F. M. Homes, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 5, 1978235 N.L.R.B. 648 (N.L.R.B. 1978) Copy Citation 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 Copy with citationCopy as parenthetical citation