Craw & Son

National Labor Relations Board - Board Decisions

Aug 15, 1979

244 N.L.R.B. 241 (N.L.R.B. 1979)

Board's Order insofar as it related to the reinstatement and
backpay.
A controversy having arisen as to whether Respondent
offered unconditional reinstatement to the aforesaid indi-
viduals under the terms of the Board order and court opin-
ion, on July 24. 1978. the Regional Director for Region
issued a backpay specification and notice of hearing. The
said backpay specification sets forth the amount of back-
pay. with interest, claimed to be due from Respondent to
each of the discriminatees in order to make them whole.
The specification also alleges, in substance. that to date Re-
spondent has failed to offer full reinstatement to anN of the
aforesaid individuals, that backpay for all discriminatees
continues to accrue, and further alleges with regard to dis-
criminatee George R. Ivory that there is also due him, with
interest, a sum expended by Ivory to obtain medical insur-
ance coverage equivalent to that which Respondent had
provided its employees.'
On August 4. 1978, Respondent filed its answer to the
backpay specification in which Respondent does not dis-
pute the backpay claimed due in the specification up to the
date on which Respondent sent to each of the above-named
discriminatees a notification that Respondent was offering
reinstatement to each of them. Respondent's answer to the
specification and to the amendment thereto made at the
hearing further states that no response was received from
any of the discriminatees within the 5 days limiting their
responses to the offer of reinstatement.
I. THE ISSUE
The sole issue raised by the specification. as amended.
and by Respondent's answer thereto is whether Respondent
made a valid offer of reinstatement to each of the discrimi-
natees sufficient to toll backpay.
II. THE FACTS AS TO THE OFFER OF REINSTAF1MENT
As the Board found and the court of appeals affirmed. in
response to the Union's organizational endeavor Respon-
dent countered with unlawful threats in violation of Section
8(a)( 1) of the Act. Some of Respondent's employees, among
them the four claimants herein, reacted to these threats b5
commencing a strike on September 9. 1974. The Board
found that the strike was caused, to a substantial degree. bh
Respondent's violative activities, as aforesaid, and was
therefore an unfair labor practice strike. On October 3.
1974, the Union, on behalf of the striking employees. noti-
fied Respondent that the employees unconditionally re-
quested reinstatement. One employee. William Davis. was
reinstated pursuant to this request, but the four claimants
herein were required to fill out employment applications
although they had not been required to do so when they
were hired by Respondent.
In any event, Respondent did not reinstate any of the
four although they did file the applications as instructed.
Furthermore, Respondent made no effort to make contact
The specification was amended at the hearing to include the allegation
that none of the backpay claimants have been reinstated to their former
positions as provided by the Board and court orders
Leroy W. Craw, Jr., Vernon E. Craw, and Daniel G.
Leonard, d/b/a Craw & Son and Sheet Metal
Workers' International Association, Local Union
No. 19, AFL-CIO. Case 6-CA 7845
August 15, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
On June 12, 1979, Administrative Law Judge Mor-
ton D. Friedman issued the attached Supplemental
Decision in this proceeding. Thereafter. Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in answer to Respondent's
exceptions.
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 Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings.
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 and hereby or-
ders that the Respondent, Leroy W. Craw, Jr., Veron
E. Craw, and Daniel G. Leonard, d/b/a Craw & Son,
Altoona, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: On
December 28, 1976. the Board issued its Decision and Or-
der in the above-entitled case' requiring Respondent,' inter
alia, to reinstate employees Frank Hebler. George R. Ivory,
Michael P. McDonough, and John D. Vance and to make
them whole for loss of earnings they suffered by reason of
Respondent's discrimination against them. On November
15. 1977, the United States Court of Appeals for the Third
Circuit handed down its opinion' in which it enforced the
'227 NLRB 601.
2 At the hearing Respondent's representative stated on the record that
Craw & Son is now a corporation.
565 F.2d 1267
244 NLRB No. 44
CRAW & SON 241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with them for a period of approximately 2 1/2 years. Fi-
naily, on March 2, 1977, Respondent mailed to Frank Heb-
ler the following letter:
The economic conditions of Craw & Son warrant
hiring additional personnel at this time. We are offer-
ing you reinstatement to your former position at sub-
stantially equivalent pay and benefits that you previ-
ously enjoyed.
This position is open to you without prejudice to
your seniority or other rights previously enjoyed. How-
ever, it is a new policy of Craw & Son for all new
employees to undergo a physical examination. This
physical examination offers you as much protection as
it does Craw & Son, but we will assume the cost of this
examination.
We would appreciate your written answer on the
enclosed Message/Reply Form provided self-ad-
dressed, stamped envelope within 5-business days from
the date of the U.S. Postal Service Return Receipt
Form.
Identical letters were sent to each of the other three
claimants, the letter to Vance dated March 9, 1977; the
letter to Ivory dated March 18, 1977; and the letter to Mc-
Donough dated March 22, 1977.
Hebler, McDonough, and Vance did not respond to the
foregoing letters; Respondent therefore mailed to each of
them a second letter in which Respondent informed the
individuals that if Respondent did not hear from them
within 3 days Respondent would assume that they were no
longer interested. Because Ivory's letter was not delivered
Respondent sent him a second letter in which was enclosed
a copy of the original letter asking for a response within 5
days.
In response to the second letter Hebler wrote to Respon-
dent that lie was declining the offer of reinstatement. This.
he explained, was because he had a better job with excellent
benefits which he did not wish to leave. Ivory also replied,
stating that he was presently employed and did not desire
to be considered at that time for reinstatement to the job
Respondent offered. Vance also replied in a letter in which
he stated that he could not see a good future with Respon-
dent because, in effect, Respondent did not pay union
wages for identical work. McDonough did not reply.
III. DISCUSSION AS TO THE OFFER OF REINSTATEMENT AND
THE REFUSALS
As noted above, the General Counsel contends that the
letter offering the four discriminatees reinstatement was
conditional, and therefore no unconditional offer of rein-
statement has been offered to date. On the other hand, Re-
spondent contends that it made as complete an offer as it
possibly could to each of the discriminatees by reason of
events which occurred subsequent to the date of the strike.
In support of its contention Respondent relies upon the
fact that it replaced the striking individuals with retirees
from the Pennsylvania Railroad. One of these retirees had a
heart attack while working for Respondent. As a result,
Respondent adopted a new policy of requiring all appli-
cants for employment to take a physical examination before
being hired. However, the record further shows that Re-
spondent's regular employees who were not laid off were
not required to take physical examinations. Accordingly.
when Respondent sent the letters offering reinstatement to
the four claimants herein, Respondent was treating them as
new applicants for employment and not as employees who
were merely laid off. Accordingly, Respondent was requir-
ing more of' them than would have been required of them
had they not gone on strike because of Respondent's unfair
labor practices.
It has long been established by the Board that the re-
quirement that a discriminatee undergo physical examina-
tion renders an offer of reinstatement conditional because
the imposition of such requirement treats the discriminatee
as an applicant for employment Indeed, it has been held
by the Board that a Board order for reinstatement of a
discriminatee is designed to place that individual in the
same position the individual would have been in had there
not been discrimination against him., Additionally, it has
been held that if the discriminatee would have received an
increase in wages, promotion, or any increase in benefits,
whatsoever had he not been unlawfully discharged or re-
fused reinstatement the offer of reinstatement must put him
in that position.' In the case at bar, Respondent offered the
four discriminatees only substantially equivalent pay to
that which the discriminatees would have received had they
been reinstated by Respondent when they made an uncon-
ditional offer to return to work at the end of the strike.
Thus, it must be concluded that the offers of reinstatement
made by Respondent to the four claimants herein were con-
ditional.
We come now to the refusals of the individuals to accept
Respondent's offers of reinstatement. As noted above, three
of them refused reinstatement at the time: the fourth, Mc-
Donough, did not reply. However, where the offer of rein-
statement has been conditional and has not satisfied the
Board's and the court's order of reinstatement, the discrim-
inatees are under no obligation to reply to or to accept such
conditional offer of reinstatement. With regard to Mc-
Donough, his failure to reply does not change Respondent's
obligation to offer him unconditional reinstatement. This is
so because he has never received a valid offer of reinstate-
ment. As to the other three discriminatees, their replies to
the effect that they did not wish to return to Respondent's
employ do not obviate the need for Respondent to extend
to them an unconditional offer of reinstatement, nor do
their replies terminate their backpay periods.' The Board
has further held that in such circumstances the employee is
obligated to make an election between his present employ-
ment and employment with the employer who discrimi-
nated against him only at a time that he receives a valid
offer of reinstatement from the discriminating employer.'
Thus, when the three discriminatees who answered Re-
spondent's offer of reinstatement refused employment at
I Standard Materials Inc., 237 NLRB 1136 (1978): Isaac and inson Secu-
rity Services, Inc, 208 NLRB 47. 53-54 (1973).
George Webel. db/a Webel Feed Mills & Pike Transit ('on,panv, 236
NLRB 1192(1978).
' Supra
I See Heinrich Motors, Inc., 166 NLRB 783 (19671; W4 C. Mc Quaide. In,.,
239 NLRB 671 (1978).
9 Supra
242
crue until such unconditional offer of reinstatement is made
to each one of them.
Additionally, Respondent is further obligated to reim-
burse George R. Ivory in the amount of $403.84. which
Ivory was required to expend for equivalent medical insur-
ance coverage. Furthermore. interest continues to accrue on
the sums above set forth and on my additional backpay
until the date of' payment.
Upon the basis of the foregoing findings, conclusions.
anti the entire record. I make the following recommended:
that time they did not thereby cut off the backpay nor re-
lieve Respondent of the obligation to make them an uncon-
ditional offer of reinstatement. With regard to McDonough.
who did not answer, he made no election whatsoever, and
he is in the same position as the other three discriminatees.
namely, that his backpay was not cut off and continues to
accrue. and Respondent's obligation to make him an un-
conditional offer of reinstatement continues. Thus. in all
four instances Respondent's obligation continues and back-
pay continues to accrue.'(
ORDER
IV. N(Nt.USIONS
By reason of all of the foregoing it is conclhided that. as
set forth in the specification for backpay. the following
amounts are due each of the individuals as of the dates set
forth alongside the said amounts:
Frank Hebler
George R. Ivory
Michael P. McDonough
John D. Vance
$3.769.14 (3/8/77)
$16,949.26 (3/27/77)
$5.770.49 (12/31/77)
$14,463.21 (3/18/77)
Additionally, Respondent is obligated to offer to each of
the foregoing individuals unconditional reinstatement.
Backpay for each of the said individuals continues to ac-
'O See also Central Cartage, Inc., 236 NLRB 1232 (1978). Standard Mate-
rials, Inc., 237 NLRB 136(1978).
I. The Respondent, Leroy W. Craw. Jr., Vernon F.
Craw,. and Daniel G. Leonard, d/hla Craw & Son, Al-
toona. Pennsylvania. its officers. agents. successors. and as-
signs, shall pay to each of the individuals named below the
amount of backpay set forth opposite each name as of the
date stated:
Frank Hebler $3.769.14 (3/8/77)
George R. Ivory $16,949.26 (3/27/77)
Michael P. McDonough $5,770.49 (12/31/77)
John D. Vance $14,463.21 (3/18/77)
2. Respondent shall offer to each of the aforenamed indi-
viduals unconditional reinstatement and backpay shall con-
tinue to accrue, with interest, until such offers of reinstate-
ment and full payments are made.
3. Respondent shall also pay to George R. Ivory the ad-
ditional sum of $403.84, with interest thereon until payment
thereof is made.
CRAW' & SON 243