Berger Transfer & Storage Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1157 (N.L.R.B. 1986)

BERGER TRANSFER & STORAGE 1157
Berger Transfer & Storage Co , and Truck Drivers,
Oil Drivers, Filling and Platform Workers
Union, Local 705 International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case 13-CA-18752
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 7 December 1983 Administrative Law Judge
James T. Youngblood issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Berger
Transfer & Storage Co., Chicago, Illinois, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
CHAIRMAN DOTSON, dissenting.
I would overrule Abilities & Goodwill, 241 NLRB
27 (1979), and find that Respondent has no backpay
obligation. See Aero Quality Plating Co., 281 NLRB
272 (1986).
1 We affirm the judge's conclusion that Operations Manager Harris' al-
leged offer of reinstatement to three discharged strikers did not toll their
backpay because it was vague and did not clearly rescind their dis-
charges We do not rely on the judge's further finding that Harris' offer
was conditional because it offered them the prestrike conditions and did
not include recognition of the Union -
Felicitas Berlanga, Esq., and Lorraine Pratte, Esq., for the
General Counsel.
Robert L Grossman, Esq., and Carole Halper, Esq., of
Minneapolis, Minnesota, for the Respondent.
18752, directing Berger Transfer and Storage Co. (Re-
spondent) to make whole certain of its employees for
their loss resulting from the Respondent's unfair labor
practices in violation of Section 8(a)(3) and (1) of the
Act. On May 13, 1982, the United States Court of Ap-
peals for the Seventh Circuit enforced the Board's
Order.2
On January 31, 1983, the Regional Director for
Region 13 issued a backpay specification setting forth the
amounts of backpay allegedly due the discriminatees, the
Respondent filed an answer, and a hearing was held on'
June 15, 1983, in Chicago, Illinois. At the hearing the
General Counsel substantially amended the backpay'
specification and because of that- amendment the Re-
spondent made certain admissions, which reduced the
number of disputed issues involved in this proceeding.
Additionally, after the close of the hearing, the General
Counsel and the Respondent entered into a stipulation of
facts covering two discriminatees, Mark Eurek and Ter-
rance Most, who were inadvertently omitted at the hear-
ing held on June 15, 1983. That stipulation of, fact is ac-
cepted and is a part of the record herein.
There is no dispute between the'parties as to the back-
pay formula used by the General Counsel and there is no
dispute as to the discriminatees who are due backpay if
in fact any backpay' is due any of the discriminatees.s
The Respondent admitted that Jerry Gocha, John
Rose, Larry York, Danny Overton, Frank Gatz Sr., Don
Mundt, Mark. Eurek, Terrence Most, Edward Finley,
Donald York, Dennis Busse, David Redman, Ben Bro-
zoska, Phillip Roeseke, Gary Wallen, Thomas Budnik,,
Donald Smith, William Moore, Gerald Stroh, Alan
Brunke, and Mike Gunnells were unlawfully discharged
but are not entitled to any backpay because they could
have voluntarily returned to work at any time. The Re-
spondent also contends that if these employees are enti-
tled to backpay they are entitled to backpay only from
May 24, 1979,4 because they were not discharged until
May 24 and the Respondent owes no backpay for May
23. The Respondent admits5 that if these issues are ruled
in the General Counsel's favor then it owes the amounts
as set forth in the General Counsel's backpay specifica-
tion as amended at the hearing and by the stipulation of
facts entered into on July 22, 1983.
On the entire record and from my observations of the
witnesses, the arguments made during the trial, and the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS AND CONCLUSIONS
The Respondent contends that because the discharged
striking employees could have returned to work during
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
On October 9, 1980, the National Labor Relations Board
(Board) issued its Decision and Order' in Case 13-CA-
1 253 NLRB 5 (1980)
2 678 F 2d 679 (7th Cir. 1982).
2 At the hearing the Respondent admitted that Thomas Budmk,
Donald Smith, William Moore, Alan Brunks, Mike Gunnells, Jessie
Morris; and Bill McDonald were unlawfully laid off on May 21 and 22,
1979, and their backpay entitlement for those 2 days is not contested in
this proceeding
4 Unless otherwise indicated all dates refer to 1979
5 The Respondent also contends that it does not owe the amounts set
forth in the specification because some of the employees included had in-
terim earnings.
281 NLRB No. 155
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the backpay period, their failure to do so resulted in a
willful loss of earnings and therefore, they are not enti-
tled to any backpay. There is no question that the strik-
ing employees herein were discharged in violation of
Section 8(a)(1) and (3) of the Act. In fact, the discharges
occurred at the outset of a legal and lawful strike.
In Abilities & Goodwill, 241 NLRB 27 (1979), the
Board made it clear that discharged strikers are entitled
to backpay until the employer acts to clear up any ambi-
guity it created by its unlawful conduct. In that case, the
Board clearly spelled out that because the employer is
the one who acted unlawfully in discharging the employ-
ees, the burden is on the employer to undo its unfair
labor practices by offering immediate reinstatement to
the employees and until it makes such offer of reinstate-
ment it is liable for all losses suffered by the employee
from the date of the discriminatory action. The Board
made it clear that a discharged striker does not have to
request reinstatement as it would be no less futile than it
would be for a discharged employee. Therefore, as the
employer has created the ambiguity, the ambiguity must
be resolved against the wrongdoer unless the Respondent
can show that the claimants incurred a willful loss of
earnings or would not have returned to work upon an
offer of reinstatement during the backpay period herein.
In an attempt to show that the striking employees
would not have returned to work in any case, the Re-
spondent presented testimony from Mark Harris, a super-
visor, regarding certain conversations he had with strik-
ing employees. He testified that on the morning of May
24, he spoke with Larry York, Donny Overton, and Phil
Roeseke at his automobile down the street from the
picket line. He stated that he did not recall the specific
conversation but that, "Generally, the topic was to en-
courage the guys to come back to work. We would
honor their job, we wanted them to come back. We
were in our peak season. What their actions were doing
was hurting us as a company and had tried to convince
them that what they were doing we could do better for
them as a company and that we wanted them to come
back to work." Over the objections of the General
Counsel, I permitted the witness to give the response and
he stated that, "Their response back to me was that they
appreciated me coming down and talking to them and
that we would try to meet means but they were going to
continue to picket in the best interest of all the employ-
ees and that they were going to take a wait and see atti-
tude, and, therefore, wouldn't make a commitment
whether they would come back to work immediately or
not."
At best, assuming the admissibility of the testimony,
this is nothing more than a request to the employees to
abandon their strike and return to work under the same
conditions as existed prior to the strike and obviously
without any recognition of the Union. At this time, these
employees were discharged unfair labor strikers and this
was certainly not an unconditional offer of reinstatement.
These statements were very similar to the statements that
had been made by management to Overton at various
times during the strike as well as other employees and
which that were found to be unfair labor practices in
themselves.
In any event, I do not regard the statement by Harris
as being an offer to an employee that he could return to
work unconditionally. It is quite clear that the employees
were to return to work and that the Company would
work out something with the employees absent the
Union. Such an offer, even if it be deemed an offer of
reinstatement, is invalid and would not otherwise toll
backpay, and I see no reason why such a statement
would clear up any ambiguity and indicate that the em-
ployees were on strike and not staying out as a result of
their discharge.
In any event, it is my conclusion that the Respondent
has failed to establish that the employees who were dis-
charged would have continued to strike even though
they had not been discharged. I totally reject this argu-
ment and conclude that the employees are entitled to
backpay.
The Board decision reflects that the employees began
to picket the Respondent's premises about 8:30 on the
morning of May 23. About 10:30 a.m. the Respondent's
representative talked to a number of employees and told
them that the picket line was illegal , asked them to
return to work, and informed them that if they did not
report to work by 11 a.m. they would be terminated and
their insurance would be canceled. The judge concluded
that the Respondent informed the striking employees
they would be terminated if they did not report for work
by the stated time and, therefore, concluded that the
change in the picket line that occurred shortly thereafter
converted the picket line from an economic strike to an
unfair labor practice strike. There is nothing in that find-
ing that concludes that the discharges occurred at 11
a.m. on May 23. It is my conclusion that if the Respond-
ent had done nothing further, that his threat of discharge
created a sufficient ambiguity in the minds of the em-
ployees that they could reasonably conclude that they
were discharged as of 11 a.m. on May 23. However,
later that day on May 23, the Respondent sent a tele-
gram to all the employees stating as follows:
We are asking you to report to work at our termi-
nal 2 N. 225 Grace Street, Lombard, Illinois, at 8
a.m. Thursday, May 24, 1979. If you do not report
we will take this to mean that you have voluntarily
terminated your employment with Berger Transfer
and Storage, Inc. If you terminate your employ-
ment, your hospitalization will be terminated at
midnight, May 31, 1979. If you contact us, we will
advise the procedure to convert your personal
policy.
I read this letter to be an offer to all of the striking
employees that they have until 8 a.m., May 24, to report
for work and their failure to do so will result in their ter-
mination. Although, the Respondent may have terminat-
ed the employees at 11 a.m. on May 23, 1979, it is my
conclusion that by this telegram that was sent after 5
p.m. on May 23, the Respondent gave those employees a
reprieve and informed them that their termination would
not occur until May 24. Thus, the employees had until
May 24 to return to work. Their failure to do so resulted
in their termination on that date.
BERGER TRANSFER & STORAGE
The threat to discharge made on the morning of May
23 was made to only a certain number of employees in
the parking lot at that time . As pointed out by the judge,
management came to the parking lot and "summoned a
number of employees to an impromptu meeting on the
spot." And at another point the judge stated that about
10:30 in the morning , "at a meeting of pickets," the em-
ployees were informed that they would be terminated
and that this constituted a threat of reprisal . This threat
of termination was communicated only to a limited
number of the striking employees , the figure I do not
know, and certainly I could not tell whether that encom-
passed the employees covered by this backpay specifica-
tion . But there is no question that the telegram sent on
the evening of May 23 was sent to all striking employees
and called for their termination as of 8 a .m., May 24.
In his Decision the judge stated:
On the evening of the first day of the strike,
Maierhofer sent a telegram to each of the 33 strik-
ing employees in which he told them that, if they
did not return to work by 8 a.m. the following
morning , they would be considered as voluntary
quits and their health insurance would be terminat-
ed at the end of the month. When this telegram was
sent, the strikers in question were unfair labor prac-
tice strikers and, under long -established principles,
they were entitled to reinstatement upon request at
the end of the strike. The discharge of unfair labor
practice strikers is, in and of itself, an unfair labor
practice. By taking such action Respondent herein
violated Section 8(a)(1) and (3) of the Act.
In my view this finding clearly indicates that the
8(a)(3) violations of the Act did not occur until May 24,
and I so find.
Accordingly, it is my conclusion that the employees
were not terminated until May 24 and that no backpay
should be paid to any striking employee for May 23.6
At the hearing the Respondent also argued that some
of the discriminatees had interim earnings that should
offset the gross amount of backpay owed but that it was
unaware of the amount for the employees . The Respond-
ent also did not offer any solution as to what employees.
The Respondent has the burden of establishing that the
claimants had interim earnings in order to reduce its
backpay liability. As it presented no evidence in support
of its contention, it has not carried its burden in this
regard.
Therefore, with the exception of May 23, 1979, which
I have concluded was not the discharge date , I shall
6 In any event, it is my conclusion that backpay should not be paid for
the hours before 11 a.m., May 23.
1159
grant the General Counsel 's request for backpay as set
forth in its amended backpay specification and amended
appendix.
On the foregoing findings of fact and conclusions of
law and on the entire record , I recommend the follow-
ing'
ORDER
The Respondent , Berger Transfer & Storage Compa-
ny, Chicago, Illinois, its officers, agents, successors, and
assigns, shall make whole the following employees, by
paying them the amount set forth below opposite their
name, plus interest thereon accrued to the date of pay-
ment computed in a manner set forth in Isis Plumbing
Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 657 (1977), less tax withholding required by Fed-
eral and state laws.
Jerry Gocha $190.00
John Rose 218.64
Larry York 278.19
Danny Overton 225.36
Frank Gatz, Sr. 278.19
Donald Mundt 257.07
Edward Finley 211.80
Donald York 190.14
Dennis Busse 246.51
David Redman 112.68
Ben Brozoska 73.80
Phillip Roeseke 197.19
Gary Wallen 218.31
Thomas Budnik 183.75
Donald Smith 300.15
William Moore 45.55
Gerald Stroh 8 114.94
Alan Brunke 381.50
Mike Gunnells 8140.86
Jessie Morris 27.00
William McDonald 136.66
Mark Eurek 246.48
Terrence Most 257.04
r 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
a This individual was entitled to only 2 days of wages during the dis-
charge period As I could not determine which 2 days the General Coun-
sel was using, I was unable to determine whether this employee was
being paid for May 23 . I am including a full 2 days' pay. If it is deter-
mined that May 23 was one of the days the General Counsel was using as
the 2 days of wages then this figure , $ 114.94, should be cut in half and
the employee is entitled to only $54.47.
9 See fn. 5.