Toledo (5) Auto/Truck Plaza

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 676 (N.L.R.B. 1990)

676
300 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 After the hearing, the judge amended the complaint at his own discretion
by adding Cindy Hollie’s name to conform the pleadings to the evidence. The
Respondent argues that the judge erred by amending the complaint in the ab-
sence of a motion by one of the parties. The original complaint alleged that
Respondent discriminated against Debbie Sleek, Jill Czerniejewski, ‘‘and other
employees whose identities are presently unknown.’’ Because Cindy Hollie is
a member of the class of persons described in the complaint, and the relevant
evidence pertaining to the violation was fully litigated, we adopt the judge’s
8(a)(3) finding. We therefore find it unnecessary to pass on whether the judge
properly amended the complaint.
2 The Hotel Employees and Restaurant Employees Union filed its charge on
September 22, 1986, and the Teamsters Union filed its charge on March 14,
1988.
We adopt the judge’s finding that the Respondent violated Sec. 8(a)(3) and
(1) by discharging Shelly Shields for being on the Teamsters’ picket line while
she was on maternity leave. In agreeing with the judge’s conclusion, we rely
only on the fact that Shields was on maternity leave during the entire period
of the strike and not withholding services from the Respondent and therefore
was not an actual striker. We note that Emerson Electric Co., 246 NLRB 1143
(1979), cited by the judge, has been largely superseded by Texaco, Inc., 285
NLRB 241, 245 (1987).
The judge’s finding that the Respondent’s reinstatement offers to Barbara
Smith and Cindy Hollie were invalid is consistent with the holding in Esterline
Electronics Corp., 290 NLRB 834 (1988). In that case the Board held that
when a discriminatee receives a letter offering reinstatement and also states
a report back date, the Board will not find the offer invalid simply because
the time period in which to report appears unreasonably short. The offer will
be treated as invalid, however, if the letter on its face makes it clear that rein-
statement is conditioned on the employee’s returning to work by the specified
date or the letter otherwise suggests that the offer will lapse if a decision on
reinstatement is not made by that date. In this case, by letter dated May 30,
1987, Respondent informed Barbara Smith that she was being recalled to work
and that she must report to work by June 3, 1987. The letter stated, ‘‘If you
fail to report to work within the scheduled time, your recall rights will be ter-
minated.’’ Under Esterline, Smith’s recall letter was invalid on its face be-
cause it gave her an unreasonably short time in which to report to work and
made it clear that her reinstatement was conditioned on her reporting by that
date. The fact that Smith did not respond to the letter (which she did not re-
ceive until June 5 because she had moved) does not alter our conclusion.
Under Esterline, Smith had no duty to respond to the offer because it was in-
valid on its face.
By letter dated June 26, 1987, and received on June 30, Respondent notified
Cindy Hollie that she was being recalled, that she must report to work by July
3, and concluded, ‘‘If you fail to report within the scheduled time, your recall
rights will be terminated.’’ Under Esterline, Hollie’s recall letter was invalid
on its face because it gave her an unreasonably short time in which to report
to work and made it clear that reinstatement was conditioned on her reporting
by that date.
3 We shall modify the judge’s remedy to make it clear that the backpay pe-
riod for Debbie Sleek, Barbara Smith, Jill Czerniejewski, and Cindy Hollie
commences on the dates on which their respective prestrike positions or sub-
stantially equivalent positions became available. Determination of these dates
shall be left to the compliance stage of this proceeding. The backpay period
for Shields commences on September 2, 1986, the date on which her doctor
authorized her to return to work.
Toledo (5) Auto/Truck Plaza, Inc. and Hotel Em-
ployees and Restaurant Employees Union,
Local 84, AFL–CIO, CLC and Teamsters,
Chauffeurs, Warehousemen and Helpers Union
Local No. 20 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Cases 8–CA–19507 and 8–CA–20815
October 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On June 12, 1990, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and one of the Charging Parties, the Teamsters Union,
filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 conclu-
sions, and remedy as modified,3 and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, To-
ledo (5) Auto/Truck Plaza, Inc., Stoney Ridge, Ohio,
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) and
reletter the remaining paragraphs accordingly.
‘‘(a) Rescind its termination of the recall rights of
Jill Czerniejewski, Cindy Hollie, Debbie Sleek, and
Barbara Smith and preserve the recall rights of those
employees. In addition, offer immediate and full rein-
statement to any of those employees who would have
been recalled but for the unlawful termination of their
recall rights, without prejudice to their seniority or any
other rights or privileges, and make them whole for
any loss of earnings and other benefits they may have
suffered by reason of the discrimination against them,
in the manner set forth in the remedy section of this
decision.
‘‘(b) Offer Shelly Shields immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her, in the manner set
forth in the remedy section of the decision.
‘‘(c) Remove from its files any reference to the un-
lawful discharge and termination of recall rights and
notify the employees in writing that this has been done
and that these actions will not be used against them in
any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
677TOLEDO (5) AUTO/TRUCK PLAZA
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminate against employees by
terminating them or their reinstatement rights after ten-
dering to them inadequate and invalid offers of rein-
statement or after failing to tender offers of reinstate-
ment to persons identified as expecting recall.
WE WILL NOT discharge any employee for engaging
in activities protected by Section 7 of the Act.
WE WILL NOT engage in surveillance by
photographing employees as they lawfully and peace-
fully picket outside our facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our termination of the recall rights
of Jill Czerniejewski, Cindy Hollie, Debbie Sleek, and
Barbara Smith and WE WILL preserve the recall rights
of those employees. In addition, WE WILL offer imme-
diate and full reinstatement to any of those employees
who would have been recalled but for the unlawful ter-
mination of their recall rights, without prejudice to
their seniority or any other rights or privileges, and WE
WILL make them whole for any loss of earnings and
other benefits they may have suffered by reason of the
discrimination against them, plus interest.
WE WILL offer Shelly (Tate) Shields immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position
without prejudice to her seniority or any other rights
or privileges previously enjoyed, and make her whole
for any loss of earnings and other benefits she may
have suffered by reason of our discrimination against
her, plus interest.
WE WILL expunge from our files any reference to
the discharge or terminations of recall rights which
have been found to be unlawful and WE WILL notify
the affected employees in writing that this has been
done and that evidence of the actions found unlawful
will not be used against them in any way.
TOLEDO (5) AUTO/TRUCK PLAZA, INC.
Paul C. Lund, Esq., for the General Counsel.
Terrance L. Ryan, Esq., of Toledo, Ohio, for the Respondent.
Thomas L. Van Wormer and John M. Roca, Esqs., of Toledo,
Ohio, for the respective Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Toledo, Ohio, on December 13, 1989.
Subsequent to a requested extension of the filing date, briefs
were filed by the General Counsel, Charging Party in the
embraced proceeding, and the Respondent. The proceeding is
based upon a charge filed March 14, 1988, by Hotel Employ-
ees and Restaurant Employees Union, Local 84, AFL–CIO,
CLC, and on September 22, 1986, by Teamsters, Chauffeurs,
Warehousemen and Helpers Union Local No. 20 affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (AFL–CIO) in the
second entitled proceeding. The Regional Director’s consoli-
dated complaint dated May 25, 1989, alleges that Respond-
ent, Toledo (5) Auto/Truck Plaza, Inc., of Toledo, Ohio, vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act by discharging employee Shelly Tate on or about August
28, 1986, and by failing to recall Jill Czerniejewski, Debbie
Sleek, and Barbara Smith to positions in the control center
in or about July 1987, because of their union or other pro-
tected concerted activities.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the operation of a restaurant and
motor vehicle services and fueling facility in Stoney Ridge,
Ohio.
It annually derives gross revenue in excess of $500,000
and receives goods and materials valued in excess of $50,000
directly from points outside Ohio. It admits that at all times
material it has been an employer engaged in operations af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits that the Unions are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The two involved Unions have represented different units
at Respondent’s facility for many years. The cases arose out
of an economic strike between the Teamsters Union and Re-
spondent and relates to findings and conclusions of law and
fact that were made in a previous Board proceeding involv-
ing the same parties, see Toledo 5 Auto/Truck Plaza, 291
NLRB 319 (1988). In accordance with the request of the
General Counsel, I find it appropriate to take official notice
of this decision.
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is undisputed that the Teamsters Union engaged in a
protected economic strike from June 24 to July 15, 1986.
Shelly Tate, whose married name is Shields, worked for Re-
spondent from March 1984 until she went on pregnancy
leave on June 9, 1986, and was a member of Hotel Employ-
ees Union. In May 1986 Michael Snyder, the Respondent’s
general manager, asked Shields to sign a waiver because of
her pregnancy, however, after consulting with the Hotel
Union she refused. She was placed on part-time work but on
June 9, she was put on maternity leave by Respondent be-
cause, according to Snyder, it was too difficult to schedule
her. Shields filed a grievance over being placed on maternity
leave because she believed she should be allowed to work
until her doctor released her from work. On June 18, 1986,
she did receive her doctor’s release which she gave to Sny-
der.
Shields’ then fiance, Steve Shields, worked for the Re-
spondent and was a member of the Teamsters unit which
went on strike on June 24. Shields visited her fiance on the
picket line several times a week, and on one occasion she
briefly held a picket sign for another picket who had to use
the restroom. Her child was born July 30, 1986.
On August 28, 1986, she called the Respondent and talked
to Mel Berman, Respondent’s owner, about returning to
work on September 2, 1986. Berman asked her if she had
been standing on the picket line holding a sign. Shields re-
plied that she had, and Berman then informed her that she
could not come back to work because she had been under
contract (when she was picketing). Shields responded that
she had been on maternity leave but Berman replied that did
not matter, she was fired.
Shields filed a grievance over her discharge and at a griev-
ance meeting with Respondent, she and the Hotel Union rep-
resentative were told that she was being discharged because
she had been observed on the Teamsters’ picket line even
though she was not scheduled to work during that time, ma-
ternity leave.
The contract between the Hotel Employees Union and the
Respondent contains the following provision which is the al-
leged justification for Respondent’s position:
Section 11. Due to the reasonable procedures for set-
tling grievances under this Agreement, the Union agrees
that there will be no strikes, slowdowns or other stop-
page of work during the term of this Agreement and the
Employer agrees there will be no lockout.
During the grievance meeting over Shields’ discharge, Re-
spondent disclosed that it had pictures of Shields on the line.
Snyder said that the Respondent engaged in photographic
surveillance from the first or second day of the strike and
that they photographed ‘‘anything that was out there,’’ in-
cluding the pickets. No suit was filed in any court over strik-
er misconduct and there is no evidence in the record to indi-
cate that the photographs were taken in support of a petition
for injunctive relief, or as evidence to establish that the pick-
ets engaged in violence or coercion or that they were taken
for any specific purpose. The last contract between the Re-
spondent and the Teamsters Union parties expired on June
23, 1986. The strike lasted until July 15, 1986, after which
the Teamsters made an unconditional offer for the return to
work of all striking employees.
No employee who participated in the strike has ever re-
turned to work for the Respondent and the Union otherwise
had no dues-paying members at the facility after the strike.
Union Business Representative Robert Robaszkiewicz testi-
fied that the first time the Union learned that the Respondent
had hired three new employees in its control center in July
1987 was at the Board hearing in the previous case in Janu-
ary 1988 (otherwise, the Respondent never complied with the
union request for information, including specific information
about new hires).
On June 3, 1987, however, Robaszkiewicz sent Manager
Snyder a letter signed by 11 employees including Doris
Dunlap, Debbie Sleek, Jill Czerniejewski, and Cindy Hollie,
which said that they had not found employment equivalent
to their former positions and expected to be recalled when
their positions became available.
In the prior Toledo 5, the Board found that the Respondent
had submitted an invalid offer to return to work to Doris
Dunlap, in that the offer on its face made it clear that rein-
statement was dependent upon a return to work by the date
specified in the offer. The Board also found that while Doris
Dunlap had no obligation to respond to such an offer, she
did so, and that the Respondent gave her an unreasonable
time to respond to the offer. Thus, the Board found that the
Respondent had violated Section 8(a)(1) and (3) of the Act
(the Board also found a violation of Section 8(a)(5) of the
Act by the refusal to provide requested information to the
Union).
Barbara Smith worked for the Respondent at the control
center from 1983 until the time of the strike. She was a
member of the Teamsters Union and participated in the
strike. On June 5, 1987, Smith received a letter from the Re-
spondent dated May 30, 1987, which advised her that if she
did not report for work by June 3, 1987, her ‘‘recall rights
would be terminated.’’ Smith did not respond to the May 30,
1987 letter because she believed that since she had been re-
quested to report to work on June 3, and had not received
the letter until 2 days thereafter that she had been automati-
cally terminated.
Debbie Sleek worked for the Company for approximately
6 years and at the time she joined the strike she was working
in the control center. Sleek was named in the Union’s letter
but never received a recall to work from the Company. The
Respondent’s general manager testified that he did not recall
Sleek because he knew that she had a job that was like the
one she just left . . . being a fuel cashier. However, he did
not know the details of her new employment and did not
know what her wages and benefits were at her new employ-
ment. Sleek testified that she was making $3.80 an hour at
her new job, as opposed to the $5.45 an hour she had re-
ceived before going on strike and was receiving no benefits,
such as the medical benefits she had received from Respond-
ent.
Jill Czerniejewski worked in the control center prior to her
going out on strike. On May 30, Respondent sent
Czerniejewski a letter advising her that the Company was
terminating her recall rights because it believed she had
found ‘‘substantially equivalent’’ employment. On June 3,
however, Respondent was advised in Robaszkiewicz’ letter
that she had not found substantially equivalent employment.
Snyder claimed that he did not recall Czerniejewski be-
cause she was working for a hardware store, however, he did
679TOLEDO (5) AUTO/TRUCK PLAZA
1 At the January 20, 1988 hearing, the Respondent stated that it did not re-
call Czerniejewski because it believed that she had equivalent employment. At
that time it never stated that it had refused to recall her because of any type
of involvement in criminal activities.
not know any of the details of her new employment, such
as wages or benefits. He also claimed that Czerniejewski
wasn’t recalled because it had become aware in 1986 that
she had become involved in criminal activities in connection
with her new employment. Snyder did not know any of the
details of the alleged criminal matters, and made no inves-
tigation but based his conclusion on an inquiry from a police
sergeant who wanted Czerniejewski’s address and who al-
luded to ‘‘something about checks.’’1
On June 30, control center employee Cindy Hollie re-
ceived a recall notice dated June 26, 1987, which stated she
was being recalled and must report on Friday, July 3 or have
her recall rights terminated. She called Respondent prior to
July 3 and asked Snyder for 1 weeks’ time to give notice
and finish a temporary job, and that she wanted her job back.
He said he couldn’t do that. She asked why and he said ‘‘I
have to do what I have to do.’’ She replied that that wasn’t
right and he repeated ‘‘I have to do what I have to do.’’
The record in the prior hearing shows that Respondent
hired Deborah Dickman on July 2 to start July 3, and then
also hired Lynn Roberts and Karin Steward to perform work
in the control center. It did not send recall letters to any oth-
ers on the list and made no effort to contact the Teamsters
Union concerning their availability notwithstanding the fact
that the Union had requested Respondent to do so in its letter
of June 3.
III. DISCUSSION
The issues in these cases arose from events which oc-
curred contemporaneously with a strike by the Teamsters
Union at Respondent’s auto/truck service facility and resulted
in the discharge of one nonstriking employee and member of
another Union that represented workers at the restaurant por-
tion of Respondent’s facility, and the termination of several
control employees who did not immediately respond to or
were not sent alleged offers of reinstatement.
A. Photographic Surveillance and Discharge of Shelly
(Tate) Shields
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activity was a moti-
vating factor in the employer’s decision to terminate or dis-
cipline the employee. Here, the record shows that Shields’
then fiance was a striking member of the Teamsters Union
and that she was photographed while visiting the picket line
and holding a picket sign and then was specifically fired for
this conduct.
In Waco, Inc., 273 NLRB 746, 747 (1984), the Board stat-
ed:
It has long been held that ‘‘[i]n the absence of prop-
er justification, the photographing of pickets violates
the Act because it has a tendency to intimidate.’’
Photographing lawful, peaceful picketing tends to im-
plant fear of future reprisals. [Footnotes omitted.]
It went on to find that where there was no showing of antici-
pated picket line misconduct, as here, the photography rea-
sonably tended to coerce. Here, there also is no showing that
the action was for any lawful or otherwise noncoercive pur-
pose and, accordingly, I am persuaded that Respondent’s
photographing picketers and of those visiting the picket line
in these circumstances is shown to be a violation of Section
8(a)(1) of the Act, as alleged.
In light of this finding and the direct tie in of Shields’ dis-
charge with the union picketing, I find that the General
Counsel has met his initial burden by presenting a prima
facie showing, sufficient to show antiunion animus and to
support an inference that Shields’ perceived activities in sup-
port of the picketing was a motivating factor in Respondent’s
decision to terminate her. Accordingly, the testimony will be
discussed and the record evaluated in keeping with the cri-
teria set forth in Wright Line, 251 NLRB 1083 (1980), see
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
The Respondent asserts a justification for its actions based
upon Shields’ employment in the nonstriking unit of Hotel
Union employees and the fact that its contract with that
Union includes a no-strike provision and a provision that an
employee may be discharged for engaging in an unlawful
strike.
Here, I find Respondent’s position to be unpersuasive and
pretextual. First, there is no showing that the provision in
any way relates to a strike by any union other than the Hotel
Employees Union and this is not a situation that the Union
or any of its members have walked off the job in sympathy
with another union. Furthermore, the Board has held that an
employee on disability or medical leave, who pickets before
she is certified to return to work, is not an actual striker.
Conoco, Inc., 265 NLRB 819 (1982); E. L. Wiegand Divi-
sion, 246 NLRB 1143 (1979).
Shields clearly was on maternity leave when present on
the picket line. She was not scheduled to work and as she
was not withholding her services from the Employer, she
was not on strike and was not otherwise engaging in an un-
lawful strike.
There also is nothing in the record or in the contract lan-
guage which indicates any clear and unmistakable contractual
waiver of the employees’ rights to engage in picketing, on
their own time, in support of another union’s lawful strike,
see Lear Siegler, Inc., 293 NLRB 446 (1989), and accord-
ingly, I find that the Respondent has not met its burden of
proof. I therefore conclude that the overall record supports
the General Counsel’s allegation that Respondent discharged
Shields for being on the lawful picket line of a union other
than her own at a time when she was on maternity leave, and
that this action constitutes a violation of Section 8(a)(1) and
(3) of the Act, as alleged.
B. Recall Notice and Termination of Economic Strikers
As noted above, an issue involving Respondent and the
same notice of recall, followed by termination, recently was
decided by the Board in the Toledo 5 case, supra, and I here
concur in the Board’s findings and further conclude that the
factual situations set forth above clearly demonstrate that on
June 3, 1987, Respondent was aware that employees Jill
Czerniejewski, Debbie Sleek, and Cindy Hollie were listed
by the Union as persons who had not found equivalent em-
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment and who expected to be recalled. Barbara Smith
was not named but had been sent a recall notice identical to
the one involved in the prior case.
As stated in the prior case:
Economic strikers who unconditionally apply for re-
instatement at a time when their positions are filled by
permanent replacements remain employees and are enti-
tled to full reinstatement [up]on the departure of re-
placements unless they have acquired regular and sub-
stantially equivalent employment, or unless the em-
ployer can establish the failure to offer reinstatement
was for legitimate and substantial business reasons.
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d
99 (1970), cert. denied 397 U.S. 920 (1970). For an
offer of reinstatement to be valid, it must provide ade-
quate time for consideration by the employee, based on
the circumstances of each individual case. National
Tape Corp., 187 NLRB 321 (1970); Penco Enterprises,
216 NLRB 734 (1975); Murray Products, 228 NLRB
268 (1977), enfd. 584 F.2d 934 (9th Cir. 1978).
As noted, Smith’s situation shows a clearly inadequate
offer for timely reinstatement. The same conclusion applies
to Hollie even though the dates involved (letter dated June
26, received June 30, with a reporting date of July 3 or ter-
mination of recall rights, and Respondent’s refusal to grant
a requested 1-week extension), were not the same as Smith’s
(and Doris Dunlap’s in the prior case).
Respondent never sent a notice to Sleek, even though on
or after July 2, it hired three outside individuals to perform
her same work, and I find its excuse that it knew she had
another job to be invalid inasmuch as it had no knowledge
of her wages and benefits and its purported knowledge was
plainly contradicted by her signing of the Union’s letter of
June 3, announcing her recall expectations.
Finally, I also find that Respondent’s notice to
Czerniejewski terminating her recall rights because it be-
lieved she had found substantially equivalent employment is
invalid because Respondent admittedly had no knowledge of
her wages and benefits and its conclusions contradicted her
announced recall expectations in the Union’s letter. More-
over, Respondent’s letter of termination said nothing about
its purported concern over her alleged involvement in a
criminal activity. This new reason was based solely on a po-
lice inquiry about her address, without any further timely in-
vestigation by Respondent and I find it to be pretextual and
irrelevant to Respondent’s obligation to make a valid recall
offer. To the extent any subsequent, probative information
may show that she in fact now has a criminal record that
would provide a valid reason for denying her employment
which involves handling money (as her former job did), such
reason may be offered in the negotiation or litigation of the
compliance stage of the proceeding to determine the tolling
period, if any, of Respondent’s backpay obligation, but it
does not affect the determination that Respondent illegally
terminated her recall rights by its letter of May 30, 1987.
Under these circumstances, I conclude that the Respondent
has failed to show any nonpretextual, substantial, or legiti-
mate business reason for providing for such short notice to
report before termination or for its failure to make recall of-
fers because alleged beliefs that employees had found sub-
stantially equivalent employment. Accordingly, I find in each
instance, that Respondent’s termination of the above-dis-
cussed employees’ reinstatement rights was discriminatory
and in violation of Section 8(a)(1) and (3) of the Act, as al-
leged.
C. Motion to Strike
By motion filed February 28, 1990, Respondent asks that
portions of the Charging Party’s brief be stricken insofar as
it alludes to employee Cindy Hollie, a person not specifically
identified in the complaint. Although the General Counsel
did not see to amend the complaint, I find that the unique
circumstances surrounding this matter requires that I amend
the complaint at my own discretion to conform the pleadings
to the evidence. I base this conclusion on the fact that the
complaint otherwise refers to ‘‘other employees’’ and that,
especially in view of the prior proceeding, Respondent was
well aware of its own prior actions and which employees it
had sent recall/termination notices such as Hollie received.
Moreover, the evidence regarding Hollie was placed on the
record after the General Counsel had rested his case. Here,
Hollie was called as a witness by the Respondent and she
testified regarding the circumstances of her recall/termination
notice under direct examination by Respondent’s counsel.
Accordingly, Respondent’s claim that upon proper notice it
would have prepared a proper defense is invalid inasmuch as
it was fully responsible for testimony provided by its own
witness and cannot now hide behind a due process argument
because its own direct examination of its own witness, dis-
closed on the record that Hollie had received a notice essen-
tially the same as that considered in the prior case, and that
this disclosure thereby demonstrated a violation of the Act
directly related to the ‘‘other employee’’ description set forth
in the complaint. Accordingly, Respondent’s motion is de-
nied and the complaint is hereby amended to specifically
identify Cindy Hollie as an ‘‘other employee’’ embraced
within the complaint.
CONCLUSIONS OF LAW
1. The Respondent Employer, Toledo (5) Auto/Truck
Plaza, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By photographing employees as they lawfully and
peacefully picketed outside the Respondent’s facility, the Re-
spondent has interfered with, restrained, and coerced employ-
ees in the exercise of their Section 7 rights and has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging employee Shelly (Tate) Shields on Au-
gust 28, 1986, and by terminating employees Jill
Czerniejewski, Cindy Hollie, Debbie Sleek, and Barbara
Smith and their reinstatement rights after they failed to meet
the conditions imposed in an invalid offer of reinstatement
or after failing to make an offer of reinstatement to persons
identified as expecting recall, Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act.
681TOLEDO (5) AUTO/TRUCK PLAZA
2 Under New Horizons, interest is computed at the ‘‘short-term Federal
Rate’’ for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. 6621.
3 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 objec-
tions to them shall be deemed waived for all purposes.
4 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
THE REMEDY
Having found that the Respondent has committed the
above unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and to take other affirma-
tive actions designed to effectuate the purposes and policies
of the Act, including the posting of an appropriate notice.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer Shelly (Tate)
Shields, Jill Czerniejewski, Cindy Hollie, Debbie Sleek, and
Barbara Smith immediate reinstatement to their former jobs
or a substantially equivalent position, without prejudice to
their seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of earnings they
may have suffered because of the discrimination practiced
against them by payment to them a sum of money equal to
that which they normally would have earned from the date
of the discrimination and the record herein to the date of re-
instatement (here, in accordance with the first Toledo 5 case,
the date for Hollie, Sleek, and Smith shall be June 3, 1987,
for Czerniejewski July 3, 1987, and for Shields August 28,
1986, as adjusted by her constructive return from maternity
leave), in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),2 and that Respondent expunge from its files any ref-
erence to their discharge and notify them in writing that this
hag been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel action against
them.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent Employer, Toledo (5) Auto/Truck Plaza,
Inc., Stoney Ridge, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discriminating against employees by terminating them
or their reinstatement rights without making an offer of rein-
statement to persons identified as expecting recall or termi-
nating them after tendering to them inadequate and invalid
offers of reinstatement or discharging any employee for en-
gaging in activities protected by Section 7 of the Act.
(b) Engaging in surveillance by photographing employees
as they lawfully and peacefully picket outside the Respond-
ent’s facility.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Shelly (Tate) Shields, Jill Czerniejewski, Cindy
Hollie, Debbie Sleek, and Barbara Smith immediate and full
reinstatement and make them whole for the losses they in-
curred as a result of the discrimination against them in the
manner set forth in the remedy section of this decision, and
expunge from its files any reference to their termination or
discharge and notify them in writing that this has been done
and that evidence of the unlawful discharge will not be used
as a basis for future personnel actions against them.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Post at its Stoney Ridge, Ohio facility copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.