Clow Water Systems Co.

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 126 (N.L.R.B. 1995)

126
317 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Smith and Andrews made no agreement for any specific method
of communication during their contract negotiations; however, they
did agree to deal only with each other. In addition to face-to-face
meetings, they communicated by telephone and letter; and both also
used fax transmittals for some contract proposals.
2 Unless otherwise indicated, all dates are in 1992.
3 Smith had previously furnished his unlisted telephone number to
Andrews.
Clow Water Systems Company, Division of
McWane, Inc. and United Steelworkers of
America, AFL–CIO–CLC. Case 8–CA–24749
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPEHENS
AND TRUESDALE
On May 16, 1994, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. Counsel for
the General Counsel filed exceptions and a supporting
brief, and counsel for the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issue in this case is whether a union’s electronic
facsimile transmission (fax) to the Respondent of the
economic strikers’ unconditional offer to return to
work constituted effective notification for the purpose
of establishing the strikers’ right to reinstatement as of
the time the fax was received at the Respondent’s fa-
cility. The judge found that in the circumstances pre-
sented here it was not and that effective notification
did not occur until the person to whom the fax was ad-
dressed received actual notice of the fax and its con-
tents. Because the latter event occurred after the date
on which the Respondent hired 27 permanent strike re-
placements, the judge dismissed the complaint, which
alleged that the Respondent had violated Section
8(a)(3) and (1) of the Act by failing to reinstate return-
ing strikers to those 27 positions. For the following
reasons, we disagree with the judge’s finding concern-
ing the effective date of the strikers’ unconditional
offer to return; and we reverse and find that the Re-
spondent violated the Act as alleged.
A. Essential Factual Findings
The credited and essentially undisputed evidence re-
veals that the Union has been the certified bargaining
representative of the Respondent’s production and
maintenance employees since 1966. The most recent
contract between the parties was set to expire on Feb-
ruary 23, 1991, but was extended by agreement during
continuing bargaining by the Respondent, represented
by Vice President and General Manager Stephen
Smith, and the Union, represented by Staff Representa-
tive Robert Andrews.1 The contract extension lapsed,
however, when the employees engaged in an economic
strike commencing June 21, 1991.
The Respondent continued to operate during the
strike at about 25 percent capacity by using salaried
personnel, but made no efforts to hire replacements.
Then, in early January 1992,2 the Respondent sent let-
ters to the Union and the striking employees, in which
it invited the strikers to return to work, and announced
an intention to begin hiring striker replacements. This
prompted Andrews to make an offer to return to work
on behalf of the strikers. The offer was transmitted to
Smith by a letter that Andrews both hand-delivered
and sent by certified mail, and it was also transmitted
by a telephone call that Andrews made to Smith at his
home sometime after midnight on Friday, January 17.3
In his call to Smith, Andrews stated that the members
had voted to reject the Respondent’s contract offer but
had also voted to return to work, and that he was also
sending Smith a letter containing the offer to return to
work. The strikers returned to work in January but re-
sumed their strike on February 11, pursuant to a vote
of the local membership. After resumption of the
strike, the Respondent decided to return to full produc-
tion by hiring permanent replacements, and began
doing so on February 15 and 18. Andrews, upon learn-
ing that the Respondent was hiring replacements,
began talking with other union officials about ending
the strike.
On February 21, Smith and his secretary spent the
entire day away from their offices, performing produc-
tion work out in the plant. On that day, Andrews
placed a number of calls to Smith in an effort to ascer-
tain whether the new hires were permanent replace-
ments for strikers. He first called at about 11:40 a.m.,
and was told that Smith was not in his office. Andrews
left a message for Smith to return the call as soon as
possible. Andrews placed a second call at 12:30 p.m.
and was told that Smith was out in the plant and had
been given his message. Andrews then spoke to Per-
sonnel Manager Frank Eschleman and explained that
he was trying to find out from Smith if the replace-
ments were permanent hires. (Andrews’ testimony that
he also told Eschleman that the Union was considering
returning to work was discredited.) Eschleman said
that he understood they were permanent. Andrews re-
sponded that he still had to hear it from Smith, and
Eschleman assured Andrews that he would get the
message to Smith. At 3:30, Andrews, after calling the
127CLOW WATER SYSTEMS CO.
4 The record shows that Smith’s office is located on the first floor,
the showers and mailroom are located on the second floor, and the
only fax machine is located on the second floor in the sales depart-
ment that adjoins the mailroom.
5 The Respondent also hired five other employees on February 22
to fill nonstrike positions.
6 Contrary to our dissenting colleague’s contention, the require-
ment that an employer maintain adequate procedures to monitor the
receipt of fax transmissions does not exceed the standard that the
Board applies to itself, where a fax is deemed received for notice
purposes when it is received at a Board fax station. In any event,
we are reluctant to compare procedures concerning communications
made during the regular course of business between a union and an
employer to the Board’s rules regarding parties’ filing of formal pa-
pers or otherwise transmitting relevant information.
7 We also disagree with the dissent’s prediction that the rule that
we have applied in this case concerning the receipt of fax
tranmissions would create an incentive for an employer to keep se-
cret its plans to hire strike replacements, presumably in order to pre-
vent the union from submitting an offer to return to work and claim-
ing that the employer evaded notice of the offer. Rather we find it
more likely that, in the strike context, an employer would make in-
formation about potential replacement workers known to the union
in order to strengthen its own bargaining power and thereby increase
the likelihood of a favorable end to the strike. By the same token,
a union has a strong interest in asssuring that its offer to return is
effectively communicated to an employer to ensure the strike’s
prompt resolution. We note that the record does not support the dis-
sent’s characterization of the Union’s transmittal of its offer to return
by fax as an attempt to provide constructive but not actual notice.
local union office at about 3:24 p.m. to inform the of-
ficers of the International’s decision that the strikers
return to work, again attempted to telephone Smith but
succeeded only in speaking to Eschleman, who advised
Andrews that he had relayed the previous message to
Smith.
Smith testified that he had been informed by
Eschleman during the early afternoon on February 21
of Andrew’s telephone calls, but that he assumed that
Andrews’ questioning about the status of the replace-
ments was in preparation for a scheduled negotiation
meeting the following Monday, February 24. He fur-
ther assumed that there was no urgency to respond be-
fore then. Later that afternoon, Andrews prepared a let-
ter to Smith containing an unconditional offer to return
to work, which he faxed to the Company’s premises.
The fax machine’s ‘‘send report’’ revealed that a suc-
cessful transmission was made at 4:34 p.m.
Smith finished working at about 3:30 p.m., took a
shower and checked his mail4 before leaving the plant
at 4:30 to escort his daughter to a social function.
Smith testified that when he left the plant, the strikers
were picketing as usual. The following day, the Re-
spondent interviewed applicants at a local hotel, and
hired 27 permanent replacements, who were instructed
to report for work on Monday, February 24.5 On Sun-
day, the local membership met to discuss returning to
work, and on Monday, February 24, they appeared in
force at the gate, but were not allowed to enter.
On Monday, Andrews contacted Smith and asked
why the strikers were not being returned to work, re-
ferring to the offer to return that he had faxed to Smith
on Friday. Smith expressed surprise that there had
been an offer to return. Smith inquired of Eschleman
who stated that he also was unaware of any fax trans-
mission. Smith then asked Ruby Hall, the switchboard
operator, to check Smith’s mailbox, and she did so and
found none. Hall then contacted someone in the sales
department who found the fax still on the fax machine.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) by refusing to reinstate 27 eco-
nomic strikers who offered unconditionally to return to
work prior to their having been replaced. The judge
found that the General Counsel had failed to establish
that the Respondent knew of the fax transmission, and
that its mere arrival, unannounced and unseen in the
sales department after Smith, the addressee, had left
for the day on Friday, did not constitute effective noti-
fication to the Respondent until Monday, when Smith
next returned to the plant and received actual notice of
the offer to return. The judge therefore dismissed the
complaint allegations and concluded that the Respond-
ent’s hire of 27 replacement employees on Saturday,
February 22, did not violate Section 8(a)(3) and (1) of
the Act. We reverse.
B. Analysis
It is undisputed that the fax communication was re-
ceived at the Respondent’s facility during business
hours prior to the hire of replacements. During the ne-
gotiations between the Respondent and the Union, the
Respondent had accepted as an appropriate means of
communication the use of its fax machine. The Re-
spondent therefore bears the responsibility for main-
taining adequate office procedures concerning fax
transmissions, and knowledge of the receipt of the
Union’s fax communications during regular office
hours may reasonably be imputed to it.6 Proof of ac-
tual knowledge, as the judge appears to require, would
render transmission by fax virtually useless by placing
an unsustainable burden on the sender to insure that
the fax has been seen by the person to whom it is ad-
dressed. The judge’s reliance on his observation that
mail service, unlike fax transmissions, involves regular
daily deliveries which may be anticipated, overlooks
the fact that some mail services and private courier
services do not operate on established, routine sched-
ules. Furthermore, requiring a showing of actual
knowledge, at best, places the burden of a recipient’s
negligent failure to monitor its machine on the sender
and, at worst, invites mischief by enabling a party to
escape the consequences of notification by design.7
Here, although the dissent relies on the fact that the
Union communicated its previous offer to return by
means other than a fax, we find it more significant that
the parties had previously used various means of com-
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
munication during the regular course of business, in-
cluding fax, and did not have one agreed-on or pre-
ferred method which would render the use of other
methods ineffective. In addition, Andrews tried several
times to contact Smith by phone, left messages for
Smith to return his call, and discussed the status of the
replacement workers with the Respondent’s personnel
manager, Eschleman. In view of these efforts, and be-
cause the parties had agreed that Smith and Andrews
would communicate only with each other, we disagree
with our dissenting colleage’s reliance on Andrews’
failure to inform Eschelman that the Union had pre-
pared an offer to return. We similarly disagree with the
dissent’s suggestion that Andrews’ limited communica-
tions with Eschleman when Smith was not available
violated the parties’ ground rule that all essential com-
munications would be between Andrews and Smith.
We therefore find that the fax transmission was an
effective communication of the offer to return to work,
that this occurred before the hiring of the 27 replace-
ments at issue, and that the Respondent’s refusal to re-
instate the affected 27 strikers violated Section 8(a)(3)
and (1).
REMEDY
We have found that the Respondent unlawfully re-
fused to reinstate economic strikers immediately fol-
lowing the Union’s February 21, 1992 unconditional
offer on their behalf to return to work. Therefore, we
shall order the Respondent to cease and desist from its
unlawful activity and to offer those affected employees
immediate and full reinstatement to the positions that
they held at the time they went on strike or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges. In order to make room for them,
the Respondent shall dismiss, if necessary, any persons
hired in their place after the strike terminated. We
shall further order the Respondent to make whole those
employees for any loss of earnings and other benefits
they may have incurred by reason of the Respondent’s
discrimination against them, including backpay from
the time of their application to return to work. Back-
pay, with interest, shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Clow Water Systems Company, Division
of McWane, Inc., Coshocton, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate economic strik-
ers who unconditionally offer to return to work before
permanent replacements are hired and/or at a time
when vacancies are available.
(b) Continuing to hire replacement employees after
strikers have made an unconditional offer to return to
work, thereby discriminating against such strikers.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees who unconditionally of-
fered to return to work before permanent replacements
had been hired and at a time when vacancies were
available, as well as those employees who were dis-
criminated against by Respondent’s continuing to hire
replacement employees after the strikers’ unconditional
offer to return to work, for any loss of earnings or
other benefits they may have suffered by reason of the
discrimination against them by paying a sum of money
equal to the amount they normally would have earned
from the date of the discrimination to the date when
they were in fact reinstated by Respondent, in the
manner described in the remedy section of this deci-
sion.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records, and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its Coshocton, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for
Region 8 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER STEPHENS, dissenting.
For the reasons stated by the judge, I would affirm
his finding that the Union did not, until Monday, Feb-
ruary 24, provide the Respondent effective notice, on
behalf of the striking employees, that they were offer-
ing to return to work. I therefore also agree with him
that the complaint should be dismissed, since the hir-
129CLOW WATER SYSTEMS CO.
1 Appropos is an observation of the court of appeals that was cited
in a Board case where there was credited evidence that the employer
had attempted to evade a union’s efforts to tender a return to work
offer: ‘‘Under a statute requiring cooperative attitudes to achieve in-
dustrial peace, common sense dictates that artificial devices created
by [an employer] to avoid knowledge of [a] demand cannot suc-
ceed.’’ NLRB v. Regal Aluminum, 436 F.2d 525, 527 (8th Cir. 1971),
cited in Barnsider, Inc., 195 NLRB 754, 764 (1972). In my view,
artificial rules for imputing knowledge to a recipient can be equally
troublesome. As the Board’s decision in Barnsider, supra, shows, a
more common sense approach still enables the Board to address the
majority’s concern over an employer’s efforts to evade notice. Here
there is no evidence that the Respondent’s agents engaged in any
such evasive conduct.
2 There is no basis for finding that Andrews reasonably believed
Smith was seeking to avoid such a call; the judge discredited An-
drews’ testimony concerning unanswered telephone calls between
3:45 and 4:30 p.m.
3 On the strength of Eschleman’s affirmative response to this ques-
tion, Andrews and International Union officials decided by telephone
on Friday afternoon to end the strike, and Andrews subsequently di-
rected the local president to call a ‘‘Special Meeting’’ for Sunday.
4 If a sender wants to assure that we receive the fax promptly, he
or she will typically alert us by telephoning our office directly, so
that the fax can be immediately retrieved.
The majority’s observation that the Board nevertheless imposes on
itself a rule that notice by fax is deemed effective upon receipt at
Continued
ing of the 27 striker replacements on the prior Satur-
day was lawful and relieved the Respondent of any ob-
ligation to reinstate strikers to those positions when
they appeared at the plant gate on Monday.
Like the judge, I do not rely on the notion that the
recipient of a fax transmission must in all cases have
actually seen the document in order to be deemed on
notice of its contents.1 Rather, I think the governing
consideration is whether the sender of the fax has
transmitted it in a way that is reasonably calculated to
give notice under the circumstances. The following cir-
cumstances of this case are particularly notable: (1) the
fact that Union Negotiator Andrews had used other
means of transmission a month earlier to convey an
offer to return to work during the first phase of the
strike (a letter sent by mail and by hand delivery and
a telephone call to Smith’s home after business hours);
(2) Andrews’ failure, in repeated conversations with
Personnel Manager Eschleman on Friday, February 21,
to mention that an offer to return to work was possibly
in the offing; and (3) Andrews’ admission that in most
previous instances when he had used a facsimile ma-
chine to transmit bargaining proposals, he had also
contacted Smith to advise him that a fax was being
sent—something he did not do in the case of the Feb-
ruary 21 unconditional offer to return.2
The Union’s selective utilization of communications
with Eschleman further supports the conclusion that its
efforts at notification of the offer to return were inad-
equate. Notwithstanding Andrews’ claim that he and
Smith had agreed on a ground rule of dealing only
with one another, Andrews, in effect, acknowledges
having disregarded that rule. Andrews testified that
when he was unable to speak with Smith earlier on
Friday, he questioned Eschleman about whether the re-
placements would be permanent.3 Indeed, it was
Eschleman’s retelling of this conversation to Smith
that caused Smith to view Andrews’ efforts to talk
with him as noncritical and that resulted in Smith’s not
returning Andrews’ call that afternoon. Nevertheless,
Andrews reasserts this ground rule with Smith as his
reason for not thereafter informing Eschleman, in their
telephone conversation at 3:30 p.m., about any im-
pending offer to return. The next communication by
Andrews to the Respondent was the fax addressed to
Smith, which was transmitted at 4:34 p.m. In my view,
Andrews’ earlier unsuccessful attempts to contact
Smith by phone before the Union decided to return the
employees to work, and his last conversation with
Eschleman, without leaving a message for Smith about
the offer to return, is insufficient to show that the sole
use of the fax transmission was a reasonable effort to
give notice to Smith of the offer to return. At the very
least, it seems reasonable that the Union should have
again sought to use Eschleman, who it knew had suc-
cessfully conveyed information to Smith that after-
noon, for the purpose of communicating the employ-
ees’ offer to return.
In sum, Union Negotiator Andrews—although on
notice of the Respondent’s announced plans to hire re-
placements, and although having numerous means of
assuring notification of an offer to return—chose to
use an unannounced facsimile transmission, which the
record does not establish was a usual mode of commu-
nication between the parties even for less urgent mes-
sages. Under all the circumstances, the Union may
properly be held accountable for the undisputed fact
that none of the Respondent’s agents learned of the
Union’s offer until the morning of February 24. Ac-
cordingly, I agree with the judge’s recommended dis-
missal of the complaint in this proceeding.
The only advantage of the the majority’s straight-
forward rule is its apparent ease of application—at a
minimum, the sender need only confirm (by an elec-
tronically generated receipt) the successful trans-
mission of the fax during normal business hours to im-
pute that the employer had notice of the strikers’ offer
to return to work. The majority suggests that the em-
ployer may easily accommodate this rule merely by
maintaining ‘‘adequate’’ office procedures for monitor-
ing and handling fax transmissions. Perhaps the day
will come when all businesses—large and small —will
be able to abide by this standard. But, to my knowl-
edge, we Board Members do not impose such a norm
on our own operations at headquarters. Faxes ad-
dressed to us may arrive in the mailroom near the end
of a business day that are not actually delivered to our
offices until the next business day.4 Imposing a rule
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Board’s fax station in no way supports its position in this case.
On the contrary, it proves too much, in that even where such con-
structive notice is self-imposed, the Board’s experience—not dis-
puted by my colleagues—is that delays in notification may neverthe-
less result. In the absence of any showing that the Respondent even
attempted to impose on itself a similar obligation to deem itself in
immediate receipt of information received by fax transmissions, there
is even less cause to impute to this Respondent constructive knowl-
edge at the time of receipt of the Union’s fax.
5 In light of the fact that the local membership had earlier resumed
the strike on February 11, after the Union had called it off on Janu-
ary 17, it is apparent that the membership was not always in agree-
ment with the decisions made by the leadership. Accordingly, An-
drews directed the local president to call a ‘‘special’’ meeting on
Sunday either to persuade them to change their minds and agree to
return to work, or to transmit an order from the International Union
for them to do so.
that facsimile transmission constitutes constructive no-
tification of an offer to return can produce opportuni-
ties for games-playing, as the circumstances present in
this case seem to illustrate. Thus, the Union sought and
received confirmation through Eschleman on Friday
afternoon that the Respondent would be hiring perma-
nent striker replacements on Saturday. Despite this
forewarning of a critical turn of events, the Union was
not then able to consult with employees prior to mak-
ing a timely response, but planned to meet next with
striking employees that Sunday.5 Accordingly, the
Union’s selection of fax as the method for commu-
nicating its offer to return, and addressed only to
Smith, even though it had reason to believe that
Eschleman was still at work, could be viewed as a
conscious attempt to provide constructive, but not ac-
tual, notice of an offer to return to work. Under this
scenario, the Union had the best of both worlds: It
could prevent the striking employees from being in-
formed directly or through the Respondent that the
Union had decided to end the strike, at least until the
Union could convince the employees of this approach
that Sunday, while at the same time preserving their
reinstatement rights in the face of the actual hiring of
striker replacements on Saturday.
For all of the foregoing reasons, I decline to infer
timely notice from the fax communication in the cir-
cumstances of this case.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to reinstate economic
strikers who unconditionally offer to return to work be-
fore permanent replacements are hired and/or at a time
when vacancies are available.
WE WILL NOT continue to hire replacement employ-
ees after strikers have made an unconditional offer to
work, thereby discriminating against those strikers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL make whole the unreplaced strikers who
were not reinstated on their unconditional offer to re-
turn to work, for any loss of earnings or other benefits
they may have suffered by reason of our failure to re-
instate them to the date they were reinstated, less net
interim earnings, plus interest.
CLOW WATER SYSTEMS COMPANY
Richard F. Mack, Esq., for the General Counsel.
William F. Gardner and William K. Thomas, Esqs., of Bir-
mingham, Alabama, for the Respondent.
Robert Andrews, of Columbus, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon a
charge filed on July 17, 1992, by United Steelworkers of
America, AFL–CIO–CLC (the Union), the Regional Director
for Region 8 and the National Labor Relations Board (the
Board) issued a complaint on August 31, 1992, alleging that
Clow Water Systems Company (the Respondent) committed
violations of Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act). The Respondent filed a timely an-
swer to the complaint denying that it had committed any vio-
lation of the Act.
A hearing was held in Coshocton, Ohio, on February 18,
1993. Because of the failure of the reporter to produce a
record of the proceedings, a new hearing was held on August
11, 1993, at which all parties were given a full opportunity
to participate, to examine and cross-examine witnesses, and
to present other evidence and argument. Briefs submitted on
behalf of the General Counsel and the Respondent have been
given due consideration. Upon the entire record and from my
observation of the demeanor of the witnesses, I make the fol-
lowing
131CLOW WATER SYSTEMS CO.
1 Hereinafter all dates are in 1992.
2 Although the Union normally conducts a strike authorization vote
among the members of the local involved, nothing in its constitution
or bylaws requires such a vote to end a strike and the staff represent-
ative has the authority to do so.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
with an office and plant in Coshocton, Ohio, engaged in the
manufacture of pipe. Annually, in the course of its business
operations, the Respondent sells and ships goods valued in
excess of $50,000 directly to points located outside the State
of Ohio. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union and its Local 7014 were labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Since 1966, the Union has been the exclusive collective-
bargaining representative of the Respondent’s production and
maintenance employees. A collective-bargaining agreement
which was to expire on February 23, 1991, was extended by
the parties until commencement of an economic strike by
bargaining unit employees on June 21, 1991. The strike con-
tinued until the Union made an unconditional offer to return
to work on behalf of the striking employees in January
1992.1 After returning to work, the unit employees went out
on strike again on February 11 and the Respondent began
hiring permanent replacement workers. On Friday, February
21, the Union decided to end the strike2 and, during the
afternoon, it transmitted an unconditional offer to return to
work to the Respondent by electronic fascimile communica-
tion (fax). The Respondent hired additional replacement
workers on the next day, Saturday, and told them to report
to work on the following Monday morning. When the strike
ended, about 130 of the approximately 200 strikers were not
promptly reinstated, although, subsequently, all eligible em-
ployees did return to work. The only issue is whether or not
there was an effective unconditional offer to return to work
before 27 permanent replacement workers were hired on Sat-
urday, February 22.
During the contract negotiations, the chief spokesmen were
Vice President and General Manager Stephen Smith for the
Company and Staff Representative Robert Andrews for the
Union. Andrews had been temporarily assigned to conduct
the negotiations for the Union and the two men had no con-
tact with one another prior to these negotiations. The parties
had not agreed upon a specific method of communication
during the negotiations or the strike, but according to An-
drews, there was an understanding that all communications
would be between Andrews and Smith. During the negotia-
tions, Smith had given Andrews his unlisted home telephone
number. When the Union made the first offer to return to
work, Andrews had telephoned Smith at home in the early
morning hours of Saturday, January 18, and told him of the
offer to return to work. He also sent a letter containing the
offer by certified mail addressed to Smith and hand-delivered
a copy of the letter to the plant in the early morning hours
of January 18.
No replacement workers were hired by the Respondent
prior to February and salaried employees continued to oper-
ate the plant at about 25 percent of capacity. After resump-
tion of the strike, the Respondent decided to attempt to re-
turn to full production by hiring permanent replacement
workers and began doing so on February 15, when 31 were
hired and February 18, when another 51 were hired.
Andrews testified that learning that the Respondent was
hiring replacement workers and concern that they were per-
manent prompted him and other officials of the Union to
consider ending the strike and that they were discussing
doing so on February 21. On that date at about 11:40 a.m.,
he attempted to telephone Smith to find out the Company’s
position on whether the replacement workers were consid-
ered temporary or permanent. He was told that Smith was
not in his office and he left a message asking Smith to call
him as soon as possible. When Smith did not call back, he
placed another call at about 12:30 p.m. and was told that
Smith was out in the plant and had been given his message.
He then asked to speak with Personnel Manager Frank
Eschleman and explained that he was trying to reach Smith
to ascertain the Company’s position on the replacement
workers. Eschleman told him that he understood they were
permanent. Andrews said he still had to hear it from Smith
and Eschleman assured him he would get the message to
Smith. Andrews testified that during this conversation he told
Eschleman that the Union was considering returning to work.
He said that, thereafter, the decision to return to work was
made and that he called the local in Coshocton at 3:24 p.m.
to inform the officers of the decision. At 3:30 p.m., he called
the plant and was unable to get Smith. He again spoke to
Eschleman, who told him that Smith would call him before
he left the plant for the day. He placed calls to the Company
at about 3:45 and 4:30 p.m., which were not answered, lead-
ing him to believe that the Company was trying to avoid him
by not answering its telephones. He then prepared a letter to
Smith containing an unconditional offer to return to work
which was faxed to the Company’s premises at about 4:35
p.m. The fax machine’s ‘‘send report,’’ in evidence, indicates
a successful transmission was made at 4:34 p.m. Andrews
testified that he met with the strikers on Sunday and told
them to come to the plant the following morning. In the
morning, he went to the plant gate and asked a guard to con-
tact Smith and eventually got to speak to him by telephone.
Andrews asked him to let the employees in to work and
Smith said they had no notice of the Union’s intent to return
and could not let them in. When he told Smith he had sent
the offer to return by fax on Friday, Smith said he had no
knowledge of it.
Stephen Smith testified that although the Company had
continued to operate during the strike without hiring replace-
ment workers, in late December 1991, it made a decision to
begin hiring replacements and so informed the Union and
striking employees in letters dated January 2, 1992. These
communications invited the strikers to return to work and
stated that any replacement workers hired would be consid-
ered permanent. Andrews responded by asking Smith to hold
off hiring the replacements which he agreed to do. On Janu-
ary 18, Andrews informed him that the union membership
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had voted to reject the Company’s latest contract offer but
had agreed to return to work. After returning to work, the
employees resumed striking and picketing on February 11.
When the strike resumed Andrews informed him that ‘‘it was
going to be long and hard.’’ He said that at that point he de-
termined that it would be necessary to hire replacement
workers in order to return to full production. He also said
that after the strike resumed he had met with Andrews and
the union committee and the possibility of a return to work
was not mentioned. On February 21, he spent the entire day
away from his office, working in the pipe shop operating a
casting machine from 7:30 a.m. to 3:45 p.m. There was no
telephone in the pipe shop. At about midday he learned that
Andrews wanted to talk to him. He testified that Eschleman
had told him that Andrews had questions about the replace-
ments, that it was not the first time Andrews had asked about
them, that he assumed that Andrews wanted the information
in connection with a negotiating session scheduled for the
following Monday evening, and that he was not aware of any
urgency about answering the questions. Eschleman said noth-
ing about Andrews mentioning that the Union was consider-
ing returning to work. After he finished work, he took a
shower and went to the mailroom to pick up the mail in his
box, which did not include a fax or any other communication
from Andrews or the Union. He left the plant at 4:30 p.m.
and went to attend a social function with his child. At the
time he left the plant, he had no knowledge of any fax from
Andrews. He returned to his home between 9 and 10 p.m.
and did not subsequently receive any calls from Andrews.
There were no messages on his answering machine when he
returned that night. He testified that, on Saturday, he partici-
pated in the hiring session held by the Company for appli-
cants for employment and that nothing was done to increase
the number of applicants that were interviewed or hired. At
no time on Saturday did he have any knowledge that the
Union had sent an offer to return to work. He was informed
on Saturday that the picket line was still up at the plant as
it had been when he left on the previous evening. He re-
ceived no calls or messages from the Union on Saturday or
Sunday. At midafternoon on Sunday, he was told by Plant
Manager Dick Stoker that there was a rumor that the strikers
did not want to return to work but that the International
Union was ordering them to do so and that there would be
a gathering at the plant on Monday morning. On Monday
morning at about 5 a.m., there were approximately 200 peo-
ple gathered outside the gate. Shortly after his arrival at the
plant, he spoke by telephone with Andrews who said that he
had faxed an offer to return to work to Smith on Friday at
4:35 p.m.
Frank Eschleman testified that he spoke with Andrews on
two occasions on Friday, February 21, and that Andrews did
not say anything about ending the strike or returning to work
or that the Union was considering doing so. He said he first
spoke to Andrews at about 12:30 p.m. and that he said he
wanted to speak to Smith, that he had been unable to reach
him, and that he had some questions he needed answered.
Andrews said he needed to know if the replacement workers
were temporary or permanent, how many there were, and
what procedure the Company was using for replacement. An-
drews said that he needed this information because several
strikers had asked if they were being permanently replaced
and that he had to inform Union District Director Dan Martin
what the situation was. After talking with Andrews, he went
to the pipe shop and told Smith that Andrews wanted infor-
mation and the three questions he had asked. He spoke with
Andrews again that afternoon and told him that he had spo-
ken to Smith about Andrews’ previous call. Andrews said
nothing during this call to indicate the Union was consider-
ing a return to work and he did not promise him that Smith
would call him before he left the plant. Eschleman testified
that he has responsibility for the Company’s telephone sys-
tem, that all incoming calls come into a switchboard attended
by an operator during business hours and that at 5 p.m. in-
coming calls are switched over and answered by a guard at
all times when the switchboard is not in operation. The tele-
phone system has an 800-service line and 14 other lines and
he had no knowledge of any difficulties with the system on
February 21. The system does not have a caller identification
feature and while there is no record kept of ordinary incom-
ing calls, the record for the 800-service line, in evidence,
shows that it was in operation and incoming calls were being
answered between 3:45 and 4:31 p.m. on February 21.
Eschleman testified that he was involved in the hiring ses-
sion on Saturday, February 21, that it had been set up a cou-
ple of days in advance, and that nothing was done to try to
increase the number of people interviewed or hired that day.
He was not involved in the interviews but those who were
hired were sent to him for indoctrination and were given a
time to report to work, which was between 6:30 and 7 a.m.
on Monday, February 24. He said that there is nothing un-
usual about a worker being hired one day and reporting to
work on the next business day and that it is normal proce-
dure. He also said that while new employees must pass a
physical examination, it does not have to be done before
starting to work but sometime during the employee’s proba-
tionary period. Eschleman testified that the first he heard of
an offer to return by the Union was on Monday when Smith
asked him if he knew anything about a fax being sent on Fri-
day, which he did not. He testified that after the strike re-
sumed in February he had heard comments from Andrews
and some union committee members that the resumed strike
would be long and hard.
Ruby Hall testified that she was the switchboard operator
for the Company on February 21 and that morning she an-
swered a call from Andrews for Smith who was working in
the plant. She took the message that Smith should return the
call and gave it to him during one of his breaks. She did
nothing to avoid answering a call from Andrews that after-
noon. On Monday morning, she got a call from Smith who
asked her to look in his mailbox and see if there was a fax
there. She did so and found none. She then contacted some-
one in the sales department where the fax machine is located
and the fax from Andrews was found.
Analysis and Conclusions
The law is clear that, absent a legitimate and substantial
business justification, economic strikers who make an uncon-
ditional offer to return to work are entitled to immediate re-
instatement to their prestrike jobs. Solar Turbines, 302
NLRB 14 (1991); Laidlaw Corp., 171 NLRB 1366 (1968).
The fact that economic strikers’ jobs have been filled by per-
manent replacements is recognized as a legitimate and sub-
stantial reason for refusing to reinstate them. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). There is
133CLOW WATER SYSTEMS CO.
3 On direct, Andrews testified the decision was made between
12:20 and 3 p.m. On cross, he said the decision ‘‘was not made until
after the last conversation with Mr. Eschleman, which I believe took
place around 3:30 p.m.’’ A moment later he testified the decision
was made shortly before 3:20 p.m., when he placed a call to Local
President Kent Arnold to tell him about it.
4 The evidence fails to establish that Smith went home ‘‘early’’
that day. While Andrews testified that the Respondent’s office closes
at 5 p.m., the evidence shows that Smith was working out in the
plant that day. Smith testified that he worked throughout the day in
the pipe shop from 7:30 a.m. to 3:45 p.m. Thereafter, he took a
shower and picked up his mail in the mailroom before leaving the
plant at about 4:30 p.m.
no dispute here but that the replacement workers hired by the
Respondent were permanent. It is also clear that job vacan-
cies created by striking employees are considered filled by
permanent replacement workers as of the time they accept an
offer of employment. Home Insulation Service, 255 NLRB
311 (1981). This is true even though a striker may request
reinstatement before the replacement actually begins to work.
Solar Turbines, supra.
The fax confirmation in the record establishes that the
Union had transmitted to the employer an unconditional offer
to return to work on behalf of the strikers at 4:34 p.m. on
February 21, the day before the acceptance of employment
by 27 additional permanent replacement workers on February
22. If that transmission was an effective communication of
the offer to return to work, the Respondent’s failure to rein-
state the 27 employees whose jobs were taken by these re-
placements violated Section 8(a)(3) and (1). Under the com-
bination of circumstances involved here, I find that it was
not.
The testimony of Andrews that he believed that the Re-
spondent was deliberately refusing to answer his calls on the
afternoon of February 21 and the citation in the brief of
counsel for the General Counsel of the Board’s decision in
Barnsider, Inc., 195 NLRB 754 (1972), which involved an
employer’s refusal to accept and read a letter communicating
an offer by striking employees to return to work, suggest that
the Respondent engaged in artificial devices to avoid receiv-
ing the offer on February 21. The credible evidence does not
support this.
Andrews testified that during his first telephone conversa-
tion with Eschleman on February 21 he said that the Union
was considering returning to work. Eschleman testified that
Andrews did not make such a statement in either of their
conversations that day and that the subject of a return to
work was never discussed. Based on their demeanor while
testifying and the content of their testimony, I credit
Eschleman. Andrews appeared uncomfortable while testifying
about his actions on February 21 and gave conflicting testi-
mony about when the decision to return to work was made.3
In his initial account of the conversation on direct, he de-
scribed only telling Eschleman of his need for information
about the status of the replacement workers. He did not men-
tion telling Eschleman that the Union was considering return-
ing to work until he was specifically asked about it by coun-
sel for the General Counsel. I find it unlikely that Andrews
would fail to remember or recount so significant a statement
if it had been made. I also find it unlikely that he would con-
fide in Eschleman information concerning the Union’s inter-
nal decisionmaking processes before a decision had actually
been made and before the local union membership, which
had initiated the second walkout and was apparently against
returning, was notified. Moreover, had Andrews discussed
the possibility of a return to work with Eschleman at 12:30
p.m., it makes no sense that the subject did not come up in
their subsequent conversation at 3:34 p.m. which, according
to one of Andrews’ statements, was after the decision to re-
turn had been made. The credible testimony of Eschleman
establishes that the only things they discussed were that An-
drews wanted to talk to Smith and that he wanted to know
if the replacements were permanent. The credible and con-
sistent testimony of Eschleman and Smith establishes that
Smith was told only that Andrews had called him and that
he wanted to know the status of the replacements.
I find there is no evidence that the Respondent had notice
that an offer by the Union to return to work was imminent
or even being considered or that it took any action in order
to prevent such an offer from being communicated to it. The
evidence concerning the telephone service at the Respond-
ent’s plant and its operation on the afternoon of February 21
establishes that there was no way it could have identified and
failed to answer Andrews’ calls while continuing to receive
others. I also find that Smith had a reasonable explanation
for his failure to call Andrews before leaving the plant that
day. He credibly testified that he did not believe there was
any urgency in returning the calls because he knew what in-
formation Andrews had requested, that he assumed that he
wanted the information about the replacements in connection
with a previously scheduled negotiating session to be held on
the following Monday evening, and that he wanted to consult
with counsel before answering Andrews’ questions. I also
credit Smith’s uncontradicted testimony that he had left the
plant before the fax transmission which communicated the
offer to return to work had been received on February 21 and
that he did not see it or know that the offer had been made
until the morning of Monday, February 24.
The Respondent was entitled to formal notification of the
Union’s unconditional offer to return to work in order for it
to be effective. Ornamental Iron Work Co., 295 NLRB 473,
476 (1989). The question to be resolved is whether the fact
that Smith did not receive or know about the faxed offer be-
fore the permanent replacement workers were hired on Feb-
ruary 22 means that the Respondent had not been formally
notified of the offer. Counsel for the General Counsel con-
tends that it does not, that the Respondent bears the respon-
sibility for its office procedures which failed to alert the ap-
propriate management official upon receipt of a fax trans-
mission and that the strikers should not be penalized because
Smith went home early without checking his mail.4 He also
contends that there was a duty on Smith’s part to contact An-
drews to clarify matters before hiring more replacement
workers since rumors were circulating that the strikers were
returning.
The evidence fails to support the contention that Smith
was aware of rumors that the strikers intended to return to
work before the replacements were hired on February 22 or
that any such rumors existed. Smith testified that when he
left the plant on Friday there was no change in the situation
at the picket line and pickets were still present. He first
heard a rumor about a possible return to work on Sunday,
February 23, when he was called by another member of
management who told him that there had been a meeting of
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is no evidence that the fax transmission received at the Re-
spondent’s plant was seen by anyone there prior to Monday morn-
ing. The sales department where the fax machine is located is on
the second floor and Smith’s office is on the first.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the union membership that day, that they did not want to re-
turn but that the International Union was ordering them to
do so, and that there might be a gathering at the plant gate
the next morning. He testified that when he heard this he be-
lieved there was a possibility the strike might be ending but
it was also possible that there would be an attempt to block
access to the plant on Monday morning. Even apart from the
fact that the final group of permanent replacement workers
had already been hired before Smith heard about the rumor
of a possible return by the strikers, I find there was no obli-
gation on his part to seek information from Andrews as to
what transpired at the union meeting, nor was it appropriate
for him to do so. Given Andrews’ actions at the time of the
first return to work, which included notification by means of
an early morning hours telephone call to Smith’s home as
well as certified mail and hand delivery of a written offer to
return, there was no reason for Smith to believe that An-
drews was unable to reach him.
Counsel for the General Counsel argues that it was the Re-
spondent’s fault that Smith failed to learn about the fax con-
taining the offer to return on Friday and that it would be an
injustice to require that he had to know about it in order for
it to be effective. On the contrary, I find that it is the actions
of Andrews which cannot withstand scrutiny and that by tak-
ing the simplest of precautions he could have assured that
Smith was aware of the offer before more replacement work-
ers were hired. Andrews was admittedly aware on February
21 that the Respondent was considering hiring replacements.
Despite being on notice that strikers were probably in immi-
nent danger of being permanently replaced, he chose to
transmit the offer to return to work in a manner entirely dif-
ferent from that which he previously employed and, after
having done so, did nothing to ensure that it was effectively
communicated to Smith. Andrews claims he did nothing
more to contact Smith on Friday because Eschleman had
promised him that Smith would return his call before he left
the plant for the day. I did not believe him given
Eschleman’s credible denial and the credible testimony of
Eschleman and Smith that they were not aware of any ur-
gency in returning Andrews’ call. If Eschleman had made
such a promise, it would seem reasonable that when Smith
did not call him by 5 p.m., Andrews would have made some
further effort to contact him.
Under the circumstances, I find that despite the fact that
the fax transmission containing the offer to return to work
was physically received at the Respondent’s plant on Friday,
February 21, the offer was not perfected until Smith learned
about it, which was not until the morning of Monday, Feb-
ruary 24.5 Andrews chose the means of transmitting the offer
and it was his responsibility to see that it was effectively
communicated to Smith. Transmission of the fax to the Re-
spondent’s sales department without prior notification after
Smith had already left the plant did not constitute effective
communication of the offer. It may be true that use of fax
transmission is an increasingly common and acceptable
means of sending messages, but it is also true that there are
limits as to how and when it can be used effectively. Unlike
mail service which involves regular daily deliveries that a re-
cipient can anticipate and might be held to fail to open or
process at its peril, normally, a fax transmission cannot be
anticipated without notification that it is coming. Andrews
admitted that he was aware of this, as he testified: ‘‘It’s only
common courtesy to notify the individual you’re sending a
fax to prior to sending a fax.’’ His excuse for failing to no-
tify Smith that this fax was being transmitted, that the Re-
spondent was not answering his calls, was not credible. His
failure to take any followup action to ensure that Smith had
received it, when contrasted with his actions in connection
with the first offer to return in January, is inexplicable. Then,
Andrews called Smith at home in the early morning hours
of a Saturday to tell him of the offer and had a confirming
letter delivered by hand and by certified mail. Here, although
Smith had not returned his calls, Andrews found it unneces-
sary to try to reach him or leave a message at his home.
In summary, in the absence of any evidence that Smith or
any other employee of the Respondent knew about the fax
transmission of the offer to return to work or took action to
evade obtaining knowledge of its contents, I find that the
mere fact that it arrived unannounced and unseen in the sales
department after Smith had left the plant for the day on Fri-
day, February 21, did not constitute effective formal notifica-
tion to the Respondent of the offer and that notification did
not become effective until Smith was informed about and
saw the offer on Monday, February 24. Consequently, I find
that the Respondent did not violate Section 8(a)(3) and (1)
of the Act by permanently replacing strikers with the replace-
ment workers who were hired on Saturday, February 22.
CONCLUSIONS OF LAW
1. The Respondent, Clow Water Systems Company, is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent did not engage in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed.