Squibb-Beechnut, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1972

197 N.L.R.B. 897 (N.L.R.B. 1972)

DOBBS HOUSES, INC.
Dobbs Houses, Inc., a Division of Squibb -Beechnut,
Inc. and Ruby Cooper . Case 26-CA-3998
June 23, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 24, 1972, Trial Examiner A. Norman
Somers issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions' 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 Trial Examiner and hereby orders
that Dobbs Houses, Inc., A Division of Squibb-
Beechnut , Inc., Memphis, Tennessee, shall take the
action set forth in the Trial Examiner's recommend-
ed Order.
I As we agree with the Trial Examiner that Respondent 's actions with
respect to Cooper were motivated by her role in the strike , we deem it
unnecessary to consider and therefore have not considered the Trial
Examiner 's further conclusion that Respondent 's actions were destructive of
her reinstatement rights as a returning striker
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS , Trial Examiner: This case was tried
before me in Memphis , Tennessee , on August 17, 1971, on
a complaint issued by the General Counsel on June 25,
1971, on a charge filed by Ruby Cooper on May 7, 1971.
The complaint alleges that the Company violated Section
8(a)(3) and ( 1) of the Act by failing and refusing to recall
i Highway and Local Motor Freight Local 667 affiliated with the
International Brotherhood of Teamsters of America
2 During the hearing, the Company was represented by counsel other
than counsel filing the brief The Company substituted counsel sometime
after the close of the hearing
3 In its answer to the complaint in this proceeding , the Company
contested jurisdiction under our Act, claiming that it was an employer
within the jurisdiction of the Railway Labor Act On this basis also, the
Company had disputed the Board's jurisdiction in a representation
proceeding involving a unit consisting of the production and maintenance
employees of the Company's catering service at the airport , and after Board
certification of the Union on November 29, 1969, refused to bargain
897
Ruby Cooper after a layoff , because of her having
supported and assisted the Union.'
The General Counsel and the Company presented
evidence and have filed briefs , which have been duly
considered . 2 On the entire record and my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent Company is a Tennessee corporation
engaged in the restaurant and airline catering business, at
the Memphis International Airport. Its gross annual
revenue is at least $500 ,000, and its annual purchase and
receipt of materials from out of the State is at least $50,000.
The Company is an employer engaged in commerce, and
the Union (supra, fn. 1) is a labor organization , each within
the meaning of the Act.3
11. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue
The question is whether on the facts as a whole, the
Company's failure to recall Ruby Cooper after her layoff
shortly after her reinstatement at the end of a strike was
discriminatory and thus in violation of Section 8(a)(3) and
(1) on either or both of two bases: (a) that the Company's
subjective motive was discriminatory in that its failure to
recall her was because of her participation in the strike; (b)
in any event that the Company's bypassing her on various
vacancies after the layoff inherently undermined her
reinstatement rights as a returning striker , for which the
Company failed to establish a legitimate and substantial
business justification.
B. The Facts
1. Cooper's employment history from the time she
was hired until her layoff on December 4, 1970
a. Before the strike
Ruby Cooper was hired in the Company's catering unit
(supra, fn. 3) on November 22, 1969. Her work throughout
her employment was "production utility work." This is
work in the kitchen , which has a variety of functions. Until
the strike (which began May 7, 1970, and ended in
November of that year), Cooper's regular work was
washing dishes . She also relieved in the salad , the dessert,
and the cup drawer departments (when help was short
either because of an absence or there was a rush order).
collectively with the Union on behalf of these catering unit employees The
Board accordingly found the Company thereby violated Sec. 8 (a)(5) and (1)
and issued an order directing the Company to bargain with the Union as
representative of the employees in that unit On court review, a decree
issued on June 4, 1971, upholding the Board 's jurisdiction over the
Company and enforcing the bargaining order Dobbs Houses, Inc v
N LR B, 443 F 2d 1066 (C A 6) The Company, in its answer in this
proceeding , filed July 2, 1971, still contested the Board's jurisdiction , stating
that that issue was "still pending" in the appellate courts . This presumably
was because the time for further appellate steps by the Company had not
yet expired. That time has expired , and so far as appears, the litigation by
this time has ended
197 NLRB No. 147
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The quality of Cooper's performance at that work is not in
dispute, and also not disputed is her praise as a "good
worker" given by Don Hunter, who was then the assistant
manager of the catering init.4
b. The strike
On May 7, 1970, employees in the catering unit struck.
Though this occurred while the Company was disputing
the Union's certification as bargaining representative of
these employees (supra, in. 3), the record is silent
concerning the actual cause, and so it is assumed the strike
was "economic." Engaging in the strike were 51 employees,
constituting the bulk of the employees comprising the unit
Cooper's actual participation in the strike had been like
that of the other strikers She walked the picket line and
participated in a "sit-in" at the airport restaurant. This last
consisted of the strikers, in groups of about 20, ordering
and paying for food, but remaining seated, thus leaving no
room for customers. The Company, on August 5, filed suit
in the state court for an injunction and damages ($50,000
compensatory and $150,000 punitive). The defendants
were the Union, its president and two business agents. Also
named as codefendants were Cooper and two other
strikers, Idie Randolph and Earnestine Yarbrough. A joint
stipulation in this proceeding states these three striking
employees were named "as select individuals representing
a class action against the members of [the Union] who
were employed by Respondent." On August 14, a hearing
was held in this suit, and the Court issued an injunction
against all defendants (except the president). At that
hearing, Cooper did not testify, nor was she mentioned in
the testimony. However, two photographs were then put
into evidence, illustrative of the sit-in, with Cooper
appearing in both pictures alongside Business Agent Al
Shaw, one of the other defendants.
c. The strike settlement and Cooper's work on her
return after the strike
Under the settlement made with the Union in November
1970, the Company agreed to take back the strikers who
would apply foi reinstatement. Forty-one strikers were
thus reinstated, including Cooper. (Randolph and Yar-
brough, the other two employee codefendants in the state
court suit never returned-one not having applied for
reinstatement and the other, though offered a job never
having showed up.) As the Company's brief indicates (p.
2):
Employees who had worked during the strike were
placed on lay off status to make room for returning
strikers. Some strike replacements stayed on, presuma-
bly because the nonreturn of some of the strikers made
work available for strike replacements. The record does
not specify the number of strike replacements put on
4 Hunter expressed'that praise directly to her and also to Alean Rogers,
an employee in the unit since 1957 Rogers before the strike, had been at the
silver table, which is near to the cup drawer department Hunter had asked
Rogers to show Cooper what was required on relief at that work, and after
this Hunter expressed to Rogers his appreciation of Cooper as a "good
worker "
5 Supervisor Burchett, on being shown by Cooper the layoff slip that Pat
layoff status when the strike ended or those then
retained.
When Cooper resumed work after the strike, she was put
to work at the silver table (along with two other employees,
who were also reinstated strikers). During the 3 weeks until
she was laid off, she worked 4 days a week at the silver
table and I day a week, Friday, relieving at the belt. (This
last consists of putting the food on the trays that are
conveyed by the moving belt to the planes . See also infra,
fn 9.) Here too there were no complaints concerning her
work, and indeed according to Cooper's undenied testimo-
ny, Mary Burchett, her immediate supervisor at both these
functions, expressed a good opinion of her work.5
2. The layoff and the futile requests to be
recalled
On December 4, 3 weeks after her return, Manager
Woodward informed Cooper that with no blame on her
part he was laying her off along with eight other
employees, because business was down and that she would
be recalled when "business picked up" (as Cooper testified)
or "as soon as possible" (as Woodward testified).
Thereafter, the Company filled vacancies in a variety of
functions at the kitchen, including the belt (March 24 and
29), salad department (April 1), silver table, the work she
had done before the layoff (April 24 and again on May 13),
temporary work relieving at dishwashing (July 14) and
indeed full time at dishwashing (July 3). In March, Cooper,
being unemployed and unsuccessful in efforts to obtain
other employment, and having been informed by an
employee that the Company was hiring, spoke on the
telephone to Assistant Manager Levesque and later to
Manager Woodward. In each instance, she was told there
were no openings and was again assured that she would be
informed when there were any. (Woodward admitted he
had her telephone number.) In April, Cooper spoke twice
again to Levesque In the first call she told him she heard
there was a vacancy in the salad department, the work she
had done on relief before the strike. He said the vacancy
had been filled. In the second call, Cooper said she heard
there was an opening in the silver table, on which she had
worked since her return following the strike. Levesque
informed her that that too was filled. Later in April,
Cooper called again. She reached Frances Davis, the
company secretary. Cooper said she heard the Company
had been hiring and Davis replied all vacancies had been
filled. Manager Woodward admitted that he was informed
by Levesque and Davis of Cooper's calls. When Cooper
filed her charge on May 7, the Company had filled four
vacancies including the one at her fob at the silver table.
After this a vacancy again arose in the silver table and the
job was again filled by another. As stated, by July,
vacancies occurred in her original "regular" work as
dishwasher She was not recalled for this either.
Woodward , manager of the catering service , had handed Cooper on
December 4, expressed her regret that Cooper was let go and informed
Cooper that she had asked Woodward to lay off another employee and
retain Cooper Woodward in his testimony indicated Cooper had worked
under close supervision by Burchett , and he received no complaints from
her about Cooper's work
DOBBS HOUSES, INC.
C The Defense- The Company's Explanation
During the General Counsel's presentation, it had been
made to appear, from company counsel's suggestion on
cross-examination of Cooper, that the Company was
disputing the quality of her work after the strike. Company
counsel suggested that Levesque had told her that she was
"slow" in her work after the strike and she should return to
her "regular" work Cooper categorically denied this, and
company counsel then implied that Levesque would later
be called to support this impugnment of her competence.6
This never happened. Levesque, who was present through-
out the hearing (supra, fn. 6), was never called as a witness
and, as stated, Manager Woodward, when he took the
stand as the Company's only witness, admitted he had
been satisfied with Cooper's performance, that there was
no question concerning her capability, and that no
supervisor, including Levesque, had complained about her
work either before the strike or after her return. The
suggestions of deficiencies in Cooper's performance and
that she had been "permanently terminated" (supra, fn. 6)
was the prelude to the inquiry concerning what the reason
was for her not being recalled, because it was difficult to
rule on the relevancy of that line of inquiry without some
statement of the Company's reason for not having recalled
her. The Company then stated the reason to be that
Cooper had less experience than those with whom it filled
the vacancies.7
Woodward testified that a consultant group, after
analyzing "our operation," recommended in November
1970, that by the end of that year, December 31, 1970, the
catering unit be cut back by 13 people. He testified
accordingly that between November 1970 and December
31, 1970, he reduced the unit by 13 (which decreased its
size to 66) and that Cooper was included in that layoff on
6 On cross-examination of Cooper
Q Did Mr Levesque, the gentleman right here, ever call you into
the office and tell you that your work was deficient, approximately two
weeks before you were permanently terminated? (Emphasis added )
A No
Q That didn't happen?
A No
Q If Mr Levesque gets on the witness stand and testifies under
oath to that effect what is your response to that?
Mr Berger [for General Counsel] Objection, Your Honor
Tnal Examiner We will wait until that happens
•
Q (By Mr Brackhahn) Now, Mrs Cooper, do you know what a
verbal warning is'?
Trial Examiner Something uttered by word of mouth instead of in
writing Did you ever get a warning of that kind'?
The Witness No
•
Q (By Mr Brackhahn) Did Mr Levesque ever discuss your work
after the strike , after you returned to work from the strike9
A No
Q At no time9
A No
Q Did he ever tell you to go back to your department where you
were supposed to be
A Go back to my department'?
Q Yes, ma'am
A No
Q Did he ever tell you that your work was too slow and it had to
be sped up to meet certain standards"
899
December 4, with the assurance that she and the others
included in the layoff would be called back "as soon as
possible." Woodward did not specify whether the 13 thus
cut back included the previously mentioned strike replace-
ments who had been put on layoff status when the strike
ended, but the timing and sense of his explanation as a
whole indicates, as is here inferred, that these strike
replacements were part of the 13 cutbacks referred to by
Woodward. He also did not specify whether or to what
extent any reinstated strikers other than Cooper were
included in the layoff. As the specific reason for laying off
Cooper, Woodward testified that Cooper had the "least
experience" of the three then at the silver table.8 Coleman,
one of the two at the silver table that had been retained
(supra, fn. 8), quit her job on April 23, thereby creating a
vacancy at the silver table. How it was filled will appear as
that item is reached in the sequence.
The joint stipulation shows that from March 24 to July
14, 1970, the Company filled vacancies 17 times. In all
instances except two, it was filled by nonstrikers. The two
exceptions were Frances Evans and Ethel Pointer, who had
been strikers but, when the strike ended, had not applied
for reinstatement and had thus abandoned their employ-
ment, so that they were not in the layoff status to which
Woodward attributed the cutbacks made pursuant to the
consultants' recommendations. Of the total of 17 who filled
vacancies after the layoff, 4 were on men's jobs, thus
leaving 13 vacancies after the layoff involving women's
work. The first two vacancies after the layoff were filled on
March 24 and 29, each for work on relief at the
belt-which Cooper had also done on relief every Friday
of the 3 weeks following her return after the strike. The one
filled on March 24 went to Christine Howard and the other
to Nancy Martz. Each had been hired during the strike and
were among the strike replacements who had been put on
A No
Q Would you remember if he told it to you'?
A Yes
Q Would you remember if he had told you to go back to your
department [t e dishwashing] and continue working'?
A Yes, I would
Q It's your testimony he did not?
A He did not
Q On no occasion'?
A He did not
Q Did he ever discuss the fact that you were slow in your work?
A No
A No
7 In the colloquy concerning this, Company counsel stated Respondent's
position thus
MR BRACKHAHN Well, from all the information that I know and
all that I've been told, that in December a reduction of work force was
required, certain employees had to be terminated because of lack of
work, but that condition has not variated (sic) since At the present date
they are still in a depressed status, from the point of time when a group
of employees, I think around 15, were terminated There has been,
understandably, a turnover where the area of turnover developed In
the silverware, as I understand, it, employees with more experience,
more work experience than Mrs Cooper, were assigned to thatjob and
to that task, and that is the end of the story
TRIAL EXAMINER That's your position
MR BRACKHAHN That's all that I've been told about the matter
8 Lucie Coleman and Rose Gordy, the other two at the silver table, had
not worked there before the strike but they had worked longer in the kitchen
than Cooper
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff status to make room for the returning strikers.
Woodward testified the belt calls for training, which they
had acquired during the strike, that exceeded the training
Cooper had acquired on relief after the strike. Woodward
admitted that Cooper had been "responding to the
training," and that there would have been little difficulty in
her completing that training at the belt .9
On April 1, Woodward filled a vacancy at the salad
function, which Cooper had done on relief before the
strike. It went to Frances Evans, who, as stated, like Ethel
Pointer, had not applied for reinstatement when the strike
ended and had thus abandoned her employment.
On April 23 occurred the vacancy in the silver table
created by the quitting of Lucie Coleman, one of the other
two at the silver table whose greater experience than
Cooper Woodward had testified to be the reason why he
had laid off Cooper. The Company filled that vacancy at
the silver table twice-once on April 24 and again on May
13, and in each instance with one who had had no prior
experience at the silver table. On April 24, Woodward
filled it with Freddie Hyde. She was a strike replacement,
who after the strike worked at the cup drawer until the end
of November, a few days before Cooper was laid off, when
the cup drawer function was eliminated. Woodward
explained that he filled that silver table vacancy with Hyde
on April 24 because he wanted her to replace Ida Dennis,
an employee at the belt, who was soon to go on maternity
leave. Woodward never explained why the anticipation of
later using Hyde at the belt called for his now filling the
vacancy at the silver table with Hyde, when, of the two,
Cooper alone had the prior experience. Further, in view of
the manner in which Woodward's credibility was under-
mined in consequence of demonstrated contradictions,
later discussed, there is a serious question of whether
Woodward truly regarded Hyde as more qualified than
Cooper for even the anticipated vacancy on the belt.fo
When, 3 weeks later, Hyde did replace Dennis on the belt,
thereby again creating the vacancy at the silver table,
Woodward, on May 13, filled it this time with Ethel
Pointer. As stated, she, like Evans, had not applied for
reinstatement at the end of the strike, and having thus
abandoned her employment, was not even on the layoff
status created by the cutback. As Woodward admitted,
9 Cooper candidly admitted that work on the belt was a "little difficult,"
since the menus on the various airlines differ and the employee working at
the belt must be sure to place the proper items on the trays as they move
along the belt . She testified that in each of the three Fridays she was on
relief, she had been observed by Mrs Alexander, an old experienced hand
at the belt work , and that Mrs Alexander never indicated she had made an
error . Also, as Woodward admitted , Mary Burchett , who was Cooper's
supervisor in her work at the silver table and the belt, had at no time
complained of Cooper's performance.
Regarding the specifics of these first two vacancies as filled.
Christine Howard Woodward testified that on March 24, he needed
someone on the belt at the 4 o'clock shift and so he asked her husband, who
was the second cook, whether his wife "was available " Woodward also
testified that Christine Howard , as a strike replacement , worked part-time at
the hot food section along with her husband and also, as he added later on
cross-examination , "part-time on the belt "
Nancy Martz . She was called in on March 29 to relieve on the belt twice
a week in connection with the meals of the United Airlines The work on the
belt, as described , is essentially the same for all the airlines and , as stated,
Cooper had done that work on relief during the 3 weeks since the end of the
strike The work given Martz was 2 days a week on relief at the belt for
United Airlines meals and 3 days a week on desserts , which last was one of
Pointer first applied for work only a week before May 13,
or 6 months after she thus abandoned her employment,
and after Cooper's first bypassing at the silver table.
Woodward testified that he, in discussion with Levesque
who participated with him in the hiring process, had
decided to have Pointer fill this vacancy at the silver table
instead of Cooper, because Pointer had had 5 years
"experience at [the] kitchen." On cross-examination,
Woodward admitted that Pointer had had no prior
experience at the silver table and that her only prior
experience had been at the bakery.
Of the six hirings thereafter, four were in June and two in
July. Of the four in June, Divonna Wade, hired June 11 as
a vacation relief in the sandwich department, and Susie
Briggs, hired June 26 in the cook, or hot food, section had
been strike replacements, but Cooper had not worked at
either of these functions. The other two, Velma Ealy and
Flora Turner, were "school girls" hired June 17 for
summertime employment to fill in for employees on
vacations in functions not specified. Turner had been a
strike replacement in 1970 and Ealy was hired "off the
street" with no prior experience. No explanation was
offered as to why this temporary employment was not first
offered to Cooper, since she was looking for work and had
been promised to be informed of any openings.
Of the two hirings in July, each was on work in the dish
room. This was the work at which, as Woodward had
testified, Cooper was "more qualified," and concerning
which she was ""more experienced." Woodward added:
TRIAL EXAMINER: So far as the other jobs are
concerned you had no complaint about her perform-
ance of the other jobs either?
THE WITNESS: No.
THE WITNESS: But she's even better in the dish
room?
THE WITNESS: Yes, sir. That's where she spent most
of her time.
Woodward until then had been stressing that he had filled
vacancies only at work in which the person hired had more
"experience" than Cooper.ii This led to the following
inquiry of Woodward and his response:
Q. (By Mr. Berger) Do you contend that Rosie
Ford is more qualified than Mrs. Cooper?
the three functions Cooper had done on relief before the strike.
is Woodward testified that he employed Hyde as a strike replacement in
May 1970 at the cup drawer, and that that function was eliminated July
1970, after which Hyde worked at the belt . This did not square with
Woodward's earlier testimony , previously mentioned, that the elimination
of the cup drawer occurred in November in connection with the cutback
initiated that month on the consultant group 's recommendation . That it was
in November and not July that the cup drawer function was eliminated and
that Hyde worked at the cup drawer until her layoff, the end of November,
appears further in the undenied testimony of Cooper on her recall to the
stand by Respondent itself. Cooper testified that from the time she came
back in November after the strike until about a few days before her layoff,
when Hyde was laid off, Hyde worked only at the cup drawer . Respondent
had thus been using Cooper on relief at the belt during this period in which
Hyde was being used only at the cup drawer . Woodward's testimony that he
thought that Hyde's experience at the belt, when she was a strike
replacement , surpassed the experience Cooper acquired at that function as a
reinstated sinker or that he truly regarded Hyde as more qualified at the
belt than Cooper is thus of rather dubious reliability.
ii See supra, In. 8. Respondent in its brief further states . "It is the
Company's policy that in recalling employees seniority is not a controlling
factor Employees with the most experience are first recalled "
DOBBS HOUSES , INC. 901
A.
Q.
A.
Q.
A.
Q.
A.
No. She's a new employee.
New employee right off the street?
Yes, sir.
Whatjob did Rosie Ford go into?
Dish room.
Dish room?
Yes.
these others were qualified , as was Cooper. Secondly, it
was the Company itself that "singled" out Cooper and two
other strikers as codefendants in the state court suit.
Respondent made them the focus or symbol of the strike
action . Respondent claims , however , that these were
"select individuals representative" of the strikers as a
whole . But this did not erase the fact that the focus was
now placed on Cooper, who, as stated , was the only one of
the three codefendants who returned after the strike. So
while there was no "independent" violation of Section
s(a)(1) or even expressions of hostility toward the Union,
the consistent manner in which Cooper was not recalled
after the layoff renders her role in the strike the only thing
that "gives rational content to an otherwise irrational act."
See Birmingham Slag Div., 137 NLRB 615, 616, and cases
cited . The preponderance of the evidence thus supports the
General Counsel' s position that the Company' s actions
were motivated by Cooper' s role in the strike.
Q. That is the job that Mrs. Cooper performed for
seven months?
A. Right.
Q. Why was Rosie Ford hired off the street?
A. No. I take it back. Rosie Ford, I've got her
mixed up . Pardon me . I can 't remember which
department Rosie Ford is in at this moment . I thought
she was in the dish room , but I will say not.
Woodward later explained that the only new hiring at
the dish room was that given on vacation relief to a boy,
Vernell Ford. The undenied testimony of Alean Rogers in
rebuttal shows that Woodward was right the first time
before he recanted his testimony that Rosie Ford was hired
at the dish room . Rogers, who since the end of the strike
has worked in the ' dish room , testified that Rosie Ford has
been a regular employee full time in the dish room, while
Vernell Ford, her son , is a vacation relief . The Joint
Stipulation shows Mrs. Ford was hired on July 3 and
Vernell was hired July 14.
D. Appraisal and Conclusion
(1)
The revelation concerning the filling of the vacancy in
Cooper's "regular" job at the dish room by persons taken
"off the street" totally unraveled the fabric of Respon-
dent's defense . Respondent , to be sure , had not engaged in
any "independent" violations of Section 8(a)(1) or even in
antiunion utterances . However, the consistent bypassing of
Cooper, reaching absurdity when she was bypassed twice
at the silver table , when she alone , of the two persons
successively taken had the experience, and finally by her
being bypassed at the dish room vacancy in favor of total
outsiders , are rationally explainable only on the basis of
some hostility to Cooper. Indeed, Woodward's backtrack-
ing of his earlier admission that the job at which he had
hired Rosie Ford was in the dish room, when he realized
that that admission upset the reliance he had been placing
on greater experience as the explanation for the bypassing
of Cooper , bears on Respondent's motivation . Common-
sense would indicate , as does established doctrine, that this
lack of candor "betrayed a purpose to hide the only thing it
[the employer ] could have a motive to conceal-the true
reason for its action." 12
Respondent contends that since Cooper 's role did not
differ from that of the other strikers, it could not have
"singled" her out from the others . Respondent's point is
vulnerable on two scores . First , there is no evidence that
reinstated strikers, other than Cooper , were included in the
layoffs to which Respondent attributed the cutbacks and,
if there were, whether the vacancies were at jobs in which
12 Local No 2, Plumbers (Astrove Plumbing), 152 NLRB 1093 , 1104, enfd.
as modified 360 F 2d 428 (C A 2), cf also Shattuck Denn Mining Corp v
N.L R B , 362 F 2d 466 , 470 (C A 9); Betts Baking Co v NLRB. 380 F 2d
(2)
The foregoing has been on the assumption, in accord
with the Respondent 's assertion , that the General Counsel
bore the burden of establishing the Company's subjective
antiunion motivation in not recalling Cooper. That
assumption overlooks the fact that in the circumstances
here presented , it was Respondent that had the burden of
establishing a legitimate and substantial business justifica-
tion for the bypassing of Cooper in favor of others in the
filling of vacancies after the layoff. At the very time that
Cooper and the other strikers were reinstated , on applica-
tion , Respondent had already embarked on the cutback
program in response to the consultants ' recommendation.
Had Cooper not been reinstated, she would have been
entitled to fill the first ensuing vacancies within the
principle of Fleetwood Trailer.13 Three employees who had
been engaged in an economic strike were denied reinstate-
ment, on application , because the reduction in the
employer 's business lessened the number of jobs now
available for all the strikers . As newjobs opened up in the
course of reaching the prestrike level, the employer
bypassed these strikers in favor of others. In upholding the
Board's conclusion that the Company had thereby discrim-
inated against the bypassed strikers in violation of Section
8(a)(3) and ( 1), the Court said:
If, after conclusion of the strike, the employer refuses
to reinstate striking employees, the effect is to discour-
age employees from exercising their rights to organize
and to strike guaranteed by §§ 7 and 13 of the Act (61
Stat . 140 and 151, 29 U.S.C. §§ 157 and 163). Under §§
8(a)(1) and (3) (29 U.S.C. §§ 158 ( 1) and (3) it is
an unfair labor practices to interfere with the
exercise of these rights . Accordingly , unless the
employer who refuses to reinstate strikers can show
that his action was due to "legitimate and substantial
business justifications," he is guilty of an unfair labor
practice . NLRB v. Great Dane Trailers , 388 U .S. 26, 34
(1967). The burden of proving justification is on the
employer. [Emphasis supplied.]
199, 205 (C A 10)
13 N L R B v Fleetwood Trailer Co, 389 U.S 375
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying that principle, the Board with court approval,
has, beginning with the Laedlaw case, infra, fn. 14, held the
same burden to rest on an employer who refused strikers'
applications for reinstatement because during the strike
their jobs had been permanently filled by strike replace-
ments but when they applied for reinstatement, their
prestrike jobs were again open because the permanent
replacements had interveningly quit or been otherwise
termmated.14 In the most recent application of the Laedlaw
doctrine, the employer on court review, in Hartmann
Luggage, supra, fn. 14, challenged that doctrine. The court
there, stated:
Respondent contends that we should distinguish
between positions made available by expanding pro-
duction and those made available by resignations. We
do not consider the distinction to be of controlling
significance.
The case before us presents a related application of that
doctrine underlying Laidlaw and Fleetwood. To have
bypassed Cooper in favor of others, such as these strike
replacements who had been put on layoff status to make
room for returning strikers, or those entirely outside the
layoff status, like Evans and Pointer who had abandoned
their employment when the strike ended, or like Rosie and
Vernell Ford, who were hired "off the street," undermined
the very reinstatement to which Cooper, as a returning
striker, was entitled. Had Cooper been laid off the day
after her reinstatement arid thereafter been bypassed in
favor of persons other than reinstated stnkers,, it would
have been a pointed example of an illusory, or meaning-
less, reinstatement. It is the same in kind, if not in degree,
to have laid Cooper off 3 weeks after reinstatement and
then bypassed her on ensuing vacancies on work for which
she was qualified, in favor of persons outside her category.
Respondent's action in thus bypassing Cooper, a reinstated
striker, in favor of others, bears comparison also with the
employer's action in N.L R B v Erie Resistor Corp., 373
U.S. 221, 228-229. There the employer, during a strike,
had, as an inducement to persons to accept permanent
employment during the strike, promised them "supersen-
iority" over returning strikers in the event of future layoffs.
The Court that held the employer's action in favoring
strike replacements over strikers in respect to layoffs, or
recall after layoff, was inherently destructive of a striker's
reinstatement rights, which called for the employer's
demonstrating a legitimate and substantial business justifi-
cation for its action. Respondent's action here in favoring
others over Cooper similarly undermined her rights as a
reinstated striker. In the circumstances here presented, the
Company's action in bypassing Cooper on vacancies
occurring after a layoff that was part of a cutback program
already in process when the strike ended was a dishonoring
of its reinstatement obligation to Cooper mitigated by the 3
weeks work interveningly given her. The Company had no
more fulfilled its reinstatement obligation to Cooper than
if, in the example previously stated, it had laid her off the
day after her reinstatement and from then on bypassed her
14 The Laidlaw Corp, 171 NLRB 1366, enfd 414 F 2d 99 (CA 7), cert
denied 397 U S 920, American Machinery Corp v N LR B, 424 F 2d 1321
(C A 5), N L R B v Johnson Metal, Inc, 442 F 2d 1056 (C A 10), N LR B
v Hartmann Luggage Co, 453 F 2d 178 (C A 6).
15 While the bypassing of Cooper on the jobs at the silver table and at
on work for which she was qualified, in favor of others to
whom it was not thus obligated. Respondent's action
inherently undercut her reinstatement rights as a striking
employee, who had timely applied for reinstatement, as did
the action of the employers in the Erie Resistor, Fleetwood,
and Laidlaw line of cases. Like them the Company here,
too, was required to demonstrate a legitimate and
substantial economic justification for its action if it was to
overcome the conclusion that this inherent discouragement
of union activity violated Section 8(a)(3) and (1) of the Act.
The contradictory explanations for the failure to recall
Cooper, if not, as it has been found they are, inherent
evidence of a hostility to Cooper explainable here by her
role in the strike, nevertheless can hardly be said to have
met the requirements of a legitimate and "substantial"
justification for its action within the doctrine of Erie,
Fleetwood, and Laedlaw.
(3)
Thus, Respondent's conduct was discriminatory, in
violation of Section 8(a)(3) and (1) on either or both scores.
First, the inherent contradictions concerning them demon-
strated a hostility to Cooper for whose only rational
explanation in the record is her role in the strike. Secondly,
bypassing her on jobs for which she was qualified in favor
of persons other than in her category was destructive of her
reinstatement rights as a returning striker, for which the
Company failed to establish a legitimate and substantial
business justification.
Ill. THE REMEDY
Respondent's failure and refusal to recall Cooper after a
layoff, having been found to be discriminatory and
therefore an unfair labor practice within the meaning of
Section 8(a)(3) and (1), it will be recommended that
Respondent cease and desist therefrom, and since this
impaired Cooper's tenure in a matter which goes "to the
very heart of the Act" (N.L.R B. v. Entwistle Mfg., 120 F.2d
532, 536 (C.A. 4)), the injunctive provision recommended
will be in broad form.
As affirmative action to effectuate the policies of the Act,
it will be recommended that Respondent post appropriate
notices and offer Ruby Cooper immediate and full
reinstatement to her former position or, if that no longer
exists or is otherwise unavailable for nondiscriminatory
reason, to a substantially equivalent position, without
prejudice to her seniority and other rights and privileges,
and make her whole for any resulting losses in pay under
the formula of F. W. Woolworth Company, 90 NLRB 289,
with interest as set forth in )sis Plumbing & Heating Co.,
138 NLRB 716.15
On the findings above and on the whole record, I hereby
state the following:
the dish room are pointed demonstrations of the discriminatory action, the
wrong had already begun on March 24, 1971, in the first instance in which
Cooper was bypassed on work for which she was qualified. Backpay
accordingly runs from that date
DOBBS HOUSES , INC. 903
CONCLUSIONS OF LAW
1. By bypassing Ruby Cooper in the filling of vacancies
after her layoff because of her membership and support of
the Union, Respondent engaged and is engaging in an
unfair labor practice within the meaning of Section 8(a)(3)
and (I) of the Act.
2. Said unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 16
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
'r 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
is In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 26, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
ORDER
Dobbs Houses, Inc., a Division of Squibb-Beechnut,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Discriminating against Ruby Cooper or any other
employee in respect to layoff or recall after layoff because
of such employee's membership or support of Highway
and Local Motor Freight Local 667 affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, or otherwise discriminating against any
such employee for such reason.
(b) In any other manner interfering with, restraining, or
coercing employees in respect to the exercise of their rights
as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
hereby found will effectuate the policies of the Act.
(a) Offer Ruby Cooper immediate and full reinstatement
to her former position or, if that be unavailable, to any
position substantially equivalent thereto, without prejudice
to her seniority and other rights and privileges, and make
her whole for any loss in pay sustained by reason of such
discrimination, in the manner indicated in the section of
this Decision entitled "The 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
necessary to determine and verify the extent of compliance
with the terms of the Order.
(c) Post at its premises copies of the attached notice
marked "Appendix." 17 Copies of said notice, on forms
provided by the Regional Director for Region 26, after
being signed by Respondent's 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 to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.18
16 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
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had an opportunity to
present evidence, it was found that the undersigned
employer had violated Section 8(a)(3) and (1) of the
National Labor Relations Act by discriminating against
Ruby Cooper by failing to recall her after a layoff, because
of her supporting and assisting Local and Motor Freight
Local 667 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, in a strike. Accordingly, in order to remedy the
unfair labor practice and effectuate the policies of the
National Labor Relations Act, we state the following.
WE WILL NOT discourage membership or support of
said Union, or any other labor organization, by
discriminating against any employee in respect to
layoff or recall after layoff because of membership or
support of said Union or any other labor organization
in a strike or other lawful concerted activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights, as guaranteed by the National Labor Relations
Act, to self-organization, to form, join or assist the
above Union or any other labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activity for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any such activity.
WE WILL offer Ruby Cooper full and immediate
reinstatement to her former position or, if that no
longer exists , or is presently unavailable for legitimate
reasons, to any substantially equivalent position,
without prejudice to her seniority and other rights and
privileges, and WE WILL make Ruby Cooper whole with
interest for any pay she lost by reason of this failure to
recall her.
Any employee is free to join, support, or assist said
Union or any other labor organization, or not to do so,
without discrimination or fear of discrimination for that
reason.
DOBBS HOUSES, INC., A
DIVISION OF SQUIBB-
BEECHNUT, INC.
(Employer)
904
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Representative) (Title)
Should Ruby Cooper be serving in the Armed Forces of
the United States, she will immediately be notified of her
right to full reinstatement , upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Clifford Davis Federal
Building, Room 746 , 167 North Main Street, Memphis,
Tennessee 38103 , Telephone 901-534-3161.