Flatiron Materials Co.

National Labor Relations Board - Board Decisions

Jul 11, 1980

250 N.L.R.B. 554 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flatiron Paving Company d/b/a Flatiron Materials
Company and Teamsters Construction Workers
Local No. 13. Case 27-CA-5825
July 11, 1980
DECISION AND ORDER
CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELI O
On November 28, 1979, Administrative Law
Judge Burton Litvack issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
Contrary to our dissenting colleague, who re-
gards Respondent's reinstatement offer to Parsons
as sufficient, we think the facts here compel the
conclusion that Respondent fully understood, and
sought to avoid, its reinstatement obligation.
Those facts establish that, at the conclusion of
the strike, Donohoe, Respondent's president, re-
jected Parsons' unconditional request for reinstate-
ment to "any position" with the statement, "No,
we don't have a job for you." It was not until after
Parsons had filed unfair labor practice charges with
the Board that Respondent informed him by tele-
phone that it had "a position available" and in-
quired "whether or not he wanted to return to
work," to which Parsons responded negatively
(emphasis supplied).
Thus, the context in which the offer was made is
as clear as the offer is vague. Donohoe's confirm-
ing letter to Parsons, however, is specific, un-
equivocal, and unconditional; for, by stating therein
that Parsons had rejected Respondent's offer of a
"full-time job . . . in your former position," Re-
spondent specifically delineated all of the requisites
of a valid reinstatement offer that its actual offer
i Respondent has excepted to certain credibility findings made by the
Administrative L aw Judge It is the Hoard's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hilily unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd 188 F2d 3h2 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing hi, findings
Inasmuch as the Administrative Law Judge did not credit testimony
that Par, ns wa* on the running board of the truck during his verbal ha-
rassment of the replacement driver. we find it unnecessary to rely on his
assumption that Parsons was aboard the truck, and we do not adopt his
accompanying rationale in Ihat regard
250 NLRB No. 80
failed to include. We cannot find on these facts, as
the Administrative Law Judge could not, that Re-
spondent's offer of reinstatement was valid or that
it was tendered in good faith.
Contrary to our dissenting colleague, we have
not concluded that Respondent's "confirming"
letter "infected the earlier telephone offer and ren-
dered it invalid." The offer was fatally defective
when made, and it reached that condition without
any help from the subsequent "confirming" letter,
which, as we pointed out supra, demonstrates "the
context in which the offer was made."
Our dissenting colleague argues that, if Parsons
had any doubt concerning the specific job offered,
Moro Motors Ltd., 216 NLRB 192 (1975), placed on
Parsons the burden of inquiring whether or not the
offer was to reinstate him to his former position.
Moro Motors, however, is inapposite, and the obser-
vation concerning inquiry contained therein is
dicta; for there the Board found that the reinstate-
ment offer was "clearly for the job . . . previously
held," and that the discriminatee "clearly did not"
have "doubts" about that. Furthermore, Parsons
was not obliged to make such an inquiry, as Ameri-
can Enterprises, Inc.,2 cited by our colleague albeit
for different reasons, makes clear. There, the Board
found adequate an offer to "hold the job open,"
but also pointed out that, where the subject of re-
turning to work is put as a question, as was done in
the instant proceeding, and not as an offer, such is
a mere inquiry concerning a discriminatee's interest
in returning to work and does not constitute an un-
conditional offer of reinstatement. Inasmuch as the
offer was not unconditional, Parsons was under no
obligation to inquire further into it, or to make a
decision to accept or reject it, and his negative re-
sponse to the offer, moreover, is of no conse-
quence. 3
Our colleague contests the Administrative Law
Judge's finding that the offer was defective because
it did not specify the position to which Parsons
would be reinstated, arguing that Board law does
not require such specificity. It is true that, in meas-
uring the degree of specificity required against the
standard of clearly indicating the position involved,
the Board has considered valid such offers as may
be construed as reasonably meeting that standard,
and the Centac Corp,4 and American Enterprises,
supra, cases, cited by our colleague, are illustrative
of that principle. Centac, however, like American
2I)) NLRH 114 (1972) See also Dobbh I/ouie\. a Division of Squibb
fBeechnut, Inc., 182 Nl RB 675 (1970) J E. Plaoric UJg. Corporalion, 131
NLRH ?99 (1961).
:' Laminaiurng Servicci, Inc. 167 NL RB 234 (1967)
4 179 N RB 313 (1969)
554
FL.ATIR()N MATFRIALS COMPANY
Enterprises, has greater significance than attributed
to it by our colleague.
In Centac. an offer to "report to work as soon as
possible," which was found to be valid by the
Board, was viewed by Member Jenkins in his dis-
sent as not being unequivocal because, inter alia, it
failed to address the real possibility of a recurrence
of the discriminatory conduct. That possibility is
present here also. Parsons already had been victim-
ized by termination because of his participation in
the strike and by Respondent's unlawful refusal to
reinstate him to "any position" at the time of his
refusal to accept a position because "he felt that he
would be discriminated against because of the
strike." In view of the foregoing, he had good
cause to be wary, and Respondent should have re-
sponded by tendering him an unequivocal offer if,
indeed, it had a good-faith intent to employ him. It
chose, however, not to allay his expressed fear of
future discrimination against him, and, instead of
reassuring him that the past is not prologue, it rein-
forced the artificiality of its offer by terminating
him. Respondent's failure to include such needed
assurance in its offer further impugns our col-
league's underlying view that the offer was ten-
dered in good faith and valid.
Inasmuch as Respondent's offer of reinstatement
to Parsons was not specific, was not unequivocal,
and was not unconditional, we find little merit in
our colleague's opposition to the Administrative
Law Judge's finding, with which we agree, that
Parsons was deprived of a reasonable time in
which to consider the offer. It is clear, as the Ad-
ministrative Law Judge found, that Respondent's
offer of reinstatement to Parsons was invalid and
did not toll its backpay liability.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Flatiron Paving
Company d/b/a Flatiron Materials Company, Fort
Collins, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
MEMBER PENELLO, dissenting in part:
My only quarrel with my colleagues' decision
concerns their adoption of the Administrative Law
Judge's finding that Respondent did not make a
valid offer of reinstatement to discriminatee Par-
sons in late February 1979, some 9 months after the
unlawful discharge occurred. Contrary to my col-
leagues, I would find that the backpay period ter-
minated with Parsons' rejection of Respondent's
offer.
The Administrative Law Judge found, and it is
not disputed, that on or about February 22, 1979,
Respondent telephoned Parsons. The conversation
began with Respondent
informing Parsons that Respondent had a posi-
tion available and asking the latter whether or
not he wanted to return to work. Parsons re-
plied that he did not wish to return to work
because as [sic] he felt that he would be dis-
criminated against by Respondent because of
the strike. Nothing more was said, and the
conversation ended at that point.5
The Administrative Law Judge found the offer
defective for two reasons. First, he stated that
"Parsons was given no time in which to consider
the offer." However, the offer on its face did not
impose a time limitation. Furthermore, as the
Board stated in an analogous situation, Parsons'
"immediate and unequivocal rejection of the offer
was obviously not influenced by any . . . lack of
opportunity" to consider it. Moro Motors Ltd., 216
NLRB 192, fn. 3 (1975).
Second, the Administrative Law Judge relied on
the fact that "the position to which Parsons would
be reinstated was not specified." However, Board
precedent does not require such specificity. Thus,
in Centac Corp., 179 NLRB 313, 322 (1969), the
Board found that the respondent made valid offers
of reinstatement when it sent letters to the discri-
minatees asking them to "report for work as soon
as possible." And in American Enterprises, Inc., 200
NLRB 114, 115 (1972), an offer to "hold the job
open" was held to be adequate, although the Board
stated that it "was not the most felicitous choice of
language," and that "an offer to the dischargees to
hold 'your' jobs open would have been preferable."
But, as the Board concluded in Moro Motors, 216
NLRB at 193, "if [the employee] had any doubts
concerning whether the offer was for the job he
previously held . . . he should have inquired." 6
' Sec IV. A, par 14. of the attached Decision Thereafter, Respondent
sent Parsons a "confirming letter" which. the Administrative Law Judge
found, misstated the facts of the telephone conversation See fn 10 of the
attached Decision I cannot follow my colleagues' reasoning that this sub-
sequent letter somehow infected the earlier telephone offer and rendered
it invalid Certainly, the Administrative Law Judge made no such find-
ing Although my colleagues deny finding that the letter retroactively In-
validated the offer. they provide no logical explanation for their reliance
on the letter, and I therefore heliese that my interpretation is warranted
I It is totally unnecessary for the majority to point out to me that
Membher Jenkins dissented in Centac, or. for that matter, that then Acting
Chairman Fanning dissented in Moro Ha' ing read those cases. I am well
aware of the positions taken h5 the participating Board Memhers Hll,-
ecer. the mere fadc that one or the other of my colleagues in the majority
dissented in the ablhe-cited cases scarcely strikes me as a sufficicnt
reasoln for this Board as an instittuion to fail to fillo,v outstanding prece-
deil
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same can be said for Parsons. Accordingly,
I would find that Respondent's offer of reinstate-
ment to Parsons was sufficient to toll its backpay
liability.
DECISION
S1ATIEMEN]I OF ITHE CASE
BURTON LITVACK, Administrative Law Judge: This
case was heard before me in Denver, Colorado, on
August 21, 1979, pursuant to an original consolidated
complaint in Cases 21-CA-5825 and 21-CA-5825-4,
issued by the Regional Director for Region 27 on
August 21, 1978, pursuant to charges filed by Teamsters
Construction Workers Local No. 13, herein called the
Union on May 16, 1978, and June 1, 1978, respectively,
and an amended complaint in Case 27-CA-5825,' issued
by the Acting Regional Director for Region 27 on May
18, 1979. The amended complaint alleges, in substance,
that Flatiron Paving Company d/b/a Flatiron Materials
Company, herein called Respondent, violated Section
8(a)(1) and (3) of the National Labor Relations Act,
herein called the Act, by failing and refusing to reinstate
an employee, Gary Parsons, after an economic strike.
Respondent filed an answer, denying the commission of
any unfair labor practices and contending that Parsons
engaged in strike misconduct by threatening and harass-
ing persons who were delivering products produced by
Respondent. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Extensive briefs were filed by the
General Counsel and by Respondent and they have been
carefully considered.
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses, and having
carefully considered the post-hearing briefs, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation duly organized under and
existing by virtue of the laws of the State of Colorado,
maintains its principal office and place of business at Fort
Collins, Colorado, and is engaged in the manufacture and
sale of ready-mix concrete products and services. Re-
spondent annually sells and ships goods and materials
valued in excess of $50,000 to firms which respectively
purchase and receive goods and materials valued in
excess of $50,000 directly from places located outside the
State of Colorado. Respondent admits, and I find, that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Il. LABOR ORGANIZATION
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
I The charge in Case 27-CA-5825-4 was resolved pursuant to an in-
formal settlement agreement and, Iherefire, was severed from the com-
plaint
III. ISSUES
1. Whether on May 10 or 11, 1978,2 Gary Parsons
made an unconditional offer to return to work following
an economic strike.
2. Whether on May 10 or 11, Respondent discharged
Parsons in violation of Section 8(a)(1) and (3) of the Act.
3. Whether, if Parsons was not terminated on May 10
or 11, Respondent violated Section 8(a)(1) and (3) of the
Act by failing and refusing to reinstate Parsons on or
about May 17.
4. Whether Respondent made a valid offer of reinstate-
ment to Parsons on or about February 22, 1979, and
thereby tolled any existing backpay liability.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent operates ready-mix concrete production
plants at Loveland, Greeley, and Fort Collins, Colorado.
At all three facilities, the Union is the collective-bargain-
ing representative of certain of Respondent's employees,
including drivers, mechanics, and yard workers. Donald
Donohoe is Respondent's general manager and president,
and Howard Schwartz is the area manager for the Fort
Collins facility. Both Donohoe and Schwartz maintain
offices at the latter facility.
The most recent collective-bargaining agreement be-
tween Respondent and the Union expired on May I. On
that date, since negotiations on a successor collective-
bargaining agreement had broken down, employees in
the aforementioned job classifications began an economic
strike and engaged in picketing at all three Colorado
facilities. In anticipation of the strike, on May 1, Dono-
hoe distributed a letter to Respondent's striking employ-
ees. The letter, in pertinent part, stated:
In view of the totally non-union climate which
exists in our industry in Loveland, Greeley, and
Fort Collins, it is our intention to continute our op-
erations in spite of the strike. You should be aware
of the fact that it is our legal right to continue our
operations. For those employees who wish to work
and return to work, employment is available. If you
choose not to return to work, it will be necessary to
seek a permanent replacement for you.
In fact, Respondent hired replacements for some of its
striking drivers at all three facilities and continued to
engage in its normal operations.
Whatever the effect of the strike on Respondent's op-
erations, by on or about May 5, striking employees at
Greely and Loveland either began returning to work or
informing Respondent of their intent to return to work
on the following Monday, May 8. According to employ-
ee Ronald Beeson, a mechanic employed at both the
Greeley and Loveland facilities, on or about May 3, he
spoke to Shcwartz concerning Respondent's May I letter
and the possibility of his return to work. Beeson told
Schwartz that he had not yet made up his mind whether
2 All dates herein are in 1978 unless otherwise specified
556
FIATIRON MATERIALS CONMPANY
or not he would return to work.
:' Thereupon, on May 5,
the striking Loveland employees, including Beeson, ver-
bally notified the Loveland area manager that they
would be returning to work on May 8. However, on
Monday because of illness, Beeson did not report for
work. On the following morning, Donohoe called him
and inquired as to whether Beeson was going to return
to work. Beeson told Donohoe that he had made up his
mind to return to work but did not report on Monday
because he was sick. While Donohoe denied speaking to
Beeson prior to the latter returning to work at the Love-
land facility, inasmuch as he impressed me as being an
honest and forthright witness, I credit Beeson as to this
conversation.
While at the Fort Collins facility there was no mass
offer to return to work at the Loveland and Greeley
facilities, during the first week of the strike, individual
strikers did cross the picket line and return to work. On
May 8, the remaining Fort Collins strikers met at the
home of employee John Bowser with officials of the
Union. The union officials attempted to convince the
strikers to keep the strike going; however, after the
meeting, the Fort Collins employees decided that each
man would decide for himself whether or not to abandon
the strike. Among the employees present at this meeting
were John Bowser, William Rodda, and Gary Parsons.
The main effect of the meeting was that picketing at the
Fort Collins facility ceased on that day or the following
day.
On Wednesday, May 10, or Thursday, May II, Par-
sons and Rodda met at the latter's house to discuss
whether they should end the strike and return to work.
According to Parsons, in the late afternoon after Rodda
had spoken to Donohoe that morning about returning to
work,4 he telephoned Respondent's office and asked to
speak to Schwartz. When the receptionist informed him
that Schwartz was unavailable, Parsons asked to speak to
Donohoe. Donohoe came on the line, and Parsons intro-
duced himself, giving his name and job classification.
Donohoe replied that he knew who Parsons was. Par-
sons then asked if there were any positions available.
Donohoe replied, "No, we don't have a job for you."
According to Parsons, he then said thank you and hung
up the telephone. Nothing more was said.
Donohoe testified to a different version of this conver-
sation with Parsons. According to Donohoe, he and
Gary Clark, Respondent's office manager, were in Dono-
hoe's office at the Fort Collins facility late in the after-
noon on May II when the receptionist opened the office
door and informed Donohoe that Parsons was on the
telephone. Donohoe answered the telephone, and Par-
sons asked if there were any job openings. Donohoe re-
plied that he did not know and told Parsons to call
3 Schwartz did not deny either the occurrence of. or the substance
of.
this conversation
I Bill Rodda contradicted Parsons regarding the timing of the tele-
phone calls to Donohoe rhus. Rodda iestified that l'arsons
maide his
telephone call to Donohboe in the morning, and he IRodda)
made his tcle-
phone call to Donohoe in the afternoon Despite the
contradiction be-
tween Parsons and Rodda as to the timing of the telephone
call. inas-
much as both Donohoe and Parsons stated Ihat the telephone
call from
Parsons was made in the afternoon. I find that Parsons'
tlephone call
was in the afternoon
Howard Schwartz. According to Donohoe, that was the
extent of the conversation. Clark was called as a cor-
roborating witness by Respondent: however, he testified
that he did not listen to the entire conversation but could
only testify as to what Donohoe said on the telephone.
According to Clark, Donohoe said that he was not in-
volved in hiring procedures and that Parsons needed
to
get hold of Schwartz because he was doing the hiring.
According to Clark. Donohoe continued, saying that he
was unaware of any openings at the time.
After careful analysis of the record, I credit Parsons'
version of the conversation over those of Donohoe
and
Clark for the following reasons. First, Parsons impressed
me as being an honest and forthright witness. Secondly,
inasmuch as employees Beeson and Bowser credibly tes-
tified 5 that Donohoe spoke to each of them, prior to
their return to work about returning to work, I cannot
accept Donohoe's assertion that he was in no way in-
volved in the hiring process and, thus, could not have in-
formed Parsons that there were no jobs available for
him. This is buttressed by the fact that Donohoe was in-
ternally inconsistent on this point, having admitted a
direct role in the return to work of employee Bowser.
Third, as demonstrated above, Donohoe and Clark con-
tradicted each other as to what Donohoe said to Parsons
during the telephone conversation. Finally, both Dono-
hoe and Clark were internally inconsistent in their re-
spective testimonies regarding the conversation. Ac-
cordingly, I find that Donohoe concluded his conversa-
tion with Parsons by stating to Parsons, "No, we don't
have a job for you."
The record is quite clear that prior to their conversa-
tion, Donohoe was well aware of an employee named
Gary Parsons. Thus, during the first week of the strike,
Donohoe, in his position as general manager of Respond-
ent, received several reports of alleged violence and in-
timidation of strike replacements by striking employees
at all three of Respondent's facilities. Included among
these were incidents of mass picketing, a rock thrown
through the driver's window of a company truck, the
opening of a water valve on a company truck and the
resulting loss of a load of concrete, the following of
s Employee HBowser wa a bulk truckdriser for RespondenL. working
out of the Fort Collins facility After the May 8 meeting
between the
striking employees and union officials. Bowser decided that
he would
break the strike and return to work Thus, in the afternoon
of May 10,. he
went to the plant and spoke to Schwartz and Donohoe
about returnilig
to work The record discloses. and I find. that Donohoe
was inolsed in
the discussions with Bowser to the extent of questioning
Browser after
the latter had asked about his seniority. "[are you] more
interested in se-
niortty or the job."
6 Donohoe and Clark testified to slightly sarying acciunis of Dl)ono-
hoe's response io Parsons' inquiry about job openings
during the conscer
sation Thus, at one point. Donohoe testified that
he told Parsonr he did
not know and that Parsons should call Howard Schwartz
At another
point. Donohoe testified that he told Parsons that he t[)oninohrc)
was inot
doing the hiring and that l'arsons would hasce it get
hold of Hioward
Schwartz While the difference in these rcspon'se' i, not
great, glvcn the
importanlce of this conlsersatitll .land Donoihoe' other
testimolni;l inicon-
sislenies. I heliteve the sarilances are significant As lo
Clark. oin dlrcct
examinatiln, he testified that Dt)nohoe responlded tlo i'arsions'
inquirinig
saying that Parsons needecd to get hold ofI Schuartz
hbecauIse Schu.lrt,
was doing the hiring and that he I)Donolhoc) wa,s una.are
of ans open-
ings all that time In reponl, to a qluesttlin from me.
Clark denited gising
the aforementrionecd testimllmon aerririg. "If I thd. I misspoke
inscelf"
557
I)ttClSl()NS OF- NAI'I()ONAL I.ABO)R R.LA II()NS t()ARI)
strike replacements to their homes by striking employees,
and an incident, involving Parsons, on May 5 at a jobsitc
located at 2809 West Lake Street in Fort Collins. Based
upon the aforementioned conduct, Respondent sought,
and obtained, on May 8 a temporary restraining order
against the Union and certain individual strikers, includ-
ing Parsons, restraining said individuals from, among
other things, engaging in any violent, coercive, threaten-
ing, or intimidating activity of any kind. In addition,
criminal charges were filed against an employee at the
Greeley facility.
The May 5 incident at West Lake Street in Fort Col-
lins involved Parsons allegedly threatening and intimidat-
ing a strike replacement driver who was delivering a
load of concrete for Respondent to a construction site.
The circumstances of this incident are in dispute. The
project was a single-family dwelling construction site,
and Respondent was engaged to supply ready-mix con-
crete for the footings and the foundation. The F & F
Company, a subsidiary of Respondent, was engaged as
the subcontractor for the setting of the forms and foot-
ings and the laying of the foundation. On May 5, a
ready-mix concrete truck, driven by a strike replacement
driver, pulled out of Respondent's Fort Collins facility,
and Parsons and Rodda, riding in a green Toyota pickup
truck, followed it in order to determine the driver's des-
tination and to engage in picketing around the truck. The
ready-mix truck arrived at the Wesi Lake Street project,
and Rodda and Parsons arrived a few moments later.
According to Douglas Brandt, an employee of F & F
Company, after they arrived at the jobsite, Parsons and
Rodda began speaking to the F & F Company crew.
Shortly thereafter, as the concrete pour began, while
Rodda remained speaking to the F & F Company em-
ployees, Parsons walked over to the driver's side of the
concrete truck and spoke to the driver, who at all times
remained inside the cab of the truck but with the
window rolled down. According to Brandt, while he
spoke to the driver, Parsons stood on the running board
of the truck and as he spoke, Parsons became more and
more agitated. Brandt further testified that while he
could not recall everything that Parsons said, he did
recall Parsons "calling [the driver] a scab, and chicken
shit and was going to do facial damage to [the driver]
sometime later on if he continued to be a driver." Brandt
testified that Parsons' statement must have bothered the
driver because the latter "looked scared" and was not re-
sponding to Brandt's hand signals regarding the concrete
pour. Brandt further testified that the entire incident
lasted at least 30 minutes and, as a result of Parsons' ac-
tions on the project, the F & F Company foreman post-
poned all work for the remainder of the day.
Ron Niswender, a supervisor of Respondent, testified
that he also followed the ready-mix truck to the West
Lake Street project that afternoon and pulled in behind a
pile of dirt approximately 100 yards away from the truck
to observe what, if anything, would happen. According
to Niswender, a green Toyota pickup truck arrived at
the jobsite shortly thereafter, Parsons and Rodda left the
pickup, and Parsons immediately walked over to the
ready-mix truck and began speaking to the driver. Ac-
cording to Niswender, a few seconds later, Parsons
"crawled up on the fender of the truck," causing Nis-
wender to drive out from behind the dirt pile over to the
project. Niswender further testified that, when he ar-
rived at the jobsite, Parsons and Rodda walked over to
him. According to Niswender, he told them that they
had better "knock off this stuff and get back to work or
[he] was going to call the police." Niswender testified
that the entire incident lasted no longer than 2 to 5 min-
utes, and other than the replacement driver and the F &
F Company foreman, Parsons spoke to no one else on
the project. Respondent did not call the replacement
driver as a witness to testify as to what occurred and as
to what was said during the incident.
According to Parsons, he and Rodda followed Re-
spondent's replacement driver out to the West Lake
Street project in Rodda's Toyota pickup truck and ar-
rived at the project shortly after the ready-mix truck.
Prior to the start of the pour, Rodda and Parsons spoke
to members of the F & F Company crew, and, according
to Parsons, as soon as the pour began, he approached the
truck and spoke to the replacement driver. Parsons fur-
ther testified that at no time did he come closer than 6 to
8 feet from the truck and that at all times the driver re-
mained in the truck cab. Further, while denying that he
was "worked up," Parsons did admit that he raised his
voice, called the driver a scab, asked the driver why was
he driving during a labor dispute when he was taking
jobs from the strikers, and admitted calling the driver a
chicken shit and telling the driver that he could find the
driver any place in the Fort Collins area if he (Parsons)
ever had to do so. While specifically denying that he
ever climbed onto the trucks' running board to speak to
the driver, Parsons could only not recall whether he
threatened to do facial damage to the driver. After the
conversation with the driver, according to Parsons, he
and Rodda were preparing to leave the jobsite when Nis-
wender drove up in a pickup truck and the three of them
engaged in a conversation. Niswender told Parsons and
Rodda that they were crazy for striking and that they
should come back to work because they could not win
the strike and were in danger of losing their jobs. Par-
sons also recalls Niswender saying that Respondent was
going to obtain an injunction. Parsons testified that the
entire incident lasted for approximately 30 minutes.
Rodda's testimony about the incident was rather hazy.
Thus, he testified that at all times he was at least 10 to 15
feet from Parsons and that, while he could not recall the
conversation between Parsons and the driver, he heard
no threats from Parsons. Finally, Rodda did not recall
seeing Parsons on the fuel tanks or the running board of
the truck.
In reconstructing what I believe occurred at the West
Lake Street project on May 5, I rely upon portions of,
and discredit other portions of, both the testimonies of
Parsons and Brandt.7 Accordingly they both agree that
I lhc crelililng lif prltionS Il I)ilF ro)1n,
' .ind Ifilrlli'h fCnTtii llonic Is r[-
qilircd Illlder tlc circur'llallatn tlis alhi . aid dolld c, n() rqirCt rClc-
imoi olf their ciltir tcsitimiunis ( urCIiiu ( au r,, Irn. 21 NLRIH 17
(1'74) "Nolilt g Is mlr cr,11infl i lll )i 1 tm o hetlicic sc Ol alid not altl Of
* hl. 1 il nsX "sa," Edwurd /'rliportatint (Comluil. 187 NI R 1t , 4
1)70). enf.l 417 F 2d 502 (
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558
FIlATIRO(N MATERIAI.S COMPANY
Parsons and Rodda arrived at the jobsite after Respond-
ent's ready-mix concrete truck and that Rodda and Par-
sons spoke to members of the F & F Company's crew,
including Brandt, prior to the start of the concrete pour.
While Parsons and Brandt differ as to what occurred and
what was said during the conversation between Parsons
and the the replacement driver, I credit Brandt's testimo-
ny that Parsons did, in fact, threaten the replacement
driver with some sort of facial damage if Parsons saw
him driving again, and I credit Parson's testimony that,
at all times during the conversation with the replacement
driver, he was no closer than 6 to 8 feet from the truck
and never climbed onto the running board or the fuel
tank of the truck. Thus, regarding what he said during
his conversation with the truckdriver, I find that Par-
sons' testimony was vague and that he could not specifi-
cally recall what he did say during the conversation.
Moreover, based upon his admissions as to what he did
say during the conversation, I find it entirely plausible
that Parsons did, in fact, threaten the driver with some
sort of facial damage. As to Brandt's assertion that
during his conversation with the driver Parsons was on
the running board of the truck, I find it significant that
Brandt considered this particular fact to be extremely im-
portant in the scheme of the incident. Yet, in his state-
ment to the police, which, while not sworn to, was
signed by him and given just I day after the incident,
Brandt did not mention that Parsons was on the running
board of the truck. This is especially important, for
Brandt admitted that his recollection of the incident was
fresh in his mind when he made his statement to the
police. Moreover, as noted above, without giving any ex-
planation, Respondent failed to call as a witness the re-
placement driver.8 After the confrontation between Par-
sons and the replacement driver, crediting Brandt, I find
that the driver was nervous and shaken and that no more
work could be accomplished that day. Also, crediting
Parsons, prior to leaving the jobsite, I find that Parsons
and Rodda had a conversation with Niswender in which
the latter attempted to convince Parsons and Rodda to
abandon the strike and return to work. Finally, both Par-
sons and Brandt agree, and I find, that the incident on
the West Lake Street project lasted for approximately 30
minutes.
Soon after speaking to Parsons, Donohoe informed
Schwartz that Parsons had called and asked whether
there was a job opening. While the record establishes
that there were no ready-mix driver positions available
on or about May 10 or 11, Respondent admits, and I
find, that such a position became available on May 17,
when Respondent hired an individual named M. G.
Meyer as a ready-mix driver. According to Schwartz, he
did not hire Parsons for the position inasmuch as Parsons
did not call him after speaking to Donohoe. However,
Schwartz admitted that he would not have reinstated
Parsons without some resolution of Respondent's con-
templated action of bringing criminal charges against
' In reconstructing What occurred during the incident on May 5 at
West Lake Street projectl I have not relied on Ihe testimony of Nis-
wender I found him to he a lotally unreliahle 'ilnes% and helie.e Ihat he
tailored hi% tesimony to fit Respondenls versiln of the tfact
Parsons for the aforementioned West Lake Street project
incident.
There was no further contact between Parsons and
Respondent until February 22, 1979. On or about that
date, upon being notified that Parsons had filed charges
with the NLRB concerning his discharge. Clark and
Schwartz telephoned Parsons at his home. There is little
dispute as to what was stated during this conversation.
Clark began by informing Parsons that Respondent had a
position available and asking the latter whether or not he
wanted to return to work. Parsons replied that he did
not wish to return to work because he felt that he would
be discriminated against by Respondent because of the
strike. Nothing more was said, and the conversation
ended at that point. On the next day, Clark prepared a
confirming letter of the telephone conversation, which
Donohoe signed and which states, in pertinent part:
This letter will confirm the telephone conversa-
tion between you and Mr. Schwartz and Mr. Clark
of this office . . . [during which] you were offered
a full-time job with this company in your former
classification.... We now have two openings and
we're able to offer you a job. Since you are not in-
terested in returning to work and did reject our
offer of employment, we will so note in your per-
sonell [sic] record and file a copy of this letter in
your file.
B. Discussion and Findings
The law on the status of economic strikes is well set-
tled that such individuals retain their status as employees
during the period of a strike, and upon unconditional ap-
plications for reinstatement, if at the time of said uncon-
ditional applications their previous positions are filled by
permanent replacements, economic strikers are entitled
to reinstatement as positions become available. Further-
more, when positions become available, an employer
cannot lawfully ignore outstanding applications for rein-
statement from economic strikers and, indeed, must seek
them out absent legitimate and substantial business rea-
sons. The Laidlaw Corporation, 171 NLRB 1366, 1369-70
(1968), enfd. 414 F.2d 99 (7th Cir. 1969). Further, the
Supreme Court has long recognized that actions taken
against strikers are inherently destructive of Section 7
rights. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26,
33 (1967). Accordingly, in cases such as herein involved,
the Board places the burden upon an employer to estab-
lish that it had sufficient, legitimate, and substantial busi-
ness reasons for refusing to take back an economic strik-
er. Birch Tree Number One. Incorporated d/b/a Birch
View Manor, 243 NLRB No. 87 (1979); The Laidlaw Cor-
poration, supra.
Herein, it is clear that the employees of Respondent at
its three Colorado facilities were engaged in an economic
strike during the first week of May 1978. Therefore,
under the applicable Board law, the first issue to be de-
cided is whether Parsons made an unconditional applica-
tion for reinstatement during his conversation with Don-
ohoe on May 10 or 11. It is not in dispute that, after
identifying himself, Parsons asked Donohoe if there were
I)ECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
any positions available. General Counsel argues that this
inquiry was understood as an expression of a desire to
return to work; while Respondent asserts that the ques-
tion did not rise to the level of an unconditional offer to
return to work and that Donohoe could not reasonably
infer that Parsons necessarily wanted to be reinstated. In
the circumstances of this case, I agree with General
Counsel that Parsons' question constituted an uncondi-
tional application for reinstatement and I am convinced
that Donohoe understood that such was the intent of
Parsons' questions. Thus, prior to his conversation with
Parsons, Donohoe must have been aware that striking
employees at Respondent's Greeley and Loveland facili-
ties had already returned to work, that other drivers,
such as Beeson, and mechanics at the Fort Collins facili-
ty had offered, and were returning, to work, and that
there was no further picketing at the Fort Collins facili-
ty. Accordingly, when Parsons spoke to him, I believe
that Donohoe was well aware that the strike was effec-
tively broken and that he understood Parsons' question
not as a mere inquiry as to whether there were an availa-
ble jobs but rather as a specific request by Parsons to be
reinstated to his prior position. In so finding, I am cogni-
zant that Parsons did not specifically state that he was
unconditionally offering to return to work; however, it is
axiomatic that the Board does not require an " artistic re-
quest for reinstatement" but rather, in each case, deter-
mines whether the facts warrant conclusion that an indi-
vidual desired reinstatement. Colonial Manor Convalescent
& Nursing Home, A Division of the La Grange Land Cor-
poration, 184 NLRB 693 (1970); Miklos Sperling, an Indi-
vidual d/b/a Merz Engineering Company, 168 NLRB 245
(1967); Master Touch Dental Laboratories, Inc., 165
NLRB 585, 589 (1967), reversed 405 F.2d 30 (2d Cir.
1968).
Having so concluded and having previously credited
Parsons that Donohoe replied to Parsons' question by
stating, "No, we don't have a job for you," I believe, in
agreement with the General Counsel, that Donohoe, by
this statement, explicitly terminated Parsons. Thus prior
to this conversation, it had been Donohoe's decision to
seek an injunction against the Union and several of Re-
spondent's employees, including Parsons, enjoining them
from engaging in certain alleged acts of picket line mis-
conduct. Moreover, Donohoe had previously pressed
criminal charges against an employee at Respondent's
Greeley facility from engaging in misconduct. Finally,
while he spoke to Parsons, Donohoe was actively con-
sidering the pursuit of criminal charges against Parsons.
In these circumstances, the conclusion is warranted that
Respondent had no intent of ever recalling Parsons to
work and that Donohoe seized upon the opportunity
presented by his telephone conversation with Parsons to
terminate the latter. This conclusion is further buttressed
by the fact that 7 days later, on May 17, despite being
aware that Parsons had spoken to Donohoe about a posi-
tion, Area Manager Schwartz did not recall Parsons
when a ready-mix driver position became available.
While offering Respondent's defense that he was waiting
for Parsons to call him, Schwartz admitted that he did
not believe that Parsons was eligible for reinstatement
because of the possibility of criminal charges. I find this
admission highly enlightening.
Respondent's alternate defense concerns Parsons' con-
duct at the West Lake Street jobsite on May 5. Respond-
ent asserts that if I were to find, as I have, that Parsons
unconditionally requested reinstatement and was either
terminated or denied such reinstatement, Respondent
nevertheless was not obligated to reinstate Parsons be-
cause of his misconduct during the term of the strike.
The General Counsel contends that Parsons did not, in
fact, engage in any conduct privileging a refusal to rein-
state him. Clearly, the record herein supports the finding
that Respondent was motivated in terminating Parsons
by his alleged misconduct on May 5. Accordingly, the
central issue is whether that conduct was "sufficiently se-
rious" to justify his termination by Respondent on May
11. Birchview Manor, supra.
The credited testimony regarding the May 5 incident
at the West Lake Street project establishes that Parsons
and Rodda followed one of Respondent's ready-mix
trucks, which was driven by a replacement driver, to the
jobsite, that Parsons and Rodda remained at the project
for approximately 30 minute during the pendency of a
concrete pour and that, during the pour, Parsons verbal-
ly assaulted the replacement driver. More specifically, I
find that Parsons called the replacement driver a scab,
cursed at the driver, threatened to do facial damage to
the driver if he continued to work for Respondent, and
threatened that he (Parsons) could locate the driver
whenever he wanted to do so. Further, there is no credi-
ble evidence that Parsons ever physically touched the
driver or the truck or accompanied his verbal threats
with any sort of physical actions or gestures. The Board
has long held that, although an employee may actually
have engaged in misconduct, he or she may not be
denied reinstatement absent a showing that the miscon-
duct was so violent or of such a serious character as to
render the employee unfit for future service. MP Indus-
tries, Inc., et al., 227 NLRB 1709, 1710 (1977). Moreover,
"mere verbal abusive language and threats not accompa-
nied by any physical acts or gestures that would provide
added emphasis or meaning to the words are not a suffi-
cient basis to deny reinstatement after a strike. However,
physical assault and conduct that gives threats a sense of
immediacy and credence would justify a refusal to rein-
state." Birchview Manor, supra; W. C. McQuaide, Inc., 220
NLRB 593 (1975). Accordingly, while the words used
by Parsons may well have been threatening and intimi-
dating to the replacement driver, I believe that mere
verbal abuse in the form of obscene language and threats,
unaccompanied by any physical actions or gestures that
add meaning to the words, does not arise to that level
justifying disqualification from reinstatement, and, there-
fore, conclude that Respondent violated Section 8(a)(1)
and (3) of the Act by terminating Parsons after he made
an unconditional application for reinstatement. Transpor-
tation Enterprises, Inc., 240 NLRB 551 (1979); Giddings &
Lewis, Inc., 240 NLRB 441 (1979); MP Industries. Inc.,
560
FLATIRON MATERIAI.S COMPANY
supra at 1711; Valley Oil Co.. Inc., 210 NLRB 370, 377
(1974). 9
Respondent next argues that even assuming that Par-
sons was terminated in violation of the Act, its backpay
liability was tolled on February 22, 1979, when Parsons
rejected Clark's unconditional telephonic offer of em-
ployment. Analysis of the aforementioned conversation
reveals two significant details-the position to which
Parsons would be reinstated was not specified and Par-
sons was given no time in which to consider the offer.
The Board has long held that offers of reinstatement
must be specific and unconditional and must give the re-
cipient reasonable time in which to consider the offer. In
these circumstances, I do not believe that this telephone
conversation constitutes a valid offer of reinstatement.
Thus, it is traditional Board law that offers of reinstate-
ment must be specific and unconditional and must give
the recipient reasonable time during which to consider
the offer. Moro Motors, Ltd., 216 NLRB 192 (1975). Ac-
cordingly, in the circumstances of this case, especially
noting the oral nature of the offer, I find that Respond-
ent's offer of employment was not sufficient to toll its
backpay liability herein. William Dong, an Individual Pro-
prietorship d/b/a Woodland Supermarket, 237 NLRB 1481
(1978); Murray Products, Inc., 228 NLRB 268, 269 (1977),
enfd. 584 F.2d 934 (9th Cir. 1978); Jimmy Dean Meat
Company, Inc., of Texas, 227 NLRB 1012 (1977).10 Final-
ly, while the record establishes that Parsons' state of
mind at the time of the "offer" was not to return to
work for Respondent, the Board has "consistently ...
discounted statements, prior to a good-faith offer of rein-
statement, indicating unwillingness to accept reinstate-
ment" as reflecting "a momentary state of mind that is
subject to change" and a decision "made in the heat of
dissatisfaction with . . . Respondent." Heinrich Motors,
Inc., 166 NLRB 783, 785-786, enfd. 403 F.2d 145 (2d
Cir. 1968) (emphasis supplied). I believe the latter to be
an accurate reflection of Parsons' state of mind on Feb-
ruary 22.
In summation, I find that Respondent violated Section
8(a)(1) and (3) of the Act by terminating Gary Parsons,
an economic striker, upon his unconditional application
for reinstatement.
V. REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. As I
9 My decision woud be the same even if I were to credit Brandt's tesli-
mony that Parsons was on the running board of the truck during his
verbal harassment of the replacement driver Thus. Respondent offered
no credible testimony that Parsons jumped on the running board to add
emphasis to his verbal threats and, indeed, there is not a scintilla of evi-
dence as to how long Parsons was on the running board However. more
importantly, I do not believe that Parsons' mere presence on the running
board, without evidence that he touched the replacement driver. is the
type of "physical action or gesture" serious enough to justify disqualifica-
lion from reinstatement Gidding & Lei's. Inc. supra.
'o In my decision. I have not given credence to Respondent's "con-
firming letter" of the telephone conversation, v hich letter. I find. misstat-
ed the facts of the telephone consersation Moreover, the wording of the
letter suggests that Respondent's offer expired after the telephone conser-
sation.
have found that Respondent unlawfully discharged Par-
sons, I shall recommend that Respondent be ordered to
offer him immediate and full reinstatement to his former
position or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges. I shall further recommend
that Respondent be ordered to make him whole for any
loss of earnings he may have suffered as a result of the
discrimination against him by payment to him of the
amount he normally would have earned from the date of
his termination, on May 10 or 11, 1978, with backpay to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and with interest
as prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). (See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).)
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Gary Parsons on or about May 10
or 11, 1978, and thereafter not reinstating him because he
engaged in protected concerted activities, Respondent in-
terfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them by Section 7 of
the Act and, thereby, committed unfair labor practices
within the meaning of Section 8(a)(l) and (3) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
On the basis of the foregoing findings of fact and con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER t
The Respondent, Flatiron Paving Company d/b/a Fla-
tiron Materials Company, Fort Collins, Colorado, its of-
ficers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees in regard to hire or tenure
of employment, or any term or condition of employment,
because they engage in union or protected concerted ac-
tivities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Gary Parsons immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
'I In the erent no exceptions are filed as pro, ided h b Sec 102 40 of
the Rules and Regulations of the National Labor Relations Board. the
findings. concllusions. and recommended Order herein shall. as pro,.ided
in Sec 102 48 of the Rules and Regulations, he jdopled hy the Board and
become its findings. coinclusions. and ()rdcr and all obje ctions thereto
shall he deemed saioed for all purpose,
561hl
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as
the result of the discrimination against him in the manner
set forth in the section of this Decision entitled
"Remedy."
(b) Post at its Fort Collins, Colorado, facility, copies
of the attached notice marked "Appendix."'2 Copies of
said notice, on forms provided by Respondent, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consective days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
12 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTIICE TO EMPIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL ATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against employees with
regard to their hire, tenure, or any other term or
condition of employment because they engage in
union or other protected concerted activities.
WE WILL offer Gary Parsons immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges and WE WILL make him whole for
any loss of earnings he may have suffered as a
result of our discrimination against him.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their right to engage in or refrain
from engaging any or all of the activities specified
in Section 7 of the Act.
FLATIRON PAVING COMPANY D/B/A FLAT-
IRON MATERIALS COMPANY
562