Harvey Engineering Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1984

270 N.L.R.B. 1290 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harvey Engineering & Manufacturing Corporation
and UBC, Southern Council of Industrial Work-
ers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 26-CA-
9020
21 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 9 July 1982 Administrative Law Judge
Howard I. Grossman issued the attached decision.'
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
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
conclusions only to the extent consistent with this
Decision and Order.
1. We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by refus-
ing to reinstate striking employees Donald Brad-
bury, Tommy Kemp, Hank Meeks, Teddy Orrell,
Jewell Shields, Melvin Thompson, Roy Tracy, 3
Michael Rigsby, and Robert Lewis. 4
M On 2 August 1982 the judge issued an Erratum to his decision.
g The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
I The Respondent contends that Bradbury, Kemp, Meeks, Orrell,
Shields, Thompson, and Tracy were involved in nail strewing at the Re-
spondent's driveway while on the picket line.
The credited evidence reflects that Kemp, Meeks, and Shields were
not on the picket line 17 July 1980 when tacks were discovered in the
Respondent's driveway. Chairman Dotson and Member Dennis therefore
find it unnecessary to rely on the judge's analysis set forth at sec. III,D,I
of his decision.
Chairman Dotson and Member Dennis also find it unnecessary to rely
on the judge's analysis with respect to the 17 July 1980 allegations in-
volving Tracy or the 28 July 1980 allegations involving Bradbury, Orrell,
and Thompson. There is no record evidence identifying those responsible
for placing tacks in the driveway. Chairman Dotson and Member Dennis
therefore find that Tracy, Bradbury, Orrell, and Thompson did not
engage in strike misconduct.
4 The Respondent contends that while on the picket line Rigsby hit a
nonstriking employee (Teodor Morcan). The Respondent further con-
tends that Lewis blocked Morcan's car while Morcan was returning
home from work.
Chairman Dotson and Member Dennis rely on the judge's findings that
Rigsby and Lewis did not engage in the asserted misconduct. They there-
fore find that the Respondent violated Sec. 8(a)(3) and (1) of the Act by
failing and refusing to reinstate them. In crediting Rigsby's version of the
events, Chairman Dotson and Member Dennis find it unnecessary to rely
on the judge's apparent finding that Morcan's statement that he was
"among" the pickets suggests that he sympathized with their cause.
270 NLRB No. 186
2. The judge ultimately concluded that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by failing to reinstate economic strikers Larry
Jackson, J. R. Harvey, and Brian Michael Scrog-
gins. We agree. The judge based that conclusion on
his finding that the Respondent did not establish
that Jackson's and Harvey's jobs were filled by
permanent replacements. The judge therefore
found that Jackson and Harvey were entitled to
immediate reinstatement on their unconditional re-
quest. The judge further found that Scroggins had
been permanently replaced. The judge reasoned,
however, that the Respondent should have offered
Scroggins the first available job for which he was
qualified as interim employment. The Respondent
excepts, inter alia, to the judge's findings set out
above. We find merit in certain of these exceptions.
The Facts
The Respondent's employees engaged in an eco-
nomic strike between 8 July and 8 August 1980.5
By letter dated 10 August the Union informed the
Respondent that the strike had ended 8 August and
that the strikers were "available for work upon no-
tification." Jackson, Harvey, and Scroggins each
received an 8 October letter from the Respondent
stating:
Hemco [Harvey Engineering and Manufactur-
ing Corporation] now has a job vacancy in
your classification. If you desire to accept this
job offer, report to Sid Sewell at the plant
ready for work at 5:00 P.M., Wednesday, Oc-
tober 15, 1980. If you do not present yourself
in the manner and at the time specified above,
Hemco will assume that you do not want rein-
statement.
The Respondent maintains two work shifts: a
day shift beginning at 7:30 a.m. and ending at 5
p.m. and a night shift beginning at 5 p.m. and
ending at 2:30 a.m. At the strike's inception, Jack-
son, Harvey, and Scroggins were all working on
the day shift in their respective classifications: la-
borer (Jackson), machine operator/cut-up (Har-
vey), and machine operator/lathe (Scroggins).
The credited testimony reflects that Jackson,
Harvey, and Scroggins each responded to the letter
by contacting the Respondent's vice president, Sid
Sewell. Jackson asked why there was no available
day-shift vacancy and reminded Sewell that he had
been hired for that shift. Sewell stated that only
night-shift jobs were available, and Jackson replied
that he would not accept Sewell's offer.
I All dates occurred during 1980 unless otherwise indicated.
1290
HARVEY ENGINEERING CORP.
Harvey reminded Sewell that he had received a
transfer to the day shift just prior to the strike and
requested a day-shift position. Sewell replied that
he had no day-shift positions, but that he would
call Harvey when one became available.
Scroggins inquired whether the available job was
on the night shift, and Sewell confirmed that it
was. Scroggins reminded Sewell about his wife's
illness, which required that Scroggins be at home
in the evenings. Sewell responded that there were
no openings on days at that time. Scroggins replied
that he wanted to return to work, and Sewell reit-
erated that there were no openings on the day
shift. Scroggins contacted Sewell in June 1981 and
was again informed that there were no day-shift
openings.
On 27 October the Respondent hired two labor-
ers (Jackson's classification) to work on the day
shift: Dennis Betts and Eston Henry. On 5 July
1981 the Respondent transferred Betts and Henry
to machine operator/cut-up (Harvey's classifica-
tion) on the day shift. The Respondent "re-hired"
Mike Baka 27 October as a night-shift machinist
and then transferred Baka to day-shift machine
operator/lathe (Scroggins' classification) 7 January
1981.6
Procedural Errors in the Judge's Decision
The judge concluded that the Respondent un-
lawfully failed and refused to reinstate Jackson and
Harvey 10 August, the date of the unconditional
request for reinstatement. The judge based this
conclusion on his finding that the Respondent did
not establish that Jackson's and Harvey's jobs were
filled by permanent replacements. The judge also
found that the Respondent failed to provide evi-
dence of any business justification to support its
failure to reinstate Jackson and Harvey to their
prestrike jobs.
We find merit in the Respondent's contention
that the permanent replacement issue was not al-
leged or litigated. Paragraph 11 of the complaint
alleges that "[s]ince on or about October 20, 1980,
and continuing to date, Respondent failed and re-
fused to reinstate [Jackson and Harvey]" because
they engaged in an economic strike. Counsel for
the General Counsel clarified this allegation at the
hearing:
At the time . . . the Company made the offers
of reinstatement to work on the second shift,
there were no first shift jobs available for those
individuals. However, it is our position that
first shift jobs for these individuals opened sub-
sequently, and that they were entitled to offers
of reinstatement to those jobs at times that
they became open. [Emphasis added.]
Contrary to the judge, counsel for the General
Counsel did not contest the Respondent's failure to
reinstate Jackson and Harvey at the strike's conclu-
sion. He conceded that Jackson and Harvey had
been permanently replaced and he thus limited the
complaint allegations to the Respondent's failure to
reinstate Jackson and Harvey to their prestrike jobs
when those jobs became available. The record also
shows that the parties litigated the case as delineat-
ed by the General Counsel. We therefore conclude
that the issue of whether the Respondent hired per-
manent replacements was not alleged or litigated,
and we do not adopt the judge's conclusion that
Jackson and Harvey were entitled to reinstatement
to their prestrike jobs as of the Union's 10 August
request.
The judge further found that the Respondent un-
lawfully failed to reinstate Scroggins 27 October.
Scroggins' day-shift machine operator/lathe job
had been filled by permanent replacement John
Gray. The judge reasoned that Scroggins was
qualified to fill one of the two day-shift laborer
jobs which became available 27 October. The Re-
spondent, however, had hired two new employees,
Betts and Henry, to fill the day-shift laborer open-
ings. The judge recognized that the laborer job
was not substantially equivalent to Scroggins' pres-
trike job, but nevertheless held that the Respondent
was obligated to offer it to him.
We find merit in the Respondent's contention
that this issue was not alleged or litigated. We
therefore do not rely on the judge's discussion of
whether Scroggins should have been reinstated to
any day-shift job for which he may have been
qualified. The General Counsel stated his position
that "by declining the offer of reinstatement to the
second shift, [Jackson, Harvey, and Scroggins] did
not waive any future right to recall to their positions
on the first shift when those positions became open
on the first shift." (Emphasis added.) The General
Counsel thus confined the scope of the complaint
to the unlawful failure to reinstate the discrimina-
tees to their prestrike positions and did not allege
that the Respondent violated the Act by failing to
offer them jobs that were not substantially equiva-
lent to their former positions. We therefore do not
adopt the judge's conclusion-or rely on its under-
lying rationale-that Scroggins was entitled to re-
instatement 27 October.
6 On that date permanent replacement John Gray (day-shift machine
operator/lathe) left the Respondent's employ.
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Merits
The Respondent did violate Section 8(a)(3) and
(1) of the Act as described below. The Respond-
ent's 8 October letter offered night-shift employ-
ment to Jackson, Harvey, and Scroggins in their
respective classifications. Each had previously
worked on the day shift, and each declined the
offer of a night-shift job. The threshold issue is
whether the Respondent's offer of night-shift jobs
to Jackson, Harvey, and Scroggins-within their
respective classifications-constituted an offer of
"substantially equivalent" employment.
An employer is obligated to accord economic
strikers preferential status and to immediately rein-
state them on application when their previous or
substantially equivalent positions become available,
absent legitimate and substantial business justifica-
tions. NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967); Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970). The Board has held that an offer
of employment for a different shift is not "substan-
tially equivalent." An employee's refusal to accept
this offer does not alter his status as a former eco-
nomic striker desiring reinstatement or operate to
remove him from the preferential hiring list. See,
e.g., MCC Pacific Valves, 244 NLRB 931, 944-945
(1979); Alcan Cable West, 214 NLRB 236, 237 fn. 3
(1974). We find that the Respondent's 8 October
letter did not offer Jackson, Harvey, or Scroggins
substantially equivalent employment. They there-
fore retained their status as former economic strik-
ers awaiting reinstatement.
On 27 October two vacancies occurred in the
day-shift laborer classification. The Respondent
hired two new employees on that date and did not
offer Jackson his prestrike position. In support of
its hiring decision, the Respondent asserted that
when Jackson declined the offer of a night-shift la-
borer job he lost his eligibility for reinstatement to
his day-shift laborer position.
As a former economic striker seeking reinstate-
ment to his prestrike job, Jackson occupied a pref-
erential position with respect to any new hires.7
Further, the Respondent's assertion that Jackson
lost his reinstatement rights when he refused the
night-shift laborer job is not a legitimate and sub-
stantial business justification within the meaning of
Fleetwood Trailer and Laidlaw. We therefore con-
clude that the Respondent violated Section 8(a)(3)
and (1) of the Act 27 October when it filled Jack-
son's prestrike job with a new hire and thereby
failed and refused to reinstate him.
7 Fleerwood Trailer, 389 U.S. 375; Laidlaw Corp., 171 NLRB 1366.
On 5 July 1981 two day-shift vacancies arose in
the machine operator/cut-up classification. The Re-
spondent transferred the two new employees, Betts
and Henry, from their day-shift laborer jobs into
the day-shift machine operator/cut-up positions.
Harvey was not offered his prestrike job.
Permanent replacement John Gray occupied
Scroggins' prestrike job (day-shift machine oper-
ator/lathe) until 7 January 1981. On Gray's depar-
ture the Respondent transferred Mike Baka from
night-shift machinist to the day-shift machine oper-
ator/lathe position. The Respondent described
Baka as a "rehire" employed 27 October after the
strike had ended.8
The issue presented is whether the Respondent
violated the Act by transferring Betts and Henry
instead of recalling Harvey and by transferring
Baka instead of recalling Scroggins. The Board's
MCC Pacific Valves decision" is relevant. At the
conclusion of an economic strike MCC began post-
ing jobs for bidding by employees then on the pay-
roll, including permanent strike replacements and
reinstated strikers. At the time of posting there re-
mained a number of unreinstated strikers who were
qualified to perform the posted jobs. Unreinstated
strikers were not permitted to bid on some posted
positions. Other posted jobs were offered to unrein-
stated strikers only if there were no successful
within-plant bidders. In a number of cases unrein-
stated strikers who were not offered an opportuni-
ty to bid on the posted jobs were instead invited to
bid on jobs which arose as a result of a "chain re-
action" effect.
Citing Laidlaw and Crossroads Chevrolet,'° the
Board pointed out that at least some of the MCC
job vacancies resulted from the departure of strike
replacements. The Board reasoned that MCC was
not entitled to prefer strike replacements then on
the payroll to qualified strikers awaiting reinstate-
ment for bidding on, and filling, those vacancies.
MCC was thus obligated to make the initial job va-
cancies available to unreinstated qualified strikers
and could not wait until the "chain reaction" bid-
ding procedure had run its course. I
8 The Respondent did not define "rehire." Baka's name does not
appear on the list of striking employees who returned to work or were
recalled. We therefore conclude that Baka was not a reinstated striker.
9 244 NLRB 931 (1979), enf. denied in relevant part without opinion
665 F.2d 1053 (9th Cir. 1981). See also Randall, Burkart/Randall, 257
NLRB I, 4-5 (1981), enfd. in relevant part 687 F.2d 1240 (8th Cir. 1982),
which involved "special rated jobs" analogous to the MCC fact pattern.
10 233 NLRB 728 (1977), enfd. without opinion 603 F.2d 223 (9th Cir.
1979).
'' The Board rejected MCC's business justificatioin defense as "incred-
ibly general" and "unsupported by either specific facts or documentary
evidence." MCC, 244 NLRB at 934.
1292
HARVEY ENGINEERING CORP.
The instant case is even a stronger one for find-
ing a violation because the Respondent filled the
vacancies at issue not by transferring permanent re-
placements, but by transferring employees newly
hired after the conclusion of the strike. In support of
the transfers the Respondent asserts only that
Harvey and Scroggins declined the offer of night-
shift jobs within their classifications so that they
were no longer entitled to reinstatement to their
day-shift positions. We have already found that the
night-shift positions offered were not substantially
equivalent employment. We therefore conclude
that the Respondent has not presented a legitimate
and substantial business justification for its other-
wise unlawful actions. Accordingly, we find that
the Respondent violated Section 8(a)(3) and (1) of
the Act when it failed and refused to reinstate
Harvey 5 July 1981 and Scroggins 7 January 1981
to their day-shift positions.
The 10(b) Issue
The Respondent contends that certain complaint
allegations are barred by Section 10(b) of the Act.
The Respondent argues that the operative date for
the allegations concerning Jackson, Harvey, and
Scroggins is 15 October 1980 when they failed to
appear for night-shift work. The Respondent's 8
October letter stated that the Respondent would
"assume" that employees not reporting for work 15
October did not want reinstatement. The Respond-
ent therefore contends that the "discriminatory
act" occurred 15 October, more than 6 months
prior to the service of the charge 21 April 1981.
Contrary to the Respondent, we find that the
10(b) period did not begin running 15 October. As
the judge pointed out, the Respondent's 8 October
letter was ambiguous and did not state unequivo-
cally that the strikers' recall rights would be termi-
nated unless they reported to work 15 October.
Further, when Jackson, Harvey, and Scroggins re-
ceived the letter, each contacted the Respondent
and stated their continuing interest in reinstatement
to their prestrike positions. The Respondent falsely
informed Harvey that he would be contacted when
a day-shift job became available, and Jackson and
Scroggins were merely told that there were no
available day-shift vacancies. Under these circum-
stances, we conclude that the Respondent has not
satisfied its burden of showing that the discrimina-
tees had "clear and unequivocal" notice 15 October
that the Respondent did not intend to reinstate
them. Strick Corp., 241 NLRB 210 fn. 1 (1979).
CONCLUSIONS OF LAW
1. Harvey Engineering & Manufacturing Corpo-
ration is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. UBC, Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to reinstate economic
strikers Donald Bradbury, Tommy Kemp, Robert
Lewis, Hank Meeks, Teddy Orrell, Michael
Rigsby, Jewell Shields, Melvin Thompson, and
Roy Tracy because of their participation in an eco-
nomic strike, the Respondent has engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By failing and refusing to reinstate economic
strikers Larry Jackson, J. R. Harvey, and Brian M.
Scroggins to their former jobs when vacancies in
those positions, created by the departure of strike
replacements, were filled by employees hired sub-
sequent to the conclusion of the strike, the Re-
spondent violated Section 8(a)(3) and (1) of the
Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act.
Because the Respondent has unlawfully failed
and refused to reinstate economic strikers Donald
Bradbury, Tommy Kemp, Robert Lewis, Hank
Meeks, Teddy Orrell, Michael Rigsby, Jewell
Shields, Melvin Thompson, and Roy Tracy for the
reasons set out in paragraph 3 of the Conclusions
of Law, above, we shall order that they be offered
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed. We shall further order the Respondent
to make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in Flor-
ida Steel Corp., 231 NLRB 651 (1977).12
12 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because the Respondent has unlawfully failed
and refused to reinstate economic strikers Larry
Jackson 27 October 1980, J. R. Harvey 5 July
1981, and Brian M. Scroggins 7 January 1981 to
their former jobs when vacancies in those positions
became available, we shall order that they be rein-
stated to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed. We shall
further order the Respondent to make them whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against them by
payment to each of them of a sum of money equal
to that which each employee normally would have
earned as wages from the date of the Respondent's
discriminatory refusal to reinstate them, less any
net interim earnings. Backpay, with interest, shall
be computed in the manner prescribed above.
In accordance with our decision in Sterling
Sugars, 261 NLRB 472 (1982), we shall order the
Respondent to remove from its files any reference
to alleged strike misconduct with respect to
Donald Bradbury, Tommy Kemp, Robert Lewis,
Hank Meeks, Teddy Orrell, Michael Rigsby,
Jewell Shields, Melvin Thompson, and Roy Tracy,
and any reference to the Respondent's unlawful
failure to reinstate the above-named employees and
Larry Jackson, J. R. Harvey, and Brian M. Scrog-
gins. We shall further order the Respondent to
notify the above-named employees that this has
been done and that the evidence of alleged strike
misconduct and the Respondent's unlawful failure
to reinstate them will not be used against them in
any way.
ORDER
The National Labor Relations Board orders that
the Respondent, Harvey Engineering & Manufac-
turing Corporation, Hot Springs, Arkansas, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate employees
because they engage in an economic strike or other
concerted or union activities for their mutual aid or
protection.
(b) Failing and refusing to reinstate economic
strikers to their former jobs when vacancies in
those positions, created by the departure of strike
replacements, are filled by employees hired subse-
quent to the conclusion of the strike.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Donald Bradbury, Tommy Kemp,
Robert Lewis, Hank Meeks, Teddy Orrell, Michael
Rigsby, Jewell Shields, Melvin Thompson, and
Roy Tracy immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them in the
manner set forth in the remedy section of this De-
cision and Order.
(b) Offer Larry Jackson, J. R. Harvey, and Brian
M. Scroggins immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them in the
manner set forth in the remedy section of this De-
cision and Order.
(c) Remove from its files any reference to the al-
leged strike misconduct and failure to reinstate
with respect to Donald Bradbury, Tommy Kemp,
Robert Lewis, Hank Meeks, Teddy Orrell, Michael
Rigsby, Jewell Shields, Melvin Thompson, and
Roy Tracy, and any reference to its unlawful fail-
ure to reinstate Larry Jackson, J. R. Harvey, and
Brian M. Scroggins, and notify the employees in
writing that this has been done and that evidence
of the alleged strike misconduct and unlawful fail-
ure to reinstate will not be used against them in
any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Hot Springs, Arkansas facility
copies of the attached notice marked "Appen-
dix."' 3 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
"S 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1294
HARVEY ENGINEERING CORP.
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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.
WE WILL NOT fail and refuse to reinstate em-
ployees because they engage in an economic strike
or other concerted or union activities for their
mutual aid or protection.
WE WILL NOT fail and refuse to reinstate eco-
nomic strikers to their former jobs when vacancies
in those positions created by the departure of strike
replacements are filled by employees hired after
the conclusion of the strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer Donald Bradbury, Tommy
Kemp, Robert Lewis, Hank Meeks, Teddy Orrell,
Michael Rigsby, Jewell Shields, Melvin Thompson,
and Roy Tracy immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make them
whole for any loss of earnings and benefits result-
ing from our discrimination against them, less any
net interim earnings, plus interest.
WE WILL offer Larry Jackson, J. R. Harvey, and
Brian M. Scroggins immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions as
of the dates they would have been reinstated, with-
out prejudice to their seniority or any other rights
or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and
other benefits resulting from our discrimination
against them, less any net interim earnings, plus in-
terest.
WE WILL notify Donald Bradbury, Tommy
Kemp, Robert Lewis, Hank Meeks, Teddy Orrell,
Michael Rigsby, Jewell Shields, Melvin Thompson,
and Roy Tracy that we have removed from our
files any reference to the alleged strike misconduct
and failure to reinstate with respect to them; WE
WILL notify Larry Jackson, J. R. Harvey, and
Brian M. Scroggins that we have removed from
our files any reference to our unlawful failure to
reinstate them; and WE WILL notify the above-
named employees that the alleged strike miscon-
duct and/or unlawful failure to reinstate will not
be used against them in any way.
HARVEY ENGINEERING & MANUFAC-
TURING CORPORATION
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The original charge was filed on April 20, 1981, and an
amended charge on June 5, 1981, by UBC, Southern
Council of Industrial Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (the
Union). Complaint issued on June 4, 1981, alleging that
Harvey Engineering & Manufacturing Corporation (the
Respondent) refused to reinstate 12 economic strikers,'
because of their union activities, in violation of Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act).
A hearing was conducted before me on these matters
in Hot Springs, Arkansas, on October 27 and 28, 1981.
Upon the entire record, including briefs filed by the
General Counsel and Respondent, and on my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business located at Hot Springs, Arkansas, where it is
engaged in the manufacturing of sawmill equipment. Re-
spondent annually sells and ships from its Hot Springs,
Arkansas facility goods and materials valued in excess of
$50,000 directly to points outside the State of Arkansas;
and annually purchases and receives at said facility other
products, goods, and materials, similarly valued, from
points outside the State of Arkansas. Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
I Donald Bradbury, J. R. Harvey, Larry Jackson, Tommy Kemp,
Robert Lewis, Hank Meeks, Teddy Orrell, Michael Rigsby, Brian M.
Scroggins, Jewell Shields, Melvin (Joe) Thompson, and Roy Tracy.
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Strike, its Termination, and Respondent's
Failure to Rehire Some of the Strikers
The Union was certified in July 1978 as the collective-
bargaining representative of Respondent's production
and maintenance employees. In October 1978, Respond-
ent refused to bargain with the Union in violation of Sec-
tion 8(a)(5) and (1). Harvey Engineering Corp., 240 NLRB
699 (1979). From about July 8, 1980, to about August 8,
1980, certain of Respondent's employees engaged in an
economic strike. By letter dated August 10, 1980, the
Union informed Respondent that the strike had been dis-
continued the prior Friday, August 8, at 3 p.m. The
letter further informed Respondent that the strikers
would be "available for work upon notification." (G.C.
Exh. 4.) With respect to nine of the alleged discrimina-
tees, Respondent asserts that they engaged in strike mis-
conduct which warranted Respondent's refusal to rein-
state them. With respect to the remaining three, the
Company contends that they were offered reinstatement
but declined.
B. The Alleged Strike Misconduct
1. The distribution of tacks in Respondent's
driveway
a. Summary of the evidence
(1) The July 17 incident
Respondent's vice president Sid Sewell testified that
the Company refused to reinstate seven of the strikers2
because they were present on the picket line when tacks
were discovered in a driveway leading to Respondent's
plant. Respondent does not contend that any of the al-
leged discriminatees were responsible for the tacks.
Company President Fletcher testified that he observed
four pickets3 moving their feet from side to side shortly
after 1 p.m. on July 17, 1980. There was a rainstorm
about 2 p.m. which lasted 20-30 minutes. A red or white
Mercury, which Fletcher did not recognize, came
through the picket line, made a circle at a fast rate of
speed, and left.
Fletcher suspected that the car had distributed tacks in
the parking lot, and conducted an examination about 4
p.m. He discovered a flat tire, with a tack in it, on a non-
striking employee's car. He also discovered hundreds of
tacks, many in an upright position, on the driveway near
the main road and the picket line. Fletcher and another
individual swept up the tacks, and noted that the drive-
way was muddy because of the rain. A county patrolman
was called by the Company, and corroborated Fletcher's
I Donald Bradbury, Tommy Kemp, Hank Meeks, Teddy Orrell, Jewell
Shields, Melvin Thompson (called Joe Thompson in the record), and
Roy Tracy. Respondent's personnel records show that these employees
were not recalled "due to acts of violence during the strike." This is the
same reason given for the failure to recall Michael Rigsby, who asserted-
ly hit Teodor Morcan, and Robert Lewis, who supposedly blocked Mor-
can's route (G.C. Exh. 2).
s Roy Tracy, Tommy Kemp, Hank Meeks, and Ross Humphries (not
an alleged discriminatee).
testimony. Although Fletcher claimed to have identified
Tracy, Humphries, Kemp, and Meeks as pickets about I
p.m., he said that he could later identify only Humphries
and Shields. The latter was on the "plant side" of the
road, according to Fletcher.
Sewell averred that employees Kemp, Meeks, Shields,
and Tracy were not reinstated because they were on the
picket line on July 17, when tacks were discovered in
the driveway.
Kemp testified that he could not remember whether he
was on the picket line on July 17, but denied that he was
present the day that Fletcher swept the driveway. Kemp
asserted that he usually picketed in the forenoon.
Meeks testified that he saw tacks on the driveway, but
denied placing them there or seeing anyone else do so.
He usually picketed in the afternoon, but did not believe
that he was on the picket line about 4 p.m. one after-
noon, when Fletcher swept the driveway. However,
Meeks testified that he was picketing when a state patrol-
man drove across the picket line.
Shields affirmed that he saw tacks in the driveway, but
denied placing them there or seeing any other individual
do so. He normally walked the picket line in the morn-
ing. Shields was present one day when Fletcher swept
the driveway, but was not on the picket line. Together
with other employees not picketing at that time, he was
"across the highway," where the police directed non-
picketing employees to park their cars. Shields stated
that he saw some people with brooms sweeping the
driveway and stirring up so much dust that he could not
see anything. He observed no tacks that day. Asked on
cross-examination whether there was a rainstorm, Shields
agreed that there was a storm in July, but not on the day
that Fletcher swept the driveway.
(2) The July 28 incident
Company Vice President Sewell further testified that
employees Bradbury, Orrell, and Thompson were not of-
fered reinstatement because they were present on the
picket line on July 28, when a state police officer discov-
ered tacks in the driveway. The police officer testified
that he damaged three of his tires with tacks one day
when he drove across the picket line. He directed the
pickets to remove the tacks from the driveway, but did
not determine who had placed them there and made no
formal report.
Orrell and Bradbury both agreed that they had seen
tacks in the driveway, when picketing, but denied that
they had placed them there or had seen anyone else do
so. Both agreed that they were picketing on the occasion
that the state police officer discovered tacks. Bradbury
added that Meeks was picketing on that day, thus cor-
roborating the latter's testimony. Bradbury further assert-
ed that he questioned Meeks, Orrell, and another picket
about the source of the tacks, and that none of them
knew. Bradbury was uncertain whether the fourth picket
was Thompson.
1296
HARVEY ENGINEERING CORP.
(3) Respondent's evidence on responsibility for the
tacks
Respondent called Jerry W. Hill, a former company
employee and former union vice president. In response
to leading questions from company counsel, Hill denied
that he had ever heard Bradbury advocate acts of van-
dalism, "but . . . would say probably Jewell [Shields]."
However, Hill testified as follows on further direct ex-
amination:
I might hang myself by saying this, but I know
where the tacks came from. They came from our
ex-President [of the Union]. I guess he's completely
out of the picture now as far as this right here, but
none of these guys . . . that are going against
Harvey right now on this suit, they didn't bring the
tacks. But now, as far as who dropped the tacks I
don't know.
On further direct examination, Hill testified that he did
not know whether Shields or Orrell dropped tacks, al-
though he was aware of "hearsay" that Orrell "got
caught putting a tack under a woman's tire." Hill further
affirmed that members of a different union described
"what they had done."
b. Factual analysis
There is some conflict in Fletcher's testimony as to the
identity of the pickets on the afternoon of July 17. Al-
though he originally testified that Tracy, Humphries,
Kemp, and Meeks were the pickets at some time after 1
p.m., by 4 p.m. he could recognize only Humphries and
Shields, the latter of whom he had not identified previ-
ously.
I credit the denials of Kemp and Meeks that they were
present on the picket line on the day that the driveway
was swept (July 17), and note Meeks' candid admission
that he was there on July 28. 1 credit Shields' testimony
that he was one of the pickets on the morning of July 17.
It is unlikely that he would have been on the picket line
for the entire day, since the evidence suggests half-day
shifts of picketing. Because of this, and the contradiction
in Fletcher's testimony about Shields, I credit the testi-
mony of the latter that he was across the street, rather
than on the picket line, on the afternoon of July 17. I
have considered the county patrolman's corroboration of
Fletcher about the rainstorm, and Shields' denial that
there was a storm at that time, but deem the contradic-
tions in Fletcher's testimony to be more significant for
credibility purposes. Although Fletcher's testimony con-
cerning Tracy was not entirely consistent, I conclude
that Tracy picketed on July 17, in the absence of any
contrary evidence.
Orrell, Bradbury, and Meeks agree that they were on
the picket line on July 28, when the state police officer
came through the line. I credit that testimony. There was
a fourth picket whose identity Bradbury could not recall,
and I therefore credit Sewell's testimony that Thompson
was on the picket line on July 28.
The evidence establishes that the pickets saw tacks in
the driveway, and did nothing about them except when
ordered by a police officer to remove them, on July 28. I
credit the pickets' testimony that they did not place the
tacks there themselves, and did not know the identity of
the persons who did so. In this connection, I accept
Bradbury's testimony that he questioned three of the
pickets about the tacks.
I credit Respondent's witness Hill that a former union
president obtained the tacks. I also credit Hill's testimony
that he did not know who actually placed the tacks in
the driveway. The "hearsay" that Orrell "got caught
putting a tack under a woman's tire" has no probative
value, since Respondent did not charge Orrell with any
such misconduct.
As affirmed by Sewell, Respondent's stated reason for
refusing to reinstate the seven strikers was their presence
on the picket line when tacks were discovered in the
driveway. Respondent does not assert a belief that these
seven strikers themselves placed the tacks there. The
Company's only stated belief concerning the source of
tacks was an unknown automobile, which Fletcher be-
lieved had left tacks in the parking lot on July 17.
2. The alleged violence-Michael Rigsby
a. Summary of the evidence
Company Vice President Sewell testified that striker
Michael Rigsby was not reinstated because Respondent
believed that he struck a nonstriking employee, Teodor
Morcan, at the picket line. Morcan emigrated to the
United States from Rumania, where he was persecuted
because of his religious beliefs, according to him. He tes-
tified that Shields threatened him that his car would be
damaged if he drove it to work. Shields denied this, and
Morcan's allegation was not offered by Respondent as a
reason for the refusal to reinstate Shields.
For this reason, according to Morcan, he walked to
work on the first day of the strike, instead of driving.
Michael Rigsby and other employees were picketing, and
Rigsby was holding some papers. As Morcan was cross-
ing the picket line, at about 7-7:30 a.m., he heard Rigsby
say to the other pickets, "Let's give the Rumanian a
paper." Morcan stopped, and was facing Rigsby as the
latter approached him with many "papers" in his left
hand. Rigsby asked Morcan to look at the paper and see
what was written on it. Then, according to Morcan,
Rigsby handed him the paper with his right hand, point-
ing it towards him, and hit him on the left forehead with
a downward motion of his right hand. Rigsby then
handed him the paper. Asked whether Rigsby told him
that he could not go to work that day, Morcan replied
that Rigsby told him to sit down. Queried as to how
Rigsby stopped him from entering the plant, Morcan re-
plied, "By trying to hand me the paper." Morcan said
that he sat down until he "quieted down," then crossed
the road and again sat down. He remained there until
about noon, when only a few pickets remained, and then
went home. Morcan suffered a bruise on his left fore-
head, according to his testimony, but was not knocked
down by Rigsby, and did not require medical attention.
He did not try to go to work because he was "among
them," i.e., the pickets. Striker Robert Lewis thought
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Morcan was "on the line" the first day of the strike,
although he was sitting down.
Walter Darm was a foreman for Respondent, and was
admitted by Vice President Sewell to be a supervisor.4
Darm testified that Morcan did not work the first day of
the strike, but did come to work on the second day. He
was late on the second day, "about 30 minutes or so."
Darm testified on direct examination that he then noticed
a raised welt on Morcan's forehead, slightly off center to
the right, about 2-3 inches in length. During the course
of the day, Morcan told him that he had been struck
with a fist. On cross-examination, however, Darm testi-
fied that he only talked to Morcan about the job on the
second day of the strike. Asked whether he noticed a
mark on Morcan's forehead, Darm replied, "No, he wore
a hat." Darm then asserted that it was on the third day
of the strike that he noticed the mark on Morcan's head.
Darm described how Respondent got this information
from Morcan. "He didn't want to tell me at first," Darm
said, "but during the course of the day I got it out of
him that he had been struck. And, then he didn't want to
tell me what he was struck with. And, in time, the way I
understood it, he was struck with a fist." Darm, Morcan,
and Respondent's counsel then met in Fletcher's office,
with Morcan's daughter as the interpreter, and attempted
to get Morcan to repeat what had happened. "You had
to persuade him and it took quite awhile to persuade
him," Darm averred. "He was afraid to tell."
Rigsby testified that he was walking the picket line on
the first day of the strike (July 8), when Morcan ap-
peared on foot. The latter stopped at the picket line for a
few minutes and, as Rigsby approached him, asked
Rigsby in halting English whether he could cross the
picket line. Rigsby replied that he did not care whether
Morcan crossed the line or not, but would appreciate it
if he did not. Morcan then sat down on a curb, and re-
mained there all day. Rigsby denied striking Morcan. "I
never touched him. I never even shook his hand. Why
should I hit him? He was a picketer. I mean he wasn't a
picketer but he wasn't crossing the picket line, so he was
one of us, you know. I had no reason to strike him."
Rigsby conceded that the Union had pamphlets for dis-
tribution, but denied giving one to Morcan.
According to Rigsby, Morcan appeared again on the
second day, and again sat down in the same place. He
remained there for about half a day, and then crossed the
road and sat in the woods.
b. Factual analysis
The combined testimony of Morcan and Darm are im-
probable and, to some extent, contradictory. Thus, if
Rigsby was holding a "paper" (a union pamphlet) in his
right hand, with the paper pointed towards Morcan, it is
difficult to understand how Rigsby could have struck
Morcan a downward blow with his fist of sufficient se-
verity to raise a welt 2-3 inches long, as Darm testified.
The alleged blow was performed in so awkward a
manner, as to make the testimony improbable. If Rigsby
wanted to strike Morcan, the natural blow would have
4 The pleadings establish that Sewell and Fletcher were supervisors
within the meaning of the Act.
been a straightforward one with the fist, without the im-
pediment of a union pamphlet. But why would Rigsby
strike Morcan in the first place, if he wanted him to be-
lieve the truth of union literature? Morcan's testimony
merges the carrot and the stick into one utensil.
Although Morcan said he was hit on the left forehead,
Darm alleged seeing a welt slightly right of center. The
severity of the welt described by Darm does not con-
form to Morcan's description of his "bruise," which re-
quired no medical attention. Darm contradicted himself
as to the day that he first saw the alleged welt. Although
he originally testified that it was on the second day of
the strike, he later changed this to the third day, and
tried to explain his original testimony by saying that
Morcan wore a hat on the second day. Why would
Morcan wear a hat on the second day and not on the
third day? Darm's testimony is contrived, and I do not
credit it.
Morcan was a complex and ambiguous witness. His
statement that he was "among" the pickets suggests that
he sympathized with their cause. In eliciting evidence of
his personal history, Respondent's counsel argued that an
individual who had been subjected to communist oppres-
sion would have "more fear than a normal American
might have from what could or couldn't happen to him,"
that Morcan had a "fear of authority," and that the pick-
ets were "aware of his situation." If true, however, Mor-
can's employer was equally "aware of his situation," and
at least as authoritative as the strikers. Darm's descrip-
tion of the lengthy efforts that company representatives
made to "persuade" Morcan to overcome his "fears," is
intriguing. That description suggests, but does not estab-
lish, that Respondent attempted to do more. Morcan's
appearance on the stand and much of his testimony con-
vince me that he is an extremely passive individual, sus-
ceptible to suggestion and influence.
I need not resolve this question, however, because
Rigsby's testimony should be credited. As Rigsby put it,
why would he have hit Morcan? The latter's actions ap-
peared to put him in sympathy with the strikers, at least
on the first day of the strike, and this is how Lewis saw
the matter. Respondent points to the discrepancy be-
tween Rigsby's testimony that Morcan arrived at the
picket line on the second day of the strike, and Morcan's
and Darm's assertions that he went to work that day.5
This discrepancy simply demonstrates that witnesses fre-
quently disagree on the facts. Rigsby was the more cred-
ible witness, and I accept his version of the events that
took place on the first 2 days of the strike.
c. Additional alleged violence
Vice President Sewell testified that there were addi-
tional reasons for not reinstating the alleged discrimina-
tees. Thus, he said that there were tacks in employees'
driveways, 16 flat tires on supplier vehicles, 3 or 4 dam-
a Rigsby said that Morcan remained near the picket line for only about
half a day, and then "sat in the woods." Darm agreed that Morcan came
in late on the second day, about 30 minutes "or so." It may be that
Morcan showed up at the picket line for half a day, crossed the road,
slipped into the woods, and entered the plant by the rear entrance. Darm
in fact testified that Morcan came in "the back way."
1298
HARVEY ENGINEERING CORP.
aged radiators, and that several pet dogs and rabbits be-
longing to employees had been killed. However, Sewell
also said that the Company was not attributing responsi-
bility for these events to the alleged discriminatees.
3. The alleged blocking of Teodor Morcan by
Robert Lewis
a. Summary of the evidence
Sewell contended that Respondent did not reinstate
striker Robert Lewis because it believed that he had
blocked Teodor Morcan's passage back to his home.
Morcan testified that Lewis and another individual fol-
lowed Morcan home in an old car which was not Lewis'
vehicle. Morcan pulled over to the side to allow Lewis
to pass him, and the latter crossed a one-way bridge
which leads to "Honeycutt Road"-a name which
Morcan remembered because the "lawyer at the factory"
told employees to "be careful." Lewis then turned
around, entered the bridge again, and stopped his car.
Morcan stayed there about a minute, and then backed
up. Neither of the occupants of the other car said any-
thing to Morcan or got out of the car. Morcan asserted
that he saw Lewis "doing something where the instru-
ments are . . . or maybe it was the glove compartment."
Morcan said that this event took place "shortly after"
the strike began. In later testimony referring to "the day
[he] was hit," Morcan said that he was "stopped on the
bridge the next day." He said that the event caused him
anxiety.
Lewis testified that he and Morcan had worked in the
same bay for a year. He tried to get Morcan to join the
Union by talking to him, but was not successful. Howev-
er, as noted above, it was Lewis' opinion that Morcan
was "on the [picket] line" the first day of the strike.
Lewis said that he knew the type of vehicle which
Morcan drove. However, he denied driving behind Mor-
can's vehicle during the strike, denied blocking him in
any manner, denied knowing where Morcan lived, and
testified that he was not familiar with a "one-way
bridge."
Supervisor Walter Darm, called as a witness by Re-
spondent, testified that Morcan worked for him and that,
during the first week of the strike, Morcan rode to work
with various other employees. After the first week,
Darm picked up Morcan and drove him to work.
b. Factual analysis
The testimony of Morcan and Darm is flatly contra-
dictory. It would have been impossible for Morcan to
have driven his own car to and from work, and simulta-
neously to have been driven in other automobiles by
other drivers. Lewis was a candid and believable wit-
ness. I conclude that Morcan's testimony was a complete
fabrication, and credit Lewis' denial that he engaged in
any of the conduct attributed to him by Morcan.
4. The Company's decision not to recall strikers for
alleged misconduct
Company President Fletcher testified that, in mid- to
late September 1980, he made the decision not to recall
Bradbury, Kemp, Meeks, Orrell, Shields, Thompson, and
Tracy. He made the same decision concerning Rigsby at
an earlier time, after the alleged Morcan incident. There
is no evidence of the date that he decided not to recall
Lewis. Despite these decisions by Fletcher, however,
Sewell's testimony and the documentary evidence estab-
lish that Meeks was first notified of the Company's deci-
sion on October 27, 1980, Kemp on November 4, 1980,
and Bradbury and Orrell in the spring of 1981. Accord-
ing to Sewell, Respondent never notified Rigsby, Lewis,
Shields, or Thompson, and there is no evidence that
Tracy was ever notified.
C. The Job Offers to Strikers Harvey, Jackson, and
Scroggins
I. Employment history
Harvey was employed in December 1978 (G.C. Exh.
2). He testified that he had worked at four or five differ-
ent jobs for the Company, as a punch operator, "small
operator," "cut-off," and laborer. He used various types
of equipment, such as a punch press, a drill press, a cut-
off press, and a small saw. Harvey testified that he was
classified as a "sawyer" at the time of the strike, al-
though Respondent's personnel listings classified him as a
"machine-operator/cut up" (G.C. Exh. 2).
Harvey originally worked the night shift. He asked for
a transfer to the day shift several times, on the ground
that he had to be home nights to take one of his children
to the hospital. The Company granted this request about
a week before the strike began, and Harvey then began
working days. He took a pay reduction of 15 cents
hourly, from S4.47 to $4.32, in order to get the transfer.
Jackson was hired as a laborer in October 1979, and
had always worked the day shift, at the hourly rate of
$4.08. He testified that he trained as a welder, and did
"whatever needed to be done." His supervisor was
Walter Darm.
Scroggins was hired as a "machine operator/lathe,"
the only employee with this classification, and began on
the night shift in October 1978. Several months later, a
vacancy occurred on the day shift, and Scroggins was
transferred into that shift. His hourly rate was $6.84, and
his supervisor was Jimmy Harvey.
In February or March 1981, after the end of the strike,
Scroggins accepted a daytime job with Arkansas Preci-
sion Machine Company, then located in Little Rock, Ar-
kansas, and commuted daily between Little Rock and his
home in Hot Springs, Arkansas, for about 2 months
except for 1 week of employment after that company
moved to Hot Springs. Thereafter, in June 1981, Scrog-
gins took a job with another employer located in Hot
Springs, Arkansas Aluminum Alloys.
Vice President Sewell described the employee classifi-
cations as machine operators, general laborers, layout
employees, lathe operators, milling machine operators,
drill press operators, and maintenance employees. Ac-
cording to Sewell, machine operators used machinery
ranging from simple drill presses to metal cutting saws,
punching devices, settling and burning devices, sheers,
and press brakes.
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The offers and the employees' responses
Respondent sent identical letters to Harvey, Jackson,
and Scroggins, dated October 8, 1980, offering them jobs
in their "classifications," on the night shift beginning Oc-
tober 15. If the employee did not present himself "in the
manner and at the time specified" in the letter, Respond-
ent would "assume" that he did "not want reinstate-
ment."8
Harvey received his letter on October 9, and testified
that he called Sewell that day. He asked what kind of a
job was involved, and the vice president replied, "Doing
anything." As Harvey considered himself as having been
a sawyer before the strike, he asked whether "a saw was
available." Sewell replied in the negative. Harvey point-
ed out that he had just been transferred to the day shift,
and had to be home nights in order to take one of his
children to the hospital. Sewell replied that he did not
have a day shift job open at that time, but would phone
Harvey as soon as one was available.
Called first as a witness for the General Counsel,
Sewell denied having any conversation with Harvey
about the letter. Under later examination by Respond-
ent's counsel, however, Sewell said that he did have a
telephone conversation with Harvey about the offer. Ac-
cording to the company vice president, Harvey had an
objection to working the night shift. Sewell denied tell-
ing Harvey that he would call him when a day job
opened up. Instead, the witness asserted, he told Harvey
that no other offers would be made.
Because of the obvious contradiction in Sewell's testi-
mony, and because Harvey was a more credible witness,
I accept his testimony on this matter.
Scroggins testified that he called Sewell after receipt
of the letter, between October 10 and 15, and ascertained
that the offer consisted of the same work he had been
doing, but that it was on the night shift. He would have
received a "second shift premium" over his day shift
hourly rate of $6.84. Scroggins told Sewell that he
wanted "to go back to work for the Company," but that
he could not accept night shift work because his wife
was diabetic, was receiving treatment for her eyes, and
required his presence at night. Sewell replied that the
Company did not have a day shift job available at that
time. Sewell's testimony is not inconsistent with that of
Scroggins, and accordingly, I credit the latter's testimo-
ny. Scroggins further testified that he called Sewell again
about 4 months before the hearing, i.e., in June 1981, and
asked him whether he had an opening on the day shift.
Sewell replied that he did not. I credit Scroggins' uncon-
tradicted testimony.
Jackson also called Sewell upon receipt of the offer,
and asked why the Company did not have an opening on
the day shift, since this was the shift on which Jackson
had previously worked. Sewell replied that this was the
only job available, and Jackson refused to take it.
Sewell asserted that the Company made no further
offers to Harvey, Scroggins, or Jackson, because it felt
that they had given up their right to reinstatement by re-
fusing the initial offers.
a G.C. Exhs. 5(a), (b), and (c).
3. Replacement of strikers and availability of work
after the strike
In response to a leading question, Sewell asserted that
Scroggins' and Harvey's jobs had been "filled" by other
employees at the time of his offers to them. He identified
the employees who "filled" Scroggins' job as a John
Gray, who assertedly remained on the job until January
7, 1981, and was then moved to another job. Sewell re-
peated his testimony about Gray at two different times in
the hearing.
Respondent's records in evidence are incomplete, in
that they fail to include a complete personnel roster, a
list of new hires, if any, during the strike, or a list of
transfers during the strike.7 However, the record of post-
strike transfers shows that a new employee (Baka) was
hired October 27 on the night shift as a machinist, and
was transferred to the day shift on January 7, 1981, as a
"machine operator/lathe," which was Scroggins' classifi-
cation. (G.C. Exh. 3(b).) This would at least be consist-
ent with a transfer of Gray to Scroggins' job when the
strike began, and tends to corroborate Sewell's testimo-
ny, particularly the date of January 7 appearing in his
testimony pertaining to Gray, and the same date in the
documentary evidence pertaining to Baka and the same
job. Accordingly, I credit Sewell's testimony concerning
Gray, and conclude that he was a permanent replace-
ment for Scroggins.
With respect to Harvey, however, Sewell's testimony
fails to identify the employee who "filled" his job, and
fails to aver that this person was a permanent replace-
ment. In light of the indefinite nature of Sewell's testimo-
ny, therefore, the contrast to his specific testimony about
Scroggins' replacement, and the lack of documentary
evidence, I conclude that Respondent has not established
that Harvey's job was filled by a permanent replacement
at the time of his offer to return to work. The same con-
clusion necessarily follows concerning Jackson. Because
any evidence that Harvey's and Jackson's jobs were filled
by permanent replacements was within Respondent's
control, its failure to produce such evidence warrants an
adverse inference that they were not permanently re-
placed, and I so find. Zapex Corp., 235 NLRB 1237
(1978), enfd. 621 F.2d 328 (9th Cir. 1980).
Sewell admitted that there were openings in the al-
leged discriminatees' job classifications subsequent to the
date of his offers. With respect to Jackson's classification
of laborer, company records show that a new laborer
was hired on the night shift on October 20, 1980 (Hyatt);
two on the day shift on October 27 (Betts and Henry);
one on the day shift on November 20 (Thacker); two on
the day shift on November 24 (Garner and Sexton); and
one (Bishkoff) on the night shift on November 24, 1980
(G.C. Exh. 3(a).)
Respondent's records also show that Betts and Henry,
hired October 27, 1980, on the day shift as laborers, were
classified as "machine operators/cut up" (Harvey's clas-
sification) on July 5, 1981, and continued to work the
I G.C. Exh. 2 is a list of striking employees at the time the strike
began, while Exhs. 3(a) and (b) list new hires and job transfers subse-
quent to the date the strike epded.
1300
HARVEY ENGINEERING CORP.
day shift (G.C. Exh. 3(b)). However, as noted, Respond-
ent has not established that Harvey's job was filled by a
permanent replacement at the time the strike ended. Fur-
ther, Harvey's testimony indicates that Sewell did not
really offer him reinstatement to his former job.
D. Legal Conclusions
1. Respondent's refusal to recall employees because
of tacks in its driveway
The Board has recently restated with judicial approval
the applicable law when an employer disciplines an eco-
nomic striker. General Telephone Co. of Michigan, 251
NLRB 737 (1980), affd. 109 LRRM 2360 (D.C. Cir.
1981). Such discipline violates Section 8(a)(3) and (1) of
the Act. The employer may defend its action by showing
that it had an honest belief that the employee was guilty
of striker misconduct of a serious nature. Proof sufficient
to establish such an honest belief requires more than the
mere assertion that the belief caused the discipline.
"Rather, it requires some specificity in the record, link-
ing particular employees to particular allegations of mis-
conduct" (id., 251 NLRB at 739).
If the employer establishes such a defense, the General
Counsel must come forward with evidence either that
the employee did not engage in the asserted conduct, or
that the conduct was protected. The burden then shifts
back to the employer to rebut such evidence. Although
the Act protects striking and picketing, such protection
may be lost if an employee engages in acts of "brutal vi-
olence" as distinguished from mere "animal exuberance,"
or otherwise engages in conduct "so flagrant or egre-
gious as to require subordination of the employee's pro-
tected rights in order to vindicate the broader interests
of society as a whole." The Board's decision continues:
And, while an employer may premise its belief of
striker misconduct on reports from its guards and
other written reports, it cannot rely upon a mere
showing of general violence and destructive activi-
ty. It must rely instead on specific misconduct of
the strikers whom it disciplined. The mere fact that
there may have been misconduct engaged in by
some strikers does not without more impute culpa-
bility to the individual strikers disciplined. More-
over, unauthorized acts of violence on the part of
individual strikers are not chargeable to other strik-
ers in the absence of proof that identifies them as
participating in such violence." [Ibid.]
The Board has applied these principles to the strewing
of tacks on an employer's property. As usual in such
cases, various factual situations are possible. At one ex-
treme, "[t]he Board has consistently found that nail
strewing is such serious misconduct that it justifies the
discharge of strikers so engaged." Moore Business Forms,
224 NLRB 393, 398 (1976), enfd. as modified 574 F.2d
835 (5th Cir. 1978). On the other hand, the fact that
there are tacks on an employer's property, with no evi-
dence of responsibility on the part of any picket and no
evidence of picketing at the time, does not constitute se-
rious misconduct. QIC Corp., 212 NLRB 63, 69-70
(1974).
An intermediate position is presented by the picket
who saw nails on the picket line, but did not know who
placed them there. At the request of a truckdriver at-
tempting to cross the line, the picket removed some of
the nails. The Board concluded with judicial approval
that the picket's conduct did not warrant discipline.
Moore Business Forms, supra, 224 NLRB at 402.8 In a
somewhat more blameworthy posture, the pickets, al-
though they did not place the nails themselves, knew
that this was being done, and appeared to be acting as
"lookouts" for other pickets, or engaged in other miscon-
duct. In this situation, the Board approved of the admin-
istrative law judge's conclusion that the conduct was
protected, but was reversed by the Court of Appeals for
the Sixth Circuit, partially on the ground that the
Board's decision was not supported by substantial evi-
dence. Otsego Ski Club, 217 NLRB 408 (1975), enfd. as
modified 542 F.2d 18 (6th Cir. 1976).
Respondent herein argues that, since the employees
were on the picket line when the tacks were discovered,
"strong circumstantial evidence . . . provided the em-
ployer with its good faith belief that these employees
were guilty of misconduct, or at the very least were
guilty of the ratification and adoption of misconduct of
others."9 I do not agree.
Respondent's asserted belief as to the presence of par-
ticular individuals on the picket line was not completely
accurate.' ° Of greater significance is the fact that Re-
spondent's belief is merely that they were there, not that
they placed the tacks on the driveway, or somehow par-
ticipated in placing them there. Instead, Respondent
states its belief that they "ratified or adopted" the mis-
conduct of others. This is not belief in certain facts, but
rather, belief in a legal theory.
I conclude that Respondent's "ratification and adop-
tion" theory is erroneous. It flies in the face of the
Board's position that an employer must rely on specific
rather than general misconduct to justify discipline, and
that it may not without proof impute culpability for vio-
lence to particular strikers. The case is indistinguishable
from that of the picket in Moore Business Forms who
knew the nails were there, did not know who placed
them there, and removed them on request. The fact that
it was a truckdriver trying to cross the line who made
the request in Moore Business Forms, and a police officer
who made the request in this case, is irrelevant. In addi-
tion, there is serious doubt that Respondent even be-
lieved its own erroneous theory, since it never recon-
ciled Fletcher's stated belief-that the unknown red (or
white) Mercury distributed tacks-with Respondent's
newly asserted belief at hearing that the pickets were re-
' In its enforcing decree in Moore Business Forms, the Court of Ap-
peals for the Fifth Circuit rejected some of the Board's conclusions on
employee misconduct, but enforced that portion of the Board's order per-
taining to the employee who saw the nails (Mike Lindsey).
9 R. Br. 18.
10 Shields was across the street as an observer on July 17, Meeks was
present on July 28 instead of July 17, Kemp was not there on either oc-
casion, and a finding that Tracy and Thompson were there is partially
based on the fact that they did not testify.
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsible. In this respect, it is significant that Respond-
ent's personnel records do not allege nail strewing as the
reason for the failure to recall these employees, but,
rather, make the general accusation of "acts of violence."
I conclude that Respondent did not have a good-faith
belief that the seven strikers allegedly involved in nail
strewing" had engaged in strike misconduct warranting
discipline, and, accordingly, that its refusal to reinstate
them violated Section 8(a)(3) and (1) of the Act.
2. Respondent's refusal to recall Rigsby and Lewis
Because of the contradictions in Supervisor Darm's
and Morcan's testimony regarding Rigsby, and the ex-
traordinary efforts which Respondent engaged in to
"persuade" Morcan to tell his story, it is doubtful that
Respondent had a good-faith belief in the truth of Mor-
can's version of the events. With respect to Lewis, Re-
spondent could not possibly have believed that he
blocked Morcan's car, since Supervisor Darm knew that
Morcan was being driven to work in other cars. In any
event, the General Counsel has clearly established that
neither Rigsby nor Lewis engaged in the asserted mis-
conduct, and, accordingly, Respondent's refusal to rein-
state them violated Section 8(aX3) and (1) of the Act.
3. The alleged discrimination against Harvey,
Jackson, and Scroggins
The Board has recently summarized the rights of these
alleged discriminatees, as follows:
Certain principles governing the reinstatement
rights of economic strikers are by now well settled.
In N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S.
375, 378 (1967), the Supreme Court held that if,
after conclusion of a strike, the employer "refuses
to reinstate striking employees, the effect is to dis-
courage employees from exercising their rights to
organize and to strike guaranteed by [Sections] 7
and 13 of the Act .... Accordingly, unless the
employer who refuses to reinstate strikers can show
that his action was due to 'legitimate and substantial
business justifications,' he is guilty of an unfair labor
practice. The burden of proving justification is on
the employer." The Court in Fleetwood relied on its
decision in N.LR.B. v. Great Dane Trailers, Inc.,
388 U.S. 26, 34 (1967), where it held that "once it
has been proved that the employer engaged in dis-
criminatory conduct which could have adversely
affected employee rights to some extent, the burden
is upon the employer to establish that he was moti-
vated by legitimate objectives since proof of moti-
vation is most accessible to him." In reevaluating
the rights of economic strikers in light of Fleetwood
and Great Dane, the Board in The Laidlaw Corpora-
tion, 171 NLRB 1366, 1369 (1968), stated that:
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer con-
duct, standing alone, is so inherently destructive
" Donald Bradbury, Tommy Kemp, Hank Meeks, Teddy Orrell,
Jewell Shields, Melvin Thompson, and Roy Tracy.
of employee rights that evidence of specific an-
tiunion motivation is not needed. Specifically in
Fleetwood, the Court found that hiring new em-
ployees in the face of outstanding applications for
reinstatement from striking employees is pre-
sumptively a violation of the Act, irrespective of
intent unless the employer sustains his burden by
showing legitimate and substantial reasons for his
failure to hire the strikers. [Zapex Corp., supra,
235 NLRB at 1238.]
Respondent herein contends that these principles do
not apply to it, because it did offer to reinstate the em-
ployees to their former or substantially equivalent posi-
tions. The Company thus argues that the night shift jobs
which it offered the strikers were substantially equivalent
to the day shift jobs which they formerly occupied.
This argument is not in accord with current Board
law. In Providence Medical Center, 243 NLRB 714 (1979),
almost none of the employees was offered a job on his or
her former shift, a fact which "would have forced the
returning strikers to make substantial changes in their
lifestyles, i.e., eating and sleeping habits." (243 NLRB at
739.) One of them, who was offered a third shift job be-
ginning at 11 p.m., rejected it because she had a young
daughter who could not be left alone at night (id., 735).
"Finally, Respondent required the strikers to either
accept these onerous job offers or be terminated as em-
ployees . . . Respondent must have realized that the
great majority, if not all, of the employees would reject
its offers, hence, pursuant to its recall system, they
would be terminated as employees and would no longer
[be] eligible for preferential recall" (id., 243 NLRB at
739-740). Based on these and other considerations, the
Board accepted the finding that the employer violated
Section 8(a)(1) and (3) of the Act by requiring employees
to accept reinstatement into positions which were not
their former or substantially equivalent positions. 1 2
The similarities between Providence Medical Center and
the case at bar are striking, including the striker who re-
jected the midnight shift for the same reason given by
Harvey and Scroggins i.e., the need to care for a family
member at night. Respondent herein must also have
known that these employees, like those in Providence
Medical Center, would refuse the offer. Indeed, Harvey
had based his prior request for transfer to the day shift
on the ground that he was needed at home to care for
one of his children. Moreover, as indicated, it is ques-
tionable whether Sewell's offer to Harvey involved the
same kind of job.
With respect to Harvey and Jackson, Respondent has
not supplied any justification for failing to reinstate them
immediately to their former jobs, since it has not estab-
lished that their jobs were filled by permanent replace-
ments. I therefore conclude that Respondent violated
Section 8(a)(3) and (1) of the Act by failing and refusing
to reinstate economic strikers Harvey and Jackson imme-
diately on their unconditional requests for reinstatement.
Zapex Corp., supra.
ta Accord: MCC Pacific Valves, 244 NLRB 931, 944-945 (1979).
1302
HARVEY ENGINEERING CORP.
With respect to Scroggins, I have found that he was
permanently replaced at the end of the strike. However,
as an economic striker he had the right to wait for the
availability of a job substantially equivalent to his pres-
trike position, or a job for which he was qualified.
Did Scroggins first acquire this right at such time as a
substantially equivalent job became available? Or did that
right accrue when a job for which he was qualified
became available, even though it was not substantially
equivalent to his prestrike job? The question is significant
because other jobs became available prior to the time
that Scroggins' former position, that of "machine
operator/lathe", opened up when Gray left that job on
January 7, 1981. Thus, the Company hired two laborers
on the day shift on October 27, 1980, and several others
prior to January 7, 1981. I conclude that the jobs of "la-
borer" and "machine operator/lathe" are not "substan-
tially equivalent," if only because of the pay differential
of more than $2 per hour. On the other hand, I also con-
clude that Scroggins was "qualified" to be a laborer, pro-
vided that he would have been willing to step down to
that job. His very high hourly rate, and the multitude of
duties of machine operators depicted by Sewell, warrant
an inference that Scroggins could easily have performed
the comparatively simple duties of a laborer.
The Supreme Court stated in Fleetwood: "If and when
a job for which the striker is qualified becomes available,
he is entitled to an offer of reinstatement" (emphasis
added). 389 U.S. 375, 381. The Court of Appeals for the
Third Circuit has given two different answers in the
same litigation. In its first decision in the long W. C.
McQuaide case,'t the court stated that the presence of
permanent replacements would bar an economic striker's
right to reinstatement "until substantially equivalent posi-
tions became available." 552 F.2d 519, 531. However, in
its second decision the court adhered to the Fleetwood
formula: "The fact that [the striker's] old job is occupied
is no excuse for refusing to offer reinstatement if another
job for which he is qualified becomes available." 617
F.2d 349, 353.
In Little Rock Airmotive, 182 NLRB 666 (1970), enfd.
as modified 455 F.2d 163 (8th Cir. 1972), the Board
stated:
The question of what constitutes "regular and
substantially equivalent employment" cannot be de-
termined by a mechanistic application of the literal
language of the statute but must be determined on
an ad hoc basis by an objective appraisal of a
number of factors, both tangible and intangible, and
includes the desire and intent of the employee con-
cerned.
In Brooks Research & Mfg., 202 NLRB 634, 636 (1973),
the Board noted that, in its Laidlaw to hold that econom-
ic strikers "are entitled to full reinstatement upon depar-
ture of replacements or when jobs for which they are
qualified become available, unless they have in the mean-
time acquired regular and substantially equivalent em-
13 W C McQuaide, Inc., 220 NLRB 593 (1975), enfd. in part and re-
manded 552 F.2d 519, (3d Cir. 1977); W. C. McQuaide, Inc., 237 NLRB
177 (1978), enfd. 617 F.2d 349 (3d Cir. 1980).
ployment . . ." In Fire Alert Co., 207 NLRB 885, 886
(1973), the Board stated that an employer's reinstatement
obligation is "not limited to the strikers' old positions,
but rather includes reinstatement to substantially equiva-
lent positions which the strikers are qualified to fill."
Two years later, in New Era Electric Cooperative, 217
NLRB 477 fn. 1 (1975), the Board appeared to hold that
a striker is not entitled to be reinstated to a job for
which he is qualified if it is not substantially equivalent
to his former job. In finding lack of substantial equiva-
lence, the Board noted that the striker would be working
at a lower rate of pay, and as a subordinate to an em-
ployee with whom he had formerly been on an equal
footing. In Western Steel Casting, 233 NLRB 870, 871 fn.
3 (1977), where the administrative law judge had applied
the Fleetwood formula, the Board decided the case on
other grounds and found it unnecessary to pass on the
issue. Finally, in Zapex Corp., supra, where the adminis-
trative law judge interpreted Little Rock Airmotive and
New Era Electric Cooperative, to mean that the applicable
test is not the employee's qualifications, but rather the
availability of a job substantially equivalent to his pres-
trike job, the Board decided the case on other grounds.
235 NLRB 1237, 1240 fn. 16.
I infer from the foregoing authority that the issue is
not settled. Although the Board appeared to choose the
"substantially equivalent" test in New Era Electric Coop-
erative, its language in Brooks Research & Mfg., adopts
the Fleetwood formula, while in Fire Alert Co., the Board
combined both criteria into one standard.
The administrative law judge in Western Steel Casting
Co., faced with the employer's argument that the avail-
able jobs were undesirable, involved different superviso-
ry lines of authority, and would place the employees'
former peers over them as supervisors, replied that "an
undesirable job may be . . . more desirable than no job
at all," and considered the employer's other arguments as
speculative. He called attention to the absence of any
"substantially equivalent" language in the Supreme
Court's decision in Fleetwood, and regarded the law as
requiring an employer to offer an economic striker (1)
his former job; or, if that is not available, (2) a substan-
tially equivalent job; or, if neither is available, (3) any
other job for which the striker is qualified. 233 NLRB at
875.
I consider the foregoing arguments to be persuasive,
particularly the observation that "an undesirable job may
be more desirable than no job at all." The Board stated
in Little Rock Airmotive that the desire and intention of
the employee are factors to be considered. In the instant
case, at the time that the first laborer job became avail-
able on the day shift after the strike, in October 1980,
Scroggins had not yet obtained alternative employment.
He might well have preferred, at that time, a laborer's
job at lesser pay to "no job at all." Although he would
have had a different supervisor, he was, nonetheless,
under supervisory direction in his old job. Certainly
these are matters which Scroggins should have been al-
lowed to decide. Yet the only way to have tested his in-
tentions and desires would have been an offer from Re-
spondent. As I have found above, Scroggins told Sewell
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he wanted to go back to work for the Company-
the only requirement that he asserted was that he be
placed on the day shift. Under these circumstances I
conclude that Respondent violated the Act by failing to
offer him a day shift job as a laborer on October 27,
1980, and again on January 7, 1981, when his former job
as a machine operator/lathe became available.' 4
This is not to say that Scroggins' right to a former or
substantially equivalent job would have been terminated
if he had rejected the laborer's job. There is nothing in-
consistent in treating a striker's rejection of a lesser job
differently from rejection of his former or a substantially
equivalent job, which terminates reinstatement rights.
Stoaats Dairy Transport, 162 NLRB 995 (1967). Upon
either rejection or acceptance of the lesser job, Scroggins
would have continued to be entitled to reinstatement to
his former or a substantially equivalent job, a right
which accrued on January 7, 1981. Since Respondent
made no offers whatever after its initial offer, Scroggins
is entitled to be made whole from October 27, 1980
(when a day shift laborer's job became available), at the
laborer's rate of pay, which Respondent never offered
him and which he therefore had no opportunity to
accept, until January 7, 1981, and thereafter, at the rate
of pay of his former job, with interest as described here-
inafter. See Brooks Research & Mfg., Inc.; Zapex Corp.,
supra.
This remedy imposes no undue burden on an employ-
er. The problem of finding an economic striker when a
vacancy occurs in a lesser job is no more than the prob-
lem of finding him when a vacancy occurs in his former
or a substantially equivalent job-a burden which the
Board has already found to be reasonable. See, e.g.,
Brooks Research & Mfg., 202 NLRB at 636. If the em-
ployee accepts the lesser job, the problem of finding him
when his former or a substantially equivalent job be-
comes available involves no more than communicating
with him at his work station in the employer's plant.
A determination of Scroggins' rights in accordance
with the principles set forth herein will effectuate the
purposes of the Act. As the Supreme Court stated in
Fleetwood, an employer's refusal to reinstate striking em-
ployees tends to discourage the exercise of their statuto-
ry right to organize and to strike. That discouragement
will exist regardless of whether the employer refuses to
offer an unemployed former striker his prior job, or any
job. In either event, the latter is still unemployed, and
derives no consolation from the fact that the employer
prevented him from considering another job. Finally, this
determination of Scroggins' rights simply follows the
language of the Supreme Court in Fleetwood.
The next issue is the effect on Scroggins' rights, if any,
of his employment with Arkansas Precision Machine
Company in February or March 1981, and, thereafter,
with Arkansas Aluminum Alloys in June 1981. As set
forth above, Respondent had already failed to recall
Scroggins to work on October 27, 1980, and again on
January 7, 1981. For about the first 2 months of his job
with Arkansas Precision Machine Company, Scroggins
14 See Crossroads Chevrolet, 233 NLRB 728 (1977), enfd. 603 F.2d 223
(9th Cir. 1979).
was required to commute to another city. He thereafter
transferred to the other company in about June 1981. In
the same month, he called Respondent and asked for a
job on the day shift.
The law on the matter may be summarized as follows:
The Board in its decision in Laidlaw applied
Fleetwood to hold that economic strikers who un-
conditionally apply for reinstatement when their po-
sitions are filled by permanent replacements are en-
titled to full reinstatement upon departure of re-
placements or when jobs for which they are quali-
fied become available, unless they have in the mean-
time acquired regular and substantially equivalent
employment . . ." [Emphasis added.] Brooks Re-
search & Mfg., Inc., supra, 202 NLRB at 636.
The Board has also stated:
The Trial Examiner found that both [the alleged
discriminatees] had acquired regular and substantial-
ly equivalent employment prior to the time Respond-
ent hired employees in their respective classifications
and had therefore ceased to be employees of Re-
spondent at the time jobs became available for them
As noted hereafter, we not only find contrary to the
Trial Examiner that on the facts here presented nei-
ther (of the alleged discriminatees) had substantially
equivalent employment but note that the Trial Ex-
aminer gave no weight to the fact that both (the al-
leged discriminatees) expressed a continuing interest
in returning to their jobs. [Emphasis added. Little
Rock Airmotive, supra, 182 NLRB 666.]
I conclude that Scroggins' reinstatement rights were
not affected by his employment with the other two com-
panies. In the first place, those rights vested when the
job vacancies occurred, prior to the time that he took
either of the other jobs, and Scroggins continued to be
an employee of Respondent at the time he took those
jobs. The first position, with its forced commuting to an-
other city, was obviously not substantially equivalent
employment. Although the second job was located in the
same city where Scroggins lived, there is nothing in the
record to show what kind of work he was doing, or his
rate of pay. What is clear is that, at about the time he
took the second job, Scroggins was still trying to return
to his job with Respondent. The evidence therefore does
not warrant a conclusion that these jobs constituted sub-
stantially equivalent employment terminating Scroggins'
reinstatement rights. Any earnings which he derived
from such employment would, of course, be deducted
from gross backpay.
4. Respondent's 10(b) defense
The pleadings establish that the original charge was
served on Respondent by certified mail on April 21,
1981. In its first amended answer, Respondent asserts
that its actions which are the subject of the complaint
occurred more than 6 months prior to the filing of the
1304
HARVEY ENGINEERING CORP.
charge, and that the charge and complaint are therefore
outside the statutory period of limitation (G.C. Exh.
I(h)). In its brief, the Company limits this defense to the
cases of Harvey, Jackson, and Scroggins. The Company
draws attention to its recall letter dated October 8, 1980,
advising these strikers that it would "assume" that they
did not want reinstatement if they did not report for
work on the second shift on October 15, 1980. Respond-
ent argues that the period of limitation began to run on
the date of the letter, or, at the latest, on October 15.'1
None of these contentions has merit.
Considering first the Company's arguments in its brief,
the statements in the company letters to Harvey, Jack-
son, and Scroggins did not constitute an unequivocal re-
pudiation of Respondent's obligation to reinstate them.
The Company's purported "assumption" of the employ-
ees' intentions (if they failed to report for the second
shift) says nothing whatever about the Company's inten-
tions or future actions. The Board has held with judicial
approval that a mere statement of the possibility of
future refusal to comply with contractual obligations
does not constitute an unequivocal repudiation of those
obligations sufficient to invoke the provisions of Section
10(b). City Roofing Co., 222 NLRB 786 fn. 1 (1976), enfd.
560 F.2d 1370 (9th Cir. 1977). An ambiguous expression
of this nature is similar to union acquisition of knowledge
about an employer's action which, in itself, does not con-
stitute notice of an unfair labor practice. NLRB v. Allied
Products Corp., 548 F.2d 644 (6th Cir. 1977), enfg. as
modified 218 NLRB 1246 (1975)." e
This ambiguity in Respondent's letter of October 8 is
compounded by Sewell's contemporaneous statement to
Harvey that he would phone the latter as soon as a day
shift job became available. The evidence clearly shows
that Sewell had no intention of doing so. He testified
that the Company made no further offers to Harvey,
Scroggins, or Jackson because it felt they had given up
their reinstatement rights. Accordingly, Sewell's promise
to Harvey, to call him when a day shift job opened up,
constituted misrepresentation of the Company's inten-
tions.
There is no evidence that either Harvey or Jackson
knew on October 8 that their former jobs had not been
filled. On the contrary, Sewell suggested that those jobs
were filled by telling them that he had no day shift jobs
available. Under these circumstances, the fact that Re-
spondent's failure to reinstate Harvey and Jackson took
place more than 6 months before the filing of the charge
does not bar a finding that the Act has been violated. As
stated by the Court of Appeals for Sixth Circuit:
The Board has consistently held, with the en-
dorsement of at least two circuits, that the six
month limitation period does not begin to run until
the employer's unlawful activity, which is the basis
for the unfair labor practice charge, has become
known to the charging party [authority cited]. This
is only a specific application of the general rule that
a limitation period begins to run "when the claimant
'I R. Br. 3.
IL See also Allied Products Corp., 230 NLRB 858 at 859 (1977).
discovers, or in the exercise of reasonable diligence
should have discovered, the acts constituting the al-
leged [violation]" [authority cited]. NLRB v. Allied
Products Corp., supra, 548 F.2d at 650.]
The same principle applies to Respondent's failure to
reinstate the nine strikers accused of misconduct, since
the first notification of the Company's intention not to
recall them took place on October 27, 1980 (with respect
to Meeks), with other such notifications at later dates or
not at all.
Sewell's statements to Harvey and Jackson-to the
former that the Company would call him when a day
job became available, and to both that no day jobs were
available-border on fraudulent concealment of the fact
that the Company had not filled their jobs with perma-
nent replacements, and that it did not intend to recall
them at any time. It is well established the fraudulent
concealment of facts constituting an unfair labor practice
tolls Section 10(b) of the Act. NLRB v. Burgess Construc-
tion, 596 F.2d 378 (9th Cir. 1979), enfg. 227 NLRB 765
(1977).
With respect to Scroggins, Respondent's initial unfair
labor practice took place on October 27, 1980, when a
vacancy occurred on the day shift and Respondent failed
to offer him the job. This date also was within the period
of limitation.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Harvey Engineering and Manufacturing Corpora-
tion is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. UBC, Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to immediately reinstate eco-
nomic strikers Donald Bradbury, J. R. Harvey, Larry
Jackson, Tommy Kemp, Robert Lewis, Hank Meeks,
Teddy Orrell, Michael Rigsby, Jewell Shields, Melvin
(Joe) Thompson, and Roy Tracy, upon their uncondi-
tional requests for reinstatement, Respondent thereby
violated Section 8(a)(3) and (1) of the Act.l 7
'7 In General Telephone Ca of Michigan, supra, where the employer
disciplined economic strikers for alleged misconduct without an honest
belief that they had engaged in same, the Board found a violation of Sec.
8(aXI) without passing on the 8(aX3) allegation in the complaint. 251
NLRB 737, 740 fn. 21. However, in Zapex Corp., supra, where the em-
ployer failed to reinstate economic strikers, the Board found violations of
both Sec. 8(aX3) and (1). The case at bar combines elements of both Gen-
eral Telephone and Zapex, in that Respondent failed to reinstate nine of
the economic strikers for alleged misconduct without an honest belief
that they had engaged in same. In concluding that Respondent herein
violated both Sec. 8(a)3) and (I), I rely on the Supreme Court's rationale
in Fleetwood and Great Daone that certain employer conduct is so inher-
ently destructive of employee rights that evidence of specific antiunion
motivation is not needed, and that Respondent's failure to reinstate eco-
nomic strikers upon their unconditional application for same, without any
legitimate and substantial reason for doing so and without having perma-
nently replaced them, presumptively violates Sec. 8(aX3). Zapex Corp.,
supra, 235 NLRB at 1240 fn. 15; Dobbs Houses, Inc., 197 NLRB 897
(1972).
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By failing and refusing, on October 27, 1980, to
offer economic striker Brian M. Scroggins a job for
which he was qualified, and, on January 7, 1981, his
former or a substantially equivalent job, Respondent on
both such occasions violated Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act. Thus, it having been found that Respondent un-
lawfully failed and refused to immediately reinstate eco-
nomic strikers Donald Bradbury, J. R. Harvey, Larry
Jackson, Tommy Kemp, Robert Lewis, Hank Meeks,
Teddy Orrell, Michael Rigsby, Jewell Shields, Melvin
(Joe) Thompson, and Roy Tracy, upon their uncondi-
tional offer to return to work, it is recommended that
Respondent be ordered to reinstate them to their former
positions or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges previously enjoyed.1 s In
addition, it is recommended that Respondent be ordered
to make the employees whole for any loss of earnings,
benefits, or other rights and privileges they may have
suffered as a result of the discrimination against them, by
payment to each of them of a sum of money which he
normally would have earned from the date of his appli-
cation for reinstatement, 9 until such time as Respondent
I s Dobbs Houses. Inc., supra.
19 As Respondent has already failed and refused to reinstate the discri-
minatees, no useful purpose would be served by delaying commencement
makes a valid offer of reinstatement to him.2 0 Loss of
earnings, as referred to above, shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977).21
It having further been found that Respondent unlaw-
fully failed and refused on October 27, 1980, to offer
economic striker Brian M. Scroggins a job for which he
was qualified, and, on January 7, 1981, unlawfully failed
and refused to offer him reinstatement to his former posi-
tion, it is also recommended that Respondent be ordered
to reinstate him to the latter position, or, if such job no
longer exists, tb a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges. In addition, it is recommended that Respondent be
ordered to make Scroggins whole for any loss of earn-
ings, benefits, or other rights and privileges he may have
suffered as a result of the discrimination against him, by
payment to him of a sum of money which he would
have earned if he had been offered, and had accepted,
the job of laborer, from October 27, 1980, until January
7, 1981; and, thereafter, the sum which he would have
earned if he had been offered and had accepted reinstate-
ment to his former job, until such time as Respondent
makes a valid offer of reinstatement to him. Loss of earn-
ings shall be computed in the manner described above.
In addition, it is recommended that all references to al-
leged strike misconduct be expunged from the personnel
records of these employees. I shall also recommend that
Respondent be ordered to post appropriate notices.
[Recommended Order omitted from publication.]
of the backpay period for 5 days. Newport News Shipbuilding Co., 236
NLRB 1637, 1638 (1978), enfd. 602 F.2d 73 (4th Cir. 1979).
2O Zapex Corp., supra.
II See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1306