Burnup & Sims, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1981

256 N.L.R.B. 965 (N.L.R.B. 1981)

13 LRNU I' & 1M1S. I N(
Burnup & Sims, Inc. and Cable Splicers Union of
California. Case 31-CA-9212
June 30, 1981
DECISION AND ORDER
On November 25, 1980, Administrative Law
Judge Burton Litvack issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief in opposition to
Respondent's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
1. The Administrative Law Judge found that
Homer McDowell was a supervisor within the
meaning of the National Labor Relations Act, as
amended, and Respondent was bound by its super-
visor's grant of permission to the crew members to
be absent from work on July 18, 1979,2 for the
purpose of engaging in protected concerted activi-
ty. Respondent excepted to this finding, contending
that it is not bound by the acts of McDowell be-
cause McDowell lacked authority to grant the
entire crew a day off.
We agree with the Administrative Law Judge's
determination that McDowell was a supervisor
within the meaning of the Act. We also agree with
his finding, for the reasons set forth by him, that
Respondent was bound by McDowell's action in
granting the entire crew a day off. With respect to
the latter finding, however, we additionally rely on
the fact that the employees could reasonably be-
lieve that McDowell was acting for and on behalf
of management in the situation in dispute in this
regard, it was uncontroverted that McDowell was
the management representative empowered to
grant days off. Thus, the employees were justified
in believing that McDowell had the authority to
grant their requests. Therefore, in light of the fact
that McDowell was a supervisor within the mean-
ing of the Act and the employees were justified in
relying on his authority to grant time off, Respond-
ent is bound by McDowell's grant of permission to
the crew members to be absent from work on July
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant eidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Pr(ducrs.
Inc., 91 NLRB 544 (1950), enfd 18 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his inding,
2 All dates herein are 1979 unless otherwise indicated.
256 NLRB No. 142
18 for the purpose of engaging in protected con-
certed activities.
Respondent further contends that, in spite of the
fact the employees had permission to be absent
from work to engage in protected concerted activi-
ties, their discharge was lawful because the dis-
charge was based on the fact that the employees
did not report to work and was not based on the
fact that the employees were engaging in protected
concerted activities. We disagree.
We recognize that an employer has a legitimate
interest in having its employees report to work in
the manner prescribed by the employer so that pro-
duction is not interrupted. Discharging an employ-
ee for failing to report to work becomes unlawful,
where, as in the instant case, the employer has
given the employees permission to be absent from
work for the purpose of engaging in protected con-
certed activities, because the protected concerted
activities are inextricably intertwined with the em-
ployees' absence from work. Wheeling-Pittsburg
Steel Corporation, 241 NLRB 1214 (1979). Stated
otherwise, by giving the employees permission to
be absent from work to engage in protected con-
certed activities and then acknowledging that the
employees were discharged for failure to report to
work, Respondent has acknowledged that the em-
ployees were discharged for engaging in protected
concerted activities. Thus, to allow an employer to
discharge employees for failing to report to work
after the employer gave the employees permission
to be absent from work would be contrary to the
purposes of the Act as it would restrain and coerce
employees in the exercise of their rights guaranteed
by Section 7 of the Act. Supreme Optical Company,
Inc., 235 NLRB 1432 (1978), enfd. 628 F.2d 1262
(6th Cir. 1980).
2. Therefore, in agreement with the Administra-
tive Law Judge, we find that Respondent's dis-
charge of its cable splicing crewmembers, under
the circumstances set forth above, violated Section
8(a)(1) of the Act.3
Respondent also excepted to the Administrative
Law Judge's finding the the letter Respondent
mailed to employee Higgins did not constitute a
good-faith effort to communicate a valid offer of
reinstatement sufficient to toll Respondent's back-
pay liability. Respondent contends that its reinstate-
ment offer was made in good faith as the letter was
mailed to the only address Higgins ever provided
I Thus, in light of the above, Respondentls motive for discharging the
individual, in question is not material The act that Respondent granted
permission to the employees to he absent from work so they could
engage in protected concerted activities is determinative Therefore. as
this is not a case turning on employer moltivalin. our decision in W'right
Line. a Disiion of Wrighr Line. Inc., 251 NLRB 1083 (1980), is not apph-
cahle in the instant case
Burnup & Sims, Inc. and Cable Splicers Union of
9h5
966 DECISIONS OF NATIONAL. ILABOR RELATIONS BOARD
Respondent. We agree. The address to which Re-
spondent's offer of reinstatement was sent was ob-
tained from Higgins' employment application, con-
tained on Higgins' tax withholding form, printed
on the paycheck Higgins received from Respond-
ent every week, and used approximately 2 months
earlier by Respondent on a registered letter which
Higgins did receive. 4 Furthermore, Higgins testi-
fied that his mail carrier knew him and would
probably put a letter for him in the right box.5
Additionally, there was no showing that alterna-
tive means for communicating with Higgins were
available to Respondent. Thus, on his employment
application, Higgins listed that he had no tele-
phone. Furthermore, unlike the Administrative
Law Judge, we will not presume that Higgins was
listed in the local telephone directory.
Under these circumstances, we find that Re-
spondent has made a good-faith effort to communi-
cate a valid offer of reinstatement to Higgins.
Therefore, while Respondent's good-faith effort to
communicate a valid offer of reinstatement to Hig-
gins does not relieve Respondent of the obligation
to reinstate Higgins, it does toll Respondent's back-
pay liability as of September 19, the date of the
offer of reinstatement. Rental Uniform Service, 167
NLRB 190 (1967). 6
3. We also find merit in Respondent's exception
to the breadth of the Administrative Law Judge's
recommended Order directing Respondent to mail
the attached notice to each of its employees work-
ing for General Telephone Corporation in South-
ern California. The policies and objectives of the
Act will be adequately served by directing Re-
spondent to post the notices as directed by the Ad-
4 The Administrative Law Judge found that the fact that this letter
was returned to Respondent with the typed street address corrected from"6060 " to "6150" should have put Respondent on notice that Higgins' ad-
dress as contained in its records was possibly erroneous. It must be noted,
however, that the Administrative Law Judge also found that even a cur-
sory examination of the envelope would have revealed that the letter had
not been returned because of an incorrect address, but had been "re-
fused" by Higgins himself In light of this latter finding, we are at a lossto determine why the future use of the address for Higgins contained in
Respondent's file would not have been in good faith.
5 This case is clearly distinguishable from Marlene Industres Corpora-
lion, e al., 234 NLRB 285 (1978), relied on by the Administrative Law
Judge, where we found that the employer's offer of reinstatement wasnot made in good faith because the employer's letter containing the rein-statement offer was mailed to an address which the employer knew was
both an incorrect address and would result in the letter being returned
marked "addressee unknown."
Here, Respondent used the address supplied by Higgins. As notedabove, a previous letter so addressed had reached Higgins. Under these
circumstances, where Respondent was not on notice that Higgins was un-likely to receive its offer, Respondent's failure to verify Higgins' address
does not establish a lack of goxl faith.
e In adopting the Administrative Law Judge's other findings concern-
ing alleged offers of reinstatement, we place no reliance on his comment
that it is conceivable that Respondent's offers of reinstatement were madein order to limit its potential monetary liability or to establish a defense
to the instant charges. So long as an offer of reinstatement is valid, the
fact that the offer is extended to limit backpay liability is irrelevant.
ministrative Law Judge and to mail such notices to
the homes of the employees who were employed as
of the date of the discharges and/or are presently
on Respondent's cable splicing crew in Santa
Monica, California,7 the only location affected by
Respondent's unlawful conduct. We shall accord-
ingly modify the recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Burnup & Sims, Inc., Upland, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph 2(c):
"(c) Post at its Upland, California, office copies
of the attached notice marked 'Appendix.'3 2 Copies
of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material. In addi-
tion, and inasmuch as it does not appear that Re-
spondent's cable splicers ever visit the Upland,
California, office on any regular basis, Respondent
is also ordered to mail to each of its cable splicers
who were employed as of the date of Respondent's
unlawful discharges herein and/or who presently
work for GTC on its Santa Monica, California,
crew a copy of the aforementioned notice."
2. Substitute the attached notice for that of the
Administrative Law Judge.
In agreement with the Administrative Law Judge, Chairman Fanning
would find that the breadth of the notice provision contained in the Ad-ministrative Law Judge's Order was proper and appropriate. See, e.g.,
Daniel Construction Company. Inc., 239 NL RB 1335 (1979).
APPENDIX
NOTICE To EM PLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise inter-
fere with, restrain, or coerce our employees as
a result of their having consulted with agents
A / X
ULRNLIP & SIMS, INC 967
of the National Labor Relations Board or the
Equal Employment Opportunity Commission
or engaged in any other protected concerted
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer to employees Gregory Mark
Higgins, Travis Lee Horton, and Rodney
Brothers immediate and full reinstatement to
his former position or, if such position no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or
other rights previously enjoyed, and make
each whole for any loss of benefits suffered by
reason of his discharge, with interest.
WE WILL make Lawrence Robert Kiggins,
Hui Jon Kim, Rhonda Carol McDowell,
David Lawrence Hammers, and Jess Flores
whole for any loss of benefits suffered by
reason of his or her discharge, with interest.
BURNUP & SIMS, INC.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: This
proceeding was heard before me on February 20 and 21.
March 11, and April 4, 1980, in Los Angeles, California.
On September 8, 1979, the Regional Director for Region
31 of the National Labor Relations Board, herein called
the Board, issued a complaint, pursuant to an original
and a first amended charge filed by Cable Splicers Union
of California on July 19 and September 26, 1979, respec-
tively.' The complaint alleges, in substance, that Burnup
& Sims, Inc., herein called Respondent, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
herein called the Act, by discharging employees Greg-
ory Mark Higgins, Rhonda Carol McDowell, David
Lawrence Hammers, Lawrence Robert Kiggins, Travis
Lee Horton, Hui Jon Kim, Rodney Brothers, and Jess
Flores because they consulted with the Board and cer-
tain labor organizations concerning work problems and
for other mutual aid and protection. Respondent filed an
answer denying the commission of any unfair labor prac-
tices. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Extensive briefs were filed by counsel
for the General Counsel and by Respondent, and said
briefs have been carefully considered. Based upon my ex-
amination of the entire record in this case, upon the
briefs filed on behalf of the parties, and upon my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing:
I Unless otherwise stated, all dates herein are in 1979
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Florida corporation, maintains an office
and place of business located in Upland, California, and
is engaged in cable splicing work within the State of
California. Respondent, in the normal course and con-
duct of its business operations, annually derives gross
revenues in excess of $500,000 and annually performs
services, valued in excess of $50,000, for customers
within the State of California, which customers meet one
of the Board's jurisdictional standards, other than the in-
direct inflow or indirect outflow standards. Respondent
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
11. ISSUFS
1. Whether Respondent violated Section 8(a)(1) of the
Act by discharging employees Gregory Mark Higgins,
Rhonda Carol McDowell, David Lawrence Hammers,
Lawrence Robert Kiggins, Travis Lee Horton, Hiu Jon
Kim, Rodney Brothers, and Jess Flores on July 19, 1980,
because they "consulted with" the National Labor Rela-
tions Board or engaged in other protected concerted ac-
tivities.
2. If said individuals were discharged in violation of
Section 8(a)(l) of the Act, did Respondent make valid
offers of reinstatement to them so as to toll its backpay
liability and obviate the necessity for a reinstatement
remedy.
In. THE ALLEGED UNFAIR ABOR PRACTICES
A. Facts
General Telephone of California, herein called GTC,
is a wholly owned subsidiary of General Telephone and
Electronics Corporation and provides telephone services
for various geographical and municipal areas in Califor-
nia, including portions of Los Angeles, Ventura, Orange,
Riverside, and San Bernardino Counties. In connection
with its cable laying and cable splicing operations in
these areas, GTC employs not only its own workers but
also subcontracts out these operations to various contrac-
tors. Among these latter contractors are Volt Technical
Corporation, Carrier Communications, CID Communica-
tions, Tessine, and Respondent. The record establishes
that all of Respondent's cable laying and cable splicing
work in California is performed for GTC upon such a
subcontracting basis. The record further establishes that
Respondent has two types of requirements contracts
with GTC-a "singles" contract and a "crews" contract.
Under the former arrangement, Respondent provides an
employee to GTC to work at a site predetermined by
GTC. While remaining a full-time employee of Respond-
ent, which pays his wages and any fringe benefits and
which deducts any withholding taxes, the individual is
directly supervised by GTC supervisors; the latter as-
signs and directs his work; and GTC provides any neces-
sary equipment including a truck and tools. Pursuant to
the crews contract, Respondent commits itself to a set-
I3LIRNUP & SIMS, INC
968 DECISI()NS ()F NAI'()NAL LABOR RELATIONS BO)ARD
pricing scale for a -year period. Within this time frame,
when GTC needs cable splicers, it contacts Respond-
ent-as well as the other subcontractors who have simi-
lar contracts-and requests that a specific number of men
be sent to a predetermined location. Respondent is then
asked for a commitment date, and GTC compares this
date with those of Respondent's competitors. The con-
tractor with the earliest commitment date is awarded the
work. Normally, there is no specific duration for the
work, and crews are subject to location changes on a 1-
week notice basis. 2 Under this type of arrangement, Re-
spondent provides the necessary work force, a crew
foreman, trucks, and all equipment for the job. The crew
is supervised by the foreman who is responsible for di-
recting the work of the crew. In July, Respondent had
approximately 65 to 70 singles working for GTC and ap-
proximately 65 to 70 individuals assigned to cable splic-
ing crews for GTC throughout the southern California
area.
At all times material herein, Respondent had a cable
splicing crew working for GTC out of the latter's Santa
Monica, California, facility, which is the headquarters
point for an area extending north to the Ventura County
line and east to Lancaster. Volt Technical Corporation
and CID Communications also had cable splicing crews
at this location. As of May 31, the Santa Monica crew
foreman for Respondent was Homer (Buddy)
McDowell, 3 and the crew consisted of 10 individuals-
Gregory Mark Higgins, Rhonda Carol McDowell, 4
David Lawrence Hammers, Lawrence Robert Kiggins,
Travis Lee Horton, Hui Jon Kim, Rodney Brothers, Jess
Flores, and two apprentice cable splicers. On May 31,
Joseph Powers, Respondent's then California division
manager, had lunch with Arnold Winters, GTC's plant
construction superintendent for the Santa Monica divi-
sion, and Ken Hart, GTC's construction coordinator in
Santa Monica. Acoording to Powers, "At that time, Mr.
Winters indicated . . . that they were in the process of
evaluating the performance of all contractors in that
yard. . . . that the overall performance of the three fore-
men on the splicing crews was about equal; however, the
performance of our splicers was not.... our splicers
were at the bottom."5
At 2 o'clock that afternoon, Powers spoke to Homer
McDowell in the Santa Monica yard and informed
McDowell that GTC was in the process of evaluating
2 According to Joseph Powers, who is currently an operations advisor
to Respondent but who in 1979 was Respondent's division manager for
all California operations, the work ends "when the job is completed" or
"if General Telephone is not satisfied with the quality of the workman-
ship."
3 As will be developed more fully, the record discloses that
McDowell, as the crew foreman. directed the work of the crew members,
apparently hired employee Higgins, granted time off to employees, re-
jected potential employees, selected employees for layoff and could ef-
fectively recommend said actions.
4 The wife of Homer McDowell.
I While neither testified regarding this conversation. both Winters anid
Hart testified as to the performance of Respondent's crew According to
Winters, he was "very definitely" satisfied with the work of Respondent's
crew--"lt was one of my stronger crews" On the other hand, Hart was
significantly less effusive in his praise of the crew, testifying that he rated
its work just "average." It should be noted that Hart would have heen in
the best position to evaluate Respondent's crew inasmuch as he directly
coordinated and apportioned the work among the contract crews.
the performance of all the Santa Monica contract cable
splicers, that some of Respondent's employees were at
the bottom of the list, and that they had to change that
situation. Powers told McDowell that Respondent
"couldn't afford to maintain people that were listed at
the bottom." McDowell expressed displeasure that his
crew was not getting sufficient overtime while other
crews were working overtime hours. Powers promised
to check into the situation but indicated the answer prob-
ably was related to the crew's performance. McDowell,
who testified on behalf of the General Counsel, did not
deny either the occurrence of or the substance of this
conversation.
Powers further testified that he again spoke to Winters
and Hart on June 29 at GTC's Santa Monica facility in
Winters' office. The subject matter concerned the size of
Respondent's cable splicing crew. According to Powers,
Winters and Hart informed him that it was necessary to
reduce the size of the crew by two cable splicers inas-
much as "[GTC] had overexpended their budget for the
year, and that they had evaluated the performance of all
contractors in the yard, and two of our splicers were at
the bottom of the list." Subsequently, the size of the
crew was reduced by laying off the two apprentices,
who happened to be the lowest rated splicers.
On July 2, Powers, George White, Respondent's vice
president in charge of telephone operations, and John
Fischer, Sr., supervisor for telephone communications,
held a dinner for the Santa Monica cable splicing crew
at the Lobster House restaurant. This was one of a series
of meetings, which Powers held with the members of
Respondent's cable splicing and cable laying crews in the
southern California area, to enable Powers to meet them
and possibly dispel rumors regarding Respondent's con-
tinued contractual relationship with GTC. After dinner,
White spoke to the group, praising their work and assur-
ing them that Respondent's relationship with GTC
would continue. While specifically denied by Powers,
both Homer McDowell and Gregory Mark Higgins cre-
dibly 6 testified that White spoke of possible layoffs else-
where by GTC but promised that the Santa Monica
crew would not be affected. White continued, stating
that if any layoffs did occur, they-the Santa Monica
crewmembers-would be placed elsewhere with Re-
spondent.
At the conclusion of the speech, White, Powers, and
Fischer asked McDowell to step outside so that they
could speak privately. According to Powers, "I told
Buddy it was going to be necessary that we replace any
weaker members of the crew." Powers continued, in-
forming McDowell "that we were having people
become available in crews of our own that were reach-
ing the end of their assignment and from the outside . . .
and it was going to be necessary to upgrade his crew."
McDowell replied "that he really didn't like the idea of
replacing anybody on his crew, but he did have some
Ietween HIiggilns and owers,, I credit the icstimony of Higgins,
noting that he impressed lie is hbeing a truthful Iiand canldid witness and
Ihat his ltesllllOlyo regarding White's peech was nmuch ilmore detailed and
colipleie than th atl 'f Pol crTS NMoreo cr. I note that Higgins' testimony
ssas corrobralive rof that of McDowell
BURNUP & SIMS, INC 969
weak splicers, and he indicated those splicers were
Flores . . . Hammers, and . Horton." According to
McDowell, the extent of the conversation merely con-
cerned Powers informing him that he would have to lay
off two men and replace them with others coming from
the East Coast. 7 Because of his friendship with the cable
splicers on his crew, immediately after this conversation
McDowell reported the substance of it to the assembled
employees. McDowell testified that the men were un-
happy, greeted the news with disbelief, and expressed
obvious concern over their job security. Higgins testified
that McDowell told the crew that "people would be sent
in to replace people in our crew," and that the news
caused him to be "quite concerned" about his job secu-
rity.
Two events which occurred on July 9 and 16, respec-
tively, further exacerbated the fears of the Santa Monica
crew members regarding their job security and also are
illustrative of the extent to which McDowell attempted
to protect them. Thus, on July 6, following through on
his conversation with McDowell 4 days earlier, Powers
sent an apparently well-qualified cable splicer, Ron
Pointer, to Santa Monica and instructed him to report to
McDowell and tell the latter that Pointer was to replace
McDowell's weakest employee. Pointer reported on July
9; however, according to McDowell, after he discovered
that Pointer supposedly not only could not read blue-
prints but also was unable to operate necessary equip-
ment, McDowell refused to hire him.8 One week later
on July 16, Powers sent another well-qualified cable
splicer, O'Dell Griffiths, to GTC's Santa Monica facility
for placement into Respondent's splicing crew. To
ensure no repeat of the previous week's episode with
Pointer, Powers sent with Griffiths Francis Simmons,
who had been the foreman of Respondent's Newbury
Park, California, cable splicing crew, and instructed him
to accomplish the replacement himself. Accordingly,
when they arrived, Simmons told employee Hui Jon Kim
that Griffiths was to be his replacement. However. Kim
complained to McDowell when the latter arrived for
work, and McDowell refused to permit Griffiths to
work, sending the latter and Simmons back to Upland.
There is no evidence that Respondent reprimanded
McDowell for his conduct on these occasions but the
record does disclose that both Hart and Winters were
upset at McDowell's actions.
7 Wherever Powers and Homer McDoiuell specifically conflict in their
testimony, I credit that of Porwers, noting that McDow)uell did not impress
me as being a candid witness and he exhibited ain obious bias to: ard hi,
crew members As to the testimonyr of Pouers. while I have spcificlly
discredited portions of his testimony when in conflict with what I per-
ceived to be more credible testimony, much of his testimony uas uncton-
troverted and credible The crediting of portions of his testimony is re-
quired under the circumstances of the case and does not require rejection
of his entire testimony Carolin Cannert. Inc., 213 NI.RB 37 (1974)
"Nothing is more common than to believe some and not all of hat a
witness says" Edards Transportation Company, 187 NIRB 3. 4 (197().
enfd. 437 F.2d 502 (5th Cir. 1971)
t With regard to McDowell's authority in this regard, P'oers ad-
mitted that crew foremen do have aiuthority to refuse to hire indisiduals
However, in Powers' view. McDowell exceeded his authorit, itn hl in-
stance inasmuch as he told McDowell in Ma, that the crew had o he
upgraded and on July 2 that new people ould be sent out "lnder
those conditions I sotuld s;il [he] swould not hale the right inl t refuse
the man without contactinrg is "
Meanwhile, between July 9 and 16 Arnold Winters in-
formed Respondent that its already reduced Santa
Monica cable splicing crew would have to be further de-
creased by two persons. Winters testified that budgetary
considerations mandated another cutback and that the
other contract splicing crews were to be equally affect-
ed. Winters also informed Respondent that the reduc-
tions should be implemented by July 20; however,
McDowell complained to him that he was under pres-
sure from Powers to lay off individuals different from
whom he wanted. According to Winters, "So rather than
get in the middle of an internal problem I told Buddy
that I am going to call [Respondent] and have a meeting
with them, get an understanding of what direction we
were going in with regard to manpower, so I would get
[Respondent's] side of the problem."
Therefore, on July 16 Winters telephoned Powers and
made an appointment for July 18 at the former's Santa
Monica office. Powers testified that this phone call also
related to the Griffiths problem that day. According to
Powers, Winters asked for a meeting on July 18 "to re-
solve these difficulties with this crew once and for all."
Winters further said that "he was getting feedback from
. . .McDowell that we were sending in unqualified
people . . . and he wanted to resolve it . . . so that they
could continue on with their day-to-day operation."
After this telephone conversation and anticipating the
worst at the July 18 meeting, Powers became upset
"with the fact that our situation in Santa Monica . . .
was on shaky ground. I was very concerned about that.
We were very close to losing that crew in total."
While Winters was arranging the July 18 meeting with
Powers, the Santa Monica cable splicing crew employees
were becoming more and more agitated over their per-
ceived insecure job security. Thus, each crewmember
was aware of McDowell's conversation with Powers on
July 2 and the attempts to replace at least two of them
with ointer and Griffiths. Moreover, the record dis-
closes that McDowell "told all the people that there
would be a meeting" on July 18 and that the entire crew
thereafter became "afraid that some of them were going
to get laid off." Accordingly, throughout the week of
July 9 crewmembers met and discussed their job security
concerns whenever they had the opportunity. Also, on
July 16, apparently acting on her own initiative, at ap-
proximately 9 a.m., Rhonda McDowell telephoned Re-
spondent's vice president, White, at his office in Florida.
She told him that cable splicers had been sent to replace
present crewmembers. White said he did not know the
facts but that, if layoffs were necessary, the only fair
thing was to keep the most senior people. McDowell re-
plied that the replacements were not Respondent's em-
ployees, and White replied that he would investigate.
Later that day, Rhonda drafted and sent to White a tele-
gram, confirming their conversation and reiterating the
concerns of the Santa Monica employees. Also on July
16 at approximately 4:30 p.m., according to employee
Higgins, a meeting of all the crewmembers was held at
GTC's Santa Monica yard. The purpose of the meeting
was to discuss their options and what actions they could
undertake to obtain job security. Among the available
BURNUP & SRIS, INC
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
options discussed were seeking advice from an attorney,
speaking to the NLRB, and joining a labor union.
With the exception of Higgins, the employees met
again before work on July 17 and decided that each
would ask Homer McDowell for the next day off to
permit them to pursue the options which were discussed
the previous afternoon. That evening at approximately 8
p.m., Lawrence Kiggins and David Hammers, who
shared an apartment, telephoned Homer McDowell. Kig-
gins spoke for both and asked McDowell for the next
day off. The latter asked why, and Kiggins explained
that they had personal reasons. Asked for a further ex-
planation, Kiggins stated that they were going to the
Communications Workers of America (CWA) because
"they were afraid that they were going to get fired."
McDowell then gave his permission. Approximately 15
minutes later, Homer McDowell overheard his wife
speaking on the telephone, saying "tomorrow we will
take off, then." She then handed the telephone to Homer
and said that Gregory Higgins wanted to speak to him.
Homer took the receiver, greeted Higgins, and the latter
said that they were going to have to take the next day
off. McDowell asked why, and Higgins replied, "We
have some union matters to take care of." McDowell as-
sented and the conversation ended.
After his wife also requested the next day off and he
consented, McDowell told Rhonda that she and the
others were premature inasmuch as the meeting the next
day could resolve things, and Winters would get Powers
off their backs. Rhonda then told Homer that the em-
ployees had held a meeting earlier that day and had de-
cided that they wanted the next day off. Homer asked if
there would be more telephone calls, and Rhonda report-
ed that the others would ask him for time off the next
morning. However, despite this advance knowledge,
Homer made no effort to contact any management offi-
cials of either Respondent or GTC to warn them of the
next day's events. According to McDowell, he was
aware that he would be fired but believed he was doing
the correct thing.9
As he had been forewarned, when McDowell arrived
at the GTC Santa Monica yard the next morning, July
18, the remainder of the splicing crew were standing to-
gether, waiting for him. As he parked, the employees
crowded around his car; McDowell thereupon spoke to
each one separately. Horton asked for the day off so that
he could visit the NLRB, the Equal Employment Oppor-
tunity Commission (EEOC), and the CWA; Flores
wanted time off to go to the CWA; Brothers requested
the day off to visit the NLRB and the EEOC; and Kim,
who evidently speaks limited English, requested time off
to go along with the others. As he had done the previous
evening after questioning each as to his reason,
McDowell individually gave his consent to the employ-
ees to be off work that day. Thus, a few moments after
he arrived at work that morning, as a result of his own
9 Homer McDowell denied advance knowledge of the employees' in-
tentions prior to the night of July 17 While I believe he generally sup-
ported their conduct, there is no record evidence to dispute McDowell's
contention.
actions as the crew foreman, McDowell had no employ-
ees present to work. o
Immediately after the crew departed, McDowell
"went into the cable yard and I walked up to [Ken] . . .
Hart and I told him I had given the men off, and I
would like to see . . . Winters." Hart testified that
McDowell reported to him that he did not have a crew
and, consequently, did not know what he was going to
do. Hart asked where the crew was, and McDowell re-
plied that they were seeing an attorney. At this point,
Hart and McDowell went to see Winters in the latter's
office. According to McDowell, he told Winters that he
gave his crew members the day off. Winters asked why,
and McDowell replied, "I said most of them are going to
the NLRB, they have some labor problems." Winters re-
plied, "Oh shit. This is all Joe Powers needs to fire you."
Winters then asked what McDowell was going to do
without a crew, and he replied that he would work on
blueprints in the office. Winters testified to a different
version of this conversation. McDowell, according to
Winters, entered the office and announced that he had a
problem-his crew was not there. Winters asked him to
explain, and McDowell replied that he gave his crew the
day off because they wanted to see a lawyer and a union.
Winters replied that McDowell had no authority to
grant the entire crew time off-just one or two at a
time-and that it was a stupid thing to do. Winters con-
tinued, stating that he had a meeting scheduled that
morning with Powers and that McDowell should have
waited until after the meeting. Hart, for the most part,
corroborated the version of Winters, testifying that
McDowell said that he granted the crew the day off to
see an attorney. Winters replied that McDowell should
have contacted him first in such a situation. McDowell
replied that he did not need to do so, but both Hart and
Winters retorted that McDowell should have checked
first with them inasmuch as Respondent was a subcon-
tractor hired to do a job and, if it could not be done,
GTC should have been informed. The versions of Win-
ters and Hart appear more logical in the context of the
event and are credited.
After speaking to Winters, McDowell decided that he
finally ought to notify Respondent of his actions. There-
upon, he telephoned the Upland headquarters and asked
first to speak to Fischer Sr. and then to Powers. He was
told by a receptionist that both were on their way to
l McDowell's authority to grant his entire crew the day off is a cen-
tral issue in this case. Preliminarily, there is no dispute that, as crew fore-
man, McDowell did have the authority to grant individual employees
time off Thus, not only did McDowell testify that he possessed such au-
thority, but employee Higgins also testified that McDowell was the indi-
vidual to whom employees made time-off requests and he was the one
who granted said requests Equally clear is the fact that McDowell pos-
sessed no actual authority to grant the entire crew time off at the same
time. Thus, Arnold Winters credibly testified, "[We only give time off
for certain conditions--illness, death, and personal business And it would
be very strange if the whole crew is sick the same day . .. and it would
not be [the supervisor's] authority to give the whole crew the day off."
Echoing this, Joseph Powers admitted that the crew foreman has authori-
ty to grant individual days off but denied that said foreman has authority
to give his entire crew a day off. On this latter point, McDowell asserted
that he once authorized his entire crew to be off work during the Christ-
nas holidays but later adnmitted having first checked with GTC and Re-
sponden
BURNUP & SIMS, INC. 971
Santa Monica for the meeting with Winters, and he was
then connected to John Fischer, Jr., the truck and tool
manager. McDowell reported that he gave his crew the
day off, and the conversation ended. Fischer Jr. corrobo-
rated the conversation but denied contacting his father
or Powers about it. There is no record evidence that,
prior to their meeting with Winters and Hart, either
Fischer Sr. or Powers was aware of McDowell's actions.
Meanwhile, after the remainder of the crew received
permission from McDowell to be off work that day, the
entire crew-Rhonda McDowell, Higgins, Kiggins,
Flores, Horton, Hammers, Kim, and Brothers-met at
approximately 8 a.m. at Norm's Restaurant in Santa
Monica. Basically, they established a "checklist" of
things to do that day. Thus, they concluded that some
should go to the EEOC and that Kiggins, Hammers, and
Higgins would go to the NLRB. Accordingly, at 10 a.m.
the latter three arrived at the offices of Region 31 and
spoke to the information officer. They discussed "our
problem"--joining a union or becoming represented and
information regarding the filing of a grievance or a com-
plaint. After speaking to the information officer, Kiggins
telephoned the CWA, and then the three employees left
the Regional Office to meet the remainder of the crew at
the EEOC office. Subsequently, after discussing what
they had learned, the eight crew members returned to
Region 31 and jointly filed a representation petition in
Case 31-RC-4563, naming as the petitioner Cable Splic-
ers Union of California, and Respondent as the employ-
er."
At approximately the same time as Higgins, Kiggins,
and Hammers were speaking to the Region 31 informa-
tion officer, Respondent's officials, Powers and Fischer
Sr. arrived at GTC's Santa Monica offices and learned
for the first time that the cable splicing crew was not
working. Thus, Ken Hart testified that Powers and
Fischer arrived for the scheduled meeting at 10 a.m. and
waiting for them were Hart, Winters, Harvey Beigs,
GTC's Santa Monica construction administrator, and
Marti Schmidt, GTC's contract coordinator. 12 After
greeting one another, according to Hart, Winters told
Powers and Fischer that the cable splicing crew was not
on the job that day, for McDowell had allowed them to
take the day off and to see an attorney "because they
were unhappy with their working conditions." 13 Powers
and Fischer both expressed surprise, said they were un-
aware of what had happened, apologized for the crew's
absence, and said they would investigate immediately.
Winters and Hart both responded that they expected the
problem to be solved and that they were unhappy with
the conduct of the crew and their supervisor McDowell.
" The petition was received by Respondent on or about July 23, 1979.
12 Powers testified that he telephoned Schmidt on July 16 after he
spoke to Winters. After he reported on what had occurred that day in
Santa Monica. according to Powers, Schmidt asked fr his reaction if
GTC wanted the entire Santa Monica crew replaced. Powers responded
that such would be no problem inasmuch as Respondent had other quali-
fied people available
13 Under my questioning, Hart adhered to his prior testimony that
McDowell did not state the crew's purpose for going to see a lawyer
However, Hart credibly testified that he and Winters were aware of the
personnel problems on McDowell's crew and that his statement to
Powers combined his personal knowledge with what McDowell told
them.
Powers reiterated that he understood GTC's annoyance,
sympathized with the latter's need to have the work
done, and assured Winters that the problem would be
solved. Beigs then asked what Respondent was going to
do to resolve the problems created by the crew's ab-
sence. According to Hart, "Joe Powers told us that he
had people available, and that he would replace the
crew." Then, Powers suggested several individuals who
had worked at other locations; however, Hart testified,
"We told them that we didn't have any problem with
. . .any of their crew. We were just dissatisfied with the
action they had taken." Finally, Hart did not recall
whether the NLRB, the EEOC, or any union was men-
tioned as a reason for the crew's absence but specifically
denied that either he or Winters requested that the crew
be replaced.
Arnold Winters testified that, when Powers arrived, he
greeted the latter with the news that he did not have a
crew that morning. Powers asked him to explain, and
Winters stated that "Buddy came in and told me that the
crew went to see a lawyer, and I think . . . something
about went to see a union for representation." Winters
then told Powers that GTC needed this matter resolved,
it needed people to do the work, and it could not toler-
ate Respondent not having a crew. "So I asked him,
what will happen to this crew? He said they will be re-
placed. And I said, what will happen to Buddy
McDowell? And he said, he will be replaced." Accord-
ing to Winters, Powers advised them that a replacement
crew would be sent from Lancaster, and the meeting
amicably ended at 11:30 a.m.
During cross-examination, Winters reiterated his direct
examination, stating, "I am positive that I told Powers
that the crew went to see a lawyer and that the crew
went to see a union." However, upon being confronted
with his retrial affidavit statement, "I may have men-
tioned their going out to talk-to talk to a union and the
NLRB but I am not sure." Winters admitted that now "I
am less sure because the time between the time we had
the meeting and now." Further, Winters stated that his
emphasis throughout the conversation was that GTC
needed to have a splicing crew on the job-he placed no
emphasis on the reason for the crew's absence. Finally,
Winters emphasized that nothing was said regarding past
problems with Respondent's crew or the quality of its
work.
Joseph Powers testified on behalf of Respondent re-
garding this meeting. According to Powers, the first
person he and Fischer encountered when they arrived at
GTC's offices was Winters who said, "'Joe, do you
know that your crew is not working today?' I said, 'You
are kidding me. I didn't know that."' After Fischer also
expressed surprise, Powers asked whether Winters was
serious. The latter replied, "Yes, they are not working
today. I believe they have gone to see an attorney."t4
At that point, Winters asked Hart and Harvey Beigs to
come into his office and, after cordial greetings, Winters
repeated for Beigs that Respondent's crew had been
given the day off to see an attorney. Beigs then "ex-
4 P'owers denied that Winters said the crew had gone to see an attor-
nei about A orking conditions.
BRNUP &SIMS, INC. 71
972 DEFCISIONS OF NATI()NAL LABOR RELATIONS BO)ARD
pressed his displeasure with the situation," and Winters
and Hart complained that GTC was unable to meet its
workload without the subcontracting crews being ready
to work. Powers testified that Beigs finally said, "'Joe,
we cannot meet our commitments. We can't allow this to
happen. You have assured us that you are going to give
us the best crew available. What are you going to do
about it?' And at that time I told him that I would re-
place that crew." After that, the parties discussed what
replacement splicers Respondent would provide. Powers
stated that the new foreman would be O'Dell Griffiths
and that the crew would consist of individuals who
would be provided from Respondent's Lancaster, Cali-
fornia, crew, whose contract was to be terminated on
July 20. It was also the contract of the two idle splicers
who, because of their skill, remained on Respondent's
payroll but who were not then working.' 5 According to
Powers, the meeting ended at 11:15 a.m.
The only real dispute regarding this meeting concerns
what was said to Powers by either Hart or Winters re-
garding the reason for the cable splicing crew's absence.
Between Powers and Hart, I credit Ken Hart's testimony
in this regard. Not only did I find him to be honest and
candid but also I note that Hart was a neutral and disin-
terested witness at the hearing. While he enjoyed the
same status, I do not rely on the testimony of Arnold
Winters, whose memory about what was said at the
meeting seemingly became more and more clouded as his
testimony continued.
Homer McDowell, who asserted that he was working
on blueprints during the pendency of the aforementioned
meeting, testified that the meeting ended at 11:30 a.m.
and that John Fischer, Sr., left the meeting and walked
directly over to him. After exchanging greetings, accord-
ing to McDowell, he said to Fischer, "I just got a call
from Rhonda and they told me that they just formed
themselves a union." Fischer asked for the name and
McDowell told him. Fischer then responded, "Well,
Burnup & Sims is a nonunion contractor," and walked
away. While Fischer did not testify on behalf of Re-
spondent, I doubt the veracity of McDowell regarding
this conversation. Thus, the timing of the alleged tele-
phone conversation between Homer and Rhonda
McDowell is significant. The former claimed that it oc-
curred at 11:30 a.m.-moments before his conversation
with Fischer. However, notwithstanding a leading ques-
tion by counsel for the General Counsel, Rhonda placed
her call to Homer at approximately 12 noon. Further
contradicting Homer is the testimony of Higgins who
stated that the telephone call was made at 12:30 p.m. and
who recalled that specific time because Rhonda reported
to him that Powers' meeting with Winters had previously
recessed for lunch. Accordingly, I do not believe this
conversation could have occurred when placed by
Homer McDowell and I do not credit his testimony re-
garding Fischer Sr.
Powers testified that he returned to the GTC offices
after lunch at approximately 1:30 p.m. and that, after
briefly speaking to Beigs, he spoke to McDowell with
|5 The Lancaster. California, crew cable splicers w\ere Don Nelson
and Steve Kowatowski. The other cable splicers discussed were Eugene
Melton, Bob McCummins, Eugene Wurzbacher, and James Raines.
Fischer Sr. present. According to Powers, they walked
into the yard and Powers told McDowell that he and his
entire crew had been replaced. Hart said, "Joe, you can't
do that. We are going to form a union." Powers repeated
that he had just replaced McDowell and the crew, and,
after some brief comments, McDowell gave Powers his
badge and left the yard. McDowell related a shorter ver-
sion of this conversation, stating that he, Powers, and
Fischer spoke in the yard and that Powers merely said,
"Well, we are going to let you and your whole crew
go." For reasons set forth above, I credit Powers as to
this conversation.
There is no record evidence that any of the Santa
Monica cable splicing crew employees was aware of Re-
spondent's actions of the previous day, and all reported
for work on the morning of July 19. None of the re-
placements had yet arrived, and Fischer Sr. was present
to speak to each crewmember as he or she reported for
work. According to Rhonda McDowell, Fischer told her
that he had her final paycheck, asked for her identifica-
tion badge, and requested that she unload any GTC
equipment from her truck. Rhonda asked if she were
being fired, and Fischer replied that he was not firing
her. She then asked if she was being laid off, and Fischer
replied, "I don't know-I have been told simply to give
you your paycheck and get your I.D. badge and tell you
to get off the property." After Fischer again refused to
specify whether or not she had been fired, Rhonda asked
why she had to leave the property. Fischer responded,
"Because of yesterday." Higgins corroborated the testi-
mony of McDowell, stating that he was standing next to
employee Travis Horton when the latter asked Fischer
why he was being laid off. Fischer responded, "Because
of yesterday." 1 6
According to Respondent's then division manager,
Powers, he made the decision to "replace" the Santa
Monica crewmembers during his meeting with GTC rep-
resentatives on July 18 inasmuch as their absence "was
the straw that broke the camel's back." Explaining,
Powers testified, "We had been encountering numerous
difficulties in our operations with [GTC], and they had
been indicating to me displeasure with our overall per-
formance, to the extent that our contract was in severe
jeopardy with them." According to Powers, he assumed
his position in April, and between that date and July, the
number of Respondent's employees who were working
on cable splicing crews for GTC had substantially de-
creased. Thus, in April Respondent, Volt Technical Cor-
poration, and CID Communications all had splicing
crews working for GTC in and around Indio, California.
While the complements of the other crews were not re-
duced, by July the size of Respondent's crew had been
decreased to four splicers and a supervisor from 6 splic-
ers and a supervisor. Likewise, in April, Respondent had
cable splicing crews working for GTC in Perris, San
", The "replacement" supervisor and the "replacement" crew did not
report for work until later on July NI Apparentl, rather than Griffiths,
the crew foreman was Francis Simmons Further, P'owers admitted that,
inasmuch as the crew was not familiar with the Santa Monica territory
and work. Respondent did not charge GTC for the first few days of the
new crew's work
BURNUP & SIMS. INC 973
Bernardino, Irwindale, Lancaster, Newbury Park, and, of
course, Santa Monica, California, and the complements
of all these crews were also reduced. Thus, according to
Powers, between April and July, the Perris crew was re-
duced from 11 to 10 splicers and a foreman; the San Ber-
nardino crew was reduced from 8 to 6 splicers and a
foreman; the Irwindale crew was reduced from 8 to 6
splicers and a foreman; 17 the Lancaster crew was cut
from 8 splicers to 4 and a foreman;' 8 and the Newbury
Park crew was reduced to 6 splicers and a foreman from
its April 12 employee complement. Powers testified that
the reduction in size of these crews was caused by "poor
performance by the contractor; not providing the people
that he was under contract to provide and the quality of
their workmanship."
As corroboration for the accuracy of his assessment,
Powers testified regarding a series of meetings which he
had with GTC representatives during which Respond-
ent's performance was discussed. 9 Thus, on May 2, he
had a conversation with Marti Schmidt in her office. The
latter "indicated to me that there were problems with the
Newbury Park line crew and with Burnup & Sims filling
the singles orders." On May 15, Powers spoke again
with Schmidt "on the needs of General Telephone Com-
pany for Burnup & Sims fulfilling their obligations on
the singles contract and our overall bad job." According
to Powers, Schmidt "was not happy with our perform-
ance." On May 29, Powers met with Schmidt and her
superior, John Matson, in Schmidt's office. Both told
him "that no matter what I might be hearing from some
of [GTC's] people . . . that we had problems . . . be-
cause she was getting recurrent complaints from them
that they were not giving me and she specifically men-
tioned . . . Lancaster, Santa Monica, Newbury Park."
On May 30, Powers and Respondent's vice president,
White, spoke with Schmidt over lunch, and the letter re-
marked that she was aware of the efforts that Powers
had been making "but they hadn't seen any results as yet.
They still had the same problems." Finally, Powers testi-
fied that, in a June 27 conversation with Schmidt. the
latter first announced that GTC was going to terminate
Respondent's Lancaster crew, and that they then com-
pletely reviewed Respondent's performance in all as-
pects. Powers testified that Schmidt said, "Generally
speaking, Joe, you have a very bad reputation," and "be-
'7 Powers testified that, in August. he was told bh G¥C official, that
the Irwindale cutback was due to budget problems: however, a Volt
crew was kept by GTC with no manpower rductionl. ()n August 1,.
Powers was notified that this re was being transferred is Redla:lds.
California
'a After being abruptly terminated. Respondent's crew at Ithis location
was restored on July 20. Also. Powers testified that Volt had a crews con-
tinuously working at this loIcaion- sith no reduction in size As a result
of the restoration. employees Nelson and Kowato-ski Waere kept ron IBlis
crew and on July 20 splicers Kiggins and Kim were offered. by Resprond-
ent, reemployment at Santa Monica in their former positions at the snle
rates of pay-said employment to commence on July 23. Both accepled
i9 Powers testified that, prior to working for Respontdent. he a, el-
ployed by Volt Technical Corporation and thai. even then. hte Aas assure
of GTC's satisfaction with Respondent According to Powers. i Febru-
ary Volt was asked by Marti Schmidt to establish cable splicing crew in
Santa Monica because "General l'elephone Co wsas not ttally satisfied
with the performance of [Respondent's] crew " Also. later that month.
Winters told him "that he was nlot happx and he had problems ith
Burnup & Sims."
cause of the problems . . . if any crews were going to be
reduced in [GTC's northern areas], it would be ours."
Specifically regarding the actions taken against the
Santa Monica splicing crewmembers on July 18 and 19,
Powers maintained that each was merely "replaced" and
not "discharged," as alleged in the complaint. Explaining
what he meant, Powers averred that "in this business,
the workload varies from company to company, locale
to locale, and it is just not done. . . . we had anticipated
at a point in time these people coming back." As support
for his position, Powers testified that, in addition to the
aforementioned job offers to Kiggins and Kim, Rhonda
McDowell was offered her former job in Santa Monica
on August 1 and started work on August 3; that Travis
Horton was offered a cable splicing job in Lancaster,
California, on July 25 and began work on July 27; 2 ° and
on August 3, employees Higgins, Flores, Brothers, and
Hammers were offered cable splicing work for GTC in
Redlands, California. 2 1 According to Powers, these
latter offers were made by telegram; Hammers refused
the offer; and Respondent received no response from the
others. 22 Finally, while maintaining that these employees
were not discharged, Respondent does not contend that
any remained on its payroll from after July 18 until such
time as an offer of reemployment was accepted. In these
circumstances, Respondent offered no explanation as to
why the Santa Monica employees were treated different-
ly from employees Wur7bacher and Raines, who were
retained on its payroll after their work on a Newbury
Park, California, cable splicing crew ended in mid-July.
On July 20, Joseph Powers sent identical letters to
each member of the "replaced" Santa Monica cable
splicing crew. Said letter reads in pertinent part:
I want to take this opportunity to thank you for
the work you have performed for [Respondent] as
part of the Santa Monica cable splicing crew.
This has been a particularly difficult period of
time for us in Southern California. Much of our
work with [GTC] has been curtailed and we have
had to struggle to maintain our existing business. In
this atmosphere I regretted having to permanently re-
place you this past Wednesday.
While availability of future jobs cannot be as-
sured, I am hopeful that job openings with [Re-
spondent] will arise for which you will qualify
... . [Emphasis supplied.]
2I Said ,oik as dentical to his w ork in Sarlla Monica and at the
same rate f paI
S;aid ork v a to he Identical to their Santa Mnica lobs at the
sanme rates of pay
2' Eilplyeect Higgins estified that he never received any job offers
from Respondent l he record establishes that he lives at 6150 Canterbury
l)ris e. Cul er (lity. California that he has resided at this same address
since Janl;uar); .1i that lie has a telephonie. the number of which is pre-
sumahly listed the Culer City. California, directory Howeser. the
record also eslablishes that, on his employment application fitrm, Higgins
wrote his address a, 0(50 Canterbur 5 Drive, Culscr Cil 5. California: that
lie ilecvr realizci the mlstake and. hence, nie er correed it: and that on
his ppltcln. It stated "nlne" ICnet Ito telephlol number" All Cm-
mutianis lto Hliggins h Respondent hase been .iddressed to 6050 Can-
tcrhur' I)ris e
BURNL' & SIMS. INC 3
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, after they were "replaced," on July 19, employ-
ees Hammers, Rhonda McDowell, Higgins, and Flores
filed claims for unemployment compensation. For each,
Powers completed an unemployment insurance claim
form and, in the space marked "If this person quit or was
fired, explain in detail," wrote: "Worker was engaged in
a strike and was replaced. Burnup & Sims contests this
claim." Asked to explain his position, Powers testified, "I
honestly did not know what they were doing that day.
When I received those documents [the petition in Case
31-RC-4563 and the original charge herein], I presumed
they were engaged in a strike."
B. Analysis
Counsel for the General Counsel argues that the activ-
ities of the members of Respondent's Santa Monica cable
splicing crew on July 18 constituted protected concerted
activities within the meaning of the Act; that when Re-
spondent's division manager, Powers, became aware of
said activities, his immediate reaction was to discharge
the cable splicers for having engaged in their protected
concerted activities; and that any subsequent job offers
to the crewmembers were spurious and intended to mask
Respondent's true motivation. In the alternative, counsel
for the General Counsel argues that, without regard to
the issue of Respondent's bad faith, its actions were un-
lawful inasmuch as they interfered with the employees'
Section 7 rights. In either case, it is alleged that Re-
spondent's conduct was violative of Section 8(a)(l) of
the Act. Counsel for Respondent, on the other hand, as-
serts that Division Manager Powers made a business
judgment on July 18 to "replace" the existing Santa
Monica cable splicing crew with other available employ-
ees; that it is not the task of the Board to evaluate said
decision in terms of its reasonableness; and that unless
the real motivating purpose is to do that which Section
8(a) forbids, management can act for good or bad cause
or no cause at all. More specifically, counsel argues that
there is no evidence to establish that Powers was aware
of the employees' concerted activities prior to reaching
his decision to replace the existing crew; that Powers
was not unlawfully motivated in so deciding; and that, in
any event, Powers' conduct was not inherently destruc-
tive of the employees' statutory rights.
The core questions herein concern Homer McDowell's
authority to grant time off to the entire cable splicing
crew at the same time and whether he bound Respond-
ent by his actions on July 17 and 18; the nature of the
Santa Monica crew's activities on July 18; and whether
Respondent was justified in "replacing" the crew-
members for not working on that date. Initially, it is un-
controverted-and credited-that on July 17 and 18 each
member of the Santa Monica crew individually received
permission from McDowell to be off from work on July
18. Furthermore, notwithstanding McDowell's motiva-
tion in granting such permission, which, in any event, I
do not deem as consequential to my decision herein,
there is no record evidence to establish that these grants
were a sham or in the nature of one thief seeking permis-
sion from another thief to steal. Indeed, the record estab-
lishes that, prior to granting permission to employees
Kiggins and Hammers to be absent from work on July
18, McDowell sought an explanation from Kiggins as to
their exact reason and that he attempted to dissuade his
wife from requesting time off by reminding her that the
employees' concerns might conceivably be alleviated as a
result of the Powers-Winters meeting the next day. The
fact that the employees sought and obtained permission
from McDowell to be absent from work on July i8 is a
significant factor in determining the legality of Respond-
ent's job action against its employees for not being at
work on July 8. Supreme Optical Company, Inc., 235
NLRB 1432, 1433, fn. 9 (1978).
Central to a determination of McDowell's authority to
grant his entire crew a day off and whether he, there-
fore, bound Respondent by said conduct is the matter of
his supervisory status. The record reveals that in his ca-
pacity as crew foreman, McDowell independently hired
employee Higgins; apparently he was expected by
Powers to independently choose employees for replace-
ment on July 9 and 16; he could reject potential hires; he
could effectively recommend personnel actions; and he
independently directed the work of the Santa Monica
crew. In these circumstances, McDowell clearly was a
supervisor within the meaning of Section 2(11) of the
Act. Warren Rural Electric Cooperative Company, Inc.,
209 NLRB 325 (1974). Further, Respondent does not
contest that, as part of his authority, McDowell also was
empowered to grant employees time off from work. In
this regard, the record establishes that Supervisor
McDowell was the management representative to whom
his crewmembers submitted requests for time off, that he
decided whether to grant said requests without consult-
ing with either Respondent or GTC management offi-
cials, and that employees had no reason to suspect or be-
lieve that McDowell possessed no authority to do so.
However, the record also establishes that McDowell's
authority in this regard did not extend to granting time
off to the entire crew at the same time unless he received
authorization to so do and that he understood this limita-
tion. Respondent further argues that the Santa Monica
crewmembers knew-or should have known-this limita-
tion on McDowell's authority, but there is just no record
evidence to justify such a conclusion.
It is gainsaid that, under the Act, an employer's super-
visors are also its agents. Laborers' International Union of
ANorth America, AFL-CIO Local 478 (International Build-
ers of' Florida, Inc.), 204 NLRB 357 (1973). While con-
ceding McDowell's status as an agent, Respondent nev-
ertheless argues that, inasmuch as McDowell possessed
no actual authority independently to permit his entire
crew to be absent from work on July 18, he could not
have bound Respondent by his conduct which clearly
exceeded the scope of his authority. However, I do not
believe that the extent or specificity of an agent's author-
ity is the focus of the Board's traditional inquiry into
such questions. Rather, careful analysis of prior decisions
reveals that the Board seeks to determine whether the
agent's actions were within the scope of his general au-
thority and, if so, his conduct will be found to be binding
upon the employer. Thus, in International Longshoremen's
and Warehousemen's Union, C.I.O. (Sunset Line and
Twine Company), 79 NLRB 1487, 1507-9 (1948), the
BURNUP & SIMS, INC. 975
Board stated: "A principal may be responsible for the act
of his agent [within the scope of the agent's general au-
thority] . . . even though the principal has not specifical-
ly authorized or indeed may have specifically forbidden
the act in question. It is enough if the principal actually
empowered the agent to represent him in the general
area within which the agent acted." Analysis of this quo-
tation, the facts of the case in which it appears, and sub-
sequent Board Decisions involving similar issues reveals
that the Board, by the aforementioned language, merely
adopted the traditional common law principle of "gener-
al agency." Thus, Restatement defines a general agent as
one "authorized to conduct a series of transactions in-
volving a continuity of service" and states that, when
acting in said capacity, the general agent subjects his
principal for liability for all conduct-authorized and un-
authorized. This latter principal is premised upon the
rationale that the general agent is very much a part of
the principal's business organization and is "continually
dealing solely with the employer's business." Restate-
ment of Agency 2d §553 and 161 (1958). The aforemen-
tioned sections of Restatement give as examples of gener-
al agents managers of business, salesclerks, and any
person of that type. In Sunset Line and Twine Company,
supra (union officer); Hampton Merchants Association, etc.,
151 NLRB 1307 (1965) (union business agent); LTV Elec-
tro Systems, Inc., 169 NLRB 532 (1968) (personnel de-
partment interviewer); and Broad Street Hospital and
Medical Center, 182 NLRB 302 (1970) (hospital adminis-
trator), the Board concluded that said individuals bound
their respective employers for conduct arguably outside
the scope of their authority and not specifically author-
ized. Although unstated by the Board, I believe the
common characteristics linking these decisions are the
agent's continuity of service and the fact that each agent
acted within the broad guidelines of his general authori-
ty. Likewise, these factors are present herein. Thus, as a
crew foreman and, therefore, Respondent's only repre-
sentative at a particular location, McDowell obviously
was an integral part of Respondent's operations. More-
over, inasmuch as he specifically was authorized to grant
time off and was the managerial representative to whom
employees turned when seeking time off, McDowell
clearly acted within the scope of his general authority in
permitting the entire splicing crew to be off work on
July 18. Accordingly, notwithstanding the lack of specif-
ic authorization, I believe that Respondent was bound by
the actions of its supervisor, Homer McDowell, on July
17 and 18. Glenroy Construction Co., Inc., 215 NLRB 866,
867 (1974); GAC Properties, Inc., 205 NLRB 1150 (1973);
Sunset Line and Twine Company, supra. 23
Counsel for the General Counsel argues that the activ-
ities of the Santa Monica crewmembers on July 18 con-
stituted protected concerted activities within the meaning
of the Act. The record reveals that, on that morning, the
crew divided into two groups, with three employees
meeting with representatives of Region 31 of the NLRB
and the remainder with officials of the EEOC. Subse-
23 Respondent further argues that McDowell possessed no "apparent
authority" to grant time off to the entire crew on July IX Inasmuch as I
believe Respondent was bound by McDowell's actions as stated ahoe. I
need not rule on this argument
quently, the eight crewmembers returned to the NLRB
office and filed the representation petition in Case 31-
RC-4563. Clear Board precedent establishes that said ac-
tivities constitute protected concerted activities within
the meaning of the Act. Roadway Express. Inc., 239
NLRB 653 (1978); General Teamsters Local Union .No.
523, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (The-
aters Service Company), 237 NLRB 258 (1978); General
Nutrition Center, Inc., 221 NLRB 850 (1975). The record
further reveals that, during his meeting with GTC repre-
sentatives on July 18, Powers stated his intention to "re-
place" the existing members of the crew, that said action
was based upon or, at least, precipitated by, the entire
crew's absence that morning, and that Powers' decision
was carried out the next morning by John Fischer, Sr.,
who told the employees that they were being given their
final checks, "Because of yesterday."
Seizing upon the announcement on July 18 of the
Crew's absence and the timing of Powers' subsequent de-
cision to "replace" the entire crew, counsel for the Gen-
eral Counsel argues that Powers' decision was obviously
motivated by the protected concerted activities in which
the employees engaged. Contrary to this position, Re-
spondent argues that Powers simply had no knowledge
that the employees were engaging in protected activities
and, therefore, could not have been motivated by them.
Contrary to Respondent, I have previously credited the
testimony of Ken Hart that, at the start of the meeting
that morning, he informed Powers and Fischer that the
cable splicing crew had been given the day off in order
to consult an attorney because they were unhappy with
their working conditions. Moreover, notwithstanding my
aforementioned credibility resolution. I believe that,
whatever Hart's comments, Powers interpreted them as
meaning that the employees were, in fact, engaged in
protected concerted activities-nothing less than strike in
protest of a perceived impending layoff. Thus, in contest-
ing the unemployment insurance compensation claims of
several of the crewmembers, Powers wrote: "Worker
was engaged in a strike and was replaced. "2 4 Moreover,
in his letter to each respective crewmember, dated July
20, Powers stated that the employee was permanently re-
placed-a position consistent with the rights of an em-
ployer vis-a-vis an economic striker. Accordingly, I be-
lieve that the record clearly justifies the conclusion that,
as a result of Hart's comments to him at the start of the
July 18 meeting, Powers was aware-or, at least, be-
lieved-that his employees were engaging in some form
of protected concerted activities that day.
Notwithstanding such knowledge, Respondent asserts
that there is no evidence to establish that Powers was
unlawfully motivated in deciding to "replace" Respond-
ent's existing Santa Monica crew with other, available
cable splicers. Rather, it is argued, Powers was solely
concerned with the fact of the crew's absence and that,
in view of negative statements made to Powers by GTC
' I cannot credit I'scser.' illogical cxplanatinl for hi comments on
the ulnemplonient compensation forms that hi, cioncluisill a,. halecd
orin examnluatii of the rpresenitation petillo Nhinlg n said petition
,)iilt le]td t such ai conclusion
BURNUP & SMS, INC
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officials regarding Respondent's performance and a de-
cline in the size of its southern California cable splicing
crews, said absence was "the straw that broke the
camel's back." While I recognize the uncontroverted
nature of much of Respondent's evidence with regard to
the issue of Respondent's contractual difficulties, having
carefully considered and researched Board decisions on
the matter of motivation, I do not think that the exist-
ence of or lack of unlawful animus is a necessary or rele-
vant consideration in an 8(a)(l) discharge case, as herein
involved, in which the very conduct for which employ-
ees are disciplined is itself protected concerted activi-
ty. 2 5 I have previously concluded that, by consulting
with the EEOC and NLRB on July 18, with the permis-
sion of their supervisor, McDowell, the members of the
Santa Monica cable splicing crew engaged in protected
concerted activities. Roadway Express, supra; General Nu-
trition Center, supra. While counsel for Respondent as-
serts that the fact of the crew's absence was the crucial
factor in Powers' decision to "replace" them and not the
activities of the crew while absent, I do not believe it
analytically valid or legally permissible to separate some-
how the crew's absence from their reason for-and ac-
tivities while-being absent and further believe that Re-
spondent's conduct, therefore, unlawfully intruded upon
and interfered with the employees' exercise of the rights
guaranteed them under the Act. Fall River Savings Bank,
supra at fn. 3. Both the Board and the courts have
reached similar conclusions in cases involving discipline
for engaging in protected acts. Thus, in Wheeling-Pitts-
25 While I do not believe that the issue of mlotive is relevant herein.
whether such a finding is critical in 8(a)(1) discharge cases is a source of
confusion. Thus, in Fall River Savings Bunk, 247 NLRB 631, fn. 3 (1980))
the Board, quoting from an earlier decision, stated, "In adopting the Ad-
ministrative Law Judge's conclusion [that Respondent violated Seclion
8(a)(l) of the Act] . . we do not rely on his comment that Respondctls
'motive in discharging her' was significanit in this case It has iong bcck
settled that a violation sif Section 8(a)(1) does not turn on the employer's
motive, but rather on 'whether the employer engaged in colndulct which,
it may reasonably be said, tends to interfere with the free exercise of em-
ployee rights under the Act."' Contrasl the foregoing with the Board's
language i its recent and landmlark-decision in Wright Line. a DLvision
of Wright Line. Inc., 251 1083 1981I) Therein, the Board stated "In re-
solving cases involving alleged violations of Section 8(a)(3) and, in certain
instances. Section 8 (a)(l), it must be determined . whether all employ-
ee's employment conditions were adversely affected by his or her engag-
ing in . protected activities and, if so, whether the employer's action
was motivated by such employee activities" (Emphasis supplied )
Counsel for Respondent argues that, in order to establish a violatioi of
Sec. 8(a)(l) of the Act herein, the record must demonstrate "that the enm-
ployer's actions evidenced an intent to discriminate." As support, he sets
forth lengthy quotations from three Supreme Court decisiolns-NL R.B.
v. Brown, et al.. d/h/a Brown Food Store, et al., 3) U S 278 (19h65)
N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221 (1963); and N.L.R.B .
Great Dane Trailers, Inc. 388XX U.S. 26 (1967). Initially, I note that each
involves a violation of Sec 8(a)(3) of the Act and that the elements Iof
proof are vastly different. Further. he cites the following language from
Brown Food Stores as support for his argument that Respondent's conduct
may be justified by business considerations: "We recognize that, anala-
gous to the determination of unfair labor practices under Section 8(a)(1),
when an employer practice is inherently destructive of employee rights
and is not justified by the service of important business ends, no specific
evidence of intent to discourage a union membership is necessary to es-
tablish a violation of Section 8(a)(3)." Brown Food Store. upra at 287 A
careful reading of this language establishes that the clause bcginning with
"when" and ending with "ends" modifies the clause which follows and
that, i the quoted limited instance, the Court meant that, as in 8(a)(1)
cases, proof of discriminatory intent is not necessary in 8(a)(3) cases
burgh Steel Corporation, 241 NLRB 1214 (1979), an indi-
vidual invoked a clause of a collective-bargaining agree-
ment, between his union and his employer and refused to
operate equipment which he considered unsafe. The em-
ployer disciplined the individual for withholding his
services and, thereby, disrupting the workplace. The ad-
ministrative law judge, in a decision adopted by the
Board, concluded that the employer acted in violation of
Section 8(a)(l) and (3) and, in language which is particu-
larly pertinent herein, stated: "The fact, as urged by the
Respondent, that it acted in the belief that it was justified
in disciplining Semancik for withholding his services and
thereby causing an interruption of production is no de-
fense where, as was true in this case, the activity for which
Semancik actually was disciplined protected by the Act."
Wheeling-Pittsburgh Steel Corporation, supra at 1222 (em-
phasis supplied).
The United States Court of Appeals for the Ninth Cir-
cuit reached the same result in Salt River Valley Water
Users' Association v. N.L.R.B, 206 F.2d 325, 328-329
(1953). Therein, an employee circulated a petition among
the other employees and was disciplined. The Board
concluded that the employer violated Section 8(a)(l) of
the Act; however, the employer argued to the court that,
notwithstanding the protected nature of the activity, the
individual was disciplined because of the disturbance
which was caused by the activity. The court dismissed
the employer's arguments noting that protected concert-
ed activities create a disturbance in the sense that they
disrupt the status quo and that, while the employer may
have felt justified in acting as it did, such "is not material
where the activity for which [the individual was disci-
plined] . . . was actually protected by the Act." 2 6
Upon review of the rationale of Wheeling-Pittsburg and
Salt River Valley, I think that, in order to justify or to
excuse Powers' conduct in "replacing" the existing Santa
Monica cable splicing crew because of their absence on
July 18, it must be shown that the group action itself-as
opposed to the effect-constituted misconduct, that the
employees knowingly engaged in such misconduct, and
that Powers reacted to that misconduct. I do not believe
that the record supports such findings. Thus, the para-
mount considerations herein are that Supervisor
McDowell individually gave his permission for each
crewmember to be off work that day and that, under ex-
isting Board law, Respondent was bound by McDowell's
"' While I do not believe that the argument that owers acted i good
faith based slely ol business considerations is a relevant consideration
herein, I also do not believe that the record conclusively supports this
assertion Initially, I note that it is uncontroverted that, throughout the
spring of 1979, GTC officials were critical of Respondent's performance
and that the latter suffered reductions in the sizes of its southern Califor-
ilia cable splicing crews ut, such cannt explain Powers' decision to re-
place the entire Santa Monica cable splicing crew Thus, while he under-
standably was upset upon learning of the crew's absence, Plowers was not
asked by either Winters. Hart, or Beigs t replace a single crewmember.
Further. the crew was absent with the express permission of its supervi-
sor, Homer McDowell If bad judgment was used, he was the individual
at fault Moreover als pointed out by counsel for the General Counsel.
inasmuch as the crew returned to work the next day, several more days
were wasted in training and familiarizing the replacements with the area
and the procedures and Respondent chose not to bill GTC for this time
In short. I do not believe that the record establishes that business consid-
eratinlls rlmade PI'owers' conduct necessary or justifiable.
BURNUP & SIMS. INC. 977
actions. Glenroy Construction Co., supra; GAC Properties,
Inc., supra, Sunset Line and Twine Company, supra. Anal-
ysis of the reasons submitted to McDowell by the indi-
vidual employees in requesting the day off reveals that
these involved protected activity-consulting a union,
the NLRB, or the EEOC. Further, based on McDowell's
consent, the employees clearly and reasonably believed
that they, indeed, had permission to be off from work.
Morris Railway Supply Corporation, 191 NLRB 487
(1971). The fact that McDowell may have exercised
poor judgment in not consulting with management of
either Respondent or GTC does not negate the effect of
his actions. Coastal Care Centers, d/b/a Pacific Convales-
cent Hospital, 229 NLRB 507, 513 (1977). In these cir-
cumstances, the record does not warrant the inference
that the crewmembers collectively engaged in miscon-
duct by implementing their decision not to work on July
18 in order to engage in protected activities. Supreme
Optical Company, Inc., 235 NLRB 1432, 1433 (1978).
Next, notwithstanding the foregoing analysis, counsel
for Respondent argues that by their actions on July 18,
as I have previously concluded Powers believed, the
Santa Monica crewmembers engaged in a 1-day strike
against Respondent, protesting their working conditions.
Asserting this position, counsel logically argues that,
while said conduct may have been protected, Respond-
ent acted within its rights by replacing the existing crew-
members-as Powers announced to the GTC representa-
tives that morning. However, it is axiomatic that a strike
presupposes the withholding of services. Contrary to Re-
spondent, the record clearly establishes that each Santa
Monica cable splicing crewmember requested and ob-
tained permission from Homer McDowell to be off work
on July 18. "The essence of a strike is the voluntary con-
certed withholding of labor requested by an employer. It
would therefore be illogical to consider as a striker an
employee who had requested and who believed he had
obtained permission to absent himself from work. A
striker does not seek permission to strike." Columbia Pic-
tures Corporation, 82 NLRB 568, 577 (1949). Further, I
have previously concluded that Respondent must be
found to have been bound by McDowell's actions
whether or not he was specifically authorized to permit
the entire crew to take the day off and, in this regard, it
makes no difference whether McDowell exercised poor
judgment in doing so. Coastal Care Centers, d/b/a Pacific
Convalescent Hospital, supra. While Respondent argues
that the crew would, in any event, have refused to work
on July 18 if McDowell had denied them permission to
be off, such is nothing more than speculation and, as
pointed out above, there is no evidence that the requests
for permission were a sham. Moreover, if, as I think,
Powers mistakenly believed his employees were engaged
in a strike on July 18 and "replaced" the existing crew
on that basis, his actions nonetheless constitute a viola-
tion of Section 8(a)(1) of the Act. Metropolitan Orthope-
dic Associates, P.C., 237 NLRB 427 (1978).
Finally, counsel for Respondent argues that Powers
never entertained any intention of severing the employ-
ment relationship with any crewmember and he always
intended to utilize the replaced crewmembers again; that
when positions on the replacement Santa Monica crew
became available, Powers offered the jobs to former
crewmembers Kiggins, Kim, and Rhonda McDowell;
and that when other Southern California positions
became available, these were offered to the remainder of
the replaced crew. While these latter facts are uncontro-
verted, it is also true that the employment relationship
between Respondent and the replaced Santa Monica
crewmembers was, in fact, terminated on July 19. Thus,
that morning, John Fischer, Sr., spoke to each employee,
gave each a "final paycheck," instructed the employees
to return any GTC tools or equipment, and demanded
that each leave GTC's property. This behavior is in ob-
vious contrast to the behavior of Respondent towards
employees Wurzbacher and Raines who, even though
not working, were retained on Respondent's payroll after
their work on another cable splicing crew ended in mid-
July. Finally, the offering of positions to replaced Santa
Monica crewmembers is, of course, open to differing in-
terpretations. Thus, it is conceivable, and entirely plausi-
ble, that Respondent made said offers in order to limit its
potential monetary liability or perhaps to establish its de-
fense herein. Accordingly, standing alone, I do not be-
lieve that the later job offers negate the unmistakable
evidence that, on July 18 and 19, Respondent meant to-
and did-terminate its employment relationship with
Gregory Mark Higgins, Rhonda McDowell, David
Hammers, Lawrence Kiggins, Travis Horton, Hui Jon
Kim, Rodney Brothers, and Jess Flores. Based on the
foregoing, and the record as a whole, I find that Re-
spondent violated Section 8(a)(1) of the Act by discharg-
ing said individuals on July 19 based on their having en-
gaged in protected activities the previous day. Salt River
Valley. supra, Wheeling-Pittsburgh Steel, supra; Supreme
Optical Company, supra, Morrison Railway Supply. supra.
THF. REMEDY
Having concluded that Respondent engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the policies of the Act, and
inasmuch as I have found that Respondent unlawfully
terminated employees Higgins, Rhonda McDowell,
Hammers, Kiggins, Horton, Kim, Brothers, and Flores
on July 19, that the standard-and herein applicable-
remedy in such instances is to order Respondent to rein-
state each employee to his or her former position or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to his or her seniority or other
rights and privileges. In addition, Respondent will be or-
dered to make each employee whole for any loss of earn-
ings he or she may have suffered as a result of Respond-
ent's unfair labor practices by payment to each employee
of the amount he or she normally would have earned
from July 19, with backpay to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). Howev-
er, while the utilization of said remedy appears mandated
herein, its application has been complicated by several al-
BURNIJP & SIMS. [NC.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leged offers of reinstatement by Respondent to the dis-
charged employees.
Initially, clear Board law is that a good-faith offer of
reinstatement, whether received by the employee or not,
tolls the backpay period of the employee. Marlene Indus-
tries Corporation, et al., 234 NLRB 285, 287 (1978). How-
ever, only when such an offer has been expressly reject-
ed by the employee is the employer relieved of his statu-
tory duty to reinstate. Leeding Sales Co., Inc., 155 NLRB
755 (1965). Herein, it is uncontroverted that Respondent
offered to employees Kim and Kiggins on July 20 and to
Rhonda McDowell on August I reinstatement to their
former positions on the Santa Monica cable splicing
crew and at the identical rates of pay. Kiggins and Kim,
accepted and began working in Santa Monica on July 23;
McDowell accepted and began working in Santa Monica
on August 3. Accordingly, as to employees Kiggins,
Kim, and McDowell, I shall order Respondent to make
them whole for any loss of earnings they may have suf-
fered by payment to each of the amount he or she nor-
mally would have earned from July 19 until the date he
or she was reinstated and in the manner set forth above.
As to employees Horton, Brothers, Hammers, Flores,
and Higgins, the record establishes that, on July 25, Re-
spondent offered to Horton a position on its Lancaster,
California, cable splicing crew at the same rate of pay
which he received in Santa Monica and for performance
of identical work; Horton accepted. Likewise, on August
3, Respondent, by telegram, offered to employees Hig-
gins, Flores, Brothers, and Hammers positions on its
Redlands, California, cable splicing crew at their Santa
Monica wage rates and for the identical type of work.
According to Powers, Hammers refused, and Respond-
ent received no response from the others. Counsel for
the General Counsel argues that said Redlands, Califor-
nia, offers were spurious, designed to "mask" Respond-
ent's unfair labor practices, and, in any event, were not
to substantially equivalent positions as formerly occupied
by the crewmembers inasmuch as acceptance would
have required the employees to travel great distances
and would have caused numerous other inconveniences.
On the other hand, Respondent argues that these job
offers did constitute valid offers of reinstatement and,
thus, would toll its backpay liability and eliminate the
need for a reinstatement remedy for these individuals. In
support, Respondent offered into evidence a chart, based
on its March 1980 employment records, which purport-
edly shows the distances its cable splicing employees
travel from their permanent or temporary residences to
their work locations. Questioned as to the purpose of its
offer, counsel for Respondent explained that the docu-
ment illustrated an industrywide practice that cable splic-
ers customarily travel substantial distances to work. The
document was received on that basis and with the under-
standing that it would only be received as pertaining to
Respondent's cable splicers.
While the document contains numerous factual errors
and Powers admitted not having personally verified
much of the information contained therein, the basic
premise of the document appears to be valid. Thus, em-
ployee David Hammers candidly admitted that, although
he did not accept the Redlands, California, offer, it was
common in the industry for cable splicers to move to
other cities in order to obtain work. Based upon the fore-
going, I do not find Respondent's job offers to be spuri-
ous; however, I also do not think that the Lancaster and
Redlands job offers, in any way, tolled Respondent's
backpay liability to Horton, Brothers, Hammers, and
Flores or eliminated-or obviated-the necessity for re-
instatement offers. Thus, the record establishes that, al-
though filled by others, the Santa Monica cable splicing
positions were still in existence when these offers were
made. 2 7 In such circumstances, the Board has tradition-
ally maintained that reinstatement must be to the former
position "as long as such former position exists" and that,
if the former position does not exist, then, and only then,
is reinstatement permissible to a substantially equivalent
position. Valmac Industries, Inc., 229 NLRB 310, fn. 5
(1977); Jay Company, Inc., 103 NLRB 1645, 1647, fn. 7
(1953). Accordingly, while these may have been equiva-
lent positions, it cannot be said that the offers of cable
splicing jobs on Respondent's Lancaster and Redlands,
California, crews constitute valid offers of reinstatement
to their former positions to employees Horton, Hammers,
Flores, Brothers, and Higgins so as to toll Respondent's
backpay liability or to remove the employees' rights to
reinstatement. 2
Subsequent to these offers, on September 19, Respond-
ent offered to employees Hammers and Flores reinstate-
ment to their former Santa Monica positions at the same
rates of pay. Hammers admitted receiving but rejecting
the offer. Flores also admitted that he received the offer
and rejected it. Accordingly, pursuant to the applicable
Board precedent, I find that Respondent's backpay liabil-
ity as to Hammers and Flores2 9 was tolled as of Septem-
ber 19 and that its statutory duty to reinstate said indi-
viduals has likewise been relieved.3 0
Finally, as to employee Higgins, the parties stipulated
that, on September 19, Respondent mailed to him an
offer of reinstatement to his former Santa Monica posi-
tion at the same rate of pay but that said offer was not
received. The parties further stipulated that the docu-
ment was sent by registered mail, and the record dis-
' I note-and it is uncontroverted-that, as of July 20. the Santa
Monica crew was reduced by GTC to six cable splicers and a foreman It
is left to the compliance stage to handle the mechanics of reinstatement in
such circumstances.
28 1 make no finding, and leave for the compliance stage, as to wheth-
er these offers should have been accepted in order for the named employ-
ees to satisfy their burden of mitigating Respondent's backpay liability
29 As to Flores, Respondent contends that it has never owed backpay
to him nor was it under any duty to reinstate him inasmuch as Flores, in
any event, was subject to being laid off on or about July 20. Thus, as set
forth above, the record establishes that GTC ordered Respondent to
reduce its Santa Monica cable splicing crew by an additional two em-
ployees by July 20. Further, Flores testified that, sometime during the
week of July 9, McDowell told him that Powers wanted him
[McDowell] to lay off Flores. There is no other evidence on this point:
nor is there conclusive evidence that Flores would, indeed, have been a
choice for layoff on July 20. Accordingly, as I have left it to the compli-
ance stage for a determination as to which employees should be reinstat-
ed in view of the aforementioned circumstances, it is also left to the com-
pliance proceedings for a determination as to the status of employee
Flores.
30 Counsel for Respondent apparently conceded at the hearing that no
offers to their former Santa Monica positions have been made to employ-
ees Brothers and Horton.
BURNUP & SIMS, INC. 979
closes that the letter was addressed to Higgins at 6050
Canterbury #5-311, Culver City, California 90230. As I
have discussed above, Higgins' actual address is 6150
Canterbury Drive, Culver City, California; however, the
only information in Respondent's records, which infor-
mation came from Higgins, is that Higgins' address is the
one to which the September 19 offer was sent. Further,
while Higgins testified that he has a telephone but re-
ceived no telephonic reinstatement offers from Respond-
ent, the record establishes that Higgins himself stated to
Respondent, which information was not updated, that he
had no telephone.
As a general rule, "the burden is fully upon the em-
ployer to present probative evidence of a good-faith
effort to communicate [a valid offer of reinstatement] to
the discriminatees." Lipman Bros., Inc., et al., 164 NLRB
850, 853 (1967). In line with this rationale, the Board has
held that offers, mailed to an individual's last known ad-
dress and returned unopened, toll the employer's back-
pay liability but do not relieve it of the obligation to re-
instate. Rental Uniform Service, 167 NLRB 190, 198
(1967); Jay Company, Inc., supra. In urging that the mail-
ings to Higgins at 6050 Canterbury Drive were made in
good faith, Respondent contends, as the record seems to
establish, that Higgins should have been aware of his own
errors but never bothered to update or change his own
recorded information on Respondent's records. Howev-
er, bearing in mind that the burden in such cases is upon
Respondent, I believe that the key phrase is "good-faith
effort." Thus, the record establishes that Powers' July 20
letter, still in the unopened envelope, to Higgins was re-
turned to Respondent. Even the most cursory examina-
tion would have revealed that, rather than being re-
turned because of an incorrect address, the letter was
"refused" and that, most significantly, the typed street
number was corrected to "6150 Canterbury #5-311."
Certainly, I further believe, this should have placed Re-
spondent on notice that Higgins' address, as set forth in
its records, was, or may have been, erroneous and should
have precipitated an investigation. Moreover, there were
available means by which Respondent could have veri-
fied Higgins' correct address or ascertained whether he
possessed a telephone. Thus, Powers or Respondent's
crew foremen could have queried previously reinstated
Santa Monica crewmembers regarding Higgins' correct
address; Respondent's officials could have personally
checked the Los Angeles, California, telephone listings-
Higgins possessed a phone and presumably was listed
therein; or Powers could merely have examined Higgins'
unemployment insurance compensation claim upon
which Higgins' correct address appears and upon which
Powers himself wrote that Higgins was a striker on July
18. I mention the above not to excuse Higgins' laxity or
negligence in realizing his errors vis-a-vis Respondent's
records but rather to point out that alternatives were
available to Respondent for it to have corrected its re-
cords. In these circumstances, I believe applicable Board
decisions would belie any assertion by Respondent that it
acted in "good faith" by continually addressing offers to
Higgins at, what it should have known was, a possibly
erroneous address. Marlene Industries Corporation, supra
at 288; Gladwin Industries, Inc., 183 NLRB 280 (1970).
Accordingly, I believe that Respondent's backpay liabili-
ty to Higgins has never been tolled and that it still is
under a duty to reinstate him.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By terminating employees Gregory Mark Higgins,
Rhonda Carol McDowell, David Lawrence Hammers,
Lawrence Robert Kiggins, Travis Lee Horton, Hui Jon
Kim, Rodney Brothers, and Jess Flores on July 19, 1979,
based on their having consulted with officers of the
NLRB and the EEOC, Respondent interfered with, co-
erced, and restrained its employees in the exercise of
rights guaranteed by Section 7 of the Act and, thereby,
engaged in unfair labor practices violative of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3 1
The Respondent, Burnup & Sims, Inc., Upland. Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise interfering with, coerc-
ing, or restraining its employees as a result of their
having consulted with agents of NLRB and the EEOC
or engaged in any other protected concerted activities.
(b) In any like or related manner interfering with, co-
ercing, or restraining its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer to employees Gregory Mark Higgins, Travis
Lee Horton, and Rodney Brothers immediate and full re-
instatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights previ-
ously enjoyed, and make each whole for any loss of
benefits suffered by reason of his discharge in the manner
described in the Remedy section herein, with interest.
(b) Make Lawrence Robert Kiggins, Hui Jon Kim,
Rhonda Carol McDowell, David Lawrence Hammers.
and Jess Flores whole for any loss of benefits suffered by
reason of the discharge of each in the manner described
in the Remedy section herein, with interest.
(c) Post at its Upland, California, office, copies of the
attached notice marked "Appendix." 3 2 Copies of said
a~ In he ent no exceptions are filed as prolided hb Sec 10)2 4 of
the Rules and Regulatlion, of the Natlonal I.abhor Relatlions Ioard. the
findings, conclusions, and recommended Order herein shall, a prolided
In Sec 102 48 of the Rules and Regulations, he adopted by the Board and
heconme is indings, conclusiots. and Order. and all ihlectiol thereto
shall he deemed aised for all purposes
a2 In the ecnt that thlis Order is elforcedl by i Judgment of a Unied
States Coulrt (of Appeals, the words in the notice reading "l'osted h)
Order of he National abor Relations 1B,iard" shall read "Posted Pursu-
ant Ioi a Judgmenl of the l'nited State, Court ilf Appeals [lfiorcing an
Order of thl Natila.l I ahoer Rellions Boiard "
BURNUP & SIMS, INC.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material. In addition,
and inasmuch as it does not appear that Respondent's
cable splicers ever visit the Upland, California, office on
any regular basis, Respondent is also ordered to mail to
each of its cable splicers who work for GTC in the
southern California area a copy of the aforementioned
notice.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.