
letter. All strikers were thus given an opportunity to "bid" for the vacan-
cy and the selection was made as indicated above. This was an expensive
and time-consuming process and Respondent altered that procedure
about February 29 by thereafter sending to all unremstated strikers
(except those deemed ineligible for reinstatement ) letters containing an
enclosed "Reinstatement Bid and Acceptance" form in which the recipi-
ent was to list all classifications for which he was willing and believed
himself qualified to bid (see R Exh 10 as a specimen) This modified
procedure was likewise free from any general challenge by the General
Counsel's complaint-the only dispute being whether it was fairly applied
in certain instances As Respondent notes on brief and the evidence no-
where contradicts:
The new program provided Respondent with advance knowledge of
qualified bidders and the classification(s) to which each desired and
would accept reinstatement Thus the cost was reduced to but a
single letter to the successful bidder. Likewise, the greatly simplified
procedure resulted in a corresponding reduction of time expended, a
decided benefit to strikers who were reinstated much more quickly.
[R. Br. at 27-28 ]
Neither did a striker's bid for, or acceptance of, reinstatement to a job
outside his classification preclude him from eligibility for reinstatement to
a later vacancy in his prestrike classification, when and if one developed
See, e g., testimony of General Counsel's witness Billy Northcutt as to his
February 27, 1980 conversations with Respondent's representatives Hink
and Teegerstrom
873
nished a copy of its "challenge" list to the RD petitioner
for use by its own observer. -
The September 13 election results were inconclusive.
Of the 455 ballots cast, 67 were challenged by one of the
parties, including many challenged by either Respond-
ent's or the RD petitioner's election observer, using Re-
spondent's challenge list. The challenges were sufficient
to affect the election outcome and a hearing was subse-
quently held by a Region 16 hearing officer. Respondent
and the RD petitioner acquiesced as to some unfavorable
recommendations made by the hearing officer to the
Board and filed exceptions as to others. On August 15,
1980, the Board issued a Decision and Direction (report-
ed at 251 NLRB 282) generally sustaining the hearing of-
ficer's recommendations, and directing that certain of the
improperly challenged voters' ballots be opened to deter-
mine whether they would be conclusive of the election
results. I am administratively advised that there are still
additional proceedings pending in connection with the
RD case and that the representation issue remains unre-
solved. I advert below to the RD proceedings as they
may be relevant to discussion of particular cases.
E. Employees Initially Denied Reinstatement
1. Background
The nine former strikers (C. C. McKee, Otis D. Nich-
ols, Donald E. Brightwell, Robert Washington, R. D.
McGrede; Robert H. Brenner, John E. Kemp, Bobby J.
Ballard, and Donald L. Sapp) received identical letters
from Respondent between October 1 and-Novehiber 16,
signed by Teegerstrom, which stated, in pertinent part:
Be advised that under current reinstatement proce-
dures you would have been notified of reinstate-
ment this week, however, insofar as you have been
deemed to have accepted permanent employment
elsewhere, you' were not offered reinstatement.
All these individuals had been challenged for the same
reason (permanent employment elsewhere) when they
had appeared to vote in the RD election, but the chal-
lenges were overruled by the Board, in agreement with
the hearing officer's recommendation. At trial, Respond-
ent sought to show only in the case of Donald L. Sapp
that he had obtained such permanent employment else-
where. In the case of the others, Respondent expressly
disclaimed any defense based on their alleged permanent
employment elsewhere30 and it did not introduce any
evidence bearing on such a defense.
Under Fleetwood, supra, and Laidlaw, supra, economic
strikers are entitled to reinstatement to vacant jobs on
their unconditional application to return to work unless
they have acquired, in the meantime, "regular and sub-
stantially equivalent employment elsewhere."31 There is
a rebuttable presumption that economic strikers remain
in the status of employees of the struck employer; and
the burden is on the employer to rebut that presumption
ao Tr 200-20-2013 The only exception filed to the hearing officer's
recommendation in this area was Respondent's exception as to Sapp-
31 389 U.S at 381; 171 NLRB at 1370
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as to any striker, to whom it denies reinstatement on the
grounds that the striker abandoned his job by accepting
employment elsewhere. Woodlawn Hospital, 233 NLRB
782, 790-791 (1977), and authorities cited.32
The letters sent to each of the nine employees under
discussion here are clearly an admission by Respondent
that there were vacancies in their prestrike jobs to which
Respondent would have reinstated each of them but for
Respondent's belief that he had obtained "permanent em-
ployment." Teegerstrom elsewhere so testified. I so' find.
2. Conclusions regarding McKee, Nichols,
Brightwell, Washington, R. D. McGrede, Brenner,
Kemp, and Ballard
I consider first the cases of the eight former strikers
about whom Respondent offered no evidence of their al-
leged "permanent employment elsewhere." Even regard-
ing these admitted cases of refusal to reinstate, in which
Respondent failed in its burden of coming forward con-
cerning the "permanent employment" defense, Respond-
ent nevertheless stresses that its motivation in denying
them reinstatement was free of discriminatory taint. In
this regard, it argues, in substance, that it had reasonable
grounds for believing that the eight employees in ques-
tion had obtained other permanent employment, that it
was faced with a "dilemma" in attempting to balance
their rights against those of other strikers awaiting rein-
statement, that it intended to use the RD challenged
ballot, procedures as the forum for resolving its claims,
but that there had been no resolution in the RD forum at
the time that the vacancies arose for the eight now in
question. Accordingly, argues Respondent, it relied
solely on its view about the "economic equities" in deny-
ing reinstatement to those eight (who were known, at
least, to have other jobs) so as to accelerate the reinstate-
ment of eight other strikers awaiting recall (who were
not believed to be in regular jobs elsewhere).33
I conclude that Respondent may not now be heard to
argue that, simply because it judged wrongly about the
adequacy of its evidence concerning the "permanent em-
ployment elsewhere" of the eight employees in question,
its good-faith belief on the subject nevertheless should
permit it to escape liability for failing to reinstate these
former strikers to the admitted vacancies in their former
jobs. I reach this result whether Respondent's denial of
reinstatement to them may be characterized as being "in-
herently destructive" of their rights under the Act, or
whether such conduct may be deemed to have had only
a "comparatively slight" impact on their rights.34
S2 But see discussion below, dealing with Sapp, about whether the
Board regards as adequate to an employer's carrying of its burden even
unmistakable proof that a striker had obtained "regular and substantially
equivalent employment" without additional evidence of an intentional
abandonment of the prestrike job by the striker.
2a See R. Br. 97-100.
34 In NLRB v. Great Dane Trailers, 388 U S. 26 (1967), the Court in-
structed that when an employer's treatment of strikers falls into the
former category, no proof of antiumon motive is required, and the Board
may find a violation even if an employer comes forward with evidence
tending to show that nondiscriminatory business considerations influ-
enced the challenged conduct, but that when the challenged conduct falls
into the latter category, an employer may escape liability under the Act
by showing that such business considerations influenced its actions , unless
As a matter of law, the cases appear to hold that the
denial of reinstatement to his former, vacant, job to a
former striker who has unconditionally offered to return,
is conduct that falls into the "inherently destructive" cat-
egory, thereby rendering the question of the employer's
actual motive entirely nugatory, unless the employer
proves as an affirmative defense that the employee had
already forfeited his reinstatement rights. Woodlawn Hos-
pital, supra, and authorities cited. See also Markle Mfg.
Co., 239 NLRB 1142 (1979), in which the Board adopted
the decision of the administrative law judge who stated
(id. at 1150): "Denial of reinstatement to economic strik-
ers is inherently destructive of important Section 7
rights, including the right to strike." If this is so, then the
refusal to, reinstate a former striker to his former, vacant,
job, under the present circumstances, is something in' the
nature of a per se violation of the Act, regardless of the
employer's actual motive.
Accordingly, where Respondent was unable to per-
suade the Board in the RD cases that the eight individ-
uals in question had forfeited their employee status with
Respondent by obtaining other regular and substantially
equivalent jobs; and where Respondent elected, in the
trial before me not to introduce "permanent employ-
ment" evidence regarding the eight, it is irrelevant that
Respondent may only have been motivated by a desire
to help -out more needy former strikers awaiting recall
when it denied reinstatement to the eight.
Alternatively, if the harm to the Section 7 rights of the
former strikers in question by Respondent's refusal to re-
instate them to vacant jobs be deemed "comparatively
slight" and if I were thereby entitled to consider the
merits of Respondent's defense as outlined above, I
would conclude that Respondent's professed reasons did
not amount to "legitimate and substantial" business rea-
sons. It is, of course, praiseworthy that an employer be
concerned with the interests of all its strikers awaiting
recall; but no authority has been cited to me that sug-
gests that it is "a business consideration" for an employer
to refuse to reinstate a striker awaiting recall to his
vacant job just because some other former striker might
arguably "need" the work more than the striker whose
job has become open. Accordingly, Respondent's pro-
fessed motive does not qualify in my view as a legitimate
and substantial business reason within the intendment of
Great Dane, supra.
Moreover, I do not believe that Respondent's pro-
fessed doubt about the "permanent employment else-
where" status of the eight-coupled with concern about
more needy strikers awaiting recall-was the true reason
it denied them reinstatement. If it had a genuine doubt
about their interest in returning to work, notwithstanding
that they had individually tendered unconditional return
offers at the conclusion of the strike, it could have re-
solved the same merely by asking them what their inten-
tions were. Thus, Respondent's "dilemma" has a con-
trived quality to it. Finally, according to the hearing offi-
cer's report in the RD case, no evidence was offered by
the General Counsel comes forward with specific and persuasive evi-
dence of an actual antiunion motivation harbored by the employer (id. at
33-35).
AXELSON, INC. 875
Respondent (or the RD petitioner) in support of its chal-
lenges to Robert Washington , R. D. McGrede , and John
Kemp on the grounds of "permanent employment else-
where." (G.C. Exh . 13, p. 17.) Neither did it offer such
evidence in the trial before me. These factors sustantially
undermine Respondent's threshhold argument that it had
a "good faith belief" that the employees in question had
such other permanent employment.
Accordingly, I conclude that Respondent violated
Section 8(a)(3) and (1 ) of the Act by its admitted refusal
to 'reinstate former strikers McKee, Nichols, Brightwell,
Washington, R. D. McGrede, Brenner, Kemp , and Bal-
lard when their former jobs became vacant .35 Since the
first four just named were later offered reinstatement
(after the hearing officer 's report in the RD case issued)
but were still later denied the same for failure to pass a
medical examination , I return to them again , below.
3. Donald L. Sapp
a. Introduction and findings
As noted above, the question whether Sapp had aban-
doned his struck job with Respondent by accepting per-
manent employment elsewhere was fully litigated before
me, just as it had been fully litigated in the RD case
forum, in which the Board rejected Respondent's conten-
tion and found that Sapp had retained his employee
status with Respondent and was eligible to vote in the
September 13 election.
With matters in this posture, there is a potential pre-
liminary question : Is Respondent entitled, given the
Board 's rule against relitigation, 36 to relitigate in this
"related subsequent unfair labor practice proceeding" the
same issue that it litigated in the RD forum and that the
Board has expressly decided?
It maybe that the cited rule is inapplicable to the in-
stant situation that involves "exceptions" from a hearing
officer's report and recommendations , rather than a "re-
quest for review" of a regional director's decision, al-
though there , is no obvious policy reason for such a dis-
tinction . In any case, the rule against relitigation may be
waived by a' failure to object to such relitigation. City
Motor Co., 114 NLRB 298 (1974), Barwood, Inc., 209
NLRB 19 (1974). See also G. M Masonry Co., 245
NLRB 267, 270 at fn, 10 ( 1979). 1 conclude that the full
litigation of the matter before me without objection by
the General Counsel or by the Union amounted to such
a waiver. The question is therefore before me for de
15 The complaint alleges that each of these individuals was discrimina-
torily denied reinstatement on the date that appears on the letter from
Respondent advising that "you would have been notified of reinstatement
this week." In the absence of more specific proof about precisely when
the vacancy arose for each individual , I agree, for purposes of backpay
computation , that those dates are reasonable and appropriate (see the
remedy section, infra).
as Sec 10267(f) of the Board 's Rules and Regulations, dealing with
situations in which a request for review may be filed with the Board in a
representation case, states in pertinent part:
Denial [by the Board ] of a request for review shall constitute an af-
firmance of the Regional Director 's action which shall also preclude
relitigating any such issues in any related subsequent unfair labor
practice proceeding.
novo consideration based on the record made in the in-
stant trial.
There is this undisputed evidence in the record, which
I credit : Sapp had begun employment with Respondent
in 1974 and had worked there continuously until the
1979 strike . His' prestrike classification was tool and
cutter grinder-A, for which he was earning $6.92 per
hour when he answered the strike call.37 Before the
strike ended , on May 7, Sapp applied for and was hired
at Vought Corporation, located in Longview about 3
miles farther from his residence than Respondent's plant
is. Sapp was hired by Vought as a tool and cutter grind-
er-C, earning about $7.75 per hour . 38 Sapp conceded,
however, that the job he performed at Vought was virtu-
ally the same as that he performed at Respondent 's plant.
As Sapp further admitted , "fringe benefits" at Vought
were "probably better" than those at Respondent. Cred-
iting Vought 's representative , Baxter, who interviewed
Sapp on May 7, the top rate for the tool and cutter
grinder-A classification was $9.21 per hour (under
Vought's labor agreement with the United Auto Work-
ers Union at the time) and Sapp could have expected to
have been earning that much by the time of the instant
trial . 39 Sapp himself conceded that his earnings potential
at Vought was greater than at Respondent; Sapp was
earning $8 .02 per hour at Vought as of January 11, 1980,
at which time he was laid off by Vought , with recall eli-
gibility there until 1983 . He voluntarily joined the union
at Vought after working there for about 60 days.
Notwithstanding his, then-current employment at
Vought, Sapp personally delivered a written uncondi-
tional offer to return work to the guard at Respondent's
plant shortly after the strike ended , and Respondent con
cedes that it received that offer . 40 He also appeared to
vote in the September 13 RD election and his ballot was
taken under challenge . He later received ' the above-de-
scribed November 16 letter from Respondent in which
he was deemed ineligible for reinstatement due to perma-
nent employment elsewhere. He testified at the RD hear-
ing on challenged ballots held between November 26 and
December 5 and , in effect , denied that he intended to
abandon his job with Respondent by taking the job at'
Vought.
There is a conflict in testimony regarding the precise
nature of Sapp 's discussions with Vought's representative
Baxter during his initial employment interview. Sapp,
who testified only summarily on the subject , states that
he was never told that the Vought job was "permanent"
and denies that he ever agreed to take it on a `,`perma-
nent" basis. On the contrary , states Sapp, he inquired
about his possible tenure there and was told by Baxter
that ". . . he couldn 't promise me that the plant would
even be there in 6 months , that they were considering
taking all the work to Dallas." Baxter flatly denied this,
stressing that the Vought plant at Longview had a 40-
sa The then top wage rate for that classification at Respondent was
$8 82 per hour
sa Relying here on Sapp 's second , and more deliberate recollection on
cross-examination (Tr 661-662)
se Sapp was employed at yet a third employer by the tune of this trial.
40 R. Br 112.
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
year lease with the county, that there were no plans to
move to Dallas, and that he would never have disclosed
to Sapp, as a skilled applicant whom Vought was inter-
ested in hiring on a "permanent" basis, - anything that
might have tended to dissuade Sapp from accepting em-
ployment. Baxter further contradicts Sapp's denial that
the subject of "permanency" of the Vought job ever
came up in the employment interview. Baxter recalls that
he specifically asked Sapp if he was seeking a "perma-
nent" arrangement and that Sapp replied: "I am looking
for permanent employment." Baxter further testified that
another of Respondent's former strikers, J. D. Burkett
(whose situation is discussed elsewhere below), was
denied hire by Vought, even though he possessed excel-
lent skills qualifications, because Burkett had pointedly
told Baxter that he only wanted work at Vought until
the strike at Respondent terminated. Burkett corrobo-
rates this. Baxter states that it was the policy at Vought
to hire only persons who were interested in permanent
employment, and the only reason he sent Sapp on for ad-
ditional interviews with Vought Supervisor Bassett was
because Sapp had expressly affirmed his interest in per-
manent employment.
I credit, Baxter over Sapp on the details of the inter-
view and -the matter of whether or not permanent em-
ployment with Vought was discussed. Baxter was a more
impressive witness from a demeanoral standpoint. It is,
moreover, unlikely, as Baxter emphasized, that he would
be willing to take an applicant who was unwilling to
make a "permanency" commitment; and it is just as un-
likely that Baxter would have made some reference to
Vought's plans to move the plant, or its work, to Dallas.
Moreover, as' l find below, it is uncontradicted that Sapp
later invoked the fact that Vought representatives had
referred to the job as being "permanent" when Sapp was
laid off by Vought.
Sapp also ' testified that Vought Supervisor Bassett
asked him whether he was still interested in returning to
Respondent when the two men happened to meet at the
RD case hearing on challenges and objections in Novem-
ber, and that Sapp replied: "I'd go back in a minute."
Bassett denied having any conversations- whatsoever
with Sapp at that time. He further recalled that the only
time that he had any discussion with Sapp about the
"permanency" of Sapp's job at Vought was when Sapp
was laid off by Vought in January 1980. At this time,
states Bassett, Sapp bitterly protested to Bassett: "Well,
Doyle, this job is not,permanent after all:" Sapp was not
recalled by the General Counsel to deny making this
statement. I credit Bassett's denial of the November ex-
change with Sapp based on his superior demeanor and
his lack of any personal stake in the outcome. I credit
Bassett's account of the January 1980 layoff exchange
with Sapp for the same reasons and because Sapp never
denied it.
b. Conclusions
I note at the outset that the hearing officer, whose rec-
ommendation concerning Sapp's voting eligibility in the
RD case was sustained by the Board, relied on three
Board representation case decisions as presenting facts
comparable to those presented by Sapp's situation, as it
was disclosed in the RD hearing record.41 Although I
am not bound by the disposition made on a different
record of Sapp's situation, and although the Board has
stressed in the lead case in this area that such issues must'
be decided on a case-by-case basis,42 neither am I enti-
tled to ignore the Board's disposition of such issues when
the facts before me are not significantly distinguishable
from those cited by the Board in such prior decisions.
I would be inclined to agree with Respondent that
Sapp's job with Vought was both "regular" and "sub-
stantially equivalent" to his job with Respondent in the
sense that the Court used those-terms in Fleetwood, supra.
See also the definition of "employee" contained in Sec-
tion 2(3) of the Act, excluding therefrom "any individual
whose work,has ceased as a consequence of . . . any
current labor dispute . . . and who has . . . obtained any
other regular and substantially equivalent employment."
(Emphasis added.) Moreover, there is substance in Re-
spondent's argument that, if there is any way of divining
ex post facto, by objective evidence,43 that a striker in-
tended to abandon his struck job and to cast his lot with
a new employer, the proven facts with respect to Sapp's
taking "permanent" employment at Vought, his volun-
tary joining of the union there, and the fact that the
Vought job provided better pay and benefits, are all
highly probative indicators that Sapp would not wish to
retain recall rights to his struck job. Neither do I find it
persuasive, as the General Counsel argues, that the
Vought job turned out to be somewhat insecure from the
standpoint of frequency of layoffs. There was no show-
ing that Sapp had any awareness of a higher potential for
layoffs at Vought, than at Respondent when he accepted
the Vaught job.
On the other hand, the Board has plainly held that a
striking employee -who accepts a job tendered as "perma-
nent" does not necessarily thereby evidence a desire to
"abandon" his. struck job. Pacific Tile & Porcelain, supra -
at 1362-1363. And in Roylyn, Inc., supra, the Board
adopted the hearing officer's recommendation that em-
ployee Keith, did not abandon his struck job even though
it was assumed to be true that Keith "secured other em-
ployment at a higher rate of pay and told his new em-
ployer that he was abandoning his job at Roylyn" (id.,
179 NLRB at 202). Moreover, any suspicion that these
cases have lost their precedential force is put to rest by
the Board's recent acceptance of the hearing officer's re-
liance on them in overruling the challenge to Sapp's vote
in the RD proceeding. Indeed, at footnote 5 of the
Board's Decision and Direction therein, the Board ex-
pressly disavowed any reliance "on whether their [i.e.,
Sapp's, et al.] outside employment was substantially
equivalent or whether their pay was comparable."44
, 4r The hearing officer cited these cases (edited to correct hearing offi-
cer's misspellings): Pacific Tile & Porcelain Co„ 137 NLRB 1358 (1962),
and the Board's treatment of employee Kuldmey at 1362; Roylyn, Inc.,
178 NLRB 197 (1969), and the Board's treatment of employee Keith at
202; and Q-T Tool Co., 199 NLRB 500 (1972), and the Board's treatment
of employee Elliott at 502.
42 Pacific Tile & Porcelain, supra, 137 NLRB at 1359; see also Little
Rock Airmotive, 182 NLRB 666 (1970), citing factors relevant to the ques-
tion of "abandonment."
43 Q-T Tool, supra, 199 NLRB at 502 fn. 14.
44 Axelson, Inc, 251 NLRB 282 at fn. 5.
AXELSON, INC.
This is the plainest indication that I have been able to
discern in Board annals that-the acceptance of "regular
and substantially equivalent employment" by a striker is,
standing alone , wholly inadequate as a basis for inferring
the striker's intention to "abandon" his struck job.
Thus, if any rule may be distilled from the Board's
holdings, it would appear to,be this: A striker may retain
his employee status with the struck employer even if he
takes a regular and substantially equivalent position else-
where; and he retains the option to demand and accept
reinstatement by the struck employer unless he shows
either by express admission to the struck employer45 or by
other unmistakable conduct46 that he no longer wishes
to claim his struck job.
Accordingly, and noting particularly that Sapp had af-
firmatively tendered to Respondent an unconditional
offer to return to work at a point after he had taken the
job with Vought and before a vacancy had occurred in
his struck job, I conclude that Respondent has not met
its burden of showing that Sapp abandoned his right to
reinstatement merely by taking a regular and substantial-
ly equivalent job at Vought.
Respondent therefore violated Section 8(a)(3) and (1)
of the Act by admittedly refusing to offer reinstatement
to Sapp when an admitted vacancy occurred in his
struck job about November 16.
F. Poststrike Discharges for Alleged Strike Misconduct
1. Background
The record adequately reveals that the 3-1/2-month
strike was not entirely peaceful, and that there were
intermittent acts and threats of violence as between the
class of strikers and the class of nonstrikers and replace-
ment employees. Respondent sought to monitor closely
the activities of strikers on the picket line and other ac-
tivities involving harassment and/or threats occurring
away from the immediate plant premises. In March, Re-
spondent's attorney sought and received a temporary re-
straining order from the district court for Gregg County,
Texas, temporarily restraining and enjoining the Union
and many of its officers, agents, and other named indi-
viduals associated with it from engaging in a variety of
disruptive and threatening acts, including molestation or
intimidation of Respondent's guests, employees, or cus-
tomers; mass picketing; following persons leaving Re-
spondent's premises;. and other like behavior.47
As earlier noted, Respondent accumulated data per-
taining to arguable misconduct on the part of its striking
employees, but did not immediately discharge any em-
ployees for such misconduct, preferring to let hard feel-
ings dissipate and to sift and winnow from its files only
those cases that it believed warranted the penalty of dis-
charge-and then only at a later date when and if a rein-
statement decision needed to be made that might be trig-
gered by a job vacancy in a classification for which a
45 See, e.g, the Board's treatment of Milton Smith in Trinity Valley
Iron & Steel Co, 158 NLRB 890, 903 (1966), in contrast to Elliott in Q-T
Tool, supra, and Keith in Roylyn, Inc. supra
46 See, e.g, the Board's treatment of Moran in Drug Research, Inc,
233 NLRB 253, 261 (1977).
47 See R Exhs. 39 and 40.
877
"suspect" striker might otherwise be recalled. The Sep-
tember 13 RD election forced Respondent's hand prema-
turely by requiring it to determine which former strikers
it would challenge on the grounds that their strike mis-
conduct justified refusal to reinstate them. The sifting
process was completed shortly before the election and
Respondent selected 10 individuals for challenge on this
basis, instructing its own observer in this regard and fur-
nishing the RD petitioner with a copy of its challenge
list. Only nine of the "suspect" individuals appeared to
vote and they were challenged. Only six of them are in-
volved here.48
Respondent sought to litigate the basis for these chal-
lenges in the postelection hearing, but was precluded
from doing so by the hearing officer for reasons that are
not here pertinent. The Board sustained this approach
concerning six now under discussion, noting the penden-
cy of these proceedings and deeming it "better practice"
to determine their eligibility status only if the counting of
other overruled challenged ballots failed to be determina-
tive of the election results, and preferring to be "guided"
by the outcome of this case.49
After election, Respondent formally notified four of
the six former strikers (Dorsey, J. G. McGrede, Wil-
liams, and Bryant) by identical letters, mailed between
October 1 and 15, as follows:
We have thoroughly investigated our activities
during the strike and therefore have concluded that
you are not eligible for reinstatement. Consequently,
your employment was terminated as of September
12, 1979.
In addition, former striker' William Pegues received a
certified mailing dated November 12 from Respondent
containing a standard form termination notice indicating
that Pegues was terminated by Respondent, with No-
vember 8 indicated as the effective date of such action,
but without containing any reason.50 Finally, former
striker S. L. Curtis, although admitted deemed by Re-
spondent to have been ineligible for reinstatement due to
alleged strike misconduct, never received any formal
written notice to that effect.
2. Legal setting
It is established that "in order to vindicate the broader
interests of society as a whole," a striker may forfeit the
protection of the Act and may be discharged for his
strike-related actions if they amount to "flagrant or egre-
gious" misconduct. It is equally settled that undue stric-
tures on employees' exercise of their rights to strike and
to engage in other concerted activities protected by Sec-
411 Clarence J. Dorsey, S L. Curtis, William Peguess, Jimmy G
McGrede, Q. Ray Williams, and William J Bryant. Although other em-
ployees involved here were challenged for strike misconduct, Respondent
expressly disavowed that as a defense to the complaint allegation that
those others were wrongfully denied recall on certain dates (Tr. 200:20-
201:3) Instead, Respondent sought to show that there were no vacancies
for those employees on the dates set forth in the complaint (see findings
and discussion in sec 111,H, infra).
4s 251 NLRB at 282.
50 G C Exh 9.
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions 7 and 13 of the Act could be imposed if every act
of "impropriety" committed by a striker "in a moment of
animal exuberance" and as part of the "normal give and
take of a labor dispute" were deemed sufficient to place
him outside the Act's protection . W. C. McQuaide, Inc.,
220 NLRB 593, 594 (1975). And in the cited case, the
Board applied these distinctions as follows: Regarding
three strikers who had in certain instances on the picket
line "verbally abused or threatened replacements [the
Board concluded that ] their language was not accompa-
nied by any physical acts or gestures that would provide
additional emphasis or meaning to their words sufficient
to warrant finding that they should not be reinstated to
their jobs."51 By contrast, however, as to three strikers,
one of whom had "elbowed" a strike replacement and
threatened to "knock his block off," and all three of
whom had pounded on vehicles while threatening to
"beat-up" the occupants, the Board concluded that:
... this conduct combined threats of personal
physical injury with actions that would tend to give
import to the expressions of violence and was there-
by sufficiently egregious to move them from the
protective mantle of the Act.52
McQuaide , supra, being illustrative of the Board's
overall approach to determining whether a striker's be-
havior was merely "improper"-as opposed to being
"flagrant or egregious"-it remains to note the general
apportionment of burdens of proof , established in cases of
this type . The lead case on this point is Rubin Bros.,53
which held generally that the General Counsel must first
establish that the employees in question were disciplined
for their behavior during the course of a lawful econom-
ic strike . 54 Once this is shown, the burden shifts to the
employer to introduce evidence that it held as "honest
belief" that a specific striker engaged in a specific act' or
series of actions that amounted to "flagrant or egregious"
misconduct.55 If the employer meets this burden, then
the burden of establishing that the discipline violated the
Act shifts back to the General Counsel who must show
evidence that the striker did not , in fact, engage in the
misconduct for which he was disciplined . The introduc-
tion of such evidence by the General Counsel may trig-
ger afurther "shift back" to Respondent of the burden
of coming forward with evidence that the striker was, in
fact, guilty of serious misconduct . General Telephone-Co.,
supra at 739.
51 Ibid.
52 Ibid.
sa Rubin Bros Footwear, 99 NLRB 610 (1952), cited by the Court with
approval in NLRB v. Burnup & Sims, Inc., 379 U.S 21, 22-23 (1964) See
also General Telephone Co, 251 NLRB 737 (1980), and authorities dis-
cussed at 739-740.
54 Such proof has been established concerning all six employees in-
volved in this section , and it is therefore presumed in all discussion here-
after
55 See, e.g, General Telephone Co, supra, for a discussion by the
Board as to the degree of specificity required of the employer to satisfy
the "honest belief ' test (mere assertion not sufficient ; employer must link,
particular employees to particular acts of misconduct ) I deal with ques-
tions bearing on the "honest belief" issue in the case -by-case expositions
and discussions below
I turn now to case-by -case findings and conclusions re-
garding the six strikers involved here.
3. Case-by-case findings and conclusions
a. Clarence ,T. Dorsey
Dorsey is accused of having made telephonic threats
to Paul Lewis , an employee who initially joined the
strike, but who crossed the picket line to return to work
about 5-6 weeks after the strike began. Respondent- in-
troduced evidence sufficient to meet, its "honest belief"
burden as to this incident by Lewis' credible testimony
that he notified Respondent 's Vice President Stuart Hink
about the incident immediately after it occurred.
Lewis testified , in substance , as follows: About a week
after he returned to work, he received a telephone call at
his residence in the evening from striker John Hudson,
Referring to the fact that Lewis had driven another
former striker, Cromwell , to work at Respondent's plant
that day, Hudson castigated Lewis for abandoning the
strike himself and fo`r bringing Cromwell back with him.
Eventually , Hudson threatened Lewis repeatedly that he
would "blow [Lewis'] head off," and further vowed,
"I'm going to shoot you , if I have got to walk in the
plant, I'm going to do it." After the conversation ended,
Lewis called Cromwell 's home to alert him of the possi-
ble danger to him. After Lewis had talked briefly with
Cromwell , Dorsey then took the telephone and told
Lewis that he and Hudson were both at Cromwell's
home. Dorsey then began to criticize Lewis for having
abandoned the strike. Lewis asked Dorsey if he was
"threatening" him. Dorsey replied that he was. Lewis
then said : "Well, if you're running with Hudson, he's al-
ready committed a whatever you want to call it by
threatening me earlier so he 's going to be in trouble for
doing that." To this, Dorsey replied , "You better not call
the law on him." Lewis replied in turn , "I'm going to
notify the plant and I'm going to call the law on him. I
am going to do that." After an additional warning to
Lewis that he had "better not," Dorsey said: "Well, if
you do, I will get you personally ." Lewis warned
Dorsey to stay away from Hudson and to mind his own
business because Hudson was going to get Dorsey in
trouble. To this, Dorsey rejoined: "No, he is not going
to get me in trouble and you better not call the law or I
will get you." The conversation then ended and Lewis
moved his family to a new location for the night and
shortly thereafter notified Respondent's official Hink and
the local police about the incident.
Dorsey , called to rebut Lewis' testimony,56 admitted
that he was at Cromwell's' house and that he took the
telephone to speak with Lewis . His recollection of the
conversation was extremely vague and he resorted to
ss Dorsey 's rebuttal testimony appears at Tr 1924-1931 under the er-
roneous caption "Joe Dorsey"; and his name was inadvertently omitted
from the index of witnesses appearing in the introductory pages of the
transcript volume for December 4, 1980. In addition , the transcription of
Dorsey's testimony contains several errors in the references to Paul
Lewis Thus, the reader should substitute "Lewis for "Loomis" or
"Dewey" where those latter names appear
AXELSON, INC.
characterizations for the most part.57 He specifically
denied, in response to pointed questioning by the Gener-
al Counsel, that he ever threatened to "personally get"
Lewis, or that the subject of Lewis' "calling the law"
ever came up. He acknowledged only that he "might
have" told Lewis that Lewis "shouldn't have gone back
to work," and he concedes that he was "displeased" with
the fact that Cromwell had abandoned the strike.
Dorsey was a remarkably unimpressive witness, dem-
onstrating unease and evasion throughout his rebuttal tes-
timony. Lewis was alert and seemingly sincere in his de-
tailed recollection of the telephone conversations. I have
no hesitancy in crediting his entire testimony about his
exchanges with both Hudson and Dorsey.
This record does not directly permit a finding that
Dorsey was present with Hudson when Hudson first
called Lewis and made his threats to shoot him. Neither
does Dorsey's admission to Lewis during the second
conversation that he was with Hudson at Cromwell's
house, nor his making of common cause with Hudson by
threatening "personally" to "get" Lewis if he were to
call the law on Hudson, necessarily warrant the infer-
ence that Dorsey was aware of the specifics of Hudson's
earlier threats. The question posed, therefore, is whether
Dorsey's repeated threats to Lewis that he would "get"
Lewis if the latter called the law on Hudson amounted
to "flagrant or egregious" misconduct, thereby justifying
Respondent's discharge of him.
I conclude that Dorsey's threats did not merely
amount to a momentary display of "animal exuberance,"
such as that which frequently arises on' an emotion-
charged picket line.58 Rather, Dorsey's threats were de-
liberate, repeated, and occurred away from the picket
line entirely. Neither were they directed at Lewis be-
cause Lewis had (from Dorsey's standpoint) "scabbed"
on his fellow strikers-a circumstance that does not justi-
fy such threats, but that nevertheless often triggers
threats and other gestures of ill will that are part of the
"normal give and take of a labor dispute" involving a
lengthy strike. McQuaide, supra at 594. Instead, Dorsey's
threats were calculated to prevent Lewis from seeking
police protection from Hudson who, whether Dorsey
knew it or not, had made credible threats against Lewis'
life only minutes earlier.
The "broader interests of society as a whole" (ibid)
presumably include society's interest in guaranteeing full
access to the protective resources of the civil authorities
to citizens who have received a credible death threat.
Accordingly, the protective mantle of the Act that insu-
lated Dorsey as a striker from Respondent' s discipline
for mere momentary acts of impropriety did not operate
as a rigid shield against discipline for Dorsey's threaten-
ing efforts to extort Lewis' silence about the unlawful ac-
tions of one of his fellow strlkers.58 I therefore conclude
sa E.g., "Didn't have no cross words or nothing, we just spoke polite-
ly," and "we was talking, you know, just man talk "
58 Alabaster Lime Co, 194 NLRB 1116 (1972)
69 It is true, as in McQuaide, that under more typical circumstances, a
striker's shouted threat to a strikebreaker passing through the picket line
does not normally justify the striker's discharge unless the striker also
uses actions or gestures tending to show that the striker "means business"
in issuing the threat It is also true that Dorsey, in communicating his
879
that Respondent did not violate the Act in discharging
Dorsey for his threats to Lewis.
b. William Pegues
Pegues was discharged by Respondent for allegedly
following striker replacement Elizabeth Shankle in his
car as she drove away from Respondent's plant, then
chasing her when she tried to elude him, and, finally,
when the two cars were abreast, threatening her by
saying "I'm going to get you." Respondent's "honest
belief" that this occurred may be found not only from
Shankle's credible testimony that she reported it prompt-
ly to agents of Respondent, but also from evidence that
its attorney prosecuted a motion for a contempt citation
against Pegues before the district court that had entered
the temporary restraining order referred to earlier.60
Pegues denied any involvement in the incident-rest-
ing his defense in both the contempt proceedings and
before me on a claim of mistaken identity,, and citing the
fact that the license number of the, vehicle that Shankle
reported had followed her was not his own, but rather
belonged to another employee.61
I find, initially, that there was no mistake in Shankle's
identifying Pegues as the driver of the car in question,
notwithstanding that she misreported the license number
by one digit. Shankle had been a classmate of Pegues in
junior high school in Longview and had seen him peri-
odically in the community since -then, including on the
picket line. She described the driver of the vehicle
(whom she recognized as Pegues) as being,Black, heavy-
set, and wearing his hair in distinctive plaits or braids.
This was an accurate description of Pegues from my"
own observation of him. By Pegues' admission, the
owner of the vehicle bearing the license tags mistakenly
reported by Shankle is Caucasian. Shankle was a sincere-
appearing and careful witness. I therefore credit her
identification of Pegues and discredit his denial that he
was involved in the incident.
I further credit Shankle's account of the details of the
incident, as follows: On exiting the plant on a day in late
March or early April, Shankle noticed Pegues following
her in a car that Shankle states she had seen him driving
around town before then. She drove, with Pegues fol-
lowing, to a nursery school located 3 or 4 miles from the
plant, where she was to pick up her children. When she
parked at the school, Pegues parked nearby. When she
left the school with her children and drove 'away, Pegues
followed her in his car. Shankle accelerated to speeds up
to 70 miles per hour in an effort to evade Pegues, but he
sped up similarly and remained close to her, rear bumper.
Eventually, Shankle made a U-turn at an opening in the
highway median strip and, while both vehicles were
threats by telephone, could not be charged with any visible actions that
might "give import" to his threats. But his repeated uttering of the threat
to "get" Lewis had the effect of giving such import.
so The district court found Pegues guilty of contempt The contempt
proceedings were held in March, before the strike ended. Respondent
therefore knew about and pursued the prosecution of the incident in due
course and did not simply seize on it belatedly or for tactical reasons re-
lating to the RD election or to the pending proceedings.
83 Shankle reported to the police that the license number was QMN
832. The license number on Pegues' car is QMN 835.
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
slowed, going in opposite directions, and the drivers'
windows of each car were adjacent, Pegues looked at
Shankle and said, "I'm going to get you." Shankle again
accelerated and Pegues negotiated the U-turn and contin-
ued the chase at high speed, breaking off only when
Shankle drove into the parking lot of the plant where
her husband worked. She signed a complaint with the
Longview police against Pegues on the following day,
after first reporting the incident to her supervisor at Re-
spondent's plant when she arrived at work that morning.
I conclude that Pegues made calculated and deliberate
efforts to terrorize and intimidate Shankle, both by his
high-speed pursuit of her over a substantial distance, and
by his direct threat to her that he was going to "get"
her. He thereby put her in genuine fear for her life. He
further endangered not only her own life and that of her
children by engaging in a high-speed chase on a public
roadway, but also the lives of other members of the mo-
toring public. This behavior was far more than a mere
momentary act of "exuberance"; and Pegues' actions in
chasing Shankle at speed before and after threatening her
"gave import" to his threats. The Act's "protective
mantle" over strikers is not made of concrete. I therefore
conclude that Respondent's decision to fire Pegues died
not violate the Act.
c. Q. Ray Williams
Williams was fired for allegedly having been involved
with another employee, MacGregor, in a high-speed
chase of two striker replacements, James Baugher and
Russ Roebuck, after the replacements had driven away
from the plant in Roebuck's car, driven by Roebuck.
The chase included bottle-throwing, verbal threats, and
the brandishing of a pistol by an occupant of the chasing
vehicle.
Although I am prepared to find that the incident took
place substantially as summarized above,62 I have sub-
stantial doubts as to whether Respondent has satisfied its
burden of showing that it had an "honest belief" that
Williams was one of the participants in what I would
readily conclude was an instance of "flagrant and egre-
gious" conduct warranting discharge. Put another way, I
can discern no evidence in the record that competently
identifies Williams as being involved, or that suggests
that responsible agents of Respondent had an "honest
belief" that Williams was involved.
The difficulty is this: Roebuck did not know who the
persons in the chasing vehicle were, and had never seen
them before or since. Baugher did not know their names
either, but he reported the incident by telephone to Re-
spondent's, rod plant superintendent, McGehee, as soon
as the chasing vehicle had departed. The next day, at the
plant, Baugher "filled out a paper" relating to the inci-
dent, but since he did not know the names of the persons
involved, "Bill Huffman" (identified at that point by
Baugher only as someone who "worked there") drove
82 Based on Roebuck's and Baugher's credible testimony that, while
not entirely consistent, nevertheless supports the summary The discrep-
ancies in their testimony are minor and derive in large part from their
different opportunities to see and hear-influenced by the fact that Roe-
buck was occupied with driving while Baugher was a passenger.
Baugher in Huffman's car to the picket line, and asked,
Baugher to point out the individuals who had been in the
chasing vehicle. Baugher states that said Huffman "told
me who they were." This is the sole basis for Baugher's
testimony that Williams (and MacGregor) were the cul-,
prits.
There is no clear-cut indication,of who the "Bill Huff-
man" named by Baugher is. The first consolidated com-
plaint dated February 27, 1980 (G.C. Exh. l(tt)) alleged
in its paragraph 6, inter alia, that a `Bill Huffman" was
then and at all other times material Respondent's "Assist-
ant Personnel Director." Respondent's answer stated,
however: "Respondent denies that Bill Huffman is now
acting an any capacity on its behalf. . . . Respondent
admits that Bill Huffman was in its employ a portion of
the time material to this complaint, but avers that at no
time did he act as an agent in Respondent's behalf or as a
supervisor within the meaning of Section -2(11) of the
Act."63 I also note the testimony of employee Edward
Roberson (at Tr. 1782) referring to a "Bill Hoffman"
who, according to Roberson "at that time was working
in personnel, I don't know really what his title was, he
was-at one time over security, I think."64
From all the foregoing, it is inferable that Roberson's
"Hoffman" and Baugher's "Huffman" are the same
person, and that he occupied some position in personnel,
relating to security. But, in the absence of any independ-
ent evidence, I could not even conclude that "Huffman"
was an agent or supervisor of Respondent-let alone that
he had first-hand knowledge of the identity of the man
to whom Baugher pointed on the picket line on the day
after the chase episode.
Williams, called by the General Counsel before the
testimony of Roebuck and Baugher was introduced, gen-
erally denied any improprieties during the strike; and he
was never questioned specifically about any involvement
in the incident described by Roebuck and Baugher. Re-
spondent did not call "Bill, Huffman" or anyone else
with first-hand knowledge of the identity of the individ-
ual whom Baugher had identified on the picket line on
the day after the incident. Neither did Respondent
summon Williams to be present for possible identification
by Roebuck or Baugher when those latter witnesses tes-
tified.
Therefore, on this record, the only basis for conclud-
ing that Respondent had an "honest belief" that-Williams
was one of the culprits lies in Baugher's testimony that
someone named "Bill Huffman" said so. Wholly apart
from the hearsay features of this testimony, Respondent
failed to show how, if at all, said "Huffman's" identifica-
tion of one of the culprits as being Williams came to be
communicated to responsible officers or agents of Re-
spondent. Although there is general testimony in the
record regarding the measures that Respondent took to
memorialize incidents of striker misconduct, there was
no evidence tendered by Respondent showing how Re-
63 G.C. Exh l(vv), pp 3-4.
64 And see testimony of Respondent's parent corporation's director of
industrial relations, Kenneth Griffth, referring obliquely to "Huffman" in
connection with the same incident about which Roberson testified (Tr
1729 13-20) .
AXELSON, INC. 881
spondent's admitted management came to believe that
Williams was a guilty party in the incident in question.
Here, as in General, Telephone, supra, Respondent's
burden was not only to show that some misconduct took
place, but also to link a particular employee to a particu-
lar act of misconduct.6 5 Respondent did not satisfy this
burden merely by showing that Baugher was told by
someone named "Bill Huffman" that a striker on the
picket line to whom Baugher was pointing was named
"Ray Williams." Rather, I conceive it to have been Re-
spondent's burden here to show that: (a) the said "Huff-
man" was knowledgeable as to the identity of the striker
to whom Baugher was pointing; and (b) that this infor-
mation was communicated to some responsible agent of
Respondent and was relied on.
Moreover, any suggestion that the record be reopened
to permit Respondent-if it can-to provide such missing
information would be clearly unmeritorious in light of
the Board 's discussion of the same suggestion in General
Telephone, supra at footnote 10.66
Accordingly, it having been shown that Williams was
discharged for conduct that occurred during the course
of a protected strike, and there being no reliable evi-
dence that Respondent had an honest belief that he en-
gaged in misconduct, I sustain the complaint as to Wil-
liams to the 'extent it may be construed as an allegation
that Williams was wrongfully discharged for his strike-
related activities. 67
d. William J. Bryant
Bryant was discharged for allegedly having pointed a
pistol out of his car window in the direction of pickets
and other Axelson employees who were standing near a
guard shack at an entrance to the plant. Bryant was him-
self-a strike participant at the time. Respondent 's "honest
belief" that the incident occurred may be found in evi-
dence that the plant guard immediately called the police
to report the incident ,68 I infer from the proven role
played by guards at plant entrances during the strike that
the guard logged the incident and reported the same in
due course to responsible company officials.
Bryant admits his involvement in the incident, but
denies that he personally pointed the "pistol ." Instead,
says Bryant, he had driven up to a point across the street
from the plant entrance in order to wave to his fellow
employees who were on picket duty that evening. Before
he could roll down his car window to do so, however,
his 4-year old grandson , who was seated next to him in
the car, leaned across him, and pointed a toy popgun in
65 251 NLRB 737, 739.
66 There, the Board rejected the suggestion that the employer should
be given a "second opportunity" to introduce more specific evidence
bearing on the "honest belief' issue The Board 's rejection was based on
"longstanding Board precedent clearly setting forth the nature of the re-
spective burdens of proof in cases such as the instant one." I note further
in this regard that General Telephone itself was decided before the instant
litigation had begun.
67 This is one of many instances in which the "bypass" theory in com-
plaint par 10 misstates the real question at issue, thus complicating inter
alia, the question of an appropriate remedy (see the remedy section,
infra).
68 Testimony of employee A L. Taylor, and police officers Ronald
Vick and DeLois Jones.
the direction of the plant entrance, causing several per-
sons near the entrance to scurry for cover. 69 Realizing
that this had caused something of a panic, states Bryant,
he drove away from the scene.
It is uncontradicted that Bryant heard shortly thereaf-
ter on his own CB radio that police were broadcasting
his name and car license number on suspicion that he
had pointed a firearm towards persons at the plant en-
trance. It is further uncontradicted that he then notified
the police, and gave some sort of explanation, and that
no formal proceeding against him ever ensued.
The discrepancies in testimony regarding these inci-
dents include: (a) whether it was Bryant who pointed the
gun, or his grandson and (b) whether the gun was truly a
toy popgun, or a real firearm. Jones, the police witness
who spoke with Bryant, does not recall him referring at
all to any other, persons as being involved in the incident,
and quotes Bryant as admitting: "I had a pellet pistol, but
I was not trying to hurt anybody or scare anybody."
Taylor, the employee witness who was standing near the
guardshack, states that neither he nor the guard, nor any
other persons who ran for cover, were sure that Bryant
had even been pointing a gun . Taylor conceded that the
instrument could have been a toy popgun, or even Bry-
ant's finger.
.From the foregoing, I have very little doubt that the
instrument was, in fact, a toy popgun . I also formed the
impression of Bryant that he was a careful and truthful
witness. I therefore credit his account of the incident,
notwithstanding the fact that he may have referred to
the instrument as a "pellet pistol" when he voluntarily
called the police about the incident, and even though he
may have chosen not to implicate his grandson in the
whole affair and, instead, told the police that he had been
holding the "pellet gun."
Because I have found that it was Bryant's grandson
who momentarily pointed the popgun in the direction of
the plant entrance, it follows that Bryant himself was not
guilty of "misconduct" in the affair.70 Even assuming,
arguendo, that it was Bryant himself who brandished the
popgun, I would not conclude that such conduct was so
"flagrant or egregious" as to put it beyond the Act's pro-
tection. I, am satisfied that Bryant did not intend to cause
any panic, even though, given the background of strike
violence that appears on this record,71 it was not unrea-
sonable for the picketers and others situated across the
street from Bryant's car to have misapprehended the situ-
ation. Bryant voluntarily turned himself in and explained
the situation to the police. He was not prosecuted. His
actions (continuing the assumption for argument's sake
69 Bob Hancock , Bryant 's friend, credibly testified that he had given
the Bryant grandson a toy gun earlier that evening when the families had
visited at Hancock's house
70 I do not think that the unfortunate incident was so predictable that
Bryant should have anticipated the child's pointing his new toy out the
window and somehow taken steps to ensure that the child not do so
71 See, e g., testimony of Ed Roberson regarding gunfire through his
truck windshield parked in his residential driveway , in addition to testa-,
moray cited already
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he was holding the popgun) had no impact beyond
the immediate and short-lived panic that resulted.7 2
Accordingly, while the incident had the potential for
tragedy, the same was neither -intended by Bryant nor
did it result in the significant impairment of the rights of
either nonstriking employees or those of the public as a
whole. I therefore conclude that Bryant's actions (if Bry-
ant's own actions be deemed in any way culpable) were,
at most, a momentary display of animal exuberance and
that he did not forfeit the protection of the Act. Re-
spondent's discharge of Bryant therefore violated Section
8(a)(3) and (1).
e. Jimmy G. McGrede
Jimmy G. McGrede73 was discharged for his alleged
participation in a number of strike-related incidents. In
proving its "honest belief' that McGrede was guilty of
misconduct in several instances, Respondent relies on the
evidence that it submitted against McGrede in a motion,
for contempt filed on June 5.in Gregg County District-
Court.7 4
(1) Incident at J. T. Skillet's Restaurant
In its motion for contempt, Respondent averred that
McGrede came into J. T. Skillet's Restaurant in Long-
view on April 11 and "proceeded to harass, threaten and
intimidate" nonstriking employees Jim Johnson, Bob
Ross , Doyle Stevens, and Marshall Thomas,75 until the
police were called and persuaded McGrede to leave the
premises. The motion was no more specific. Appended
to that motion were notarized "form" verifications
signed by the above-named nonstrikers, each one of
which stated in pertinent part:
I am a movant in the foregoing Motion for Con-
tempt. I have personal knowledge of the facts and
allegations stated in it, and they are true and cor-
rect.7 6
I treat Respondent's evidence in the form of the verifi-
cations quoted above as establishing that it had an honest
belief before its discharge of him that McGrede engaged
in misconduct during the J. T. Skillet's incident. The
record before me, however, utterly fails to establish that
72 Although Taylor testified that he ran for cover with the others, he
promptly calmed down and pursued Bryant 's departing vehicle long
enough and closely enough to record the license number.
78 Not to be confused with R . D McGrede , another alleged discrimin-,,
atee whose situation was, discussed in sec II1,E, above
74 On August 28, McGrede appeared in court and , pursuant to a nego-
tiated arrangement participated in by the court, pleaded guilty (while de-
nying having threatened anyone in connection with the J. T. Skillet's in-
cident described below). I base this much on McGrede's credible and un-
denied testimoy More than a year later, and while this proceeding was
underway, the court entered an order on October 24, 1980, sustaining Re-
spondent's motion for contempt and ordered that McGrede pay a $500
fine and , serve 6 months in jail-all suspended on condition of no further
violations of the restraining order for 30 days (R. Exh. 40). The order
makes findings that fully echo Respondent's averrals in its motion for
contempt , except as to the J. T. Skillet's incident, which omits the term
"threaten" that had appeared in Respondent 's pleading . And see discus-
sion below
75 The three named nonstrikers had initially joined the strike, but had
recently returned to work.
76 See appendices to R. Exh. 39.
McGrede engaged in either "threats" or "intimidation"
of the' nonstrikers in J. T. Skillet's. Respondent called
Stevens and Wages to testify about the incident. Al-
though each of them attributed the use of harsh words
and impolite accusations to McGrede, I would not find
that McGrede's actions amounted to "flagrant or egre-
gious" misconduct. Ignoring McGrede's more diluted
version of the incident, and relying solely on the testimo-
ny offered by Stevens and Wages, it appears that, at
worst, McGrede confronted the group of nonstrikers and
angrily demanded of Johnson why he had crossed, the
picket line, saying that he (McGrede) could have found
work for Johnson if he needed the money, and further
made references to Wages as a "scab" and a "freeloader"
for having abandoned the strike. There were never any
threats by McGrede, nor gestures calculated to frighten
or "intimidate" the nonstrikers, so far as the testimony of
Stevens and Wages would reveal.
Although McGrede's behavior may have been noisy
and disruptive, nothing in the strike misconduct' cases
suggests that a striker loses the protection of the Act by
rough or vigorous accusations or by unsolicited attempts
to debate with fellow workers who have chosen to aban-
don a strike. Strikers normally experience feelings of
rage and betrayal when they view other strikers breaking
ranks and returning to work. And efforts by strikers to
enlist support for the Union's cause, including by at-
tempts to shame nonstrikers by such epithets as "scab,"
are not only "commonplace" in labor struggles, but they
are protected by Section 7 of the Act.77
Accordingly, I find nothing in the testimony about the
incident at J. T. Skillet's on which Respondent could
properly rely as constituting grounds for discharging
McGrede.
(2) May 20 and 29 picket line incidents
Respondent averred in its motion for contempt that,
on May 29, McGrede "hit the side of [nonstriking em-
ployee] Preston Huff's vehicle with a picket sign.
[Whereon] . . . Huff stopped and said `watch it, fellow,
this cost , a lot of money' [and whereon] McGrede then
told him to come back across the line and threatened
him."
Respondent further averred as follows regarding an
earlier incident on May 20 : "Roswell Green was leaving
Plaintiffs premises as he was getting off work. As Mr.
Green ' attempted to drive through the gate .. .
McGrede , hit his car with a picket sign. Mr. Green
reached out and pushed the sign away from the car. Mr.
McGrede then yelled at Mr. Green to `come back and
fight.' The guard at the gate asked Mr. Green to drive
on and he did"
Both Huff and Green signed notarized "form" state-
ments that were appended to 'Respondent 's motion for
contempt swearing that Respondent's averrals were true
and correct . I therefore conclude that Respondent had
an "honest belief" before discharging him, that McGrede
had engaged in the above -described acts.
77 Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 58 (1966); see
also Letter Carriers v Austin, 418 U.S. 264, 270 et seq. (1973).
AXELSON, INC.
Neither Huff nor Green testified in the instant pro-
ceeding, however. Before Respondent introduced the
pleadings relating to its motion for contempt, the Gener-
al Counsel addressed those episodes obliquely merely by
asking McGrede: "Did you ever strike a car or a person
with your picket sign?" McGrede replied: "No sir," just
as he did to the question whether he had ever "attempt-
ed" to do so.
This, together with the evidence concerning the con-
tempt proceeding, is the entirety of the evidence in this
case record hearing on these alleged incidents. The ques-
tions thus posed are:
(a) Did the General Counsel come forward with suffi-
cient evidence that McGrede did not, in fact, engage in
the May 20 and May 29 incidents as to trigger a further
shifting of the burden of coming forward to Respondent?
(b) If not, was the conduct about which Respondent
had an honest belief sufficiently egregious to warrant
McGrede's discharge?
The answer to the first question is not simple.
McGrede's denial was limited only to the accusation that
he had struck a nonstriker's car with his picket sign-and
not whether he had also "threatened" the occupants of
the two cars. In addition, McGrede had earlier "con-
fessed" his guilt as to all counts averred in Respondent's
motion for contempt, except as to an allegation that' he
threatened persons at J. T. Skillet's. On the other hand,
the claims in the Huff and Green incident were quite
sparely stated in Respondent' s motion-indeed the al-
leged "threat" in the Huff incident amounted to a char-
acterization, not a specific factual averral.78 Moreover,
McGrede's confession before the local court was in the
nature of a negotiated plea and its significance is thereby
diminished in attempting to discern what, in fact, hap-
pened during the Huff and Green incidents.79
In McQuaide, supra, the Board refused to place reli-
ance on the contempt citation issued against certain strik-
ers by a local court, stating that it would not "abdicate
... to another tribunal" its duty to make its own assess-
ments on questions relating to the seriousness of picket
line misconduct.80 In these circumstances, I view
McGrede's denial as sufficient to put in issue just exactly
what did happen in the Huff and Green episodes, thus
"shifting back" to Respondent the burden of calling wit-
nesses with first-hand knowledge to rebut the General
Counsel's evidence.81 Respondent elected not to call
such witnesses, resting instead on the perfunctory aver-
rals that it had itself drafted for inclusion in its motion
for contempt and that had been only adopted by refer-
ence by Huff and Green. 'Respondent thereby chose to
take the risk that I might find, in the absence of testimo-
ny by its own witnesses, that either the misconduct did
not take place, or that it was not "flagrant or egregious"
misconduct within the meaning of McQuaide , supra.82
78 "McGrede then told him [Huff] to come back across the line and
threatened him " (Emphasis added.)
as See discussion in Markle Mfg, supra, 239 NLRB at 1152.
So 220 NLRB at 594, citing NLRB v. 'Cambria Clay Products Co., 215
F.2d 48, 54 (6th Or 1954).
Si General Telephone, supra at 739 and cases cited at fn. 10.
sz Markle Mfg., supra, 239 NLRB at 1152.
883
I therefore conclude as follows: Respondent did not
carry its ultimate burden of proving that McGrede en-
gaged in misconduct in connection with the Huff and
Green incidents. Alternatively, Respondent failed to pro-
vide sufficient evidence about those incidents to warrant
the conclusion that McGrede engaged in "flagrant or
egregious" misconduct.
(3) Other incidents involving McGrede
The General Counsel elicited testimony from
McGrede regarding two other incidents of arguable
strike misconduct.88
In one such instance , the General Counsel opened the
subject of McGrede's having made some statement to
nonstriker Bobby Huey Jr. during the strike that, as
McGrede admitted, resulted in Huey's filing charges
against him and in the issuance of a warrant for
McGrede's arrest, whereon McGrede was required to
post some sort of "bond." Respondent pursued the
matter on cross-examination of McGrede, and McGrede
admitted that he had told Huey "be careful on the way
to Kilgore, because I would hate for anything to happen
to you."
In another such instance, the General Counsel elicited
from McGrede an account of McGrede's having been in-
volved with two other strikers, S. L. Curtis and Kevin
Adair, in having driven past the home of nonstriker
Doyle Stevens in the early morning hours, and in having
been stopped and questioned by the local police.
When Respondent later called Doyle Stevens as a wit-
ness, after obtaining his account of the J. T. Skillet's in-
cident, its counsel pursued the matter of McGrede's and
the two other strikers' having driven past his home.
From Stevens' testimony, I would find that McGrede,
Curtis, and Adair, in fact, followed Stevens home, made a
second pass by his house after he had arrived, and then
parked at a nearby filling station until Stevens called the
police.84
Respondent failed to introduce any evidence, however,
that it either knew about, or relied on, such incidents in
deciding to discharge McGrede for alleged strike mis-
conduct. Neither incident was adverted to in Respond-
ent's motion for contempt filed against McGrede on June
5, although both incidents occurred before the strike
concluded on May 31,85 and although both incidents
83 This was done before Respodnent had presented its own case in-
volving McGrede. In this, as well as in other situations in which the
General Counsel anticipated defenses, I permitted the inquiry only on the
General Counsel's representation that he had reason to believe that Re-
spondent would seek to litigate the incidents, and deferred to his judg-
ment that following this procedure would ultimately economize on the
witnesses' time See, e g , Tr. 36.10-37; 85:3-86 1; 158.24-160:25; 747.22-
25
84 Assuming that it is relevant (but see below), I would credit Stevens'
version as just summarized McGrede's explanation for his presence in
Stevens' neighborhood that night-to the effect that Adair and Curtis
were merely curious as to where Stevens lived and that McGrede merely
volunteered to show them Stevens' residence-was plainly false.
85 From R. Exh. 41, a complaint filed by Huey against McGrede with
the City of Longview clerk on May 9, it appears that the incident be-
tween McGrede and Huey occurred on the same date. The complaint did
not provide any specifics of McGrede's complained-of actions, but
merely recited that McGrede "Did . unlawfully and knowingly abuse
Continued
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were in plain violation of the earlier, broad restraining
order.
It was Respondent's burden to show that it had an
"honest belief' that McGrede had engaged in the latter
two incidents when it decided to discharge him. Because
Respondent made no such showing, I do not consider
these incidents in determining whether it lawfully, dis-
charged McGrede.86 Based on my analysis of the inci-
dents that Respondent did demonstrate that it knew
about before firing McGrede, for the reasons already
stated, I conclude that McGrede did not engage in "fla-
grant or egregious" misconduct. Accordingly, I conclude
that Respondent's failure to reinstate McGrede violated
Section 8(a)(3) and (1) of the Act, as alleged in the com-
plaint.
f. S. L. Curtis
The question of Curtis' alleged strike misconduct may
be treated summarily in the light of the above discussion
pertaining to McGrede. Respondent introduced no evi-
dence that it had an "honest belief" before discharging
him87 that Curtis had engaged in strike misconduct.
From Stevens' and McGrede's testimony summarized
above, it is evident that Curtis accompanied McGrede in
following Stevens to his home early one morning during
the strike. And on brief, Respondent cites only that evi-
dence as justifying its "discharge" of him. For reasons
identical to my discussion of the "other incidents" in-
volving McGrede, I conclude that Respondent failed to
meet its burden of coming forward on the "honest
belief' element of its case. I therefore find that Curtis
was unlawfully discharged for his strike-related activities.
G. Former Strikers Denied Reinstatement for Failure
to Pass Physicals
1. Introduction and findings
Six former strikers (C. C. McKee, Otis D. Nichols,
Donald E. Brightwell, Robert Washington, J..E. Allen,
and Douglas Wheelis) were offered reinstatement, sub-
ject- to passing a physical examination, which they all
"failed."88 They have in common that they were em-
(threaten) Bobby N Huey, Jr in a public place . . . in an obviously of-
fensive manner, contrary to Section 42.01 (a)(4) of the Texas Penal Code,
against the peace and dignity of the State " Respondent placed this exhib-
it into evidence during its own presentation, on December 3, 1980.
McGrede had testified about the incident on the preceding October 29
There is no evidence as to when Respondent first became aware of that
complaint by Huey against McGrede
96 Should it somehow be determined on review that Respondent was,
in fact, influenced in its discharge decision by knowledge of McGrede's
conduct in the Stevens and Huey episodes , thus requiring an analysis as
to whether McGrede's conduct in those incidents was "flagrant or egre-
gious," I would conclude that it was In each case, away from the picket
line, McGrede deliberately sought to intimidate nonstrikers into believing
that they were in danger while driving to their residence His actions,
therefore, were not mere momentary acts of spontaneous "exuberance."
97 If, indeed, it ever did so discharge him Unlike the others in ques-
tion here, Curtis never received any notification that he had been fired
99 The first four named had been denied reinstatement earlier for alleg-
edly having abandoned their jobs by taking permanent employment else-
where. I have found that this earlier action was unlawful and that Re-
spondent should have reinstated them when their jobs admittedly became
vacant I consider them again under the current heading'only because
Respondent has, essentially , raised a second defense as to them and as to
ployees of long standing at the Longview plant, that
they were each offered reinstatement to a job vacancy in
February or March 1980, subject to a requirement that
they pass a physical examination , and that they were
denied reinstatement because of allegedly disqualifying
conditions that were revealed in the course of those ex-
aminations.
There is this additional background relevant to a dis-
cussion of Respondent's treatment of these individuals:
Respondent has normally required new job applicants to
take preemployment physical examinations, but, as sever-
al employees credibly testified, and I find, back X-rays
were not routinely required.89 Neither did Respondent
ever. have a policy of requiring its employees- once em-
ployed-to submit to and pass physical examinations as a
condition of retaining their employment. When the strike
concluded and former strikers began to be reinstated,
they were initially permitted to resume their former jobs
without being required to take a new physical examina-
tion. Similarly, employees employed before the strike
who did not answer the strike call, or who returned to
work before the strike was called off, were not required
to take examinations. Indeed, many employees hired as
permanent replacements were not initially required to
take physical examinations as a condition of their hire;
and Respondent has made no blanket effort to "catch-
up" with employees in that category, but, rather, has
waited for any such employees to take the initiative to
raise the matter with one of Respondent's officials before
making arrangements to conduct a posthire examination
on such individuals.90
It was, therefore, an admitted change in Respondent's
historical policy for Respondent to require of the par-
ticular former strikers involved in this discussion that
they submit to detailed physical examinations, including
back X-rays. Teegerstrom testified that the new practice
"began" and was "triggered by" an encounter that Tee-
gerstrom had with discriminatee Robert Washington in
late February, or early March 1980.91
There is some background to that meeting that is perti-
nent and instructive. Crediting Washington's uncontra-
dicted testimony, he had suffered an on-the-job injury to
his back at Respondent's plant in the summer of 1978
when he fell from a loading dock and had been sent by
Respondent's plant superintendent, Kuykendall, to the
company physician (Dr. Mack) for treatment. Dr. Mack
did not X-ray Washington's back at the time, but, rather,
prescribed medication to relieve pain. Washington re-
turned to work at Respondent in due course and worked
there without incident until he joined the strike. When
the other two employees named above that it had a right to deny them
reinstatement because they had physical disabilities that made it too risky
for Respondent to reemploy them.
89 Brightwell so testified, as did Nichols, McKee, and Allen.
90 The foregoing is taken from Teegerstrom's testimony at Tr 1859-
1865.
91 Teegerstrom did not indicate the date on which he met with Wash-
ington I find from Washington 's testimony describing the same incident
that the conversation occurred 2 or 3 weeks after Washington had first
gone in February 1980 to see Teegerstrom about a want-ad then running
in the local paper in which Respondent sought applicants for, inter alia,
the job of automatic multispmdel machine operators (i e, Washington's
prestrike job classification)
AXELSON, ITc.^ 885
he saw Respondent's public want-ad for applicants for
the job he had held before the strike, Washington went
to the plant in February 1980 to inquire. Teegerstrom
told him that he was not eligible for reinstatement, link-
ing this declaration to a preliminary conversation in
which Washington admitted that he was still employed
by a local cookie factory.-About 2 weeks later, Washing-
ton returned to inquire whether Respondent would pay
for the continuing costs of medication for his back injury
at Respondent 1-1/2 years earlier. Both Teegerstrom and
Washington agree that this caused Teegerstrom to pull
Washington's personnel file and learn that there was no
record in it pertaining to Washington's injury.
Returning to Teegerstrom's account, this visit by
Washington 'allegedly caused Teegerstrom to consult
with other members of management. As he put it, "It
was a result of that . . . that the physical examinations
for returning strikers was instituted. Approximately a
year had gone by since the people went out on strike, I
didn't know what their physical condition was, and quite
frankly, that is what triggered the physicals."92
As a result, according to Teegerstrom, when vacancies
later became open for strikers awaiting reinstatement,
they were required as a condition to reinstatement to
pass comprehensive physical examinations, including
back X-rays.
It is uncontradicted in the case of five of the six strik-
ers now under discussion (i.e., all but dames Allen) that
their back X-rays revealed evidence of spinal irregular-
ities that 'could be aggravated by performance of the
types of work that they had been accustomed to per-
forming throughout their prior employment with Re-
spondent. It is further uncontradicted as to them that the
physician who reviewed their radiograms recommended
that they be disqualified from reemployment. The Gener-
al Counsel expressly disclaimed any challenge to the
bona fides of that medical judgment.93 It was neverthe-
less proved that three of them (Wheelis, McKee, and
Nichols) had recently passed physical examinations,
which included back X-rays, in connection with their se-
curing of similar if not more rigorous jobs with interim
employers. It is further agreed that Allen's physical ex-
amination showed a high blood pressure condition that
increased the possibility that his health might suffer from
performing warehouse work, his prestrike job. I also
find, however, as Allen credibly testified, that Allen had
suffered from a high blook pressure condition for some
years before the strike, that he had taken medication to
alleviate it, and that he had informed his warehouse su-
pervisor, Anderson, about the condition, and had re-
ceived Anderson's permission at least once to leave work
early to, refill his prescription.
92 Teegerstrom also testified by way of background that he had been
under considerable pressure from higher management to do something
about the allegedly high rate of on-the-job accidents and the lack of any
comprehensive "safety" program (see R. Exhs 50 and 51) and that he
had been in the process since the preceding September of emphasizing
safety issues in meetings with employees.
93 See, e.g, Tr. 1851:21-1854.
2. Conclusions
I conclude that the six strikers in question were treated
differently from other existing employees of Respondent
and that, but for their participation in the strike, they
would not have been compelled to submit to the rigor-
ous physical examinations that revealed the defects that
Respondent now relies on as a defense to its obligation
to reinstate them to admitted job vacancies. It is also
clear that Respondent did not use the same rigor in its
screening of replacements during the strike, and that
even now, with notice that some replacements had never
taken physical examinations , Respondent has not made
any systematic effort to correct that situation.
Under all those circumstances, I have no difficulty in
concluding that Respondent's conduct was inherently de-
structive of important employee rights under Sections 7
and 13 of the Act. The Board has clearly held, with
court approval, that an employer may not-including by
the device of imposing physical examinations-treat re-
turning strikers as "new" employees. Standard Materials,
237 NLRB 1136 (1978), and authorities cited, enfd. 604
F.2d 449 (5th Cir. 1979). See also Decker Foundry Co.,
237 NLRB, 636, 641 (1978).94 For it is evident that the
exercise of important rights under Sections 7 and 13 of
the Act would be chilled if an employer were permitted,
in effect, to "take a second look" at the suitability for re-
instatement of employees who would not have under-
gone such scrutiny if they 'had never joined a lawful
strike. Markle Mfg. Co., supra, 239 NLRB at 1150 (em-
ployer may not seize on lawful strike to review strikers'
competency and desirability and then use results of such
review as "business" reason for refusal to reinstate strik-
ers who fail to pass review).
Moreover, even if the imposition of unprecedented
physical examination requirements on returning strikers
were not in the "inherently destructive" category, I
would find on this record that Respondent's motives for
imposing them were not merely linked to "legitimate and
substantial business considerations." An employer is not
required by the Act to continue forever its traditional
policies respecting minimum health and physical require-
ments for its employees. Here, however, Respondent has
not shown by anything other than the most undocument-
ed and generalized claims of Teegerstrom that there was
some business need on Respondent's part to tighten up
its physical eligibility requirements on an across-the-
board basis. On the contrary, as Teegerstrom admitted,
employees who did not join the strike, or who aban-
doned the strike, were immune from Respondent's newly
imposed and rigorous health and physical eligibility tests;
and striker replacements were not systematically re-
quired to submit to such tests. Finally, it strikes me as no
coincidence that four of the six employees who were
denied reinstatement because they did not pass such tests
were employees who had been wrongfully denied rein-
94 Consistent with this view, it has been held in Board compliance
cases that an employer's offer to reinstate a former striker that is condi-
tioned on the striker's successfully passing a physical examination violates
the striker's right, on his unconditional offer to return, to "unconditional"
or "full" reinstatement, and therefore does not toll the employer's back-
pay obligation E g., Craw & Son, 244 NLRB 241 (1979).
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statement to admitted vacancies months earlier , and that
the inspiration for the implementation of a new testing
program sprang from Teegerstrom 's meeting with one of
those four, Washington. It seems far more likely that Re-
spondent, admittedly aware by the time of the Teeger-
strom-Washington meeting that it had lost in RD pro-
ceeding on its challenges to those four based on 'their al-
leged permanent employment elsewhere , was anxious to
seize on some device by which it might toll its continu-
ing backpay liability as to such employees. The imposi-
tion of a requirement that they submit to new and more
stringent physical eligibility tests was, of course, one
such means by which this might be accomplished.
Accordingly, I conclude that Respondent's imposition
of the physical examination requirement on the six re-
turning strikers amounted to unlawful discrimination, in
violation of Section 8(a)(3) and (1) of the Act. Since Re-
spondent admittedly offered reinstatement to vacant jobs
to J. E. Allen and Douglas Wheelis, about, respectively,
March 15, 1980, and March 28, 1980, to which they
would have been reinstated but for the unlawful exami-
nation requirement, I conclude that those dates are ap-
propriate for purposes of establishing the dates of the un-
lawful discrimination and the commencement, of the
backpay period . Because the other four in question here
were entitled to reinstatement much earlier, as indicated
in an earlier section , I conclude merely that their failure
to pass Respondent 's unlawfully imposed examination
neither justified Respondent 's failure to reinstate them,
nor tolled their continuing backpay rights linked to the
earlier unlawful bypassing of them.95
H. Miscellany
1. Introduction
It is useful to recall that Respondent's actions in chal-
lenging the voting eligibility of former strikers on the
grounds that, they were permanently employed else-
where , or had engaged in strike misconduct, did not per
se, have any demonstrable prejudicial impact on their re-
instatement or recall rights. All former strikers treated in
the foregoing sections were shown to have been denied
consideration for any further employment . By contrast,
some of the employees covered in this Miscellany section
were also challenged at the election on -one of those
grounds, but Respondent nevertheless treated,them as el-
igible for reinstatement after apparently reconsidering
and abandoning its challenge position.
Concerning these individuals , the complaint never
raised the potential argument that Respondent 's action in
challenging them was, per se, violative of their recall
rights. Rather , the complaint merely alleged that Re-
spondent committed an independent violation by failing
to recall them as of certain dates; and the General Coun-
sel sought only to introduce evidence in their cases -that
might suggest that they would have been recalled at an
earlier point than they actually were. Moreover, the
General Counsel did not demonstrate as to any persons
in the miscellany category that Respondent's bare action
in challenging their voting eligibility triggered any other
95 Craw & Son, supra.
"real" action that impaired their Laidlaw recall rights.
Accordingly, consistent with the theory embedded in the
complaint as to those individuals, I consider only wheth-
er the General. Counsel's evidence was sufficient to raise
an inference of actual discrimination in their recall;96
and, if so, whether Respondent met its burden of show-
ing - that its actions nevertheless were taken in further-
ance of some legitimate and overriding consideration un-
related to their participation in the strike.
2. D. R. Daniel
The complaint alleges that Daniel , was wrongfully
denied "recall to his former job on May 31. Daniel's
prestrike classification was tool and die (T&D) maker.
Based on the evidence submitted by the General Counsel
during his case in chief and on the summary arguments
he makes on brief, it appears that the claim that Daniel
was wrongfully bypassed for reinstatement is linked to
the testimony of one recalled striker, Jackie Orms, that a
former vertical turret lathe operator, Ed Roberson, was
promoted to the T&D job in July-at a time, when the
more senior Daniel was awaiting recall. Orms' percep-
tion that Roberson did not receive the promotion to the
T&D job until July is actually an assumption, based on
Orms' noticing that Roberson was working on the verti-
cal turret lathe when Orms was' reinstated in late June,
and that Roberson did not move his tool cart into the
"toolroom" (the normal worksite for T&D makers) until
about July 9.
This is an example of situations alluded to earlier in
which the General Counsel persisted in alleging that a
wrongful bypass occurred on one date (May 31 , in this
case), but where his only evidence of a bypass related to
something that happened much later (here, about July 9).
It has never become evident to me why the General
Counsel selected the May 31 date as the "bypass" date
for Daniel in the complaint ; or why, after numerous
pointed invitations to review and reconsider the informa-
tion that he had in hand and to thus clarify his position,
he nevertheless insisted on adhering to the May 31 date.
Respondent clearly could not know, therefore, that the
General Counsel 's "real" basis for claiming that Daniel
was discriminated against on May 31 lay in the informa-
tion that Orms provided about the apparent filling of the
T&D job on July 9. Neither did it put Respondent on
sufficient notice of the General Counsel's "real" theory
simply to adduce the above testimony from Orms. There
are numerous Board cases in which some allowance is
made for variances between pleading and proof, especial-
ly where timely amendment is proposed by the General
Counsel. I know of no holding by the Board, however,
that completely relieves the General Counsel of any obli-
gation whatsoever to make a good-faith effort to spell
out in a complaint what it is he is attacking . Especially
under the circumstances narrated above in section II, and
where the General Counsel has relied from the outset
solely on Orms' information as the basis for including
ss For reasons that I outlined in sec II, I further limit my principal
consideration to whether or not the General Counsel made a prima facie
case of discrimination occurring around the dates set forth in par. 10 of
the complaint
AXELSON, INC.
Daniel in the complaint, it was nothing short of abusive
for the General Counsel to have merely presented Orms'
testimony and to leave it to Respondent to divine that it
was that testimony that somehow tied into the allegation
in paragraph 10 of the complaint that Daniel was some-
how bypassed on May 31.
I would therefore dismiss the Daniel matter pro forma,
lest the General Counsel be encouraged in the belief that
he may with impunity confound litigation in such a
manner.
Alternatively, I am satisfied that Respondent has met
its burden (if, indeed, it was its burden under these pecu-
liar circumstances) of showing that there were no T&D
vacancies for Daniel-neither on May 31, nor at any
time thereafter, including about July 9.
Thus, Respondent proved through the credited and
uncontradicted testimony of the following witnesses, that
Roberson (and two other employees) had been working
in the T&D classification since before the strike ended.
Toolroom Foreman Tommy Bennett testified that Re-
spondent hired Dwight Millburn as a T&D maker on
March 19. Plant Superintendent John Kelley, corroborat-
ed by Roberson, testified that Roberson approached him
in late April with a request to be considered for promo-
tion to the next T&D vacancy. Roberson had substantial
qualifications for the job based on prior machine shop
experience and experience in operating a variety of Re-
spondent's production machines. Kelley states that he im-
mediately recommended to Ed Probert, who had some
midlevel responsibility over the toolroom, that Roberson
be 'given the next T&D opening. Bennett then inter-
viewed Roberson and gave him the T&GD classification,
effective May 9, with the understanding that Roberson
would continue to complete a production run on the ver-
tical turret lathe, while also undertaking miscellaneous
T&D work. Respondent's payroll records reflect that
Roberson was converted to the T&D pay classification
on May 9. Bennett, Roberson, and a third T&D maker,
Allen Drake, testified that Roberson performed substan-
tial amounts of T&D work after May 9 and before the
strike ended, although not all such work was done in the
toolroom itself.97
From the foregoing, it is evident that Roberson occu-
pied the T&D classification well before Daniel uncondi-
tionally offered to return to work. It is also evident that
three T&D positions, including Roberson's, were filled
when the strike was concluded. No evidence was re-
ceived that would show that there was a post-May 31
vacancy for a T&D maker; neither was there any allega-
tion that some independent "bypass" of Daniel occurred
after May 31.
Accordingly, it being clear (Orms' perception notwith-
standing) that Roberson occupied the T&D slot before
May 31, and there being no other evidence tending to
91 Roberson's tool chest was mounted on wheels so that it could be
moved' around the plant That Orms saw Roberson bring his tools into
the toolroom in July therefore does not imply that Roberson had not
been doing T&D work before then. In fact, when Orms saw Roberson on
the vertical turret lathe in late June, Roberson may have been using it for
T&D work (not ordinary production work). Roberson credibly testified
that he used the vertical lathe for one such T&D assignment during this
period.
887
show that a T&D vacancy existed about May 31, I con-
clude that the complaint allegation pei taining to Daniel
must be dismissed.
3. J. D. Burkett
The complaint alleges that Burkett was wrongfully
denied reinstatement on May 31. In the face of a 10(b)
challenge to the selection of this date, the General Coun-
sel tried at trial to shift ground by seizing on a conversa-
tion that had taken place between Burkett and Teeger-
strom in January 1980. The General Counsel thus argued
in response to the 10(b) challenge: "Well, of course, it's
our position that the . . . refusal to reinstate occurred in
January of 1980."98 I remarked at the time that the Gen-
eral Counsel's statement was preposterous in the light of
the date used in the complaint, his persistent refusal to
disclose particulars to Respondent (which he justified on
the basis that the dates in par. 10 of the complaint were
sufficient to put Respondent on "clear, concise ... ade-
quate notice" of the conduct that was being challenged);
and in the light of his earlier refusal to amend the dates
in paragraph 10 when invited to do so. Nothing in my
subsequent review of, and reflections on, this record
have caused me to change my judgment in this regard.
Accordingly, I determine only whether Respondent met
its burden of showing that it had valid grounds for refus-
ing to reinstate Burkett to his -former position on May 31;
and I do not determine the significance, if any, of Bur-
kett's conversation with Teegerstrom in January 1980 to
some potential independent allegation that never ap-
peared in the complaint.
Before the strike, Burkett was the only person in the
classification of precision grinder (PG). The classification
existed in the toolroom, over which Tommy Bennett was
foreman. There were other employees in the department
classified as tool and cutter grinders (T&CG). Because of
its more exacting requirements, the PG job paid a premi-
um rate over that received by persons in the T&CG clas-
sification.
Burkett was not offered reinstatement when the strike
was concluded. Respondent claims that the PG classifi-
cation was eliminated due to intervening changed cir-
cumstances and that Burkett is eligible for reinstatement
to some other job for which he is qualified, but only if
he completes a "reinstatement bid and, acceptance form"
(see fn. 29, supra) indicating what classifications other
than the PG classification he would be willing to accept.
The uncontradicted evidence regarding the alleged
elimination of the PG classification'(which I credit) is as
follows:99 Before the strike, Burkett's precision grinding
work was mainly devoted to the grinding of precision
gauges used in the production of various types of oil
drilling equipment. Burkett spent approximately 18-20
hours each week doing such precision work, with the
balance of Burkett's time being spent on ordinary T&CG
work.
In March, Respondent's production system was audit-
ed by a team of engineering specialists associated with
98 Tr. 638 9-12
119 Credited testimony of Foreman Tommy Bennett.
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the American Society of Mechanical Engineers (ASME)
for the purpose of certifying that Respondent met recent-
ly imposed Federal regulations regarding the manufac-
ture of drilling equipment used on the Outer Continental
Shelf (OCS).100 A consequence of this audit was that all
gauges associated with the manufacture of OCS drilling
equipment were required to be manufactured by persons
licensed by the United States Bureau of Standards. Re-
spondent did not employ such, licensed personnel. Re-
spondent therefore began to subcontract the manufacture
of all OCS guages. Respondent had also subcontracted
portions of its earlier gauge-making requirements, but the
ASME/OCS process had the effect of requiring addi-
tional subcontracting.
The, net effect of the subcontracting of OCS gauge
making, coupled with the continuation of earlier subcon-
tracting practices, left only about 4 hours per week
worth of precision grinding work on non-OCS gauges.
Throughout the strike, according to' Bennett and other
representatives of Respondent (Hink and Teegerstrom),
this relatively small amount of precision work was as-
signed to the employees in the T&CG classification and
no one was employed in the PG classification. Such a
pattern has continued since the conclusion of the strike.
It is undisputed that some strikers with less seniority
than Burkett have ,been reinstated to their prestrike
T&CG classifications as openings emerged, but that Bur-
kett has been` bypassed for such openings. According to
Teegerstrom, this is because Respondent's policy has
been 'to accord priority in recall to persons with 'the
greatest classification seniority and Burkett held a differ-
ent (albeit more demanding) classification; and because
Burkett has refused to bid for the opportunity to fill a
vacancy in any classification other than PG.101
I conclude that Respondent met its burden of showing
that the elimination of the PG classification was under-
taken for legitimate and substantial business reasons unre-
lated to the strike, or to Burkett's participation therein.
The General Counsel did not come forward with evi-
dence to show that discriminatory motives lay behind
Respondent's elimination ' of the PG classification. Nei-
ther does he attack the overall policies used by Respond-
entin the 'recall -of strikers. Respondent therefore did not
discriminate against Burkett when it failed to reinstate
him to a previously eliminated classification; and the
complaint allegation pertaining to Burkett must be dis-
missed.
In addition, Respondent argued that Section' 10(b)
barred the issuance of a complaint over alleged discrimi-
nation against Burkett on May 31, where the, Union's
charge relating to Burkett was not filed until January 10,
1980. It is conceded by the General Counsel that the
January 10 charge filed by the, Union in Case 16-CA-
8877 was' the first charge to raise a challenge to the
treatment of Burkett' by Respondent, and that it was pur-
suant to that charge that the complaint issued on Febru-
ary 27, 1980, as to Burkett.102 The law is clear, howev-
100 The regulation that imposed the ASME certification process 1s
called "OCS-1."
101 The record shows, and I find, that Burkett has so limited himself.
102 Tr. 650 14-651:12
er, that Section 10(b) being an affirmative defense, the
burden is on Respondent to prove that there was some
basis for notice to an adversely affected party of the al-
legedly unlawful conduct more than 6 months before a
charge was filed over such conduct. See, e.g., ACF In-
dustries, 234 NLRB 1063 (1978), enfd. as modified 596
F.2d ' 1344 (8th Cir. 1979).
In the peculiar context of this case, wherein both the
Union and Burkett (the presumed affected parties) had
no obvious means of knowing what was going on inside
the plant regarding. hiring and assignment decisions (the
Union 'because it no longer was recognized by Respond-
ent as the bargaining representative, Burkett because he
was "outside," awaiting reinstatement), the 10(b) limitd-
tions period did not begin to run until such time as Re-
spondent could show that either of those parties had
actual or constructive knowledge of the elimination of
the PG classification. Respondent sought to meet this
burden by extracting from toolroom employee Jackie
Orms that Orms was aware of the elimination of the PG
classification as soon as he was reinstated to a toolroom
job on June 27, and that he so advised the Union's repre-
sentative, McKimmey, so that the Union could file a
charge that Burkett was being discriminated against. Re-
spondent came close, but Orms' best recollection of
when he brought this information to McKimmey's atten-
tion was that it happened about "two to three weeks"
after Orms' June 27 -reinstatement. I am satisfied that
Orms was attempting to recall in good faith when this
occurred .and that he had no idea of the significance of
this information. Thus, even assuming that he reported
the matter to McKimmey as early as "two weeks" after
his June 27 reinstatement, this would place the critical
transmission of information on July 11,-at the earliest.
This date happens to be within the 6 months dating back
from the January 10, 1980 -date on which the Union filed
the charge concerning Burkett (albeit by only 1, day).
The charge would therefore still be timely. Accordingly,
I reject Respondent's 10(b) defense as an alternative basis
for dismissal of the Burkett situation.
4. Bennie Jackson Jr. and Dan Watts
The complaint alleges that Respondent discriminatori-
ly failed to recall Watts and Jackson to their former jobs
when the strike ended on May 31.103 Both men were
classified as crane operators, who controlled overhead
cranes in what was known as the rod plant portion of
Respondent's operation. Only such rod, plant overhead
cranes were manned full time by persons having the dis-
crete classification "crane operator.", Other cranes
throughout Respondent's plant were operated by produc-
tion- helpers and materials handlers who performed such
work incidental to their other tasks. I confine my discus-
sion hereafter to the operation of the overhead cranes in
the rod plant. References to crane operators hereafter
thus refer only to persons so classified by Respondent.
103 Watts, the most senior of the unremstated crane operators, was re-
called in January 1980. As of the conclusion of the instant trial, Jackson,
the second most senior , was still awaiting recall.
AXELSON,,INC.
Before the strike, there were two such overhead
cranes-each manned by a full-time operator who con-
trolled the crane from a cab mounted on the crane.
Crediting Jackson's uncontradicted testimony, there were
five such crane operators before the strike: two on first
shift, two on second shift, and one on third shift. Shortly
after the strike began, Respondent filled four of those
classifications (all incumbents went on strike) with re-
placements.104
The only question, therefore, is whether, afMay 31,
there was an unfilled fifth vacancy.105 Crediting McGe-
hee's testimony, such a vacancy occurred on or shortly
before May 29, when the third shift was reactivated and
there was again a need for a fifth crane operator. 106
McGehee states that he filled this vacancy by reassign-
ing Douglas Schuette from his former job on the forge
machine, effective May 25, and in anticipation of the
May 29 resumption of the third shift. McGehee states
that Schuette had originally requested when he was
hired in March that he be hired as a crane operator, but
McGehee had persuaded Schuette to accept a forging
machine job instead, where he was more urgently
needed. McGehee further states, and I find, that he
promised Schuette at the time that he would give him a
crane assignment if he did not like the forging machine.
Further crediting McGehee, Schuette confronted McGe-
hee some weeks later, before the strike ended, saying
that he could not "cut it" at the forge, and requested a
crane assignment . McGehee replied that he could have
the next available one. In anticipation of starting a third
shift, McGehee told Schuette on May 25 that he could
have the job on the third shift and would be so reclassi-
fied effective that date. McGehee also told Schuette,
however,, that he would have to continue performing
work at the forge until a replacement could be found for
him there. 1 0 T
Thereafter, crediting McGehee, Schuette performed
crane work intermittently until mid-June, when he took a
104 Testimony of Teegerstrom (Tr. 991-1008; and stipulation at 1007-
1008), McGehee , and Hmk
105 For reasons set forth above, the issue framed by the complaint is
not whether Respondent took some independent action at some point
well after May 31, which might arguably have impaired some continuing
Laidlaw recall right of Watts or Jackson. Accordingly, while I note that
Respondent converted one of the overhead cranes in the rod plant to a
pendant control system and thereafter used a materials handler or a pro-
duction helper to operate it from the floor, and while there may be other
evidence that Respondent could have used Watts and/or Jackson at some
point well after May 31, the General Counsel gave no notice whatsoever
that hey was calling into question any such later and independent actions,
and, therefore, there was no full litigation of the facts pertaining to those
actions. I have therefore ignored certain inconclusive hints and sugges-
tions to the contrary in the General Counsel's brief pertaining to Watts
and Jackson.
106 Although McGehee did not expressly so state, it is implicit from
his testimony , and I find, that Respondent did not operate a third shift
during the strike, until May 29.
107 Such reclassifications, with an employee actually being required to
continue his former job until a replacement can be found and trained are,
according to McGehee , traditional practices at Respondent 's operation
There is no contrary evidence. Respondent's records fully document his
testimony as to the treatment of Schuette , showing Schuette 's reclassifica-
tion as crane operator effective May 25 and thereafter showing him as
"temporarily" on assignment to the forge, and, later, on military leave
until July 3. (R. Exh. 47 )
889
2-week military leave of absence. On his return on July
3, he was permanently assigned to the crane.
The foregoing credited account of the filling of the
fifth and last crane operator's vacancy by Schuette is un-
contradicted. Indeed, the General Counsel neither at-
tacks, nor even addresses this evidence on brief. The
General Counsel's position on brief regarding Watts and
Jackson is not comprehensible. The only statement of the
General Counsel's theory may be found in a cryptic pas-
sage at the conclusion of his brief, in which he states:
As to the crane operator, an examination of the
chart [i.e., the above-referred to stipulation regard-
ing the dates of hiring of crane operators during the
strike, which appears at Tr. 1007-1008] clearly re-
veals that both Dan Watt and Bennie Jackson
should have been, on the basis of seniority in classi-
fication, offered reinstatement as opposed to junior
employees reflected on the chart 108
The question posed by the Schuette situation, as I see it,
is: Did Respondent somehow discriminate against Watts
and/or Jackson by not treating the "fifth" crane opera-
tor's job as still being "open" on May 31, when the strike
concluded? Implicit in framing the issue thus is the ford-
ing that Respondent carried its burden of showing that at
least four of the five crane operators' jobs were occupied
by permanent replacements when the strike was conclud-
ed. I further find, consistent with the foregoing, that the
"fifth" job had been promised to Schuette and that he
had been formally reclassified into that position before
the strike was over.
There was no showing that Respondent somehow
knew that the strike was about to end when Schuette
was given the "fifth" position, nor any other evidence
tending to show that a desire to preclude a former striker
from being reinstated influenced the placing of Schuette
in that job. By contrast, there is uncontradicted evidence
that Respondent had legitimate business reasons for
giving the job to Schuette on May 25,109 even though a
108 The problem is, however, that the said "chart" does not indicate
that any "junior employees" had been made crane operators at any time
after Jackson and Watts unconditionally offered to return to work. If the
General Counsel is referring to the fact that Schuette was reclassified to
that position on May 25, but did not begin to perform the crane opera-
tor's job on a "regular" basis until July 3, then the discussion below in
the main text is pertinent . In any case, the Schuette situation would tend,
at most, to show that an arguable vacancy existed for Watts (as the most
senior unreinstated striker holding that classification ) as of the conclusion
of the strike How that would relate to an alleged discrimination against
Jackson on May 3I remains a,mystery.
ios I regard it as a legitimate consideration that Respondent felt bound
to honor McGehee's earlier promise to Schuette that Schuette would get
the next crane opening if he would stay on at the forging machine until
such an opening developed. And, when such a vacancy developed by the
planned May 29 reinstitution of a third shift, I regard it as legitimate and
nondiscriminatory for Respondent to have felt bound to give the new
crane job to Schuette in the light of its earlier promise on which Schuette
had relied in staying at the forge Whether or not Respondent could law-
fully have filled a post-May 31 vacancy by honoring its promise to
Schuette, rather than by reinstating a former striker with greater seniority
in the crane operator classification is not before me, as is further dis-
cussed below
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
combination of exigencies, including the need to keep
him at the forging machine until a replacement was
trained in that job, and Schuette's intervening military
leave of absence, prevented him from performing crane
operation on a "regular" basis until July 3.
In an analogous situation, the Board held in Bancroft
Cap Co.11 ° that when an employer laid off permanent
replacements for a brief period due to a temporary mate-
rials shortage, and then recalled the replacements when
the materials picture improved, the employer did not un-
lawfully discriminate against strikers awaiting recall by
failing to treat the laid-off replacements' jobs as being
"vacant" for Laidlaw recall purposes. Restating its view
in Giddings & Lewis, supra, the Board stated:
Laidlaw does not require an employer to disrupt his
existing work force in the event of a temporary
layoff where there are no true vacancies.
By parity of reasoning here, where, under nondiscrim-
inatory circumstances, Respondent had filled-the "fifth"
crane operator vacancy by reclassifying Schuette to the
position before it had received unconditional offers to
return from, or on behalf of, Watts and Jackson, Re-
spondent was not required to treat that position as
"vacant" for Laidlaw recall purposes simply because, at
the time it did receive such return offers, Schuette was
working on a temporary assignment at the forging ma-
chine and, later, was required to go on a military service
leave'before assuming the crane job on a regular basis.
Accordingly, I conclude that Respondent has carried
its burden of showing that all crane operator vacancies
had been filled by permanent replacements as of May 31,
and that the General Counsel did not come forward with
any evidence that could support a finding that the filling
of those jobs was influenced by unlawful discriminatory
considerations relating to the strike. I therefore recom-
mend dismissal of the complaint insofar as it pertains to
Watts and Jackson.112
5. Floyd Stevenson (a/k/a "Steve") Snider
The complaint alleges that Respondent wrongfully
failed to recall Snider on August 20. By the General
Counsel's express admission during the trial, however,
the date chosen as the wrongful bypass date is utterly ar-
bitrary and had no relationship whatsoever to any evi-
dence introduced by the General Counsel during his
110 245 NLRB 574 (1979), cf , Giddings & Lewis, Inc, 255 NLRB 742
(1981).
111 Id. at 745.
112 Respondent also argues that See. 10(b)-bars a finding that Jackson
was unlawfully discriminated against on May 31, since no charge pertain-
ing to Jackson was filed until January 10, 1980, in Case 16-CA-8877, i.e,
more than 6 months after the act of alleged discrimination set forth in the
complaint. Sec. 10(b) being an affirmative defense, it was Respondent's
burden to introduce evidence tending to show that the Union and/or
Jackson had notice (actual- or, constructive) more than 6 months before
the relevant charge was filed over the actions now challenged by the
complaint. (See discussion of Burkett, supra.) Respondent has cited no
evidence on which earlier notice of the complained-of actions affecting
Jackson could be imputed to the Union and/or Jackson, and I can dis-
cern none. I would therefore reject Respondent's defense under Sec.
10(b).
prima facie case regarding any particular act or failure to
act by Respondent affecting Snider. I 1 s
The General Counsel's efforts to rehabilitate the
Snider case on brief are linked to Snider's testimony that
on February 11, 1980, Snider, asked Teegerstrom why he
had not been recalled to work (Snider having heard from
a source "four to six weeks earlier" that there had been
new employees hired to perform his job). Snider "be-
lieved" that Teegerstrom replied that ". . . it was due to
strike misconduct." In an effort to explain the relation-
ship of that event to the August 20, 1979 bypass date ap-
pearing in the complaint, the General Counsel now states
(at Tr. 45, emphasis added):
[Snider] had, by his own admission, a faulty
memory and on cross-examination admitted that it
could have been October, 1979, as opposed to Feb-
ruary, 1980 when he learned . . . that his job had
been filled a month to six weeks earlier. This, of
course, is much more in keeping with the August 20,
1979 date alleged in the complaint.114
The question raised by the complaint is, however: Is
there any basis on this record for concluding that Re-
spondent discriminated against Snider commencing about
August 20 by failing to recall him to his prestrike job?
Nothing in the General Counsel's prima facie presenta-
tion would warrant an affirmative answer to that ques-
tion. Under these circumstances, therefore, I do not be-
lieve that the burden ever shifted to Respondent to ex-
plain why Snider was not returned to the payroll on
August 20;115 and I would therefore dismiss the com-
plaint as to Snider for that reason alone.116
Respondent nevertheless came forward with credible
and unrebutted evidence that there has been no need
since the strike ended for persons in Snider's prestrike
classification and that none has been recalled. Summariz-
ing the credited testimony of Supervisor Aubrey Tuttle,
113 Tr. 785 12-15 See also Tr 790 7-10 in which the General Counsel
acknowledges that it is "quite possible" that the drafter of the complaint
was simply "spinning a calendar" when it came to choosing the date on
which Respondent allegedly discriminated against Snider And see, gen-
erally, colloquy at Tr 782-791.
114 The General Counsel regularly uses the expression "of course" as a
device to mislead one into believing that he is merely adhering to a posi-
tion that is fairly encompassed by the complaint language that he found
no need to amend or clarify in a timely fashion. (Recall here the case of
Burkett, supra, in which the complaint alleged a failure to recall Burkett
on May 31, but in which the General Counsel was beard to say: "Well, of
course, it's our position that the . . refusal to reinstate occurred in Janu-
ary of 1980." See also his use of the expression in connection with his
extraordinary shif ings of position in the cases of ,Orms and Haywood
below.) Such chronic efforts to camouflage the General Counsel's "real"
theory of what actions of Respondent were being challenged by tlie com-
plaint not only fail to satisfy minimum due process "notice" requirements,
but they also demean the government in whose name the General Coun-
sel purports to act.
115 Bio-Science Laboratories, 209 NLRB 796, 804 (1974).
116 Respondent also argues that a complaint regarding an alleged
August 20, 1979 bypassing of Snider is barred by Sec. 10(b) of the Act
because a charge regarding alleged discrimination against Snider was not
filed until February 4, 1980, in Case 16-CA-8877. Whatever else may be
said against the. Snider case, however, it is nevertheless clear that the
above charge was filed within 6 months of the August 20 conduct of Re-
spondent (whatever that may have been) that was alleged in time com-
plaint I therefore reject Respondent's 10(b) defense as to Snider
AXEiSON, INC`
I find that Snider held the prestrike classification of ma-
chine parts inspector B. As such, Snider's primary job
was to inspect raw material and raw castings, and his
secondary job during any spare time was to inspect class
B pump parts. As another consequence of the OCS-
1/ASME requirements implemented in March, however,
the job of inspection of raw material and castings became
more technically rigorous, especially in its paperwork
(records-keeping) details, and in the use of more compli-
cated precision testing equipment. Tuttle stated that only
class A inspectors had sufficient skills and training to
perform such involved tasks; and, accordingly, Respond-
ent hired only persons with class A training and ratings
to do inspection work after the March implementation of
the OCS-1/ASME certification program.' 17 Tuttle testi-
fied that there remains a limited amount of class B in-
spection work that is done on A-line parts, but that there
is no more than about 3 hours worth of such work each
day, thereby rendering it uneconomical to hire or recall
a class B inspector on a full-time basis to perform such
minimal amounts of work. II s
Assuming, arguendo, that some inspectors ranked at
the class B level might nevertheless possess skills suffi-
cient to perform the more rigorous class A, work, which
now constitutes the majority of inspection work, this
record shows that Snider did not possess such skills. By
his own admission, his formal education is minimal, and
he demonstrated in a number of testimonial instances dif-
ficulties in dealing with matters of memory, and written
and numerical abstractions."9 Tuttle credibly testified
that the class A inspection work requires the memoriza,
tion of complex tables'of allowable deviations from toler-
ances, depending on the type of unit being produced or
the type of material being used. In addition, class A in-
spectors regularly use' precision measuring devices that
class B inspectors are not permitted to use. Tuttle credi-
bly opined that Snider did not possess the reading, writ-
ing, and, memory skills required for such work, and that
he had shown considerable difficulty in performing even
the less complicated "B" inspection work that was avail-
able before the strike.
'Finally, as Snider acknowledged, he has regularly re-
ceived bid notices for job vacancies that have emerged
since the strike ended. Therefore, contrary to suggestions
in the General Counsel's brief, Respondent has not ruled
Snider out of consideration for recall when and if some
job becomes vacant for which he might qualify.120
For all the foregoing reasons, I conclude, on the
merits, that Respondent has shown that legitimate and
substantial nondiscriminatory business considerations ac-
counted for its failure to recall Snider at any time before
11' Indeed , crediting Tuttle, no class B inspectors were recalled after
the strike ended, but class A inspectors were so recalled. It therefore ap-
pears that Snider was merely part of a class of persons whom Respond-
ent did not recall , and that he was not subjected to unique treatment.
lab Class A inspectors now perform such work along with the more
rigorous inspection work that occupies most of their workday.
115 For example, Snider's statement "I work with my back, not my
mind. I got to the ninth grade .. I have a memory that long (mdicat-
mg).,,
120 Based on then-current projections, Tuttle predicted that there
would be increased production of pump parts in the future, which would
justify hiring at least one full-time class B inspector
891
the trial. I therefore recommend dismissal of the com-
plaint pertaining to Snider on this basis as well.
6. Jackie Orms
The evolution of the General Counsel's "real" theory
regarding alleged discrimination against Jackie Orms is
likewise illustrative of a tendency on the General Coun-
sel's part to adopt positions of convenience unrelated to
the apparent theory of the initial complaint. The com-
plaint alleged initially in a separate paragraph that Re-
spondent discriminatorily failed to reinstate Orms to his
former position as toolroom leadman on June 29. That
date approximates the date (June 27) when Orms was re-
called to work in the toolroom. Orms testified that when
he was so recalled, he continued to perform some (but
not all) "lead" duties, but received neither the title of
"leadman," nor the hourly premium that he had tradi-
tionally enjoyed in that position.
Respondent interposed a 10(b) limitations defense as to
Orms, correctly observing that no charge was filed over
this alleged discrimination until more than 6 months later
(i.e., on April 3, 1980) in Case 16-CA-9058. This defense
had facial merit, considering that Orms, an "affected
party," labored knowingly for more than 6 months under
this alleged discrimination without having filed a charge.
Recognizing this, the General Counsel made an initial
effort to shift ground, pretending that what the com-
plaint was really addressing was an alleged failure to give
Orms an newly created "temporary" leadman's position
in mid-March 1980.121 These improvisations met consid-
erable resistance from Respondent's counsel, who point-
ed out that it had sought exactly this type of clarifying
information for months, and had been regularly rebuffed
by the General Counsel's office. The General Counsel
then backtracked, suggesting that testimony regarding
Orms be deferred until the Regional Director could re-
consider, his position as to Orms.
The Orms matter remained in that posture until the
General Counsel notified the parties by telegram during
a 4-week trial recess that "Counsel for General Counsel
will move to amend . . . complaint by correcting date in
paragraph 22 to read `Since on or about March 17, 1980.'
Said correction is for purpose of conforming pleadings to
proof. Furthermore, remedy will be sought only from
March 17, 1980, forward."122
I granted the General Counsel's proposed amendment,
notwithstanding that it came well after I had warned the
General Counsel that he should amend his complaint
where his evidence showed substantial variance from the
discrimination dates set forth in his complaint. However
deplorable it was that the General Counsel's "real"
theory in this instance did not surface until later-and
then only in an attempt to get around an apparent 10(b)
barrier to his original allegation regarding Orms-this
121 Tr 339 , in which the General Counsel states : "and the discrimma-
tion took place at that time [i e., mid-March 19801, which, of course, was
well within 10(b)." [Emphasis added.]
122 G.C. Exh. 39, emphasis added It is plain from the foregoing that
the General Counsel was not merely "correcting" an inadvertency in the
date on his complaint, but was engaging in a substantive amendment as to
the conduct that he wished to challenge.
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was at least formal and plain notice to Respondent, and
done in sufficient time for Respondent to meet the re-
vised allegation. Moreover, the merits of the revised alle-
gation were fully litigated. I now turn to those merits.
The question framed by the General Counsel' s amend-
ment is: Did Respondent discriminate against Orms about
March 17, 1980, when it gave to another employee the
opportunity to serve as a temporary leadman during the
absence of the toolroom supervisor on vacation?
The pertinent evidence is as follows: When Orms was
returned to work in late June, there was no longer a reg-
ular lead position in the toolroom. 12 3
Toolroom Foreman Tommy Bennett was scheduled to
take a vacation in mid-March 1980. Based on favorable
impressions that he had formed regarding EdRoberson,
and after Roberson had indicated an interest in eventual
promotion to a supervisory position, Bennett recom-
mended to his superior, Schur, that Roberson be given
the title of "temporary leadman" during Bennett's vaca-
tion absence. This recommendation was passed to vice
president in charge of manufacturing, Stewart Hink, who
concurred.
Bennett credibly testified that he considered other em-
ployees in the toolroom, including Orms, for the tempo-
rary position, but thought that Roberson was best quali-
fied. He credibly stated that he did not believe that Orms
was qualified for the job because Orms had difficulties in
working with other employees and had repeatedly told
Bennett that he was not interested in promotion to super-
vision. Hink credibly testified that he had issued direc-
tives as early as May 1977 that no lead positions were to
be created or filled without his approval, and that he fur-
ther instructed that any lead vacancies be given only to
persons with a demonstrated talent for, and interest in
promotion to, supervision." P4 Hink therefore approved
the recommendation.
In fact, the function performed by Roberson during
Bennett's vacation absence was closer in nature to
"acting" supervision, than to the "lead" position that
Qrms had filled before the strike. Thus, Roberson had re-
sponsibility for making independent judgments regarding
assignments of all employees under Bennett's supervision.
Orms lead job had been confined only to the tool and
cutter grinders within the toolroom and had never in-
volved such assignment discretion. In addition, Rober-
son's lead function during Bennett's absence included
other supervisory trappings, such as holding keys to the
storage area and approving timesheets. -
Based on all the foregoing uncontradicted and credible
testimony, I conclude that Orms' participation in the
ias Not included in this recitation is certain credible background evi-
dence in the record as to why the leadman position formerly occupied by
Orms was abandoned by Respondent as a result of experience formed
during the strike indicating that the position was unnecessary and that
most of the "lead" functions could be performed by class A operators in
connection with their normal production tasks. (And see discussion of Ed
Perry's case, below) The General Counsel's amendment as to Orms pre-
cludes any possible finding at this date that Respondent's much earlier
decision to delete Orms' lead position was discruninatorily prompted.
124 Orms conceded that he was not interested in becoming a supervi-
sor when he met with Hink and other members of management in March
to discuss gripes that had come to Hink's attention about the appointment
of Roberson to fill the temporary lead vacancy
strike did not influence the decision to give the tempo-
rary job of supervision in March 1980 to' someone else.
The complaint as to Orms, as amended, must therefore
be dismissed.
7. Ed Perry '
The complaint separately alleges that "Since on or
about February 1, 180, Respondent has refused to rein-
state Ed Perry to his former position as leadman over
the Automatic Operators, M.S., while requiring him to
perform that duty [all because of Perry's union activi-
ties].
These findings are based primarily on the uncontra-
dicted testimony of James Rainey, the shop foreman
with supervisory responsibilities in four departments, in-
cluding in departments 506 and 507 (automatic multispin-
del machines, and small turret lathes, respectively).'25
Before the strike, Perry was an automatic multispindel
machine operator (MS operator), and was designated as
leadman in departments 506 and 507. As such, he re-
ceived a 20-cent-per-hou"r leadman' s premium . He spent
all but about 2 hours each day as an MS operator, with
the balance of his time spent in assisting other machine
operators in setups and locating tools, and in training
new employees. He also performed miscellaneous assist-
ance tasks for Foreman Rainey throughout the depart-
ments over which Rainey had authority, including col-
lecting timecards.
Perry participated in the entire strike. During the
strike, it became evident that many lead positions were
unnecessary and that foremen, with the ad hoc assistance
of designated experienced operators, could perform the
functions previously given to leadman. Because of this,
and because of an earlier and more general directive
from Vice President Hink regarding phasing out of non-
critical lead positions, management determined not to
continue as a permanent position the leadman's job previ-
ously performed by Perry.
John Greiner was hired in early May, at a time when
there was a larger than normal ratio of new machine op-
erators to experienced operators. About 2 weeks after he
was hired, management designated Greiner as a tempo-
rary leadman (with premium pay) in department 506
only. As such, he assisted in the training of new hires in
department 506 and in locating tools for employees in
that department only.
Perry was recalled to a vacant MS operator's position
in department 506 in September, while Greiner was still
serving as temporary leadman in that department. t s 6 In
November, Perry was called on to train two former
strikers who had successfully bid for two vacant MS op-
erator positions.
125 In addition, I rely on the uncontradicted testimony of Vice Presi-
dent of Manufacturing Hink, and the uncontradicted testimony of Main
Plant Superintendent Johnny Kelley.
526 Unlike the case of Orms in the initial complaint, it has never been
alleged that Respondent discriminated against Perry by failing to return
him to a lead position on his recall to work in September. Neither did the
General Counsel try to show by way of background that there was such
discrimination I therefore presume that no discrimination occurred at
that time.
AXELSON, INC. 893
For some time prior to January 1980, Greiner had
been experiencing personal difficulties that made his job
attendance erratic. Recognizing this, he resigned his
leadman's job sometime in January, and stayed on as an
MS operator. Respondent did not designate a new lead-
man to take Greiner's place. It is apparently127 the fail-
ure of Respondent to install Perry as leadman after
Greiner's resignation , which is at the heart of the Gener-
al Counsel's complaint pertaining to Perry's treatment.
Contrary to that contention, I conclude that Respond-
ent made a nondiscriminatory business judgment to elimi-
nate as unnecessary the leadman's position that Perry
had performed before the strike, and that it then used
Greiner for more limited lead functions only until he re-
signed. I further conclude that, after Greiner's resigna-
tion, and in part because of its experience in being able
to function effectively even during the period of
Greiner's chronic absences, Respondent made a nondis-
criminatory business judgment not to continue even the
more limited leadman's function that Greiner had per-
formed.
Although it is true that Respondent's modified prac-
tices involved use of experienced operators, such as
Perry, to perform training and setup functions in depart-
ment 506, it is also established that, even before the
strike, experienced operators were used in this way, al-
though not to the same degree.
The Act does not require an employer to continue
intact all practices and classifications that existed before
a strike even if its experiences in operating during a
strike suggest ways in which economies can be achieved.
Where, as here, Respondent had demonstrable business
grounds for first modifying the lead job formerly per-
formed by Perry, and later eliminating even that modi-
fied lead job, Respondent was under no obligation to
recreate Perry's former lead job and premium (or any
modification thereof) because that was the way it had
earlier done business.
Under other circumstances, it may be an employer's
obligation under Section 8(a)(5) of the Act to notify and
bargain with the union representing its employees before
embarking on such modified practices. With the Union's
representative status still in doubt due to the pendency of
the RD proceedings, however, and especially in the ab-
sence of any 8(a)(5) allegation in the complaint, the only
issue before me is whether Respondent's refusal to make
Perry, a leadman after 'Greiner's resignation was intended
to punish Perry for having joined the strike. I conclude,
for the reasons set forth above, that Respondent's expla-
nations far more plausibly explain why neither Perry nor
anyone else was made a leadman after Greiner's resigna-
tion than does the General Counsel's suggestion. Accord-
ingly, the complaint as to Perry must be dismissed.
8. Betty Phillips
The complaint alleges that former, striker Betty Phil-
lips was bypassed for recall to her former job on August
20. Here, as in the case of Snider, supra, I must conclude
that the August 20 date was arbitrarily chosen-there
127 The term "apparently" is used advisedly The General Counsel's
theory here , as elsewhere , is never made plain.
being utterly no evidence suggesting that Phillips was
bypassed about that date. 1128
The real theory of the General Counsel, based on his
statements on brief, is, apparently,129 that Respondent
wrongfully considered Phillips to have quit her job and,
therefore, wrongfully denied her reinstatement at some
later and unidentified point.
Respondent appears to have discerned this, notwith-
standing the utter lack of notice in the complaint and the
grossly misleading and unfulfilled declarations of the
General Cousnel regarding his intended proof. Thus, Re-
spondent shouldered the burden of explaining when (Oc-
tober 23, 1979, as it turns out) and why it determined
that Phillips had voluntarily quit. And Respondent
admits that, after October 24, 1979, it ignored her for
recall to her former job and bypassed her by hiring
others to fill vacancies in her prestrike classification.
There was something approaching full litigation of the
question whether Phillips voluntarily terminated her em-
ployment and thereby waived any recall rights she other-
wise possessed. In less aggravated circumstances, such
full litigation might warrant deciding the question on its
merits, notwithstanding the absence of a formal com-
plaint allegation that is normally required to satisfy due
process notice standards. Here, however, the General
Counsel's persistent and willful concealment in numerous
instances of what it was about Respondent's conduct that
caused a complaint to issue provides ample grounds for
refusing to decide the merits of his wholly revised theory
of violation as to Phillips, Any other course would only
reinforce the irresponsible approach towards litigation
that was manifested throughout the history of these pro-
ceedings by the General Counsel, including during the
briefing stage thereof. Accordingly, I would dismiss the
complaint as to Phillips, pro forma, based on the utter
absence of any evidence tending to support the narrowly
couched claim that Phillips was discriminatorily denied
recall on August 20, and without regard to evidence
bearing on a potential violation 'that was never alleged,
and that was entirely different in character and in the
timing of its occurrence from the violation that was al-
leged.
Alternatively, and to avoid the need for a remand
should a reviewing body disagree with the foregoing res-
olution, I make these findings and conclusions: Phillips
was a former striker awaiting recall to her prestrike job
129 The General Counsel adduced testimony from Phillips about a
conversation she had with Teegerstrom in August 1980 in which Teeger-
strom told her that she was considered by Respondent to have quit her
employment at an earlier date. This caused me to inquire whether the
complaint was intended to refer to August 20, 1980, rather than 1979. At
first the General Counsel stated: "It clearly should be '80, and I will
move to so amend." (Tr. 444 13-19) Shortly afterward, however, the
General Counsel changed his mind, stating that `"79 is correct," citing his
intention to introduce evidence that employees junior to Phillips were re-
instated prior to that time (i e , prior to August 20). But, if that was the
General Counsel's theory, it may be asked why some date prior to
August 20 was not chosen in the complaint In any case, the promised
evidence of some bypass of Phillips was never introduced by the General
Counsel Instead, the Phillips case must be marked down as one more
mystery allegation in the complaint that the General Counsel has
woodenly insisted was clear, concise, and adequate for notice purposes.
129 See fn 127, supra.
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as a general helper in the toolroom. There is credibility
conflict regarding conversations between Phillips and
Shelda Bush, Respondent's secretary to Industrial Rela-
tions Manager Teegerstrom. In substance, Phillips main-
tains that she called Respondent's personnel office and
asked Bush how she might receive a check for her then-
unused sick pay.130 Although- Phillips' testimony con-
tains no reference whatsoever to the date of this call, I
find, crediting Bush's testimony that it took place at
some point between July 23 and August 23. According
to Phillips, Bush replied to her inquiry about receiving
unused sick pay by saying that Phillips would have to
sign termination papers. Phillips admits that she replied,
"Send them to me," and that Bush then said, "I'll have
them in the mail."
Phillips states that she thereafter received such papers
in the mail, but discarded them in the trash, preferring to
"see how the jobs came out," and further commenting:
"I needed the job more than I needed the 5 days pay."
Her testimony contains no reference to any further com-
munications with Respondent until she spoke with Tee-
gerstrom in August 1980 and learned from him that -Re-
spondent was treating her as having quit.
Shelda Bush's testimony differs in that she recalls
having had 2 conversations with Phillips-the latter one
being about October 23, 1979, and the earlier one being
"about two or three months" before then. According to
Bush, the first conversation with Phillips was as follows:
Phillips inquired about her eligibility for vacation and
sick leave pay. Bush told Phillips that she had not
worked a full year and was therefore not entitled to va-
cation pay; and that she would be entitled to sick leave
pay in December, when all employees received checks
for unused sick leave. Bush also told ' Phillips that the
only other way she could receive unused sick leave pay
would be if she terminated her employment. Bush states
that Phillips gave no indication of her intention and that,
accordingly, Bush did not send any termination materials
to her.
According to Bush, the later conversation about Octo-
ber 23131 with Phillips was as follows. Phillips simply in-
I
i30 The most recent labor agreement contained at art 18 a provision
regarding sick leave, as follows
All employees in the employment of the company as of February 18,
1976, with at least three months seniority as of January 1, 1976, will
receive 40 hours sick leave during the 1976 calendar year.-And em-
ployees will qualify similarly and be due sick leave each year there-
after.
The company will pay all eligible employees during the week imme-
diately preceding Christmas week any earned and unused sick leave
during the same calendar year.
Respondent acknowledged through the testimony of Bush and Teeger-
strom that the practices reflected in the quoted portion of the labor
agreement were continued in 1979 and 1980, notwithstanding the absence
of any current bargaining relationship between Respondent and the
Union.
131 Bush recalled only that the second conversation was in "October."
She authenticated an October 24 letter that she mailed to Phillips in re-
sponse to the second conversation (R. Exh. 44), which refers to "your
telephone conversation of yesterday " I treat that exhibit as reflecting
Bush 's recorded past recollection and rely on it to establish the date of
the second conversation.
formed Bush that she wished to "terminate [her] employ-
ment." Bush asked Phillips what her reason was. Phillips
replied that she had "another position."- Nothing further
was said.
Bush states that she then mailed a- termination slip to
Phillips along with a cover letter132 requesting that Phil-
lips sign the slip and mail it back to Respondent, and fur-
ther advising that "Any accrued vacation or sick leave
for which you are eligible will be mailed to you." -
Bush states that she then waited approximately 6
weeks without hearing further from Phillips and, pursu-
ant to standard procedures in such cases, finally prepared
an internal termination form that was routed in due
course through several layers of management.133 Re-
spondent's Exhibit 45, authenticated by Bush as the ter-
mination slip that she prepared, reflects various manag-
ers' signature entries, the last being on November 26,
1979. It also contains the entry: "No vac. due . . . 5 days
sick leave due." Bush states that after the approval proc-
ess was completed, a check was mailed to Phillips on
November 29, 1979, reflecting pay for 5 days of unused
sick leave. 134
I credit Bush's entire testimony as set forth above,
based on her superior demeanor and the presence of
records that at least corroborate her as to the timing and
sequence of the events that resulted in Phillips' receipt of
the unused sick leave pay. As to' whether or not there
was a call from Phillips to Bush 2 or 3 months before
October 23, I do not find it to be significant that Phillips
did not mention it in her own testimony. Her testimony
showed substantial confusion as to the dates of certain
events, and it is significant that 'she was never recalled to
deny Bush's more detailed testimony.
It is therefore clear that Phillips voluntarily and with-
out any expressed reservation resigned from her employ-
ment with Respondent about October 23. The, fact that
she had, 2 or 3 months earlier, made a general inquiry
about how she might obtain vacation and/or sick leave
pay, and the fact that Bush truthfully told her that she
could either receive sick leave pay in December, when
all employees received theirs, or could receive it earlier
by quitting, was insufficient to give Respondent any
reason to believe that her October 23 resignation was for
any reason other than the one which Phillips gave at that
time (i.e., another position).
In his shifted position on brief, the General Counsel
now places emphasis on the fact that Phillips did not re-
ceive her unused sick leave pay check immediately after
the October 23 conversation. The General Counsel
stresses in this regard that Respondent "instead waited
[to send Phillips her sick pay] until the week before the
following Christmas when all the other employees re-
ceived their unused sick pay."iss From this, the General
lag R Exh. 44 -
133 Bush credibly testified, and I find, that Respondent frequently fails
to receive signed termination slips from employees who have otherwise
notified it of their intention to resign; and that, in such instances, an inter-
nal termination form is prepared and routed for approval as described
above, the approval process normally taking up to 2 or '3 weeks.
134 R Exh. 46 was authenticated by Bush as a true copy of the check
to Phillips. It is dated November 29.
iss G.C. Br 58, emphasis added.
AXELSON, INC.
Counsel argues (ibid.) that Respondent clearly under-
stood that Phillips never intended to resign.
The italicized statement of the General Counsel bla-
tantly distorts the state of the record;136 but the General
Counsel's resort to such unworthy measures clearly be-
trays his own recognition that even his new theory con-
cerning Phillips is fraught with difficulties.
I conclude from all the foregoing that Phillips volun-
tarily and unequivocally ended her employment with Re-
spondent when, on October 23, she told Bush that she
wished to terminate; and that her decision to quit was
not influenced by the fact that she had, months earlier,
received truthful advice from Bush, inter alia, that she
could obtain a premature payment for her unused sick
leave only by quitting.137
Accordingly, the complaint as to Phillips must be dis-
missed on this basis, as well.
9. Thurman O. Haywood
The complaint alleges that Haywood, who remained
on strike throughout its duration, was wrongfully denied
recall to his former job as an assemblyman on May 31.
The sole evidence introduced by the General Counsel to
support this allegation was Haywood's testimony that
when he was eventually recalled to fill a vacancy in his
former position in mid-February 1980, he found that an-
other assembly job was already being occupied by Or-
ville Hill, a prestrike employee with less seniority in the
assembly department than Haywood.
This prima facie presentation again left grounds for
questioning the General Counsel's reasons for selecting
May 31 as the date on which Haywood was allegedly
bypassed. Respondent introduced evidence showing, in
substance, that Hill had been permitted to return to his
job as an assemblyman on October 16, before Haywood,
because Hill had an automatic right to reinstatement
linked to the fact that he had been on a valid medical
leave of absence since before the strike; and, pursuant to
longstanding practice,, Hill could therefore reclaim his
job as soon as he was declared fit to resume work.1311
Crediting Teegerstrom, Hill fell at the plant and in-
jured his knees on the afternoon of Friday, February 16,
and went into medical leave status at that time and con-
tinued in that status throughout the, strike and was not
declared by his physician as being fit to return to work
until about October 16, 1979. He was put back to work
after Teegerstrom satisfied himself that Hill had been, in
fact, on a valid medical leave (and see findings below).
From this evidence, the General Counsel might have
defended the bypass date in the complaint of May 31 on
136 November 29, the date on which the sick pay check was transmit-
ted to Phillips, is hardly in "the week before ... Christmas "
137 Cf. Roylyn, Inc., supra, 178 NLRB at 197, in which the Board held-
"On the facts of this case, it is patent that the strikers did not wish to
abandon their employment status and did not sign the quit slips with that
intent." Here, the facts-especially the lapse of time between Phillips'
two calls to Bush, and Phillips' statement that she had another job when
asked during the second call by Bush why she wished to terminate-are
sufficiently different to warrant a contrary interpretation as to Phillips'
intent when she told Bush she wished to terminate.
138 I credit the uncontradicted testimony of Respondent's agents Tee-
gerstrom, Rink, McGehee, and Kelly that Respondent had such a long-
standing policy respecting employees on medical leave.
895
the theory that an assembly job was being held open for
Hill throughout the period of his convalescence, and
was, therefore, a vacant job as of May 31, when strikers
unconditionally offered to return.
Instead, on brief, the General Counsel abandons the
May 31 date, sub silentio , and now argues: "It is, of
course, the position of . . . the General Counsel that Re-
spondent violated the Act on the date it recalled a man
junior in classification seniority (Hill) rather than Hay-
wood, and that Haywood was discriminated against from
that day forward." ' 39 It is now quite evident, therefore,
that the General Counsel no longer contends that Hay-
wood should have been reinstated on May 31, but, rather
(as the General Counsel further states on brief, pp. 9-10),
I am asked to "find that Haywood was a discriminatee
from the date Hill was recalled as an assemblyman.140
That is the violation."
Accordingly, I treat the General Counsel's revised
statement of his theory as conceding that Respondent
owed Haywood no duty of reinstatement as of May 31,
and that such a duty arose only when it permitted Hill to
return from medical leave on October 16. Put another
way, the General Counsel now says that it did not vio-
late the Act for Respondent to keep Hill's job open or
reserved for Hill based on his medical leave status; but,
as soon as Respondent actually allowed Hill to return to
the job that it was entitled to reserve for him, pursuant
to its medical leave policy, a violation of the Act (some-
how) occurred! This argument may have some underly-
ing logic that is' evident to others. As I view it, however,
the General Counsel has simply stipulated away the Hay-
wood case by his most recent statement of his "real"
theory of violation.
As Respondent stresses on brief, there is more than a
little irony in the General Counsel's position that Hay-
wood should have been put to work in October, instead
of Hill. For the Regional Director had, at roughly the
same time, taken an entirely contrary position in the case
of an employee named Wacasey who, like Hill, had been
in medical leave status, and who had filed a charge with
Region 16 when Respondent did not immediately rein-
state him to his job on his resumption of fitness for duty.
Based on advice from the Regional Office that Wacasey
had not joined the strike, but, rather, had been on medi-
cal leave, Teegerstrom investigated and determined that
this was true, and therefore reinstated Wacasey even
though he was junior to'other similarly classified strikers
awaiting recall . In dismissing Wacasey's charge, the Re-
gional Director stated, in effect, that since Wacasey had
been eventually accorded his traditional 'medical leave
reinstatement rights, no violation had occurred in the
delay between Wacasey's initial attempt to return and
the date on which Respondent finally determined to
accord him those rights. (See R. Exhs. 32(a) and (b).)
This amounted to an acknowledgement by the same
office that issued the Haywood complaint that employees
returning from medical leave wer e entitled to be reinstat-
ed ahead of more senior former strikers awaiting recall
135 G.C. Br 8, emphasis added.
140 1 e., shortly after October 16.
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the same classification. The General Counsel's brief is
silent as to this evident "right hand-left hand" problem;
and he nowhere suggests what it was about Respondent's
reinstatement of Hill ahead of Haywood that would war-
rant a result different from the Regional Director's han-
dling of the Wacasey matter.
I make these additional findings pertinent to the Hay-
wood case based on Teegerstrom's credited and uncon-
tradicted testimony: Before Hill was returned to his
former job, Teegerstrom investigated to satisfy himself,
that Hill had been on bona fide medical leave. His inves-
tigation disclosed that Hill had received workmen's com-
pensation benefits during the period of his absence, and
that Respondent had paid him holiday pay during his ab-
sence (even though it had not done so for strikers). Tee-
gerstrom further inquired whether Hill had been a strike
participant and learned nothing to suggest that Hill had
intentionally converted his status from that of an, em-
ployee on medical leave to that of an economic strik-
er.141
I conclude, under all the circumstances set forth above
(and without regard to the'fact that the General Counsel
seems to have unconsciously conceded the absence, of
any valid theory of violation) that Respondent was not
obliged to treat Hill's job as a vacant job for purposes of
implementation of its striker recall program. Bancroft
Cap, supra; cf. Giddings & Lewis, supra. See also 'United
Aircraft Corp., 247 NLRB 1042, 1045-1046 (1980).
I further conclude that it was not inherently destruc-
tive of strikers' rights for Respondent to refuse to aban-
don its traditional policy of granting automatic reinstate-
ment to ,employees returning from valid medical leave;
or, put another way, for refusing to subordinate Hill's
medical leave recall rights to Haywood's striker rein-
statement rights. Thus, in the absence of any evidence
that Respondent was motivated by a desire to discrimi-
nate against Haywood for striking in deciding to permit
Hill to exercise his traditional right to return on recov-
ery from his industrial injury, the complaint as to Hay-
wood must be dismissed.
10. Arthur Kingsby
The complaint alleges that Respondent wrongfully
failed to recall Kingsby on December 5. The General
Counsel's proof was limited to a showing that Kingsby
received a letter dated December 12 from Respondent
inviting him to bid on several job vacancies in positions
other than the one he had occupied before the strike; and
that when Kingsby appeared to submit a bid on one of
the jobs, Teegerstrom told him that he was too late and
refused to consider him for that job. It is the General
Counsel's apparent position that Respondent did not
afford Kingsby a "reasonable time to reply" to the,bid
offer.
I find as follows: Between the conc lusion of the strike
and December 12, Respondent had mailed Kingsby at
141 Haywood testified vaguely that he had seen Hill at the .picket line
on occasion during the strike There is no evidence that Respondent
knew this; nor would Hill's mere presence at the picket line necessarily
warrant the conclusion that he was fit for work but had chosen to waive
his automatic reinstatement rights and to join the strike
least two other letters inviting his bid on several vacant
jobs, and Kingsby had not responded.142 As in the case
of the other' letters, the December 12 letter to Kingsby
advised him-that the vacant jobs would be "posted for a
period of three (3) work days beginning Thursday, De-
cember 13, 1979."143 The effect of the 3-workday bid
deadline, (as I construe it) was to require an affirmative
indication from Kingsby by no later than the close of
business on Monday, December 17.
Kingsby testified, in substance, that he was then-work-
ing regular 12-hour shifts at another machine shop
(Metric) and did not get off work from that job until 6
p.m. and required another 30 minutes driving time to get
home. He states that he found a notice of attempted de-
livery of the December 12 letter when he arrived home
at 6:30 p.m. on Friday, December 14.144 He further
states that he arranged to have his wife pick up the regis-
tered letter on Monday, December 17, because he be-
lieved that the post office was closed on the weekend
and he had 'to work throughout the hours that the post
office would be open On December 17. Accordingly,
states Kingsby, he did not receive the December 12 bid
letter until he returned home at 6:30 p.m. on December
17. He further states that he appeared at Respondent's
personnel office about 8 a.m. on Tuesday, December 18,
at which time he encountered Teegerstrom who in-
formed him that it was too late for Kingsby ' to bid on the
jobs that were announced in the December 12 letter.
Teegerstrom contradicts Kingsby's recollection, stating
that it was not until the' morning of either Thursday, De-
cember 20,' or Friday, December 21, that Kingsby ap-
peared to submit his bid. Kingsby's recollection is con-
tradicted, and Teegerstrom circumstantially corroborat-
ed, by other records, duly authenticated timecards from
Kingsby's , job at Metric, which Respondent' intro--
duced.145 These show, contrary to Kingsby's recollec-
tion, that Kingsby left work at Metric on Friday, De-
cember 14 at 12:45 p.m., leaving him substantial time that
day to obtain the December 12 letter from the post
office, -had- he so desired. Moreover, those cards reflect
that' Kingsby did not appear at work at Metric on
Monday, December 17 until 10:01 a.m., leaving him ad-
ditional time to obtain the letter from :the post office' that
morning. Even more revealingly, the 'timecards show
that Kingsby worked at Metric on Tuesday, December
_18, from,5:59 a.m. to 6:01 p.m.-thus rendering plainly
inaccurate his claim that he had gone 'to Respondent's
plant to submit his bid that morning. Finally, those time-
cards'show that Kingsby worked at Metric throughout
the business day on all days in the balance of the week
except for Thursday, December 20, on which day he did
142 This was during the period that Respondent was still using the
costly and time-consuming procedure of notifying each striker by regis-
tered letter'of all vacancies
74S'GC Exh. 19
144 He initially recalled that he received this notice on Friday, Decem-
ber 7, but amended his testimony as indicated above when shown the
date on an authentic copy of the letter. These findings reflect a correc-
tion of Kingsby's recollection as to relevant dates, which was skewed by
a period of I week.
145 R Exhs. 33(a) and (b) See also clarifying testimony at Tr. 1654-
1657.
AXELSON, INC.
not appear at Metric until 11 :04 a.m. (thus giving him
time that morning' to go to Respondent's plant).
I thus find that Teegerstrom's recollection was accu-
rate , and that it was not until the morning of Thursday,
December 20, that Kingsby attempted to submit a bid on
a job for which the posting had closed at the end of De-
cember 17. I further credit Teegerstrom's sincere-appear-
ing testimony that he informed Kingsby that the bids had
already closed on the job vacancies in question, and that
Kingsby neither protested, nor- otherwise 'sought to ex-
plain why he had not replied sooner, nor requested re-
consideration of the closing of the bids.
I credit Teegerstrom that the job 'on which Kingsby
had wished to bid was in fact given to W. L. Kirbo, an-
other striker awaiting recall. I further find from Teeger-
strom's uncontradicted testimony that Respondent mailed
Kingsby several additional offers to bid on other vacant
jobs after December 11, that he was finally reinstated
shortly after the instant trial began.
From the credited evidence above, I conclude that Re-
spondent had no discriminatory intent in refusing to
accept Kingsby's attempt to bid on a job for which bid-
ding had closed 3 days earlier-especially under circum-
stances where the job in question was given to another
striker awaiting recall, rather than to an "outsider." I
conclude; in addition; that there was nothing inherently
"unreasonable" about the uniform imposition of a 3-day
bid deadline . ' There were hundreds of strikers awaiting
recall at the time, and it was in their interests, as well as
in Respondent's legitimate business interests, to fill
vacant jobs as promptly as possible. Indeed, the General
Counsel does,not expressly contend that the 3-day dead-
line was, per he, unreasonable. 146 If that was the conten-
tion, it was nowhere in the complaint; and, since the evi-
dence plainly shows that the 3-day bid deadline had been
uniformly applied to other unrecalled strikers during and
before the period in question, I must conclude that the
General Counsel has Waived that contention.
The General Counsel nevertheless equivocates on brief
on this point, At one stage in his argument, he simply
relies on Kingsby's discredited testimony about the
timing and other circumstances surrounding his attempt
to bid, and implies that Respondent was unreasonably
rigid in refusing to accept Kingsby's bid when Kingsby
came in "as 'early as physically possible" to submit it. 147
At another point, however, in a section formally labelled
"Argument," the General Counsel shifts ground and sug-
gests (albeit inconclusively) that the 3-day deadline was
inherently unreasonable.
Thus, the General Counsel's argument begins with the
assertion : "The law is clear that a discriminatee is entitled
to a reasonable period of time in which to consider a re-
instatement offer. ",148 The General Counsel ignores the
146 It must be recalled that the 3-day deadline actually referred to 3
working days, and that, in Kmgsby's case, he would have had the benefit
of at least 3-1/2 full calendar days (Friday p.m, Saturday, Sunday,
Monday) within which to mull over the question whether or not to bid
on one of the announced vacancies, had he obtained the bid letter from
the Post Office promptly after he left work at Metric about 12:45 p.m on
Friday, December 14.
147 G.C. Br. 33.
148 Ibid., emphasis added
897
fact that Kingsby was not a discriminatee at the time he
received the December 12 bid letter-rather, he was
simply a former striker with Laidlaw recall rights. Al-
though it is true that such strikers awaiting recall are
likewise entitled to a reasonable time to respond to offers
of reinstatement, the General Counsel has not called to
my attention any cases in which the imposition of a 3-
day deadline to bid on an out-of-classification job (with-
out prejudice to the striker's continuing Laidlaw recall
rights for declining to bid at all) has been treated by the
Board as violating the -unrecalled striker's rights, either
per se, or in specific circumstances. The Board has, how-
ever, adopted the statement of the administrative law
judge in Markle Mfg., supra, that "an employee awaiting
recall has a duty , at a minimum, to keep the employer
informed of his current address in order to allow the em-
ployer to effectively notify him of recall by certified
mail, a means which has been approved by the
Board."1 49
By parity of reasoning here, even assuming, arguendo,
that Kingsby's work schedule at Metric made it difficult
for him to receive registered mail bid invitations in suffi-
cient time to reply thereto, I would conclude that it was
Kingsby's duty to so advise Respondent' in advance, so
that other arrangements might be made by which Re-
spondent could "effectively notify" him of bid opportu-
nities. If this is so, then even if Kingsby were credited
concerning his claimed work schedule conflicts, Re-
spondent was not chargeable with unlawful discrimina-
tion for failing to give Kingsby more time than its stand-
ard policy would have permitted to respond to bid op-
portunities, unless Kingsby had taken action to propose
another means for Respondent to effectively communi-
cate with him, which he did not.
I therefore conclude under all the circumstances that
Respondent's 3-day bid dealine was not, per se, "unrea-
sonable." I further conclude, considering Kingsby's fail-
ure to notify Respondent in advance of any' special prob-
lems he had in receiving registered letters, and consider-
ing Kingsby's lack of diligence in failing to obtain the
registered' letter until December 17 and further failing
until December 20 to respond thereto, that Respondent
did not violate the Act by treating Kingsby's bid as un-
timely. The complaint concerning Kingsby must there-
fore be dismissed.
11. Edmond Jones
The complaint alleges that Jones was wrongfully
denied recall on October 2. In substance, the real issue
raised by Jones' situation is whether or not Respondent
was entitled to reject Jones' October 2 response to an
offer of reinstatement on the grounds that it was untime-
ly. The uncontradicted facts are as follows:
On Tuesday, September 25, Respondent took a letter
dated September 24 to the post office for registration and
transmittal to Jones.1 so The letter, signed by Teeger-
149 239 NLRB at 1148
150 There are superficially curious discrepancies between and among
the dates on the original of the letter to Jones and the postmark on its
envelope and a copy of the letter retained by Respondent without going
Continued
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strom, offered reinstatement to Jones to his prestrike
classification, and stated in pertinent part (emphasis
added):
You are directed to report to work within three (3)
work days following delivery of this letter or delivery
notice of this letter to the above address. Your failure
to timely report for work will result in your termi-
nation . Immediately upon receipt of this letter tele-
phone me to inform me of date you will report to
work.
The letter was identical in format to hundreds of rein-
statement offers mailed by Respondent in the course of
its poststrike recall efforts. It should be noted that, unlike
the out-of-classification bid invitation sent to Kingsby,
supra, the reinstatement letter to Jones was intended to
satisfy Respondent's Laidlaw obligation to offer full rein-,
statement to former strikers as vacancies emerged in
their prestrike jobs; and, therefore, a failure on the part
of the recipient to accept the reinstatement offer could
properly be treated by Respondent as a forfeiture of all
further employment rights by the recipient.
A postman attempted to deliver the registered letter to
Jones' residence on Wednesday, September 26, but, find-
ing no one at home, left a notice of attempted delivery in
Jones' mailbox. Jones admits that he had been absent
from his home for about a week, visiting in Dallas. He
returned from that automobile trip on the afternoon of
Thursday, September 27, but did not check his mail-
box.'' He had not notified Respondent in advance of
his intended absence, nor had he made any alternative ar-
rangements for Respondent to make contact with him.
For reasons that he never made clear, Jones did not
check his mailbox until the afternoon of Friday, Septem-
ber 28, and only then discovered the notice,of attempted
delivery, which stated that he could pick up the regis-
tered letter at the Post Office after 8 a.m. on September
27 (thus suggesting that the notice of the letter had been
placed in his mailbox on September 26). Conceding that
there was still time on Friday afternoon to go to the Post
Office to pick up the letter, Jones admitted that he had
not tried to do so, claiming that he had no transporta-
tion. Based on the overall impression I formed of Jones
as an evasive and somewhat artful witness, and the evi-
dence above and below that Jones had access to trans-
portation in the period immediately before and after Sep-
tember 28, I -do not credit the reason just mentioned.
Rather, I conclude that Jones simply did not choose to
make the trip to the Post Office a matter of priority in
the conduct of his affairs. 1 s 2
into exhaustive detail , credible and uncontradicted testimony of Respond-
ent's agents reflects that the discrepancies were the result of inadvertent
errors in clerical processing . The findings above and below as to the
actual dates on-which the letter was processed and-transmitted to Jones
are based on uncontradicted testimony , including that of a local postal
service official , and on the parties' stipulations at Tr. 514.
151 Jones gave varied accounts of the timing of his return from his, trip
to Dallas. The findings here are based on his ultimate concessions during
cross-examination and examinat ion from the bench.
1 62 He was not employed at the time.
Jones finally went to the post office about 2:30 p.m. on
Monday, October 1, where he then obtained the-letter,
opened, and read it. He admitted that there was still time
that afternoon to have communicated an acceptance to
Respondent of the reinstatement offer, but claimed that
he did not have 25 cents for a telephone call. Because
Jones had a telephone at his residence, because there was
a free telephone available at the post office, and because
Jones admittedly rode around with his brother in the,lat-
ter's car for the balance of the afternoon, I give no cre
dence to this reason for his failure to contact Respondent
before the close of business on Monday.
Jones did call Teegerstrom on the morning of Tues-
day, October 2, and accepted the reinstatement, offer.
Teegerstrom told him to report to, work the next day.
Later on October 2, Teegerstrom examined the date on
the reinstatement offer letter and inquired of the Post
Office when the first notice of attempted delivery had
been left at Jones' residence. On learning that this had
been done on Wednesday, September 26, Teegerstrom
determined that ` Jones' acceptance was untimely and so
notified Jones. Respondent thereafter treated Jones as
having terminated himself by failing to timely respond to
the reinstatement offer.
It is uncontradicted that the position to which Jones
was offered reinstatement had not been ,flled at the time
Teegerstrom rejected Jones' acceptance as untimely.153
It is Respondent's position that nondiscriminatory con-
siderations of efficiency and the overall goal of effecting
prompt reinstatement of former strikers warranted strict
adherence to the 3-day acceptance deadline that it had
imposed.
I accept Respondent's ,position. As noted in the case of
Kingsby, supra, the quoted language in Markle Mfg„
holding that a former striker awaiting recall has a duty to
keep his employer apprised of his current whereabouts
so that the employer may give him "effective- notice" of
reinstatement imposed on Jones a duty to notify Re-
spondent in advance of his, absence from his residence so
that other arrangements might be made for communicat-
ing a reinstatement offer, should the occasion arise. And,
from all of the circumstances recited above,, Jones ap-
pears to have violated this' duty-not only in "leaving his
residence for a week without notice to Respondent, but
also by his failure to check his mailbox promptly after
his return, by his procrastination in obtaining the letter
once he learned of its attempted delivery, and by his fur-
ther procrastination in failing to promptly make contact
with Respondent once he had read its contents. Accord-
ingly, the delays in Jones' response to the letter were
largely-if not entirely-the -product of his own lack of
diligence, and were not attributable to any flaw in Re-
spondent's efforts, nor to any unique or exceptional cir-
cumstances.
In addition, it is difficult to charge Respondent with
an actual intent to discriminate against former strikers by
treating Jones' response as untimely when the employee
who ultimately received the job in question was another
'53 See credited testimony of Joe Coats, who stated that the position
was not filled by Ralph Funk, another former striker awaiting recall,
until late October, following a bidding process.
AXELSON, INS,
former striker awaiting recall. I am further satisfied that
Respondent's professed business justification for rejecting
Jones' belated acceptance of the reinstatement offer (the
need to get on with its striker recall program) was its
true motivation.
The only remaining question presented by Jones' case,
therefore, is: Was there something "inherently destruc-
tive" to the exercise of important employee rights about
the "acceptance" conditions imposed in the letter that
Jones received?
There are two potential and related bases for an argu-
ment that those conditions had such an inherently de-
structive effect. Thus, it may be argued that a 3-day
deadline was inherently unreasonable. As noted in the
Kingsby discussion, supra, however, the Board has no
per se rule about the length of time that an employer
must allow to' a former striker awaiting recall to accept a
reinstatement offer-the only rule being that a reasonable
time be afforded under all the circumstances. I find noth-
ing in the circumstances here that warrants treating the
deadline as unreasonable. Had Jones been diligent, he
would have had no difficulty in learning of, and in com-
municating his acceptance of the reinstatement offer
within the prescribed 3 workdays. Moreover, it was not
shown that the uniform application of the 3-day deadline
-created problems for any of the hundreds of unrecalled
strikers who were eventually reinstated, save Jones.
Another potential argument is that the deadline was
confusingly expressed in the letter, arguably suggesting
to the unwary reader that one could accept the reinstate-
ment offer within 3 working days of either the date of
actual delivery of the letter itself, or the date of delivery
of notice, whichever is later. I commented during the ex-
amination of Jones that the letter did not expressly com-
municate the opposite message (i.e., it did not say
".whichever date is earlier"). On reflection, however, I
believe that it would unduly strain the clear import of
the letter to conclude that it was susceptible of meaning
that an employee could, respond within 3 workdays after
he actually received it and without regard to when the
first notice of delivery had taken place. 1,54
Neither do I believe that' Jones was, in fact, subjective-
ly confused concerning how much time he had to re-
spond; once he, read the letter on the afternoon of Octo-
ber 1. He testified at one point that he "read the letter
and it stated three working days, so I figured I had one
more day. That's why [he didn't call Teegerstrom on
Monday the lst]." If Jones had truly believed that the
date of his actual receipt of the letter started the running
of the deadline period, he would have concluded that he
had 3 more days, not just one. I therefore treat that testi-
mony as disingenuous.
For all the foregoing reasons, I conclude that Re-
spondent's deadline for Jones' acceptance of the rein-
statement offer, was neither inherently unreasonable nor
confusingly expressed; nor was it motivated by an intent
to undermine the reinstatement rights of former strikers.
154 It would have been entirely unnecessary to make any reference
whatsoever to the date of delivery of notice of the letter if the date of
actual delivery of the letter itself started the running of the 3-day dead-
line.
899
I further conclude that Respondent was motivated by le-
gitimate and nondiscriminatory considerations relating to
the worthy goal of effecting the recall of strikers without
delay, and that its rejection of Jones' acceptance was
done in furtherance of that goal and to discourage pro-
crastination in Respondent to reinstatement offers.
Accordingly, the complaint concerning Jones must be
dismissed.
12. Eugene Ashley
Ashley's situation was the subject of a separate com-
plaint paragraph in which it was alleged that "On or
about April 3, 1980, Respondent terminated the employ-
ment of, and failed and refused, and continues to fail and
refuse to reinstate employee Eugene Ashley." The broad
issue in Ashley's case is: Was Respondent motivated by
discriminatory considerations relating to Ashley's strik-
ing or other union activities when, on April 3, 1980, it
admittedly notified him by letter from Teegerstrom that
he was terminated for two listed reasons, each of which,
Respondent stated, "constitutes a separate, independent
and self-sufficient basis for termination" as follows:
'(1) Your conduct on March 27, 1980 during a
telephone conversation with the Manager of Indus-
trial Relations wherein you engaged in multiple acts
of major misconduct which can be summarized in
part as constituting direct and unjustifiable insubor-
dination, unjustifiable and unprovoked verbal abuse,
and unjustifiable and unprovoked verbal assault.
(2) Failure and refusal to timely report to work
to a job previously bid and accepted, without expla-
nation, justification, or valid grounds for said failure
and refusal to timely report.
The uncontradicted background is as follows: Ashley,
a former striker awaiting recall, had been receiving invi-
tations to bid on vacant jobs outside his prestrike classifi-
cation on a regular basis since the strike had concluded.
He had declined the opportunity in some instances and
had exercised it in others, but had not received any of
the jobs for which he had bid. 1 5 5 After Respondent had
modified its bid solicitation program in February
1980,156 Ashley' completed one of the newly developed
"Reinstatement Bid and Acceptance" forms, listing, inter
alia, the position of general helper as one job that he
would accept on an interim basis, should an opening de-
velop, and until such time as a vacancy arose in his pres-
trike classification.157
The form signed by Ashley contained, inter alia, this
language:
I . . . agree to automatically accept any vacancy for
which the company determines I am the successful
bidder. I also understand and agree to the reinstate-
ment bid conditions described in the letter to me
155 The General Counsel expressly disclaimed any challenge to earlier
instances in which Ashley had failed to be the successful bidder. (Tr.
564.2-565:12).
155 See fn . 29, supra
157 G.C. Exh. 32.
900 DECISIONS OF TIIE NATIONAL LABOR RELATIONS BOARD
from John Teegerstrom dated February 29, 1980
which was enclosed with this form. [Emphasis
added.]
The February 29 letter just referred to included the
following conditions pertinent to Ashley's case:
By supplying this [bid] information on the enclosed
form . . . a striker will automatically accept rein-
statement to any such vacancy for which he is the
successful bidder.
If the striker fails to report to work within three (3)
working days after delivery, or attempted delivery
of the reinstatement notice, the striker will be con-
sidered to have terminated his employment rights, ab-
sence jsic] compelling circumstances.' 58
On March 27, 1980, Ashley received a letter dated
March 25 from Respondent notifying him that he was
the "successful bidder for the job General Helper." The
letter instructed Ashley to report to work within 3 work-
days. Pursuant to further instructions in that letter,
Ashley telephoned Teegerstrom on March 27 from the
Union 's local office. The contents of the conversation
that ensued are in substantial dispute. It is at least agreed
that Ashley asked what pay rate would be applicable to
the job and that Teegerstrom told him that it was $5.72
per hour, plus COLA (cost-of-living allowance). This
was the pay rate generally applicable at the time for gen-
eral helpers , but it was less than the rate applicable to
the prestrike classification held by Ashley. It is further
undisputed that Ashley challenged the pay rate figure
give by Teegerstrom for two related reasons: First,
Ashley was laboring under the misapprehension that em-
ployees who successfully bid on some vacancy in lower-
rated classifications than their prestrike classification
were nevertheless entitled to receive the higher pay rate
while performing the lower-rated job. Second, this mis-
taken assumption was fed by Ashley's knowledge that
Respondent had entered into a special settlement ar-
rangement with another former striker, Wadell Thomp-
son, in which Respondent had offered to pay Thompson
a "red circle" rate of $6.93, plus COLA, even though he
had been reinstated to a general helper classification. 159
Teegerstrom , corroborated by Rod Plant Superintend-
ent McGehee , who was present when Ashley 's call came
in, 160 states , in substance , as follows: Teegerstrom and
1511 R. Exh. 10, received as a specimen of the letters sent by Respond-
ent under its streamlined bid/recall program, and which was the letter
addressed to Ashley (emphasis added).
159 This arrangement between Thompson and Respondent was appar-
ently in settlement of some dispute or some charge that did not figure in
these proceedings. A written memo had been prepared (G.C Exh. 33) by
Respondent on February 29, 1980, clearly reflecting this background,
noting that it was deemed by Respondent to be a lump sum settlement
through the device of the special "red circle" rate for Thompson. Ashley
had obtained a copy of the settlement memo and he had it before him
when he spokeby telephone with Teegerstrom on March 27
150 McGehee states that he was able to overhear Ashley's loud and
abusive remarks next set forth because Teegerstrom held the telephone
receiver away from his own ear so that McGehee could listen.
McGehee were discussing current manning requirements
in the rod plant when Ashley's call was taken by Teeger-
strom's secretary. Teegerstrom commented to McGehee:
"Hey your general helper is- responding." After the ini-
tial discussion about the applicable pay rate, Ashley
grew angry and called Teegerstrom a "goddamned liar"
when Teegerstrom insisted that the rate was $5.72, plus
COLA. Teegerstrom then told Ashley that he would not
argue with Ashley and instructed Ashley to report to
work, as the reinstatement letter had instructed. Ashley
responded that Teegerstrom could "go straight to hell"
and that Ashley would do as he "goddamned well
pleased."
According to Teegerstrom,. he thereafter waited sever-
al days without hearing further from Ashley, and then
wrote the April 3 termination letter to Ashley quoted
above at the introduction of this section.
Ashley, partially corroborated by union representative
Vernon McKimmey, who stated that -he was present in
the Union's office during Ashley's call, t 61 gave the fol-
lowing version of the same conversation: Ashley ques-
tioned why Teegerstrom was only paying the general
helper's rate when Ashley had before him a letter (i.e.,
the Thompson settlement memo), which showed that an-
other general helper was receiving "seven dollars some-
thing." Teegerstrom then said that he would not argue
with Ashley, further warning Ashley: "You've got until
one o'clock to get back in here. If not, I can terminate
you." Ashley closed the conversation, saying that Tee-
gerstrom could "do whatever he wanted to do." Al-
though initially stating that he never raised his voice or
used profanities, Ashley eventually conceded on cross-
examination that he might have used the word "hell" in
a nonabusive context. He was pressed on cross-examina-
tion as to whether or not he had said to Teegerstrom
that Teegerstrom could "go straight to hell." Ashley re-
plied: ` I don't remember that."
After viewing all witnesses as they testified to these
and related matters, I formed the impression of Ashley
that his version was untruthful. While McKimmey's gen-
erally corroborative testimony- appeared to be sincerely
voiced, I retain doubts whether he was as intimately in-
terested in Ashley's end of the conversation as his testi-
mony would suggest. I was impressed by the apparent
conviction of Teegerstrom and McGehee in their re-
counting of what took place. I therefore credit Teeger-
strom's account, as corroborated by McGehee.
Analysis and Conclusions
Ignoring for the moment that I have found, in sub-
stance, that Ashley was gratuitously abusive and insubor-
dinate in his remarks to Teegerstrom, I would find, even
in the absence of such behavior, that Respondent was
privileged in treating Ashley as having terminated his
employment by his refusal to report for the general help-
er's job that he had agreed in advance to automatically
accept, and under circumstances where he had also
161 McKimmey purports only to have overheard Ashley's end of the
conversation, and generally corroborates Ashley about what Ashley said,
especially as to the absence of any loud or abusive language.
AXELSON, INC.
agreed in advance that his subsequent' failure to report
would be deemed grounds for his termination. Particular-
ly in the absence of any challenge by the General Coun-
sel to the uniform practice of Respondent during this
period of imposing such seemingly nondiscriminatory
conditions on employees submitting bids for jobs other
than in their prestrike positions, and in the light of the
evident business purposes that those conditions
served,162 I find no basis for concluding that Respond-
ent was, in fact, prompted by proscribed reasons in ter-
minating Ashley, or that its termination of Ashley had
some "inherently destructive" impact on the exercise of
important employee rights. I would therefore dismiss the
complaint as to Ashley on this basis alone.
Adding to the foregoing analysis the aggravating fac-
tors of Ashley's abusive and insubordinate behavior to-
wards Teegerstrom, and considering that Respondent has
maintained for some years a written policy in its employ-
ee handbook of treating the use of "abusive language"
and acts of "insubordination" by employees as discharge-
worthy offenses163 I have no hesitancy in concluding
that Ashley's discharge did not violate the Act. Thus,
even assuming, without deciding, that the General Coun-
sel made a prima facie showing that Ashley's discharge
was partially motivated by antiunion hostility, I would
find that Respondent met its burden of showing that
Ashley would have been discharged even absent such
hositltity. Wright Line, 251 NLRB 1083 (1980).
The complaint as to Ashley must therefore be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the, meaning of Section 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. By treating the employees listed below as having
terminated their employment by taking "permanent em-
ployment elsewhere," under circumstances where Re-
spondent failed to carry its evidentiary burden of demon-
strating that those employees had, in fact, abandoned
their statutory rights to reinstatement when vacancies
arose in their prestrike jobs; and by failing to reinstate
those employees to their prestrike jobs when admitted
vacancies arose, Respondent has engaged in, and is en-
gaging in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) of the Act.
The employees thus discriminated against are:
C. C. McKee Robert H. Brenner
Otis D. Nichols John E. Kemp
Donald E. Brightwell Bobby J. Ballard
Robert Washington Donald L. Sapp
R. D. McGrede
4. By discharging the employees listed below for their
strike-related activities under circumstances where Re-
spondent failed to carry its evidentiary burden of show-
ing that those employees were guilty of flagrant and
162 The need for promptness, efficiency, and certainty in the imple-
mentation of Respondent's sinker recall program
163 R Exh. 18.
901
egregious misconduct during the strike, Respondent has
engaged in, and is engaging in, unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3)
and (1) of the Act. The employees thus discriminated
against are Q. Ray Williams, William J. Bryant, Jimmy
G. McGrede, and S. L. Curtis.
5. After eventually abandoning the contention that
former strikers C. C. McKee, Otis D. Nichols, Donald
E. Brightwell, and Robert Washington had forfeited
their rights to reinstatement by taking "permanent em-
ployment elsewhere," and after offering reinstatement to
them to their prestrike jobs, Respondent further discrimi-
nated against those employees by conditioning their 'rein-
statement on their passing of a rigorous physical exami-
nation and by denying them reinstatement when they
failed to pass those examinations. Respondent similarly
discriminated against J. E. Allen and Douglas Wheelis
by imposing such a physical examination condition on
their right to reinstatement and by denying them rein-
statement for failing to pass such examinations. By those
acts, and by each of them, Respondent has engaged in,
and is engaging, in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and (1) of
the Act.
6. Respondent did not violate the Act-either as al.
leged in the complaint or under any other set of circum-
stances that were fully and fairly litigated-by its treat-
ment of the individuals listed below:
D. R. Daniel
J. D. Burkett
Bennie Jackson, Jr.
Dan Watts
Edmond Jones
Jackie Orms
Ed Perry
Betty Phillips
Thurman O. Haywood
Arthur Kingsby
Floyd Stevenson Snider
Eugene Ashley
THE REMEDY
Speaking generally, based on the foregoing findings
and conclusions that Respondent discriminated against
former strikers in certain instances by treating them as
ineligible for reinstatement under circumstances where
they had not forfeited their Laidlaw reinstatement rights,
it is my recommendation that Respondent be ordered to
cease and desist from such discriminatory acts, that it
post an appropriate remedial notice at its Longview
plant, that it reinstate those employees to the employ-
ment status they occupied immediately prior to the acts
of discrimination that I have found, and that it make
those employees whole, with interest, for any losses of
pay or benefits that they have suffered as a consequence
of Respondent's discriminatory acts.164
To avoid confusion at the compliance stage in the
computation of backpay amounts, I deem it necessary to
tailor my remedial recommendations to the particular
circumstances presented by each class of discriminatees
discussed above.
164 All amounts necessary to make said employees whole to be com-
puted in accordance with the general guidelines and principles established
by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing
Co., 138 NLRB 716 (1962); and Florida Steel Corp, 231 NLRB 651
(1977).
902 , DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding the nine employees whom Respondent
deemed ineligible for reinstatement on the alleged basis
they had taken permanent employment elsewhere,165 it
was admitted that, but for that fact, they would have
been reinstated to vacant jobs in their respective pres-
trike classifications during the week in which Respond-,
ent mailed letters to them notifying them of its action. It
is therefore evident that those employees suffered pre-
sumptive losses in pay or benefits commencing at the
point at which those vacancies arose. Because the record
does not identify precisely when those vacancies first
arose, and because the complaint shows the dates on the
respective letters as the dates on which the discrimina-
tion first occurred,, I feel bound to find that the discrimi-
nation-and hence-Respondent's backpay liability-com-
menced as of the date chosen in the complaint, notwith-
standing that a more-detailed inquiry might disclose the
existence of vacancies for them at some earlier point. -
Regarding the four employees, (Williams, Bryant,
Jimmy G. McGrede, and Curtis) who were wrongfully
discharged for their strike-related activities, it is not at all
clear on this record when they would have been reinstat-
ed to their prestrike jobs pursuant to the striker recall
program had it not been for Respondent's wrongful deci-
sion to discharge them. The complaint seems to have
taken an arbitrary (or, at least, inconsistent) tack in at-
tempting to identify the date on which each such em-
ployee suffered discrimination. Thus, in the cases of
Jimmy G. McGrede and Q. Ray Williams, the General
Counsel appears to have seized on the dates on Respond-
ent's discharge letters to them (October 15 and October
1, respectively). In the cases of William J. Bryant and
S. L. Curtis, however, the General Counsel has chosen
the date on which the strike ended as the date on which
discrimination against them commenced.' 66
To the extent that the General Counsel appears to
have thus conceded that Jimmy G. McGrede and Wit-
liams would not have been recalled,to their former jobs
in due course until the dates on their discharge letters, I
might properly conclude that their backpay rights com-
menced no earlier. To the extent that the complaint al-
leged that Respondent wrongfully failed to recall Bryant
and Curtis on May 31 and Respondent failed in its cus-
tomary defense burden of showing that those specific
employees were permanently replaced at the time the
strike ended, I might be justified in concluding that their
backpay rights commenced as of May 31.
To pursue either approach, however, would be to
seize on the seemingly arbitrary date choices made by
the drafter of the complaint. Moreover, even though all
these individuals' cases were treated by the drafter as in-
stances of a wrongful failure to recall, the more funda-
mental reality is that they had been' discharged-not
merely bypassed. And the only question that was truly
litigated as to them was whether or not their activities
165 I e., the employees identified in sec. 111,E, above
166 Because Curtis never received a discharge letter, there might be
some rational basis for selecting the May 31 date in his case, but it is less
easy to rationalize the selection of the May 31 date in Bryant's case, since
he received a discharge letter from Respondent dated October 1, and the
General Counsel has elsewhere treated the dates on the discharge letters
as significant in the cases of McGrede and Williams.
during the strike justified Respondent's decision to dis-
charge them. There was no litigation over the question
when they would have been recalled in due course, but
for Respondent's wrongful discharge decision.
Accordingly, I would defer to the compliance stage in
all four, cases an inquiry into the question. when they
would have been recalled absent the discrimination
against them, with no significance to be attached to the
dates selected in the complaint, except to the following
extent: It is clear that, at least after issuing those- dis-
charge letters, Respondent no longer invited the three
recipients to bid on out-of-classification jobs. And, had
they been given this opportunity, one or more of them
might have obtained interim recall and earnings from Re-
spondent, even if vacancies in their respective prestrike
classifications did not occur -until much later (or, per-
haps, have not yet occurred).
To sum up, it should be determined at the compliance
stage whether Respondent's failure (after issuance of the
discharge letters) to permit those wrongfully discharged
strikers to bid on out-of-classification jobs-resulted in a
denial of earnings opportunities; and, to the extent it is
determined that this occurred, backpay should be award-
ed-for the amounts they would have thus earned. Fur-
ther, backpay should also be awarded for the amounts
they would have earned at such time (if ever) as they
would have been reinstated to their prestrike classifica-
tions pursuant to the normal operation of Respondent's
strikers recall program.
As to the employees who were denied reinstatement
for failure to pass a discriminatorily imposed physical ex-
amination , I have found in the cases of C. C. McKee,
Otis D. Nichols, Donald E. Brightwell, and Robert
Washington, that this was merely a compounding of dis-
crimination against them that initially occurred when
they were wrongfully denied recall to admitted vacan-
cies for having allegedly taken permanent employment
elsewhere. Accordingly, there is no independent backpay
significance to Respondent's subsequent discrimination
against them . As to J. E. Allen and Douglas Wheelis,
however, their backpay entitlement became triggered by
Respondent's wrongful refusal to reinstate them to ad-
mitted vacancies in their prestrike jobs, which occurred
in, respectively, March and February 1980.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed167
ORDER
The Respondent, Axelson, Inc., Longview, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to treat former strikers who have uncon-
ditionally offered to' return to work as eligible for rein-
statement because they have obtained other employment
during the strike under circumstances where those per
167 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.
AXELSON, INC.
sons have not abandoned their interest in continued em-
ployment with Respondent.
(b) Discharging employees for striking or for engaging
in strike-related conduct unless such employees are
guilty of flagrant or egregious misconduct.
(c) Violating its obligation to offer unconditional rein-
statement to vacant jobs to former strikers who have un-
conditionally offered to return to work by requiring
them, as a condition to reinstatement, to undergo and
pass physical examinations.
(d) In any like or related manner discriminating against
employees for engaging in a lawful economic strike or
interfering with, restraining , 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 immediate, full, and unconditional reinstate-
ment to their former positions of employment to the fol-
lowing named employees or, if those positions no longer
exist, to substantially equivalent ones, without prejudice
to their seniority and other rights and privileges and, if
necessary, discharge employees hired since the discrimi-
nation against them in order to make room for them; and
make them whole, with interest, for any losses of wages
or benefits that they may have suffered as a consequence
of the discrimination against them-all in a manner con-
sistent with the discussion in the remedy section:
C. C. McKee Donald L. Sapp
Otis D. Nichols Q. Ray Williams
Donald E. Brightwell
Robert Washington
R. D. McGrede
Robert H. Brenner
John E. Kemp
Bobby J. Ballard
William J. Bryant
Jimmy G. McGrede
S. L. Curtis
J. E. Allen
Douglas Wheelis
903
(b), Preserve and, on request, make available to the
Board or its agents all payroll and other hiring and em-
ployment records necessary and useful in the computa-
tion of the backpay amounts due and owing under the
make whole provisions of this Order.
(c) Post at its Longview, Texas plant copies of the at-
tached notice marked "Appendix."'68 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after 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.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
168 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."