Sigma Service Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1977

230 N.L.R.B. 316 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sigma Service Corporation and Willie London. Case
15-CA-6089
June 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 16, 1977, Administrative Law Judge
Joseph L. Battle issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Sigma Service
Corporation, Baton Rouge, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JOSEPH L. BATTLE, Administrative Law Judge: This case
was heard at Baton Rouge, Louisiana, on July 28 and 29,
1976, upon a complaint issued by the General Counsel of
the National Labor Relations Board and an answer filed
by Sigma Service Corporation, hereinafter called the
Respondent. The issue raised by the pleadings relates to
whether or not the Respondent discharged alleged discri-
minatees Raymond Brazil, Alex Dewey Chambers, Ephren
Harrison, Claude L. Jackson, Willie London, Herman
Majors, George Randall, Jr.,1 Eddie Singleton, Albert
I The complaint was amended at the hearing to change "George
Reynolds, Jr.," to "George Randall, Jr."
230 NLRB No. 39
Valmore, and Floyd Woolridge on or about January 13,
1976, and thereafter failed and refused to recall said alleged
discriminatees in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended. Briefs have
been received from the General Counsel and the Respon-
dent and have been duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FnNDoNGs OF FACT
The complaint alleges, the answer admits, and I find that
the Respondent is engaged in the construction of railroad
tracks for private industry; its purchase and receipt of
goods and materials in interstate commerce are sufficient
to satisfy the Board's standard for the assertion of
jurisdiction; and the Respondent is an employer within the
meaning of the Act.
In December 1975, the alleged discriminatees sought a
pay increase from their supervisor, Nelson Chambers, who
relayed their request to the Respondent's construction
superintendent, Jim Downs. On the morning of January 13,
1976, while riding to work with Foreman Chambers,
alleged discriminatees Randall and Valmore again talked
with Chambers about a pay raise. Foreman Chambers told
them to talk with Superintendent Downs. When the alleged
discriminatees who were riding with Foreman Chambers
arrived at work about 6:50 a.m., they met with the other
alleged discriminatees. They all talked about requesting a
raise. According to the testimony of alleged discriminatees
Randall and Valmore, these two men then asked Superin-
tendent Downs for a 25-cent-per-hour raise on behalf of all
of the alleged discriminatees. Valmore further testified that,
in response to their request, Superintendent Downs told the
employees that "he had asked for our raise but the man say
he wasn't giving no raise, to take what we were getting or
go home." Superintendent Downs then went into the
office. Later, he returned to the parking lot to give
Foreman Chambers instructions for the day. After Super-
intendent Downs noticed that no preparations were being
made for work, Foreman Chambers informed him that the
men said they were no longer going to work for their
current pay of $2.75 per hour. Superintendent Downs then
instructed Foreman Chambers that "if the men were not
going to any longer work for $2.75 an hour, to fill out their
time for that week and turn it in." Chambers turned in the
timesheets and returned to the alleged discriminatees.
Several times he asked them to go to work for the current
wage rate, but they did not. Alleged discriminatees Jackson
and London testified that the employees were waiting to
present their request to the Respondent's president, Al
Smith. Other alleged discriminatees testified that they
didn't know which tools to load into the truck or what to
do to prepare for work since Foreman Chambers had not
given them their usual instructions for the day. According
to alleged discriminatee London, the employees told
Chambers that "we wasn't quitting the job at all. We just
want a raise." Chambers then informed another of the
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SIGMA SERVICE CORPORATION
Respondent's construction superintendents, George Carl-
ton, of the men's decision not to work without a raise.
About 9 a.m. Superintendent Carlton relayed the men's
decision to President Smith. President Smith and Superin-
tendent Carlton discussed what to do in the situation.
President Smith "understood" that the alleged discrimina-
tees had quit by telling Foreman Chambers that they were
not going to work anymore for the current rate. After his
conversation with President Smith, Superintendent Carlton
had paychecks prepared from the timesheets of the alleged
discriminatees. A little after 9 a.m. the paychecks were
handed out by Superintendent Carlton in the parking lot.
At the request of the alleged discriminatees, Superinten-
dent Carlton also gave them pink slips entitled "Payroll
Change Notices." All of the notices were marked "left," if
marked at all. None were marked "discharged" or "laid
off." By an area indicating "would you reemploy," some of
the notices were marked "No." According to the testimony
of Superintendent Carlton, he did not consciously mark
one notice differently than any other notice.
According to the testimony of Superintendent Downs,
the employment of the alleged discriminatees was at an end
when they received their payroll checks and notices.
Alleged discriminatee Randall testified that when he
received his notice, he told Superintendent Carlton that he
had not left the job, that the men had only asked for a
raise. Alleged discriminatee Randall concluded that he was
terminated "because I got my check and my pink slip with
it .... I had to went, I got my check and pink slip."
Alleged discriminatee Valmore thought he was terminated
and didn't tell the Respondent he wanted to keep his job
because "they gave us our money. We was fired." He did
not reapply "because I was fired and I feel they wouldn't
hire me back." Alleged discriminatee Jackson did not
reapply for reinstatement "because the pink slip said I had
left and had 'no' where it said I would not be rehired."
Likewise, after alleged discriminatee Majors read his
notice, he did not reapply. After the alleged discriminatees
received their payroll checks and notices, the ones who
lived out of town returned home in Foreman Chambers'
truck which was loaned to them. Within a day or two later,
replacements were hired for the alleged discriminatees.
President Smith testified that he later asked alleged
discriminatee Randall to return to work. Supervisor
Chambers testified that he later asked alleged discriminatee
London to return to work. Alleged discriminatees Wool-
ridge, Brazil, and Majors returned to work on January 17,
March 1, and April 18, 1976, respectively. Alleged
discriminatee Woolridge was rehired after Foreman Cham-
bers, at Woolridge's request, asked Superintendent Downs
to rehire him. Alleged discriminatee Brazil testified that
when he was rehired, Foreman Chambers had been asked
to "get anybody you can," but only Brazil was asked to
return to work. According to the testimony of alleged
discriminatee Majors, when he was asked to return to
work, Foreman Chambers told him that the Respondent
was not going to rehire any of the alleged discriminatees.
Subsequently, by letter dated June 4, 1976, the Respondent
invited all of the remaining alleged discriminatees to return
to their jobs with the same terms and conditions of
employment which existed on January 13, 1976. This offer
was made after the unfair labor practice charges were filed
in the case at bar.
Applicable Principles of Law
Section 8(aX)(1) of the Act makes it an unfair labor
practice for an "employer ... to interfere with, restrain, or
coerce employees in the exercise" of their Section 7 rights.
Section 7 of the Act guarantees employees the right to
"engage in . . . concerted activities for the purpose of
mutual aid or protection." A request for a wage increase
made by one or more employees on behalf of other
employees is a protected concerted activity within the
meaning of Section 7 of the Act.
Section 501(2) of the Act defines "strike" to include "any
strike or any other concerted stoppage of work by
employees . . . and any concerted slow down or other
concerted interruption of operations by employees." Thus,
a cessation of work may be no less a strike even though
employees neither label it as such nor engage in additional
activities, such as picketing, which usually accompany a
strike. By striking in support of economic demands,
employees clearly engage in concerted activity for "mutual
aid or protection" within the meaning of Section 7 of the
Act. They do not, by striking in these circumstances, cease
to be employees and their discharge for engaging in the
strike is, accordingly, a violation of Section 8(a)(1) of the
Act. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967).
When faced with an economic strike, an employer is free to
hire replacements for the strikers at any time prior to their
unconditional request for reinstatement; however, it is an
unfair labor practice to discharge economic strikers prior
to the time their jobs are filled. N.LR.B. v. United States
Cold Storage Corp., 203 F.2d 924, 927 (C.A. 5, 1953), cert.
denied 346 U.S. 818 (1953), enfg. 96 NLRB 1108, 1112
(1951).
The use of special words is not necessary in order to
discharge an employee. The test of whether an employee
has been discharged or whether he quit is whether the
statements and actions of his employer would reasonably
lead him to believe that he had been discharged. AMP,
Incorporated, 218 NLRB 33, 36 (1975). A discharge may
occur where an employer terminates an employee by
placing him in a "quit" status. Cone Brothers Contracting
Cornpany, 135 NLRB 108, 109 (1962), enfd. 317 F.2d 3, 7
(C.A. 5, 1963), cert. denied 375 U.S. 945 (1963). Economic
strikers who are unlawfully discharged prior to the time
their jobs are filled are entitled to unconditional reinstate-
ment. N.LR.B. v. International Van Lines, 409 U.S. 48, 52-
53 (1972). This is so because "reinstatement is the
conventional correction for discriminatory discharges,"
Phelps Dodge Corp. v. N.LRB., 313 U.S. 177, 187 (1941),
and is clearly within the Board's authority. Section 10(c) of
the Act. An employee who is discriminatorily discharged
while on strike must indicate abandonment of the strike
and a willingness to return in order to establish a right to
his job and a resumption of his wages, unless there is a
showing that such application would have been futile.
Valley Oil Co. Inc., 210 NLRB 370 (1974). Where such a
showing of futility has been made, the employer itself must
affirmatively offer reinstatement to the unlawfully dis-
charged employee, regardless of whether or not the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged employee makes application for reinstatement.
Moreover, where a showing of futility has been made, an
unlawfully discharged employee is entitled to an uncondi-
tional offer of reinstatement at the termination of the
strike, and his right to backpay commences at that time
despite the fact that he did not apply for reinstatement.
N.LR.B. v. Southern Greyhound Lines, 426 F.2d 1299,
1303-04 (C.A. 5, 1970), enfg. 169 NLRB 627 (1968); Eagle
International Inc., 223 NLRB 29 (1976).
Analysis
The Respondent contends that no concerted activity is
present herein because, in the Respondent's view, alleged
discriminatee Randall, alone, sought a wage increase from
Superintendent Downs only for himself. However, subse-
quent to this conversation, the alleged discriminatees as a
group communicated to the Respondent the fact that they
were refusing to work unless they received a 25-cent-per-
hour raise. Thus, it is clear that the alleged discriminatees,
in seeking a pay increase, engaged in concerted activity.
The Respondent contends that by their action, the alleged
discriminatees, in effect, quit, so that their conduct is not
protected by Section 7 of the Act. However, the alleged
discriminatees did not cease to be employees by engaging
in an interruption or stoppage of work in support of
economic demands. Whether the alleged discriminatees
were waiting to be told what tools to use, or what to do, or
were waiting to see President Smith, it is clear that they did
not voluntarily leave the Respondent's premises, but,
instead, remained as employees who were engaged in a
protected concerted effort to seek a 25-cent-per-hour wage
increase. Through Foreman Chambers, the Respondent's
higher level management officials, Downs, Carlton, and
Smith, were aware of the employees' concerted wage
request.
In light of the employees' continuing strike in support of
their economic demands, the Respondent could have hired
replacements for them. Instead, the employees' efforts to
better their wages caused the Respondent to give the
strikers their final paychecks and notices, most of which
indicated that the strikers had "left" their employment and
would not be rehired. Whatever the paychecks or notices
meant to the Respondent, it is clear from the testimony of
the alleged discriminatees that the Respondent's actions
reasonably led the strikers to believe that they had been
discharged and that application for reemployment would
be futile. The Respondent points out that several of the
strikers subsequently knew that other strikers had been
rehired. However, the Respondent's actions and the
testimony of Foreman Chambers indicate that, in fact, the
Respondent engaged in a selective recall of the employees
with little indication, until the Respondent's letter of June
4, 1976, that the Respondent would meet its obligation of
offering unqualified reinstatement to all of its employees.2
Based upon the circumstances of this case, I conclude
that the Respondent violated Section 8(a)(1) of the Act by
2 Whether the Respondent's subsequent reinstatement of alleged discrin-
minatees Woolridge, Brazil, and Majors and the Respondent's offers of
reinstatement by President Smith and Foreman Chambers to alleged
discriminatees Randall and London, and the Respondent's letter of June 4,
1976, constitute the type of unconditional reinstatement or offer of
discharging the alleged discriminatees for engaging in
protected concerted activity. I further conclude that the
alleged discriminatees could reasonably believe that any
application for reinstatement initiated by them would be
futile. Accordingly, it follows that the discharges violated
Section 8(a)(1) of the Act and that the usual remedy of
reinstatement with backpay should be granted to the
alleged discriminatees. Since the strike ended when the
employees were terminated and went home, no loss of
backpay is attributable to the strike. Thus, the Respon-
dent's backpay obligation runs from January 13, 1976 (the
date the alleged discriminatees were terminated), to the
date upon which each of the alleged discriminatees
received or receives an unconditional offer of reinstatement
from the Respondent.
REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(aXl) of the Act, I
shall recommend that the Respondent be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that the Respondent discharged the
alleged discriminatees because of their concerted activities
in seeking an improvement in their wages, I shall further
recommend that the Respondent be ordered to offer them,
if it has not already done so, immediate and full
reinstatement to their former jobs or, if those jobs no
longer are available, to substantially equivalent employ-
ment without prejudice to their seniority or other rights
and privileges. I shall further recommend that the Respon-
dent be ordered to make them whole for any loss of
earnings they may have suffered as a result of their
discharges by payment to each of them of the amounts they
normally would have earned from January 13, 1976, until
the date of the Respondent's offers of reinstatement, less
net earnings, to which shall be added interest at the rate of
6 percent per annum, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Sigma Service Corporation is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By discharging Raymond Brazil, Alex Dewey Cham-
bers, Ephren Harrison, Claude L. Jackson, Willie London,
Herman Majors, George Randall, Jr., Eddie Singleton,
Albert Valmore, and Floyd Woolridge on or about January
13, 1976, because of their concerted activities in seeking
improvement in their wages, the Respondent has engaged
in and is engaging in unfair labor practices affecting
reinstatement necessary for the Respondent to meet its obligation under the
Act, and whether the June 4, 1976, letter was actually received by each
alleged discriminatee, is a matter for the compliance stage of this
proceeding.
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SIGMA SERVICE CORPORATION
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER 3
The Respondent, Sigma Service Corporation, Baton
Rouge, Louisiana, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from discharging its employees
because they engage in concerted activities for the purpose
of seeking improvement in their wages, or in any other
manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Raymond Brazil, Alex Dewey Chambers,
Ephren Harrison, Claude L. Jackson, Willie London,
Herman Majors, George Randall, Jr., Eddie Singleton,
Albert Valmore, and Floyd Woolridge, if it has not already
been done so, immediate and full reinstatement to their
former jobs or, if those jobs are not available, to
substantially equivalent employment without prejudice to
their seniority or other rights or privileges, and make them
whole for any loss of earnings they may have suffered as a
result of their discharges in the manner set forth within the
section of the Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of compliance
with paragraph (a) above.
(c) Post at its Baton Rouge, Louisiana, place of business,
copies of the attached notice marked "Appendix." 4 Copies
of said notice on forms provided by the Regional Director
for Region 15, after being duly signed by the Respondent's
representative, shall be posted by it 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 the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
3 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 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.
4 In the event the Board's Order is enforced by 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of our employees
because they engage in concerted activities for the
purpose of seeking improvements in their wages.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL offer Raymond Brazil, Alex Dewey
Chambers, Ephren Harrison, Claude L. Jackson, Willie
London, Herman Majors, George Randall, Jr., Eddie
Singleton, Albert Valmore, and Floyd Woolridge, if we
have not already done so, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer are
available, to substantially equivalent employment
without prejudice to their seniority or other rights or
privileges and wE wnLL make them whole for any loss
of earnings they may have suffered as a result of their
discharges from the date we discharged them to the
date we offer (or have offered) full reinstatement to
them.
SIGMA SERVICE
CORPORATION
319