Eaton Warehousing Co.

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 958 (N.L.R.B. 1990)

958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Aubrey Eaton d/b/a Eaton Warehousing Company
and Philip Henslee. Case 9-CA-25955
March 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 30, 1989, Administrative Law Judge
Richard H Beddow Jr issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief
The National Labor Relations Board has delegat-
ed 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 decided to affirm the judge's rulings, findings,2
and conclusions 3 and to adopt the recommended
Order as modified 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Aubrey Eaton d/b/a Eaton Warehousing
Company, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified
1 Substitute the following for paragraph 2(a)
"(a) Offer Philip Henslee, Jean Schepers, Mark
Cobb, Mark Combs, and Louis Beatty immediate
and full reinstatement to their former jobs or, if
'No exceptions were filed to the Judge s finding that employee Hens-
lee was not a supervisor within the meaning of Sec 2(11) of the Act
2 The Respondent has excepted to some of the Judge's credibility find-
ings The Board s established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 In its exceptions, the Respondent argues that the Respondent lacked
knowledge of the reasons for the employees walkout The judge found
that although Warehouse Manager Brichacek had been told that the em-
ployees were disgruntled and were thinking of walking out on strike, he
refused to listen to any of the employees' concerns We agree with the
judge that the evidence supports a finding that the Respondent did have
knowledge of the employees' concerns We further note that the employ
ees' failure to make any specific demand or to notify the Respondent of
their reasons for their cessation of work does not render their conduct
unprotected Serendippity-Un-Ltd , 263 NLRB 768, 775 (1982), Tamara
Foods, 258 NLRB 1307, 1308 (1981), enfd 692 F 2d 1171 (8th Cir 1982),
cert denied 461 U S 928 (1983) cf NLRB v Marsden, 701 F 2d 238 (2d
Or 1983)
4 We shall modify the recommended Order to provide that the em-
ployees will be offered substantially equivalent positions if their former
Jobs no longer exist, and that any replacements hired after the original
unlawful refusal to reinstate will be dismissed if necessary to secure the
former strikers reinstatement We shall also Issue a new notice to em-
ployees
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, dismissing, if necessary, any employee hired
by Respondent after the original unlawful refusal
of reinstatement, and make them whole for any loss
of earnings and other benefits they incurred as a
result of the discrimination against them, in the
manner set forth in the remedy section of the deci-
sion "
2 Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs
"(b) Remove from its files any reference to the
refusal to reinstate them and notify them in writing
that this has been done and that evidence of the
unlawful conduct will not be used as a basis for
future personnel actions against them"
3 Substitute the attached notice for that of the
administrative law judge
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT fail and refuse to reinstate any
employee who unconditionally offers to return to
work after engaging in activities protected by Sec-
tion 7 of the Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Philip Henslee, Jean Schepers,
Mark Cobb, Mark Combs, and Louis Beatty imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, dismissing, if necessary, any employee hired
297 NLRB No 151
EATON WAREHOUSING CO 959
by us after the original refusal of reinstatement, and
WE WILL make them whole for any loss of earnings
and other benefits resulting from the discrimination
against them, less any net interim earnings, plus in-
terest
WE WILL remove from our files any reference to
the unlawful refusal to reinstate them and WE WILL
notify the employees in writing that this has been
done and that evidence of the unlawful conduct
will not be used as a basis for future personnel ac-
tions against them
AUBREY EATON D/B/A EATON
WAREHOUSE COMPANY
Eric V Oliver, Esq , for the General Counsel
Michael P O'Connor, Esq and Derak W Gustafson, Esq ,
of Cincinnati, Ohio, for the Respondent
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR , Administrative Law Judge
This matter was heard in Cincinnati, Ohio, on April 25
and 26, 1989 Briefs were subsequently filed by both par-
ties The proceeding is based on a charge filed Novem-
ber 22, 1988, 1 by Philip Henslee, an individual The Re-
gional Director's complaint dated January 3, 1989, al-
leges that Respondent Aubrey Eaton doing business as
Eaton Warehouse Company, of Cincinnati, Ohio, violat-
ed Section 8(a)(1) of the National Labor Relations Act
by failing and refusing to reinstate employees Philip
Henslee, Jean Schepers, Mark Cobb, Mark Combs, and
Louis Beatty after they made unconditional offers to
return to work following a protected strike
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following 2 s
FINDINGS OF FACT
I JURISDICTION
Respondent is engaged in the warehousing and reship-
ment of products for companies including Proctor and
Gamble Company and Continental Can Co, which busi-
nesses annually ship goods valued in excess of $50,000
from its location to points outside Ohio and it annually
provides services valued in excess of $50,000 for these
companies It admits that at all times material, it has been
an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent's general warehousing services are
controlled and supervised on a day-by-day basis by
'All following dates are in 1988 unless otherwise indicated
'P 2 of the transcnpt falls to reflect the status of exhibits Introduced
and is hereby corrected to reflect that G C Exhs 1-3 were received, that
R Exhs 1 and 3 were received, and that R Exh 2 was rejected
Ralph Bnchacek who acts as Respondent's warehouse
manager Respondent's owner, Aubrey Eaton, also Oper-
ates a trucking company (Lenox Trucking) located
nearby, but separate facilities from the warehouse Al-
though he has occasional dealings with warehouse em-
ployees, he generally leaves control of the operation to
his manager and some employees have seen Eaton only a
few times
The work force generally is composed of five to six
regular full-time employees, occasional part-time employ-
ees (including Bnchacek's son), and several full-time
temporary employees who's services are paid for
through a temporary employment service company
Philip Henslee was hired as a laborer in January 1987
He became "group" or "shift" leader in March 1987 and
worked in that position until certain events occurred in
November 1988
During the course of his employment Henslee was ex-
posed to several work situations involving problems with
equipment and which included safety as well as other as-
pects of working conditions One problem was in pallet
repair where employees used air-powered nail guns that
were subject to frequent accidental misfiring Bnchacek,
who oversaw pallet repair, delegated to Henslee the task
of setting up the system even though he had no prior ex-
perience Henslee also testified that Bnchacek then dem-
onstrated no interest in ironing out the problems On one
occasion, when Henslee attempted to point out the dan-
gers inherent in pallet repair by showing him a defective
air-powered nail gun, Bnchacek told him "fix it dumb
ass— take it apart and put it back like you found it"
Employee Louis Beatty testified that near the begin-
ning of November, he was exposed to a toxic substance
while unloading chemical containers His finger turned
yellow and began to blister His pain increased when
Henslee used burn spray on it, however, when Henslee
asked for permission for him to be taken to the hospital,
Bnchacek said no, and further denied that there was any-
thing in the warehouse that would cause the injury, even
though Beatty testified that the containers said "toxic"
on them and they previously had been warned to be alert
for cartons breaking open
Beatty also testified that he saw one employee with a
nail embedded in his wnst coming from pallet repair, and
that he was concerned about that problem as well as
electrical boxes with hanging wires, loading docks with-
out gates, a garage door that had to be operated by a
stick of wood, lack of instruction or information regard-
ing job duties, and Bnchacek's nasty and uncooperative
attitude in recognizing or dealing with problems
Employee Mark Cobb testified that he was concerned
both about the opportunity to work in pallet repair,
where extra money could be made on an incentive plan,
and the shortage of wood there as well as nail hazards
Cobb testified that he was a victim of a pallet repair hap-
penstance when a nail which was accidentally released
by a defective gun, hit him above the eye, where goggles
would offer no protection, before he was able to get his
goggles on He once attempted to speak with Bnchacek
about his teasing treatment of coworker Mark Combs,
but said that Bnchacek intimidated him Because of this
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
intimidation, he said the employees asked Henslee to go
to Bnchacek with their complaints Cobb was aware of
several accidents with the nail gun, some requiring trips
to the hospital, and he personally had received a cut in
the skin from a bouncing nail in pallet repair Henslee
suggested he report it to Bnchacek and when he did Bri-
chacek immediately responded by saying he wasn't going
to be responsible for accidents like that
Employee Mark Combs also was aware of injuries that
occurred in pallet repair and renewed a discussion of
such problems with another employee on the morning of
November 18 They also discussed the problem of com-
municating problems to Bnchacek Combs testified that
when he previously had approached Bnchacek with
questions about some paperwork that he didn't under-
stand, Bnchacek would just shrug and ignore him He
also told of a nail that went through his boot into his
foot and required a tetanus shot and resulted in a work-
man's compensation claim He also testified that Bncha-
cek regularly harassed and humiliated him in front of
other people, calling him a "fat ass" and other obsceni-
ties on a daily basis Bnchacek once told him he wanted
to put him under pressure to see if he had leadership
qualities He testified that he was intimidated by Bricha-
cek and found that whenever he attempted to communi-
cate, Bnchacek would either get highly upset or just
ignore him
On November 18, a delivery truck driver informed
Henslee that the pallets he was delivenng were "spe-
cial" Henslee therefore put the pallets in storage but
later noticed that other employees were loading Chnst-
mas packages onto these pallets He went to Bnchacek
to inquire about the purpose for which these "special"
pallets were to be used Bnchacek "exploded" and called
Henslee a few "choice words" and walked out on him
When Henslee told his crew members of his encounter
with Bnchacek, they discussed a walk out and encour-
aged Henslee to see if Bnchacek would be willing to
meet with them to discuss their concerns Henslee testi-
fied that when he again approached Bnchacek he said
the employees were very disgruntled and were talking of
striking Bnchacek just gave him a sarcastic look and
then abruptly walked away before he could state any
reasons
Henslee returned to Combs, Cobb, Beatty, Erma
Schepers, and Mark Flagg (all the regular employees),
and all except Flagg agreed to walk out to protest Bri-
chacek's avoidance of their complaints Henslee again
tried to talk to Bnchacek and again Bnchacek ignored
him, even though Henslee stated that they were walking
out on strike and were going down to Lenox Trucking
to talk to Eaton, the president of the Company
Bnchacek admitted that Henslee approached him on
Friday, November 18, and told him he needed to talk to
him or they were going to walk but that he told Henslee
he was too busy (he was driving a forklift and unloading
a truck) He agrees that Henslee approached him again a
short while later and said they needed to talk and that he
said he "didn't have time nght now"
When the employees reached nearby Lenox Trucking
they were told Eaton was out of town and would not be
back until Monday morning They then returned to Re-
spondent's office to pick up their paychecks Henslee
again confronted Bnchacek and asked if he would be
willing to talk Bnchacek's only response was to say
"you pulled the crew, you walked"
On Monday, November 21, Henslee and the other four
employees again went to Eaton's office Henslee spoke
with Eaton alone telling Eaton that he and the employ-
ees had walked out on Friday because Bnchacek would
not talk to them He also told Eaton they were having
too many problems with Bnchacek but he was cut short
by Eaton who said it was Bnchacek's problem Eaton
appeared reluctant to listen to any details but responded
that he would talk to Bnchacek and would get back to
Henslee
After talking with Eaton, Henslee and the others went
back to see Bnchacek as they believed it to be apparent
that Eaton was not going to offer much assistance Hens-
lee went in to talk to Bnchacek and told him that the
employees wanted to return to work, and Bnchacek re-
sponded "Work, you guys walked out on me last Friday,
remember9" Bnchacek then got up and walked out on
the employees and they left shortly thereafter
The next day, November 22, Henslee called Eaton and
was told by Eaton that he would have to go by Bncha-
cek's feelings that since they had walked off the job he
didn't want them back anymore Eaton testified that
when Brichanek told him this Bnchacek also told him
that he had enough people to do the job and did not plan
on replacing them That same day Beatty, Combs, and
Cobb each met with Bnchacek Beatty testified that he
individually begged for his job back but that Bnchacek
told him that he was suspended pending investigation
Dunng the same conversation Beatty mentioned specific
pallet repair problems and Bnchacek's apparent attitude
Bnchacek accused him of going over his head when he
attempted to take his concerns to Eaton and also stated
that he might have to hire replacements inasmuch as the
walkout put him in a bind, however, nothing was said
about Beatty's position being already filled by a perma-
nent replacement
Combs and Cobb testified that they went together to
see Bnchacek and asked if they were fired or anything
Bnchacek said wait a minute and brought them to his
office They told him they wanted to come back to work
and he said to hold on He then questioned them about
what was going on and asked why they hadn't come to
talk to him They replied that they tried to do so but he
wouldn't talk to them and Combs specifically mentioned
the teasing problem They testified that nothing was said
about their being replaced and, because Bnchacek's dis-
position was uncharacteristically pleasant, they got the
impression they would go back to work They asked Bn-
chacek if he would let them know by Monday and he
replied he hoped it would be before then but that they
were suspended, pending investigation The following
Monday, the employees were informed that they had
been terminated Beatty testified that when he went to
get his last paycheck Bnchacek told him that Respond-
ent could not reinstate them because such would send a
message out to other employees that they could walk off
their jobs with impunity but he offered to give him a
EATON WAREHOUSING CO 961
good reference Cobb also testified that Bnchacek of-
fered to give him a good reference
Henslee also testified that Monday, November 28, after
he had filed a charge with the Board, he went to Bncha-
cek and stated that he would be willing to drop the
charge if Bnchacek agreed to reinstate Schepers, Combs,
Cobb, and Beatty with the understanding that he not be
reinstated, Bnchacek's only reply was to say that "you
have nothing against me and the National Labor Rela-
tions Board can't touch me
Employee Richard McGowan testified that he began
working at Respondent's facility in October as an em-
ployee of (and paid by) Abba Temporary Services and
was so employed on November 18 when the regular em-
ployees walked out He continued doing his same task
for about 3 days until Bnchacek asked if he could oper-
ate a forklift He could and began doing so right after
Thanksgiving as did another temporary employee Mark
Newton and Mark Flagg, a regular employee who previ-
ously had not operated the forklifts In January 1989,
McGowan filled out an employment application with
Respondent and became a regular employee on Respond-
ent's payroll
Newton testified that he began work as an Abba tem-
porary employee at Respondent's warehouse in Septem-
ber and a regular employee of the Respondent around
January 4, 1989, when his rate of pay went up $1 an
hour
III DISCUSSION
The issues in this case arose over a brief work stop-
page which followed a series of employee problems with
working conditions and the failure of Respondent's pri-
mary supervisor to acknowledge or communicate with
employees regarding these concerns When the employ-
ees who walked out attempted to return to work their
offer was ignored and they subsequently were informed
they were suspended and terminated Respondent's de-
fense of its actions is based upon its assertions that the
employees were not engaged in a protected concerted
activity, that it had no knowledge that the employees
were engaged in such an activity, and that it properly re-
placed these employees with permanent replacements
A Concerted Activity and Supervisory Status of
Philip Henslee
On brief, Respondent peripherally pursues an argu-
ment concerning Henslee's supervisory status, however,
the record clearly supports a conclusion that he is not
shown to have been a supervisor within the meaning of
Section 2(11) of the Act at the time of his separation
from employment 3
The independent testimony of several employees
shows that prior to the work stoppage, they had dis-
cussed their concerns over various working conditions,
3 Henslee was a senior lead employee who merely conveyed routine
directions and assignments to less expenenced employees and he spent 50
percent or more of his time doing the same work as the other employees
and he is not shown to exercise any of the traditional indicia of supervi-
sory status requiring Independent judgment or other than on a sporadic
or occasional basis, see Munford, Inc , 266 NLRB 1156, 1161 (1983)
including exposed wires, toxic chemicals, abusive treat-
ment by Manager Bnchacek, and Bnchacek's consistent
reluctance or refusal to acknowledge or respond to at-
tempted communication of problems by individuals Al-
though a preliminary concern of the day of the walkout
was Bnchacek's profane and abusive "outburst" and his
refusal to communicate with Henslee concerning the use
of certain pallets, this concern was not personal to Hens-
lee but was a manifestation of an accumulation of con-
cerns that were exemplified by Bnchacek's repeated re-
fusal to acknowledge or discuss problems at the work-
place The several employees jointly discussed and
agreed upon an attempt to further communicate their
concerns to Bnchacek, with Henslee as their spokesman
This attempted communication was avoided and rejected
by Bnchacek twice before the employees jointly left the
workplace and attempted to take their concerns to the
owner of the company
Here, the employees' concerted walkout was based on
good-faith joint conCerns and not on one individual's
personal benefit, see Interior Alterations, Inc , 264 NLRB
677 (1982), otherwise, there is no indication that the em-
ployees engaged in any violent, disloyal, or inherently
egregious activity that, under some circumstances, might
adversely effect their rights to protection under the Act
Accordingly, I conclude that the strike was a protected
concerted activity based on the employees' reasonable
belief that Respondent was engaged in practices that ad-
versely affected the terms and conditions of their em-
ployment
B Respondent's Knowledge of Protected Activity
Manager Bnchacek supervised a small work force of
six regular employees as well as at least two full-time
temporary employees and some additional part-time em-
ployees It is shown that employees had in the past at
least made him aware of such things as unsafe working
conditions and concerns over abusive treatment, even
though he generally attempted to limit such communica-
tion efforts and he rejected or often failed to acknowl-
edge or respond to employees' attempts to communicate
Under these circumstances, I find that Respondent's
own action in affirmatively avoiding and refusing em-
ployee-supervisor communication in itself constituted a
'condition of work which is a proper subject of protected
concerted activity by employees and Manager Bnchacek
must be held to be aware of his own actions in failing
and refusing to talk with the employees Otherwise, Bn-
chacek admits that twice on November 18, before the
employees left work, Henslee told him they need to talk
or the employees were going to walk and that each time
he said he was too busy, 4 and rejected any further com-
munication It is apparent that he was aware of a prob-
lem serious enough for the employees to consider a
walkout yet did not attempt to ascertain the nature of
the employees' concerns and, under these circumstances,
Respondent cannot blind itself to the surrounding actions
4 He was "busy" not on any supervisory function, but in driving a
forklift, a task that could have been done by several of the employees if
he had taken the time to speak to Henslee
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and claim that it did not know the walkout was based
upon a protected activity
This is especially true where Respondent's own actions
(by both Manager Bnchacek and Owner Eaton) in refus-
ing to receive or acknowledge attempted communication
from employees is the cause of its alleged lack of knowl-
edge Neither manager or owner can say, in effect,
"don't bother me, I don't want to hear about it" and
thereby be relieved of all responsibilities under the Na-
tional Labor Relations Act Respondent's failure to allow
communication of the specific nature of employee con-
cerns must be considered to be done at Respondent's
peril and I therefore impute constructive knowledge to
Respondent of the employees' concerns about working
conditions and their desire to act collectively to resolve
such concerns
Accordingly, I further conclude that Respondent must
be held to be knowledgeable of the concerted nature of
the employees' activity when it refused to accept the em-
ployees' offer to return to work and thereafter more of
his time doing the same work as the other employees and
he is not shown to exercise any of the traditional 'nth=
of supervisory status suspended and discharged the em-
ployees know to be participants in the walkout, see MCI
Mining Corp, 283 NLRB 698 (1987), enfd 849 F 2d 609
(6th Cir 1988), not published
C Refusal of Reinstatement
It is well established that when unrepresented (nonun-
ionized) employees jointly participate in withholding
their services (strike) for the purpose of pressuring their
employer into resolving to their satisfaction grievances
over their rates of pay, wages, hours, or working condi-
tions, they engage in "concerted activities for the pur-
pose of collective-bargaining or other mutual aid or pro-
tection" within the meaning of Section 7 of the Act, and
it is a violation of the Act for their employer to dis-
charge, suspend, or otherwise interfere with, restrain, or
coerce them for engaging in such activity See San Diego
County Assn, 259 NLRB 1044 (1982), and cases cited
therein
As indicated above, Respondent knew that the em-
ployees were withholding their services and that it is
otherwise established that it was for this reason only that
Respondent subsequently suspended and then terminated
all the participating employees These persons continued
to be employees within the meaning of the Act following
the November 18 walkout and they were entitled to full
reinstatement to their former positions at the time they
made unconditional offers to return to work, see NLRB
v Fleetwood Trailer Co, 389 U S 375 (1967), Bingham
Willamette, 282 NLRB 1192 (1987) Here, the record
show that Henslee made an initial unconditional offer for
all these employees to return to work to Bnchacek on
Monday, November 21 after their brief visit to see
Owner Eaton This offer was not accepted but was met
with the comment "work? you guys walked out on me
last Friday, remember?" and Bnchacek's own action of
walking out on the employees, an action that clearly
constitutes a rejection of the offer on behalf of the Re-
spondent The next day Beatty, Combs, and Cobb indi-
vidually made unconditional offers to return that also
were rejected and met with suspension, followed by spe-
cific termination the following Monday
As shown by the General Counsel, the evidence re-
flects that two individuals were allegedly hired to perma-
nently replace the strikers, however, they were not hired
until January 1989 (Mark Flagg, also alleged to be one
of the permanent replacements was already a permanent
employee as of the morning of the walkout) Here, after
the walkout, and after the initial offer to return to work,
temporary employees begin to perform more of the tasks
usually performed by the regular employees however, it
is clear that Respondent made no attempt to make these
persons its own regular employees until well after its re-
taliatory actions were taken against the strikers Accord-
ingly, I find its assertions in this regard to be pretextual
Under these circumstances it is undisputed that the dis-
criminatees herein were suspended and terminated in lieu
of reinstatement because of their participation in activity
that otherwise is show to be protected and concerted see
MCI Mining, supra, and, accordingly, I conclude that
Respondent's action in this regard is shown to be in vio-
lation of Section 8(a)(1) of the Act, as alleged
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Philip Henslee was at all times material herein an
employee within the meaning of Section 2(3) of the Act
and not a supervisor within the meaning of Section 2(11)
of the Act
3 By failing and refusing to reinstate employees Philip
Henslee, Jean Schepers, Mark Cobb, Mark Combs, and
Louis Beatty after they made unconditional offers to
return to work following a lawful, protected strike, Re-
spondent engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
The Respondent having discriminatorily failed to rein-
state five employees who engaged in a lawful, protected
strike, I find it necessary to recommend that Respondent
be ordered to reinstate these employees to their former
jobs or, a substantially equivalent position, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of
earnings they may have suffered because of the discrimi-
nation practiced against them by payment to them a sum
of money equal to that which they normally would have
earned from the date of the discrimination to the date of
reinstatement, in accordance with the method set forth in
F W Woolworth Co, 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), 5 and that Respondent expunge from
5 Under New Horizons, Interest Is computed at the short-term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621
EATON WAREHOUSING CO 963
its files any reference to their suspension and discharge
and notify them in writing that this has been done and
that evidence of the unlawful discharge will not be used
as a basis for future personnel action against them
Otherwise, it is not considered to be necessary that a
broad order be issued
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, Aubrey Eaton d/b/a Eaton Ware-
housing Company, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall
I Cease and desist from
(a) Failing and refusing to reinstate employees who un-
conditionally offer to return to work after engaging in
activities protected by Section 7 of the Act
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Philip Henslee, Jean Schepers, Mark Cobb,
Mark Combs, and Louis Beatty immediate and full rein-
statement and make them whole for the losses they in-
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
curred as a result of the discrimination against them in
the manner specified in the remedy section, and expunge
from its files any reference to their suspension and dis-
charge and notify them in writing that this has been done
and that evidence of the unlawful suspension and dis-
charge will not be used as a basis for future personnel
actions against them
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records, payroll reports, and other documents necessary
to analyze the amount of backpay due under the terms of
this Decision
(c) Post at its Cincinnati, Ohio, facility copies of the
attached Notice marked "Appendix " Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly 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 Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al
(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
7 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 Nation-
al 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"