Mars Sales & Equipment Co.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1097 (N.L.R.B. 1979)

Mars Sales and Equipment Co. and Lenard Neaville.
Case 14-CA-11832
June 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On March 21, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel each filed exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.
The Administrative Law Judge properly found that
the two employees comprising the bargaining unit,
namely, Lenard Neaville and Victor Metzger, com-
menced a protected economic strike on July 12,
1978,2 and that Respondent unlawfully discharged
them on July 18, thereby prolonging the strike and
converting it on that date to an unfair labor practice
strike. As Neaville on December 6 made an uncondi-
tional request for reinstatement, which Respondent
did not grant, the Administrative Law Judge found
that Neaville was entitled to reinstatement and back-
pay from that date to the date Respondent makes a
valid offer of reinstatement. As to Metzger, who did
not make an unconditional request for reinstatement,
resigned on August 26, the Administrative Law Judge
found that he was not entitled to reinstatement and
backpay.
However, the Board in Abilities and Goodwill, Inc.,
241 NLRB 27 (1979), recently decided to treat unlaw-
fully discharged strikers in the same manner as other
discriminatorily discharged employees, for the pur-
l Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her credibility resolutions. However, in
affirming the Administrative Law Judge's discrediting of Linda Meyer, one
of Respondent's bookkeepers, we do not rely on the fact that she was still in
the employ of Respondent when she testified.
We also find no evidence to suppoort Respondent's allegation that the
Administrative Law Judge was biased or prejudiced against Respondent.
2 All dates below refer to 1978 unless otherwise indicated.
MARS SALES AND EQUIPMENT CO.
pose of determining reinstatement rights and comput-
ing backpay, by dispensing with the requirement that
such strikers unconditionally request reinstatement in
order to trigger the employer's backpay obligation.
The Board therefore found that such strikers are enti-
tled to receive backpay from the date of their unlaw-
ful discharge until they have been offered reinstate-
ment.
On the basis of the foregoing, we find that both
Neaville and Metzger are entitled to reinstatement
and backpay from July 18, the date of their unlawful
discharge, to the date they receive a valid offer of
reinstatement. Although, as noted above, Metzger re-
signed from Respondent's employment on August 26,
that action does not relieve Respondent of the obliga-
tion to offer him reinstatement and to make him
whole for any loss he may have suffered as a result of
Respondent's discrimination against him. In view of
Metzger's unlawful discharge and the fact that he did
not receive a valid offer to return to work for Respon-
dent and hence was not given an opportunity to make
a decision as to reinstatement, Metzger's resignation
cannot be deemed tantamount to an unequivocal de-
termination not to accept reinstatement at any time.
Thus, it best effectuates the policies of the Act to pro-
tect Metzger's right to return to Respondent's em-
ployment and to receive backpay until Respondent
makes him an unconditional offer of reinstatement.3
As recommended by the Administrative Law
Judge, backpay shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), together with interest thereon as computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977). 4 Respondent may, of course,
attempt to prove in the compliance stage of this pro-
ceeding that Neaville and Metzger incurred a willful
loss of earnings by continued participation in the
strike after the date of their discharge.
In light of the foregoing, we shall modify the Ad-
ministrative Law Judge's recommended Order as set
forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Mars
Sales and Equipment Co., Centralia, Illinois, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
I See Central Cartage, Inc., 236 NLRB 1232 (1978). and Burnup and Sims,
Inc., 157 NLRB 366 (1966).
4 See generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
242 NLRB No. 149
1097
DECISIONS OF NATIONAL ABOR RELATIONS BOARI)
1. Substitute the following two paragraphs for 2(a)
and reletter the subsequent paragraphs accordingly:
"(a) Offer employees Lenard Neaville and Victor
Metzger immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights or privileges previously
enjoyed, discharging, if necessary, any replacements
hired after the date of their unlawful discharge.
"(b) Make Lenard Neaville and Victor Metzger
whole for any loss of earnings which they may have
suffered because of the discrimination against them
by paying them an amount equal to what they would
have earned from the date of discharge to the date
that they are offered reinstatement. Such backpay is
to be determined in the manner set forth in this Deci-
sion."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoTIc(E To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law by, among other things, discharg-
ing employees Lenard Neaville and Victor Metzger
while they were engaged in a protected strike. We
have been ordered to post this notice. We intend to
carry out the Order of the Board and abide by the
following:
The National Labor Relations Act gives employ-
ees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
Our employees are free to exercise any or all of
these rights, including the right to join or assist the
Teamsters or any other union. Our employees are
also free to refrain from any or all such activities.
except to the extent that their bargaining representa-
tive has a collective-bargaining agreement which law-
fully requires employees to become union members.
WE WILl.l. NOT tell you that we have discharged
employees who engaged in a protected strike.
WE \WiLl. Nil tell you that we have offered
you better benefits and higher wages if you
would abandon Teamsters Local No. 50, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America.
WE: WIl.L NOI, at a time when you are in a
bargaining unit exclusively represented by a
union, try to negotiate directly with you, solicit
your grievances, or find out from you individ-
ually what contract terms you want.
W WllI.l. NOI discharge employees who are
engaging in a protected strike.
Wi WILL. NOI discharge employees, or other-
wise discriminate against them with respect to
hire or tenure of employment or any term, or
condition of employment, to discourage mem-
bership in the Teamsters of any other union.
WE. wil.l. Nor in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WII.I offer Lenard Neaville and Victor
Metzger immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights or
privileges previously enjoyed, discharging, if nec-
essary, any replacements hired after the date of
their unlawful discharge.
WE WI.I. make Lenard Neaville and Victor
Metzger whole for any loss of earnings which
they may have suffered because of the discrimi-
nation against them by paying an amount, plus
interest, equal to what they would have earned
from the date of their unlawful discharge on July
18, 1978., to the date that they are offered rein-
statement.
MARS SAI.IS AND EQtIPMENI C().
1)(ISION
NANCY M. SH.RMAN, Administrative Law Judge: This
case was heard in St. Louis, Missouri. on December 12.
1978.' pursuant to a charge filed on September 14 and
amended on October 16. and a complaint issued on October
17. The questions presented are whether Respondent Mars
Sales and Equipment Co., violated Section 8(a)( I) of the
National Labor Relations Act, as amended. (the Act) by
negotiating directly with employees; soliciting an employ-
ee's grievances: telling employees that Respondent had dis-
charged employees who engaged in a strike and they would
never work for Respondent again: telling an employee that
because employees engaged in a strike. Respondent would
A11 dates herein are 1978 unless olherie taled
1098
MARS SAI.ES AND EQI:IPMN1 I (CO
not engage in collective bargaining: telling an employee
that Respondent had offered employees more benefits and
higher wages if they would abandon Teamsters ocal No.
50, affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America (the
Union or the Teamsters): and telling an employee that the
Union's representatives were crooks and other employers
were going to get it out of their facilities and violated Sec-
tion 8(a)( ) and (3) of the Act by discharging strikers en-
ard Neaville and Victor Metzger.
Upon the whole record, including the demeanor of the
witnesses, and after due consideration of the briefs filed by
Respondent and by counsel ftr the General Counsel (the
General Counsel}, I make the fiollowing:
FININ(;S () I A( I
I. J RISI)I( IION
Respondent is a Nevada corporation with its principal
office and place of business in Centralia. Illinois, where it is
engaged in the nonretail sale, distribution, and service of
food-processing equipment and related products. Respon-
dent is basically a restaurant, bar, and janitorial supply
company. Most of its customers are in two counties in
southern Illinois, and it supplies no customers outside of
Illinois. During the year ending September 30. 1978 a rep-
resentative period. Respondent made purchases valued at
more than $50,000 directly from points outside Illinois. I
find that, as Respondent concedes, Respondent is engaged
in commerce within the meaning of the Act. I further find
that exercise of jurisdiction over Respondent's operations
will effectuate the policies of the Act. N.L.R. B. v. Reliamlc
Fuel Oil Corporation, 371 U.S. 224 (1963); Siemons Mailing
Service, 122 NI.RB 81 (1958).
The Union is a labor organization within the meaning of
the Act.
II. IHi AIt..LGI) UNFAIR I ABO()R PRA( II(ES
A. The Rothschild Farmili
Respondent's stock is equally divided between Nathan
Rothschild, who is president, and his ife Beverly C.
Rothschild, who is its secretary-treasurer. Respondent's
board of directors consists of Nathan and Beverly Roths-
child and their 27-year-old son, David Rothschild.
Nathan, Beverly, and David Rothschild all testified that
Nathan Rothschild runs the business. Beverly Rothschild
testified that she works for Respondent 4 days a week and 5
or 6 hours a day: that she works in the office doing the
typing, answering the telephone, and waiting on customers;
and that she does not hire, fire, schedule, or direct employ-
ees. At material times herein, David Rothschild and his 28-
year-old brother Jeff (the son of Nathan and Beverly Roth-
schild) also worked in Respondent's establishment. Their
duties are discussed infra, section II F.
The General Counsel contends that Nathan, Beverl.
David, and Jeff Rothschild are all agents of Respondent.
Respondent so concedes as to Nathan Rothschild onl.
B. Background
At all relevant times beflre July 12, 1978, Respondent
was admittedly under a duty to bargain with the Union
with respect to a two-man unit consisting of I.enard Nea-
ville and Victor Metzger. A collective-bargaining agree-
ment between Respondent and the nion with respect to
this unit expired on May 23, 1978.
C. .411egec l PrestriA t Un!ifir Labor Praclices
About March 1978 Neaville and Metzger told the Union
what they wanted in the new contract. Metzger testified
without objection that he supposed the Union gave that
same proposal to Respondent. About April 20 (CompanN
President Nathan Rothschild told Neaville and Metzger
that Rothschild could not negotiate on the terms "-ou
guys" were asking or. Neaville replied that the proposed
contract terms were "just what we were going on. that he
had to start somewhere. and that we weren't going to nego-
tiate directly with him."
Some time in May Nathan Rothschild approached Nea-
ville and Metzger and said that "he didn't see wh we
needed the union, that he didn't like working through a
third party, that he would draw up a contract between our-
selves and take it to his lawyer and have it certified and
notarized and everything. and we would just have our own
individual contract. that there was no sense of us paying
union dues to the Union. the Union wasn't doing us any
good anyway, and that ... he wasn't going to agree with the
Union, that we are going to agree together first off before
we talked to the Union." he employees did not reply.2
Metzger testified that on a date before the May 23 expi-
ration of the contract, which he otherwise could not recall.
and after he had filed several grievances against an em-
plo\ee named Bromley that he was doing union work. Na-
than Rothschild told Metzger that if he had any more griev-
ances to come to Rothschild before going to the Union.
Rothschild's version was. "I said that it has been a com-
pany policy that if somebody has a complaint that I would
rather they come to see me first before somebody else is told
about it." For demeanor reasons I credit Metzger.
In late June or earl} July Nathan Rothschild approached
Metzger and asked. "What do you want on the contract?"
Metzger said that he wanted more money and a retirement
plan. Rothschild replied. "Fine," and left.
[). 7c SriAke and A llgeld Suhbuett .Ln/ulir lilhor
Practice.
On July 12 Neaville and Metzger began what Respon-
dent concedes was a protected economic strike. By respec-
tive identical letters dated July 18, 1978. Respondent ad-
vised each of them. "This is to notify you that we have
hired a permanent replacement for your position. and no
: M findings in this piragralph are hased n a composiltc of credible parts
it NeasNile's aind Metzger's etinn it For denie.nor reasons. t do nol credit
Rohs,.lhllld '5 de al
I099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer will need your services, effective immediately."' For
reasons stated infra, part II, F. I find that they had not been
permanently replaced on that date.
Darlene Speakman, Respondent's accounts payable
bookkeeper, testified to the following effect: Just before en-
tering Respondent's establishment, on a date which she
could not recall, she talked briefly on the picket line with
Metzger, who said he had been fired. When she entered the
shop Nathan or Beverly Rothschild asked what Speakman
had been talking to Metzger about. She said that Metzger
"just got a letter of being fired." Beverly Rothschild said,
"yes, they both have." On several occasions Beverly Roths-
child told customers, in employee Speakman's presence,
that Neaville was no longer an employee. On a date which
Speakman could not recall she told Nathan Rothschild that
the Clerks' Union had asked her to join, but she saw "no
sense" in "joining a union in Centralia. I don't see where a
union does any good in Centralia." He said that several of
the other businesses were going to get the unions out of
their places. She said that she did not think the unions in
Centralia were worth anything and that she thought Nea-
ville and Metzger were "stupid" for belonging to a union.
Nathan Rothschild said that the Union was taking the
members' dues and doing nothing for them; that Tom
Hunter (with whom Rothschild had been negotiating) and
others were "all a bunch of crooks," and that Hunter and
someone named Ferguson had made a big salary from the
dues of stupid people who beloinged to the Union. On a
Saturday in a month which she could not remember ("I
don't know, was it October, might have been even-I don't
remember when it was") she told David Rothschild that she
did not think the strikers were being paid enough, to which
he replied that his father had offerd the employees "better
insurance and better wages and better retirement if they
would get out of the Union."
Beverly, Nathan, and David Rothschild either denied
these remarks or gave different versions of them. For the
reasons stated infra, part II, F, I credit Speakman.
In July Beverly Rothschild came out to the picket line
and said to a customer, in the presence of Neaville and
(perhaps) Metzger, that the pickets "no longer had any as-
sociation with" Respondent, that the customer should not
let the pickets "scare" or "threaten" him, and that as long
as he was nonunion he had nothing to worry about, and to
come in.'
Sometime in July or early August Jeff Rothschild told
Metzger and Neaville, "I don't know what you guys are
doing here. Don't you known you have been fired?"
As described infra, Victor Metzger resigned from Re-
spondent's employ on August 26. Neaville testified that
some time in August (from the substance of his remarks, I
infer that they occurred in late August) Neaville told Na-
3 Both letters are typewritten and bear th.e purported signatures of "N.M.
Rothschild," but with the handwritten initials "BCR" underneath. As previ-
ously noted, Beverly C. Rothschild testified that she performs typing services
for Respondent. Nathan Rothschild's purported signatures on these letters
bear no resemblance to the "N.M. Rothschild" signatures on two receipts in
the exhibit folder (G.C. Exh. I(b) and 3).
'This finding is based on Neaville's testimony, which I credit notwith-
standing Beverly Rothschild's general testimony that she had not advised
customers that Respondent had "discharged people because they were in-
volved in the strike."
than Rothschild on the picket line, "I want to let you know
that I wasn't holding out for myself as much as I was for
Victor." Rothschild replied, "Well, you guys took your
stand and I took my stand." Rothschild did not specifically
deny making this statement but did deny ever telling Nea-
ville that he and Metzger had been fired for striking and
that Rothschild would not bargain with the Union. I credit
the testimony of Neaville set out in this paragraph.
About early September, while Neaville was carrying a
picket sign stating "Employed by Mars Sales," David
Rothschild got out of his car and engaged Neaville in con-
versation. Neaville testified that David Rothschild told him,
"You need to change your sign," and, when Neaville asked
what he meant, said, "You're not employed by Mars Sales
. . . You never will be employed by Mars Sales again."
Neaville and David Rothschild both testified that during
this conversation David promised to bring Neaville a black
Magic Marker, and that two or three days later David
apologized for forgetting to bring it with the remark that
food stamps would not pay for it. David Rothschild denied
that he ever told Neaville he was no longer an employee or
had been discharged but testified that he told Neaville that
he ought to correct the language on his sign "Employed
by." I accept Neaville's version but conclude that David
Rothschild's version conveyed much the same sentiment as
to Neaville's employment status.
E. Metzger's Resignation; Neaville's Application for
Reinstatement
At the beginning of the strike Metzger and Neaville
picketed 5 days a week until 5 p.m. and a half-day on Sat-
urdays. By letter sent to Respondent about August 26
Metzger stated that he was resigning from Respondent's
employ.' Thereafter, Neaville stopped picketing regularly
on Saturdays and started picketing shorter hours on week-
days in order to look for work elsewhere.
On December 6 Neaville approached Nathan Rothschild
and said that he was willing to make an unconditional offer
to return to work. Rothschild replied that Neaville could
not make the offer to Rothschild, that it was out of his
hands, and that Neaville would have to talk to his attorney,
Joseph Yocum. Thereafter, Neaville sent a letter addressed
to Respondent and dated December 6 stating, "This is to
notify you I am making an unconditional request to be
reinstated. I want to return to work." The letter contained
Neaville's address and telephone number and was received
by Respondent on December 9. Respondent did not reply
to this letter. After Neaville's December 6 conversation
with Nathan Rothschild, Neaville never picketed again.
F. Analysis and Conclusions
It is convenient to determine, as an initial matter,
whether Respondent had in fact permanently replaced the
two strikers on July 18, 1978, the date on which Respon-
dent advised each of them that it had "hired a permanent
replacement for your position, and no longer will need your
services, effective immediately." Because this assertion is
Although the letter is dated July 26, Respondent's counsel conceded the
accuracy of Metzger's testimony that it should have been dated August 26.
I100
MARS SALES AND EQUIPMENT CO.
based on matters within Respondent's peculiar knowledge,
the burden of establishing its truth rests on Respondent.
New Orleans Roosevelt Corporation, 132 NLRB 248, 250
(1961); Fred Snow, Harold Snow and Tom Snow d/bla Snow
& Sons, v. N.L.R.B., 308 F.2d 687, 695 (9th Cir. 1962); see
also N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375,
378-379 fn. 4 (1967). In any event, the record preponder-
antly shows that Neaville and Metzger were not perma-
nently replaced as of July 18.
Respondent contends that truckdriver Neaville was re-
placed by David Rothschild, and warehouseman Metzger
by Jeff Rothschild. Nathan Rothschild testified that he
"hired" his sons "to fill the positions to continue the opera-
tion of our business." David Rothschild came to work for
Respondent on a permanent basis about June 19, several
weeks before the strike began. At that time his job was that
of a salesman in training. After the strike began on July 12
his duties changed to those of a truckdriver. He continued
to act as truckdriver until at least mid-August when Nathan
Rothschild hired an employee named Kevin Wolbright,
who was still working for Respondent as of the December
12 hearing, to replace David Rothschild as a truckdriver.
After Wolbright was hired David Rothschild stopped driv-
ing a truck and resumed his work as a salesman. After the
strike began Jeff Rothschild performed warehousemen's du-
ties until about the last week in August or the first week in
September when Nathan Rothschild hired Rick Marshall to
replace Jeff. Marshall worked as a warehouseman until he
quit, about mid-September. Nathan Rothschild then hired
Steve Oldfield to replace Marshall. Oldfield was still in Re-
spondent's employ at the time of the hearing. The record
fails to show what work Jeff Rothschild performed for Re-
spondent after Marshall replaced him, but he did not stop
working for Respondent until late November. I conclude
from the foregoing that neither Nathan, David, nor Jeff
Rothschild regarded the sons as having received their truck-
driving and warehouseman's jobs on a permanent basis,
and that therefore, the sons did not constitute permanent
replacements. Georgia Highway Express, Inc., 165 NLRB
514, 516 (1967), enfd. sub nom. Truck Drivers and Helpers
Local No. 728, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica 403 F.2d 921 (D.C. Cir. 1968), cert. denied 393 U.S.
935; Covington Furniture Mfg. Corp., 212 NLRB 214, 220
(1974), enfd. 514 F.2d 995 (6th Cir. 1975); Cyr Bottle Gas
Company, 204 NLRB 527 (1973), enfd. 497 F.2d 900 (6th
Cir. 1974). In so concluding, I note that when testifying on
Respondent's behalf neither Nathan nor David Rothschild
testified to any belief that David or Jeff had received a
truckdriver's or warehouseman's job on a permanent basis;
Jeff Rothschild did not testify at all; about 6 weeks after the
strike began and while it was still in progress, David re-
turned to his prestrike job with Respondent; and about 3
weeks thereafter, and while the strike was still in progress,
Jeff stopped performing his warehouseman's job and took a
different job with Respondent.6
' In view of my finding that David and Jeff Rothschild were not perma-
nent replacements, I need not and do not determine whether their filial
willingness to help out their parents during the strike would in any event
vitiate, as to jobs occupied by them, any "permanent replacement" defense
to a refusal to reinstate strikers. Replacement is ordinarily regarded as a
Respondent's action in falsely advising the strikers on
July 18 that they had been replaced constituted an unlawful
termination of their employment, in violation of Section
8(a)(3) and (1) of the Act. W. C. McQuaide, Inc., 237
NLRB 177, 181 (1978). Accordingly, Respondent's admit-
tedly authentic letters which conveyed this unlawful mes-
sage indirectly corrobate the testimony of Speakman and
Neaville that Beverly Rothschild told them the strikers had
been discharged.
Beverly Rothschild denied telling Speakman or Neaville
that the strikers had been discharged. Nathan Rothschild
denied telling Speakman that "the union's representatives"
were crooks and other employees were going to get rid of
"the union." He testified, without giving a context, that he
told her that several businesses in town were going to vote
on the Retail Clerks. David Rothschild denied telling any
employee that the Company would offer more money to the
employees if they would forget about the Union. 7 In asking
me to discredit Speakman's version of the Rothschilds' re-
marks, Respondent points to Speakman's testimony that
she is a "brittle diabetic" and gave her prehearing affidavit
to the Board agent while she was suffering from an insulin
reaction. However, her testimony about Beverly Roths-
child's remarks was based upon Speakman's present recol-
lection and not upon her affidavit. Furthermore, Speakman
during her testimony repeatedly stated that her affidavit
accurately set forth the dates of the incidents about which
she testified; she not only signed the affidavit at its end and
the bottom of each page, but initialled it at two points
where deletions had been made; after taking the shot which
assertedly led to her insulin reaction, she drove to the
beauty shop and then drove home; and while talking to the
Board agent at her home that evening, 3-1/2 hours after her
shot, she ate some food in order to counteract her insulin
reaction. I conclude that her prehearing affidavit was more
reliable than her testimony admits.' In view of the partial
documentary corroboration of Speakman and Neaville fur-
nished by the discharge letters, and for demeanor reasons, I
credit the testimony of Speakman summarized in the sec-
ond paragraph of section II, D, supra, credit the testimony
of Neaville summarized in the statement attached to foot-
note 4, supra, and discredit the Rothschilds' testimony sum-
marized in the instant paragraph. In so finding, I discredit
for demeanor reasons the testimony of Linda Meyer, who
according to Speakman was present during at least one of
her conversations with Beverly Rothschild. Meyer testified
legitimate and substantial business justification for refusing to take back
economic strikers because of "the employer's interest in continuing his busi-
ness during an economic strike, coupled with the necessity of offering the
inducement of permanent employment to secure employees willing to violate
a picket line." International Association of Machinists and Aerospace Workers,
District No. 8 .v. J. L Clark Co., 471 F.2d 694, 696 (7th Cir. 1972). Accord:
The Laidlaw Corportion v. N.LR.B., 414 F.2d 99. 105 (7th Cir. 1969), cert.
denied 397 U.S. 920. Filial affection might well make superfluous any addi-
tional inducement of permanent employment.
I He also denied working on Saturdays in September. However, Speakman
did not specify September as the month of her alleged conversation with
David Rothschild.
s During the hearing the affidavit was received in evidence at my instance,
and solely in order to show exactly where she initialled it. I reject as belated
the motion in the General Counsel's post-heanng brief to receive it as past
recollection recorded. Cf. Local 901, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America [EI Inlparcial, Inc.] v. Ray-
mond . Comnpton, Reg. Div., 291 F.2d 793, 796-797 (st Cir. 1961).
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had never overheard Beverly Rothschild say to
Speakman that certain employees had been fired because
they were engaged in a strike, or that certain employees had
been fired and would never work for Respondent again.
Meyer so testified in response to leading questions (which,
however, were not objected to) by Respondent's counsel,
and at the time she testified she was still in Respondent's
employ.
I agree with the General Counsel that Respondent is an-
swerable for the statements of Beverly, David, and Jeff
Rothschild. In so finding, I rely upon their kinship to com-
pany President Nathan Rothschild (namely, his wife and
sons), on the fact that Beverly and David Rothschild are
two of Respondent's three directors (Nathan Rothschild
being the third), on the fact that Beverly Rothschild owns
half of Respondent's stock (Nathan Rothschild owning the
remainder), and on the fact that Nathan Rothschild in fact
did what the other Rothschilds said he had done-namely,
discharged the strikers. See Schwab Foods, Inc., d/bla
Scotts IGA Foodliner, 223 NLRB 394, 400-401 (1976), enfd.
549 F.2d 805 (7th Cir. 1977); William 0. Hayes, d/b/a Su-
perior Casting Company, 230 NLRB 1179, 1184 (1977). For
demeanor reasons and in view of the probabilities of the
situation, I do not credit the testimony of Beverly Roth-
schild, who lives with her husband and works in Respon-
dent's office 4 days a week, that she had never heard him
make any comments about unions. I accept Nathan Roths-
child's testimony, although uncorroborated by his sons, that
he never told his wife or sons to talk to employees about
their discharge or about unions. However, I believe that
Beverly, David, and Jeff Rothschild had at least apparent
authority from Respondent to make statements about such
matters. Accordingly, I find that Respondent violated Sec-
tion 8(a)(1) of the Act (1) when Beverly Rothschild told
employee Speakman that striker Metzger had been fired
and striker Neaville was no longer an employee; (2) when
Beverly Rothschild told picket Neaville that the pickets no
longer had any association with Respondent; (3) when Da-
vid Rothschild told striker Neaville that he was not then
and would never again be employed by Respondent; (4)
when Jeff Rothschild told Striker Metzger that he had been
fired; and (5) when David Rothschild told employee Speak-
man that his father had offered the employees better insur-
ance, better wages, and better retirement if they would get
out of the Union.
In view of Respondent's concession that before the strike
Respondent was under a duty to bargain with the Union as
the employees' exclusive representative, I agree with the
General Counsel that Respondent violated Section 8(a)(I)
of the Act when Nathan Rothschild (1) told the bargaining-
unit employees that Respondent could not negotiate on the
terms which the Union was proposing at the request and on
behalf of the employees; (2) proposed a contract drawn up
between Respondent and the employees, said that Respon-
dent was not going to agree with the Union, and said that
there was no sense in paying dues to the Union because it
was doing the employees no good; (3) told Metzger to come
to Nathan Rothschild about grievances before going to the
Union; and (4) asked and obtained from employee Metzger
information about what contract terms he wanted. Medo
Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 683-
685 (1944). However. I do not agree with the General
Counsel that such prestrike remarks rendered the strike an
unfair labor practice strike from its inception. The record as
a whole does indicate that the employees struck in order to
obtain a new bargaining agreement. However, particularly
in view of the employees' rejection of or failure to act on
most of Respondent's unlawful efforts to negotiate directly
with them, the record fails to show that such conduct inter-
fered with the parties' reaching an agreement. Nor is there
any evidence that the strike was specifically motivated by
such conduct. Cf. Safewav Trails, Inc., 233 NLRB 1075
(1977); Tarlas Meat Company, 239 NLRB 1540 (1979). I do
agree with the General Counsel's further contention that
the strikers' unlawful discharge prolonged the strike and
thereby converted it into an unfair labor practice strike.
The record shows that several weeks before the strikers
were in fact permanently replaced, Respondent untruth-
fully advised them that such replacements had already been
effected. The natural and probable consequence of such
misinformation was to deter the strikers from seeking rein-
statement during a period when (as unreplaced participants
in a protected strike) they would have been entitled to im-
mediate reinstatement offers as a matter of course, and,
therefore, to prolong the strike. See Swearingen Aviation
Corporation, 227 NLRB 228, 236-237 (1976), enfd. as modi-
fied 568 F.2d 458 (5th Cir. 1977); Robbins Company, 233
NLRB 549 (1977); Winn-Dixie Atlanta, 207 NLRB 290, 298
(1973). However, my finding in this respect does not affect
the strikers' reinstatement and backpay rights, which are
sufficiently established by the unlawful discharges them-
selves, N.L.R.B. v. International Van Lines, 409 U.S. 48
(1972); Michael Muldoon Elder d/b/a Vorpal Galleries, 227
NLRB 446 (1976).
I do not agree with the General Counsel that Respondent
violated Section 8(a)(1) when Nathan Rothschild called the
union representatives "crooks" and said to picket Neaville,
". . you guys took your stand and I took my stand." The
General Counsel tacitly concedes that such remarks, stand-
ing alone, are not unlawful. Particularly because the earlier
portion of the "crooks" conversation did not deal with the
Teamster union, I do not draw the General Counsel's pro-
posed inference that in context, Rothschild's subsequent
"crooks" remark constituted a statement that "Respondent
had embarked on a course of conduct which other busi-
nesses would soon follow, to rid itself of the Union." Nor
do I draw the General Counsel's proposed inference that in
context, Rothschild's "I took my stand" remark constituted
an affirmation of Respondent's prior unlawful conduct and
an expression of intent to continue it. Rather, I regard this
remark as ambiguous and as insufficient to warrant an un-
fair labor practice finding.
CONCI.USIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(l) and (3) by
discharging Lenard Neaville and Victor Metzger.
4. Respondent has violated Section 8(a)(1) of the Act by
1102
MARS SAI.ES AND FQIIPMFNT CO.
trying to negotiate directly with employees, soliciting an
employee's grievances, obtaining information from an em-
ployee about what contract terms he wanted, telling em-
ployees that Respondent had discharged employees who
engaged in a protected strike, and telling an employee that
Respondent had offered employees better benefits and
higher wages if they would abandon the Union.
5. The unfair labor practices summarized in Conclusions
of Law 3 and 4 affect commerce within the meaning of the
Act.
6. Respondent has not violated Section 8(a)( I of the Act
in the other respects alleged in the complaint.
Tilti Rit li)y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it he required
to cease and desist therefrom. The unfair labor practices
found include the discharge of an entire two-employee bar-
gaining unit because of its participation in a protected
strike by the Union. This action was effected by Respon-
dent's president and 50 percent stockholder with the tacit
approval of Respondent's secretary-treasurer and 50 per-
cent stockholder and of the remaining member of Respon-
dent's board of directors. Accordingly. a broad order is
called for. Bron Machine and Foundo, Co., 222 NlRB 74
(1976).
The General Counsel seeks no affirmative relief as to
Metzger personally. The record shows that on December 6.
a few days before the hearing. Neaville told Nathan Roth-
schild that Neaville was willing to make an unconditional
offer to return: and that that same day, in a letter received
by Respondent on December 9, Neaville made an "uncon-
ditional request to be reinstated. I want to return to work."
Because the only other participant in the strike (Metzger)
resigned in late August, the record fails to support Respon-
dent's contention that the strike has never been called off by
all other employees in the bargaining unit. In any event, the
fact that other employees remain on strike does not affect
an employer's obligation to honor the reinstatement request
of an individual striker, let alone a request made (as here)
by a striker who had been unlawfully discharged. See
M. R. & R. Trucking Company. 178 NLRB 167, 172 (1969).,
enfd. as modified, 434 F.2d 689 (5th Cir. 1970). Because
Respondent did not comply with its duty to remedy Nea-
ville's unlawful discharge by offering him immediate rein-
statement on his application, he is entitled to such an offer
and to backpay beginning on December 6, the date of his
application. International Van Lines, 409 U.S. at 52-53:
Vorpal, 227 NLRB at 446: Hi-Grade Materials, 239 NLRB
947, footnote 3 (1978). Accordingly, Respondent will be re-
quired to offer Neaville immediate reinstatement to the job
which he occupied just before the strike, or if such job no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him from December
6, 1978, to the date of a valid offer of reinstatement. less net
interim earnings, to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as called for in Florida Steel Corporation. 231 NLRB 651
(1977).9 I shall also recommend that Respondent be re-
quired to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section l0(c) of
the Act I hereby issue the following recommended:
ORDER"'
The Respondent. Mars Sales and Equipment Co., Cen-
tralia. Illinois, its officers, agents, successors, and assigns.
shall:
1. ('ease and desist from:
(a) Telling employees that Respondent has discharged
employees who engaged in a protected strike.
(b) Telling employees that Respondent had offered em-
ployees better benefits and higher wages if they would
abandon Teamsters Local No. 50. affiliated with Interna-
tional Brotherhood of Teamsters. Chauffeurs. Warehouse-
men and Helpers of America.
(c) At a time when employees are within a unit repre-
sented by an exclusive bargaining representative within the
meaning of Section 9(a) of the Act. trying to negotiate di-
rectly with such employees, soliciting employees' grie-
ances. and finding out from such employees individuallx
what contract terms they want.
(d) Discharging employees who are engaging in a pro-
tected strike.
(e) Discharging employees, or otherwise discriminating
against them with respect to hire or tenure of employment
or any term or condition of employment, to discourage
membership in the Union or any other labor organization.
(f) In any other manner interfering with, restraining. or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. ake the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Lenard Neaville reinstatement to the job of
which he was unlawfully deprived, or if such job no longer
exists, a substantially equivalent job, and make him whole
for any loss of pay he may have suffered by reason of the
discrimination against him, in the manner set forth in that
part of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records. social security payment records, timecards.
personnel records and reports, and all other records neces-
sary or useful to analysis of the amount of backpay due
under the terms of this Order.
(c) Post at its Centralia. Illinois. operation copies of the
attached notice marked "Appendix.",, Copies of said no-
' See. generally. Isis Plumbing & Heating Co, 138 NLRB 716 (1962)
10 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National L.abor Rclations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words In the notice reading "Posted b Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
1103
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice, on forms provided by the Regional Director for Re- tices are not altered, defaced, or covered by any other mate-
gion 14, after being signed by Respondent's representatives, rial.
shall be posted by Respondent immediately upon receipt (d) Notify the Regional Director for Region 14, in writ-
thereof and be maintained by it for 60 consecutive days ing, within 20 days from the date of this Order, what steps
thereafter, in conspicuous places, including all places where Respondent has taken to comply herewith.
notices to employees are customarily posted. Reasonable IT IS FURTHER RECOMMENDED that the complaint is
steps shall be taken by Respondent to ensure that such no- hereby dismissed to the extent it alleges unfair labor prac-
tices not previously found.