Snowshoe Co.

National Labor Relations Board - Board Decisions

May 21, 1975

217 N.L.R.B. 1056 (N.L.R.B. 1975)

1056 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Snowshoe Company and Laborers' International
Union of North America, Local Union No. 1182,
AFL-CIO. Case 6-CA-7160
May 21, 1975
DECISION AND ORDER -
By MEMBERS FANNING, KENNEDY, AND PENELLO
On December 31, 1974, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent Snowshoe
Company filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, tide 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 brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge only to the ex-
tent consistent herewith, and to adopt her recom-
mended Order as modified herein.
The Administrative Law Judge found that Respon-
dent's refusal on November 5, 1973,1 immediately to
reinstate seven economic strikers upon their uncondi-
tional offer to return to work violated Section 8(a)(3)
and (1) of the Act. We find merit in Respondent's
exception to this finding.
The strike commenced on Friday, November 2.'
During the following weekend, Harold Guy Riley' re-
quested International Representative Jack Gillespie to
come to the worksite Monday morning to confer with
Respondent's representatives.' On Monday morning,
some of Respondent's striking employees reported to
the Company's premises. While most proceeded
through the site entrance and went to work, the seven
strikers in question remained at the entrance awaiting
the outcome of the conference between union and com-
pany representatives.' When Gillespie asked Dr.
Brigham if he would put the strikers back to work
immediately, Brigham agreed to put them all back to
work the next day except for Riley, and said that Riley
was fired.' Respondent's witnesses testified-that the
1 All dates hereinafter refer to 1973
2 On this date, all employees gathered at the Company's entrance and
decided they would not work until the Company recognized the Union as
their representative The employees then proceeded as a group to the site
office. When the Company refused to recognize the Union, all except one
employee left the premises.
3 Before the employees went to Respondent's office on Friday, Riley, who
is one of the seven strikers in question , was appointed the employees'
spokesman.
4 When the employees walked off the premises on Friday, November 2,
Riley indicated that he would see Respondent's president, Dr. Thomas H
Brigham, again on Monday, November 5, with the union representative
- 5 Jack Gillespie and Harold Guy Riley met with Dr. Brigham and Respon-
dent's manager, Daniel J. Seme, Jr
confusion which was created by the strikers' sudden
offer to return to work, on a morning when newly hired
employees had already begun to work,' necessitated a
day's delay in planning the disposition of its work force.
It is well settled that, absent a legitimate and sub-
stantial business justification for not reinstating them,
economic strikers are entitled, upon application, to im-
mediate reinstatement to their former or substantially
equivalent positions of employment unless such posi-
tions have been permanently filled or eliminated or are
unavailable! Here, the seven strikers in question had
made an unconditional offer to return to work at the
Monday morning conference.9 Contrary to the Ad-
ministrative Law Judge, however, we find that Re-
spondent did not fail to offer timely reinstatement to
the strikers other than Riley. Rather, we find that Re-
spondent has shown a legitimate and substantial busi-
ness justification for the day's delay in affording these
strikers reinstatement.
Nor do we agree with the Administrative Law
Judge's finding that Respondent was not justified in
requiring the strikers to contact the office individually.
An employer may not impose a requirement that eco-
nomic strikers file individual applications as a condition
to their reinstatement.10 In the instant case, however,
there is no evidence that either Gillespie or the strikers
believed that the filing of individual applications was a
prerequisite to reinstatement. Rather, the strikers were
only informed to "contact" the office and that they
would be put to work. Thus, Respondent had already
agreed to put the strikers back to work when it re-
quested that they contact the office. Imposition of this
reasonable administrative requirement does not, in our
view, constitute a requirement that strikers file in-
dividual applications prior to reinstatement.
Respondent, however, failed to offer immediate rein-
statement to Harold Guy Riley. Thus, the evidence
establishes that, unlike the other strikers, Riley was
told by Respondent that he would not be reinstated but
that instead he was discharged. Accordingly, we affirm
6 The complaint does not allege that this remark was separately and
specifically unlawful
7 Between the commencement of the stake on November 2 and the
conference on November 5, Respondent hired eight new employees. One
was hired on November 3 and seven were hired on November 5. Respond-
ent does not contend, however, that work was unavailable for the seven
strikers in question
8 N.L R.B. v Fleetwood Trailer Company, Inc, 389 U S 375 (1967),
N . L R.B. v M a c k a y Radio & T e l e g r a p h C o . , 304 U S 333 (1938); Daniel
A. Donovan, et al., d/b/a New Fairview Hall Convalescent Home, 206 NLRB
688 (1973); Newspaper Production Company, 205 NLRB 738 (1973), The
Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (C.A 7,
1969).
9 As found by the Administrative Law Judge, such offer was made by Jack
Gillespie on behalf of the stokers. We affirm the Administrative Law
Judge's finding that at the Monday meeting Gillespie was the spokesman for
the seven strikers and was recognized as such by Brigham
10 See, e g ., American Machinery Corporation, 174 NLRB 130,
133-134 (1969), Wickland Oil Company, and Freeway Oil Company d/b/a
King Dollar, 161 NLRB 471, 483 (1966)
217 NLRB No. 177
SNOWSHOE COMPANY
the Administrative Law Judge's findings only with re-
spect to Harold Riley.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations 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 Respondent, Snowshoe Company,
Elkins, West Virginia , its officers , agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Harold Guy Riley immediate and full
reinstatement to his former position or, if this position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges , and make him whole for lost earnings suf-
fered as a result of the discrimination against him."
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
IT IS HEREBY FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse immediate reinstatement to
strikers entitled to such reinstatement after mak-
ing unconditional application therefor, or other-
wise discriminate against any of our employees in
regard to their hire, tenure of employment, or any
term or condition of employment.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer Harold Guy Riley immediate and
full reinstatement to the job he held November 5,
1973, or, if that job no longer exists, to a substan-
tially equivalent job, without prejudice to his seni-
ority or other rights and privileges.
WE WILL make Harold Guy Riley whole for any
earnings he lost on and after November 5, 1973,
because of the discrimination against him, plus
interest at 6 percent per annum.
SNOWSHOE COMPANY
,DECISION
STATEMENT OF THE CASE
1057
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Elkins, West Virginia, November 7
and 8, 1974. The charge was filed and served on the Respond-
ent on December 13, 1973. The complaint was issued Septem-
ber 27, 1974, and amended at the hearing.
The issues are (1) jurisdiction; and (2) whether or not the
seven strikers named in the complaint made an unconditional
offer to return to work and if so, whether or not the Respond-
ent refused to reinstate them in violation of Section 8(a)(3)
and (1) of the National Labor Relations act, as amended. For
the reasons given below, I find for the General Counsel on all
counts.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of the
briefs filed by the Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
The Respondent contends it is not an employer engaged in
commerce within the meaning of the Act, and that the Na-
tional Labor Relations Board does not have jurisdiction in
this proceeding.
Since September 1973, the Respondent has been engaged
in constructing a ski resort near Elkins, West Virginia. The
parties stipulated that the Respondent is the same company
as that involved in Snowshoe Company, 212 NLRB 535.'
Based on the jurisdictional facts found by the Board in that
case, with which the Respondent has no quarrel , I conclude,
as did the Board therein, that the Respondent meets the
jurisdictional standards for nonretail establishments by di-
rectly and indirectly purchasing goods and services valued
above $50,000 from outside the State of West Virginia, that
it is therefore engaged in commerce within the meaning of the
Act, and that it will effectuate the purposes of the Act to
assert jurisdiction.
II LABOR ORGANIZATION
The Respondent admits, and I conclude, that the Charging
Party Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
The parties are in substantial agreement as to the back-
ground events. In October and early-November, 1973, the
Respondent employed approximately 20 men in clearing land
for building sites, ski slopes, and cross-country ski trails. The
In its Decision and Direction of Election in 212 NLRB 535 dated July
23, 1974, the Board directed an election in a unit of construction laborers
to determine whether or not they wished to be represented by Laborers'
International Union of North America, Local Union No. 1182,
AFL-CIO, the Charging Party Union herein. The Union lost that election.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seven employees named in the complaint live in or near Cass,
Pocahontas County, and are sometimes referred to as the
Cass group. The other employees live in or near Valley Head,
Randolph County, and are referred to as Valley men. The
Respondent's construction operations are directed by its
president and chief executive officer, Dr. Thomas H.
Brigham , and its mountain manager , Daniel J. Seme, Jr.
In mid-October 1973, employee Harold Guy Riley began
talking unionization to the other employees. He telephoned
Jack Gillespie, International Representative of the Union, at
his White Sulphur Springs office regarding organizing the
employees for the purpose of improving their working condi-
tions, particularly safety measures, and wages. Gillespie
mailed union authorization cards to Riley who, after obtain-
ing employee signatures , mailed the signed cards back to
Gillespie.
On Friday, November 2, 1973, all the employees gathered
at the property entrance and decided they would not work
until the Company recognized the Union as their representa-
tive. They appointed Riley spokesman and proceeded as a
group to the site office. Brigham and Seme came out, and
Riley informed them that the men were dissatisfied with
safety conditions and wages and would not work unless the
Respondent recognized the Union. Brigham declined the
recognition demand, and after some discussion , Seme told the
men that those'who did not want to work should turn in their
hard hats. All except one, George W. Swecker, laid down
their hard hats and left the premises, Riley indicating he
would see Brigham again on Monday with the Union repre-
sentative.
During that weekend, Riley requested International Rep-
resentative Gillespie to come to the site Monday
morning.'
B. Monday, November 5
The events of this date, when the unfair labor practices are
alleged to have occurred, are in dispute. The factual findings
set forth below as to what actually happened have been made
after careful consideration of the conflicting accounts given
by Gillespie and Riley on the one hand, and Brigham and
Seme on the other, and are based essentially on demeanor,
consistencies, and the probabilities Brigham and Seme were
less credible than the two witnesses for the General Counsel.
Brigham 's explanation of an inconsistent statement in his
pretrial affidavit was unsatisfactory, and the record as a
whole conveys the impression that he and Seme were moti-
vated more by self-interest than by a determination to stick
to the facts. Both Brigham and Seme struck me as witnesses
recounting the events of November 5 as they belatedly wished
they had happened rather than as they did happen. By con-
2 No reliance is placed on Riley 's hearsay testimony regarding alleged
coercive statements said to have been made during the weekend by manage-
ment representatives to employees who were not called to testify directly
to such statement Moreover, I do not credit the testimony of Harry Gum,
Jr , where it is unsupported and contradicted For example, Gum testified
that he telephoned Seme Friday afternoon and requested that Gum and the
three Wolfe brothers, of Cass, be permitted to return to work, and that Seme
said they could not. Seme denied receiving such a call, and the Wolfe
brothers did not testify although they were in the hearing room, and I do
not consider Gum's memory or veracity sufficiently reliable to support a
factual-finding.
trast, Riley's failure to list Snowshoe as a prior employer on
a form requested by his subsequent employer was fully ex-
plained In my opinion, Riley tried to tell the truth as he
remembered it and his testimony was generally consistent
with that of Gillespie who was the most impressive of the four
witnesses. Gillespie's testimony appeared to be that of an
experienced professional giving a detached, unexaggerated
account of events he recalled clearly.
On Monday morning, Gillespie arrived in Cass, where he
met several of the strikers, all of whom proceeded to the site
in their own vehicles except for one who rode with Gillespie
to show him the way. The men from Cass brought their
dinner buckets and were prepared to go to work that morn-
ing. They waited together at the site entrance while all the
other strikers proceeded through and went to work. Some of
the latter asked Riley whether to wait until after the confer-
ence with Brigham, but Riley told them to go onto work and
not to wait.' Gillespie told the Cass men assembled at the
entrance that he was going to ask the Company to take them
back under the Company's, and not the Union's, conditions,
as "we would have a much better opportunity of organizing
by them working rather-than not working." Gillespie ex-
plained that he was afraid these men would be replaced and
not be eligible to vote if there had to be a Board election.
Brigham and Seme arrived shortly, and the two of them got
into a nearby automobile with Gillespie and Riley. In the car,
Gillespie informed Brigham that he had cards signed by the
men. Brigham replied he had done this kind of work in North
Carolina and did not have a union down there. Gillespie told
him that this was not North Carolina and that these men had
a right to organize. Brigham said he did not know about that
but would have his attorney contact Gillespie After some
discussion of safety conditions, Gillespie asked if Brigham
could put the seven Cass men back to work immediately, and
Brigham replied, "No," but to have them contact the office
that afternoon and he would put them all back to work the
next day, except for Riley and that Riley was fired.4 Gilles-
pie thereafter got out of the car and went over to where the
men were standing and told them to contact the office that
day and they would be put back to work. He asked, them to
go back to work under the Company's conditions and not
under the Union's conditions, and told them that that was the
best thing to do. They agreed to do so.
Brigham's attorney did not contact Gillespie that day. The
Cass strikers did not contact the Respondent's office and no
further offer was made to them.'
C. Conclusions
It is not disputed that the seven men in the Cass group were
economic strikers, that there was work available for them to
3 I do not consider the testimony of Mike Ritter that he went to work
without speaking to Riley as a contradiction of Riley's testimony to the
above effect
4 The complaint does not allege that this remark, nor Brigham's and
Seme's admitted statements on Friday, November 2, to all the strikers that
management considered they had quit, were separately and specifically
unlawful
5 No reliance is placed on the testimony of Jack Channell whose credibil-
ity was undermined by his erroneous insistence that he had not discussed
the case with a Board agent before the hearing
SNOWSHOE COMPANY 1059
dc, and that they had not been replaced on Monday morning,
November 5.
Based on the above credibility resolutions, I find that at his
conference with Brigham and Seme on Monday morning
Gillespie made an unconditional offer for the seven, strikers
-to return to work. Contrary to the Respondent's contention,
I find that it was only during the Friday meeting which
Gillespie did not attend, and not at the Monday meeting
which he did attend, that Riley said the men would not return
until the Respondent recognized the Union. This finding is
supported by the facts that Gillespie, who clearly was the
spokesman for these strikers and concededly was recognized
as such by Brigham,6 was determined that they should call
off the strike, and that the men came to the site Monday with
their dinner buckets prepared to go to work as all the other
strikers did.
As economic strikers, the Cass employees were entitled to
immediate reinstatement upon the unconditional request of
their representative particularly where as here they had not
been replaced and work was immediately available.' In
these circumstances , there is no merit in the Respondent's
contention that there was confusion on Monday morning
which entitled it to d day's delay in planning the disposition
of its work force which had been expanded by the hiring of
additional employees during the weekend! Moreover, the
Respondent was not justified in requiring the strikers to con-
tact the office individually and they were not obligated to
comply therewith,' even though they agreed at the time
with their union representative's advice they do so.io
I conclude that the Respondent's refusal on November 5,
1973, immediately to reinstate the seven economic strikers
upon their unconditional offer to return to work constituted
discrimination against them which discouraged membership
in the Union, in violation of Section 8(a)(3), and interfered
with, restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7, in violation of Section 8(a)(1)
of the Act.
V REMEDY
In order to effectuate the policies of the Act, I recommend
that the Respondent be ordered to cease and desist from the
unfair labor practices found and from infringing in any like
6 NL.R.B v I. Posner, Inc., 304 F 2d (C.A 2, 1962), American Machinery
Corporation, 174 NLRB 130, 133 (1969), enfd 424 172d 1321 (C.A 5,
1970)
7 Daniel A Donovan, et al d/b/a New FairviewHall Convalescent Home,
206 NLRB 688 (1973); Newspaper Production Company, 205 NLRB 812
(1973)
8 Community Motor Bus Co, Inc., 180 NLRB 677 (1970); American
Machinery Corporation, supra, at 134. The Rogers Manufacturing Com-
pany, 197 NLRB 1264 (1972), relied on by the Respondent, is inapposite
in this respect
9 Wickland Oil Company et at, 161 NLRB 471, 483 (1966).
10 Mooney Aircraft, Inc., 132 NLRB 1194 (1961).
or related manner on the rights guaranteed its employees by
the Act.
Having found that the Respondent unlawfully refused to
immediately reinstate seven economic strikers, I also recom-
mend that it be ordered to offer these employees immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges, and to
make them whole for any earnings lost on and after Novem-
ber 5, 1973, because of the discrimination against them, plus
interest at 6 percent per annum. F W. Woolworth
Company, 90 NLRB 289 (1950), Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Snowshoe Company, of Elkins, West Vir-
ginia, its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing immediately to reinstate striking employees
entitled to such reinstatement after making unconditional
application therefor, or otherwise discriminating against any
employee in regard to hire, tenure of employment, or any
term or condition of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employee in the exercise of the rights
guaranteed them by Section 7 of the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer the below listed employees immediate and full
reinstatement to their former jobs, or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges, and make them
whole for their lost earnings in the manner set forth in the
section of this decision entitled "Remedy:"
Harry C. Gum Clayton H. Wolfe
Max Lee Kramer Henry N. Wolfe
Charles K. McNellan Raymond R. Wolfe
Harold Guy Riley
(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, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under this Order.
ii 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
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its premises near Elkins , West Virginia , copies
of the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 6, after being duly signed by an authorized representa-
11 In the event that the Board ' s 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."
tive of the Respondent , shall be posted by the Respondent
immediately upon receipt thereof, and be maintained 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 insure
that the notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director , in writing , within 20 days
from the date of this Order, what steps the Respondent has
taken to comply herewith.