Sure-Tan, Inc. And Surak Leather Co.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 302 (N.L.R.B. 1985)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sure-Tan, Inc. and Surak Leather Co. and Chicago
Leather Workers Union , Local 43L, United
Food and Commercial Workers International
Union, AFL-CIO. Cases 13-CA-16117 and 13-
CA-16229
12 November 1985
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
The Supreme Court' has upheld the Board's
findings,2 enforced by the Court of Appeals,3 that
the Respondent violated Section 8(a)(3) of the Act
by constructively discharging its undocumented
alien employees through reporting them to the Im-
migration and Naturalization Service in retaliation
for participating in union activities. However, the
Court held that the court of appeals exceeded its
reviewing authority by modifying several aspects
of the Board's remedial Order. The Court reversed
the judgment of the court of appeals in part and re-
manded the proceeding to the court of appeals
with instructions to remand it to the Board for for-
mulation of an appropriate remedial order consist-
ent with the Court's opinion. Pursuant to this latter
remand the Board advised the parties that they
could file statements of position. Both the General
Counsel and the Respondent filed such statements
and we have duly considered them.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In the Board's original Order with respect to the
8(a)(3) discharges we entered a cease-and-desist
order and the conventional remedy of reinstate-
ment with backpay. The Board held that a compli-
ance proceeding was the appropriate forum for re-
solving issues relating to the discriminatees' avail-
ability for work and entitlement to backpay.4
The Seventh Circuit enforced the Board's Order
with several modifications. The first conditioned
acceptance of a reinstatement offer and the accrual
of backpay on an individual discriminatee's lawful
presence in the United States. Consistent with this
requirement the court modified the Board's Order
to make clear that backpay is tolled during any
period a discriminatee is not lawfully present and
entitled to be employed in the United States and
the court indicated that backpay need not be
1 Sure-Tan, Inc. v NLRB, 104 S.Ct 2803 ( 1984).
2 234 NLRB 1187 (1978)
3 672 F 2d 592 (7th Cir 1982)
4 See 246 NLRB 788 (1979), in which the Board affirmed its original
Order and denied the General Counsel 's motion for clarification directed
solely at the remedy.
placed in escrow for more than 1 year. The court
further expanded the Board's Order to require that
the offers of reinstatement to the Mexican nationals
be written in Spanish, be delivered in a verifiable
fashion, and be held open for 4 years in order to
afford the discriminatees a reasonable time to
obtain lawful entry and working papers. The court
also decided that the Board should set a minimum
amount of backpay that the Company must pay in
any event and suggested an amount equal to 6
months' backpay. The Board agreed with all the
court's modifications, specifically accepting this
latter suggestion, and our final Order approved by
the court included this provision.
The Respondent challenged before the Supreme
Court only those portions of the court's final order
which provided for 6 months' backpay and which
detailed the language, acceptance period, and veri-
fication method of the reinstatement offers. The
Court held that the court of appeals exceeded both
its reviewing authority and the limits imposed by
Section 10(c) of the Act by modifying the Board's
Order to provide a minimum backpay award in the
absence of evidence as to the discriminatees' actual
economic losses or legal availability for work. The
Court further held that the court of appeals ex-
ceeded its reviewing authority by requiring the Re-
spondent to draft the reinstatement offers in Span-
ish, to ensure verification of receipt, and to hold
the offers open for 4 years. As to these latter en-
largements of the Board's remedial Order, the
Court held that the court of appeals should have
instead remanded these issues to the Board for re-
consideration.
The Board is now mindful of the Court's holding
that we may not order a minimum backpay award
without specific regard to the discriminatees' actual
economic losses or legal availability for work. With
respect to the other provisions of the circuit court's
final order which the Board defended before the
Supreme Court we now formally reconsider them
pursuant to the Court's direction.5 On reconsider-
ation we agree with the circuit court that, in the
circumstances of this case where the Spanish-speak-
ing discriminatees' last known locations were in
Mexico, it is at most, in the Supreme Court's
words, a "trivial burden" on the Company to re-
quire it to draft the reinstatement offers in Spanish
and to verify their receipts We also agree with the
5 The Supreme Court affirmed that portion of the circuit court's order
which conditioned the offers of reinstatement on the discriminatees' legal
reentry into the United States, This provision was not in issue before the
Court
6 The Respondent argues that the reinstatement offers it made to the
discriminatees in March 1977 were valid offers of reinstatement. We
reject that claim As the Seventh Circuit earlier found, these offers of re-
Continued
277 NLRB No. 23
SURE-TAN, INC
circuit court that 4 years is a reasonable period
during which to hold the job offers open given the
lengthy time normally required for Mexican nation-
als to acquire immigrant visas.
We accordingly provide a supplemental Order
identical to the order of the circuit court with the
minimum backpay provisions deleted as required
by the Supreme Court.7
ORDER
The National Labor Relations Board orders that
the Respondent, Sure-Tana Inc. and Surak Leather
Co., Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in, support for, or
activities on behalf of Chicago Leather Workers
Union, Local 43L, United Food and Commercial
Workers International Union, AFL-CIO by:
threatening to notify the Immigration Service be-
cause of the employees' support for the Union; no-
tifying the Immigration Service and requesting a
check on their status because of their support for
the Union and thereby resulting in their deporta-
tion from the country and their constructive dis-
charge; interrogating employees about their union
sentiments and sympathies and that of their fellow
employees; threatening employees with less work if
they supported the Union; and promising employ-
ees more work if they did not support the Union.
(b) Verbally harassing employees and issuing
them written reprimands because of their attempts
to obtain Board assistance and because they sup-
port the Union.
(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Francisco Robles, Ernesto Arreguin,
Sacramento Serrano, Arguimino Ruiz, and Juan P.
Flores immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
instatement , which only remained open for some 34 days, did not give
the discriminatees a reasonable time to consider the offer or to make ar-
rangements for legally entering the United States.
The Respondent also argues that the failure to draft its reinstatement
offers in Spanish and to send them in a manner allowing verification of
receipt was in accord with the Board 's decision in General Iron Corp
218 NLRB 77 (1975) That case is distinguishable from the situation here
In this case , the discriminatees returned to Mexico, which is their last
known address, and it is not reasonable to assume , as the Board did in
General Iron , that they will have ready access to English-speaking rela-
tives or acquaintances Moreover, in light of the fact that the offers of
reinstatement will be sent to a foreign country, the requirement of verifi-
cation of receipt is also reasonable.
° Member Dennis accepts the 1 -year escrow period as the law of the
case
303
their seniority or any other rights and privileges.
These offers must be written in Spanish, must pro-
vide that they remain open for 4 years after re-
ceipt, and must be delivered in a manner allowing
verification of receipt. These offers must advise the
discriminatees that the Respondent has no obliga-
tion to reinstate them unless they are legally
present in the United States and legally free to be'
employed when they offer themselves for reinstate-
ment.
(b) Make these discriminatees whole for wages
lost as a result of their unlawful discharge, subject
to the following conditions:
(1) Before awarding any backpay, the Board will
determine whether any of the discriminatees were
lawfully available for employment during the back-
pay period (i.e., between the date of their illegal
constructive discharge and the date the Respondent
mails valid offers of reinstatement).
(2) Backpay is to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). (See generally Isis
Plumbing Co., 138 NLRB 716 (1962).)
(3) The Respondent's backpay liability shall be
tolled from the date valid offers of reinstatement
are mailed to the discriminatees in accordance with
the requirements of section 2(a), above. The Board
will hold a hearing to determine backpay liability
shortly after these offers are made. The Respond-
ent will place in escrow money sufficient to satisfy
its potential backpay liability for those employees
who do not appear at the Board hearing, but such
money will be refunded if the disciminatee has not
been located within 1 year.
(c) Expunge from the personnel record of Albert
Strong the letter of reprimand dated 11 February
1977.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its premises in Chicago, ]Illinois,
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 13, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material. In addition, the
Respondent will mail a copy of such notice to the
discriminatees at their last known address.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause the constructive discharge
of employees by requesting the Immigration and
Naturalization Service to investigate the status of
known illegal aliens because of their selection of
and support for the Chicago Leather Workers
Union, Local 43L, United Food and Commercial
Workers International Union, AFL-CIO, or any
other union, with knowledge that such employees
have no papers or work permits.
WE WILL NOT interrogate employees about their
union sentiments and sympathies or that of other
employees.
WE WILL NOT threaten employees who are ille-
gal aliens with notification of the Immigration and
Naturalization Service because of their selection or
support of a union.
WE WILL NOT promise employees more work if
they do not support the Union.
WE WILL NOT verbally harass employees or issue
them written reprimands if they attempt to use the
Board's processes or if they support the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Francisco Robles, Arguimino
Ruiz, Juan P. Flores, Ernesto Arreguin, and Sacra-
mento Serrano immediate and full reinstatement to
their former jobs or, if these jobs no longer exist,
to substantially equivalent positions of employment
without prejudice to their seniority or other rights
and privileges, and pay them for loss of earnings
suffered because of being constructively discharged
on 18 February 1977, less any net interim earnings,
plus interest.
WE WILL notify Albert Strong that we have re-
moved from our files any reference to his repri-
mand of 11 February 1977 and that the reprimand
will not be used against him in any way.
SURE-TAN, INC. AND SURAK LEATH-
ER CO.