Murco, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1983

266 N.L.R.B. 1175 (N.L.R.B. 1983)

MURCO, INC.
Murco, Inc. and United Food and Commercial
Workers International Union, Local 26, AFL-
CIO and Mark T. Barber. Cases 7-CA-19928
and 7-CA-20418
2 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 28 December 1982 Administrative Law
Judge Richard A. Scully issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.3
In finding that Respondent had unlawfully circu-
lated a decertification petition for its employees to
sign, the Administrative Law Judge relied, in part,
on an adverse inference which he drew from Re-
spondent's failure to call employees Johns and
Hopwood as witnessess to corroborate its claim
that the petition was circulated at their request. In
adopting the Administrative Law Judge's finding,
we find it unnecessary to rely on the adverse infer-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950)., enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
Z In adopting the Administrative Law Judge's conclusion that Re-
spondent unlawfully terminated employee Barber, Member Hunter em-
phasizes that, as found by the Administrative Law Judge, Barber was not
a striker. He further notes that the Administrative Law Judge at one
point stated that Barber "remained away from his job" because he was
afraid to cross the picket line. However, Barber testified merely that one
of the reasons he did not personally appear at Respondent's plant to re-
quest his job back was his fear of bodily harm or damage to his car by
the strikers and that he would have crossed the picket line if he had a job
waiting for him. Further, it is clear from his repeated attempts to apply
for work by phone-as he previously had been instructed to do by Re-
spondent-that he was willing and able to return to work as of 2 Novem-
ber 1981 and that Respondent was aware of that fact. Indeed, in response
to Barber's repeated inquiries about the availability of his job Respondent
on several occasions communicated to Barber its view that, because
Barber was a union member and the Union was on strike, Barber was a
striker.
Additionally, Member Hunter finds it unnecessary to pass on the Ad-
ministrative Law Judge's citation to .4bilities and Goodwill, 241 NLRB 27
(1979), since the present case does not involve the discharge of a striker.
3 We leave to the compliance stage of this proceeding the question of
whether discriminatee Barber had. as alleged by Respondent, removed
himself from the work force sometime in May 1982 by purportedly indi-
cating during an unemployment hearing his unwillingness to return to
work for Respondent
266 NLRB No. 213
ence drawn by him since Respondent's conduct in
circulating the petition and coercing its employees
into signing it was clearly violative of Section
8(a)(1) of the Act.
As an affirmative defense to the 8(a)(1) and (3)
charges, Respondent contends that the Union,
before going on strike on 13 October 1981, failed
to give notice of its purported intent to modify or
terminate its contract with Respondent as required
by Section 8(d)(l) of the Act and that, consequent-
ly, the Union and the discriminatee, Mark T.
Barber, are barred from any relief in this proceed-
ing. We disagree. Whether the Union did or did
not comply with the provisions of Section 8(d)(1)
has no bearing on the question of whether Re-
spondent, as found herein, violated Section 8(a)(l)
by circulating a decertification petition and coerc-
ing its employees into signing it, encouraging em-
ployees to decertify the Union and to bargain di-
rectly with Respondent, and promising them bene-
fits if they abandoned the Union. Nor is it relevant
to our finding that Respondent, in violation of Sec-
tion 8(a)(3) of the Act, refused to reinstate Barber
because it erroneously believed that Barber had
participated in the strike.
The record clearly establishes that Barber did
not participate in the strike. That Respondent may
have believed otherwise does not serve to cloak
Barber with the status of a striker. Consequently, a
finding that the strike contravened Section 8(d)(l)
would not affect our finding that the denial of rein-
statement to Barber was discriminatory. Moreover,
it is significant to note that neither during the hear-
ing nor in its brief to the Board has Respondent
claimed that its refusal to reinstate Barber was due
to his alleged involvement in an unlawful strike.
Rather, it contended that Barber was denied rein-
statement because he failed to report for work
within 2 days of his release from medical leave, a
reason which the Administrative Law Judge found,
and we agree, was pretextual. Thus, it is apparent
that under no circumstance is the issue of the
Union's purported failure to give notice under Sec-
tion 8(d)(l) relevant to our 8(a)(l) and (3) findings.
In any event, we find that Respondent has not
met its burden of establishing its affirmative defense
by a preponderance of the credible evidence. In
support of its defense, Respondent has relied only
on the testimony of its personnel manager, Lenard-
son, who, when asked if he had received any
notice from the Union, simply replied, "No, sir."
Lenardson's reply to an apparently ambiguous
question is, without more, insufficient to establish
that the Union had not complied with the provi-
sions of Section 8(d)(i). In fact, there is no evi-
dence to indicate that the Union was indeed seek-
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to modify or terminate its contract, as Re-
spondent has suggested. In light of the above, we
find Respondent's affirmative defense to be without
merit. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Murco, Inc.,
Plainwell, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
4 Member Jenkins concurs in the rejection of Respondent's 8(d)(i) af-
firmative defense. However, he finds it unnecessary to rely on any ambi-
guity in Personnel Manager Lenardson's testimony that he had received
no notice of contract termination or modification from the Union.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge:
Upon charges filed on October 15, 1981, and March 15,
1982, by United Food and Commercial Workers Interna-
tional Union, Local 26, AFL-CIO (the Union), and
Mark T. Barber, respectively, a consolidated amended
complaint was issued on May 11, 1982, by the Regional
Director for region 7 of the National Labor Relations
Board (the Board), alleging that Murco, Inc. (the Re-
spondent), had committed violations of Section 8(a)(l)
and (3) of the National Labor Relations Act, as amended
(the Act). The Respondent filed a timely answer denying
that it had committed any violations of the Act.
A hearing was held at Grand Rapids, Michigan, on
September 13 and 14, 1982, at which all parties were
given a full opportunity to participate, to examine and
cross-examine witnesses, and to present other evidence
and arguments. Briefs submitted on behalf of the General
Counsel and the Respondent have been given due con-
sideration. Upon the entire record and from my observa-
tion of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a Michigan
corporation engaged in the processing, sale, and distribu-
tion of meat products, with its principal office and place
of business in Plainwell, Michigan. During the calendar
year 1981, a representative period, the Respondent, in
the course and conduct of its business, sold and distribut-
ed products valued in excess of $500,000, of which prod-
ucts valued in excess of $50,000 were shipped from its
Plainwell plant directly to points located outside the
State of Michigan. The Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1I. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged 8(a)(1) Violations
1. Actions of Supervisor Tim Wyman
The complaint alleges that in mid-September 19811
Sanitation Department Supervisor Tim Wyman circulat-
ed a petition among the employees under his supervision
for the purpose of decertifying the Union and that
Wyman suggested to the employees that upon decertifi-
cation of the Union they could form their own union for
collective-bargaining purposes. Several employees of the
sanitation department were called by the General Coun-
sel to testify concerning these allegations. All had par-
ticipated in an economic strike against the Respondent
which began on October 13 and were still on strike as of
the date they testified. Employee Ronald Arndt testified
credibly that Wyman spoke to a group of employees in
the cafeteria during a break and told them they should
sign a paper he presented indicating that they wanted out
of the Union. He stated that "Dad" wanted them to sign
out of the Union because he did not want to see them
"on the street." The "Dad" he referred to was Paul
Murray, the owner and president of the Respondent.
Wyman threatened that, if they did not sign the paper,
he could find ways to get rid of them. Wyman also told
them they could hire their own lawyer to make a con-
tract with the Respondent. The testimony of employees
Joe Bierema and Ron Hambright, who were present
during this conversation, was equally credible and cor-
roborated that of Arndt. Hambright also testified that,
when he alone of those present refused to sign the paper,
Wyman told him to stay behind when the other employ-
ees returned to work and told him if he did not sign
Wyman would "make it rough" or find a way to get him
fired. Hambright then signed the paper.
Employee Allen Redmond testified that Wyman spoke
to another group of employees in the lunchroom and
told them he wanted them to sign a paper to get out of
the Union. Although some of those present signed the
paper, Redmond did not. During a later break period,
Wyman again asked Redmond to sign the paper telling
him that the Union would be out no matter what and
that if the employees did not sign Wyman would give
them "a hard time" and that they could be fired. Red-
mond signed the paper at that point.
Employee Lloyd Sivley testified that the day after
Wyman spoke to the other employees he approached
Sivley at the timeclock, said he had a paper to get out
the Union which everybody had signed, and asked if
Sivley was going to sign it. Sivley said he would not.
Wyman asked him why, but did not pursue it further.
None of the employee witnesses could specify the date
on which Wyman approached them about signing the
All dates are in 1981 unless otherwise noted.
1176
MURCO, INC.
paper, but all placed it in September, about a month to 6
weeks before the start of the strike.
Tim Wyman testified that he was asked by employees
Mark Johns and Dave Hopwood to pass a petition
around to the different crews, which he did, and then
gave it to the plant general manager, a Mr. Hatch. He
passed the paper around for about a half an hour on one
night only.2 He did not indicate to the employees that he
wanted them to sign it, but merely laid it on the table in
front of them and said, "If you want to sign it, sign it, if
you don't, don't."
On the basis of his demeanor while testifying and the
content of his testimony, I did not find Wyman to be a
credible witness. Although he said that the petition was
drawn up and given to him to circulate by Mark Johns
and Dave Hopwood, the uncontradicted testimony of
employees Arndt, Bierema, and Redmond establishes
that both Johns and Hopwood were present when
Wyman presented the petition to two different groups of
employees. None of the witnesses but Wyman indicated
that he stated he was circulating the petition at the re-
quest of those employees. If Johns or Hopwood had
written out the petition and asked Wyman to circulate it,
it is reasonable to expect that one or both of their signa-
tures would be first on the petition. Their signatures are
sixth and seventh, respectively. I also find it hard to be-
lieve that, if Wyman told the employees that he was cir-
culating the petition at Johns and Hopwood's request,
other employees would have signed before seeing those
employee's signatures on the petition. Both Johns and
Hopwood were working at the Respondent's plant at the
time of the hearing, but neither appeared as a witness to
corroborate Wyman's testimony. This warrants the infer-
ence, which I draw, that their testimony would have
been adverse to the Respondent.
3
2 The Respondent introduced a paper bearing the signatures of several
sanitation department employees which Wyman identified as the petition
he circulated. This document has a somewhat different format than
that
described by the employee witnesses and has the date "6/25/81" written
next to the first signature, that of Dan Hoyt Whether this was the
peti-
tion Wyman circulated is significant only insofar as it might bear on
the
credibility of certain witnesses since there is no dispute but that Wyman
did circulate a petition and June 25 is well within the 6-month period
preceding the date the union's charge concerning this incident was
filed.
When compared with exemplars given at the hearing and documents in
the Company's files, all of the signatures on the petition appear to be gen-
uine. I believe this is the document Wyman circulated. In the absence of
any credible corroborating evidence that the "6/25/81" on the paper is
the date it was signed. I accept the consistent testimony of the employee
witnessess that it was signed a month to 6 weeks before the strike began
While Wyman testified that "6/25/81" was the date he circulated the pe-
tition, he appeared to have no independent recollection of the date.
saying first that he passed the petition around in September I do not
credit Personnel Manager Bruce Lenardson's testimony implying that he
received the petition in June because he said the first thing he did with
it
was to show it to Mr Hatch while Wyman testified that he gave
it di-
rectly to Mr. Hatch right after it was signed. Dan Hoyt, next to whose
name the "6/25/81" appears, was not called as a witness. I find the dif-
ference in the format of the petition from that described by the employee
witnesses to be so minor as to cast no doubt on their credibility The
principal difference, the words "Pending No Pay Decrease" at the
bottom of the paper, may well have been added after the paper
was
signed
I See A.merican Chain Link Fe-nce Co., 255 NLRB 692. 696 (1981).
The Respondent admits that Wyman was a supervisor
within the meaning of Section 2(11) of the Act. Al-
though Wyman denied drafting the petition, who drafted
it is not important. I find, on the basis of the credited
tes-
timony of employees Arndt, Hambright, and Redmond,
that Wyman stated to the employees that he wanted
them to sign it and that if they did not he would take
reprisals against them. Wyman also told employees that
Company President Paul Murrary wanted them out of
the Union. I find that, by the actions of its supervisor
in
sponsoring and presenting to its employees for their sig-
natures a petition to decertify the Union which repre-
sented them for collective-bargaining purposes, encour-
aging them to sign the petition, and threatening them
with reprisals if they did not sign, the Respondent viola-
tion Section 8(a)(1) of the Act.
4 I find that the Respond-
ent also violated Section 8(a)(l) by Wyman's encourag-
ing the employees to decertify the Union and bargain
di-
rectly with the Respondent.
5
2. Actions of Supervisor Jeff Murray
Jeff Murray is the son of the Company's owner and
president, Paul Murray, and is a supervisor on the
kill
floor. Glenn Merica testified that he is an employee
in
the boning room and is frequently assigned to work on
the kill floor. During the week of October 5,
Jeff
Murray approached him while he was working on the
kill floor and asked him what he thought was going to
happen. Merica replied that he thought there would be a
strike. Murray told Merica that "Dad" was getting tired
of the Union and wanted it out. He offered to talk
to his
father and said that maybe his father would "give you
guys what you like" in return for getting rid of
the
Union. Merica responded that there was no way to work
for Murray's father without a union. Merica was not a
union official and was not a member of the committee
negotiating with the Respondent.
Jeff Murray testified that he did have a talk with
Merica and that it was Merica that "brought up some-
thing about proposals." He told Merica that he did
not
have anything to do with negotiating and was "not in a
position to deal with those kinds of problems." On cross-
examination, Murray stated that he walked up to Merica
and started talking to him and that Merica brought up
the subject of proposals, asking him what was going
to
happen and if Murray's father would accept any of them.
He said he did not remember what the proposals Merica
mentioned were or what he said in response.
I found Merica to be a straightforward, convincing
witness and Murray to be just the opposite. I accept
Merica's version of the conversation as true. He stated
that he had worked for the Respondent for several years,
was well known at the plant, and was a person that
people came to "if somebody wants something or wants
to find out something." I find it unlikely that Merica,
who was not involved in contract negotiations between
the Union and the Company, would have undertaken to
4 Nassau Glass Corp.. 222 NLRB 792 (1976); Suburban Homes Corp..
173 NLRB 497 11968).
' See Camay Drilling Co., 254 NLRB 239 (1981), and 239 NLRB 997
(1978)
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss "proposals" with Murray. On the other hand,
Merica, being well known in the plant and not specifical-
ly indentified with the Union, was a likely choice for re-
laying Murray's implied promise to the employees that if
they abandoned the Union his father might be more ame-
nable to their demands. Murray never specifically denied
telling Merica this. I find that the Respondent violated
Section 8(a)(1) when Murray sought to undermine sup-
port for the Union in this manner. 6
B. The Respondent's Refusal To Reinstate Mark
Barber
Mark Barber had been employed by the Respondent in
the boning room for 17 months prior to a job-related
injury which caused him to be on medical leave com-
mencing on July 17. He was released to return to work
by his physician as of October 30. The parties have stipu-
lated that the Union went on strike at the Respondent's
plant on October 13; that at all times since October 30 to
date there has been a position available at the Respond-
ent's plant which Mark Barber could have filled; and
that Barber has not been reemployed by the Respondent.
The General Counsel contends that Respondent has re-
fused to reinstate Barber, despite an unconditional offer
to return to work on his part, because he engaged in a
strike or because the Respondent thought he had done so
in violation of Section 8(a)(3) and (1) of the Act. The
Respondent contends that Barber was discharged be-
cause he failed to timely notify it of his desire to return
to work following his medical leave upon being released
by his physician.
Initially, I find the Respondent's claimed basis for ter-
minating Barber, his alleged failure to report for work
within 2 days of his release by his doctor, to be a pre-
text. Barber testified that when he went on medical leave
he was told by Personnel Manager Bruce Lenardson that
when he was released by his doctor he should call and
give the Company 24 hours' notice of when he could
return to work. Barber got his release on a Friday and
called Lenardson's office on the following Monday and
was told by a secretary that Lenardson was not in his
office. He called the next day and was told that Lenard-
son was in a meeting and the secretary did not know
when he would be out. He called again the next day and
was told that Lenardson was out of his office and the
secretary did not know when he would be back. Barber
left a message asking Lenardson to call him. Lenardson
did not call and Barber called his office again the follow-
ing day. Lenardson was not in the office and did not
answer when paged in the plant. Barber told the secre-
tary who he was, that he had called on the previous 3
days, and that he had been released by his doctor and
wanted his job back. The secretary said she did not
know where Lenardson was and Barber left another
message asking Lenardson to call him. Lenardson did
not call him and sometime in December Barber began
calling again. Although he made up to 10 phone calls
over 4 or 5 days, Barber was unable to talk to Lenard-
son. In January 1982, Barber started calling again and
6 See Billion Oldsmobile-Toyota, 260 NLRB 745 (1982): Cable Vision.
249 NLRB 412 (1980).
eventually the secretary offered to talk to Lenardson and
tell him what Barber wanted. Barber called again and
the secretary said Lenardson said to tell Barber that he
was a union member, the Union was on strike, and,
therefore, Barber was on strike. Barber called again a
couple of days later but failed to reach Lenardson. On
January 20 or 21, 1982, Lenardson called Barber and
began the conversation by saying, "I don't have time to
talk to you everyday when you call." He then said,
"You are a Union member, the Union is on strike, there-
fore, you are on strike." He asked Barber why he had
not come back to work after the doctor released him and
Barber told him of his attempts to call him. Lenardson
told Barber he would like to have him back but was
"afraid of getting in trouble with the Labor Board" for
negotiating with Barber rather than with the Union. He
told Barber the best advice he could give him was to
look for another job and Lenardson would give him a
reference. Lenardson also said he would send Barber a
letter stating why he could not take him back.7
Barber applied for unemployment benefits which the
Respondent opposed, contending that he was on strike
and ineligible for such benefits. Barber's application was
denied by the Michigan Employment Security Commis-
sion on the grounds that he was disqualified due to a
labor dispute.
There is nothing in the record to indicate that at any
time prior to defending this matter before the Board the
Respondent ever contended that Barber has been termi-
nated for his alleged failure to timely report for work
following his medical leave. On the contrary, in all its
dealings with Barber, including its oral and written com-
munications with him and in defending against his claim
for unemployment benefits, the Respondent consistently
took the position that it considered Barber to be a striker
and on that basis refused to reinstate him to his job.
There is nothing in Barber's personnel file that supports
the Respondent's contention concerning when and why
he was terminated. Further, when Personnel Manager
Lenardson was asked when Barber was terminated, he
equivocated, stating, "He would have been terminated ap-
proximately two days after his date of return to work,
which was certified by a doctor, I believe." He later
became more emphatic, stating that Barber was terminat-
ed "two days after he failed to return from his medical
7 The letter, dated January 21, 1982, states:
On the above date you called the Personnel Office wanting to
know about your employment status. We were advised that effective
October 30, 1981, in accordance with the examination by Larry
Walton, M.D., that you were able to return to work and your
weekly compensation benefits had been terminated. Since you did
not return to work on November 2, you were presumed to be on
strike.
In a telephone conversation with my secretary on this date, you
indicated that after you were released for work on October 30, that
because you were "afraid to cross the picket lines" [youj tried to call
the office three times and were unable to reach me.
As soon as the strike began, Allegan County Sheriffs Posse mem-
bers were placed on 24-hour duty at the front gate to assure the
safety of employees' ingress and egress to and from the plant. For
this reason, it is felt by the company that you [sic) decision not to
cross the picket lines for whatever reason, constituted a waiver of
your right to return to work and indicated that you were off work
due to a Labor Dispute.
1178
MURCO, INC.
leave of absence." However, I do not credit Lenardson's
self-serving remarks which are uncorroborated and
which contradict his oral and written statements to
Barber in January 1982 and before the Michigan Em-
ployment Security Commission concerning Barber's em-
ployment status.8 I therefore reject as a pretext the Re-
spondent's belated, unsubstantiated, and contradictory
claim that it terminated Mark Barber because he failed to
report for work within 2 days of his medical release on
October 30.
1 credit Barber's statement in the charge he filed with
the Board that he did not participate in the strike, as well
as his testimony that he wanted to return to work after
his medical release and that he made several telephone
calls to the Company in an attempt to return to work,
but that he was afraid to go to the plant because of the
picket line he would have to cross. I find that, when
Barber failed to cross the picket line following his medi-
cal release, the Respondent considered him to be a strik-
er and terminated him at a time when he had not been
permanently replaced. The Respondent candidly admit-
ted this in Lenardson's comments to Barber on January
21, 1982, and in his letter of the same date, which states,
"[It] is felt by the company that you [sic] decision not to
cross the picket lines for whatever reason, constituted a
waiver of your right to return to work and indicated that
you were off work due to a Labor Dispute." By termi-
nating Barber because it considered him to have partici-
pated in an economic strike, the Respondent discrimina-
torily discharged him in violation of Section 8(a)(3) of
the Act.9 The fact that Barber did not participate in the
strike and remained away from his job because he was
afraid to cross the picket line does not alter this conclu-
sion. I o
There is no direct evidence of when the Respondent
adopted its policy of terminating employees who refused
to cross the picket line or when Barber was actually ter-
minated. The "On Strike" and "Terminated 10-14-81"
notations on several personnel file jackets in the record
8 I find there is insullficient evidence to establish that the Respondent
had a policy of terminating employees who did not report for work
within 2 days of their release from medical leave. The only evidence of
such a policy is the testimony of Lenardson that "according to our con-
tract, an employee who is absent without calling in, without coming in,
for two or more days is considered terminated." The "contract" he re-
ferred to was not introduced and, even if there were such a provision, I
am not convinced that it would be applicable to the situation of an em-
ployee returning from medical leave. I did not believe Lenardson's testi-
mony that other employees in circumstances similar to Barber's were ter-
minated because they failed to report for work within 2 days after the
date of their medical release. In the personnel file of one, Larry Sherer, a
letter from Lenardson indicates that the Respondent took exactly the
same position it did on Barber: "He is considered to be on strike and, as
such, has no rights to work at Murco any more than any other striker."
The personnel files of the other employees Lenardson claimed were ter-
minated pursuant to the same policy as Barber, Richard Bukowski and
Terry Butcher, contain nothing that corroborates Lenardson's testimony.
Interestingly, the personnel files of Sherer, Bukowski, and Butcher each
have the notations "On Strike" and "Terminated 10-14-81" on the file
jackets. Lenardson testified that the notations "don't really mean any-
thing to me." The file jacket of Barber's file has the notation "Terminat-
ed 10-14-81" which has been crossed out. All of this casts considerable
doubt on Lenardson's credibility and supports the inference that anyone
who did not return to work after his medical release was considered by
the Respondent to be on strike.
9 Scioto Coca-Cola Bottling Co., 251 NLRB 766 (1980).
'O See Congoleum Industries, 197 NLRB 534 (1972)
suggest that anyone who did not come to work on the
day after the strike began was considered a striker and,
therefore, was terminated. A letter signed by Lenardson,
found in the personnel file of employee Larry Sherer,
contains the statements: "[T]he policy had been, and con-
tinues to be, that all persons who did not cross the picket
lines as soon as they were physically able to do so are
considered by the Company to be on strike" and "only
those who had crossed the picket lines immediately, in
spite of their feelings, were allowed to return to work."
The Respondent offered no credible evidence that would
indicate that this was not a correct statement of its
policy with respect to those employees who did not
cross the picket line. I conclude that Mark Barber, who
was released by his physician to return to work as of
Friday, October 30, and did not cross the picket line that
day, would have been terminated on Monday, November
2, the next workday. Although I find that Barber, even
though unaware that the Respondent considered him a
striker, made, in effect, unconditional offers to return to
work in his telephone calls to the Respondent's personnel
office during the week of November 2, in mid-Decem-
ber, and on January 21, 1982, the futility of these actions
has been clearly demonstrated. Under the circumstances,
it was unnecessary for Barber to request reinstatement in
order to activate the employer's backpay obligations."
Consequently, I find that the Respondent's backpay obli-
gation began on November 2, 1981.
C. The Respondent's Affirmative Defense
The Respondent has alleged as an affirmative defense
that the Union did not give it written notice of its desire
to modify or terminate its contract as required in Section
8(d)(l) of the Act; that it went on strike in violation of
Section 8(d)(4) of the Act; and that the employees who
went on strike on October 13 lost their status as employ-
ees because they engaged in an unlawful work stoppage.
It contends that "the charging parties are barred from
relief in this proceeding on the record as it exists."
Even if such a defense were established, it would have
no bearing on the violations of Section 8(aX1) of the Act
found herein. Insofar as its affirmative defense might
affect the 8(a)(3) violation found herein, I find that this
defense has not been established by a preponderance of
the evidence. The Respondent in its brief notes that "the
complete details of the dealings between Local 26 and
the Respondent are not a part of the record." This is an
understatement. The only evidence in the record bearing
on this issue consists of the stipulation of the parties that
a strike began on October 13 and the following testimo-
ny of Bruce Lenardson:
Q. [By Mr. Crocker] Did you receive from Local
26 the 60 days' notice of contract termination or re-
quest to modify this contract prior to October 13,
1981?
A. No, sir.
" See Abilitries and Goodw.ill. 241 NLRB 27 (1979).
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not consider this enough to deprive Barber of his
status as an employee and the valuable rights pursuant
thereto, which the Act protects.
To begin with, I find it insufficient to establish that the
Union failed to give any required notice to the Respond-
ent. The fact that Lenardson did not personally receive
such a notice does not necessarily mean that the Re-
spondent did not receive it. The question related only to
whether Lenardson received a notice, not whether the
Respondent did. There is also no evidence that Lenard-
son was the appropriate company representative to
whom such notice would be sent. Next, it was not estab-
lished that the Respondent had not given notice of its
desire to modify or terminate the contract to the Union
pursuant to Section 8(d)(1), 60 days prior to the date the
strike commenced. There was evidence that the Re-
spondent's president was unhappy with both the Union
and "procedures" under the contract and evidence that
negotiations were taking place before the strike began.
The Respondent may very well have taken the lead in
seeking to modify the contract. One side obviously noti-
fied the other that it wanted the contract modified or ne-
gotiations never would have started. If the Respondent
gave the Union notice in accordance with Section
8(d)(l), the Union was not required to give any further
notice to the Respondent. 2 Since the contract is not in
evidence, there is no indication of its expiration date and
no way of telling if the strike began during the statutory
"cooling-off" period. I find that that Respondent has
failed to bear the burden of establishing that the strike
was unlawful or that those employees, such as Barber,
who failed to cross the picket line were lawfully termi-
nated.
CONCLUSIONS OF LAW
1. The Respondent, Murco, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by: (a) circulating and coercively soliciting employees to
sign a petition to decertify the Union as their collective-
bargaining representative, (b) encouraging employees to
decertify the Union and bargain directly with the Re-
spondent, and (c) soliciting employees to abandon the
Union and promising them benefits for so doing.
4. The Respondent violated Section 8(a)(3) of the Act
by discriminatorily discharging Mark Barber, whom it
considered to have participated in an economic strike.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
"2 See Carpenters District Council of Denver (Rocky Mountain Prestress)
172 NLRB 793, 795. fn. 8 (1968): Ft. Smith Chair Co.. 143 NLRB 514,
516-517 (1963).
affirmative action in order to effectuate the policies of
the Act.
Having found that the Respondent unlawfully dis-
charged Mark Barber, I shall recommend that the Re-
spondent be ordered to offer him immediate and full re-
instatement and to make him whole for any loss of earn-
ings and other benefits he may have sustained because of
the discrimination against him from the date of dis-
charge, November 2, 1981, to the date that he is offered
reinstatement. Backpay shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be paid on the amount due in accordance
with Florida Steel Corp., 231 NLRB 651 (1977).'3
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 14
The Respondent, Murco, Inc., Plainwell, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Circulating and soliciting employees to sign peti-
tions seeking to decertify their collective-bargaining rep-
resentative.
(b) Encouraging employees to decertify their collec-
tive-bargaining representative and to bargain directly
with Respondent.
(c) Soliciting its employees to abandon their collective-
bargaining representative and promising them benefits
for doing so.
(d) Discouraging membership in or activities on behalf
of United Food and Commercial Workers International
Union, Local 26, AFL-CIO, or any other labor organi-
zation, by discharging employees or by otherwise dis-
criminating against them in their hire or tenure of em-
ployment.
(e) 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 designed to ef-
fectuate the purposes of the Act:
(a) Offer Mark T. Barber immediate and full reinstate-
ment to his former position of employment or, if that po-
sition no longer exists, to a substantially equivalent posi-
tions, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole
for any loss of earnings or other benefits he may have
suffered by reason of the discrimination against him, in
accordance with the recommendations set forth in the
section of this decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
i3 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962)
14 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations 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.
1180
MURCO, INC.
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Plainwell, Michigan, plant copies of the
attached notice marked "Appendix."15 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by authorized repre-
sentative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
'5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT circulate or solicit our employees
to sign petitions to decertify their collective-bar-
gaining representative.
WE WILL NOT encourage our employees to de-
certify their collective-bargaining representative and
to bargain directly with us.
WE WILL NOT solicit our employees to abandon
their collective-bargaining representative and prom-
ise them benefits for doing so.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees in their hire or tenure of
employment in order to discourage membership in
or activities on behalf of United Food and Commer-
cial Workers International Union, Local 26, AFL-
CIO, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Mark T. Barber immediate and
full reinstatement to his former position or to a sub-
stantially equivalent position and WE WILL make
him whole for any loss of earnings or other benefits
he may have suffered by reason of the discrimina-
tion against him, with interest.
MURCO, INC.
1181