Harvey Mfg., Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1992

309 N.L.R.B. 465 (N.L.R.B. 1992)

465
309 NLRB No. 71
HARVEY MFG.
1 The Respondent filed no exceptions to the judge’s decision.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 All subsequent dates are in 1989 unless otherwise noted.
4 No joint-employer issues are before us concerning the relation-
ship between the Respondent and First Temp. First Temp was, how-
ever, at the least, an agent of the Respondent with respect to the hir-
ing and employment of these employees. See, e.g., Storall Mfg. Co.,
275 NLRB 220 fn. 3 (1985), enfd. mem. 786 F.2d 1169 (8th Cir.
1986).
Harvey Manufacturing, Inc. and International
Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO,
Local 376FW, affiliated with International
Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO. Cases
16–CA–14245–2, 16–CA–14327, 16–CA–14419,
and 16–CA–14464
November 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 12, 1992, Administrative Law Judge
James S. Jenson issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. OVERVIEW
The issues in this case arose from an economic
strike by the Respondent’s production employees, and
the Respondent’s refusal to reinstate the strikers imme-
diately on the Union’s unconditional offer for them to
return to work. The judge concluded that replacements
retained in their stead were permanent, and this con-
clusion led him to find that only a small fraction of
the Respondent’s denials of reinstatement were unlaw-
ful. As fully set forth below, we do not agree with
major aspects of the judge’s analysis. Unlike the judge,
we find that the Respondent has not established that
any of the disputed replacement employees were per-
manent. Thus they could not lawfully be retained fol-
lowing the offer to return, and the Respondent has vio-
lated the Act substantially as alleged in the complaint.
The Respondent manufactures and assembles tele-
vision sets and related equipment. Its business de-
mands are cyclical, with more production employees
needed from July through December than in the first
half of the year. The Respondent and its predecessor
have had a long-term collective-bargaining relationship
with the Union, which represents the production em-
ployees. The parties’ collective-bargaining agreement
during the events of this case was effective from Au-
gust 1, 1987, until August 1, 1990. Pursuant to a
wage-reopener provision, the parties began midterm
negotiations in January 1989.3 With the parties unable
to reach agreement on a new wage schedule, 279 pro-
duction employees initiated an economic strike on Feb-
ruary 3. In light of the strike, the Respondent and the
Union agreed that the collective-bargaining agreement
would remain in effect except for the no-strike/no-
lockout clause and the relevant wage provisions.
In mid-February, the Respondent warned the strikers
that they would be permanently replaced if they did
not return to work. Between late February and July,
the Respondent, through its own direct efforts, hired
about 200 replacement workers. Under the terms of the
collective-bargaining agreement, these replacements
began as probationary employees and ‘‘became perma-
nent’’ after a 30-working-day probationary period. The
status of these 200 employees as permanent replace-
ments is not at issue in this case. In addition, of the
approximately 300 employees who were on layoff
when the strike began, 100 returned to work during the
strike.
The Respondent, because of its cyclical production
requirements, estimated that it would need an addi-
tional 300 employees during the fall months. On Au-
gust 31, it entered into a written agreement with First
Employment Agency, d/b/a First Temporaries of Ath-
ens (First Temp) for the referral of these additional
employees. First Temp began interviewing in the first
week of September and began referring employees to
the Respondent soon afterward.4 There is no dispute
that the First Temp-referred employees were to fill va-
cancies which would have been available to the strik-
ing employees were it not for the strike, and that they
were thus, effectively, striker replacements.
On September 13, the striking employees voted to
end the strike, and the Union communicated to the Re-
spondent an unconditional offer for them to return to
work. There is no dispute that this offer was effective
the morning of September 14. First Temp continued to
refer replacement workers to the Respondent until Sep-
tember 29. Between August 31 and September 29, the
period during which the Respondent and First Temp
maintained their agreement, First Temp referred, and
the Respondent employed, approximately 265 employ-
ees. After September 29, the Respondent, having taken
the position that all the First Temp workers were hired
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Although, as explained below, we believe the judge’s finding that
the offers were for permanent employment was erroneous on this
for permanent employment, began to reinstate former
strikers as vacancies became available.
In mid-November, as its production needs decreased,
the Respondent initiated economic layoffs. The layoffs,
which involved both reinstated strikers and First Temp
employees, were conducted pursuant to the relevant
provisions of the collective-bargaining agreement. Sub-
sequently, both reinstated strikers and First Temp em-
ployees were recalled from layoff. The First Temp em-
ployees were recalled ahead of former strikers who
were still awaiting reinstatement following the strike.
The train of events summarized above led the Union
to file several unfair labor practice charges, and the
General Counsel to issue a complaint alleging viola-
tions of Section 8(a)(3) and (1) with respect to, inter
alia, both the failure to reinstate all strikers imme-
diately pursuant to the September 14 offer to return
and the subsequent failure to recall unreinstated strik-
ers instead of laid-off First Temp employees. In his de-
cision the judge concluded that certain violations oc-
curred, but within a scope significantly narrower than
that alleged by the General Counsel. We find merit in
the General Counsel’s exceptions to the judge’s refusal
to find the violations as alleged.
II. DISCUSSION
As explained below, we are reversing the judge on
three basic issues. First, applying the rule that an em-
ployer has the burden of establishing that replacements
for economic strikers were hired as permanent, rather
than temporary, employees in order to establish a suffi-
cient business justification for refusing to reinstate
strikers who have unconditionally offered to return, we
find that the Respondent has not carried its burden
with regard to the First Temp employees; and it has
therefore violated the Act as alleged in the complaint
in denying strikers reinstatement to the First Temp em-
ployees’ positions. Second, we find that the judge
erred in finding, on the basis of a l0-day termination
notice provision in the contract between the Respond-
ent and First Temp, that the Respondent’s reinstate-
ment obligation did not become effective until l0 days
after the strikers’ unconditional offer to return. Finally,
because we have found that the First Temp employees
were not permanent replacements, we find that the Re-
spondent violated Section 8(a)(3) and (l) of the Act
when, after a short-term economic layoff of these re-
placements, it recalled them, rather than former strikers
awaiting reinstatement, to their positions.
Preliminarily, we note the following points of ref-
erence for our review of the issues. In Zapex Corp.,
235 NLRB 1237 (1978), enfd. 621 F.2d 328 (9th Cir.
1980), the Board summarized the essential, settled
principles governing the reinstatement rights of eco-
nomic strikers:
In NLRB v. Fleetwood Trailer Co., Inc., 389 U.S.
375, 378 (1967), the Supreme Court held that if,
after conclusion of a strike, the employer ‘‘refuses
to reinstate striking employees, the effect is to
discourage employees from exercising their rights
to organize and to strike guaranteed by [Sections]
7 and 13 of the Act . . . . 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. The burden of proving
justification is on the employer.’’ The Court in
Fleetwood relied on its decision in NLRB v. Great
Dane Trailers, Inc., 388 U.S. 26, 34 (1967),
where it held that ‘‘once it has been proved that
the employer engaged in discriminatory conduct
which could have adversely affected employee
rights to some extent, the burden is on the em-
ployer to establish that he was motivated by le-
gitimate objectives since proof of motivation is
most accessible to him.’’ In reevaluating the
rights of economic strikers in light of Fleetwood
and Great Dane, the Board in The Laidlaw Cor-
poration, 171 NLRB 1366, 1369 (1968), stated
that:
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer
conduct, standing alone, is so inherently de-
structive of employee rights that evidence of
specific antiunion motivation is not needed.
235 NLRB at 1238. In this proceeding, the General
Counsel established a prima facie case of unlawful dis-
crimination by proving that the economic strikers,
through their Union, made an unconditional offer to re-
turn to work on September 14, and that the Respond-
ent failed to reinstate them, thereby presumptively dis-
couraging the exercise of their rights under the Act. It
was the Respondent’s burden to show that its failure
to offer reinstatement was due to ‘‘legitimate and sub-
stantial business justifications.’’ The Respondent’s pri-
mary ‘‘business justification’’ defense in support of its
denial of immediate reinstatement to the strikers was
that they had been permanently replaced by the First
Temp employees.
A. The Status of the First Temp Employees
The judge agreed with the Respondent that the First
Temp employees, for the most part, were legitimate
permanent replacements for the striking employees. In
making this finding, the judge relied on evidence that
the Respondent, through First Temp, made statements
of a commitment to that effect to the applicants at the
time they were hired.5 The judge was convinced of the
467HARVEY MFG.
record, we do not fault his legal conclusion that if the Respondent,
through First Temp, had offered the employees permanent employ-
ment status on the satisfactory completion of a 30-working-day pro-
bationary period, the employees who knowingly accepted such offers
would be permanent replacements for the economic strikers. See,
e.g., Solar Turbines, 302 NLRB 14 (l991). Member Oviatt, who was
not on Solar Turbines, agrees with this analysis.
adequacy of this commitment primarily by the credited
testimony of Christine Wilbanks, a principal of First
Temp, and Melba Grissin, an applicant for a replace-
ment job with the Respondent.
Wilbanks testified that during the job interviews she
told each of the applicants that the openings at the Re-
spondent’s facility were permanent positions, and that
those hired would be converted to permanent employ-
ees of the Respondent on their satisfactory completion
of a 30-working-day probationary period. Grissin, a
witness for the General Counsel, testified that, in re-
sponse to her question at the interview whether the job
offer with the Respondent was permanent or tem-
porary, she was told that it was a permanent position
subject to a 30-day trial period. In addition, although
he did not specifically rely on it in support of his find-
ing, the judge noted the testimony of Personnel Coor-
dinator Benny Garza that he told all of the First Temp
employees on their arrival at the Respondent’s facility
that they were permanent replacements for the strikers.
A substantial amount of documentary evidence was
also considered by the judge in evaluating the status of
the First Temp employees. The most significant docu-
ments for purposes of our review break into three cat-
egories. First are the written agreements between First
Temp and those it hired, signed by every employee re-
ferred by First Temp to the Respondent. Each such
document stated, in relevant part:
TEMPORARY AGREEMENT
I will be working as a temporary through the
efforts of 1ST TEMPORARIES. Salary will be
paid me by 1ST TEMPORARIES.
I understand there are no company benefits in-
volved.
It is understood that failure to report to work
and absence without proper notification will be
considered a voluntary leave of employment.
Date lllll
Applicant’s Signature lllllllll
Next are the referral slips given by First Temp to each
referred employee and presented to the Respondent on
first reporting to work. Below the First Temp logo and
its address and telephone number is the heading ‘‘Re-
ceipt For Introduction—Referral For Temporary Posi-
tion,’’ followed by the employee’s name and specific
referral information. The final category of documents
consists of a statement concerning terms and condi-
tions of employment with the Respondent given to
each of the referred employees by First Temp. The
statement, in relevant part, is as follows:
TO: ALL NEW EMPLOYEES WORKING AS
TEMPORARIES FOR HARVEY INDUSTRIES,
INC.
You will be working for us as a temporary em-
ployee for 30 working days (count Monday thru
Friday only). If you work on Saturdays, you do
get paid but it does not go toward your count.
This takes approximately 6 weeks to complete.
During this time you will receive your paycheck
from us, but we deliver them to Harvey Indus-
tries, Inc. for you to have when everyone else is
paid. You will receive your first paycheck on
[date] and you will be paid every Friday there-
after. If you have any questions about mistakes on
the check, call us—if you have any questions
about your hours, talk to your foreman or to us.
At the end of the 30 working day period, if you
like the job and if your work performance is satis-
factory, Harvey Industries, Inc. will transfer you
to their payroll. You are up for review and pos-
sible raise every 4 months. You will receive in-
surance benefits on the 1st. (first) day of the
month after your 30 working days.
You will be paid overtime after 40 hours are
reached. Lateness and absences are rarely excused
and you will be terminated if you are late or ab-
sent. To report absences or lateness, call Harvey
Industries, Inc., at 673–2121 well before your
shift begins.
At some point in the middle of September—the exact
date was not established—the references to ‘‘tem-
poraries’’ and ‘‘temporary’’ on this document were
changed to read ‘‘probationary.’’
Concerning the last of the documents above, the
judge found that the reference to terms and conditions
of employment with the Respondent after the 30-work-
ing-day period tended to support the conclusion that a
permanent employment commitment had been made
when the First Temp employees were hired and re-
ferred to the Respondent. Otherwise, it is apparent that
the judge did not view the documents above as having
any significant impact on the sufficiency of the Re-
spondent’s asserted commitment to the First Temp em-
ployees for permanent employment.
We disagree with the judge’s evaluation of the evi-
dence concerning the status of the First Temp employ-
ees, and we reverse his conclusion that these employ-
ees were permanent replacements for the strikers. The
permanent replacement of economic strikers, a substan-
tial and legitimate business justification for refusing to
reinstate former strikers, is an affirmative defense and
the employer has the burden of proof. See, e.g., Asso-
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We place no weight on the fact that this document was amended
to state ‘‘probationary’’ instead of ‘‘temporary’’ in the middle of
September, because the Respondent did not prove whether this oc-
curred before or after the end of the strike on September 14. If it
occurred after September 14, the amendment is irrelevant because,
as explained below, no First Temp employee hired after the end of
the strike acquired any legitimate status, either as a permanent or a
temporary replacement for a former striker. Given the absence of
proof that it occurred before September 14, and in consideration of
the Respondent’s burden to establish the nature of the replacements’
employment as permanent, we find that each First Temp employee
hired to work for the Respondent before September 14 received the
version of the working-conditions statement which referred to them
as temporary employees.
7 The General Counsel contends that an adverse inference should
be drawn against the Respondent because of its failure to call First
Temp employees to testify to their understanding of their employ-
ment status. We think such a finding unwarranted in the cir-
cumstances, although we note that in light of the contradictory char-
acter of the evidence, some showing of this sort would have been
useful in evaluating the extent of the First Temp employees’ under-
standing of their employment status at the time they were hired. It
is also worth noting that there is a distinct limit on the value of
Melba Grissin’s testimony concerning the ‘‘mutual understanding’’
issue. She was an applicant at First Temp but chose not to be hired;
she never became a replacement employee; and she did not receive
the documents given to the First Temp referrals. Finally, even if the
judge had clearly credited and relied on Personnel Coordinator
Garza’s testimony concerning his statements to the First Temp em-
ployees that they were permanent replacements, the Respondent’s
showing would still be insufficient because the evidence overall
would still be ambiguous as to the employees’ status.
ciated Grocers, 253 NLRB 31, 31–32 (1980), affd.
mem. sub nom. Transport Drivers Local 104 v. NLRB,
672 F.2d 897 (D.C. Cir. 1981), cert. denied 459 U.S.
825 (1982). Significant in meeting this burden is an
adequate showing that there was a mutual understand-
ing between the employer and the replacements that
the nature of their employment is permanent. Hansen
Bros. Enterprises, 279 NLRB 741 (1986), enfd. mem.
812 F.2d 1443 (D.C. Cir. 1987), cert. denied 484 U.S.
845 (1987).
In this case, we recognize that oral representations
were made at various points to the First Temp employ-
ees that they were being offered permanent replace-
ment positions. This is clear from the credited testi-
mony of Wilbanks and Grissin. However, during the
course of the hiring and referral process the employees
were given a series of documents which consistently
contradicted those representations. Thus, everyone of
the 265 employees referred by First Temp to the Re-
spondent not only received but signed a document enti-
tled ‘‘Temporary Agreement,’’ the first sentence of
which began ‘‘I will be working as a temporary . . .
.’’ Further, each of them received and presented to the
Respondent a referral slip identifying their employment
as a ‘‘Temporary Position.’’ In addition, every First
Temp employee referred to the Respondent until some-
time in the middle of September received an expla-
nation of terms and conditions of employment which,
although referring in part to longer term employment
conditions with the Respondent after the 30-working-
day period, still was addressed to ‘‘New Employees
Working As Temporaries for Harvey Industries, Inc.,’’
and began with the statement ‘‘You will be working
for us as a temporary employee.’’6
Taking account of the evidence submitted concern-
ing the First Temp employees’ understanding of the
nature of their employment with the Respondent, we
find that, at best, they received an array of mixed sig-
nals: oral statements asserting to them their status as
permanent employees, contradicted by documents
given to them consistently stating that they were tem-
porary hires. The resulting impression, judged in its
entirety, is necessarily ambiguous. Accordingly, we
cannot find on this record that the First Temp employ-
ees clearly understood when they were hired that the
Respondent’s intention was that they be permanent
employees. In these circumstances we further find that
the Respondent did not sufficiently establish that there
was a mutual understanding between itself and the
First Temp employees that they were being hired on
a permanent basis.7 We conclude accordingly that the
First Temp employees were no more than temporary
strike replacements. See Hansen Bros., supra, Associ-
ated Grocers, supra. See also J. M. Sahlein Music Co.,
299 NLRB 842 (1990); Augusta Bakery Corp., 298
NLRB 58 (1990), enfd. 957 F.2d 1467 (7th Cir. 1992).
Apart from its asserted permanent-replacement jus-
tification, the Respondent defended its failure to rein-
state the strikers immediately—specifically, its delay in
beginning the reinstatement of strikers until after Sep-
tember 28—by asserting that the Union subsequently
placed ‘‘conditions’’ on its September 14 uncondi-
tional offer for the strikers’ return which slowed down
the initiation of the reinstatement process. We agree
with the judge’s rejection of this position, which is
fully detailed in his decision. The Respondent did not
raise any other ‘‘legitimate and substantial business
justifications’’ to counter the General Counsel’s show-
ing that it unlawfully failed to reinstate the strikers im-
mediately following the unconditional offer. Accord-
ingly, consistent with the principles of Fleetwood,
Great Dane, and Laidlaw, supra, we conclude that the
Respondent’s conduct in this regard violated Section
8(a)(3) and (1).
B. The Agreement Between the Respondent and
First Temp
Although the Respondent did not raise its contract
with First Temp as a business justification for delaying
or denying reinstatement to strikers, the judge found,
sua sponte, that certain provisions of the contract made
it reasonable for the Respondent to delay to some ex-
tent in reinstating the strikers. Thus, in the context of
his finding that the First Temp employees were perma-
nent replacements, he permitted the Respondent a 10-
469HARVEY MFG.
8 The judge found that the Respondent improperly waited for 5
days after the September 14 unconditional offer before filing its ter-
mination notice with First Temp. Accordingly, in the judge’s view,
the Respondent, through First Temp, should have ceased hiring re-
placements on September 24 rather than on September 29.
9 See, e.g., Great Dane, supra 388 U.S. at 34.
10 The 10-day termination-notice provision is particularly ambigu-
ous. It could be read as extending the process of hiring replacements
for 10 days. That appears to be how the judge interpreted it and is
consistent with the parties’ conduct. The point here is that even giv-
ing the Respondent the benefit of this facial ambiguity, the record
does not provide adequate support for a defense under Pacific Mu-
tual Door.
11 In fact, rather than a guaranteed employment period, the docu-
mentary evidence indicates that the Respondent terminated many of
the First Temp employees long before the end of the 30-working-
day period, apparently consistent with its view of them as ‘‘at will’’
employees under art. IV, sec. 5 of the collective-bargaining agree-
ment, i.e., dischargeable ‘‘with or without cause.’’ The absence of
a minimum guaranteed period of employment is further reflected in
First Temp’s statement given to referred employees that they could
be terminated if they were late or absent on days they were to work
for the Respondent. Further, the significance of the 10 day termi-
nation-notice provision is questionable in light of the Respondent’s
5-day delay in acting on it and the implication in its termination-
notice letter of September 19 that no more First Temp employees
should be hired as of that date.
12 We do not view the General Counsel’s discussion of Pacific
Mutual Door in his briefs to the judge and to the Board as a ‘‘con-
cession’’ of its applicability in this case. First of all, there is no evi-
dence of any conduct on the part of the General Counsel on which
the Respondent might have relied, or which might have misled the
Respondent, in choosing not to raise the contract as a defense. The
General Counsel’s briefing of Pacific Mutual Door was, in our view,
a matter of professional responsibility concerning possibly applicable
extant case law. More significantly, his discussion of the case is con-
ditioned on the judge’s and the Board’s determination of its applica-
bility, a condition which the General Counsel never conceded had
been met. In short, the General Counsel’s primary position—most
clear in its posthearing brief and with which its exceptions brief is
consistent—is that the strikers were entitled to reinstatement and
backpay as of the date of the unconditional offer. This primary posi-
tion, entailing a full backpay remedy, is tenable only on the basis
that Pacific Mutual Door is not a controlling authority. In any event,
it would be inappropriate for the Board to consider itself bound by
the representations of the General Counsel concerning a matter of
law, as compared with a concession or admission by the General
Counsel regarding a purely factual matter.
day period after the unconditional offer to continue to
hire permanent replacements for the former strikers,
consistent with the 10-day termination-notice provision
set forth in paragraph 4 of the agreement.8 (A copy of
the original contract is attached to the judge’s decision
as ‘‘Appendix A.’’) The judge’s reasoning appears to
have been guided implicitly by Pacific Mutual Door
Co., 278 NLRB 854 (1986), a case addressed not by
the Respondent but by the General Counsel, both in
his posthearing brief to the judge and in his exceptions
brief before the Board. As explained below, we find
Pacific Mutual Door inapplicable in this case, because
the Respondent failed to establish or even assert this
as an affirmative defense.
In relevant part, Pacific Mutual Door involved an
economic strike by the employer’s employees and a
contractual arrangement between the employer and an
employee-leasing company to supply temporary re-
placements for the strikers. The contract had a 30- day
cancellation-notice provision. The Board concluded
that the employer’s obligation to reinstate the eco-
nomic strikers ‘‘arose’’ on the date of their uncondi-
tional offer to return to work, but it did not ‘‘mature’’
until approximately 30 days after the unconditional
offer because of the cancellation-notice provision. In
effect, the employer’s reinstatement obligation was
postponed for the duration of the notice period. The
Board found that the notice provision constituted a
‘‘legitimate and substantial business justification’’ for
the delay where it was established that the leasing
company had declared the necessity of the provision
and that the provision represented a condition on the
employer’s ability to obtain the temporary replace-
ments in order to continue operations during the strike.
Id. at 855–856.
Pacific Mutual Door is distinguishable from the in-
stant case in view of the Respondent’s failure to raise
the provisions of its contract with First Temp as a
business justification defense for its delay in reinstat-
ing the strikers and for its continuing to fill vacancies
with replacement employees after the unconditional
offer.9 Reviewing the available relevant evidence, it
would appear that, on the face of the contract, two pro-
visions might be applicable: the agreement to employ
each worker for 30 working days, and the agreement
to provide 10 days’ written notice of termination of the
contract. There is scant evidence in the record, how-
ever, shedding light on the contracting parties’ inten-
tions with respect to these provisions, and absolutely
no basis to find that these provisions were necessary
in order to induce First Temp to provide replace-
ments.10 Moreover, there is no showing that there was
a guarantee of 30 working days’ employment for each
First Temp employee or that the contract required that
employees continue to be referred during the 10-day
termination-notice provision.11 Accordingly, under no
view of the evidence in this case can it be perceived
that the Respondent satisfied its burden with respect to
a ‘‘legitimate and substantial business justification’’ of
the kind set forth in Pacific Mutual Door.12
Additionally, in the circumstances presented here,
the terms of the Respondent’s contract with First Temp
do not provide any legitimate basis for altering the
normal remedy for the Respondent’s unlawful refusal
to reinstate the economic strikers. The First Temp em-
ployees were temporary replacements and, given that
status, the economic strikers’ reinstatement rights are
identical to those of unfair labor practice strikers under
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278
(1956). Specifically, they have a right to immediate re-
instatement ‘‘because even economic strikers are enti-
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 After the strikers offered to return to work, the Respondent,
through First Temp, made commitments to hire approximately 100
purported permanent replacement employees, and thereafter allowed
strikers to return only as vacancies arose.
14 Specifically, the second consolidated complaint, dated May 10,
1990, is relevant here.
tled to reclaim their jobs—not just be placed on a re-
hire list—if the jobs are vacant or are occupied only
by temporary replacements when they make their un-
conditional offer to return.’’ Teledyne Still-Man, 298
NLRB 982, 985 (1990), enfd. mem. 938 F.2d 627 (6th
Cir. 1991). Routinely, the economic strikers’ entitle-
ment to immediate reinstatement comprehends the dis-
charge of temporary replacements occupying the strik-
ers’ prestrike or substantially similar jobs. See Coving-
ton Furniture Mfg. Corp., 212 NLRB 214, 220 (1974),
enfd. 514 F.2d 995 (6th Cir. 1975). See also Hansen
Bros., supra at 741 (‘‘where the striker replacements
are only temporary, an offer to return to work which
demands no more than the discharge of those replace-
ments is perfectly appropriate’’).
Further, clear Supreme Court precedent supports the
Board’s authority to nullify private contractual rights
to the extent that they obstruct the purposes of the Act.
In NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
333 (1938), the Court reaffirmed its view of the
Board’s remedial power to order reinstatement of em-
ployees whose discharges constituted unfair labor prac-
tices under the Act, finding no conflict with Fifth
Amendment protections for private contractual rights:
We have held that, in the exercise of the com-
merce power, Congress may impose upon contrac-
tual relationships reasonable regulations calculated
to protect commerce against threatened industrial
strife. NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 48. The Board’s order there sustained re-
quired the reinstatement of discharged employees.
The requirement interfered with freedom of con-
tract which the employer would have enjoyed ex-
cept for the mandate of the statute. The provision
of the Act continuing the relationship of employer
and employee in the case of a strike as a con-
sequence of, or in connection with, a current labor
dispute is a regulation of the same sort and within
the principle of our decision.
304 U.S. at 347–348. In J. I. Case Co. v. NLRB, 321
U.S. 332 (1944), the Court sustained the Board’s Order
setting aside individual employment contracts to the
extent that their terms interfered with the employer’s
bargaining obligations and employees’ rights under the
Act. The Court broadly stated:
‘‘The Board asserts a public right vested in it as
a public body, charged in the public interest with
the duty of preventing unfair labor practices.’’
National Licorice Co. v. NLRB, 309 U.S. 350,
364. Wherever private contracts conflict with its
functions, they obviously must yield or the Act
would be reduced to a futility.
321 U.S. at 337. More recently, in Belknap, Inc. v.
Hale, 463 U.S. 491 (1983), the Court declined to pre-
empt a state court suit claiming damages for misrepre-
sentation and breach of contract filed by discharged
strike-replacement workers against their former em-
ployer. In passing on the issues, the Court reaffirmed
its view expressed in J. I. Case that the Board has the
authority to set aside private contracts to the extent
they conflict with the purposes of the Act, 463 U.S.
at 506, and it reaffirmed the Mastro Plastics principle
of immediate reinstatement for former unfair labor
practice strikers, 463 U.S. at 508. By implication at the
very least, the Court endorsed the Board’s authority to
disregard private employment contracts between strike
replacement employees and an employer to the extent
necessary to carry out a remedy of immediate rein-
statement for unfair labor practice strikers, id. at 507–
512.
In light of the principles above and mindful of our
remedial obligations under Section 10(c), we find that
any delay in the reinstatement of the economic strikers
in this case assertedly required by the terms of the pri-
vate contract between the Respondent and First Temp,
and any consequent limitation on the backpay owed to
the discriminatees, would be an unsupportable restraint
on the Section 7 and Section 13 rights of the strikers
and an obstruction of the appropriate remedy for the
Respondent’s 8(a)(3) violation. Private contractual ar-
rangements between an employer and temporary strike
replacement employees, or, more specifically here, a
contract with an employment agency for the supply of
temporary strike replacements, are valid only for the
purpose of filling vacancies left by striking employees
while they are on strike. Once an appropriate offer to
return is made, such contractual arrangements cease to
have any legitimate purpose within the parameters of
the Act, because there is no longer a need to hire re-
placements in view of the strikers’ availability for
work, and, more significantly, because the strikers
have a fundamental right to immediate reinstatement.
It is difficult to conceive of a device more disruptive
of industrial stability and collective-bargaining than
one allowing an employer to replace economic strikers
after they have offered to return to work, either perma-
nently or for some other determinate period.13 Accord-
ingly, the Respondent’s contract with First Temp is set
aside to the extent its provisions may be inconsistent
with our remedy. We will order reinstatement and
backpay for all of the former economic strikers re-
ferred to in the complaint,14 with backpay dating from
September 14, the effective date of the unconditional
471HARVEY MFG.
offer to return. See, e.g., Murray Products, 228 NLRB
268 (1977), enfd. 584 F.2d 934 (9th Cir. 1978).
C. The Layoff and Subsequent Recall of First
Temp Employees
The judge found that the Respondent initiated eco-
nomic layoffs in mid-November which included em-
ployees hired through First Temp, and that it subse-
quently recalled these employees when work became
available instead of offering the positions to former
strikers awaiting reinstatement pursuant to the Septem-
ber 14 unconditional offer. In addition to the unfair
labor practices discussed above, the complaint alleged
that the Respondent violated Section 8(a)(3) and (1) by
this conduct. The judge, based on his prior finding that
most of the First Temp employees were permanent re-
placements vis-a-vis the strikers’ September 14 offer,
concluded that a violation had in fact occurred but was
limited to those vacancies filled by First Temp em-
ployees who were outside the scope of his finding of
permanent status and who were recalled from layoff
instead of former strikers awaiting reinstatement.
In light of our finding above that the Respondent
failed to establish that any of the First Temp employ-
ees were legitimate permanent strike replacements, we
disavow the judge’s analysis of the recall issue here.
See Aqua-Chem, Inc., 288 NLRB 1108 fn. 6 (1988),
enfd. 910 F.2d 1487 (7th Cir. 1990), cert. denied 111
S.Ct. 287 (1991). Because the First Temp employees
were temporary strike replacements whose employment
ceased to have a legitimate basis at the time of the un-
conditional offer, as explained above, it follows that by
subsequently recalling from layoff any First Temp em-
ployees instead of offering the vacancies to the former
strikers awaiting reinstatement, the Respondent vio-
lated Section 8(a)(3) and (1) under Laidlaw principles.
A separate remedial order for this 8(a)(3) violation is
unnecessary in light of our conclusion that all the strik-
ers were unlawfully denied reinstatement as of Septem-
ber 14. Our Order, including reinstatement and back-
pay, for the first 8(a)(3) and (1) violation encompasses
any remedy we might order for the subsequent 8(a)(3)
and (1) violation.
AMENDED REMEDY
We have found, inter alia, that the Respondent un-
lawfully refused to reinstate economic strikers imme-
diately following the Union’s September 14, 1989 un-
conditional offer on their behalf to return to work.
Therefore, in addition to the judge’s recommended
remedy with respect to the independent 8(a)(1) viola-
tion committed by the Respondent, we shall order the
Respondent to offer those employees immediate and
full reinstatement to the positions that they held at the
time they went on strike or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority and other rights and
privileges. In order to make room for them, the Re-
spondent shall dismiss, if necessary, any persons hired
to replace them through First Temporaries of Athens
prior to the end of the strike, and any persons hired
in their place after the strike terminated. We shall fur-
ther order the Respondent to make whole these em-
ployees for any loss of earnings and other benefits they
may have incurred by reason of the Respondent’s dis-
crimination against them, including backpay from the
time of their application to return to work. Backpay,
with interest, shall be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), and
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Harvey Manufacturing, Inc., Athens,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in International Union
of Electronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO, Local 376FW, affiliated
with International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–CIO, or
any other labor organization, by unlawfully failing and
refusing to reinstate or otherwise discriminating against
its employees because they have engaged in protected
strike or other concerted activity for their mutual aid
or protection.
(b) Telling employees that employees hired through
First Temporaries of Athens would receive more favor-
able treatment under the bid process than strikers.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the employees referred to in the second
consolidated complaint, dated May 10, 1990, who en-
gaged in a strike beginning on February 3 and ending
on September 14, 1989, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, dismissing, if necessary, any
persons hired to replace them through First Tem-
poraries of Athens prior to the end of the strike, and
any persons hired in their place after the strike ended,
and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the amended
remedy section of this Decision and Order.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 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.’’
1 The exclusive hire provisions would not begin until September
30, 1989. See item 3 of the contract. I do not rely on the 10-day
termination provision (item 4) in this respect.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records reports, and all other records
necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Post at its Athens, Texas facility copies of the
attached notice marked ‘‘Appendix B.’’15 Copies of
the notice, on forms provided by the Regional Director
for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER RAUDABAUGH, concurring.
I concur in the results reached by my colleagues.
However, with respect to the asserted conflict between
statutory rights and private contract obligations, I have
a separate view. As set forth below, I believe that my
colleagues have failed to draw certain distinctions. In
addition, I do not adopt all that they have said. Ac-
cordingly, I write this separate opinion.
There are two separate matters involved here. First,
the Respondent continued to hire temporary replace-
ments from First Temporaries (First Temp) after the
September 14 request for striker reinstatement. As to
this matter, the contract between Respondent and First
Temp presents no conflict with statutory obligations.
That is, the contract, as of September 14, did not re-
quire Respondent to hire anyone from First Temp.1
Thus, the Respondent’s hiring of more replacements,
after the strikers had asked to come back on September
14, was clearly unlawful and was not required by the
contract.
A second matter does raise a potential conflict be-
tween the contract and statutory obligations. After the
September 14 request for reinstatement, the Respond-
ent continued to employ replacements hired prior to
September 14. The contract provides that an employ-
ee’s ‘‘period of employment will be for 30 days from
hire date.’’ Because these employees had not worked
30 days as of September 14, the contract, on its face,
appears to forbid their discharge so as to make room
for returning strikers. In this respect, the contract may
well be in conflict with the statutory rights of strikers
who wish to return. However, Respondent failed to
raise this matter as an affirmative defense. It is clear
that an employer who fails to reinstate economic strik-
ers on request must plead and prove a legitimate and
substantial justification for failing to do so. Because
Respondent did not plead the contract as an affirmative
defense, I conclude that its failure to reinstate strikers,
from and after September 14, was unlawful. I do not
reach or pass on any issues that would be raised if Re-
spondent had raised this defense.
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in Inter-
national Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO, Local
376FW, affiliated with International Union of Elec-
tronics, Electrical, Salaried, Machine and Furniture
Workers, AFL–CIO, or any other labor organization,
by unlawful failing to reinstate or otherwise discrimi-
nating against our employees because they have en-
gaged in a protected strike or other concerted activity
for their mutual aid or protection.
WE WILL NOT tell employees that employees hired
through First Temporaries of Athens will receive more
favorable treatment under the bid process than strikers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer the employees referred to in the sec-
ond consolidated complaint, dated May 10, 1990, who
engaged in an economic strike beginning February 3
and ending September 14, 1989, immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any persons hired to replace them through First Tem-
poraries of Athens prior to the end of the strike and
any persons hired in their place after the strike ended,
and WE WILL make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
473HARVEY MFG.
1 All dates hereafter are in 1989 unless stated otherwise.
2 Respondent’s staffing requirements were cyclical with fewer em-
ployees needed from January through June than from July through
the rest of the year.
crimination against them, less any net interim earnings,
plus interest.
HARVEY MANUFACTURING, INC.
J. O. Dodson and Elizabeth Kilpatrick, for the General
Counsel.
Robert G. Mebus and William A. Finnegan, of Dallas, Texas,
for the Respondent.
Marvin Menaker, of Dallas, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. These cases
were heard in Tyler, Texas, on December 4 and 5, 1990, pur-
suant to a second consolidated complaint which issued on
May 10, 1990. The consolidated complaint alleges, in sub-
stance, that the Respondent violated Section 8(a)(1) and (3)
by refusing to reinstate certain economic strikers following
an unconditional offer to return to work. The Respondent de-
nies engaging in any unlawful conduct and claims it hired
permanent replacements for the striking employees and is
therefore not obligated to rehire replaced strikers. All parties
were afforded full opportunity to appear, to introduce evi-
dence, to examine and cross-examine witnesses, to argue
orally, and to file briefs. Briefs were filed by the General
Counsel, the Union, and the Respondent, all of which have
been carefully considered.
On the entire record in the case, including the demeanor
of the witnesses and having considered the posthearing
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Harvey Manufacturing, Inc., a Texas corporation, is en-
gaged in manufacturing products for the television industry
in Athens, Texas. It is admitted and found that in a 12-month
representative period it purchased and received at its Athens
plant goods and materials valued in excess of $50,000 di-
rectly from suppliers located outside Texas, and also shipped
products valued in excess of $50,000 from its Athens plant
to customers located outside the State of Texas, and that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that the International Union of
Electronic, Electrical, Salaried, Machine and Furniture Work-
ers, AFL–CIO, Local 376FW, affiliated with International
Union of Electronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. ISSUES
1. Whether, and when, unconditional offers to return to
work were effective.
2. Whether the hiring commitment made to employees
hired through First Temporaries was sufficient to effect the
permanent replacement of strikers.
3. Whether Respondent unlawfully recalled laid-off striker
replacements rather than recall former strikers.
4. Whether Personnel Director Garza threatened employees
that laid-off replacement employees would receive more fa-
vorable treatment than strikers with regard to filling job
openings, transfers and/or promotions.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent is engaged in manufacturing and assembling
television sets and home entertainment theaters for a variety
of customers. It and its predecessor have had a collective-
bargaining relationship with the Union for over 30 years, the
collective-bargaining agreement in effect when this matter
began being effective from August 1, 1987, to August 1,
1990. Article XXI of the agreement, entitled Wage Re-Open-
ing Provision,’’ provided that 18 months after the start of the
agreement, either the Company or the Union could request
midterm renegotiating of the wage schedule, and that upon
failure to reach an agreement within 30 calendar days from
the start of such negotiations, the Union would have the right
to strike and article XIII, no strike, no lock-out provision
would be suspended. Pursuant to the Union’s October 1988
notification that it wished to negotiate a new wage schedule,
the parties began negotiating in January 1989.1 Failing to
reach agreement, the employees voted to strike. On February
3, the employees struck and the parties met with a Federal
mediator and, unable to agree on a new wage schedule,
signed an agreement that the current collective-bargaining
agreement would ‘‘remain in full force and effect during the
entire term of the strike now in progress, with the exception
of the no strike, no lockout clause and negotiable wages.’’
Approximately 279 employees became strikers.
By letter dated February 13, Respondent informed each of
the strikers and employees on layoff that it intended to re-
store the Company ‘‘to full production as soon as possible’’
and that if they did not return to work by 4 p.m., Friday,
February 17, Respondent would ‘‘begin actions to fill your
jobs with permanent replacements.’’ By letter dated February
14, Union President Lonnie Eldridge advised the Respondent
that based on the agreement signed on February 3, the layoff
and recall provisions of their collective-bargaining agreement
were still in effect, that the seniority clause would have to
be honored whenever the strikers returned to work, and that
the Company had ‘‘no right to hire replacements, because se-
niority shall prevail when the strike is terminated.’’ Of ap-
proximately 300 employees on layoff, 100 returned to work
and Respondent took steps to hire an additional 200 ‘‘perma-
nent employees’’ through local newspaper ads.2 The status of
those employees hired as permanent employees through
newspaper ads between February and July are not at issue in
this proceeding. They started working as probationary em-
ployees and, as provided in the collective-bargaining agree-
ment, became permanent upon satisfactory completion of a
30-working-day probationary period.
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A copy of the agreement is attached hereto as Appendix A.
In anticipation of the need for an additional 300 produc-
tion employees during the fall months, Georgia Melton, Re-
spondent’s vice president, contacted Frieda Doolen and
Christine Wilbanks, co-owners of First Employment Agency
d/b/a First Temporaries of Athens (First Temporaries). On
Friday, August 31, Respondent and First Temporaries entered
into a letter agreement by which First Temporaries was to
supply Respondent with temporary employees.3 The agree-
ment provides for a 10-day cancellation by either party, that
First Temporaries was to be responsible for paying the em-
ployees, securing worker’s compensation insurance, paying
unemployment tax, and withhold FICA and income taxes for
each worker for a 30-day period. Respondent was to be
billed for the workers’ wages plus a 10-percent markup in
accordance with a schedule attached to the agreement.
Melton testified that over the weekend following the signing
of the agreement with First Temporaries, she realized she
had made a mistake in signing a contract containing the word
‘‘temporaries,’’ so when she returned to work Tuesday, Sep-
tember 5, she called Doolen and asked that the agreement be
changed by substituting the word ‘‘probationary’’ for ‘‘tem-
poraries’’ wherever it appeared. Doolen made the ‘‘correc-
tion’’ and an agreement identical to the August 31 agreement
with that ‘‘correction’’ was signed by both parties on Sep-
tember 6, backdated to August 31.
Wilbanks commenced interviewing applicants for employ-
ment with Respondent on or about September 5. She testified
she told each applicant ‘‘that we had openings at Harvey In-
dustries’’ and that the job was permanent after 30 working
days. Melba Grisson, a witness for the General Counsel, tes-
tified that when she made inquiry at First Temporaries in re-
sponse to a newspaper ad, she was told that Respondent was
the employer, and in response to her question whether the
job was temporary or permanent, she was told ‘‘there was
like a 30-day trial period and after the 30 days it could be
permanent if I wasn’t late or . . . if I worked well.’’ In the
beginning, Wilbanks gave each individual hired a sheet enti-
tled ‘‘To All New Employees Working As Temporaries for
Harvey Industries, Inc.,’’ which set forth the first payday and
the fact that the individual would be transferred to Respond-
ent’s payroll after 30 days of satisfactory service, at which
time he or she would be entitled to receive insurance bene-
fits. It also set out other rules and conditions of employment.
Apparently around the middle of September, the handout was
changed by substituting the word ‘‘probationary’’ in place of
‘‘temporary.’’ The record shows that during September, First
Temporaries referred approximately 265 employees to Re-
spondent, each of whom signed an application stating as fol-
lows:
TEMPORARY AGREEMENT
I will be working as a temporary through the efforts
of 1ST TEMPORARIES. Salary will be paid to me by
1ST TEMPORARIES.
I understand there are no company benefits involved.
It is understood that failure to report to work and ab-
sence without proper notification will be considered a
voluntary leave of employment.
Date lll
Applicant’s Signature lllllll
Each employee also received from First Temporaries a ‘‘Re-
ceipt for Introduction—Referral for Temporary Position’’ set-
ting forth the job position applied for, which the employee
in turn delivered to Respondent. Timecards utilized by re-
ferred employees were marked ‘‘1st Temp’’ and they were
paid on First Temporaries’ checks. While no employees were
called to either corroborate or refute his testimony, Respond-
ent’s Personnel Coordinator Benny Garza testified he told all
employees referred by First Temporaries that they were per-
manent replacement for the strikers.
The union membership voted to end the strike and ‘‘offer
themselves back to work unconditionally’’ on September 13.
Accordingly, union officials left the following letter with Re-
spondent’s plant guard that evening:
On behalf of International Union of Electronic, Elec-
trical, Salaried, Machine, and Furniture Workers, AFL–
CIO, Local 376FW, its members, and those employees
it represents, this letter is to notify you that the work
stoppage against Harvey Industries has ended as of Sep-
tember 13, 1989.
This letter is to further inform you that the members
of IUE Local 376FW, and those employees it rep-
resents, who have engaged in this work stoppage, here-
by unconditionally offer to return to work for Harvey
Industries.
Respondent’s officials acknowledge its receipt the follow-
ing morning. That morning, September 14, the former strik-
ers traveled from the union hall to the plant en masse where
they were denied entrance. They then returned to the union
hall where they were instructed to go to the unemployment
office to sign up for benefits. Later in the morning Georgia
Melton, Respondent’s vice president of industrial relations,
called the union hall and arrangements were made to send
the former strikers to the plant in groups of three to six to
submit individual offers to return to work as required by
Texas law in order to be eligible for unemployment benefits.
While the Union had each striker sign an unconditional offer
to return dated September 13, the Respondent had them sign
another one on its own letterhead with the employees’ cur-
rent phone and address and bearing the date of reporting. As
the collective-bargaining agreement provided in article V,
section 2, that ‘‘In all cases of recalling employees to work,
seniority shall be the controlling factor . . . [and] shall be
by occupational classification of work,’’ the Respondent
started compiling a preferential reinstatement list from the in-
dividual applications to return. The list was not finally com-
pleted until September 28 when the Union informed the Re-
spondent that all of the strikers wanting to return had made
individual applications. Until that time, Respondent contin-
ued using First Temporaries as its source for employees in-
stead of using seniority data already in its possession for re-
call purposes.
By letter dated September 19, Respondent gave First Tem-
poraries the required 10-day notice of cancellation of the Au-
gust 31 agreement. As noted immediately above, First Tem-
poraries continued furnishing employees until the preferential
reinstatement list was completed. Approximately 180 em-
ployees were sent by First Temporaries from September 13
to September 29.
475HARVEY MFG.
4 The employment applications, in evidence as G.C. Exh. 15, also
show the date the applicant started working for Respondent, whether
the applicant was terminated, quit, or ‘‘went permanent’’ after 30
workdays.
5 The rest of the statements are for ‘‘Employees for the week of
ll.’’
In mid-November, with its busy season slacking off, Re-
spondent began laying off employees for lack of work in ac-
cordance with article V of the collective-bargaining agree-
ment. Both reinstated strikers and employees hired through
First Temporaries were affected. All employees subject to
layoff, including those employees that had been supplied by
First Temporaries that had completed its 30-day probationary
period and were therefore considered by Respondent to be
permanent replacements, were given the opportunity to
‘‘bump’’ into the same or lower grade level, depending upon
seniority, or if bumping wasn’t possible, were laid off. All
laid-off employees were told they would be recalled when
needed. Both reinstated strikers and permanent replacements
hired through First Temporaries were recalled.
B. Effectiveness of Unconditional Offers to Return
to Work
The General Counsel contends that since the Union made
an unconditional offer to return on behalf of all strikers on
September 13, the Respondent was obligated to reinstate the
strikers without requiring them to give it individual uncondi-
tional notices. It is argued that Respondent already had cur-
rent addresses for all strikers in its files and that it chose to
misinterpret and misuse the strikers’ attempt to safeguard
their unemployment benefits in order that it could delay rein-
statement and fill their positions with employees referred by
First Temporaries. It is claimed Respondent’s decision to
delay preparation of the preferential hiring list until every
former striker had filed his or her individual offer was done
without consultation with the Union, constituted an illegal re-
quirement, and that Respondent should not be permitted to
rely on the confusion it created in order to escape its legal
reinstatement obligations.
The Respondent contends that even if the Union’s Septem-
ber 13 request was unconditional, on the morning of Septem-
ber 14, ‘‘the Union set forth demands that made the prior
evening’s offer conditional: first, that individual strikers
would submit unconditional offers to return and, second, that
the preferential reinstatement list would be created from the
individual offers.’’ Therefore, it is argued, the Respondent
had to wait until all strikers had been notified by the Union
and submitted their individual offers to return to work before
the preferential hiring list could be created, a process that
took until September 28 when the Union informed it that all
returning strikers had reported.
All that is necessary to satisfy the requirement of an un-
conditional offer to return to work or application for rein-
statement is an undertaking to abandon the strike and notify
the employer of the offer or request. It is axiomatic that a
union can make this commitment on behalf of the employees
it represents. Here, however, the Respondent argues the offer
to return was not unconditional but instead conditional on the
submission of individual offers to return and the final prepa-
ration of a preferential reinstatement list. In my view, the Re-
spondent’s reasoning is fallacious.
The record evidence does not show, as Respondent claims,
that the Union insisted upon the final preparation of a rein-
statement list to be made from the individual offers to return.
Rather, the Respondent relied on the recall provisions in arti-
cle V, section 2 of the collective-bargaining agreement that
in recalling employees, seniority was to be the controlling
factor and was to be by ‘‘occupational classification of
work.’’ Further, the record shows that the purpose in submit-
ting individual unconditional offers to Respondent was for
the purpose of preserving a right to unemployment benefits
as required by the State of Texas. I fail to see how meeting
the Texas requirement for the preservation of unemployment
benefits could in any circumstances be construed as a limita-
tion on an unconditional request for reinstatement of the
strikers. Further, Melton testified, she asked returning strikers
to sign requests to return ‘‘because we felt like we needed
new addresses and telephone numbers in which to contact the
people.’’ Thus, it can be seen that the individual offers had
a twofold purpose: to preserve unemployment benefit rights,
and to update the Respondent’s personnel records. Neither
the preparation of the reinstatement list in accordance with
the contract, or the submission of individual offers in any
way detracted from the effectiveness of the Union’s Septem-
ber 13 unconditional offer to return.
C. Whether the Hiring Commitment Made to Employees
Hired Through First Temporaries Was Sufficient to
Effect the Permanent Replacement of Strikers
The General Counsel contends Respondent failed to estab-
lish there existed a ‘‘mutual understanding’’ between it and
First Temporaries that the employees hired through First
Temporaries were permanent, and that the change in the con-
tract from ‘‘temporary’’ to ‘‘probationary’’ was merely cos-
metic. The General Counsel claims Melton told Union
Agents Esparza, Eldridge, and Plumbtree that the employees
furnished by First Temporaries were temporaries. It is also
argued that the various forms utilized by First Temporaries
made reference to, and shows they were, e.g.:
(1) First Temporaries’ employment application contains
the following statement which is signed by the applicant:
TEMPORARY AGREEMENT
I will be working as a temporary through the efforts
of 1ST TEMPORARIES. Salary will be paid me by
1ST TEMPORARIES.
I understand there are no company benefits involved.
It is understood that failure to report to work and ab-
sence without proper notification will be considered a
voluntary leave of employment.4
(2) Employee referral slips from First Temporaries (G.C.
Exh. 16), recite that they are ‘‘For Temporary Position.’’
(3) The first two statements for wages submitted by First
Temporaries, dated September 8 and 13, state they are for
‘‘temporary employee’’ and ‘‘temporary employees’’ respec-
tively.5
The General Counsel also argues that Respondent’s failure
to call the replacements to testify to their understanding they
were permanent replacements supports the inference they
didn’t understand they were and therefore they were not per-
manent replacements.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See R. Exh. 20.
7 G.C. Exh. 6 and R. Exh. 16, respectively.
Respondent claims that from the beginning of the strike it
indicated its intent to continue its operations and on February
13, within 10 days after the strike was initiated, it informed
both the strikers and employees on layoff that if they failed
to report for work by 4 p.m., February 17, it would begin
to fill their jobs with permanent replacements.6 Through the
months of March, April, May, June, and July, it hired perma-
nent replacements through its own efforts, which the General
Counsel concedes was not unlawful. In August it became ap-
parent that it would need an additional 300 employees in a
short time to staff new product lines in September. Having
exhausted its own bank of applications, Respondent entered
into an agreement with First Temporaries to fill vacancies.
In these circumstances, Respondent claims, utilizing an em-
ployment agency was clearly justified, legitimate, and a sub-
stantial business practice. Indicative of its intent to hire per-
manent rather than temporary employees, it is argued, was
the fact the agreement with First Temporaries was amended
to state the agency was providing ‘‘probationary’’ employees
rather than ‘‘temporary’’ employees. This was done before
any replacements were hired. A sheet handed to employees
hired by First Temporaries initially referred to the employees
as temporaries, but was subsequently changed to read proba-
tionary.7 The details of the employment relationship in both
versions is identical and states the employee would be trans-
ferred to Respondent’s payroll after a 30-day working period
and become eligible for insurance benefits and for review
and raise every 4 months. Respondent also claims the re-
placements hired through First Temporaries understood their
employment was permanent, relying on the testimony of
Wilbanks and Melba Grisson, the latter a witness for the
General Counsel. Wilbanks testified she told all applicants
for employment through First Temporaries:
that we had openings at Harvey Industries; it was a per-
manent position as long as they performed within the
30 working days, I told them it is basically a trial pe-
riod, as long as they showed up, worked hard, they
were at that point able to go over permanent after the
30 working days were done with as long as Harvey was
happy with them and they were happy with Harvey.
. . . .
I told all the applicants that and I also had a spanish
woman who told the spanish speaking people that also.
Grisson testified:
When I got there there was a lady, she was sitting
like at this window and I asked her about the ad in the
paper and she told me that it was Harvey Industries and
that you know that’s what the company was there in
Athens. Then I asked her, she asked me, okay I asked
her you know what was the starting pay and so forth
and so on and so she told me they were starting off at
$3.95 to $5.25. And I asked her was it permanent or
temporary and she told me that there was like a 30 day
trial period and after the 30 days then it could be per-
manent if I wasn’t late or if you know, if I worked
well.
Thus, it is seen, Grisson’s testimony as to the likelihood
of permanent employment substantially corroborates
Wilbanks testimony.
The controlling principles were recently set forth in Solar
Turbines, 302 NLRB 14 (1991), as follows:
The Board has long held that in the absence of a le-
gitimate and substantial business justification, economic
strikers are entitled to immediate reinstatement to their
prestrike jobs. Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970). One recognized legitimate and substantial
business justification for refusing to reinstate economic
strikers is that those jobs claimed by the strikers are oc-
cupied by workers hired as permanent replacements.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379
(1967).
Job vacancies created by striking employees are con-
sidered to be filled by permanent replacements as of the
time the putative replacements accept an employer’s of-
fers of permanent employment in the strikers’ jobs.
Home Insulation Service, 255 NLRB 311, 312 fn. 9
1981), enfd. mem. 665 F.2d 352 (11th Cir. 1981). The
Board normally regards the employer’s hiring commit-
ment as effectuating the permanent replacement of a
striker even though the striker may request reinstate-
ment before the replacement actually begins to work.
H. & F. Binch Co., 188 NLRB 720, 723 (1971), enfd.
as modified 456 F.2d 357 (2d Cir. 1972); Anderson,
Clayton & Co., 120 NLRB 1208, 1214 1958); see also
Superior National Bank, 246 NLRB 721 (1979). Thus,
determination of the replacement date turns on when a
commitment to hire an employee for a permanent job
was made and accepted. [Footnote omitted.]
Contrary to the position of the General Counsel, the com-
mitment for permanent employment was made by First Tem-
poraries, subject to the satisfactory completion of a 30-work-
day probationary period, after which the probationary em-
ployees became permanent employees of Respondent. This
conclusion is supported by the testimony of Wilbanks. That
the applicants understood this commitment is supported by
General Counsel’s witness Grisson. It is further supported by
handouts given applicants by First Temporaries (G.C. Exh. 6
and R. Exh. 16), and by First Temporaries’ employment ap-
plication records which show the applicants ‘‘went perma-
nent’’ after the probationary period. Thus, it is found that the
commitment to hire strike replacement applicants was made
by First Temporaries; that the offers were offers of perma-
nent employment; and that thereafter the Respondent was
committed to hiring them as permanent replacements on the
satisfactory completion of the 30-workday probationary re-
quirement. In Solar Turbines, supra, relying on Kansas Mill-
ing Co., 97 NLRB 19 (1951), the Board stated at 20:
In that case the Board found that striker replacements
who were offered permanent employment, but who
were required to complete a 30-day probationary pe-
riod, were permanent replacements even if they had not
completed the 30-day period by the date on which the
strikers made unconditional offers to return. Accord:
Guenther & Son, 174 NLRB 1202, 1212 (1969), enfd.
sub nom. Pioneer Flour Mills v. NLRB, 427 F.2d 983
477HARVEY MFG.
8 The charge in that case was filed March 5, 1990, the consoli-
dated complaint containing paragraph 18 was issued May 9, 1990,
and the dismissal letter dated May 31, 1990.
(5th Cir. 1970); Anderson, Clayton & Co., 120 NLRB
at 1214. The reasoning adopted by the Board in Kansas
Milling was as follows (id. at 226):
When hired they were assured that they would retain
their jobs not for a period of limited duration but in-
definitely, provided only they proved themselves
qualified. True, the ultimate determination of wheth-
er they were to be retained on a temporary or perma-
nent basis was deferred. But when the qualifying
condition was met with the passage of 30 days’ em-
ployment, it established their status ab initio as that
of permanent replacements for the striking employ-
ees whom they displaced. Although their status was
still probationary on October 18, 1947, the Respond-
ent was not required on that day to discharge them
to make room for returning strikers who had uncon-
ditionally applied for reinstatement. In hiring these
employees originally on a probationary basis, the Re-
spondent was following its normal employment prac-
tices, and it was entitled to avail itself of the full
qualifying period before determining whether or not
these employees should be accorded the status of
permanent employees.
Accordingly, it is found that upon the completion of their
30-workday probationary period, the employees hired by
First Temporaries established their status ab initio as that of
permanent replacements for the striking employees whom
they displaced. Thus, the General Counsel’s argument that
the former strikers should have been reinstated, as the indi-
vidual First Temporaries’ referrals completed their 30 work-
days, lacks merit.
The General Counsel argues that Respondent was delin-
quent in canceling its contract with First Temporaries, claim-
ing the required 10-day cancellation notice should have been
made on September 14, when Respondent knew the strike
was over, and an unconditional offer been received, instead
of delaying until September 19 in which event First Tem-
poraries would have ceased sending its employees to Re-
spondent by September 24. There is merit to this argument.
While it is not disputed that First Temporaries was entitled,
under its agreement with Respondent, to 10 days’ cancella-
tion notice, Respondent could not delay giving notice to the
detriment of the reinstatement rights acquired by the strikers
when the Union notified Respondent of the strike’s end and
the unconditional offer to return. Accordingly, it is found
that those employees interviewed by First Temporaries on
and after September 25, were not permanent replacements.
D. Respondent’s Recall of Striker Replacements
Following Layoff in Place of Unreinstated Strikers
Paragraph 18 of the consolidated complaint alleges, in sub-
stance, that in December, Respondent commenced recalling
from layoff employees hired through First Temporaries rather
than offering reinstatement to strikers in violation of Section
8(a)(1) and (3) of the Act.
Having found that employees hired by First Temporaries
prior to September 25 were permanent replacements, the
question arises whether they had a reasonable expectancy of
recall from a mid-November layoff in preference over the
unreinstated strikers. The General Counsel argues they did
not and that their relative lack of seniority should have
placed them at the bottom of the list behind the remaining
unreinstated strikers. The Respondent argues that paragraph
18 of the consolidated complaint should be dismissed in
view of the Regional Director’s dismissal of the allegation in
the charge in Case 16–CA–14464 which asserted that the
Company was wrongfully failing to reinstate striking em-
ployees by recalling laid-off employees. Specifically, the Re-
gional Director stated: ‘‘The evidence established that the
permanent striker replacements were temporarily laid off and
had a reasonable expectation of recall, thus were correctly re-
called ahead of unrecalled strikers. Aqua Chem, Inc., 288
NLRB 1108.’’ The General Counsel argues that the dismissal
applied only to permanent replacements hired off the street
by Respondent and not to those hired through First Tem-
poraries. In light of the General Counsel’s argument, I over-
ruled the Respondent’s objection to the introduction of evi-
dence regarding the layoff and recall from layoff. That evi-
dence shows all laid-off employees were told the same thing
with respect to expectancy of recall.
There is nothing in the charge filed in Case 16–CA–14464
(G.C. Exh. 1(g)) nor the language of the dismissal letter (R.
Exh. 19), to indicate either document was limited to any
group of employees.8 As is clear, the General Counsel’s the-
ory is premised on a finding that employees hired through
First Temporaries were not permanent replacements. Thus,
having found that those employees hired through First Tem-
poraries prior to September 25 were permanent replacements,
and the Regional Director having already determined ‘‘that
the permanent striker replacements were temporarily laid off
and had a reasonable expectation of recall,’’ it follows that
those employees hired through First Temporaries prior to
September 25 acquired the status of permanent strike re-
placements and therefore had a reasonable expectation of re-
call, but that those hired on and after September 25 did not
acquire the status of permanent striker replacements and
were not entitled to recall from layoff over the rights of the
strikers.
E. Whether Garza Threatened That Laid-off Employees
Would Receive More Favorable Treatment Than
Strikers Regarding Filling Job Openings, Transfers,
and/or Promotions
The General Counsel called two recalled strikers to prove
the allegation in paragraph 17 that Benny Garza, Respond-
ent’s director of personnel, threatened that laid-off employees
would receive more favorable treatment than strikers with re-
gard to filling job openings, as well as transfers and/or pro-
motions. Jacqueline Barker was recalled as a packer on Octo-
ber 20, a position she occupied when she went on strike.
Wanting a higher paying job, she signed the ‘‘bid book’’ for
a job as tester in November. Bidding procedures are found
in article XVII of the collective-bargaining agreement. That
job, however, was filled by recalling a permanent replace-
ment apparently hired during the strike through First Tem-
poraries. According to Barker, she approached Garza and ‘‘I
said why didn’t I get the job. I bidded on the job. I say
you’d rather let one of those scabs come in and give them
a job instead of me. And he say well that’s the way it is.
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.
He say they come first, then you all. Then the ones that’s
off. And I say well why did you let us bid. He say this is
just routine. We have to open the bid book. He said but we
don’t have to pick any name on it.’’ She claimed four other
employees, including Jan Dickerson, were standing around.
Dickerson, who had been reinstated to the job she held be-
fore becoming a striker, testified Garza ‘‘told us that the
ones, the replacement workers that they hired from First
Temporaries, that they would have the first choice to get the
job. And then the strikers that were already back and
work[ing]. And then the strikers that were laid off had the
last choice, that were still out of work.’’ She acknowledged
on cross-examination the statement made in a Board affidavit
that ‘‘He [Garza] told us that there wasn’t no use in our
signing the bid book because we couldn’t get a job until all
the strikers came back to work.’’ Garza didn’t recall a dis-
cussion with either about why she didn’t get a particular job
through the bid process.
The General Counsel argues that Garza’s statement made
the former strikers ‘‘aware that Respondent intended to pun-
ish them because of their participation in the strike,’’ and as
such is ‘‘inherently destructive’’ and tends to coerce and re-
strain employees in the exercise of their Sections 7 and 13
rights to organize and strike, and therefore violates Section
8(a)(1) of the Act.
The Respondent argues that the testimony of the General
Counsel’s witnesses shows that no improper statements were
ever made by Garza or, if made, were based on fact and cor-
rectly described how the return of strikers and laid-off re-
placements affected use of the bid books. With respect to
Barker, Garza merely explained ‘‘how the bid book works
under the Collective-Bargaining Agreement as old lines are
reactivated, employees laid off from those lines are recalled
before the Company uses the bid book.’’ Regarding
Dickerson’s statement that Garza said there was no use sign-
ing the bid book because the jobs would not be available
until all strikers returned to work, it is claimed that even if
made, does not support the General Counsel’s allegation
since while reinstating strikers before using the bid book
process might, under certain circumstances, violate the col-
lective-bargaining agreement, it is not evidence that strikers
were being treated less favorably than the permanent replace-
ments.
It has not been alleged that either Barker or Dickerson was
discriminated against with respect to the bidding process.
The allegation in paragraph 17 of the consolidated complaint
is that Garza threatened that laid-off employees hired through
First Temporaries would receive more favorable treatment
than strikers with respect to job openings, transfers and/or
promotions. I interpret the testimony of both Barker and
Dickerson to be that Garza told them that the laid-off perma-
nent replacements hired through First Temporaries would be
the first employees to be chosen from the bid book, followed
by recalled strikers and then unrecalled strikers. Article
XVII, paragraph 6 of the contract regarding the bidding proc-
ess provides that ‘‘Openings will be filled by the most senior
applicant who has the ability to do the job. Jobs will be
awarded by the Personnel Department.’’ Contrary to the po-
sition of Respondent, I do not view Garza’s explanation to
be that ‘‘as old lines are reactivated, employees laid off from
those lines are recalled before the Company uses the bid
book.’’ The conversation alleged to be unlawful was not
made in the context of reactivating lines, but of the Respond-
ent’s preferential treatment in the bidding process of employ-
ees already working. In my view, by informing employees
that employees hired through First Temporaries would re-
ceive favorable treatment under the bidding process, Re-
spondent violated Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Harvey Manufacturing, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, Local 376FW,
affiliated with International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Employees hired before September 25, 1989, through
referral from First Temporaries of Athens, were hired as, and
are, permanent striker replacements.
4. By continuing to hire employees referred by First Tem-
poraries of Athens, on and after September 25, 1989, in
place of recalling unreinstated economic strikers, Respondent
violated Section 8(a)(3) and (1) of the Act.
5. By telling employees that employees hired through First
Temporaries of Athens would receive more favorable treat-
ment under the bid process than strikers, Respondent violated
Section 8(a)(1) of the Act.
6. Respondent did not otherwise violate the Act as alleged.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. I shall rec-
ommend that Respondent be ordered to cease, as of Septem-
ber 25, 1989, discriminating against unreinstated economic
strikers by hiring and/or recalling from layoff employees that
had not acquired status as a permanent striker replacement.
It is further recommended that economic strikers who would
have been recalled on and after September 25, 1989, but for
Respondent’s unlawful conduct, be reinstated to the positions
in which they would have been placed had they been re-
called, without prejudice to their seniority or other rights and
privileges and made whole for any loss of earnings they may
have suffered by reason of the discriminatory failure to rein-
state them, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Under New Hori-
zons, interest is computed at the ‘‘short-term Federal rate’’
for underpayment of taxes as set out in the 1986 amendment
to 26 U.S.C. § 6621.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
479HARVEY MFG.
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
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.’’
ORDER
the Respondent, Harvey Manufacturing, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate economic strikers who
unconditionally offered to return to work and whose posi-
tions were filled by employees referred from First Tem-
poraries of Athens on and after September 25, 1989.
(b) Telling employees that employees hired through First
Temporaries of Athens would receive more favorable treat-
ment under the bid process than strikers.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the economic strikers on whose behalf the Union
offered to return to work, and whose positions were filled on
and after September 25, 1989 by employees referred from
First Temporaries of Athens, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudiced to
their seniority or other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them in the manner set forth in the Remedy section
of this Decision.
(b) Preserve and make available to the Board and its
agents, for examination and copying, all payroll records, so-
cial security payment records, timecards, personnel records
and reports, and all other records necessary to analyze and
determine the amount of backpay due under the terms of this
Order.
(c) Post at its Athens, Texas facilities copies of the at-
tached notice marked ‘‘Appendix B.’’10 Copies of said no-
tices on forms provided by the Regional Director for Region
16, after being duly signed by an authorized representative
of the Respondent, shall be posted by the Respondent imme-
diately upon receipt thereof, and maintained by it for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
said 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 Respondent has taken
to comply.
Those allegations not specifically found to have violated
the Act are dismissed.
APPENDIX A
August 31, 1989
Georgia Melton
Harvey Industry
Athen, TX 75751
Re: First Temporaries of Athens Agreement
with Harvey Industry
Dear Georgia:
The purpose of this letter is to express our agreement
with respect to First Temporaries of Athens providing
temporary employment to Harvey Industries.
The following is agreed upon:
1. This agreement contemplates any and all temporary per-
sonnel which First Temporaries will make available to Har-
vey Industry.
2. A worker’s period of employment will be for 30 work-
ing days, from hire date, at which time, Harvey Industry has
the option to hire the worker (for which no fee will be
charged).
3. Thirty (30) days after the execution of the contract, First
Temporaries will be the exclusive means for the hiring
and/or re-hiring of Harvey Industry personnel for Labor
Grades 1, 2 and 3.
4. Harvey Industry and First Temporaries have the right to
terminate (without liability) this agreement with Ten (10)
days written notice; provided, however, that all temporaries
on the First Temporaries payroll at the time this agreement
is terminated will remain for the full 30 working day period.
5. The billing rate for workers is set forth on Exhibit ‘‘A’’
attached hereto. These rates will remain constant for Two (2)
months subsequent to the execution of this agreement, except
if there is an increase in: social security tax, unemployment
tax, or worker’s compensation insurance. After 2 months the
rates will be reviewed.
6. The procedures for implementing referrals, applications,
job descriptions, communications, hiring time accounting,
payment, etc. will be worked out on terms mutually agree-
able to both parties.
7. Harvey Industry agrees to indemnify and hold First
Temporaries harmless from any claim by a worker for:
wrongful firing, E.E.O.C. or O.S.H.A. violation, discrimina-
tion lawsuits, etc.
8. First Temporaries will secure worker’s compensation in-
surance for each worker for the Thirty (30) day period.
9. First Temporaries will make the proper income tax and
FICA withholding, and pay unemployment tax for each
worker during the Thirty (30) day period.
10. First Temporaries will use its best efforts to secure
good workers, but will not be responsible for any damages
to property or injury to persons caused by a temporary work-
er while on the job. First Temporaries shall not be liable for
any consequential or incidental damages whatsoever.
If the above correctly reflects our understanding, please
execute a copy of this letter and return it to us at your earli-
est convenience.
Very truly yours,
/s/ Frieda Doolen
Frieda Doolen, Manager
First Temporaries of Athens