Medallion Kitchens, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1986

277 N.L.R.B. 1606 (N.L.R.B. 1986)

1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medallion Kitchens , Inc. and International Union,
United Automobile , Aerospace, and Agricultural
Implement Workers of America (UAW), Local
No.'1267. Case, 18-CA-8923
13 January 1986
DECISION AND ORDER
CHAIRMAN DOTSON AND MEMBERS DENNIS
AND BABSON
On 24 July 1985 Administrative Law Judge John
H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a 'three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
conclusions and to adopt the recommended Order
as modified.I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Medallion Kitchens, Inc., Waconia, Min-
nesota, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Make the 24 most senior former strikers
who were eligible to be reinstated at the Fergus
Falls facility on 24 September 1984 whole for any
earnings or benefits lost, by reason of the discrimi-
nation against them, from 24 September through 27
December 1984, when the Fergus Falls facility
closed, in the manner set forth in the remedy sec-
tion of the decision."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Offer to those former strikers who, but for
the Respondent's discrimination against them,
would have been reinstated at its Fergus Falls facil-
ity on 24 September 1984, immediate and full rein-
I Inasmuch as the Respondent's Fergus Falls facility was closed and
the production work was moved to its Waconia facility about 27 Decem-
ber 1984, the judge recommended that the Respondent be required to
offer the 24 most senior strikers awaiting recall immediate and full rein-
statement to substantially equivalent positions at the Waconia facility
The Respondent objects to the strikers' reinstatement at the Wacoma
plant, contending , inter alia, that transfers from Fergus Falls to Wacoma
were not guaranteed but rather all interested employees were required to
submit applications to be considered for employment at Wacoma We
find merit in the Respondent's contention Thus, we shall modify the
judge's recommended reinstatement Order accordingly,
statement to substantially equivalent positions at its
Waconia facility, unless the Respondent can show
that they would not have applied for work at Wa-
conia or, had they applied, they would not have
been hired to work at Waconia. Such reinstatement
to positions at the Waconia facility shall be in ac-
cordance with former strikers' seniority, discharg-
ing, if necessary, those hired to such jobs. In addi-
tion, the Respondent shall make any former striker
reinstated at Waconia as described above whole for
any earnings or benefits lost by reason of the dis-
crimination against him since 27 December 1984, in
the manner set forth in the remedy section of this
decision."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage our employees from
engaging in union activity, including participation
in an economic strike, by hiring new employees to
perform bargaining unit work and refusing to rein-
state strikers to vacancies, which they are qualified
to fill, after termination of the strike, or in any
other manner discriminating with respect to wages,
hours, and other terms and conditions of employ-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make the 24 most senior former strik-
ers who were eligible to be reinstated at our
Fergus Falls facility on 24 September 1984 whole
for any earnings or benefits lost, by reason of our
discrimination against them, from 24 September
277 NLRB No. 175
MEDALLION KITCHENS
through 27 December 1984, when the Fergus Falls
facility closed, with interest.
WE WILL offer to those former strikers who, but
for our discrimination against them, would have
been reinstated at our Fergus Falls facility on 24
September 1984, immediate and full reinstatement
to substantially equivalent positions at our Waconia
facility, unless we can show that they would not
have applied for work at Waconia or, had they ap-
plied, they would not have been hired to work at
Waconia. Such reinstatement to positions at the
Waconia facility shall be in accordance with the
former strikers' seniority, discharging, if necessary,
those hired to such jobs.
WE WILL make any former striker reinstated at
Waconia as described above whole for any earn-
ings or benefits lost by reason of the discrimination
against him since 27 December 1984, with interest.
WE WILL mail a copy of this notice to the last
known address of (1) any employee who worked in
the involved unit on 19 September 1983 and (2) all
employees who were employed at our Fergus
Falls, Minnesota plant when it closed in December
1984.
MEDALLION KITCHENS, INC.
Robert J. Johanson, Esq., for the General Counsel.
Douglas P. Seaton, Esq. (Popham, Haik, Schnobrich, Kauf-
man & Doty Ltd.), of Minneapolis, Minnesota, for the
Respondent.
William F. Garber, Esq. (Peterson, Engbery & Peterson), of
Minneapolis, Minnesota, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. A hearing
was held before me in Minneapolis, Minnesota, on 14
and 15 February 1985. Upon a charge (Case 18-CA-
8923)1 filed 25 September 1984,2 by International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), Local No. 1267 (the
Union), a complaint was issued by the General Counsel
on 30 November alleging that Respondent, Medallion
Kitchens, Inc., violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, by about 24 September and
continuing thereafter hiring new employees to perform
bargaining unit work and failing and refusing to recall
former striking employees who made unconditional
offers to return to work. Respondent denies the alleged
violation of the Act.
i This case was originally consolidated with Case 18-CA-8959, which
was settled before the commencement of the hearing herein The settle-
ment agreement was received as G C Exh 3, and the order severing the
cases and withdrawing the complaint and notice of hearing in Case 18-
CA-8959 was received as G C Exh 1(k)
2 All dates are in 1984 unless otherwise stated
1607
Upon the entire record in this case, including my ob-
servation of the demeanor of the witnesses and consider-
ation of the briefs filed by the General Counsel, Re-
spondent, and the Charging Party, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Minnesota corporation , manufactures,
sells on a nonretail basis, and distributes kitchen and
bathroom cabinets . It maintained an office and place of
business in Fergus Falls, Minnesota . The complaint al-
leges, the Respondent admits , and I find that at all times
material herein Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and the Union has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Respondent and the Union have had a collective-bar-
gaining relationship for a number of years, with their
most recent agreement expiring on 19 September 1983.
All but 1 of the approximately 275 unit members went
out on strike on the expiration date because the parties
were not able to agree on the terms of the new contract.
Respondent continued operations, however, with tempo-
rary replacements until a fire destroyed a great deal of
its plant.
Jerry Yourzek, an International representative of the
Union, forwarded the following letter dated 19 Decem-
ber 1983 to Respondent's labor relations representative
Burton Genis:
Because of the very unfortunate circumstances of
the fire at Medallion Kitchens, at this time I am
calling off the strike as of December 25, 1983 at
11:59 P.M.
Our members will be unconditionally reporting for
work as of December 26, 1983.
I am also requesting that negotiations continue on a
regular basis as soon as possible to settle our con-
tract differences.
Please let me hear from you as soon as possible."
By letter dated 2 July (G.C. Exh. 8), Genis advised
Yourzek:
As of this date, July 2nd, 1984, I have been advised
by Medallion Kitchens, Inc. that they have decided
to relocate their productive [sic] facilities, prior to
December 31st, 1984, in another community within
the State of Minnesota.
H G C Exh 7 As pointed out by the General Counsel on brief in a
prior proceeding, Medallion Kitchens, 275 NLRB 58 (1985), it was deter-
mined that the replacement employees were not permanent employees
and, therefore, Respondent violated Sec 8(a)(3) and (1) of the Act by re-
fusing to reinstate strikers on their unconditional offer to return to work
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are available to discuss the impact of this deci-
sion. Please call if you desire to do so.
Waconia, Minnesota, which is about 175 miles from
Fergus Falls, was eventually chosen as the new location
of Respondent's plant.
Toward the end of the summer of 1984 Respondent
had recalled all but about 75 of the strikers. Its operating
manager Tom Cappola ran the following ad, Respond-
ent's Exhibit 1, in the 21, 22, and 24 September Daily
Journal of Fergus Falls, Minnesota:
TEMPORARY HELP wanted at Medallion Kitch-
ens, 2 to 10 weeks work until plant closes. Apply at
Holiday Inn, Monday, September 24, 1984 from
8:00 a.m. until 11:00 a.m.
At first Cappola testified that the initial decision to hire
24 additional employees was made "September 1 or so."
Subsequently, he testified that "discussions about what
would have to be done in hiring the people started as
early as the middle part of August"; and that he made
the decision to hire 24 additional people in "mid-Septem-
ber."
A number of people applied for the above-described
job on 24 September including three former strikers and
24 other individuals who had not worked for Respond-
ent in the past. Within the next few days these 27 people
were given jobs by Respondent at its Fergus Falls plant.
Cappola testified that he did not contact the Union
and indicate his plans to hire before he ran the above-
described ad.
Yourzek arrived in Fergus Falls on 24 September and
when he checked into the Holiday Inn he saw the fol-
lowing notice on the announcement board by the front
desk: "Aplications are being accepted by Medallion
Kitchens in Room 104." Cappola's name was also given.
Yourek called the local union hall and spoke to Jim
Hanson, who was a night-shift shop steward at Respond-
ent's plant. Hanson told Yourzek that Hanson heard Re-
spondent was hiring temporaries. At 11:45 a.m. Yourzek
called room 104 but there was no answer. One hour later
he called Respondent's plant and spoke to Cappola, tell-
ing him that Respondent should not be hiring "off the
street" because a number of unit members had not yet
been recalled.
Cappola testified that some of the letters which Re-
spondent sent to former strikers inquiring about their
availability for a certain position were never answered;
that 50 percent of the letters were not answered and 50
percent of those who answered declined;- that perhaps
Respondent could have gotten exstrikers over a long
period but needed people immediately; that he did not
believe that Respondent could afford to have the in-
volved work done by people making the union wage of
around $7 an hour; that he was offering $4 an hour for
day work and $4.15 for the night shift; that the people
hired off the street did nor receive any fringe benefits
except the Thanksgiving holiday; that he inquired about
Respondent's obligation to the unit members still out and
was advised that "the Company felt basically, as I under-
stood it, that they did not have further obligation to
recall ex-strikers." Cappola testified:
I did not believe that the type of work that needed
to be done would warrant the type of wage rate
that the individuals were earning at the time they
went on strike, and furthermore, the additions they
would get based on our new proposal, and I was
concerned that if the-that I would have problems
if I offered that work to ex-striking employees at a
minimal rate other then what their earning before
[sic].
He testified that the estimated move date of 15 Novem-
ber was delayed by construction in Waconia; that some
of the people hired off the street in late September 1984
were used in production to handle absenteeism in that
employees were taking accumulated vacation time and
since the plant was closing some people were less regular
in attendance; that three of the people hired off the street
subsequently were hired at the Waconia plant;4 and that
when he placed the above-described ad he was aware
that there were 75 exstrikers who had not been recalled.
Cappola continued:
[W]hat they wanted me to do was to hold down
costs and try to get everything accomplished with
the work force that I did have, and I was author-
ized to hire some additional people, and that is
when the letter were [sic] sent out to past striking
employees, and that's when the response was so
poor getting back to us that I finally, in conjunction
with Jim Chalmers [president of Respondent], de-
cided, yes we do need these additional people.
Cappola said that the estimate on the cost of the entire
move was approximately $200,000; that none of the 24
September jobs were offered to former strikers and the
three former strikers who were hired were hired when
they walked in off the street and filed applications; that
Respondent did not send a notice to exstrikers who were
not recalled about the chance to move to Waconia; that
particular skills were not needed for these jobs; that in
many cases those hired in late September filled in on jobs
which were production jobs formerly held by strikers;
that packaging is a process which occurs in the plant all
the time; and that it is fairly common to "band" items
and move them around the plant and it would not be dif-
ferent to move things outside the plant.
Richard McGrady, the personnel manager of Respond-
ent, testified that the only temporaries Respondent hired
in the past were students on summer break who were re-
lated to Respondent's employees;5 that only one of these
students ever became a permanent employee; that this
student crossed the above-described strike picket line and
in the turmoil never filled out an application for perma-
nent employment, that the students were used as fill-ins
a About 40 of the employees at Fergus Falls were subsequently hired
at Wacoma.
5 Cappola testified that during the summer of 1983 Respondent's pro-
duction rate hit some of the highest line rates and it had some part-time
college students come in and work for a portion of the summer, that the
students did not work full 40-hour weeks, that they were there for about
1 month, that they did not join the Union or pay union dues, and that
they were not covered by the involved collective-bargaining agreement.
MEDALLION KITCHENS
during summer vacation and they received no fringes
except the Labor Day holiday and they did not pay
union dues; that the last week in August 1984 he sent out
30 recall letters and only 7 of these former strikers re-
turned to work; that he was involved in the discussions
that led to the hiring of the temporary employees in Sep-
tember 1984 when Respondent "actually needed help
quickly, and it was strictly to get the plant phased out";
that the three former strikers hired as a result of the
above-described ad were paid considerably more than
the other people hired off the street in that they received
their old wages plus what Respondent had offered in the
last proposal and they were re-enrolled in their insur-
ance; that in the 6 years before the hearing the'longest
layoff was 3 months; that recall letters were sent out to
former strikers the same week the above-described ad
was placed and there was no response to the letters; that
recall letters had never been sent to between 70 to 80
strikers; that in excess of 125 recall letters were sent out
and as demonstrated by Respondent's Exhibit 4 approxi-
mately 62 former strikers accepted Respondent's offer
but the number accepting was heavier in the beginning
than it was in the end and "[t]here would be weeks that
everybody would accept, and then towards the end
weeks, we never heard back at all."
McGrady further testified that Cappola on occasion
telephoned people before the recall letter went out and
asked them if they would return to work;6 that he did
not believe that phone calls to former strikers would
have been quicker than the couple of days the ad was in
the paper because "a lot of the people did not have
phones. They had moved. We did not have their current
address"; that he could have telephoned a number of
people who still lived in town like Eldon Halverson and
Linda Krause and found out whether they wanted their
jobs back but he did not; and that when the last group of
recall letters were sent out in the first part of September
the response was "very, very poor," he did not have a
number in mind, but it was less favorable than the prior
rate of acceptance out of 30 recall letters. McGrady's
above-described testimony regarding the last group of
letters appears to conflict with his earlier testimony re-
garding recall letters allegedly mailed out the same week
the above-described ad was placed in the newspaper.
Two of the people who answered the above-described
ad and were subsequently hired testified about the work
they did. The first, Jackie McAllister, who was a former
striker who had not been recalled, testified that the day
after she applied for a job Cappola called her and told
her he had an opening on the hinge line and she reported
for work 26 September; that she sanded regular produc-
tion doors (not fire damaged doors) until production
stopped on 13 December:, that during the week after pro-
duction stopped she helped pack for the move by, among
other things, banding; that she banded before the above-
described strike and there was no difference in that and
6 Laura Torkelson, a former striker, testified that on 30 August
McCrady called her when a recall letter sent to her former address was
returned to Respondent. She told him over the phone she would return
and she reported for work the next workday.
1609
the banding she did for the move; 7 that she did some
hinge work during this period; and that 30 to 35 other
production workers were involved in packing for the
move and no special skills were involved. The second,
Bethany Stoen, who had not worked for Respondent
previously, testified that she helped build cabinets and
then worked on the final assembly line doing such things
as hinging doors, sanding, and hanging; doors on hooks,
that she also packed parts and materials; and that most of
her time was spent in regular production work.
Five other employees who were working at Respond-
ent's plant between the end of September and December
19848 collectively testified that those of the individuals
hired off the street in late September 1984 who they ob-
served working performed tasks which were normal pro-
duction tasks, i.e., "catching" on a panel saw, operating
an Evans and panel machine, banding material,9 and
boxing doors to fill orders for Respondent's customers.
Torkelson testified that she learned of jobs in Waconia
at a meeting with Cappola in mid-November 1984. There
was an announcement of the meeting on the bulletin
board, and people who had some interest in going to
Waconia attended. Torkelson became aware of the move
weeks before this.
Two former strikers, namely, Eldon Halverson, who
had been president of the involved local and 11th on the
seniority list, and Krause, who was a shop steward and
fourth on the seniority list, testified that they were not
recalled; that they had performed many of the jobs in
Respondent's plant; and that they were ready and willing
to be recalled. t 0
B. Contentions
On brief, the General Counsel contends that in NLRB
v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the Su-
preme Court held that an employer who refuses to rein-
state strikers who have made unconditional offers to
return to work violates the Act, irrespective of intent,
unless the employer can show legitimate and substantial
business justification for such refusal; that the burden is
on Respondent to establish that it was motivated by le-
gitimate business objectives, since such proof of motiva-
tion is most accessible to it; and that Respondent has
r Another employee , Brenda Krause, testified that banding was a regu-
lar process used before the strike , and that she, on occasion , banded big
loads for shipment to the plant Respondent formerly operated in Texas
On her last job before the strike, Krause ran a sander in the millroom
a Russ Bantrock , Robert Helgeson, Hanson, Roberts Bendt, and Tor-
kelson
9 While one of the employees conceded that never before had he
packed up machinery or grouped parts for an actual move rather than as
a shipment of the product, it is noted that production continued until 13
December. At that point the plant shut down and The next 2 weeks were
spent getting ready for the move Obviously machines used in production
were not dismantled or made ready for the move until production ceased
Hanson testified that none of the work done in preparation for the move
was work which could not have been done by regular production work-
ers and that prior to this time he occasionally dissembled machinery
when it was moved from one area to another to try and provide a more
efficient flow
10 While Halverson worked on another job which did not end until 26
October, he testified that when he took the job it was supposed to end
early October; and that while he made $15.50 an hour on the other job it
required that he work 180 miles away from his family.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to establish any such legitimate motivation but
rather the evidence points to a calculated effort on the
part of Respondent to circumvent the law and its obliga-
tion to recall the former strikers.
The Charging Party, on brief, contends that uncontro-
verted facts show that the positions filled by 24 new
hares in September 1984 were unit positions which
should have been offered to striking personnel; that Re-
spondent has failed to produce legitimate and substantial
business justifications which would support such a refus-
al to hire; that case law requires the reinstatement of the
strikers in that it holds that economic strikers must be re-
instated to their jobs, presuming they are available at the
end of a strike unless they have been permanently re-
placed, Fleetwood, supra, and economic strikers who are
not initially reinstated retain their right to recall as posi-
tions become available, Fleetwood, and Laidlaw Corp. v.
NLRB, 414 F.2d 99 (7th Cir, 1969); that the 24 jobs
herein were not temporary solely because the plant was
destined to close at some time in the future since simple
duration is not the distinction between a regular and a
temporary job, NLRB Y. England Lithographic Co., 589
F.2d 29 (1st Cir. 1978) (individuals were not temporary
when they worked a regular schedule, performed regular
duties, and had no clearly defined termination date); that
the jobs themselves were not temporary jobs insofar as
their job functions and duration were the same as perma-
nent jobs; that additionally, the new gobs did not corre-
spond to jobs in previous years which were deemed to
be temporary in that in the past the temporary employ-
ees hired during the summer were college students who
were relatives of employees and they normally told Re-
spondent how long they would work, there is no indica-
tion that these employees were hired while regular em-
ployees were without jobs, but rather, it appears that
these student temporary employees were hired because
members of the regular work force were on vacation;
that the jobs continued beyond the students' summer
tenure and the number of jobs was neither increased nor
deceased by their presence or absence; that such is not
the case with the 24 new hires; that these were new posi-
tions, and the 24 people selected were hired to do work
rather than unit personnel; that is would appear that the
jobs of the 24 people were in addition to the regular
work force; that while Respondent asserts that it hired
temporary employees to do work necessary to move the
plant, the clear facts from the temporary employees
themselves and other employees who observed them at
work show that the particular jobs performed coincided
with jobs performed before the strike; that albeit employ-
ees testified that their jobs varied from time to time, each
of the different jobs were performed prior to the strike,
and although in some cases, jobs were rearranged or re-
quired the use of one skill far more frequently than
before the strike (i.e., banding or packing), even those
jobs commonly occurred before the strike; that there is
no showing on this record that the jobs offered to new
hires were not exactly the same as before the strike or
not substantially equivalent to those before the strike, or,
it they differed in some degree, that the job functions
were not commonly performed before the strike; that
there is no showing on this record that the jobs were
such that strikers would have been unable to perform
these jobs; that regarding Respondent's other arguments,
namely, that it did not have sufficient time to recall strik-
ers and that the work to be done did not justify the strik-
ers' higher wage rates, there is no showing on this
record why this staffing was not decided upon earlier,
the Company was well aware of its decision to move
long before September, and the fact that Respondent
chose to make a late decision cannot impact on strikers'
recall rights; that there is no showing that, by use of the
telephone, Respondent could not have acquired the em-
ployees it required as fast or faster than by use of a
newspaper ad; that evidence of record shows that use of
the telephone had been effective before; that McGrady
testified that he could easily have called the 70 to 80
strikers and if one presumes that even 25 percent would
have accepted, virtually all of the needed personnel
would have been found; that since the jobs themselves
differed little, if at all, from the jobs formerly done by
the strikers, Respondent' s argument that the jobs were
not the type of jobs for which it could pay the wages it
would have to pay the strikers is without merit; that
while it understands Respondent's desire to pay as little
for labor as possible, a mere desire to spend less on labor
costs for work which has always been unit work is not a
legitimate and substantial business justification; that,
where strikers applied for the jobs, they were hired at
their higher wage rates. Testimony also shows that, if
more strikers had applied, they likely would have been
hired; that even Respondent's memorandum in support of
Motion for Summary Judgment herein indicates that, had
more strikers applied, they would have been hired; that
this undermines Respondent's theory of a monetary need
to hire new employees; and that not only should similar
or substantially equivalent jobs be offered to former
strikers but even dissimilar jobs should be offered to
former strikers leaving it to them to accept or reject es-
pecially where there is no showing that the jobs are so
dissimilar that Respondent would be excused from even
offering the job.
Respondent, on brief, contends that it did not fail to
offer reinstatement to exstrikers to transition positions at
its Fergus Falls facility, and therefore did not engage in
discriminatory conduct; that while Respondent did not
utilize the reinstatement procedure to fill the "transition"
position necessary for disassembly of the Fergus Falls
plant and the move to Waconia, Local 1267' s representa-
tive and steward both knew of available relocation work
and, therefore, the Union plainly had actual notice of the
availability of Medallion's "transition" position; that
since Respondent hired all exstrikers "who took the trou-
ble to apply for a job," the Union and its members had
access to this process; that Medallion had no obligation
to formally offer transition jobs to exstrikers, since these
positions were not "substantially equivalent" to the pre-
strike positions held by Medallion production line em-
ployees; that in the instant case there is merely a possibil-
ity that exstrikers sometimes performed some of the
work done by the relocation temporaries, which is not a
showing that these positions were substantially equiva-
lent for all workers of the bargaining unit; that " transi-
MEDALLION KITCHENS 1611
tion" workers were assigned tasks which were substan-
tially dissimilar to those previously performed by striking
employees; that although exstrikers who applied for tran-
sition jobs were paid at their prestrike rate out of fear
that the Company would be charged with discriminatory
reprisals. This difference in wage rates of approximately
40 percent is symptomatic of the significant differences
between production line and relocation work; that as-
suming that exstrikers had a right to "formal" notice of
"transition" positions , the Company 's failure to extend
such notice had almost no effect on the exercise of Sec-
tion 7 rights because the protected activity of Medallion
employees had long ago ceased , numerous economic
strikers had been reinstated to available production line
vacancies , the decision to relocate the plant was being
implemented , and the Union and its members chose not
to avail themselves of obvious employment opportunities;
that even assuming that Medallion had an obligation to
formally offer nonequivalent relocation work to ex-
strikers , and-that its failure to do so adversely affected
exstrikers' Section 7 rights, it had legitimate and substan-
tial business justifications for failing to do so; that Medal-
lion's staffing requirements included the need for imme-
diate acquisition of personnel willing to do temporary,
undesirable work at a low rate of pay; that Respondent's
experience with the recall procedure offered no hope
that the necessary personnel could be obtained; that
recall letters resulted over time in a markedly declining
response rate until , in the week in which the Respondent
openly advertised for "transition" work positions no re-
sponses were received; that owing to the exhaustion of
the recall procedure which occurred over the 9 months
following the Union's offer to return to work, and the
absence of any indication from the Union or exstrikers of
an interest in reemployment in jobs substantially dissimi-
lar to production line work, Respondent elected to satis-
fy its bona fide staffing requirements through an open ap-
plication procedure. Not only did this decision serve Me-
dallion's legitimate and substantial business ends, but it
was, on the particular facts of this case, eminently rea-
sonable; that there is no evidence whatsoever of an an-
tiunion motivation for the Company's decision not to for-
mally notify exstrikers of the availability of "transition"
work positions ; that as Medallion has proved legitimate
and substantial business justifications for its use of an
open application procedure to fill "transition" positions,
a presumption of lawful motive is raised, and to over-
come this presumption the General Counsel must show
antiunion animus to have been the dominant motive for
the employer's allegedly discriminatory conduct; and
that all strikers who applied for transition work were
hired and the evidence demonstrates the Company's will-
ingness to consider other strikers for transition work had
they applied.
C. Analysis
At the end of the hearing herein Respondent orally
moved for the dismissal of the involved complaint while
at the same time it submitted its written motion for dis-
missal or summary judgment and the memorandum in
support thereof, Respondent's Exhibits 9 and 8, respec-
tively, requesting that they be taken under advisement.
Orally Respondent argued that it was not demonstrated
that there was any animus on the part of Respondent in
its failure to recall exstrikers for the positions filled in
September 1984 ; that Respondent was unable to obtain
suitable, sufficient, and timely responses from the recall
list; that the positions the "temporaries" held were not of
a substantially equivalent character ; and that the "tempo-
raries" hired in September "off the street" should be
considered to be equivalent to the earlier temporary em-
ployees utilized by Respondent with the Union's acquies-
cence, none of whom had paid dues to the Union, and
none of whom had been considered to be a part of the
actual bargaining unit ."' The General Counsel opposed
the motion arguing that there is no need for any showing
of subjective intent or animus since Respondent's actions
were inherently discriminatory; that the work performed
by the employees newly hired in September 1984 was
substantially the same and in many cases exactly the
same as bargaining unit work performed by other em-
ployees and bargaining unit work which had been per-
formed by strikers before the strike; that there were at
least 70 to 80 unreinstated strikers who had made uncon-
ditional offers to return and who stood ready, willing,
and able to return to work; and that there is no showing
that these people would not have accepted that work if
it had been offered. 12
The arguments made by Respondent in support of its
motion will be treated in depth infra. It is sufficient at
this juncture to point out that in the circumstances in-
volved herein there is no need to show animus on the
part 'of Respondent; that Respondent did not exhaust the
recall list; and that the positions filled in September 1984
should have been offered to former strikers and the posi-
tions cannot be equated with jobs held by students on
summer break. Accordingly, Respondent's Motion for
Summary Judgment will be denied.
By motion dated 24 April 1985 Respondent requests
that,the instant proceeding be stayed pending the out-
come of the judicial review of Medallion Kitchens, 275
NLRB 58 fn. 3 (1985).13 It contends that the decision
herein is dependent upon the outcome of issues on appeal
in the earlier case in that if the Board 's conclusion that
the Company had an obligation to reinstate exstrikers is
reversed on appeal, the issues in the instant case would
be rendered moot. In response, the General Counsel
argues as follows:
... although the violations alleged in the instant
case and the violations involved in the case now
11 Another contention made orally by Respondent was that in order
for Respondent to be "liable" there must be a reasonable expectation on
the part of exstrikers that they will be recalled and here there could not
be such an expectation since they had not worked at Medallion for more
than a year and recent layoffs were never greater than 3 months Such
argument has already been laid to rest in Brooks Research & Mfg, 202
NLRB 634 (1973), which will be treated more, fully infra
12 The Union joined in this argument, reiterating some of the conten-
tions of the General Counsel Also, the Union treats the above-described
written motion in its posthearing brief herein
la In its pleading , Respondent indicated its intent to file a petition of
Review in the United States Court of Appeals,,Eighth Circuit, on 25
April 1985 and a copy of the petition was attached to the memorandum
in support of the motion
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pending before the United States Court of Appeals
for the Eighth Circuit all grew out of the same set
of underlying circumstances, the violations in each
case are separate and distinct; the violations oc-
curred during a different period of time; and Re-
spondent's defenses in the instant case are based
upon a completely different theory, i.e., that the
employees hired in the instant case were temporary
employees who were hired to do work which was
not bargaining unit work. Thus, the issues-are clear;
there is ample evidence in the record to enable the
Administrative Law Judge to render a decision on
those issues; the law of the case with respect to the
status of the strikers and Respondent's obligation to
reinstate them,has been decided by the Board; and a
remedy is long overdue. Under these circumstances,
it is certainly most appropriate and well within the
province of the Administrative Law Judge to issue
his decision in the instant case.
Contrary to Respondent's assertion, delay in pro-
ceedings such as these nearly always adversely af-
fects the public interest. Such delays undermine the
confidence of employees, employers and labor orga-
nizations in the Board's ability and determination to
promptly and effectively administer the Act. More-
over, the violations alleged in the instant case cry
for a remedy, and the granting of a stay in this pro-
ceeding would certainly cause serious harm, if not
irreparable harm, to the bargaining unit employees
involved herein.
. .. The Administrative Law Judge's consider-
ation of the merits and the issues involved in the in-
stant case and his issuance of a decision in the in-
stant case will in no way hinder or impede the
Court of Appeals .in its consideration of the issues
pending before it on appeal in the earlier Medallion
Kitchens case. Finally, in the event of an appeal of
the Administrative Law Judge's decision in this
case, the Board can exercise its discretion with re-
spect to issuing or withholding issuance of its deci-
sion in this case pending the outcome of Respond-
ent's appeal of the earlier Medallion Kitchens case. If
the Court of Appeals has issued its decision on the
appeal, the Board will have the benefit of that deci-
sion.
In its response to this motion, the Union argues as fol-
lows:
Finally, the cases are so different on the crucial
facts and issues that winning or losing either would
have no bearing on the other. As explained [ earlier
in the pleading] the first case involved whether re-
placements hired after a strike were permanent or
temporary, and the consequent order of reinstate-
ment as jobs become available after the fire. The in-
stant deals with whether new hires can be em-
ployed when additional jobs are created and strikers
have not been reinstated. It is clear on this record
that the new hires in the instant case and the re-
placement employees in the previous cases are dif-
ferent groups of people. No issue in the instant case
has been raised regarding the new hires being re-
placement employees in any sense of the word. The
issues themselves are so separate as to make Re-
spondent's argument frivolous.
To the extent that any findings made by the Board in
the prior Medallion case speak to the issues raised herein,
the Board's findings, and not the fact that an appeal has
been filed, are binding herein. In the circumstances Re-
spondent's motion to stay will be denied.
In my opinion Respondent violated the Act as alleged
in the above-described complaint.
As concluded by the Court in NLRB v. Fleetwood, 389
U.S. 375, 378, 380-381 (1967):
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. §
152 (3)) provides that an individual whose work has
ceased as a consequence of a labor dispute continues
to be an employee if he has not obtained regular
and substantially equivalent employment. If, after
conclusion of the strike, the employer refuses to re-
instate striking employees, the effect is to discour-
age employees from exercising their rights to orga-
nize and to strike guaranteed by §§ 7 and 13 of the
Act (61 Stat . 140 and 151, 29 U.S.C. §§ '157 and
163). Under § 8(a)(1) and (3) (29 U S.C. §§ 158(1)
and (3)) it is an unfair labor practice to interfere
with the exercise of these rights. Accordingly,
unless the employer who refuses to reinstate strikers
can show that his action was due to "legitimate and
substantial business justifications," he is guilty of an
unfair labor practice. NLRB v. Great Dane Trailers,
388 U.S. 26, 34 (1967). The burden of proving justi-
fication is on the employer. Ibid.
... in N L R B v . Great Dane T r a i l e r s , supra, ... we
held that proof of the antiunion motivation is, un-
necessary when the employer's conduct "could
have adversely affected employee rights to some
extent;" and when the employer does not meet his
burden of establishing "that he was motivated by le-
gitimate objectives." Id., at 34 . . . because the em-
ployer here has not shown "legitimate and substan-
tial business justifications, "the conduct constitutes
an unfair labor practice without reference to intent.
The right to reinstatement does not depend upon
technicalities relating to application. On the con-
trary, the status of the striker as an employee con-
tinues until he has obtained "other regular and sub-
stantially equivalent employment." (29 U.S.C. § 152
(3)). Frequently a strike affects the level of produc-
tion and the number of jobs. It is entirely normal
for striking employees to apply for reinstatement
immediately after the end of the strike and before
full production is resumed. If and when a job for
which the striker is qualified becomes available, he
is entitled to an offer of reinstatement. The right
can be defeated only if the employer can show "le-
gitimate and substantial business justifications."
NLRB v. Great Dane Trailers, supra.
MEDALLION KITCHENS
In Brooks Research & Mfg., 202 NLRB 634 (1973), the
Board concluded that economic strikers should not be
equated with laid-off employees because the reinstate-
ment rights of economic strikers under Fleetwood, supra,
and Laidlaw Corp., 171 NLRB 1366 (1968), are statutory
as distinguished from the rights of laid-off employees;
and that.no time limit should be placed on the reinstate-
ment rights of economic strikers. Thus, whatever rights
former strikers had they continued and were still in
effect in September when Respondent went to the streets
to fill the involved two dozen positions.
As pointed out in Fleetwood, supra, former strikers
who have offered to return but are still out are entitled
to an offer of reinstatement to a job for which he or she
is qualified. 114 Nine years after the Court decided
Fleetwood, the Board, citing no prior cases, concluded in
a footnote that someone who it assumed for the sake of
argument was a former economic striker is not entitled
to an offer of reinstatement to a position which is not
substantially equivalent to the position he held before the
involved strike, notwithstanding the fact that the individ-
ual in question was admittedly qualified to perform the
involved functions, because the two positions involved
different duties, pay, and different authority. New Era
Electric Coop., 217 NLRB 477 fn. 1 (1975).
Two years later the administrative law judge in West-
ern Steel Casting Co., 233 NLRB 870, 875 (1977), con-
cluded:
As I read those cases [Fleetwood, Laidlaw, and
Great Dane Trailers, supra] the phrase "substantially
equivalent job" is not intended as a limit on the ob-
ligation beyond which an employer need not go but
is rather a means to test the adequacy of the offer
after it has been made. Thus, I regard the law as re-
quiring an employer to offer economic strikers rein-
statement to either their old job; or if that is not
available, to a substantially equivalent job for which
they are qualified; [footnote omitted] or, if neither
of those options is available, any other job for
which the striker is qualified.13
13 Fleetwood, supra.
The Board, in reviewing the judge's decision, concluded
233 NLRB at 870, 871 as follows:
We also reject the Administrative Law Judge's
conclusions that the helpers jobs were substantially
equivalent. We find that the helpers jobs were not
substantially equivalent [to the two involved em-
ployees'] former classifications. The record is clear
that the helpers jobs were the least desirable jobs in
the foundry. The pay rate [for one of the involved
14 The Court's use of the words "substantially equivalent" was limited
to repeating the statutory definition of an employee, as set out above
And the words, as used in the definition, refer to the type of job a person
might obtain with a subsequent employer which would negate his em-
ployment status with his former employer It is noted that in the underly-
ing decision , 153 NLRB 425 (1965), the Board affirmed and adopted the
trial examiner's findings and conclusions, and that nowhere did the trial
examiner use the words "substantially equivalent," but rather treated the
matter strictly in terms of qualifications
1613
employee's] classification is 18 percent greater than
the helpers rate and the rate for [the other employ-
ee's] classification is 14 percent greater than the
helpers rate.3
3 The Employer excepts to the Administrative La a' Judge's
conclusion that an employer must offer an economic striker any
employment for which he is qualified In light of our decision
herein on other grounds, we find it unnecessary to pass on that
question
Subsequently the administrative law judge in Certified
Corp., 241 NLRB '369, 373 (1979), concluded as follows:
The part-time temporary job [in question] cannot be
characterized as "substantially equivalent" to any
job formerly held by any striker since the strikers
were all employed on a regular full-time basis.
The judge went on to cite an advice memorandum of the
Division of Advice in the General Counsel's office,
which treated the question of whether an employer is
under a Laidlaw obligation to offer part-time jobs to per-
manently replaced strikers who made an unconditional
offer to return to work, even though the part-time jobs
were not substantially equivalent to the strikers' former
jobs. The memorandum cited New Era Electric Coop.,
supra, for the proposition that the jobs involved therein
were "not substantially equivalent jobs because they
were unequal in authority, hours, and pay." The advice
memorandum further pointed out that the employer had
not violated the Act by failing to offer strikers the equiv-
alent position since (1) the strikers' offer to return to
work did not clearly encompass an offer to take nonequi-
valent jobs and (2) there was no evidence that the em-
ployer's failure to offer the jobs was discriminatorily mo-
tivated. The judge then stated as follows:
I conclude and find that the temporary part-time
employment of [a named individual] did not violate
the reinstatement rights of any of the strikers be-
cause [the individual 's] job was unequal in duties,
hours, and pay and thus not substantially equivalent
to the jobs formerly performed by the strikers.12
[Emphasis added.]
13 See Western Steel Casting Company, 233 NLRB 870 (1977)
The Board affirmed the findings and conclusions of the
judge.
Subsequently the court in Textron, Inc. v. NLRB, 687
F.2d 1240, 1247-1248 (8th Cir. 1982), made the following
findings:
In December of 1977, Randall [the Employer
therein] rehired a pair of strike replacements who
had voluntarily quit. Cheryl and Louis Turnage left
their jobs at Randall on December 8 and 14, respec-
tively, after informing the personnel director that
they had sold their house and were moving to Cali-
fornia. Shortly thereafter, they asked to be reinstat-
ed to their jobs, because their house sale had fallen
through. The company decided it could use them
1614 DECISIONS OF NAT^ONAL LABOR RELATIONS BOARD
and rehired them both on December 27. The Tur-
nages soon completed the sale of their house, and
they again quit on December 30 and January 13, re-
spectively.
The NLRB decided Randall's reinstatement of
the the,Turnages was not different from its recall of
the 13 employees on "leaves of absence." In the
Board's view, the positions to which the Turnages
returned were also vacancies which should have
been offered to strikers.
Randall argues that because the Turnages re-
turned on a temporary basis, their positions were
not vacancies which could have been filled by strik-
ers. See Certified Corp., 241 NLRB 369, 373 (1979).
(Laidlaw reinstatement rights did not apply to a
temporary part-time position which was not sub-
stantially equivalent to a striker's former full-time
employment). The General Counsel disputes Ran-
dall's assertion that it rehired the Turnages only on
a temporary basis, but the record bears out the tem-
porary nature of their return.13 The temporary po-
sition in Certified Corp. was created to cope with
production needs, whereas here Randall rehired the
Turnages as a favor to them, but whatever the
reason, the net result is the same. The existence of a
temporary job is not the equivalent of a vacancy to
which a striker should have been reinstated.
13 The personnel manager testified "I didn't actually rehire
them I just reinstated them back in and then they worked a couple
more weeks or so and then they sold their house and left" (Tr.
763)
In Coastside Scavenger Co., 273 NLRB 1618, 1630-1631
(1985), the administrative law judge's made the follow-
ing findings:
Nor do the "job vacancies of up to a week's dura-
tion" occurring in Novmeber and December 1982,
which were filled by temporary workers Dorris
Matter, James Frances, and Jay Lourenco, facts
stipulated to and relied on by the General Counsel,
establish an unlawful failure or refusal to reinstate
economic strikers. Contrary to the General Coun-
sel's argument, I find the meager information in the
record concerning the work performed by these three
individuals named is not sufficient to permit a deter-
mination that any of them were placed in job vacancies
that had to have been offered to a striker. [Emphasis
added.] Certified Corp., 241 NLRB 369 (1979),
holds, contrary to what the General Counsel main-
tains, that the temporary nature of a job is a critical
factor in determing whether it is "substantially
equivalent" to what position a striker had held.43
43 And see Randall Y. NLRB, 687 F 2d 1240 (8th Cir. 1982),
which cites both Certified Corp, supra, and Bancroft Cap Co, 245
NLRB 547 (1979) (discussed by the General Counsel) After citing
Certified Corp, the court stated "The existence of a temporary job
is not the equivalent of a vacancy to which a sinker should have
been reinstated "
15 His findings and conclusions were affirmed by the Board
From the evidence of record herein it appears that the
only significant difference in the regular production jobs
and the jobs of the 24 people hired in late September is
the pay and benefits of the latter group, which pay and
benefits were unilaterally set by Respondent. In view of
the similarity of duties and hours of the regular produc-
tion workers and those hired off the street in late Sep-
tember, the differences in pay and benefits cannot, in my
opinion, be based on these two factors. Indeed the three
former strikers who were hired in late September off the
street received their regular production pay (with an in-
crease) and benefits. Why? Respondent submits that it
believed that it had no choice in order to avoid litigation
over these three. But at the same time Respondent also
indicates that if other former strikers had applied, they
too would have been considered. In other words, they
might have been hired. This raises an interesting question
in that if in fact most if not all of those hired off the
street in late September were former strikers, would Re-
spondent have paid the union wages and benefits -to all
the former strikers filling these jobs just to avoid litiga-
tion even though the job itself, in Respondent's opinion,
did not warrant it? If the jobs are so dissimilar, was Re-
spondent's alleged fear reasonable?
Medallion indicates that it has used temporary employ-
ees in the past. These employees, however, were students
who worked during the, summer on a part-time tempo-
rary basis. See footnote 5, supra. As such they are not
entitled to the same consideration as regular employees.
Clearly unlike the summer jobs held by the students, the
involved jobs were not part time. What makes the jobs
temporary? Respondent's position is that since they
would end when the plant closed they are because Re-
spondent declared them to he temporary. But would not
all the production jobs at Respondent's Fergus Falls
plant end when the plant-closed? Does that in and of
itself mean that once the Respondent formally declared
its intention to close the plant it could threaten certain of
the production jobs as temporary?
In my opinion there is no doubt but that former strik-
ers, under Fleetwood, supra, were qualified for the in-
volved positions. Insofar as duties, hours, and authority
are concerned, the jobs were substantially equivalent.
What is left for consideration is the pay and benefits. But
regarding the late September jobs these two items were
set unilaterally by Respondent after the strike ended,
after the former strikers unconditionally offered to return
to work, after it was alleged in the proceeding described
in footnote 3 supra, that Respondent violated the Act by
failing to recall former strikers who had made uncondi-
tional offers to return to work, and after the hearing was
held on that allegation Under the circumstances, Re-
spondent's unilateral declaration that the involved jobs
were temporary and its unilateral setting of the wages
and benefits should not alone govern whether the in-
volved jobs are substantially equivalent. In my opinion,
considering the circumstances, the involved jobs were
substantially equivalent.' 6 It is my opinion that the evi-
16 While, in view of the Board precedent described above, this matter
is being treated in terms of "substantially equivalent jobs," it would
appear that the real question in view of Fleetwood, supra, is whether the
former strikers are qualified to do the job
MEDALLION KITCHENS
dence of record warrants a finding that the work was ac-
tually unit work. It would appear that Respondent, ap-
preciating this, decided to give the three former strikers
hired off the street the same wages and benefits they
would be entitled to as unit members.
As pointed out by the Court in Fleetwood, supra, 389
U.S. 381':
In some situations, "legitimate and substantial
business justifications" for refusing to reinstate em-
ployees who engaged in an economic strike have
been recognized.
Also, as noted above, the burden of proving the justifica-
tion is on the employer. At pages 30 and 31 of its brief,
Respondent contends:
Here, the curtailment in production cannot even be
attributed to Medallion. Circumstances beyond Me-
dallion's control eliminated production line positions
and ultimately imposed upon the Company the busi-
ness ' decision of how best to promptly fill its need
for personnel willing to perform temporary, unde-
sirable work at a low rate of pay. Owing to the ex-
haustion of the recall procedure which occurred
over the nine months following the Union's offer to
return to work, and the absence of any indication
from the Union or strikers of an interest in re-em-
ployment in jobs substantially dissimilar to produc-
tion line work, Medallion elected to satisfy its bona
fide staffing requirements through an open applica-
tion procedure. Not only did this decision serve
Medallion's legitimate and substantial business ends,
but it was, on the particular facts of this case, emi-
nently reasonable.
Respondent had not met its burden. As noted above, the
record does not support its assertion that the involved
jobs were substantially dissimilar. Testimony elicited
from witnesses called by both the Government and Re-
spondent indicate the reverse to be true. Also, contrary
to Respondent's assertion, the recall procedure had not
been exhausted. By Respondent's witnesses' own admis-
sions, 70 to 80 former strikers had never been contacted
in any mariner. And, by McGrady's own admission, he
could have telephoned a number of former strikers who
still lived in town but he did not. The one former striker
he telephoned earlier came to work the very next work
day. Therefore, without first attempting this method, Re-
spondent cannot expect its argument, namely, that it
could not have promptly filled the positions from the
recall list, to be accepted on face value.17 It would
appear that the only interest served by Respondent's
challenged action was that it obtained labor at ,a cost
well below what was then the unit rate (except for the
three former strikers hired off the street). Is that the le-
gitimate and substantial business justification to which
Fleetwood, supra , spoke? Is this a sufficient reason for
doing away with the recall rights of those who had not
" There is also a question of whether Respondent could have avoided
putting itself in the position of having to fill these positions on short
notice.
1615
been contacted regarding reinstatement? In my opinion,
in serving solely its own ends in this instance, Respond-
ent violated the Act. The asserted business justification is
neither legitimate nor substantial.
As noted above, Cappola testified that when he in-
quired, before hiring off the street, about Respondent's
obligation to the unit members still out, he was advised
that the Company did not believe it had any further obli-
gation to recall exstrikers. On brief, Respondent points
out that the Union had notice of and its members had
access to the applicatiop process for the involved jobs.
More specifically, at page 17 of the pleading, Respond-
ent contends:
Under circumstances of actual notice, application
by ex-strikers and employment of all who applied,
no violation can be found in Medallion's failure to
individually notify -ex-strikers of the availability of
transition positions.
By chance and not through any efforts on Respondent's
part, Yourzek became aware of the involved hiring as
the process was taking place. And apparently by
chance-seeing the ad-three former strikers became
aware of the process. Respondent does not cite any au-
thority which stands for the proposition that its obliga-
tion to offer positions, to former strikers can be satisfied
solely by publishing a help-wanted ad in the local news-
paper.
The case cited by Respondent on briefia deals with
the question of whether an offer reasonably put strikers
on notice that they were being offered reinstatement. As
noted above, it was not Respondent's intent to make an
offer to former strikers for at this point it assertedly be-
lieved that all obligations to recall former strikers had
ceased. Notice, assuming arguendo that it meaningfully
existed, and access do not equal an offer of reinstatment.
For as pointed out in Little Rock Automotive v. NLRB,
455 F.2d 163 fn. 8, 168 (8th Cir. 1972), until the employ-
ment relationship, is severed, former economic strikers
,.are employees whom the Company must seek out, not
applicants who must seek out the Company."
In view of the above there is no need to find animus.
CONCLUSIONS OF LAW
1. Medallion Kitchens , Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Union , United Automobile , Aerospace
and Agricultural Implement Workers of America
(UAW), Local No. 1267 is a labor organization within
the meaning of Section 2(5) of the Act.
3. By about 24 September 1984, and continuing there-
after, hiring new employees to perform bargaining unit
work and failing and, refusing to recall the former strik-
ing employees who had made unconditional offers to
return to work, Respondent violated Section 8(a)(3) and
(1) of the Act.
18 NLRB v W C. McQuaide, Inc, 552 F 2d 519 (3d Cir 1977)
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The unfair labor practices of Respondent described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
TIDE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
With respect to the remedy, the General Counsel, on
brief, indicates that:
Inasmuch as Respondent 's Fergus Falls, Minneso-
ta facility has been closed since on or about Decem-
ber 31, 1984, the appropriate remedy in the instant
case is to put the former strikers, who should have
been recalled , in a position as nearly as possible to
the position that they would have enjoyed if Re-
spondent had recalled them to work as openings
became available during the period between Sep-
tember 24 and December 31, 1984. Since the record
shows that many of the employees who were work-
ing at Respondent's Fergus Falls plant when it
closed, including several of the newly hired "tem-
porary" employees, were offered an opportunity to
transfer to Respondent's new facility at Waconia,
General Counsel respectfully submits that, in addi-
tion to backpay for the 24 most senior unreinstated
strikers for the hours worked by the 24 newly hired
employees during the period between September 24
and December 31, 1984, the unreinstated former
strikers must also be offered reinstatement at Re-
spondent's Waconia, Minnesota facility and be made
whole for loss of pay and all other benefits that
they would have received if they had been reinstat-
ed. Medallion Kitchens Inc., 275 NLRB 58 (1985).
Since Respondent no longer has any facility at
Fergus Falls, Minnesota, Respondent should be re-
quired to mail an appropriate Notice to Employees
to all employees who were on Respondent's payroll
at the time the strike began on September 19, 1983,
and to all employees who were employed at Re-
spondent's Fergus Falls plant when it closed, to
their last known addresses. Additionally, since the
record shows that some of Respondent's former
Fergus Falls employees are currently employed at
Respondent's Waconia, Minnesota facility and since
Respondent has no other production facility, Re-
spondent should be required to post the Notice to
Employees at its Waconia, Minnesota facility.
In view of the circumstances of this case, the remedies
requested by the General Counsel will be ordered herein.
Earnings and other benefits will be computed at the level
former reinstated strikers received and they will be com-
puted on a quarterly basis from date of its failure of rein-
statement , less any net interim earnings , as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977),19 and discharging, if necessary, those hired to
such jobs,
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Medallion Kitchens, Inc., Waconia,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Hiring new employees to perform bargaining unit
work at Fergus Falls, Minnesota, and failing and refusing
to recall the former striking employees who had made
unconditional offers to return to work.
(b) 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 the 24 most senior employees eligible to be
reinstated on 24 September 1984, immediate and full rein-
statement to substantially equivalent positions at Wa-
conia, Minnesota, in accordance with their seniority, dis-
charging, if necessary, those hired to such jobs, and
make the former strikers whole for any earnings or bene-
fits lost by reason of the discrimination against them
since 24 September 1984, in the manner set forth in the
remedy section of this decision.
(b) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Waconia, Minnesota, copies of
the attached notice marked "Appendix."21 Copies of the
notice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Mail a copy of the attached notice marked "Ap-
pendix" to the last known address of any employee who
worked in the involved unit on 19 September 1983 and
to the last known addresses of all employees who were
employed at Respondent's Fergus Falls plant when it
19 See generally Isis Plumbing, 138 NLRB 716 (1962).
20 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in See, 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
21 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 Nation-
al 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."
MEDALLION KITCHENS 1617
closed . Copies of said notice on forms provided by the (e) Notify the Regional Director in writing within 20
Regional Director for Region 18, after being signed by days from the date of this Order what steps the Re-
Respondent 's authorized representative, shall be mailed spondent has taken to comply.
by Respondent immediately upon receipt. IT IS FURTHER RECOMMENDED that Respendent's
above-described motions, for the reasons set forth above,
are denied.