Vitronic Division Of Penn Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1978

239 N.L.R.B. 45 (N.L.R.B. 1978)

VITRONIC DIVISION OF PENN CORPORATION
Vitronic Division of Penn Corporation and Norma
Bennett and Billy Ray Hall. Cases 14-CA- 10613-1
and 14-CA-10613-2
October 20, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 5, 1978, Administrative Law Judge John
C. Miller issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief,' and Charging Party Hall filed a
brief opposing Respondent's exceptions. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Vitronic Division of
Penn Corporation, Doniphan, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondent contends that the complaint is barred by Sec. 10(b) of the
Act on the ground that the violation occurred in September 1976 when the
striking employees were required to sign requests for reinstatement, and not
in April 1977, as alleged in the complaint, when they were terminated for
failure to renew said requests for reinstatement. We find that this contention
is without merit. Respondent did not raise this defense in its answer, at the
hearing, or before the Administrative Law Judge. It raised the 0I(h) issue
before the Board for the first time in its exceptions and brief in support
thereof to the Decision of the Administrative Law Judge. The Board has
long held that the 10(b) proviso is a statute of limitations, and is not jurisdic-
tional. It is an affirmative defense and, if not timely raised. is waived. Chica-
go Roll Forming Corp., 167 NLRB 961, 971 (1967): Luther W. Shumate. er al
v. N.LR.B., 452 F. 2d 717 (4th Cir. 1971). Thus, Respondent's belated at-
tempt to raise a lO(b) defense in this proceeding is clearly untimely
In any event, even assuming that the defense was timely before us. we
firli that there is no basis for Respondent's contention, since the termina-
,rltJ of the employees is the operative event from which the 10(b) period
runs. In this regard, the reinstatement right of economic strikers is created
by the statute and not by a respondent's reinstatement request forms.
N.L.R.B. v. Fleerwood Trailer Co., 389 U.S. 375. fn. 4 (1967): The Laidlaw
Corporation, 171 NLRB 1366, 1369 (1968). 414 F.2d 99 17th Cir. 1969), cert
denied 397 U.S. 920 (1970). The parties stipulated that the economic strikers
named in the complaint were terminated in April 1977 and the instant
charges were filed in August 1977. Accordingly, we find that the charges
were timely filed.
2 he General Counsel has filed a motion requesting the Board to amend
the complaint by adding the name of Betty Nance as an alleged discrimina-
tee and to remand the proceeding to the Administrative Law Judge to re-
ceive additional evidence relating to her status. A brief in support of this
motion was filed by Nance. The motion is hereby denied as the General
Counsel seeks to adduce evidence which was available on the date of the
hearing and thus does not constitute newly discovered evidence.
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER. Administrative Law Judge: This case
was heard in Poplar Bluff, Missouri, on December 14,
1977, on the basis of a complaint issued on September 23,
1977, alleging that Respondent, on or about September 15,
1976, and thereafter refused to recall nine named employ-
ees who had engaged in an economic strike and thereafter,
on or about April 14, 1976, the Respondent terminated
such employees, all in violation of Section 8(aXI) and (3)
of the Act.
Upon the entire record in this case,' including a stipula-
tion executed by all the parties, and my observation of the
witnesses and their demeanor, which testimony was
deemed supplemental to the stipulation, I make the follow-
ing:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation authorized to do business
under the laws of the State of Missouri. During all times
material, Respondent has maintained an office and place
of business in Doniphan, Missouri, where it is engaged in
the manufacture, sale, and distribution of vinyl plastic
products and related products. During the year ending Au-
gust 31, 1977, Respondent manufactured and sold products
valued in excess of $50,000 which were shipped to custom-
ers located outside the State of Missouri. The Respondent
admits the above factual allegations, and I find that Re-
spondent has been at all times material an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
The complaint alleges, Respondent admits, and I find
that Local 825, United Rubber, Cork, Linoleum and Plas-
tic Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Bockgrot.nd
The hearing opc!l, i v. ith ..l thc pertts: involveu herein
executing and aubm.iting a stipulaticn oil the iacts which
stated, inter alia, at paragraph II, B, that this stipulation
and exhibits "shall be the sole and only record considered
by the Administrative Law Judge." Thereafter, however,
Respondent's motion to correct record is not objected to by counsel for
the General Counsel and, it appearing that the corrections are essentially
typographical in nature, the motion to correct is granted in its entirety.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for Charging Party Hall called a number of wit-
nesses stating that he had expressly reserved the right to
call witnesses for supplemental testimony and that he had
so informed counsel for the General Counsel and counsel
for the Respondent. Counsel for the Respondent objected,
and counsel for the General Counsel objected somewhat
later when he perceived that the stipulation might be un-
dermined.2
Counsel for the General Counsel and Respondent had
apparently agreed to merely submit the stipulation as the
record in the case on the premise that only a question of
law need to be litigated and resolved. Counsel for Charging
Party Hall continued to maintain that he had previously
informed the parties that he reserved the right to call wit-
nesses. The General Counsel explained that his approach
was simply to submit the question of law directly to the
Administrative Law Judge on the premise that the Respon-
dent's conduct as set forth in the stipulation was inherently
destructive of employees' Section 7 rights and therefore
violative of Section 8(a)(l) and (3) and unlawful motiva-
tion inferred. Counsel for the Charging Party stated that he
wished to adduce testimony to proof of "actual" discrimi-
natory motivation. Respondent's counsel protested the tak-
ing of any testimony as inconsistent with his agreement
with the General Counsel and stated that he was not pre-
pared to proceed to litigate any factual issues.
It is apparent that there was a misunderstanding among
counsel as to whether testimony was to be taken and on
what subject matter. Upon careful consideration, I con-
cluded that the case could in fact be tried upon two bases:
(1) on the General Counsel's theory that the stipulated
facts were sufficient to establish a discriminatory motive;
(2) on testimonial evidence that the Respondent was dis-
criminatorily motivated in inaugurating and carrying out
its requirement that employees renew their request for rein-
statement 6 months after their initial application in order
to keep active their application for reemployment.
I concluded that the case could be decided on either or
both grounds and, as I find that the Charging Party's case
was not in direct conflict with the General Counsel's theo-
ry of the case but supplemental to it, I concluded that I
would hear the testimony. In overruling Respondent's ob-
jections, I noted that at a later point I would consider
granting the Respondent additional time if he felt preju-
diced by the testimony proffered. While normally the Gien-
eral Counsel is responsible for the manner in which the
case is presented, I concluded that the proffer of testimony
in these circumstances was supplemental to and in addition
to the theory of violation set forth by the General Counsel.
Since the hearing was in progress, I was reluctant to fore-
close testimony to be adduced by the Charging Party de-
snite the language in the stipulation.
B. The Issue
Whether an Employer may lawfully terminate economic
strikers' Laidlaw rights, i.e., preferential consideration for
reemployment after permanent replacements leave, by hav-
2 At p 25 of the record, colinsel for the (ieneral ( ounsel stated "v,c
would have no objection to testimlonn or evidence (on the matter ,r[ f1riilnls"
ing them execute an application form in which they ac-
knowledge that they must renew their applications within 6
months of their original application. The alleged discrimi-
natees did not timely renew their requests for reinstate-
ment. In this case Bennett and Hall attempted to untimely
renew their requests for reinstatement but were refused.
The reinstatement request form in question was as fol-
lows:
Date
Time-
I hereby request to return to work for Vitronic Divi-
sion of Penn Corp. when work becomes available that
I am qualified to perform.
I understand this request must be renewed six months
from this date.
Sign
[Signature of employee]
Copy to employee
C. The Stipulation (Joint Exh. I (a))
Inter alia, the stipulation provided as follows:
(1) On or about April 6, 1976, Respondent's employees
engaged in an economic strike which they terminated on or
about August 11, 1976.
(2) During the economic strike, Respondent hired per-
manent replacements for Billy Ray Hall, Norma Bennett,
Kathy Deckard, Nellie Dawes, Bernita Phelps, Sarah Crih-
field, Ronnie Foulk, Willie Leonberger, and Velma Brown,
all of whom are alleged here as discriminatees.
(3) On September 14, 1976. Respondent mailed copies of
a notice to certain employees (Exh. 2 herein) advising them
that if theN wished to be considered for recall when an
opening occurs, they must sign a "Request for Reinstate-
ment" form by 8 a.m. on September 20, 1976 at the Vitron-
ic office.
(4) Each of the alleged discriminatees herein submitted a
signed request for reinstatement which was accepted by the
Respondent.
k5) Respondent placed the names of all replaced employ-
ees who executed reinstatement forms on a list to be ac-
corded preferential recall rights when job openings oc-
curred.
(6) Apart from the copy of the request for reinstatement,
the Respondent sent employees no other notice of the re-
quirement that they renew their request for reinstatement
within 6 months, nor was any other attempt made to re-
mind employees of the necessity to renew their applica-
tions for reinstatement. Employees did receive duplicates
of their original request for reinstatement which informed
employees that he or she must renew the request within 6
months in order to maintain eligibility for reinstatement or
recall.
(7) None of the nine alleged discriminatees timely re-
newed his reinstatement request in the next 6 months.
(8) On April 14, 1977, Respondent mailed employees a
letter advising them that "by not filling out a reinstatement
46
VITRONIC DIVISION OF PENN CORPORATION
slip, your personnel file has been removed from our active
employees files and put in our 'former employee' files"
(Joint Exh. 4).
(9) Shortly after receiving Respondent's April 14, 1977,
letter of Respondent, Charging Parties Bennett and Hall
requested permission to sign and submit a new request for
reinstatement, but their request was denied. Bennett and
Hall and other alleged discriminatees state they have not
abandoned their intent to seek reinstatement.
(10) Respondent takes the position that by failing to re-
new their offers of reinstatement 6 months after their initial
submission of requests for reinstatement, employees have
forfeited their right to preferential reinstatement rights,
and continues to refuse to accord such employees any
rights to reinstatement.
(11) Charging Parties Bennett and Hall filed charges
with the National Labor Relations Board on behalf of
themselves and the remaining discriminatees.
(12) Respondent admits it hired new employees after the
6-month limitation had expired.
D. The Testimonial Evidence
Counsel for the Charging Party called five witnesses, of
whom three were alleged discriminatees.
Norma Bennett, an alleged discriminatee, credibly testi-
fied that, the day after receiving a letter dated April 14.
1977, from Respondent advising that inasmuch as she had
not renewed her application for reinstatement in the 6-
month period following her original reinstatement request,
she was being placed in the former employee file, she
called Bill Wright, personnel director, and asked if she
could reinstate (her application). He replied no.
Billy Ray Hall, another alleged discriminatee testified
similarly that after receiving Respondent's letter he asked
Bill Wright if he could sign a reinstatement form. Wright
informed him that "time had run out."
A third employee, Foulk, merely affirmed that he had
originally filled out a reinstatement form in 1976 and that,
in September 1977, he filled out a job application. He has
not been rehired as of the date of the hearing.
Lester Wright, Respondent's plant manager, called as an
adverse witness by counsel for the Charging Party, conced-
ed that they had hired some people for jobs that strikers
had done before and that new personnel had been hired
since the expiration of the 6-month reinstatement period.
However, examination by his own counsel brought out that
two-thirds of the strikers had been rehired and that after
people [strikers] had made application, the strikers that
wanted reinstatement were rehired, and in a few cases Re-
spondent hired for specific positions, where the former em-
ployees were not qualified.
Lester Wright gave credible and undisputed testimony
that some 20 to 30 strikers who had renewed their rein-
statement applications had been rehired, and that in fact
all strikers who had renewed their reinstatement applica-
tions had been rehired.
Bill Wright, personnel director and son of the plant man-
ager, did not recall talking to either Norma Bennett or
Billy Ray Hall but stated that if such conversations did
occur notations of such conversations would be in their
personnel file. He did not have such files with him nor were
they subpenaed. He did state that he was aware that the
6-month period was running out but felt no obligation to
notify former employees of such fact. Duplicates based
upon the date of their original reinstatement application
forms of the reinstatement forms were given to employees,
and such form, without setting a specific date, did state
that such reinstatement applications had to be renewed in
6 months.
Counsel for the General Counsel stated that all the dis-
criminatees listed in the complaint were interested in rein-
statement with the Respondent.
E. Position of the Parties
Counsel for the General Counsel contends that Respon-
dent's termination o' economic strikers' preferential recall
rights is inherently destructive of employees' rights and
that unlawful motivation can be inferred from such con-
duct, particulary in the absence of any showing of business
justification.'
Counsel for Charging Party Hall contends that, in addi-
tion to the grounds urged by the General Counsel, animus
against the strikers is established by the testimony of Lester
Wright, Respondent's vice president and plant manager,
that Respondent hired new people instead of the strikers
and that after the 6-month reinstatement period had ex-
pired it hired other people and did not hire or offer to hire
Hall or the other alleged discriminatees.
Counsel for the Charging Party relies on rationale set
forth in Brooks Research & Manufacturing, Inc., 202 NLRB
634 (1973), in which the Board stated that it saw no reason
why Respondent could not request employees on preferen-
tial hire list to notify Respondent whether they desired to
maintain their recall status. The Respondent further con-
tended that there is no evidence of animus, in that it hired
two-thirds of the strikers back, and approximately 20 em-
ployees who did renew their requests for reinstatement
were rehired. Only the nine employees who did not timely
renew their requests for reinstatement have not been re-
hired.
F. Discussion
1. Unlawful motivation inferred from admitted acts of
Respondent
With respect to General Counsel's theory of this case,
the principle has been well established that economic strik-
ers who had made unconditional applications for reinstate-
ment are entitled to be offered the opportunity to fill va-
cancies when permanent replacements leave for which they
are qualified and that this continuing right can be defeated
only by the employer's showing "legitimate and substantial
business justification." This principle was established by
the Board in Laidlaw, supra, which in turn evolved from the
Supreme Court's decision in Fleetwood Trailer, supra. The
\ L R B P. Itrlee,,,tld 7raei, ( ,. 389 L S 37s fn 4 (1967): Iachil,
('rp-ratlonr 171 Nl.RB 1366. 1369 1968). enfd 414 F 2d 99 (7th (Or 1969.
cert denicd 39' 1 S Q20 { 1970)
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duration of the right for preferential recall is at issue here.
There have been several subsequent Board decisions inter-
preting the duration of the reinstatement rights of econom-
ic strikers, and they warrant further discussion.
In the Brooks Reseach case,4 an employer and union
agreed that preferential hiring rights of certain employees
extended to I year. Thereafter, the employer by letter uni-
laterally notified 43 unrecalled employees and informed
them that, to make it uniform for all employees, the dura-
tion of the preferential hiring list would be extended to I
year from the date of the application of reinstatement. The
Board rejected the argument that economic strikers should
be equated with laid-off employees, stating that the rein-
statement rights of strikers are statutory. In that decision,
the Board stated that it found it unnecessary to consider
the suggestion of the Court of Appeals for the Fifth Circuit
in the American Machinery case, in which the court stated:
. . .he [respondent employer] might notify the strikers
when they request reinstatement of a reasonable time
during which their applications will be considered cur-
rent and at the expiration of which they must take
affirmative action to maintain their current status.
[American Machinery Corp. v. N.L. R.B., 424 F.2d 1321,
1327.1
After citing and distinguishing the above language of the
Fifth Circuit Court on the basis of differing facts, the
Board stated in Brooks:
However, in line with the Fifth Circuit's suggestion we
see no reason why the Respondent cannot at reason-
able intervals request the employees on the preferen-
tial hiring lists to notify it whether they desire to main-
tain their recall status. 1202 NLRB 634 at 637.]
The Respondent contends that it relied on the Board
decision in Brooks as well as the American Machinery Corp.
case in instituting the reinstatement procedure here. The
question thus arises whether the Board's adoption at least
in part, of certain procedures approved by the Fifth Circuit
legalizes the Company's specific actions here.
The Respondent argues with considerable merit that the
procedure utilized here literally complies with the cited
views of the Fifth Circuit Court in American Machinery,
supra. The Board itself expressed some reservations as to
the court's language but did volunteer a procedure that
could be utilized which appeared to place on the Employer
the burden of notifying employees at reasonable intervals of
the necessity to renew their reinstatement applications.
It should be noted that Respondent has not set forth
either evidence or argument that the procedure utilized
here was prompted by "legitimate and substantial business
justification." The most that could be inferred here is that
the procedure was administratively convenient for the Re-
spondent. In any event, I conclude that both the Fifth Cir-
cuit Court and the Board would carefully review the factu-
al context and the equities involved before determining the
applicability of any dicta taken from their prior decisions.
4 Brooks Research & Mfg.. Inc.. 202 NLRB 634 (1973). see also Laher
Spring & Electric (Car (orp., 192 NLRB 464 (1971).
In resolving the issue posed, I start with the Board-stated
premise that the rights of economic strikers to preferential
recall, when permanent replacements have left, is a statu-
tory one. It necessarily follows that employees' waiver of
statutory rights will not be lightly inferred. Respondent
contends here that signing a request for reinstatement
which contained an acknowledgment that they must renew
their request for reinstatement 6 months from the date this
reinstatement form was submitted and by their subsequent
failure to renew employees waived or forfeited their recall
rights.
However, employees had no choice since Respondent
unilaterally included such acknowledgment on the request
for reinstatement. Employees either signed this reinstate-
ment form or presumably had no rights to reinstatement.
Secondly, it appears clear, and I find, that Respondent's
use of this form containing such acknowledgment shifted
the burden of notification to the employees concerned with-
out any further action by the Respondent.
Thirdly, employees Bennett and Hall, shortly after re-
ceiving notice that their preferential recall rights were ter-
minated. attempted to renew their reinstatement requests
and were denied because time had "run out." The remain-
ing seven employees alleged as discriminatees also had not
timely renewed their requests for reinstatement and stand
in the same position as Bennett and Hall.
Thereafter, Respondent admittedly hired new employees
without prior experience without considering the nine dis-
criminatees here. Respondent would consider such dis-
criminatees only if they submitted a regular job application
form. It was stated by counsel for the General Counsel that
all nine discriminatees were still interested in employment
with the Respondent. Lastly, I find that Respondent's re-
quirements that former employees submit a regular em-
ployment application in order to be considered at all after
they failed to timely renew their reinstatement request
places an additional burden on former strikers that seems
unwarranted and inherently discriminatory. To illustrate,
after employees Bennett and Hall indicated they wished to
renew their reinstatement requests, Respondent not only
refused to permit it because time had "run out" but did not
consider them for employment equally with new applicants
unless they filled out a regular job application. As former
employees who were admittedly satisfactory and for whom
Respondent already had personnel files, this additional re-
quirement could only have been for the purpose of assur-
ing that former strikers were not rehired. In sum, I find
that in the circumstances related previously Respondent's
failure to consider former employees (who did not timely
reinstate for preferential recall) equally with other new em-
ployee applicants is an additional factor to be taken into
consideration in determining whether Respondent's overall
conduct was inherently discriminatory.
2. Whether in the alternative the record otherwise
discloses evidence that the procedure utilized by
Respondent was discriminatorily motivated
Proof of an actual discriminatory motivation, if it exists
in this record, must be based on the testimony of Lester
Wright, plant manager, and his son Bill Wright, the person-
48
VITRONIC DIVISION OF PENN CORPORATION
nel manager, who were called as witnesse
the Charging Party.
Lester Wright testified initially that he
ployees for jobs which the strikers could
amination by his own counsel, he testifi
mately two-thirds of the strikers had been
all those strikers who timely renewed the
applications, some 20 to 30 in number, h
hired. He further testified that while som
were hired ahead of the strikers it was
strikers were not qualified to perform.5 He
that the personnel department, working
attorney, was responsible for setting this e
cy. Again Lester Wright testified as follom
Q. ... you did, in fact, hire some
no experience, is that correct?
A. [Lester Wright] Some new empl
in certain classifications, whatever ji
quired.
Q. Did any of the strikers who h
called have any of those job skills?
A. No.
However, on redirect examination L. V
follows:
Q. O.K., during the first six mon
replacements, new employees, that w
A. We did some, yes.
Q. Were there any of the strikers w
plied for reinstatement who could pe
jobs that you hired new people to pe
A. It is very fuzzy in my mind. I d
some new ones during that time and
everyone, I think we recalled them
jobs.
Q. You did hire new people durin
period; do you know what jobs you
A. Without checking the record, n
Q. Do you know of any job that N
persons, or any new person that was
during that six-month period?
A. I am not positive without checl
Q. Do you know of any job that
that none of these charging parties art
A. Yes, we have got some.
In sum, Lester Wright's testimony is c
confusing despite repeated attempts to
mony. I am unable to determine wheth
resulted from honest confusion due to his
suit records and the fact that he was not
in the hiring process or whether he was pt
ing to be contradictory or evasive. Abse
testimony or documentary evidence, I am
his testimony alone to establish actual at
spondent.
As to Bill Wright, the personnel direct(
dent, his testimony was consistent with t
'Transcript, p. 30-31.
es by counsel for
e hired new em-
perform. On ex-
ed that approxi-
rehired, and that
eir reinstatement
tad also been re-
e new employees
for jobs that the
e further testified
along with their
employment poli-
ns:
new neonle with
that he affirmed that he was aware that the 6-month limita-
tion was running out but felt no obligation to notify the
employees. He further conceded that subsequent to the ex-
piration of the 6-month period in which the nine alleged
discriminatees failed to timely renew their reinstatement
requests, Respondent did hire employees who performed
jobs that the nine discriminatees could perform.
I find and conclude that there is insufficient proof of
actual union animus, apart from the stipulated facts, for
me to make the additional finding that Respondent's ac-
tion in implementing this reinstatement procedure was dis-
criminatorily motivated.
G. Findings and Conclusions
I rr -- I find that the procedure utilized here was inherently
loyees were hired destructive of employee rights and that a discriminatory
)b skills were re- motive can be inferred.
In so concluding, I note that Respondent unilaterally set
had not been re- a 6-month limitation on employees' recall rights without
any legitimate and substantial business justification. Mere
administrative convenience is insufficient to justify the pro-
cedure here. Nor can the employer shift the burden of notifi-
Vright testified as cation to the employee at some future date as a prerequisite
for an employee to preserve his statutory recall rights. Re-
ths, did you hire spondent's refusal to consider the "untimely" requests sev-
vere not strikers? eral days after the 6-month period expired and its hiring of
new applicants thereafter without at least giving equal con-
* * sideration to the former strikers lend credence to the view
that Respondent's procedure was designed to eliminate the
vho originally ap- recall rights of economic strikers and was, thus, inherently
rform any of the discriminatory. Such action is violative of Section 8(aX3)
rform? and (1) of the Act.6
So know we hired
that we recalledthat we recalled CONCLUSIONS OF LAW
to their original
1. Respondent Employer is an employer engaged in
hired that sx-month commerce within the meaning of Section 2(6) and (7) ofhired them for?
as hired by new on't. 2. By terminating the preferential recall rights of Norma
as hired byfor any job Bennett, Billy Ray Hall, Willie Leonberger, Sarah Crih-
field, Kathy Deckard, Nellie Dawes, Ronnie Foulk, Velma
Brown, and Bernita Phelps, the named discriminatees, Re-
you filed [filled] spondent has engaged in unfair labor practices within the
you q alified to filled] meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ontradictory and
clarify his testi- THE REMEDY
ler his testimony
sinability to con- Having found that the Respondent has engaged in cer-
directly involved tain unfair labor practices, I shall recommend that it be
irposely attempt- ordered to cease and desist therefrom and take affirmative
nt other credible remedial action, including the reinstatement of the discrim-
unable to rely on
iimus by the Re- °Brooks Research & Mfg Inc, 202 NLRB 634 636-637 (1977). Laher
Spring & Elecrric Car Corp.. 192 NLRB 464. 466 (1971). 1 also rely on the
)r of the Respon- fact that. although striker Ronnie Foulk submilted a regular application for
employment in September 1977. he had not been rehired as of the date of
he stipulation, in this hearing. Decerrber 14. 1977. although qualified for a number of posi-
tions At p 57 of the record. Bill Wright conceded that he has hired new
employees since September 1977.
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inatees and making whole the employees for any loss of
earnings they incurred as a result of Respondent's discrimi-
natory conduct, together with interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). 7 The dates the named discrimina-
tees would have been rehired if their application for rein-
statement would have continued in force as well as
amounts of backpay can be determined in compliance pro-
ceedings. The Respondent shall also be required to post the
usual remedial notice at the premises of his facility.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ornmended:
ORDER
The Respondent, Vitronic Division of Penn Corpora-
tion, Doniphan, Missouri, its officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Terminating the preferential recall rights of econom-
ic strikers because they failed to renew their request for
reinstatement within the time unilaterally set by the Re-
spondent.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Norma
Bennett, Billy Ray Hall, Willie Leonburger, Sarah Crih-
field, Kathy Deckard, Nellie Dawes, Ronnie Foulk, Velma
Brown, and Bernita Phelps discharging if necessary, any
new employees hired since the expiration of the 6-month
limitation and make the aforenamed discriminatees whole
for any loss of earnings they may have suffered as the re-
sult of their failure to be offered reinstatement with interest
as set forth in the remedy section of this Decision.
(b) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its plant in Doniphan, Missouri, copies of the
attached notice marked "Appendix." 9 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 14. after being duly signed by Respondent's represen-
tative. shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicious places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Rcgional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
See. genera.lI. IiU Plurmbtng S Iteatritng (Co. 138 NLRB 716 (1962).
In tilhe event uk, exception.. ale filed as provided by Sec. 102.46 of the
Rule' and Regulations of the National Labor Relations Board, the findings,
c,,nilusi)ns,. and recl)mm nded Order herein shall, as provided in Sec
10248 of the Rules and Rq:gulations. be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed waiLed for all purposes.
In the esent that this Order is enforced by a judgment of the United
States (Court of Appeals. the words in the notice reading "Posted by Order
of the National Iabhor Relations Board" shall read "Posted Pursuant to a
Judgment of the L nited States C ourt of Appeals Enforcing an Order of the
Nationartl I abor Relations Board"
APPENDIX
NOTI(FE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIi.l NOT terminate the preferential recall rights
of economic strikers because they failed to renew their
requests for reinstatement within the time unilaterally
set by us.
WE WlIt. NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them under the National Labor Relations
Act.
WE WILL reinstate Norma Bennett, Billy Ray Hall,
Willie Leonburger, Sarah Crihfield, Kathy Deckard,
Nellie Dawes, Ronnie Foulk, Velma Brown, and Ber-
nita Phelps to jobs for which they are qualified, dis-
charging, if necessary, any employees hired since the
termination of their recall rights and make them whole
for any loss of earnings, including interest, they may
have suffered as a result of such action.
VITRONIC DIVISION OF PENN CORPORATION