Holo-Krome Co.

National Labor Relations Board - Board Decisions

Apr 5, 1991

302 N.L.R.B. 452 (N.L.R.B. 1991)

452
302 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 31, 1989, the National Labor Relations Board issued its Deci-
sion and Order in this proceeding in which it found that the Respondent vio-
lated Sec. 8(a)(1), (3), and (4) of the National Labor Relations Act by refusing
to hire employees Pace and Rutkauski because of their union activities or be-
cause they were named in an unfair labor practice charge filed by the Union
against the Respondent. 293 NLRB 594. On September 20, 1989, the Board
issued an Order Correcting Error of its original decision. Subsequently, the Re-
spondent filed with the U.S. Court of Appeals for the Second Circuit a petition
for review of the Board’s Order, and the Board filed a cross-petition for en-
forcement of its Order.
In an opinion dated July 9, 1990, the court denied enforcement of the
Board’s Order and remanded the case to the Board for reconsideration consist-
ent with the court’s opinion. Holo-Krome Co. v. NLRB, 907 F.2d 1343 (2d
Cir. 1990).
By letter dated October 11, 1990, the Board notified the parties that it had
accepted the court’s remand and that statements of position could be filed with
respect to the issues raised by the court’s opinion. Thereafter, the General
Counsel, the Charging Party, and the Respondent filed statements of position
with the Board.
The Board has delegated its authority in this proceeding to a three-member
panel.
2 Member Cracraft expressly did not rely on such statements of opposition
to the Union in finding antiunion animus. 293 NLRB 594, 59?? fn. 6.
3 Sec. 8(c) provides that: ‘‘The expressing of any views, argument, or opin-
ion, or the dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice under any
of the provisions of this subchapter, if such expression contains no threat of
reprisal or force or promise of benefit.’’
4 Indeed, Member Cracraft’s original opinion was based solely on these fac-
tors.
5 The following discussion is based on the findings of fact more fully set
forth in the Board’s original decision, 293 NLRB at 594–595.
6 Campbell was a maintenance mechanic at that time.
Holo-Krome Company and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
Local 376. Case 39–CA–3112
April 5, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
The central issue on remand from the United States
Court of Appeals for the Second Circuit is whether the
Respondent’s refusal to rehire two employees can be
shown to be unlawfully motivated, without reference to
statements made by the Respondent’s officials oppos-
ing unionization.1 In the initial decision in this pro-
ceeding, a majority of the Board relied, inter alia, on
statements opposing unionization made by the Re-
spondent’s officials during the Union’s organizing
campaign as evidence of antiunion animus.2 On review
of the Board’s decision, the court found that the Board
majority’s reliance on the Respondent’s expressions of
opposition to unionization as a basis for finding
antiunion animus was contrary to Section 8(c) of the
Act3 which protects such expressions if, as here, they
contain no threat of reprisal or force or promise of
benefit. Noting that the Board referred to other inci-
dents in drawing the inference that the Respondent’s
refusal to rehire Pace and Rutkauski was unlawfully
motivated, the court remanded the case to the Board
to determine whether it would reach the same result
without consideration of the Respondent’s protected
statements.
The Board has accepted the court’s remand and
therefore accepts the court’s opinion as the law of the
case. Having considered our decision in light of the
court’s opinion, we reaffirm our findings that the Re-
spondent violated Section 8(a)(1), (3), and (4) by re-
fusing to hire Pace and Rutkauski because of their
union activities and/or because they were named in an
unfair labor practice charge filed with the Board by the
Union. We stress that although we cited the Respond-
ent’s stated opposition to the Union as evidence of
antiunion animus, it was a relatively minor factor in
our decision that the General Counsel had established
a prima facie case concerning the alleged violations.
As discussed below, the major factors in our decision
were the express hostility shown to Pace by Plant
Manager Campbell and Director of Industrial Relations
Wing, the unexplained inconsistencies or shifts in the
Respondent’s treatment of the discriminatees’ requests
for work, and the inference of unlawful motivation that
is drawn from the Respondent’s failure to give a credi-
ble explanation of its reasons for refusing to hire Pace
and Rutkauski. None of these factors is dependent on
or otherwise related to the Respondent’s permissible
statements of opposition to the Union.4 Accordingly,
without consideration of the Respondent’s expressions
of opposition to the Union, we conclude that the Re-
spondent violated the Act as alleged.
At the outset, we note that certain elements of the
General Counsel’s case are not at issue. It is undis-
puted that Pace and Rutkauski were active in the
Union’s 1985 organizing campaign and were involved
in the Union’s unfair labor practice charge (39–CA–
3024) alleging that the Respondent unlawfully laid off
and failed to recall these two employees. It is also un-
disputed that the Respondent knew of the
discriminatees’ activity and did not rehire them when
they sought work in June and July 1986. This refusal
to rehire occurred shortly after the Regional Director
notified the Union on June 13, 1986, that the General
Counsel would not issue a complaint on the unfair
labor practice charge involving Pace and Rutkauski in
that earlier case. The issue in this case is whether the
General Counsel established a prima facie case by
showing that the protected activity was a motivating
factor in the Respondent’s decision not to rehire Pace
and Rutkauski in 1986. We reaffirm our original con-
clusion that the General Counsel made such a showing.
The General Counsel presented the following evi-
dence of the Respondent’s animus against the Union
and against those who seek access to the Board.5 Plant
Manager George Campbell, who was involved in the
decision not to rehire Pace and Rutkauski, acted as the
Respondent’s observer in the May 1985 election.6
After the Union lost the election, Pace, who was an
453HOLO-KROME CO.
7 Wing testified that Pace displayed ‘‘not a very good attitude’’ and specifi-
cally referred in this regard to Pace’s argument about the recall policy.
8 The Respondent asserted that the jobs were closed because Plant Manager
Campbell wanted to fill one by transfer and the other by automation.
9 This issue had been left to compliance in the order correcting error issued
September 20, 1989.
observer for the Union, approached Campbell and of-
fered to shake his hand, saying ‘‘no hard feelings.’’
Campbell replied that he (Campbell) ‘‘didn’t say that’’
and then turned and walked away. Thus Campbell,
who was later in a position to affect Pace and
Rutkauski’s applications for work, expressed hostility
or hard feelings toward the Union’s effort and toward
Pace specifically. In addition, when Pace told Director
of Industrial Relations Wing that he was applying for
the job that was advertised, Wing angrily threw several
newspaper advertisements on the desk and asked Pace
to choose one. The two then got into an argument over
recall rights which had been the subject of the Union’s
unfair labor practice charge against the Respondent.7
When Pace later asked Wing about a job opening in
April 1987, Wing said that Pace’s chances of ever re-
turning to the Respondent’s employ were ‘‘nil’’ but
that he would deny ever having told Pace that.
The above encounters show a hostility to employee
involvement with the Union and with Board processes.
The finding of antiunion animus and hostility to in-
volvement in Board processes is one element of the
General Counsel’s prima facie showing that the refusal
to rehire was motivated by the employees’ union activ-
ity and involvement in Board processes. Other ele-
ments include the shifts and inconsistencies in the Re-
spondent’s explanation for refusing to hire Pace and
Rutkauski. More specifically, we note the cir-
cumstances surrounding Pace and Rutkauski’s requests
for work. On June 26, 1986, when Rutkauski asked
Wing about job openings, Wing told Rutkauski there
were none. In fact, Wing was aware of one job open-
ing (toolcrib attendant) and he admitted that he thought
Rutkauski might be interested in that position. The fol-
lowing day when Wing received requisitions for opera-
tor positions, he did not contact Rutkauski who had
just expressed a keen interest in job openings. Instead,
Wing placed ads in the newspaper for these positions,
despite the Respondent’s admitted policy of hiring by
word of mouth. When Pace responded to the ad and
called Wing on June 30, 1986, Wing told him to come
in and apply. However, when Pace did so only 2 days
later, he was told the jobs were filled. When Rutkauski
applied the following day, he also was informed that
the jobs were no longer available.8
We find that this evidence of shifts or inconsist-
encies in the Respondent’s treatment of the
discriminatees’ requests for work, coupled with the
evidence of animus discussed above, constitute support
for a prima facie showing that the Respondent did not
inform Pace and Rutkauski about job openings and
changed its decision to fill openings because it did not
want to hire employees who had previously attempted
to bring in a union and who had been involved in a
Board charge against the Respondent.
Finally, we find that the General Counsel’s showing
of unlawful motivation is also supported by the Re-
spondent’s failure to give a credible explanation for its
reasons for refusing to hire Pace and Rutkauski.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(9th Cir. 1966); Baumgardner Co., 288 NLRB 977 fn.
4 (1988), enfd. mem. 866 F.2d 1411 (3d Cir. 1988).
See also Abbey’s Transportation Services, 284 NLRB
698, 701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988).
In this regard, we reaffirm our initial analysis that the
Board’s decision in Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), did not disturb the well-estab-
lished principle set forth in the above-cited cases that
if the stated motive for a discharge (or refusal to hire)
is false, the trier of fact may infer that there is another
motive that the employer wishes to conceal—an un-
lawful motive—where the surrounding facts tend to re-
inforce that inference. Id. at 1088 fn. 12.
We reaffirm our agreement with the judge’s finding
that the Respondent’s reasons for not hiring the
discriminatees are not persuasive. For the reasons set
forth in our original decision, we do not believe the
Respondent’s assertion that the advertisement of job
openings was a mistake, or that there was a specific
plan to automate the grinder machine and to fill a job
opening by granting employee Ovrahim’s request to
transfer. In addition, we again note that the Respond-
ent offered no explanation for Wing’s failure to men-
tion a job opening that he thought would interest
Rutkauski or his failure to contact Rutkauski when he
received the job requisitions. We conclude that the Re-
spondent’s failure to give a credible reason for not of-
fering jobs to Pace and Rutkauski reinforces the infer-
ence that the Respondent’s true reasons were unlawful.
Accordingly, for all of these reasons, we find that
the General Counsel established a prima facie case that
Pace and Rutkauski were denied employment because
of their protected activity. We further find, for the rea-
sons stated in our original decision, that the Respond-
ent failed to meet its burden under Wright Line of
showing that it would not have rehired either employee
even in the absence of their union activities or involve-
ment in Board processes.
On remand, the court further directed the Board, in
the event it found that the Respondent had an obliga-
tion to rehire Pace, to determine whether the Respond-
ent had met that obligation.9 We find that the Re-
spondent has not done so.
The Respondent contends that in January 1987 it
tried several times to reach Pace by telephone and sent
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This result is not affected by the judge’s discrediting of Pace’s expla-
nation for failing to respond to the letter. Regardless of the reasons for Pace’s
failure to respond to the Respondent’s telephone calls or the January 28 letter,
the fact remains that the Respondent failed to make a valid offer of reemploy-
ment.
Pace a certified letter offering him a job. It argues that
Pace’s failure to respond to the offer or to contact the
Respondent constituted a rejection of an offer of reem-
ployment and ended the Respondent’s obligation to
Pace. The text of the Respondent’s letter, dated Janu-
ary 28, 1987, from Director of Industrial Relations
Wing reads:
I have tried unsuccessfully to reach you by phone
for the past few days. I want to talk with you re-
garding a job opportunity for which you are quali-
fied.
If you are interested you should contact me no
later than January 30, 1987. If I have not heard
from you by that time, I will assume you have no
interest and will proceed accordingly.
We find that the Respondent’s letter does not con-
stitute a valid offer of employment. It is well settled
that an offer of employment must be specific, un-
equivocal, and unconditional in order to toll backpay
and satisfy a respondent’s remedial obligation. Brenal
Electric, 271 NLRB 1557 (1984); L. A. Water Treat-
ment, 263 NLRB 244, 246–247 (1982); Standard Ag-
gregate Corp., 213 NLRB 154 (1974). The Respond-
ent’s January 28 letter does not meet these require-
ments. The letter does not mention a specific job or
even a job classification. It merely speaks of a ‘‘job
opportunity.’’ Further, the Respondent’s letter does not
make an express offer of a job to Pace but, instead,
states a desire to ‘‘talk’’ with Pace about a job oppor-
tunity for which he is qualified. We, therefore, find
that the Respondent did not make a valid offer of em-
ployment in the January 28 letter.10
AMENDED REMEDY
In the September 20, 1989 Order Correcting Error in
the Board’s original decision, the Board found that
Guiseppe Pace was entitled to an offer of immediate
and full employment to the position for which he is
qualified and in which he would have been employed
but for the discrimination against him. However, the
Board found that John Rutkauski was not entitled to
such an offer because the General Counsel conceded
that the Respondent fulfilled its obligation to rehire
Rutkauski and terminated its backpay obligation with
respect to him when Rutkauski accepted the employ-
ment offered by the Respondent. We reaffirm these
findings. However, we correct an inadvertent error
noted by the court on remand and find that the date
on which Rutkauski accepted the Respondent’s offer of
employment is January 19, 1987.
Accordingly, we shall order that the Respondent
offer Guiseppe Pace immediate and full employment to
the position for which he is qualified and in which he
would have been employed but for the discrimination
against him, without prejudice to his seniority or any
other rights and privileges to which he would be enti-
tled absent the discrimination against him. We shall
also order that the Respondent make Guiseppe Pace
whole for any loss of earnings or other benefits from
the date he would have been employed but for the dis-
crimination against him until the date of a proper offer
of reemployment and that the Respondent make John
Rutkauski whole for any loss of earnings or other ben-
efits from the date he would have been employed but
for the discrimination against him until the date of his
reemployment on January 19, 1987, with backpay to
be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest to
be computed in the manner set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Finally, we
shall order that the Respondent remove from its
records any references to the unlawful refusal to rehire
Guiseppe Pace and John Rutkauski, provide them with
written notice of such removal, and inform them that
the unlawful refusal to rehire will not be used as a
basis for future personnel actions concerning them. See
Sterling Sugars, 261 NLRB 472 (1982).
ORDER
The National Labor Relations Board orders that the
Respondent, Holo-Krome Company, West Hartford,
Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to hire, reemploy, or otherwise dis-
criminate against employees because of their engaging
in protected activity.
(b) Refusing to hire, reemploy, or otherwise dis-
criminate against employees because they have filed
charges with, or otherwise aided and assisted, the Na-
tional Labor Relations Board in the performance of its
functions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Guiseppe Pace immediate and full employ-
ment to the position for which he is qualified and in
which he would have been employed but for the dis-
crimination against him, without prejudice to his se-
niority or any other rights and privileges to which he
would be entitled absent the discrimination against
him, and make Guiseppe Pace and John Rutkauski
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
455HOLO-KROME CO.
11 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
the manner set forth in the remedy section of this deci-
sion.
(b) Remove from its files any reference to the un-
lawful refusal to hire Guiseppe Pace and John
Rutkauski and notify the employees in writing that this
has been done and that the unlawful refusal to hire will
not be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its West Hartford, Connecticut facility
copies of the attached notice marked ‘‘Appendix.’’11
Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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 or-
dered us post and abide by this notice.
WE WILL NOT refuse to hire, reemploy, or otherwise
discriminate against employees because of their pro-
tected activities.
WE WILL NOT refuse to hire, reemploy, or otherwise
discriminate against employees because they file
charges with, or otherwise aid and assist, the National
Labor Relations Board in the performance of its func-
tions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Guiseppe Pace immediate and full
employment to the position for which he is qualified
and in which he would have been employed but for the
discrimination against him, without prejudice to his se-
niority or any other rights and privileges to which he
would be entitled absent the discrimination against him
and WE WILL make Guiseppe Pace and John Rutkauski
whole for any loss of earnings or other benefits they
may havesuffered because of the discrimination against
them, with interest.
WE WILL remove from our files any reference to the
refusal to hire Guiseppe Pace and John Rutkauski and
notify them in writing that this has been done and that
evidence of their unlawful refusal to hire will not be
used as a basis for future personnel actions concerning
them.
HOLO-KROME COMPANY