Textron, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1991

302 N.L.R.B. 660 (N.L.R.B. 1991)

660
302 NLRB No. 89
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and brief adequately present the issue and positions of the
parties.
2 All dates are in 1987, unless otherwise indicated.
3 The judge at fn. 11 of his decision found no evidence proving the exist-
ence of such a prohibition. The Respondent has filed a motion requesting the
Board to take judicial notice of an excerpt from the OBES Security Manual,
part II, sec. 1278.7, which states in relevant part:
Withholding referrals to jobs involved in labor dispute. The local office
must not make referrals which will aid directly or indirectly in filling a
job that is vacant because the former occupant is on strike or is being
locked out in the course of a labor dispute, or the filling of which is an
issue in a labor dispute.
Members Devaney and Oviatt grant the Respondent’s motion and take offi-
cial notice of this excerpt. Member Cracraft would not grant the motion be-
cause she finds that evidence about the Respondent’s failure to use OBES dur-
ing the strike is irrelevant to the General Counsel’s theory of unlawful dis-
crimination in this case. As stated later in this decision, the General Counsel
has not alleged or litigated discriminatory intent in the Respondent’s use of
OBES. Accordingly, there is no reason to admit evidence concerning that use.
Member Cracraft expresses no view about whether the Board should take offi-
cial notice of the kind of evidence proffered, where it is relevant.
Randall Division of Textron, Inc. and Saundra L.
Shutts and United Brotherhood of Carpenters
and Joiners of America, Local Union No. 2540,
AFL–CIO. Cases 9–CA–26355 and 9–CA–26593
April 24, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 20, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.1
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to consider
for hire former employees who had engaged in a pro-
tected strike and whose statutory reinstatement rights
had expired pursuant to the terms of a strike settlement
agreement. The Respondent argues in exceptions that
it acted lawfully pursuant to a strict, nondiscriminatory
policy against rehiring any former employee. For the
reasons set forth below, we find merit in the Respond-
ent’s exceptions.
The Respondent manufactures automobile parts in
its Wilmington, Ohio plant. The United Brotherhood of
Carpenters and Joiners of America, Local Union No.
2540 has been the bargaining representative of the Re-
spondent’s production and maintenance employees at
the Wilmington plant since 1967. On July 10, 1987,2
unit employees commenced an economic strike.
According to the uncontradicted testimony of Cecil
Puckett, the Respondent’s personnel manager at the
Wilmington facility, the Respondent had long main-
tained a general informal policy of not hiring former
employees, in light of dissatisfaction with the perform-
ance of those who were rehired. Puckett admitted that
he ‘‘did not enforce totally’’ this policy. Prior to the
strike, the Respondent did rehire a ‘‘very, very small
number of persons.’’
When the strike occurred, Puckett faced the prospect
of hiring a large number of replacement employees in
a short period of time. According to Puckett, the appli-
cations of former employees presented problems in
identifying quickly the basis on which they had pre-
viously been terminated. Puckett believed that these
problems would be exacerbated with the arrival on Au-
gust 3 of corporate personnel from Cincinnati to con-
duct the Respondent’s hiring in lieu of Puckett, who
was occupied with other strike-related matters. Puckett
asserted that these individuals, having no familiarity
with former employees or current supervisors in Wil-
mington would likely have greater difficulty in re-
searching the reasons for prior terminations. According
to Puckett, he and other corporate officials, therefore,
decided on August 1 to adopt a strict formal policy
against hiring former employees. The policy went into
effect on August 3.
There were approximately 187 replacements hired
between August 3 and 19. Twenty-three former em-
ployees, who had ceased work before the commence-
ment of the strike, applied for jobs during this period.
Consistent with the strict no-former employee hiring
policy, none of these applicants was rehired.
On August 19, the Union and the Respondent en-
tered into a strike settlement agreement. The agreement
limited strikers’ recall rights to a 1-year period, after
which all unreinstated former strikers would be termi-
nated. During the recall period, the Respondent did not
accept applications for new hires. It recalled approxi-
mately 200 strikers. On August 20, 1988, in accord
with the strike settlement agreement, the Respondent
terminated the employee status of approximately 150
former strikers who had not been reinstated.
For 10 to 12 years prior to the strike, the Respond-
ent had used the Ohio Bureau of Employment Services
(OBES) as its principal source for the referral of job
applicants, except for skilled employees unavailable
through OBES. Puckett testified that OBES referral
records were useful to the Respondent in administering
its affirmative action program. In hiring replacements
during the strike, however, the Respondent did not use
OBES because state law precluded that agency from
referring applicants.3 Having restricted its poststrike
hiring to former strikers throughout the settlement
agreement period, the Respondent did not again seek
new job applicants until October 11, 1988. At that
time, it resumed using OBES as its primary referral
661TEXTRON, INC.
4 For reasons previously discussed, Member Cracraft finds no need to rely
on this settlement.
source. Thereafter, the Respondent would not accept
directly filed employment applications and did not
seek job applicants independent of the OBES referral
system, again except for certain skilled positions. From
October 1988 to March 1989, OBES referred at least
342 applicants to the Respondent, which hired at least
108 of those referred.
The Respondent’s no-former-employee hiring policy
was well known both to ex-strikers and to OBES em-
ployees, some of whom would inform former employ-
ees of the Respondent about the policy. OBES did not,
however, vary its standard job referral procedures to
accommodate the no-former-employee policy. In fact,
approximately 27 former employees who registered
with OBES, including 3 ex-strikers, were referred to
and rejected by the Respondent. The Respondent did
apparently hire two former employees referred by
OBES.
The judge concluded that the Respondent had inten-
tionally followed a hiring procedure in October 1988
which was designed to eliminate from consideration all
ex-strikers who desired reemployment. He found no
need to decide whether the August 1, 1987 decision to
adopt a strict no-former-employee policy was
discriminatorily motivated. Instead, he first questioned
why the Respondent resumed use of OBES as a pri-
mary referral source. The judge found it ‘‘hard to be-
lieve’’ that the alleged utility of OBES records in
maintaining the Respondent’s affirmative action pro-
gram could have been important during a concentrated
period of mass hirings. As previously mentioned, he
also found no record support for the Respondent’s
claim that it could not resort to OBES during the
strike, a similar period of concentrated hirings. In the
judge’s opinion, OBES was useful for occasional refer-
rals of small numbers of employees, but the Respond-
ent’s failure to resort to an available pool of 150 expe-
rienced former employees to meet mass hiring needs in
and after October 1988 warranted the inference of un-
lawful discriminatory intent.
In like fashion, the judge questioned why the Re-
spondent adhered to its no-former-employee hiring pol-
icy after the strike-related problems allegedly justifying
such a policy had ceased to exist. He further reasoned,
however, that this question was irrelevant because he
found that the hiring of two former employees after
October 1988 proved that there was no strict policy
against hiring former employees. Accordingly, he in-
ferred that the reaffirmation of such a policy was a
pretexual device to eliminate the terminated former
strikers from consideration for rehiring.
Contrary to the judge, we find that the General
Counsel has failed to prove a prima facie case of dis-
crimination against former strikers. Initially, we find
that the record is bereft of any independent evidence
of animus borne by the Respondent against the Union
or those who engaged in protected strike activity. On
the contrary, the Respondent has had a collective-bar-
gaining relationship with the Union for over two dec-
ades, it apparently complied with its obligations under
the strike settlement agreement, and it undisputedly
hired approximately 200 former strikers pursuant to
that agreement.
We further find no basis for inferring discriminatory
intent from the Respondent’s use of OBES as an ex-
clusive referral source of applicants for unskilled pro-
duction jobs. The judge’s finding on this point exceeds
the scope of the theory of violation litigated. The com-
plaint does not allege and the General Counsel has not
contended that the Respondent’s reliance on OBES
was itself discriminatory or was evidence of discrimi-
natory motivation in the Respondent’s postsettlement
agreement hiring practices.
Furthermore, it is undisputed that the Respondent
had used OBES for 10 to 12 years prior to the strike.
There is no basis for finding it would not have contin-
ued to do so during the strike but for OBES policy
precluding the referral of applicants to replace strik-
ers.4 When the Respondent began hiring new employ-
ees after the strike settlement period, it merely re-
sumed a past practice of using OBES. There is no evi-
dence that OBES referral procedures, in general or in
specific relation to the Respondent’s hiring, discrimi-
nated against applicants who had engaged in protected
strike activities. Furthermore, OBES did refer ex-strik-
ers to the Respondent in and after October 1988. In the
absence of any independent basis for inferring unlaw-
ful motivation in the Respondent’s use of OBES, we
find no need to address the substance of the Respond-
ent’s reasons for preferring OBES to a direct hiring
system. We disavow any reliance, however, on the
judge’s observations about the limited utility of this
employment agency as a source of applicants and in
maintaining affirmative action records.
We also disagree with the judge’s findings with re-
spect to the Respondent’s no-former-employee policy.
In the absence of exceptions to the judge’s failure to
pass on the issue, there no longer is any contention
that the Respondent was discriminatorily motivated in
adopting a strict policy on August 1, 1987. Moreover,
there is no evidence that the Respondent at that time
knew or reasonably should have known that the parties
would enter into a strike settlement agreement that
would terminate strikers’ statutory reinstatement rights
which, absent such agreement, would have been unaf-
fected by a strict policy against rehiring former em-
ployees.
We also find, contrary to the judge, that the Re-
spondent did maintain its strict policy in and after Oc-
tober 1988. The hiring of two former employees from
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 E.g., Monfort of Colorado, 298 NLRB 73, 78–79 (1990). That case makes
clear that an employer, however, cannot unlawfully discriminate against former
employees or experienced workers. We find no such unlawful discrimination
here, as discussed above.
1The charge in Case 9–CA–26355 was filed on April 12, 1989, and the
complaint thereon was issued on May 30, 1989. The charge in Case 9–CA–
26593 was filed on June 29, 1989, and amended on July 26, and the complaint
in that case was issued on August 11, 1989, together with an order consoli-
dating the two cases for hearing.
2 As amended at the hearing.
3 General Counsel also has moved, by a motion dated November 3, 1989,
that the employment application of Theresa Rosenwirth attached to the motion
be marked as G.C. Exh. 9 and received in evidence. In its brief, Respondent
has opposed the receipt of this document.
Respondent’s opposition comes as a surprise. As discussed hereafter, at
the hearing, Cecil Puckett, Respondent’s principal witness, testified that
on August 3, 1987, while a strike was in progress, Respondent adopted
a strict policy of refusing to rehire former employees, and that Respond-
ent has adhered to that policy ever since. In questioning this claimed strict
adherence, counsel for General Counsel asked Puckett about an employee
named Theresa Rosenwirth. Puckett agreed that Rosenwirth has been
hired as an accounting department clerk, but said that she had not, to his
knowledge, previously been employed by Respondent. Counsel for Gen-
eral Counsel represented that he had subpoenaed the personnel files of
former employees and did not receive a file for Rosenwirth, although his
information was that she had been employed in the production and main-
tenance bargaining unit from 1978–1979. While he assumed, ‘‘for the
sake of argument, that it was overlooked, or forgotten, or whatever,’’
counsel for General Counsel stated that he desired to have Rosenwirth’s
file ‘‘before we close the record.’’
After an off-the-record discussion, the following colloquy occurred:
JUDGE RIES: The parties, off the record, have reached an agreement
that, instead of seeking immediate compliance with General Counsel’s
subpoena with regard to Theresa Rosenwirth—that’s R-o-s-e-n-w-i-r-t-h—
the Respondent will, after the close of the hearing, as soon as possible,
submit the personnel file, or copies of the appropriate documents, to Mr.
Horner. And he will, in turn, submit the personnel file, or copies of the
appropriate documents to Mr. Horner. And he will, in turn, submit that
to me, if he wishes, marked as the final General Counsel exhibit. Is that
our understanding, gentlemen?
MR. HORNER: Yes, sir.
MR. HAWKINS: Yes, your Honor.
JUDGE RIES: All right.
With respect to that, let me just ask one question of the witness: Mr.
Puckett, when you’re sitting there, interviewing applicants, would you
have an application form which shows their prior employment? We would
also want the form that Mr. Puckett had, probably had, before him when
he was interviewing her. That should be in evidence too. You may pro-
ceed, Mr. Horner.
It could scarcely be clearer that, rather than prolong the hearing until
Rosenwirth’s file was obtained, Respondent was agreeing to furnish the mate-
rial to General Counsel for introduction into evidence without further testi-
mony. Now that General Counsel has transmitted the Rosenwirth application,
Respondent argues on brief:
Because G.C. Exh. 9 was proffered for introduction on November 6,
1989, after hearing, Randall cannot be held to have waived objections at
hearing. Further, there was no evidence taken on this issue. Accordingly,
Randall hereby objects to the introduction of G.C. Exh. 9. In view of
General Counsel’s comments regarding the unintentional nature of the
company’s deviation, as well as the above authority [referring to cases
holding that inconsistency of treatment does not necessarily establish an
unfair labor practice], Randall maintains proffered G.C. Exh. 9 is irrele-
vant to any discrimination determination, as it documents an industrially
typical deviation not probative of unlawful motive. [Emphasis in original.]
Clearly, Respondent did ‘‘waive objections at hearing ‘‘ It may further be
noted that General Counsel’s comments accepting, arguendo, a lack of
wilfulness were plainly not addressed to ‘‘the Company’s deviation’’ from its
hiring policy, but rather to the failure to comply with the subpoena.
Accordingly, I receive in evidence as G.C. Exh. 9 the application of Theresa
Rosenwirth dated January 16, 1989.
among hundreds of employees referred by OBES is in-
sufficient to prove either that no strict policy existed
or that it was applied only to exclude former strikers.
On its face and in practice, with the two exceptions
noted, the policy excluded all former employees,
whether or not they had engaged in protected strike ac-
tivity. Without independent evidence of discriminatory
intent, the Respondent bears no burden of justifying its
maintenance of a lawfully promulgated no-former-em-
ployee policy.
A fundamental element of the judge’s rationale for
finding a violation of Section 8(a)(3) was his disbelief
that the Respondent, needing to hire what the judge
termed large numbers of employees in a short period
of time, would not first resort to an available source
of experienced job applicants, that is, the group of ter-
minated former strikers. This reasoning ignores the fact
that, while an employer cannot unlawfully discriminate
against former employees or experienced workers in its
hiring practices, it likewise has no obligation to prefer
them.5 As previously stated, there is no basis for infer-
ring unlawful motivation in the Respondent’s hiring
practices after October 11, 1988. In finding discrimina-
tion the judge has substituted his own business judg-
ment for the Respondent’s with respect to the value of
experienced former employees.
Based on the foregoing, we find that the General
Counsel has failed to prove that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by refusing to
hire unlawfully terminated ex-strikers pursuant to a
policy of not hiring any former employees. Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
James E Horner, Esq., for the General Counsel.
Michael W. Hawkins, Esq., and Robert D. Hudson, Esq.
(Dinsmore & Shohl), of Cincinnati, Ohio, for the Respond-
ent.
Saundra L Shutts and Daniel Drake, of Wilmington, Ohio,
for the Charging Parties.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard in Xenia, Ohio, on September 7, 1989.1 The con-
solidated complaints allege that on or about several specified
dates in 1988 and 1989, Respondent,2 in violation of Section
8(a)(1) and (3) of the Act, ‘‘refused to accept an employment
application from or offer employment to’’ four named em-
ployees, and has, since October 1988, similarly treated
‘‘other individuals whose names are unknown to the [Acting
Regional Director], who were employed by Respondent at
the time of the strike in July 1987.’’
Briefs were received from General Counsel and Respond-
ent on or about November 11, 1989.3
Having considered the entire record and the briefs, I make
the following
663TEXTRON, INC.
4 For purposes of clarity, the transcript is corrected as follows: At p. 15, L.
19, change ‘‘Judge Ries’’ to ‘‘Mr. Horner’’; at P. 41, L. 9, change ‘‘and’’
to ‘‘in’’; at P. 49, L. 8, change ‘‘lot’’ to ‘‘long.’’
5 I derive these figures from R. Exhs. 1–8, which presumably are intended
to show all OBES referrals and hires for the period of October 1988–June
1989 (see Tr. 52–53). However, the accuracy of these documents are thrown
into question by R. Exh. 13, a summary of referrals prepared by Respondent
and received in evidence without question. As examples of inconsistencies, ap-
plicants Andrew, Crosby, Brooks, Elchert, Bentley, and Harper appear on R.
Exh. 13 but not on R. Exhs. 1–8. I am not sure what to make of these con-
tradictions.
6 The Washington Courthouse office services Clinton County, in which Wil-
mington is located. The Wilmington plant is also indirectly serviced by the
OBES Hillsboro office.
7 These were Douglas Andrew, who applied with Randall on October 12,
1988; Troy Elchert, on October 19; and Richard Arthur, on October 21.
FINDINGS OF FACT
I. THE FACTS4
Respondent produces automobile parts. Of the 8 plants in
the division as of July 1987, we are concerned with the one
in Wilmington, Ohio, at which the 600 production and main-
tenance employees have been represented by the Charging
Party Union since 1967.
Cecil Puckett has been the personnel manager at the Wil-
mington facility for 24 years. He testified that prior to a bar-
gaining strike which erupted on July 10, 1987, he maintained
a policy, which he ‘‘did not enforce totally,’’ of not hiring
former employees. It had been his experience, Puckett testi-
fied, that rehired former employees did not, for one reason
or another, work out; nonetheless, Respondent did rehire a
‘‘very, very small number of persons.’’
Puckett told us that after the strike began, and Respondent
began interviewing and hiring replacements, he realized that
those applicants who had been terminated by Respondent
prior to the strike (a ‘‘very small number’’ of who were in
fact rehired during the first 2 weeks of the strike) had be-
come a source of ‘‘stress’’ to him. The stress resulted from
the fact that sometimes the personnel file of the former em-
ployee did not specify why he or she had been terminated,
and the absence of this information would require Puckett to
search around among the supervisors to unearth the missing
facts.
The problem thus assertedly created by former-employees-
whose-personnel-files-failed-to-identify-the-basis-on-which-
they-were-terminated (termination omissions) would be exac-
erbated, Puckett assumed, by the fact that, around August 3,
coming from division headquarters in Cincinnati to assist
Puckett in hiring (Puckett being caught up in other matters)
would be certain headquarters employees who, unlike
Puckett, were totally unacquainted with past employees and
present supervisors, and who would encounter even more
stress in tracking down termination omission information.
Accordingly, probably on August 1, 1987, Puckett met with
Dicks, the industrial relations manager for the division, and
Plant Manager Carl Mayes, at which time they adopted a
policy of not rehiring former employees, the policy to be-
come ‘‘effective’’ on Monday, August 3. No written notation
of the policy was made and neither Hicks nor Mayes testi-
fied, but Harry W. Burge, a manager of employee relations
located in Cincinnati and holding divisionwide responsibil-
ities, testified that he came to Wilmington on August 3 or
4 to assist in hiring employees and was told that such a pol-
icy had been adopted. On August 19, 1987, the strike ended.
A strike settlement of that date provided, inter alia, for recall
of strikers by classification on a seniority basis, except that
at the end of 12 months, ‘‘any employee who has not been
recalled shall be terminated.’’ During the following 12
months, Respondent reinstated approximately 200 strikers,
leaving about 150 strikers stranded on the recall list as of
their termination date of August 19, 1988.
According to the uncontradicted testimony, for 10 or 12
years prior to the strike Respondent had used the Ohio Bu-
reau of Employment Services (OBES) as the principal refer-
ral source of its potential employees (with the exception of
certain skilled employees whom OBES often could not sup-
ply). The record shows that at the end of the 12-month recall
period, Respondent decided to resume the use of OBES for
referral of applicants. It did not, however, after the recall pe-
riod ended on August 19, 1988, begin to seek out additional
employees until October 11, 1988, at which time Respondent
gave OBES an order for 25 production machine tenders—a
job requiring no qualifications other than attainment of age
18 and a 9th grade education. The record reveals that
throughout October 1988 and into March 1989, Randall con-
tinued to ask OBES to refer more employees, and, by March
1989, OBES had referred at least 342 applicants and Randall
had hired at least 108 of them.5 Since, as Puckett testified,
Respondent had determined to adhere to the strict no-former-
employees policy and also to hire by referral from OBES
once the 12-month recall period had ended, it made no at-
tempt directly to hire any of the approximately 150
unrecalled former strikers, and in fact asserts that it rejected
three such ex-strikers who actually were referred to Respond-
ent by OBES, in addition to 44 other referred ex-employees
whose employment had ended in circumstances unrelated to
the strike and who applied between August 3, 1988, and May
17, 1989 (R. Exhs. 13 and 14).
According to Karen Cook, manager of the Washington
Courthouse, Ohio office of OBES,6 when an employer orders
referrals, OBES employees will conduct a file search for ap-
plicants with requisite qualifications. Given first priority are
three categories of veterans. Thereafter, if more applicants
must be found, a further search is conducted by examining
social security numbers, the lowest numbers first when I
noted that such an arrangement seemed to prefer older appli-
cants, Cook could only say that this system is ‘‘the way
we’ve been taught to do.’’ But she also said that an appli-
cant’s length of time on file is (in some unexplained way)
factored into the selection process (‘‘Well, we’re not going
to take somebody who walked in today and registered for
work and send them, say, to Randall’s, as opposed to some-
body who came in six months ago . . .’’). After locating ac-
tive applicants, OBES arranges appointments with Respond-
ent for them and gives them referral slips.
However the selection process operates, the summary pre-
pared by Respondent shows that it resulted in only three
strikers (none of who are named in the complaint) actually
making application to Randall after having been referred by
OBES pursuant to Randall’s October 11, 1988 and subse-
quent orders.7 The evidence discloses that when, in October,
Respondent began the hiring process, OBES received some
telephone calls evidently questioning whether it was true that
former employees could not be referred Jerome Miller, an
OBES supervisor at Washington Courthouse, spoke to rep-
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 She filed her charge on April 12, 1989.
9 The charge in Case 9-CA-26593 was amended on July 26, 1989, to refer
specifically to Allen and Patricia Price Clark, alleging discrimination against
them since on or about January 4.
10 On the basis of the testimony of Harry Burge, who seemed to me to be
an honest witness, I conclude that Respondent did adopt a policy, on or about
August 1, not to consider former employees for employment during the strike.
11 While Respondent’s brief states that OBES refused to refer applicants
during the strike because of an ‘‘internal policy of not becoming involved with
labor disputes (Tr. 147),’’ neither the cited page nor any other transcript
source supports this assertion.
resentatives of Respondent to inform them that OBES could
not refuse to refer former employees. Puckett told Miller that
he had no problem with interviewing former employees, but
that Respondent did maintain a policy that it ‘‘would not hire
former employees.’’
It is clear that this information was widely disseminated to
former employees, including terminated ex-strikers. Miller
heard about it in October, when told by members of his staff
who, Miller testified, had learned about the policy from
former Randall employees; this was what led Miller to call
Randall to clarify OBES’s policy Miller also testified that his
office received a ‘‘lot of calls’’ from former employees who
‘‘knew that policy by word of mouth.’’ Patricia Clark was
told by OBES employees in October or November that Re-
spondent was not rehiring former employees, which fact she
also heard around the same time at union meetings and from
‘‘the different employees that work [at the plant] now ‘‘Sev-
eral other ex-strikers testified that they were told about the
policy by OBES employees.
As earlier stated, the complaint alleges, with respect to
four named employees and an undetermined number of oth-
ers, that Respondent ‘‘refused to accept an employment ap-
plication from or offer employment to’’ such employees. As
to the four identified employees, it cannot be said that Re-
spondent ‘‘refused to accept an employment application’’
from them because (1) these employees did not actually prof-
fer any such forms to Respondent and (2) under the OBES
referral system which Respondent chose to resume after the
strike, hiring is, as explained above, simply not done that
way.
For example, Saundra L. Shutts, a Charging Party here and
one of the four named discriminatees, having heard that Ran-
dall was hiring, went to the Washington Courthouse office
on January 17, 1989, and was told by OBES employee
Conaway that Randall was not hiring former employees. She
nonetheless filled out an OBES fore, but she was never re-
ferred by OBES for an interview with Randall.8
Joan Allen, who is also mentioned in the complaint, had
worked at various jobs for Respondent for 13 years before
she went on strike in 1987. She registered for employment
with the Lebanon, Ohio office of OBES on July 21, 1988,
and, also, around January 1989, went to that office and told
the OBES agent that she had heard Randall was hiring. The
Lebanon office called the Washington Courthouse office and
was informed that all Randall openings were filled at the
time. That same month, having been so advised by (appar-
ently) a representative of Randall, she visited the Washington
Courthouse office, asking to be registered there. Allen was
told that she had to first take some sort of 2-hour course, for
which she was given an appointment scheduled for 1-1/2
months thereafter. However, after hearing from both present
and former employees in 1989 (for the first time) that Ran-
dall was not hiring former employees, she did not keep the
appointment.9
Evidence was adduced as to two other named former em-
ployees, James Henthorn, a 5-year employee who was the
subject of the original charge in Case 9–CA–26593, and Pa-
tricia Price Clark, who had worked for Respondent for 15
years before going on strike. In addition, General Counsel
elicited testimony from employees not expressly named in
the complaint. Dan Phipps, who had been employed for 4
years before the strike, David Shutts, a 5-year employee, and
Orville Malatt, who had devoted 32 years of his working life
to Respondent prior to the strike, all testified that they had
applied with OBES in October or November, but had not
been called to be interviewed. Although the record shows
that some of the employees became temporarily or perma-
nently inactive in the OBES files because they failed to com-
ply with the OBES requirement that they renew their applica-
tion every 60 days, and that there may have been other appli-
cation defects, the stark fact is, as Puckett agreed at the hear-
ing, that even if these and other unrecalled ex-strikers had
been referred, they would not have been rehired because they
fell into the category of ‘‘former employees.’’
II. DISCUSSION AND CONCLUSIONS
The subject on which the trial of this case was focused,
and which was completely litigated, was whether the Re-
spondent’s refusal to consider for employment four named
and other unknown ex-strikers violated Section 8(a)(3) and
(1). On brief, General Counsel advances the contention that
the August 1, 1989 ‘‘decision not to rehire former employees
was motivated, in whole or in part, by Respondent’s desire
to keep out of its work force as many of the strikers [as] it
could.’’ While I find that the August 1 decision is indeed
suspicious, for a number of reasons which should be obvious,
I do not consider that decision to be the central issue here.10
Rather, two fundamental questions occur to me.
First, I find it difficult to understand why Respondent
chose, when it began hiring in October 1988, to reestablish
its referral relationship with OBES. At the hearing, Puckett
emphasized that OBES was useful to Respondent in the
maintenance of its affirmative action program, apparently be-
cause of the records maintained by OBES. It is hard to be-
lieve, however, that this factor could have been of such im-
portance at a time when Respondent interviewed over 300
applicants and hired more than 100 employees in a span of
less than 5 months. Respondent did not, I note, avail itself
of OBES’ services when it was hiring 187 employees (out
of an unknown number of applicants) during the strike.11
Moreover, the record shows that Respondent continued, in
and after October 1988, to directly advertise for and hire em-
ployees with skills not available from OBES.
Referral by OBES may be a useful service during normal
times when Respondent probably requires a small number of
employees sporadically. But in October 1988 and thereafter,
there was an abnormal and ongoing call for substantial num-
bers of employees; and there was in existence, simulta-
neously and extraordinarily, a group of perhaps 150 experi-
enced former employees on the expired striker recall list. It
is true, of course, that by the terms of the strike settlement,
these ex-strikers had been ‘‘terminated’’ from employment as
of August 19, 1988. Nonetheless, their presence on the list
665TEXTRON, INC.
12 Puckett was unable to even make a guess at the hearing as to how many
former employees had been interviewed prior to adoption of the ‘‘strict’’ pol-
icy.
13 As Respondent states on brief, ‘‘The reason for these performance defi-
ciencies is simple—employees that don’t ‘work out’ in their first period of em-
ployment likewise do not tend to work out in the reemployment context.’’
14 Witness Burge, who exercises responsibility at the divisional level, testi-
fied that he is unaware of a stated policy at any of the other plants in the
division prohibiting the hire of former employees.
reasonably indicated to Puckett that they were interested in
returning to work; and, at the same time, they constituted the
most promising source of employees, many of them having
worked, one may infer from this record, for extremely long
periods of time at the very same plant at which workers were
needed (e.g., Allen, 13 years; Clark, 15 years; Malatt, 32
years). Instead of taking advantage of this seemingly splen-
did opportunity and approaching these employees directly,
Respondent chose to hire through OBES, apparently prefer-
ring to take a chance with wholly inexperienced employees
rather than to seek out old hands.
It may similarly be argued that, to guard against the possi-
bility that not more than a few of the terminated ex-strikers
filtered through the OBES system and thus confronted Re-
spondent with the need to make a decision about hiring
them, Respondent continued to apply the ‘‘no former em-
ployees’’ policy adopted during the strike. The question that
I consider to be critical here is why, after the recall period
ended in August 1988, Respondent assertedly kept in effect
a strict policy which, in at least 24 years of operation prior
to the strike, Puckett had not thought necessary to adopt as
an inflexible rule?
Puckett was at least able to give some reason for con-
cluding that a stringent ‘‘no-former-employee’’ rule made
sense during the strike while it is truly difficult to imagine
that the files of so many former employees were deficient in
failing to show why such employees were terminated that it
actually created a source of ‘‘stress’’ for Puckett in tracking
down those reasons,12 there may be something to the claim
that doing so would have presented greater difficulty for
Burge, a stranger to the operation. But by October 1988, the
hiring process was back to relative normality; why would
Puckett have doggedly adhered to the new policy and made
it notorious that Respondent would not be hiring any former
employees, at a time when workers were needed and some
150 unrecalled strikers were still out there?
Puckett told us that, prior to the strike, he had adopted a
‘‘general’’ policy of not rehiring former employees, even
though he had not strictly enforced the rule when employees
had spoken to Puckett about quitting in order to take a vaca-
tion or to try out a new part of the country for a while, he
would tell them they ‘‘won’t be coming back ‘‘ He also tes-
tified (without any supporting documentation) that the rehires
he has made in the past ‘‘didn’t really work out well for
us,’’ citing difficulties with former employees learning new
work processes, extremely high absenteeism, and termi-
nations ‘‘beyond a reasonable rate.’’
But the applicants we consider here are not those dubious
prospects who flitted off to Florida, or who were fired for
poor work performance;13 these strikers were obviously satis-
factory workers who had been employed by the Respondent
for as many as 32 years, and who left to walk a picket line,
not to disport themselves in southern climes. There was sim-
ply no rational basis for Respondent to continue to apply the
‘‘rule’’ to these ex-employees for any of the reasons given
by Puckett as the underlying causes for originally adopting
such a rule. Indeed, the very idea of applying a strict policy
which would exclude such seasoned veterans as Allen, Clark,
and Malatt in favor of totally unknown novices must be con-
sidered, from a purely practical point of view, ludicrous.14
But the insubstantial nature of any possible reason for con-
tinuing in effect the ‘‘strict’’ policy even after the recall pe-
riod had ended is made irrelevant by the evidence that, in
fact, there was no such strict policy. Theresa Rosenwirth had
worked as a production employee for Respondent from Octo-
ber 1978 to September 1979, when she left to join the Army.
Evidence of this earlier employment is shown not only in her
summary of work experience on the back page of her Janu-
ary 16, 1989, application, but also appears prominently at the
top of the front page, where, in response to the question
‘‘Were You Ever Employed By This Company?,’’ she
marked the answer ‘‘Yes’’ and then wrote in the dates and
the location, as requested. Any reviewer of this application
would have had to be performing in a distressingly unsatis-
factory manner to have missed this information.
At the hearing, Puckett knew that Rosenwirth had been
hired as a clerical employee, but his ‘‘knowledge’’ did not,
he claimed, encompass the fact that she had previously been
employed at the plant. I do not believe him. Even Jerome
Miller, the OBES supervisor at Washington Courthouse, was
clearly aware of this exception Miller testified, ‘‘To my
knowledge, we [sic] had one former employee hired in a
clerical position. . . . All [former employees who were inter-
viewed were] not hired but one.’’ How Miller would come
to possess this specific information about Rosenwirth, I do
not know. It does not appear to be knowledge which would
be relayed to him in the ordinary course of business or that
he would independently notice I feel certain that if Miller
knew it, Puckett or some equally responsible official aware
of the ‘‘rule’’ also was cognizant of it.
It also appears that there is at least one other former em-
ployee who has been rehired Puckett testified as follows:
[Q.] Do you recall hiring, in 1989, a former produc-
tion worker for a non-bargaining unit job?
A. Yes, sir.
Q. Who was that?
A. The name has slipped my mind. I believe this
person had acted, been a guard.
Q. Pardon?
A. Had this person been a guard? That’s the only
one I can not sure, sir I’m not sure who it was.
Puckett may not have been sure ‘‘who it was,’’ but he un-
equivocally did recall hiring, in 1989, a former employee
(perhaps a guard). Since he went on to say that he was un-
aware that Rosenwirth was a former employee, Puckett must
have been referring to someone else.
It follows from the existence of these exceptions that there
was no ‘‘strict’’ policy against hiring former employees. I
infer from this and the preceding discussion that the reaffir-
mation of such a policy in and after October 1988, when Re-
spondent needed employees and there was a choice pool of
recent ex-employees who had left their jobs only to go on
strike, was an attempt by Respondent to eliminate from con-
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 I also would note that, in making my finding, I do not rely on the testi-
mony of Teresa Henthorn, whose attribution of a remark to an unknown per-
son cannot be used against Respondent (and, incidentally, is not significant).
16 Respondent’s brief states that General Counsel proved that the ‘‘charging
parties were strikers that had been replaced,’’ but the record contains no evi-
dence of ‘‘replacement’’ of the strikers named in the charges.
17 Curiously, Respondent’s brief states, at p. 28, ‘‘Of these three strikers, we
have no information about whether they may or may not have ultimately re-
ceived jobs at Randall.’’ Puckett, referring to R. Exh. 13, explicitly agreed
with Respondent’s counsel at the hearing that the exhibit showed ‘‘27 former
employees who have not been rehired’’ (which included the three strikers)
since hiring began in October 1988 and who, under the ‘‘no former employee
policy,’’ presumably should never be hired. And, moreover, at p. 7 of its brief,
Respondent specifically notes that each of the three strikers ‘‘was rejected pur-
suant to Randall’s strict policy against hiring former employees,’’ and, at p.17,
refers to ‘‘the rejection of applications’’ from the three strikers.
18 If we were to assume that Douglas Andrew was actually interviewed and
rejected on October 12, 1988, as suggested by R. Exh. 13 (the record testi-
mony is that October 12 represents the date of his Randall application), there
would be no problem under Sec. 10(b) even though the charge, which was
mailed on April 12, was not actually received by Respondent until April 13,
more than 6 months after the assumed date of the unfair labor practice. See
Laborers Local 264, 216 NLRB 40, 43 fn.1 (1975), enfd. 529 F.2d 778 (8th
Cir. 1976).
19 It has, of course, referred, predictably to no avail, the three strikers earlier
discussed.
sideration for reemployment all ex-strikers who desired re-
employment. Indeed, ‘‘[T]here is no other reasonable expla-
nation for the company’s pattern of hiring,’’ American Press,
Inc. v. NLRB, 833 F.2d 621, 625 (6th Cir. 1987). She pur-
ported adoption and application of such a policy for the rea-
son found is violative of Section 8(a)(3) and (1).
Although General Counsel has not referred on brief to
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), or
any cases in that line of authority, Respondent offers a
lengthy discussion of why the Great Dane Trailers principles
relating to ‘‘inherently destructive’’ and ‘‘comparatively
slight’’ discrimination do not apply. Since I have concluded
that the evidence shows that Respondent’s decision to adopt
a stance of shutting out all former employees was made in
order to ask its determination to disqualify all former strik-
ers, I need not discuss the application of Great Dane Trail-
ers.15
The remedy appropriate to the violation found here may
present difficulties. While it is not factually true that, as al-
leged, Respondent ‘‘refused to accept an employment appli-
cation from’’ the four named alleged discriminatees,16 it is
fair to say that Respondent effectively failed to ‘‘offer em-
ployment’’ to them, as well as to ‘‘other individuals whose
names are unknown to the [Acting Regional Director],’’ by
virtue of attempting to position itself so as to avoid offering
employment to any of the ex-strikers.
Indeed, the summary offered in Respondent Exhibit 13
identifies for us 3 former strikers as part of a group of 27
former employees who were actually interviewed and re-
jected after referral by OBES.17 While not expressly referred
to in the charge filed by Saundra Shutts on April 12, 1989,
the refusal to hire Douglas Andrew, Troy Elchert, and Rich-
ard Arthur was sufficiently ‘‘closely related’’ to the Shutts
charge so as to be considered timely. Redd-I, Inc., 290
NLRB 1115 (1988).18
But aside from these three instances, which happened to
come into the record rather serendipitously, it seems fair to
say that the use by Respondent of OBES and of the ‘‘no-
former-employee’’ policy to guard against rehiring the ex-
strikers probably affected a goodly number of that group, re-
ferred to in the complaint as ‘‘unknown’’ to the Acting Re-
gional Director. It may further be argued that all former em-
ployees, whether ex-strikers or not, who were denied reem-
ployment because of the unlawful policy, suffered from its
fall-out and deserve remedial relief.
I am inclined, however, to limit the remedy to former em-
ployees who were strikers. The complaint refers only to
them, and the prohibitive policy was directed at their exer-
cise of Section 7 rights. Extending the remedy to all rejected
former employees might result in failing to afford any re-
dress to some of the intended victims of the policy.
As for the former strikers who were rebuffed by virtue of
the ‘‘no-former-employee’’ ruse, they may present several
kinds of problems. General Counsel cites Love’s Barbeque
Restaurant v. NLRB, 640 F.2d 1094 (9th Cir. 1981), a
successorship case, for the proposition that where a successor
employer unlawfully discriminates in hiring, ‘‘an appropriate
remedy is reinstatement for all the former employees.’’ Id.
at 1100. But the court went on to provide, relying on NLRB
v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir.
1979), that a specific order of reinstatement of all 40 unhired
employees (in Vancouver, it had been 72) was unenforceable,
and a remand necessary, because it denied the successor em-
ployer ‘‘the opportunity to show that fewer than forty jobs
would have been available.’’ Love’s Barbeque Restaurant,
supra at 1102.
In similar vein, it seems to me that it could be the imposi-
tion of a penalty on Respondent, and a windfall to some
strikers, to simply order reinstatement and backpay for all
unrecalled strikers whose names remained on the list on and
after October 11, 1988, more than a year having passed since
the strike had ended and the contracted-for recall had begun,
it may be that, by October 1988, a number of those
unrecalled strikers had left the area or the labor market. Ad-
ditional questions would arise as to when the backpay period
would begin for each former striker who might otherwise be
entitled to reinstatement, since the openings after October
1988 probably encompassed different classifications. In short,
there may be various reasons, not all of them anticipated
here, why offers of reinstatement should not be made or
backpay should be curtailed, and I think it prudent not to in-
dulge in uninformed ‘‘precision’’ (Ibid. ) at this point.
I do not agree, however, with the ‘‘causation’’ arguments
advanced by Respondent because I believe that Respondent’s
decision to use OBES after the recall period was part of its
overall effort to deflect ex-striker applications, I find irrele-
vant the fact that OBES has not referred any of the former
strikers named in the complaint.19
I further disagree with the contention that refusal-to-hire
cases ‘‘must be dismissed where an alleged discriminatee
fails to file an application or otherwise take steps to procure
employment.’’ The precedents cited by Respondent are all
factually distinguishable. In the present case, I find a delib-
erate effort to avoid receiving applications from ex-strikers,
by unnecessarily employing the services of OBES; adopting
a ‘‘strict’’ no-former-employee policy despite the presumably
known presence and availability of many longtime employ-
ees who had not quit or been fired like other former employ-
ees; and making readily available to the ex-strikers the
knowledge that application—even with OBES—would be
pointless.
667TEXTRON, INC.
More relevant here are the successor-refusal-to-hire cases
See, e.g., Love’s Barbeque, supra, where discrimination was
found and, despite the fact that only 9 former employees ac-
tually applied to work for the new owner, the Court agreed
that a remedy could be available to as many as 30–40 former
employees. The Board and courts have frequently held that
when it is futile for employees to file applications, failure to
file is unimportant. Shortway Suburban Lines, 286 NLRB
323, 326 (1987); Macomb Block & Supply, 223 NLRB 1285,
1286 (1976); American Press, Inc. v. NLRB, supra; Packing
House Services v. NLRB, 590 F.2d 688, 696 (8th Cir 1978).
And see Kessel Food Markets, 287 NLRB 426, 431 (1987).
(‘‘Nonapplicants have been considered discriminatees in situ-
ations when . . . an employer structures its hiring practice
to prevent the predecessor’s employees from applying. Non-
applicants have also been considered discriminatees when an
employer declines to hire any of the predecessor’s employees
for unlawful considerations.’’)
Nonetheless, as I have noted above, there may well be em-
ployees who will be shown, at the compliance stage, as not
available for or interested in employment after October 11,
1988. Unlike the successorship cases, where a presumption
of interest in continued employment may be entertained, here
more than a year had passed since the strike had ended and
the October hiring had begun.
CONCLUSIONS OF LAW
1. The Respondent, Randall Division of Textron, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No 2540, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By its refusal after October 11, 1988, to consider for
employment its former employees because of the protected
concerted activity of these employees during the 1987 strike,
the Respondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent discriminatorily refused
to consider for employment its former employees who went
on strike in 1987, I recommend that the Board order that
their employment status be restored to what it would have
been but for the discrimination against them, and that, in ac-
cordance with the preceding discussion, the Respondent offer
them immediate reemployment, discharging, if necessary,
employees hired from other sources, and make them whole
for any net loss of earnings that they may have suffered due
to the discrimination practiced against them, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
I shall also recommend issuance of a cease-and-desist
order and the traditional notice posting.
[Recommended Order omitted from publication.]