Little Rapids Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1993

310 N.L.R.B. 604 (N.L.R.B. 1993)

604
310 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 2, 1992, Administrative Law Judge D. Barry Mor-
ris issued the attached decision. The Respondent filed exceptions and
a supporting brief, the General Counsel filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In its exceptions the Respondent contends that the poststrike jobs
for which the discriminatees applied were not substantially equiva-
lent to their prestrike jobs and that the discriminatees were not quali-
fied to perform these jobs. We disagree. Although the Respondent
during the strike introduced some new equipment and methods of
quality control which involved employee training, these changes
were not substantial and the training, which was provided on the job,
was not extensive. Under these circumstances, we agree with the
judge that the jobs for which the discriminatees applied were sub-
stantially equivalent to their prestrike jobs and that the Respondent
is obligated to recall the discriminatees to these jobs. As the Board
has held, ‘‘employer misgivings concerning the qualifications of an
economic striker are to be tested on the job through recall, with the
employer, later, permitted to take appropriate action if the recalled
striker is in fact ‘qualified or cannot do the work.’’’ Lehigh Metal
Fabricators, 267 NLRB 568, 575 (1983); Brooks Research & Mfg.,
202 NLRB 634, 637 fn. 13 (1973). See also Oregon Steel Mills, 291
NLRB 185, 195–196 (1988).
1 The General Counsel’s motion to correct transcript is granted.
Little Rapids Corporation, Potsdam Paper Mills Di-
vision and Larry Marcellus and Lee S. Selleck
and Leland M. Drake. Cases 3–CA–16810, 3–
CA–16853, and 3–CA–16946
March 5, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the issue of whether the Respondent unlawfully
refused to reinstate employees who had participated in
an economic strike.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Little Rapids Corporation,
Potsdam Paper Mills Division, Potsdam, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Robert A. Ellison, Esq., for the General Counsel.
Paul V. Lucke, Esq. (Reinhart, Boerner, Van Deuren, Norris
& Rieselbach), of Milwaukee, Wisconsin, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Potsdam, New York, on May 27 and
28, 1992. On charges filed on January 13 and 30 and March
9, 1992, a complaint was issued on April 9, 1992, alleging
that Little Rapids Corporation, Potsdam Paper Mills Division
(Respondent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), by failing and refusing to re-
instate several former economic strikers. Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
The parties were given a full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by Respondent.
On the entire record of the case,1 including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Wisconsin corporation with its principal of-
fice and place of business in Green Bay, Wisconsin, operates
a papermill in Potsdam, New York, which has been engaged
in the manufacture and nonretail sale of paper. Respondent
annually ships and sells good valued in excess of $50,000
from the Potsdam facility directly to points located outside
the State of New York. Respondent admits, and I so find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The production and maintenance employees represented by
United Paperworkers International Union Local No. 1726,
AFL–CIO engaged in an economic strike at the Potsdam fa-
cility which lasted from April 1, 1989, to May 25, 1990. Per-
manent replacements were hired during the strike with the
mill eventually being fully staffed by permanent replace-
ments and several strikers who crossed the picket lines. On
March 1, 1990, Leland M. Drake filed a decertification peti-
tion, and the Union was officially decertified in late May
1990. A preferential rehire list was established by Respond-
ent which contained names of former strikers seeking rein-
statement. Drake, Larry Marcellus, and Lee S. Selleck were
among those former strikers who signed the preferential list
in June 1990.
2. Leland Drake
Drake began his employment in 1966. He participated in
the strike which ended on May 25, 1990. His prestrike posi-
605LITTLE RAPIDS CORP.
2 All dates refer to 1991 unless otherwise specified.
tion was No. 3 paper machine tender. Prior to the strike, the
lowest ranking position on the paper machine was that of
broke hustler. The next position was fourth hand and the
next highest position was winder operator. The second to the
highest position was back tender and the highest position
was machine tender. Two to three weeks after the strike
ended, Drake offered to return to work. Originally, former
strikers applied for openings by coming to the plant and
signing the posting, but they were subsequently informed by
Jackie Lyons, the personnel assistant, that they could tele-
phone in their interest for any particular opening. Thereafter,
either Drake or his wife telephoned in his interest in specific
openings.
On October 18, 1991,2 Drake was mailed a notice for a
No. 3 machine tender vacancy. The accompanying letter stat-
ed, ‘‘[I]f you are interested and feel you are qualified, please
respond to Jackie Lyons at our Human Resources Depart-
ment by October 25, 1991.’’ Drake credibly testified that on
October 24, in response to the job offer, he telephoned the
plant. He testified as follows:
I asked for Jackie but she wasn’t there. . . . Who-
ever I talked to on the phone said she was out for the
mail or [I] think that’s what she said, and she would
leave a message. I told her who I was.
Q. What was the message you left?
A. I’d like to apply for the number three machine
tender.
Q. What did the person you spoke to say?
A. That she would just give the message to Jackie.
Larry Marcellus testified that he overheard Drake’s con-
versation and heard Drake say that he was interested in ap-
plying for the No. 3 paper machine operator job. Debbie
Marcellus credibly testified that she also overheard the con-
versation and she heard Drake ask for Jackie Lyons. Jackie
Lyons, who appeared to me to be a credible witness, testified
that she did not recall Drake calling her and asking to be
considered for the position. Similarly, Andrea Harbart, the
plant’s receptionist and switchboard operator, also testified
that she did not recall Drake calling her on October 24 ex-
pressing an interest in a job opening. Drake never received
notification from Respondent with respect to that position.
His name was not taken off the preferential rehire list and
he has continued to receive mailings of job openings. The
No. 3 machine tender position was awarded to Randy
Clifford, who was a permanent strike replacement and had
been classified as a No. 3 back tender.
I have credited both Drake’s testimony and Lyons’ testi-
mony. I find that on October 24 Drake telephoned Respond-
ent and asked for Lyons. Lyons was not available and Drake
told the person who answered the phone that he would like
to apply for the No. 3 machine tender vacancy. The person
who answered the phone said that she would give the mes-
sage to Lyons. Lyons apparently never received the message
and consequently Drake’s name was not placed on the list
of those interested in the position. The position was awarded
to Clifford, a permanent strike replacement.
3. Larry Marcellus
Marcellus began his employment with Respondent in July
1981. He was also one of the employees who participated in
the strike which ended in May 1990. At the time of the
strike he had been a winder operator on the No. 3 machine
for 3-1/2 years. Prior to that he had been the No. 2 machine
winder operator, and he had also often filled in in the back
tender position. He had never been informed by Respondent
that he was considered inadequate in the performance of his
duties in any respect. About a week after the strike ended
Marcellus submitted his resume and thereafter he began re-
ceiving notices of vacancies. Although the postings generally
required that the successful applicant take the ‘‘HRI’’ and
‘‘ABLE’’ tests, Marcellus was never called in to take the
tests. Norman Tomlinson, Respondent’s production manager,
explained that ‘‘HRI’’ or ‘‘Human Resources Inventory’’ is
a standardized test which determines how well people can
work together in a teamwork type atmosphere. The ‘‘ABLE’’
test, ‘‘Adult Basic Learning Evaluation,’’ is another stand-
ardized test which evaluates basic adult knowledge and the
ability for adults to learn and to communicate with each
other. He testified that only applicants who were determined
to be finalists were given the HRI and ABLE tests.
Marcellus received a November 12, 1991 posting of a va-
cancy for his prestrike job, namely, winder operator. He
called Lyons and expressed his interest in the position. The
job description for the winder operator position did not differ
from Marcellus’ actual prestrike duties and he met the enu-
merated prerequisites and qualifications with the exceptions
of the HRI and ABLE tests which, as noted, he was never
afforded an opportunity to take. Marcellus was not offered
the position. Instead, the position was awarded to Mike
Jacob, a permanent strike replacement who had previously
been classified as a fourth hand.
Marcellus received another posting for a No. 3 winder op-
erator position dated December 11, and he again applied.
This was the same position that he previously applied for in
November. He was also not awarded this position. Instead,
the job was awarded to Tom Losey, a former striker who had
been reinstated as a utility worker.
4. Lee Selleck
Selleck began his employment with Respondent in August
1984 and was also one of the employees who had been en-
gaged in the strike which ended in May 1990. At the time
of the strike he had been employed as a fourth hand on the
No. 3 machine for about 1-1/2 years. Prior to that time he
had been a broke hustler on the No. 3 machine. Selleck ap-
plied for a No. 3 fourth hand vacancy announced on Decem-
ber 11, 1991, but received no reply. The job description in
the posting was the same as his actual prestrike duties.
Selleck credibly testified that he met all the listed pre-
requisites with the exception of the HRI and ABLE tests
which he was not asked to take. The position was awarded
to Phil Vivlamore, a permanent strike replacement. Selleck
was subsequently reinstated in April 1992 as a mill utility
worker. Since his reinstatement he has performed a variety
of duties, including three occasions when he performed the
No. 3 machine fourth hand duties. The job was no different
than it had been prior to the strike and Selleck was able to
perform all the duties. Although Selleck has not been as-
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed to perform the winder operator duties since his rein-
statement, he observed no changes in the content of the job.
Discussion and Conclusions
1. Applicable legal principles
In Laidlaw Corp., 171 NLRB 1366, 1369–1370 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970), the Board held:
[E]conomic strikers who unconditionally apply for rein-
statement at a time when their positions are filled by
permanent replacements: (1) remain employees; and (2)
are entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the fail-
ure to offer full reinstatement was for legitimate and
substantial business reasons.
Such individuals are entitled to return not only to their
former jobs, but also to substantially equivalent jobs, when
they become vacant. Rose Printing Co., 304 NLRB 1076
(1991). The Board has also held that an employer is gen-
erally obligated to offer the initial job vacancy created by the
departure of a strike replacement to an unreinstated ‘‘quali-
fied’’ striker. Nolan Systems, 268 NLRB 1248, 1250 (1984).
2. Drake
Respondent argues that Drake failed to apply for the No.
3 machine tender position which was posted on October 18,
1991. I have credited Drake’s testimony that on October 24
he called the plant and asked for Jackie Lyons. When he was
told by the person who answered the telephone that Lyons
was not available he said that he would like to apply for the
No. 3 tender position and the person who answered the tele-
phone said that she would give Lyons the message. Although
I credit Lyons’ testimony that she did not receive the mes-
sage, and consequently, she did not place Drake’s name on
the list of those interested in the position, it is well settled
that the employer’s burden of notification cannot be shifted
to the former striker. U.S. Mineral Products Co., 276 NLRB
140, 142 (1985). In American Olean Tile Co., 265 NLRB
1625, 1628 (1982), enf. denied on other grounds 826 F.2d
1496 (6th Cir. 1987), the credited testimony of the union rep-
resentatives that an offer to return on behalf of all strikers
was made by telephone to the plant manager constituted an
effective offer notwithstanding the likewise credited testi-
mony of the plant manager that he did not recall receiving
the telephone call.
When Drake’s former position became vacant on the per-
manent disability of striker replacement, Coller, Drake was
automatically entitled to reinstatement. Although Respondent
argues in its brief that Clifford was more qualified than
Drake for the position, finding someone who is ‘‘more quali-
fied’’ is not a legally sufficient justification for not awarding
the position to the former striker. As the Board stated in
Nolan Systems, supra, 268 NLRB at 1250, the employer is
obligated to offer the job vacancy to an unreinstated ‘‘quali-
fied’’ striker. Drake’s prestrike position was No. 3 machine
tender. The job description for the No. 3 tender position did
not differ from Drake’s prestrike job in terms of duties,
prerequisities, or qualifications except with reference to the
HRI and ABLE tests. Drake was not given the opportunity
to take these tests, because, as Tomlinson testified, the tests
were only administered to the ‘‘finalists.’’ I, therefore, find
that by not offering Drake the machine tender position which
was posted on October 18 and was awarded to Clifford on
November 4, Respondent violated Section 8(a)(1) and (3) of
the Act.
3. Marcellus
Prior to the strike, Marcellus had been a winder operator
on the No. 3 machine. He applied for the November 12
winder operator posting. The job description for the winder
operator position did not differ from Marcellus’ actual
prestrike duties and he met the enumerated prerequisites and
qualifications with the exception of the HRI and ABLE tests
which he had not been afforded the opportunity to take. On
November 26 the position was awarded to Mike Jacob, a
permanent replacement. In addition, Marcellus applied for
the same position which was posted on December 11. That
position was awarded to Tom Losey, who had been a former
striker and had been reinstated as a mill utility worker. Re-
spondent takes the position that both Jacob and Losey were
better qualified for the position than was Marcellus. As
pointed out above, however, the fact that an employer may
find someone who is more qualified does not absolve the
employer from the obligation to offer the initial job vacancy
created by the departure of a strike replacement to an
unreinstated ‘‘qualified’’ striker. Nolan Systems, supra, 268
NLRB at 1250. The record demonstrates that Marcellus was
qualified to perform the duties of machine winder operator.
In Aluminum Welding Works, 282 NLRB 396 (1986), an
employer refused to reinstate an economic striker on a pref-
erential hiring list and asserted that the applicant it hired was
a ‘‘faster’’ worker. The Board upheld the judge’s decision,
which stated (id. at 397) ‘‘an economic striker’s reinstate-
ment rights are not dependent on an employer’s ability to
find a faster, or otherwise ‘better,’ worker after an uncondi-
tional offer to return [to] work is made.’’ The decision noted
that when work for which the former striker was ‘‘qualified’’
became available, his ‘‘right to reinstatement matured’’ and
that right could only be defeated by the employer’s showing
of a legitimate and substantial business justification for not
reinstating him. The only ‘‘business consideration’’ was the
employer’s hope of employing someone ‘‘faster’’ than the
former striker. The decision continued (id.):
[S]uch hope has never been held to be a ‘‘legitimate
and substantial’’ business consideration as envisioned
by the Court. Nor could it be. It is not ‘‘substantial’’
because all employers, at all times, hope to find faster
or otherwise ‘‘better’’ workers. It is not ‘‘legitimate’’
because it would allow employers to pick and choose
among returning strikers on the basis [of] its evaluation
of its prospects of fulfilling this universal hope of find-
ing ‘‘better’’ employees. Therefore, Respondent’s re-
fusal to reinstate Plamowski when work for which he
was qualified became available, even if Doherty was
better qualified, was a violation of Plamowski’s right to
reinstate[ment] . . . .
607LITTLE RAPIDS CORP.
3 The General Counsel’s brief notes that Marcellus also applied for
the November 12 vacancies in the back tender and mill utility posi-
tions and the December 11 winder operator and fourth hand posi-
tions. Inasmuch as I have found that Respondent was required to
award the November 12 winder operator vacancy to Marcellus, I be-
lieve that I need not decide whether Respondent’s failure to award
the additional positions constituted violations of the Act. In this con-
nection, I note, however, that Marcellus’ prestrike position was that
of winder operator. See Rose Printing Co., supra, 304 NLRB at
1076.
4 Tomlinson testified that prior to the strike Selleck had been clas-
sified as a broke hustler but had been temporarily filling in as a
fourth hand. Tomlinson acknowledged, however, that as of March
1989 Selleck was earning more than the broke hustler rate. On rebut-
tal, Selleck testified that he had officially been awarded the fourth
hand position. I credit Selleck’s testimony.
5 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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
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.’’
I find, therefore, that by failing to award the winder oper-
ator position posted on November 12 to Marcellus, and in-
stead, awarding the position to Jacob, a permanent strike re-
placement, Respondent violated Section 8(a)(1) and (3) of
the Act.3
4. Selleck
Prior to the strike Selleck had been employed as a fourth
hand on the No. 3 machine.4 He applied for a No. 3 fourth
hand vacancy announced on December 11. The job descrip-
tion in the posting was the same as his actual prestrike du-
ties. I find that he met all the listed prerequisites with the
exception of the HRI and ABLE tests which he was not
asked to take. On January 20, 1992, the position was award-
ed to Vivlamore, a permanent replacement. In April 1992,
Selleck was reinstated as a mill utility worker. Since his rein-
statement he has performed a variety of duties including sev-
eral occasions when he performed the No. 3 machine fourth
hand duties. I credit Selleck’s testimony that the job was no
different than it had been prior to the strike and that Selleck
was able to perform all the duties. Although Respondent
maintains that Vivlamore was more qualified for the position
than Selleck, I have found that Selleck performed fourth
hand duties prior to the strike and he was qualified for that
position. Accordingly, when that position became available,
his right to reinstatement matured. I find that Respondent has
not shown a ‘‘legitimate and substantial business justifica-
tion’’ for not reinstating him. By failing to award the posi-
tion to Selleck and by instead, awarding the position to
Vivlamore, a permanent replacement, Respondent violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Little Rapids Corporation, Potsdam Paper Mills Divi-
sion is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. By failing and refusing to reinstate Leland M. Drake,
Larry Marcellus, and Lee S. Selleck to their former, or sub-
stantially equivalent, positions of employment, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act, I find it necessary to order Respondent to cease and de-
sist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. I shall order that Re-
spondent offer full and immediate reinstatement to Leland M.
Drake in the position of machine tender; to Larry Marcellus
in the position of winder operator; and to Lee Selleck in the
position of fourth hand. I shall further order that Respondent
make the three individuals whole for any loss of earnings
that they may have suffered from the dates of the initial post-
ings to the dates of Respondent’s offers of reinstatement.
Backpay shall be computed in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).5
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Little Rapids Corporation, Potsdam Paper
Mills Division, Potsdam, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate economic strikers to their former,
or substantially equivalent, positions of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Leland M. Drake immediate and full reinstate-
ment to the position of machine tender; offer Larry Marcellus
immediate and full reinstatement to the position of winder
operator; and offer Lee S. Selleck immediate and full rein-
statement to the position of fourth hand; or if such positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings, with interest, in
the manner set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(c) Post at its facility in Potsdam, New York, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees 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.
(d) 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
After a hearing in which all parties were afforded the oppor-
tunity to present evidence it has been found that we violated
the National Labor Relations Act in certain respects and we
have been ordered to post this notice.
WE WILL NOT refuse to reinstate economic strikers to their
former, or substantially equivalent, positions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Leland M. Drake immediate and full rein-
statement to the position of machine tender; offer Larry
Marcellus immediate and full reinstatement to the position of
winder operator; and offer Lee S. Selleck immediate and full
reinstatement to the position of fourth hand; or if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges and WE WILL make them whole for any loss of earn-
ings, with interest.
LITTLE RAPIDS CORPORATION, POTSDAM
PAPER MILLS DIVISION