Talbert Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 776 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Talbert Manufacturing, Inc. and United Steelwork-
ers of America, AFL-CIO-CLC. Case 25-CA-
11624
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JE NKINS, AND
ZIMMERMAN
On March 25, 1981, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified and restated herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Talbert Manufacturing, Inc., Rensselaer, Indiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Establishing and paying discriminatory pay
rates to strikers who return to work.
(b) Discriminating against striking employees by
not timely accepting their offers to return to work.
(c) Rejecting former strikers' transfer requests
while granting the requests of nonstrikers.
Responldent has excepted to certail credibility findinigs made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administralive lax .judge's resolutions xith respect to credi-
hilits unless the clear preponderance of all of the relevant cidence con-
·inces us that the resolutions are incorrect Sundard Dry Wall Prodxrt..
inc., 91 NI.RI3 544 (195(0). efd 188 F.2d 3lh2 (3d Cir. 19511 We have
carefully examined the record and find ill basis fir reversing his findinigs
'rhe Adnlinlstratisc Law Judge iadLvertently failed to include in his
recommended Order any injullclive ccase-arldld-desis language. We halve
cornsidered this case i light of the standardls set forth i IlilA,,itwt ods.
In:., 242 NLRB 1357 (1979, aid hasc coIncluded that a broad order is
appropriate. In reachig this conclusionl. e Ilore that itl olhern .fanltic-
urting. Inc. 250) NI RB 174 (1980). 8c lfoittld hat Resp(nlldenlt had cl-
gaged ill idespread violations of Sec. 8(al(I) . a d (5) of the Act. and
that the miscornduct i the prcsetii case occuirred less tha I car after
thiis prior ll liul condtiuli. See St broun lospiotal, 252 N RII 1247
(198() %We shall modifyr tle Admillistrative I als Judge', recolmmentded
Order accordingly .
Member Jenkins ssould provide ilcrest t III ti hbakpals aIard.l i ac-
cordllance ith his partial dissent inll 0lvriii 'id/ ({rpporuion. 25)
N ,RI3 146 (1 (:;1))
(d) 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 designed
to effectuate the policies of the Act:
(a) Make whole all striking employees, including
but not limited to, Ron Joseph, Jeffrey Riley,
David Hohner, Dennis Allis, Thomas Allis, Joseph
Gilbert, and John Frinkle, for any loss of earnings
they may have suffered due to the discrimination
practiced against them, in the manner set forth in
the section of the Administrative Law Judge's De-
cision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Rensselaer, In-
diana, copies of the attached notice marked "Ap-
pendix."3 Copies of said notice, on forms provided
by the Regional Director for Region 25, after
being duly signed by its representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
:' In the event that this Order is enforced b a Judgment of a llrited
States Court or Appeals. the words in the nlotice reading "Posted by
Order of the National Labor Relations Hoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAl, LABOR RELATIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
258 NLRB No. 103
776
TALBERT MANUFACTURING. INC.
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT establish and pay discrimina-
tory wage rates to strikers who return to
work.
WE WILL NOT discriminate against striking
employees by not timely accepting their offers
to return to work.
WE WILL NOT reject former strikers' trans-
fer requests while granting those requests of
nonstrikers.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL make whole all striking employ-
ees, including but not limited to, Ron Joseph,
Jeffrey Riley, David Hohner, Dennis Allis,
Thomas Allis, John Gilbert, and John Frinkle,
for any loss of earnings they may have suf-
fered due to our discrimination practiced
against them, with interest.
TALBERT MANUFACTURING, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On De-
cember 10, 1979,' the United Steelworkers of America,
AFL-CIO-CLC, herein called the Union or the Charg-
ing Party, filed the charge in this case against Talbert
Manufacturing, Inc., herein called the Company or Re-
spondent, alleging that it violated the National Labor
Relations Act, as amended, by discriminating against
striking employees in the manner they were reinstated.
The Regional Director issued a complaint on February
29 which alleged that the April 23 to October 22, 1979,
strike was an unfair labor practice strike and that the
strikers made an unconditional offer to return to work on
October 22. The complaint states that Respondent failed
and refused to reinstate John Frinkle; paid nonstriking
employees rates of pay greater than it paid the employ-
ees who engaged in the strike; and refused to transfer
certain employees from one shift to another following
the strike and that these actions or lack of action by Re-
spondent were meant to discourage employees from en-
gaging in union and concerted activities and violated
Section 8(a)(l) and (3) of the Act.
' Unless otherwise specified, all dates hereiln relate to he llcr half of
1979 and the lirst part of 1980.
Respondent filed an answer and an amended answer.
Respondent admitted the service and jurisdictional alle-
gations. the status of the Union, and the supervisory
status of Vice President Jack Kellogg and Foremen Jake
Losh and Tommy Tompson. Respondent's amended
answer denied paragraphs 5(f) and (g) of the complaint
concerning employees requesting a transfer and that it
refused to transfer them. which it had admitted in its
answer. Respondent denied the remainder of the com-
plaint or that it had engaged in any violations of the Act.
The principal questions to be answered are (I) wheth-
er there is a valid reason for the differences in pay rates
between strikers. nonstrikers. and replacements; (2)
whether Respondent acted properly in regard to Frin-
kle's reinstatement: and (3) whether striking employees
were entitled to shift transfers when they requested
them. After assessing the evidence. I have concluded
that Respondent did not have valid reasons for the as-
signment of different pay rates to strikers than to re-
placements and nonstrikers and that Frinkle should have
been offered reinstatement at an earlier point, and that
Respondent had a duty to transfer the striking employees
to the first shift, when they requested it, on a nondiscri-
minatory basis (seniority), there being positions available.
Accordingly, finding that Respondent violated Section
8(a)(1) and (3) of the Act, an appropriate Order to
remedy those violations will be recommended.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Rennselaer, Indiana, on July 31
and December 8 and 9, 1980. Briefs from Respondent
and the General Counsel have been received and consid-
ered.
On the entire record in this case, including the exhibits
and testimony, and noting the contradictions in testimo-
ny, and on my evaluation of the reliability of witnesses
based on the evidence and their demeanor. I make the
following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is an Indiana corporation with its principal
office and place of business in Rennselaer, Indiana,
where it engages in the manufacture, sale, and distribu-
tion of trailers and related products. During 1979, Re-
spondent had gross revenues in excess of 500,000 and
sold and shipped, directly to points outside Indiana.
goods and materials valued in excess of $50,000.
Respondent admits, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5)
of the Act.
II. IHI UNFAIR I ABOR PRAC ICIS
A. Background und Undisputed Fucts
On December 29, 1978. the Union filed a charge in
Case 25-CA 10482 against Respondent. and thereafter a
777
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
complaint was issued on February 28, 1979, and a hear-
ing was held before Administrative Law Judge Marion
C. Ladwig on June 13-15, 1979. On October 5, 1979,
Administrative Law Judge Ladwig issued his Decision
which, inter alia, found that the strike which had com-
menced on April 23, 1979, was an unfair labor practice
strike and that Respondent had violated Section 8(a)(5)
of the Act by engaging in bad-faith bargaining and uni-
laterally making changes in the wage and bonus struc-
ture. In regard to the strikers, Administrative Law Judge
Ladwig ordered reinstatement upon their unconditional
application "to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, dismissing, if necessary, persons hired on and after
April 23, 1979, and make the strikers whole for any loss
of earnings they may suffer as a result of Respondent's
refusal, if any, to reinstate them in a timely fashion, by
paying to each of them a sum of money equal to that
which each would have earned as wages during the
period commencing 5 days after the date on which each
unconditionally offers to return to work to the date of
Respondent's proper offer of reinstatement, less any net
earnings during such period," with backpay to be as-
sessed in the normal manner with interest. As was stated
by Administrative Law Judge Ladwig, the purpose of a
remedy is to effect, as near as possible, the restoration of
the status quo ante, so that the strikers would not be
harmed by Respondent's unfair labor practice.
Administrative Law Judge Ladwig's Decision. with a
minor strengthening modification, was adopted by the
Board in its Decision of June 26, 1980, and the case is
now before a circuit court on appeal.
Thus, despite Respondent's denial that the strikers en-
gaged in an unfair labor practice strike, the Board had
already made such a finding, and I am bound by it and
reiterate here that the strike was an unfair labor practice
strike and that the employees were entitled to reinstate-
ment upon their unconditional application.
An exhibit in the present proceeding lists 24 employees
who engaged in the strike, and Respondent's listing of
the same 24 who returned to it on October 22 corrobo-
rates the names and number. Other lists show the names
of 25 prestrike employees who worked during the strike
and the names and dates of hire of 22 strike replace-
ments.
On October 17, the Union sent a telegram to Respond-
ent that the striking employees would return to work on
Monday, October 22. On that morning, all the striking
employees appeared at the plant and made an uncondi-
tional offer to return to work. Kellogg and one of the
foremen met the strikers, listed their names and address-
es, and Kellogg said they would be notified by mail
when to return to work.
A letter dated October 22 was sent to each of the 24
strikers by certified mail with a return receipt requested,
telling them to return to work at starting time on Thurs-
day, October 25, and the letter ended with an admonish-
ment that failure to report or to notify Kellogg prior to
that date would be taken as a voluntary resignation. Ap-
parently all the strikers but Frinkle received the letter
and reported for work on October 25.
B. John Frink le
Frinkle, who had started as a laborer in early 1979.
testified that he had been on leave from work prior to
the strike because of a bad back. His doctor gave him a
release to return to work at the time the strike began.
and he said he went to the Company and handed them
his release and then joined the strike and picketed for a
short while. Due to money problems. he sought and se-
cured a job at a local sawmill and was still employed
there when he returned to Respondent on October 22.
Frinkle said that Foreman Buck Wireman asked what he
was doing there and, when he replied he was coming
back to work, Wireman said he had no job. Although
Wireman testified about other matters for Respondent.
he was not questioned concerning this conversation.
Frinkle gave his name and address to Kellogg, saying he
did not have a telephone and, if Kellogg wanted to reach
him, he could send word through his uncle, Clinton Mul-
lens, who worked at the plant. Frinkle agreed that Kel-
logg told the group they would be notified, by letter
within 5 days, when to report back for work. He said he
was expecting a letter and checked his mailbox every
morning and did not see any letter from the Company or
any slip notifying him he had to sign for a letter. After a
week or so, Frinkle asked his wife to call the Company
to find out what was happening, and she said she was
told he did not have a job. He attended a union meeting
where he found that everybody else had received recall
letters and returned to work and he complained he had
not received a recall.
On November 5, Union Representative Dollard wrote
to Respondent advising Kellogg that Frinkle had not
been returned to work and requested that the situation be
corrected. He also stated that employees Dennis Allis,
Mike McCord, Tom Allis, and Ron Farris had been
denied rights to jobs held by less senior employees and
he also wanted that situation corrected. Copies of this
letter were sent to Respondent's counsel.
Nothing was heard from the Company until February
when Frinkle found a pink notice in his mailbox stating
he had a letter. He signed for the letter in which Re-
spondent offered to return him to work, and he received
an hourly rate of $4.18. When the strike started, Frinkle
was a Class D laborer at $4.04 per hour. Respondent's
records show he received an "automatic" 10-cent raise
on March 8, and three cost-of-living (COL) raises and
one other raise so that on October 28, 1980, his rate was
$4.79 per hour.
Frinkle testified that he could not read or write and
appeared to have difficulty understanding some words
during the hearing so that his testimony is a bit confused
at some points.
Respondent took the position that it did all that was
necessary when it sent the October 22 letter properly ad-
dressed to Frinkle and intimated that Frinkle ignored the
letter, preferring to keep his sawmill job. Kellogg ac-
knowledged receiving a union complaint about Frinkle's
not being reinstated but thought that occurred in January
or February and said he sent a letter to Frinkle dated
January 30. 1980. stating he understood Frinkle wished
to return to w ork and, if he did., to contact him no later
778
TALBERT MANUFACTURING INC
than Wednesday, February 6. wsrning that, if they did
not hear from him by that time, they would assume he
was not interested in returning to the Company. Frinkle
signed a return receipt for this letter on February I and
returned to work on February 9.
Kellogg testified that, in regard to the October 22
letter, his secretary had called the postmaster and there-
after told him that the postmaster said Frinkle had not
picked up the letter and he was sending it back. The sec-
retary did not testify to this. There was some testimony
that on occasion the post office does misdirect mail. Pre-
sumably, Kellogg decided Frinkle did not wish to return
to work, but his testimony was not specific on that or on
when the secretary had made this inquiry.
Kellogg did not remember making any inquiry of the
Union or of Frinkle whether he wished to return to
work after receiving the Union's November 5 letter.
From the above testimony, it is clear that Frinkle had
not abandoned his job and wished to return to Respond-
ent and sought to do so by appearing at the Company,
ready to work, on October 22. Frinkle testified that he
looked for the Company's letter, did not receive it and
did not find out until later, at the time of a union meet-
ing, that all the other employees had received a letter
and had returned to work. The Union, at his behest,
sought to determine what had happened and asked that
Frinkle be recalled in its November 5 letter which was
sent to Kellogg and a copy to Respondent's counsel. It is
clear that Respondent did nothing from November 5
until January 30, when it sent the second letter.
Respondent claims that it did not discriminate against
Frinkle since it sent him the original letter, and there is
no dispute that it did so and that it was properly ad-
dressed. It assumed that when the letter was unclaimed
Frinkle had no interest in returning to work: and it notes
that Frinkle remained employed at the sawmill but does
not suggest that he made no appearance at Respondent
on October 22. Respondent, stating that Frinkle was not
an outstanding union supporter, claims it did not dis-
criminate and did all that was necessary in making the
offer and that it cannot be held for any liability because
Frinkle did not return to work in October. It concludes
that, at most, what happened was an inadvertent error
by the post office but that such error does not make it
liable.
Overlooked by this argument is the fact that Respond-
ent was notified about 10 days after the others returned
to work that Frinkle had not received an offer but
wished to be reinstated and that Respondent did nothing
about this until the following January 30.
Although Respondent suggests that Frinkle may have
been more interested in the sawmill job than in one at
Respondent, the evidence is to the contrary and that
Frinkle sought to be returned, complained when he was
not, and took the job when he received the offer. The
Company was on notice that something had gone amiss
when it received the Union's letter but Respondent did
not attempt to contact either the Union or Frinkle to
find out what had occurred or what the problem was. If
there was an inadvertent error by the post office, Re-
spondent knew of it in early November but did nothing
despite being on notice. There was nothing more Frinkle
or the Union could do after calling the situation to Re-
spondent's attention. Frinkle's loss of employment and
loss of wages in the interim were caused by Respond-
ent's inaction.
Here we are faced with an unfair labor practice strike,
and it is up to Respondent to remedy what it caused.
Frinkle made an unconditional offer to return to work
and was not returned. If Respondent claims it had done
all that was necessary by sending the October 22 letter
which gave the employees 2 days or less in which to re-
spond, I would find as a matter of law that the letter was
improper since it gave insufficient time fr employees to
return to work since they may have been employed else-
where and needed to make arrangements.
The one who suffered damage in this instance was
Frinkle and not Respondent and, since the strike has
been found to be an unfair labor practice strike, it would
appear that, if anyone is to suffer some damage, it should
be the one perpetrating the unfair labor practice, and not
the victim of it. Here, Respondent knew that Frinkle
wanted to return to work at Respondent since he had ap-
peared, lunch in hand, ready to go to work on October
22. Respondent also knew he could be reached through
his uncle who was employed at Respondent. But Re-
spondent made no effort to find out why Frinkle did not
report for work on October 25, did nothing between
then and its receipt of the Union's November 5 letter,
and thereafter did nothing until January 30. Under the
circumstances and with the small number of employees
involved. I find that Respondent did not make a reason-
able effort to communicate its acceptance of Frinkle's
offer to return to work and I shall order that he be reim-
bursed for any losses he suffered on and after October
25.
Looking at another aspect of pay, as I will find infra,
Respondent improperly set pay rates for some of the re-
turning strikers. In making Frinkle whole, he should re-
ceive a pay rate commensurate with what Respondent
paid to nonstrikers and strike replacements and I will set
that forth below.
In summary, Respondent violated Section 8(a)(1) and
(3) of the Act by not making all reasonable efforts to
communicate its acceptance of Frinkle's offer to return
and by not paying Frinkle a proper rate of pay.
C. Wages of Strikers, Nonstrikers, and Replacements
It is clear from the evidence that all returning strikers
were brought back at the same wage rate they had had
prior to the strike and that they received no increase in
that wage rate until a percentage COL increase was
granted to all employees on November 10. In this
regard, Vice President Kellogg testified that the strikers
came back to the same jobs and:
Well, if they was working days, they come back
on days, if they working nights. they come back on
nights. They also come back on the same pay they
went out with, according to the Judge's orders,
that's wshat he said to do.
779
DECISIONS OF NATIONAL LABOR RELATIONS IOARD
As noted supra, Administrative Law Judge Ladwig or-
dered reinstatement to restore the status quo ante, not re-
instatement at the same rate of pay as Kellogg testified.
To reinstate unfair labor practice strikers at the same
rate of pay as they had when they struck some 6 months
prior, when Respondent had increased pay rates of re-
placements and nonstrikers in the interim, is to place the
strikers at a pay disadvantage for having struck and by
no means can be thought to be proper reinstatement or
reconstruction of the status quo ante since all employees
are not being treated alike.
Another objection raised by the Union and the Gener-
al Counsel to the replacement method was that Respond-
ent hired some replacements at a pay classification above
that which it had hired employees in the same craft prior
to the strike. In most of its craft categories of welders,
fitters, electricians, laborers, and painters, Respondent
had four classifications, A, B, C, and D, and normally
hired employees in the D classification prior to the
strike. During the strike Respondent hired some welders,
laborers, and electricians in Class C. All replacement fit-
ters were hired in Class D. Some of Respondent's fore-
men testified they hired people in Class C because of
their level of experience, while there was other testimo-
ny that people were hired at C level because Respondent
felt it could not get employees to come to work at the
rate of pay set for D level.
The General Counsel presented evidence as to what
he considered the disparate treatment of some of the
strikers, which will be considered infra.
1. Welders: Ron Joseph was hired as a Class D electri-
cian on November 14, 1977, and was doing some weld-
ing work before he went on strike at which time he was
receiving a rate of $4.64 an hour. He returned at the
same rate on October 25 and received a COL raise on
November 10 to $4.79 an hour and at the same time was
reclassified as a Class D welder. On January 5, he was
made a Class C welder and received a rate of $5.37 an
hour. He received four COL increases and two other
raises between then and October 25, 1980, at which time
he was receiving $6.31 per hour.
Max Prouty, Jr., was hired on August 21 during the
strike as a Class C welder, at $4.85 an hour. He received
the normal 10-cent automatic 30-day increase on Septem-
ber 25 to $4.95 an hour and, on November 10, received
the percentage COL increase which brought his rate to
$5.11 per hour. On January 5, Prouty was raised to a
Class B welder but received the same wage rate as
Joseph. From there through November 22, 1980, Prouty
received four COL raises but only one other raise and on
November 22, 1980, was receiving $6.11 per hour.
The period from the return to work until January 5,
when most of the employees apparently were reclassified
to the next class, was the period in which Joseph re-
ceived considerably less wages than Prouty, due to Prou-
ty's having a higher classification and a higher initial pay
rate.
In regards to Prouty being classified as a C welder.
some of Respondent's supervisors testified that he was
classified C because he showed some ability at welding.
Respondent's witnesses admitted that Joseph had ability
to weld and had done so during the time he was an elec-
trician and had occasionally helped as a welder at other
times. Although some of the foremen rated Prouty and
Joseph equally on their welding ability, Prouty testified
that he really did not know how to weld when he came
to Respondent and was nowhere near as good a welder
as Joseph. Prouty had worked on a farm and apparently
had done some welding around the farm but had not
done production welding. Witnesses for the General
Counsel who were Class A welders, and were familiar
with the work of both, testified that Joseph was a much
better welder than Prouty, both when Joseph returned to
work and afterwards. It would seem from the wage
raises given both Joseph and Prouty following the reclas-
sification in January that their testimony is borne out by
the lesser amounts given to Prouty.
2. Fitters: Jeffrey Riley began his employment with
Respondent on October 5, 1978, and when he went on
strike was a D fitter at $4.45 per hour. He was brought
back at the same rate and, on November 10, received a
COL increase to $4.59 and, on January 5, 1980, was re-
classified at $4.95 per hour.
Dale Chapman was hired during the strike on Septem-
ber 10 and began as a Class D fitter at $4.42 per hour
and was thereafter given the 30-day automatic increase
of 10 cents to $4.52 per hour and received the COL in-
crease on November 10 to $4.66 per hour, some 7 cents
an hour more than Riley. On January 5, according to the
exhibits, he was reclassified to a Class B fitter but re-
ceived the same rate as Riley of $4.95. From then on,
they received four COL raises and two other raises
which brought them as of November 22, 1980, to $5.88
per hour for Riley and $5.87 for Chapman.
It appears from these figures that during the strike Re-
spondent raised its beginning rate for Class D fitters to
$4.42 per hour, which became $4.52 following the 30-day
period. Thus, Chapman was receiving more per hour
after having worked 6 weeks for Respondent than Riley
received having worked 6 months for Respondent.
3. Electricians: David Hohner was hired as a Class C
electrician on April 17, a few days before the strike, at
$4.31 per hour. He returned at the same rate and re-
ceived the November 10 COL increase to $4.45 and, on
December 8, received his automatic 30-day, 10-cent in-
crease to $4.55. On January 5, he was reclassified as a
Class B electrician and raised to $5.05 per hour.
Ronald Meyers was hired as a Class C electrician
during the strike on July 17, at $4.42 per hour. His auto-
matic 10-cent increase on August 18 brought him to
$4.52, and the November 10 COL raise was to $4.66. He
was reclassified to a Class B electrician on January 5, at
$5.05.
Gary Giramonte was hired on May 11, 1979, as a
Class C laborer at $4.32 per hour. He received his auto-
matic 10-cent increase on June 9 to $4.42 per hour and,
on September 22, was classified as a Class C electrician
at $4.48 per hour. On November 10, the COL increase
brought him to $4.62 per hour and, on January 5, he was
reclassified as a Class B electrician at $5.05 per hour.
It appears that Respondent was starting all its electri-
cians at Class C and that it raised the beginning rate of
that class from $4.31 to $4.42 during the strike. Hohner
780
TAL BERT MANUFACTURING. INC.
was kept at the $4.31 rate when he returned following
the strike.
4. Laborers who transferred to fitters: Dennis Allis was
hired on December 6, 1978, as a Class D laborer and was
in that category at $4.04 per hour when he went on
strike. He remained at that rate when he returned until
the November COL increase brought him to $4.17. On
January 5. he was reclassified to a Class D fitter at $4.56
per hour. Thereafter, Allis received four COL increases
and two raises which brought his wages to $5.42 on No-
vember 22, 1980.
Robert Berrier was hired on September 25 as a Class
C laborer at $4.32 per hour. After receiving his automat-
ic increase on October 27 to $4.42 per hour, he was re-
classified to a Class D fitter when he received the No-
vember 10 COL increase which brought him to $4.56
per hour. On January 5, he was made a Class C fitter at
$4.95. From then on, Berrier received four COL in-
creases and two raises which brought him to $5.82 per
hour on November 22, 1980.
When Allis returned to work, he was receiving 38
cents per hour less than Berrier, while having worked 3
months more performing the same job. This 38-cent dif-
ference remained throughout their employment insofar as
this record shows and increased to 40 cents, based appar-
ently on the percentage COL increases.
5. Laborers: Thomas Allis began his employment with
Respondent on April 5 as a Class D laborer. When he
went on strike, he was making $3.94 per hour and re-
turned at that rate and apparently received his automatic
30-day raise and COL increase on November 10, to
$4.07, which seems less than most other employees re-
ceived. On January 5, he received a raise which may
have been a reclassification to $4.27 per hour, and after
that received four COL increases and two raises to $5.15
per hour on November 22, 1980.
William Hattabaugh was hired on August 14 as a Class
C laborer at $4.32. He received an automatic raise to
$4.42 on September 15, and the November 10 COL in-
crease brought him to $4.56. Thereafter, he was reclassi-
fied as a Class B laborer on January 12 and raised to
$4.81 and then received four COL increases and two
raises which brought him to $5.60 per hour on October
25, 1980.
Frinkle's employment began on January 8, 1979, as a
Class D laborer and at the time of the strike was making
$4.04. At his return on February 9, 1980, his rate was
$4.18, and on March 8 he received a raise to $4.28 which
Respondent's records show as an automatic raise but not
the reason therefor. He received three COL increases
and another raise and was making $4.74 per hour on Oc-
tober 28, 1980.
Thus, the difference in pay between Hattabaugh and
Allis when Allis returned was 48 cents and this in-
creased, on November 10, to 49 cents and was further in-
creased to 54 cents in January, when apparently both
were reclassified. After the increases which followed
January 5, there was still a difference of 45 cents per
hour, and the difference must be rectified by raising Allis
to the same rate and classification as Hattabaugh re-
ceived at the end of the strike and thereafter. There was
no indication that the entrance C classification given to
Hattabaugh was for any reason other than to offer him a
pay rate which Respondent felt he would accept. given
the circumstances of his employment.
Respondent's late return of Frinkle left him far behind
in comparative wage rates, and there is no indication that
he was ever reclassified, even to a Class C laborer.
Having found above that Respondent is at fault in this
late acceptance of Frinkle's offer to return, it is neces-
sary to rectify the situation by bringing Frinkle's pay
rate and classification equal to that of strike replacement
Hattabaugh.
6. Painters: Joseph Gilbert started with Respondent on
December 26, 1978, as a Class D painter, at the time of
the strike was receiving $4.04 per hour and he returned
to work at that figure. He received the November 10
COL increase to $4.17 and was reclassified to a Class C
painter on January 5 at $4.45 per hour. Thereafter, he re-
ceived four COL increases and two raises which brought
him to $5.37 per hour on October 25, 1980.
William Keller was employed prior to the strike on
February 12, 1979, as a Class C painter at $4.31 per hour.
Keller, who worked during the strike, received raises on
June 16 to $4.59 and, on September 15, to $4.67 and the
November 10 COL increase brought him to $4.82. He
was reclassified to a Class B painter on January 5, at
$5.08. Thereafter, he received four COL increases and
two raises which brought him to $5.90 on October 25,
1980.
From the circumstances and these figures, it is difficult
to determine whether there was any comparative dis-
crimination between Keller and Gilbert since Keller was
hired before the strike in a higher classification than Gil-
bert and, at Gilbert's return to work, Keller was making
63 cents per hour more than Gilbert due to the classifica-
tion and to raises received during the strike. However, it
is clear that Gilbert was returned at the same rate he
earned before the strike and the evidence shows that Re-
spondent increased pay rates during the strike on en-
trance levels and at other levels. Gilbert should therefore
have received the increases given to the painting classifi-
cation at his return.
From all the examples above, it is clear that the strik-
ers were brought back at the rates they had received
prior to the strike despite the fact that other similarly sit-
uated individuals, and indeed individuals who had been
hired during and towards the end of the strike, were
started at higher rates, either through being hired in a
higher classification or by the starting rate being in-
creased during the strike. Not all of the types of raises
received during the strike are identifiable from the re-
cords before me, but they indicate that Respondent
raised the rates for the classifications during the strike.
Respondent made some attempt to state that those
hired during the strike were of a sufficient quality to rate
them at entrance classifications above the strikers, with
whom they were compared. Clearly, the Prouty situation
shows that this was not true, as Prouty admitted. When
this is coupled with Respondent's statements that Re-
spondent could not hire individuals for less than the rates
it gave the replacements, no room for doubt is left that
the higher classifications were assigned to provide a cer-
781
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
lain pay rate to secure individuals to work during the
strike. Superintendent Kohley admitted that the reason
for hiring laborers at a C classification was that they
could not keep them if he tried to pay them the Class D
rate. Certainly Vice President Kellogg's statement that
the employees were brought back at the same rate of pay
because Administrative Law Judge Ladwig had ordered
the strikers brought back at the same pay is a distorted
misconception of the Order in that case. The purpose of
Administrative Law Judge Ladwig's Order was to re-
store the strikers to the same status as that of all other
employees, not to worsen their state by paying them less
than what others received. Thus, the strikers who re-
turned should have had their pay increased at that time
to the level of pay which other employees similarly situ-
ated were receiving. Respondent's action, I conclude and
find, violated Section 8(a)(1) and (3) of the Act. See Sin-
clair Glass Company, 188 NLRB 362 (1971).
In the case of the welders, Prouty was given an artifi-
cial classification to provide a pay rate which induced
him to work for Respondent during the strike and, when
he returned, Ron Joseph should have received an equiva-
lent rate of pay and classification. Thus, for the period of
October 27, 1979, through January 5, 1980, Joseph
should have received the same rate of pay as Prouty. It
is apparent from Respondent's records that thereafter
they were raised on different bases, with Joseph getting
better raises apparently based on his ability.
As a fitter, Jeffrey Riley should have received $4.52
instead of $4.45 when he returned to work in October
and the equivalent COL increase that Chapman received.
They were apparently both reclassified on January 5 and
should have received the same classification, but the
joint exhibits in this case indicate that Riley became a
Class C fitter and Chapman a Class B fitter at the same
pay rates. Their pay raises thereafter appear to be on an
equal basis.
Hohner should have received $4.42 per hour instead of
$4.31 when he returned from the strike and his COL in-
crease based on that figure. The automatic raise, indicat-
ed as being received on December 8, appears to have
been overdue. The records indicate that Hohner, Myers,
and Giramonte were reclassified to Class B electricians
on January 5 and that the raises received thereafter were
not discriminatory.
Dennis Allis should have received $4.42 per hour
when he returned, rather than $4.04. The November 10
COL increases should have brought him to the same rate
as Berrier, to $4.56, and then, with the reclassifications in
January, he should have received the same pay rate as
Berrier, $4.95. Berrier, after less than 2 months as a
fitter, was reclassified to a Class C fitter on January 5,
while Allis was made a Class D fitter on that date. Allis,
who apparently had as much working time as a fitter as
did Berrier, should have been reclassified within the
same timespan, rather than remaining a Class D fitter as
the joint exhibit demonstrates. This treatment has result-
ed in a 40-cent wage differential despite the fact that he
and Berrier are doing virtually the same work. Accord-
ingly, Allis should have been reclassified as a Class C
fitter on March 1, 1980, with comparable increases.
As to laborers Allis. Frinkle, and Hattabaugh, Thomas
Allis should have received a rate of $4.32 per hour when
he returned to work, he should have been reclassified as
a Class C laborer. and, after receiving his automatic in-
crease, he should have been accorded a COL increase
equivalent to Hattabaugh so that Allis would have re-
ceived $4.56 per hour as of November 10, 1979. Thereaf-
ter, Allis should have been reclassified in the same
manner as Hattabaugh to a Class B laborer in January to
$4.81, and they should have received the same pay rates
thereafter, as they both had four COL increases and two
raises. These rates must be rectified since otherwise Re-
spondent will perpetuate a discriminatory inequity.
Frinkle should have received pay from October 25 at a
Class C classification at $4.42 per hour and the COL in-
crease of November 10 to $4.56 per hour. He should
then have been reclassified as a Class B laborer on Janu-
ary 12 and should have received the same raises Hatta-
baugh received. Respondent is to pay Frinkle the differ-
ence between what Frinkle received from his return on
February 9 until Respondent rectifies the situation and
what he should have received under this formula, less
any net earnings. This is the method, I find, which must
be used to rectify the discrimination Frinkle suffered.
Painter Gilbert should have received the raises the
painters received during the strike, but on this record
there is no showing of what raises a Class D painter re-
ceived during the strike. If Respondent had no Class D
painters during the strike or made no provision for such
raises, then the raises due Gilbert should be proportional
to those received by Keller and are to be paid to Gilbert
as of his return to work. The November 10 COL in-
crease, which was a percentage raise, should then be re-
computed and the balance of his wages thereafter should
be recomputed in the light of the pay due him and ap-
propriate adjustments should be made.
Although the above findings and conclusions relate to
the specific individuals contested during the hearing, Re-
spondent stated that it returned all the strikers at the
same pay rate they had received prior to the strike. As
noted above, such action violated the Board-approved
Order in Administrative Law Judge Ladwig's case, not
only in intent and spirit but in deed as well, and I have
additionally found such actions to violate Section 8(a)(1)
and (3) of the Act. Therefore, the Order correcting this
violation will run not only to the individual cases dis-
cussed above, but also to all strikers who were returned
to work at prestrike pay rates and who did not receive
the raises given to other employees during the strike.
D. Transfers From the Second to the lFirst Shift
Prior to the strike, as both the General Counsel and
Respondent's witnesses agreed, Respondent did not
permit transfers between its first and second shifts.
During the strike Respondent moved its second-shift
nonstrikers to the first shift and ran a one-shift operation.
Towards the end of the strike, some of the second-shift
nonstrikers asked Foreman Bailey if they had to go back
to the second shift and were told they did not. that Re-
spondent was accepting volunteers for the second shift
but would not force nonstriking employees to return to
782
TAL BERT MANUFACTURING. INC.
it. Nonstriking employees Elston and Hammond re-
mained on the first shift.
About 2 weeks after Dennis Allis, Jim Neeley. Mi-
chael McCord, and Ron Faris had been reinstated on the
second shift. they had a conversation with Superintend-
ent Kohley and asked how they could get on the day
shift. He told them they could not do so because they
had been on the night shift when they struck. Kohley
was asked about Elston and Hammond. who had been
second-shift employees with less seniority than most of
those questioning Kohley and they were on the first
shift. Allis tesfified that Kohley said that, while they
were on strike, Hammond and Elston were on the day
shift and wanted to remain there. Neeley said that
Kohley replied it was because Elston and Hammond had
helped him out. Faris reported that Kohley said it was
because the two had stayed and worked during the strike
and so they could stay on days if they wanted to.
Charles Kohley was a difficult witness to understand,
since he skipped around a lot, and his testimony was
confusing. Kohley stated that the Company's policy had
been that employees stayed on the shift on which they
were hired and that no transfers were allowed, and this
dictated his response when the group asked about trans-
fers to the first shift. He stated that he took this policy
under consideration and discussed changing it with Kel-
logg and that the policy was thereafter changed. The
new policy permits second-shift employees to transfer to
the first shift when there are openings and the hiring of
new employees on the second shift.
The parties agreed that Allis was transferred to the
first shift on February 11. 1980, McCord on March 10,
1980. and Faris on May 5, 1980.
Reduced to its essentials, Respondent changed its
policy during the strike when it allowed second-shift em-
ployees to remain on the first shift if they wished, which
was the equivalent of transferring them to that shift.
The fact is that they were second-shift employees who
were on the first shift temporarily while the strike was in
progress and Respondent had reduced its operations to
one shift. Their questions of Respondent showed they ex-
pected to be returned to the second shift in compliance
with Respondent's policy preventing shift transfers.
The message to Allis, Neeley, McCord. and Faris, as
enunciated by Kohley, was that Respondent allowed
junior employees Elston and Hammond to remain on or
transfer to the first shift because they had worked during
the strike. The striking employees were prevented from
transferring by virtue of Respondent's reimposition of its
old policy which had been waived for Elston and Ham-
mond.
Respondent thus rewarded its nonstriking employees
and discriminated against the strikers, and such actions, I
find and conclude, violate Section 8(a)(l) and (3) of the
Act.
The new policy providing transfers was put into effect
in reality before the strike ended. Since a fair method of
deciding who should have preference for transfers would
be seniority, which Respondent later adopted, it is appar-
ent that at least two of the three who actually sought a
transfer should have been transferred by Respondent at
the time they requested the transfer. Only a negative
order that Respondent not discriminate against strikers
by refusing to grant them transfers will be entered
itl. 111t I:EICI O1 1111. INI S\IR I \HOR PR\XCICI.S
UiON (OtMI RI
The activities of Respondent set forth in section II.
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act,
occurring in connection with Respondent's business op-
erations as set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. T'll RIMilN)Y
Having found that Respondent engaged in the unfair
labor practices set forth above. I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent improperly paid return-
ing strikers the rate of pay they were earning when they
struck and did not pay them the equivalent pay rates it
gave to strike replacements and nonstrikers, as more par-
ticularly demonstrated in the cases of Ron Joseph, Jef-
frey Riley, David Hohner, Dennis Allis, Thomas Allis,
Joseph Gilbert, and John Frinkle. and having further
found that John Frinkle's offer to return to work was
not timely accepted by Respondent, to Frinkle's detri-
ment. I recommend that Respondent make them whole
for any loss of earnings they suffered by reason of Re-
spondent's discriminatory pay procedure by payment to
each of them a sum equal to that which each should
have received as wages from the dates of their reinstate-
ment (in Frinkle's case, October 25, 1979. the date he
should have been reinstated) until the discriminatory
rates are eliminated. as more fully set forth in section
II,C, supra. The rates or differences in rates are to be
computed and paid to the strikers, and I further recom-
mend that interest be assessed on those sums in the
manner the Board assesses interest on backpay. See Flor-
ida Steel Corporation, 231 NLRB 651 (1977). and Isis
Plumbing & Healing Co., 138 NLRB 716 (1962). It is also
recommended that Respondent make available to the
Board, upon request, payroll and other records to facili-
tate checking the amounts of pay due these employees.
It is further recommended that Respondent cease and
desist from discriminating against strikers by refusing to
grant their transfer requests while transferring non-
strikers.
CONCI USIONS oi LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by its discriminatory establishment of pay rates for
striking employees; by not timely accepting John Frin-
kle's offer to return to work; and by not granting strik-
ers' transfer requests because the strikers had engaged in
783
784 DECISIONS OF NATIONAL L.ABOR RELATIONS H()OARD
union and concerted activities among themselves and with other employees for the purposes of mutual aid and
protection.
[Recommended Order omitted from publication.]