The Grocers Supply Co., Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 438 (N.L.R.B. 1989)

438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Grocers Supply Company , Inc. and Lamar
Evans, and Teamsters, General Drivers, Ware-
housemen and Helpers Local Union No. 968, af-
filiated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO. Cases 23-CA-
10781, 23-CA-10792, 23-CA-10828, and 23-
CA-10842
May 31, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 6, 1988, Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
1. The judge applied Texaco, Inc., 285 NLRB
241 (1987), by way of analogy, to find that the Re-
spondent violated Section 8(a)(3) and (1) by failing
to reinstate four employees, on medical leave when
the strike began, on their releases by their doctors
to return to work. For the following reasons, we
agree that this case is analogous to Texaco and that
the Respondent has violated the Act as alleged by
the General Counsel.
In Texaco, the Board held that the question
whether an employer violates Section 8(a)(3) or (1)
by refusing to continue benefit payments to a dis-
abled employee on commencement of a strike will
be resolved by application of the Great Dane2 test
for alleged unlawful conduct. Thus, the General
Counsel bears the prima facie burden of proving
some adverse effect of the benefit denial on em-
ployee rights. This burden can be met by showing
that the benefit was accrued and was withheld on
the apparent basis of a strike. The finding of an ac-
crued benefit is critical to the Texaco analysis be-
cause in a strike situation an employer is not re-
quired to finance striking employees. Hence, an
employer may lawfully refuse to pay wages or
other expenses linked to the continuing perform-
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 NLRB v. Great Dane Trailers, 388 U S 26 (1967)
ance of services to employees who withhold their
services.3 On the other hand, an employer may not
lawfully withhold an accrued benefit in such a situ-
ation because that benefit has already been earned
through the past performance of services.
In the case at bar, we find that the undisputed
facts indicate that the denial of reinstatement to the
employees on medical leave once they received
their doctors' releases to return to work is analo-
gous to the denial of an accrued benefit. Thus, the
Union's business representative, John B. Daigle,
testified that, in his several years of representing
the unit employees at the Respondent's facility, em-
ployees on medical leave were allowed before the
December 1986 strike to return to work immediate-
ly on being released by their doctors and, despite
his grievance-handling duties, he knew of no prob-
lems with such employees returning to work.
Along the same lines , Ed Fox, the Respondent's di-
rector of operations for the last 4 years, testified,
on cross-examination, that to his knowledge, before
the December 1986 strike, the Respondent did not
have a practice of hiring permanent replacements
for employees on medical leave. No evidence con-
cerning any provisions in the collective-bargaining
agreement or any benefit plan was adduced on this
issue, so this testimony on the Respondent's past
practice stands unrebutted. The evidence thus
shows that an employee on medical leave had
earned by his past labor a right to retain his job
and to be immediately reinstated to it on submis-
sion of his doctor's release with no further condi-
tion. In this instance, right to recall of an employee
on medical leave is of the same nature as an ac-
crued benefit.4 The judge properly found that the
reinstatement of the employees on medical leave
was denied because unit employees had gone on
strike. This finding completes the Texaco analogy
and shows that the General Counsel has made out
a prima facie case.
We further agree with the judge's conclusion
that the Respondent failed to meet its burden of
showing a legitimate and substantial business justifi-
cation for denying reinstatement. The Respondent's
principal argument on this issue is that it had a fun-
damental right to hire permanent replacements
during the strike under the rationale of NLRB it.
Mackay Radio & Telegraph, 304 U.S. 333 (1938);
3 Thus, if the four employees had been given medical releases to return
to work before the strike ended and had failed to return, the Respondent
would have been entirely within its rights in filling their jobs with perma-
nent replacements as it did in the case of the other strikers
4 Cf, e g, Amoco Oil Co, 287 NLRB 1168 (1988), Amoco Oil Co., 285
NLRB 918 (1987) (in which employees were found not entitled to disabil-
ity payments because one of the requirements under the disability plan
and past practice was that the employees be otherwise scheduled to
work, not present in the lockout situations there involved)
294 NLRB No. 31
GROCERS SUPPLY CO
that it did in fact hire permanent replacements for
every position and had to do so to avoid irreversible
damage; that it offered permanent employment to
the replacement employees before any of the discri-
minatees returned to work; and that, therefore,
there were no available positions for the discrimin-
atees . The central flaw in this argument is that it
assumes the four employees on medical leave are
strikers. Thus, Mackay Radio holds that, in an eco-
nomic stri ke, an employer may lawfully replace
striking employees and is not bound to discharge
those hired to fill the place of strikers when the
strikers offer to return to work. Mackay Radio,
therefore, cannot be cited as support for perma-
nently replacing employees on medical leave. As
discussed above, the Respondent had never previ-
ously permanently replaced employees on medical
leave and thus had a practice of according them a
right to retain their job. That right, like an accrued
benefit, is not affected by a strike and by denying it
on the apparent basis of a strike, the Respondent
violated the Act.5
2. The complaint further alleged and the judge
found that the Respondent violated Section 8(a)(3)
and (1) by constructively discharging one of the
above-mentioned discriminatees, employee Lamar
Evans, on June 18, 1987. The Respondent contends
that Evans voluntarily resigned on that date. We
find merit in the Respondent's contention.
The judge properly found that on March 9, 1987,
the Respondent unlawfully denied reinstatement to
Evans when he attempted to return from medical
leave; On June 18, 1987, Evans resigned. Accord-
ing to the undisputed testimony of Ida Evans, the
Respondent's employment secretary and the sole
witness on this issue on June 18, employee Evans
"requested his termination to obtain his pension
money. . . . He didn't tell me he needed that
money so he could live. He said he wanted to
resign and he would get his pension money." Ida
Evans also identified' a resignation form of that
same date signed by Evans which stated "I hereby
state that I have requested my resignation as an
employee of this company for personal reasons
only."
The judge reasoned from these facts that, had
the Respondent reinstated Evans in late February
or early March as it was obligated to do , "there is
no evidence to suggest Evans would have needed
5 We further agree with the judge's finding that the Union did not
waive the employee's right to recall by including them in its recall agree-
ment with the Respondent In so doing , however , we disagree with his
conclusion that the issue was not fully litigated Thus , as the judge point-
ed out, some evidence was presented on this issue and it was the Re-
spondent which did not pursue the matter once counsel for the General
Counsel objected On the objection , the Respondent's counsel elected not
to pursue the issue
439
to resign to withdraw his pension contributions."
The judge concluded that although the situation is
not free from doubt, the Respondent, as the wrong-
doer, must bear the risk of the doubt. Accordingly,
the judge found that by causing Evans to resign on
June 18, the Respondent unlawfully constructively
discharged him. He, therefore, ordered the Re-
spondent to offer Evans reinstatement, despite his
June 18 resignation , and to pay him backpay, with
interest, from March 9. We disagree with the
judge's analysis.
The type of constructive discharge alleged here
occurs when an employee quits because an employ-
er has deliberately made working conditions un-
bearable.6 Two elements must be proven to estab-
lish a constructive discharge:
First, the burdens imposed upon the employee
must cause, and be intended to cause , a change
in his working conditions so difficult or un-
pleasant as to force him to resign. Second, it
must be shown that those burdens were im-
posed because of the employee's union activi-
ties.7
The facts presently before us fail to prove the
first element. Evans did not testify and the undis-
puted facts above indicate that Evans did not ex-
press any kind of economic urgency as the motive
for his resignation or request for his pension
funds.8 Were we to find a constructive discharge
here, we would establish the untenable position of
f nding a constructive discharge in every case in
which an employee who had been unlawfully re-
fused reinstatement decided to resign before being
offered reinstatement.9 Accordingly, we dismiss
8 Algreco Sportswear go, 271 NLRB 499, 500 (1984), citing Keller Mfg
Co, 237 NLRB 712 (1978) Compare White-Evans Service Co, 285 NLRB
81 (1987)
7 Id citing Crystal Princeton Refining Co, 222 NLRB 1068, 1069
(1976)
8 E g, EDP Medical Computer Systems, 284 NLRB 1232, 1233 (1979),
Algreco Sportswear Co, supra (in which cases, the Board specified that the
mere existence of discrimination is not sufficient to warrant consideration
of abandonment of employmeit as a constructive discharge)
8 Chairman Stephens and Member Cracraft disagree with Member Jo-
hansen's analysis of this issue Although a discriminatee may prove that
earlier discrimination has forced him to resign a job, as in those cases
cited Eby our colleague, such is not the case here As described above,
Evans did not testify The Respondent's employment secretary, Ida
Evans, who was the only witness on this issue , testified that when Evans
stated he wanted to resign and get his pension money, he referred to no
economic conditions underlying this request
In contrast , the cases cited by our dissenting colleague contain evi-
dence linking the respondent's earlier discrimmatee 's resignation with the
respondent's Thus, in Big Sky Sheet Metal Co, 266 NLRB 21 (1983), em-
ployee Mineer testified to his economic situation resulting from his dis-
criminatory layoff that prompted him to collect his share of the profit-
sharing fund Similarly, in C K Smith & Co, 227 NLRB 1061, 1075
(1977), employee "Wadowski found it necessary in order to secure other
employment to resign " Absent similar evidence connecting Evans' resig-
nation here with the Respondent 's discriminatory action against him, we
Continued
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the allegation that the Respondent constructively
discharged Evans in violation of Section 8(a)(3)
and (1) of the Act. We have revised the order not
to require reinstatement and to limit the backpay to
the period from March 9 , when reinstatement was
unlawfully denied , to June 18 , 1987, when Evans
voluntarily resigned.' 0
ORDER
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Grocers Supply Company, Inc.,
Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Joseph Grant Sr., Freddie C. High-
tower, and Lee C. Jones immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed; make them
whole for any loss of earnings or other benefits suf-
fered as a result of the discrimination against them,
in the manner set forth in the remedy section of the
decision; and make Lamar Evans whole for any
loss of earnings or other benefits suffered as a
result of the discrimination against him from March
9, 1987, until June 18, 1987, when he voluntarily
resigned, in the manner set forth in the remedy sec-
tion of the decision."
2. Substitute the following for paragraph 2(b).
(b) "Remove from its files any reference to the
unlawful refusals to reinstate Lamar Evans, Joseph
Grant Sr., Freddie C. Hightower, and Lee C.
Jones, and notify the employees in writing that this
has been done and that the refusals will not be used
against them in any way."
must take Evans' resignation at its face value as a voluntary resignation
that the unrefuted testimony shows it to be On that basis, we deny him
reinstatement and backpay beyond June 18, 1987, the date of his resigna-
tion
10 Member Johansen is of the view that employee Evans' resignation,
in the particular circumstances herein present, does not reveal a volun-
tary relinquishment of his right to be reinstated and made whole for loss
of wages suffered as a result of the Respondent's discrimination against
him In this connection, Member Johansen finds the cases relied on by his
colleagues to be factually distinguishable in that they do not involve em-
ployees who were deprived of their employment because of the respond-
ents' unlawful conduct To the contrary, see Big Sky Sheet Metal Co,
supra, and C K Smith & Co, supra Here, similar to those cases, employ-
ee Evans' resignation occurred subsequent to the Respondent's unlawful
refusal to reinstate him Moreover, as found by the judge, there is no evi-
dence that Evans would have needed to resign to get his pension without
the Respondent's unlawful conduct Under these circumstances, unlike his
colleagues, Member Johansen finds that the Respondent has not carried
its burden of showing Evans' resignation was not the result of its unlaw-
ful action Compare Abilities & Goodwill, 241 NLRB 27 (1979)
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discriminate against you or coerce
you in the exercise of your Section 7 rights, includ-
ing the right to strike, by refusing to allow any of
you on medical leave when a strike begins the
right to return to work when released by your
doctor.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the-exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joseph Grant Sr., Freddie C.
Hightower, and Lee C. Jones immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
we will make them, in addition to Lamar Evans,
whole for any loss of earnings or other benefits suf-
fered as a result of the discrimination against them,
less any net interim earnings, plus interest.
WE WILL notify these employees that we have
removed from our files any reference to our refusal
to reinstate these employees and that our refusal to
reinstate them will not be used against them in any
way.
THE GROCERS SUPPLY COMPANY, INC.
Tamara J. Gant, Esq., for the General Counsel.
Christopher E. Howe, Esq. and Robert S. Bambace, Esq.
(Fulbright & Jaworski), of Houston, Texas, for the Re-
spondent.
Eric H. Nelson, Esq. (Nelson, Locke & Fowler), of Hous-
ton, Texas, for the Charging Party.
GROCERS SUPPLY CO. 441
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge.
While four employees were on medical leave, their rec-
ognized bargaining unit at The Grocers Supply Compa-
ny (Grocers) began an economic strike. Grocers hired
permanent replacements for the strikers. After the strike
ended, Grocers and the Union agreed on a striker recall
procedure which included the four among the strikers on
a preferential recall list. When the four were released by
their doctors to return to work (one during the strike
and three after the strike), Grocers declined to reinstate
them before the sequence of their recall as specified on
the preferential recall list. Respondent Grocers contends
the four had no greater rights than the strikers The
General Counsel argues that the four had a right to im-
mediate reinstatement when they sought to return to
work on their release from medical leave. Agreeing with
the Government, I order Grocers to offer the four imme-
diate reinstatement and to make them whole, with inter-
est.
I presided at the hearing of this case in Houston,
Texas, on 9-10 February 1988 pursuant to the 23 Decem-
ber 1987 order consolidating cases issued by the General
Counsel of the National Labor Relations Board through
the Regional Director for Region 23 of the Board.' The
order consolidated four separate complaints. The first
complaint, dated 20 October, is based on a charge filed
27 August in Case 23-CA-10781 by Lamar Evans, an in-
dividual (Evans). The remaining three complaints, issued
20 October and 9 and 23 December, are based on
charges filed by Teamsters, General Drivers, Warehouse-
men and Helpers Local Union No. 968, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO
(Union).' The charges were filed against The Grocers
Supply Company, Inc. (Respondent, Grocers, or Compa-
ny).3 Respondent's name appears as corrected at the
hearing (2:269).4
Considered as a group, the four complaints allege that
the Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to allow four employees to return to
work from medical leave (for sickness or workers com-
pensation injury). The four employees, and the dates
they went on medical leave in 1986, the dates of Re-
spondent's refusals in 1987 are:
Lamar Evans 10/4-3/9
Joseph Grant Sr. 12/15-5/15
Freddie C. Hightower 11/30-11/9
' All dates are for 1987 unless otherwise indicated
2 On 1 November 1987 the Teamsters International Union was readmit-
ted to the AFL-CIO Emerson Electric Co, 287 NLRB 1065 (1988)
9 The second complaint is based on the Union's charge filed 9 Septem-
ber and docketed as Case 23-CA-10792 (Although the complaint alleges
the charge was served on 9 September, the formal exhibits reflect that it
was not served until 10 September,) The third complaint is based on the
Union's charge filed 10 November in Case 23-CA-10828 The fourth
complaint is based on the Union's charge filed 27 November in Case 23-
CA-10842
4 References to the two-volume transcript of testimony are by volume
and page
Lee C. Jones 12/17-11/11
From about 21 December 1986 to 6 April 1987 certain
of Respondent's employees, represented by the Union,
engaged in an economic strike. During the strike Re-
spondent hired permanent replacements for the strikers.
The General Counsel contends Grocers could not law-
fully replace Evans, Grant, Hightower, or Jones because
each was on medical leave and disabled during the rele-
vant time. Not disputing the four were ostensibly on
medical leave during the relevant time, Respondent
argues the four demonstrated they were not disabled be-
cause they picketed or otherwise evidenced by their
presence at or near the picket line that they had joined
the strike. Respondent placed the four on a preferential
hiring list. The General Counsel contends the four al-
leged discriminatees never appeared at or near the pick-
eting and that Grocers, by failing to show the four were
not disabled, must offer the four reinstatement and pay
them backpay. Respondent denies it has violated the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsels and the Re-
spondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
A Texas corporation with an office and place of busi-
ness at 3131 East Holcombe in Houston, Texas, Re-
spondent distributes groceries and related items at whole-
sale. During the past 12 months Grocers purchased and
received at its Houston facility products, goods, and ma-
terials valued in excess of $50,000 directly from points
located outside Texas. Grocers admits, and I find, that it
is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Grocers admits, and I find, that Teamsters, General
Drivers, Warehousemen and Helpers Local Union No.
968, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years Grocers and the Union have had a
collective-bargaining relationship. The most recent col-
lective-bargaining agreement (CBA) was effective, by its
terms, from 7 April 1985 through 4 October 1986 (G.C.
Exh. 10 at 40). The recognized bargaining unit includes
truckdrivers and certain other classifications falling
under, apparently, three main departments: transporta-
tion, maintenance, and warehouse. There are about 525
to 650 employees in the bargaining unit (1:92, 187).
5 The General Counsel attached a proposed order to her brief
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Following 'expiration of the 1985-1986 CBA, certain
employees of Grocers commenced an economic strike
which lasted from 21 December 1986 to 6 April 1987.
Ed Fox, Respondent's director of operations, testified the
strike initially shut Respondent down because practically
the entire bargaining unit struck (2:275). Fox also testi-
fied that Respondent hired replacements for the strikers
and that by the third week of the strike the Company
had hired a full complement of replacement employees.
Around 20 January Respondent began converting the re-
placements to the status of permanent employees (2:277).
On 6 April the Union, on behalf of the striking em-
ployees, made an unconditional offer to return to work.
Grocers and the Union agreed to a recall procedure
whereby all replaced employees would be placed on a
preferential hiring list (1:99, 181-182; 2:278-279). As di-
rector of operations Fox testified, the parties agreed the
recall list was arranged by department with employees
named to the list in an order based on several factors, in-
cluding dollar value of accidents, attendance, seniority,
and disciplinary actions (2:278-279). The recall list,
which is in evidence (R. Exh. 3), includes the names of
the four alleged discriminatees. Jones, Hightower, and
Grant are listed with the drivers. Evans, who worked in
the warehouse department, is listed under the classifica-
tion of grocery selectors. Respondent contends the
Union waived the right any of the four had to immediate
reinstatement by specifically including them in the recall
procedure on the same basis as the strikers (Br. at 21).
Respondent also pleaded waiver in its answers to the
complaints, although it did so only generally
Among the 121 drivers named in sequential order on
the recall list, Lee C. James is No. 78, Freddie C. High-
tower is No. 113, and Joseph Grant Sr. is No. 115.
Under the grocery selector classification, Lamar Evans is
No. 61 for recall As of the hearing only 18 to 25 em-
ployees had been recalled to work from the recall list
(1:99, Chadwick). Thus, reinstatement from the recall list
will be a slow process.
B. The Evidence
Freddie C Hightower injured his right ankle on 30 No-
vember 1986 when he accidentally dropped the tailgate
of a trailer on it Surgery on the ankle, with hospitaliza-
tion, followed. The wound was difficult to treat, and
Hightower eventually underwent plastic surgery. High-
tower had to use crutches until late April 1987 and,
thereafter, a cane until about August (1:47, 60). Eventu-
ally his doctor, on 5 November, released Hightower as
able to return to work on 9 November 1987 (1:46; G.C.
Exh. 2 at 7, 10).
As transportation manager , L. W. Boyd supervises Re-
spondent's drivers (2:217, 263). According to Boyd, be-
ginning about 21 December, and almost daily for the
next 3 weeks, he observed Hightower picketing. Not
only was Hightower carrying a picket sign, but he used
no cane or other assistance, and he walked with a normal
stride until he went into a "striker shuffle" when a vehi-
cle approached (2:235, 257, 260). Denying this, High-
tower insists he never appeared at or even near the
picket line during the strike (1:58, 77).
The health clinic Hightower initially visited attempted
only minor treatment of Hightower's injury. On 17 De-
cember 1986 the clinic referred Hightower to Dr. Long
who cared for Hightower until referring him to the plas-
tic surgeon, Dr. Elizabeth Spankus, on 12 January 1987.
Dr Long admitted Hightower to a hospital for 3 days
during which time he operated on Hightower's ankle.
For the next 2 to 3 weeks, Hightower visted Dr. Long's
office where Dr. Long performed minor outpatient sur-
gery in a futile attempt to close the wound. During this
time Hightower could not put any weight on his right
ankle and swollen right foot (1:42, 46). Dr. Spankus per-
formed surgery on 28 January and did a skin graft which
proved unsuccessful (G.C. Exh. 2 at 9). Further treat-
ment was necessary before, as earlier noted, Dr. Spankus
released Hightower many months later.
The record does not contain the specific date Dr.
Long hospitalized Hightower. (Photocopies of several
medical records in evidence are largely illegible.) Appar-
ently the 3-day hospitalization ended about the time the
strike began. In contrast to Transportation Manager
Boyd, Hightower testified with a persuasive demeanor,
and I credit him. Thus, I find that during the first 2 to 3
weeks of the strike Hightower was unable to put weight
on his right ankle and, in fact, underwent several outpa-
tient operations by Dr. Long. I find that Hightower at
no time picketed during the strike or even appeared at or
near the picket line.
On 5 November Hightower furnished to Clarence L.
Chadwick, Respondent's director of human resources, his
release for return to work on Monday, 9 November. Al-
though Chadwick testified Hightower was not returned
to work because he had been permanently replaced
during the strike and there was no vacancy (1:95-96), it
is clear from the credited testimony of Hightower that
Respondent's refusal was based on its assertion High-
tower had been seen picketing Chadwick, as Hightower
testified, told Hightower on 5 November that he could
not put Hightower to work because Hightower had been
seen picketing (1:50).
The cases of the other two drivers, Joseph Grant Sr.
and Lee Jones, are similar in nature to Hightower's. Both
received on-the-job injuries. On their release to return to
work, Respondent declined to return them to work be-
cause it had no openings for them because each had been
permanently replaced during the strike (1:97-98, Chad-
wick).
Grant injured his left knee on 15 December 1986. Di-
agnostic arthroscopic surgery was performed on 22 De-
cember (G.C. Exh. 2 at 29). For several weeks, until
March, Grant needed the assistance of crutches to walk.
He received physical therapy for 2 weeks at a local hos-
pital in May. Before his release on 15 May to return to
work, Grant could not have performed his normal job
duties (1:108-110, 135-136; G.C. Exh. 2 at 27).
Ed Fox, Respondent's director of operations, testified
he observed Grant on two occasions in late December
1986 walking the picket line and, Fox testified, Grant
was not using a crutch or even limping (2:281-289). De-
nying this, Grant testified he did not return to Grocers
until his medical release in May (1:116-117, 122). 1 credit
GROCERS SUPPLY CO 443
Grant who testified with a persuasive demeanor in con-
trast to Fox.
Lee C. Jones injured his back on 17 December 1986
when he fell from one of Respondent's trucks to the con-
crete (1:142-143). Jones received treatment and pain
medication until he was hospitalized on 27 February and
placed in traction until his discharge from the hospital on
10 March. Jones declined a doctor's recommendation
that he have back surgery. The doctor released Jones on
11 November to return to work.
When Jones spoke with Chadwick on I1 November,
Chadwick told Jones that, under normal circumstances
he could return to work, but because he had been seen
on the picket line, Jones would have to wait in line with
the rest of the strikers. Jones denied the allegation, and
Chadwick did not alter his position. Jones left (1:152).
According to Transportation Manager Boyd, on sever-
al occasions he saw Jones on the picket line into the
third week of the strike, that Jones had no difficulty in
walking, and that on 22 December Jones called him an
obscenity as Boyd crossed the picket line. Jones denies
this, testifying that he never went to the picket line or
spoke with anyone there during the strike (1:152-154,
156-157). I credit Jones who testified with a convincing
demeanor , in contrast to Boyd.
Lamar Evans. On 4 October 1986 Lamar Evans began
a period of disability as a result of a severe gastric ulcer.
As described by Dr. Chok K Lee, Evans' physician, the
ulcer necessitated the removal of at least 50 percent of
Evans' stomach. This required a 3-week hospital stay
plus an extended recuperative period. Although Evans
did not appear as a witness, Dr. Lee credibly testified
Evans was disabled from being able to perform the
duties of his job from 4 October 1986 to 21 February
1987 (1:29).
On 20 February, a Friday, Dr. Lee issued Evans a re-
lease to return to work for the following day (G.C. Exh.
3) The release form reflects that Respondent 's nurse,
Rose Joubert, initialed the form as received on 20 Febru-
ary with her "O.K." (1:81).
According to Chadwick, Evans telephoned him about
26 February and asked if he could return to work. Chad-
wick asked what date Evans had been released to return
to work and Evans replied he had been released for 21
February. Chadwick asked where Evans had been since
then and Evans, according to Chadwick, replied that he
had been trying to decide. Chadwick told Evans to send
a written request (1:83).
By undated letter, apparently postmarked 2 March,
Evans wrote Chadwick requesting to return to work
(G.C. Exh. 4) Responding by letter dated 9 March,
Chadwick told Evans "you have been permanently re-
placed." (G.C Exh. 5.)
Chadwick testified Respondent's practice is for the
employee to bring the release to him after the nurse has
initialed her "O.K." on it . According to Chadwick, the
employee is to bring in the release on the day it is re-
ceived and report for work on the reporting date speci-
fied on the release. When asked the source of that rule,
Chadwick testified that such a rule has been posted on
the bulletin board in the past and has been in existence
for some 10 years. Under the rule, Chadwick testified, an
employee could be terminated for failing to abide by the
rule. Chadwick testified he could not recall ever termi-
nating anyone for failing to follow the rule.
The rules, which are in evidence, date from the mid-
1970s and do not contain the policy described by Chad-
wick (G.C. Exhs. 8 and 9). Chadwick testified the rule
was revised around February-March 1987 (1:87). It is un-
clear whether Chadwick meant the rule in question or
whether an overall revision issued in 1987. In either
event , no revision was offered in evidence.
Article 35 of the expired CBA suggests that a release
was not mandatory. Thus, section 35.6 reads (G.C. Exh.
10 at 35):
The Employer may require an employee to submit a
release from a doctor if the Employer is in good
faith doubt as to an employee's illness. However,
the Company will pay the cost of such visit to the
doctor.
John C. Daigle, a business representative for Team-
sters Local 968, credibly testified that no rule, such as
described by Chadwick, had ever been agreed to by the
Union (1:179, 186). In this connection I note that para-
graph 8 of the Evans complaint alleges, and Respond-
ent's answer admits, that Evans commenced his sick
leave with the Company's approval and authorization.
Human Resource Director Chadwick testified with an
unpersuasive demeanor and I do not credit him. Thus, I
find there was no mandatory reporting rule or practice
as he described.
Chadwick testified there were two or three reasons
why he did not reinstate Evans. First, his asserted un-
timeliness in reporting . Second , his indecision on wheth-
er he intended to return. (These appear to be two aspects
of the same reason, untimeliness.) Third, he had been re-
placed (1:92). Respondent makes no contention Evans
picketed or otherwise participated in the strike. Discred-
iting Chadwick as I do regarding the untimeliness
ground, I find that the sole reason Respondent failed to
return Evans to work is the single reason Chadwick
gave in his letter of 9 March, "you have been perma-
nently replaced." In this connection the testimony of Di-
rector of Operations Fox is relevant. On cross-examina-
tion by the General Counsel, Fox testified that before the
strike, to his knowledge, Respondent had no practice of
hiring permanent replacements for employees on medical
leave (2:292)
On 18 June Evans went to Grocers and, as Employ-
ment Secretary Ida Evans (no relation) testified, resigned
in order to obtain his pension money (2:212-216; R. Exh.
4) The General Counsel contends that Evans' termina-
tion is a constructive discharge . Grocers classifies it as a
voluntary resignation ending any further claims thereaf-
ter.
C. Discussion
1. Grant, Hightower, and Jones
Joseph Grant Sr. was denied reinstatement on 15 May,
Freddie C. Hightower on 5 November, and Lee C. Jones
on 11 November 1987. Respondent denied them rein-
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statement because there were no openings, for they had
been permanently replaced in January.
Analogizing the instant situation to the rule prevailing
in cases involving the denial of accrued benefits to em-
ployees on medical leave when a strike begins,6 the Gen-
eral Counsel argues Respondent could not treat Grant,
Hightower, and Jones as strikers and was obligated to re-
instate them as formerly disabled employees released to
return to work (Br. at 10-12). '
Respondent contends that hiring permanent replace-
ments for absent employees, regardless of their status,
does not violate the Act because no protected activity is
involved (Br. at 13), and that the General Counsel seeks
to establish for employees on medical leave recall rights
superior to the recall rights of unreinstated strikers (Br.
at 19).
Agreeing with the General Counsel, I find that the
General Counsel carried her prima facie burden by prov-
ing at least some adverse effect on employees' rights by
the denial of reinstatement to employees Grant, High-
tower, and Jones when they were relased by their doc-
tors to return to work. The denial of reinstatement was
apparently based on Respondent's treating them as strik-
ers. Under Texaco, the burden then shifted to Respond-
ent to come forward with proof of a legitimate and sub-
stantial business justification of its action.
Respondent contends it met its burden with several
reasons. First, it points to the lack of openings because of
the replacements. That ground merely begs the question.
Respondent also argues waiver. As earlier mentioned,
Respondent contends the Union waived the right any of
the four had to immediate reinstatement by including
them in the recall procedure along with the strikers. The
General Counsel does not address the waiver defense in
her brief, but at the hearing she objected to the rel-
evance of testimony about the recall procedure and to in-
troduction of the preferential recall list on the basis the
four alleged discriminatees were not strikers but formerly
disabled employees denied their right to return to work
on release by their doctors (1:182-183; 2:279). The evi-
dence on the negotiation of the recall procedure is limit-
ed. The brief evidence on this point falls short of estab-
lishing the explicitness required' before it may be found
that a bargaining representative has waived employees'
reinstatement rights. When the General Counsel objected
to the evidence, Respondent did not pursue the matter,
content to rely on the brief evidence elicited. I find the
matter was not fully litigated and that Respondent's
waiver defense is without merit. Accordingly, I shall
order Respondent to offer reinstatement to Grant, High-
tower, and Jones and to make them whole, with interest.
2. Lamar Evans
Evans' case involves two questions. First, Respondent
contends his allegation is barred by Section 10(b) of the
Act.8 Evans filed his charge on 27 August. Respondent
e See, for example, Texaco, 285 NLRB 241 (1987)
"Waiver will not be inferred, but must be explicit " Texaco, id at 246
s The General Counsel does not address this defense in her brief
argues the limitation period should begin on 20 or 23
February or, at the latest, 26 February (Br. at 24-25).
This defense is without merit, for Chadwick's final refus-
al was not expressed until his letter of 9 March. Even if
the issue date rather than the receipt date of the letter is
used, it is clear that 9 March is a date within the 6-
month period of limitations.
The second question is whether Evans' resignation on
18 June was a resignation in fact (as Respondent con-
tends) or a constructive discharge (as argued by the
General Counsel). I agree with the General Counsel. Re-
spondent should have reinstated Evans in late February,
or no later than 9 March. Had Respondent so reinstated
Evans, there is no evidence to suggest Evans would have
needed to resign to withdraw his pension contributions.
The situation is not free from doubt. Any doubt, howev-
er, was created by Respondent's wrongful conduct. As
the wrongdoer, Respondent bears the risk any doubt en-
tails. I shall order Respondent to offer reinstatement to
Lamar Evans and to make him whole, with interest,
from 9 March 1987.
CONCLUSIONS OF LAW
1. The Grocers Supply Company, Inc. is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters, General Drivers, Warehousemen and
Helpers Local Union No. 968, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By refusing to reinstate the following employees on
the dates shown after their application on their release
for work from medical leave, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act:
Lamar Evans 3/19/87
Joseph Grant Sr. 5/15/87
Freddie C. Hightower 11/9/87
Lee C. Jones 11/11/87
4. By unlawfully causing Lamar Evans to resign on 18
June 1987, Respondent constructively discharged him in
violation of Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Respond-
ent must:
1. Offer Lamar Evans, Joseph Grant Sr., Freddie C.
Hightower, and Lee C. Jones immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them whole, with interest,
for any loss of earnings or other benefits they may have
suffered as a result of the discrimination against them.
Backpay shall be calculated in the manner established in
GROCERS SUPPLY CO
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed as described in New Horizons for the Retard-
ed.9
2. Remove from its files any reference to the construc-
tive discharge of Lamar Evans , and to the unlawful re-
fusal to reinstate Evans, Joseph Grant Sr., Freddie C.
Hightower , and Lee C. Jones and notify the employees
in writing that this has been done and that the refusals
and the constructive discharge will not be used against
them in any way.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edio
ORDER
The Respondent , The Grocers Supply Company, Inc.,
Houston , Texas, its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Discriminating against and coercing employees in
the exercise of their right to engage in or refrain from
engaging in union and other protected concerted activi-
ties, including the right to strike, by refusing to allow
employees , on medical leave when a strike begins, the
right to return to work when released by their doctors.
(b) In any like or related manner interfering with, re-
straining , or coercing emloyees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Offer Lamar Evans, Joseph Grant Sr., Freddie C.
Hightower , and Lee C. Jones immediate and full rein-
statement to their former jobs or , if those jobs no longer
9 283 NLRB 1173 (1987)
10 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
445
exist , to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privileges
previously enjoyed , and make them whole for any loss of
earnings or other benefits suffered as a result of the dis-
crimination against them , in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the con-
structive discharge of Lamar Evans , and to the unlawful
refusal to reinstate Evans, Joseph Grant Sr., Freddie C.
Hightower, -and Lee C. Jones and notify the employees
in writing that this has been done and that the refusals
and the constructive discharge will not be used against
them in any way.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Houston, Texas facility copies of the at-
tached notice marked "Appendix ." " i Copies of said
notice, on forms provided by the Acting Regional Direc-
tor for Region 23, after being duly signed by its repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by it to ensure
that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Acting Regional Director in writing
within 20 days from the date of this Order what steps
the Respondent has taken to comply.
II If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "