Decker Foundry Co.

National Labor Relations Board - Board Decisions

Aug 17, 1978

237 N.L.R.B. 636 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decker Foundry Company, Inc. and John Bishop and
Charles W. Barowski. Cases 16 CA 7053 and 16
CA-7249
August 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND) MFMBERS J[NKING(
AND PI.N I.I .)
On March 23, 1978, Administrative Law Judge
Karl H. Buschmann issued the attached Decision
in this proceeding. Thereafter the Respondent filed
exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member
panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order. as
modified below.3
ORDER
Pursuant to Section 10(c) of the National labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent. Deck-
er Foundry Company, Inc., Henryetta, Oklahoma, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraphs l(c) and
2(a):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act."
i The Respondent also filed post-hearing moltions to stal procedini? a nid
to reconsider the matters raised ait the hearing in the inst:nt protceding ,Al
to the motion to stavi the Reslpo nde nt offers evidelnce that mIo M(arch 22,
1978, following the insi;lnt hea;rillg on August 23 and 24, 1977. it filed a
peitlilon ill h;ankruptr uwhich ;ias .approved the same day hb a judge of the
United States i)isrict ( oiurt fli the I aslern l)istrict of Oklahoma . and tIhat
on April 17. 1978. the Lourt issued ;I restraining order slating the com-
nenctr lelrt eI1 or liCittliltio of action s or the enforcement of judgments
aga;insi the Respondenit. or court proceedings to enfrcer liens on its prip-
ert, ior for it rehalhilitaltlil r the liquidatlnli of its estl te I he Responden t
"(a) Offer Tommy Moffet. Charles Barowski.
Lloyd Stidman, and James Kunselman immediate
and full reinstatement to their former positions or, if
such jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniorit) or other
rights and privileges, and make them, as well as Dan-
iel Brock, Gus Marinous. Frank Parks. Elzo Hensley.
and John Bishop, whole for any loss of earnings they
suffered as a result of the discrimination against
them, plus interest, in the manner set forth in the
Section herein entitled 'The Remeds.'"
2. Substitute the attached notice for that of the
Administrative L.aw Judge.
contendl tha i tie i, arid is thfreh! enjilimed to stat the instant proceeding
,unlI fUlrther irder (f the coiur. W'e disa;gre.
A Ithc BUoard stated il I I: (t,r it Rc, itiril/ ( redit ( enter. 225 NL RB
881. fN. I ( 1 976 i
Resptondent's oilntentlol thlat Board proiceedings are subject to a
gnliclar IC lrllllllt l rdi r i llelr hs id coiurt of bfankruptc has been
IIiftiuI Irelt.etIf III hith l tit rnd Board decrtiijon In n1R I R
lh, Hald.iini I o,ii,, Iit It irA 128 1 2d 39. 44( ('.A 3. 1 9421. a case
it lting theif e 1 f it[cnlt t I a Bolid order the courl staited
I lie Inridtiimi of I nitred Stilct I)i ritl (Court in hankruplc} does
ilt cribrace the l-el r i trealt wilh .i debtor's unfair labohr practites
uilthl atfei clrltlletic Nor i rutIch a1 curt's Icale to the Board toi
pIo 'cid IIp 1 lroprti a ne mitner required. Hs Settion IOt(a) iof Ihe
N;llatnal 1 aihb Relallis Act. hri Bioard it expressl1 empiv ered to
pICe.rII l)r s p)crti-Tl Iroil nlglin in anis uLnfair lhabor practites af-
tiln ctnlnicrc: illt llld thil pllUel is extlutl'ie in the BoHard and
illaftfe led hs r t, e aNtier l ,lll I rf iad Jtinirent or prevention that has
heelt or ill;s hc cslahhili hed bs .agiccrient, clde., t. i r otherise "
Ihc Act 1lroter l xpmhsilI rcnir cs the poS biltt it f an's restraint
uputi t He ,Bltd' - posed wuhil.l might he ithought to arisre here the
clOplttilf le IllcitI e rid bhL hileC are Tperaltcd under in order If a
[)i tlt[ ( iurt IX Li ore gail/nlurIo proicrding in hankruptcs /Sei
Sn,' IJ !t i /t Nl RI4 I
See I]to Itui .ril mrin uit/outl, . In,. 151 i Supp 877 ID< Nehr.
1957: 1 I I)Oria d /'rfra l in BanJiitri/lti of lurneil ood Produis,
/li, 1, / / . 2'1( I Supp 1049 l I )( Ark.. 1969t Al Acs ni & Ribi
fir,- /,It . 19 NlHRB ?78 ( 1940(. cnid uith modificaltins not relreant
hlcr 121 t 2d 84 ( 1)(. 1941)
\ ilic I llitilon t et con ider. the Respoildcilt coinlend th.at. due to its
inieprildil tirbikiuptt plttdll gt I io e , it ti u inable t ie rtire the sereices of it,
regi;lil .i nitrie. that I1 If.re thfircle tr i.dellutels represented at the hear-
ill Mid thai , lli d ItI t t11 i ti )ll l are d,;r the Adninis lratiNe l.,lu Judge might
th;ite rctihcld a diffTereti detisionI Vie find the conltenlltn sil thul merit, as
Ihc Rcspuridcnlll ni ltlir Is ecictredl irt .ippiarartce through its president and
it, htlilnll etullC.e lrin; ger as I/t reprCesentatier ther uere accrded all
.il ihe iecett,;l, letal i. Uillillenie fot a full aInd faii hearing: and the
Respondent'st itltienitint lelatie ti thre Adrlnini tratrue i.i Judge', conclu-
tensr .Ire pIC rtLCs ,peClttl it tle lld fuithlUti e.idicntllrs support We therefolre
dens, tie Imeltiionts it I il[ ti Illllt
- ihe Responldentl tli exepted tli tertlln credlblllt findirgs made hs the
Adtiimi tralrl t I a .lutgiC It r' tth Britt
'
, ecslablished polhcs not to iover-
rutle an ;l \llNlltaiililt i, lUIIItC' rerIliiuliniJTI ,ith respect to credhibilit
unrest tie clelr precpillderanlle f ill of the relerilnt esidence convincet us
hilt (hre resolitrirn ale illcorrect Sritlndtrd I)r, I i/ll Prodi, , In, . 91
Nl RB 44 (19S(O), codi IXX i 2f l2d (( A 3. 19511 We have carefulls
examirlllled the reti-ld ;id find lI1 bhasis fur ieersintg his findintgs
In his I erlrrilenidtd ()rdie. the Admiilnlrlratire I.raV Judge uses the nar-
Ituu tease ;l 111 deI1i 1 I;lnlrtle "iii HIl like .or related rilraer." The Respon-
dfell[ hrIe iat torlliIitiled Ii Ltini .r hich frg t,, the vers heart of the Ati
V'c hIaill ltfrc. tre. IeliC ttIe Re puIrideri ro tI Case rand desist from in ans
.helil eritll I l1it/lint ijull lhe tit ig guairanleced toi emplolteet bv Sec. 7
[ t[he \ct N I R It s wri Iql, [/ tuntill[lit' g ( ttjnplsi, 120 1 2d 532
(( \ 4. 1941: 11 i t1,.iii/ il, /I;unrl (,i wpai . 223 N LRB 8I15 1
9 7
6}
237 NLRB No. 90
636
DECKER FOUNDRY COMPANY
APPENIDIX
Not ic( To E.PI (o) I i
Posl H) BY ORD) R () I lli
NAIIoNAl L XB()R Ral \lIioNS Bt\RI)
An Agency of the United States (oscinrnlelnt
After a hearing at which all parties had an opporttu-
nity to present their evidence, the National I .iabo
Relations Board has found that we violated the Na-
tional Labor Relations Act, as amriended. and has or-
dered us to post this notice.
WE. li.l. NOT fail or refuse to reinstate cco-
nomic strikers who have unconditioniall, offered
to return to work and have not been perma-
nentlN replaced.
WtE WiLIl NOt fail or refuse to reinstate em-
ployees who have been replaced while enltaged
in an economic strike when jobs become asail-
able for them after they have made an uncondi-
tional offer to return to work. in the absence of
legitimate and substantial business justifications.
Wt. WAi.lt NOt in an15 other maianner discrili-
nate against emplo ees to encourLage or discoiur-
age membership in a labor organizatio.n.
Wit Waii.t oI threaten our emplo)\ees or their
relatives with plant closure because of their
union activities or in any other manner interfere
with, restrain, and coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
Wi Wn iii offer Tommy Moffet. Charles Ba-
rowski, Ilo d Stilmian, and James Kunselman
reinstatement to their former jobs or, if their
jobs no longer exist, to substantialls equivalent
jobs, without prejudice to their seniority or other
rights and privileges.
Wl wlli make whole and pay backpay. with
interest, to Daniel Brock, Gus Marinous, Frank
Parks, l.loyd Stidman. Tomnms Moffet. Elzo
FHensleN. Charles Barowski, James Kunselman.
and John Bishop for ann loss of earnings be-
cause we failed to reinstate them to jobs when
thev becaime axailable after they madie their un-
conditional offers to return to work.
DIt( 'K R F()t N)R C()MIAN'i. INC
DECISION
KARI. II BLS( CHNA'NN. Administrative Law Judge: T his
case was heard before me on August 23 and 24. 1977, in
Okmulgee. Oklahoma. It is based on a consolidated com-
plaint i which issued on June 23. 1977. alleging that Decker
Foundry (Company, Inc.. hereinafter called Respondent.
violated Section 8(a)( ) of the Act by threatening its em-
plo\ees with plant closure and Section 8(a)(3) and (I) of
the Act bh refusing to reinstate employees who had made
unconditional offers to return to work. The Respondent
filed an answer den ing the critical allegations in the com-
plaint,
L pon the entire record in this case. including the Gener-
al (ounsel's brief. and from my observation of the witness-
es. I make the follovwing:
Fi-liN)l(iS O F0 ( r
Respondent. Decker Foundry Compan,. Inc.. is an Ok-
lahoma corporation. with an office and place of business
located at tienrxettla. Oklahoma. where it operates a
foundrx. D)uring the past calendar year, a representative
period. Respondent sold and shipped finished products
xalued in excess of $50.000) directly to customers located
outside the State of Oklahoma. Accordingl., I find that
Respondent is. and has been at all times material herein,
an emploser engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
On June 29. 1976. Respondent's employees. represented
by the International Molders and Allied Workers l nion,
AFL CIO Cl C. hegan an economic strike which lasted
more than 5 months. Ilnder the supervision of the Board.
an election was held on December 17. 1976 which resulted
in the decertification of the Union as the collective-bar-
gaining representative. Shortl' thereafter. nine strikers who
are the alleged discriminatees in this proceeding Daniel
Brock. Gus Marinous. Frank Parks. Llosd Stidman, Tom-
mN Moffet. Elzo Jo Hensley,. Charles Barowrski. James
Kunselman, and John Bishop made unconditional offers
to return to work. The parties stipulated that six of the
alleged discriminatees applied for reinstatement on the fol-
lowing dates: Lloyd Stidman on December 21. 1976. Tom-
mN Moffet on December 21. 1976. Charles WV. Barowski on
December 23, 1976, James Kunselman on December 28.
1976. John Bishop on Januar! 5. 1977. and lzo Jo Hens-
ley on December 22. 1976. The record contains copies of
the written statements on company-prepared forms by sev-
en of the men requesting reinstatement. Except for Hlens-
ley. who prepared his own statement, and I)aniel Brock.
who made an oral request, the seven signed prepared forms
which stated. in substance, that the) voluntarily offered to
return to their old jobs at a certain rate of pay. (Resp.
Exhs. 1, 2, 4. 5. 7. and 8). Respondent's manager. Gerald
Cantrell. completed the blanks of the forms and the em-
ployees signed them. IlensleN's application which was
typed by his wife, Elsie }lensle,. stated:
Now that the linion has been voted out, I. Elzo Jo
liensley. wish to return to work at [)ecker Foundrs. at
the same rate of pay $4.21 per hr. and on the same job.
for which I am Qualified. Moueller Operator. I am
also a Qualified Finisher.
I .Ioln Bilhil ,ii p h1 a ,l Part, fi ld : riLin al and .miendjed charges on
chrtui '8 Mi1 Starall8. s I'7. r -cictilxcl, a cornplailnt i ssued April 20.1
1977 ( harle, Nk ,iaru .ki ( h,lrln 1' Paris. filed origina and .amended
Ihaltc, I 1 , l lit ilad Jnlltn 1. 177 rpnctil.e] s An order .con,,oidailn
NI I'C 1 ,, ildlrt' i rldd c lp.llitl IIcI .id on I uf J 21 t 7I
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elsie Hensley delivered the application to John Decker,
Respondent's vice president, on December 22, 1976 (Resp.
Exh. 3). And Danny Brock orally applied for reinstatement
on December 20, 1976. He went to the Respondent's of-
fices and asked the secretary to put his name on the hiring
list, to which she replied, "Okay." 2
Although Gus Marinous signed the form request on De-
cember 31, 1976, he testified that he actually applied for
reinstatement on December 20. 1976. He explained that he
first went into the office on December 19, 1976, but the
secretary told him he would have to come back and sign
some papers in the presence of Cantrell. Marinous re-
turned the next day and signed the prepared form (Resp.
Exh. 5). And Frank Parks testified that he applied for rein-
statement on December 20, 1976. At that time he spoke
with Cantrell. He signed a prepared form on March 31.
1977 (Resp. Exh. 6).
In the months immediately after the nine alleged dis-
criminatees made their unconditional offers to return to
work, Respondent hired numerous new employees, many
for positions for which the nine discriminatees were quali-
fied. The Respondent's payroll records indicate that six
new employees were hired in January 1977, 11 in February,
and five in March (G.C. Exhs. 4(a)-(v) ). Also, Respon-
dent's list of terminations reveals that 5 employees depart-
ed in January 1977, 10 in February, and 9 in March (G.C.
Exh. 5). Respondent's attorney, William Toney, admitted
in a letter to the Board that Decker Foundry hired Johnny
Kenny on January 2, 1977, and Odos Roberson on Febru-
ary 25, 1977, as general laborers, as well as Martin Rob-
ertson on January 21, 1977, as a painter (G.C. Exh 3). Re-
spondent's Newsletter, dated April 7, 1977, names David
Polson and Roger Reifstock as new arrivals (G.C. Exh 2).
In his testimony, Supervisor Leroy Mullens identified Pol-
son as a new foundry helper. The Respondent's list of new
hires indicates Reifstock began on March 30, 1977, that
Sammie Moore began on February 22, 1977, and that Don-
nie Burns was hired on March 16, 1977, all as general la-
borers (G.C. Exh. 5). Paul Casselman, Jr., a forklift opera-
tor for Decker rehired con March 25, 1977, testified that
Calvin Kinnie was a new employee in the machine shop
who began work in January, and payroll records indicate
Kinnie began January 14, 1977 (G.C. Exh. 4(o) ). A new
employee, named Long, began work on the same day as
Casselman in unskilled transfer work. Finally, Supervisor
Mullens testified that a maintenance man, named Weath-
erford, was a new employee in 1977. Thus Decker Foundry
in early 1977 hired a substantial number of new employees
in generally unskilled positions.
The Respondent also hired new employees or transfer-
red other employees when vacancies arose in specific posi-
tions. Alleged discriminatee Kunselman had been a truck-
driver for Respondent. Another employee, named Ernie,
held the truckdriver position from the time of the strike
until he was terminated in early 1977. Roxie McLaughlin,
formerly a supervisor, was demoted to the truckdriver posi-
tion as of February 19, 1977 (G.C. Exh. 4(s) ). McLaughlin
2 Cantrell tlook the position that Brock neser came into the office to ap-
ply, but admitted that it was possible that he would not see someone who
came into the office I credit Brock's forthright testimons
quit the job after approximately a week and a machinist
employee, David Lentz, took over the position. Alleged
discriminatee Barowski had been a pinlift operator for Re-
spondent. In his testimony, Manager Cantrell claimed that
the pinlift operator position had been filled during the
strike by a man named Hicks and continued to be filled by
him. However, Respondent's list of new hires indicates that
on March 16, 1977, William West was hired by Respon-
dent as a pinlift operator (G.C. Exh. 5). Alleged discrimi-
natees Stidman and Hensley had both been muller opera-
tors for Respondent. During the strike, Omer Bruno
became a muller operator. In mid-April Bruno began train-
ing as a leadman and Dennis May filled the muller opera-
tor position. Yet, Kunselman, Barowski, Stidman, and
Hensley were not recalled for vacancies in any of these
specific positions.
The original charge in this case was filed on February
28, 1977. On March 4, 1977, Hensley's wife, Elsie, went to
the home of Dick Doyle. Respondent's manager, in con-
nection with another matter, generally dealing with the
community's water board business. During the course of
the conversation, Doyle asked her if she knew about the
Labor Board and its activities. They also engaged in a dia-
logue concerning Respondent's failure to recall strikers and
the hiring of new employees. Doyle told Elsie Hensley:
"This charge with the Labor Board would be the thing that
would close Decker's down."
Despite Respondent's hiring and transferring of employ-
ees, the nine alleged discriminatees were not recalled until
after the original charge was filed. Moffet was the first one
of the nine to be asked to return. On March 3. 1977. he
received a certified letter, dated March 2, 1977, from Man-
ager Cantrell, offering him a machinist position (G.C. Exh.
6). Moffet immediately responded by telephone stating to
Cantrell that he was interested in the position. During this
conversation, Cantrell confirmed that the opening was for
a machinist. On March 7, when Moffet reported for work.
Supervisor Danny Gallion told Moffet that there was no
work on the machine and instead ordered him to pick up
scrap iron in the yard. Moffet objected, stating that he had
been recalled for a machinist position, to which Gallion
responded, "that was the way it was and if [Moffet] didn't
like it, [he] could go up to the office and talk to them."
Both Moffet and Gallion went to the office to speak with
Supervisor Ken Herbert, as Cantrell was not available
(Resp. Exh. 12). Moffet and Gallion met Herbert who indi-
cated that presently there was no machinist work but soon-
er or later there would be. When asked if he was interested
in working on whatever needed to be done, Moffet re-
sponded that he would give it some thought (Resp. Exh.
12). Once outside, Gallion "said we was getting off on the
wrong foot, that he kind of thought I was going to be an
agitator and that if I didn't want to play ball with him, to
go now and not cause any trouble, and that was what they
had and that was it." Moffet was first assigned to yard
work-picking up heavy metal pieces. The forklift operator
who normally would assist in the handling of the heavy
equipment assisted a coworker but did not assist Moffet.
Moffet lifted the approximately 200-pound heavy metal
pieces, which supervisor Gallion had earlier instructed em-
ployees not to lift by hand. Moffet was then assigned to
638
DECKER FOUNDRY COMPANY
getting "pallets" out of the junk behind the furnace. Final-
ly, Moffet was assigned to grinding, a skilled job which he
had never previously performed and for which he had not
received any instructions. On March 8. Moffet worked at
grinding again. Eventually. Moffet did not return to work
on March 9, because he had injured his back in lifting the
heavy metal pieces. Although Moffet did not see a doctor
or receive workmen's compensation for his injury. Moffet's
wife daily, for a week. reported in to the Company that her
husband was too sick for work. After 3 days of absence
without calls by Moffet, Respondent presumed that he had
quit. Moffet did not return to work at Decker because he
was not given the machinist work for which he was re-
called.
The second alleged discriminatee to be offered reinstate-
ment was Bishop. On March 17. 1977, he was offered rein-
statement to a machinist position. Bishop rejected the offer
because he had already accepted other employment.
Six of the former strikers received offers of reinstatement
by telephone on Friday. April 15. 1977. 3 On that evening.
John Decker, Respondent's vice president, called Brock,
Marinous, Parks. Stidman, Henslev. and Kunselman. and
offered them general laborer positions. The latter two em-
ployees declined and the others accepted. The four em-
ployees who had accepted the offer reported to Decker
Foundry on Monda,, April 18. 1977. Manager Cantrell
told them that they were required to take a physical exami-
nation. Brock was examined by Dr. Haynes, the
C('ompany's physician, who told him that he was blind. Yet
Brock had just qualified for a chauffeur's license and was
obviously not blind. Later in the week, Cantrell told Brock
to report for another physical examination on the following
Mondav. April 25, 1977. At that time, Dr. Haynes told
Brock that he had flat feet. Nevertheless, Respondent hired
Brock for work on Tuesday, April 26, 1977. Marinous and
Parks both passed their physicals and also went to work for
Respondent. Stidman was told by Dr. Haynes that he suf-
fered from a hernia. And Cantrell refused to employ Stid-
man for that reason.
On Mav 16, 1977, by registered letter, Hensley was again
offered reinstatement by Respondent, this time to his for-
mer position as muller operator. He passed Dr. Haynes'
physical examination and was reemployed. Finally, the
ninth discriminatee. Barowski. received a certified letter
from Respondent on May 17. 1977. offering him reinstate-
ment to his old job as pinlift operator. Barowski went to
see Cantrell who also told him to take a physical examina-
tion. Dr. Havnes examined Barowski and concluded that
he had a slight hernia and asked him to return the next day
for further examination. Cantrell then informed Barowski
that he could be reemployed only if he had his hernia re-
paired. Barowski was never reemployed, In summary, only
Brock. Marinous, Parks, and Hensley eventually returned
to work at Decker Foundry.
1 find thai the re.all t.i,.k place on April 1i5 depite confliictn letl-
mo.ns John Decker tesilried thal hie made the call, on April 14 or IS i he
emplrsce, testified that theN ree l: ed clls at lhe end fi i ueek and esccral
menironed Fridas e'ening The\ rcprteld tir pork lhe tflluirme i hlc d.
rhe peclifit dates mentlmrted ha the empiioees InolIed Ihat ,eekend
Analysis
I. Unconditional offers of reinstatement
Generally, economic strikers who have made uncondi-
tional offers to return to work, are entitled to reinstatement
unless their jobs have been filled by permanent replace-
ments. Howsever. esen after their jobs have been filled bh
permanent replacements. the strikers are again entitled to
reinstatement when the replacements leave their jobs un-
less the employer can show a legitimate and substantial
business justification. N.L. RB. v. F7eetwood Trailer Co..
Inc. 389 U.S. 375. 381 (1967): The Laidlaw Corporation,
171 NLRB 1366 (1968). And this right to reinstatement is
not limited to the specific position which the striker had
prior to the strike, bhut to anli job for which the striker is
qualified. I'he Court. in Flectood, supra, 375 U.S. at 381.
held that '[ilf and when a job for which the striker is quali-
fied becomes available. he is entitled to an offer of rein-
statement." See also Little Rocka Airmoti'e, 2nc., 182 NL RB
666, 672 (1972). enfd. in part 455 F.2d 163 (8th Cir. 1972).
Similarls. the mere fact that a job was not available at the
time an offer to return was made does not remo,,e the
employer's obligation to reemploy the striker, since the
striker's status "as an emplosee continues until he has ob-
tained 'other regular and substantially equivalent employ-
men t '" Fcetw oar d. supra.
Moreosver. the request by a striker for his old job at a
specific salary does not render his offer to return a condi-
tional one. Hartmann Luggage Conlpan. 183 NI RB 1246
(1970). enfd. in part 453 F.2d 178 (6th ('ir. 1971). As stated
hb the Court in F/eetiwoord, .suprai at 381: "The right to rein-
statement does not depend upon technicalities relatile to
application." Accordingly. to the extent that the nine strik-
ers here specified. in their written offers. their old jobhs at
specific salaries does not turn their requests for reinstite-
ment into conditional offers To he sure, the statements
(Resp. Exhs. 1I 2. 4. 6. 7. and 8) signed bh most of the
strikers had the prefix "un" crossed out from the word
'unconditional" in the sentence which read: 'I ,oluntari\ls
and unconditionally volunteer to return to work." I'he rec-
ord shows that in each instance the men orall, conimmuni-
cated to Respondent's supervisor. Cantrell, their desire to
return to work. At Cantrell's insistence, they were required
to sign the prepared forms and in each case Cantrell cross
out the "un" when the men had indicated their desire to
return to their old job. Although ('antrell testified that he
carefully explained these changes to the men. I cannot
credit his testimony in this regard in \iew of the unanimous
and forthright testimony of the men that thes did not recall
whether the word had been changed at the time thes affix-
ed their signatures. Indeed, Marinous clearly stated that he
signed the statement with the word "unconditional" unal-
tered. Since Cantrell took it upon himself to make this
change in the prepared form upon the striker's request for
his old job. I conclude that Respondent's erroneous inter-
pretation, i.e., a striker's request for his old job amounts to
a conditional offer to return, cannot be imputed to the
employees. I am further convinced that even If Cantrell
had pointed out the change of the word to the emplo_,ces, at
the time they signed the documents. the, were certalinls it
639
DECISIONS OF NAT1IONAL LABOR RELATIONS BOARD
aware of the potential significance of the change. Under
the factual circumstances of this case. where seven strikers
expressed their desire to return to work orally and in writ-
ing. and where Brock made his request orally to Respon-
dent's secretary and where Hensley drafted his own written
request, I conclude that the nine men made unconditional
offers to return to work.
2. Failure to reinstate strikers
The General Counsel maintains that Respondent failed
to recall the nine discriminatees when vacancies arose in
positions for which they were qualified. Respondent was
under an obligation to offer positions, especially for gener-
al laborerjobs, to those employees who had made uncondi-
tional offers of reinstatement. The Board held in Little
Rock Airmotive. Inc., 182 NLRB at 672 (1972):
. . .the Laidlaw doctrine applies when any job comes
open which a replaced economic striker who has not
lost his employee status could fill, not merely when the
specific replacement leaves who was hired during the
strike to take his job.
During the first 3 months of 1977. Respondent hired the
following new employees in generally unskilled positions
for which all nine strikers could have been qualified: (1)
John Kenny. January 2, 1977. laborer (G.C. Exh. 3): (2)
Martin Robertson, January 21, 1977, painter (G.C. Exh. 3):
(3) Calvin Kinnie, January 14, 1977, machine shop at
$3.13/hour (i.(. Exh. 4(o) ); (4) Sammie Moore, February
22. 1977, laborer (G.C. Exh. 5): (5) Odos Roberson. Febru-
ary 25, 1977, laborer (G.C. Exh. 3. 5); (6) Donnie Burns,
March 16. 1977, laborer (G.C. Exh. 5); (7) Mr. Long,
March 25, 1977, unskilled transfer work; (8) Roger Reifs-
tock, March 30. 1977. laborer (G.C. Exhs. 2, 5); and (9)
David Polson, by April 4, 1977, foundry helper (G.C. Exh.
2).4 These positions should have been offered to the strik-
ing employees in the order in which they applied for rein-
statement: (I) Brock, (2) Marinous, (3) Parks, (4) Stidman,
(5) Moffet. (6) ltensley., (7) Barowski, (8) Kunselman, and
(9) Bishop. The new employees received the jobs. Respon-
dent by its failure to offer to the nine strikers any of the
positions listed for which they were clearly qualified, vio-
lated Section 8(a)(3) and (1) of the Act. Moreover, Respon-
dent also failed specifically to offer skilled positions to
three of the nine employees for which they were qualified.
Kunselman was entitled to an offer of reinstatement to his
truckdriver position when it became vacant, after his re-
placement left the job in mid-February 1977. Instead, de-
moted supervisor. Roxie McLaughlin was offered the posi-
tion, and when McLauglin vacated the job a week later,
employee David lentz was transferred into it. Respondent
defends its failure to recall Kunselman, claiming that the
truckdriving job was, at that time, part-time (G.C. Exh. 3).
Hlowever, even a part-time job as truckdriver should have
been offered to Kunselman, but the credible testimony of
Supervisor Mullens shows that at the time McLaughlin was
demoted to truckdriving, the job was full-time. This was
pairtially confirmed by C(antrell who admitted that the posi-
tion gradually increased to a full-timejob when Lentz was
driving. Respondent is not permitted to transfer employees
to vacant positions in order to avoid the recall of strikers.
Respondent thus discriminated against Kunselman in vio-
lation of Section 8(a)(3) and (1) by its failure to reinstate
him to his former position as a truckdriver.
Barowski was entitled to an offer of reinstatement as a
pinlift operator when it became vacant. Even though the
pinlift operator replacement for Barowski was hired during
the strike and continued to be employed, as Cantrell testi-
fied, Barowski was entitled to an offer for that position as
it became vacant. The record establishes that on March 16,
1977, William West was hired as a pinlift operator (G.C.
Exh. 5). Respondent's failure to offer reinstatement to Ba-
rowrski violated Section 8(a)(3) and (1) of the Act.
Finally. Stidman was entitled to an offer of reinstate-
ment as muller operator when a vacancy arose. Omer Bru-
no was a muller operator (G.C. Exh. 3). In mid-April 1977,
Bruno became a leadman and employee Dennis May took
over his position as muller operator. Since May was a
transfer employee, his job should have been offered to
Stidman. Respondent violated Section 8(a)(3) and (1) of
the Act by its failure to reinstate Stidman to that position.
In summary, Respondent violated the Act by its failure to
recall strikers first for general laborer positions, which, in-
stead, were filled by new employees; and second. by its
failure to recall strikers for specific skilled positions as they
became vacant.
3. Respondent's partial attempt to reinstate
Several days after the initial charge was filed with the
Board, Decker made an attempt at reinstating the nine em-
ployees. As a result, eventually four employees, Brock,
Marinous. Parks, and Hensley, returned to work: two men,
Kunselman and Bishop, declined the offer to return: and
three men, Moffet, Stidman. and Barowski. were effective-
ly denied from returning to Decker Foundry under the fol-
lowing circumstances:
Tommy Moffet: On March 7, 1977, Moffet reported to
work pursuant to Respondent's offer of reinstatement for a
machinist's position. The letter from Respondent to Moffet
(G.C. Exh. 6) offered him a machinist position, and in a
subsequent telephone conversation, Cantrell confirmed
that the opening was for a machinist. Moffet accepted the
offer with that understanding.
Instead of machinist work, however, he was first re-
quired to do heavy labor work consisting of lifting heavy
metal pieces which caused injury to his back. He was then
assigned to operating a grinding machine without training
and without the assistance of a hoist, which was customary.
In Elsing Manufacturing Co., 209 NLRB 1089, 1102 (1974).
the Board held that the assignment to a different job with-
out prior training did not constitute a valid offer of rein-
statement. Under the factual circumstances of this case,
Respondent's offer of this type of work to Moffet did not
amount to a valid offer of reinstatement. Respondent has
violated Section 8(a)(3) and (I) by its continued failure to
recall Moffet.
Ihis list differs fr'lom that prepared hs the (jeneral Counsel because the
rccid wa:s incinchlsivle a;s to whether several new employees (such as Da-
,id Lentl, (len Jones. )Douglas Mills, and Steve Williams) were hired for
skilled positilns lior which Ihe strikers were not qualified.
640
DECKER FOUNDRY COMPANY
Charles Barowski and Lloyld Slidmnan. The General Coun-
sel argues that the offers of reinstatement to Stidman and
Barowski were also invalid because thes were conditioned
upon the passing of physical examinations.
Both Stidman and Barowski were told that theN had not
passed their physical examination, and that thes had to
undergo medical treatment for their hernias before the,
could be considered for reinstatement. First of all. I con-
sider Dr. Haynes' examinations to be suspect. For him to
conclude that Daniel Brock. who had just been found qua-
lified for a chauffeur's license. was blind obviousl` casts a
touch of incredibility to his medical analysis of Stidman's
and Barowski's hernia problems. In anr, case. Respon-
dent's insistence on a physical examination prior to rein-
statement was to treat them as new employees. The Board
has affirmed an Administrative Law Judge's finding that
such treatment was discriminators in ('ront Bro/icer. (Con-
tracting Company, 158 NLRB 186, 210(1966}. The require-
ment of the physical was an additional condition to rein-
statement and, therefore, the offer of reinstatement ,Aas
invalid. Midwest Hanger Co. and Liberty Enginctring (Corp,.
221 NLRB 911, 914 (1975).
Respondent maintains that it had a continuing physical
examination policy since 1969, that application of the poli-
cy was interrupted only because of the instabilits in the
labor force created by the strike. and that its application
was renewed when the work force stabilized in the spring
of 1977. However, in my opinion. Respondent's require-
ment to subject only the strikers to the examinations was
discriminators. Respondent failed to show that existing
employees were equalls subject to this examination and
equally subject to discharge in the event they failed to pass.
And Respondent should not have required the discrimina-
tees, who retained their status as employees, to undergo
physicals required of new employees. I therefore conclude
that Respondent's disqualification of Stidman and Barow-
ski because of the physical examinations, and its continu-
ing refusal to reinstate them, violate Section 81a)(3) and (1)
of the Act.
4. The threat of plant closure
On March 4. 1977. Respondent's supervisor. Dick
Doyle. told employee Hensley's wife that the filing of the
charge with the National Labor Relations Board would
close Decker Foundry. Respondent failed to call Doyle as
a witness to deny the statement. Clearly, the comment was
coercive in nature. The fact that it was made to an
employee's spouse, rather than an employee, does not
make it any less coercive. In both Owego Street Supermar-
kets, Inc., 159 NLRB 1735 (1966) and Redwing Carriers,
Inc., 125 NLRB 322 (1959). the Board found 8(a)(1) viola-
tions when coercive statements were made to relatives of
employees. Accordingly. I find that Respondent violated
Section 8(a)(l) of the Act.
CON(I I SICNS (Of: LAW
I. Decker Foundry Company., Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Molders and Allied Workers Union.
AFI. CIO (.(.C, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Bs failing to reinstate economic strikers who had
made unconditional offers to return to work to positions
for which the' were qualified at the time the jobs became
available. Respondent violated Section 8(a)(3) and (I) of
the Act.
4. Bv threatening the wife of an emplosee with plant
closure a.s a1 result of the employees' union activity. Re-
spondent violated Section 8(a)( I) of the Act.
5. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
liit Rl ,it I )
Has ing found that Respondent has engaged in unfair
labor practices. I recommend that it cease and desist there-
from and take certain affirmative action which I find nec-
essars to effectuate the purpose of the Act.
AccordinglN. I recommend that Respondent be ordered
to make whole all nine discriminatees in the following
manner: (I) hb offering those who have been denied rein-
statement, I ommn Moffet. Charles Barowski. and Lloyd
Stidmani and hb offering Jaimes Kunselman. who w as uii-
lawffull denied the truckdricer's position. full and immedi-
ate reinstatement to their former or eulbo l w[i'i/ ,jiuilesi
positions. without prejudice to an.i serliolit\ or oiher Iright,
and privileges presiousl\ enlosed. dischairginig replace-
ments if necessar\ to make room for themIll. anlid 2) tLikil
the nine discriminatees wnhole for ans loss ot el earmla the\
mas have suffered as a result of the discriinlination aga.tiinlst
them by paying them backpaN with interest from the tune
thes should have been hired up to the time thes were alcu-
ally reinstated. or in the case of John Bishop. \,ho \a:is
offered and declined reinstatement on March 17. 1'q7. up
to said time. As explained in this l)ecision. the disciliallll-
tees should hare been hired s henl positions for hlich rlhe\
were qualified became as ailable as follows: I ).Lircl
Brock Januars 2. 1977. Gus Mlarinoeus .1ai.lsi-r\ 1[4.
1977; Frank Parks Januarx 21. 1977: I.loxd Stidman
February 22. 1977: T omms Moffet I ebruars\ 2' 1977:
Elzo Hensles March 16. 1977: Charles Barowski M;iarch
25, 1977; James Kunselman Mlarch 30(). 1977. and .ohn
Bishop April 4. 1977. Backpais and interest is to he cornl-
puted as provided for in Ifb 11'.lool/orth ( o e/rlm. 90)
NLRB 289 (1950). and Ilornda Stcel (orp/,ratlio, 231
NILRB 651 (1977). 5
Upon the basis of the foregoing findings of fact. conclu-
sions of law, and upon the entire record in this case. I
hereby issue the following recommended:
ORDER"
The Respondent, Decker Foundry C( opans. Inc.. its of-
ficers, agents, successors, and assigns. shall:
I. Cease and desist from:
Sec. gicnerailb. Ilh I ' /uft h. ' ( A 1' b, NI RB 'It, , 101,)
In the xcfnt nri eN.cptwms ,r fl it h p dd. 5rc. c< ] W'2 .( ,g ilt
Rules it.ut ReuIla.ti, Of 1 C the N, on.[i I r RI.l hK i n i s .l t h i t h di ii,
cionclud,,ons .aid rC' 1illl rC .iJCi (Ori lit ii.il l 1.1. ., .ll .lll n ll %
102 48 of the Rules .ind Reguation.ir he a.d.o td.i he 111 ' iB,l! and }hctl,,rIi .
a, finding- , condu-iii. I and ()rder .rd l h c ,hi clpl, 01.hil.
deemed for all pk1r1111Ct
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing or failing to reinstate economic strikers
who unconditionally offer to return to work and have not
been permanently replaced.
(b) Refusing to offer to reinstate employees who have
been replaced while engaged in an economic strike when
jobs become available for them after they have made an
unconditional offer to return to work, in the absence of
legitimate and substantial business justifications for so re-
fusing.
(c) In any like or related manner discriminating against
employees to encourage or discourage membership in a
labor organization.
(d) lhreatening employees or their relatives with plant
closure because of their union activity or in any other man-
ner interfering with, restraining, and coercing employees in
the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to the employees. identified in this Decision as
entitled thereto, immediate and full reinstatement, and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them in
the manner set forth above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its plant in Hfenryetta, Oklahoma, copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
bs ans other material.
(d) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
I rI the c\li tthi, ()Oidci , enlifn lced hb ai judgmnenl of the U nited Siales
(tllt ',f Ap1pl, lhe , I slle lI notce reading "Poted hb Order of the
Natlllrnld I lhol Re Kllllls Bord" lhall read *'Posted Pursuant to a Judg-
mci of tihe L nited Stats, ( Curt of Appeals Enforcing an Order of the
Natitol I h, Re lttlillls Board"
642