F. M. Homes, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1978

235 N.L.R.B. 648 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. M. Homes, Inc. and San Bernardi-
no/Riverside/Imperial Counties District Council
of Carpenters, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO. Case 21-CA-
15217
April 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 18, 1977, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter the General Counsel and
Respondent filed exceptions and supporting briefs
and Respondent filed an answering 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, as
modified herein.
Although the Administrative Law Judge found that
the employees' walkout was protected activity, he
concluded that they had not been discharged and
that the statements made to Respondent on behalf of
all employees by Eisele, a union representative, did
not constitute an unconditional offer to return. He
found that seven employees subsequently made
individual unconditional offers to return and that
Respondent violated Section 8(a)(1) by refusing to
reinstate these employees, but that, since the remain-
ing employees who walked out had not made
unconditional offers to return, the failure to reinstate
them did not violate Section 8(a)(1).'
The General Counsel excepts contending that the
Administrative Law Judge erred in failing to find
that Respondent discharged all employees who
walked off the job and that either the union represent-
ative made an unconditional request for reinstate-
ment or such a request would have been futile. We
agree.
On Wednesday, November 3, 1976, after Respon-
dent announced production schedules would be
increased, 42 of its 87 production and maintenance
employees walked off the job demanding a wage
l The complaint alleged that Respondent had discharged 42 employees;
at the start of the hearing the parties stipulated that 42 named persons
walked off the job demanding a raise. Later in the hearing the Administra-
tive Law Judge granted the General Counsel's motion to delete one name
from the list of alleged discriminatees. The Administrative Law Judge found
that 2 of the remaining 41 alleged discriminatees, James Campbell and
Robert Stockhamp, were supervisors within the meaning of Sec. 2(11) of the
Act; we agree.
235 NLRB No. 67
increase. Picketing began the next day. That morning
the employees and Respondent's owners, Spencer
and Foley, met to discuss the employees' demands,
which included a 25-cent-per-hour raise and the
dismissal of Foreman Stark. Respondent's position
was that there would be no pay raise, but that
employees who punched in by 11 a.m. would be paid
for the entire day and those who did not have their
tools could return the following morning. After
discussing this offer, the employees sent a message
that they would return to work if Respondent would
discharge Foreman Stark as a sign of good faith.
Foley replied that "nobody was going to tell him how
to run the plant . . . and that anybody who walked
out was out of a job." After receiving this message,
the employees offered to return for a 10-cent raise;
Foley rejected their offer.
On November 5 the picketing continued. Employee
Margaret Shack, who had walked out on Wednes-
day, reported to work at the usual time. Upon
finding her timecard missing, she went to the office
where Foreman Stark told her that she had been
terminated. She stated that she was reporting in
reliance on Foley's statement that employees report-
ing that morning would be permitted to return to
work; Production Manager Poindexter then told her
that everyone who had walked out had been terminated
and that there would be no exceptions. At 10 a.m. that
morning Respondent distributed final checks to the
striking employees.
That afternoon a representative of the Carpenters
Union, Eisele, met with the employees and offered to
represent them if they would sign authorization
cards. After cards were signed, Eisele and three
employees went to the plant to speak to the owners.
Neither of the owners was present but Eisele talked
to Spencer on the phone. That credited evidence 2
showed that, in talking to Spencer, Eisele stated he
wanted the employees to go back to work; and that
Spencer stated emphatically that he wouldn't rehire
anybody who had been out of work. The phone
conversation continued for half an hour, with Eisele
repeatedly requesting a meeting and Spencer reiterat-
ing his position that no one who walked out would be
rehired. Respondent's comptroller, who was present
while Eisele spoke with Spencer, and two employees
who had accompanied Eisele testified that in the
course of the conversation Eisele used the words
"bargain" and "negotiate." Later that afternoon
2 Although the Administrative Law Judge found that Eisele's testimony
was "something less than crystal clear and tends to being equivocal," he
specifically credited Eisele's testimony that he "wanted the people to go
back to work and Mr. Spencer told me emphatically that he wouldn't rehire
anybody that had been out of work."
648
F. M. HOMES, INC.
Eisele again spoke with Spencer by phone and a
substantially similar conversation took place.
On November 9, 1976, eight picketers, including
Campbell and Stockhamp, met with Foley and made
individual unconditional offers to return to work.
Foley said he would give them his answer the next
morning. When one of them called back the next
day, Foley's secretary stated that Foley said that they
all had been terminated and that anyone who was on the
picket line could not come back to work under any
circumstances. That same morning, November 10,
employee Margaret Shack went to the office seeking
to return to work and was told by the secretary that
her position had been filled and that any position she
could hold had been filled. Employee Edward
Scanlon also went to the plant that day to apply for
his job and likewise was told by the secretary that his
job had been terminated and would be filled by
someone else.
Based on the foregoing, we find that Respondent
discharged all employees who walked off the job
demanding a wage increase. Respondent repeatedly
stated that any employee who had walked off was
terminated and reiterated its unchanged and un-
equivocal position three times on November 5 and
10. Moreover, Respondent's conduct was entirely
consistent with these statements for it refused to
reinstate all the employees who offered to return.
We also reject the Administrative Law Judge's
finding that Eisele did not make an unconditional
offer to return for the employees because he em-
ployed the terms "bargain" and "negotiate" in the
same conversation. Expressions of a desire to repre-
sent employees in collective bargaining are not
incompatible with an unconditional offer to return
made on their behalf.3 The Administrative Law
Judge specifically found that Eisele wanted the
employees to go back to work4 and that Spencer
emphatically stated to Eisele that no one who had
walked out would be rehired. Further, there is no
testimony indicating Eisele attached any conditions
to his statements regarding his desire to see the
employees return to work.
In our opinion it is clear that after November 5 any
offer to return would have been futile, as the message
of futility had been clearly conveyed by Respon-
3 We reject the Administrative Law Judge's inference that "much more
than a simple and straight forward unconditional offer to return to work
. . . must have occurred because . . . the conversation . . . lasted
approximately 30 minutes" and Respondent's contention that subsequent
individual unconditional offers to return to work would not have been made
had Eisele's statement been an unconditional offer. In our view, neither the
length of this discussion nor the subsequent individual offers is inconsistent
with an unconditional offer on behalf of all employees.
4 As found by the Administrative Law Judge. nothing in the Act
precludes a minority representative from acting as the employees' agent for
the purpose of requesting reinstatement. N. LR.B. v. Phaostron Instrument
and Electronic Company. 344 F.2d 855 (C.A. 9, 1965), enfd. 146 NLRB 996
dent's statements to Shack and Eisele that employees
who had walked off would not be rehired and that no
exceptions would be made. That such was the case
was proved by Respondent's rejection of all the
offers made on November 10.5
Accordingly, we find that by discharging employ-
ees who engaged in protected concerted activity, and
by failing to reinstate them upon an unconditional
offer to return made on behalf of all employees,
Respondent violated Section 8(a)(1). In order to
remedy Respondent's unfair labor practices, we shall
order that the unlawfully discharged employees be
offered immediate reinstatement and we shall also
order backpay from November 5, 1976, until a valid
offer of reinstatement, 6 to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).7
We shall also order Respondent to cease and desist
from in any other manner infringing upon its
employees' rights guaranteed in Section 7 of the Act.
We find that such a broad order is necessary to
satisfy the remedial objectives of the Act because the
discriminatory discharges reveal an attitude of oppo-
sition to the purposes of the Act.
ORDER 8
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Administrative Law
Judge, as modified below, and hereby orders that the
Respondent, F. M. Homes, Inc., Edgemont, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraphs l(a) and (c) and substitute
the following:
"(a) Discriminating against employees who engage
in protected concerted activities by discharging and
refusing to reinstate employees who make uncondi-
tional offers to return to work after having engaged
in strike activities to protest working conditions."
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act."
(1964); N.LR.B. v. I. Posner, Inc., 304 F.2d 773 (C.A. 2, 1962). enfg. in
relevant part 133 NLRB 1567 (1961).
I It is well established that discharged strikers are not required to make
an offer to return when to do so would be futile. Eagle International Inc., 221
NLRB 1291 (1975). Nor would a futility finding be precluded by the fact
that some of the employees subsequently made individual offers to return.
Cf. Evergreen Helicopters, Inc., 223 NLRB 317 (1976).
6 Eagle International, Inc., 223 NLRB 29 (1976); The Colonial Press, Inc.,
207 NLRB 673(1973); Courtesy Volkswagen, 200 NLRB 84 (1972).
7 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
8 N.LR.B. v. Enrwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Delete paragraphs 2(a), (b), and (d), substitute
the following as paragraph 2(a), and reletter the
subsequent paragraphs accordingly:
"(a) Offer to employees discharged for engaging in
strike activities to protest working conditions imme-
diate and full reinstatement to the job or position
formerly held by each of them, or, if that job no
longer exists, to a substantially equivalent position
without prejudice to their seniority rights and other
rights and privileges, discharging, if necessary, any
replacements, and make each whole for any loss of
pay he or she may have suffered by reason of
Respondent's November 5, 1976, refusal of the
unconditional application made on behalf of all
employees, from November 5, 1976, to the date of a
valid offer of reinstatement, in conformity with the
Decision herein."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL.ATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportuni-
ty to present evidence, it has been decided that we
violated the National Labor Relations Act, and we
have been ordered to post the following:
WE WILL NOT discriminate against employees
who engage in protected concerted activities by
discharging and refusing to reinstate employees
who make unconditional offers to return to work
after having engaged in strike activities to protest
working conditions.
WE WILL NOT inform employees who engage in
protected concerted activities who seek to return
to their jobs that they have been terminated.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer to the employees discharged for
engaging in strike activities to protest working
conditions immediate and full reinstatement to
their former positions, or, if those jobs no longer
exist, to substantially equivalent jobs without
prejudice to seniority or other rights and privi-
leges, discharging, if necessary, any replacements,
and make them whole for any loss of pay they
may have suffered by reason of our refusal to
reinstate them.
F. M. HOMES, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Riverside, California, on April 12,
13, and 14, 1977. The charge was filed by San Bernardi-
no/Riverside/Imperial Counties District Council of Car-
penters, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO (herein called the Union), on Novem-
ber 10, 1976.' On December 17 a complaint issued alleging
that F. M. Homes, Inc. (herein called Respondent),
violated Section 8(a)(l) of the National Labor Relations
Act, as amended, by discharging some 42 named strikers
because they had engaged in protected concerted activities,
refused to reinstate said employees after the Union made
an unconditional offer to return to work on their behalf,
refused to reinstate individuals who made further uncondi-
tional offers to return to work, and threatening to termi-
nate employees because they engaged in protected concert-
ed activities. On December 23 Respondent filed its answer
denying the commission of any unfair labor practices as
alleged in the complaint.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in the manufacture
of mobile homes and maintains a facility located at 22135
Alexandra Street, Edgemont, California. In the course and
conduct of its business operations, Respondent annually
sells and ships goods and products valued in excess of
$50,000 directly to customers located outside the State of
California. Respondent's answer admits, and I herewith
find, Respondent to be, and at all times material herein to
have been, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I herewith
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The primary issue is one of discerning fact from fiction in
light of the confusing and conflicting testimony and
thereafter to determine which employees, if any, made
unconditional offers to return to work. A collateral issue
concerns a determination of the status, employee vis-a-vis
I Unless otherwise specified, all dates hereinafter shall refer to the
calendar year 1976.
650
F. M. HOMES, INC.
supervisor, of two involved individuals, Robert Stockhamp
and James Campbell.
B. The Evidence
The Company commenced operations in March, and in
early October Joe Foley and Jack Spencer became its new
owners. Edward Warne is Respondent's controller and
general office manager and was employed by the former
owners in a similar capacity. Bill Poindexter is the
production manager and Jim Stark is a foreman for
Respondent. Foley, Spencer, Poindexter, and Stark are
each alleged, and admitted, to be supervisors within the
meaning of Section 2(11) of the Act and agents of
Respondent within the meaning of Section 2(13) of the Act,
and I so find.
Although not always met, prior to November 3 Respon-
dent's regular production quota was four mobile home
floors a day. Information regarding an increase in produc-
tion schedules was generally communicated to all employ-
ees on November 3. During that morning's break, which
occurred at 9:20 a.m., some of the employees decided they
would like to have a meeting to talk about getting a raise.
One of the employees, Eugene Carrillo, made an an-
nouncement on the intercom for all employees to go to the
production area by the lunch room. Some 30 to 40
employees gathered there. Within a few minutes, Bill
Poindexter joined the group and inquired as to why they
were not at work. Eugene Carrillo stated that they,
"wanted to have a meeting about getting a raise because we
were going up in production and that means we would
have to be putting out another floor a day, and that we
wanted to talk about a raise." Poindexter replied by saying
they were supposed to be working and he wanted them to
go back to work and when they reached five floors a day
there would be a bonus system. James Campbell spoke up
on behalf of the employees and in essence said that they
had previously been promised bonuses which had not been
forthcoming. Poindexter replied that he did not want to
discuss it; that he wanted the employees to go back to work
or punch out. Thereafter, a number of employees proceed-
ed to punch out and gathered in the parking lot.2
Shortly thereafter, Warne approached the group in the
parking lot and inquired concerning their grievances. He
was told that they had wanted to talk about a 25-cent raise
but that Poindexter had told them either to go back to
work or hit the clock. This conversation was concluded
when Warne told them to either "go back to work, go back
in or get off the parking lot." The employees moved across
the street where there was an abandoned restaurant and
talked about getting a raise. They decided that they would
talk to some of the people who remained inside during
break time and at lunch time. That afternoon about 4
o'clock, the employees went to Margaret Shack's house,
which was just about a block away from the plant, to make
a list of their grievances.
Early the next day the individuals again met at the
vacant restaurant and decided to set up a picket line in
order to encourage some of the employees to join them. 3
2 The parties hereto stipulated to the date and time each of the 42
employees named in the complaint punched out. The timecards carried the
notation "walked off job demanding a raise. 11-3-76. with the initials 'S.
K.'"
Early that morning, apparently through the interceding
efforts of an employee who had remained at work, Richard
Garcia, a meeting was arranged between the dissident
group of employees and top management - Foley,
Spencer, and Warne. As can best be discerned, the meeting
was reasonably friendly with inquiries from the employees
regarding change of insurance benefits, their desire to have
Foreman Stark terminated, and general working conditions
including a salary raise. Members of management sought
to explain the various problems as they were raised by the
employees and Foley asked the employees to give the new
management a chance to resolve their problems. Foley
informed the group that if they punched in by 1 a.m. they
would receive pay for the entire day and for those who did
not have their tools they might return the following
morning.
After the management representatives had departed, the
rank-and-file employees remained to discuss their next
course of action. The employees then decided that they
needed some sign of good faith. They agreed to return to
work without benefit of an immediate wage increase or
without a written bonus program if Respondent would
discharge Jim Stark, who seemed to be a real thorn in the
side of the dissident employees. Garcia took this request
directly to Foley which Foley rejected and said, "Nobody
was going to tell him how to run the plant; it was up to him
to make the decisions and if the people didn't want to go
back to work, if they wanted a scapegoat, he couldn't
violate the trust of the other people in the plant, and that
anybody who walked out was out of a job. I was told to
relay that to Jim and the group. . . well, to the group. Not
specifically to Jim, but to the group."
After advising the employees of Foley's position as to
Stark, the employees then suggested that Garcia go back
and ask for 10 cents -- just any kind of good faith-and
that they would be willing to go back to work. This
message was delivered to Foley, but was rejected.
According to the testimony of Margaret Shack, on the
morning of November 5 she reported for work but, when
she went to punch in, her timecard had been removed from
the rack and she noted that other timecards of the dissident
employees were also missing. She testified that she spoke to
Stark who told her that she had been terminated. When she
told Stark that Foley had said that employees who showed
up to work on that morning would be permitted to return
to work, Poindexter, who had overheard her last remark
then told her that everyone that had walked out had been
terminated and that there would be no exceptions. Accord-
ing to the testimony of Ed Warne, the timecards had been
removed from the timecard rack because he was of the
opinion that because of a state law the employees had to be
paid off within 72 hours. He testified, however, that he was
in a position to observe the timecard area on Friday,
November 5, and that he did not at any time see Margaret
Shack. Neither Stark nor Poindexter were called to testify
by the Respondent. Bill Butler, a boyfriend of Margaret
Shack, testified that he had dropped her off in the parking
3 Respondent had approximately 87 production and maintenance em-
ployees on its payroll as of November 3.
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lot on the morning of November 5 and had observed her
walking toward the timeclock.
At or about 10 a.m. that morning, Warne delivered the
final checks to those employees who contined to remain
away from work.
James Campbell testified that there were 30 or 40
employees milling about the plant on the morning of
November 5 and that they decided that inasmuch as they
were on strike they really didn't know what they were
doing and it might be wise to get in touch with a Union. He
stated that he called the Carpenters Union and that
sometime between 12 m. and I o'clock that day Art Eisele,
a special representative of the Union, met with the
dissident employees at the abandoned restaurant across
from the plant. According to Campbell's direct testimony:
We told him what was happening; that we wanted to
talk to him about getting a raise and all that. He said
that he would give us some cards and that he would try
to negotiate for us if we would sign the union cards so it
would show that he represented us. He would be our
spokesman and negotiate with management.
So he left us the cards and gave us some pins and said
he was going down for lunch and he would be back in
an hour or so.
We all filled out union cards. He came back; we gave
him the cards, and he asked for a few people. He said
he was going to go over and talk to the management
about getting us a raise or getting us back to work
rather. He asked for a few people from the crowd to
accompany him to the plant when he went to talk to the
owners.
According to Campbell, who accompanied Eisele, they
first asked to speak to Ed Warne and told him that they
would like to talk to one of the owners. After Warne
advised them that the owners weren't there they went to
Foley's office and placed a call to Spencer. When Camp-
bell was asked to relate what he heard Eisele say to Spencer
he replied as follows:
He told him he would like to see the people on the
street back to work. I recall that he says when he sees
people on the street, wanting to go to work, and they
are refused work, that there is evidently a problem.
He was trying to set up a meeting with Spencer to
discuss it; to negotiate.
He kept trying to set the meeting up; he kept repeating
I would rather talk to you in person. That was about it.
Following the phone call they departed the office and on
the way out Campbell testified that Eisele said "that
Spencer said that we had been terminated."
The picketing continued, and on the following Monday
- which would have been November 8 - a representative
of the Aluminum Workers Union appeared on the scene
and they talked to him for some 20 or 30 minutes. It was at
this point in Campbell's testimony that he said the
employees made inquiries of the Aluminum Workers union
representative concerning unemployment compensation
and were told that they "would have to make an uncondi-
tional offer of return to work." According to Campbell,
around noon on November 9 they were talking to one of
the security guards and told him that they wanted to come
back to work. Campbell stated that the security guard said
he would take down the names of those employees who
wanted to return to work and give them to management
and someone would come out and talk about it. Campbell
stated that the names of the other employees present
besides himself were Ronnie Campbell, Margaret Shack,
June Ladd, Bonnie Orosco, Bob Stockhamp, Mike Cole,
and William Thomas. The security guard took the list into
the plant and returned to advise the group that Foley had
said he would set up a meeting for 3 o'clock that same day
if they got their picket signs out of there and totally
disappeared until 3 o'clock.
The group met with Foley at 3 p.m. and "told him we
wanted to go back to work under any circumstances; told
him we didn't want a raise; we told him we didn't want Jim
Stark; we just wanted our jobs back." Foley said he would
let them know at 10 o'clock the next morning.
According to Campbell, the next morning he called and
talked to Foley's secretary, telling her that he wanted to
know "what the answer was that Foley gave about us going
back to work." The secretary said that Foley said that
anyone who was on the picket line could not come back to
work under any circumstances; that Foley had said you all
have been terminated.
According to Margaret Shack that same morning she
went to the office in person to see about returning to work.
The secretary told her that her position had been filled and
that any position she could hold with Respondent had been
filled.
Within the next few days, the striking employees discon-
tinued their picketing activities.
Eisele was called by the General Counsel and testified
that he was a special representative for the California State
Counsel of Carpenters and that he had responded to a
telephone call from the employees requesting the assistance
of a union representative. He testified that he went to the
abandoned restaurant across the street from the Respon-
dent's plant and there met with a number of employees
whom he told he would be glad to represent, but that first it
would be necessary for them to complete authorization
cards. Cards were distributed and he left to get some lunch
while the employees talked it over and decided whether or
not they were going to sign cards. Upon his return, a
number of cards had been signed and he stated that he
assisted others in signing their cards and then he, along
with James Campbell and two women employee-represen-
tatives, went to the plant to talk to management. Eisele said
that after meeting Warne they were taken into an office
and there Spencer was called on the telephone. He testified
that he talked to Spencer for perhaps a half hour and that
he "wanted the people to go back to work and Mr. Spencer
told me emphatically that he wouldn't rehire anybody that
had been out of work." Eisele continued, "he was very
emphatic that anybody that worked for him who left, he
wouldn't rehire. A couple of times I thought I had him
convinced to meet with me." Eisele stated that Spencer
652
F. M. HOMES, INC.
agreed to call him again in the afternoon. This was done
and according to Eisele the afternoon conversation lasted
approximately a half hour and was very much a repetition
of the conversation between the two in the earlier part of
the day. On cross-examination, Eisele acknowledged that
in talking to Spencer he had told him that he (Eisele) was
ready to sit down and negotiate a contract.
Ronald Campbell, a brother of James Campbell, testified
concerning the events of November 9 when he, along with
several others, had given their names to the security guard
for the purpose of making an unconditional offer to return
to work. The balance of his testimony was merely a
confirmation of the sequence of events leading up to the
walkout which are not in serious dispute and thus need not
be repeated here.
Eugene Carrillo testified that he had gone to the
Respondent's plant in the middle of December because he
had heard rumors regarding letters having been sent
offering employees an opportunity to return to work.
Carrillo stated that Warne came out and showed him a
copy of the certified letter which had been sent to him
earlier and advised him that his job had been filled, and
that at the present time there were no job openings but he
would notify him if there was an opening to be had in the
future. He had not heard anything further from the
Company.
Edward Scanlon testified that he went to Respondent's
plant on November 10 to apply for his job and there was
told by a secretary that he had walked out, his job had been
terminated and would be filled by someone else. The
remainder of his testimony related to the fact that he had
not received a copy of the Company's letter of November
28 offering reinstatement. His testimony indicated that he
had changed address and had not made provisions for a
proper forwarding of his mail to his new address. Based on
Scanlon's own testimony I am unable to regard Respon-
dent at fault because he did not receive a letter offering him
an opportunity to return to work.
Edward Warne was the only witness called by Respon-
dent. His testimony regarding the events prior to and the
first 2 days of the walkout are not substantially different
from that heretofore set forth and need not be repeated
here. Warne testified that he arrived for work at about 6:30
a.m. on November 5 and, after talking to the security
guards, was concerned with the number of people that were
going to report for work. He testified, "I was generally all
over the place. I would observe it [the timecard rack] from
where the employees would walk in to clock in. I would
observe it from the reception room and I would watch out
of Foley's window. I just generally kept track of what was
going on." He said that there had been a problem with the
timecards someone had pulled and thrown in the trash can
out in the parking lot. "So therefore we had pulled all the
timecards and that was one of the reasons why I came in
early and my payroll girl came in early was to put the
timecards back up again because we locked them up." He
gave instructions not to put timecards of those employees
who had gone off work back in the timecard rack. He
4 During the hearing the General Counsel announced that he had
confirmed Warne's testimony regarding Burke and amended the complaint
to delete R. Burke's name.
testified that he did not see Margaret Shack approach the
timecard area on the morning of November 5.
According to Warne, on the early afternoon of Novem-
ber 5 when Eisele came in with Margaret Shack, Rose
Blajos, and James Campbell, Eisele asked if I (Warne)
could sit down and negotiate with him. Warne testified that
he told him, "I could not negotiate with him, but I would
be more than willing to listen to anything that he had to say
and I would be more than willing to convey it to the
owners." Warne then suggested that they go back into
Foley's office and Mr. San Vancel, the company purchas-
ing agent, joined the group.
Upon reaching Foley's office, the group was hardly
seated before the receptionist appeared and told Warne
that Frank Spencer was on the phone. Warne excused
himself from the group and went into anyother office to
talk to Spencer and explain the situation. After explaining
to Spencer that Eisele was there, Spencer said he would
talk to him on the telephone. According to Warne, what he
could hear from Eisele's conversation was that he [Eisele]
was ready to negotiate with Spencer; that he wanted to get
the people off the street; that he had the authority and he
did represent the people. Eisele also said, "I am willing to
sit down with you at any time and negotiate the return to
work of these people." After. Eisele hung up the telephone,
he told the group that Spencer would be calling him again
and the meeting broke up.
The remainder of Warne's testimony was concerned with
Respondent's Exhibits 1, 2, 3, and 4. Respondent's Exhibit
I is a sample copy of a letter dated December 10 which was
a followup letter to an earlier letter mailed to the striking
employees offering them an opportunity to return to work
(see Resp. Exh. 4 and 3 for the exact date of the first
mailing and the followup mailing which was either the
letter or a telegram and is indicated by Resp. Exh. 2).
Exhibit 3 is the compiled data on those employees who
actually returned to work which reflects that 13 of the 43
employees listed in General Counsel's complaint were
returned to work between the dates of December 13 and
January 5, 1977. Respondent's Exhibit 4 indicates the
mailing and the response, or lack of response, for 29 of the
remaining 30 employees set forth in General Counsel's
complaint. Warne testified that R. Burke had originally
walked out with the dissident employees, but had returned
to work and was discharged on the late afternoon of
November 4 for being drunk on the job.4 Respondent's
Exhibit 5 consists of 40 employment forms taken from the
personnel files showing the new employees hired between
November 4 and November 17.
Analysis and Legal Considerations
There can be no question but what the conduct of the
dissident employees was a labor dispute protected by the
Act. Regardless of whether the employees were acting
unwisely or unreasonable, they were acting in concert to
protest the new production standards. It has long been
settled that the reasonableness of worker's decisions to
engage in concerted activity is irrelevant to the determina-
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of whether a labor dispute exists or not and the
employees are protected under Section 7 of the Act when
they engaged in such concerted activity growing out of
their labor dispute. 5
There might have been a question presented as to
whether or not Margaret Shack was a supervisor during the
time she served as a leadperson in the cabinet department,
but her undenied and undisputed testimony reflects that as
of November I (2 days prior to the walkout) at her own
request she was relieved of all leadperson responsibilities
and Robert Stockhamp assumed those responsibilities. On
cross-examination Shack testified that when she was a
leadperson she read the "hard" cards which related what
style mobile home was being made; what cabinets were to
go in each room; what color the paneling was to be and the
type of face-frame material was to be used. She stated that
she was the only one in the department who read the
"hard" cards and that thereafter she informed the other
employees as to what they were to do. She testified that if
employees were making mistakes she corrected their errors
and instructed them on how to perform the work correctly.
Robert Stockhamp did not testify.
James Campbell testified that he was a leadman in the
final finish department and that his foreman was Elias
Blajos. Campbell testified that he was over 12 people, 4 of
whom were molders and that when new employees report-
ed for work he showed them the "ropes so to speak." He
also indicated that he made general comments and recom-
mendations to his foremen as to how the various employees
were doing, including talking to Blajos about people who
should be considered for a raise. Campbell also testified
that in the event an employee was not doing his job right
that he would talk to Blajos and that they would both write
up a warning slip and both then sign it and give it to him.
Perhaps the most candid and accurate description of the
responsibilities and authority of a leadman or leadperson
was given by Richard Garcia, who was called to testify on
behalf of the General Counsel but who was not a
participant in the "walkout." Garcia was a serviceman with
the Company at the time of the strike, but had formerly
held the position as leadman in the final department. He
testified as follows:
Q. Now, as part of your duties as a leadman, did
you consult with your superior, the foreman, about
whether to give somebody a raise or not?
A. Yes, I did.
Q. Did you make any recommendations about
giving raises?
A. I certainly did.
Q. Were those recommendations generally fol-
lowed?
A. Yes they were.
Q. What about if we had to terminate somebody;
did you make a recommendation to the foreman about
terminating?
5 See N.L.R.B. v. Mackey Radio & Telegraph Co., 304 U.S. 333 (1938);
N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962); and Leprino
Cheese Company, d/b/a Leprino Cheese Manufacturing Company, 424 F.2d
184 (C.A. 10, 1970), cert. denied 400 U.S. 915(1970).
8 See National Welders Supply Company, Inc., 129 NLRB 514 (1960);
Ohio Power Co. v. N.L.R.B., 176 F.2d 385 (C.A. 6, 1949), cert. denied, 338
A. Yes, I did.
Q. And were those generally followed?
A. In one particular case, yes.
Q. And you helped train new employees as they
came in?
A. Exactly.
Section 2(11) of the Act sets forth the definition of
supervisor as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, layoff, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibility to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
In order to be classified as a supervisor, a person need not
meet all the criteria of Section 2(11). This section is read in
the disjunctive and the presence of any one of the
enumerated powers is sufficient to render an employee a
supervisor.8 On the basis of the record evidence in this case
I conclude that James Campbell and Robert Stockhamp
did have authority to effectively recommend personnel
actions directly affecting employees working under them
and, therefore, were supervisors and are excluded from the
protection of the Act.
Margaret Shack testified that pursuant to the conference
between the employees and representatives of management
on November 4, at which time it was indicated the
employees could report to work by 11 a.m. that day and be
paid for the entire day, or for those people who did not
have their tools they might report the following morning,
she reported for work on November 5. When she did not
find her timecard in the rack, she went to the office. There
she was told by Jim Stark and by Poindexter that she had
been terminated. Warne's testimony tends to establish that
because of his concern over the number of people who
would be reporting for work on November 5, he was
watching carefully to determine who reported for work and
that had Margaret Shack shown up he would have seen
her. While there is no basis for disbelieving Warne's
testimony in this regard, nevertheless, his own testimony
indicates that he was in a number of different places that
morning and therefore might easily have missed Margaret
Shack. Neither Foreman Stark or Production Manager
Poindexter were called to testify and in the absence of
some reasonable explanation as to why they were not
called by Respondent it is reasonable to infer that if they
had been called their testimony would have been adverse
to Respondent.7 On the basis of this record evidence I shall
find that Margaret Shack made an unconditional offer to
U.S. 899; Arizona Public Service Co. v. N.LR.B., 453 F.2d 228 (C.A. 9,
1971).
? See Wigmore on Evidence, Sec. 285-290, 3rd addition; Michael andJohn
Benevento d/b/a M. Benevento Sand & Gravel Co., 131 NLRB 358 at 364
(1961); Marriello Fabrics, Inc., and Michael Marriello, 149 NLRB 333, at 341
(1968); and A B & E Foreign Car Parts, 228 NLRB 627 (1977).
654
F. M. HOMES, INC.
return to work on November 5 at the invitation of Foley
without requesting any change in her working conditions.
Contrary to the arguments advanced by Respondent's
counsel, there is nothing in the act that precludes a
minority union representative from acting as the employ-
ees' agent for the purpose of requesting reinstatement. s
However, based on the record testimony, I am not of the
opinion that Eisele never made an unconditional offer to
return to work on behalf of all of the dissident employees.
Eisele's testimony is something less than crystal clear and
tends toward being equivocal. Moreover, I am immediately
suspicious that much more than a simple and straight
forward unconditional offer to return to work on behalf of
the employees occurred because Eisele acknowledge that
the conversation between him and Spencer had lasted
approximately 30 minutes. This suspicion is supported by
the testimony of James Campbell who when asked by the
General Counsel to tell what he heard Eisele say to
Spencer, he replied:
He [Eisele] told him he would like to see the people on
the street back to work. I recall that he says when he see
people on the street, wanting to go to work, and they
are refused work, that there is evidently a problem.
He was trying to set up a meeting with Spencer to
discuss it; to negotiate.
He kept trying to set the meeting up; he kept repeating
I would rather talk to you in person. That was about it.
Margaret Shack testified that:
Mr. Eisele told him I feel that these people are still
employed here, and that all they want to do is to try to
bargain with you to return to work. He said I would
like to meet with you and discuss these problems with
you, and try to make some arrangements so these
people can return to work.
When Warne was asked what he had heard Eisele say to
Spencer during the November 5 telephone conversation,
Warne testified:
There were about four main items that was said. One
was I am ready to negotiate with you. The other one
was that I want to get these people off the street. It
disturbs me when people are on the street. Do you
believe that I represent these people. That I have the
authority to represent these people.
At the conclusion of it, he said I am willing to sit down
with you at any time and negotiate the return to work
of these people.
Each of the witnesses testified to having heard Eisele use
the word bargain or negotiate. These are not words to be
used in connection with an unconditional offer and tend to
negate the conclusion that an unconditional offer was
made. Based on an analysis of all the testimony regarding
the conversation between the union business representa-
s See N.LR.B. v. I. Posner, Inc., Posner Distributin Corp. et al., 304 F.2d
773 (C.A. 2, 1962),. affirming in relevant part 133 NLRB 1567 (1961).
tive, Eisele, and Respondent's coowner, Spencer, I am
unable to conclude that an unconditional offer to return to
work was ever made on behalf of all the dissident
employees.
The testimony of Margaret Shack, James Campbell, and
Ronald Campbell stand in the record undenied that they
were among a group of employees (James Campbell,
Ronnie Campbell, Mike Cole, June Ladd, Bonnie Orosco,
Bob Stockhamp, William Thomas, and Margaret Shack)
who spoke to Foley and clearly made an unconditional
offer to return to work when they, "told him we wanted to
go back to work under any circumstances; told him we
didn't want a raise; we told him we didn't want Jim Stark;
we just wanted our jobs back period." I shall find that the
six employees involved - James Campbell and Robert
Stockhamp having heretofore been found to be supervisors
- made an unconditional offer to return to work on
November 9.
The testimony of Edward Scanlon stands in the record
undenied that he went to Respondent's plant approximate-
ly at I o'clock in the afternoon on November 10 in an
effort to return to work but was informed by a secretary
referred to as "Bart" that "his job had been terminated and
that's it." The secretary receptionist was not called to
testify and there was no explanation as to why she did not
testify and as indicated earlier herein it is reasonable to
infer that had 3he testified her testimony would have been
adverse to Respondent. (See fn. 7, supra;) On the basis of
this undisputed testimony, I shall find that Edward
Scanlon made an unconditional offer to return to work on
November 10.
Although there is an allegation in the complaint that the
striking employees were wrongfully discharged, there is no
8(a)(3) allegation in the complaint and there is no argu-
ment made that the strike ever became an unfair labor
practice strike. While I am able to find, on the basis of
undenied testimony, that Margaret Shack and Edward
Scanlon were wrongfully informed at a time when they
were on strike that they had been terminated, I cannot
reach the conclusion, based on this record, that the strike
was converted to an unfair labor practice strike or that
Respondent was responsible for creating a situation which
would have led the remaining strikers to believe that it
would be futile to make an unconditional offer to return to
work.
Because of the large number of new employees that were
hired as replacements by Respondent during the period
from November 4 through 22, (40 - see Resp. Exh. 5)
Respondent had no obligation to replace any of those
employees who walked out on November 4 and who may
have made an unconditional offer to return to work after
November 22. However, economic strikers who uncondi-
tionally apply for reinstatement at a time when their
positions are filled by permanent replacements remain
employees and are entitled to full reinstatement upon the
departure of replacements unless they have in the mean-
time acquired regular and substantially equivalent employ-
ment, or if the employer can sustain his burden of proof
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the failure to offer full reinstatement was for legitimate
and substantial business reasons. 9 If and when any, or all,
of those employees whom I have not found to have made
an unconditional offer to return to work, make an
unconditional offer to return to work, Respondent shall be
directed to maintain a list of the names, addresses, and
telephone numbers of such employees and make every
possible effort to inform them of future job openings unless
informed by the respective employees that they are no
longer interested in returning to work.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with its business operations
as set forth in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. Respondent
unlawfully denied striking employee Margaret Shack rein-
statement to her same or substantially equivalent job on
November 5 when she first made an unconditional offer to
return to work and similarly failed to reinstate striking
employees Ronald Campbell, Mike Cole, June Ladd,
Bonnie Orosco, and William Thomas after they made
unconditional offers to return to work on November 9 at a
time before their jobs had been filled by permanent
replacements. Respondent shall be directed to make each
of the aforenamed employees whole for any loss of
earnings each one of them may have suffered by reason of
the discrimination against him or her by payment of a sum
of money equal to that which each normally would have
earned beginning 5 days from the aforesaid dates until
reinstated, less any interim earnings during such period of
time. Backpay provided for herein shall be computed on
the basis of calendar quarters in accordance with the
method described in F. W. Woolworth Company, 90 NLRB
289 (1950). Interest at the rate of 6 percent per annum shall
be added to such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, F. M. Homes, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
9 Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (1969),
cert. denied 397 U.S. 920 (1970).
'o In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
2. Respondent, by its failure to reinstate employees
Margaret Shack, Ronald Campbell, Mike Cole, June Ladd,
Bonnie Orosco, and William Thomas interfered with,
coerced, and restrained employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby violated
Section 8(a)(1).
3. Respondent unlawfully failed and refused to rein-
state Edward Scanlon after he had made an unconditional
offer to return to work thereby interfering with, coercing,
and restraining said employee in the exercise of his rights
as guaranteed in Section 7 of the Act, all of which is
violative of Section 8(a)(1).
4. Respondent further interfered with, coerced, and
restrained employees Margaret Shack and Edward Scanlon
when it advised said employees that their respective jobs
had been terminated and that they would not be reem-
ployed, in violation of Section 8(aX 1) of the Act.
5. All other allegations of the complaint not specifically
found as violations herein shall be dismissed.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER '10
The Respondent, F. M. Homes, Inc., Edgemont,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to reinstate or otherwise discriminating
against employees who make unconditional offers to return
to work after having engaged in strike activities to protest
working conditions.
(b) Interfering with, restraining, or coercing employees in
the exercise of rights guaranteed in Section 7 of the Act by
advising employees who seek to return to work following a
concerted protest that they have been terminated.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary in order to effectuate the policies of the
Act:
(a) Offer to employees Margaret Shack, Ronald Camp-
bell, Mike Cole, June Ladd, Bonnie Orosco, William
Thomas, and Edward Scanlon immediate and full rein-
statement to the job or position formerly held by each of
them, or, if that job no longer exists, to a substantially
equivalent position without prejudice to their seniority and
other rights and privileges.
(b) Make each of the above-named employees whole for
any loss of earnings he/she may have suffered by reason of
Respondent's unlawful discrimination against them in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
656
F. M. HOMES, INC.
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Continue to maintain names addresses and telephone
numbers of all strikers who have not been reinstated and
make reasonable efforts to inform said employees of future
job openings.
(e) Post at its place of business in Edgemont, California,
copies of the attached notice marked "Appendix."
Copies of said notice, on forms provided by the Regional
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Director for Region 21, after being duly signed by
Respondent's representative shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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 material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
657