Beaird Industries

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 735 (N.L.R.B. 1994)

735
313 NLRB No. 124
BEAIRD INDUSTRIES
1 The General Counsel and Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 In its exceptions, the Charging Party contends, inter alia, that the
unfair labor practice strikers had a statutory right to reinstatement
commencing on April 6, 1992, and that the Charging Party did not
and could not waive that right. We do not agree with the Charging
Party that this case involves the question of waiver of a statutory
right.
The strikers had a statutory right to reinstatement only on their un-
conditional offer to return to work. The decision as to when to make
the effective date of the offer to return was well within the broad
authority a collective-bargaining agent possesses to act on behalf of
employees in a strike situation. See Woodlawn Hospital, 274 NLRB
796 (1985). We agree with the judge that it was reasonable for the
Respondent to interpret the Union’s offer as commencing on April
13, 1992. Inasmuch as the Respondent reinstated all the strikers
within 4 days of the April 13 date specified by the Charging Party,
the judge correctly concluded that the Respondent did not unduly
delay the return of the strikers.
Beaird Industries, Inc. and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America and its
Local 2297 (UAW), AFL–CIO. Case 15–CA–
11923
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 21, 1993, Administrative Law Judge
Richard J. Linton issued the attached decision. The
Charging Party and the General Counsel filed excep-
tions and supporting briefs. The Respondent filed an
answering brief, and the Charging Party filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Michael W. Jeannette, Esq., for the General Counsel.
S. Mark Klyza, Esq., Robert J. David Jr., Esq., and, only on
brief, Henry T. Arrington, Esq. (Kullman, Inman, Bee,
Downing & Banta), of New Orleans, Louisiana, for the
Respondent.
Samuel Morris, Esq., and, only on brief, Florence M. John-
son, Esq. (Agee, Allen, Godwin, Morris & Laurenzi), of
Memphis, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. The gen-
eral question here is whether Beaird Industries (BI) unduly
delayed reinstating 153 unfair labor practice strikers and, if
so, the date backpay liability attaches. Finding the answer to
be no, I dismiss the complaint.
In the 1967 motion picture Cool Hand Luke, Strother Mar-
tin delivers a line which best describes the source of the
problem in this case: ‘‘What we have here is a failure to
communicate.’’
(Martin, as the prison camp warden, addressing Paul New-
man and other chain-gang members on the consequences
about to befall Newman for ignoring the rule against escape
attempts.)
As the parties were about to resume a related unfair labor
practice trial on Monday, April 6, 1992, the Union’s rep-
resentative, James D. Baker, delivered to BI (the Company)
a letter unconditionally offering the immediate return of the
strikers to work. A discussion ensued about time, with BI’s
attorney stating that a continuance from that trial would be
necessary. A moment later Union Representative Baker said,
‘‘I will make a commitment to the company right now that
the clock will not start running until the 13th.’’ BI inter-
preted the Union’s commitment to mean that the Board’s 5-
day administrative grace period for orderly reinstatement
(during which no backpay accrues) would not start until the
following Monday, April 13. (An interpretation I find to be
reasonable.) Although called as a witness before me, Baker
never explains what he meant by his commitment to BI.
The Government’s apparent position here is that the
Union’s commitment meant nothing, and that the 5 days
began counting on April 7, the day after delivery of the un-
conditional offer to return to work. Thus, backpay would
begin on Monday, April 13. By implication, therefore, the
General Counsel’s position is that if Baker’s commitment to
BI meant anything at all, it meant that the backpay clock—
not the 5-day clock—would start on Monday, April 13. That
interpretation would render the Union’s commitment mean-
ingless, for even without the Union’s commitment backpay
would not have begun here until Monday, April 13. Had BI
understood that to be the Union’s position, BI may well have
pushed hard on the record for a continuance of the case then
at trial so that it could begin the reinstatement process. As
it is, BI reinstated everyone by Thursday, April 16. Because
BI’s interpretation was reasonable (April 13 meant the 5-day
clock), and the reinstatement of the 153 strikers was com-
pleted within 4 days of the date, April 13, specified by the
Union, I find no undue delay, and I dismiss the complaint.
I presided at this 1-day trial on June 22, 1993, in Shreve-
port, Louisiana, pursuant to the June 22, 1993 third amended
complaint (complaint) issued by the General Counsel of the
National Labor Relations Board through the Regional Direc-
tor of Region 15 of the Board. The complaint is based on
a charge filed October 5, 1992, and subsequently amended,
by International Union, United Automobile, Aerospace and
Agricultural Implement Workers of American and its Local
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise indicated, all dates are for 1992.
2 References to the one-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s, CPX for the Union’s, and RX for Respondent BI’s.
2297 (UAW), AFL–CIO (the Union or UAW) against Beaird
Industries, Inc. (BI, Beaird, the Company, or Respondent).1
In the Government’s complaint the General Counsel al-
leges that Respondent BI violated Section 8(a)(3) and (1) of
the Act, 29 U.S.C. § 158(a)(3) and (1), by delaying the rein-
statement of some 158 named unfair labor practice strikers
from April 13, 1992, to later dates, with most dates being
April 14, 15, and 16, 1992. (Technically, therefore, the issue
is whether there was an improper delay in the reinstatement.
The real issue is money—the date when backpay, if any, be-
gins to accrue for the 153 strikers.)
By its answer BI admits certain facts but denies violating
the Act.
Originally this case was one of seven consolidated for
trial. On June 18, 1993, the Regional Director for Region 15,
based on a settlement which he approved, issued his order
severing the first five cases: Cases 15–CA–11869–1, 15–CA–
11869–5, 15–CA–11887–1, and 15–CA–11887–4. (GCX
1qq.)2 Trial already had been scheduled to commence in
Shreveport on June 21, 1993. (GCX 1jj.) When everyone as-
sembled on June 21 for the trial, the parties began, or contin-
ued, further settlement discussion.
Proving successful, this discussion led to settlement of two
of the remaining three cases, and the two, Cases 15–CA–
11904 and 15–CA–11932, were severed from the instant case
by the Regional Director’s June 22, 1993 order severing
cases and conditionally approving withdrawal of charges and
third amended complaint and notice of hearing (GCX 6)—
the trial complaint. Thus, the trial complaint covers only
Case 15–CA–11923 (1:42–43).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel (who attached a proposed order
and notice to the Government’s brief), the UAW, and the
Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
A Delaware corporation headquartered in Shreveport, Lou-
isiana, Respondent BI fabricates steel. During the 12 months
ending September 30, 1992, BI sold and shipped products
valued at $50,000 or more direct to points outside the State
of Louisiana. BI admits, and I find, that it is an employer
within the meaning of 29 U.S.C. § 152(2), (6), and (7).
II. LABOR ORGANIZATION INVOLVED
The pleadings establish that the Union is a labor organiza-
tion within the meaning of 29 U.S.C. § 152(5).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Prior cases
This case is the sequel to Beaird Industries, 311 NLRB
768 (1993). There, as material here, the Board found that a
strike which began September 11, 1991, was an unfair labor
practice strike. The Board ordered BI to offer the strikers, on
their unconditional application, immediate and full reinstate-
ment and to make them whole, with interest. Actually, the
Board adopted, as modified, the July 14, 1992 decision of
Administrative Law Judge J. Pargen Robertson.
After settlement and severance of the other six case num-
bers from this case, we are left here with the issue of wheth-
er BI unlawfully delayed reinstating the strikers after the
strike ended in April 1992. The previous case, the one pre-
sided over by Judge Robertson, arose in the context of an or-
ganizing campaign which concluded with the Union’s elec-
tion victory and Board certification followed by bargaining
from May 1990 to May 1991, withdrawal of recognition on
May 16, 1990, and the strike which began September 11,
1991. The parties stipulated that the election won by the
Union was conducted February 2, 1990, in Case 15–RC–
7491 (1:18).
As found by Judge Robertson, Beaird Industries, supra at
796, and as alleged and admitted in the earlier pleadings in
the cases consolidated for trial before me, the Union was cer-
tified on March 30, 1990. Because the unit description is
lengthy, and is not otherwise relevant in this case, I merely
note that it basically is a unit of production and maintenance
employees. There is one observation to make concerning the
Union’s status. The earlier pleadings allege that the Union
has been the exclusive bargaining representative since its cer-
tification date of March 30, 1990. The correct date is that of
the Union’s election victory, February 2, 1990. The certifi-
cation date is when the employer’s limited duty to bargain
following a union’s election victory ripens into the employ-
er’s plenary statutory obligation to recognize and bargain. At
certification of a union the employer’s duty to bargain relates
back to the election date. Livingston Pipe & Tube v. NLRB,
987 F.2d 422, 428 (7th Cir. 1993); Dow Chemical Co. v.
NLRB, 660 F.2d 637, 643 (5th Cir. 1981); Lovejoy Indus-
tries, 309 NLRB 1085, 1112 (1992).
Judge Robertson notes that BI was purchased by Trinity
Industries in April 1990. Beaird Industries, supra at 796.
Earlier cases involve BI when it had a somewhat different
name or different owner. I do not rely on those cases in my
findings here, but I mention them merely to complete the
background picture. The first case was tried before Judge
David L. Evans. Riley-Beaird, 253 NLRB 660 (1980). It was
followed by the first case before me, Riley-Beaird, 259
NLRB 1339 (1982) (with different owners mentioned at
1341 fn. 5). The third was before Judge Richard H. Beddow
Jr., reported as Riley-Beaird, 271 NLRB 155 (1984). The
fourth was the one tried before Judge Robertson, and the in-
stant one is the fifth to be litigated. As these cases note, or-
ganizing in the past was, at times, by a union other than the
UAW.
2. The strike ends
As noted, the strike ended on April 6, 1992. The details
are important, and I summarize them in a moment. A list
(RX 1) with names and addresses of the approximately 200
strikers is in evidence (1:61). Apparently for various reasons,
not all the 200 returned to work. The focus here is on 153
of the strikers. The 153 are named on another list (GCX 2)
stipulated and received in evidence (1:7–15, 97–107) as the
list of returned strikers, with date of return, in issue here.
737BEAIRD INDUSTRIES
Larry A. Bell, BI’s manager of human resources (1:126),
testified that when the strike ended the bargaining unit con-
sisted of about 450 employees. Some 185 to 190 of the strik-
ers were reinstated. During the strike BI operated with tem-
porary replacements and nonstrikers. Because BI did not re-
lease the temporary replacements, but simply absorbed the
returning strikers into the work force, the size of the bargain-
ing unit expanded to over 600 employees (1:197, 201–202).
B. Governing Law
1. The Board’s order
In the predecessor case before Judge Robertson, the Board
ordered BI to offer reinstatement to the unfair labor practice
strikers on their unconditional application, and further or-
dered that BI make strikers whole ‘‘who have made them-
selves available for employment on an unconditional basis
but who were refused reinstatement, in the manner set forth
in the Board’s decision.’’ Beaird Industries, supra at 772.
In its decision the Board wrote that BI must make the
strikers whole for any loss of earnings they may have suf-
fered as a result of BI’s refusal, if any, to reinstate them in
a timely fashion, by paying to each of them a sum of money
equal to that which they would have earned as wages during
the period (id. at 770–771):
[C]ommencing 5 days after the date on which each un-
conditionally offered to return to work to the date of
the Respondent’s offer of reinstatement, less any net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed
in. . . . The Board has found that the 5-day period is
a reasonable accommodation between the interests of
the employees in returning to work as quickly as pos-
sible and the employer’s need to effectuate that return
in an orderly manner. [Citing Drug Package Co., 228
NLRB 108, 113 (1977), modified on other grounds 507
F.2d 1340 (8th Cir. 1978).] Accordingly, if the Re-
spondent herein ignores or rejects, or has already re-
jected, any unconditional offer to return to work, un-
duly delays its response to such an offer, or attaches
unlawful conditions to its offer of reinstatement, the 5-
day period serves no useful purpose and backpay will
commence as of the unconditional offer to return to
work. Newport News Shipbuilding, 236 NLRB [1637]
at 1638.
2. Other cases
In Drug Package Co., 228 NLRB 108, 113–114, the
Board stated that an employer’s backpay liability accrues
from the day after the date on which each striker uncondi-
tionally offers to return to work until the date of the employ-
er’s offer of reinstatement. However, it is not necessary for
strikers individually to make unconditional applications, nor
even for employers to extend reinstatement offers to each
striker individually, when their union acts as agent for both.
Harris-Teeter Super Markets, 242 NLRB 132, 157 (1979),
enfd. mem. 644 F.2d 39 (D.C. Cir. 1981). And where a
union has made an unconditional offer on behalf of all strik-
ers, the employer may not delay reinstatement by requiring
strikers individually to affirm the request for reinstatement.
Champ Corp., 291 NLRB 803, 885 (1988), enfd. 933 F.2d
688 (1991).
When the offer to return is on behalf of unfair labor prac-
tice strikers, the employer is not at liberty to retain replace-
ments, but must, if necessary to make room for the strikers,
release the replacements. Mastro Plastics Corp. v. NLRB,
350 U.S. 270, 272–273 (1956); Orit Corp., 294 NLRB 695,
698 (1989); Harris-Teeter Super Markets, supra at 157.
When the offer to return to work is collective, that is, on
behalf of the group of unfair labor practice strikers, the em-
ployer is without authority to reinstate strikers on a piece-
meal basis, but must offer unfair labor practice strikers rein-
statement as a group. Orit Corp., supra. An employer re-
sponding to a collective offer to return to work makes a law-
ful offer of reinstatement by accepting that offer and recall-
ing the unfair labor practice strikers as a group, ‘‘no matter
what adjustments this entail[s] with respect to the temporary
work force which ha[s] been hired in their places.’’ Orit
Corp., supra at 699.
Finally, should an employer consider an offer to return to
work ambiguous, it is obligated to ask for clarification. Ste-
phenson-Yost Steel, 294 NLRB 395, 405 (1989); Champ
Corp., 291 NLRB 803, 885 (1988), enfd. 933 F.2d 688
(1991).
C. Witnesses and Credibility
Three witnesses testified, one twice. The General Counsel
called James D. Baker, John Donaho, and rested (1:92). The
Union then rested without calling any witnesses (1:92). BI
called Baker, then Larry A. Bell, and rested (1:204). There
was no rebuttal stage.
An international representative with the UAW, Baker was
the Union’s organizer during the UAW’s successful organiz-
ing campaign at BI. As the Union’s service representative for
the bargaining unit at BI, Baker attended the unfair labor
practice trial in the case presided over by Judge Robertson.
John Donaho, chairman of the Union’s bargaining commit-
tee, is a machine welder and 26-year employee of BI. At the
trial before Judge Robertson, Donaho sat at the counsel table
with the Government’s lawyers (1:79–80, 85).
Manager of Human Resources Larry A. Bell assisted on
behalf of BI at the trial before Judge Robertson and at the
instant trial. Bell apparently has worked at BI for no more
than a few years, for he testified that he was not there when
layoffs occurred in the 1980s (1:185).
Having closely observed the witnesses, I credit James
Baker and John Donaho. Although at times Larry Bell ap-
peared candid and sincere in acknowledging certain facts, I
credit Baker and Donaho over Bell where conflict exists.
D. The Evidence
1. Introduction
Complaint paragraph 9 alleges that about April 6, 1992,
various strikers, including those named in an appendix A to
the complaint, by letter made an unconditional offer to return
to their former positions of employment. BI denies.
Complaint paragraph 10 alleges that since about April 13
BI has ‘‘failed and refused’’ to reinstate the named strikers
‘‘until the date’’ shown by each name on appendix A. BI de-
nies. (I interpret par. 10 to allege a delayed return.) Para-
graph 11, also denied by BI, alleges unlawful motivation.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Paragraph 12 alleges that BI, by delaying the strikers’ return,
violated Section 8(a)(3) of the Act. BI denies.
As mentioned earlier, the parties stipulated (1:7–15, 97–
107) to a list (GCX 2) of the 153 strikers in issue here. The
parties also stipulated that, for our purposes here (GCX 2),
the trial exhibit, is the same document as appendix A at-
tached to the complaint (1:110). All further references here
shall be to General Counsel’s Exhibit 2 (GCX 2).
The controlling event occurred in a conference held the
morning of April 6, preceding trial resumption that day be-
fore Judge Robertson. In the trial before Judge Robertson,
the General Counsel presented the Government’s case during
the 3 days of March 16–18, 1992. Following a break of a
bit over 2 weeks, trial resumed with BI presenting its case
over the 3 days of April 6 (a Monday), 7, and 8 (1:183-184,
Bell). Beaird Industries, 311 NLRB 768. As recorded by
Judge Robertson, id., the General Counsel was represented in
that case by Attorneys Jack L. Berger and Charles Rogers,
with Henry T. Arrington and Jonathan S. Harback represent-
ing BI.
2. ‘‘Clock will not start running until Monday,
April 13th’’
A few minutes before the hearing was to resume before
Judge Robertson on Monday, April 6, 1992, Union Rep-
resentative Baker handed to Larry Bell, BI’s human relations
manager, a letter unconditionally offering the return to work
of all strikers (1:25, 80, 83, 126–127, 192). Addressed from
Baker to W. E. Adams, BI’s president and general manager,
the text of the April 6 letter reads (GCX 3):
On behalf of all bargaining unit employes and the
UAW and its Local 2297, please consider this letter as
an unconditional offer to return to work with immediate
full reinstatement to their former jobs, and if their
former jobs no longer exist, then to a substantially
equivalent position.
As you are aware, it is our position that the current
strike is an Unfair Labor Practice strike and you are re-
quired to return all striking employees to work.
Please contact me at my office (318) 688–4020, for
assistance in coordinating their return to work.
Arrington, BI’s attorney, told Judge Robertson that he
would have to ask for a continuance in view of the letter.
The attorneys, representatives (Baker, Donaho, and Bell), and
Judge Robertson repaired to the judge’s temporary chambers
where a brief conference ensued. At the conference
Arrington repeated his request for a continuance because the
letter said ‘‘immediate’’ and that Larry Bell would be han-
dling the reinstatement process for BI. Baker said that al-
though the letter calls for immediate reinstatement, he would
commit to BI that ‘‘the clock will not start running until
Monday, April 13th.’’ Although Arrington still expressed
concern because of Bell’s having to assist at the trial, the
judge apparently indicated that he might not grant a continu-
ance, and the parties returned to the hearing room where the
trial resumed without BI’s moving on the record for a con-
tinuance (1:26–28, 30, 57, Baker; 1:81, Donaho).
According to Bell, after Arrington asked for a continuance,
the judge either overruled the request, or indicated that he
would, and Baker said the Union ‘‘was aware of the situation
and would work with’’ BI on getting the employees back to
work. Baker mentioned no time table and Bell recalls no
statement by Baker about a clock (1:130–134, 166–168,
191). Baker and Donaho testified more positively and persua-
sively than did Bell. I credit their account and reject most
of Bell’s, although I note that Bell’s account is consistent
with their’s respecting the continuance matter.
While I accept Bell’s testimony that Baker said he would
work with BI in returning the employees to work, I find that
Baker’s statement pertained to assistance (as the Union’s let-
ter of April 7, quoted below, states), not to an open-ended
time frame. I credit the accounts of Baker and Donaho that
Baker said ‘‘the clock will not start running until Monday,
April 13th.’’
Moments later the trial resumed before Judge Robertson
without, apparently, BI formally moving on the record for a
continuance. On brief BI argues that the parties ‘‘agreed’’
that the 5-day period would not begin running until April 13,
and that the Union consented to a 1-week ‘‘extension’’ of the
5-day period ‘‘in lieu of a possible continuance of the unfair
labor practice trial.’’ (Br. at 6–7.) BI’s argument touches on
the pivotal event. Factually there was no ‘‘agreement.’’
Baker unilaterally stated his commitment in the discussion
before Judge Robertson about Arrington’s expressions of
concern. Although the evidence is skimpy (in part because
Arrington did not testify), Bell testified that Judge Robertson
indicated he likely would not grant a continuance. The record
here does not disclose the precise reason that Arrington did
not, on the record, formally move that Judge Robertson grant
a continuance notwithstanding the judge’s indicated position.
The implication, however, is that BI did not make the motion
because it was satisfied that it could handle the reinstatement
process within the 5 days beginning Monday, April 13. That
is, the implication is that BI relied on its interpretation of the
Union’s commitment.
The second aspect of BI’s argument on brief, the reference
to an ‘‘extension’’ of the 5 days, introduces the key issue—
without articulating it. At the April 6 meeting Baker said that
the clock would not start running until Monday, April 13.
But what clock was Baker talking about? Was it the 5-day
clock, so that the Union really was committing to a doubling
of the 5-day standard, as BI argues? Or was it the money
clock, as the Government and the Union impliedly suggest
here but never expressly state? Under the money clock inter-
pretation, backpay would start to accrue on Monday, April
13. That is not a reasonable interpretation of Baker’s state-
ment, BI argues (Br. at 6–7), because it would offer nothing
beyond what the Board’s 5-day rule already afforded BI.
Thus, 5 days from Monday, April 6, was Saturday, April 11.
Although the plant was working three shifts (1:176), it does
not operate on weekends (1:161). The first workday after the
5 days, therefore, would have been Monday, April 13. In
their posthearing briefs, the General Counsel and the Union
do not address this pivotal issue.
Bell acknowledges that he took no action that day on the
Union’s April 6 letter (unconditionally offering strikers back
to work) because the hearing resumed immediately and that
evening he and Arrington worked to prepare for trial the next
day, Tuesday (1:134–135, 192).
739BEAIRD INDUSTRIES
3. All 153 strikers recalled by April 16, 1992
The morning of Tuesday, April 7, Baker handed Bell an
April 7 letter (or copy of one; GCX 4) addressed to W. E.
Adams, BI’s president and general manager, along with a list
(RX 1) of some 200 names and addresses (1:31–32, 34, 38–
39, 60–61, 135–136, 192). The text of Baker’s April 7 letter
to Adams reads (GCX 4):
The Union respectively request [respectfully re-
quests] that you send a certified letter to the last known
address of all strikers, recalling them to work.
It is the union’s position that everyone should be no-
tified to return, however we understand that your
records will reflect certain voluntary quits and certain
terminations.
Those instant cases will be addressed as necessary.
We are currently notifying employees to report their
notification or the lack of notification so we may assist
them in this matter.
Please address any questions to my attention.
No response or questions were addressed to the Union
(1:67–68, 193–194). Baker concedes that he did not know
which strikers would return and which ones would not
(1:65).
Bell testified that he assisted at trial that day, and worked
that evening with Arrington preparing for the next day’s trial
(1:135, 193). Although Bell has a staff of three persons re-
porting to him (Paula Johnson, Lanita Kent, and Julian Law-
rence; 1:138–139, 163–164), he did not assign any tasks to
them at that time because his mind was on the trial (1:164–
165). Thus, nothing was done that day about the recall
(1:193).
Early the morning of Wednesday, April 8, apparently be-
fore trial resumed that day, Bell gave the Union’s list (RX
1) of strikers to Julian Lawrence, directing Lawrence to com-
pare the addresses with BI’s records, and to compile a list
of any differences. Where addresses were the same, Bell
wanted to use BI’s records because computer generated ad-
dress labels could be produced based on BI’s records (1:136,
169, 190). Letters had to be hand-typed for the others
(1:145).
After the hearing before Judge Robertson closed about
noon that Wednesday, April 8, Bell, Arrington, and BI’s
team returned to the plant about 1:30 p.m. (1:137). When
Bell and the others returned, the list of address differences
was being typed, and Lawrence gave it to Bell that afternoon
(1:136, 139, 145). The list has about 48 differences (RX 3).
Paula Johnson was typing the envelopes that could not have
computer-generated address labels (1:181).
At the plant that afternoon, Arrington dictated certain let-
ters, including a one-paragraph letter (RX 2 at 4; RX 6;
1:146, 181–182, 198) sent to each striker from Bell reading:
Beaird Industries has received an unconditional offer to
return to work from the union on behalf of all strikers.
If you desire to return to work, you should notify the
personnel office. After receiving such notification, the
personnel office will contact you concerning when you
should report to work.
Bell testified that he sent the letters to the strikers by regu-
lar mail, not certified as requested in Baker’s April 7 letter
to Adams, because certified mail would have delayed the de-
livery (1:151–152, 194–195).
That same Wednesday afternoon, April 8, Baker met with
the strikers and distributed an April 8 half-page memo (GCX
5) informing them of various developments (1:35, 65). The
first half of Baker’s memo, addressed to Local 2297 mem-
bers, reads (GCX 5):
Court is over and it looks good. The company will
be sending you a letter in the next day or two asking
you to let them know if you intend to return to work
at Beaird.
After you receive your letter I want you to contact
Larry Bell at the plant and tell him your decision. The
number is (318) 865–6351.
I then want you to make a note of what he said.
Write his answer on the letter they sent you and turn
it in to my office, or one of the bargaining committee.
I want to keep records to make sure everyone is treated
the same.
Everyone should be returned by early next week.
Baker testified that by ‘‘early next week’’ [last line quoted
above] he meant Monday—not Monday, Tuesday, or
Wednesday (1:65–66). On this point Baker did not testify
persuasively. I find that Baker meant what he wrote, ‘‘early
next week,’’ and that such covered at least Monday and
Tuesday, April 13 and 14, 1992.
Bell testified that Attorney Arrington advised him concern-
ing reinstatement of the strikers (1:160), and that during the
afternoon of Wednesday, April 8, Arrington told him that BI
had 5 days to return the strikers to work, and that BI needed
to get all the strikers back to work the week of April 13.
Bell understood Arrington to mean that BI had the entire
week of Monday, April 13, through Friday, April 18, to re-
turn all the strikers to work, and that was the goal Bell
worked to achieve (1:160, 162–163, 188, 190, 200–201).
Bell testified that the strikers began calling in about noon
on Thursday, April 9 (1:152, 196). John Donaho testified that
he spoke to Bell about 10 minutes to noon that April 9. He
had received his copy (GCX 7) of Bell’s April 8 letter (RX
2 at 4) instructing strikers desiring recall to call the personnel
office. Donaho reminded Bell that ‘‘the clock starts running
Monday.’’ Bell said he was aware of that. Donaho was re-
called to work at 7 a.m. on April 16 (1:88–91).
Bell further testified that as calls were received from the
strikers he, Lanita Kent, and Paula Johnson (members of his
staff) recorded data on a log (RX 5) reflecting when the
former striker had called in and when BI called him back
and the date and shift given him for his return. Bell spent
all the afternoon of April 8 devoted to these matters, most
of Thursday, April 9, all of Friday, April 10, about 75 per-
cent of Monday, April 13, about 50 percent of April 14, and
about 25 percent on Wednesday, April 15. His staff spent a
similar amount of time on recall of the strikers (1:152–158).
Although Bell’s staff has worked overtime in the past when
necessary, they did not work overtime during this period
(1:184).
On Friday morning, April 10, Bell Testified, Bell’s office
submitted to E. C. Green, manufacturing vice president, a list
of the strikers who had called saying they wanted to return.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
On Monday morning, April 13, Green’s office called back
advising the personnel office the date and shift that the re-
called striker was to report. Bell’s personnel staff then began
recalling the strikers (1:153–154, 197). Bell testified that it
would have been mass chaos if everyone would have been
recalled for the same date, and that it would have paralyzed
the plant if the 180 or so returning strikers had shown up
at the same time. BI needed to schedule back those who
were interested in returning, Bell testified (1:195–196).
All the strikers (in issue here), Bell testified, were back by
the end of the week of April 13 (1:198). Actually, as the
stipulated list (GCX 2) reflects, all 153 were returned during
the 3 days of Tuesday–Thursday, April 14–16, 1992.
E. Analysis and Conclusions
I have credited the General Counsel’s witnesses, Baker
and Donaho, that at the April 6 conference before resumption
of the hearing in Judge Robertson’s case, Baker told Judge
Robertson and Attorney Arrington that the ‘‘clock will not
start running until Monday, April 13th.’’ Arrington did not
testify before me, but I credit Bell that Arrington told him
(relevant to the reason for the course of action by Bell and
BI) the afternoon of Wednesday, April 8, that BI had 5 days
to return the strikers to work, and that BI needed to get them
back to work the week of (Monday) April 13. I credit Bell
that he understood Arrington to mean that BI had through
Friday, April 18, to return all the strikers.
Union Representative Baker never testified that, by his
commitment to Arrington, he meant that the money clock
would start on Monday, April 13. It is unclear whether
Baker, when voicing his commitment to Arrington, made any
mental distinction between a 5-day timeclock and a date
when backpay would begin to accrue. There is no evidence
that Baker intended that backpay would begin to accrue on
Monday, April 13. Indeed, Baker’s April 8 memo (GCX 5)
to the Union’s members, that everyone should be returned by
‘‘early next week,’’ suggests that backpay would not begin
to accrue until sometime after ‘‘early next week.’’ That is,
Baker’s memo is consistent with BI’s interpretation of the
commitment Baker extended Attorney Arrington on April 6.
Although Arrington did not testify, BI’s understanding of
Baker’s commitment is reflected by its course of conduct and
by Arrington’s instructions of April 8 to Bell. It is clear, and
I find, that BI understood Baker’s commitment to mean that
the start of the Board’s 5-day clock (during which no back-
pay accrues) would be postponed to Monday, April 13. As
Baker testified, the reason he made that commitment is that
he knew BI could not process the reinstatement while its
principals were participating in a trial which was scheduled
to last all week (1:57). Although Baker never explains his
‘‘commitment,’’ the General Counsel and the Union take the
position that Baker’s ‘‘commitment’’ impliedly means noth-
ing, that all strikers should have been reinstated by April 13
and, since they were not, backpay begins on April 6. The
different interpretations here call to mind Chisholm’s Third
Law: ‘‘Proposals, as understood by the proposer, will be
judged otherwise by others.’’ A. Bloch, Murphy’s Law 13
(1977, 1983).
BI’s interpretation of Baker’s commitment is reasonable.
First, as I have already noted, the alternative interpretation
(that the money clock begins on April 13) would offer BI
no more time than what BI already enjoyed under Board law.
Second, the reason Union Representative Baker made his
commitment was Arrington’s expression of a need for a con-
tinuance because BI needed to act in view of the Union’s
April 6 demand for ‘‘immediate’’ reinstatement of the strik-
ers. Thus, the whole context was about giving BI more time
than what Board law afforded. It is apparent that BI, by not
formally moving on the record for a continuance in that case,
acted in reliance on its understanding of the Union’s commit-
ment.
The Union committed that ‘‘the clock will not start run-
ning until Monday, April 13th.’’ BI interpreted that commit-
ment to mean that the start of the Board’s 5-day clock would
be postponed to Monday, April 13, during which no backpay
would accrue. BI’s interpretation was reasonable. Acting
with reasonable dispatch under that interpretation, BI re-
turned all 153 strikers (in issue here) to work within 4 days
of the date, April 13, specified by the Union. I therefore find
that BI did not unduly delay the return of the strikers. Ac-
cordingly, I shall dismiss the complaint.
CONCLUSION OF LAW
Respondent Beaird Industries, Inc. has not, as alleged, vio-
lated 29 U.S.C. § 158(a)(3) and (1) by delaying the rein-
statement of 153 unfair labor practice strikers beyond April
13 to April 14, 15, and 16, 1992.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.