Little Rock Airmotive, Inc.

National Labor Relations Board - Board Decisions

May 22, 1970

182 N.L.R.B. 666 (N.L.R.B. 1970)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Little Rock AirmotA, Inc and Progressive Lodge No
997, International Association of Machinists and
Aerospace Workers, AFL-CIO Case 26-CA-3319
May 22, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On October 13, 1969, Trial Examiner Benjamin K
Blackburn issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner also
found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed as
to them Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs The Respondent also
filed a reply brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case„ and hereby adopts the findings, conclusions, and
recommendations of the, Trial Examiner as modified
herein
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(3) and (1) of the Act
by its refusal to reinstate five replaced economic strikers,
subsequent to their unconditional offers to return to
work, the departure of replacements, and the creation
of vacancies in their classifications However, we disa-
gree with the Trial Examiner's conclusion that Respond-
ent did not violate Section 8(a)(3) and (1) of the Act
by its failure to reinstate two other strikers, Kenneth
Thompson and Walter Ogden
As noted more fully in the Trial Examiner's Decision,
Kenneth Thompson had been employed as a painter
by Respondent since April 1968 Thompson participated
in the strike of January 21 to January 31, 1969, and,
with the group of strikers, offered himself for reinstate-
ment on February 1, when he was told he had been
replaced On February 17, Thompson sent a letter to
Respondent requesting that he be recalled to work when
"there is an opening in my classification or any other
comparable job " In addition, Thompson contacted
Respondent on two other occasions, once in person
and once by telephone In the -iriterirn on February
6, Thompson had gone to work for Koolvent Aluminum
Awning Company at less pay than he would have
received with Respondent Although the job with Kool-
vent involved some painting, it did not regularly involve
painting but consisted mostly of installing awnings and
gutters Respondent hired painters on February 12 and
March 13, but did not offer employment to Thompson
Walter Ogden was hired by Respondent in early 1968,
and at the time of the strike, in which he participated,
was employed as a trimmer After the strike, Ogden
sought reinstatement on February 1, 1969, and on Febru-
ary 13 sent Respondent a letter stating he wished to
be recalled Ogden was not contacted for reinstatement
although Respondent hired employees in his classification
on March 4, April 16, and June 3, 11 „and 16
Ogden had an operation and had only returned to
light duty 2 days prior to the strike When he was
not recalled, Ogden drew unemployment compensation
before he commenced work for Arkansas Sheet Metal
Ogden was physically incapable of performing the work
at Arkansas Sheet Metal because of his previous surgery
Thereafter, Ogden worked for Phelps Fan for about
4 weeks before he left to work for his brother as
a commercial trash hauler At Phelps Fan he received
less than his rate at Respondent and was laid off from
his commercial trash hauling work about 1 week before
the hearing in this case
The Trial Examiner found that both Thompson and
Ogden had acquired regular and substantially equivalent
employment prior to the time Respondent hired employ-
ees in their respective classifications and had therefore
ceased to be employees of Respondent at the time
jobs became available for them Contrary to the Trial
Examiner, we find that Thompson and Ogden continued
as employees under the principles of our Laidlaw deci-
sion' and were entitled to reinstatement
The question of what constitutes "regular and substan-
tially equivalent employment" cannot be determined
by a mechanistic application of the literal language of
the statute but must be determined on an ad hoc basis
by an objective appraisal of a number of factors, both
tangible and intangible, and includes the desire and
intent of the employee concerned Without attempting
to set hard and fast guidelines, we simply note that
such factors as fringe benefits (retirement, health, senior-
ity for purposes of vacation, retention, and promotion),
location and distance between the location of the job
and an employee's home, differences in working condi-
tions, et cetera, may prompt an employee to seek to
return to his old job As noted hereafter, we not only
find contrary to the Trial Examiner that on the facts
here presented neither Thompson nor Ogden had sub-
stantially equivalent employment but note that the Trial
Examiner gave no weight to the fact that both Thompson
and Ogden expressed a continuing interest in returning
to their jobs
Thompson, who was` a painter, did not regularly per-
form painting for Koolvent Aluminum Awning Company
where his job paid him substantially less than he earned
at Respondent In addition, after taking employment
with Koolvent, Thompson did not abandon his employ-
' The Laidlaw Corporation 171 NLRB No 175 enfd 414 F 2d
99 (C A 7 1969)
182 NLRB No 98
LITTLE ROCK AIRMOTIVE, INC
ment with Respondent He continued to make his availa-
bility for reinstatement known through his letter, person-
al contact, and by phone Similarly, Ogden's job at
Arkansas Sheet Metal did not constitute regular and
substantially equivalent employment since he was physi-
cally incapable of performing this job, whereas he was
physically capable of performing his job with Respond-
ent Both Thompson and Ogden lost seniority by
Respondent's failure to reinstate them, both received
less pay, and both wished to return to their former
jobs with Respondent
Under these circumstances, we find that Respondent
violated Section 8(a)(3) and (1) of the Act when it
failed to offer reinstatement to Thompson on February
12, 1969, when a job as a painter became available2
and when it failed to recall Ogden on March 4, 1969,
when a less senior striker's replacement in the trim
shop left Respondent's employment 3 Therefore, we will
order that Respondent offer reinstatement and backpay
to Kenneth Thompson and Walter Ogden in the same
manner that the Trial Examiner recommended for the
other employees discriminatorily denied reinstatement
Accordingly, the Trial Examiner 's Conclusion of Law
number 3 is hereby modified by adding the name of
Kenneth Thompson on February 12 and the name of
Walter Ogden on March 4 Conclusion of Law number
5 is modified by deleting their names and respective
dates 4
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified below, and hereby
orders that the Respondent, Little Rock Airmotive, Inc ,
Little Rock, Arkansas, its officers, agents, successors,
and assigns , shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified
2 Although the available job on February 12 was allegedly only part
time Thompson being most senior was entitled to recall at that time
Respondent hired a full time painter on March 15 at which time Thompson
would have been entitled to full time reinstatement The other painter
unlawfully denied recall Frank Nosal therefore would be entitled
to an offer of reinstatement on the later March 15 date Whether
the part time nature of the work of the painter hired on February
12 continued after March 15 or became a full time job is a question
that we will leave to the compliance stage of the proceeding
' The Trial Examiner concluded that stoker Robert Edwards less
senior than Ogden should have been reinstated on March 4 since
it was his replacement who had departed leaving a job available Howev
er Respondent claimed to be recalling employees on the basis of
seniority in which case Ogden more senior than Edwards should
have been recalled first Therefore we find that Ogden should have
been recalled on March 4 and Edwards on April 16 when Respondent
hired another employee in the tom shop Accordingly the Trial Examin
er s recommended remedy and conclusions of law are hereby modified
to reflect our changes in the dates that Thompson Nosal Ogden
and Edwards were entitled to reinstatement
" In view of the fact that Ralph Smith testified that he would not
return to Respondents employ as a probationary employee we will
not disturb the Trial Examiner s conclusion that the complaint should
be dismissed as to him
667
I Paragraph 2(a) of the Trial Examiner's Recom-
mended Order is amended Eby inserting the names "Ken-
neth Thompson, Walter Ogden," after the name of
Frank Nosal
2 Paragraph 2(b) is amended by inserting the names
"Kenneth Thompson, Walter Ogden," after the name
of Frank Nosal
3 Amend the third and fourth indented paragraphs
of the notice , marked Appendix, to include the names
"Kenneth Thompson, Walter Ogden" following the
name of Frank Nosal '
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN, Trial Examiner Prog-
ressive Lodge No 997, International Association of
Machinists and Aerospace Workers, AFL-CIO, referred
to herein as the Charging Party or the Union, filed
an unfair labor practice charge against Little Rock Airmo-
tive, Inc , referred to herein as Respondent, on March
21, 1969,1 and amended it on April 14 The General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 26 (Memphis, Tennes-
see), issued complaint on' May 9 It alleged that Respond-
ent violated Section 8(a)(3) and (1) of the Act by failing
to reinstate nine named strikers on various dates although
they had made an unconditional' offer to work Respon-
dent ' s answer , duly filed, admitted certain allegations
of the complaint and denied others, including the allega-
tions that it had committed unfair labor practices The
answer stated, with respect to one of the nine named
discriminatees , that Respondent had failed to reinstate
him by mistake and had since done so and made him
whole At the hearing I granted the General Counsel's
motion to delete the name of Brewster Wilhx from
the complaint Consequently, the issue litigated at the
hearing before me, held pursuant to due notice on July
9 and 10 in Little Rock, Arkansas, was whether Respond-
ent had violated the Act under the Board's Laidlaw2
doctrine by failing to reinstate Kenneth Thompson, Wal-
ter Ogden, Ralph Smith, James Bryant, Don Ballard,
Arvid Straschinske, Frank Nosal , and Roberta Edwards
All parties appeared at the hearing and were given
full opportunity to participate, to adduce relevant evi-
dence, to examine and cross -examine witnesses , to argue
orally, and to file briefs Upon the entire record, including
briefs filed by Respondent and the General Counsel,
and from my observation of the demeanor of the witness-
es while testifying under oath, I make the following
All dates are 1969 unless otherwise specified '
' The Laidlaw Corporation 171 NLRB No 175 enfd 414 F 2d
99 (C A 7)
1 Given name as corrected at the hearing
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Arkansas corporation , is engaged in
the business of customizing and servicing private aircraft.
During a 12-month period just -prior to issuance of
the-complaint herein , it received materials valued in
excess of $50 ,000 at its place of business in Little
Rock which were shipped directly to it from points
outside Arkansas and it shipped goods valued in excess
of $50,000 directly to points outside Arkansas. On the
basis of these admitted facts , I find that Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits , and I find
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
The Union was certified as the representative of
Respondent ' s production and maintenance employees
on July 9 , 1968, as the result of an election held in
Little Rock Airmotive , Inc., Case 26-RC-3184. Collective
bargaining for a first contract followed . By January
approximately 12 negotiating sessions had been held.
A session which began on January 20 ran into the
early hours of January 21 . When it ended , the Union
struck . Pickets appeared .at Respondent's place of busi-
ness around 6 a.m. on January 21.
Bargaining continued during the strike . A contract
was finally agreed on. At a negotiating session held
on January 29 the question of what would become
of strikers who had been replaced during the strike
came up for the first time . The Union asked Respondent
to discharge the replacements in order to take back
all strikers . Respondent refused . The Union asked
Respondent to put replaced strikers on a preferential
hiring list . Respondent refused.
Picketing ended on January 31 . Early the next morn-
ing, February 1, strikers appeared at the plant and
met in the lobby . They were taken to a conference
room in groups by departments where they were individ-
ually told what their status was. Strikers who had not
been replaced were immediately reinstated . Strikers who
had were told that they had been replaced. Which strikers
had been replaced - by persons hired during the strike
was determined by application of the seniority principle,
that is , the person with the least seniority in a particular
job classification or department was considered to have
been replaced by the first person hired in that job
classification , or department . All eight of the men
involved in this case except Frank Nosal were among
the strikers who appeared at Respondent ' s plant on
the morning of February 1. -All eight , Nosal included,
were among those who were replaced during the strike.
- On February 1 a representative of the Union sent
to Respondent a telegram which read in pertinent part:
I hereby unconditionally offer to return . . . strikers
to their former or substantially equivalent jobs.
If their former or substantially equivalent jobs are
not available then to any job. Please treat this
offer as a continuing offer to return to work.
The subject of returning all strikers to work came
up again at a negotiating session held on February
3. Again Respondent refused to discharge replacements
or to establish a preferential hiring list. A contract
between Respondent and the Union was executed Febru-
ary 5.
Some of the replaced strikers sent letters , in some
cases drafted for them by the Union , to the Respondent
requesting reinstatement on various dates in February.
In addition , a representative of the Charging Party sent
a letter dated February 17 to counsel for Respondent
which read in pertinent part:
Please consider this as the Union ' s . . . continuing
request as stated in the telegram [of February 1].
We are the representative of these employees and
expect you to notify this Union when work is
available : At this time the employee or employees
involved will be notified . This applies only to the
so-called replaced employees.
All striking employees offered themselves for
employment on February , 1, 1969, and are still
continuing to do so.
Counsel ' s reply , dated February 19, read in pertinent
part:
It is the position of Little Rock Airmotive, Inc.
that some of the company's employees who,engaged
in an economic strike were replaced through the
company hiring new employees to fill their jobs;
that those persons who have been so replaced
are no longer employees of Little Rock Airmotive,
Inc.
In the event job openings occur at Little Rock
Airmotive , Inc., for which these employees are
qualified , we will be happy to consider them for
those jobs along with any other applicants. I am
sure you are aware that there has been no agreement
between the company and your union for any prefer-
ential hiring ors union hall agreements concerning
replaced strikers , and we do not intend to be respon-
sible for notifying the union or any of them as
vancancies occur.
The same union representative wrote counsel for
Respondent on February 21. This letter listed 12 replaced
strikers for whom the Charging Party claimed job rights.
It ended:
Again , we offer the above mentioned , so-called
replaced employees for employment to their former
LITTLE ROCK AIRMOTIVE, INC.
or substantially equivalent positions if these posi-
tions are not available, then to any job.
This is a continuing offer for the above mentioned
employees to return to work. , .
The names of the 8 men involved in this case were
included among the 12 listed in this letter. Respondent
never attempted to contact any of.the replaced employees
through the Union, nor did it ever notify the Union
when jobs became available from time to time after
the strike. Except for Arvid Straschinske as detailed
below, Respondent never attempted to contact any of
the replaced strikers when jobs became available.
Respondent has no personnel department and no per-
sonnel manager . -Department managers hire employees
for their departments as they are needed. Respondent
followed the same hiring policies before, during, and
after the strike. One of those policies is that it hires
only applicants who present themselves at the plant
when there is a vacancy. Another is a 90-day probation-
ary period for new employees. Respondent's employ-
ment complement, approximately 100, has been the same
since the strike as before. Respondent was not motivated
by antiunion animus in pursuing the course it has with
respect to replaced strikers.
Relevant facts respecting each of the eight persons
named in the complaint are:
1. Kenneth Thompson
Kenneth Thompson, a painter, was hired by Respond-
ent on April 17, 1968. He was replaced by Kenneth
Talley on January 29. Following the strike Respondent
hired a part-time painter on February 12 and a full-
time painter on March 15. As of the time of the hearing,
Talley was still employed`by Respondent.
On February 17, Thompson sent a letter to Respondent
which read:
This is to advise you that I participated in the
strike at Little Rock Airmotive, Inc., from January
22nd through January 31st.
I have not been recalled and, have been advised
that I was replaced during the strike. I' would
like to make it clear that I want my job back
at Little Rock Airmotive.
Please consider this as my request that I be called
to work when there is an opening in my classification
or any other comparable job. My address is as
follows:
4921 Coral Street
North Little Rock, Arkansas
If I have a change in the above mentioned address,
I will keep you so informed. I expect to hear
from you when there is a job^available.
He got a reply from Respondent's counsel, which
read in pertinent part:
Your job with. Little Rock Airmotive, Inc. was
replaced during the time that you were still on
strike.
In order for you to be considered for re-employ-
ment with this company, we would suggest that
669
you keep in touch from time to time to determine
whether or not any job openings are available that
you are qualified to fill. _
Future job openings will be filled by those persons
making application therefor, at the time such open-
ings may occur.
In addition to showing up at Respondent 's plant -on
February 1 with other strikers and sending his February
17 letter, Thompson contacted Respondent on two other
occasions following the strike, once in person and once
by telephone. The record does not indicate when. There
was no opening for a.painter on either of these occasions.
Thompson went to work for Koolvent Aluminum
Awning Company on February 6 as an installer of awn-
ings, gutters, "and stuff like that" and is still there.
The job involves some painting. His rate of pay is
$1.85 an hour. He regularly works' overtime. His present
income is somewhat smaller than his income when he
worked for Respondent. The record does not reveal
what his income was when he worked for Respondent
or just how large the difference is. He does not consider
his present job permanent although he has taken no
steps to find another one and, at the time of the hearing,
had made no definite plans about when he would leave.
2. Walter Ogden
Walter Ogden went to work for Respondent on Febru-
ary 6, 1968. He worked with sheet metal in the trim
,shop. He was replaced by Bob Hoover on January
30. Following the strike, Respondent hired trim shop
employees on- March 4 and April 16. As of the time
of the hearing, Hoover was still employed by Respond-
ent. . %
On February 13 Ogden sent a letter to Respondent
which was identical, except for ` Ogden's address, to
the letter sent by Thompson. He received a reply dated
February 14 which was identical to the reply received
by Thompson. He contacted Respondent at no i time
after the strike other than his visit to the plant on
February 1 and his February 13 letter.
Ogden returned to work for Respondent on January
20 following an 'operation. He was on a, light duty
status! He did not `work during the strike or for 3
weeks thereafter. Around February 22 he went to work
for Arkansas Sheet Metal Company at $2.50 an hour.
His rate of pay when working for Respondent was
$2.45 an hour. He left Arkansas Sheet Metal Company
after only a week and a half because he could not
stand the lifting required by the job. He was off for
a week. He then went to work as a sheet metal man
for Phelps Fan & Manufacturing Company. When he
was hired, he was told that Phelps would only take
him on if he was going to be a permanent employee.
His rate of pay was less than $2.45 an hour. The
record does not reveal how much less. He left Phelps
Fan & Manufacturing Company after 4 weeks. He then
went to work for his brother who is engaged in the
commercial trash hauling business, a job Ogden held
until he was laid off a week before the hearing. His
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay was less than he received from Respondent. The
record does not reveal how much less.
Ogden moved between the time he sent his February
13 letterr, to Respondent and the hearing. He notified
the United States Post Office Department of his new
address. He did not notify Respondent.
3. Ralph Smith
Ralph Smith, a wiring technician, - went to work for
Respondent on November 26, 1968. He was replaced
by John Yarberry on January 30. Following the strike
Respondent hired wiring technicians on February 24
and 27. Yarberry left Respondent's employ on March
28. Smith was still in his probationary period when
the strike began. A decision to discharge him at the
end of his probationary period had already been made
by Respondent when the strike began.
On February 17 Smith sent a letter to Respondent
which was identical, except for Smith's address and
telephone number, to the letter sent by Thompson.
He received a reply dated February 26 which was identi-
cal to the reply received by Thompson. On February
1, in addition to his interview with representatives of
Respondent in the conference room, Smith sought out
Dick Copeland, his immediate supervisor, and requested
his job back. Copeland told- Smith, he hated to lose
him, he would ,probably get his job back, just be patient.
A few days later Smith telephoned Copeland. Copeland
said he had not 'made any progress yet and would
get in, touch with Smith. He never.- did. A few days'
after the end of - the strike, Smith spoke to M. C.
Magness , Jr.; Respondent ' s business manager, on the
telephone . Magness told him to make application at
the-plant if he-wanted to work for Respondent. Smith
did not apply as directed.
Smith went to work for Minnie Pearl Chicken as
a store manager on March 4. He was hired at a salary
of $450 a month. At the time of the hearing his salary
was $550 a month, plus a percentage of the profit of
the store he managed above a certain level. His rate
of pay with Respondent was $2.45 an hour . Immediately ,
after he was hired, Smith spent 3 to 4 weeks in Hot
Springs, Arkansas, undergoing training for his new job.
Smith moved between the time he sent his February
17 letter to Respondent and the hearing. He notified
the United States Post Office Department of his new
address. He did not notify Respondent.
4. James Bryant
James Bryant , an airplane and power plant mechanic,
went to work for Respondent on October 23, 1968.
He was replaced by Jerome Evans on January 28. Follow-
ing the strike Respondent hired A & P mechanics on
February 11 and 18 and on March 24. At the time
of the hearing Evans was still in Respondent 's employ.
Bryant was still in his probationary period when the
strike began . A decision to discharge Bryant at the
end of his probationary period had not been made by
Respondent when the strike began . There is no evidence
Respondent considered Bryant an unsatisfactory employ-
ee prior to the strike.
Bryant's only contact with Respondent following the
strike was his visit to the plant on the morning of
February l.in the company of other strikers.
Two or three months after the end of the strike
Bryant went to work for Ford Music Company in Pine
Bluff, Arkansas. He sells and services electric organs.
The record does not reveal what his income from that
job is or how it compares with what he earned when
he worked for Respondent.
5. Don Ballard
Don Ballard, like Bryant an A & P mechanic, went
to work for Respondent on October 24, 1968. He was
replaced by Jerry Lawrence on January 30. Following
the strike Respondent hired A & P mechanics on Febru-
ary 1 and 18 and on March 24. Lawrence left Respond-
ent's employ on February 4. Ballard was still in his
probationary period when the strike began. A decision
to discharge Ballard at the end of his probationary
period had not been made by Respondent when the
strike began. There is no evidence Respondent consid-
ered Ballard an unsatisfactory employee prior to the
strike.
On February 10' Ballard sent a letter to Respondent
which read:
I was improperly replaced after the strike at Little
Rock Airniotive, Inc.
I request that I be returned to my former position
immediately.
My correct address is as follows:
109 Linderhurst Drive
North Little Rock, Arkansas
Telephone SK 3-9103
He received no reply. Other than this letter and his
visit to the plant on February 1 with the other strikers,
Ballard did not contact Respondent after the strike.
There is no evidence what jobs, if any, Ballard has
held since the strike. A United States marshal was
unable to find him on July 8 in order to serve him
with a subpena issued by Respondent to appear at
the hearing in this case.
6. Arvid Straschinske
Arvid Straschinske , a lineman, went to work for
Respondent on April 20, 1968 . He was replaced by
Jerry Lloyd on January 23. Following the strike Respond-
ent hired linemen on February 13, 14, and 20 and on
March 18. At the time - of the hearing Lloyd was still
in Respondent ' s employ.
When the strike began Straschinske had-in his posses-
sion $11.73 which belonged to Respondent. He had
collected the money from a cash customer after servicing
an airplane during a night shift just before the strike
began. He did not turn it in until after he received
a letter from Magness dated February 18 demanding
he do so. Linemen on the night shift who take in
LITTLE ROCK AIRMOTIVE, INC
cash customarily turn it in the next day This incident
played no part in Respondent's decision not to take
Straschinske back after the strike
On February 17 Straschinske sent a letter to Respond-
ent which was identical, except for Straschinske's
address, to the letter sent by Thompson He received
a reply dated February 18 which was identical to the
reply received by Thompson He also wrote to Respond-
ent on February 19 in reply to the letter from Respondent
demanding he return its $11 73 This letter ended,
"Please consider this as my continuing request to be
returned to work " Sometime prior to April 15 Stras-
chinske's foreman, Joseph Dube, went to Straschinske's
home He had an opening for a lineman and wanted
to offer the job to Straschinske There was no one
home He left a note on the door Straschinske did
not get the note
Straschinske has not worked since the strike
7 Frank Nosal
Frank Nosal, a painter, went to work for Respondent
on October 23, 1968 He was replaced by Leslie Brown
on January 30 Following the strike Respondent hired
a part-time painter on February 12 and a full-time painter
on March 15 At the time of the hearing, Brown was
still employed by Respondent Nosal was still in his
probationary period when the strike began A decision
to discharge Nosal at the end of his probationary period
had not been made by Respondent when the strike
began There is no evidence Respondent considered
Nosal an unsatisfactory employee prior to the strike
Nosal did not contact Respondent at all after the
strike There is no evidence what jobs, if any, he has
held since the strike A United States marshal was
unable to find him on July 8 to serve him with a
subpena issued by Respondent to appear at the hearing
in this case
8 Robert Edwards
Robert Edwards, like Ogden a trim shop employee,
went to work for Respondent on October 24, 1968
He was replaced by Joel Collins on January 28 Following
the strike Respondent hired trim shop employees on
March 4 and April 16 Collins left Respondent's employ
on February 28 Edwards was still in his probationary
period when the strike began A decision to discharge
Edwards at the end of his probationary period had
not been made by Respondent when the strike began
There is no evidence Respondent considered Edwards
an unsatisfactory employee prior to the strike
On February 13 Edwards sent a letter to Respondent
which was identical, except for Edwards' address and
telephone number, to the letter sent by Thompson
He received a reply dated February 14 which was identi-
cal to the reply received by Thompson Other than
his letter of February 13 and his visit to the plant
on February 1 with the other strikers, Edwards did
not contact Respondent after the strike
671
Sometime in March Edwards began contracting to
paint houses by himself In late April or early May
he worked approximately 21 weeks as a carpenter for
two different contractors His profit from his painting
contracts has varied from a low of $70 for one house
to a high of $120 for another When he worked for
Airmotive he earned approximately $80 a week
Edwards moved between the time he sent his February
13 letter to Respondent and the hearing He notified
the United States Post Office Department of his new
address He did not notify Respondent
B Analysis and Conclusions
In The Laidlaw Corporation, supra, the Board held
that economic strikers who unconditionally apply for
reinstatement at a time when their positions are filled
by permanent replacements (1) remain employees, (2)
are entitled to full reinstatement upon the departure
of replacements unless they have in the meantime
acquired regular and substantially equivalent employ-
ment, or the employer can sustain his burden of proof
that the failure to offer full reinstatement was for legiti-
mate and substantial business reasons
Kenneth Thompson acquired a regular and substantial-
ly equivalent job with Koolvent Awning Company on
February 6, nearly a week before Respondent first hired
a painter on February 12 following Thompson's offer
to return to work Walter Ogden acquired a regular
and substantially equivalent job with Arkansas Sheet
Metal Company" around February 22, approximately
2 weeks before Respondent first hired a trim shop
employee on March 4 following Ogden's offer to return
to work Therefore, both Thompson and Ogden had
ceased to be employees of Respondent at the time
jobs became available for them Respondent had decided
before the strike to discharge Ralph Smith at the end
of his probationary period Therefore, Respondent had
a legitimate and substantial business reason for not
reinstating him to the wiring technician job which opened
up on February 24 Since each of them fails to meet
one of the conditions laid down by the Board's Laidlaw
decision, I find that Respondent did not violate the
Act when it failed to reinstate Kenneth Thompson,
Walter Ogden, and Ralph Smith
Respondent advances various grounds as legitimate
and substantial business reasons for not reinstating one
or more of the men named in the complaint 5 It cites
' I do not think the regular and substantially equivalent nature of
Ogden s new job at Arkansas Sheet Metal was in any way altered
by the fact that Ogden found the job physically too taxing If I am
wrong in this finding however it does not follow that Ogden is entitled
to a remedy in this case Ogden and Robert Edwards were both trim
shop employees Respondent hired a new trim shop employee on March
4 and a second one on April 16 However the man hired on March
4 was a replacement for Joel Collins Edwards replacement during
the strike Therefore as indicated below Edwards should have been
reinstated by Respondent on March 4 A job was not available for
Ogden until April 16 By that time he had acquired a regular and
substantially equivalent job at Phelps Fan & Manufacturing Company
The record does not reveal why Ogden left Phelps
S A major section of Respondents brief is devoted to a cogent
argument that the Laidlaw decision is wrong and should be reversed
(Cont )
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that it was not motivated by antiunion animus.
It cites the fact that, in some instances, the striker's
individual replacement is still working. It cites the fact
strikers have applied for work elsewhere, arguing that
this constitutes an abandonment of the employee rela-
tionship. It cites the fact that strikers have not complied
with its policy of hiring only at the plant door by
making applications at times when jobs were available.
It cites the fact that strikers have failed to notify it
when they moved and, in the cases of Don Ballard
and Frank Nosal, may have disappeared without leaving
any clue as to their present whereabouts. In the case
of Arvid Straschinske it cited the fact that he kept
Respondent's $11.73 until Respondent asked him for
it. In the case of Nosal it cited the fact that Nosal
never personally made an unconditional offer to work.6
I agree with Respondent as to these facts. I disagree
as to their legal significance in the cases of James
Bryant, Don Ballard, Arvid Straschinske, Frank Nosal,
and Robert Edwards.
James Bryant did not get a job until several months
after the end of the strike. There is no evidence in
the record that Don Ballard has ever gotten another
job. Therefore, neither had obtained regular and substan-
tially equivalent employment by February 18 when
Respondent hired the second of two new A & P mechan-
ics. Since Jerry Lawrence, Ballard's replacement during
the strike, left on February 4 while Jerome Evans,
Bryant ' s replacement , is still working for Respondent,
the Laidlaw doctrine operated for Ballard's benefit when
Respondent hired a replacement for Lawrence on Febru-
ary 11 even though Bryant had seniority over Ballard.
A job became available for Bryant on February 18
when Respondent hired a second A & P mechanic.
The absence of any evidence in the record about Bal-
lard's employment since February 1 is of no benefit
to Respondent since the burden of proof is on Respond-
ent.7 The fact that Bryant's individual replacement is
still working is of no benefit to Respondent since the
Laidlaw doctrine applies when any job comes open
which a replaced economic striker who has not lost
his employee status could fill, not merely when the
specific replacement leaves who was hired during the
strike to take his job."
I, of course , can entertain no such plea . I am bound by the Board's
decision Consequently , my analysis is limited to Respondent ' s conten-
tion that it had legitimate and substantial business reasons, as that
phrase is used in Laidlaw , for denying reinstatement to each of the
eight men named in the complaint
" Respondent makes this same argument with respect to Don Ballard
However, as to Ballard , my findings of fact are against Respondent
Neither Nosal nor Ballard appeared at the hearing . Neither could be
located for subpena-serving purposes However, I have credited the
testimony of Walter Ogden that he saw Ballard among the strikers
who showed up at Respondent's plant on the morning of February
I Among the numerous letters in evidence is one dated February
10 from Ballard to Respondent
' Duncan Foundry and Machine Works, Inc., 176 NLRB No. 31
This point applies also to Frank No?al , as to whom the record is
equally silent
" C H. Guenther & Son, Inc , dl bl a/ Pioneer Flour Mills, 174 NLRB
No. 174 . This point applies , of course , in the cases of Arvid Straschinske
and Frank Nosal , both of whose individual replacements were still
working for Respondent at the time of the hearing.
Arvid Straschinske has never gotten a regular job
substantially equivalent to the one he held with Respond-
ent. Therefore, the Laidlaw doctrine operated for his
benefit when Respondent hired a lineman on February
13. The fact that Straschinske retained money belonging
to Respondent for several weeks after he should have
turned it in is not a legitimate and substantial business
reason for failing to reinstate him. Respondent waived
that possible defense when Foreman Dube went,to Stras-
chinske's house to offer him a job as a lineman some
time after the strike' ended. The fact that Respondent
tried to find Straschinske on that occasion and failed
is of no avail to Respondent. Dube was not seeking
Straschinske to offer him full reinstatement to his former
position as required under the Laidlaw doctrine.
There is no evidence in the record that Frank Nosal
has ever gotten another job. While his individual replace-
ment still works for Respondent , Respondent hired a
painter on February 12. Since Kenneth Thompson, the
only other painter among the eight men named in the
complaint, had terminated his employee status by that
time, that job, even though only part time, belonged
to Nosal under the Laidlaw doctrine. When Respondent
hired a full-time painter on March 15, Nosal was entitled
to be restored to his prestrike full-time status. The
fact that Nosal, alone of the eight men involved in
this case, did not personally make an unconditional
offer to return to work does not require a different
result in his case. The offer made by the Charging
Party in its telegram of February 1 and again in its
letters of February 17 and 21 was legally sufficient
to constitute an unconditional offer to return on behalf
of all strikers, Nosal included.
Robert Edwards did not go into business for himself
as a house painter until March, well after his individual
replacement, Joel Collins, left Respondent's employ on
February 28. It is, therefore, unnecessary to decide
whether the work Edwards acquired constituted regular
and substantially equivalent employment as that phrase
is used in Laidlaw. He became entitled to his old job
on March 4 when Respondent hired a trim shop employee
to take Collins' place.
Other defenses advanced by Respondent are equally
without merit. The Laidlaw decision states explicitly
". . . we specifically find that . . . the failure to make '
. . . an offer [of full reinstatement absent a showing
of legitimate and substantial business justification ] consti-
tutes an unfair labor practice even without regard to
Respondent 's intent or anti -union animus ." The criterion
established by Laidlaw is not whether strikers have
sought regular and substantially equivalent employment
elsewhere but whether they have found it. Laidlaw
does not require replaced strikers ' to make known their
availability for employment in the manner Respondent
would require. It places the burden of offering reinstate-
ment to a replaced striker who still retains his employee
status on Respondent . It does not require the strike
to comply with any conditions imposed by Respondent
such as filling out an application at a particular time
and place or being present at the plant at the precise
moment when a job opens up. Finally, it does not
LITTLE ROCK AIRMOTIVE , INC. 673
relieve Respondent of the burden of making a good-
faith effort to find the strikers when jobs are available.
If Respondent had tried to locate the strikers as jobs
became available by sending letters to their last known
addresses or by notifying the Union , it would have
fulfilled its obligations under the Laidlaw doctrine since
it would have done all that could reasonably be expected
of it to offer reinstatement . It did not choose to do
so. Therefore , the fact that such efforts might have
failed because some or all of the strikers could not
be found. is irrelevant. Under Laidlaw, the burden of
seeking the strikers to offer reinstatement was on
Respondent , not on the strikers to seek out Respondent
so that an offer could be made.
For the reasons stated , I find that Respondent violated
Section 8(a)(3) and (1) of the Act when it failed to
offer reinstatement to James Bryant on February 18,
Don Ballard on, February 11, Arvid Straschinske on
February 13, Frank Nosal on February 12, and Robert
Edwards on March 4.
Upon the foregoing findings of fact , and on the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Little Rock Airmotive , Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Progressive Lodge No. 997 , International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
is a labor , organization within the meaning of Section
2(5) of the Act.
3. By failing to offer full reinstatement to James
Bryant on February 18, Don Ballard on February 11,
Arvid Straschinske on February 13, Frank Nosal on
February 12, and Robert Edwards on March 4 Respond-
ent has discriminated with respect to their hire , tenure,
and terms and conditions of employment , discouraging
membership in the above -named labor organization, and
thereby has violated Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by refusing
to offer reinstatement to Kenneth Thompson on February
12, Walter Ogden on March 3 , and Ralph Smith on
February 24 have not been sustained.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
I have found that Respondent has violated Section
8(a)(3) and (1) of the Act by failing to offer to reinstate
James Bryant , Don Ballard , Arvid Straschinske, Frank
Nosal, and Robert Edwards. Therefore, I will recom-
mend that Respondent offer each of them immediate
and full reinstatement to his former or substantially
equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed. In
the cases of James Bryant , Arvid Straschinske, and
Robert Edwards such offer shall be made by sending
it to each at the address which he gave as his current
address when he testified at the hearing herein. In
the cases of Don Ballard and Frank Nosal such offer
shall be made by sending it to each at a current address
furnished by the Regional Director of Region 26. In
the event the Regional Director is unable to locate
Ballard and/or Nosal , no further action on Respondent's
part shall be required. I will further recommend that
Respondent make Bryant, Ballard , Straschinske , Nosal,
and Edwards whole for any loss of earnings each may
have suffered as a result of the discrimination against
him by paying to him a sum of money equal to that
which he normally would have earned as wages from
the date on which he should have been offered reinstate-
ment until the date of Respondent 's offer of reinstate-
ment , less his net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. In the cases of Ballard and Nosal the make-whole
portion of my recommended remedy, like the offer
-of-reinstatement portion , shall only take effect in the
event the Regional Director can locate Ballard and/or
Nosal.
Upon the basis of the above findings of fact , conclu-
sions of law , and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following:
RECOMMENDED ORDER.
Little Rock Airmotive, Inc., its officers, agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Failing to offer to reinstate its employees who
have been replaced while engaged in an economic strike
when jobs become available for them after they have
made an unconditional offer to return to work in the
absence of legitimate and substantial business justifica-
tion.
(b) In any like or related manner discriminating against
employees to encourage or discourage membership in
a labor organization.
(c) In any like or related manner interfering with,
restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to James Bryant , Don Ballard , Arvid Stras-
chinske , Frank Nosal , and Robert Edwards immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority
or other rights and privileges previously enjoyed and
make each whole for any loss of pay suffered as a
result of the failure to offer him reinstatement in the
manner set forth above under the section entitled "The
Remedy."
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify James Bryant, Don Ballard, Arvid Stras-
chinske, Frank Nosal, and/or Robert Edwards if present-
ly serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order
(d) Post at its plant in Little Rock, Arkansas, copies
of the attached notice marked "Appendix "" Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith "'
I FURTHER RECOMMEND that the complaint be dis-
missed insofar as it alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to offer
reinstatement to Kenneth Thompson on February 12,
Walter Ogden on March 3, and Ralph Smith on February
24
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things
WE WILL NOT discriminate against you after
a strike by refusing to take you back provided
that you have made an unconditional offer to return,
a job is available for you, and you have not ended
your status as one of our employees by taking
a regular, substantially equivalent job elsewhere
WE WILL immediately offer to reinstate James
Bryant, Don Ballard, Arvid Straschinske, Frank
Nosal, and Robert Ewards to their former or sub-
stantially equivalent jobs without any change in
the seniority or other privileges they enjoyed before
we discharged them and WE WILL pay to them
any money they lost as a result of our discrimination
against them with interest at 6 percent
WE WILL notify James Bryant, Don Ballard,
Arvid Straschinske, Frank Nosal, and/or Robert
Edwards if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment upon application in accordance with the Selec-
tive Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces
N In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 102 48 of the Rules and Regulations
be adopted by the Board and become its findings conclusions and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board s 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 be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
"' In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 26 in writing within 10 days from the date of
this Order what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights
All our employees are free to join or not join Pro-
gressive Lodge No 997, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization
LITTLE ROCK
AIRMOTIVE, INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
3507 Federal Building , 700 West Capitol Avenue, Little
Rock, Arkansas 72201, Telephone 501-372-4361, Exten-
sion 5512