Poultry Packers, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 2, 1978237 N.L.R.B. 250 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Poultry Packers, Inc. and Amalgaimlated Meat Cutters & Butcher Workmen of North America, AFI-CIO, Local Union No. 540 Herider Farms Processing, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North Amer- ica, AFL-CIO, Local Union No. 540. ('ases 16- CA-7022 and 16-CA 7149 August 2, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MUiRPHiIY, AND TRtI:SI)AI I On April 11, 1978. Administrative l.aw Judge Al- vin Lieberman issued the attached I)ecision in this proceeding. Thereafter, Charging Party filed excep- tions and a supporting brief, and Respondents filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hits delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings., and conclusions 2 of the Administrative law Judge and to adopt his recommended Order. 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 complaint herein be. and it hereby is. dismissed in its entirety. t The Charging Part? has excepted to certain credibllits findings nmade bh the Administrative Law Judge. It is the Board's established policy nol iii overrule an Administrative L.aw Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant ev.idence convinces us that the resolutions are incorrect. Starndard l)ri ' atl Producti Incr. 91 NLRB 544 (1950) enfd 188 :.2d 362 (('A. 3. 1951) We ae h ve crefull examined the record and find no basis for reversing his findings 2 We agree with the Administrative I.La, Judge. for the reasons stated h, him, that the wage increases granted bh the Respondents to their respective emplosees were motivated solel bs ecoinimic coinsideraltions and therefore did not vsilate Sec 8(a)( I) of the Act Accordirgls. we find It unnecessars to reach or pass on his further finding that these increases also were not unlawful because at the times the, were announced or iietn "nio elctiorn was pending" due to blocking unfair labor pracilce charges aild thus the increases were not timed ioi influence the emplosyces' ,ote. In agreeing with the Administrative I aw Judge that the wage increases given here did not violate Sec. 8(a)( I) of the Act, Member I ruesdale also notes that the timing of these increases appears to be Ib line uaWh that of other past wage increases DECISION SI t SI: MENI OF THE CASE ALviN LIEBERMAN. Administrative Law Judge: The hear- ing in this proceeding, with all parties except the Charging Party represented, was held before me in Lufkin, Texas, on the General Counsel's complaint, as amended at the hear- ing,' and Respondents' answer.2 In general, the issues liti- gated were whether Respondents violated Section 8(a)(l) and whether Respondent Poultry Packers Inc. violated Section 8(a)(3) of the National Labor Relations Act, as amended (Act).' More particularly, the questions for deci- sion are as follows: I. Did Respondents violate Section 8(a)(1) of the Act by increasing wages of employees during the pendency of election petitions? 2. Did Respondent Poultry violate Section 8(a)(3) of the Act by not reinstating a striker upon his unconditional of- fer to return to %work following the termination of an eco- nomic strike? Upon the entire record,4 upon my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs sub- mitted,5 I make the following: FIDININS OF FAC(r I JURISDI()TION Respondents are Texas corporations. Respondent Heri- der Farms Processing, Inc., is engaged at Nacagdoches, Texas. in the processing and sale of poultry products. Re- spondent Poultry, a wholly owned subsidiary of Respon- I he amntidlenlits ii the comnplaint consisted of the addition of the viIds "aiid April 125" sftcr the date "I ebruar? 7" In par 7 and the deletion of the nr;lre "Bertha Rohberson In pars 9 and 10 At the hearing, the answer wits amended to admit the allegations of par 9 iof the complaint, as amended In pertinent part these sections provide: Sec hi;l It shall he an unfair lahbor practtice for an employer - (1) to Interfere ith. restrain, or coerce emploees in the exercise of the rights guaranteed in sec 7: (3) bs discriminalioln in regard to hire or tenure of employment to encourage or discourage membership in any labor organiza- tion Sec 7, insofar as relcxant. states Sec 7 t implosees shall haze the right to self-organization. to form. join. (or assist labor organizations. to bargain collectively through repre- sentatives of their oivn choosing. and to engage in other concerted aictisties for the purpose of collecltse bargaining or other mutual aid or pritecrtioin 4 Upion Respiondents' unolppoised motion following the close of the hear- iiig I receised In evidence an affidavit made bs Allen Lewis. a business representative of the Charging Parts this affidavit has been placed in the file if exhibit l ilrlodnuced bh Respondents and marked E xh C 9 Although ill the argumients of the parties and the authorities cited b) iheim. v hether appearing in their briefs or made orall? at trial. may not be discussed, each hitas been ca;refulls seighed and considered r Respondents' motion to dlsitiss the complaint made at the conclusion if the hearing. upoin ahich ruliig s.as reserved. is disposed of in accordance with the findings and conclusion,t set forth in this tecision 237 NLRB No. 42 250 POULTRY PACKERS. INC. dent Herider. is similarly engaged at Lufkin, Texas. During the 12 months preceding the issuance of the complaint, a representative period, each Respondent sold goods valued at more than $50,000 to customers located outside the State of Texas. Accordingly. I find that Respondents are en- gaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the Na- tional Labor Relations Board is warranted. 11 THF LABOR OR(GANIZAtION INVOlVII) Amalgamated Meat Cutters & Butcher Workmen of North America, AFL CIO, Local Union No. 540, is a la- bor organization within the meaning of the Act. 111. INTRODUCTION This case is concerned with two unrelated matters. The first, in briefest outline, involves Respondents' grant of two wage increases during the pendency of election petitions. The General Counsel argues that respondents granted the increases in order to induce the employees receiving them to withhold support from the Union at the elections sought by the petitions, and that in this manner Respondents vio- lated Section 8(a)(l) of the Act. Admitting that they granted the increases, Respondents deny that they did so for the reasons asserted by the Gen- eral Counsel. Respondents contend that their sole purpose in raising wages was to enable them to compete with other poultry processors for a competent, stable, and reliable work force. Their motivation in granting wage increases having been economic. Respondents' argument continues. they did not violate Section 8(a)( ) of the Act by doing so. The second matter involved in this proceeding. in equal- ly brief outline, is concerned with the lack of success of an employee. Herman Deveroux, who had participated in an economic strike waged by the Union against Respondent Poultry, in obtaining reinstatement at the conclusion of the strike. The General Counsel argues that, by not reemploy- ing Deveroux, Respondent Poultry violated Section 8(a)(3) of the Act. Asserting that during the strike the job Deveroux held before the strike was filled by a permanent replacement. Respondent Poultry argues that it was under no duty to offer any' employment to Deveroux after the strike ended. Assuming. arguendo, that it was obligated to offer Dever- oux a different job upon the termination of the strike, Re- spondent Poultry contends that it complied with this obli- gation by' offering him such employment. which he did not accept. Accordingly. it is Respondent Poultry's position that it did not violate Section 81a)(3) of the Act bh the manner in which it dealt with Deveroux. iV PRELIMINARY FINDINGS 7 A. The Union At all material times the Union has been the representa- tive of employees of Respondents. In 1972. the Union and each Respondent entered into separate collective agree- ments. Respondent Herider's contract expired on October 23, 1975. and Respondent Poultry's on November 1., 1975. Negotiations for new agreements began in September 1975 and continued until March 1976. However, the par- ties were unsuccessful in arriving at contracts. B. The Strike Having been unable to reach agreement on the terms of contracts to replace those which expired on October 23 and November 1, 1975. the Union on November 4, 1975, struck Respondent Poultry. s8 The strike came to an end on Octo- ber 20. 1976, and many strikers unconditionally offered to return to work. On the day the strike ended, all strikers who desired to resume their employment were requested to sign a reem- ployment list. Those who did so, including Herman Dever- oux. were instructed to report for work on the following MondaN . During the strike, Deveroux and a "good many" other strikers, as he testified. "walked the picket line." In addi- tion. Deveroux and other strikers spoke to employees who continued to work during the strike, in an effort to induce them to join the strike. Except for Deveroux, there is no evidence showing that Respondent Poultry failed to rein- state, in accordance with the foregoing procedure, ans striker who engaged in such conduct. 9 C. The Petitions On December I. 1976. a petition. Case 16-RD-734 (Luf- kin petition), was filed seeking to decertify the Union as the collective-bargaining representative of employees of Respondent Poultry. A week later, a petition, Case 16- RM 558 (Nacogdoches petition), was filed to determine the collective-bargaining representative of employees of Respondent Herider. Subsequently. Respondents were in- formed by the Regional Director of Region 16 (Regional Director) of the Board that a hearing on the foregoing peti- tions would be held on January 11. 1977. On December 13. 1976. the Union filed a charge, Case 16- CA-933 (Lufkin charge), alleging violations of Section 8(a)(3) of the Act by Respondent Poultry. Three days later, the Regional Director notified Respondent Poultry that the hearing on the I.ufkin petition would not take place be- cause it had been blocked by the Lufkin charge. On December 20. 1976. tle Union filed a charge. Case 16-CA-6949 (Nacogdoches charge). alleging violations of Section 8(a)( I) of the Act by Respondent Herider. Because I he purpo-e ,if thee findings is It furnish a frame iof reference within S:hlih Io consider the fiacli relating ti Respondents' alleged unfair labor pratilces 11 Is undlisputcd hit h th rike s itr ecinmict in nature As noted ihoe the (rienral ( Counsel iontends that hs refusing to rein- state l)c'ert,.,s the delai, if Ad hlch will he set forth In a subsequent section of this I)eision,. Respondenl Poulirs ' .ilaled Sec. 8ia{3i of ihe A4c 251 I)F(lISIONS ()OF NAT IONAL LABOR RELA I IONS BOARI) of the blocking nature of this charge, the Regional Director on January 7, 1977, informed Respondent tierider that the hearing on the Nacogdoches petition would not be held as scheduled. On February 2, 1977. the Regional Director sent a letter to Respondent Herider advising it that the Nacogdoches charge had been dismissed. Respondent Ilerider did not receive this letter until FebruarN 5. The I ufkin charge wias also dismissed, but the date of the dismissal does not tip- pear in the record. In view of the dismissal of the blocking charges, the Re- gional Director, on February 4, 1977, mailed letters to Re- spondents, notifying them that a hearing on the petitions would be conducted on February 17. 1The parties stipulated that Respondents received this letter on February 6. 'I hat day, however, having been a Sunday, it is more likely, and I find, based on the 3-day hiatus between the mailing tof the letter concerning the dismissal of the Nacogdoches cha;rge and its receipt by Respondent Herider, that the letter set- ting the new date for the hearing on the petitions was re- ceived by Respondents on February 7, The first charge against Respondents in the instant case was filed by the Union on February 11., 1977. Because of this, on February 14, the Regional D)irector informed Re- spondents that the hearing on the petitions w as again blocked. V Ii Al I(iiD) I:NI:IR I ABOR PRI( II(S A. Fiacts Concerning R cpondcnWs' .ll'egeld I'io/lhioni ot Secrion 8(a)(Ij of the 1 ct Between February 9, 1976, and F ebruary 7, 1977, the wages of Respondents' employees remained static. During this period Respondents' wage rates were 25 to 30 cents an hour lower than the wages paid by their local competitors. This resulted in Respondents' inability to attract and retain stable, competent employees. As Thomas Greer. Respon- dents' vice president, testified in this regard, because of Respondents' lower wage rates many of Respondents' em- ployees were "floating-type people" [and Respondents' i turnover rate was great." Respecting this, Respondent Poultry experienced an em- ployee turnover rate of 59 percent in December 1976 and 61 percent in January 1977. Employing a greater number of workers, Respondent Herider's turnover rates for the same 2 months were, respectively, 32 percent and 29 per- cent. In addition to these high turnover rates, the work per- formed by the employees Respondents were able to hire was of such poor quality as to affect Respondent's yield "' and customer acceptance of Respondents' products. On this subject. Greer stated that "workmnanship [of respon- dents' employees before Februar 3 7. 1977] was just totally bad all the way through." To remedy this situation, and to compete for competent employees with other poultry processors in their localities, it Yield is the difference hetwecn the ueigl t io the piulti\ pi cl'ced hs Respondents before slauighicr rid lie dic cd1 v:Cl ilit Respondents. on iebruarN 4. 1977. announced to their em- ployees that wages would be raised. On FebruarN 7 this announcement was implemented. On that day. employees who had been with Respondents fewer than 96 days received a 5-cent-an-hour increase and employees with more than 90 days seniority received a 25- cent-an-hour increase. G(reer. Respondents' vice president, crediblI testified that the "pending petitions [had no] effect mn the dicision to grant the wage increases": that "it was an ecLonomic thing'' and that "if [Respondents] were going to stay in business [they] had to get competitive. otherwise [they would havel to close the door and get out of busi- ness. A comparison of Respondents' new wage structure with those of their competitors '' shows that in only one catego- rn. the 3() da! rale. did Respondents' pay more than other poulhr) proces,,ors I he rates for Respondents' other em- plboees were set at levels equal to, or lower than, the corre- sponding rates of the highest paying poultry processors in Respondents' neighborhoods. The wage increases granted by Respondents on Febru- arv 7 had the desired effect. at least insofar as Respon- dents' employee turnover rate was concerned. In February. it dropped to 3() percent at Respondent Poultry's plant and to 16 percent at Respondent lierider's. 12 These turnover rates i enainiied faills constant up to the time of the hearing in this proceeding. held in June 1977. The raise given b, Respondents on February 7. to em- ployees with seniority of 90 or more days, increased their wages to $2.65 an hour. In April. Respondents received information that one of their competitors intended, on May 1. to increase the wages of employees in this category to $2.75 ain hour. Because of this, Respondents, on April 25. raised the wages of their 90-day employees by 10 cents, bringing their wage rate also up to $2.75 an hour. Regarding Respondents' motivation in granting the April 25 wage increase, Greer., Respondents' vice president, credibly stated. as he had done respecting the February 7 increase, that the pending petitions had not been taken into account by Respondents and that "all [Respondents] were tr ing to do was to he fair so that Itheyl would keep em- plosecs and staN in business." B. (roncnlion, t nl (oncludlting Findings Concerning Rc.nponidcnt ' A./legdrl I iolation. of Sction 8(a)(l) of the IThe Gieneral ('ounsel contends that Res:pondents grant- ed the wage increases on February 7 and April 25. 1977, to induce employees to refrain from voting for the Union at the elections that would be held on the petitions pending at the time, and that thereby Respondents violated Section 8(a)(1) of the Act. Respondents' position is that their sole purpose in raising wages wtas to enable them to compete ;with other poultry processors for an efficient, stable work force. Accordingly, Respondents argue, their having in- I he recrld i slcnt len g'iiding the manner in which the wage increases afc itcd Respllidents' \icid customer aci cpt ance if their produces or their [ ]l1p], ~%t'C', ' ~.~,4 ik II HI T/~,tU 252 P()1T I RY RN' ACKIS. IN( creased their wage rates did not involve them in violations of Section 8(a( I ). notwithstanding the pendencs of the pe- titions. In N.L.R.B. v. I /htangc ParI, (Co.. 37 l .S. 40). 4()9 (1964). the Supreme C(ourt held that an emplohs)er v iolaltes Section 8(a)(I) of the Act hs "the conferr-al of emplshce benefits while a representation election is peniding. 1t ,-hc [ur/pJvc o!/' indl'i,,g hl/>/lcc to lott' againsf /t, / wrn ''l- (Emphasis supplied.) flow'eer. this is not to sa! that In iall cases an employser. to escape culpabilit\ under Sectlon 8(a)(l) of the Act. must permiit ''wages [to] remaiin fixed from the time a petition is filed . . . until the petition is ultimately disposed of." ( luonipion Pl ett ic '1ai nitint, Co.. 152 NLRB 300. 301. 306 ( 1965. As emphasized above. it is onl, when an emploer graints bend its "f'or the pur- pose of inducing emplosees to vote against Ja]l uniion" that a violation attaches. "The Act does noit require an eniploser pending an elec- lion to refrain from making econlomic:ally niotil\ated deci- sions involving business matters or an! changes in Acorkmrlng condition 1[ including sallil' changes., necessiar to the c0o1n- tinual and orderls operations of ItS business, ahsent a promise of benefits conditioned upon rejection (of the Union . . . or ans causal connection beteen [the salar\ changes and] the rights accorded to emplo)ces hbx the Act{ Normal business decisions must continue to be malde and frequently are necessar, for the efficient operartion of an enterprise even though [occurringl during an orgalni/a- tional campaign." It alnlu ( rccA PvlirclIatict ItI//IC11. C/I.c 208 NL RB 656. 663 (1974). An enployer's legal dults ii dcitdirig v helici tto elt benefits while a representation case is pendilig is to de- termine that question precisel ias he would if a unioln su ele not in the picture. If the emploNer would hav-e cr;lted the benefits because of ccononlic circulilstailces unrelated to union organization, the griant of those benefits will noit So- late the Act. On the other hand, If the emploser's courtse is altered by virtue of the urilon's presence. then the empeloter has \iolated the Act, and this is true Mshether he confec s benefits because of the union ori withhiolds, themi beciause of the union." h'( ormtti( A I.liiicildoti .CShtm ( ' .. S lti ./ 15 N LRB 1237 1242 (1960). Giv en the foregoing priinciples. if Responcldeits' u agc in creases iii February and April 1977 had been granLited in order to influence their emplo ees' vote at the clec tioins which would he held on the pending petitions .:s the (icn- eral Coutisel contends. they would haxe been xiolaltisc of Section 8(a)(1) of the Act. O()n the other hand. if the wage increases were, in fact. conferred for the purpose of en- hancing Respondents' abilit, to atiract and hold compe- tent employees. as Respondents assert. the ,t ould haiec been "economicalls mortisate"'' aid, hence, not violhaice of Section 8(a)( 11) of the Act. I find that the latter siuatlion obtains here. Thus, between Febhruar 1976 and Februars 1977, Re- sporidents' emploNees had not had a wage increase. and during this period Respondents' wage rates were lower than their competitors. This resulted in Respondenlls'ilabil- ity to recruit stable, ~ proficiCnlt eiplosees. I ol tile pur- (o;I o ncillni hl 1n1mthl1ih\ e Rc p,,ndlcidlt olk [rrtc I h.xJC folund pose of enabling them to coimpete for such emplosees oin an elual fI tling with other poultry processors. as Thomas (reer. Respondents' sice president. persuasivel 5 testified, Respondents granted the l:ehruarx andi April increases.*4 It appears. therefore. thil Respondents were not moti- xiatcd in i\ ilrc thne age increases hb the pendencN of the petitions. hbut Ib the ecoc, oniic exigencs of becoming. and remailling. colnpetitixe insofar as their ability to attract iiand retain comlpetent emIplo)ces UIas concerned. This heing tile c,se. it seemis to mc thi l Responidents acted pre- cisels as tiles u- ould hate in the absence of the petitions. In the prenises. therefore. as h'.h('orormlck Ionimnreadow teach- es. Respondenits conducted themselses in accordance with their '"leg;ll duix" alnd n did not c iolate Section 8(a)( 1) of the Ilhere is set another reason for ms opinion that Respon- dents did not iolate the Act hb granting the increases. I his iel ites tPo their tinelil. Several weeks before Respondents informed their em- plo\eces th;Lt their wages ,iould he raised on February 7. 1977. Responcldents had been notified bh the Regional Di- rector that thc pending petitions had been blocked bs un- fair labor practice charges filed hb the [Inion. It was not until 3 daiss after the Febhruar' wage increases had been Ilaide knowu n to their eilplon ces that Respondents received niotice of the dismissal of those charces and the resultant unblocklign of the petitions. [ven this situation did not continue for alls suhsrlnitial period. for the petitions were a,;iin blocked oln I ehru;irs I1. bx the filing of the first halirace in the instant case. It thus appiears that the 1 eb'ruarx wage raise was an- noinced it al timle when no election was pending. It cannot be saidi therefore. as the (ieneral ('ounsel would have it, "that the announcement of the [increasel was . . . timed to ifieet tlhe einplol ees' vote [This is sol because. at that time j. as falr s Respondelnts knewl the ... election was blocked bhs the interve ninl unfair labor practice proceed- ing j:lndJ although faced with the possibility of [an] election IRcspondeintsj lid not knosw when, if ever. it would he held.''" I he situation was the saime regarding the April increase. It. too, ,,as gtven while an "election was blocked bh [ail] intl cellilnig unfair labor practice proceeding." Accordinls. I conclude that. notwithstanding the pen- derinc of the petitions, Respondents did not violate Section 8(O1)( I) of the Act hb raising their emplosees' wages. h1.,l dt1,ilIll ° 1 ,li.Li' 1'7I - the tlrlt l\cl rtalC 11 !L i th I kin plallt. op e ratled bh\ ,c,[i~1di ll 1'tml ,i, '.., illolc IhAii (ti ll IICentl a nd ahno,4 tD percenlt l llt.e Na. _t'Idothc, ttt. hlit.. qp,-i;.eld ),s Res-pondent HIrc ler i tietr 11c [ chrl.l 11 Itrci'Cil IIrI tlurnoler r31e at1 ufkin dirpped toi 3l CLCII' idll oi i1 p1erk i.1 int V. l-it'l ¢l I tlie April ilcrea;' e " as ilvien oi'l] ~ [, t'irl'i\/lqici vilt i }.1 i.ll. .11ith Respotndents nmore tIhan 90 da,,s altt.List' Rcipondll ,cnt, \; I Illntrm icid dulrlm that mnlrl h that one of the r ,mllpc llitms pl/ll ed ,j Il' t ll\ c i ll 1kLc of cnl o CI ,,ees i, n this calegor ' on hik'hl .\ !II th 1 11e, Iok c ] i \ 11 I.gllil Int' r a il d1lal ,ntalgeous compell- Ia [' ',, ( , 'I~; , i, i I tt~~ /,:: l, 1% \ 1Ri l[)j4', n~, i(M t 1'in'i 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Facts Concerning Alleged Violations of Section 8(a)(3) of the Act by Respondent Poultry 16 At all material times, Respondent Poultry t7 has em- ployed one knife sharpener. Among other things, the knife sharpener sharpens knives and scissors used by Respon- dents' production employees. The hand tools used by the knife sharpener for this purpose, which are, apparently, his own property, are carried in pouch attached to a belt worn around his waist. Before the strike 18 in which he participated, Herman Deveroux was Respondents' knife sharpener. Deveroux had earlier performed other duties in Respondent's plant, including cutting chicken necks and unloading chickens. He had also worked in Respondents' cooler. During the strike, Deveroux was permanently replaced as knife sharpener by Leroy Posey. Posey continued to oc- cupy that position at all times since the strike.l9 At the strike's end Deveroux, as did other strikers who unconditionally offered to return to work, signed the reem- ployment list and returned to Respondents' plant the fol- lowing Monday, as requested. At that time, Deveroux was told that his prestrike job of knife sharpener was held by Posey and was offered a job hanging chickens. Deveroux accepted this offer. Although Deveroux had not before then hung chickens, he appears to have been qualified to perform this relatively unskilled work. In this connection, in a pretrial affidavit Deveroux stated that he was capable of doing "such twork] as .... hanging chickens [and] could do about anything" in Respondent's plant. After accepting the chicken hanging job, Deveroux was given boots, gloves, and an apron. Upon being thus outfit- ted, he and several other employees were taken to the hanging pen where they were to work. A short time later, Deveroux told David Fleming. Re- spondent's personnel manager, that during the strike he had hurt his back. In view of this, and in accordance with Respondent's normal procedure respecting injured or ail- ing employees, Fleming directed Deveroux, as Harold An- derson, Respondent's plant manager, who was present, tes- tified, "to get a release from [his] doctor and . . . when he obtained the release [he] would [be] put . . . back to work." A week later, at a time when Respondent was advertis- ing for employees, Deveroux returned to Respondent's 16 The complaint alleges that Respondent Poultry violated Sec. 8(a)(3) of the Act by "faillingl and refuslingl . . to reinstate Iltermain t)eierouxl to [his] former or substantially equivalent [posltion] of eniploy ment although Respondent Poultry had openings in said positionl." All subsequent reerences to "Respondent" n this. and the following. section of this Decision relate io Respondent Poultr) IN Briefly recapitulating my findings concerning this matter, an economic strike against Respondent started on November 4, 1975. and ended on Oc- tober 20, 1976, at which time strikers who unconditionally offered to return to work were requested by Respondent to sign a reemployment list. and to report for work the following Monday. | Notwithstanding that Respondent employed a person exclusivels to sharpen knives and scissors, some production emplovees sharpened their own cutting implements and, on occasion. those of other employees. I he General Counsel does not contend that employees who did so before or after the strike were employed as "knife sharpeners."20 Exh. C 1. plant carrying his knife sharpening tools, and presented his physicians release to Fleming and Robert Ferro, Respon- dents' processing director. Deveroux was told that his pre- strike knife sharpening job was still filled, but that he could have another job. Deveroux rejected this offer stating that "the only thing he wanted to do was knife sharpening." Deveroux then left Respondent's plant and Respondent did not again hear from him.2' On April 28, 1977, Respondent, being in need of employ- ees, sent Deveroux a letter.22 by certified mail, once more offering him a job in its plant. Deveroux was informed in this letter that although his "old job of knife sharpener" was still unavailable, there were job "openings in all de- partments within the processing plant." The letter further stated that if Deveroux was "desirous of employment . . . he [should] contact [Respondent's director of industrial re- lations] not later than . . . May 4, 1977." Deveroux was not at home when the first attempt to deliver the letter to him was made. Accordingly, a notice was placed in his mailbox advising him that the letter had been returned to the post office and that he could obtain it there. Deveroux not having done so by May 3, a second unsuccessful attempt at delivering the letter to him at his home was made and, again, a notice similar to the first was left for him. The letter was finally delivered to Deveroux on May 5. However, Deveroux did not make any effort to "contact" Respondent's director of industrial relations. As Deveroux testified, in this regard, he "just didn't see any sense in contacting [Respondent] after the [May 4] deadline [, nor :t My findings as to what occurred on this occasion are based upon, and the quotation appearing In the text is taken from, testimony given b) Ferro. ,xho. unlike L)eeroux, impressed me as being a forthright witness. Dever- u.ux admilled that when he returned with the release he was carrying his knife sharpening tools. Hl ever. as to what was said at the time. Deveroux unpersuasively testified that the person to whom he gave the release told him that Respondent had no jobs open at the time; that "everything has been filled": and that respondent had "no place to pub [him] to work." I do not credit Deveroux' version of what transpired on this occasion. Initially. it is unlikely that at a time when Respondent was advertising for emnplnyees it would refuse a job to Deveroux. whose strike activity did not differ materialls front other strikers who were reinstated Secondly. and aside from l)eseroux' failure to impress me as a forthright witness, the unirehabilits of his testimonv was demonstrated by his inability to recall those events a person in his position would be expected to remember. I hus. Descroux was unable to remember the dates of his employment by respondent his exact rate of pay as a knife sharpener. the date on which the strike ended. the montlh in which he signed the reemployment list. or the dlate on which he received a written offer of employment from respondent. which will he discussed In the following paragraphs of the text. Further- miore. although [)everoux testified that on a Sunday after the strike ended lihe received a telephone call front a man named Ward. whom he "assumed" was a foreman. directing him to rceport for work the next day. he could not iemember the mionth in which this occurred. In addition. throughout his testimony Deveroux was unable to recall the names of Respondent's offi- cials, except Ward, with whom he testified he had had conversations con- cerning his reemployment after the strike. Moreover, regarding the release itself. Deveroux at first stated he gave it to Ward In his sery next breath he said he gave it to Anderson. Respon- dent's plant manager Finally, he testified that he couldn't "remember ex- i.ctly" to whom he gave the release. Accoldinlgly, I conclude that Deveroux's testimony as to what occurred ahen he returned .to Respondenl's plint with the release was either outright- Is untruthful or the product of an extremely unretentive memory and, there- fore. not entitled lto credence (: ( i 1xh 2 254 POULTRY PACKERS. INC. did he] make any attempts ... to explain to [Respondent] that he had gotten [the letter] later." D. Contentions and Concluding Findings Concerning Alleged Violations of Section 8(a)(3) of the Act hv Respondent Pouhrv The General Counsel contends that by not reemploying Deveroux pursuant to his unconditional offer to return to work at the end of the strike, Respondent violated Section 8(a)(3) of the Act. Respondent takes issue with the General C(ounsel on al- ternative grounds, either one of which, it asserts. estab- lishes that it did not incur liability under Section 8(a)(3) of the Act by not reemploying Deveroux after the strike. It first argues that inasmuch as the knife sharpening job held by Deveroux before the strike was, during the strike, filled by a permanent replacement it had no duty to offer him any employment after the strike ended. Respondent's sec- ond exculpatory argument is that if it was obligated to offer Deveroux a different job upon the termination of the strike, it complied with that obligation by offering him such employment which he, ultimately, refused. I find mer- it in Respondent's second position. Concerning the validity of Respondents' second conten- tion, the starting point for analysis is the Supreme Court's decision in N.L.R.B. v. Fleetwood Trailer Comparn. Inc.. 389 U.S. 375, 379. 381 (1967). There the Court, quoting in part from its prior decision in N.L.R.B. s. Great Dane Trailers, 388 U.S. 26, 34 (1967), noted that "in some situa- tions 'legitimate and substantial business justifications' for refusing to reinstate employees who engaged in an eco- nomic strike have been recognized i, one such being] when the jobs claimed by the strikers are occupied bh workers hired as permanent replacements during the strike." In that event, the Court went on to say. "if and when a job for which [a] striker is qualified becomes available. he is enti- tled to an offer of reinstatement." Fleetwood was followed by The Laidlaw Corporation, 171 NLRB 1366, 1369 70 (1968). enfd. 414 F.2d 99 (C.A. 7. 1968), in which the Board held that "economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements are entitled to full reinstatement upon the departure of re- placements." The Board's decision in Laidlaw evolved from the Supreme Court's decision in Fleetwood. How- ever, the Board, in Laidlaw, omitted from its holding the statement appearing in Fleet'ood that a returning econom- ic striker whose job was permanently filled during the strike "is entitled to an offer of reinstatement" to "a job for which [he] is qualified" when such a position "becomes available." This omission was, apparently, inadvertent, for in Brooks Research & Manufacturing, Inc., 202 NLRB 634, 636 (1973), the Board commented that "in Laidlaw [it] ap- plied Fleetwlood to hold that economic strikers who uncon- ditionally apply for reinstatement when their positions are filled by permanent replacements are entitled to full rein- statement upon departure of replacements or when jobs for which they are qualified become available." The Board recently reaffirmed this position. In Alumi- num Cruisers, Inc., 234 NLRB 1027 (1978), it was stated that "under Supreme Court and Board doctrine [an em- ployer's] reinstatement obligation to [economic] strikers [includes] reinstatement to positions which the strikers [are] qualified to fill." It appears. therefore. that Respondent was justified in not reinstating Deveroux to the job of knife sharpener, held bs him before the strike, as during the strike that posi- tion was filled h, a permanent replacement. However, this did not terminate Respondent's obligation to Deveroux. Notwithstanding that [)everoux was not entitled to be reemployed as knife sharpener. Respondent was obligated, as the foregoing authorities make clear, to offer him em- ploniment in some other asailable capacity, provided he was qualified to perform such other work. The evidence establishes that respondent complied with this obligation. Immediately after the strike. Respondent offered Deveroux a job hanging chickens, which was then open and for which I)exeroux was qualified. Deveroux at first accepted this offer. But, a week later, upon returning to Respondent's plant with the physician's release Respon- dent requested him to obtain because he had hurt his back during the strike, he rejected it, as well as other emploj- ment offered him, informing Respondent. as I have found., that he would work only as knife sharpener. Some months later, Respondent sent Deveroux a letter informing him that although the job of knife sharpener was still not available. other jobs which he could have were open. Hiov ever. as a result of events not attributable to Respondent, I)eseroux neglected to respond to this offer. It appears, therefore, that on several occasions after the strike. Respondent offered f)everoux jobs for which he was qualified. In this manner. Respondent complied with the requirement of offering a returning economic striker em- plosment for which he is qualified when the job he held before the strike was filled during the strike bx a perma- nent replacenment. Accordingly. I conclude that Respondent PoultrN did not violate Section 8(a)(3) of the Act be not reemplosing Deveroux after the strike. Having already concluded that Respondents did not ico-- late Section 8(a)(1) of the Act by raising their emploxees' wages during the pendency of election petitions. m' order will provide for the dismissal of the complaint. which does not allege the commission by either Respondent of an, other unfair labor practices. (ON( iLt sioNS OF LAW 1. Respondents are employers within the meaning of Section 2(2) of the Act and are engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Sect. 3. Respondents did not violate Section 8(a)( I of the Act by raising their emplosees' wages during the pendency of election petitions. 4. Respondent Poultrs Packers. Inc., did not violate Sec- 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a)(3) or (1) of the Act by not reemploying Herman Deveroux after the termination of an economic strike against it in which Deveroux participated. Upon the foregoing findings of fact, conclusions ef law, and upon the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following: :' In the eenlt not) exceptions ire filed is proided in Sct, n 1i()2 4( i the Rules and Regulations of the N i onal ab I hr Relatons Bioard. Ihe filndigs,, ORDER 23 It is ordered that the complaint be, and the same hereby is, dismissed. conclusiones. and Order herein shall. As provided in Seolelol 112 48 of the Rules alnd Regulltiltn hc adopiled hs Ihe Board and hecome its findings. cnclusn,ill, and Order. and all bhiectilons thereto shall he deemed waived hit all purpoes 256 Copy with citationCopy as parenthetical citation