Handy Andy, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1001 (N.L.R.B. 1989)

HANDY ANDY, INC
Southwest Merchandising Corporation d/b/a Handy
Andy, Inc. and United Food and Commercial
Workers International Union , AFL-CIO, Local
Union No. 171. Case 23-CA-9311
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 20, 1985, Administrative Law
Judge J. Pargen Robertson issued the attached de-
cision.' The Respondent filed exceptions and sup-
porting briefs and the General Counsel filed a brief
in support of the judge's decision.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,3 and
conclusions as modified and to adopt the recom-
mended Order as modified.
The judge found that the Respondent is a succes-
sor to Handy Andy, Inc. a/k/a Handy Andy, Inc.,
debtor-in-possession; that 24 former economic strik-
ers of the predecessor, all meat department em-
ployees who had outstanding unconditional offers
to return to work, possessed reinstatement rights
under Laidlaw4 vis-a-vis the Respondent, and that
the Respondent, by refusing to nondiscriminatorily
consider the former strikers for employment in its
meat department on and after February 2, 1983, s
and by failing to establish any business justification
for not recalling any of the former strikers to ac-
knowledged meat department openings after Feb-
ruary 2, violated Section 8(a)(3) and (1) of the Act.
We agree with the judge for the reasons stated by
him that the Respondent is a successor to Handy
Andy, Inc., debtor-in-possession. We also agree
with the judge, for the reasons set forth below, that
the Respondent discriminated against the former
strikers in its original hiring process. We therefore
i Following severance of Case 23-CA-9183 at the start of the hearing
before the judge , a settlement in that case was obtained , and by order of
the judge dated January 17, 1985, Case 23-CA-9183 was dismissed
2 The Respondent 's request for oral argument is denied as the record,
exceptions , and briefs adequately present the issues and the positions of
the parties. .
8 The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
4 Laidlaw Corp, 171 NLRB 1366 (1965), enfd 414 F 2d 99 (7th Cir
1969), cert . denied 397 U S 920 (1970), NLRB v Fleetwood Trailer Co.,
389 U S. 375 (1967)
5 All dates herein are in 1983 unless otheiwise indicated
1001
find it unnecessary to pass on his findings regarding
the Laidlaw obligations of a successor to former
economic strikers of its predecessor.
In its exceptions , the Respondent denies discrimi-
nating against the former economic strikers . It con-
tends that all meat department employees were
hired on February 2 based on applications for em-
ployment submitted that day; that its store manag-
ers were instructed to give applications to all who
requested them ; and that the former economic
strikers were legitimately excluded from its work
force because they failed to apply . The record does
not support the Respondent 's contentions. The
facts, as found by the judge or uncontradicted in
the record , follow.
In 1982, certain meat department employees of
the Respondent 's predecessor , the debtor -in-posses-
sion, engaged in an economic strike. In November
and December 1982, 24 of the strikers uncondition-
ally offered to return to work but were not offered
reinstatement by the predecessor . On January 31,
the predecessor ceased operations and terminated
all employees . On February 1, the Respondent pur-
chased and assumed operation of 20 grocery stores
operated by the debtor-in-possession . Newspaper
articles and the television news reported this pur-
chase and the fact that the Respondent would be
accepting applications for employment at its stores.
The reports did not mention a particular location,
time, or date to apply and the Respondent appar-
ently made no attempt to make public the specifics
of the hiring process.
On the evening of February 1, the Respondent
held a meeting of its supervisory personnel , most of
whom had been rehired from the predecessor's op-
eration , and gave instructions on the hiring process.
Applications for all departments-grocery, bakery,
produce, and meat-were to be taken on February
2 at each of the Respondent 's stores. Store manag-
ers were to turn applications for the meat depart-
ment over to Carl Shroat, meat department super-
visor . Personnel Director George Tamez testified
that the supervisory personnel were told to take
applications from everyone who applied at the
stores and to staff the stores with the best qualified
people . The Respondent admitted at the hearing
that supervisory personnel were told to call any in-
dividuals, from the predecessor's work force whom
they wished to hire and to encourage them to
apply. Bob Simmons , manager of store number 22,
testified that he wanted to hire most of the prede-
cessor's employees who had been employed at that
store and he viewed the application process as an
opportunity to get rid of nonproductive employees.
Simmons admitted calling former grocery depart-
ment employees of the predecessor whom he
296 NLRB No. 128
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wished to hire . Both he and Meat Department Su-
pervisor Shroat stated they did not call any former
meat department employees to encourage them to
apply with the Respondent.
On February 2 the Respondent 's stores were
closed so that business and employment applica-
tions could be submitted. According to the Re-
spondent, that evening supervisory personnel met
and reviewed applications and selected the initial
work force. As the judge found, however, the Re-
spondent did not require all the predecessor's em-
ployees to submit written applications before se-
lecting them for employment and instructing them
to report to work on February 3. Store Manager
Simmons testified that before and after the Febru-
ary 2 managers ' meeting he personally contacted
about 10 individuals employed by the predecessor
at his store who had not applied and informed
them that they had been selected for the store's
work force of 50 employees . Meat Department Su-
pervisor Shroat testified that each person offered
employment in the Respondent 's meat department
had filed an application for employment . However,
these applications are not in evidence and the
record does not establish with certainty on what
date or dates they were filed.
When the hiring process was completed , the Re-
spondent 's meat department was virtually identical
to that of the predecessor-of the 77 employees,
each had been employed by the predecessor when
it ceased operation . However, the initial work
force included none of the former economic strik-
ers, all who were experienced meat department em-
ployees.
According to testimony credited by the judge,
13 of the 24 economic strikers applied at the Re-
spondent 's stores with an identified supervisor on
and after February 2; 6 on February 2; 3 on Febru-
ary 3 ; and 4 some time in late February . Another
eight former economic strikers testified to applying
at the office or courtesy window in one of the Re-
spondent 's stores6 on or after February 2; these in-
dividuals failed to establish that they had spoken to
a supervisor or agent of the Respondent.' Most of
the former economic strikers who did apply to an
agent of the Respondent , and all but one of those
who applied on February 2, identified themselves
as former striking employees in order to establish
their meat department experience. Only one of the
8 The Respondent acknowledged that this is the customary procedure
for applying for a job in the Respondent 's stores.
T The judge discredited the testimony of two additional former eco-
nomic strikers , one because she claimed to have attempted to apply at a
closed store , and a second because he gave an inaccurate physical de-
scription of a store manager . The final former economic striker never
sought employment with the Respondent, she testified that since the
predecessor had not accepted the strikers ' unconditional offer to return to
work, she thought it would be futile to-apply with the Respondent.
strikers found by the judge to have applied on Feb-
ruary 2 was given an application . All but three of
the strikers who sought applications were flatly
denied an opportunity to apply and were told
either that the Respondent was not giving out ap-
plications for the meat department or that all meat
department positions had been filled.8
Former strikers Frankie L. Danmon and Joe O.
Huerta were permitted to apply in February but
were never hired by the Respondent . Alice Arraga,
who was denied an application in February, was
given an application in August when she again
sought employment with the Respondent and was
told by Shroat, "We'll call you when there is an
opening." None of these individuals was ever of-
fered employment by the Respondent , despite over
60 admitted meat department vacancies created
after February 2, occasioned by departures and by
the expansion of the meat department work force
to 115 by September 1984. The judge found pretex-
tual the Respondent 's undocumented alleged per-
formance-related justifications for failing to hire
Danmon and Huerta. Concerning Arraga, Shroat
testified that the Respondent had a practice of pro-
moting part-time store staff to fill full-time meat de-
partment openings and that no full-time position
was available when Arraga applied .9 However,
Shroat , who is responsible for hiring and firing in
the meat department, could not recall how specific
position openings were filled and the Respondent
failed to introduce any evidence documenting its
alleged practice in this regard.
The Supreme Court held in Howard Johnson v.
Detroit Joint Board, 417 U.S. 249, 262 fn. 8 (1974)
(citation omitted):
Of course, it is an unfair labor practice for an
employer to discriminate in hiring or retention
of employees on the basis of union member-
ship or activity under Sec. 8(a)(3) of the Na-
tional Labor Relations Act. . . . Thus, a new
owner could not refuse to hire the employees
of his predecessor solely because they were
union members or to avoid having to recog-
nize the union.
For this same reason , a new opener cannot
lawfully refuse to hire employees of his prede-
cessor because they engaged in a lawful eco-
nomic strike. In this case , the facts establish
that the Respondent 's public application proc-
8 Some of the former economic strikers, including some of those cred-
ited with having attempted to apply with an identified supervisor on or
after February 2, testified that other individuals appeared to be applying
for jobs at the time they were being denied applications
8 Shroat testified that applications were kept on file, but that he was
unaware of any policy as to how long they were kept
HANDY ANDY, INC.
ess was a charade designed, at least in part, to
discriminatorily deny the former economic
strikers employment.
As noted above, the Respondent contends that it
hired its initial meat department work force from
applications submitted February 2 and that no
former economic strikers were included in that
work force because none applied on that date. The
only notice to the former strikers that the Respond-
ent was hiring were newspaper and television re-
ports of the Respondent's purchase of the debtor-
in-possession . In marked contrast, as the Respond-
ent admits, nonstriking former employees in the
grocery department were called by supervisory
personnel, at the Respondent's direction, and en-
couraged to submit applications. Further, even
though the application process was allegedly
closed on February 2, grocery department supervi-
sory personnel called a significant number of non-
strikers whom they wished to hire but who had not
yet applied, and instructed them to report to work
on February 3 and to submit an application at that
time . Thus, it is clear that the Respondent did not
require all nonstrikers to submit written applica-
tions before offering them employment.
In addition to the above evidence of disparate
treatment, there is credited evidence that 13 former
economic strikers attempted to apply for work on
or about February 2 and that all but 2 were denied
application forms by supervisors of the Respondent
who knew of their striker status. Further, even on
February 2, the very date on which the Respond-
ent closed its stores for the purpose of accepting
applications, those former economic strikers who
attempted to apply and were denied application
forms were told that the Respondent was not
giving out the forms or had filled all meat depart-
ment positions. Obviously the denials of application
forms and other rebuffs to former strikers during
the initial hiring process represent disparate treat-
ment in contrast with the supervisors' acceptance
of applications from nonstrikers. The treatment of
the former strikers is also inconsistent with the Re-
spondent's claims that its supervisors were instruct-
ed to take applications from all who sought to
apply, that the meat department complement was
not hired until the evening of February 2, and that
the hiring was based entirely on applications sub-
mitted by all comers at its stores earlier that day.
Additional evidence of discrimination appears in
the cases of the two former economic strikers who
were permitted to apply in February, but were
denied employment for what the judge found to be
pretextual reasons and the case of the single former
economic striker who was permitted to apply in
August but was not hired because-according to
1003
the Respondent's unsubstantiated claim-the Re-
spondent had filled meat department vacancies
from its part-time employee complement.
The Respondent instructed its supervisors to hire
the best qualified people and admitted that the
hiring process provided an opportunity to get rid
of its unproductive employees. The Respondent has
presented no credited evidence that the former
economic strikers were unproductive or in any
other way unqualified to be part of the original
meat department work force or to fill meat depart-
ment vacancies that subsequently arose. To the
contrary, the record establishes that each of the
former economic strikers had substantial meat de-
partment experience with the predecessor and that
the Respondent knew it. Despite these qualifica-
tions and the established attempts of more than half
of the former economic strikers to apply with a su-
pervisor of the Respondent, not a single former
economic striker was offered employment either in
the initial employee complement or to fill vacan-
cies that later arose. On these facts, then, we find
that the record establishes that the Respondent en-
gaged in a hiring scheme designed systematically to
exclude the former economic strikers from its work
force in violation of Section 8(a)(3) and (1) of the
Act. Further, as the Respondent's almost unvary-
ing refusal to permit the former strikers who
sought employment on February 2 even to fill out
applications appears to have applied to all former
economic strikers, bar none, we find that the
claimed attempts by other economic strikers to
apply, whether credited or not, would have been
futile.10 See State Distributing Co., 282 NLRB 1048
(1987) (respondent's remarks to employees and the
union engendered a "climate of futility" excusing
failure of some employees to submit applications);
Macomb Block & Supply, 223 NLRB 1285, 1286
(1976), enf. denied 570 F.2d 1304 (6th Cir. 1978)
(where employer makes known its refusal to hire
based on prior union affiliation; failure to undertake
useless act of formal application no defense). Ac-
cordingly, we find that all the former economic
strikers are entitled to immediate employment in
the Respondent's meat department in the positions
they would have been offered absent the Respond-
ent's discrimination, and to backpay for any losses
they may have suffered as a result of the Respond-
ent's discrimination against them on and after Feb-
ruary 2, 1983.
10 Since attempting to apply for a meat market position would have
been futile, we find former economic striker Shirley A. Walker a discri-
minatee even though she admitted never attempting to apply for a posi-
tion with the Respondent
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED REMEDY
Having found that the Respondent on and after
February 2, 1983, discriminatorily refused to
employ the individuals named below in violation of
Section 8(a)(3) and (1) of the Act, we shall order
the Respondent to offer each of them immediate
and full employment to the positions they would
have been offered absent the Respondent's discrim-
ination or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority and other rights and privileges, dis-
charging, if necessary, anyone hired in place of the
named discriminatees and to make each of the dis-
criminatees whole for any loss of earnings he or
she may have suffered as a result of the discrimina-
tion practiced by the Respondent. Backpay and in-
terest commencing February 2, 1983, shall be com-
puted in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and New Horizons for the
Retarded. 1 1
Stella Alvarado
Beatrice Arredondo
Alice Arraga
Fred V. Barboza
Pauline H . Cabido
Alice C. Cabrera
Alfred Canedo Jr.
Rebecca E. Castillo
Frankie L . Danmon
Mary Alice
Guzman
Rose Mary Burk
Carlos Dimas Sr.
Joe O. Huerta
Allen Love
Joe R. Lopez Jr.
Rosa E . Moralez
Henry B. Perez
Rose Polk
Irene M. Ponce
Pete Ruiz
Shirley A. Walker
Roger Wendel
Onelia M. Heredia
Edward Martinez
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Southwest Merchandising Corporation d/b/a
Handy Andy, Inc., San Antonio, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) of
the judge's Order.
"(a) Offer immediate and full reinstatement to
the employees listed in the amended remedy sec-
tion of this decision to the positions they would
have been offered absent the Respondent's discrim-
ination or, if those positions no longer exist, to sub-
I t In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be
computed at the "short-term Federal rate " for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S C § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dis-
charging, if necessary, anyone hired in place of one
of the named discriminatees, and make each named
discriminatee whole for any loss he or she may
have suffered as a result of our discrimination in
the manner set forth in the remedy section of this
decision."
2. Substitute the following for paragraph 2(c) of
the judge's Order.
"(c) Post at its facility in San Antonio, Texas,
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to employ or otherwise dis-
criminate against any employee because that em-
ployee engaged in the protected activity of engag-
ing in a strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer immediate and full reinstatement
to the below-named individuals to the positions
they would have been offered absent our discrimi-
HANDY ANDY, INC. 1005
nation or , if those positions no longer exist , to sub-
stantially equivalent positions , without prejudice to
their seniority, or other rights and privileges, dis-
charging , if necessary , anyone hired in place of the
following discriminatees:
Stella Alvarado
Beatrice Arredondo
Alice Arraga
Fred V. Barboza
Pauline H. Cabido
Alice C. Cabrera
Alfred Canedo Jr.
Rebecca E. Castillo
Frankie L. Danmon
Mary Alice
Guzman
Rose Mary Burk
Carlos Dimas Sr.
Joe O. Huerta
Allen Love
Joe R . Lopez Jr.
Rosa E. Moralez
Henry B. Perez
Rose Polk
Irene M. Ponce
Pete Ruiz
Shirley A. Walker
Roger Wendel
Onelia M . Heredia
Edward Martinez
WE WILL make the above-named discriminatees
whole for any loss of earnings he or she may have
suffered by reason of our discrimination , with inter-
est.
SOUTHWEST MERCHANDISING COR-
PORATION D/B/A HANDY ANDY, INC.
Robert G. Levy, II, Esq., for the General Counsel.
Frank S. Manitzas, J. Joe Harris, and Leslie Joan Selig,
Esgs. (Manitzas, Harris, & Padgett), of San Antonio,
Texas, for the Respondent.
Frank Herrera, Jr., Esq., of San Antonio, Texas, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This matter was heard in San Antonio , Texas, on Sep-
tember 19 and 20, and October 10, 1984. The issues stem
from an amended complaint in Case 23-CA-9311 dated
June 22, 1984. That charge was filed by the Union" on
May 17, 1983. Respondent2 is alleged to be a successor
employer that failed to fulfill an alleged obligation to re-
employ some 24 employees that engaged in an economic
strike against the predecessor employer. Allegations
against the alleged predecessor employer, Handy Andy,
Inc., a/k/a Handy Andy, Inc., debtor-in-possession,3
i Respondent admitted that the Charging Party , United Food and
Commercial Workers International Union , AFL-CIO, Local Union No
171, is a labor organization within the meaning of Sec. 2(5) of the Act
2 Respondent admitted allegations that it is a Texas corporation with
an office and place of business in San Antonio , Texas, where it is en-
gaged in the operation of retail grocery stores , and is an employer within
the meaning of Sec 2(2), (6), and (7) of the Act
a The alleged predecessor employer filed for debt protection under
Chapter 1I of the bankruptcy laws on September 8, 1981 Throughout
material times until the business was sold to Respondent on February 1,
1983, the alleged predecessor was a debtor -in-possession in bankruptcy
proceedings . From time to time here , the alleged predecessor employer is
referred to as the debtor -in-possession.
originally consolidated in these proceedings in Case 23-
CA-9183, were severed at the beginning of the hearing
herein pursuant to a motion by General Counsel. Subse-
quently, settlement was consummated in Case 23-CA-
9183, and that case was dismissed by my Order dated
January 17, 1985.
A. Admitted and Uncontested Facts
The following facts are admitted or uncontested. From
April 24, 1982, until November 24, 1982, certain employ-
ees of Handy Andy, Inc., debtor-in-possession in bank-
ruptcy proceedings , engaged in an economic strike. On
November 24, 1982 , the Union4 advised the debtor-in-
possession by telegram that it was ending the strike and
offering to return all the former strikers to work.
Additionally, on November 24, 1982, the debtor-in-
possession through its vice president, director of person-
nel, George J. Tamez, acknowledged by letter to the
Union that it had that date received individual letters
"from the below -named strikers," making unconditional
offers to return to work:
Stella Alvarado
Beatrice Arredondo
Alice Arriaga
Fred V. Barboza
Pauline H. Cabido
Alice C. Cabrera
Alfred Canedo, Jr.
Rebecca E. Castillo
Frankie L. Danmon
Mary Alice Guzman
Joe O. Huerta
Allen Love
Joe R . Lopez, Jr.
Rosa E . Moralez
Henry B. Perez
Rose Polk
Irene M. Ponce
Pete Ruiz
Shirley A. Walker
Roger Wendel
On December 7, 1982, George Tamez again wrote the
Union acknowledging that the debtor-in-possession, on
that date , received individual letters "from the below-
named strikers," making unconditional offers to return to
work:
Rose Mary Burk Onelia M. Heredia
Carlos Dimas, Sr. Edward Martinez
Respondent admits that the debtor -in-possession failed
to permit any of the above-named employees to return to
work . The above-mentioned November 24 and Decem-
ber 7, 1982 letters from Tamez to the Union state , "[t]he
positions formerly held by the above-mentioned strikers
have either been eliminated or filled by permanent re-
placements . Accordingly , each unconditional offer to
return to work is denied ." On or about February 1, 1983,
Respondent purchased certain assets of the debtor -in-pos-
session . Thereafter, on February 3, 1983, Respondent
began operating several San Antonio grocery stores pre-
viously operated by the debtor -in-possession.
The above -mentioned strikers had, before they struck,
worked in the meat department of those San Antonio
grocery stores . None have been permitted to return to
work since Respondent commenced its operations.
4 From before 1982 and continuing, the Union was the exclusive bar-
gaining representative of the meat department employees (i.e , the unit in-
volved here)
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Theory of the General Counsel
Counsel for General Counsel argues that Respondent
had obligations commencing when it started its oper-
ations on February 3, 1983, to employ in due course, the
former strikers. General Counsel further argues that Re-
spondent is obligated to employ the strikers in a nondis-
criminatory manner . While the instant case involves an
alleged successor to the employer that was struck, the
General Counsel argues that Respondent 's legal obliga-
tion to the former strikers is the same as that of the pred-
ecessor.
C. Facts
At the outset , several issues distinguish this case from
prior cases involved with reinstatement of economic
strikers . The predecessor employer was a debtor -in-pos-
session . Before the sale of the operations herein, its con-
tract with the Union was, during March 1982, nullified
by the bankruptcy court. Therefore, when the debtor-in-
possession 's assets were sold to Respondent , there was
not an existing collective-bargaining agreement.
By letter dated December 9, 1982, to Respondent's reg-
istered agent for service of process , Luis A. Stoler, the
Union notified Respondent , inter alia, that it was de-
manding that Respondent employ bargaining unit em-
ployees if Respondent purchased the business of the
debtor-in-possession.
When Respondent commenced operations, several of
its supervisory and managerial people had occupied simi-
lar positions for the debtor-in-possession. Among that
group was the former vice president , director of person-
nel, George Tamez . Tamez is, and has been since Re-
spondent began its operations in February 1983, an offi-
cer of Respondent and its director of personnel.
Tamez admitted that he was aware that the striking
meat department employees had since November and
December 1982, sought to return to work.
George Tamez testified that Respondent in February
1983 purchased and assumed operations of over 20 stores
formerly owned and operated by the debtor-in-posses-
sion . In so doing , Respondent retained the majority of
the supervisory personnel of the debtor-in-possession.
The grocery stores' operations closed on February 1 and
2, but on February 3 the stores opened and, according to
unrebutted testimony of George Tamez, there was no
way for the general public to tell that the stores had
changed owners . The business was the same and the
stores' name remained the same . All the meat department
employees on February 3, were former employees of the
debtor-in-possession5 and a majority of the debtor -in-pos-
session employees were hired by Respondent.
During the 2 days the stores were closed , Respondent
hired its supervisors and its original work force.
In view of the above uncontested evidence, I find that
Respondent is it successor employer . NLRB v. Burns Se-
curity Services, 406 U.S. 272 (1972); Howard Johnson Y.
Detroit Local Joint Board, 417 U.S. 249 (1974).
In the above-cited landmark cases , the question of con-
tinuity in the work force was handled differently. How-
ever, under both of those decisions the instant facts show
there was a continuity in the work force . Under the
standard used in NLRB Y. Burns Security Services, supra,
the question involved is whether a majority of the new
employer's employees were employed by the predecessor
in the recognized bargaining unit . Here, record docu-
ments show that from a unit work force of 77,Respond-
ent employed no fewer than 71 of those from the unit
employees of the debtor -in-possession . 6 Therefore, the
Burns test must be answered in the affirmative . A majori-
ty of Respondent 's original work force was hired from
the predecessor 's unit work force.
In Howard Johnson v. Detroit Joint Board, supra, the
question appeared to be whether "the successor employ-
er hires a majority of the predecessor 's employees." 417
U.S. 249, 281 . Here, the debtor-in-possession 's last work
week included something less than 97 unit employees.?
Of those 97, Respondent hired at least 71. Therefore, the
Howard Johnson test must be answered in the affirmative.
Respondent hired a majority of the predecessor's unit
employees.
Other indicia considered in determining whether a
successorship exists includes determining whether there
has been a continuity in the employing industry, whether
there is continuity in the appropriateness of the bargain-
ing unit, and the impact of a hiatus in operations. In the
instant matter , there is a continuity in the employing in-
dustry. Respondent continued the operation as before
when it opened its stores on February 3, 1983 . The bar-
gaining unit remained the same with the same classifica-
tions of meat department employees as existed under the
debtor-in-possession . The hiatus in operations was 1 of 2
days and it did not appear to have an impact on oper-
ations . As shown herein, 1 of the 2 days was consumed
with employing the original work force.
In view of the above findings , it is apparent, and I
find, that Respondent is a successor employer to the
debtor-in -possession.
Additionally, in view of the admissions of its officer
and director of personnel , George Tamez, I find that Re-
spondent had notice from its purchase of the predeces-
sor's operations on February 1, 1983, of the uncondition-
al offers to return to work from the above -mentioned
former strikers.
D. Findings
According to testimony from George Tamez, all em-
ployees of the predecessor were terminated on January
31, 1983. Thereafter, Respondent hired a full work force
before operations began on February 3, 1983 . None of
the above -mentioned strikers were hired then or subse-
9 As noted above , Supervisor Schroat testified that all 77 of the origi-
5 Although record documents show that over 90 percent of Respond - nal employees were previously employed by the predecessor employer
ents ' original meat department employees were employed by the debtor - 7 Some employees appeared as duplication by working at more than
in-possession during the pay period ending January 31, 1983, Meat Super- one store during the week ending January 31, 1983 The count of 97 in-
visor Schroat testified that 100 percent of the original meat department cludes those employees on each occasion they appear Therefore, the true
employees were former employees of the debtor -tn-possession count is something less than 97
HANDY ANDY, INC.
quently . The record shows that approximately 97 em-
ployees were employed by the predecessor on January
31. On February 3, Respondent employed 77. Since then,
Respondent 's work force has continued to grow. The
meat department now includes approximately 115 em-
ployees.
Counsel for General Counsel called the 24 former
strikers as witnesses . Twenty-three of those former strik-
ers testified that they personally attempted to apply for
work after Respondent purchased the San Antonio stores
on February 1.
Fred Barboza testified that he went to store 11 in early
February 1983 and asked to see the store manager. He
was told that the store manager was not in . Barboza told
a man he could not identify by name or position that "I
was a striker and that I wanted to put in an application."
Barboza was told "[t]hey weren 't taking anymore" appli-
cations.
Irene Ponce testified that she went to store 26 on Feb-
ruary 2, 1983, and talked to Laubach,8 whom she heard
was the manager . Ponce testified that-she asked Laubach
for an application for the market explaining that she was
a striker applying for a job. Laubach told her that they
were not giving applications for the market.
Alice Arriaga testified that after she heard the grocery
stores were changing owners she called store 15 and
asked to speak to the manager . Arriaga testified that she
thought the man's name was Hernandez but she did not
know because he did not identify himself. Arriaga testi-
fied that she said she was an exstriker and was told,
"Well, for right now, we've already hired everybody in
the market , but just go ahead and come in ." Arriaga tes-
tified that she went to store 15 and talked with Hernan-
dez. When Arriaga asked for an application , Hernandez
replied , "[w]e've already hired everybody for the market
department , and we are not taking applications right
now."
In August 1983, Arriaga went to store 27 where she
was given an application form by Albert Keller. Arriaga
took the application home and called Supervisor Carl
Schroat. Schroat told Arriaga, "We 'll call you whenever
there is an opening."9 Arriaga subsequently turned her
completed application back in to store 27.
Edward Martinez testified that he went to store 26 in
early February 1983 and asked the person he assumed to
be the store manager for an application. Martinez testi-
fied that the store manager was pointed out to him by
some of the people waiting in line for applications, and
he was told that the manager's name was Laubach. Mar-
tinez testified that Laubach told him that the meatcut-
ter's job position was filled. Martinez had received an ap-
plication form but he did not complete the application.
Alfred Canedo testified that he went to store 15 a
couple of days after Respondent was taking applications,
around February 4 or 5, 1983. Canedo recalled that he
9 This admitted supervisor's name was spelled "Lubbock" in the tran-
script , but "Laubach " in the complaint
9 As shown here , neither Arnaga nor any of the former strikers have
been called at any time , even though Respondent has otherwise filled job
vacancies in the bargaining unit
1007
spoke to Grocery Manager Rick Vara. t ° Canedo testi-
fied that he asked for an application , that he wanted his
job back. Vara "kind of grinned , and he said that there
was no way that the new company would hire me be-
cause I was a union member , an ex-striker, and walked
away from me." Canedo was not given an application.
Onelia HeredialI testified that she went to store 15 to
complete an application on February 3, 1983. • Heredia
testified that she went to the office and asked for the
store manager . The manager was paged . Heredia recalls
that his name was Fernandez or Hernandez , something
like that . Heredia asked for an application for the meat
market and was told that the market is already full. Her-
edia then told the man that she had experience, that she
was one of the strikers . He then replied, "Well, I'm
sorry. We are already full."
Beatrice Arredondo said she went to store 11 on Feb-
ruary 2, 1983. While Arredondo was waiting in line to
place her application, the assistant manager came out and
told everyone that they were out of applications. Arre-
dondo identified the assistant manager as Tony Garcia.
Arredondo testified that Garcia said to her, "Oh, you're
here , Beatrice, in line ." Arredondo replied , "Yeah, I
want an application ." Garcia replied , "We're out of ap-
plications ." Arredondo testified that she left after being
told by Garcia there were no applications.
Frankie Danmon testified that she gave a completed
application to Assistant Manager Julius Hernandez at
store 3 after she learned that another company was
taking over the Handy Andy stores . Danmon testified
that she thought this occurred in the last of January.
Danmon testified that as she offered her application to
Assistant Manager Hernandez , she said, "I'm a Handy
Andy ex-employee., I was a striker ." Danmon testified
that Hernandez looked at her application and said, "Oh,
you've been with the company 17 years. I'll keep your
application on file."
Mary Alice Guzman testified that she went to store 9
to apply for work about February 2, 1983. Guzman testi-
fied that she went to the window and asked the girl
there for an application but was told they were not
hiring anyone. Guzman testified that she did not recog-
nize anyone from the standpoint of store manager or as-
sistant store manager . Guzman left without filing an ap-
plication.
Allen Love testified that he went to store 17 on Feb-
ruary 2, 1983, to apply for a job. Love testified that a
"stock boy or employee" pointed out the manager, and
Love asked "him if there was any applications for a jour-
neyman meatcutter . I was asked if I had any experience.
I told him , yes, I had worked for Handy Andy 15 years
and then I told him that I was a union person that had
been out on strike ." Love was told, "There were no
openings available at that time."
Stella Alvarado testified that sometime in February
1983, she went to store 3 to apply for a job. Alvarado
was unable to identify the person she spoke to, but she
testified that she was told, "[t]hey weren 't hiring."
io Grocery managers were neither alleged nor proven to be supervi-
sors.
" Onelia Heredia testified that she is now Onelia Heredia Gonzales.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rebecca Castillo testified that she went to store 41 on
February 2, 1983, and talked to a person that she identi-
fied by his badge as the assistant manager . Castillo said
that she was a striker from Handy Andy and wanted an
application for the meat market. The man identified as
the assistant manager told Castillo that he was not taking
applications anymore.
Pauline Cabido testified that she went to store 23 after
the store was already in business in February 1983.
Cabido testified that she went to the office cashier and
asked if she could have an application to fill out for the
market saying that she was one of the Handy Andy strik-
ers. She was told by the cashier that they were not hand-
ing out any more applications.
Alice Cabrera testified that she talked to a man wear-
ing a red coat in store 16 sometime in February 1983.
Cabrera testified that she was told the store was not
taking any applications after she identified herself as a
striker and asked for an application . Even though Ca-
brera was confronted with documentary evidence that
store 16 was closed at the time she allegedly went in and
asked for an application , she continued to insist that she
had in fact gone to store 16.
Carlos Dimas' 2 testified that he went to store 43 in
early February 1983 and talked to a woman whom he
identified as the woman that takes over in the afternoon.
Dimas asked for an application for the meatcutter and
was told that the store was not accepting any applica-
tions.
Jose Lopez testified that he called store 4 about the
time they were closed for 2 days. Lopez was told that
the manager and assistant manager were out of the store.
Lopez identified himself as a striker and asked if they
had any applications for employment. He was told there
were no applications.
Rosa Moralez testified that she went to store 41 on
February 2, 1983, and talked to a man that she identified
as a "latin american." Moralez asked for an application
and identified herself as a striker. She was told that the
store did not need anyone.
Rose Mary Burk testified that she went to store 9 on
February 2 or 3, 1983, and asked for the manager. The
manager was paged. Burk told the man identified as the
manager that she was a striker and she asked if she could
be hired back. She was told that "[h]e already had hired
all he needed."
Henry Perez testified that he went to store 35 in early
February 1983 and spoke to a man in the office. Perez
asked for an application for a meatcutter's job, and he
was told there were no applications available.
Joe Huerta testified that he completed and turned in
an application for employment at store 41 in February
1983. Huerta gave the application to a man who identi-
fied himself as the store manager.
Rose Polk testified that she went to store 3 on Febru-
ary 2, 1983, and talked to a man that was pointed out to
her as the store manager . Polk identified herself as a
striker and asked for an application. She was told that
they were not taking any more applications.
12 Carlos Dimas was incorrectly identified as Carlos Bimas in the com-
plaint.
Pete Ruiz testified that he went to store 9 on February
2, 1983, and talked to a man that appeared to be in
charge. Ruiz recalled that this man was handing out ap-
plications while he was waiting. However, when Ruiz
asked for an application, he was told that "they were not
giving out no more applications."
Shirley Walker, one of the strikers, testified that she
did not personally seek employment from Respondent
after February 1, 1983.
Roger Wendel testified that he went to store 22 during
the first or second week in February 1983 and talked to
the store manager. Wendel asked if he could have an ap-
plication for a meatcutter's job, and he was told, "It
really wouldn't be necessary, that there was no positions
open at that time."
The above testimony illustrates that three strikers sub-
mitted job applications to Respondent after February 1,
1983. Some of the remaining strikers asked persons iden-
tified as supervisors for applications. I have discredited
the testimony of Alice Cabrera in view of her insistence
that she sought work at store 16 at a time when store 16
was closed. I have also discredited Roger Wendel's testi-
mony that he asked store 22 manager for an application
in view of Wendel's inaccurate physical description of
the manager.
Finally, the Union, by June 13, 1983 letter, made an
unconditional offer to Respondent on behalf of all the
former strikers.' 3
In view of the full record, I find that unconditional
offers were made by and on behalf of all strikers alleged
in the complaint herein at a time in November or De-
cember 1982 before Respondent commenced operations.
Respondent was aware of those unconditional offers.
Subsequently, other unconditional offers were, as shown
above, made by a few strikers on their own behalf when
they applied for work on or after February 2, 1983. On
June 13, 1983, the Union made a final unconditional offer
on behalf of all the strikers.
Additionally, the record demonstrated that positions
were available for the strikers on February 2, 1983, when
Respondent hired its original meat department work
force. Subsequent to February 2, 1983, Respondent has
had some turnovers in the meat department work force
and has increased the work force from 77 to 115 employ-
ees. Therefore, it is clear that positions have existed in
which the strikers could have been employed at various
times, both on and after February 2, 1983.
In view of the above, I find that the strikers and the
Union extended valid unconditional offers, which have
continued in effect throughout Respondent's operations.
12 Respondent, in its brief, points out that a charge alleging the prede-
cessor employer , debtor-in-possession , unlawfully withdrew recognition
from the Union was dismissed That matter is not before me and is not
included in the record here Nevertheless, the Union's status has no bear-
ing on the instant controversy in view of established jurisprudence that
an unconditional offer to return strikers to work is valid even if made by
a "minority" union (see Marlene Industries Corp Y NLRB, 712 F 2d 1011
(6th Cir 1983)
HANDY ANDY, INC.
E. Laidlaw Rights 114
The so-called Laidlaw principle is set out in the Su-
preme Court case of Fleetwood Trailer, supra, to the
effect that replaced economic strikers remain employees
under Section 2(3) of the National Labor Relations Act,
until they retain regular and substantial employment.
Therefore, upon making an unconditional offer to return
to work, an economic striker is entitled to return to his
former position unless that position has been discontin-
ued or filled with a permanent replacement. Under those
contingencies , a striker is entitled to eventual reemploy-
ment when a suitable position opens.
Of major concern in this case is what, if any, effect
does a change in ownership have on the reemployment
rights of economic strikers. One National Labor Rela-
tions Board case dealt with that issue when the subse-
quent employer was found to be the alter ego of the
predecessor. In Denzil S. Alkire, 259 NLRB 1323 (1982),
where the subsequent employer was found to be a dis-
guised continuation of the former employer, the Board
accorded economic strikers their full Laidlaw rights.
In the instant case, Respondent was not alleged to be
an alter ego of the predecessor employer. Moreover, the
record demonstrated that although Respondent is a suc-
cessor employer it is a separate entity from the predeces-
sor under different ownership.
Respondent cited the case of Pepsi-Cola Bottling Co. of
Topeka, 227 NLRB 1959 fn. 2, 1966 (1977), wherein the
Board stated:
Although we herein affirm the Administrative
Law Judge's findings that the Respondent violated
Sec. 8(a)(3) and (1) by discriminatorily refusing to
rehire former economic strikers, we disagree with
his statement that the Respondent's intent in this
case is "essentially irrelevant" in view of the law as
defined in NLRB v. Fleetwood Trailer Co., Inc., 389
U.S. 375 (1967). Since there is no question that on
August 2, 1975, Respondent legally terminated all
its employees , including former economic strikers,
pursuant to the contract for sale of 100 percent of
its stock, the Court' s language in Fleetwood with re-
spect to the reinstatement rights of economic strik-
ers who have been permanently replaced is inappo-
site . It was therefore incumbent upon the General
Counsel to prove that Respondent was motivated
by discriminatory intent in refusing , on August 4,
1975, and thereafter, to rehire former employees
who had engaged in protected concerted strike ac-
tivity. We agree with the Administrative Law
Judge that the evidence of discriminatory motive is
sufficient to support the violation found.
In Pepsi Cola, supra, there were no questions regarding
the successor employer's actions in pursuit of its own
original work force. Some 2 days before the sale of the
business to the successor, a meeting was held with the
Union to discuss the effects of the sale on unit employ-
ees. Thereafter, all unit employees were terminated in
'4 Laedlaw Corp. 171 NLRB 1366 (1968); NLRB Y. Fleetwood Trailer
Co.. 389 U S 375 (1967)
1009
accord with the conditions of the sale. The successor
originally employed "approximately 80 to 85 percent of
the former employees and supervisors."
In the instant case, although the predecessor ceased
operations on January 31, 1983, and terminated all unit
employees, the record shows through the testimony of
Respondent 's witness , Store Manager Bobby Simmons,
that some of the predecessor's employees were permitted
to return to work on February 3, 1983, without first sub-
mitting job applications.
The definitive rule on economic strikers is found in
NLRB v. Fleetwood Trailer Co. at 376:
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C.
§ 152(3)) provides that an individual whose work
has ceased as a consequence of a labor dispute con-
tinues to be an employee if he has not obtained reg-
ular and substantially equivalent employment. If,
after conclusions of the strike, the employer refuses
to reinstate striking employees, the effect is to dis-
courage employees from exercising their rights to
organize and to strike guaranteed by §§ 7 and 13 of
the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157 and
163). Under §§ 8(a)(1) and (3) (29 U.S.C. § 158(1)
and (3)) it is an unfair labor practice to interfere
with the exercise of these rights. Accordingly,
unless the employer who refuses to reinstate strikers
can show that his action was due to "legitimate and
substantial business justifications ," he is guilty of an
unfair labor practice. NLRB v. Great Dane Trailers,
388 U.S. 26, 34 (1967). The burden of proving justi-
fications is on the employer. Ibid. It is the primary
responsibility of the Board and not of the courts "to
strike the proper balance between the asserted busi-
ness justifications and the invasion of employee
rights in light of the Act and its policy." Id., at 33-
34. See also NLRB v. Erie Resistor, 373 U.S. 221,
228-229, 235-236, (1963). Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951), is not an invitation to
disregard this rule.
In [two types of] situations, "legitimate and sub-
stantial business justifications " for refusing to rein-
state [striking employees] have been recognized.
[The first] is when the jobs ]which the strikers
claim[ are occupied by workers hired as permanent
replacements during the strike in order to continue
operations. NLRB v. Mackay Radio & Telegraph
Co., 304 U.S. 333, 345-346 (938); NLRB v. Plastilite
Corp., supra; Brown & Root, 132 NLRB 486 (1961).
In the present case , respondent hired 21 replace-
ments during the strike, compared with about 55
strikers; but it is clear that the jobs of the six strik-
ers were available after the strike. Indeed, they
were filled by new employees.
A second basis for justification is suggested by
the Board-when the striker's job has been eliminat-
ed for substantial and bona fide reasons other than
considerations relating to labor relations : for exam-
ple, "the need to adapt to changes in business condi-
tions or to improve efficiency."
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Subsequent decisions of the courts have shown a tend-
ency to apply reasoning behind Pepsi Cola and Fleetwood.
For example , in Marlene Industries Corp. v. NLRB, supra,
the circuit court found that former strikers retain their
status as employees after a successor assumes operations
but that it is necessary for the General Counsel to prove
those former strikers were discriminatorily denied rein-
statement by being deprived of their Laidlaw rights.
Therefore, in view of the law expressed in Marlene In-
dustries Corp. v. NLRB, I shall examine whether the
former economic strikers were discriminatorily denied
Laidlaw employment rights by Respondent on or after
February 2, 1983, because of their strike activity.
According to Meat Supervisor Carl Schroat , Respond-
ent's entire meat department work force was hired from
former employees of the predecessor.
A successor employer is free to choose its own work
force . However, a successor, as any employer, is re-
quired to hire without regard to an employee 's protected
activities.' 5
F. The Original Work Force
On February 3, 1983, Respondent began operations
with some 77 meat department employees . Respondent
contends that only written applications were considered
in selecting the original work force on the evening of
February 2, 1983. However, that position is not support-
ed by the record. All the applications were received by
store managers or by the assistant store managers on
February 2, 1983. Only one of those managers testified-
Bobby Simmons . Simmons admitted that some employees
included in the February 3, 1983 work force did not
submit written applications until they reported for work.
In view of Simmons ' testimony , the record shows, and I
find, that some of the employees were hired on February
2, 1983, without first submitting written applications. I
cannot find that Respondent was justified in refusing to
consider former strikers for employment on February 2,
1983, solely because they failed to submit written appli-
cations in view of the above record testimony . 16 I must
keep in mind that Respondent 's high level management
were well aware on February 2, 1983, that all 24 former
strikers had personally and unconditionally offered to
return to work in November and December 1982. Both
Director of Personnel George Tamez and Meat Supervi-
sor Carl Schroat admitted their awareness of the former
strikers ' November and December offers. Nevertheless,
not a single former striker was considered for employ-
ment on February 2, 1983. Since Respondent's practice
was shown to occasionally include consideration and
hiring of applicants with no written applications , it is ap-
parent , and I find, that the former economic strikers
Is Foodway of El Paso, 201 NLRB 933 (1973), NLRB v. Burns Security
Services , supra at fn 5 . General Processing Corp, 267 NLRB 1281 (1983),
Sun Coast Foods, 273 NLRB 1642 ( 1985).
18 Meat Supervisor Schroat testified that he selected 100 percent of his
original meat department employees from the former work force of the
predecessor. Schroat also testified that he selected all his original employ-
ees from applicants that submitted written applications on February 2,
1983 Schroat testified that he considered only written applications before
him and that he did not have written applications from any former strik-
ers on February 2, 1983
should have been considered for employment on and
after February 2, 1983, without regard to whether they
had previously submitted personal written applications.17
Moreover, several of those former strikers did person-
ally apply for work as shown above on February 2,
1983. All were rejected and most were denied the oppor-
tunity to submit an application.
In that regard , I am well aware that some of the testi-
mony fails to show that a particular former striker ap-
plied to a supervisor of Respondent on February 2.
Moreover, other testimony by some of the former strik-
ers cannot be credited. However, again as shown above,
other former strikers applied for work with supervisors
of Respondent on and after February 2, 1983.
Irene Ponce and Edward Martinez were denied appli-
cations by the admitted manager of store 11, Laubach.
Beatrice Arredondo was told by Assistant Manager
Garcia of store 11 , that "they were out of applications."
Frankie Danmon submitted a written application . Rebec-
ca Castillo was told by a man with an assistant manager's
badge that he was not taking applications . After the man-
ager of store 9 was paged , he told Rose Mary Burk that
"he already had hired all he needed ." Henry Perez was
told by a "man in the office," there were "no applica-
tions available." Rose Polk spoke to the man pointed out
as the manager of store 3 and was told they were not
taking any more applications . Pete Ruiz was told by the
man in charge of applications at store 9 that they were
.,not giving out no more applications ." Joe Huerta sub-
mitted a written application to the manager at store 41.
Alice Arriaga talked to the man identified as the store
manager, store 15, but was told they were not taking ap-
plications . Onelia Heredia talked to the manager, store
15, after he was paged . 18 I credit the above testimony
which illustrates that many of the former strikers took
substantial steps to apply for work with Respondent. All
were rejected without being considered for employment.
17 Despite the above finding, the cited cases of Fleetwood and Marlene
Industries would appear to require due consideration to employing the
former strikers on and after February 2, regardless of Respondent's prac-
tice (i e , whether or not it considered only written applications)
18 Testimony which I credit , proves the following as to their dates of
application for employment-
(a) Irene Ponce , Beatrice Arredondo , Rebecca Castillo, Rose Polk,
and Pete Ruiz applied on February 2, 1983
(b) Frankie Danmon and Joe Huerta submitted written applica-
tions which were not included in the record herein . I presume those
written applications will reflect the date of application . If not, I
credit Danmon 's testimony that she went in immediately upon hear-
ing that another company was taking over Handy Andy. Since
Danmon received an application, I shall apply the earliest date those
application forms were available-February 2, 1983-as the date of
her application absent availability of her original application showing
a different date . In the absence of a dated original application, I
credit Joe Huerta's testimony that he applied in February 1983 I
shall conclude his application was the last work day in February
since he was unable to credibly recall a different date
(c) Alice Arriaga , Edward Martinez , and Henry Perez were not
specific as dates Their testimony reveals that they applied shortly
after the February 3 opening Due to their lack of specificity, I con-
clude they applied on the last work day in February 1983 Alice Ar-
riaga subsequently submitted a written application in August 1983
Rose Mary Burk gave two possible dates , February 2 and 3 , 1983. 1
conclude she applied on February 3, 1983 Onelia Heredia applied at
store 15 on February 3, 1983
HANDY ANDY, INC.
Subsequent to February 2, 1983, Allen Love requested
a meat department application for employment.19 On
June 14, 1983, the Union sought the reemployment of all
strikers by submitting an unconditional offer directly to
Respondent.
Despite the above-mentioned efforts by, and on behalf
of, the strikers, only three former strikers were ever suc-
cessful in submitting written applications . Meat Supervi-
sor Schroat testified that he was unsure of whether Dan-
mon's and Huerta's applications remain on file.
Respondent originally hired 77 meat department em-
ployees. It now has 115 in the meat department. Some
that have been hired have since left-at least 24 accord-
ing to George Tamez-and all those have been replaced.
Nevertheless, not one former striker has been employed
at any time since Respondent initiated its operations.
Meat Supervisor Carl Schroat testified that strikers
Danmon and Huerta , who submitted written applica-
tions, were rejected because "I guess it was probably be-
cause of the previous experience I had with the produc-
tion ." However, no documentation was offered to sup-
port that testimony . Schroat was unable to recall the spe-
cifics of the alleged poor production. He did not recall
the years during which the alleged problems existed. De-
spite those alleged problems, both Danmon and Huerta
were long-term employees under Schroat's supervision.
Danmon began work for the predecessor in July 1965.
Joe Huerta began work in 1968 . In view of the entire
record, I do not credit Schroat's alleged basis for deny-
ing employment to Danmon and Huerta . His testimony
was too vague and failed to include any specific grounds.
Schroat testified that he did not recall the manner in
which meat department vacancies were filled after Feb-
ruary 2, 1983, but in "most cases, I was promoting ap-
prentices and part-time people into full time situations."
In view of the entire record, I find that testimony il-
lustrates a pretextuous basis for rejecting strikers.20 As
shown above, the strikers and the Union have made sev-
eral unconditional offers to return to work. None of
those offers limited availability to full-time work. Never-
theless, and despite Schroat's alleged practice of promot-
ing part-time employees, no former striker was ever of-
fered a part-time position.21
It is apparent that Respondent discriminated against
the former strikers by consistently refusing to consider
each of them for jobs that appeared on and after Febru-
ary 2, 1983. According to Carl Schroat, he considered
only former strikers that had personally submitted writ-
19 Love testified that he applied at store 17 on February 2, 1983 How-
ever, his testimony revealed that when he applied the store was open for
business Since the stores did not open for business until February 3, 1
find that Love did not apply before February 3, 1983
20 The above finding appears unnecessary to establish a violation. It is
well established that an employer has an obligation to offer former strik-
ers jobs as they become vacant unless the employer proves it had "legiti-
mate and substantial business j ustification" (NLRB v Fleetwood Trailer
Ca, supra). The record contains nothing which would support the al-
leged practice of promoting apprentices and part -time employees on the
grounds of "legitimate and substantial business justification."
21 It should not be inferred that the above -stated reasoning justifies a
remedy which would include an offer of part -time work for strikers. The
above comments are intended solely to illustrate the finding that
Schroat 's alleged part -time promotion was offered as a pretextual basis
for justifying discriminatory actions against former strikers.
1011
ten applications . That practice violates the mandates of
Laidlaw and Fleetwood Trailer (see below). Moreover, as
shown above, the record illustrated that even Danmon,
Huerta, and Arriaga, who submitted written applications,
were treated discriminatorily and not actually considered
for employment.
The record shows that Respondent first violated the
Fleetwood Trailer doctrine by discriminating against strik-
ers in its original hiring process . Employees that worked
for the predecessor employer were not required to
submit written job applications before being considered
for employment on February 3, 1983. Store Manager
Simmons admitted that some employees were selected
and permitted to report to work on February 3, even
though they did not complete written applications until
after they reported to work on that day. There was no
showing by Respondent22 that any former nonstriker
employee of the predecessor was rejected for employ-
ment because he/she failed to submit a written applica-
tion on or before February 3.
The above findings establish:
(1) Bona fide unconditional offers were made by the
Union on behalf of all 24 former striker employees on
November 24, 1982, and June 13, 1983. The plain words
of the Union's letters can have no other import.23 See
NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 529 (3d
Cir. 1977). Additionally, as shown above, all the former
strikers individually applied for work with George
Tamez, director of personnel for both Respondent and
the predecessor employer in November and December
1982. Thirteen of the former strikers subsequently ap-
plied to supervisors of Respondent on and after February
2, 1983.
(2) Respondent , through its admitted agents, was
aware of the Union's November 24, 1982 unconditional
offer as well as the personal offers of the former strikers
in November and December 1982, and of those made to
supervisors of Respondent after February 1, 1983. The
Union's June 13, 1983 offer was made directly to Re-
spondent.
(3) Respondent as a successor employer, had an "obli-
gation to reinstate the economic strikers when it received
an unconditional offer to return to work." Marlene In-
dustries Corp. v. NLRB, 712 F.2d 1011, 1022 (6th Cir.
1983). Moreover, Respondent has an obligation to avoid
discrimination because of an applicant's former strike ac-
tivity without regard to its successorship status.
(4) Respondent treated the former strikers discrimina-
torily by requiring, from February 2, 1983, that each
submit individual written applications as a condition of
their being considered for employment. See Marlene In-
dustries Corp. v. NLRB, supra at 1018; NLRB v. W. C.
McQuaide, Inc., supra.
(5) Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to nondiscriminatorily consider former
22 In accord with Fleetwood Trailer, the employer has the burden of
proving business justifications for not reemploying economic strikers
zs Supervisor Schroat admitted that he knew the strikers by name.
Therefore , neither Respondent nor its predecessor employer were
harmed by the Union's failure to name each striker in its letter
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strikers for employment in its meat department on and
after February 2, 1983.
(6) The employer failed to establish that the former
strikers were denied employment consideration because
of legitimate and substantial business reasons. NLRB v.
Fleetwood Trailer Co., supra.
(7) Respondent is obligated to offer work to economic
strikers after unconditional offers to return upon the ter-
mination of permanent replacements or when job vacan-
cies otherwise occur. Marlene Industries Corp. v. NLRB,
supra.
(8) In accord with the testimony of Meat Supervisor
Schroat, all Respondent 's original meat department work
force was hired on February 2, 1983. To the extent those
hired included employees hired by the predecessor em-
ployer as a replacement for strikers during the April 24
to November 24, 1982 strike, but subsequently dis-
charged by the predecessor employer on January 31,
1983, or earlier , Respondent discriminated against former
striker employees by refusing to place the 24 alleged dis-
criminatees in positions filled by each discharged former
replacement employee. Thereafter, to the extent all or
some of the former strikers were not discriminatorily
denied employment on February 2, 1983, the strikers
were discriminatorily denied employment on each occa-
sion a meat department position was filled beginning on
the earliest occasion a vacancy was filled after February
2, 1983, and continuously thereafter until all the strikers
should have been reemployed.
CONCLUSIONS OF LAW
1. Respondent , Southwest Merchandising Corporation
d/b/a Handy Andy, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Food and Commercial Workers International
Union, AFL-CIO, Local Union No. 171 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By failing and refusing to reemploy the 24 employ-
ees named below in the section of this decision entitled
"The Remedy," after unconditional offers to return to
work have been made by or on behalf of each of those
named employees , and when said jobs were available,
Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall order it to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent refused to reemploy
the below named discriminatees in violation of Section
8(a)(1) and (3) of the Act, I shall order Respondent to
offer each of the below named employees immediate and
full employment to the positions formerly held by each,
or, if those positions no longer exist , to substantially
equivalent positions without prejudice to their seniority
and other rights and privileges , discharging , if necessary,
anyone discriminatorily hired in place of one of the
below named discriminatees , and to make each of the
below named discriminatees whole for any loss of earn-
ings he or she may have suffered as a result of the dis-
crimination practiced by Respondent. 24 Backpay and in-
terest shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977):25
Stella Alvarado
Beatrice Arredondo
Alice Arriaga
Fred V. Barboza
Pauline H. Cabido
Alice C. Cabrera
Alfred Canedo, Jr.
Rebecca E. Castillo
Frankie L. Danmon
Mary Alice Guzman
Rose Mary Burk
Carlos Dimas, Sr.
Joe O. Huerta
Allen Love
Joe R . Lopez, Jr.
Rosa E. Moralez
Henry B. Perez
Rose Polk
Irene M. Ponce
Pete Ruiz
Shirley A. Walker
Roger Wendel
Onelia M. Heredia
Edward Martinez
ORDER26
The Respondent , Southwest Merchandising Corpora-
tion d/b/a Handy Andy, Inc., San Antonio , Texas, its of-
ficers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to reemploy or otherwise discriminating
against any employee for having engaged in a lawful
strike or other concerted activity protected under the
provisions of Section 7 of the National Labor Realtions
Act, as amended.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full employment to the em-
ployees listed in the section of this decision entitled "The
Remedy," to the position formerly occupied by each re-
spective discriminatee , or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, dis-
charging , if necessary , anyone discriminatorily hired in
place of one of the named discriminatees, and make each
named discriminatee whole for any loss he/she may have
suffered as a result of our discrimination in the manner
set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
84 Nolan Systems Inc., 268 NLRB 1248 (1984).
25 See generally Isis Plumbing Ca, 138 NLRB 716 (1962)
26 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
HANDY ANDY, INC. 1013
(c) Post at its facility in San Antonio , Texas, copies of
the attached notice marked "Appendix."27 Copies of the
notice, on forms provided by the Regional Director for
Region 23 , after being signed by Respondent's authorized
10 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
representative, shall be posted by Respondent immediate-
ly 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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 23 in
writing within 20 days from the date of this Order what
steps Respondent has taken to comply.