Rose Printing Co.

National Labor Relations Board - Board Decisions

Sep 24, 1991

304 N.L.R.B. 1076 (N.L.R.B. 1991)

1076
304 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 24, 1990, Administrative Law Judge Robert A. Gritta issued the
attached decision. The Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 We affirm the judge’s finding that the Respondent failed to prove that
these former strikers had abandoned their status as the Respondent’s employ-
ees. The Respondent argues that Posey and Bowman obtained regular and sub-
stantially equivalent employment elsewhere. Even if they did, however, that
would not per se establish that Posey and Bowman had abandoned interest in
their prestrike jobs. In addition, regular and substantially equivalent employ-
ment was not shown. In this regard, we note that Posey’s and Bowman’s
prestrike wages and benefits are the appropriate measures for comparison with
the wages and benefits at employers for which they worked during and after
the strike. The Respondent argues that diminished poststrike wage and benefit
levels for Posey’s and Bowman’s former jobs should provide the basis for
comparison. The diminished poststrike wages and benefits are not relevant
here, however, because they resulted from the Respondent’s unlawful unilat-
eral changes. See Rose Printing Co., 289 NLRB 252 (1988).
4 There are no exceptions to the finding that the Respondent did not violate
the Act by failing to offer to reinstate Powers Hamm and Powell to temporary
roundbacker/liner machine work in November 1986.
5 All dates are in 1986 unless otherwise indicated.
Rose Printing Company and Graphic Communica-
tions Workers Union, Local 241-B. Cases 12–
CA–12303–3 and 12–CA–12303–4
September 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case presents two separate issues involving the
reinstatement rights of former economic strikers. The
first issue is whether an employer must offer former
strikers reinstatement to their prestrike positions, on
the departure of permanent replacements, if the former
strikers have acquired employment elsewhere. The sec-
ond issue is whether an employer must offer former
strikers reinstatement to jobs which they are qualified
to perform but which are not the same or substantially
the same as their prestrike jobs. The administrative law
judge found that the Respondent’s failure to offer rein-
statement in both situations violated Section 8(a)(3)
and (1) of the Act.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order, and to adopt the recommended Order
as modified.
For the reasons set forth fully in the judge’s deci-
sion, we affirm his conclusion that the failure to offer
reinstatement to Winfred Posey and Bradford Bowman
was unlawful.3 We disagree, however, with the judge’s
finding that the Respondent violated Section 8(a)(3) by
failing to offer Peggy Sue Nichols, Peggy Powers
Hamm, and Gary Powell reinstatement to vacant entry
level general worker positions.4 As discussed below,
we hold that an employer’s obligation to reinstate
former economic strikers extends only to vacancies
created by the departure of replacements from the
strikers’ former jobs and to vacancies in substantially
equivalent jobs, but not to any other job which a
former striker is or may be qualified to perform.
Nichols, Powers Hamm, and Powell each held posi-
tions in the Respondent’s bindery department prior to
the commencement of an economic strike by bindery
unit employees on January 20, 1986.5 During the
strike, the Respondent hired permanent replacements
for the three striking employees. On about May 5, the
Union made an unconditional offer to return to work
on behalf of all strikers. The next day all strikers were
placed on a preferential hire list.
It is undisputed that vacancies arose after October
27 in entry level general worker positions in the bind-
ery department. Nichols, Powers Hamm, and Powell
were qualified to perform the work required in these
positions, which were not substantially equivalent to
their prestrike jobs because of lower pay and skill lev-
els. The Respondent hired at least nine individuals to
fill general worker vacancies. It did not offer to rein-
state Nichols, Powers Hamm, or Powell to any of these
vacancies.
The judge found that Nichols, Powers Hamm, and
Powell were entitled to an offer of reinstatement to any
available position for which they qualified, specifically
including the general worker bindery jobs. He relied
on NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967), in which the Court stated:
the status of the striker as an employee continues
until he has obtained ‘‘other regular and substan-
tially equivalent employment’’ . . . . If and when
a job for which the striker is qualified becomes
available, he is entitled to an offer of reinstate-
ment. The right can be defeated only if the em-
ployer can show ‘‘legitimate and substantial busi-
ness justifications.’’ N.L.R.B. v. Great Dane Trail-
ers, [388 U.S. 26, 34 (1967)]. [Emphasis added.]
Fleetwood does not address the issue in this case.
The issue in Fleetwood concerned the time for deter-
mining rights to reinstatement. In Fleetwood, there
were no available positions when the strikers asked for
reinstatement. Two months later, however, job vacan-
cies arose as the employer returned to prestrike pro-
duction levels. The employer argued that the time for
determining rights to reinstatement was restricted to
the time of the request for reinstatement. Because there
were no available positions at that time, the employer
contended, the right to reinstatement was lost. The
1077ROSE PRINTING CO.
6 The Board’s trial examiner in Fleetwood considered whether each of six
former strikers was qualified to perform jobs in vacancies created by the re-
spondent’s poststrike expansion of production. Fleetwood Trailer Co., 153
NLRB 425, 427–428 (1965). It seems likely that this discussion of qualifica-
tions led ultimately to the Court’s reference to ‘‘a job for which the striker
is qualified.’’
7 Concededly, the Board, in striker-reinstatement cases, has sometimes used
the Fleetwood phrase ‘‘job for which the striker is qualified.’’ These cases,
however, either did not involve the issue of the kind of job to which the strik-
er is entitled—see, e.g., Brooks Research & Mfg., 202 NLRB 634, 635–636
(1973) (ruling on length of time reinstatement rights—or make clear elsewhere
in the opinion the underlying assumption that the positions at issue are the
strikers’ old jobs or equivalent positions (see discussion of Laidlaw Corp.,
infra).
8 241 NLRB at 373; see also Textron, Inc. v. NLRB, 687 F.2d 1240, 1247–
1248 (8th Cir. 1982), and Coastside Scavenger Co., 273 NLRB 1618, 1630–
1631 (1985).
Court disagreed and held that the right continued and
therefore existed when positions became available 2
months later. Significantly, there was no discussion
concerning the issue now under discussion, that is,
whether strikers are entitled to any jobs for which they
are qualified or whether the reinstatement obligation
extends only to their former jobs or substantially
equivalent jobs. There was no discussion of this issue
because it was not before the Court. Hence, the
Court’s reference to ‘‘a job for which a striker is quali-
fied’’ cannot be viewed as a resolution of that issue.6
Although the Supreme Court has not resolved the issue
under discussion in this case, the Board has done so.
As explained below, we regard it as implicit in the
Board’s decision in Laidlaw Corp., 171 NLRB 1366
(1968), that economic strikers’ reinstatement rights
concern their former jobs or substantially equivalent
positions; and, as we further explain, the Board in
cases subsequent to Laidlaw has expressly applied
such limitations in determining employers’ obligations
respecting the reinstatement of economic strikers.7
In Laidlaw, the Board approved a trial examiner’s
holding that ‘‘replaced economic strikers who have
made an unconditional application for reinstatement,
and who have continued to make known their avail-
ability for employment, are entitled to full reinstate-
ment to fill positions left by the departure of perma-
nent replacements.’’ Id. at 1366 (emphasis added). Ac-
cordingly, the Board rejected the contention that if
there were no such positions available on the particular
day the strikers first offered to return, an employer
would have no further obligations to the strikers. Thus,
in considering the status of strikers who had unsuc-
cessfully applied for reinstatement on a date in Feb-
ruary, when there were no vacancies in their positions,
the Board held that ‘‘[a]s employees with outstanding
unconditional applications for reinstatement . . . these
strikers were entitled to full reinstatement as vacancies
arose in their old positions. Id. at 1368 (emphasis
added). In reaching this conclusion, the Board noted
that it was overruling earlier cases which had held that
‘‘replaced economic strikers were thereafter entitled
only to nondiscriminatory treatment as applicants for
new employment.’’ Id. at 1369 (footnote omitted). Be-
cause Laidlaw involved only entitlement to positions
vacated by the strike replacements, however, preexist-
ing law was clearly overturned only where reinstate-
ment to such positions was at issue.
In accordance with the implicit assumptions of
Laidlaw, the Board in New Era Electric Coop., 217
NLRB 477 fn. 1 (1975), modified the judge’s rationale
to find that even if a presumed former economic strik-
er (Hart) was qualified to perform a particular job in
which a poststrike vacancy arose, the Respondent did
not violate the Act by failing to offer him reinstate-
ment to that position because it was not substantially
equivalent to his former job. The Board noted that the
disputed poststrike position involved substantially less-
er pay and would have entailed working under the
charge of an employee in the striker’s former job.
Thereafter, in Certified Corp., 241 NLRB 369
(1979), the Board adopted a judge’s decision finding
that an employer did not unlawfully fail to offer per-
manently replaced strikers reinstatement to a temporary
part-time job. The judge in Certified reasoned that
General Counsel ignores the fact that Respond-
ent’s obligation is to return the strikers to their
former positions or substantially equivalent ones
if and when such positions are available. The
part-time temporary job . . . cannot be character-
ized as ‘‘substantially equivalent’’ to any job for-
merly held by any striker since the strikers were
all employed on a regular full-time basis.8 [Em-
phasis in original.]
In Highlands Medical Center, 278 NLRB 1097
(1986), the Board adopted the judge’s finding that the
employer had no obligation to offer former economic
strikers reinstatement to vacant jobs that were not sub-
stantially equivalent to their former jobs. The judge ex-
plicitly rejected the General Counsel’s argument that
replaced economic strikers should be recalled to any
job for which they were qualified.
Finally, in Oregon Steel Mills, 291 NLRB 195
(1988), the Board affirmed a judge’s finding, inter alia,
that the employer was not obligated to recall a striker,
who worked before the strike as a chemist, to fill a va-
cant lab test report clerk job. Citing New Era Electric,
the judge stated that ‘‘[t]he Board has held that an em-
ployee is entitled to a substantially equivalent job, but
not a job for which he is overqualified.’’ Accordingly,
he found no need to decide whether the former chemist
possessed typing skills required for the clerk job. 291
NLRB at 192.
Thus, the touchstone for determining reinstatement
rights is ascertaining whether the job is the same as,
or substantially equivalent to, the prestrike job. To be
sure, the striker’s qualifications are not irrelevant. The
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Arlington Hotel Co., 273 NLRB 210 (1984), enfd. 785 F.2d 249 (8th Cir.
1986); Medallion Kitchens, 277 NLRB 1606, 1614 fn. 16 (1986), enfd. 811
F.2d 456 (8th Cir. 1987); Rockwood & Co., 281 NLRB 862 (1986) (Ragan,
Clouse, and Johnson); and Wright Tool Co., 282 NLRB 1398, 1405 (1987)
(Eneix and Mann), enfd. 854 F.2d 812 (6th Cir. 1988).
10 See Harvey Engineering Corp., 270 NLRB 1290, 1303–1304 (1984), and
Western Steel Casting Co., 233 NLRB 870, 874–875 (1977) (Angus and Col-
lins).
11 In Harvey Engineering, supra at 1291, the Board reversed the judge on
procedural grounds, finding that the issue of the respondent’s failure to rein-
state former strikers to jobs that were not substantially equivalent to their
former positions had not been alleged or litigated. It further disavowed reliance
on the judge’s rationale in finding that a former striker was entitled to any
job for which he was qualified.
In Western Steel, supra at 870–871, the Board reversed the judge to find
that former strikers’ rights to poststrike jobs in dispute had been contractually
waived. The Board further found that these jobs were not substantially equiva-
lent to strikers’ former jobs, but in light of the waiver finding it was unneces-
sary to pass on the employer’s exceptions to the judge’s conclusion that an
employer must offer an economic striker any employment for which he is
qualified.
12 In Medallion Kitchens, supra at 1614, the judge expressly found that the
jobs involved were substantially equivalent.
13 In Arlington Hotel, supra, the respondent unsuccessfully contended that it
had an obligation to recall strikers only to their specific prestrike positions.
Although the judge in that case referred to the fact that the employees had
been cross trained and had multiple capabilities, this reference was not in sup-
port of a conclusion that strikers were qualified for the positions. Rather, the
reference was in support of a conclusion that the employer’s position on recall
of strikers unlawfully precluded offering a striker a job that was ‘‘substantially
equivalent to his or her prestrike position.’’ Arlington Hotel, supra at 215. In
other cases—Wright Tool, supra; Rockwood, supra; and Transport Service Co.,
302 NLRB 22 (1991)—the employers argued that the strikers were not quali-
fied for the vacant positions. The employers did not make the additional argu-
ment that, even if strikers were qualified for vacant positions, they were not
entitled to such positions based on a bare showing that they were qualified
to fill them. Hence, the Board did not even address that issue.
14 Arlington Hotel, supra at 215.
15 E.g., David R. Webb Co., 291 NLRB 236 fn. 3 (1988), enfd. 888 F.2d
501 (7th Cir. 1989), cert. denied 110 S.Ct. 2560 (1990).
issue of whether the striker is qualified to perform the
job may shed light on whether the job is substantially
equivalent to the prestrike job. Indeed, the Board has
combined the two requirements. In Fire Alert Co., 207
NLRB 885, 886 (1973), the Board said that ‘‘the Re-
spondent’s reinstatement obligation here is not limited
to the strikers’ old positions, but rather includes rein-
statement to substantially equivalent positions which
the strikers are qualified to fill.’’ Thus, it may well be
that the job must be substantially equivalent to the
prestrike job and the striker must be qualified to fill
it. But the essential point is that mere qualification to
perform the job will not suffice.
The cases relied on by the General Counsel9 do not
support the proposition, contrary to the foregoing
precedent, that an employer has an obligation under
Fleetwood and Laidlaw to offer to reinstate replaced
economic strikers to vacancies in jobs which they are
qualified to perform but which are not substantially
equivalent to their former jobs. It is true that in these
and other cases,10 the judge in the underlying opinion
has suggested or endorsed the existence of such an ob-
ligation, but none of these Board decisions turned on
this concept.11 To the extent that respondent employers
unlawfully failed to offer strikers reinstatement to va-
cancies in lesser skilled positions, there were no ex-
press findings that the jobs at issue were not at least
substantially equivalent to the strikers’ prestrike jobs.12
In several cases, it is not apparent that the parties ex-
pressly contested the issue of substantial equivalence.13
In considering whether an employer should be re-
quired to offer a replaced striker reinstatement to a
nonequivalent job which the striker is qualified to per-
form, we do not quarrel with the assertion that ‘‘[a]
lesser job with less pay and/or reduced benefits may
not be as attractive but it is better than no job at
all.’’14 Our duty in defining a former economic strik-
er’s rights under Fleetwood and Laidlaw, however,
does not entail consideration of strikers’ economic
needs. Our duty is to ensure that strikers who have un-
conditionally offered to return to work are to be treated
the same as they would have been had they not with-
held their service. They are therefore entitled to return
to those jobs or substantial equivalents if such posi-
tions become vacant, and they are entitled to non-
discriminatory treatment in their applications for other
jobs. As to this latter entitlement, it is clear that, while
the former strikers were not guaranteed a preference
for the nonequivalent jobs, the Respondent was not
free to prefer new applicants over them simply because
they had been on strike and were on the Laidlaw rein-
statement list for their old jobs. The General Counsel,
however, has argued simply that the Respondent was
bound to offer the nonequivalent jobs to the former
strikers as part of its reinstatement obligation. He has
not litigated this case on the theory that the Respond-
ent refused to offer employees work in other jobs be-
cause of their status as former strikers.
Our holding here confirms coextensive employer
and employee obligations under Fleetwood and
Laidlaw. In this regard, we note that an economic
striker has no obligation to accept an offer of reinstate-
ment to a position which is not the same or substan-
tially equivalent to his prestrike position. A refusal to
accept such an offer does not extinguish entitlement to
full reinstatement to the former or substantially equiva-
lent job. Harvey Engineering Corp., supra at 1292. In
striking the balance between employers’ rights to con-
tinue business operations and employees’ rights to en-
gage in strikes, we think that it would be anomalous
to impose on employers a statutory obligation to make
reinstatement offers that former economic strikers have
no concomitant obligation to accept.
In addition, we note that a striker’s acceptance of a
position which is not the same as or substantially
equivalent to that striker’s prestrike position does not
extinguish the statutory right to subsequent reinstate-
ment to a vacant prestrike position or a substantially
equivalent one.15 Acceptance of the General Counsel’s
argument would therefore mean that a striker would
have two reinstatement rights, and that employers
would have two correlative obligations. That is, a strik-
1079ROSE PRINTING CO.
er would have a right to reinstatement to any job
which the striker is qualified to perform, even if that
job is not the same as or substantially equivalent to the
striker’s prestrike position. In addition, as soon there-
after as the striker’s former job or a substantially
equivalent one became available, the striker would
have a right to transfer to that job. Similarly, even
though an employer has acted lawfully in replacing a
striker, the employer would be obligated to reinstate
the striker to a vacant nonequivalent job which the
striker is qualified to perform. The employer would
also be required to transfer the striker to a prestrike job
or to a substantially equivalent one when it became
available and to hire another person to fill the vacancy
left by the transferring striker. In our view, a striker
is not entitled to such preferential treatment and an
employer need not suffer such dislocation simply to
preserve the striker’s continuing statutory employee
status.
Based on the foregoing, we conclude that the Re-
spondent did not violate the Act by failing to offer to
reinstate former strikers Nichols, Powers Hamm, and
Powell to poststrike jobs which were not substantially
equivalent to their prestrike jobs. We dismiss the com-
plaint allegation relating to this issue, and we will
modify relevant terms of the judge’s recommended
Order and notice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rose
Printing Company, Tallahassee, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(a) and reletter subsequent
paragraphs.
2. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Offer Winfred Posey and Bradford Bowman
full and immediate reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions of employment, without prejudice to
their seniority or other rights and privileges, discharg-
ing, if necessary, any employee hired as a replacement
in any positions formerly worked by such employees
from September 26, 1986, to the present.
‘‘(b) Make whole Winfred Posey and Bradford
Bowman for any loss of earnings and other benefits re-
sulting from the discrimination against them, less any
net interim earnings, plus interest.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to offer to reinstate our former
striking employees reinstatement to their prestrike po-
sitions when those positions become available.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Winfred Posey and Bradford Bow-
man full and immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions of employment, without prejudice
to their seniority or other rights and privileges, dis-
charging, if necessary, any employee hired as a re-
placement in any positions formerly worked by such
employees from September 26, 1986, to the present.
WE WILL make whole Winfred Posey and Bradford
Bowman for any loss of earnings and other benefits re-
sulting from our discrimination, less any net interim
earnings, plus interest.
ROSE PRINTING COMPANY
Andres Rivera-Ortiz, Esq., for the General Counsel.
Mark E. Levitt, Esq. (Hogg, Allen Norton & Blue, P.A.), of
Miami, Florida, for the Respondent.
Peggy Nichols, General President, of Crawfordville, Florida,
for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on June 5, 1989, in Tallahassee, Florida,
based on charges filed by Graphic Communications Workers
Union, Local 241-B (the Union), on November 18, 1986, and
a consolidated complaint issued by the Regional Director for
Region 12 of the National Labor Relations Board on Feb-
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1986 unless otherwise specified.
2 R. Exhs. 1 and 2 were admitted into evidence, however, the exhibits were
not included in the formal file. The record as it stands was sufficient for my
determination.
3 General Counsel’s motion to correct the record is granted as filed and re-
ceived into the record as JD Exh. 1.
4 Rose Printing Co., 289 NLRB 252 (1988), of which I take judicial notice.
ruary 17, 1989.1 The complaint alleged that Rose Printing
Company (Respondent or Rose), violated Section 8(a)(1) and
(3) of the Act by refusing to reinstate or offer to reinstate
certain employees following an unconditional offer made by
the Union on behalf of all the employees. Respondent’s time-
ly answer denied the commission of any unfair labor prac-
tices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce
evidence, and to argue orally. Briefs were submitted by Gen-
eral Counsel and Respondent. Both briefs were duly consid-
ered.
On the entire record2 in this case and from my observation
of the witnesses and their demeanor on the witness stand,
and on substantive, reliable evidence considered along with
the consistency and inherent probability of testimony, I make
the following3
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, Respondent admits, and I find that
Rose Printing Company is a Florida corporation engaged in
the publishing and binding of books in Tallahassee, Florida.
Jurisdiction is not in issue. Rose Printing Company, in the
past 12 months, in the course and conduct of its business op-
erations derived gross revenue in excess of $500,000 and
purchased and received at its Tallahassee, Florida facility
goods and materials valued in excess of $50,000 directly
from points located outside the State of Florida. I conclude
and find that Rose Printing Company is an employer en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I conclude
and find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND
In 1986, the Union represented Respondent’s bindery and
maintenance department employees. On January 20, the
Union called a strike in Respondent’s bindery department.
On January 23, the Union called a strike in Respondent’s
maintenance department. Both strikes were called due to un-
successful contract negotiations. The strike in the bindery de-
partment remained an economic strike but on March 5 the
strike in the maintenance department was converted into an
unfair labor practice strike due to Respondent’s unfair labor
practices.4 On or about May 5, the Union made an uncondi-
tional offer to return to work on behalf of all strikers. On
or about May 6, Respondent placed all strikers on a pref-
erential hiring list. Two maintenance employees, Posey and
Bowman, had been participants in this maintenance depart-
ment strike before and after its conversion to an unfair labor
practice strike, however, both had been permanently replaced
prior to the unfair labor practice strike conversion on March
5.
After May 5, positions became available in Respondent’s
bindery and maintenance departments which strikers could
have filled but Respondent failed to recall them.
III. STIPULATIONS OF THE PARTIES
On or about May 5, 1986, the Union made an uncondi-
tional offer to return to work on behalf of employees en-
gaged in the strike described in paragraph 6(a) of the com-
plaint, and that the first three employees set forth in para-
graph 6(b) of the complaint were among those strikers on
whose behalf the Union made an unconditional offer to re-
turn.
On May 6, 1986, Respondent placed strikers, including
Peggy S. Nichols, Peggy S. Powers, and Gary Powell on a
preferential hiring list.
From about October 27 to November 3, 1986, at least nine
individuals were hired to entry level positions as general
workers in the Employer’s bindery department. Parties fur-
ther stipulate that other positions of general workers became
available subsequent to November 1986 and that these posi-
tions were filled.
The general workers’ positions were not substantially
equivalent to Peggy Nichols’ position of bookbinder II auxil-
iary or to Peggy S. Powers’ and Gary Powell’s positions as
bookbinder I, BB-1 roundbacker/liner operator, by virtue of
the general workers positions lower pay and skill levels.
Peggy Nichols, Peggy S. Powers, and Gary Powell were
qualified to do the work required in the general workers po-
sitions.
Respondent did not reinstate or offer to reinstate Peggy S.
Powers and Gary Powell to the general workers positions
available on October 27, 1986, and thereafter, and that it has
not reinstated or offered to reinstate the individuals since that
date to general workers positions.
On or about November 1986, there was work available on
the roundbacker machine for a period of 2 to 3 weeks on the
second shift. Peggy S. Powers and Gary Powell were quali-
fied to perform this work. No one was hired from the outside
to do the work. This particular work was performed by a
2(11) supervisor of Respondent. This particular work was not
substantially equivalent to the work performed by Peggy S.
Powers and Gary Powell prior to the strike by virtue of its
temporary nature.
Respondent did not reinstate or offer to reinstate Peggy S.
Powers and Gary Powell to the temporary work set forth im-
mediately above, on or about November 1986.
Winfred E. Posey and Bradford Bowman were employed
in Respondent’s maintenance department as a mechanic and
electrician, respectively, at the time the strike commenced on
or about January 20, 1986.
Winfred E. Posey and Bradford Bowman were perma-
nently replaced by Mike King on January 27, 1986, and by
Dan Bofo in early February 1986, respectively.
Mike King and Dan Bofo resigned their employment ef-
fective September 26 and 27, respectively.
Respondent did not reinstate or offer to reinstate Winfred
E. Posey or Bradford Bowman to the positions held by King
and Bofo, and it has not reinstated or offered to reinstate
Bradford Bowman since September 27, 1986.
1081ROSE PRINTING CO.
Mike King and Dan Bofo were subsequently rehired by
Respondent on October 27, 1986, and October 6, 1986, re-
spectively, for the same positions that they resigned from on
September 26 and 27, 1986.
The bindery units’ employees went on strike January 20,
and the maintenance unit employees went on strike January
23.
IV. ALLEGED UNFAIR LABOR PRACTICES
Peggy Sue Nichols testified she was president of the
Union in 1986. She sent the Western Uniongram containing
the Union’s unconditional offer to return to work for all
strikers, including Bradford Bowman and Winfred Posey.
Since May 5, 1986, Nichols has not worked at Rose Printing
nor has she been offered any general workers positions.
In late October, Nichols was called by David Goodwin,
personnel director of Rose. Goodwin told Nichols the Com-
pany was contemplating opening up a position for a sewing
machine operator and wanted to know if she would be inter-
ested. Nichols said she was interested but presently she was
nursing an injury and would not be available the next 3 to
4 weeks. Nichols’ doctor did not release her for work until
November 15. Nichols felt she could have done the work
anyway but she could also reinjure herself and then she
would be on company disability which would not be fair to
the Company.
When Nichols sent the May 5 unconditional offer to the
Company, she was aware that Posey and Bowman were at-
tempting to get their contributions out of the Company’s re-
tirement plan. She also knew that the Company had said they
could only get their retirement contributions by resigning
from the Company.
Nichols’ union represents both bargaining units, one in
bindery and one in maintenance. Bindery went on strike first
and later maintenance went on strike. Only one telegram
comprising an unconditional offer to return was sent by
Nichols.
Winfred Posey testified he was head mechanic at Rose
prior to the strike. Since going on strike in January Posey
has not received an offer for any position from Rose. Since
May 5 Posey has not spoken to anyone from Rose concern-
ing a position with the Company.
Posey’s 1985 wages at Rose were $26,205.97 or 965
hours. After the strike, sometime in July, Posey was em-
ployed at Gandy Printers as a binderyman. Posey had bind-
ery experience at Rose prior to his mechanic job. Posey is
presently working full time at Gandy for $11.25 an hour. His
1987 earnings at Gandy were $24,122.71 and 1988 earnings
were $24,657.08. Posey’s shift and 40-hour week are the
same at Gandy as it was at Rose. If offered employment at
Rose now for a position of bindery mechanic presently pay-
ing $10.50 hour, Posey would be interested because the ben-
efits at Rose are better, e.g., sick leave, annual leave, and
holidays. There is more overtime at Rose. There are des-
ignated breaks at Rose. Rose had 11 holidays and Gandy has
6 or 7. Rose pays employees life and health insurance where-
as Gandy does not. Rose has call backpay, Gandy does not.
Gandy has no sick leave, no funeral leave, no retirement. At
Rose he got 6 weeks’ vacation, at Gandy its 2 weeks’. Rose
also paid for employees’ disability benefits but Gandy did
not.
Prior to his Gandy employment Posey did a few odd jobs
at BMW Printers, a day here, a day there, $10, $15, $25, fix-
ing equipment.
Posey in rebuttal testified that Capps did call him in July
86 but it was only to get the telephone number of his broth-
er, Lester T. Posey. Capps said he needed a folder operator
and wanted Lester’s phone number because he was a folder
operator. Lester was out on strike with the bindery employ-
ees and was working at a plumbing company. Winfred Posey
gave Capps the telephone number of his mother’s home
where Lester was living. Lester moved in with his mother
shortly after the strike. Winfred Posey has lived at the same
address and had the same telephone number for 15 years.
The Company has his address and phone number on file.
Peggy S. Powers Hamm testified she was married some-
time after the strike. Her prestrike position was round-
backer/liner operator BB-1. Hamm received a letter dated
August 17, 1988, from Erwin Robcke at Rose offering her
a position as operator on the flat cutter. Hamm responded by
letter on August 20, 1988, advising the Company that she
was unable to accept the position offered because she could
not work the second shift. At the time she was working part
time as binder, BB-2, at Artcraft Printers for $7.63 an hour.
Her work week varied from 1 to 38. Hamm had a second
part-time job with Suncoast Realty and Management doing
cleaning work. Hamm was unemployed in October and No-
vember 1986 and at that time she could have worked night
shift.
When employed at Rose Hamm made $9 an hour on the
first shift 8 a.m. to 4:30 p.m. Since Hamm went on strike
she has only received one offer of reinstatement from the
Company which was in August 1988 as noted above.
Johnny L. Capps testified he is folding and stitch products
supervisor in the bindery department at Rose. In July after
the strike Capps was shorthanded for a folder operator and
was calling anyone he knew who could run a folder. He
knew Winfred Posey was qualified so he called Posey. Posey
told Capps he did not want to go back to Rose, he was satis-
fied where he was. Capps knew Posey was working at
Gandy.
The folder operator position paid $7 an hour and was on
day shift.
Capps stated that he reached Posey late in the evening at
what he thought to be his home. He was not positive. Posey
had a brother that worked for Capps and he got Winfred’s
phone number from his brother.
Charles Rosenberg testified he is president of Rose Print-
ing. Rosenberg had suggested to Plant Manager Tabor, dur-
ing the strike when the folder operators were needed, that
Capps call experienced employees, including Winfred Posey.
In September and October 1986, Rosenberg knew that
Bowman was working at Coastal Products. Rosenberg as-
sumed Bowman was doing electrical maintenance at Coastal
and wouldn’t be interested in returning to Rose as Posey was
not interested. There was a vacancy in maintenance for an
electrician in the fall of 1986 and that’s when the Company
considered recalling Bowman.
The temporary night-shift work of 2 to 3 weeks’ duration
was precipitated by a machine breakdown causing a backlog
of work that had to go out on schedule. The work was done
by Supervisor Jerry Mackin. No hourly employee was hired
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to do the job. When the backlog was erased the night work
ceased.
Currently the highest paid maintenance employee is $10
an hour with very little overtime now worked compared to
what it was. There is a 70-percent reduction in overtime.
Rosenberg stated that 4 weeks’ vacation was maximum for
all employees including someone with Posey’s 24 years at
Rose. Since the strike employees contribute to the cost of
health care coverage rather than Rose paying it all.
Rosenberg did not know what benefits Gandy gave em-
ployees.
Gary Powell testified that in August 1988 he received a
letter asking him to return to work in a flatbed cutter position
on the second shift. Powell accepted the offer and returned
to work at $5.56 an hour September 13. Powell’s prestrike
position was backer/liner operator on second shift at $9 an
hour. Powell was not experienced on the flatbed cutter and
had to be trained. He trained as an apprentice on days for
a month then went to the night shift. In January the Com-
pany put Powell on an automatic printing machine which he
was not familiar with. On occasion he had trouble operating
the machine. One operation, taking the signatures off the end
of the material, he did not know how to do. The Company
said he refused to do the operation and sent him home. He
has not worked since that separation. The flatbed cutter offer
is the only offer Powell received from Rose since the strike
began.
Bradford Bowman testified he was an electrician at Rose
before the strike. In February 1986 Bowman accepted em-
ployment at Coastal Lumber as a millwright in the mainte-
nance department. Four months later an electrician’s position
became available and Bowman became the electrician at
$7.75 hour on night shift. He received increases up to $8.10
an hour until June 24, 1987, when he terminated his employ-
ment. Bowman left Coastal to be an electrician in Florida
State University’s (FSU) central utilities plant on day shift.
His wages at FSU to start was $555 biweekly. He is now
making $574.62 biweekly, at 40 hours per week.
In 1985 at Rose Bowman made $24,681.85. In 1986 at
Coastal he made $21,571.54 and $3021 at Rose. In 1987, his
wages at Coastal were $15,707, at FSU he made $7,216.
Bowman left Coastal because his second shift was under
consideration of elimination and because FSU had better
benefits than Coastal. FSU’s benefits in some respects are
better than Rose’s but in other respects they are worse. If
Bowman was offered reinstatement at Rose he would con-
sider it.
Analysis and Conclusions
General Counsel’s complaint raises three basic issues for
determination: (1) Whether Respondent had an obligation to
offer reinstatement to Nichols, Powers (Hamm), and Powell
to general worker positions which were available after Octo-
ber 27, 1986; (2) Whether Respondent had to offer reinstate-
ment to Powers (Hamm) and Powell to temporary round-
backer/liner machine work in November 1986; (3) Whether
Respondent had an obligation to reinstate Posey and Bow-
man to their prestrike positions on the departure of their per-
manent replacements on September 26 and 27, 1986.
Respondent contends that it has no legal obligation to
offer reinstatement to any striker for vacant positions which
are less than substantially equivalent to the strikers prestrike
positions.
Respondent further contends that it had no obligation to
offer reinstatement to Posey and Bowman when vacancies
occurred in their prestrike positions in September 1986 be-
cause both had resigned their employment during the strike
and before an unconditional offer to return to work was
made. An alternative contention is that both Posey and Bow-
man had substantially equivalent employment elsewhere ob-
viating their entitlement to reinstatement.
With regard to the temporary work in November 1986 Re-
spondent contends that the temporary nature of the work
itself relieved it of any obligation to offer the work to any
striking employee. The Respondent argues collaterally that
temporary work is not substantially equivalent therefore it
has no duty to consider offers to striking employees.
Attendant to the basic issues several lesser issues must be
determined.
Contrary to Respondent’s argument, the unconditional
offer made on May 5 by the president of the local union rep-
resenting both bargaining units does include maintenance
employees Posey and Bowman. Suffice it to say that the
offer stated, ‘‘on behalf of all striking employees at Rose
Printing Co.,’’ and I so conclude and find.
Respondent’s reliance on Supervisor Capps’ phone call to
Posey in July 1986 to disqualify Posey for any reinstatement
thereafter is unavailing. It is clear to me that Capps’ con-
fused his testimony. It was Lester’s phone number which had
changed making it impossible for Capps to reach him. It was
Lester who was a striking folder operator and not working
in July 1986. It was Winfred’s phone number and address on
file with the Company which was unchanged during the
strike. Winfred Posey testified that Capps called to get his
brother’s new phone number and address. I credit Winfred
Posey’s account of the phone conversation. Not only is his
version the most plausible but the supporting substance of
Winfred’s testimony of his brothers changed personal cir-
cumstances and the unchanged nature of his own is
uncontroverted. I conclude and find that Capps did not offer
a folder operator job to Winfred Posey in July or at any
other time. Therefor Respondent did have a duty to maintain
Winfred Posey on the preferential hiring list after July 1986.
Respondent continues to maintain that Posey and Bowman
resigned employment during the strike and therefore have no
reinstatement rights. The resignation argument stems from
the fact that Respondent required both to resign in writing
to receive what monies they had in the company retirement
plan. The Board in Rose Printing Co., supra, rejected that ar-
gument, thus the reinstatement rights of Posey and Bowman
are still extant.
On this record I reject Respondent’s contention that both
Posey and Bowman had acquired substantially equivalent
employment elsewhere relieving itself of any obligation to
reinstate either employees. Respondent’s evidence did not
show their interim employment was substantial nor did it
show the employment was equivalent. There is more to Re-
spondent’s burden in this regard than mere ascertainment that
there is employment. Wages are a factor but are not control-
ling. Benefits are a factor but are not controlling. Working
conditions are a factor but are not controlling. Some collec-
tive combination may very well sustain Respondent’s burden
but none was shown. Indeed, at the time Respondent’s obli-
1083ROSE PRINTING CO.
5 389 U.S. 375 (1967).
6 Under New Horizons, interest is computed at the ‘‘short term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest accrued before January 1, 1987 (the effective date of the
amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
gation arose to reinstate Posey and Bowman which time is
critical to deny an offer of reinstatement, Respondent’s only
evidence was assumption. Notwithstanding, what I consider
to be fatal to Respondent’s contention, the record evidence
shows a wide variance in benefits between Rose and the two
interim employers, Gandy’s Printing and Coastal Lumber.
Additionally wages were less at both interim employers and
the working conditions at Rose were superior to either
Gandy’s or Coastal’s. Respondent’s argument that poststrike
changes at Rose narrowed the gap between Rose and the in-
terim employers, I do not accept. In my view the yardstick
is the prestrike wages, hours, and working conditions en-
joyed by the employees who are subject to reinstatement. I
therefore conclude and find Posey and Bowman were strik-
ing employees with full reinstatement rights throughout the
strike, and more particularly on September 26 and 27 when
their permanent replacements left Respondent’s employ.
When the vacancies occurred Respondent was obligated to
offer the two positions to strikers Posey and Bowman but re-
fused to do so. I conclude and find that Respondent’s refusal
violates Section 8(a)(1) and (3) as alleged in the complaint.
I shall order the violation remedied as required by the law.
Under the law Respondent can refuse to reinstate if it can
show legitimate and substantial business justifications. Re-
spondent has met this test in only one instance. That instance
of the temporary night work of 3 weeks’ duration. The addi-
tional work was precipitated by a machine breakdown which
required double work on the working machine. Respondent
could have worked replacement employees on overtime to
sustain production without incurring any liability to striking
employees or could utilize supervisory personnel as it did.
The machine breakdown did not create a vacancy in any po-
sition but rather a need to get more production from existing
machines. Additional employees were not needed and none
were hired. I therefor conclude and find that Respondent had
no obligation to offer the temporary work to any striker. Ac-
cordingly, I shall dismiss complaint paragraph 6(f) as unsup-
ported by General Counsel’s proof.
With regard to the general worker positions that became
available during the strike and were filled by new hires off
the street, the General Counsel has correctly stated the law.
The Supreme Court in Fleetwood Trailer, specifically and
unambiguously held that a striker is entitled to an offer of
reinstatement when a job, for which a striker is qualified, be-
comes available.5 The Board clearly obligates an employer to
offer former strikers any available unit position for which
they are qualified. Thus Respondent had a legal obligation to
offer the vacancies to the striking employees for their accept-
ance or rejection. This Respondent refused to do. I therefore
conclude and find that Respondent has violated the Act as
alleged in the complaint and shall order the violation rem-
edied. I further find that Respondent’s action of offering flat-
bed cutter work to Peggy Powers (Hamm) and a con-
templated opening of a sewing machine operator position to
Peggy S. Nichols while steadfastly refusing any striker a
general worker position is incongruous but instructive of Re-
spondent’s motivation and intent. Respondent desires to be
selective in its offers and reap the benefits of its orchestrated
refusals by certain employees. Respondent’s use of Capps’
testimony viz-a-viz Posey is further evidence of Respond-
ent’s unlawful intent. Accordingly, I conclude and find that
Respondent’s refusal to offer general worker vacancies to
Peggy S. Nichols, Peggy S. Powers (Hamm), and Gary Pow-
ell is violative of Section 8(a)(1) and (3) of the Act. I shall
therefore order the violation remedied.
ADDITIONAL CONCLUSIONS OF LAW
1. Respondent by refusing to offer general worker posi-
tions to striking employees Peggy S. Nichols, Peggy Powers
(Hamm), and Gary Powell when they became available in
October 1986 has violated Section 8(a)(1) and (3) of the Act.
2. Respondent by refusing to offer to reinstate striking em-
ployees Winfred Posey and Bradford Bowman to their
prestrike positions when they became available in September
1986 has violated Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily refused to rein-
state striking employees Peggy Nichols, Peggy Powers, Gary
Powell, Winfred Posey, and Bradford Bowman, it must offer
them full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, with backpay computed on a quarterly basis and inter-
est thereon to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987),6 from the
date of refusal to reinstate, to the date of a proper offer of
reinstatement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Rose Printing Company, Tallahassee,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to offer to reinstate its former striking em-
ployees to positions becoming available and for which they
are qualified.
(b) Refusing to offer to reinstate its former striking em-
ployees to their prestrike positions when those positions be-
come available.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(a) Offer Peggy S. Nichols, Peggy Powers (Hamm), Gary
Powell, Winfred Posey, and Bradford Bowman full and im-
mediate reinstatement to his or her former job or, if that job
no longer exist, to a substantially equivalent position of em-
ployment, without prejudice to his or her seniority or other
rights and privileges, or to a position for which the former
striker is qualified, discharging if necessary, any employee
hired as a replacement in any position formerly worked by
such employees, or for which such employees qualified from
September 26, 1986, to the present.
(b) Make whole Peggy S. Nichols, Peggy Powers (Hamm),
Gary Powell, Winfred Posey, and Bradford Bowman for any
loss of earnings, plus interest, as outlined in the remedy sec-
tion of this decision.
(c) Preserve and, on request, make available to the Na-
tional Labor Relations Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to effectuate the backpay provisions
of this Order.
(d) Post at its offices in Tallahassee, Florida, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice
on forms provided by the Regional Director for Region 12,
after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.