Gitano Distribution Center

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 695 (N.L.R.B. 1989)

ORIT CORP
Orit Corporation/Sea Jet Trucking and APA Ware-
house, Inc., Single and Joint Employers d/b/a
Gitano Distribution Center and United Automo-
bile, Aerospace & Agricultural Implement
Workers of America , AFL-CIO. Case 22-CA-
15405
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On July 28, 1988, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and an answering brief and brief in support of
the cross-exceptions.I
The National Labor Relations Board has' delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs" and has
decided to affirm the judge's rulings, findings,2 and
' The General Counsel has moved to strike the Respondent's excep-
tions on the ground that they fail to meet the specificity requirement of
Sec 102 46(b) of the Board's Rules and Regulations Although the Re-
spondent's exceptions do not conform in all particulars with Sec 102 46,
they are not so deficient as to warrant striking them here Accordingly,
the General Counsel's motion is denied
2 The General Counsel has excepted to the judge's inclusion of Joseph
Donnejour among the employees to whom the Respondent did not offer
reinstatement We find merit in this exception as the record establishes
that the Respondent offered Donnejour reinstatement to its Brooklyn fa-
cility and that Donnejour accepted the offer Because we agree with the
judge, however, that the offer of reinstatement to the Brooklyn facility
was insufficient to meet the Respondent's obligations, Donnejour remains
entitled to reinstatement at the Respondent's Edison facility We have
modified the recommended Order accordingly -
In addition, we note that there is some conflict in the record as to the
number of employees to whom the Respondent offered reinstatement We
agree with the judge that the discrepancies are best resolved at the com-
pliance stage of the proceeding
3 We note that the judge's decision may have implied that the Re-
spondent's offers of reinstatement were invalid because they did not pro-
vide the strikers with a reasonable period of time in which to respond to
the offers In this regard, the Board has recently reconsidered the ques-
tion of a "reasonable time" with respect to offers of reinstatement in Es-
terline Electronics Corp, 290 NLRB 834 (1988) We find it unnecessary to
decide, however, whether the Respondent's offers were "reasonable"
under Esterline Electronics because we agree with the judge that these
were not "otherwise valid offer[s] " Id at 835 Thus, as the judge
found, the Respondent never made a valid offer of reinstatement because
it failed to respond to the Union and instead notified a limited number of
individual employees directly as to the circumstances of their return to
work, or as the judge found, engaged in "piecemeal reinstatement "
Moreover, we note that the Respondent's December 9, 1987 notice to 26
of the strikers, the first offer of reinstatement it had sent to any employ-
ees, implied, erroneously, that the employees had already missed one of
the Respondent's deadlines and so consisted of more than a questionable
unreasonably short report-back date Given the circumstances here,
Member Devaney finds it unnecessary to pass on the Board's holding in
Esterlme Electronics
Chairman Stephens observes that, because the Union's unconditional
offer to return on behalf of the striking employees was delivered to the
Respondent on Friday afternoon, December 4, and set Monday, Decem-
ber 7, as the report-back date, the Respondent was not required to make
695
conclusions3 and to adopt the recommended Order
as modified below.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Grit Corporation/Sea Jet Trucking and
APA Warehouse, Inc., Single and Joint Employers
d/b/a Gitano Distribution Center, Edison, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Insert the' following as paragraph 1(a) and re-
letter the subsequent paragraphs.
"(a) Discharging unfair labor practice strikers by
unlawfully treating them as having abandoned and
forfeited their employment."
2. Insert the following as paragraphs 2(c) and (d)
and reletter the subsequent paragraphs.
"(c) Offer employee Joseph Donnejour immedi-
ate and full reinstatement to his former job at its
Edison, New Jersey facility or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
"(d) Remove from the Respondent's personnel
records of the employees unlawfully discharged
any and all references to their having abandoned
and forfeited their employment and notify each of
them, in writing, that this has been done, and that
evidence thereof will not be used as a basis for any
future disciplinary action."
3. Substitute the attached notice for that of the
administrative law judge.
a formal response to the Union before Monday However, the Respond-
ent acted unlawfully (1) in failing to convey to the Union on December 7
a willingness to reinstate all returning strikers, (2) in immediately reinstat-
ing only 27 of the 90 who reported for work on December 7 and delay-
ing the reinstatement of others till as late as 10 days after the uncondi-
tional offer to return had been made and, in some cases, offering rein-
statement to the wrong facility, and (3) in sending letters to 26 employees
who had not reported on December 7 implying that an offer had already
been rejected by them and would lapse in 2 days when, in fact, the Re-
spondent had never previously offered these employees reinstatement
Under all these circumstances, Chairman Stephens agrees that the 26 em-
ployees could not, pursuant to Esterline Electronics, supra, be denied rein-
statement and backpay because of any failure to contact the Respondent
before the Respondent's 2-day reporting deadline and that the Respond-
ent could not avail itself of.the 5-day grace period for reinstatement of
unfair labor practice strikers pursuant to Drug Package Co , 228 NLRB
108, 113-115 (1977), enf denied in part on other grounds 570 F 2d 1340
(8th Cir 1978)
4 The General Counsel has excepted to the judge's failure to include an
order that the Respondent cease and desist from discharging unfair labor
practice strikers in violation of Sec 8(a)(3) and (1) of the Act We find
merit in this exception Accordingly, we have modified the recommended
Order in this respect to conform with the judge's findings
294 NLRB No. 55
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection '
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with rights guaranteed to
you by Section 7 of the Act.
WE WILL NOT discharge unfair labor practice
strikers by unlawfully treating them as having
abandoned and forfeited their employment.
WE WILL NOT refuse to reinstate any unfair labor
practice strikers who unconditionally offer to
return to work.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer all unfair labor practice strikers
who have not yet been reinstated immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and WE
WILL make them whole for any loss of pay they
may have suffered by reason of the refusal to rein-
state them by payment to them of a sum of money
equal to the amount they normally would have
earned as wages from the date of their uncondition-
al offer to return to work to the date of their rein-
statement , plus interest.
WE WILL make whole, with interest, all strikers
for any losses they may have incurred by reason of
our unlawful delay in reinstating them.
WE WILL remove from our personnel records of
the employees unlawfully discharged any and all
references to their having abandoned and forfeited
their employment and WE WILL notify each of
them, in writing, that this has been done, and that
evidence thereof will not be used as a basis for any
future disciplinary action.
WE WILL offer employee Joseph Donnejour im-
mediate and full reinstatement to his former job at
our Edison,, New Jersey facility or, if that job no
longer exists, to a substantially equivalent' position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
ORIT CORPORATION/SEA JET TRUCK-
ING AND APA WAREHOUSE, INC.,
SINGLE AND JOINT EMPLOYERS
D/B/A GITANO DISTRIBUTION
CENTER
Marguerite R. Greenfield, Esq., for the General Counsel.
Sanford E. Pollack, Esq. and Sidney P. Fuchs, Esq. (Pol-
lack & Kirshenbaum , PC), for the Respondents.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Newark, New Jersey, on
March 29 and April 14, 1988, after being severed from
two related cases which were settled at the hearing. The
pertinent allegations as set forth in a "Second Amended
Complaint and Notice of Hearing" are that after the end
of an unfair labor practices strike, APA Warehouses, Inc.
d/b/a Gitano Distribution Center and Orit Corporation
d/b/a Sea Jet Trading, referred to herein collectively
except in the recommended Order as the Respondent, re-
fused to reinstate strikers, delayed reinstatement of
others, and subsequently discharged a number of employ-
ees because they had supported the strike.
Additional unfair labor practices are alleged, with re-
spect to some of which the General Cousnel has request-
ed findings, but no remedy. These are allegations to the
effect that the Respondent violated § 8(a)(1) and (3) of
the National Labor Relations Act (the Act) by discrimin-
atorily discharging two employees, Kenneth Lalor and
William H. Ellicott, and that it violated § 8(a)(1) of the
Act by numerous actions committed in April and May
1987 and which are set forth in the complaint.
Further allegations regarding which the General
Counsel seeks findings and an appropriate order are that
the Respondent violated § 8(a)(1) and (5) of the Act by
refusing to recognize the International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW) (the Union) as the collec-
tive-bargaining representative of its employees and by re-
fusing to furnish it with information which it requested.
The Respondent has objected to the General Counsel's
request in this instance on the ground that findings have
already been made by the Board and are the subject of
an outstanding Decision and Order issued by it on March
8 1988 in Case 22-CA-15294, reported at 288 NLRB 12.
In that case, the Board held that Respondent's refusal to
recognize and bargain with the the Union since Septem-
ber 8, 1987, and its refusal to provide the Union with re-
quested information had violated Section 8 (a)(5) and (1).
The Board directed Respondent to recognize and bargain
with the Union and furnish it with the information neces-
sary for, and relevant, to the performance of its func-
ORIT CORP
tions. Since ,these issues have already been resolved and
remedial, action has already been directed' by the Board,
issuance of a further order by me would unnecessarily
and improperly duplicate what has already been done by
the Board and would tend to generate confusion and
delay in implementation of the outstanding Order of the
Board. Accordingly, my decision and order herein are
confined to the issues relating to the discharges of and
failures to reinstate unfair labor practice strikers and the
Lalor and Ellicott discharges.
For the limited purposes of this proceeding alone, the
Respondent admitted all of the allegations of the second
amended complaint except those, which alleged that its
actions with respect to, the strikers-failure to call many
of them back to work, delayed reinstatement of others
and the treating of failure to return to work as forfeiture
of the jobs-were violative of the Act.
The parties were afforded full opportunity to be heard
to call, examine and cross-examine witnesses and to in-
troduce relevant evidence, but the case has been submit-
ted to me for decision on the basis of Respondent's ad-
missions of the pertinent allegations of the complaint and
the stipulations entered into at the hearing. Posthearing
briefs have been filed on behalf of the General Counsel
and the Respondent.
On the entire record,' and after consideration of the
briefs filed herein, I make the following
FINDINGS OF FACT
I JURISDICTION
There is no issue as to jurisdiction. The Board has al-
ready held, in the above-mentioned earlier proceeding,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act Respondent has
raised no issue with respect to jurisdiction in the instant
proceeding.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A The Uncontroverted Facts
1. The unfair labor practice strike and its aftermath
APA Warehouses, Inc., d/b/a Gitano Distribution
Center, is a corporation which operates an office and
warehouse in Brooklyn, New York. Orit Corporation
d/b/a Sea Jet Trucking operates a warehouse and distri-
bution facility in Edison, New Jersey. The Respondent
concedes, and the Board has found, that Orit Corpora-
tion d/b/a Sea Jet Trucking and APA Warehouses
d/b/a Gitano Distribution Center, are a single-integrated
business enterprise and a single employer within the
meaning of the Act and a joint employer within the
meaning of the Act with respect to warehouse employ-
ees at the Respondent's Edison, New Jersey facility. On
- ' The General Counsel's motion to correct the transcript of the hear-
ing, dated June 21, 1988, is hereby granted and the transcript is deemed
amended in accordance with the General Counsel's motion
697
September 8, 1987,2 the Union was certified as the exclu-
sive collective-bargaining representative of a unit de-
scribed as follows-
All full-time and regular part-time warehouse em-
ployees employed by the Respondent at its Edison,
New Jersey facility excluding all office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act.
Respondent nevertheless failed to recognize and bar-
gain with the Union, or furnish it with requested infor-
mation, despite written demands by the Union dated Sep-
tember 10 and 29 and October 9. As a result of the Re-
spondent's conduct the employees engaged in an unfair
labor practice strike, which lasted at the Edison ware-
house from November 9 to December 6 and at the
Brooklyn warehouse until March 17, 1988. On Friday,
December 4, the Union sent Respondent a letter on
behalf of the striking employees containing an uncondi-
tional offer to return to work on Monday, December 7.
The letter was sent by certified mail and a copy was de-
livered by hand on December 4 after 1 p.m. The letter,
signed by Frank Hoefert, Organizer, Region 9 UAW and
addressed to Orit Corporation, Gitano Distribution
Center, Edison New Jersey, attention of Barry Becken,
warehouse manager , read as follows:
Dear Mr. Becken:
Please be advised that the UAW is terminating,
unconditionally, the strike at Orit Corporation's
Edison, New Jersey, facility as of this date (12-4-
87). The employees will report to work on Monday
(12-7-87)
We will be in touch with you to arrange a mutu-
ally satisfactory date to meet with an aim toward
reaching a labor agreement.
According to the Union, 125 of the 161 employees at
Edison had gone out on strike. Respondent's records in-
dicate that 76 employees were reinstated over a 2-week
period following the Union's letter:
December 7 27
December 8 1
December 9 9
December 10 6
December 11 3
December 14 16
December 15 1
December 21 13
Among these were the employees who had acted as
picket captains or strike captains during the strike.3 It is
claimed that they are among a group of employees
whose reinstatement was unduly delayed.
2 All dates hereinafter mentioned are in 1987 except as otherwise
stated
3 Maria M Perez, John Rivituso, Angelita Collado, Joseph L Donne-
Jour, Rosemary Griffin, Minan Baej, Carmen Rosario, Rafael Burdie,
Oscar Orozco, Mauncio Castillo, and Rosemary Pacheco
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On December 9, Respondent hand-delivered a memo-
randum to the employees who appeared for work at the
Edison warehouse advising them that Respondent had
refused to negotiate with the Union in the belief that the
union election had been unlawful, and that it was appeal-
ing to the courts for relief. The memorandum opened
with the following statement:
We are happy that you have agreed to return to
work, without any conditions or demands, and that
the Union's strike is now over. We will be recalling
employees over the next several days in accordance
with our scheduling requirements.
On December 9, Respondent sent a mailgram to 26
employees4 which read as follows:
You were to report to work on Monday, December
7, 1987. You did not. If we do not hear from you
within 48 hours, we will assume you abandoned
your job.
Sincerely,
Barry Becken
Warehousing and Distribution
None of the 26 employees appeared for work on De-
cember 7, nor have they responded to the mailgram or
contacted the Respondent since that date.
On December 18, Respondent sent a mailgram to cer-
tain other employees" which read as follows:
Work is available for you at APA Warehouse,
140 43rd Street, Brooklyn, New York 11233, com-
mencing Monday, December 21, 1987. You are di-
rected to report to Mr. Napoli at 9:00 a.m. that day
ready and able to work.
Should you be unable to report on that day and
time, please call Mr. Jack Klein at 718-789-2700 to
arrange a mutually convenient starting time.
Sincerely,
Barry Becken
Another mailgram was sent to them on Decem-
ber 28:
Last week you were notified that work was
available for you at APA Warehouse, 140 43rd
Street, Brooklyn, New York 11232, commencing
Monday, December 21, 1987 at 9:00 a.m.
You did not report to work and Jack Klein did
not receive any phone calls from you.
If you do not report to work or call Jack Klein
within 48 hours, it will be assumed that you have
abandoned your job.
4 Altagracia Abreu, Sophie Lam, Jose Abreu, Ana Munoz, Jeury
Abreu, Amaira Ortiz, Luz Abreu, Maria Payano, Jose Collado, Angel Pi-
mental , Victor Collado, Mark Plummer, Lucia Cruz, Rafael Polanco,
Feliz DeLeon, Efrain Rodriguez, Berthony Dupont, Olga Rosario, Gloria
Equiqueven, Anthony Sileno, Mana Hernandez, Victor Sileno, Ing
Huang , Rafael Tapia, Jorge Velasquez, and Robert Willis
5 Edward Rosario, Moises Sosa, Efraim Ortiz, Oscar Orozco, Germa-
nia Fernandez , Jorge Navarette, Emilia Burdie, Ramona Taveras, Maun-
cio Castillio , Rafael Burdie , and Gennaro Torres
No communication was sent by Respondent to nine
employees who have remained unreinstated.6
2. Unfair labor practices committed in April
and May
The Respondent admitted, and I accordingly find,
that, acting through persons specifically named in the
second amended complaint, at the Edison facility, Re-
spondent unlawfully interrogated employees regarding
their union membership, activities and sympathies; con-
ducted surveillance of a meeting during which employ-
ees were engaged in union activities; promised employees
a pension plan, a credit union, medical benefits and wage
increases if they would vote against the Union; coerced
employees by telling them not to express their opinions
about the Union; threatened employees with discharge
unless they stopped talking about the Union; and indicat-
ed to employees the futility of supporting the Union.
3. The discharges of Ellicott and Lalor
The Respondent has also admitted, and I accordingly
find, that Respondent discharged Kenneth Lalor on June
12 and illegally transferred, suspended, and discharged
William H. Ellicott. On June 8, Ellicott was transferred
to different duties. He was suspended on July 31. On
August 10, after he returned to work, he was again trans-
ferred. Each of the transfers involved duties other than
those he had regularly performed in his employment. He
was discharged on August 13. The actions against these
employees were admittedly taken because of their having
joined, supported, or assisted the Union and because they
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and
with the objective on Respondent's part of discouraging
employees from engaging in such activities.
B. Analysis
1. Failure to reinstate unfair labor practice strikers
The law is very clear respecting the obligations and
responsibilities of an employer upon the conclusion of an
unfair labor practice strike. It is obligated immediately to
reinstate unfair labor practice strikers who make an un-
conditional offer to return to work and must reinstate
them either to their former jobs or, if for any reason the
jobs no longer exist, to substantially equivalent positions.
Atlas Metal Parts Co., 252 NLRB 205 (1980). This must
be done even if it means discharging persons who were
employed as strike replacements in order to make room
for the return of the strikers; since the employer is at
fault for interfering with protected rights of the employ-
ees, it must bear the consequences of having violated the
Act. Mastro Plastics v. NLRB, 350 U.S. 270 (1956);
NLRB v. Cast Optics Corp., 458 F.2d 398 (3d Cir. 1972),
cert. denied 409 U.S. 850 (1972); NLRB v. Blu-Fountain
Manor, 785 F.2d 195 (7th Cir. 1986).
Jospeh Donnejour, A Armando Castillo, Ana Rosario , Francisca
Brito, Maria Pallamo, Juana Rosario, Eligo Rosario, Carlos Turcios, and
Carmen Sanchez The General Counsel withdrew the objection with re-
spect to Misael Rivera
ORIT CORP 699
Respondent was therefore required to take these ac-
tions upon service of the Union's notice that it was ter-
minating the strike and that the employees would be re-
porting for duty on the morning of December 7. The
notice served by the Union on the employees' behalf was
sufficient to impose these obligations upon the Respond-
ent. M. R. & R. Trucking, Co., 178 NLRB 167 (1969) Re-
spondent was not at liberty to delay reinstatement of
strikers until positions become available through attrition
in the ranks of the replacement workers or until the
volume of business expanded. NLRB v. Gulf-Wandes
Corp., 595 F.2d 1074 (5th Cir. 1979). Nor was Respond-
ent free to pick and choose among the returnees or de-
termine the order of priority in which they would be en-
titled to reinstatement The strikers were entitled to rein-
statement as a group, not piecemeal. Respondent was ob-
ligated to take them back as a group, if necessary placing
those for whom work was not available (after discharg-
ing the replacement workers) on a preferential hiring list
Alba-Waldensian, Inc., 167 NLRB 695 (1967), enfd. 404
F.2d 1370 (4th Cir. 1968)
On the uncontroverted *facts of this case, I _ find that
the Respondent violated these requirements in important
respects. The Union acted on behalf of the strikers in
making the offer to return to work. Respondent failed to
make an adequate response to the Union regarding the
strikers collectively. Respondent failed to reply to the
Union's offer, and instead, in character with its earlier re-
fusal to accord recognition to the Union, contacted a
limited number of the strikers directly. While thus com-
municating on a selective basis with a small number of
the strikers, under its own program for gradual rather
than immediate recall of the work force, Respondent
failed to notify many other strikers to return. Subse-
quently, Respondent compounded its violation by offer-
ing a small number of strikers reinstatement at the ware-
house in Brooklyn instead of at the warehouse in Edison,
where they had formerly worked. An offer of reinstate-
ment to a different plant or facility is an inadequate offer
of reinstatement, especially if the location is one which is
less desirable or results in some other loss to the employ-
ees, such as a loss of intraplant seniority. American Olean
Tile Co., Inc., 265 NLRB 1625, 1628 (1982) Respondent
not only made an inadequate offer in this instance, but
demonstrated contempt for the collective-bargaining
process by asking employees to cross the picket line still
maintained at the Brooklyn warehouse.
Since the Respondent failed to offer reinstatement in
accordance with law, it was not entitled to treat nonre-
turning employees as having abandoned their employ-
ment. An employee does not waive reinstatement by fail-
ing to respond to an inadequate offer. See Woodbine
Motor Freight, 278 NLRB 1141, 1143 fn 5 (1986) (re-
sponse importing acceptance of invalid offer is not bind-
ing on the employee).
The Respondent's attempted justification of its actions
rests on arguments which do not address the true issues
of this case. For example, Respondent cites Board policy
permitting a 5-day grace period before backpay starts to
accrue, a policy which has no application to the present
case. The issue here is whether Respondent offered
timely reinstatement to unfair labor practice strikers
without imposing unreasonable conditions. I have been
able to find` no ruling which in all circumstances coun-
tenances a 5-day hiatus between strikers' unconditional
offers to return to work and the employers' responses.
Respondent relies on inapposite cases such as Hotel Holi-
day Inn de Isla Verde, 278 NLRB 1027 (1986), and Coca-
Cola Co. of Memphis, 269 NLRB 1101 (1984). Hotel Hoh-
day Inn involved failure of strikers to return to work in
accordance with the provisions of a settlement agree-
ment which had been worked out by the employer and
their union. The employer had offered reinstatement and
the case concerned itself with the failure of the employ-
ees to comply after the union accepted the offer. Coca-
Cola Co. of Memphis and other cases cited by Respond-
ent held that employees must present themselves for rein-
statement within a reasonable time after an employer has
offered to reinstate them, a proposition not at issue in the
absence of a valid offer by Respondent to reinstate I
note Respondent's reaction to the observation contained
in the decision in Coca-Cola Co. of Memphis (269 NLRB
at 1109) that an employer responding to a collective
offer to return makes a lawful offer of reinstatement by
accepting the offer and setting a reasonable reporting
date. Respondent seeks to blunt the effect of its failure to
make such an offer by contending that it had not, after
all, rejected the Union's offer to return to work, and so
must be deemed to have "tacitly" accepted it. That argu-
ment must be rejected. A collective response is required.
The Respondent was required to make a speedy and un-
equivocal offer of reinstatement in response to the
Union's assertion that the strikers would return to work
on December 7 The Union does not run Respondent's
warehouses and cannot by itself place the strikers back
into their work locations; it can only notify Respondent
that the strikers are prepared unconditionally to return to
work. When' it did so, it became incumbent on Respond-
ent to make immediate arrangements for their return to
their former jobs, and to notify them and recall them as
a group, no matter what adjustments this entailed with
respect to the temporary work force which had been
hired in their places. Only the Respondent could do that.
In contending, that it had no duty to respond expressly
to the Union, and that had it done nothing at all, then
any striker who failed to report to work by Friday, De-
cember 11, would have forfeited his job, Respondent
fails to distinguish between the consequences of an offer
to return to work made by the employees themselves
and the legal effect of the kind of agreement involved in
Hotel Holiday Inn, supra, which imposed a binding com-
mitment on the employees to return at an agreed time
I must also reject Respondent's irrelevant paternalistic
argument , not supported by any evidence in the record,
that reinstatement at the Brooklyn warehouse would
have benefited the employees economically and was an
offer made by Respondent for a proper business purpose,
namely, to promote efficiency in the Respondent's over-
all operation.' I also disagree with Respondent's argu-
r Motion by the General Counsel to strike portions of the Respondent's
brief which counsel for the General Counsel contends are unsupported
by evidence in the record is hereby denied All matter submitted by
Continued
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment that reassignment of strikers who had formerly
worked in the Edison warehouse to the Brooklyn ware-
house was permissible because of the single-employer
status of the companies involved. The point is irrelevant
to the present case, in which the issue is whether Re-
spondent met legal requirements for the timely reinstate-
ment of unfair labor practice strikers to their former or
to comparable jobs.
Accordingly, I find that Respondent unlawfully failed
and refused to reinstate certain employees; unlawfully
treated others as having abandoned and forfeited their
employment because of their failure to comply with the
48-hour deadline which Respondent imposed in the mail-
gram sent to them on December 9; and unlawfully dis-
charged employees who did not respond to the offer of
reinstatement at the Brooklyn warehouse.
2. Delays in reinstatement
It is alleged that the Act was violated even with re-
spect to some of the employees whom Respondent did
recall, because their reinstatement was subject to unlaw-
ful delays. The list of these employees compiled from
Respondent's records, which is set forth above, shows
that 3 employees were not reinstated until December 11;
19 employees were compelled to wait until December
14; and 1 employee was not reinstated until December
15:
M.C. Perez-December 11, 1987
Julian Veloz-December 11, 1987
Adolpho Vilchez-December 11, 1987
Augustin Alvarado-December 14, 1987
Erdulfo Rodenzno-December 14, 1987
Altagracia Rodriguez-December 14, 1987
Angelita Collado-December 14, 1987
Elsa Rodriguez-December 14, 1987
Lidia Fernandez-December 14, 1987
Manuel Rodriguez-December 14, 1987
Andres Juarez-December 14, 1987
Matilde Rojas-December 14, 1987
Lourdes Panidgus-December 14, 1987
Victoria Sanchez-December 14, 1987
Mario Corpeno-December 14, 1987
Rogelio Sosa Mora-December 14, 1987
Timothy Mulqueen-December 14, 1987
Carlos Hernandes-December 14, 1987
Alberto Bencosme-December 14, 1987
Santo Pena-December 14, 1987
Rosemary Pacheco-December 14, 1987
Raphael Marte-December 14, 1987
Carlos Santos-December 15, 1987
Piecemeal reinstatement is not compliance with the re-
quirements of law in cases such as this. An employer
may arrange an orderly reinstatement, but it must do so
quickly and in a fashion which does not trample upon
the strikers' right to immediate reinstatement. In its
counsel in posthearing argument has been considered, as it should be,
with due regard having been given to the distinction between argument
and factual recitation, inasmuch as the determination of the issue of fact
herein must of necessity depend entirely and exclusively on the credited
evidence in the record
posthearing brief, Respondent, arguing on the basis of
matters not in the record, asserts that on December 7 ap-
proximately 90 strikers reported for work, `whereupon
Respondent "immediately began the process of orderly
reinstatingemployees as needed. .. ." ' No evidence to
that effect was offered by Respondent. The record is
barren of any evidence of the existence of any conditions
which would have prevented immediate reinstatement of
returning strikers or demonstrated that such reinstate-
ment as was effectuated was reasonably prompt. Rein-
statement on December 11, 14, and 15 is not immediate.
The Respondent is the one who committed the unfair
labor practices that culminated in these proceedings and
it must bear the burden of showing justification for such
a delay in reinstatement. None having been demonstrat-
ed, I find that the Respondent, by reason of such delays,
violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Orit Corporation/Sea Jet Trucking and APA Ware-
houses, Inc., at all times material herein, constituted a
single-integrated business enterprise and a single employ-
er doing business as Gitano Distribution Center (Re-
spondent) and was engaged in commerce within the
meaning-of Section 2(6) and (7) of the Act.
2. United Automobile, Aerospace & Agricultural Im-
plement Workers of America, AFL-CIO (the Union) is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act. '
3. Respondent violated Section 8(a)(1) of the Act by
unlawfully interrogating employees regarding their union
membership, activities and sympathies; conducting sur-
veillance of an employees' meeting; promising employees
wage increases and improved benefits if they would vote
against the Union; coercing employees; threatening em-
ployees with discharge; and suggesting to employees that
support of the Union would be futile.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by transferring William H. Ellicott to different
duties; by suspending William H. Ellicott; and by dis-
charging William H. Ellicott and Kenneth Lalor.
5. Respondent violated Section 8(a)(1) and (3) of the
Act
(a) By failing and refusing to reinstate unfair labor
practice strikers on December 7, 1987 and thereafter.
(b) By delaying the reinstatement of unfair labor prac-
tice strikers and failing to effectuate their immediate rein-
statement.
(c) By discharging unfair labor practice strikers.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist from any continuing violation of the
Act and to take certain affirmative action designed to ef-
fectuate the policies of the Act. The General Counsel
does not seek a remedial order in this proceeding with
ORIT CORP 701
respect to Kenneth Lalor and William H. Ellicott or
with respect to the numerous violations of Section
8(a)(1) of the Act committed by the Respondent during
the months of April and May 1987. Accordingly, I make
no provision regarding those matters. The remedy pre-
scribed herein is directed to the Respondent's refusal to
arrange timely reinstatement of the unfair labor practice
strikers.
The Respondent has committed a series of unfair labor
practices which resulted in what was concededly an
unfair labor practice strike, and committed further viola-
tions of the Act by failing to accord the strikers' their
right to immediate reinstatement after they made an un-
conditional offer to return to work. It is necessary, there-
fore, to issue a broad order requiring Respondent to
cease and desist from interfering in any other manner
with the rights guaranteed employees by Section 7 of the
Act. The actions of Respondent in this matter have been
precisely the type of repetitive conduct in violation of
Section 8(a)(l) and (3) of the Act which could form a
basis for a contempt citation and therefore support a
broad order. Hickmott Foods, 242 NLRB 1357 (1979).
With respect to unreinstated strikers, including those
to whom reinstatement was offered only at a different
work location, I will recommend an order requiring that
they be offered immediate and full reinstatement to their
former jobs, or, if those jobs no longer exist, to substan-
tially equivalent positions without prejudice to their se-
niority or to rights and privileges previously' enjoyed by
them, and that Respondent make them whole for any
loss of earnings that they may have suffered by reason of
the unlawful failure to reinstate them by payment to
them of a sum of money equal to that which they nor-
mally would have earned as wages, from December 7,
the date of the unlawful failure to reinstate them, to the
date of their actual reinstatement, less net earnings, com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), to which shall be added interest
computed in the manner prescribed in New Horizons for
the Retarded, Inc., 283 NLRB 1173 (1987).8
With respect to strikers who were reinstated at any
time after December 7, I will recommend that Respond-
ent be directed to make them whole in the same manner
for any loss of wages or other benefits suffered by them
between December 7 and the date of their actual rein-
statement. By letter dated June 7, 1988, Respondent
moved to reopen the record for admission into evidence
of payroll cards of Ana Rosario, Eligio Rosario, Juana
Rosario, Carmen Sanchez, and Armando Castillo for the
purpose of demonstrating that they had worked immedi-
ately after the end of the strike. The counsel for the
General Counsel has opposed the motion on the ground
that these are matters that can be addressed at the com-
pliance stage. While the complaint is based on allegations
of failure to reinstate employees specifically named in the
second amended complaint, the Order herein provides a
general remedy for all strikers who have not been rein-
stated or whose reinstatement was delayed for any
8 Under New Horizons, interest accruing after January 1, 1987, is com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C. § 6621
period of time past December 7, 1987. Counsel for the
General Counsel is therefore correct in her assertion that
any question relating to these five strikers can be re-
solved at the compliance stage. Accordingly, the motion
to reopen the record is denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondents, Ont Corporation/Sea Jet Trucking
and APA Warehouses, Inc. d/b/a Gitano Distribution
Center, Edison, New Jersey, jointly and severally, and
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate unfair labor practice strikers
immediately upon their unconditional offer to return to
work.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer all unfair labor practice strikers who have
not yet been reinstated immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay they
may have suffered by reason of the refusal to reinstate
them by payment to them of a sum of money equal to
the amount they normally would have earned as wages
from the date of their unconditional offer to return to
work to the date of their reinstatement in the manner set
forth in the section of this decision entitled "The
Remedy."
(b) Pay to all reinstated strikers whose reinstatement
occurred after December 7, 1987, a sum of money equal
to the amount they normally would have earned as
wages from the date of their unconditional offer to
return to work to the date of their actual reinstatement,
in the manner set forth in the section of this decision en-
titled "The Remedy."
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records
needed to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Respondents' warehouses in Edison, New
Jersey, and Brooklyn, New York, copies of the attached
notice marked "Appendix." 110 Copies of said notice, on
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for Region 22,
after being signed by Respondents ' representative, shall
be posted by Respondents immediately on receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Re-
spondents to ensure that said notices are not altered, de-
faced , or covered by any other material.
(e) Notify the Regional Director within 20 days from
the date of this Order what steps Respondents have
taken to comply.