California Distribution Centers

National Labor Relations Board - Board Decisions

Jul 30, 1992

308 N.L.R.B. 64 (N.L.R.B. 1992)

64
308 NLRB No. 11
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 15, 1992, Administrative Law Judge David G.
Heilbrun issued the attached decision. The Respondent filed excep-
tions and a supporting brief and the General Counsel filed excep-
tions with supporting argument.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 There are no exceptions to the judge’s resolution of the 10(b)
issue.
3 The General Counsel contends in its exceptions that the judge
erred in failing to find that the Union made an unconditional offer
to return to work on October 31, 1988, and that, therefore, the Re-
spondent unlawfully failed to reinstate the strikers to all positions for
which other employees were hired on October 31, 1988, and there-
after. The General Counsel further contends that the Respondent’s
failure to reinstate the economic strikers following their uncondi-
tional offer to return to work converted the employees’ economic
strike into an unfair labor practice strike. We find no merit in these
contentions.
The General Counsel’s contentions seek to raise matters occurring
well outside the 10(b) period. The charge was filed on April 18,
1990. Therefore, the complaint could reach only those refusals to re-
instate which occurred after October 18, 1989.
The Respondent filed a letter in response to the General Counsel’s
exceptions which stated, in part, that it was not until November 1,
1988, that the Union, by telegram of that date, submitted its uncon-
ditional offer to return to work. The General Counsel filed a motion
to strike that part of the Respondent’s letter which referred to the
purported November 1, 1988 telegram, on grounds that the telegram
was not offered into evidence by the Respondent at the hearing and
that the judge had granted the General Counsel’s motion to strike
the purported telegram, which had been attached to the Respondent’s
brief to the judge. In agreement with the judge, we find the disputed
part of Respondent’s letter to constitute ‘‘an irregular attempt to en-
large this record,’’ and we grant the General Counsel’s motion to
strike.
4 The Respondent contends, inter alia, that certain findings made
by the judge demonstrate that his decision is ‘‘rampant’’ with bias.
On our review of the judge’s decision, we find no evidence of bias
in his analysis and discussion of the evidence, or in his findings.
5 In November 1989 the Respondent withdrew recognition from
the Union, and the Union’s unfair labor practice charge regarding
this withdrawal of recognition was dismissed by the Regional Direc-
tor.
6 As noted above, there were also driver-warehousemen who had
been on strike. The Respondent did not reoffer any of the seven po-
sitions to them. However, the General Counsel does not contend that
this failure was unlawful.
7 Brooks Research & Mfg., 202 NLRB 634, 636 (1973). See also
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). Laidlaw
Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969),
cert. denied 397 U.S. 920 (1970).
California Distribution Centers, Inc. and Thomas
DeAnda, Jr. Case 20–CA–23301
July 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the issue of whether the Respondent has vio-
lated Section 8(a)(3) and (1) of the Act by failing to
reinstate economic strikers on their unconditional offer
to return to work.2
The Board has considered the decision and the
record in light of the exceptions3 and briefs and has
decided to affirm the judge’s rulings, findings,4 and
conclusions only to the extent consistent with this De-
cision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) by failing and refusing to offer re-
instatement to 12 economic strikers as their former po-
sitions became available following the strike’s termi-
nation. On review of the record, we disagree with the
judge and find that the Respondent did not violate the
Act by failing to reinstate the strikers.
The Respondent operates a public warehouse and
storage facility in Sacramento, California, where it
stores merchandise pending delivery to customers lo-
cated primarily in the northern part of the State. Until
November 1989, the Union was the representative of
the Respondent’s employees classified as warehouse-
men and driver-warehousemen.5
In April 1988, negotiations between the parties
began for a new collective-bargaining agreement. Ap-
proximately six bargaining sessions were held between
that date and October 27, 1988, when the Union com-
menced an economic strike. The Union terminated the
strike less than a week later and unconditionally of-
fered to return to work. The Respondent, having per-
manently replaced its work force during the strike, de-
clined to reinstate any strikers at that time.
Operating with permanent replacements, more than a
year passed before the Respondent hired another em-
ployee. In early November 1989, the Respondent noti-
fied former strikers on its ‘‘driver-warehouse part of
the preferential hiring list’’ that a position was avail-
able. Only one former striker responded and he was
hired on November 13. Thereafter, seven additional
positions became available beginning on December 11,
1989, and continuing through November 26, 1990. The
Respondent filled them all with driver-warehousemen
obtained from ‘‘off the street’’ rather than with the
warehousemen on its preferential hiring list.
The issue in this case is whether the Respondent un-
lawfully failed to offer the seven positions to the ware-
housemen who had been on strike. We conclude that
the Respondent did not violate the Act in this respect
because we agree with the Respondent that it had le-
gitimate and substantial business justifications for
eliminating warehousemen positions.6
It has long been held under Board law that eco-
nomic strikers who unconditionally apply for reinstate-
ment when their positions are filled by permanent re-
placements are entitled to full reinstatement on the de-
parture of the replacements or when substantially
equivalent 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.7 The
65CALIFORNIA DISTRIBUTION CENTERS
8 Subsequently redesignated as a class A license.
9 For example, Willamette Industries, a just-in-time customer of
the Respondent before the strike, supplied Hewlett Packard with
computer paper. At a moment’s notice, a call from Hewlett Packard
to Willamette for paper required the Respondent to immediately pick
up the paper at Willamette and deliver it to Hewlett Packard. The
record does not indicate what percentage of the Respondent’s deliv-
eries involved the ‘‘just-in-time’’ method.
10 Driver-warehouseman Bill Haslett did not strike.
11 Six warehousemen and three driver-warehousemen left the Re-
spondent’s employ during this period, and Harold Amberson re-
turned from disability.
Respondent asserts that it failed to recall the striking
warehousemen because their jobs were, in effect,
eliminated as a result of a poststrike change in its
method of operations. Accordingly, the Respondent
urges that it has satisfied its burden of showing a sub-
stantial and legitimate business justification for its fail-
ure to offer reinstatement to the warehousemen.
Prior to the strike, the duties of the Respondent’s
warehouse employees included traditional functions
such as filling orders, loading and unloading trucks, ro-
tating stock, and attending to customers who came to
pick up merchandise orders. When work was slow,
they cleaned the facility. The driver-warehousemen
also performed warehouse work but spent most of their
time (approximately 75 percent) making merchandise
deliveries in 48-foot-long tractor-trailers. Under Cali-
fornia law the driver-warehousemen were required to
have a class I drivers license8 to operate the tractor-
trailers.
Deliveries by the Respondent both before and after
the strike were traditionally made on a scheduled basis.
The Respondent also made deliveries pursuant to the
‘‘just-in-time’’ method, a system in which a company
uses the Respondent to deliver goods, on an immediate
basis, from that company to a customer of that com-
pany. Under that system, the Respondent provides no
warehousing services. It provides only rapid transpor-
tation services.9
On the day of the strike, the bargaining unit was
made up of 12 warehousemen and 8 driver-warehouse-
men, including laid-off driver-warehousemen Fred
Auld and Harold Amberson. (Amberson was on dis-
ability leave.) During the 5- or 6-day period of the
strike, the Respondent hired 18 replacement ware-
housemen, 4 replacement driver-warehousemen, and
recalled Auld from layoff.10 Operations continued es-
sentially unchanged for the next 12 months, during
which time no additional hiring took place.11
In November 1989, Mark Container, a new customer
which operated on the just-in-time system, began doing
business with the Respondent. At this time, a position
was offered to all driver-warehousemen on the pref-
erential hiring list. Pat McCarthy was the only one to
respond, and he was hired on November 13, 1989.
Thereafter, there were seven consecutive ‘‘off-the-
street’’ hirings of driver-warehousemen. The judge
found that these positions should have been filled by
warehousemen who had been on strike.
The Respondent relies on the addition of Mark Con-
tainer as a new customer in November 1989 to support
its defense for hiring driver-warehousemen ‘‘off the
street’’ rather than former warehousemen off the hiring
list. In this regard, Mark Container was described as
a ‘‘major’’ new just-in-time client whose acquisition,
according to Warehouse Supervisor C. J. Standridge,
‘‘put more [stress] on us because they had a lot of un-
scheduled deliveries.’’ Bill Haslett, a driver-ware-
houseman before and after the strike, corroborated
Standridge in this respect, explaining that ‘‘our drivers
go out in the morning. If we get one in the afternoon
[i.e. an order from Mark Container], we’re sunk. We
don’t have a driver.’’ The Respondent argues that as-
signing a ‘‘pure’’ warehouseman to make the delivery
was clearly not an option because warehousemen did
not possess the requisite class I licenses to drive the
tractor-trailers.
Thus, the Respondent asserts that it made little busi-
ness sense to recall the warehousemen because they
were not needed, and without class I licenses, were le-
gally unqualified to make deliveries. Rather, as stated
by Vice President Jim Fletter, the conditions under
which the Respondent now operated, compared to be-
fore the strike, mandated greater flexibility, ‘‘and we
felt very strongly that it was very important that we
move in the direction of having more
driver/warehousemen. . . . We now have the oppor-
tunity to use people as drivers and in the warehouse.’’
Standridge explained that the new predominance in
driver-warehousemen to service Mark Container fur-
ther enabled the Respondent to operate with greater ef-
ficiency because it would now have a larger pool of
driver-warehousemen from which to reassign an em-
ployee doing warehouse work to an emergency Mark
Container delivery, or to other unscheduled customer
deliveries. For example, Standridge explained that
‘‘[i]f I have one person that’s a driver-warehouseman
and he’s taking fiscal inventory,’’ he would not ‘‘pull
him off the fiscal inventory to drive the truck’’; in-
stead, he would simply select another driver-ware-
houseman performing less important work to make the
delivery. Haslett concurred that, although there are
more unscheduled runs now than before the strike, the
company is ‘‘running more efficiently now than before
the strike . . . because we have more drivers now, and
you know more people that we can count on hauling
the loads up.’’
The judge found the foregoing testimony too
‘‘vague’’ and ‘‘superficial’’ to establish that changed
business conditions after the strike required the hiring
of more driver-warehousemen and the elimination of
warehousemen jobs. Accordingly, the judge concluded
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The judge mistakenly referred to this individual as Scott Hamil-
ton.
13 In regard to the latter finding, the only relevant testimony came
from Standridge who stated, ‘‘I don’t personally keep track of it [the
amount of time driver-warehousemen spend driving] but it could be
anywhere from fifteen minutes to a full day depending on the needs
of that particular, the person et cetera.’’
14 The judge in his analysis cited two articles from ‘‘Forbes Maga-
zine’’ and ‘‘Business Week’’ depicting the just-in-time delivery sys-
tem as ‘‘standard procedure’’ in many industries and thus was ‘‘not
so radically new that Respondent was likely free of some effect of
it well prior to the strike.’’ Neither of these articles was submitted
into the record or referred to at the hearing. Even if we were to con-
sider this nonrecord evidence, the fact remains that, regardless of
how widespread just-in-time delivery may have been in the business
community or its effect on the Respondent’s prestrike operations, the
Respondent established that when it added Mark Container as a sec-
ond just-in-time customer in November 1989, it was justified in hir-
ing seven more driver-warehousemen rather than recalling the ware-
housemen.
15 Id. at 1077, quoting Certified Corp., 241 NLRB 369 (1979).
[Emphasis in original.]
that the Respondent failed to prove a business defense
for refusing to recall the warehousemen.
Contrary to the judge, we find that the Respondent
has demonstrated a legitimate and substantial business
justification for eliminating the warehousemen jobs.
Through the specific testimony of its management offi-
cials, which we find neither vague nor superficial, the
Respondent established that Mark Container was a
major poststrike acquisition which, because of its just-
in-time delivery needs, could not be serviced with the
same driver-warehousemen/warehousemen ratio that
existed before the strike. As the record makes clear,
the nature of just-in-time delivery requires to some de-
gree the adoption of an ‘‘on-call’’ approach in order
to adequately respond to unscheduled delivery re-
quests. As a result, the Respondent needed more per-
sonnel possessing tractor-trailer driving qualifications
who could be utilized in the warehouse while on stand-
by to make a delivery. We are thus satisfied that the
Respondent has established that acquiring Mark Con-
tainer required the enhancement of its operational
flexibility by adjusting its employee composition to in-
clude a greater number of driver-warehousemen and
fewer warehousemen, and that these changed business
conditions justified the elimination of many of the
warehousemen jobs. See Atlantic Creosoting Co., 242
NLRB 192 (1979).
The judge’s basis for rejecting the Respondent’s de-
fense does not withstand scrutiny. The judge credited
the Respondent’s economic reasons for failing to rein-
state the warehousemen, but was not ‘‘persuaded’’ by
them for several reasons. First, he questioned the Re-
spondent’s asserted need to increase the number of
driver-warehousemen after the strike in light of
Fletter’s and Standridge’s ‘‘concession’’ that even be-
fore the strike there had always been a shortage of
driver-warehousemen. We do not find that the Re-
spondent’s failure to alleviate the prestrike shortage of
driver-warehousemen detracts from its proffered de-
fense, since there is no evidence that its delivery busi-
ness was as demanding before the strike as it became
after the strike with the addition of the just-in-time de-
livery requirements of its newly acquired customer
Mark Container.
The judge was also skeptical of the Respondent’s
claim of improved efficiency after the strike when, as
he found, newly hired driver-warehousemen drove as
little as 15 minutes a day, driver-warehouseman Scott
Hambleton12 was used exclusively in the warehouse,
and Amberson spent an entire month working in the
warehouse. There is no record support, however, for
the judge’s finding that Hambleton spent his entire
time working in the warehouse nor for a finding that
the driver-warehousemen generally spend as little as 15
minutes a day after the strike driving a truck.13 Finally,
although the Respondent used Amberson for a whole
month in the warehouse, the judge failed to acknowl-
edge that this took place in March 1989—8 months be-
fore the operative event giving rise to the Respond-
ent’s defense, i.e., the acquisition of Mark Container as
a customer.14
We further find that the Respondent had no obliga-
tion to reinstate the warehousemen to available driver-
warehousemen positions. In Rose Printing Co., 304
NLRB 1076 (1991), the Board recently reaffirmed the
principle that an employer’s ‘‘obligation is to return
[economic] strikers to their former positions or sub-
stantially equivalent ones if and when such positions
are available.’’15 The Board in Rose Printing held that
the respondent therein did not violate the Act by fail-
ing to offer three economic strikers vacancies which
they were qualified to fill but which were not substan-
tially equivalent to their former jobs. Here, the Re-
spondent established not only that the driver-ware-
housemen jobs were not substantially equivalent to
warehousemen jobs but also that the warehousemen
were unqualified to fill those positions because they
lacked the necessary class I drivers licenses.
In sum, for the reasons stated above we find that the
Respondent has satisfied its burden of showing a sub-
stantial and legitimate business justification for its fail-
ure to offer reinstatement to the striking warehouse-
men, and that it did not violate Section 8(a)(3) and (1)
by failing to recall the warehousemen.
ORDER
The complaint is dismissed.
Donald R. Rendall, for the General Counsel.
N. Paul Shanley, of Sacramento, California, for the Respond-
ent.
67CALIFORNIA DISTRIBUTION CENTERS
1 I reserved ruling on the General Counsel’s posthearing motion to
strike all attachments to Respondent’s brief. No written opposition
to this motion has been filed, and the documents so attached con-
stitute an irregular attempt to enlarge this record. I find no justifica-
tion to allow such enlargement in the manner attempted. For this
reason, and consistent with findings and conclusions relative to the
case as written below, I now grant the General Counsel’s motion to
strike.
2 All dates and named months hereafter are in 1988 unless other-
wise indicated.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried at Sacramento, California, on December 20, 1990.
The charge was filed by Thomas DeAnda Jr. on April 18,
1990, and the complaint was issued June 1, 1990. The pri-
mary issue is whether California Distribution Centers, Inc.
(Respondent) failed and refused to reinstate economic strik-
ers to their former or substantially equivalent positions of
employment in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by the General Counsel and Respondent,1 I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in West Sacramento, California, where it has been
engaged in the operation of a public warehouse and storage
facility. In the course and conduct of Respondent’s business
operations, it annually purchases goods and services valued
in excess of $50,000 directly from points outside the State
of California. On these admitted facts, I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that International
Brotherhood of Teamsters, Chauffeurs, Warehousmen and
Helpers of America, Local 150, AFL–CIO (the Union) is a
labor organization within the meaning of Section 2(5).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
Respondent’s business is to store, load as ordered, and de-
liver merchandise throughout points primarily located in
northern California’s central valley. The Union had rep-
resented warehousemen and driver-warehousemen engaged in
these functions. These parties negotiated for a collective-bar-
gaining agreement during the course of several meetings
spanning Aprilto late October 1988. The process did not
yield a contract, and a resultant economic strike by prac-
tically all represented employees commenced on October 27,
1988. Respondent immediately commenced hiring permanent
replacements for the strikers and operated uninterruptedly.
After several days an unconditional offer to return to work
was made by the striking employees; however, none were re-
instated at that time. During the course of employee turnover
in the years 1989 and 1990, Respondent shifted to the pre-
dominant utilization of driver-warehousemen, but without of-
fering reinstatement to any of the strikers classified only as
warehousemen. Charging Party DeAnda is 1 of 12 individ-
uals so classified, including the work leaders, who had of-
fered their services back but were never called.
B. Case Facts
1. Prestrike matters
Respondent had a fleet of delivery vehicles comprising
seven tractor trailers or ‘‘big rigs,’’ two bobtail trucks, and
a van. A class 1 (recently redesignated class ‘‘A’’) license
was required for all off-premises driving of the big rigs. A
standard operator’s license sufficed to drive the bobtails or
van. Possession of the Class 1 license distinguished driver-
warehousemen from warehousemen as to title, pay scale, and
scope of duties performed. Those classified as warehousemen
performed shipping and receiving function that included fill-
ing orders, loading and unloading trucks, taking inventory,
rotating stock, and helping will-call customers, plus the per-
formance of janitorial duties when work was slow. The driv-
er-warehousemen spent a majority of their time, up to an es-
timated 75 percent of the workweek, in delivery driving.
Their remaining time was spent doing the same warehouse
work as performed by DeAnda and others of his classifica-
tion.
Respondent’s management hierarchy at this point was Co-
Owner Norvan Travis, Vice President Jim Fletter, and Ware-
house Supervisor C. J. Standridge. Respondent’s length of
operating history is known in terms of driver-warehouseman
Bill Haslett, the sole nonstriker as among active employees
on October 27, 1988, having worked there for 32 years.
Also, Fletter testified that his position dates from the time
Respondent ‘‘came together’’ as the current entity in 1974.
2. The immediate strike replacements
The strike commenced at noontime, and by next day Re-
spondent was running a classified advertisement for perma-
nent replacements with a ‘‘labor dispute in progress.’’2 This
resulted in the hiring of 4 driver-warehousemen on the dates
October 28 and October 29, plus the additional hiring of 11
warehousemen on October 28, another 6 on October 31 and
1, Dennis Leverenz, on November 1. None of the warehouse-
men hired as strike replacements held a class 1 operator’s li-
cense.
3. Employment changes of 1989–1990
The employment of five replacement warehousemen and a
driver-warehousemen ended on January 10, 1989. During the
balance of 1989 two additional warehousemen and a driver-
warehouseman terminated.
The situations of driver-warehousemen Fred Auld and
Harold Amberson were individualized, in the sense that they
had been employees on layoff and disability leave, respec-
tively, at the time of the strike. Auld was recalled along with
the other immediate replacements and he later terminated on
October 5, 1989, while Amberson came off disability in
March 1989 and remained until July 3, 1990.
In late 1989 Respondent filled an opening in the classifica-
tion of driver-warehousemen. It offered such a position in
turn to persons on the preferential rehiring-of-strikers list, but
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 At about this same time Respondent notified warehousemen on
its reinstatement list about the possibility that openings for
‘‘lumper,’’ a position strictly involving the unloading of loose mer-
chandise from a truck and paying $3 per hour under warehouse
scale, might materialize. The prospect eventually faded out as a busi-
ness matter, making it that all cross-contacts that had occurred were
inconclusive. I do not see sufficient significance to the subject for
further treatment, beyond noting the possible and temporary variation
from Respondent’s traditional utilization only of warehousemen and
driver-warehousemen.
only Pat McCarthy accepted and he returned effective No-
vember 13, 1989. Respondent thereafter undertook ‘‘off the
street’’ hiring of driver-warehousemen for additional open-
ings as they occurred, and over the course of December 11,
1989, to November 26, 1990, added seven individuals of this
class to its work force. Other changes toward completing a
summary of employee turnover in 1990 were when again two
warehousemen and a driver-warehousemen terminated. This
latter individual was Jeff Schoepflin, whose particular cir-
cumstances will be treated below.
4. Operational matters
Respondent strove to improve ‘‘flexibility’’ of its delivery
system by consciously increasing the predominance of class
1-licensed driver-warehousemen as compared with a prestrike
ratio to warehousemen. This objective was described by both
Fletter and Standridge in their testimony. It was reflected
most prominently in the exclusive hiring of only new driver-
warehousemen, beginning with Graig Galland on December
11, 1989, and continuing up to a total of seven by late 1990.
The objective was generally based on new customer ex-
pectations as to promptness of delivery, a related increase in
unscheduled delivery requests, and the poststrike acquisition
of Mark Containers as a major customer. The new predomi-
nance of driver warehousemen made it more likely that sud-
den unscheduled delivery requests from Mark Containers, or
any of Respondent’s established customers, could be carried
out by simply pulling qualified driver-warehousemen away
from warehouse duties. As to a generally more strict allow-
ance for delivery time by business users, this same predomi-
nance allowed the added number of truckdrivers that might
be needed for most efficient deployment each day. Haslett
also testified that he considers the facility running ‘‘more ef-
ficiently’’ at present, as contrasted with prestrike conditions.
5. Other considerations
Respondent’s smaller vehicles are unsuited by range or ca-
pacity to its main delivery services. In fact, the industry trend
is toward even larger rigs. Consistent with this Respondent
acquired 53-foot trailers subsequent to the strike, in pref-
erence to the 48-footers previously in common use. On the
other hand skills and ability necessary to acquire a class 1
license do not automatically guarantee that every required
task of driver-warehousemen can be accomplished. This was
the situation of Schoepflin, the person hired August 27,
1990, as next-to-last among the driving group taken ‘‘off the
street’’ that year. Standridge soon found he had no knack for
backing a rig as routinely required in the job. Respondent’s
adjustment to this limitation was to use Schoepflin only in
the warehouse. He was ultimately replaced by Eric Brewer,
after a 1-week overlap between the two of them.
The last collateral subject of note concerns testimony of
Amberson about a remark he overheard Ralph Hammond
make to another driver in the dispatch office during June
1990.3 According to Amberson, the driver had questioned
why he was being put in the warehouse, and Hammond an-
swered how it was a rotation of drivers to ‘‘justify [their uti-
lization] to the Labor Board.’’ Hammond had been hired in
October as an immediate permanent strike replacement, and
became one of three individuals designated as warehouse
work leaders. Standridge testified that the poststrike function
of this group was the same as previously performed by strik-
ers Michael Luck and Michio Nakamura, who were each
classified in the last labor contract as a foreman and paid 50
cents per hour more than the regular warehousemen.
C. Discussion
1. Section 10(b)
Respondent raises the ‘‘6-month statute of limitations’’ in
its brief, contending that DeAnda can only complain of re-
placements hired during the strike. On this basis Respondent
believes DeAnda is time-barred by the 6-month count prior
to the filing of a charge which Section 10(b) of the Act pro-
vides.
The point is controlled by settled doctrine, current to the
present time and well exemplified in Strick Corp., 241
NLRB 210 fn. 1 (1979). That case reaffirmed ‘‘established
Board precedent’’ that notice to adversely affected strikers
must be ‘‘clear and unequivocal,’’ with the burden of so
showing on the party raising Section 10(b) as an affirmative
defense. Even closer precedent is found with Great Lakes
Chemical Corp., 298 NLRB 615 (1990), in which applicants
as to whom 8(a)(3) and (4) violations were committed were
never told (‘‘not expressly denied employment’’) that they
would not be hired and, contrarily, were led to believe that
they were still being considered for employment (‘‘their ap-
plications continued to be on file’’). In these circumstances
the Board held that no ‘‘clear and unequivocal notice’’ of the
unfair practices, given within 6 months of the filing of the
charge, had been shown.
Here neither DeAnda nor other replaced warehousemen
were given notice of any nature that the shift to class 1-li-
censed employees had been made by Respondent. The
prestrike negotiations provided no glimmer of such an intent,
and nothing in the more than 2-year period that followed
gave individuals in this group any indication they were
viewed as lacking a specific attribute needed for reinstate-
ment consideration. On these grounds I reject Respondent’s
Section 10(b) defense, and find the complaint to have issued
on a timely charge. Accord: Oregon Steel Mills, 300 NLRB
817 (1990).
2. The merits
The case directly invites an application of Supreme Court
rationale as set forth in NLRB v. Fleetwood Trailer Co., 389
U.S. 375 (1967). As relevant here that case required an em-
ployer showing of ‘‘legitimate and substantial justification’’
for refusing to reinstate economic strikers to their former
jobs. The court approvingly noted, but found unnecessary to
apply, a refinement of this principle under which such a re-
fusal might properly be based on ‘‘substantial and bona fide
69CALIFORNIA DISTRIBUTION CENTERS
4 Driver-warehousemen Auld terminated October 5, 1989, as did
Greene and Amberson in February and July 1990, respectively.
5 The just-in-time system is not so radically new that Respondent
was likely free of some effect of it well prior to the strike. In the
article Are Inventories Really Under Control?, BUS. WK., July 31,
1989, pg. 71, the writer observes that ‘‘over the past 5 years’’ auto
parts suppliers have greatly reduced production runs with a key rea-
son being ‘‘the greater flexibility offered by just-in-time systems’’
(emphasis supplied). A related article on inventory accounting meth-
ods in FORBES, May 15, 1989, p. 128, carries in its subheading that
‘‘Just-in-time manufacturing is standard procedure in many indus-
tries. . . .’’ (Emphasis supplied.) Again the connotation here is that
an established motor carrier should have found just-in-time as a
business reality well before late 1988.
reasons,’’ such as ‘‘the need to adapt to changes in business
conditions or to improve efficiency.’’
The issue of when the strike actually ended by commu-
nication of an unconditional offer that all striking employees
would return to work cannot be directly resolved on this
record. The General Counsel was content to accept an admis-
sion by pleading that the strike ended ‘‘on or about’’ October
31, while Respondent asserted, but put in no proof, that it
ended November 1. Aside from more intricate questions as
to what time of day a collective return to work offer was
made, and when a commitment as opposed to a commence-
ment of employment might have been made to or by a re-
placement, the issue relates significantly to whether ware-
housemen Leverenz was hired before or after strikers estab-
lished their legal entitlements. I leave that point for treatment
below in the remedy section of this decision.
Free of that complication, the case focuses on a point in
time approximately 1 year following the brief strike, when
12 warehousemen and 4 driver-warehousemen (Haslett,
Amberson, John Greene, and Charles King) were employed
in generally consistent harmony with Respondent’s settled
ratio from the past. At this point Respondent embarked on
its class 1 license only regimen as warehousemen John Dark
left on November 30, 1989, followed by Leverenz, Stuart
Switzer, and James Graham in February, April, and July
1990, respectively.4 These departures led to the string of
seven consecutive hirings of driver-warehousemen, beginning
with Galland on December 11, 1989, and continuing with the
added six at times spaced throughout 1990.
I am not persuaded that Respondent’s explanation of this
limited view of its reinstatement obligation to strikers
amounts to legitimate action under Fleetwood, or that genu-
inely changed business conditions arose and operational effi-
ciency improved with the change. Respondent never had
‘‘pure’’ drivers, and all were subject to warehouse duties on
a random basis. Testimony of Fletter and Standridge about
their enhanced flexibility ranged from wistful at best to
vague at least. Fletter conceded that lack of class 1 licenses
had ‘‘always been a problem’’ (Tr. 141), while Standridge
termed the prestrike ratio as never ‘‘enough’’ (Tr. 143) to
avoid operational problems. Further to the point Fletter re-
vealed how Respondent abstractly ‘‘wanted flexibility,’’ and
gave a singularly inconclusive response about his rationale
for change, while Standridge oddly associated the root of the
problem to inadequate cross-training in warehouse duties.
These contrived-seeming explanations, weak or meaningless,
resort to slang phrasing (‘‘heck of a lot better’’), and abrupt
introduction of overstated characterizations (‘‘feather bedding
type situation’’) leave the compelling sense that underlying
intention was to disregard striker rights and exploit the non-
union setting with shaved wage rates as an added advantage.
Respondent’s description of its more current operational
needs is too superficial to accord significant weight. Taken
as a composite matter, I cannot discern the legitimacy, nor
the prospect of improved efficiency, when newly hired driv-
er-warehousemen spend as little as 15 minutes per day in
their driving duties, when Amberson was used for an entire
month in the warehouse although fully competent to operate
big rigs, when, illustratively, newly hired driver-warehouse-
man Scott Hamilton was put exclusively in the warehouse,
and when, irregardless of another sinister motive for such de-
ployment, Respondent took over 2 months to replace the in-
competent Schoepflin, after being immediately able to em-
ploy driver-warehousemen in a lower unemployment labor
market nearly 2 years earlier. Neither was there any weaken-
ing of DeAnda’s credible testimony that his fairly constant
prestrike observation of Auld revealed how this individual
was typically ‘‘just loading trucks.’’ Respondent points to the
‘‘just-in-time’’ distribution principle as affecting its delivery
planning to customers adopting this more modern system of
inventory control. Valid as that point might be in the ab-
stract, I find insufficient evidence from the scanty showing
made by Respondent to show that such new reality made it
imperative to achieve a staffing ratio that by the time of
hearing had flopped over to that of 10 driver-warehousemen
supported by only 8 warehousemen.5
This finding leads inevitably to application of controlling
doctrine set out in Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. sub nom. Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th
Cir. 1969). As drawn from Fleetwood and NLRB v. Great
Dane Trailers, 388 U.S. 26 (1967), Laidlaw holds that irre-
spective of any antiunion intent the hiring of new employees
in the face of outstanding applications for reinstatement from
striking employees is so inherently destructive of employee
rights as to be, presumptively, a violation of the Act. Appli-
cation of Laidlaw to the evidence here leads me to conclude
that Respondent has not shown the requisite justification in
legitimate and substantial business reasons for ignoring the
reinstatement rights of strikers. Accordingly, I hold that Re-
spondent unlawfully failed and refused to offer reinstatement
to these employees, or as many of them for which vacancies
would have generally existed after December 11, 1989 (the
date of Galland’s hire).
Although motive is irrelevant under the Laidlaw test, I
render findings on the issue of whether work leader, and ti-
tled supervisor, Hammond bound Respondent by the state-
ment uncontradictedly attributed to him. The testimony of
Amberson relative to Hammond’s authority in assigning
work and permitting deviation from scheduled work, does
not show the requisite independent judgment and discretion
to establish that Hammond is a supervisor within the mean-
ing of Section 2(11) of the Act and thus an agent of Re-
spondent. I note that he is more highly paid than both Blaine
Carlson and Richard Hess, the two individuals who along
with Hammond have claimedly replaced the work leader
function formerly fulfilled by Luck and Nakamura. The fact
that Hammond is now individually more prominent than
work leaders of recent times is significant, but so too is the
heavy supervisory presence of Fletter and Standridge among
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.
7 A compliance stage of Board proceedings is suitable for deter-
minations of striker’s rights in terms of whether they ‘‘should al-
ready have been recalled,’’ ‘‘were properly recalled,’’ and ‘‘whether
recall rights . . . still exist.’’ Hydrologics, Inc., 293 NLRB 1060,
1063 (1989).
8 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.’’
this small work force. Overall, I find insufficient evidence to
hold, as the General Counsel would contend be done, that
Hammond is a supervisor and agent of Respondent for pur-
poses of imputing ulterior motive to its pattern of employee
utilization.
CONCLUSIONS OF LAW
1. The Respondent, California Distribution Centers, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
150, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by deeming employees classified as warehousemen, and not
the holders of a class 1 (currently class A) California motor
vehicle operator’s license, to be of limited utilization poten-
tial.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by failing and refusing to offer reinstatement to striking em-
ployees classified as warehousemen as their former or sub-
stantially equivalent positions of employment became open.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent disqualified various em-
ployees from their rights as economic strikers, I shall order
Respondent to preferentially reinstate, to the extent that it has
not already done so, Edward Dotson, Eugene Herrick, Larry
O’Keefe, Michael Luck, Michio Nakamura, Richard
Gonzales, Robert Savage, Thomas DeAnda, Harry Littlefield,
Earl Lundquist, Michael Moore, and Dennis Powers, who
each participated in the strike of late October 1988 and who
unconditionally offered to return to work on or about Octo-
ber 31, 1988. Preferential reinstatement is to be to their
former positions or, if their jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights and privileges previously enjoyed. In ad-
dition these former economic strikers entitled to preferential
reinstatement shall be made whole for any loss of earnings
and other benefits they may have suffered as a result of the
discrimination against them, as such losses may be deter-
mined in a compliance stage of this proceeding, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, California Distribution Centers, Inc.,
West Sacramento, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Disqualifying for preferential reinstatement economic
strikers Edward Dotson, Eugene Herrick, Larry O’Keefe, Mi-
chael Luck, Michio Nakamura, Richard Gonzales, Robert
Savage, Thomas DeAnda, Harry Littlefield, Earl Lundquist,
Michael Moore, and Dennis Powers.
(b) 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) Maintain Edward Dotson, Eugene Herrick, Larry
O’Keefe, Michael Luck, Michio Nakamura, Richard
Gonzales, Robert Savage, Thomas DeAnda, Harry Littlefield,
Earl Lundquist, Michael Moore, and Dennis Powers in their
positions on Respondent’s reinstatement list, and preferen-
tially offer them full reinstatement to their former positions
or, if their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights and privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits they may
have suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of this deci-
sion.7
(b) 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.
(c) Post at its facility in West Sacramento, California, cop-
ies of the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
71CALIFORNIA DISTRIBUTION CENTERS
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 discourage membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 150, AFL–CIO, or any other
labor organization, by denying preferential reinstatement to
Edward Dotson, Eugene Herrick, Larry O’Keefe, Michael
Luck, Michio Nakamura, Richard Gonzales, Robert Savage,
Thomas DeAnda, Harry Littlefield, Earl Lundquist, Michael
Moore, or Dennis Powers on the basis that they are deemed
by us to be disqualified for reinstatement because of not pos-
sessing a class 1 (or ‘‘A’’) motor vehicle operator’s license.
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 preferentially reinstate Edward Dotson, Eugene
Herrick, Larry O’Keefe, Michael Luck, Michio Nakamura,
Richard Gonzales, Robert Savage, Thomas DeAnda, Harry
Littlefield, Earl Lundquist, Michael Moore, and Dennis Pow-
ers to their former positions, or if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, and WE WILL make them whole for any loss of earn-
ings and other benefits resulting from our discrimination
against them, less any net interim earnings, plus interest.
CALIFORNIA DISTRIBUTION CENTERS, INC.