Seyforth Roofing Company of Alabama. Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1982

263 N.L.R.B. 368 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seyforth Roofing Company of Alabama, Inc. and
John Rolley. Case 10-CA-16647
August 13, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 14, 1982, Administrative Law Judge
Robert A. Gritta issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and the General Counsel filed a reply
memorandum to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
Charlie Appling, one of the nine unlawfully dis-
charged striking employees in this case, testified
without contradiction that he did not receive Re-
spondent's February 9, 1981, letter offering him re-
instatement to his prior position. The letter was
I In light of our affirmation of the Administrative Law Judge's conclu-
sions that Respondent unlawfully discharged its striking employees on
January 28, 1981, we find it unnecessary to pass on the Administrative
Law Judge's comnment that, were it not for his conclusion that the em-
ployees had already been discharged, he would have found Respondent's
failure to accept the striking employees' February 5, 1981, unconditional
offer to return to work to have been unlawful. However, we do note,
contrary to the Administrative Law Judge, that there is evidence in the
record that Respondent might have replaced certain of the striking em-
ployees. Indeed, the Administrative Law Judge's subsequent discussion in
this regard makes reference to some of that evidence.
2 In his remedy, the Administrative Law Judge recommended that Re-
spondent be ordered to pay each dicrfiminatee backpay from January 28,
1981, the date of their unlawful discharges, to February 12, 1981, which
the Administrative Law Judge incorrectly stated to be the date of Re-
spondent's offer of reinstatement. The incorrect reference to February 12
appears to be inadvertent, since the record clearly establishes (and the
Administrative Law Judge correctly found elsewhere in his Decision)
that the date of Respondent's letter offering reinstatement was February
9, 1981.
Additionally, we find that Respondent's backpay obligation was tolled
not on February 9, the date of Respondent's letter, but 5 days later, on
February 14, 1981, which was the last day on which the employees could
reply to the offer of reinstatement, pursuant to the terms of the letter
itself Bay State Lobster Co.. Inc., 235 NLRB 458, fn. 2 (1978); Southern
Household Products Company, Inc.. 203 NLRB 881, 882 (1973).
Also, the Administrative Law Judge stated in his remedy that "Each
discriminatee, having declined Respondent's offer of reinstatement, shall
not have any restoration of his employment rights." More precisely,
however (and consistent with the express terms of Respondent's offer of
reinstatement), the striking employees, having been unlawfully discharged
on January 28, 1981, and (except for Charlie Appling, discussed infra)
having subsequently declined Respondent's February 9, 1981. offer of re-
instatement, retained their status as economic strikers, with the rights
attendant to that status. Abilities and Goodwill. Inc., 241 NLRB 27, fn. 5
(1979); see, generally, The L.aidlaw Corporation, 171 NLRB 1366 (1968).
263 NLRB No. 48
sent to Appling in care of one of the other unlaw-
fully discharged striking employees, Clarence
Quarles (misspelled in the internal address of the
letter as "Quarter"), at Quarles' address, which Re-
spondent contends was the only address it had for
Appling.3
Appling also testified that he had no secondary
knowledge of Respondent's offers of reinstatement
to him or the other striking employees. While this
testimony was also uncontradicted, the Administra-
tive Law Judge found it to be implausible under
the circumstances, and did not credit it.
In light of the method employed by Respondent
to notify Appling of its offer to reinstate him, and
Appling's uncontroverted testimony that he never
received such notification, we find, under the cir-
cumstances of this case, that Respondent has not
communicated an adequate offer of reinstatement
to Appling.4 Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended remedy
and Order to require Respondent to offer Appling
immediate and full reinstatement to his former posi-
tion or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to
his other rights and privileges previously enjoyed,
and make him whole for any loss of earnings he
may have suffered as a result of Respondent's fail-
ure to do so, computed in the manner set forth in
the remedy section of the Administrative Law
Judge's Decision. However, nothing in our Order
is to be construed as precluding Respondent from
presenting affirmative evidence in compliance pro-
ceedings to establish that the method it employed
to notify Appling of its offer of reinstatement,
while tenuous, was nevertheless reasonable under
the circumstances, and thus sufficient to toll its
backpay obligation to Appling. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that the Respondent,
Seyforth Roofing Company of Alabama, Inc., Bir-
mingham, Alabama, its officers, agents, successors,
3The General Counsel and Respondent stipulated that Quarles and the
other seven unlawfully discharged striking employees did receive their
February 9, 1981, letters from Respondent, identical to that sent to Ap-
pling, offering them reinstatement to their prior positions.
4 Offers of reinstatement sent through third parties are normally not
sufficient. See King Trucking Company, 259 NLRB 725, 730 (1981); Carter
of California, Inc., d/b/a Carter's Rental, 250 NLRB 344, 350 (1980); Mi-
chael M. Schaefer, an Individual Proprietor, 246 NLRB 181 (1979); Bro-
mine Division. Drug Research, Inc., 233 NLRB 253, 260 (1977).
5 See, generally, Marline Industries Corporation, et al., 234 NLRB 285,
287-289 (1978).
368
SEYFORTH ROOFING COMPANY
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Offer Charlie Appling immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge or otherwise dis-
criminate against our employees because they
have engaged in protected concerted activities
for their mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.
WE WILL offer Charlie Appling immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Charlie Appling, Anthony
Boddie, Charlie Burrell, Joe Hill, Andrew
Long, Clarence Quarles, John Rolley, Carl
Stewart, and Reginald Townes whole with in-
terest for any loss they incurred as a result of
our discrimination on January 28, 1981.
SEYFORTH ROOFING COMPANY OF
ALABAMA, INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge: This
case was heard on December 1, 1981, in Birmingham,
Alabama, based on a charge filed by John Rolley, an in-
dividual (herein the Charging Party), on February 4,
1981, and a complaint issued by the Regional Director
for Region 10 of the National Labor Relations Board on
March 5, 1981.' The complaint alleges that Seyforth
Roofing Company of Alabama, Inc. (herein Respondent),
violated Section 8(a)(1) of the National Labor Relations
Act (herein the Act) by discharging nine employees for
engaging in concerted activities. Respondent's timely
answer denies 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 intro-
duce evidence, and to argue orally. Briefs were submit-
ted by the General Counsel and Respondent. Both briefs
were duly considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
FINDINGc, OF FACT
1. JURISDICTION
The complaint alleges, Respondent admits, and I find
that Seyforth Roofing Company of Alabama, Inc., is an
Alabama corporation engaged in the commercial roofing
business in Birmingham, Alabama. Jurisdiction is not in
issue. Respondent, in the past 12 months, in the course
and conduct of its business operations, purchased and re-
ceived at its Birmingham, Alabama, facility goods and
materials valued in excess of $50,000 directly from points
located outside the State of Alabama. I conclude and
find that Seyforth Roofing Company of Alabama, Inc., is
an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue in this case is whether the nine employ-
ees making up a roofing crew were discharged for en-
gaging in a concerted work stoppage.2 If so, a violation
of Section 8(a)(1) has occurred. If not, the complaint
must be dismissed in its entirety.
B. Concluding Findings
Respondent's roofing operation utilizes basically three
classifications of employees. Two, the roofer and kettle-
man, are skilled, or in the least experienced, whereas the
third, laborer, is unskilled. Roofer wages vary from $5.75
to $8 an hour while a kettleman earns $4.50 to $6 an
hour. Laborers receive $3.50 to $4.50 an hour, and new
hires with little or no experience get minimum wage
($3.35).
During January a dispute developed between the nine
named employees and management concerning the dif-
ference in wages paid long tenure employees and those
' All dates herein are in 1981 unless otherwise specified.
a The parties stipulated that the nine employees engaged in a strike
over wages on January 28. The strike is therefore protected by the Act.
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees newly hired.3 The dispute came to a head on
January 28 when the nine employees confronted manage-
ment, Dan Hand, president, and Hal Lee, general man-
ager. (Hand and Lee are stipulated to be supervisors
within the meaning of the Act.) Hand and Lee suggested
to the group that they select a representative to speak for
them. The group selected Joe Hill. Hill told Hand and
Lee that the group of nine employees were not going to
work that day and would not come back to work until
they got more money. Hand and Lee explained to Hill
that recent raises in the last 45 days were all the employ-
ees could expect at present. Hand told Hill specifically
that there would not be any pay increases at this time,
but they could have their jobs at the same rate of pay.
Whether the group made their intentions, with regard to
returning to work, clear or not, Lee and Hand told them,
"If we don't hear from you, if you don't report to work
in the morning, we have to assume that you've quit."
The group then left the premises.
Later that day Lee informed the group's foreman,
Musgrove, of the situation. Lee testified, "I told him the
people were not coming back to work and that we had
told them they could have their jobs back, and to go
ahead and hire some people if they [the group of nine]
didn't come back to work on the morning of January
29." Several laborers and a roofer were hired in the next
few days prior to any further contact with the nine em-
ployees.
On February 3, Quarles and Appling telephoned Hand
asking if they could have their jobs back. Hand told
Quarles and Appling to come in the next day (February
4) and he would talk to them about it. Quarles and Ap-
pling did go to the office on February 4. Hand met them
and invited them in out of the cold and suggested they
wait for Lee to arrive. Lee did arrive and spoke to
Quarles and Appling. Lee stated that he told both
Quarles and Appling that they had been replaced by new
hires, but did not mention any other replacements. Lee
did acknowledge, however, that as far as he was con-
cerned neither Quarles nor Appling nor any other of the
nine employees had a job at Seyforth at this time. Lee
denied that he told any of the nine employees at any
time that they were fired. Quarles and Appling con-
firmed that Lee mentioned hiring some new employees
and replacing both Quarles and Appling several days
before, but added that Lee told them point blank, "You
are fired, so get the whole group together so I can tell
them all, face to face." Quarles and Appling left the
office and went to Joe Hill's house where the entire
group was assembled. Quarles and Appling reported to
the group that Lee had said the Company hired new em-
ployees to replace them and that the group was fired.
Also, the group was told of Lee's request that all report
to the office February 5.4
s Charlie Appling, laborer; Anthony Boddie, roofer; Charlie Burrell,
laborer; Joe Hill, roofer; Andrew Long, laborer; Clarence Quarles, kettle-
man; John Rolley, roofer; Carl Stewart, roofer; and Reginald Townes,
roofer.
4 Joe Hill's testimony of the meeting was too confused to be helpful
and for the most part was contradictory of the other witnesses. I have,
therefore, relied on the testimony of the other witnesses of both parties.
On the morning of February 5 the group of nine ar-
rived at the office. Lee was not in yet, so Hand told
Rolley to come into the office alone as the group's
spokesman. Rolley told Hand that the employees had
talked it over and all wanted to return to work. Hand
told Rolley that he had to hire some people and did not
know who he could put back to work immediately.
Hand said he would talk with Lee to ascertain just who
had been hired and where they were placed, and then
decide about putting some of the nine employees back to
work. He told Rolley to tell the group to call back that
afternoon at 3:30. Rolley did not dispute the substance of
Hand's statement, but he did deny that Hand mentioned
newly hired employees. Rolley stated that he told the
group what Hand had said; and, while they were assem-
bled, Lee appeared and asked Rolley if he told the men
what Hand said about calling in later. When Rolley re-
sponded that he had informed the group, Lee queried,
"What y'all waiting on?" Rolley recalled that Lee was
asked if his previous statement applied to the whole
crew. Lee said, "Yes, we're going to hire new men." Of
the entire group, only Appling called the Company at
3:30 and spoke to Hand. Hand said Appling was drunk
and was told he had been replaced, ending the conversa-
tion.
Several of the witnesses recalled different phraseology
used by Hand and Lee, but, except for Hand's and Lee's
denial that the group were told they were fired, there is
little dispute on the facts.
As is frequently the case, I find that I cannot totally
credit any witness. I was not unfavorably impressed by
any witness' demeanor, but the inability of any witness to
recall the events with any degree of certainty left me
with doubts I can only resolve with probabilities. Both
Hand's and Lee's state of mind and expressed opinions
evince intent which in turn helps explain the employees'
understanding of certain actions by Hand and Lee.
That the nine employees represented by Joe Hill on
January 28 thought they were unemployed is clearly
borne out by the record testimony. Lee thought their
employment had ceased on January 28, and Quarles and
Appling on February 3 telephoned to question whether
they were still employed. Each event that transpired
thereafter was bottomed upon the entire crew's unem-
ployed status without regard for the effect of hiring sev-
eral new employees. Hand, on February 5, had told the
entire crew to call back to talk about getting their jobs
back. Lee's affirmation of Hand's directive clearly left
the choice of returning to each individual employee
rather than dictating selection on the basis of which em-
ployee had been previously replaced. Further, Respond-
ent's offer of reinstatement to the entire crew rather than
a selected few tends to negate a striker replacement. 5
Thus, the entire group of nine employees were without
an employer as of January 28. Respondent's statement to
the assembled employees on January 28 left virtually no
room for doubt. A quit separates the employment bond
s Albeit the offer is not controlling of the discharge issue, it is a factor
probative of striker replacement, particularly where the permanency of
replacement may be questioned.
370
SEYFORTH ROOFING COMPANY
as surely as any involuntary termination. An assumed
quit, as we have here, does no less.
It is undisputed that the nine employees began a pro-
tected concerted work stoppage on January 28. Though
disputed as a matter of law, it is not subject to question
as fact that the employees' employment status was termi-
nated as a direct result of their work stoppage and that
future employment rights were both misstated and misap-
plied. Striking employees, by law, maintain important
employment rights and are insulated from discharge for
engaging in a strike. Any misstatement or misapplication
of such rights communicated to the striking employees
has a coercive impact on employee participation and is
an impermissible threat to the right of employees to
engage in protected concerted activities. The communi-
cation in the instant case unequivocally impressed upon
the strikers the loss of their status as employees as a
direct result of their strike. I therefore conclude and find
that the statement made to the assembled employees on
January 28 by Hand and Lee, to wit: "If you don't
report to work in the morning, we have to assume that
you've quit," is a threat of discharge and an actual dis-
charge, bottomed upon the employees' striking activity
and each independently violates Section 8(a)(1) of the
Act. Respondent shall be ordered to remedy the viola-
tions including backpay. See Abilities and Goodwill, Inc.,
241 NLRB 27 (1979).
With regard to the communications of February 4 and
5 wherein Lee was alleged to have stated that the group
of nine were fired, I credit Lee's denials that any em-
ployee was fired. Lee sincerely made his best attempt to
recall the incidents as they happened. His testimony was
not guarded nor did it appear designed to support any
preconceived positions. On the other hand, the testimony
of Hill, Quarles, Rolley, and Appling on this particular
point appeared confused and unduly influenced by con-
clusions and speculations. As my findings show, there is
no room for doubt that the nine employees understood
that they were terminated as of January 28, a time prior
to the alleged statements. The record, as a whole, clearly
shows that the conduct of both parties after January 28
was based on a prior separation from employment of the
nine employees. The weight of the evidence is contra to
alleged statements of Lee which themselves are incon-
sistent with the undisputed conduct that took place con-
temporaneously with the alleged statements.
The offer to return made by Rolley on behalf of all
nine employees on February 5, were it not for the previ-
ous discharge, would be the basis for an additional viola-
tion by Respondent's refusal to immediately return the
striking employees to work. There is no evidence to sup-
port that the striking employees or any number of them
were actually replaced. Indeed, Hand's statement to the
employees, confirmed by Lee, was simply that he did not
know who, if any, had been replaced, so all employees
were to call in later. Lee's previous statement of hiring
new employees to replace the strikers is no more certain
than Hand's. In the final analysis only Appling was told
he was replaced upon making application and whether
he was is open to question.6 Cf. Hilton International Co.,
d/b/a San Jeronimo Hilton Hotel, 187 NLRB 947 (1971).
Respondent contends that its offer of reinstatement on
February 9 is a litigation tactic and therefore not ger-
mane to the issues herein. The General Counsel argues
that the substance of the offer is relevant and material to
the factual issues to be proved in this proceeding. My
conclusions are somewhere between the opposing views.
The offer was made and is exhibited in the record for its
substance; however, as evidence of Respondent's intent
in prior conduct I find it insubstantial. I do consider Re-
spondent's offer relevant to any remedy that may be or-
dered and in that regard I conclude and find that Ap-
pling, contrary to his protestations, did have knowledge
of the offer and elected not to act thereon. I find support
for this conclusion in the undisputed facts that the group
was close-knit, and they discussed the positions of them-
selves as well as the managers before and after each facet
of the case unfolded and with some expertise and guid-
ance from the Regional Office. It is therefore incredible
to me that Appling would not be the least aware of the
offer by Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent violated Section 8(a)(1) of the Act by
its discharge of the nine employees engaged in protected
concerted activity.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged Charlie
Appling, Anthony Boddie, Charlie Burrell, Joe Hill,
Andrew Long, Clarence Quarles, John Rolley, Carl
Stewart, and Reginald Townes, its employees, I find it
necessary to order it to pay each discriminatee backpay
computed on a quarterly basis and interest thereon, to be
computed in the manner prescribed in F. W Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977),7 from January 28, 1981,
the date of discharge, to February 12, 1981, the date of
Respondent's offer of reinstatement. Each discriminatee,
having declined Respondent's offer of reinstatement,
shall not have any restoration of his employment rights.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
6 Add to this the temporary nature of several so-called replacement
employees and it is clear that the reinstatement nghts of the striking em-
ployees would not be qualified.
7 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER s
The Respondent, Seyforth Roofing Company of Ala-
bama, Inc., Birmingham, Alabama, its officers, agents,
successors, and assigns, shall:
i. Cease and desist from:
(a) Discharging employees because they have engaged
in protected concerted activity for their mutual aid or
protection.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make the following employees whole for their loss
of earnings in the manner set forth in the remedy section
of this Decision:
Charlie Appling
Anthony Boddie
Charlie Burrell
Joe Hill
Andrew Long
Clarence Quarles
John Rolley
Carl Stewart
Reginald Townes
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for exami-
nation and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to effectuate the
backpay provisions of this Order.
(c) Post at its facility in Birmingham, Alabama, copies
of the attached notice marked "Appendix."9 Copies of
said notice, on forms provided by the Regional Director
for Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
372