Armored Transfer Service Inc.

National Labor Relations Board - Board DecisionsFeb 25, 1988

287 N.L.R.B. 1244 (N.L.R.B. 1988)

1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Armored Transfer Service Inc. and International APPENDIX Guards Union of America . Case 28-CA-6257 25 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 12 January 1982, Administrative Law Judge Richard D. Taplitz 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 the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,I and conclusions, to modify his remedy,2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Armored Transfer Service, Inc., Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for the judge's notice. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to reinstate employees who engage in an economic strike to their former posi- tions or to substantially equivalent positions that are or become available after their unconditional offer to return to work from such a strike. 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 Ernest Curley, John Maw, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent jobs, without prejudice to their seniority or any other rights or privileges, and make them whole for any loss of earnings they may have suf- fered because of our discrimination against them, with interest. ARMORED TRANSFER SERVICE, INC. Lewis S Harris, Esq , for the General Counsel Gregory D. Huffaker Jr., Esq. (Poole, Tinnin, & Martin), of Albuquerque, New Mexico , for the Respondent. DECISION STATEMENT OF THE CASE i The judge found, and we agree, that the Respondent violated Sec 8(a)(1) by refusing to reinstate certain striking employees after their un- conditional offer to return to work from an economic strike With respect to one of those strikers, employee David Ellis, we note that evidence concerning Ellis' having furnished certain confidential information to a competitor came to the Respondent's attention at least at the hearing in this case The Respondent had an opportunity at that time to raise and litigate any issue concerning whether, on the basis of that incident alone, Ellis should be denied reinstatement The Respondent failed to avail itself of the opportunity The judge, therefore, did not err in failing to exclude Ellis from the reinstatement remedy, and we have no reason for disturb- ing that remedy 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C Â§ 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C Â§ 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) RICHARD D TAPLITZ, Administiative Law Judge. This case was tried in Albuquerque, New Mexico, on October 15-16, 1981. The charge was filed on January 21, 1981, by International Guards Union of America (the Union) The complaint, which issued on February 25, 1981, alleges that Armored Transfer Service, Inc (the Company, Armored Transfer, or Respondent), violated Section 8(a)(1) of the National Labor Relations Act. Issues The primary issues are: 1. Whether the Company, through its president and general manager, John Lorenzo, violated Section 8(a)(1) of the Act by pointing a loaded shotgun at strikers and by telling striking employees that the Company was out of business 2. Whether the employees of the Company engaged in a lawful protected strike related to wages and conditions of employment on January 12, 1981, or whether the em- 287 NLRB No. 135 ARMORED TRANSFER SERVICE ployees lost the protection of the Act by entering into a conspiracy with a competitor of the Company to force the Company out of business for the benefit of the com- petitor 3 If it was a lawful strike, whether the Company dis- charged the strikers, whether the strike was converted into an unfair labor practice strike, and whether the strikers were unlawfully denied reinstatement rights 4 Whether the Company's dispatcher, Robert Knapp, was a supervisor within the meaning of the, Act, and whether he was entitled to reinstatement after he joined the strike All parties were given full opportunity to participate, to introduce relevant evidence, to examine, and cross-ex- amine witnesses, to argue orally, and to file briefs Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Company On the entire record' of the case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a Delaware corporation with its princi- pal office and place of business at 2525 Alamo, South- east, Albuquerque, New Mexico, is engaged in the oper- ation of an armored car service During the year immedi- ately preceding issuance of complaint, the Company made sales of services to customers within New Mexico valued in excess of $50,000, which customers, in turn, sold and delivered to customers goods and materials valued in excess of $50,000, which were transported in interstate commerce and delivered directly to those cus- tomers' places of business outside New Mexico. During the same period the Company purchased goods and ma- terials valued in excess of $1000 from suppliers within New Mexico, which those suppliers received directly from outside New Mexico. The complaint alleges, the answer admits, and I find that the Company is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A The Sequence of Events 1 Background The Company is in the business of transporting valua- ble commodities in armored cars There are about 30 em- ployees on its payroll, many of whom are driver/guards and couriers. John Lorenzo is president and general man- ager of the Company The Company maintains a place of business in Albuquerque, New Mexico, where it stores large amounts of money. On January 12, 1981, when I Certain errors in the transcript are noted and corrected 1245 some of the incidents involved in this case took place, there was about $10 million in cash and checks on the Company's premises. In October 1980 a number of the Company's employ- ees were dissatisfied with the way the Company handled overtime and with other aspects of pay and working conditions. They spoke about this among themselves and in early November 1980 some of the employees contact- ed the Union Union authorization cards were signed by some employees and returned to the Union However, the employees decided to take action on their own rather than through the Union.2 Some of the employees sought advice from ' Andy Parker, the manager of Wells Fargo, which was the Company's only competition in the armored car business in Albuquerque. In late December 1980 or early January 1981, compa- ny employees David Ellis and Tom Curley went to the Wells Fargo office and filled out employment application forms, which they gave to Wells Fargo Manager Andy Parker Both of them said that they were not satisfied where they were working and were looking for a change A few days later Ellis called Parker on the tele- phone and told him that the Armored Transfer employ- ees were going on strike. He said that they were going to give Lorenzo their demands and that if the demands were not met they would keep his trucks from running and put him out of business Ellis told Parker that the employees were going to hold a meeting on January 10, 1981, and that he would like Parker to come to the meet- ing and give the employees support by assuring them that Wells Fargo would hire them. Parker replied that he could, not guarantee anything, but that if Armored Transfer did go out of business and Wells Fargo took over the Armored Transfer contracts, then Wells Fargo would be needing more personnel.3 Parker agreed to attend the meeting Parker then called his Denver Regional Office and re- ported the incident to his superior, Tanner Tanner told him not to guarantee anyone a job, but to let them know that Wells Fargo might be hiring and that it could get all the trucks and backup personnel that were needed. Parker was told by officials from Wells Fargo that they wanted him to attend the meeting to find out what was going on so that if an opportunity arose to move on the accounts from Armored Transfer, Wells Fargo would be ready to do so. On January 10, 1981, company employees Tom Curley, David Ellis, James Jimenez, John Maw, Ernest Curley, Sidney Menschel, and John David met at John David's house When they were gathered there, Ellis called Parker on the telephone and told him the meeting was going on and that they would like him to be there. Parker went to the meeting and explained to the Ar- mored Transfer employees the benefits that the Wells 2 The complaint alleges violations of Sec 8(a)(I) but not Sec 8(a)(3) of the Act There is no contention nor proof that the Company discriminat- ed against employees because of union activity - a These findings are based on the testimony of Parker To the extent that the testimony of Ellis and Tom Curley differ from that of Parker, I credit Parker and I do not credit Ellis or Curley 1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fargo employees enjoyed.4 The Armored Transfer em- ployees discussed among themselves a variety of griev- ances they had against the Company. The employees de- cided to go out on strike and Ellis urged them to strike the following Monday, saying that there would be a large amount of deposits and it would be a crucial time for the Company. They decided to strike on Monday, January 12, 1981. Parker asked them whether they would stick together if they went on strike and they said they would. Parker said that it sounded good and he asked them what their plans were with regard to publici- ty and to a secondary backup if the trucks did roll or if the employees were not united. There was a discussion about news coverage. Some employees said that they did not have a backup plan, but that the strike should be ef- fective. Other employees spoke about calling in the EPA or OSHA and having those agencies close down the Company. A number of employees said that if the Com- pany did not meet their demands they would keep the trucks from rolling. One of the employees then asked Parker whether they would all have jobs with Wells Fargo if everything fell into place. Parker replied by saying that if Wells Fargo got the contracts that Ar- mored Transfer could not fulfill, then Wells Fargo would pull in truck and personnel in order to fulfill those contracts. He said that Wells Fargo would first bring in its own people and then hire other people who were qualified.5 The employees decided to put their grievances in writ- ing and to present them to Lorenzo on Monday morn- ing, January 12, 1981. On the night of January 10 and on January 11, David Ellis and his wife typed up the griev- ances that had been discussed at the meeting. The list of grievances, which amounted to a list of demands, began with the following statement: Since Armored Transfer Service Inc. employees have individually asked for improvements of work conditions, pay raise considerations, and personnel consideration and respect from management only to have them put off, we have joined to initiate this work stoppage. No truck shall be driven out of the Armored Trans- fer yard, nor manned by any of the Armored Trans- fer Service employees signed below until the fol- lowing requirements are: 1. read by Dora Lorenzo and John Lorenzo 2. negotiated by employees and employers 3. signed by the company owners and managers, John and Dora Lorenzo 4. notarized by a New Mexico notary not now associated with ATSI. That was followed by four pages of written material, which included demands relating to wages, insurance, * The Wells Fargo employees were represented by a union 6 These findings are based on the testimony of Parker and on parts of the testimony of various witnesses that attended the meeting In general, I believe that Parker's recollection of the details of the meeting was better than any of those other witnesses and I credit Parker where there are conflicts training, working conditions, and other matters. One demand was that effective February 1, 1981, all hourly personnel be members of the Union. On Sunday, January 11, Ellis called Parker and said that the employees were ready to go out. Parker replied that it sounded good. Ellis then said that after it was all over he was moving back to Michigan or Florida and that he wanted Parker to recommend to Wells Fargo that it hire him at one of those locations. On several oc- casions thereafter Ellis called Parker to see whether Parker had contacted the manager in Florida. Ellis also called Parker, gave him a list of Armored Transfer ac- counts, truck routes, and pickup times and places, and told him to get in touch with potential customers.6 2 The events of January 12, 1981 On January 12, 1981, company courier John Maw re- ported for work at 4:30 a.m. and took out his normal run Various driver/guards were scheduled to take out their trucks that morning. Instead of reporting for work, those driver/guards engaged in a strike against the Com- pany. About 6 a.m. on January 12 a number of the Compa- ny's employees met at Goody's Restaurant, which is lo- cated about 5 blocks from the Company's premises, to set the strike in motion. At that time, driver/guards John David, Ernest Curley, Thomas Curley, Robert Brohard, James Jimenez, Sidney Menschel, and David Ellis signed the list of demands that is discussed above A short time later, courier John Maw and dispatcher Robert Knapp? ,-joined the group and they both signed the list of de- mands. About 6.30 a.m. that day David Ellis used the tele- phone at Goody's Restaurant to call the Company's dis- patcher, Robert Knapp, who had already reported for work. Ellis told Knapp that the employees were not coming in and that they wanted to have a meeting with Lorenzo and Lorenzo's wife at the company premises at 7 a.m. He asked Knapp to contact Lorenzo and tell him. Knapp did not reply, he just hung up.8 Immediately after hanging up on Ellis, Knapp called Lorenzo and woke him up. When Lorenzo answered the phone, Knapp told him "You've got problems here, you had better get down here " Lorenzo asked what kind of problems and Knapp simply repeated "You've got problems, you had better get down here." Knapp then hung up, and a short time later, together with courier Maw, left the premises and joined the strikers at Goody's Restaurant. As soon as 8 These findings are based on the testimony of Parker Ellis in his testi- mony denied much of Parker's assertions I credit Parker and do not credit Ellis 7 There is a dispute whether Knapp was an employee or a supervisor within the meaning of the Act That issue is discussed below 8 Ellis testified that Knapp simply hung up Knapp testified that he told Ellis that he would relay the message to Lorenzo While I have res- ervations about the candor of both Knapp and Ellis, Knapp's propensity for hanging up the telephone in the middle of a conversation was also reflected in Lorenzo's testimony concerning the conversation that he had with Knapp immediately thereafter In this instance I credit Ellis over Knapp ARMORED TRANSFER SERVICE Knapp hung up the phone, Lorenzo dialed the Compa- ny's number but no one answered the phone s The owner of an armored car service faces a number of occupational hazards As a person who has access to large amounts of money, he is a natural target for rob- bery and kidnapping Lorenzo was acutely aware of the problem and he always kept a shotgun in his pickup truck About December 1978 he was robbed at gunpoint by one of his own employees, after that employee had disarmed and tied up two other employees The robber forced him to take more than $750,000 out of the safe under circumstances that could have reasonably put Lor- enzo in fear of his life About December 22, one of Lor- enzo's trucks was held up and robbed of more than $100,000 The messenger guard was hit in the face with a weapon and knocked down. The money was not recov- ered and the robber was not found. Lorenzo did not know what to make of Knapp's enig- matic phone call but he suspected that there might be a robbery in progress He knew there should have been someone on the company premises, yet no one answered the phone when he tried to call Knapp back. He was particularly concerned because that morning there was about $10 million in cash and checks on the company premises from pickups over the weekend. Immediately after his unsuccessful call to Knapp, Lorenzo called the Albuquerque police He told them that he was the owner of Armored Transfer and that it appeared he had a prob- lem there He asked the police if they could get a patrol car out there right away After calling the police he once again called his office but there was still no answer He asked his wife to keep calling the office and to try to find out what was going on He then got in his pickup truck, which contained the shotgun, and drove towards his office, which was a 20-25-minute ride away While he was in the pickup truck, he kept trying to reach Knapp on the two-way radio, but he had no success He left his home about 6 40 a m and he arrived at the com- pany premises about 7 or 7.05 a m While Lorenzo was either talking to the police or driving to his office, the strikers left Goody's Restaurant and congregated across the street from the Company's premises As they were standing there and before Lor- enzo arrived, an Albuquerque policeman drove up in a scout car and asked them what they were doing The strikers told him it was a labor dispute. The policeman radioed back that information to his headquarters and then left The employees were wearing regular clothes 9 These findings are based on the testimony of Lorenzo Knapp testi- fied that he told Lorenzo that they had labor problems and that Lorenzo had better get down to the office by 7 a in He also averred that either in that conversation or one shortly thereafter when Lorenzo called him back, Lorenzo told him to proceed to load the three armored cars and that Knapp would drive one and that Lorenzo and his stepson would drive the two others I credit Lorenzo's testimony and I do not credit Knapp's assertion that he told Lorenzo that there were labor problems or that Lorenzo told him how they would respond to the labor problems Knapp's testimony was at times rather evasive and I believe he was less than candid In addition , Lorenzo's subsequent actions indicate that he did not know that there was a labor dispute See fn II below Where Lorenzo's testimony differs from that of Knapp, I credit Lorenzo and do not credit Knapp 1247 rather than their uniforms and had locked their weapons in the trunks of their cars Shortly after the policeman left, Lorenzo arrived on the scene He drove his pickup truck up to the gate in the company yard, which was across the street from where the strikers were'standing However, the sun was coming up and he did not see the strikers As he stepped out of the pickup truck with the shotgun in his hands, he saw a figure silhouetted against the daybreak coming across the street. Lorenzo pointed the shotgun at the man and told him to stop and take his hands out of his pockets. Lorenzo then saw a second man silhouetted behind the first man The first man said that he had a paper he wanted to give Lorenzo and Lorenzo replied by telling him to put the paper on the sidewalk and to back up At that point Lorenzo recognized the first man was David Ellis and the second man was Tom Curley and he lowered the shotgun Ellis repeated that he had a paper and Lorenzo asked what was going on. Ellis said that he wanted Lorenzo to read the paper. Lorenzo told him to put the paper on the sidewalk and Ellis did so. Lorenzo picked up the paper, put it in his back pocket, got into the truck, and drove through the gate 10 A short time later, between 7 20-7 25 am, Albuquer- que policeman Jose Olivas arrived on the scene. Some- time between 6 30 and a little after 7' a m he had been told by Lieutenant Bussiere that there was a report of a labor dispute at Armored Transport Service and that he should go there and see what kind of problem there was When he arrived he saw men standing there and he asked them what was going on He was told that Lor- enzo had pointed a shotgun at some of them, so he called headquarters and reported that there was a claim of an assault with a deadly weapon As a result of that report, Lieutenant Bussiere came to the scene They went into the office and spoke to Lorenzo Lorenzo told them that he had displayed the gun but that he did not know what was going on at the Company when he arrived, that he had received a phone call at home saying he had prob- lems at the office, and that he thought there might be a robbery going on Between the time that he drove his truck onto the company premises and the time the policemen arrived to talk to him, Lorenzo still believed that a robbery might have been in progress 11 During that he kept the shot- 10 These findings are based on the testimony of Lorenzo He averred that nothing was said about grievances, that he had been robbed by an employee before and, in substance, that he thought the paper might be part of another robbery attempt Ellis and Curley both testified in sub- stance that Ellis told Lorenzo that their paper contained grievances Sidney Menschel also testified about the incident He was one of the strikers who was standing across the street On direct examination he tes- tified that Ellis said, "All we want to do is present you with the things that we believe we'd like to negotiate as far as grievances and requests " However, on cross-examination he averred that the only thing he heard was Ellis saying to Lorenzo "what I want to do is present you with these papers " I believe that Lorenzo was a more reliable witness than either Ellis or Tom Curley and I credit him i 1 Lorenzo's testimony in that regard was credible He called the police and asked them to go to his place of business immediately after he received the phone call from Knapp and about a half hour before he pointed the shotgun at the employees if he thought there was a labor dispute rather than an armed iobbery in progress, it is most unlikely that Continued 1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gun in his hands and checked the premises for robbers That took about 15 minutes and during that entire time the telephone was ringing. When he satisfied himself that there was no one there, he answered the phone It was his wife asking what had happened He told her he did not know what was going on but that he was alright. After he found that there was no one in the building he pulled the paper that Ellis gave him out of his pocket. Just then the police knocked at the door. He looked at the paper and saw that it contained demands from the employees At that point he realized that there was not a robbery going on but that some employees were dissatis- fied with something. He read the part about no trucks being driven until the requirements were met and he scanned the rest of the document He decided that there was nothing he could decide in a few minutes At that point, he looked at the clock and realized that the trucks should already have been out on the road, but they were still there The men usually reported for work at 6:45 a.m. with the first truck leaving about 7.10 am. and the last truck leaving about 8 a m. At that time it was be- tween 7:40-7 50 am Lorenzo was concerned that he might lose his customers if he did not service them. The armored car business is one in which customers are likely to become extremely upset if pickups and deliv- eries are not made when scheduled. Lorenzo has had customers cancel accounts because they missed only one shipment. After talking to the policemen, Lorenzo asked them if they would wait and he spent 45 minutes or so making phone calls in an attempt to try to get the trucks loaded and deliveries started. When he finished with the phone calls he decided to give a reply to the people who had given him the list of demands A number of witnesses testified to sharply different versions of what Lorenzo told the strikers. David Ellis testified that Lorenzo told them he was out of business and also told them to turn in their uniforms and guns. Ellis also averred that employees asked Lorenzo about their paychecks and Lorenzo replied that they would re- ceive them on the regular payday at 4 o'clock His testi- mony was corroborated by the testimony of Robert Knapp, Sidney Menschel, John Maw, and Ernest and Thomas Curley. Lorenzo testified that he told the men that he was not in a position to completely read their de- mands and understand them just then, that he had to get his trucks on the street and his shipments delivered; that it was very important that he get the trucks out and that he had to do it right away; and that he was out of busi- ness . He averred in substance that the "out of business" remark he made meant that at the moment he was not operating. Lorenzo denied that he told the men at that time to turn in their equipment He also averred that someone asked when they would be paid and he told them at the normal time at 4 o'clock. John David, a striker who later returned to work, testified that one of the employees asked Lorenzo whether he was going to negotiate and Lorenzo replied by saying "I can't negoti- ate now I have to get these trucks running or I'm out of he would have tried to arrange to have the police present in a situation where he would have been accused of assaulting the employees with a deadly weapon business." David averred that nothing was said about the employees turning in their equipment. Albuquerque po- liceman Jose Olivas was with the strikers when Lorenzo came out of the company's facility and spoke to them. Olivas was the only witness to the incident who was completely disinterested in the outcome of this case. He testified that when Lorenzo spoke to the strikers, one of the employees asked Lorenzo to discuss the problem, and Lorenzo responded, "Right now I have to get my trucks out I have to make my deliveries" Olivas also averred that Lorenzo said something to the effect that he would miss his contract. Olivas testified that he saw Lor- enzo talking to the men in another conversation at a later time, but he did not hear what was said. Lorenzo acknowledged that he told the strikers that he was out of business However I credit his assertion that he also told the employees that it was very impor- tant that he get his shipments delivered and that the "out of business" remark simply meant that while his trucks were not running he was out of business. I also credit his assertion that he did not at that time tell the strikers to turn in their equipment. David heard the remark in terms of Lorenzo getting the trucks running or he would be out of business. Olivas heard Lorenzo tell the employees about the need to get his trucks out Indeed the employ- ees could not have taken the "out of business" remark literally for very long. Very shortly after the remark was made, trucks started leaving the company' s premises. They started leaving about 9 or 9.30 a.m. that day.12 The strikers began picketing the company's premises on January 12 and the picketing continued until January 20, 1981, when all the strikers offered to return to work. Lorenzo personally drove one of the trucks the morn- ing of January 12, 1981. He returned from the run about 12.30 p.m at which time he called his attorney. t 3 On the advice of his counsel, about 1.30 p.m that day, he mailed to each of the strikers'' a letter, which read: Please accept this letter with reference to refusal to work on January 12, 1981. Please accept this letter as a notice for you to return to work by Wednesday morning January 14, 1981 at 7:00 AM, if in the event you do not report as of the above date and time, this corporation will proceed to hire a replacement for your job. A number of the strikers received the letter after the morning of January 14. Also on January 12, 1981, David Ellis filed a charge in Case 28-CA-6240, alleging that the Company terminated 12 If there was any confusion in the minds of the employees, it should have been cleared up by a letter that Lorenzo sent to them the same day That is discussed below 13 Lorenzo had prior experiences that indicated he had the need of legal counsel A union had attempted to organize Armored Transfer Service some years before and Lorenzo became involved in an unfair labor practice proceeding The Board and a court of appeals found that he had violated the Act and he was also held in contempt of court. During all those proceedings he had attempted to represent himself and did not have counsel Thereafter, he retained counsel and purged himself of the contempt 14 Lorenzo considered Knapp to be a supervisor and no letter was sent to him ARMORED TRANSFER SERVICE 1249 a number of employees because of their protected activi- ty. request. The Company has not contacted any of the strikers about coming back to work S The events that occurred after January 12, 1981 Lorenzo received a copy of the charge on January 13 He called his attorney about the matter on January 14 The attorney sent a letter to each of the strikers, which stated- This law firm represents Armored Transfer Service, Inc. On this date Armored Transfer Service, Inc. received a copy of a charge filed with the National Labor Relations Board This charge states, among other things, that you were terminated from your employment with Armored Transfer Service, Inc. on January 12, 1981 The purpose of this letter is to inform you that you have not been terminated from the employment of Armored Transfer Service, Inc. on January 12, 1981, or on any other date If you are participating in the current work stoppage at Armored Transfer Service, Inc, please be assured that Armored Transfer intends to comply fully with all laws re- garding your rights during a work stoppage, and that you are currently eligible to return to work at Armored Transfer if you wish, subject to Armored Transfer's right to hire replacements. If you are not participating in the current work stoppage at Armored Transfer Service, Inc., or if you wish to return to work, you should be report- ing for work during your normal hours. Charles Schlegelmich, a driver/guard for the Compa- ny, was on sick leave when the strike was planned and he did not know that one was scheduled January 11-12 were his days off and he did not know until he reported for work on January 13 or 14 that there was a strike At that time he joined the strike and engaged in the picket- ing He received both Lorenzo's January 12 letter and the attorney's January 14 letter John David struck with the other employees on Janu- ary 12 On January 13 he received Lorenzo's letter He called Lorenzo and told him that he would report back to work He than called his fellow striker Robert Bro- hard and asked whether Brohard had received a letter. When Brohard said that he had not, David explained the letter to him and Brohard also decided to go back to work. Both of them did go back to work The strike and picketing continued until 4 p m. on Jan- uary 20 when the striking employees went into the Com- pany's office and handed Lorenzo a letter, which stated: "We the undersigned employees of Armored Transfer Service, Inc., do hereby unconditionally offer to return to work immediately." The letter was signed by Ernest Curley, John Maw, Robert Knapp, Charles Schlegel- mich , James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley Lorenzo told them that he would have to talk to his lawyer about the matter and that he would advise them. January 20 was the regular payday and he gave the strikers their checks. He also told them to turn in their weapons and uniforms. They complied with the 4. The strike replacements A summary of company records was introduced into evidence by the General Counsel.15 It established that only two new employees were hired and put to work in the interval between the beginning of the strike on Janu- ary 12 and the offer of the strikers to return on January 20, 1981. One of the replacements was a courier named Arthur Williams who signed a prehire agreement and re- ported for work on January 19 His employment was ter- minated on July 31, 1981 The other new hire was driver/guard Carl James who signed a prehire agreement on January 19 and reported for work January 20, 1981.16 Ernest Curley, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley were all driver/guards. John Maw was a courier and Robert Knapp was a dispatcher They all unconditionally of- fered to return to work on January 20, 1981 The Com- pany did not accept those offers then or at any time later The Company hired the two new employees before the strikers made their January 20 offer to return. On or after January 20 the Company hired new employees to perform work that the strikers could have performed, without giving the strikers an opportunity to fill those positions None of their outstanding offers to return to work were accepted by the Company. Between January 20-September 15, 1981, the Company put 11 new driver/guards on its payroll Between January 28-Sep- tember 19 it put four couriers on its payroll. On April 16, 1981, it put a new night dispatcher on its payroll. In addition, a number of employees were discharged after January 20, 1981 B. The Employee or Supervisory Status of Robert Knapp As set forth above Robert Knapp was the company dispatcher who left the Company's premises and joined the strikers on January 12, 1981 He along with the others offered to return to work on January 20. The Company contends that Knapp did not have any rein- statement rights because he was a supervisor within the meaning of the Act. Knapp first worked for the Company from November 1977 to about January 1978 At that time he was a courier/driver. He was rehired by the Company about the end of February 1978 and in about October 1979 he became a dispatcher As a dispatcher he earned $3.50 an hour, which was 10 cents an hour more than was nor- mally paid to driver/guards Knapp testified that his usual duties as a dispatcher were to open the premises, supervise or direct the unloading of the trucks, help in the unloading, take money from the vault and help the 15 A list of all employees hired or terminated after January 12, 1981, was prepared from the Company's records and was received in evidence as G C Exh 12 16 The record does not indicate what time of day James reported for work on January 20 However, the strikers did not offer to return to work until 4 p in that day and in the absence of other evidence it is rea- sonable to assume that James reported to work before that time ' 1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD men load the money on the trucks, account for the money, and decide which truck would handle a particu- lar service if a customer called requesting a change. Lorenzo credibly testified in much greater detail con- cerning Knapp's duties He testified as follows Lorenzo told Knapp, both orally and in writing, that Knapp was a supervisor Knapp prepared a set of rules for the Com- pany, which acted as the Company's standard operating procedure Those rules listed the names of the officers and supervisors of the Company and Knapp's name was listed as a supervisor 17 Knapp had complete control over the Company's operation when Lorenzo was not there and when Lorenzo was there but was involved in such things as buying equipment or insurance At such time Knapp ran the entire operation He took care of the men, opened the vault, interviewed new people for jobs, and spoke to customers about new business Knapp pre- pared statements showing how the Company would handle work, what routes would be used, who would be on the routes, what trucks the shipments were assigned to, and just how the jobs were to be done He assigned men for weekend work, assigned men to special routes when customers called in for them, and assigned trucks He was on the Company's premises from early morning to 3.30 p.m. to see that the organization ran smoothly Knapp interviewed applicants for employment and made recommendations concerning their hire even though Lorenzo reinterviewed all employees who were ultimate- ly hired. Knapp complained to Lorenzo about the work of various employees and as a result of those complaints Lorenzo investigated and attempted to solve the prob- lems The Company's written rules specifically gave the dispatcher the right to suspend an employee for violating company rules, gross insubordination, or a positive indi- cation of theft 18 Section 2(11) of the Act defined "supervisor" as fol- lows The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The supervisory indicia set forth in that section are listed disjunctively and a person must be found to be a supervi- sor if he possesses any one of the described forms of au- thority If that person possesses the authority to exercise any one of the enumerated functions listed in Section 17 Knapp acknowledged in his testimony that there was a sign on the wall of the Company's premises saying in effect that Knapp was the em- ployees' supervisor I 8 As noted above, I believe that Lorenzo was a more credible witness than Knapp and where Knapp's testimony concerning the supervisory issue differed from that of Lorenzo, I credit Lorenzo Driver/guards Ernest Curley, Menschel, and Maw testified that they did not consider Knapp to be their supervisor I am unable to give much credence or weight to that testimony 2(11) he is a supervisor whether those powers are actual- ly exercised NLRB v. Harmon Industries, 565 F 2d 1047 (8th Cir 1977), NLRB v. Budd Mfg Co, 169 F.2d 571 (6th Cir 1948), Redi-Serve Foods, 226 NLRB 636 (1976) Lorenzo told him he was a supervisor, the employees were told in writing that he was a supervisor, and he played a substantial role in the formulation of the compa- ny's rules relating to employee's relations. He had au- thority to suspend employees on his own initiative for violation of the company rules Taken as a whole the evidence establishes that he had authority to and did ex- ercise independent judgment in the assignment of the erri- ployees and he also used independent judgment in re- sponsibly directing them. I find that Knapp was a super- visor within the meaning of the Act C. Analysis and Conclusions 1. The shotgun incident Paragraph 15(a) of the complaint alleges that on Janu- ary 12, 1981, Lorenzo threatened employees with physi- cal harm by aiming a firearm at employees because em- ployees engaged in protected concerted activity There is no dispute over the fact that Lorenzo did point a shotgun at striking employees David Ellis and Tom Curley. However, I do not believe that the General Counsel has established by a preponderence of the credi- ble evidence that Lorenzo took that action because the employees engaged in the strike activity. For the reasons set forth in detail in section A,2, above, I believe and find that Lorenzo, at the time the incident occurred, was unaware that there was any labor dispute and that he thought he was protecting himself against a possible rob- bery There can be little doubt that the pointing of a shot- gun at strikers can have a chilling effect on protected ac- tivity It is also true that proof of coercive intent is not needed and that conduct is unlawful as long as it may reasonably be found to interfere with the free exercise of employee rights under the Act 19 However, there must be some nexus between the conduct and the protected activity beyond mere coincidence A person may be held responsible for the unintended consequences of his lawful act, but only where those consequences are reasonably foreseeable. Lorenzo was trying to protect himself from a possible robbery under circumstances where he had no knowledge and indeed no reason to believe that there was a labor dispute Under those circumstances, I do not believe that his conduct constituted a violation of the Act and I shall therefore recommend that paragraph 15(a) of the complaint be dismissed 2 Lorenzo's statement that he was out of business and the allegation that he discharged nine striking employees Paragraph 15(b) of the complaint alleges that on Janu- ary 12 Lorenzo told employees that he was out of busi- ness in response to the employees' protected activities. 10 Dover Garage, 237 NLRB 1015 ( 1978), mem enf denied 607 F 2d 998 (2d Cir 1979), Hanes Hosiery, Inc, 219 NLRB 338 (1975) ARMORED TRANSFER SERVICE Paragraph 10 of the complaint alleges that on January 12 the Company terminated the employment of the striking employees.20 All the witnesses who testified about the incident agreed that Lorenzo said something about being out of business. As set forth above, a number of employees tes- tified that Lorenzo told them that he was out of business and also told them to turn in their uniforms and guns. I believe they were,confused as to the remark about the uniforms and guns and what was actually said on Janu- ary 20 when they went to the Company to get their checks Lorenzo testified that he told the employees that he had to get the trucks on the road and shipments deliv- ered and, in effect, that when his trucks were not run- ning he was out of business. One of the employees, John David, understood the remark to mean that unless Lor- enzo got the trucks running he was out of business and the policeman understood Lorenzo to say that he had to make his deliveries. Viewing the situation as a whole, I do not believe that Lorenzo's remark about going out of business was made in retaliation for the employees' protected activity. He told them, in effect, that it was critically important to him that his trucks get on the road and that his business depended on the trucks being on the road. If there was any ambiguity in the minds of the employees, it must have been quickly clarified because within an hour of Lorenzo's remarks, the employees saw the trucks leaving the premises to make deliveries. In these circumstances, I find that Lorenzo did not violate Section 8(a)(1) of the Act by telling employees that he was out of business, and I therefore recommend that paragraph 15(b) of the complaint be dismissed. Apparently the General Counsel bases his contention that the employees were discharged on January 12, 1981, on the same evidence that was adduced with regard to the "out of business" allegation . As found above, the "out of business" remark was simply another way of saying that Lorenzo thought it vital to his business to keep the trucks rolling As found above, he did not tell strikers to turn in their equipment on January 12 Shortly after the remark was made the strikers knew that the Company was still in business because they saw the trucks going out for deliveries. On the same day that Lorenzo allegedly fired the employees, he wrote to them telling them that unless they reported for work by the morning of January 14, 1981, the Company would hire replacements .2 i On January 14 Lorenzo' s attorney sent the strikers a more detailed letter concerning the Compa- ny's right to hire replacements. Under all these circum- stances, I find that the General Counsel has failed to es- tablish by a preponderance of credible evidence that the Company discharged striking employees on January 12 and I therefore recommend that paragraph 10 of the complaint be dismissed. 20 The persons named are John David, Ernest Curley, John Maw, Robert Knapp, Thomas Curley, Robert Brohard, James Jimenez, Sidney Menschel, and David Ellis 21 Though some employees did not receive the letter until after the cutoff date, Lorenzo could have reasonably expected that there would have been one day delivery in the local area In any event the Company had no obligation to notify the strikers before hiring replacements 1251 Paragraph 19 of the complaint alleges that the strike was prolonged by the Company's unfair labor practices. However, the General Counsel has not established by a preponderance of credible evidence that the Company engaged in any unfair labor practices that preceded the employees' January 20 offer to return to work and, therefore, at least until that time, the strike cannot be considered to be an unfair labor practice strike. 3. The refusal to reinstate the strikers a. The protected nature of the strike and the antitrust law considerations Paragraph 13 of the complaint alleges that on January 20 and thereafter the Company unlawfully refused to re- instate the strikers to their former positions of employ- ment.22 The strikers could only have a right to reinstate- ment if their strike was one that was protected by the Act. The Company concedes23 and the evidence amply supports the findings that the January 20 refusal to work by the employees was an economic strike geared to the improvement of wages and working conditions As such it was protected activity under Section 7 of the Act,24 unless special circumstances existed that disqualified the strike from such protection. The Company contends that there were such special circumstances in this case. It argues that the strike was part of a conspiracy or combi- nation in restraint of trade to violate Section 1-2 of the Sherman Act, which was formed between a concerted group of the Company's employees and Wells Fargo, a competitor of the Company. In substance, the Company contends that the employees and Wells Fargo conspired to limit competition for Wells Fargo by forcing the Company out of business. Though unions are generally exempt from antitrust laws, an agreement between a union and an employer to restrain competition in a busi- ness market does constitute a violation of the antitrust law.25 Where the purposes set forth in two acts of Congress can be in conflict, it is incumbent on those interpreting the laws to draw rational lines that will minimize the chance that the two acts are working at cross-purposes. An accommodation between the Federal labor law and the Federal antitrust law would prevent a strike that amounted to a violation of the antitrust law from being a protected activity under the labor law. Cf. Southern Steamship Co. Y. NLRB, 316 U.S 31 (1942). If the strike were not protected under the Act, the Company would 22 The persons named are Ernest Curley, John Maw, Robert Knapp, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley 23 In its brief, counsel for the Company stated There is no doubt that the work stoppage at Armored Transfer was economically motivated The written grievances, drafted by the em- ployees, were categorized as demands concerning pay, health and safety, working conditions, and equipment Even the General Counsel concedes this was an economic strike 24 NLRB v Washington Aluminum Co, 370 U S 9 (1962) 21 Connell Co v Plumbers & Steamfitters, 421 616, 622-623 (1975), Mine Workers Y Pennington, 381 U S 657, 662 (1965), Allen-Bradley Co Y Electrical Workers, 325 U S 797, 806-811 (1945) 1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have no duty to reinstate the strikers on their request to return The Company's contention raises a number of interest- ing legal questions.26 However, the Company has not es- tablished a factual basis that requires resolution of those legal issues The facts are fully set forth in section A,1, above They establish that Wells Fargo did involve itself in the planning of the strike against the Company It is also apparent that Wells Fargo hoped to benefit by an in- crease in business from any disruption of the Company's business . However, the ethical and legal implications of Wells Fargo's conduct are not in themselves before me The actions of the employees are of critical importance and with regard to those actions the evidence does not establish that the employees engaged in a conspiracy in restraint of trade The employees engaged in an econom- ic strike to improve their wages and working conditions in relation to their employment with the Company Em- ployees who engage in such a strike run substantial risks. An employer can go out of business rather than meet the employees' demands. In such a case the employees may be without work. The employer may permanently re- place the employees and in spite of reinstatement rights the employees may in fact be without work. The evi- dence considered as a whole indicates that the employees were not conspiring with Wells Fargo to force the Com- pany out of business for Wells Fargo's benefit and for some later reward from Wells Fargo to the employees Rather, it indicates that the employees were exploring the possibility of alternate employment in the event that their strike action resulted in their loss of work. The strike action was aimed at getting a better job with the Company rather than eliminating that job. The discus- sion of work with Wells Fargo was simply an attempt to limit the potential risk of a strike. Wells Fargo's effort to capitalize on the situation by picking up some of the Company's business did not affect the right of the strik- ers. I therefore find that the January 12 strike of the em- ployees was a concerted activity that was protected under Section 7 of the Act. As such, the employees27 had certain reinstatement rights when they offered to return on January 20, 1981. b. The reinstatement rights The basic law with regard to reinstatement was set forth by the Supreme Court in NLRB v Fleetwood Trail- er Co., 389 U.S. 375, 378-379 (1967), in which the Court held: ular and substantially equivalent employment. If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to dis- courage from exercising their rights to organize and to strike guaranteed by Â§Â§ 7 and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. Â§Â§ 157 and 163) Under Â§Â§ 8(a)(1) and (3) (29 U S.C Â§Â§ 158(1) and (3)) it is an unfair labor practice to interfere with the exer- cise of these rights Accordingly, unless the employ- er who refuses to reinstate strikers can show that his action was due to "legitimate and substantial business justifications," he is guilty of an unfair labor practice. NLRB v. Great Dane Trailers, 388 U S. 26, 34 (1967). The burden of proving justifica- tion is on the employer. Ibid. It is the primary re- sponsibility of the Board and not of the courts "to strike the proper balance between the asserted busi- ness justifications and the invasion of employee rights in light of the Act and its policy " Id , at 33- 34. See also NLRB v. Erie Resistor Corp., 373 U S. 221, 228-229, 235-236 (1963) Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), is not an invi- tation to disregard this rule.4 In some situations, "legitimate and substantial business justifications" for refusing to reinstate em- ployees who engaged in an economic strike have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as per- manent replacements during the strike in order to continue operations NLRB v Mackay Radio & Telegraph Co, 304 U.S. 333, 345-346 (1938), NLRB v. Plastilite Corp., 375 F.2d 343 (8th Cir. 1967); Brown & Root, 132 NLRB 486 (1961) 5 In the present case, respondent hired 21 replacements during the strike, compared with about 55 strikers; and it is clear that the jobs of the six strikers were available after the strike Indeed, they were filled by new employees.6 A second basis for justification is suggested by the Board-when the striker's job has been eliminat- ed for substantial and bona fide reasons other than considerations relating to labor relations- for exam- ple, "the need to adapt to changes in business condi- tions or to improve efficiency "7 We need not con- sider this claimed justification because in the present case no changes in methods of production or oper- ation were shown to have been instituted which might have resulted in eliminating the strikers' jobs. Section 2(3) of the Act (61 Stat . 137, 29 U.S.C. Â§ 152(3)) provides that an individual whose work has ceased as a consequence of a labor dispute con- tinues to be an employee if he has not obtained reg- 26 For example , can a finding be made that Wells Fargo entered into a conspiracy in restraint of trade where Wells Fargo was not a party to this proceeding and has had no opportunity to litigate the issues, do the cases cited by the Company that deal with conspiracies between labor or- ganizations and businesses have application where there is no labor orga- nization involved , but instead there are only individual employees who have banded together for the limited purpose of a strike to improve their working conditions 27 The situation of Supervisor Knapp is discussed separately in sec 3,c, below 4 Although the decision of the Court of Appeals, as we read it, resulted from its erroneous holding that the right of the strikers' jobs depends upon the date of their (first) application for reinstate- ment , it recited that the Board's General Counsel had failed to show "that the jobs of complainants had not been absorbed or that they were still available " Such proof is not essential to establish an unfair labor practice It relates to justification , and the burden of such proof is on the employer NLRB v Great Dane Trailers, supra at 34 Cf also NLRB v Plastdite Corp, 375 F 2d 343, 348 (C A 8th Cir 1967) 5 Unfair labor practice strikers are ordinarily entitled to rein- statement even if the employer has hired permanent replacements See Mastro Plastics Corp v NLRB, 350 U S 270, 278 (1956) 6 The Trial Examiner found that "the six job openings in Octo- ber could have been filled by the striker applicants and, had the ARMORED TRANSFER SERVICE Respondent considered them as employees rather than as mere ap- plicants for hire, would have been so filled Brief on behalf of NLRB 15 Even where an employer has met its burden of estab- lishing that jobs which the strikers claimed are occupied by permanent replacements, the strikers are entitled to an offer of reinstatement if and when the replacements leave. As the Board phrased it in Wavehne, Inc., 258 NLRB 652 (1981)â€¢ Economic strikers who unconditionally apply for reinstatement when their positions are filled by per- manent replacements are entitled to full reinstate- ment upon the departure of the replacements when jobs for which they are qualified become available, unless the employer can sustain its burden of proof that the failure to offer them reinstatement was for legitimate and substantial business reasons.8 8 Brooks Research & Manufacturing, Inc, 202 NLRB 634, 636 (1973) See also NLRB v Fleetwood Trailer Co, Inc, 389 U S 375 (1967), The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd F 2d 99 (7th Cir 1969), cert denied 397 U S 920 (1970) 414 In the instant'case seven employees28 and one supervi- sor29 unconditionally offered to return to work on Janu- ary 20, 1981. All the employees except Schlegelmich had begun a strike against the Company on January 12 and that strike was a protected activity under the Act. Super- visor Knapp joined the strike on that day and Schlegel- mich joined the strike a few days later . The Company re- fused to reinstate any of those persons when they offered to return on January 20 or at any time thereafter Under the teachings of NLRB v. Fleetwood Trailer Co., supra,30 the Company had the obligation on January 20, 1981, to reinstate the striking employees unless it could show that its refusal to reinstate was justified by "legitimate and substantial business justifications " The Company had the burden of proving that justification. However, the Com- pany came forward with no evidence of any kind that would tend to show justification for its refusal to rein- state the employees. There was no evidence concerning the impact of the strike on the Company's business as of January 20 and no evidence concerning the amount of business available or the number of employees needed as of that date or thereafter As in the NLRB v. Fleetwood Trailer Co. case, there was no showing that there were changes in methods of production or operation that might have resulted in eliminating the striker's jobs. Shortly after the strike began, both Lorenzo and his at- torney notified the strikers in writing that they could be permanently replaced However, the Company offered no evidence to indicate that particular replacements were hired for specific strikers. Counsel for the General Coun- sel did introduce an exhibit compiled from the Compa- ny's records showing persons hired and discharged by the Company on and after January 12, 1981, the date on which the strike began. Those records show that two new employees were hired from January 12-20. It also 28 Ernest Curley, John Maw, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley 29 Robert Knapp ao See also Consolidated Dress Carriers, 259 NLRB 627 (1981) 1253 showed that between January 20 and September 15, 1981, the Company put 11 new driver/guards on its pay- roll; between January 28 and September 19 it put 4 new couriers on its payroll, and on April 16 it put a new night dispatcher on its payroll. There is no evidence in the record to indicate the reason the new employees were hired on the particular dates It may have been be- cause work was not available for that employee until the particular date It may just as easily have been that the Company was unable to find an employee, other than a striker, willing to accept the job until that date With regard to the two employees who were hired before the strikers offered to return, there is no way to determine whether they were hired as replacements for particular strikers or whether some seasonal or other business vari- able required even more than the normal number of em- ployees at that particular time. One can only speculate whether the Company would have had to let the two new employees go if it reinstated all the striking employ- ees on January 20 In short, I find that the Company has not established a legitimate business reason for refusing to reinstate the striking employees on January 20 and that the failure to reinstate them on that date constitutes a violation of Section 8(a)(1) of the Act 31 c The situation regarding Supervisor Knapp As found above Knapp was a supervisor within the meaning of the Act On January 12 he left work and joined the strikers. The Company considered Knapp to be a supervisor and neither Lorenzo nor his lawyer sent Knapp a letter concerning reinstatement rights On Janu- ary 20 Knapp along with the striking employees uncon- ditionally offered to return to work Knapp's offer was not accepted then or at any time thereafter Section 2(3) of the Act defines the term "employee" in such a way as to specifically exclude supervisors. Section 7 of the Act protects the right of employees to engage in concerted activity It does not protect the right of super- visors to engage in such activity. The Company's em- ployees engaged in an act protected by Section 7 of the Act when they struck the Company on January 12, 1981 Knapp, as a supervisor, was not engaging in a protected activity when he joined that strike The complaint al- leges that the Company violated Section 8(a)(1) of the a' It is noted that after the strikers offered to come back to work, the Company hired a substantially greater number of new employees than there had been strikers In addition a number of those new employees were later discharged Thus, even if the Company had not violated Sec 8(a)(1) of the Act by refusing to reinstate the strikers on January 20, a violation of that section of the Act would have occurred with relation to each of the striking employees as of the date that a new employee was hired after January 20 for a job that could have been performed by a striker, without the striker having been given an opportunity to take that position At some point there was work available that all the strikers could have been reinstated for Whether the violation occurred on Janu- ary 12 or on separate dates thereafter, the remedy would be the same re- garding reinstatement All the striking employees must be offered rein- statement The remedy would be different, however, regarding backpay On the evidence before me, I believe that the appropriate date for com- mencing backpay is January 20, 1981, and that is the date I have used in the remedy section of this decision However, I do not intend to preclude the Company from showing, if it can, in a compliance proceeding, that backpay should begin running as of a later date regarding certain strikers because there was not work for them until a later date 1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act. That section makes it an unfair labor practice for an employer to "interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed in Section 7." A literal reading of the Act would indicate that the Company could with impunity discharge or refuse to re- instate Knapp without running afoul of Section 7 or Sec- tion 8(a)(1) of the Act However, the Board has found a violation of the Act in a number of situations where a supervisor has been discharged The refusal to reinstate in this case can be considered tantamount to a dismissal The Board has ordered the reinstatement of a supervisor where the supervisor was discharged for refusing to engage in unfair labor practices; for testifying at a Board proceeding; for providing an affidavit to a Board agent; for attempting to protect employees from interference or discrimination proscribed by the Act; and where the dis- charge was a conduit to the employer's unlawful dis- crimination against employees.32 On the other hand, there is no violation where a su- pervisor is discharged for merely "advancing her own and the employees' job interests "33 In Long Beach Youth Center, 230 NLRB 648 (1977), enfd. 591 F 2d 1276 (9th Cir. 1979), the Board refused to find that the discharge of a supervisor violated the Act where the supervisor supported the actions of 17 employees who were unlaw- fully discharged. The Board held. In short, Hampton was discharged solely for siding with the employees in their economic dispute with the Respondent, but as he was a supervisor his en- gaging in, or sympathizing with, such concerted ac- tivities was not protected by the Act Consequently, we find, his discharge was not unlawful.8 8 Sibiho's Golden Grill, Inc, 227 NLRB 1688 (1977) The Board has held that the discharge of a supervisor is unlawful where it is "part of the general pattern of conduct by which [the employer] sought to retaliate against its employees' protected concerted activities." Downslope Industries, 246 NLRB 948, 949 (1979). A vio- lation has also been found where the discharge of a su- pervisor "created an atmosphere of coercion requiring restoration of the status quo ante in order to dissipate the effects of such unlawful conduct." Empire Gas, Inc. of Denver, 254 NLRB 626 (1981). In a similar vein, a viola- tion has been found by a majority of the Board in a situ- ation where prounion supervisors were discharged along with the prounion employees "not out of a legitimate desire by the employer to assure the loyalty of its super- visors, but in furtherance of an unlawful plan to rid the employer's facility of any and all union adherents-in short, where the supervisor's discharges were `an integral part of a pattern of conduct aimed at penalizing employ- ees for the union activities and ridding the plant of union adherents."' In Fresno Townehouse, above, the Ninth Cir- cuit, in refusing to enforce that part of the Board order, 32 See Fresno Townehouse , 246 NLRB 1053, 1054 ( 1980), enf denied in part 647 F 2d 905 (9th Cir 1981 ), and cases cited therein 93 Stop & Go Foods, 246 NLRB 1076 ( 1979) See also L & S Enter- prises , 245 NLRB 1123 (1974), J D Lunsford Plumbing , 237 NLRB 128 (1978) held. "Reinstatement is not warranted merely because employees are put in fear of losing their jobs and thereby restrained from exercising their Section 7 rights .. . No court has held that a series of terminations of both supervisors and employees, without more, justifies rein- statement of the supervisors " When there is a conflict between the Board and the court of appeals an administrative law judge is required to follow the Board law.34 The Board law that appears to control the instant case is set forth in DR W Corp., 248 NLRB 828, 829 (1980), in which it was held: It is, of course, a commonplace that Section 2(11) supervisors are not per se accorded protection under the Act from discharge or other discipline for en- gaging in union or concerted activity and, accord- ingly, the Board recognizes an employer's preroga- tive to discourage such activity among its supervi- sors. Thus, when an employer has discharged a su- pervisor out of a legitimate desire to assure the loy- alty of its management personnel and its action was "reasonably adapted" to that legitimate end, the Board has found that such conduct is indeed per- missible and does not violate Section 8(a)(1) of the Act. The mere fact that, as an incidental effect thereof, employees may fear the same fate will befall them if they engage in similar activity is in- sufficient to transform otherwise lawful conduct into a violation of Section 8(a)(1) of the Act. It is quite another matter, however, when an em- ployer engages in a widespread pattern of miscon- duct against employees and supervisors alike. For, under those circumstances, the evidence may be suf- ficient to warrant a finding that the employer's con- duct, as a whole, including the action taken against its supervisors, was motivated by a desire to dis- courage union activities among its employees in general and thus constitutes what the Board has characterized as a pattern of conduct aimed at co- ercing employees in the exercise of their Section 7 rights By such acts the employer has exceeded the bounds of legitimate conduct intended to discourage union activity among its supervisors. And, more im- portantly, it has intentionally created an atmosphere of coercion in which employees cannot be expected to perceive the distinction between the employer's right to prohibit union activity among supervisors and their right to engage freely in such activity themselves. In this context, the coercive effect on employees resulting from the action taken against a supervisor cannot be viewed as unavoidable and "incidental" to the discharge of an unprotected indi- vidual Thus, in recognition of the pervasive atmos- phere of coercion intentionally created by the em- ployer's total course of conduct and its direct effect on employees, the Board has found that restoration of the status quo ante is required to fully dissipate this coercive effect and must necessarily encompass 34 Regency at the Rodeway Inn, 255 NLRB 961 (1981), Iowa Beef Pack- ers, 144 NLRB 615 (1963), enfd in part 331 F 2d 176 (8th Cir 1964) ARMORED TRANSFER SERVICE reinstatement of all individuals affected, including supervisors In the instant case, Supervisor Knapp was denied rein- statement along with seven striking employees As found above the refusal to reinstate those seven employees con- stituted a violation of Section 8(a)(1) of the Act.35 No other violations of the Act have been found There was no showing that the Company's refusal to reinstate the seven striking employees was based on any unlawful mo- tivation In this case no finding of unlawful motive was needed to establish that the Company engaged in unlaw- ful conduct. NLRB v. Fleetwood Trailer Co, supra; NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). The evidence does not warrant a finding that the Company's conduct relating to both the employees and the supervi- sor was motivated by a desire to discourage concerted activities among its employees in general, nor can it be fairly said that the Company intentionally created an at- mosphere of coercion which would make it difficult for employees to perceive the distinction between unprotect- ed supervisory activity and protected employee activity If the Company is ordered to reinstate the employees who engaged in the strike and is not ordered to reinstate the supervisor who engaged in the strike, that distinction will be clear even to the most unperceptive employees. In sum, I find that Knapp was a supervisor, that he did not engage in any protected activity, that he was not protected by Section 7 of the Act, and that the Compa- ny's refusal to reinstate him did not interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed to employees in Section 7 of the Act I there- fore recommend that the portion of the complaint which alleges that Knapp was unlawfully denied reinstatement be dismissed IV THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activities of the Company, as set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I recommend that it be or- dered to cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Company violated Section 8(a)(1) of the Act on January 20, 1981, by refusing to re- instate Ernest Curley, John Maw, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley after their unconditional offer to return to work from an economic strike I recommend that it be ordered to offer them reinstatement. I also recommend es Two additional striking employees were reinstated when they ap- plied for work sometime earlier 1255 that the Company be ordered to make each of those em- ployees whole for any loss of wages and other benefits resulting from the failure to reinstate by payment to each of them of a sum of money equal to the amount each normally would have earned as wages and other benefits from January 20, 1981, to the date reinstatement is of- fered, less net earnings during that period The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Co, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corp., 231 NLRB 651 (1977) 36 As is set forth in footnote 31 above, nothing in this remedy is to be construed as precluding the Company from showing in a compliance proceeding that work was not available for any of those employees during parts of the backpay period If such unavailability of work is es- tablished either because of the presence of permanent re- placements who were hired before the strikers offered to return or for any other lawful reason, no backpay is to be due for that particular period It is further recommended that the Company be or- dered to preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Company violated Section 8(a)(1) of the Act on January 20, 1981, by refusing to reinstate Ernest Curley, John Maw, Charles Schlegelmich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley after their unconditional offer to return to work from an eco- nomic strike 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5. Except as set forth above, the General Counsel has not established by a preponderance of the credible evi- dence that Respondent violated the Act On these findings of fact and conclusions of law and on the entire record, of this case, I issue the following recommended 3 7 ORDER The Respondents, Armored Transfer Service, Inc., Al- buquerque, New Mexico, its officers, agent successors, and assigns, shall 1 Cease and desist from (a) Refusing to reinstate employees who engage in an economic strike to their former positions or to substan- 36 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 37 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 1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tially equivalent positions that are or become available after their unconditional offer to return to work from such a strike. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Ernest Curley, John Maw, Charles Schlegel- mich, James Jimenez, Sidney Menschel, David Ellis, and Thomas Curley immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges and make them whole, with interest, for lost earnings in the manner set forth in the remedy section of this decision. (b) 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. (c) Post at its Albuquerque, New Mexico place of busi- ness, copies of the attached notice marked "Appen- dix."38 Copies of the notice, on forms provided by the Regional Director for Region 28, 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 cus- tomarily 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 Re- spondent has taken to comply IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found are dismissed. 311 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 "