Radio Electric Service Co.

National Labor Relations Board - Board Decisions

Feb 12, 1986

278 N.L.R.B. 531 (N.L.R.B. 1986)

RADIO ELECTRIC SERVICE CO. 531
Radio Electric Service Company and Teamsters
Local 115, affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America. Cases 4-CA-10729
and 4-CA-11326
12 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 16 August 1982 Administrative Law Judge
James T. Youngblood 'issued the attached decision.
The Respondent, the Charging Party, and the Gen-
eral Counsel filed exceptions and supporting briefs.
The General Counsel also filed a brief in opposi-
tion 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 only to the extent consistent with this
Decision and Order.
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) of the Act when it
unilaterally discontinued its longstanding practice
of granting unit employees a Christmas bonus.' We
also agree with his finding that the strike engaged
in by unit employees was motivated, in part, by the
Respondent's refusal to grant them their Christmas
bonus and that the strike was, therefore, an unfair
labor practice strike. We do not, however, agree
with the judge's finding that the Respondent did
not unlawfully refuse to reinstate the four unfair
labor practice strikers who unconditionally offered
to return to work after the' strike.
On 29 January 19802 the Respondent's unit em
ployees3 began an unfair 'labor practice strike be-
cause of the Respondent's refusal to grant them
their Christmas bonus.4 On .5 April the Respondent
i We deem it unnecessary to determine whether the failure to pay the
Christmas bonus also violates Sec 8(a)(3) of the Act, as found by the
judge, because such a finding would not affect the remedy herein.
I All dates are in 1980'unless otherwise indicated In the "Discussion
and Conclusions" section of his decision, the judge inadvertently states
that the strike began on 29 June The record clearly establishes, and the
judge correctly notes elsewhere in his decision , that the strike in fact
commenced on 29 January.
s The bargaining unit was composed of all of the Respondent's ware-
house employees When the strike began, the unit contained only four
employees. W. Levin, J. McLaverty, J. Qumn, and W. Wahoup
4 While noting that the Respondent 's practice of granting its unit em-
ployees a Christmas bonus extended from 1961 to 1978, a period of ap-
proximately 18 years, elsewhere in his decision the judge inadvertently
states that the practice had been -going on for "almost 30 years." The
judge's inadvertent error has no bearing on our findings herein
278 NLRB No. 78
executed an informal settlement agreement in Case
4-CA-10729 in which it agreed to pay the unit em-
ployees their Christmas bonus and to reinstate the
striking employees to their former, or substantially
equivalent,- jobs upon their unconditional offers to
return to work. The settlement agreement was
thereafter signed by the Union on 22 July and ap-'
proved by the Regional Director on' 28 July.
On 22 July the striking employees, through their
Union, unconditionally offered to return to work.
In reply, the Respondent sent the Union a letter
dated 31 July which in -relevant part reads as fol-
lows-As a result of the strike, it became necessary
to effect various emergency changes in the
Company's operating mode, which changes,
because of economic factors, have since been
made permanent. Because of these changes in
the manner and methods of receiving, ware-
housing , and distributing goods, the work op-
portunities in those functions have been very
drastically diminished. There exists also sub-
stantial questions that arise from the reduced
need in the number of employees in the receiv-
ing and warehouse section, as a result of
which, there is open the matter of -the order of
recall and/or preferential hiring. While one or
two of the -employees who have unconditional-
ly offered to return to work, and other em-
ployees who ostensibly may not have partici-
pated in the strike, and/or who are on lay-off,
have top calendral seniority, one or more of
the junior employees have superseniority as a
result only, of the -expired collective bargain-
ing agreement . Moreover, the entitlement and
sequence of recall and/or preferential hiring is
further complicated by the fact that only one,
or possibly, two of the employees offering to
return to work, and others, have adequate abil-
ity to fulfill the necessary work duties of the
employment that may be presently available.
Only because of the inadmissability of unilater-
ally resolving these important questions, we
propose that the foregoing and all other mat-
ters relating to recall and preferential hiring
questions be considered and negotiated as soon
as possible so that the Company may treat the
various offers to return to work according to
law and economic needs of the Company. So
that the issues of recall and preferential hiring
may be expeditiously determined, your early
attention to this matter, is requested.
The Union did not respond to the Respondent's
letter. Instead, it filed the charge in Case 4-CA-
11326 on 14 August alleging that the Respondent
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was unlawfully refusing to reinstate the four unfair
labor practice strikers. On 1 July 1981 the Regional
Director set aside the settlement agreement in Case
4-CA-10729 and, on 6 July 1981, he issued the
consolidated complaint in this proceeding.
The Respondent, in its answer to the complaint,
contends that during the 3-1/2-month period be-
tween 5 April, when it signed the settlement agree-
ment, and 22 July, when the agreement was signed
by the Union, it was forced by the strike's continu-
ance to make drastic changes in its mode of oper-
ation which, for economic reasons, had been made
permanent. It claims that these alleged changes re-
sulted in "a sharp reduction in personnel in ware-
house and related operations" and that, as a conse-
quence thereof, it no longer had any need for the
services of the strikers.
The judge apparently agreed with the Respond-
ent's contention. He found that due to the purport-
ed changes made by the Respondent in its business
operations, the jobs previously held by the strikers
had been absorbed by the Respondent's other em-
ployees and that, consequently, no jobs existed to
which the strikers could return. The judge's finding
in this regard is unsupported by the record.
It is well settled that when an employer raises
the unavailability of jobs as an affirmative defense
to a charge of unlawfully refusing to reinstate
unfair labor practice strikers, it bears the burden of
establishing that defense.5 The Respondent has not
met its burden in this case. Thus, it presented no
evidence to indicate how the continuation of the
strike beyond 5 April had so adversely affected its
operations as to have warranted the total elimina-
tion of all bargaining unit work. Nor was any evi-
dence presented by the Respondent to show the
nature or the extent of the "emergency changes" it
purportedly implemented after 5 April. Finally, de-
spite its claim in its answer that the changes it im-
plemented after 5 April resulted in a reduction in
personnel in warehouse and "related operations,"
there is nothing in the record to suggest that em-
ployees, other than those who were on strike, were
laid off, discharged, or otherwise affected by the
purported changes. The Respondent's bare asser-
tion that these changes occurred, and that a reduc-
tion in personnel ensued because of these changes,
is, in itself, insufficient to satisfy the Respondent's
burden in this case. 6
The Respondent did present evidence which
showed that its operations had been gradually
changing for a period of more than 5 years prior to
the onset of the strike. However, that evidence is
clearly irrelevant here because it is the Respond-
Burns Motor Freight, 250 NLRB 276, 279 (1980)
e Atlas Metal Parts Co., 252 NLRB 205, 225-226 (1980)
ent's assertion, as noted in its 31 July letter to the
Union, 7 that it was the "emergency changes" im-
plemented "as a result of the strike" which "drasti-
cally diminished" work opportunities for the strik-
ers and that these changes, as more specifically as-
serted in its answer, occurred after 5 April. As
noted, the Respondent has produced no evidence
in support of its assertions. In fact, the Respond-
ent's claim that there was a decrease in the amount
of work available after 5 April is refuted by docu-
mentary evidence in the record which shows that
during the period in question the Respondent's
sales volume remained fairly constant.
Finally, it is clear that the work previously per-
formed by the strikers has not been abolished be-
cause, by the Respondent's own admission, that
work has been reassigned to, and is presently being
performed by, nonbargaining unit employees.
Other than its unsupported claim that the strike
forced it to undergo emergency changes in its
mode of operation, the Respondent offered no jus-
tification for having reassigned the work previous-
ly performed by the strikers to its other employ-
ees." In these circumstances, the employees as-
signed to perform the work previously performed
by the unfair labor practice strikers were, in effect,
striker replacements. The Respondent therefore
was obligated to remove the replacements, if neces-
sary, to make jobs available for the four strikers
upon their unconditional offer to return to.work.9
By failing to do so, the Respondent has discrimi-
nated against its striking employees because of their
union and protected concerted activities in viola-
tion of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
' The judge found that the Respondent's 31 July letter did not consti-
tute a denial of reinstatement - to the strikers. Rather, he found that the
letter merely notified the Union that while some jobs "may be presently
available," it was unclear which employees would be entitled to those
jobs and that the Respondent wished to negotiate that issue with the
Union. The Board has held , however, that for a reinstatement offer to be
valid and toll backpay, it must be specific, unequivocal , and uncondition-
al, See Pace Motor Lines, 260 NLRB 1395 fn. 2 (1982), and cases cited
The Respondent's letter does not meet those requirements . Thus, in its
letter the Respondent does not offer to reinstate the strikers to specific
jobs, but rather states only that some jobs may be available . Further, the
letter not only questions the ability of the strikers to perform the jobs
that are available , but also implies that the strikers would have to com-
pete with laid-off employees for those positions. Finally, rather than of-
fering to reinstate the strikers , the Respondent in its letter requests nego-
tiations with the Union over the reinstatement rights of the strikers and
other employees . Under these circumstances , the Respondent's 31 July
letter cannot be construed as a valid offer of reinstatement.
8 Indeed, the Respondent did not offer to explain why, if the strikers'
jobs were no longer available after 5 April when it signed the agreement,
it made no effort to apprise the strikers or the Union of that fact until 4
months later when the strikers unconditionally offered to return to work.
Mosher Steel Co., 226 NLRB 1163, 1164 (1976).
RADIO ELECTRIC SERVICE CO. 533
tion 8(a)(5), (3), and (1) of the Act, we shall order
that it cease and desist from engaging in such con-
duct and from, in any like or related manner, in-
fringing upon its employees' Section 7 rights. The
Respondent shall also be required to offer employ-
ees W. Levin, J. McLaverty, J. Quinn,'° and W.
Wahoup immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and
privileges previously enjoyed, and to make them
whole for any loss of earnings they may have suf-
fered as a result of the discrimination against
them."' The discriminatees shall be entitled to
backpay, with interest, from the date they uncondi-
tionally offered to return to work on 22 July 1980
until such time as the Respondent makes them a
valid offer of reinstatement. 12 The backpay, with
interest, shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651
(1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Radio Electric Service Company,
Pennsauken, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Teamsters Local
115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by re-
fusing to reinstate unfair labor practice strikers
upon their unconditional offers to return to work,
and otherwise discriminating against employees
with regard to their hire, tenure, or other terms
and conditions of employment.
(b) Changing any working conditions of its em-
ployees without bargaining with the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
10 During the bearing and in its brief to the judge , the Respondent
stated that employee Quinn was deceased and that, consequently, any re-
instatement order regarding Quinn would be inappropriate . As we have
no basis for determining the validity of the Respondent 's claim , we leave
to the compliance stage of this proceeding the final resolution of Quinn's
remedial rights.
i i The record reveals that the Respondent has paid the Christmas
bonus. Consequently , no make-whole remedy is needed in this regard.
12 In view of the Respondent's unlawful rejection of the strikers' un-
conditional offer to return to work, the 5-day period during which back-
pay is tolled, usually granted to respondents in situations where no un-
conditional offer has been made, is inapplicable. See Drug Package Co.,
228 NLRB 108, 114 (1977), Newport News Shipbuilding, 236 NLRB 1637,
1638 (1978).
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer employees W. Levin, J. McLaverty, J.
Quinn, and W. Wahoup immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them whole for any loss of pay they may have suf-
fered as a result of the Respondent's failure to rein-
state them following their unconditional offers to
return to work in the manner set forth in the
remedy section of this decision.
(b) Post at its Pennsauken, New Jersey facility
copies of the attached notice marked "Appen-
dix." 13 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
13 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-
alLabor 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 "
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.
WE WILL NOT discourage ' membership in Team-
sters Local 115, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organi-
zation, by refusing to reinstate unfair labor practice
strikers following their unconditional offers to
return to work, or otherwise, discriminating against
our employees with regard to their hire, tenure, or
other terms and conditions of employment.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT change any working conditions of
our employees without bargaining with the above-
named Union.
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 offer employees W. Levin, J. McLa-
verty, J. Quinn, and W. Wahoup immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
RADIO ELECTRIC SERVICE COMPANY
Charles S. Stricker, Esq., for the General Counsel.
L Herbert Rothenberg, Esq., and Marc Furman, Esq., of
Elkins Park, Pennsylvania, for the Respondent.
Norton Brainard III, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
This case was tried before me on April 12 and 13, 1982,
in Philadelphia, Pennsylvania, pursuant to a consolidated
complaint which issued on July 6, 1981, alleging that
Radio Electric Service Company (the Respondent or
Resco) engaged in violations of Section 8(a)(1), (3), and
(5) of the Act. On July 14, 1981, the Respondent filed an
answer to the consolidated complaint admitting certain
allegations but denying the commission of any unfair
labor practices. Briefs were filed by all parties and they
have been duly considered.
On the entire record, and from my observations and
the demeanor of each witness while testifying, and the
briefs filed herein, I make the following
FINDINGS AND CONCLUSIONS'
1. THE BUSINESS OF THE RESPONDENT
At all times material herein the Respondent has been
engaged as a distributor of electronic equipment and
1 The facts found herein are a compilation of the credited , testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and inherent probability . Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible , lacking in probative
weight, surplusage , or irrelevant. Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired I will set forth specific credibility findings.
components at its Pennsauken, New Jersey facility. The
Respondent admits, and I find, that at all times material
herein it has been an employer engaged in commerce
within the meaning of Section-2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges, the Respondent
admits, and I find that Teamsters Local 115, affiliated
with International Brotherhood of Teamsters Chauffeurs,
Warehousemen and Helpers of America (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union and the Respondent have been parties to a
series of collective-bargaining agreements covering the
Respondent's warehouse employees2 for a period of ap-
proximately 20 years. The most recent agreement was ef-
fective from November 5, 1976, to November 4, 1979.
The record reflects that at one point there were approxi-
mately 30 employees in the bargaining unit. It also ap-
pears that in 1976 the Respondent reduced its comple-
ment of employees to around six. Sometime around No-
vember 1976, in exchange for the withdrawal of an arbi-
tration proceeding the Respondent agreed with the
Union that it would not lay off its six employees so long
as its industrial operations at Pennsauken, New Jersey,
continued in operations.3 This record reflects that from
about 1961 to 1978 the Respondent paid its warehouse
employees an annual bonus about the first or second
week of December in each year.
In the late October 1979, the Union and the Respond-
ent began negotiations for a new collective-bargaining
agreement to replace the agreement which would expire
on November 4, 1979. Prior to the actual negotiations
the bargaining unit employees met with the Union and
discussed the recommended contract- proposals for the
1979 negotiations. At that meeting it' appears that the
bargaining unit employees voted to approve the recom-
mended proposals as read and they also voted to give
the bargaining committee the authority to strike if neces-
sary to secure these proposals . The first bargaining ses-
sions took place on October 23, 1979. It was held at the
union hall with Marty Grossman and Paul Robinson
present for the Respondent. The Union was represented
by James Smith and Richard Davis. At this meeting the
Union presented its proposals. According to Smith,
Grossman and Robinson asked for a chance to review
the union proposals, and stated that they had one major
proposal and that was to get rid of the six-man guarantee
2 The appropriate unit consists of:
All persons employed by Respondent at its warehouse located at
Airport Industrial Park Pennsauken , New Jersey, including all work-
ing foremen, shippers, receivers, general utility men, stockmen, ware-
house leadmen, leadmen and counter salesmen, but excluding all
other employees, guards and supervisors as defined in the Act.
On January 18, 1980, the Respondent laid off John Coffey and
Joseph Frantanduono , two of its six employees . Unfair , labor practice
charges were filed over the layoff of these employees , but on March 25,
1980, the charges were dismissed for lack of merit and on May 30, 1980,
this dismissal was sustained on appeal to the General Counsel.
RADIO ELECTRIC SERVICE CO.
that they had for the bargaining unit. According to
Smith there was no mention by the Company's repre-
sentatives of the Christmas bonus. Grossman agreed that
the first meeting was simply a presentation of proposals
and that the Respondent brought up the issue of the
guaranteed six-man work force, and was prepared to
bring up other issues but they just did not get that far.
He testified that the minute that the guaranteed six-man
workweek was mentioned he was advised that John
Morris, the business manager of the Union , would not go
for that and the meeting broke up shortly thereafter.
The next meeting was held on October 29, 1979. John
Morris attended this meeting. According to Smith,
Grossman asked John Morris if he had been informed of
the Respondent 's proposal to eliminate the six-man guar-
antee. Morris replied yes and stated that the Union was
against eliminating the six-man guarantee . This was es-
sentially the entire meeting. According to Grossman the
Respondent brought up the six -man guarantee, and also
advised that Respondent would negotiate over other
items including the Christmas bonus. According to
Grossman, John Morris commented that "that is a strike
issue" and he picked himself up and he walked out of the
room. There were no negotiations over any issue.
The next bargaining session was held on December 12,
1979. At this session, Smith, Morris, Ed Grey, Gerry
Sheahan, Jim Oliver, Joe McLaverty, and John Quinn
were present for the Union. Grossman and Robinson
represented the Respondent. According to Smith, the
Respondent insisted on eliminating the six-man guaran-
tee. Smith stated that there was no discussion of the
Christmas bonus at this session . According to Grossman,
they immediately discussed the six-man work force and
Morris indicated that was a strike issue, and told the Re-
spondent that if the Union went on strike it would strike
until they put Respondent out of business. According to
Grossman that as far as the bonus was concerned there
was just a casual comment by Morris that they would
get that anyway. That was the entire discussion at this
meeting.
The next meeting was held on January 10, 1980. At
this meeting Morris asked Grossman why the men had
not received their Christmas bonus. According to
Morris, Grossman replied, "[W]e don't have that con-
tract anymore." According to the Union the master
freight agreement settlement was discussed , along with
the elimination of the six-man guarantee . Grossman testi-
fied that prior to the January 10, 1980 meeting he had a
telephone conversation with Morris , in which he was
told that if the Respondent was not prepared to accept
all the Union's proposals not to bother coming to the
meeting. Grossman said that he thought they still should
negotiate ; that there were issues on both sides and it was
important that they meet. Grossman said that Morris de-
manded that the Respondent pay the Christmas bonus.
The Union would not budge on the six-man unit regard-
less of whether there was work for six employees or not.
Grossman testified that he explained why they could not
renew the six-man guarantee. On the day following, the
Respondent sent the layoff notice to two employees,
Coffey, and Frantanduono.
535
On January 27, 1980, there was a general membership
meeting of the Union at the Lincoln High School in
Philadelphia, Pennsylvania . At that meeting Morris
issued a report on all the occurrences that were going on
in the various shops , including the negotiations that were
in progress with Resco. He informed the membership
that he had filed unfair labor practice charges on behalf
of the Resco employees because they did not receive
their Christmas bonus, and that the Union was planning
to file unfair labor practice charges against the Respond-
ent because it laid off two employees . After the general
membership meeting there was a meeting with the Resco
employees . Morris reviewed the status of the negotia-
tions, and the fact that it had filed unfair labor practice
charges over the Christmas bonus. And advised that it
was going to file unfair labor practice charges on behalf
of the two employees who were laid off. According to
the Union there was a discussion of striking Resco, with
Morris recommending striking the Respondent because
of its refusal to pay the Christmas bonus , and based on
the additional charges it was going to file because of the
layoff of the two employees , in violation of the six-man
agreement . The members concurred and it was agreed
that on the following Tuesday, which would be January
29, 1980, picket lines would be set up . On Tuesday there
was a strike called.
This strike and picketing continued and on July 22,
1980, the Union made an unconditional offer to return all
the striking employees to their former positions of em-
ployment. On July 31, 1980, Resco responded by letter
informing the Union that as a result of the strike it
became necessary to effect various changes in the Com-
pany's operating mode, which changes have now
become permanent . As a result of these changes work
opportunities have been drastically diminished . Addition-
ally, the Respondent indicated that it might have room
for only a few employees and that because of supersen-
iority for union stewards who might be junior employees
and not qualified to perform the work available, and that
it was more or less in a quandary about which employees
to recall . In this regard it requested that these issues re-
lating to recall and preferential hiring be considered and
negotiated as soon as possible, and requested the Union's
early attention to these matters. The letter ended by noti-
fying the Union that Resco was prepared to resume ne-
gotiations on all proposals made by the Union and
Resco.
In response to Respondent 's letter the Union filed ad-
ditional unfair labor practice charges alleging that the
Respondent refused to rehire the striking employees and
that this was an unfair labor practice in violation of Sec-
tion 8(a)(1) and (3) of the Act.
At the time of the hearing none of the four striking
employees had been reinstated , and none of the four
striking employees had been replaced by Resco. By the
time of the hearing it was the Respondent 's position that
it no longer needed the services of any of the striking
employees.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Conclusions
The complaint alleges and the General Counsel argues
that by the discontinuance of the Christmas bonus with-
out bargaining with the Union the Respondent has uni-
laterally changed working conditions in violation of Sec-
tion 8(a)(1), (3), and (5) of the Act. Additionally, the
complaint alleges and the General Counsel argues that
the employees who went on strike on January 29, 1980,
were unfair labor practice strikers , and the Respondent's
failure to reinstate them on and after July 22, 1980, when
they made an unconditional offer to return to work was
a violation of Section 8(a)(3) and (1) of the Act.
This record clearly reflects that for almost 30 years
Resco paid an annual Christmas bonus which was a con-
dition of employment, and I so find. The Respondent
does not appear to question this fact, but argues that it
bargained to impasse about the discontinuance of this
bonus during the bargaining negotiations and therefore
its change of that condition of employment was not a
violation of the Act.
If the facts were as alleged by the Respondent it is
clear under Board and court law that the Respondent
would not have violated the Act. However, while there
may have been some mention of the annual Christmas
bonus during the bargaining negotiations there certainly
was little, if any bargaining , and certainly such bargain-
ing was insufficient to conclude that the parties bar-
gained to impasse on the issue of discontinuance of the
Christmas bonus. Therefore, it is my conclusion that
there was no bargaining on the bonus issue and the Re-
spondent 's unilateral discontinuance and failure to pay
the Christmas bonus was a clear violation of Section
8(a)(5) and (1) of the Act, and I so find.4 As this action
on the part of the Respondent certainly discourages
membership in the Union, I find that this also constitutes
a violation of Section 8(a)(3) of the Act.
As indicated the complaint alleges and the General
Counsel contends that the strike which began on January
29, 1980, was an unfair labor practice strike and the Re-
spondent's failure to reinstate the employees on their un-
conditional offer to return to work on July 31, 1980, was
violative of Section 8(a)(3) and (1) of the Act.
On January 27, 1980, the Union held a general mem-
bership meeting at which the negotiations with the Re-
spondent and its pending unfair labor practice charge
against the Respondent was discussed. After the meeting,
union officials met with the bargaining unit employees of
the Respondent at which time the pending unfair labor
practices on the failure to pay the Christmas bonus was
again discussed. Representative Morris recommended
that there be a strike and the employees concurred. Busi-
ness Agent Oliver credibly testified that he was instruct-
ed by John P. Morris, secretary-treasurer and business
manager of the Union, to prepare picket signs for use on
the picket line during the strike which was to begin on
January 29, 1980. Oliver testified that the signs were to
specify that the stike was an unfair labor practice stike
and it was admitted that the picket signs carried by the
striking employees stated that the strike was an unfair
4 As the Respondent has paid the Christmas bonus to the bargaining
unit employees there is no need for a remedy in this regard
labor practice strike. Several of the employees testified
that at the meetings prior to the strike the fact that they
did not receive their normal Christmas bonus was dis-
cussed and this was one of the reasons for the strike. As
I have concluded that the failure to pay the Christmas
bonus was an unfair labor practice and that this was one
of the reaons for the strike and the Union clearly indicat-
ed on its picket signs that the strike was an unfair labor
practice strike, it is my conclusion that the strike which
began on June 29, 1980 , was an unfair labor practice
strike which was caused in whole or in part by the Em-
ployer's failure to pay the Christmas bonus in December
1979, as it had in past years. See Rockingham Machine-
Lunex Co., 255 NLRB 346 (1981), enfd. 665 F.2d 303
(8th Cir. 1981).
On March 31, 1980, the Regional Director for Region
4 issued a complaint against Resco based on the charges
filed by the Union in Case 4-CA-10729 alleging that the
refusal to pay the Christmas bonus in December 1979
was a violation of Section 8(a)(3), (5), and (1) of the Act.
On April 3, 1980, 3 days after the issuance of the com-
plaint, the Respondent signed a settlement agreement
agreeing to pay the Christmas bonus to the six bargain-
ing unit employees, and agreeing also to offer reinstate-
ment to the striking employees on their unconditional ap-
plication for reinstatement. On July 22 and 28, 1980, the
Union and the Regional Director respectively approved
this settlement agreement.5
Around July 22, 1980, the Union made an uncondition-
al offer to return the striking employees to work. By
letter dated July 31, 1980, Resco informed the Union
that it had received the unconditional application for re-
instatement for the four striking employees and advised
the Union that work opportunities had been drastically
reduced. Additionally, because of the questions relating
to preference of hiring and the ability to perform the
jobs available, the Respondent proposed, "that the fore-
going and all other matters relating to recall and prefer-
ential hiring questions be considered and negotiated as
soon as possible so that the Company may treat the vari-
ous offers to return to work according to law and the
economic needs of the Company." Resco also informed
the Union that it was prepared to resume negotiations on
all proposals by the Union along with all proposals made
by the Company in the prior contract negotiations.
In response to the Respondent's letter of July 31, 1980,
the Union filed additional charges against Resco on
August 14, 1980, alleging that the failure to reinstate the
employees as required by the settlement agreement was a
violation of Section 8(a)(1) and (3) of the Act.
On July 1, 1981, almost 1 year later, the Regional Di-
rector notified Resco that it was issuing a complaint, and
revoking and setting aside the prior settlement agree-
ment. On July 6, 1981, the Regional Director issued the
current consolidated complaint.
An unfair labor practice striker is entitled to reinstate-
ment on his application for reinstatement. An employer's
5 There is no explanation as to why it took the Union and the Regional
Director almost 4 months to approve their own settlement agreement. In
any event, sometime during this period the Respondent paid the Christ-
mas bonuses
RADIO ELECTRIC SERVICE CO.
refusal to reinstate under these circumstances violates
Section 8(a)(3) and (1) of the Act. Here we have four
unfair labor practice strikers who applied for reinstate-
ment . If Resco refused reinstatement at a time when it
had jobs available, Resco violated Section 8(a)(3) of the
Act.
I do not regard Resco's response to the Union on July
31, 1980, as a refusal to reinstate. In plain language the
Respondent informed the Union that it had some jobs
available but entitlement to those jobs was questionable
and it requested the Union to meet, consider, and negoti-
ate these issues as soon as possible so that the Respond-
ent could comply with the law. The Union did not re-
spond, but it did file additional unfair labor practice
charges. Under these circumstances , I do not regard this
action of Resco as a refusal to reinstatement.
This record reflects that since the January 29, '1980
strike by the then four bargaining unit employees, the
Respondent had not hired any employees to replace the
striking employees or to perform the services that were
previously performed by these striking employees.
Rather, the work has been absorbed by other employees
of the Respondent, and presently there is no need to re-
instate or rehire the striking employees. It is the Employ-
er's position that it no longer needs any of the bargaining
unit personnel. This record reflects that the bargaining
unit work had not been transferred out of the plant and
is not being performed by any new employee. Although
the Respondent indicated in July 1980 that it might need
the services of several employees, the Union's failure to
meet with the Respondent foreclosed any possibility of
knowing the Respondent's specific needs at that time.
Under these circumstances , it is my conclusion that
Resco did not refuse to reinstate the striking employees
in July 1980. Additionally, from the record herein the
Respondent had not replaced any of these employees and
it would appear that their jobs have been absorbed
within the Respondent's present work force and there no
longer exists any jobs for the four striking employees.6
Therefore, I cannot find that the Respondent had violat-
ed Section 8(a)(3) and (1) of the Act in this regard.
Therefore, I shall recommend dismissal of this aspect of
the complaint.
6 See Rogers Furniture Sales, 213 NLRB 834 (1974)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
537
The activities of the Respondent set forth above, oc-
curring in connection with the Respondent 's operations,
have a close, intimate , and substantial relationship to
trade, traffic, and commerce on the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
On the basis of the foregoing findings of fact and the
entire record , I make the following
CONCLUSIONS OF LAW
1. Radio Electric Service Company, the Respondent,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Teamsters Local 115, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. All persons employed by the Respondent at its
warehouse located at Airport Industrial Park Pennsau-
ken, New Jersey, including all working foremen, ship-
pers, receivers , general utility men, stockmen , warehouse
leadmen , leadmen and counter salesmen, but excluding
all other employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purpose of
collective bargaining within'the meaning of Section 9(b)
of the Act.
4. By unilaterally and without notice to or bargaining
with the Union, changing working conditions by discon-
tinuing the established policy of granting Christmas bo-
nuses to the employees in the unit found appropriate, the
Respondent has engaged in conduct violative of Section
8(a)(5) and (1) of the Act.
5. By discontinuing the established policy of granting
Christmas bonuses to its employees the Respondent had
changed working conditions and had discriminated in
regard to the hire or tenure or conditions of employment
of its employees , discouraging membership in a labor or-
ganization in violation of Section 8(a)(3) and (1) of the
Act.
6. The Respondent had not otherwise engaged in con-
duct violative of Section 8(a)(3) and (1) of the Act.
The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]