Routh Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1980

247 N.L.R.B. 274 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Routh Packing Company, Inc. and Ray L. McGinnis.
Case 8-CA- 12409
January 15, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On October 18, 1979, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a brief in support of his request
that interest on backpay be computed at 9 percent.
Respondent filed no exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Routh
Packing Company, Inc., Tiffin, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Add the following as paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The General Counsel excepted to the Administrative Law Judge's refusal
to recommend that interest on backpay be computed at 9 percent. This issue is
presently under consideration by the Board. We find no merit in this
contention. See Florida Steel Corporation. 231 NLRB 651 (1977).
The Administrative Law Judge omitted from his recommended Order and
notice the narrow cease-and-desist language which the Board traditionally
provides to remedy violations of Sec. 8(a)3) and (I) of the Act. We shall
modify his recommended Order and notice accordingly.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
present evidence, the National Labor Relations Board
has found that, prior to the company halting its
operations in April 1979, the company violated the
National Labor Relations Act by discriminating
against strikers and by failing to reinstate them to
existing vacancies. We accordingly notify our employ-
ees that:
WE WILL NOT terminate the employee status
of strikers, or fail to reinstate strikers to existing
vacancies with full seniority and vacation rights,
or discriminate against strikers in any other
manner with respect to their hire, tenure, or any
term or condition of employment.
WE WILL NOT discourage membership in or
activity on behalf of Local 20, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen of America, or any other labor organi-
zation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed by Section
7 of the Act.
WE WILL make such five persons who went on
strike against the Company in May 1978 whole
for any loss of earnings suffered as a result of
discrimination against them as the Board shall
determine, plus interest.
WE WILL grant preferential hiring status to the
following men: Dan Cahill, Eugene Duffey, Steve
Panuto, Steve Reinbolt, Steve Sendelbach, Ed
Stevens, Greg Waire, and John Wheeler.
WE WILL accordingly offer employment to
these men prior to hiring anyone else for any
position substantially equivalent to the positions
t. :y previously held, except for those persons
who worked continuously for the Company on a
full-time basis between June 1978 and April 1979.
ROUTH PACKING COMPANY, INC.
DECISION
STEPHEN GROSS, Administrative Law Judge: Routh Pack-
ing Company (the Company) is a small beef packing firm in
Tiffin, Ohio. As of May 1978, the Company employed 22
wage earners in nonclerical full-time positions. On May 16,
1978, 14 of those 22 employees went out on strike. All
parties agree that the strike was an economic strike, not an
unfair labor practice strike. The Company continued to
247 NLRB No. 53
274
ROUTH PACKING COMPANY, INC.
operate during the strike and by May 31 the strikers and
their union concluded that the strike had failed.
None of the men who remained out on strike until the
strike's conclusion ever returned to work at the Company.
On November 17, 1978, one of the strikers, Ray McGin-
nis, filed a charge in the matter. On December 26, 1978, the
Acting Director, for Region 8 issued a complaint alleging
that the Company violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, by failing to
reinstate the strikers and by, during the course of the strike,
discharging four of them.
The Company filed a timely answer and the case went to
hearing in Tiffin on June 6, 7, and 8, 1979.
FINDINGS OF FACT
I. SCOPE OF THE COMPANY'S BUSINESS; LOCAL 20'S
LABOR ORGANIZATION STATUS
The complaint alleges, the Company admits, and I find
and conclude that the Company at all material times was an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Company
received goods valued in excess of $50,000 directly from
points located outside Ohio, the State in which the Compa-
ny's plant was located.
The complaint alleges, the Company admits, and I find
and conclude that Local 20 was at all material times a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Until approximately 3 years ago the Company was wholly
owned and managed by Richard Routh. Routh was easygo-
ing towards his employees about production levels and work
rules. Then, about the start of 1977, James Robbins became
general manager of the Company. Robbins was a tougher
boss than Routh and the pressure Robbins put on the
workers led the hourly, nonclerical employees to seek union
representation notwithstanding the relatively high wages and
good benefits provided by the Company. Local 20 of the
Teamsters was certified as the employees' representative in
October 1977. The workers elected Ray McGinnis to be
their steward. When the Company later fired McGinnis and
two other employees the Board's General Counsel claimed
that the action was due to discrimination by the Company
against the three because of their union activity. After a
hearing on the matter the parties settled the case with
McGinnis returning to work.
In the meantime the Company and Local 20 had been
discussing the terms of a written collective-bargaining
agreement. No agreement was reached, however, and many
of the workers saw this to be a result of foot-dragging by the
Company. On May 16, 1978, the Union called a strike over
the issue and 14 men walked out: Ray McGinnis (the
steward), Richard Bland, Daniel Cahill, Eugene Duffey,
Dennis Newman, Stephen Panuto, Stephen Reinbolt, Ste-
phen Sendelbach, Jeff Shellhamer, Edward Stevens, David
Travis, Mike Travis, Gregory Waire, and John Wheeler.
' Panuto and Waire said that they called Routh the day the strike ended.
Cahill said that he called "a day or so" after the strike ended. Reinbolt
They were joined on the picket line by Michael Tyree, who
had worked for the Company until February 1978 and
considered himself a part of the Company's work force,
albeit temporarily laid off.
Eight men remained on the job and the Company
continued to operate by putting those eight on overtime, by
hiring replacement workers and part-time help, and by
having supervisors (including Robbins) do nonsupervisory
work.
Near the end of May one of the strikers crossed the picket
line to return to work. Then, on May 30, three other strikers
crossed the picket line. The Union concluded that the strike
was lost and advised the remaining strikers of that on May
30 or 31. (Hereafter the term "strikers" will be used to refer
to the 10 employees of the Company who remained on strike
until the strike's end.)
Ill. THE ISSUES
Economic strikers have a right to reinstatement upon their
unconditional offer to work unless they have been perma-
nently replaced or unless the Company has a substantial
business justification for denying reinstatement to the
strikers. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375
(1967).
The evidence in this proceeding raises issues about all
these matters-whether the strikers did make offers to
return to work, the extent to which the strikers were
permanently replaced, and possible business justifications for
denying reinstatement.
A. The Strikers' Offers To Return to Work
1. McGinnis' alleged offer on behalf of all the strikers
The General Counsel and the discriminatees claim that
McGinnis, as union steward, told Robbins, on behalf of all
the striking employees, that the employees wanted to return
to work. McGinnis however did not testify. A few months
prior to the hearing he left Tiffin to take up residence in
California. (McGinnis failed to respond to a subpena for his
appearance.)
Over hearsay objections by the Company, several of the
strikers testified that McGinnis told them that shortly after
the conclusion of the strike he had made an offer to Robbins
on behalf of all of the men to return to work. The witnesses
said that McGinnis told them that Robbins said that no jobs
were available.
Robbins denied having any such conversation with
McGinnis, saying that McGinnis had not even asked for his
own job back, much less asking Robbins to reinstate all the
strikers.
2. Cahill, Panuto, Reinbolt, Sendelbach, and Waire
All five said that they called Richard Routh within a few
days after the end of the strike to ask for their jobs back.'
According to the men, Routh responded by saying that no
work was available. Reinbolt added that Routh "told me
testified that he called Routh 2 days after the end of the strike. Sendelbach
said that he called Routh on the weekend of June 3.
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I had picked my side and my services were no longer
needed." Robbins, who was the sole witness for the
Company, at first did not deny that Routh might have
received such telephone calls, but later testified that he
would have known if Routh had received any offers from the
men to return to work; that he heard of no such offers being
made to Routh; and that in any case since it was he, not
Routh, who did the hiring and firing at the Company, the
men knew that they should have called Robbins, not Routh,
if they wanted to make offers to return to work.
3. Duffey, Stevens, and Wheeler
These three men testified that they called or met with
Robbins and asked for their jobs back. All three said that
Robbins said that the Company was not hiring due to a lack
of business. Robbins however denied that any of the three
ever made offers to return to work. According to Robbins,
Stevens and Duffey never said anything to him about
wanting to work, and Wheeler said that he wanted to go
back to work, but only if he could be paid in a way that
would enable him to continue receiving unemployment
compensation.
4. Conclusion-offers to return to work
McGinnis: The only evidence of McGinnis' offer on his
own behalf and on behalf of all the men came from hearsay
evidence-statements of McGinnis' fellow workers who
testified about what McGinnis told them he had told
Robbins. While hearsay evidence that does not fall within
the usual exceptions may in some circumstances be used to
support a factual finding (see Alvin J. Bart, and Co., Inc.,
236 NLRB 242 (1978)), my conclusion is that in this case it
does not amount to the substantial evidence that is needed.
For one thing, McGinnis would have had an incentive to lie
to his fellow strikers about what he told Robbins (without
judging whether or not he did so) since McGinnis might well
have felt that a failure to have made the offer would have
been seen by the strikers as his having let them down. For
another, McGinnis was in Tiffin at the time the complaint
was filed and for a long time after that. The opportunity to
have taken McGinnis's testimony by deposition was thus
available (see Sec. 102.30 of the Board's Rules and Regula-
tions). Since McGinnis' departure from Tiffin was not an
unexpected event, the other discriminatees and the General
Counsel had a chance to preserve McGinnis's testimony in a
deposition. Their failure to do so should not redound to the
Company's detriment.
The employees who called Richard Routh: The Company
issued no directive to the strikers about how offers to return
to work should be made. Richard Routh was chairman of
the Company's board of directors, owned a 50-percent
interest in the Company, had a desk at the plant and worked
there regularly, sometimes gave instructions to the men, and
during the period in question actively disputed Robbins'
assertion that Robbins was in sole control of the plant.
Under these circumstances the Company's position that
offers made by the men to Routh to return to work did not
constitute offers made to the Company comes close to
frivolousness.
As far as whether the offers were in fact made to Richard
Routh, I believe the discriminatees. Thus, I find that Cahill,
Panuto, Reinbolt, Sendelbach, and Waire did in fact made
unconditional offers to return to work shortly after the
conclusion of the strike.
Duffey, Stevens, and Wheeler: I find that these men did
ask Robbins for work, as they testified. There was nothing
about the demeanor of these three men when they testified
about asking for work that made their testimony either more
or less credible than Robbins' when he testified that they did
not do so. But the men knew that they had to ask for work to
be entitled to the Act's protection. More importantly, the
evidence in the case, taken as a whole, calls into question the
accuracy of the Company's testimony.
For one thing, Reinbolt's testimony that Routh saw the
strike as a matter of picking sides had a ring of truth about it
and indicates an antistriker attitude at least on the part of
one of the two owners of the Company. For another, much
of Robbins' testimony simply did not add up. His statements
about other employment obtained by the strikers seemed to
be foundationless excuses for his refusing to reinstate the
strikers (see infra). And it is nearly inconceivable that
Robbins was accurate in his claim that not I of the 10
strikers ever asked for his job back, particularly since
Robbins was quick to point out that the Company's pay and
other compensation were well above average. Finally,
Robbins gave the impression that he disliked many of the
strikers, considered them to be poor workers, and was happy
to have a chance to get rid of them.
Viewing Robbins' testimony in this context, his statement
that neither Duffey, Stevens, nor Wheeler asked Robbins for
their jobs back is less believable than the strikers' testimony
that they made unconditional offers to return to work.
B. The Company's Reference to a "Preferred Seniority
List"
On July 23, 1978, about 8 weeks after the strike, the
Company's counsel, Arthur Graham, wrote to Local 20
proposing the terms of a collective-bargaining agreement.
Graham stated in that letter:
As to the strikers who were not hired back but were
instead replaced while they were on the picket line, it is
understood that they will be placed on a preferred
seniority list and as jobs open that correspond with
their particular skills, they will be offered new employ-
ment.2
The record does not show whether Local 20 ever responded
to Graham's letter.
The General Counsel and the discriminatees argue that,
since the letter admits that the strikers were entitled to be
considered for employment on a preferred basis, the Compa-
ny was under a duty to reinstate the strikers whether or not
the strikers actually made unconditional offers to return to
work.
'G. C. Exh. 2.
276
ROUTH PACKING COMPANY, INC.
There is some logic to that contention. Insofar as I am
aware, the Board has never specifically discussed the
reasoning behind the requirement that economic strikers
must make unconditional offers to return to work before the
struck company comes under a duty to reinstate them. But
two appellate courts have opined that the basis for the
requirement is that, since a striker is one who has opted to
stop working, the employer is entitled to be notified that the
work stoppage has ended and that the striker is ready to
resume working. Shelly & Anderson Furniture Mfg. Co.. Inc.
v. N.L.R.B., 497 F.2d 1200, 1205 (9th Cir. 1974); N.L.R.B.
v. Southern Greyhound Lines, Division of Greyhound Lines,
Inc., 426 F.2d 1299, 1303 (5th Cir. 1970).
The letter here in question suggests that as of July 23, at
least, the Company was aware that the work stoppage had
ended and that reinstatement would be attractive,to at least
some of the strikers.
I am nonetheless not convinced that the July 23 letter
should be deemed to obviate the usual requirement that the
strikers must unconditionally offer to return to work.
First, neither the General Counsel nor the discriminatees
have cited any precedent for their contention.'
Second, the letter in question appears to have been a
negotiating document, proposing various terms with a view
to working out an agreement with the Union. The language
in it cited by the General Counsel and the discriminatees at
least arguably was thus only a bargaining proposal, merely
reflecting what the Company thought the Union might find
attractive.
Third, as already discussed in large part, this Decision
concludes that each of the strikers who would otherwise be
entitled to reinstatement did in fact unconditionally offer to
return to work. Issues pertaining to the July 23 letter
accordingly are academic. And since those issues need not
here be decided, they should not be. A decision by the Board
to move away from a strict rule requiring economic strikers
(or their representatives) to make unconditional offers to
return to work could easily affect the nature of hearings in
reinstatement cases (and by fostering state-of-mind testimo-
ny on whether or not a struck company's supervisors knew
that particular strikers wanted to return to work even
though the strikers had not told the Company that and, if
the supervisors did know that, the dates on which they
acquired that knowledge); and that in turn could have
significant effects on the behavior of company management
during and after strikes. These ramifications have not been
explored by the parties here and, indeed, the contentions of
the General Counsel and the discriminatees were made in
only a cursory way at the hearing and not at all on brief.
C. Offers of Employment
The Company does not claim it offered any of the striking
employees their old jobs back. Robbins testified that he
offered Panuto night work, but Panuto denied it. Robbins
' The Board has concluded that strikers who have been told by their
employer that they are discharged need not offer to return to work to be
entitled to reinstatement. Abilities and Goodwill, Inc.. 241 NLRB 27 (1979).
But that case only emphasizes the continued vitality of the requirement that
strikers offer to return work in circumstances in which they have not been
told that they have been discharged.
' In Robbins' affidavit, but not in his testimony, Robbins said that he
said nothing about such an offer in the affidavit that he gave
to a Board investigator in December 1978. My conclusion is
that Robbins misremembered the matter, mixing up the
strike situation with an earlier problem he had had with
Panuto. In any case, offering night work to an employee who
had been working during the day prior to the strike does not
amount to an offer of reinstatement absent further explana-
tion by the Company. And the Company does not claim that
it offered any of the other strikers any work at all.'
D. The Company's Affirmative Defenses
The weight of the evidence shows that the striking
employees made unconditional offers to return to work, and
that the Company did not accept any of them. That
constitutes a prima facie showing of a violation of Section
8(a)(l) of the act. But the evidence in the proceeding raises
the following issues:
(1) Was the Company's failure to reinstate the strikers
caused by a business slowdown.
(2) To what extent were the strikers' jobs filled by
replacement workers.
(3) To what extent should the Board refrain from ordering
the Company to reinstate the striking employees by reason
of acts of violence by the strikers.
1. Level of business
A number of the strikers testified that, when they inquired
about getting their jobs back, Routh or Robbins said that the
Company could not take them on because of a "lack of
work," because "business was slow," or because the Compa-
ny "didn't have any meat orders." But no evidence showed
that the Company's business in fact declined, and Robbins
testified that production remained at about a constant level.
In fact, in the affidavit Robbins gave to a Board investigator,
he said that by December 1978 work was up compared to its
May 1978 levels (G. C. Exhs. 6 and 7).
2. Replacement workers
Ten men were out on strike when the strike ended on May
30 or 31. With the exception of Reinbolt, who did mainte-
nance work, all were butchers or boners. During the course
of the strike, one butcher/boner came to work on a full-time
permanent basis and remained with the Company until it
closed down in April 1979.' During the course of the strike
four other butcher/boners accepted offers to work for the
Company,' but except for a few hours of night work, those
four actually began work at the Company a few days after
the strike ended (due to their need to give a weeks' notice to
their then-present employer). All four men remained with
the Company until it shut its doors in April 1979. Since the
Company had made commitments to these men prior to the
end of the strike, the four positions they were to fill were not
offered limited part-time work to Wheeler Wheeler denied it. Even if that
offer was made, it does not amount to a reinstatement offer.
' Robert Jordon. He had previously worked for the Company (until January
1978).
' Jose Martinez, Richard Stevens, Bruce Tober. and William Williams (G.
C. Exhs. 3 and 4).
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available to the strikers when the strike ended (see Newberry
Energy Corp.. Industrial Division, 227 NLRB 436, 437
(1976)):
The Board has uniformly held that where an employer
makes a commitment to an applicant for a striker's job
it will normally regard that commitment as a legitimate
replacement even though the striker requests reinstate-
ment before the replacement actually begins to work.
That adds up to the permanent replacement of 5 of the 10
strikers. To put it another way, at the time of the strike there
were 22 permanent full-time nonclerical jobs at the Compa-
ny. When the strike ended 17 of those positions were either
filled or awaiting the arrival of men who had accepted the
Company's offer of permanent positions. Those 17 men
remained with the Company until it shut its doors in April
1979.
The Company hired several other workers during the
strike as well: John Stevens, Douglas Santz, and Joe
Sendelbach (G. C. Exh. 3). On the day the strike ended,
therefore, only two positions remained open for the strikers.
But Stevens and Santz left in mid-June, and Joe Sendelbach
left in October. The Company's obligations to offer rein-
statement to exstrikers extended well beyond October 1978:
e.g., Brooks Research & Manufacturing, Inc., 202 NLRB 634
(1973); The Laidlaw Corp., 171 NLRB 1366 (1968), enfd.,
414 F.2d 99 (7th Cir. 1969). (James Yates began work for
the Company in mid-October, shortly after Joe Sendelbach
left. And Robbins contends that, although Yates did not
begin work until October, he was "hired during the strike."
But the 4%-month hiatus between the end of the strike and
the beginning of Yates' work for the Company creates a
strong presumption that the Company did not in fact bind
itself during the strike to hire Yates. The Company did not
rebut that presumption--even assuming that Yates would be
deemed a replacement for Laidlaw purposes if the Company
had proven its case.)
In sum, when the strike ended two positions previously
held by the strikers had not been filled by replacement
workers. The Company nonetheless failed to reinstate any of
the strikers. In late June two additional positions previously
held by the strikers opened. Again the Company failed to
reinstate any of the strikers into those positions. And in
October another position previously held by a striker opened
when a replacement worker quit. Once again the Company
failed to reinstate any striker.
3. Other employment obtained by the strikers
The Company was under no obligation to offer work to
any striker who had obtained "regular and substantially
equivalent employment" prior to the time a position in the
employee's job category became available at the Company:
e.g., Little Rock Airmotive, Inc., 182 NLRB 666 (1970);
Laidlaw Corp., supra. The Company appears to argue that,
apart from what it claims was the strikers' failure to make
unconditional offers to return to work, the Company did not
have to reinstate the strikers because they had found new
jobs. The claim by the Company is largely a makeweight.
' I got the impression that by the time of the hearing Panuto's new job as a
salesman was going well enough for Panuto to much prefer it over work at the
The Company did show that practically all of the strikers
found new jobs, sooner or later. But the Company had the
burden of proving that the jobs the strikers obtained were
substantially equivalent to the jobs those strikers held at the
Company. And the record fails to show either that the
Company had any reason to conclude that the strikers' new
jobs were substantially equivalent to their jobs with the
Company, or that any of the employees did in fact obtain
such jobs.7 In fact several strikers made it clear that their
new jobs were inferior to the jobs they had held at the
Company. (The strikers' preference for their jobs at the
Company is not surprising in view of what all parties seem to
agree were excellent wages and benefits paid by the Compa-
ny.)
All in all, Robbins' talk of not offering the strikers work
because he knew that they had found new jobs only added to
the sense the record gives that the Company was determined
not to reinstate any strikers and looked for reasons by which
it could avoid having to reinstate any of them.
4. Acts of violence by the strikers
Damage to the Company's trucks and gas pump. The
strikers' picket station was located directly across a narrow
street from the Company's gas pump and delivery truck
parking area. (That put the gas pump about 30 feet from
where the strikers were picketing, with the truck parking
area immediately beyond the pump.) On the first night after
the strike began (the night of May 16-17, 1978), the
radiators on each of the Company's five trucks were
punctured, the brake lines on several of the trucks were cut,
and the hose on the Company's gasoline pump was slashed.
All the discriminatees denied having any connection with
the damage. In fact all but two of the discriminatees said
that they would not have even been aware of the damage to
the trucks and gas pump if they had not been told about it.
But that claim of a lack of firsthand awareness of the
damage was almost certainly disingenuous in view of the
proximity of the picket station (which was manned around
the clock) to the damage.
David Travis was one of the men who went out on the
strike, but later opted to cross the picket line. About a week
after he resumed work at the Company he sought out
Robbins to say that he (Travis) had been the one who
punctured the trucks' radiators. According to Travis that is
all he said to Robbins about the incident.
At the hearing Travis again said that he had been the one
who punctured the trucks' radiators. As Travis described the
incident, on the night of May 16 practically all the strikers
were at the picket station. (Travis said that only Wheeler
was absent.) An official of Local 20, Lichtenwald, was at the
picket station as well, and Lichtenwald, along with McGin-
nis (the steward), voiced the view that the strikers "should
do something that night to stop meat from going out on
deliveries the next day." That led to Travis' damage to the
truck radiators. Stephen Sendelbach cut the brake lines,
Travis said, and Dennis Newman and Edward Stevens
served as lookouts. Finally, McGinnis turned over a large
refuse bin at the other end of the packing house.
Company. But that need not have been true in the months immediately after
the strike.
278
ROUTH PACKING COMPANY, INC.
While a number of the discriminatees took the witness
stand on rebuttal to deny their participation in the vandal-
ism, I believe that Travis accurately described what actually
occurred.
The Company admits that it was not aware of how the
vandalism occurred until Travis' account of it at the hearing.
Thus the Company does not claim that its refusal to
reinstate any of the strikers stems from damage by strikers to
the Company's property. But the Company argues that the
willing participation of some of the strikers and their union
in the destruction of company property, and the failure of
the remaining strikers to disassociate themselves from that
vandalism, means that the Board should not take any action
that would have the effect of benefiting the strikers. The
Company's position is that, even assuming that the Compa-
ny had violated the Act by discriminating against the
strikers, a Board order that had the effect of granting a
benefit to persons involved in the willful destruction of
property would be contrary to the purposes of the Act. The
Company cites, to that effect, Stein- Way Clothing Company
Inc., 131 NLRB 132(1961).'
The General Counsel and the discriminatees, on the other
hand, point out that the Company admittedly did not know
about the participation of anyone but Travis in the damage
to the gas pump and trucks until the time of the hearing. The
General Counsel and the discriminatees go on from there to
argue that any participation in the violence by any of the
strikers is irrelevant in a determination of whether the
Company violated the Act and in determining what remedy
the Board should impose on the Company.
The issue presented by the parties' arguments need not be
decided here. The fact of the matter is that the Company
employed the person who was most involved in the destruc-
tion of the Company's property, David Travis, and did so
knowing about his actions. Assuming that the Board should
not ordinarily issue an order that benefits someone who has
deliberately done substantial damage to another's property,
here the Company either: (I) did not consider the damage
serious enough to fire Travis; or (2) was willing to forgive
Travis for his actions notwithstanding the severity of the
damage because Travis had been willing to cross the picket
line. Thus, assuming that the Company otherwise violated
the Act by refusing to reinstate the strikers, the Board's
refusal, based on the violence described above, to order
reinstatement and backpay would put the Board in a
position of being more concerned about the damage than
was the owner of the property involved or would amount to
a condoning by the Board of a discriminatory attitude on the
Company's part about who should be forgiven and who
should not.
5. Other acts of violence
Duffey: Robbins testified that he would not have reinstat-
ed Duffey even if Duffey had asked for his job back because
of Duffey's behavior on the picket line-"drunk, some of the
words he used around my wife and children and a customer
of mine [who] had to back his station wagon up to the back
door to get meat and had to go through some awful tongue-
Compare Big Three Welding Equipmenr Co.. 145 NLRB 1685. 1704, 1707
(1964). denied enforcement in part 359 F.2d 77 (5th Cir. 1966).
lash abuse." But at another time Robbins testified that he
would have reemployed Duffey had Duffey asked for his job
back and that the Company was not contending that
Duffey's picket line misconduct was a basis for the Company
being entitled not to reinstate Duffey. Because of the
inconsistent testimony, because that reference to Duffey's
picket line misconduct appears to have been an afterthought
on Robbins' part, and because it is not entirely clear that
Duffey's picket line misconduct was serious enough to
warrant the Company to refuse to reinstate him, Duffey is
entitled to reinstatement unless his position has been filled
by a permanent replacement.
McGinnis: McGinnis got into a fist fight with one of the
Company's employees who remained on the job, Jack Abel,
and challenged Robbins to a fight, a challenge that Robbins
claimed was tantamount to a threat. But Robbins testified
that he did not consider a fight between employees suffi-
ciently serious to warrant their discharge even if the fight
occurred at the plant. And McGinnis' fight with Abel took
place after work and at a considerable distance from the
plant. As far as McGinnis' challenge to Robbins is con-
cerned, a challenge is different from a threat, especially since
Robbins did not impress me as the kind of person who
would become unusually upset at that kind of verbal
encounter. (Robbins appeared to be tough, aggressive, and
muscular.)
A more serious problem involving McGinnis occurred
when Lichtenwald (the Local 20 official) and McGinnis
drove past Jack Abel's home during the strike. According to
Abel, Lichtenwald drove past once shouting obscenities at
Abel and then drove past a second time waving a gun at
Abel. Abel's wife confirmed his account of the incident, and
a police officer testified that a short time after the incident
he stopped the car in which Lichtenwald and McGinnis
were driving and found a handgun and ammunition in the
car. McGinnis did not deny to the officer that he was with
Lichtenwald when Lichtenwald drove past Abel's house.
The officer testified that McGinnis did claim that he had no
knowledge that a handgun was in the car.
There can be little doubt that McGinnis and Lichtenwald
drove past Abel's house and that Lichtenwald waved a gun
in Abel's direction. Testimony by Abel and his wife, coupled
with the police officer's testimony about finding a gun in
Lichtenwald's car a short time later, makes that clear. While
McGinnis is not alleged to have personally threatened
anyone during that incident, he was sitting next to the
person who made an overt threat with a gun against a
nonstriker. Under the circumstances McGinnis ought to be
deemed to have participated in that threat absent action by
McGinnis to disassociate himself from it. McGinnis took no
such action.
E. Other Matters
1. Post-strike increases in the Company's work force
Discussion earlier in this Decision pointed out that there
was no showing that business matters caused a decline in the
number of jobs available at the Company after the strike.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question for consideration here is whether the number
of jobs for which the strikers were suited increased in the
period after the strike.
2. The strikers' eligibility for jobs as cleaners
The Company began shipping meat interstate in October
1978, and at that time had to begin meeting Federal
standards. That meant that the Company had to have more
cleaning work done at the plant and had to add to its work
force to have that done. Some of the cleaning work had
always been done by the Company's full-time employees.
But some had also often been done by high school and
college students who worked on a part-time or seasonal basis
and were paid about half the hourly rate of the full-time
employees of the Company. When Federal requirements
caused the Company to need more cleaning work done, the
Company met the problem mostly by adding to its force of
high school and college part-time and seasonal employees.'
As before, these new employees were paid much less than
the full-time staff (generally $3.25 per hour compared to
between $5 and $6.75 an hour for the full-time employees.)
The Company never offered any of these part-time or
seasonal cleaning jobs to the strikers although all were
qualified to do cleaning work. The question is whether such
offers should have been made.
While the issue is a close one, I think that the Company
sustained its burden of showing that it acted properly in
hiring new part-time and seasonal employees for many of the
cleaning jobs rather than offering the work to the strikers.
To begin with, the Company's decision to handle its
expanded cleaning requirements with student help is not
itself any indication of a device to avoid employing any of
the strikers since much of the cleaning work had traditional-
ly been done by students. Secondly, Robbins clearly believed
that offering the work to the strikers would be futile due to
the nature of the work and the low pay, on one hand, and,
on the other, the income the strikers were receiving from
other jobs or from unemployment compensation. And the
little testimony by the employees on the subject showed that
he was correct."'
3. Other changes in the size of the work force
In March and April 1979 (the last months of the
Company's operation) the Company's work force included
22 full-time positions," plus low-paying cleaning jobs (as just
discussed) one part-time job, held by Emogene Betts,
involving the use of a boning machine. Because it was part
time, Betts' job was relatively low-paying (a maximum of
' This group of employees included: Anderson, Bensonhaver, Bulgar, Kirk
Cahill, Haman, Heinston, Hufford, Mitchell, Mullins, Jeff Robbins, Richard
Routh, Jr., and George Sendelbach. Richard Robbins belongs in this category
too in respect to his work in February and March 1979. Prior to then (mainly
June- September 1978) he held down a job substantially equivalent to a
striker's, since he worked full-time, as a beef carrier, at $5 per hour.
"' Where cleaning work was done on a full-time basis at relatively high rates
of pay, I assumed that such jobs were substantially equivalent to those held by
the strikers. Examples are the positions held by Jeff Klopp, who averaged
close to 200 per week for the weeks he worked, and Richard Fisher, who
generally earned $240 per week (6 per hour).
" The 22 full-time positions were held by Joe Sendelbach, Mike and Dave
Travis, Tober, Tiell, Richard Stevens, Gilbert Smith, Abel, Shellhamer,
$144 per week, and an average of less than $130 per week).
And because of that and the nature of the work, Robbins
believed it would not have been attractive to any of the
strikers. There was no substantial evidence to the contrary,
and I cannot conclude that Betts' job amounted to employ-
ment that was substantially equivalent to the jobs the
strikers had held with the Company.
As far as other changes in the size of the Company's work
force are concerned, the number of persons engaged in full-
time work continued at 22 in June 1978," dropped to about
19 in October," and was back at 22 in April 1979 when the
Company stopped operating.'4 (As many as 23 full-time
persons were employed for a day or two in December, but
that apparently was due to an overlap in the employment of
a departing employee, Paul Dominquez, and a newcomer,
Mike Florence.)
4. Mike Tyree
Although Tyree was not working for the Company
immediately prior to the strike, Tyree considered himself to
be an employee of the Company on furlough due to a
slowdown in the Company's business. Tyree had worked for
the Company for several years. But in February 1978,
according to Tyree, he was told that he would be laid off
"for a couple of weeks." Tyree testified that, because he was
told in February that he would be able to return relatively
soon and because as the weeks went by he was continually
reassured that he would be put back on the job when work
picked up, he kept his gear in his locker at the Company and
participated in the picketing during the course of the strike.
Robbins' testimony painted a different picture. Robbins
testified that Tyree was discharged, not furloughed, and that
the discharge was for cause. The problem, said Robbins, was
that Tyree kept coming in late.
The truth seems to lie somewhere between Robbins' and
Tyree's accounts. No one replaced Tyree when he stopped
working in February, and the jobs of several other persons
working at the Company ended just about the same time
Tyree's did." But while Tyree thus appears to have lost his
job due to a slowdown in the Company's business, the reason
Robbins picked Tyree rather than some other employee was,
clearly, Tyree's record of tardiness.
As to Tyree's status with the Company subsequent to
February 1978, the fact of the matter was that the Company
did not have any seniority system, so that from the
Company's viewpoint there was no meaningful difference
between discharge and furlough. The Company did not need
Tyree around after February and thus let him go. Tyree was
undoubtedly told that he ought to check back from time to
Newman, Martinez, Kerchner, Jordon, Hoepf, Mike Florence. John Florence,
Fisher, Fate, Cook, Yates, William Cline, Sr., and William Cline, Jr
" John Stephens, Santz, Joe Sendelbach, Williams, Mike and Dave Travis,
Tober, Tiell, Richard Stevens, Gilbert Smith, Abel, Shellhamer, Richard
Robbins (see fn. 9, above), Newman, Martinez, Klopp, Kerchner, Jordon,
Hoepf, Fate, Cook, and Cline, Sr.
" Klopp, Richard Robbins, Joe Sendelbach, Stephens, and Santz left. Yates
and Dominquez began.
' See fn. I I, above.
' Robert Jordon and Mike Florence stopped working for the Company in
January 1978 and were not replaced. (Both men subsequently came back to
work for the Company, Jordon in May, and Florence in December).
280
ROUTH PACKING COMPANY, INC.
time to see if business had picked up, and he might have
been told that a job would be available to him if business did
pick up. But my sense of the situation between February and
May is that the Company had not committed itself to hire
Tyree even if business did pick up and would not have put
Tyree back to work if someone Robbins considered to be
more reliable was available when a job came open. And that,
it seems to me, means that Tyree was not an employee of the
Company, for Laidlaw purposes, at the time the strike began
and accordingly was not entitled to the protection of the Act
regarding reinstatement.
Two further matters would preclude an order requiring
the Company to reinstate Tyree in any case. The first
involves a threat Tyree made to the wife of Jack Abel (one of
the Company's employees who did not go out on strike).
Abel's wife testified that, on the same day the incident
involving Lichtenwald occurred, Tyree threatened her life.
According to Mrs. Abel, Tyree used his car to block a road
near her house. As Mrs. Abel sought to go around Tyree's
car, Tyree said that "he hoped I like dying because I was
going to." Tyree denied ever having been involved in such an
incident. But as between the two, I believe Mrs. Abel. And
Tyree's threat of bodily harm to the wife of one of the
employees who stayed on the job is a serious matter.
Accordingly, it would not further the purposes of the Act to
require the Company to reinstate Tyree even assuming that
Tyree would have otherwise been entitled to reinstatement.
As a last matter, some of the strikers were replaced by the
Company during the course of the strike. Accordingly, even
some of the men who were on the job until the strike began
were not entitled to reinstatement. Since Tyree's right to
reinstatement was in any case less than that of the men
working for the Company until the strike began, Tyree's
earlier release by the Company (even if it in fact had been a
furlough) would prevent him from having reinstatement
rights.
F. Conclusion
i. Failure to reinstate
The Company violated Section 8(a)(l) and 8(a)(3) of the
Act by failing to reinstate strikers who had not been
replaced. It is clear that the two principals of the Company,
Richard Routh and James Robbins, felt that the men who
remained on strike until the end of the strike had thereby
wronged the Company and determined not to put the
strikers back to work as long as other qualified workers were
available to the Company.
That does not mean, however, that all the alleged
discriminatees are entitled to a Board order according them
relief. As just discussed, Tyree was not an employee of the
Company for Laidlaw purposes at the time the strike ended
and had threatened the wife of one of the Company's
employees. In any case there was no position at the
Company for him to return to. McGinnis did not appear at
the hearing to testify notwithstanding the issuance of a
subpena for his appearance, there is no substantial evidence
to support the claim that McGinnis made an unconditional
offer to return to work, and McGinnis also participated in
threats of violence.
Finally, the Company did properly replace several strikers
during the course of the strike with permanent replacement
employees.
2. Alleged discharges
The complaint alleges that sometime during the course of
the strike the Company discharged McGinnis, Tyree, Ed
Stevens, and Steven Sendelbach. But the record shows that
to be incorrect.
Tyree was discharged prior to the strike for reasons
having nothing to do with activity protected by the Act. And
during the course of the strike the Company was eager to
reinstate both Stevens and Sendelbach. As to McGinnis,
while the record suggests that during the strike the Compa-
ny may have concluded not to reinstate him, it appears that
that conclusion was not communicated to McGinnis, direct-
ly or otherwise. In any case, McGinnis' participation in an
armed threat against a nonstriker precludes the issuance of
an order benefiting him.
IV. THE REMEDY
Determining a remedy in this proceeding is complicated
by two factors: (I) the Company has ceased operating and
has filed for bankruptcy, may never operate again, and may
be operated in a wholly new manner by new owners and
managers even if the Company's doors do open again; and
(2) some but not all the positions held by the striking
workers prior to the strike were filled by replacement
workers, and the record does not show which strikers' jobs
were replaced and in what order the Company would have
reinstated the strikers had the Company not be guilty of
discrimination.
Under the circumstances the recommended order will: (1)
require the Company to cease and desist from discouraging
its employees' exercise of their Section 7 rights by terminat-
ing the the employee status of strikers or by failing to
reinstate strikers to existing vacancies; (2) require the
Company to cease and desist from discouraging membership
in or activity on behalf of any labor organization by means of
such antistriker action; (3) require the Company to hire the
strikers on a preferential basis if the Company (or a
successor) resumes operations; (4) require the Company to
make whole all the strikers who were not permanently
replaced for any loss of earnings they may have suffered as a
result of the discrimination against them; and (5) require the
Company, at such time as the Company resumes operations,
to post a notice advising of these requirements.
In respect to selecting the employees to be entitled to the
award of backpay, as discussed earlier 8 of the 10 strikers'
jobs were initially filled by replacement workers, with 3 of
those replacements subsequently leaving within a few
months after the strike. Thus, two of the strikers are entitled
to backpay between the time they offered to return to work
and the date the Company closed its doors in April 1979.
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three other strikers are entitled to backpay for lesser
periods."
As also discussed earlier, 10 of the Company's employees
remained out on strike until the strike's conclusion: Richard
Bland, Daniel Cahill, Eugene Duffey, Ray McGinnis,
Stephen Panuto, Stephen Reinbolt, Stephen Sendelbach,
Edward Stevens, Gregory Waire, and John Wheeler. But one
of the strikers, Richard Bland, was not named in the
complaint, did not testify in this proceeding, and, for all the
record shows, was not interested in returning to work with
the Company. Similarly, the record contains no substantial
evidence of McGinnis offering to return to work and does
show that McGinnis participated in an armed threat against
a nonstriker. Accordingly the five strikers entitled to
backpay should be selected from among Cahill, Duffey,
Panuto, Reinbolt, Sendelbach, Stevens, Waire, and Wheeler.
Selection among these eight of two to be entitled to backpay
from the dates of their offers to return to work, and three to
be entitled to backpay from the dates three replacement
workers left the Company, depends on a variety of factors,
including the specific jobs available at the Company during
the periods in question and the specific skills of the
individual strikers. Since the sequence in which the Compa-
ny would have reinstated the strikers had the Company not
been guilty of discrimination was not fully litigated, the
selection of the individuals to be awarded backpay rights will
be left for resolution in the compliance stage.
As far as reinstatement is concerned, the Company's
operations have shut down and its work force has left.
Nonetheless, if operations do resume the eight strikers
named above should be entitled to preferential consideration
for employment with the Company over all persons except
those employees who meet both criteria () and (2), as
follows: (I) were with the Company when the Company shut
down in April 1979; and (2) either (a) were employed by the
Company at the time the strike began and remained at
work;" or (b) ended their work stoppage before the strike
ended; '" or (c) were hired during the course of the strike as
permanent replacements for the strikers.'9
As a last matter the General Counsel urges, in a
supplemental brief, that I depart from Florida Steel Corpora-
tion, 231 NLRB 651 (1977), and impose a remedial interest
rate of 9 percent. The Board has the interest rate issue under
consideration. But for now, at least, Florida Steel remains
law: Hansen Cakes, Inc., 242 NLRB 472 (1979); Southern
California Edison Co., 243 NLRB 372 (1979). Accordingly,
interest on the backpay amounts should be computed as
required by Florida Steel
Upon the foregoing of facts, conclusions of law, and the
entire record, and pursuant to Section 10(c) of the Act, I
issue the following recommended:
" The decision not to reinstate the strikers was probably made by the
Company about the time the strike ended. Had that decision been communi-
cated to the strikers, the backpay period would have begun to run at that
point and issues regarding offers by the strikers to return to work would have
been obviated. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). But since
that decision was not communicated to the strikers, the backpay periods run
from the employees' offers to return to work.
"Tiell. Smith, Abel. Kerchner, Hoepf, Fate, Cook, and Cline, Sr.
"Dave and Mike Travis, Shellhamer, and Newman.
"Williams. Tober, Richard Stevens, Jordon, and Martinez.
:" In the event no exceptions are filed as provided by Sec. 102.46 of the
ORDER' 0
The Respondent, Routh Packing Company, Inc., Tiffin,
Ohio, its officers, agents, successors, and assigns (hereafter
collectively the Company), shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their right to engage in concerted activities for
the purpose of mutual aid or protection by terminating the
employee status of continuing strikers or by failing to
reinstate them to existing vacancies, with full seniority and
vacation rights.
(b) By such acts discouraging membership in or activity
on behalf of Local 20, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) At such time as the Company resumes operations at its
plant in Tiffin, Ohio, the persons listed in Appendix A, part
I, of this order shall be hired to fill any positions that are
substantially equivalent to tne former positions held by such
persons at the Company, in preference to all persons other
than the persons listed in Appendix A, part II. [Appendix A
omitted from publication.]
(b) Make the employees listed in Appendix A, part I,
whole for any loss of earnings they may have suffered by
reason of the Company's discriminatory failure to reinstate
them, in the manner and to the extent set forth in the section
of this Decision entitled "The Remedy."
(c) At such time as the Company resumes operations, it
shall post at its plant in Tiffin, Ohio, copies of the attached
notice marked "Appendix B."" ' Copies of said notice, on
forms provided by the Regional Director for Region 8, after
being signed by the authorized representative of the Compa-
ny, shall be posted by the Company at all places where
notices to employees are customarily posted, and shall be
kept posted for 60 consecutive days. The Company shall
take reasonable steps to insure that the notices are not
altered, defaced, or covered by any other material, provided
that if the Company does not resume operations until the
persons who are to receive backpay are selected in accor-
dance with paragraph 2(b) of this recommended Order, the
fourth sentence of the notice shall be changed to read: "We
will make the following persons whole for the loss of
earnings they suffered as a result of the discrimination
against them" and shall be followed by the names of the
selected persons.
(d) Notify the Regional Director for Region 8, in writing,
no later than (i) 20 days from the date of this order, or (ii)
the date operations at the plant are resumed by the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
282
ROUTH PACKING COMPANY, INC. 283
Company, what steps have been taken to comply with this analyze the amount of backpay due under the terms of this
Order. Order.
(e) Preserve and, upon request, make available to the IT IS FURTHER RECOMMENDED that the complaint be
Board or its agents, for examination and copying, all payroll dismissed insofar as it alleges that Respondent violated the
records, social security payment records, timecards, person- Act in other respects.
nel records and reports, and all other records necessary to