Bartlett Nuclear

National Labor Relations Board - Board Decisions

Jun 6, 1994

314 N.L.R.B. 1 (N.L.R.B. 1994)

1
314 NLRB No. 1
BARTLETT NUCLEAR
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
Pursuant to counsel for the Respondent’s second request, the time
to file exceptions was extended to December 4, 1992. Timely excep-
tions and brief in support were filed by the Respondent. At the re-
quest of counsel for the General Counsel, the time to file answering
briefs was extended to January 8, 1993, and timely answering briefs
were filed by the General Counsel and the Charging Party.
On February 18, 1993, on receipt of the Respondent’s motion for
leave to file a reply brief, the Executive Secretary’s office advised
the Respondent’s counsel that Sec. 102.46 of the Board’s Rules had
been revised in October 1991 to automatically provide for the filing
of reply briefs without the need to seek special leave from the
Board, but that reply briefs were limited to 10 pages, that no exten-
sions of time would be granted, and that the last date for filing a
reply brief was January 22, 1993. The Respondent’s counsel was
further advised of her right to seek relief under the excusable neglect
provisions of Sec. 102.111(c).
On February 24, 1993, the Respondent filed a revised motion for
leave to file a reply brief, supported by a requisite affidavit. The Re-
spondent’s counsel states that on receipt of the General Counsel’s
answering brief, she consulted the Board’s Rules and determined that
Sec. 102.46(g) required special leave from the Board to file a reply
brief, and that although it did not set forth a specific time limit,
counsel intended to submit the motion and brief within a reasonable
amount of time. However, a family emergency necessitated an out-
of-state trip which delayed the filing of the motion and brief and it
was not until February 18, 1993, that counsel became aware of the
revised Rules. The Respondent counsel argues that no prejudice will
result from acceptance of its reply brief and requests the Board to
accept its reply brief under Sec. 102.111(c).
Having considered the matter, the Board finds that Respondent
counsel’s proffered reasons for failing to file a timely reply brief do
not rise to the level of excusable neglect. A family medical emer-
gency would ordinarily excuse a late filing, but the medical emer-
gency invoked here occurred 6 days after the date on which the brief
was due to be filed under the operative rule, which has been in ef-
fect since 1991. The Office of the Executive Secretary and the Re-
gional Offices are always available for consultation in the event
counsel is unsure of due dates under current rules. If the Board were
to excuse a failure to ascertain the requirements of applicable rules,
then the rules would become a nullity. See NLRB v. Washington Star
Co., 732 F.2d 974, 977 (D.C. Cir. 1984) (declining to uphold
Board’s enforcement of filing deadline because of prior inconsistent
enforcement). Accordingly, the Respondent’s request to file reply
brief out-of-time is denied.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The judge incorrectly stated that on March 28, 1990, Site Coordi-
nator Marc Shackelford spoke to 35 to 40 strikers at a hotel near
the site, and thereafter the strikers voted not to return to work.
Shackelford testified that he spoke to employees on the picket line,
apparently on March 28, 1990. Russell Gray of PG&E also met with
two of the strikers at a nearby restaurant. The striking employees
later that evening met at the hotel where they voted not to abandon
the strike. The judge also stated that striker Carl Stewart was told
before the strike began that because he admitted involvement in the
strike, the Respondent could not confirm that his resume had been
sent to another utility for consideration. The appropriate timeframe
for this occurrence was after the strike began but before the strike
ended. These inadvertent errors do not affect the results.
4 All dates are in 1990 unless otherwise specified.
5 See Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1969).
Bartlett Nuclear, Inc. and International Brother-
hood of Electrical Workers, Local Union 1500.
Case 31–CA–18203
June 6, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On September 30, 1992, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party each
filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
The Respondent is engaged in the business of radi-
ation protection and supplies temporary employees to
augment the work forces of utility plants during ‘‘out-
ages,’’ the time when a plant is shut down for repairs
or refueling. The Respondent began providing employ-
ees to Pacific Gas & Electric (PG&E) at Diablo Can-
yon, California, in February 1990.4 On March 26, the
Union called a strike against the Respondent and simi-
lar employers as a part of a nationwide organizing ef-
fort. Marc Shackelford, the Respondent’s site coordina-
tor at Diablo Canyon, told the Respondent’s striking
employees that if they did not return to work by March
29, their ‘‘positions were going to be filled by PG&E
employees, and that their jobs would be abolished.’’
During the afternoon of March 29, Shackelford handed
out final paychecks to strikers on the picket line, stat-
ing that ‘‘if they wanted to accept the checks, that
their positions had gone away, the utility had replaced
them and that their positions had been abolished.’’
The Respondent argues that it was merely conveying
to its employees a decision reached by PG&E. Assum-
ing, without deciding, that the Respondent did not par-
ticipate in that decision with PG&E, we nevertheless
agree with the judge that, by the above actions, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
The striking employees retained the right to make un-
conditional offers to return to work to the Respondent,
not to PG&E, and to be reinstated if positions were
available, and if positions were not available to be
placed on a preferential hiring list.5 We acknowledge
that the Respondent could not have forced PG&E to
take the strikers back after the positions were lawfully
filled. Neither the Respondent nor PG&E, however,
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We are not suggesting that Respondent was responsible for
PG&E’s decision to abolish the jobs at PG&E. Rather we hold that
Respondent violated the Act by making a decision to abrogate its
employees’ rights to reinstatement, as employees of Respondent, to
jobs at other locations served by Respondent.
7 Later, the Respondent rescinded the application of its probation-
ary policy to the nonreturning strikers. Thus, the Respondent notified
most of the nonreturning strikers, by letters dated April 30 and May
1, that the probationary policy would not apply to them.
1 Unless otherwise stated, all dates refer to the calendar year of
1990.
2 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7.’’
Sec. 7 of the Act provides that, ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).’’
3 Sec. 8(a)(3) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . by discrimination in regard to hire or
tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization.’’
4 Charging Party’s motion to accept brief is hereby granted.
had the right to abolish the nonreturning strikers’
Laidlaw rights as employees of the Respondent. The
Respondent was the striking employees employer. The
Respondent had a continuing obligation to accept the
striking employees’ unconditional offers to return to
work and to reinstate those employees if positions
were available, or if positions were not available, to
place the strikers on a preferential hiring list. See
Laidlaw Corp., supra. Instead, the Respondent told the
striking employees that their jobs were ‘‘abolished.’’
The Respondent thereby violated the Act.6
Further, Site Coordinator Shackelford’s statements,
coupled with his giving the nonreturning strikers their
final paychecks, could reasonably have been under-
stood by the nonreturning strikers to mean that the Re-
spondent was abolishing the chance of future employ-
ment with the Respondent at other sites. Indeed, after
March 29, nonreturning strikers who inquired about
work with the Respondent at other outages were told
that they were not eligible for rehire for a year because
they had not completed the outage at Diablo Canyon.
The Respondent contends that it acted in accordance
with its longstanding policy that any employee who,
except for compelling personal reasons, did not com-
plete an outage, was ineligible to work for the Re-
spondent for 1 year.7 The Respondent’s president,
Bruce Bartlett, testified, however, that he was not
aware of any reason these employees did not complete
their assignments at Diablo Canyon except that they
refused to abandon the strike, and their positions were
therefore eliminated. Thus, the Respondent imposed its
1-year probationary rule on the nonreturning strikers
solely because they remained on strike. ‘‘The law is
clear that when an employer disciplines an employee
because he has engaged in an economic strike, such
discipline violates Section 8(a)(3) and (1) of the Act.’’
General Telephone Co. of Michigan, 251 NLRB 737,
738–739 (1980). That is this case. Accordingly, we
agree with the judge that by telling strikers that their
jobs were abolished when they refused to abandon the
strike, by refusing to hire these employees for other
outages, and by telling them they were ineligible for
work with the Respondent for a period of 1 year, the
Respondent violated Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bartlett Nuclear, Inc., Dia-
blo Canyon, California, and Plymouth, Massachusetts,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Raymond M. Norton, Esq., for the General Counsel.
Reed E. Schaper, Esq. (Pepper, Hamiston & Scheetz), of Los
Angeles, California, for the Respondent.
Richard P. Crawshaw, of Greenwood, Indiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Los Angeles, California, on October
29 and 30, 1991,1 and is based on a charge filed by Inter-
national Brotherhood of Electrical Workers, Local Union
1500 (the Union) on April 9, 1990, alleging generally that
Bartlett Nuclear, Inc. (Respondent) committed certain viola-
tions of Section 8(a)(1)2 and (3)3 of the National Labor Rela-
tions Act, 29 U.S.C. § 151 et seq. (the Act). On October 17,
1990, the Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a complaint and
notice of hearing alleging violations of Section 8(a)(1) and
(3) of the Act. Respondent thereafter filed a timely answer
to the allegations contained within the complaint, denying all
wrongdoing.
All parties appeared at the hearing, and were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and to
file briefs. Based on the record, my consideration of the
briefs filed by counsel for the General Counsel, counsel for
Respondent, and the Charging Party4 and my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a Massachusetts corporation with an office
and principal place of business in Plymouth, Massachusetts,
where at all times material herein it has been engaged in the
3BARTLETT NUCLEAR
5 I do not regard the record as clear on the question of whether
or not the Union sought to establish a unit of employees in one na-
tionwide unit involving employees of Respondent and its competi-
tors, or in nationwide units of each individual employer, or, simply,
to drum up employee support nationwide. Thus, I do not find that
I can conclude that the strike and picketing constituted unprotected
activity, as recognitional picketing or for an illegal purpose.
In any event, Respondent has conceded at trial that the picketing
was protected activity under the Act.
business of providing radiation protection services to nuclear
powerplants throughout the United States, including Califor-
nia; that during the course and conduct of its business oper-
ations, Respondent annually sells and ships goods or services
valued in excess of $50,000 to customers located outside the
State of California.
Accordingly, as Respondent admits, I find and conclude
that Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
As stipulated, Respondent’s business, as concerns this
case, consists of supplying temporary employees to augment
the work forces of various utility companies during their
‘‘outages,’’ for example, when the affected utility company
is, from time to time, shut down for repairs or refueling. Re-
spondent does not employ workers except during times in
which utilities with which it contracts are shut down for
maintenance, such as repairs or refueling.
Utility companies routinely increase their work forces,
more than double, during ‘‘outages.’’ They do so by adding
temporary employees of their own, plus temporary employ-
ees of various employers who perform security services,
maintenance, construction, and radiation protection.
Respondent, from its Massachusetts headquarters, is one
such employer which supplies employees to utilities during
outages. Its work is in the field of radiation protection. It
hires employees who are dosimetry technicians, decontamina-
tion technicians, and health physics technicians. Respondent
keeps a roster of approximately 1200 to 1900 persons who
it employs throughout the United States.
Respondent hires its employees for fixed temporary as-
signments at whatever powerplant is involved in the shut-
down by the utility company with which it contracts. The pe-
riods of employment offered to employees by Respondent
vary from 2 weeks up to a year. At the Diablo Canyon site
outages typically last about 60 days, and are repeated at 18-
month intervals.
Approximately half of the people hired by Respondent
work only for it, with the other half also working for other
employers, competitors of Respondent, which provide tem-
porary radiation protection services to utilities. This last
group travels from plant to plant, though many return to the
same plant repeatedly. The duration of each period of em-
ployment varies greatly, as shown above, due to the vari-
ations in the duration of the outages at the various plants.
Plants typically undergo an outage about once each year.
Employees are typically hired through a process of send-
ing resumes to Respondent and other employers prior to the
completion of their work on whatever outages they happen
to be working on. Indeed, they generally simply ask Re-
spondent to send their resumes on to prospective employers
where Respondent has an upcoming contract. They are hired
only if the affected utility approves of their resume. Once ap-
proved, employees are hired by Respondent, the terms of em-
ployment are agreed upon, and the employees are then sent
to the affected plant for a 2-week training session, conducted
by the affected utility. Present at the training session are em-
ployees of Respondent, as well as any new permanent or
temporary radiation protection employees hired by the af-
fected utility. Security checks are completed during the train-
ing periods, following which the employees are assigned to
perform duties conforming to the utility’s scheduling of out-
age tasks.
Respondent does not have a collective-bargaining relation-
ship with the Union. PG&E employees performing radiologi-
cal protection services at the site were, however, organized
and represented by Local Union 1485 of the IBEW.
B. The Facts Relating to this Case
Respondent began providing radiation protection services
under a contract with Pacific Gas & Electric (PG&E) the
Diablo Canyon, California site operated by PG&E in Feb-
ruary. Respondent’s president has been Bruce Bartlett. Its
site coordinator at Diablo Canyon has been Marc
Shackelford.
The primary function of the site coordinator’s job is to act
as liaison between Respondent and the utility operating the
affected plant concerning administrative duties connected
with Respondent’s employees at the site. The site coordinator
does not act on a daily basis in a supervisory capacity in this
job, but he is admitted to have supervisory authority. Re-
spondent paid the employees, though day-to-day scheduling,
supervision, and training were done by PG&E.
On March 26, during the period in March and April when
about 185 of Respondent’s employees were working on an
outage at Diablo Canyon, the Union called a strike against
Respondent and similar employers, as part of a nationwide
organizing effort.5
Forty of Respondent’s employees at the Diablo Canyon
site of PG&E went out on strike in response to the Union’s
request. A number of them thereafter participated in picket-
ing the site’s front gate with signs reading ‘‘Bartlett refuses
to recognize Local 1500 IBEW.’’
Respondent contends that a couple of days after the strike
began, Respondent was advised by PG&E, through one Rus-
sell Gray, that if the strikers didn’t return to work by March
29, their jobs would be assumed by PG&E’s employees and
the remainder of Respondent’s employees. Respondent fur-
ther contends that this decision by PG&E effectively re-
moved Respondent from any possible liability for the fate of
the strikers, since it had no part in the decision to ‘‘abolish’’
their jobs.
Moreover, during this discussion Gray rejected a proposal
by Respondent to have Respondent bring in additional work-
ers to replace those who were striking, noting that the train-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I cannot agree, because the affidavit shows on its face that Bruce
Bartlett participated greatly in its wording and exercised complete
control over its contents. This is demonstrated by the numerous
changes, corrections, additions, and deletions made in the affidavit. 7 Washington Public Power Supply System.
ing of such workers would take all of the remaining time in
the outage, and by the time training was completed they
would be already in the process of laying off workers in
order to wind down the outage. Thus, Grey regarded Re-
spondent’s proposal in this respect as a futility.
However, it is also true that Bruce Bartlett testified, con-
trary to his testimony at trial, in an investigatory affidavit
that during this discussion,
Between the three of us (Bruce Bartlett, Gray, and
Shackelford), we decided that those pickets who wanted
to return to work by Thursday March 29 (apx 40 em-
ployees were then on strike) could return to their jobs,
but those who chose not to return would be given their
final paychecks & their jobs would be reassigned be-
tween our employees and qualified PG&E employees.
I instructed Shackelford to inform the strikers of this
decision. About 17 strikers returned to work by Thurs-
day afternoon, & the rest were given their final pay-
checks. When they later inquired about their jobs after
the strike, we could not put them back to work because
the work had been reassigned by PG&E, who does all
scheduling, & because we were already in the process
of laying people off.
Respondent argues that Bruce Bartlett’s use of the term
‘‘we’’ in the affidavit is ambiguous and, moreover, merely
the product of the writing of an investigating Board agent.6
Gray also consulted with other PG&E managers, but not
with Respondent, about arranging to borrow 10 employees
from the chemistry department who had been cross-trained in
radiation protection job duties. After determining that such a
plan would be feasible, he decided to carry it out.
According to Respondent’s argument, it was solely
PG&E’s plan which established the elements of:
(1) March 29 as the deadline for returning to the
strikers’ jobs; and,
(2) All who wished could return by that date; and,
(3) Eliminate the position of those who didn’t return
by that date, and cover those job functions with existing
PG&E employees.
It is uncontradicted that the deadline was arrived at after
consideration of the critical path of the outage, making it
necessary that it be established in order to meet the pre-
viously decided on deadline for completion of the outage.
Respondent admits that, at the least, it agreed with Gray
that those employees who failed to return to work by Thurs-
day, March 29, were to be given final paychecks. Respond-
ent, however, argues that it had no choice but to grant its
agreement. Accordingly, as shown above, Bruce Bartlett in-
structed Shackelford to inform the striking employees of this
decision.
Setting about complying with his instructions, on Tuesday,
March 27, Shackelford talked to employees on the picket
line. One of them, Jim Hancock, was clearly known by Re-
spondent as well as strikers as a leader of the strike effort
and as a conduit of information between Respondent and the
strikers. After their talk, Hancock immediately reported to
other employees that Shackelford had told him that the posi-
tion Respondent was taking was that, if the strikers didn’t re-
turn to work by the end of their shift on March 29, their po-
sitions would be ‘‘abolished.’’
On Wednesday, March 28, Shackelford spoke to a group
of about 35–40 strikers at a hotel near the site. Afterwards,
the strikers voted by a small majority not to return to work.
On Thursday morning, March 29, Shackelford admittedly
told a group of picketers that they could go back to work
by Thursday or ‘‘the jobs they filled now, after that Thurs-
day, would go away, so the positions would be abolished.’’
That same day, about 4 or 5 p.m., Shackelford again went
to the picket line and handed out final checks to the 23 strik-
ers remaining on the line, 17 employees having by then re-
turned to their jobs. He first told them that if they accepted
the checks, their positions were ‘‘gone away,’’ that the utility
had replaced them, and their positions had been abolished.
All of the pickets present accepted the checks.
Respondent admits that Shackelford went out to the picket
line to advise the picketing employees of the situation. There,
Shackelford told Jim Hancock that they were free to return
to work by Thursday but, failure to return would result in
PG&E abolishing the positions which Respondent had pre-
viously had pursuant to its contract with PG&E. Respondent
argues that Shackelford told picketing employees that PG&E
had imposed a deadline on it which Respondent was power-
less to alter, that employees who failed to return by March
29 would have their jobs assumed by PG&E employees and
remaining employees of Respondent, leading to a situation
wherein their former positions would no longer be available
during the short time remaining in this outage.
Picketing continued for a few days, before being discon-
tinued permanently around April 4 or 5.
Until about April 30 or May 1, Respondent informed strik-
ers who inquired about employment with Respondent at
other locations where there were, or were about to be, out-
ages that they were not eligible for consideration since they
were on probation for a period of a year.
For example, one employee, Carl Stewart, credibly testi-
fied that he had called Respondent before the strike began
and, in accordance with usual practice, asked that his resume
be sent to another utility for consideration for employment.
He had been assured that it would be done immediately by
express mail. However, still before the strike began, but sev-
eral days later, he again called to check to see if his request
had been carried out, and was told that, since he admitted
that he was involved with the strike, he couldn’t be told
whether or not his resume had been sent. Still later, on
March 30, he called again, and was informed by a recruiter
that he was no longer eligible for any job with Respondent,
and was on 1-year probation for failure to fulfill his contract
at Diablo Canyon.
Another striking employee, John Ware, admittedly unable
to recall much detail but nonetheless credible in what he did
recall, testified that he was told much the same thing as
Stewart had been told in a conversation he had with the
home office in about mid-March, when he sought to be
placed in work at the WPPSS.7 But, upon rechecking on
5BARTLETT NUCLEAR
8 These employees are indicated by an asterisk in the list just pre-
ceding.
9 I disagree with both these contentions. The effect on employees
was substantial, and the recision carried with it no assurances against
repetition, as is afforded employees by this Order.
March 30, Ware was told that his resume was not under con-
sideration by the utility he’d requested it be sent to, and that,
instead, he was on probation for a year.
As noted above, 17 of the strikers abandoned the strike
and returned to work before the deadline. Twenty-three did
not, and are alleged to have been illegally discharged and
placed on probation for a 1-year period. Their names are:
William Armstrong Lief Linden*
Michael Bennett* John Miller*
Leonard Buntele* James Moscarella
Walter Cathcart* James Nelson*
Katherine Cooper Steven Reed*
Leslie Easley* Donald Schelb*
Mark Hankel* Mary Ann Schelb*
David Hatch* Charles Stewart*
David Jones Frank Vargas
Susan Kellar* John Ware*
Thomas Kellar* Dawn Woods*
Rhonda King*
Then, apparently realizing that legal problems might result
from its imposition of ‘‘probation’’ upon strikers, Respond-
ent rescinded its ‘‘probation’’ policy and so notified at least
the great majority of employees it had been applied to. How-
ever, by that time, it is clear that some may well have been
caused to miss out on job opportunities, such as at WPPSS.
About April 30 and May 1 Respondent sent a form letter
to 18 of the strikers who had refused to return.8 The letter
stated that:
As you know, [Respondent] has you on a preferential
recall list for Diablo Canyon Nuclear Plant.
However, we are also interested in obtaining imme-
diate work for you at any of our other locations. Please
call our personnel department at your earliest conven-
ience for details.
You may have been told that you were not eligible
for rehire for up to a year. As you know, this is our
normal policy for personnel who have not completed an
outage (except for compelling personal reasons). We
believe this policy does not apply to your situation and
you are in fact eligible for rehire at any of our work
locations.
General Counsel admits that Respondent thereafter offered
and/or placed a number of the nonreturning strikers in posi-
tions at plants other than the one referred to above as the one
where employment had been sought, as well as that Re-
spondent had by then completed its staffing at the affected
utility.
General Counsel contends that Respondent’s failure to pro-
vide striking employees with bonuses and travel allowances,
in accord with its past practice, amounts to an independent
discriminatory action by Respondent. Respondent contends
that such matters were controlled only by PG&E.
Respondent admits that it placed the employees who failed
to return to work by the deadline on ‘‘probation,’’ but argues
that, since it almost immediately reconsidered and rescinded
this action, any violation found in this regard should be de-
termined to be de minimis.9
C. Findings and Conclusions
The first issue to be addressed is whether the activity en-
gaged in by employees is the sort of activity which is pro-
tected by the Act, under Sections 7 and 8(a)(1). That activity
consisted of resorting to a strike and picket line in order to
demonstrate support of the Union and/or its international af-
filiate.
Through the years the Board has balanced the rights of
employees to organize, and to publicize their organizational
desires by striking and/or picketing, against the legitimate
property right of employers to have their workplaces meet le-
gitimate business needs, such as an obligation to meet a con-
tractual or fiscal deadline. It should go without saying that
employee rights to strike, or picket, are among those which
rank at or near the top of any litany of employees’ rights.
Accordingly, they are among those ordinarily protected by
Section 7 of the Act.
The Board will not find picketing which does not proceed
for an unreasonable length of time to be unlawful, even if
it could be argued that it was for recognition in a unit which
is contrary to Board policy (which I have found unsupported
by this record), Teamsters Local 115, 157 NLRB 588 (1966),
so long as the picketing is not for the purpose of securing
a statutorily prohibited unit, which no party even claims to
be the case here. Teamsters Local 71 (Wells Fargo), 221
NLRB 1240 (1975); Dunbar Armored Express, 211 NLRB
687 (1974).
Here, as shown above, Respondent had conceded that the
activity of the employees in this respect was protected by the
Act.
Accordingly, I find and conclude that the activity of em-
ployees in striking and picketing Respondent’s Diablo Can-
yon jobsite was protected activity, and within the penumbra
of Sections 7 and 8(a)(1) of the Act. It follows that the em-
ployer’s motivation must be examined in order to determine
whether or not it was unlawful.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie show-
ing sufficient to support the inference that protected conduct
was a ‘‘motivating factor’’ in the employer’s decision.
Second, upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The United States Supreme Court approved and adopted
the Board’s Wright Line test in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
I find that this case is one to which Wright Line has appli-
cation, contrary to Respondent’s position, inasmuch as the
motivation of Respondent is clearly in question. Respondent
seeks to limit the inquiry about motivation solely to the issue
of whether or not Respondent controlled the question of
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The record is inadequate to determine whether or not employees
were in fact deprived thereby of benefits such as travel pay and/or
bonuses in this case. However, I should note that I believe Respond-
ent was given adequate notice of the possibility of such questions
being injected into this case, simply because whenever a violation
of Sec. 8(a)(3) is found it follows that a make-whole remedy should
be considered appropriate. Accordingly, while the record here is in-
adequate to determine just who, if anyone, is actually entitled to be
made whole in these specific respects, I wish to be clearly under-
stood as deciding that such matters are among those to be considered
in the compliance stage of these proceedings, along with any other
appropriate ‘‘make whole’’ issues as may exist.
whether or not the job was to be continued or finished by
resort to replacement workers, arguing that Respondent had
no such control. I find that focus too narrow. The true issue
is whether or not Respondent’s motivation in acting to advise
employees that their jobs were ‘‘terminated’’ or had ‘‘gone
away,’’ or that employees who failed to abandon the strike
by March 29 were on probation for 1 year (and thereafter
failing and refusing to forward their resumes for consider-
ation by prospective sources of employment) was solely
business related.
Here the circumstantial background for Respondent’s deci-
sion includes its failure to confine itself carefully to a lawful
response to its employees protected activities. Instead it ad-
vised them that their continuation would necessitate imposi-
tion of a punishment simply not required by the cir-
cumstances, i.e., abolition of their jobs and placement upon
probation. Respondent could and should have resorted to less
harsh and inherently threatening statements and actions, i.e.,
advising strikers, truthfully and legally, that they could be re-
placed if they persisted in striking past a date where business
needs would require the employment of alternative means of
completing the work which was then underway, and then
doing so.
As found above, employees credibly testified to statements
made to them by Shackelford about the fact that their jobs
would be abolished if they failed to return to work, abandon-
ing their protected activity of striking and picketing, by a
date certain. These statements are not protected by Section
8(c) of the Act, because they go too far and, to that extent,
are not truthful. The Board and I are bound to follow the
standard set by the Supreme Court in NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969), where the Court stated that,
in determining whether an employer’s statements constitute
lawful predictions or unlawful threats, ‘‘the prediction must
be carefully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable con-
sequences beyond his control.’’
I find that Respondent failed to abide by this rule. Instead
of advising that employees’ jobs would be subject to replace-
ment it simply stated that the jobs would be abolished, or
would go away.
I do not find the distinction so trivial as is urged by Re-
spondent. Employees such as those involved here are clearly
interested in, and routinely do, find employment for short pe-
riods of time. That the time remaining for them to complete
the work on the outage was short, and would have, had the
strike persisted,disappeared entirely within 2 or 3 weeks at
the most, does not mean that employees would have no le-
gitimate interest in whatever work there might have been, if
any, remaining to be done whenever they chose to abandon
their strike. Certainly, that interest on the part of such work-
ers is not de minimis.
Neither I nor anyone else can demonstrate that PG&E was
not in control of the decision to utilize replacement workers
and revise schedules in order to ensure the timely completion
of the work on its outage. That is its right, just as in any
strike situation the employer has the option of securing re-
placement workers in order to continue with its business.
But, the fact that nature (in this case, PG&E) was about to
take its course could have been communicated to employees
by the use of ‘‘carefully phrased’’ words, without at the
same time threatening employees with the loss of the entirety
of their rights connected with the jobs. I find and conclude
that the failure to do so, and the chosen utilization of inher-
ently threatening words concerning those residual job rights
amounted to coercion, and is therefore violative of Section
8(a)(1) of the Act.
In this case, given the close proximity in time of the viola-
tions of Section 8(a)(1) to the engagement in the protected
activities, and the animus demonstrated thereby, I conclude
that the General Counsel has made a prima facie case that
employees were given ‘‘final’’ paychecks, with the under-
standing that their jobs were ‘‘terminated,’’ and that employ-
ees were placed on probation for a 1-year period (and, there-
fore, denied referral or forwarding of their resumes, which
were needed for consideration as prospective employees at
other utility outages) because they had engaged in the pro-
tected activity of striking and picketing Respondent’s jobsite
at Diablo Canyon.10
The question of whether or not Respondent has succeeded
in rebutting the prima facie case of General Counsel is an-
swered in the negative simply by looking at the same facts
set out above.
PG&E was doubtless possessed of full authority to deter-
mine to press forward with its completion of work on the
outage of the Diablo Canyon plant. And Respondent was
doubtless as free of influence upon the making of that deci-
sion as it portrays itself to be. The fact remains that Re-
spondent could have and, under the guidelines in Gissel,
should have done far less than it chose to do. That is the dis-
tinguishing factor between this case and the case cited by
Respondent’s brief, Power Plant Maintenance Co., 286
NLRB 205 (1987).
I find and conclude that Respondent’s actions in present-
ing employees with final paychecks, in ‘‘abolishing’’ their
jobs when they failed and refused to abandon their protected
activity of participation in the strike and picketing, and in
placing them on probation for such failure and refusal by
them, all constitute violations of Section 8(a)(3) and (1) of
the Act. I so find and conclude.
Accordingly, I find and conclude that counsel for the Gen-
eral Counsel has proven each of the allegations of illegal ac-
tions made and contained in the complaint against Respond-
ent, and I shall order an appropriate remedy for all such ille-
gal actions.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by
threatening to abolish the jobs of employees if they did not
7BARTLETT NUCLEAR
11 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
12 See Sterling Sugar, 261 NLRB 472 (1982).
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
abandon their strike and return to work for Respondent by
a certain date.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging and abolishing the jobs of, and by placing on
probation, its employees, William Armstrong, Michael Ben-
nett, Leonard Buntele, Walter Cathcart, Katherine Cooper,
Leslie Easley, Mark Hankel, David Hatch, David Jones,
Susan Kellar, Thomas Kellar, Rhonda King, Lief Linden,
John Miller, James Moscarella, James Nelson, Steven Reed,
Donald Schelb, Mary Ann Schelb, Charles Stewart, Frank
Vargas, John Ware, and Dawn Woods because they had par-
ticipated in a strike and picketing of Respondent, each of
which is an activity entitled to protection under the Act.
4. The above unfair labor practices have an effect on com-
merce as defined in the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the above-named employees were un-
lawfully discharged, that the jobs of the above-named em-
ployees were abolished, and that the above-named employees
were placed on probation, Respondent is ordered to offer
each of them immediate reinstatement to his or her respective
former position, displacing if necessary any replacement or,
if not available, to a substantially equivalent position without
loss of seniority and other privileges. It is further ordered
that each of the employees named above be made whole for
lost earning resulting from the unlawful actions taken against
him or her, by payment to him or her of a sum of money
equal to that she would have earned from the date of dis-
charge, to the date of a bona fide offer of reinstatement, less
net interim earnings during that period. Backpay shall be
computed in the manner prescribed by F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).11 Interest on any such backpay shall be com-
puted as in New Horizons for the Retarded, 283 NLRB 1173
(1987).
It is further ordered that the Respondent expunge from its
records any references to the unlawful actions it took against
each of the employees named above, and provide each of
them with written notice of such expunction, and inform him
or her that the Respondents’s unlawful conduct will not be
used as a basis for further personnel actions against him or
her.12
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Bartlett Nuclear, Inc., Diablo Canyon,
California, and Plymouth, Massachusetts, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Advising, warning, threatening, or otherwise imparting
to employees that their jobs will be abolished if they do not
abandon their engagement in a strike and picketing, or other
activities protected by the Act.
(b) Discharging, placing on probation, or abolishing the
jobs of employees, or otherwise restraining, coercing, or
interfering with their exercise of rights guaranteed by Section
7 of the Act, because they have engaged, together with other
employees, in a strike and/or picketing, or have joined or
supported any labor organization, or otherwise joined with
other employees in attempts to better or retain their rates of
pay, wages, hours of work, or other terms and conditions of
employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the above-named employees immediate and full
reinstatement to their respective former jobs or, if that job
no longer exists, to a substantially equivalent position, with-
out prejudice to seniority or any other rights or privileges
previously enjoyed, and make each employee whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against him or her, in the manner set forth in
the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges, abolishment of jobs, or placement on probation
of the above named employees, and notify each employee in
writing that this has been done and that the actions taken
against them will not be used against them in any way in
the future.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Plymouth, Massachusetts, and
mail to each affected employee, named above, copies of the
attached notice marked ‘‘Appendix.’’14 Copies of the notice,
on forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized representa-
tive, shall be mailed to each affected employee (with proof
of mailing provided to the Regional Director), and shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, place on probation, or abolish the
jobs of employees because they have engaged in activities
protected by the Act, including striking and/or picketing.
WE WILL NOT advise, threaten, warn, or otherwise let em-
ployees know that they are subject to having their jobs abol-
ished or discharged if they do not abandon their engagement
in activities protected by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer William Armstrong, Michael Bennett,
Leonard Buntele, Walter Cathcart, Katherine Cooper, Leslie
Easley, Mark Hankel, David Hatch, David Jones, Susan
Kellar, Thomas Kellar, Rhonda King, Lief Linden, John Mil-
ler, James Moscarella, James Nelson, Steven Reed, Donald
Schelb, Mary Ann Schelb, Charles Stewart, Frank Vargas,
John Ware, and Dawn Woods, and each of them, immediate
and full reinstatement to their respective former jobs or, if
that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make each of
them whole for any loss of earnings and other benefits result-
ing from the actions we took against them, less any net in-
terim earnings, plus interest.
WE WILL notify each employee named above that we have
removed from our files any reference to any action we took
against him or her, and that no such action will be used
against him or her in any way in the future.
BARTLETT NUCLEAR, INC.