Connecticut Pen & Pencil Co.

National Labor Relations Board - Board Decisions

Jun 11, 1979

242 N.L.R.B. 972 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Connecticut Pen and Pencil Co., Inc., and the
Federal Religious Educational Guild and Carlos A.
Serrano and Wilson Soto, Gilberto Cardona, Milton
Torres Medina, Eugene T. Kelley, Scott Miller,
William Hicks, Fernando Vasques, Angel Berrios,
Michael Quintilliano, Norberto Caribe, and Gama-
lier Pagan. Cases 2-CA- 14621 and 2-CA-14629
June I, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 16, 1979, Administrative Law Judge
Robert Cohn issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, Respondent and
counsel for the General Counsel filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found that backpay
for the II unfair labor practice strikers should be
tolled from January 13, 1977, until July 13, 1978, the
date of the Board's Decision finding these employees
to be unfair labor practice strikers. The General
Counsel excepts to this finding, contending that the
equities of the case do not favor less than a full back-
pay remedy. We find merit in the General Counsel's
exceptions.
Board policy, as announced in Ferrell-Hicks Chev-
rolet, Inc.,2 has been not to toll backpay awards unless
I Respondent excepts to the Board's remand of this case, 236 NLRB 14.42
(1978), contending that the remand was so prejudicial that it amounted to a
denial of due process. We find no merit in Respondent's contention. The
Board remanded this case solely to obtain evidence on whether the unfair
labor practice strikers' offer to return to work was unconditional. It is within
the Board's discretion to reopen the record when it believes certain evidence
should have been taken by the administrative law judge at the hearing. See
Sec. 102.48(b) of the Board's Rules and Regulations. Here, at the close of the
hearino, after the General Counsel amended the complaint alternatively to
allege the employees were unfair labor practice strikers, the Administrative
Law Judge denied either party an opportunity to present further evidence on
whether the strikers' request for reinstatement was unconditional. By the
remand of this case for additional evidence, therefore, Respondent is not
prejudiced. In fact, by permitting the parties: to further litigate the issue, any
possible prejudicial effects of the Administrative Law Judge's ruling were
remedied. The issue on which this case was remanded, moreover, essentially
goes to the question of remedy and not the substantive unfair labor practice
issue).
2 160 NLRB 1692 (1966).
"special factors" exist which indicate that full back-
pay is inappropriate to effectuate the policies of the
Act. Respondent urges, as special factors, that (I)
their conduct was not motivated by unlawful dis-
criminatory intent, and (2) it was not obligated to
grant reinstatement until the Administrative Law
Judge's Supplemental Decision issued, finding that
the strikers unconditionally offered to return to work.
In our opinion these circumstances do not overcome
the presumption favoring a full backpay award.
First, to award full backpay it is not necessary to
find discriminatory intent.3 Second, although the rec-
ord from the original hearing was insufficient to es-
tablish that the strikers' request for reinstatement was
unconditional, the evidence shows Respondent knew
of the unconditional request made by the strikers in
their attorney's letter of January 13, 1977, and re-
fused to reinstate the strikers then solely because it
believed they were properly replaced economic strik-
ers. That it was wrong in its belief is not sufficient to
outweigh granting the Board's ordinary remedy.
Furthermore, our reversal of the Administrative
Law Judge was only based on our interpretation of
the evidence, and not because we departed from past
precedent or a "particular view of the law," factors
the Board has considered sufficient to toll backpay.4
The Board has consistently held that a conflict be-
tween the Board, the Administrative Law Judge,
and/or the courts resulting solely from a reevaluation
of the evidence does not by itself warrant tolling
backpay.5 As was emphasized in Safeway Trails, Inc.,
supra, a reviewing court's reversal of a lower court's
decision based on a reappraisal of the evidence is in-
herent in litigation, and a respondent must bear the
risk of an adverse decision.
Since we perceive no special factors justifying less
than the usual remedy, we conclude that an award of
full backpay to the strikers, beginning 5 days after
their unconditional offer to return to work on Janu-
ary 13, 1977,6 is appropriate.
Ferrell-Hicks, Chevrolet. Inc., supra.
4Cf. Fibreboard Paper Products Corporation, 138 NLRB 550 (1962), in
which the Board tolled backpay because it found on reconsideration that the
employer had a duty under Sec. 8(aX5) of the Act to bargain about a deci-
sion to contract out the work of an entire bargaining unit; the Board had
previously found that the employer had no such duty, 130 NLRB 1558.
Thus, unlike here. the reversal was based on a change in Board law. See also
Kohler Co.. 148 NLRB 1434 (1964), where backpay was tolled because the
Board did not apply a particular legal doctrine.
I Ferrell-Hicks, Chevrolet, Inc. supra, Safeway Trails, Inc. 233 NLRB
1078 (1978).
6 Although Chairman Fanning and Member Jenkins, for the reasons set
out in their partial dissent in Drug Package Company. Inc. 228 NLRB 108
(1977). would normally commence backpay for the unfair labor practice
strikers on January 13, 1977, the date on which they unconditionally offered
to return to work, they will here follow the 5-day rule because they are
bound by the majonty position of the Board
242 NLRB No. 146
972
THF ONNECTIClT PEN AND PENCIL CO.. INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, The
Connecticut Pen and Pencil Co., Inc., and The Fed-
eral Religious Educational Guild, Bridgeport, Con-
necticut, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 4 of the recommended Order.
SUPPLEMENTAL DECISION
Statement of the Case
ROBERT COHN, Administrative Law Judge: On July 13,
1978, the National Labor Relations Board (herein called
the Board) entered its decision, order, and remand in The
Connecticut Pen and Pencil Co., Inc. and the Federal Reli-
gious Educational Guild.' The Board found, inter alia, that
on November 11, 1976, Respondent discharged the Charg-
ing Party, Carlos A. Serrano, in violation of Section 8(a)(l)
of the National Labor Relations Act, as amended (herein
called the Act), and that the other 11 Charging Parties
named in this case thereafter concertedly ceased to work in
protest against Serrano's discharge and therefore became
unfair labor practice strikers. The Board further found that
the record contained some evidence of two subsequent of-
fers by the strikers for reinstatement. but could not deter-
mine from the record "whether either of these offers was
unconditional. We therefore find it necessary to remand
this case for further hearing on this question."2 The Board
thereupon ordered that the proceeding be reopened and
that a further hearing be held before an administrative law
judge "for the purpose of taking evidence to decide the
question whether the strikers had any time made an uncon-
ditional offer to return to work."3
A hearing upon the aforesaid remand was held before me
in Bridgeport, Connecticut, on November 20, 1978, upon
due notice. At the hearing all parties were afforded full
opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, and to argue oral-
ly. Post-hearing briefs have been received from counsel for
the General Counsel and from counsel for Respondent,
which have been duly considered.
Upon the entire record in the case, and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
As previously noted, the sole issue for resolution in this
proceeding is whether the unfair labor practice strikers at
any time made an unconditional offer to return to work. At
'236 NLRB 1442 (1978).
2
236 NLRB at 1444.
1236 NLRB at 1445.
the hearing the General Counsel introduced into the record
a copy of a letter dated January 13, 1977 (approximately 2
months subsequent to the events giving rise to the strike),
addressed to Mr. Victor J. Wall (president of Respondent),
signed b James A. Trowbridge, attorney at law of Trum-
bull, Connecticut, as follows:
Dear Mr. Wall:
I represent Milton T. Medina, Wilson Soto, Eugene
T. Kelly,. Williams Hicks. Fernando Vasquez, Gilberto
Cardona. Angel Berrios. Michael Quintilliano, Nor-
berto Caribe. Gamalier Pagan. Carlos Serrano.
I have been authorized by the above clients to com-
municate to you their unconditional offer to return to
work at Connecticut Pencil Company and Federal Re-
ligious & Educational Guild. This offer is made with-
out reservation but, of course, the workers make this
offer without prejudice to their statutory right.
Please direct your response to me.
Very truly yours,
/s/ James A. Trowbridge
It was acknowledged on the record that Mr. Wall re-
ceived the above letter on or about January 15. 1977. and
that a reply letter was sent to Trowbridge on January 19,
1977. emanating from Respondent's counsel, Joel Field,
Esq., of New York City. In substance, Field's letter advised
Trowbridge that Carlos Serrano was discharged on or
about November I 1, 1976, for just cause and that the other
persons named by Trowbridge "voluntarily left the employ
of my client." Trowbridge was further advised that Respon-
dent had replaced each of Trowbridge's clients, which was
its lawful right, and that there were no openings at the
Respondent's plant so that consequently your offer is re-
jected."
As noted above, the Board, in its decision, referred to
some other evidence in the original record pertaining to an
offer of reinstatement made on behalf of some of the strik-
ers by a Mr. Medina, a representative of a Spanish-Ameri-
can coalition, through which Wall had hired some of the
Spanish-speaking employees. This evidence was gleaned
from a prehearing affidavit of Respondent's President Wall,
who spoke of a conversation he had with Medina a few
days after the commencement of the strike.4 The Board
noted that Medina did not testify at the original proceeding
and that Wall's affidavit was introduced "only for impeach-
ment purposes." As previously noted, the Board concluded
that it was unable to determine whether this offer was un-
conditional.
Neither Wall nor Medina testified at the reopened hear-
ing. Although Wall was available as a witness, he was not
called. Counsel for Respondent explained that Medina had
left the country some months before the reopened hearing
and was unavailable as a witness. Accordingly. no addi-
tional testimony was adduced with respect to this offer of
reinstatement of strikers by Medina. Under these circum-
stances. I am, like the Board, unable to determine from the
record whether Medina's offer was unconditional.
In view of all of the foregoing, I find that substantial
evidence discloses only one valid offer of unconditional re-
4See 236 NIRB at 1443. fn. 5.
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instatement on behalf' of the strikers.' to wit: Trowbridge's
letter of January 13, 1977, above set forth.
Analysis and Concluding Findings
On its face, the January 13 letter of Trowbridge to Wall
clearly constituted on unconditional offer to return to work
on behalf of the strikers whom he represented. There is
nothing in the record to contradict the proposition that as
of the time the letter was written, the strikers were, collec-
tively and individually, ready, willing, and able to return to
their jobs without condition.6 It is likewise apparent that
Respondent treated the January 13 letter for what it was,
but took the position that Serrano had been discharged fbr
cause and that replacements had been hired for the other
strikers. Accordingly, Trowbridge's offer was rejected.
However, since the Board has found that the discharge of
Serrano was in violation of Section 8(a)(l) of the Act and
that the strikers were therefore unfair labor practice strik-
ers, they were clearly entitled to their jobs upon their un-
conditional offer to return to work.7
At the hearing, and in its brief, Respondent argued that
Trowbridge's letter should not be accorded probative
weight because it is hearsay, i.e., it is the uncorroborated
declaration of an agent which is not substantiated by testi-
mony of his principals and is therefore ineffectual. In con-
trast, counsel for the General Counsel argues that there is a
longstanding principle of law which creates a presumption
that an attorney of record has general authority to act on
behalf of the clients whom he represents.8 The evidence in
this case certainly indicates that Respondent treated Trow-
bridge as the agent of the striking employees from the very
inception, without question as to his authority. Thus, there
was no question raised in Respondent's response to Trow-
bridge's January 13 letter respecting his authority. It is also
noted that in a letter from Respondent's counsel to the Re-
gional Director, dated March 17, 1977, requesting a re-
scheduling of the original hearing, counsel for Respondent
indicated that he had spoken by telephone with Trow-
bridge, who "represents the individuals in this matter."9
Moreover, it appears that Trowbridge appeared for the
Charging Parties at the hearings in this proceeding, without
question as to his authority to represent them. Finally, it
appears from the statements of the Charging Parties who
testified in this proceeding that Trowbridge had general au-
thority to act on their behalf in all matters pertaining to
their strike.
'It is noted that no offer to return to work was made by Trowbridge on
behalf of Charging Party Scott Miller. Counsel for the General Counsel
noted on the record at the reopened hearing that Miller was no longer in the
state, and no evidence was introduced by the General Counsel on his behalf.
6There was some testimony by Fernando Vasques that, originally. the
men would not go back to work unless Wall paid the money that was owed
to Serrano and Berrios. However, Trowbridge testified that near the end of
December or the first of January he communicated with all of his clients,
either directly or through intermediaries, concerning his intention to write
the letter in view of the fact that, in his opinion, the strike had failed. There
is no evidence that any of the strikers objected.
7 Flambeau Plastics Corporation, 172 NLRB 448. 449 (1968).
s In support of this proposition counsel for the General Counsel cites a
decision of the U.S. Supreme Court: Hill v. Mendenhall, 21 Wall. 453 (1875).
'See G.C. Exh. I (k).
In view of all of the foregoing, I must reject Respondent's
argument that Trowbridge's letter of January 13, 1977, was
ineffectual as respects the making of an unconditional offer
on behalf of the strikers to return to their jobs.
Respondent argues that it made an offer of reinstatement
to all the strikers (excepting Serrano) at the end of a coffee-
break, through the agency of two police officers. Assuming
that the offer was effectively communicated to the strikers,
such did not. contrary to Respondent, extinguish Respon-
dent's obligation to reinstate the strikers upon their uncon-
ditional offer to return to work, but merely tolled their
backpay until such offer was made and rejected. That is to
say that, on November II 1, the employees went on strike in
protest of the discharge of a fellow employee whom they
believed to have been discharged wrongfully and unlaw-
fully. The Act protects their right to do this. and they are
not required to give up that right at the risk of losing their
jobs, although, of course, any backpay is tolled until they
make an unconditional offer to return to work", The Board
made this analysis clear in Southwestern Pipe, nc.."' as fol-
lows:
In this respect, the case is no different from an initial
strike caused by, for example, a discriminatory dis-
charge of a single employee. When such a strike oc-
curs, it is protected, and because it is also an unfair
labor practice strike, the employer's obligation to rein-
state the strikers on their request exists without regard
to whether the strikers have been replaced. But if the
strikers continue their strike after offering to return to
work because the discriminatorily discharged em-
ployee is not reinstated at the same time, they, are
doing exactly what they did in the first place, continu-
ing to protect by concerted activity the employer's un-
fair labor practice, They have the right to do so; they'
do not have the right to be paid while doing so. That is
all we hold here.
Accordingly, I reject the Respondent's argument that its
offer to reinstate, and the strikers refusal to accept such
offer on November I, extinguished their subsequent right
to reinstatement following their unconditional offer there-
for. 2
THE REMEDY
The normal remedy in such cases as the one at bar, of
course, requires the reinstatement of all strikers who uncon-
ditionally offered to return to their jobs, plus backpay from
the time of Respondent's refusal to reinstate. However. Re-
spondent in this case vigorously argues that backpay should
be tolled for an extended period due to the special circum-
stances of this case, which involves, according to Respon-
dent, a wrongful remand (I) because the evidence sought to
1 Of course, if the) are wrong, and the discharge is held to be for just
cause, the strike is characterized as "economic," and the strikers are subject
to being replaced.
' 179 NLRB 364, 365 (1969).
n At the hearing and in its brief, Respondent argued that the Board's
remand of this case was so prejudicial to Respondent that it amounted to a
denial of due process. I do not address myself to these arguments. since the
remand was a decision of the Board and, as such, is not subject to review by
an administrative law judge.
974
THE CONNECTICUT PEN AND PENCIL CO., INC.
be adduced in the remand, i.e., the January 13 letter, was
available to the General Counsel and/or the Charging Par-
ties at the original hearing, and (2) because of the lapse of
time between the original Decision of the Administrative
Law Judge, dismissing the complaint in its entirety, and the
decision of the Board, which reversed that decision in perti-
nent part.
As indicated above, I will refrain from discussing Re-
spondent's contention () above, because an administrative
law judge is necessarily bound by a Board decision and
order of remand. As for Respondent's contention (2) above,
the key Board Decision discussing this issue appears to be
Ferrell-Hicks Chevrolet, Inc." ' There, the Board fully dis-
cussed the considerations relevant to a situation where
backpay may be tolled in a case in which an administrative
law judge dismisses an allegation of discriminatory conduct
by an employer, and the Board reverses. The thrust of the
Board's opinion appears to be that the intent of the em-
ployer is the touchstone. That is to say, if an employer, in
an 8(a)(3) case, discriminatorily discharges an employee,
and the intermediate reviewer erroneously concludes that
the employer's conduct was lawful, and the higher author-
ity reverses, there is no compelling consideration which
would prompt the Board to toll backpay.
However, in the infrequent cases in which an employee
is terminated as a result of employer conduct which,
while an unfair labor practice, does not bespeak such a
clear intent, the Board will be more receptive to such
employer contentions as, for example, that it was justi-
fiably reliant on a decisional error or on an expectation
that the Board would adhere to a particular view of the
law. When the respondent is not an ill-intentioned of-
fender, as he is in an 8(a)(3) case which turns on mo-
tive, the balance of equities between respondent and
employee draws closer to equilibrium, and the Board
will consider more sympathetically any substantial de-
fenses the respondent may proffer against a full back-
pay remedy."
'" 160 NLRB 1692 (1966).
" 160 NLRB, at pp. 1697-1698.
Applying the foregoing criteria to the facts in the instant
case. it is noted that there is no evidence or contention that
Respondent harbored a discriminatory intent against the
strikers. The facts show that from the very beginning, it was
willing to reinstate them provided that they give up their
support for Serrano, whom the Employer believed was dis-
charged for good cause. In this connection. I note that the
Board, in Kohler (o.,' tolled backpa3 for certain unfair
labor practice strikers even though there was a background
of unlawful intent on the part of the employer.
Under all circumstances, I am of the view, under the
special circumstances of this case, that backpay should be
tolled from the date of the strikers' unconditional applica-
tion on January 13, 1977, until Respondent was "fully ap-
prised of the legal principles to be applied to its refusal to
reinstate the strikers," to wit: the date of the Board's Deci-
sion herein, July 13, 1978.
Upon the foregoing findings of fact and conclusions, I
hereby issue the following recommended:
ORDER
In view of the foregoing findings and conclusions, I
hereby recommend that the Board revise its Decision and
Order in the instant case to reflect as follows:
1. That the striking employees (with the exception of
Scott Miller), on January 13, 1977, applied unconditionally
to return to their former jobs.
2. That on January 19, 1977, Respondent rejected the
strikers' unconditional offer.
3. Since the Board has, in its original Decision, ordered
Respondent to reinstate the striking employees to their for-
mer positions upon their unconditional offer of reinstate-
ment, no additional order of this nature is required except a
provision dictating the necessity of dismissing, if necessary,
any person hired on or after November 11, 1976.
4. The Board's make-whole remedy should be altered to
toll backpay from the date of the strikers' offer until the
date of the original Board Decision of July 13, 1978.
I 148 NLRB 1434, 1454 (1964).
975