Handy Andy, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 616 (N.L.R.B. 1993)

616
313 NLRB No. 81
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 29, 1989, the National Labor Relations Board
issued its Decision and Order in this proceeding in which it found
that the Respondent violated Sec. 8(a)(3) and (1) as specified above.
Subsequently, the Respondent filed with the United States Court
of Appeals for the District of Columbia Circuit a petition for review
of the Board’s Order, and the Board filed a cross-petition for en-
forcement of its Order. Thereafter, in an opinion dated September
13, 1991, the court remanded the case for further proceedings con-
sistent with the court’s opinion. Southwest Merchandising Corp. v.
NLRB, 943 F.2d 1354 (D.C. Cir. 1991).
By letter dated January 17, 1992, the Board notified the parties in
this proceeding that it had decided to accept the court’s remand and
that statements of position could be filed with respect to the issues
raised by the court’s opinion.
On February 27, 1992, the Respondent filed a statement of posi-
tion. On February 29, 1992, the General Counsel also filed a state-
ment of position.
2 Southwest Merchandising Corp. v. NLRB, supra at 1355–1356.
Our original decision, and the judge’s decision attached thereto pro-
vide a more detailed description of the pertinent facts.
Southwest Merchandising Corporation d/b/a Handy
Andy, Inc. and United Food and Commercial
Workers International Union, AFL–CIO, Local
Union No. 171. Case 23–CA–9311
November 26, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue raised in this proceeding on remand from
the United States Court of Appeals for the District of
Columbia Circuit is whether the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire
24 individuals who had participated in a strike against
the Company’s prior owner.1
The facts, as summarized by the court, are as fol-
lows:2
In 198l Handy Andy, a corporation operating
retail grocery stores, filed for bankruptcy. In early
1982 the bankruptcy court entered an order nul-
lifying the collective bargaining agreement be-
tween Handy Andy and its meat department em-
ployees, who were at the time represented by
Local 171 of the United Food and Commercial
Workers International Union. Soon afterward
some of the meat department employees began an
economic strike. In August, the Employer con-
tends without contradiction, Handy Andy lawfully
withdrew recognition of the Union after a poll of
its employees showed that a majority no longer
wanted the Union to represent them. By the end
of 1982, 24 strikers had unconditionally offered to
return to work, but Handy Andy rejected their of-
fers on the ground that their position had been
eliminated or filled by permanent replacements.
The Union notified the Employer that if it bought
Handy Andy’s grocery stores, then the Union
would demand that it hire Handy Andy’s striking
meat department employees.
On January 31, 1983, Handy Andy ceased op-
erations and terminated all of its employees. The
next day the Employer purchased the grocery
stores and hired some of Handy Andy’s manage-
ment. The news media reported that the trans-
action had taken place and that the Employer
would be accepting job applications, but they did
not say where or when, and the Employer appar-
ently made no attempt to publicize the informa-
tion.
The stores remained closed on February 2 so
that employment applications could be taken
there. According to the Employer, management
generally selected employees that night from
among those who had submitted applications that
day. Some of those hired, however, had not sub-
mitted applications; instead, they were contacted
personally by a store manager on February 2 or
subsequently and told to report to work. The Em-
ployer contends that although some grocery de-
partment employees were hired through this infor-
mal process, every meat department employee that
it hired had filed an application on February 2 and
was selected upon the basis of that application.
The record contains no evidence directly support-
ing or refuting this contention.
On February 3, the Employer reopened the
stores for business. Of approximately 97 em-
ployed in the meat department immediately before
Handy Andy sold the stores, the Employer had
hired 77. None of the former strikers had been
hired.
According to testimony credited by the Admin-
istrative Law Judge, six former strikers had at-
tempted on February 2 to apply at one or another
of the Employer’s stores with an identified super-
visor, as did seven others later that month. Eight
more strikers testified that they attempted to apply
on or after February 2, but they failed to establish
that they spoke to a supervisor. The testimony of
two other strikers who claimed to have tried to
apply was discredited, and one striker said that
she did not try to apply because she thought that
Handy Andy’s earlier rejection of her uncondi-
tional offer to return to work in 1982 indicated
that ‘‘they weren’t going to hire [her] anyway.’’
When they went to the stores to apply for
work, most of the former strikers identified them-
selves as such, some before and some after they
had been told that no positions were available. All
but three were told that the meat department posi-
tions were filled and were refused applications.
One of the Employer’s supervisors testified that
the two former strikers who managed to apply in
617HANDY ANDY, INC.
3 Under that policy, if the application was for a position that had
already been filled, the application was retained in company files for
possible future hiring.
4 Id. at 1361.
5 Id. at 1362.
6 The court appeared to view our decision as possibly based on the
numerical results of the Respondent’s hiring process. We are not re-
lying only on the results of the hiring process, however; our analysis
should demonstrate that we compare the Respondent’s purported
ends with the means chosen to achieve those ends in search of a
lawful explanation of the Respondent’s conduct.
7 We shall, however, limit our examination to those arguments and
business justifications actually placed before us by the Respondent.
8 We recognize that this analysis reverses the usual Wright Line
analysis. However, we are dealing with the case in light of the
court’s remand, rather than as a case for initial decision. Accord-
Continued
February were rejected because of their poor per-
formance when employed by Handy Andy. The
ALJ rejected this claim because it was vague
about the nature of the problem and about when
it had occurred and because it was unsupported by
any other evidence.
During the next seven months, 60 vacancies in
the meat department were filled, but no former
striker was hired. A supervisor testified that at
that time the Employer had a practice of promot-
ing part-time store staff to full-time meat depart-
ment openings, but the company offered no evi-
dence to document this practice.
In addition to these facts recited by the court, we
note that the Respondent had an announced policy of
accepting applications from anyone who filed, irrespec-
tive of when the application was filed.3
As noted above, the Board affirmed the judge’s
findings and conclusion that the Respondent had
discriminatorily refused to hire the former strikers in
violation of Section 8(a)(3) and (1).
In its opinion, the court found that it was ‘‘unable
adequately to review the Board’s decision as a result
of (1) the ambiguity surrounding its legal theory and
the relationship of that theory to the facts found, (2)
the absence of any finding as to whether any meat de-
partment workers were given notice of the application
procedures, and (3) the Board’s failure to consider ob-
vious alternative explanations for the Employer’s hir-
ing as and whom it did.’’4 The court, therefore, re-
manded this matter to the Board for clarification of
these points. The court also questioned the remedy or-
dered by the Board and directed the Board on remand
to clarify ‘‘what must be shown to entitle a non-appli-
cant (or an applicant who did not fully and timely
comply with hiring procedures) to a remedy for dis-
criminatory hiring practices, and explain how that
showing has been made with respect to each former
striker to whom it grants relief.’’5
We have reconsidered our original decision and ad-
here to it: we find that the Respondent violated Section
8(a)(3) and (1) by engaging in a sham ‘‘open to the
public’’ application process, which was intended to,
and did, accomplish these relevant results: 100 percent
of the Respondent’s new meat department employees
had worked for the predecessor, while not 1 of the 24
employees who had struck the predecessor’s meat de-
partment was hired.6 Our theory of this violation of
Section 8(a)(3) and (1) is that, despite the fact that it
wanted to build a meat department work force com-
posed as much as possible from former employees of
the predecessor, the Respondent decided to set aside 1
day to solicit applications from the public and to
choose its initial work force from among the individ-
uals who filed an application that day. Through this
procedure, with its seemingly neutral requirement of a
job application filled out on February 2, the Respond-
ent could ensure that no striker would be hired simply
by preventing the strikers from filling out applications.
In this way, the strikers would not, technically speak-
ing, qualify for consideration and the Respondent
would appear justified in not hiring any of them. At
the same time, the Respondent put together the work
force it had already decided it desired: one composed
almost entirely of the predecessor’s former employees,
but none of the former strikers. We further believe that
the Respondent engaged in this conduct out of animus
against the strikers for having engaged in the protected
activity of striking.
Because the court has criticized us for overlooking
‘‘obvious alternative explanation[s]’’ for the fact that
no strikers made it through the Respondent’s applica-
tion process, we shall approach the questions raised by
the remand in the following way. We shall first con-
sider and presume the truth of the evidence adduced by
the Respondent and its arguments7 in support of the
lawfulness of its conduct, including the Respondent’s
stated criteria for its hires for the meat department and
its witnesses’ testimony about the meat department hir-
ing process. If the Respondent’s method of filling its
meat department vacancies and its showing with re-
spect to the events of its 1-day hiring drive bears a ra-
tional relationship, however remote, to its announced
goals, we shall conclude that the Respondent has re-
butted any prima facie case established by the General
Counsel and we shall dismiss the complaint without
examining the General Counsel’s evidence. If, how-
ever, we find no ‘‘obvious alternative explanations,’’
or, in other words, no rational relationship between the
Respondent’s avowed goals and its procedure for
achieving those goals, we shall examine the General
Counsel’s evidence to determine if, indeed, a prima
facie case has been established. By examining the Re-
spondent’s case first, and assuming that all evidence
presented by the Respondent is true, we shall ensure
that no lawful motivations for the Respondent’s chosen
course of action will go unnoticed.8 Further, in view
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ingly, we adopt this analysis to respond more precisely to the court’s
remand.
9 Id. at 1360.
10 We emphasize that reference to the 24 discriminatees here as
‘‘strikers’’ is purely for convenience, as their strike ended with their
unconditional offer to return to work, communicated to Tamaz on
November 29, 1982.
11 The court has suggested that the Respondent may have been
motivated by a preference for ‘‘incumbent’’ employees, or those still
working in the predecessor’s stores when they closed. As discussed
below, the Respondent has never argued that it had that preference;
it stated that it wanted employees with experience working for the
predecessor, whose former employees fall into four groups: those at
work when the stores were closed, or ‘‘incumbents’’; those on lay-
off; those who were, or who should have been, on a preferential re-
hire list; and those who had left or been discharged by Handy Andy.
We find nothing in the Respondent’s testimony or argument on
which to base an inference that its use of the terms like ‘‘former
employees’’ refers to only one of the above categories, especially
where, as here, heavy layoffs had recently occurred. Again, the Re-
spondent has not argued for such a meaning in its statement of posi-
tion on remand.
12 See Tr. at 68–69 (Tamaz) and 44, 455 (Schroat).
13 Although, as noted above, the previous owner ceased operations
on January 31, some managers and incumbent employees were not
notified of the stores’ closing until February 1.
of the questions raised by the court we have also re-
considered our original remedy. We continue to find
that the appropriate remedy is reinstatement and back-
pay for each of these discriminatees.
Initially, we turn to the court’s concern that our
opinion in the underlying case was based on an
‘‘unarticulated assumption that a successor has a spe-
cial obligation to favor the employees of its prede-
cessor, or at least to treat them all in the same way.’’9
In our earlier decision, we agreed with the judge that
the Respondent is a successor to Handy Andy, Inc. As
the court notes, however, we also stated, that, ‘‘We
. . . find it unnecessary to pass on his [the judge’s]
findings regarding the Laidlaw obligations of a succes-
sor to former economic strikers. . . .’’ In so doing, we
intended to make it clear that we were not passing on
whether the Respondent had an obligation as a succes-
sor to favor the employees of the prior employer or to
treat all these employees in the same way. Thus, al-
though the economic strikers against Handy Andy had
certain reinstatement rights, under Laidlaw, as to
Handy Andy, we are not basing our conclusion on the
proposition that they had such rights as to the succes-
sor to Handy Andy, Inc., i.e., the Respondent. Rather,
we base our analysis and conclusions on the assump-
tion that the Respondent was not obligated to extend
Laidlaw rights to the strikers, and we look to the Gen-
eral Counsel to demonstrate that the Respondent’s fail-
ure to hire any strikers was motivated by discrimina-
tory intent. Pepsi-Cola Bottling Co. of Topeka, 227
NLRB 1959, 1959 fn. 2 (1977).
Thus, we are not confusing the Respondent’s obliga-
tion to the strikers with those of the predecessor. We
are concerned with only two aspects of the strikers’
status: first, their status as former employees of the
predecessor.10 As such, if they applied for jobs with
the Respondent, and the Respondent had decided, as
was its right, to accord a preference to the prede-
cessor’s terminated employees, then the Respondent
could not deny that preference to the strikers solely on
the basis that they had struck the predecessor.11 Sec-
ond, we are concerned with the strikers’ status as stat-
utory employees. If the Respondent decided, as again
was its right, to treat the predecessor’s employees the
same as the general public, then the strikers had a
right, as did any potential employee, to file an applica-
tion and be considered for a job.
We now examine the evidence presented by the Re-
spondent’s witnesses in explanation of the events of
February 2 and the following 7 months with respect to
the meat department. It is undisputed that the Respond-
ent knew of the strike against the predecessor’s meat
department. In addition, many of the predecessor’s
managers and supervisors, including George Tamaz
and Carl Schroat, the predecessor’s meat department
manager and its vice president and general manager,
respectively, continued in the same or similar positions
with the Respondent after the sale. Both Tamaz and
Schroat testified that they knew of the meat department
strike and that they knew the identity of each striker.12
It is also uncontroverted that the Respondent knew
that the economic strikers were interested in coming to
work for it. The Union on November 29, 1982, had
made an unconditional offer on behalf of the economic
strikers to return to work for Handy Andy. The
mailgram the Union sent that day was addressed to
George Tamaz, vice president and personnel director
for Handy Andy, who continued in that capacity for
the Respondent. In addition, in the December 9 letter,
described above, the Union informed the Respondent
‘‘we are demanding that you employ bargaining unit
employees or that you continue employment of any
and all bargaining unit employees.’’
The Respondent’s witnesses testified as to the meat
department’s hiring procedures as follows. According
to Tamaz and Schroat, on February 1 store managers
were told to inform all employees that they were ter-
minated, close the stores down, and set up signs and
tables for accepting job applications the next day. The
store managers were told to accept all applications and
to bring them to the managers for processing at the
end of the day.13
Schroat testified that no other notice of the hirings
was given to meat department employees, except that
news of the sale of the stores and the hiring appeared
on television and in the papers; the court found that
those reports gave no details of the hiring’s time and
place. Schroat testified further that he hired for the
meat department from the applications received—77
employees from 100–150 applications, down 15 from
619HANDY ANDY, INC.
14 Although the expansion of the meat department after the stores
reopened (from 77 on February 2 to 115 on October 10, 1984, the
date Schroat testified) bears out testimony as to the low staffing
level on February 2, this low level was apparently considerably high-
er in some cases than the employment levels immediately before the
sale. According to Bob Simmons, manager of store 22, 6 employees
were working in the store when it closed, while on the day the stores
reopened, approximately 50 people for the store’s grocery depart-
ment alone had been hired out of the 200 who had submitted appli-
cations.
15 Tr. at 426.
16 Tr. at 472.
17 Tr. at 472.
18 Thus, our effort to find an explanation for the Respondent’s
conduct consonant with a lawful intent is stymied by the Respond-
ent’s failure to cast the facts of the record into a light that would
reveal a lawful intent. The Respondent could have shown, for exam-
ple, that its application process was swamped and that consequently
no consideration could be given to any unknown applicant, or that
after an early hour no more applications were available at certain
stores, or that it contacted employees in the meat department who
were currently working, as opposed to those on layoff or on the
preferential hiring list, to inform them that they should apply for the
available jobs. However, there is absolutely no basis in the record
for making any of these findings as the Respondent has not argued
them and has, in fact, stressed evidence that tends to indicate that
the above inferences would be false.
the presale figure of 92. Schroat and his assistants
knew the number of employees needed to staff the
stores’ meat sections and planned to man the stores at
a minimum level14 ‘‘with the best people we could
find, in the applications, best productive people,’’15
and ‘‘knowing . . . the people we put back in there,
we used the criteria of . . . how productive they were
in the markets prior.’’ Schroat further testified that an
individual who had not worked for Handy Andy pre-
viously would have had little or no chance of getting
a job through the application process, because ‘‘[i]t
just so happened that there was enough applications
there of the people that I had already known that had
been previously employed by us.’’16 Schroat’s testi-
mony did not indicate that all 77 hires were ‘‘incum-
bents’’—employees at work in the predecessor’s stores
when it closed. He did, however, testify that the last
months of the predecessor’s operations were marked
by heavy layoffs, so, presumably, some meat depart-
ment employees were laid off. Schroat also testified
that some of the strikers were good employment pros-
pects, with good production records with the prede-
cessor.17
With respect to the court’s instruction that we con-
sider nondiscriminatory reasons why the Respondent
might have preferred ‘‘incumbents’’ or employees
working on the day the predecessor ceased business,
we do not find it possible to infer, as the court sug-
gests, that the Respondent’s actions betrayed a ‘‘pref-
erence for incumbents.’’ The Respondent’s brief to the
Board avers that experience with the predecessor—and
not employment on the day the predecessor was
closed—was the prerequisite for employment with the
Respondent’s meat department. The Respondent has
never argued that it had a preference for those at work
on the predecessor’s last day; only that its criteria were
previous employment with the predecessor, a credential
each striker possessed, and a good record, a credential
many of the strikers possessed. In its brief, the Re-
spondent described its standards: ‘‘[i]n reviewing those
applications on the evening of February 2, and in de-
termining who was a ‘good prospect,’’’ Schroat, Hurla,
and Keller relied heavily on their ‘‘previous experience
with former employees of the Debtor-in-Possession be-
cause their work habits, skills and productivity were
already a known factor.’’
The Respondent concedes that three strikers sought
employment on February 2 and were turned away, in
some cases along with other prospective applicants
who were also waiting to apply. Paradoxically, the Re-
spondent does not aver that its public application proc-
ess was a failure, or that individuals who might well
have been qualified to work in its stores, perhaps even
more qualified than some of those who were chosen,
were unable to submit applications. Instead, the Re-
spondent emphasized both in testimony and in its brief
that applications were accepted and that meat market
employees were chosen from those who filled out ap-
plications, and that the meat department got exactly the
type of individuals it wanted: former employees with
record of productive employment with the prede-
cessor.18 The strikers who testified that they were re-
fused applications provide the only hint that anyone
was turned away; under the Respondent’s view of the
facts, everyone who sought to apply was given an ap-
plication and that application was screened and consid-
ered with all the others. This view of the facts appears
inconsistent with the admission that three strikers were
flatly turned away when they attempted to apply and
the credited evidence that still others were turned
away.
If the only prerequisites for employment in the Re-
spondent’s meat department were prior employment
and a good record with the predecessor, as the Re-
spondent stated in its brief and its witnesses testified,
why did the Respondent invite the public to fill out ap-
plications only to have them summarily rejected by
Schroat and his assistants? The Respondent’s witnesses
do not explain; they do not claim credit for devising
the hiring scheme. The answer, we believe, lies in the
Respondent’s argument that it
had the lawful right to consider only applicants
who had submitted an individual application for
employment. This was a non-discriminatory and
uniform requirement of all applicants, including
the former employees of the Debtor-in-Possession.
Under the circumstances, requiring the strikers to
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Moreover, even if the above inferences are rejected, and the
court finds that the Respondent’s invitation to the public to apply for
jobs with the new Handy Andy was not a sham, the evidence sub-
mitted by the General Counsel demonstrates, as will be seen below,
that every striker who tried to participate in that public event was
denied the opportunity accorded the general public of submitting an
application and being considered for a job.
20 See NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), in which the Supreme Court endorsed the Board’s test set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), for determining
if a discharge or other disciplinary act is motivated by an employ-
ee’s protected activity.
submit individual applications cannot serve as evi-
dence of any discriminatory intent.
This argument would be sufficient to explain the
Respondent’s course of action both legally and prac-
tically if setting up a 1-day public application process
and requiring prospective employees for at least one
department to fill out an application on that day, with-
out providing any advance notice to any group, includ-
ing currently working employees, was rationally relat-
ed to the Respondent’s stated goals for its meat depart-
ment hiring. But the application process was thor-
oughly inconsistent with the Respondent’s declared
standards: previous experience with the predecessor
and a good record. Further, under the Respondent’s
system, the applications Schroat reviewed offered no
assurance that all former employees, or even all ‘‘in-
cumbent’’ employees who wanted jobs with the Re-
spondent applied for the jobs or that the Respondent
was getting the most experienced and best qualified
employees, as Tamaz and Schroat both testified that
employees from the meat department received no ad-
vance notice of the February 2 process. Thus, not all
the predecessor’s former employees—even those at
work on the last day—could have known of the 1-day
application period. For the general public, of course,
the application procedure was an exercise in futility.
Thus, we cannot conclude that the application proce-
dure, at least as far as the meat department is con-
cerned, bore a rational relationship to the Respondent’s
stated goals: in fact, it is difficult to conceive of a pro-
cedure less likely to achieve the results the Respondent
sought. We must look, then, as the court has in-
structed, for other explanations for the Respondent’s
course of action. The court has suggested some reasons
why the Respondent might have preferred ‘‘incum-
bent’’ employees, but we cannot conclude that any of
them corresponds to the reasons for the application
procedure, because the Respondent has not asserted to
us, even in its statement of position to the Board after
the court’s suggestions, that it considered any reason
mentioned by the court when the hiring process oc-
curred. Further, the court’s proffered reasons go only
to the makeup of the work force ultimately chosen, not
to the process for choosing it.
The Respondent’s only explanation for the process
is quoted above: it had the right to require applica-
tions, and, in its view, no one could find that the appli-
cation requirement, applied to the strikers, was dis-
criminatory. To add other rationale to the Respondent’s
case would be to second-guess its judgment, and we
shall refrain from that.
Our examination of evidence propounded by the Re-
spondent leads inexorably to the following inferences:
first, that the Respondent could not have achieved its
hiring goals without according the predecessor’s termi-
nated employees special consideration in putting to-
gether its work force, and second, that it denied the
strikers this consideration based on their protected ac-
tivity.19 We conclude, then, based on the Respondent’s
evidence as to the design and function of the February
2 hiring process, that no rational connection between
goal and procedure exists, that the Respondent had no
legitimate business justification for its public hiring
process with respect to the meat department, and that
the public hiring procedure is so antithetical to the Re-
spondent’s stated goals that we can only conclude that,
at least with respect to the meat department, the proce-
dure was a sham intended to prevent or discourage the
filing of applications by the strikers. In this way, it
could avoid being put in the position of having to ei-
ther hire them or reject them and run the risk of being
accused of discriminating against them for their striker
activities.
We now turn from the Respondent’s evidence with
respect to its hiring procedure to the evidence adduced
by the General Counsel in support of allegations that
the hiring process discriminated against the strikers.
As the court notes, it is well-established that an em-
ployer which declines to hire a person because of his
or her union membership or union activity violates
Section 8(a)(3) and (1) of the Act. As the court stated,
‘‘In order to establish liability for such discriminatory
hiring, the General Counsel must make a prima facie
showing sufficient to support an inference that the em-
ployees’ participation in the protected conduct (here,
participation in a strike) was a ‘motivating factor’ in
the employer’s decision. The burden then shifts to the
employer to demonstrate that it would have taken the
same action even if the employees had not engaged in
the protected conduct.’’20 According to the credited
testimony, six of the former strikers attempted to apply
with supervisors on February 2, the day the Respond-
ent closed the stores with the stated intention of taking
applications from everyone. Only one, Frankie
Danmon, was successful in actually filing an applica-
tion.
All five others, Irene Ponce, Beatrice Arredondo,
Pete Ruiz, Rebecca Castillo, and Rose Polk, were
turned away by the Respondent’s supervisors. Polk
sought to apply early at store 3 between 10 or 10:30
a.m. She talked to a man identified to her as the store
621HANDY ANDY, INC.
21 One and perhaps two former strikers were similarly turned away
on February 2 by the nonsupervisory personnel. Former striker Rosa
Moralez went to store 41, identified herself as a striker, and asked
for an application. She was told that the store did not need anyone.
Mary Alice Guzman applied at store 9 about February 2. She was
told by the person at the window they were not hiring anyone. While
these rejections are by nonsupervisors, they follow the pattern expe-
rienced by former strikers who spoke with supervisors. The Re-
spondent acknowledged that applying at its office or courtesy win-
dow is the customary means of applying for a job at its stores.
22 The court did not indicate that it had any reservations concern-
ing this finding.
23 Six other strikers (Alfred Canedo, Stella Alvaredo, Pauline
Cabido, Fred Barbazo, Carlos Dimas, and Jose Lopez) sought to file
applications after February 2. Although the evidence was insufficient
to establish that any of the six spoke with a supervisor, they were
subjected to the same pattern of conduct. Indeed, one of them
(Cabido) was told outright albeit by a nonsupervisory grocery man-
ager, that the Respondent would not hire him because he was an ex-
striker and a union member. Two of them (Barbazo and Dimas)
were told that the Respondent was not taking any more applications.
Two others (Lopez and Cabido) were told there were no application
forms or the Respondent was not handing out applications anymore.
Alvaredo was told that the Respondent was not hiring.
24 The court did not indicate that it had any reservation concerning
this finding.
manager and identified herself as a striker. Despite the
fact, according to the Respondent, that no hiring deci-
sions were made for the meat department until that
evening, Polk was told that the Respondent was not
taking any more applications. Ponce went to store 26
and spoke with Laubach whom she heard was the
manager. Ponce asked Laubach for an application, ex-
plaining that she was a striker applying for a job.
Laubach told her he was not giving out applications
for the meat department. Arredondo went to store 11.
While Arredondo was waiting in line, the store’s as-
sistant manager, Tony Garcia, came and told everyone
that the Respondent was out of applications.
Arredondo testified that Garcia said to her, ‘‘oh you’re
here, Beatrice, in line.’’ Arredondo replied ‘‘yeah, I
want a application.’’ Garcia replied ‘‘we’re out of ap-
plications.’’ Arredondo then left. Ruiz went to store 9
and spoke to a man who appeared to be in charge.
Ruiz recalled that the man was handing out applica-
tions while he was waiting. When Ruiz asked for an
application he was told that ‘‘they were not giving out
no more applications.’’ Castillo went to store 41. She
talked to a man whom she identified by his badge as
the assistant manager. Castillo identified herself as a
striker and stated that she wanted an application for the
meat market. The man told Castillo that he was not
taking any more applications. With the possible excep-
tion of those who happened to be in line with
Arredondo, there was no evidence that anyone other
than the strikers were prevented from filing applica-
tions.21
Further evidence supporting the inference that the
Respondent’s motive was to keep from having to hire
former strikers is the experience of Frankie Danmon,
the only former striker who was able to file an applica-
tion on February 2. As we found in our earlier deci-
sion, the Respondent simply refused for pretextual rea-
sons to hire him.22
The pattern continued with the former strikers who
attempted to apply after February 2. Seven former
strikers (Alice Arriaga, Edward Martinez, Rose Mary
Burk, Onelia Heredia, Allen Love, Henry Perez, and
Joe Huerta) spoke with a supervisor or an individual
who appeared to be a supervisor. Five of the seven
(Arriaga, Burk, Heredia, Martinez, and Love) were told
either that ‘‘the jobs were filled,’’ ‘‘there were no
openings,’’ ‘‘or something similar.’’ Although the Re-
spondent has a policy of maintaining applications on
file for future vacancies, the Respondent did not in-
form any of the five that procedure was available to
them. A sixth employee, Henry Perez, was simply told
that there were no application forms available.23
Of the seven, only Joe Huerta was permitted to file
an application on his initial attempt. As found in our
earlier decision, Huerta’s application was considered
and rejected for pretextual reasons. Subsequently,
Arriaga on her second attempt in August 1983 was
able to file an application. Arriaga has not been con-
tacted for employment by the Respondent.24
Between February 2, 1984, and the hearing date, 7
months later, the Respondent filled 60 vacancies in the
meat department. It did not hire any of the former
strikers. The Respondent contends that ‘‘many’’ of
these positions were filled by converting part-time em-
ployees under the predecessor to full-time status. The
Respondent has not, however, offered any evidence to
support that contention. Neither does it claim that all
these positions were filled in this manner.
Based on the above, we find that the General Coun-
sel has established a strong prima facie case to support
the allegations that the Respondent discriminated
against the strikers for their protected activity. Further,
as we have already determined that the Respondent has
established no plausible rationale for its course of ac-
tion, we conclude that the Respondent has violated
Section 8(a)(3) and (1).
It is quite evident from the facts recited above that
the Respondent set up a hiring scheme designed to
avoid having to consider the former strikers for hire
and that it at all times adhered to that scheme. The
scheme is most clearly established by the conduct of
its supervisors on February 2 when they prevented five
former strikers from filing applications, thereby avoid-
ing the need to consider them, and refused to hire an-
other for pretextual reasons. The Respondent’s post-
February 2 conduct also fits that pattern. Thus, the Re-
spondent ignored its announced policy of taking appli-
cations from everyone and, with rare exception, re-
fused to take applications from former strikers who
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 As the court suggests, we find such inconsistency evinces
antiunion animus. Shattuck Denn Mining Corp. v NLRB, 362 F.2d
466, 470 (9th Cir. 1966).
26 While we continue to rely on the actions of the supervisors as
the primary evidence of discrimination, the actions of the nonsuper-
visors, as noted above, follow the same pattern and are consistent
with the action of the Respondent’s supervisors.
27 Even were we to conclude, which we do not, that an attempt
to file an application was required before a former striker could be
considered a discriminatee, we would find that each discriminatee
who made such an attempt was entitled to backpay from the date
of the first new hire after they filed, or attempted to file, an applica-
tion.
sought employment.25 It also refused to hire Joe
Huerta for pretextual reasons. Further, despite the fact
that the strikers were experienced, and the Respond-
ent’s assertion that it desired an experienced work
staff, none of the strikers was ever hired. (This in-
cludes Alice Arriaga from whom the Respondent did
accept an application in August 1983.) Therefore, we
reaffirm our finding that the Respondent sought to pre-
clude the hire of the former strikers and that it set up
and operated its hiring procedure in such a way as to
insure that it did not need to do so.26
In our original decision, we relied on the fact that
the Respondent called some employees to ask them to
apply for jobs, but did not call any former strikers for
this purpose and that the Respondent hired some em-
ployees without prior applications, but required all
former strikers to file applications as a condition of
being hired.
The court expressed reservations about our reliance
on these facts. We find that the pertinent testimony is
that the Respondent’s witnesses did not themselves
contact any meat department employees or know of
any contact of meat department employees before the
1-day hiring process and we will not second-guess the
judge by finding that either Schroat or Tamaz was un-
truthful. But the witnesses’ knowledge of what hap-
pened on February 2 cannot encompass every action
by every agent of the Respondent; therefore, we find
that there is room, without discrediting the Respond-
ent’s witnesses, for inferring that the application proce-
dure was, like the hiring procedure, weighted toward
the predecessor’s employees in some manner. We infer
that some former employees of the predecessor’s meat
department were called by agents of the Respondent
and told about the 1-day application procedure, urged
to come into the stores and apply for the jobs, and that
these calls explain why the 1-day hiring process re-
sulted in a work force composed entirely of the prede-
cessor’s former employees but no strikers.
In any event, we wish to make it clear that, in our
view, the discriminatory motive would be established
even without reference to these factors.
Based on the above, we conclude that the Respond-
ent sought to exclude the strikers from consideration.
The court suggests that there might have been a legiti-
mate reason for doing so, i.e., that, the predecessor’s
employees who were working at the time of the take-
over had recently worked together and the supervisors
were familiar with their work. However, the strikers
were experienced workers and the supervisors were fa-
miliar with their work. Their work experience was rea-
sonably recent, inasmuch as the strike began on April
24, 1982, and the hirings were in February 1983. In
any event, certainly the strikers were preferable, in an
experiential sense, to those who had never worked for
the Respondent. As to these hires, there was no famili-
arity with their work.
The Respondent does not present any evidence that
any of the former strikers would have been denied em-
ployment even if they had not engaged in the protected
conduct. Therefore it has not met its burden under
Wright Line, supra. Accordingly, we adhere to our
finding that the Respondent violated Section 8(a)(3)
and (1) by refusing to employ the former strikers.
Remaining for consideration are the concerns the
court expressed about the Board’s remedy ordering re-
instatement of those employees who applied after Feb-
ruary 2 and of the three employees who never filed ap-
plications for employment—Shirley Walker, Alice
Arriaga, and Roger Wendel. We have carefully consid-
ered our proposed remedy in light of the court’s com-
ments. In particular, we have considered the court’s
comments with respect to a futility rationale and agree
that while, as an objective matter, it would have been
futile for employees to apply, there is little or nothing
to demonstrate that was the reason that these former
strikers did not apply or did not do so on February 2.
We continue, however, to be of the view that the prop-
er remedy is full reinstatement and backpay for all 24
employees.
With respect to those who applied but did so after
February 2, we note that the Respondent hired 60 meat
department employees after February 2. No striker was
hired. With respect to those who never applied, we
note that the Union had made a request for reinstate-
ment for all strikers, and thus the Respondent knew
that they all wanted to work for it. In addition, the Re-
spondent’s policy was to hire experienced employees.
Finally, we note that the Respondent hired some em-
ployees in other departments without application. How-
ever, it failed to extend that privilege to strikers. In
these circumstances, we find that, but for the Respond-
ent’s discriminatory plan, it would have hired strikers
even if they did not apply. Finally, to the extent that
there is doubt on this point, such doubts should be re-
solved against the wrongdoer whose other unlawful ac-
tions in the hiring process created uncertainty.
Therefore, we adhere to the previous remedy in our
original decision ordering reinstatement and backpay
commencing February 2, 1983.27
623HANDY ANDY, INC.
ORDER
The National Labor Relations Board reaffirms its
Order in the underlying proceeding, 296 NLRB 1001
(1989), and orders that the Respondent, Southwest
Merchandising Corporation d/b/a Handy Andy, Inc.,
shall take the action set forth in that Order.