Marchese Metal Industries

National Labor Relations Board - Board Decisions

Mar 31, 1994

313 N.L.R.B. 1022 (N.L.R.B. 1994)

1022
313 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s finding that the Respondent failed to
meet its burden to prove that there was a substantial business jus-
tification for refusing to reinstate the unfair labor practice strikers,
we do not rely on the contents of a prior settlement offer made by
the Respondent.
It appears that the judge misspoke in concluding that the ‘‘[Re-
spondent] has the burden of rebutting the presumption that the em-
ployees . . . unequivocally intended to abandon their employment
with Respondent.’’ In light of his analysis preceding this conclusion,
the judge presumably meant to say that the Respondent has the bur-
den of rebutting the presumption that the employees did not intend
to abandon their employment with Respondent.
1 All dates herein are in 1991 unless otherwise indicated.
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Therefore, any testimony in this record
that is inconsistent with my findings is discredited.
M.M.I.C., Inc., d/b/a Marchese Metal Industries,
Inc. and Shopmen’s Local Union No. 455,
International Association of Bridge, Structural
and Ornamental Iron Workers, AFL–CIO.
Cases 29–CA–15936 and 29–CA–16070
March 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 31, 1993, Administrative Law Judge Ste-
ven B. Fish issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, M.M.I.C., Inc., d/b/a Mar-
chese Metal Industries, Inc., Holbrook, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Matthew T. Miklave and Catherine Creighton, Esqs., for the
General Counsel.
Robert S. Nayberg, Esq. (Law Offices of Martin H. Scher),
of Carle Place, New York, for the Respondent.
Belle Harper, Esq. (Sipser, Weinstock, Harper & Dorn), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Shopmen’s Local
Union No. 455, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL–CIO (the Union),
the Regional Director issued complaints in Cases 29–CA–
15936 and 29–CA–16070 on October 4 and December 19,
1991,1 respectively, alleging in substance that Marchese
Metal Industries, Inc. violated Section 8(a)(1), (3), and (5) of
the Act by refusing to bargain with the Union over the terms
of a new collective-bargaining agreement, and by refusing to
reinstate certain unfair labor practice strikers, subsequent to
an unconditional return to work made on their behalf by the
Union.
At the opening of the hearing before me on June 4, 1992,
the General Counsel amended the complaints to reflect the
correct name of Respondent as M.M.I.C., Inc., d/b/a Mar-
chese Metal Industries, Inc., and to delete one of the alleged
discriminatees. The hearing was completed on July 9, 1992.
Briefs have been filed by the General Counsel and Re-
spondent, both of which I might add were excellent and ex-
tremely helpful to me in reaching my decision herein. Based
on the entire record,2 including my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation with its principal
place of business at 1126 Lincoln Avenue in Holbrook, New
York, where it is engaged in the manufacture of iron and
steel staircases and related products. Annually, Respondent
purchases and receives at its Holbrook, New York plant iron,
steel, and other materials valued in excess of $50,000 di-
rectly from other enterprises located outside of the State of
New York. Respondent admits and I so find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It is also admitted and I so find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. PRIOR RELATED CASES
A. Cases 29–CA–10055 and 29–CA–10055–2 (270
NLRB 293 (1984))
On April 30, 1984, the Board issued its decision in the
above cases, affirming the decision of the administrative law
judge that Respondent violated Section 8(a)(1), (3), and (5)
of the Act by various instances of interrogation, threats of
physical harm, discharge and closure of the plant, promising
and granting benefits, denial of a wage increase, assigning
employees more arduous job tasks, the discharge of two em-
ployees because of their membership and activities on behalf
of the Union, and the refusal to bargain with the Union.
That decision found that Respondent had refused to bar-
gain with the Union in a unit of production and maintenance
employees employed by Respondent, which consisted of five
employees. The decision did not disclose what job classifica-
tions the employees had at the time, nor specifically what job
functions they performed on a regular basis.
In a footnote to the Board decision, Chairman Dotson
dealt with Respondent’s contentions with respect to turnover,
1023MARCHESE METAL INDUSTRIES
and Respondent’s offer of proof that it hired two additional
employees after the election, raising the number of employ-
ees in the unit to seven.
B. Case 29–CA–14299 (302 NLRB 565 (1991)
The Board on April 15, 1991, affirmed an administrative
law judge’s decision, which had issued on September 21,
1990, and found that Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to execute a collective-bargaining
agreement which had been agreed-to with the Union.
That decision disclosed that Respondent and the Union
had been parties to a collective-bargaining agreement which
by its terms ran from October 8, 1984, to October 7, 1987,
with a recognition clause defining the unit covered by the
contract as follows:
All production and maintenance employees, including
plant clericals, employees of Respondent engaged in the
fabrication and/or manufacture of all ferrous and non-
ferrous metals, iron, steel, and other metal products, in-
cluding plastic products, and all maintenance employees
of Respondent engaged in maintaining machinery and
equipment and other maintenance work in or about Re-
spondent’s shop or shops, and work performed by such
production and maintenance employees, but not includ-
ing office clerical employees, superintendents, or em-
ployees represented by any other union affiliated with
the AFL–CIO with whom Respondent has signed a col-
lective bargaining agreement, or to erection, installation,
or construction work, or to employees engaged in such
work.
It was also found that over the course of bargaining for
a new agreement to replace that contract, agreement was
reached on all terms, which consisted of a draft contract pre-
pared by the Union and submitted to Respondent in January
1988, together with pages of corrections given to Respondent
in July 1988 by the Union.
It was further found that Respondent, despite numerous re-
quests and meetings with the Union, never executed the
agreed-on contract, and that after another refusal to sign, the
employees of Respondent went out on strike on June 27,
1989.
The Board’s decision was subsequently enforced by an un-
published decision on January 23, 1992, of the Court of Ap-
peals for the Second Circuit.
III. THE ALLEGED REFUSAL TO BARGAIN
A. Facts
As noted above, the Board affirmed the administrative law
judge’s decision which found Respondent had refused to exe-
cute a new collective-bargaining agreement. The hearing in
that case was held on May 1 and 2, 1990.
On August 9, 1990, while the administrative law judge’s
decision was still pending, Respondent by its attorney sent
a letter to the Union, which reads as follows:
August 9, 1990
HAND DELIVERED
William Colavito, Pres.
Shopmen’s Local Union No. 455
of the International Association of
Bridge, Structural and Ornamental
Iron Workers, AFL–CIO
40-05 Crescent Street
Long Island City, NY 11101
Re: Marchese Metal Industries
Dear Mr. Colavito:
Our office is labor counsel to Marchese Metal Indus-
tries. Since there is a current dispute between Marchese
and your Union as to whether there is a current valid
contract between them which would expire by its terms
on October 7, 1990, the Company is covering all con-
tingencies by providing you with this letter as notice
that it intends to terminate such alleged contract and
that it rejects an automatic renewal of said alleged
agreement in the event of a determination that such
contract exists.
This notice to you is within the 90 to 60 day period
prior to the expiration of such alleged current agree-
ment, but should not be taken as an acknowledgement
of the existence of a current collective-bargaining
agreement between Marchese and Local 455.
Moreover, this notice is specifically without preju-
dice to Marchese’s contention before the National
Labor Relations Board in 29–CA–14299 that no agree-
ment between Marchese and the Union exists.
Very truly yours,
Martin Scher
The Union did not respond to Respondent’s letter, nor did
it initiate a request for bargaining over the terms of a new
agreement until May 20, 1991. At that time, the Union sent
a letter to Respondent reminding it that the Board had issued
its decision on April 15 ordering Respondent to execute the
1987–1990 agreement. The Union requested that Respondent
do so, and advise the Union of a convenient date and time
for a meeting to negotiate a new agreement, to be effective
October 8, 1990.
On June 6, 1991, Respondent’s attorney replied to the
Union’s letter. The letter essentially responds that the
Union’s requests are both premature, since the court of ap-
peals had not as yet enforced the Board’s Order. Respondent
also referred in the letter to its August 9, 1990 letter to the
Union, terminating the prior alleged agreement; and asserted
that the Union waived its rights to request bargaining by its
inaction of failing to respond to that letter until May 20,
1991.
On July 22, 1991, the Union sent another letter to Re-
spondent, again referring to the Board decision, and request-
ing a date to meet and bargain. Respondent did not reply to
this letter. The Union filed its initial charge in Case 29–CA–
15936 on August 21, 1991.
B. Analysis
Respondent does not dispute that it refused the Union’s re-
quests made in writing on May 21 and July 24 to meet and
bargain over the terms of a new contract. However, Respond-
ent argues that the Union waived its rights to bargain with
Respondent by its failure to respond to Respondent’s August
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The collective-bargaining agreement specifically excludes work
performed outside the shop.
4 The record does not reflect the full name of this labor organiza-
tion. However, the Local 580 employees received $23 to $24 per
hour.
9, 1990 letter and its failure to request bargaining between
that date and May 21, 1991. I do not agree.
Initially, I would note that it is well settled that a waiver
of a statutory right to bargain over mandatory subjects of
bargaining must be clear and unmistakable. Metromedia, Inc.
v. NLRB, 586 F.2d 1182, 1189 (8th Cir. 1978); Minnesota
Mining Co., 261 NLRB 27, 42 (1982); Southern Florida
Hotel Assn., 245 NLRB 561, 567–568 (1979).
No such clear and unmistakable waiver of the Union’s
rights to bargain has been demonstrated by Respondent. Re-
spondent’s reliance on its August 9, 1990 letter to trigger an
obligation on the part of the Union to request bargaining at
that time is misplaced and disingenuous. I note that although
Respondent’s letter indicated that it intended to terminate the
alleged contract, it is clear that the only purpose of such a
letter was to forestall the automatic renewal clause of that
agreement, and was not an offer by Respondent to bargain
with the Union over a new contract. Indeed, Respondent
made no offer to bargain with the Union in that letter, and
indeed its insistence in the letter that it was still contending
that there was no valid contract in effect between the parties,
demonstrates clearly that any request by the Union to bargain
with Respondent over the terms of a new contract would
have been futile. Lauren Mfg. Co., 270 NLRB 1307, 1309
(1984); Unoco Apparel, 215 NLRB 89, 91 (1974); Bay Area
Dealers, 251 NLRB 89 (1980). (Bargaining against a back-
ground of unremedied unfair labor practices would have been
an exercise in futility.)
My conclusion in this regard is reinforced by Respond-
ent’s response to the Union’s demand for bargaining, after
the Board decision was issued. In its June 6 letter, Respond-
ent referred to the fact that it was contesting the Board’s
findings in Federal court, and asserted that the Union’s re-
quest to bargain was premature. This position of Respondent
is clearly unlawful, as its bargaining obligation to the Union
is not suspended by virtue of its appeal to the Federal court
of the Board’s decision. Bryan Memorial Hospital, 282
NLRB 235, 236 (1986); Getzler Tool & Dye Corp., 275
NLRB 881, 882 (1985).
Accordingly, I conclude that the Union has not waived or
abandoned its rights to bargain with Respondent and that Re-
spondent has violated Section 8(a)(1) and (5) of the Act by
its refusal to meet and bargain with the Union, after the
Union’s request to do so on and after May 20, 1991.
IV. THE ALLEGED UNLAWFUL REFUSAL TO REINSTATE
A. Facts
On or about June 28, 1989, certain employees of Respond-
ent went on strike. Respondent concedes and I find that the
strike was caused by the unfair labor practices committed by
Respondent in the prior Board case involving Respondent’s
refusal to execute an agreed to collective-bargaining agree-
ment. The issues presented are which employees should be
considered strikers, whether certain of the employees lost
their employee status as a result of obtaining substantially
equivalent employment, whether one of the employees by re-
jecting an offer of employment by Respondent has lost his
rights to reinstatement, and whether Respondent has estab-
lished substantial business justification for its refusal to rein-
state the strikers.
Prior to the strike in June 1989, Respondent employed em-
ployees in two job classifications, finishers and mechanics.
The primary job of a finisher is and was to read the blue-
prints or drawings and specifications for a job, measure and
layout the job by marking on the steel where the cuts should
be made, and supervise the mechanics in the welding and
cutting or fabrication of the steel. Additionally, the finisher
prior to the strike, when time permitted, would also perform
the fabricating of the steel. The record does not disclose how
much time prior to the strike finisher’s spent performing fab-
ricating work.
The primary job of the mechanic is to perform the fab-
ricating of the metal products in the shop under the direction
of the finisher. However, it is undisputed that a substantial
portion of the worktime of mechanics prior to the strike was
spent performing work which would be considered ‘‘labor-
ers’’ work under the contract such as painting, cleaning up,
and driving the Respondent’s truck or nonbargaining unit
work, such as erection work and other work performed at
jobsites outside the shop.3 Mechanics performed work for
Respondent at a number of specific jobsites such as the East
Hampton Fire House, Kennedy Airport, office buildings, and
Brookhaven Labs on a regular basis, sometimes for months
at a time on a particular job. One employee, Miguel Rivera,
was injured while working on one of these jobsites. The me-
chanics employed by Respondent would work on these out-
side jobs along with their fellow mechanics employed by Re-
spondent, one of the Marchese’s or employees represented by
another labor organization, Local 580.4
The number of mechanics and finishers employed by Re-
spondent would fluctuate, with as much as three or four fin-
ishers, and seven or eight mechanics, being employed at par-
ticular times. The fewest number of mechanics employed by
Respondent, prior to the strike was five.
In May 1989, Respondent laid off mechanics Miguel Ri-
vera, Howard Jarrett, and William Deleyer, each of whom
had been employed by Respondent for at least 30 days prior
to their dates of layoff. Jarrett began working for Respondent
in October or November 1988, was laid off about a month
later, and was subsequently recalled by Respondent prior to
being laid off along with the other two mechanics in May
1989.
The collective-bargaining agreement between the parties
provides that in ‘‘all cases of increase or decrease of forces,
employees shall be given preference in their classification in
accordance with their length of continuous service.’’
Respondent at the time of the strike on June 28, 1989, em-
ployed Leroy Popp as foreman. Popp’s responsibilities as
foreman included overall responsibility for the production in
the shop, receiving calls from outside jobs, arranging for de-
liveries of equipment, and making sure repairs are made. Ad-
ditionally, Popp as foreman would also perform work as a
finisher, and in fact would spend from 50–75 percent of his
time performing finisher’s work. Popp’s salary was $19.35
per hour.
Respondent employed Richard Smith as an assistant fore-
man and finisher. Most of his time was spent as a finisher,
1025MARCHESE METAL INDUSTRIES
and he would have the foreman’s responsibilities as de-
scribed above, in the foreman’s absence. The record does not
disclose Smith’s salary prior to the strike.
As of June 28, Respondent also employed Jacob Frank,
William Waltrop, Jerry Cimino, and Timothy Clark as me-
chanics.
On the day of the strike, June 28, Frank, Waltrop, Cimino,
Clark, Popp, and Smith all did not report to work and pick-
eted outside Respondent’s premises. Picketing was conducted
at the facility for a period of between 3 and 5 weeks, with
these employees participating at various times.
Rivera, who as noted was on layoff at the time of the
strike, did not picket, but on one occasion when he was not
working, visited the picket line and spoke to the other em-
ployees present on the line. Rivera was told by the pickets
that Respondent had nonunion employees working inside the
shop. Rivera made no attempt to cross the picket to go to
work for Respondent. Nor did Respondent contact Rivera to
offer to recall him to work, although it hired replacement
employees at various times subsequent to the strike’s com-
mencement.
Rivera worked at North Shore Fabricators & Erectors
(North Shore) for 3 weeks in May 1989, after his layoff, but
prior to the strike. He worked again for North Shore for 3
weeks in early November 1989. However, Rivera was em-
ployed at North Shore according to North Shore’s records,
as a ‘‘vacation replacement only.’’
After his layoff from North Shore, and at some point sub-
sequent to the commencement of the strike, but not disclosed
by the record, Rivera took a job with Martin Manufacturing.
The record does not disclose how long Rivera worked for
Martin Manufacturing, or what benefits or salary he received
at that company.
While Deleyer did not testify, I credit the testimony of
Frank and Popp that he picketed at Respondent’s premises
for some period of time during the strike. Deleyer also did
not attempt to cross the picket line, and was also not offered
by Respondent the opportunity to return.
The record does not disclose Deleyer’s work history prior
to or after the strike, except that a W-2 form from North
Shore showed that he received $2,704.80 in wages from
North Shore for that year, plus a statement that he, like Ri-
vera, was hired by North Shore as a ‘‘vacation replacement
only.’’
Jarrett did not learn of the strike until August 1989, when
someone whom he didn’t recall told him about it. He never
picketed or went to the picket line. He also did not attempt
to go to work for Respondent, nor was he offered the chance
by Respondent to do so. Jarrett testified that he is interested
in returning to work for Respondent.
Jarrett was not employed at or prior to the commencement
of the strike. In October 1989, Jarrett was employed by
Kurtz Iron Work, a Local 455 shop, at a salary of $15.25
per hour as a mechanic, wherein he received all the benefits
under the union contract. He was laid off from Kurtz in or
about January 1990. He subsequently found a job at Martin
Iron Works as a finisher-mechanic at a salary of $13 per
hour, which was not a Local 455 shop and wherein he re-
ceived no medical plan, pension, vacation, or annuity plan.
Jarrett was subsequently laid off from Martin and has not
worked since that time.
Leroy Popp, after picketing at Respondent’s facility for ap-
proximately 2 weeks, began employment at North Shore on
July 11, 1989, as a layout or finisher employee. North Shore
is a company under contract with the Charging Party Union.
At North Shore, Popp would have under the union contract
received a salary of $16.75 per hour from July 1989–1990,
$17.59 from July 1990–1991, and $18.47 from July 1991
through May 1992. North Shore made contributions into the
Union’s welfare, pension, vacation, apprentice, annuity, and
severance funds. Under Respondent’s contract with the
Union, contributions were required to be made only to the
Union’s welfare and annuity funds.
Jacob Frank and Timothy Clark, after picketing at Re-
spondent’s facility for various periods of time, obtained em-
ployment at North Shore as mechanics on May 24, 1990, and
September 1989, respectively. Both Clark and Frank had
been receiving $14.90 per hour while employed by Respond-
ent. At North Shore, their salary would have under the con-
tract ranged from $15.44 per hour to $17.02 per hour as of
August 1991. Both Clark and Frank also had contributions
made on their behalf to the various union funds, as described
above with respect to Popp by North Shore.
Clark and Frank were laid off from their jobs at North
Shore from May 1 to June 1, 1992. Clark also testified that
he was laid off on another occasion from North Shore for
3 weeks, the dates of which he could not recall.
Richard Smith returned to work for Respondent in July
1990 to his former position of assistant foreman and finisher.
The circumstances of his return to work was not disclosed
by the record. His salary was $20 per hour after his return
to work.
The Local 455 employees employed by North Shore, in-
cluding Popp, Clark, and Frank were on strike against North
Shore and did not work for North Shore from July 16 to Au-
gust 30, 1991.
By letter dated July 22, 1991, the Union requested on be-
half of employees Popp, Frank, Cimino, Clark, Deleyer, Ri-
vera, Jarrett, and S. Pazanin to return to work at their same
or to substantially equivalent jobs without prejudice to any
rights or privileges previously enjoyed by them. The letter
concludes by asking that the Union be notified when the em-
ployees may report.
No evidence was presented by the General Counsel or
Charging Party that the Union consulted with or notified the
above-described employees before requesting reinstatement
on their behalf. In fact, Clark, who was the shop steward for
the Union at Respondent, testified that he was not contacted
by the Union prior to the Union requesting reinstatement on
his behalf and that he did not know in July 1991 that the
strike at Respondent was over. Jarrett, who as noted was on
layoff status with Respondent at the time the strike began,
also did not know in July 1991 that the Union had made a
request on his behalf to return. Furthermore, Panazin whose
name also appeared in the Union’s letter as requesting rein-
statement, resigned his employment from Respondent in writ-
ing on June 9, 1989, which suggests that Panazin was also
not consulted by the Union before it included his name as
an employee requesting reinstatement. I would note, how-
ever, that the Union did not include the name of one striker,
William Waltrop, as requesting reinstatement, which further
suggests that the Union did consult with Waltrop about his
desires to return to work for Respondent.
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent did not reply to the Union’s letter and did not
offer reinstatement to Clark, Frank, Cimino, Rivera, Jarrett,
or Deleyer. However, Dennis Marchese, Respondent’s presi-
dent, contacted Popp and offered him a job as a finisher.
Marchese offered to pay Popp $23 per hour, which was more
than he had previously been paid as a foreman, wherein as
noted he spent 50–75 percent of his time performing finish-
er’s work. Marchese also offered him a medical plan, but not
the union medical plan provided for in the contract. Mar-
chese also did not offer to contribute to the union annuity
or welfare found on behalf of Popp, as the collective-bar-
gaining agreement required.
Popp asked Marchese why he wasn’t being offered his old
job as foreman. Marchese replied that he was satisfied with
the man he had in that position. In fact, Respondent had
hired Julius Kovacik as foreman in May 1990, who was paid
a salary of $1000 per week.
Popp told Marchese that he would think it over. After sev-
eral telephone conversations, Popp told Marchese that he
would ‘‘rather stay with the Union in the shop he was in.’’
Other than its attempt to reinstate Popp, Respondent did
not contact or offer reinstatement to any of the other employ-
ees named in the Union’s letter. Nor did Respondent respond
to the Union’s letter in any way, or explain to the Union its
reasons for not offering jobs to the other employees. In this
proceeding, Respondent adduced no evidence as to who or
when the decision was made not to offer jobs to these em-
ployees, or precisely why the decision was made.
Marchese did testify, corroborated by Smith and Kovacik,
that from July 22, 1991, to the start of the trial on June 4,
1992, Respondent employed five full-time employees, four
‘‘finishers’’ (Smith, Kovacik, Michael Sabina, and Steven
Heins), and only one mechanic, Algy Patterson. Respondent
also presented some generalized testimony, not supported by
any records or documentary evidence that business was poor
or bad from July 1991 on, as compared to 1989. However,
no testimony or other evidence was offered that established
any connection between these events and Respondent’s deci-
sion not to offer reinstatement to the returning strikers. In-
deed, Respondent did not explain what changes in the type
or amount of work that its employees were performing was
responsible for its alleged decision to change the composition
of its work force from two finishers and four mechanics in
June 1989 when the strike began to four finishers and one
mechanic in July 1991 when the strike ended. In fact, Re-
spondent introduced no evidence as to the composition of its
work force between June 1989 and July 1991; or as to when
why or how it decided that it would now reduce the number
of mechanics from four to one or increase the number of fin-
ishers from two to four.
Marchese also testified that after July 22, 1991, Respond-
ent had ‘‘on occasion, for a couple of days, one day, two
days, whatever, there’s short periods of time, hired people to
finish up work in the shop and get it out or hire them to
erect something that needed to be done right away.’’ Smith
corroborated Marchese by testifying that other employees
were hired to do a ‘‘day’s work, a couple of days’ work.’’
However, Respondent’s payroll records paint an entirely
different picture with respect to the frequency of employment
of these additional employees. These records, which inciden-
tally list all these employees under the title of ‘‘shopmen,’’
reveals that for the period between July 22, 1991, and June
3, 1992, Respondent employed in addition to its alleged
‘‘regular’’ crew of five employees a total of nine employees
who worked a total of 2484.5 hours (60 full workweeks) dur-
ing this period of time.
Moreover, although Marchese testified that from the date
of the request to the trial Respondent employed Heins and
Sabina as part of its allegedly ‘‘regular’’ crew, in fact neither
Heins nor Sabina were employed by Respondent on the date
that the Union requested reinstatement on July 22, 1991. For
that payroll period, which ended July 24, Respondent em-
ployed Kovacik, Smith, Patterson, plus employees George
Brabant, Harold Price Jr., and Carl Rogers. Significantly, Re-
spondent did not establish when it first hired Brabant, Price,
or Rogers, so conceivably they could have been employed
for some period of time prior to July 24, 1991. These same
employees were all regularly employed by Respondent for
the next six payroll periods, until the period ending Septem-
ber 11, when Respondent added Heins and employee Ramon
Chinea.
For the next payroll period, ending September 18, Timothy
Dugan was added, raising Respondent’s complement to nine
employees, eight employees listed as ‘‘shopmen,’’ plus
Kovacik. For the next payroll period, ending September 25,
Rogers was listed as receiving only vacation pay with no
hours of work, which indicates that his employment termi-
nated at that time, reducing Respondent’s complement to
eight. The next week, ending October 2, revealed 2 more
new hires, David-Leigh Manuell and Donald Vincent, raising
the number of Respondent’s employees to its highest level of
10 for that 1 week. The week ending October 9 revealed no
hours worked for Brabant, Price, or Vincent, plus vacation
pay for Vincent and Brabant. Thus, for that week, Respond-
ent’s employees who worked totaled seven, six ‘‘shopmen’’
plus Kovacik. The week ending October 16 showed another
new hire, Robert Ruland, raising Respondent’s total to eight
employees for that week. Respondent finally hired Sabina (its
other alleged ‘‘regular’’ employee) for the week ending Oc-
tober 23, which gave Respondent nine employees for that
week. The week ending October 30 revealed that Dugan
worked no hours and received vacation pay, reducing Re-
spondent’s complement for that week to eight. The very
same eight employees all worked for Respondent for the
weeks ending November 6 and 13. For the week ending No-
vember 20, Chinea, Leigh-Manuell, and Ruland all received
vacation pay from Respondent, reducing the complement of
employees to five, where it remained from that date through
the payroll period ending May 13, 1992, when Robert
Ruland was rehired. For the next week, May 20, 1992, James
Van Laar was hired and he and Ruland worked that week,
as well as the week ending May 20, 1992, raising Respond-
ent’s level of employees to seven. For the week ending June
3, 1992, which is the week before the trial started herein, Re-
spondent laid off Patterson, Van Laar, and Ruland, and then
recalled them to work a week or two later.
My findings above pertaining to the payment of the vaca-
tion pay to employees is derived from my assessment of the
designation VCH on the payroll along with no designation of
hours worked for that week. Marchese initially agreed with
that interpretation of VCH, but later on his testimony sur-
mised it might have referred to termination. However, since
employee Heins was paid for the week ending December 4,
1991, with the symbol VCH and no hours worked, and was
1027MARCHESE METAL INDUSTRIES
not terminated, I conclude that Marchese’s original belief
was correct and VCH on Respondent’s payroll stands for va-
cation.
Respondent did adduce testimony from Marchese and
Kovacik as to the work performed by the additional hires
whom it employed at the time of and subsequent to the
Union’s request for reinstatement. According to Respondent’s
witnesses, these nine employees were for the most part hired
either to perform ‘‘outside’’ work, which is as noted ex-
cluded from unit work by the contract, or helpers’ or labor-
ers’ work, which Respondent does not construe as ‘‘mechan-
ics’’ (fabrication) work. Marchese further testified that al-
though Respondent’s payroll records classified all of these
employees as shopmen, ‘‘the shopmen in this period of time
is a non-union group,’’ which includes both employees work-
ing in the shop and outside the shop on jobs that are not sub-
ject to the jurisdiction of Local 580.
Marchese and Kovacik contend that only one of the nine
employees, David-Leigh Manuell, who was employed by Re-
spondent for 7 weeks between October 3 and November 21,
1991, worked as a mechanic performing welding in the shop.
They contend that Leigh-Manuell was hired primarily to
work on one particular ‘‘railing’’ job that Respondent was in
a rush for, although no testimony or records were introduced
to further identify the name, nature, customer, or duration of
this job. Nor was any testimony offered that when Leigh-
Manuell was hired he was told that his employment at Re-
spondent was temporary, or that it would end when that par-
ticular job was completed. Moreover, Marchese admitted that
Leigh-Manuell also performed some work outside the shop,
in addition to his mechanics’ work on the one particular job
that Respondent had at the time.
As noted, in the payroll period ending July 24, 1991, the
date wherein Respondent received the Union’s request for re-
instatement, Respondent employed Brabant, Rogers, and
Price, in addition to Patterson, Smith, and Kovacik. Accord-
ing to Marchese, corroborated in part by Kovacik, these three
individuals characterized as ‘‘helpers’’ performed outside
erection work, and laborers’ work (painting, loading, moving
iron, and driving a truck). Although these individuals applied
for positions as welders, and some of them had welding ex-
perience, Marchese asserts that they ‘‘thought they could
weld,’’ but they couldn’t, so Respondent used them as help-
ers and/or outside erectors.
Respondents’ witnesses also placed employees Chinea,
Ruland, Vincent, and Van Laar in the same category. They
allegedly were hired and worked as helpers, outside erectors,
and/or driving a truck. However, both Kovacik and Smith,
who were Respondent’s witnesses, testified that at times
Robert (Ruland) and Ramon (Chinea) both performed ‘‘me-
chanics’’ work.
As to the final employee, Timothy Dugan, he was hired
solely as an outside erector, and performed only work out-
side the shop. However, Kovacik conceded that at times,
Dugan would be called on to do some fabrication work (i.e.,
mechanics’ work) while at the jobsite. Kovacik also con-
ceded that there were other times when some of the other
‘‘helper’’ employees involved would be called on to perform
‘‘minor’’ fabrication work at the jobsite, rather than bring the
material back to the shop for a regular mechanic or finisher
to perform the work.
All of these nine employees including Leigh-Manuell, who
admittedly performed what Respondent considered to be
‘‘mechanics’’ work, received salaries between $10 and $11
per hour, except for Ruland who received $8 per hour. Pat-
terson, Respondent’s admitted mechanic, received a salary of
$15 per hour. Heins and Sabina, Respondent’s alleged ‘‘fin-
ishers’’ received salaries of $14 and $14.50 per hour respec-
tively. Smith as noted received $20 per hour.
The record does not disclose how much time, if any, Pat-
terson spent performing painting, tacking, loading, or other
traditionally ‘‘laborers’’ work, or whether he performed any
work outside the shop.
Although Heins and Sabina were allegedly ‘‘finishers,’’
the record also does not disclose how much time they spent
performing traditional mechanics’ work such as fabrication.
Smith, who as noted was also a finisher, according to
Kovacik, spent about 25 percent of his time after July 1991
performing ‘‘mechanics’’ work. It is not clear whether that
percentage of time spent doing mechanics was more or less
than the amount of time he spent performing mechanics’
work prior to the strike.
Two weeks prior to the trial the Respondent and the Union
met to discuss a possible overall settlement of both the in-
stant matter and the prior case. During that meeting, part of
Respondent’s offer to settle, was a proposal to retain a work
force consisting of two finishers and three mechanics. The
Union rejected Respondent’s offer.
B. Analysis
1. Status of the employees on layoff at the time
of the strike
Respondent asserts that the three employees who were on
layoff status at the time the strike commenced in June 1989,
Rivera, Deleyer, and Jarrett, were no longer employees of
Respondent and were not strikers, entitled to reinstatement
when the strike ended in July 1991.
Section 2(3) of the Act, defines the term employee as fol-
lows:
(3) The term ‘‘employee’’ shall include any em-
ployee, and shall not be limited to the employees of a
particular employer, unless the Act explicitly states oth-
erwise, and shall include any individual whose work
has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular
and substantially equivalent employment.
Respondent relying on the latter portion of the statute, ini-
tially argues that Rivera and Deleyer when they prior to the
strike accepted employment at North Shore, which was sub-
stantially equivalent to their former job, lost their employee
status. However, since it is clear that their employment at
North Shore was as vacation replacements only, these posi-
tions cannot be construed as substantially equivalent under
any circumstances, and I find that their acceptance of these
jobs has no effect on their employee status, vis-a-vis Re-
spondent.
Respondent also argues that the General Counsel has not
met its burden of establishing that the laid-off employees
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Although Jarrett did not know about the strike at the time the
strike started, he subsequently found out and did not offer to return
to work for Respondent.
should be considered strikers. This contention raises serious
issues. The applicable law is set forth by the Ninth Circuit:
The critical question about individuals on layoff sta-
tus when a strike is called is whether they are in fact
‘‘strikers’’ and thus continue to be ‘‘employees’’ under
the NLRA. See Brinkerhoff Signal Drilling Co., 264
NLRB 349 (1982); Conoco, Inc., 265 NLRB 819, 821
(1982), enfd. 740 F.2d 811 (10th Cir. 1984). In other
words, the employees who were on layoff from the
Company before the strike must be shown to have been
individuals ‘‘whose work has ceased as a consequence
of, or in connection with, any current labor dispute.’’
29 U.S.C. Section 152(3). To fall within this definition,
these laid-off individuals must have had their ability to
work for the Company curtailed by the strike. If the
laid-off individuals fall within this definition, they are
entitled to reinstatement. NLRB v Rockwood & Co., 834
F.2d 837, 839 (9th Cir. 1987).
I conclude that the evidence is sufficient to conclude that
the laid-off employees did have their ability to work for Re-
spondent curtailed by the strike, and that they should be con-
sidered strikers, along with the employees who were not on
layoff status at the time of the strike. Generally, where a
laid-off employee is involved, the General Counsel is re-
quired to show that the employees engaged in some overt ac-
tion giving the Employer reasonable notice of their strike
support. Brinkerhoff, supra at 349.
Here, Delayer engaged in picketing of Respondent’s prem-
ises, Rockwood, supra, and Rivera, although he did not pick-
et, visited the picket line and thereby also publicly supported
the strike. Cf., Dalton Sheet Metal, 207 NLRB, 188, 191–
192 (1973). Significantly, Deleyer, Rivera, and Jarrett5 all
knew about the strike and did not offer to break the strike
by requesting to return to work for Respondent.
More importantly, however, I find that the record is clear
that Respondent at all times material herein considered and
believed that all three of the laid-off employees were strikers.
Thus, although Respondent, after the strike began, continued
to operate and staff its business with replacement workers,
it made no effort to recall these employees from layoff, even
though it was contractually required to do so. Moreover, Re-
spondent made no attempt to contact these employees to as-
certain whether they might be interested in working, notwith-
standing the Union’s strike. Therefore, in the absence of any
other explanation for Respondent’s failure to recall them, I
conclude that Respondent believed that these employees, as
union members would not break the strike and return to
work. Therefore, because the employees did not offer to re-
turn to work, and Respondent did not ask them to do so,
both the employees and Respondent construed them to be
strikers. Connecticut Distributors, 255 NLRB 1255, 1266
(1981) (employee Shepard), enf. denied on other grounds
682 F.2d 127 (2d Cir. 1982).
Moreover, when the Union requested reinstatement on be-
half of these three employees, along with the other employ-
ees who had not been on layoff status at the time of the
strike, Respondent made no reply to the Union. Respondent
did not inform the Union that it considered that these three
employees who were on layoff at the time of the strike, were
not strikers, and not eligible for reinstatement for that reason.
Indeed, Respondent never furnished any reason to the Union,
or even at the hearing as to why it did not reinstate them,
or that it questioned their status as strikers. In fact, Respond-
ent treated the laid-off employees the same as it treated the
other strikers; i.e., it refused to reinstate any of them. There-
fore, since an employer violates Section 8(a)(1) and (3) of
the Act when it discharges or otherwise discriminates against
an employee because the employer believes that the em-
ployee engaged in union or protected activity, BMD Sports-
wear Corp., 283 NLRB 142, 143 (1987), S & R Sundries,
272 NLRB 1352, 1356–1357 (1984), or because it believes
that the employee was a striker, Pleasant View Rest Home,
194 NLRB 426, 431 (1971), even though the employee may
not have engaged in any union or strike-related activity, I
conclude that since Respondent believed that these employ-
ees were strikers, and treated them as such, that they should
be considered to be strikers and have the same reinstatement
rights as the other strikers herein.
2. Whether strikers lost their status as employees by
obtaining substantially equivalent employment
Respondent contends that employees Popp, Frank, and
Clark lost their status as employees under Section 2(3) of the
Act by their obtaining substantially equivalent employment.
NLRB v Fleetwood Trailer Co., 389 U.S. 375, 378 (1967);
Lone Star Industries, 279 NLRB 550, 553–554 (1986), affd.
and vacated in part 813 F.2d 472 (D.C. Cir. 1987);
Woodlawn Hospital, 233 NLRB 782, 791 (7th Cir. 1979),
enfd. and vacated in part 596 F.2d 13, 20 (7th Cir. 1979).
As noted above, Section 2(3) defines an employee as in-
cluding individuals whose work has ceased as a consequence
of a labor dispute or because of an unfair labor practice and
who has not obtained any other substantially equivalent em-
ployment. On its face, this provision would seem to substan-
tiate Respondent’s position. However, as will be described
more fully below, the Board has been most reluctant to apply
this section of the statute to foreclose the reinstatement rights
of returning strikers. Although the Board’s decisions in this
area are not a model of clarity or consistency, this may be
in part due to two seemingly inconsistent Supreme Court
opinions on this subject.
While initially the Board construed the statute literally, by
not ordering reinstatement for workers who had secured sub-
stantially equivalent employment, Matter of Rabhor Co., 1
NLRB 470, 481 (1936); Matter of Jeffrey-DeWitt Insulator
Co., 1 NLRB 618, 628 (1936), it changed its position in
Matter of Eagle-Picher Mining & Smelting Co., 16 NLRB
727, 783 (1939), and found that, although certain
discriminatees and strikers had obtained substantially equiva-
lent employment prior to their request for reinstatement or
after their discharges, it was nevertheless appropriate to order
reinstatement and backpay for these employees. The Board
did not discuss or distinguish the prior cases cited above, but
simply relied on its remedial authority under Section 10(c)
of the Act, and held, that ‘‘we do not believe that those
claimants who have obtained regular and substantially equiv-
alent employment thereby become remediless, either for pur-
poses of backpay or for purposes of future employment by
the Respondents.’’ Id. at 833. Notably it did not order rein-
1029MARCHESE METAL INDUSTRIES
statement for employees who testified that as a result of their
obtaining substantial and equivalent employment, they did
not desire reinstatement with the Respondent, and ordered no
backpay to these employees subsequent to the date of their
obtaining such employment. This decision was followed in
Virginia Electric Power Co., 20 NLRB 911 (1940), but inter-
estingly was modified slightly. There, although an employee
had obtained a job at a higher salary after his discharge, he
had also stated at the hearing that he desired reinstatement
with the employer. The Board then concluded, ‘‘We are of
the opinion that Stanton’s desire to be reinstated at the Re-
spondent’s plant should be given weight in determining
whether he has obtained substantially equivalent employ-
ment. We find that he has not.’’ Id. at 930.
In Phelps Dodge Corp., 19 NLRB 547, 598–599 (1949),
the Board, citing Eagle Picher, supra, reiterated its position
that even if a striker obtains other regular and substantial em-
ployment, reinstatement is still an appropriate use of the
Board’s remedial powers under Section 10(c) of the Act. The
Second Circuit reversed the Board’s finding in this regard
concluding that if the employees obtained substantially
equivalent employment they ‘‘ceased to be employees sub-
ject to reinstatement.’’ Phelps Dodge v. NLRB, 113 F.2d 202,
205 (2d Cir. 1940).
The Supreme Court granted certiorari, and in an opinion
by Justice Frankfurter sustained the Board’s position. Phelps
Dodge v. NLRB, 313 U.S. 177 (1941). The Court concluded
that Section 2(3) and Section 10(c) must be read together,
and that Section 2(3) does not limit the Board’s power to
award reinstatement to an employee even if he obtains sub-
stantially equivalent employment. 313 U.S. 190–191. The
Court noted that the Board exists to adjudicate public not pri-
vate rights, including the achievement and maintenance of
workers’ rights to self-organization. The opinion also recog-
nized the obligation of discharged employees to accept an
offer of substantially equivalent employment, or be found to
have willfully incurred loss of earnings, and observed that
the coercion on employees in such a situation is reduced by
the Court’s holding that acceptance of such a position by the
employee does not disqualify him from returning to his old
job. Id. at 193.
Subsequently, in Mastro Plastics Corp., 136 NLRB 1342
(1962), the Board set forth various principles in connection
with backpay, and citing Phelps Dodge, supra, held that em-
ployees who have obtained regular and substantial employ-
ment are still employees entitled to the Board’s remedies.
The Board noted the dilemma that employees would be
placed in, if a contrary interpretation were to be made. Thus,
an employee could be deprived of his claim because he did
not make reasonable efforts to find interim employment, and
on the other hand would be deprived of his total claim by
obtaining the interim employment. Finally, the Board also
cited, as did the Supreme Court, the Board’s power to vindi-
cate public rights and not merely correcting private injuries.
Id. at 1350 fn. 20.
It is worth noting at this point that the reasoning of the
Board and the Supreme Court, vis-a-vis the dilemma on em-
ployees, does not necessarily apply to strikers, who are not
always synonymous with discriminatees, and do not have an
obligation to look for work in order to preserve their status
as strikers. However, since the alleged statutory limitation on
employee status, by accepting substantially equivalent em-
ployment, appears in the same section of the Act, it is dif-
ficult to argue that strikers and discriminatees should be
treated differently in this regard. In any event, it does not ap-
pear that the Board has drawn a distinction between the two
situations in this area. I note in this regard that although Sec-
tion 10(c) of the Act is not necessarily implicated by a strik-
er seeking reinstatement, Section 13 of the Act has been in-
terpreted by the Supreme Court as reflecting ‘‘repeated soli-
tude’’ and special ‘‘deference’’ by Congress towards the
right to strike, NLRB v. Erie Resistor Corp., 373 U.S. 221,
233–234 (1963). Moreover, the right to seek interim employ-
ment during a strike is an important adjunct to the exercise
of the right to strike and is itself protected from employer
interference. Christie Electric Corp., 284 NLRB 740, 759
(1987); Kaiser Steel Co., 259 NLRB 643 (1981).
In 1967, the Supreme Court in Fleetwood Trailer, supra,
considered various questions concerning the reinstatement
rights of returning strikers, such as whether antiunion moti-
vation must be shown, and whether job unavailability at the
time of the request for reinstatement, extinguishes the em-
ployees’ rights to return. In deciding these issues, the Court
observed that ‘‘the status of the striker as an employee con-
tinues until he has obtained other regular and substantial
equivalent employment.’’ 389 U.S. 378. This comment, cit-
ing Section 2(3) of the Act, is of course clearly dicta in that
case, since the question of substantially equivalent employ-
ment never arose therein. More significantly, the Court made
no reference to Phelps Dodge’s contrary finding on this
issue.
Shortly after Fleetwood, supra, the Board issued Laidlaw
Corp., 171 NLRB 1366 (1968), in which it interpreted
Fleetwood, supra, and found that even if economic strikers
are permanently replaced, they are entitled to reinstatement
on the departure of the replacements. This was the issue in
that case, but the Board added as dicta, as did the Supreme
Court in Fleetwood, that the employees’ rights to reinstate-
ment are lost when they acquire regular and substantially
equivalent employment. Supra at 1370. The Board, as did the
Supreme Court, totally ignored its prior precedent, such as
Phelps Dodge, supra, and Mastro Plastics, supra, and made
no attempt to distinguish or overrule these cases.
Subsequent to Laidlaw, not surprisingly a large number of
cases issued, wherein the Board simply repeated the Laidlaw
and Fleetwood dicta and analyzed the cases on the theory
that the obtaining of substantially equivalent employment
does end employee status under the Act. H & F Binch Co.,
188 NLRB 720, 725–726 (1971); Bralto Metals, 227 NLRB
973, 977 (1977); Carruthers Ready Mix, 262 NLRB 739, 740
(1982); Brinkerhoff supra at 355 (employee Rask), 356 (em-
ployee Brewster), 357 (employee Kelly), and 363; Oregon
Steel Mills, 300 NLRB 817, 822 (1990).
Thus, it would seem that the Board has abandoned its pre-
vious position in Phelps Dodge and Mastro, that the obtain-
ing of substantially equivalent employment does not end em-
ployee status. But see Rose Printing Corp., 304 NLRB 1076
fn. 3 (1991), in which the Board observed that even if the
returning strikers had obtained regular and substantially
equivalent employment elsewhere ‘‘that would not per se es-
tablish that they had abandoned interest in pre strike jobs.’’
See also Daniel Construction Co., 276 NLRB 1093 fn. 3
(1985), in which the Board citing Phelps Dodge found that
the responsibility to reinstate discharged employees does not
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terminate in the event the employees obtain substantially
equivalent employment elsewhere. Accord: Standard Mate-
rials, 237 NLRB 1136 (1978). The above two cases suggest
that perhaps the Board may in fact be applying different con-
siderations to strikers and discriminatees, vis-a-vis the loss of
employee status by obtaining substantially equivalent em-
ployment, notwithstanding the fact that the statute (Sec. 2(3))
makes no such distinction. This may be an appropriate case
for the Board to clarify its position in that regard, at least
to make clear that it does not consider Phelps Dodge to be
applicable to returning strikers, which I believe to be the
Board’s view based on subsequent cases.
Thus, while Phelps Dodge may not be controlling in the
case of strikers, the Board has developed another line of
cases which conforms at least to the spirit of Phelps Dodge
and Mastro. Thus, in Little Rock Automotive, 182 NLRB
666, 667 (1970), enfd. in pertinent part 455 F.2d 163, 168–
169 (8th Cir. 1972), the Board, while accepting the principle
of Laidlaw that the acceptance of substantially equivalent
employment by strikers forfeits their employee status, further
defined substantially equivalent employment by injecting and
in fact emphasizing the factor of intent of the employee con-
cerned:
The question of what constitutes ‘‘regular and sub-
stantially equivalent employment’’ cannot be deter-
mined by a mechanistic application of the literal lan-
guage of the statute but must be determined on an ad
hoc basis by an objective appraisal of a number of fac-
tors, both tangible and intangible, and includes the de-
sire and intent of the employee concerned. Without at-
tempting to set hard and fast guidelines, we simply note
that such factors as fringe benefits (retirement, health,
senior-location and distance between the location of the
job and an employee’s home, differences in working
conditions, 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 or Ogden had sub-
stantially equivalent employment but note that the Trial
Examiner gave no weight to the fact that both Thomp-
son and Ogden expressed a continuing interest in re-
turning to their jobs. [Id. at 666.]
This case provides the cornerstone for the Board’s subse-
quent resolution of the issue, which indicate that it gives sig-
nificant if not controlling weight to the question of whether
the returning striker intended to abandon his employment
with the employer by accepting interim employment with an-
other employer. Woodlawn, supra at 791; Service Electric
Co., 281 NLRB 633, 637 (1986). Aluminum Welding & Ma-
chine Co., 282 NLRB 396 fn. 3 (1986); Christie Electric
Corp., 284 NLRB 740, 759 (1987); Axelson, Inc., 285 NLRB
862, 876–877 (1987); Tile, Terrazzo & Marble Contractors
Assn., 287 NLRB 769, 780 (1987); Associated Grocers, 295
NLRB 806, 808 (1989). In this connection, the Board often
utilizes the standards set forth in Pacific Tile & Porcelain
Co., 137 NLRB 1358 (1962), dealing with striker eligibility
to vote, and finds that the acceptance of other jobs, at times
even accompanied by a resignation, is insufficient to estab-
lish an abandonment of an employee’s reinstatement rights,
‘‘absent unequivocal evidence of intent to permanently sever
the striker’s employment relationship.’’ Augusta Bakery
Corp., 298 NLRB 58, 59 (1990), enfd. 957 F.2d. 1467, 1475
(7th Cir. 1992); Christie, supra at 759; Harowe Servo Con-
trols, 250 NLRB 958, 964 (1980); Axelson, Inc., 251 NLRB
282 fn. 5 (1980); Woodlawn, supra at 791; Waveline, Inc.,
258 NLRB 652, 657 fn. 9 (1981); See also Wright Tool Co.,
854 F.2d 812, 814 (6th Cir. 1988); Bio-Science Laboratories
v. NLRB, 542 F.2d 505, 507–508 (9th Cir. 1976).
Turning to the facts of the instant matter, Respondent’s
position that Popp had obtained substantially equivalent em-
ployment at North Shore, sufficient to disqualify him from
reinstatement is totally without merit. Popp was admittedly
receiving $2.38 per hour less in salary at North Shore, than
he would have been receiving at Respondent. This is suffi-
cient in itself for me to conclude which I do, that his job
at North Shore was not substantially equivalent to his former
position with Respondent. Chicago Tribune Co., 303 NLRB
682 (1990); Hayden Electric, 256 NLRB 601, 605 (1981),
enf. denied on other grounds 693 F.2d 1358 (5th Cir. 1982).
In this connection, I reject Respondent’s contention that the
benefits received by Popp at North Shore such as pension,
extra vacation and severance, compensate for the reduction
in salary, and establish that ‘‘the total package of Popp’s em-
ployment with North Shore establishes that it was economi-
cally the substantially equivalent of his former employment
with Marchese.’’ Respondent has not proved this to be the
case, nor has it cited any case that permits such a compari-
son to be made.
Moreover, Popp’s position at North Shore was a finisher,
while at Respondent his position was foreman. While it is
true that his job as foreman also entailed spending from 50–
75 percent of his time doing finisher work, the issue of addi-
tional responsibilities is a significant factor in assessing
whether a job constitutes substantially equivalent employ-
ment. Wonder Markets, 236 NLRB 787 (1978). I conclude
therefore that the fact that Popp was not employed as a fore-
man with the additional responsibilities that he had at Re-
spondent, is another reason for concluding that his North
Shore position was not substantially equivalent to his former
job at Respondent. Therefore, I need not even consider the
question of intent with respect to Popp, to find that his em-
ployment at North Shore did not forfeit his employee status
or his right to reinstatement with Respondent.
However, the status of Clark and Frank does require ex-
amination of the intent issue, since it is clear as Respondent
argues that their jobs at North Shore were the same as they
had been at Respondent, and that they were receiving higher
wages and better benefits at North Shore than they would
have been receiving while employed by Respondent. This
presents squarely the question of whether under the criteria
in Little Rock, supra, and its progeny, Respondent has estab-
lished that Frank and Clark’s employment at North Shore
constituted regular and substantially equivalent employment,
sufficient to terminate their employee status and their rights
to reinstatement by Respondent. This analysis requires as
noted significant consideration of the question of the intent
of the employees involved.
What is not clear is who has the burden of proving intent
or lack of intent of the employees to abandon their job.
While it is undisputed that the burden of proof is on Re-
spondent to establish that a striker has obtained substantially
equivalent employment, Salinas Valley Ford Sales, 279
1031MARCHESE METAL INDUSTRIES
NLRB 679 (1986); Arlington Hotel 273 NLRB 210, 216
(1984), that does not necessarily mean that it cannot argue
that by showing that the job at North Shore paid more and
had greater benefits, it at least made a prima facie showing
that the employees intended to remain at this position, and
that absent any affirmative proof from the General Counsel
that negates such an intention, Respondent has met its burden
of proof.
Some indirect support for such a view can be found by ex-
amining some of the cases analyzing the question of intent,
including Little Rock itself, in which the Board relies at least
in part on various kinds of affirmative evidence that the indi-
viduals intended to resume their employment with the struck
employer. Little Rock, supra (employee continued to make
his availability for reinstatement known through letter, phone
and personal contact); Aluminum Welding, supra (employee
made prior appearance at facility when solicited by employer
for different position); Tile, Terrazzo & Marble Contractors,
supra (employee continued to participate in union meetings
because he was not sure how long his job at a new employer
would last); Associated Grocers, supra (employee continued
to have contact with union and employer).
On the other hand, there is also more persuasive precedent
supporting the view that Respondent must present affirmative
evidence that the employee did not intend to resume his em-
ployment at the struck employer, apart from the fact that his
employment at the subsequent job had higher wages and ben-
efits. K. Van Bourgandien & Sons, 294 NLRB 268, 275
(1989); Axelson, supra, 285 NLRB at 877; Aztec Bus Lines,
289 NLRB 1021, 1026, 1062 (1988)(employee Ozgundez);
Christie, supra.
As noted, the Board has looked to representation principles
to decide issues of abandonment of employment by accepting
other jobs during a strike, Woodlawn, supra; K. Van
Bourgandien, supra, because it would be anomalous to im-
pose a different standard for eligibility to vote, than for strik-
ers seeking reinstatement to their jobs at the struck employer.
The law with respect to striker eligibility is clear. It is pre-
sumed that a striker continues in such status, and the party
challenging the vote must show affirmatively by objective
evidence that he has abandoned his interest in the struck job.
Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359 (1962).
It is also clear that the acceptance by an employee of another
job even at a higher salary and/or better benefits does not in
itself meet the burden of proving abandonment of employ-
ment. Pacific Tile, supra; Akron Engraving Co., 170 NLRB
232, 234 (1968).
I therefore conclude that the weight of authority supports
the view that whether the Board still adheres to Phelps
Dodge and Mastro and finds that the obtaining of substan-
tially equivalent employment in itself does not constitute an
abandonment of reinstatement rights, Daniel Construction,
supra; Rose Printing supra, or that the employees’ intent
must be considered in evaluating whether substantially equiv-
alent employment has been established in the first instance,
Little Rock, supra, the significant facts necessary to meet Re-
spondent’s burden are the same. It has the burden of rebut-
ting the presumption that the employees here, Clark and
Frank, have unequivocally intended to abandon their employ-
ment with Respondent.
Because all that Respondent has shown is that they ob-
tained jobs at North Shore at higher wages and benefits, and
no other evidence of intent, it has not met its burden of proof
in this regard. K. Van Bourgandien, supra; Pacific Tile,
supra; Aztec Bus, supra; Christie, supra; Axelson, supra; Alas-
ka Pulp Co., 296 NLRB 1260, 1274 (1989).
An examination of some of the cases where abandonment
of employment has been found reveals that in each case such
additional evidence of intent has been established. H. F.
Binch, supra at 725 (Board found from the testimony that
employees were ‘‘satisfied’’ with their new positions); Q. T.
Tool Co., 199 NLRB 500–502 (1972) (employees laid off
obtained jobs before the strike began, and declined to re-
spond to employer’s letter of recall); Drug Records, 233
NLRB 253, 261 (1977) (employee told struck employer that
he had another job and was not interested in company any-
more); PBR Co., 216 NLRB 602, 603 (1975) (employees
told employer they were terminating their employment). Cf.,
Roylyn, Inc., 178 NLRB 197 (1969), where employees also
signed termination slips, but only after being instructed that
this was necessary to obtain vacation pay.
Moreover, the record also contains several additional fac-
tors which militate against Respondent meeting its burden of
proof. It is significant that at no time either before or after
the reinstatement request was made, did Respondent make
any attempt to ascertain whether Frank or Clark intended to
return to work for Respondent. Associated Grocers, supra at
809; Aluminum Welding & Machine Co., 282 NLRB 396 fn.
3 (1986). In this connection, I note that at no time did Re-
spondent contend that it knew about their jobs at North
Shore, or that its decision not to reinstate them was predi-
cated on its belief that they had abandoned their employment
or had taken other jobs.
Indeed, it is also important that at the time of the request
for reinstatement, both Frank and Clark were not working at
North Shore because the employees of North Shore were on
strike from July 16 to August 30, 1991. Waveline, Inc., 258
NLRB 652 (1981). Thus, it can be presumed that they would
have accepted employment on and after July 22, if Respond-
ent had agreed to reinstate them pursuant to the Union’s re-
quest on their behalf.
Finally, I also note that seniority is clearly a factor in de-
termining whether a job is substantially equivalent. Little
Rock, supra. Here, both Frank and Clark had significantly
more seniority at Respondent than at North Shore. Indeed,
the record discloses that in fact Frank and Clark were placed
at the bottom of the seniority list at North Shore for mechan-
ics; and that they were both consequently laid off from North
Shore for a month, and Clark was laid off on another occa-
sion for 3 weeks. Conversely, the evidence does not show
that they were ever laid off by Respondent, while at least
three other mechanics were laid off by Respondent while
Clark and Frank continued to work. Thus, this loss of senior-
ity for Frank and Clark further militates against the conclu-
sion that they obtained substantially equivalent employment
at North Shore or that they intended to abandon their em-
ployment with Respondent.
Accordingly, based on the foregoing analysis and authori-
ties, I conclude that the fact that Clark, Frank, and Popp for
that matter obtained jobs with North Shore after the strike
began does not forfeit their employee status, and they were
employees of Respondent as of July 22, 1991.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It was stipulated that employee Danazin, whose name was in-
cluded in the letter, had quit prior to the strike. His name was with-
drawn as a discriminatee herein.
3. The reinstatement offer to Popp
Respondent contends that it offered and Popp rejected a
substantially equivalent position of employment. I do not
agree.
Although Respondent did offer Popp a position as a fin-
isher at a salary of $23 per hour, $3.65 more than his pre-
vious salary, it has not established that the job was substan-
tially equivalent to Popp’s former position as foreman. The
offer to Popp did not include benefits under the union con-
tract that Respondent was obligated to provide, such as the
Union’s medical plan and payments into the Union’s annuity
fund. Because Respondent’s offer did not include these con-
tractually required benefits, its offer is insufficient to estab-
lish an offer of a substantially equivalent position, to which
Popp is entitled. Harding Glass Industries, 248 NLRB 902,
906 (1980). I reject Respondent’s contention that its offer of
a higher salary, somehow relieves it of its obligation to pro-
vide the other benefits under the contract to Popp. Moreover,
as noted above, Popp’s position for Respondent was fore-
man, which entailed additional responsibilities, as well as
Popp pending less time performing finishing work than a
full-time finisher. Because additional responsibilities are part
of the definition of a substantially equivalent position, Won-
der Markets, supra, I conclude that the failure to offer Popp
a foreman’s position is another reason to find that the offer
was not to a substantially equivalent job.
Accordingly, I conclude that Popp was not obligated to ac-
cept the position offered by Respondent and remained enti-
tled to an offer of his prior job of foreman.
4. The authority of the Union to request reinstatement
Respondent argues that it is appropriate to draw on ad-
verse inference that the Union did not consult or discuss with
the employees involved its intent to request reinstatement on
their behalf, and that the failure to do so invalidates the
Union’s requests for reinstatement. In this connection, Re-
spondent notes that two of the employees admitted that they
did not know of the Union’s request, three other employees
testified on behalf of the General Counsel and were not
asked the question, and two other employees and the union
president were not called as a witness at all.
Accordingly, Respondent asserts that ‘‘no inference may
be drawn that the July 1991 letter represented or comported
with desires of the individuals whose names were listed.’’ I
disagree.
Where as here the Union is clearly the representative of
the employees, and supervised and called the strike, a general
agency is created which empowers the Union to offer to re-
turn to work on behalf of all the striking employees without
obtaining specific authorization from the employees to do so.
Daniel Finley Allen & Co., 303 NLRB 846 (1991); Consoli-
dated Dress Carriers, 259 NLRB 627, 636 (1981), enfd. in
pertinent part 693 F.2d 277 (2d Cir. 1982); see also Hotel
Roanoke, 293 NLRB 182, 200 (1989).
Therefore, even were I to draw the adverse inference re-
quested by Respondent and find that the Union did not con-
sult with or obtain authorization from any of the employees
to make a request on their behalf to return to work for Re-
spondent, its position would not be upheld. As the above
cases clearly establish, the Union was authorized by virtue
of its representative status and its supervision of the strike
to make the offer to return on behalf of the employees. If
there was any doubt about whether as Respondent claims the
letter comported with the desires of the employees, such
doubts could easily have been tested by the Respondent by
having offered the employees reinstatement at that time. Re-
spondent cannot refrain from doing so, and speculate what
would have occurred had such an offer been made. Alaska
Pulp, supra at 243.
Accordingly, I find that the Union’s letter of July 1991
was a valid and sufficient offer of reinstatement on behalf of
the employees covered by the letter.6
5. Whether Respondent established substantial business
justification for refusing to reinstate the employees
Unfair labor practice strikers are entitled to immediate re-
instatement at the conclusion of the strike, even if the em-
ployer must discharge permanent replacements in order to do
so, unless it establishes legitimate and substantial business
justification for refusing to do so. NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333 (1938); Hotel Roanoke, 293
NLRB 182, 185 (1989).
The burden of proving legitimate and substantial business
justification falls on the employer. Oregon Steel Mills, 300
NLRB 817, 820 (1990); Fleetwood Trailer, supra; Wright
Tool, supra at 814. Moreover, the right to reinstatement does
not expire when an unconditional offer is made, although a
job may have been eliminated or been unavailable for a le-
gitimate bona fide reason. The right to reinstatement contin-
ues when the job becomes available. Consolidated Dress,
supra at 636, Fleetwood, supra at 1369–1370.
The touchstone for determining reinstatement rights is
ascertaining whether the job is the same as, or substantially,
equivalent to, the prestrike jobs. While the issue of whether
a striker is qualified to perform the job may shed light on
whether the job is substantially equivalent to the prestrike
job, mere qualification to perform the job will not suffice to
establish substantial equivalency. Rose Printing, supra, 304
NLRB 1076 at 1077 (1991).
In applying these principles to the instant case, since I
have concluded above that Popp, Cimino, Frank, Jarrett,
Clark, DeLeyer, and Rivera were and continued to be unfair
labor practice strikers at the time of the Union’s request for
reinstatement made on their behalf, the issue becomes wheth-
er Respondent has met its burden of establishing legitimate
and substantial business justification for its refusal to do so.
I conclude that Respondent has fallen far short of meeting
its burden in this regard.
While Respondent argues in its brief that the employees
were not reinstated because there were no jobs available for
them, it failed to substantiate this position by record evi-
dence. Indeed, Respondent introduced no evidence or testi-
mony as to who, when, and most importantly why it was de-
cided not to reinstate the employees. In fact, Marchese, who
was Respondent’s chief witness, and who presumably made
the decision with respect to staffing, admitted that during the
period of time, after the request for reinstatement, the cat-
egory of ‘‘shopmen’’ on Respondent’s payroll was a ‘‘non-
union group.’’ This admission suggests that, in fact, Re-
1033MARCHESE METAL INDUSTRIES
7 I note, however, that at the time Respondent was taking the posi-
tion that there was no contract in existence between the parties.
spondent had no intention of reinstating any of the strikers,
because it intended to operate ‘‘non-union.’’ Thus, the asser-
tion that it refused to reinstate to the strike because of the
unavailability of work is specious.
This conclusion is fortified by the fact that Respondent ad-
mittedly employed at least one mechanic, Algy Patterson, at
the time of the request for reinstatement, and yet it failed to
replace Patterson with a returning striker, which it was obli-
gated to do.
Even apart from this admission by Marchese, Respondent
still has not come close to establishing the requisite, legiti-
mate, and ‘‘substantial business justification’’ for failing to
reinstate the returning strikers. As noted, Marchese claimed
that from the date of the request to the date of trial, it em-
ployed five full-time employees, four alleged ‘‘finishers,’’
Smith, Kovocik, Heins, and Sabina, and ‘‘on occasion for a
couple of days, one day, two days, whatever, there’s a short
period of time, hired people to finish up work in the shop
or get it out or hire them to erect something that needed to
be done right away.’’ However, this testimony of Marchese,
unsubstantiated by any records or other supporting evidence,
is significantly contradicted by even a cursory examination
of Respondent’s payroll records.
Thus, Respondent’s records, which as noted lists all the
employees involved herein as ‘‘shopmen,’’ demonstrates that
contrary to Marchese’s testimony neither Heins nor Sabina
were employed by Respondent on July 22, 1991, when the
Union made the request for reinstatement, and that they did
not become employees until several months later. Moreover,
rather than employing an additional ‘‘occasional one or two
day employee’’ as testified to by Marchese, its records re-
veals that Respondent employed in addition to its alleged
‘‘regular’’ crew of five, a total of nine different employees
over a period of a little over 10 months, who worked a total
of .2484 hours or over 60 full workweek as a ‘‘shopmen.’’
On the payroll period which covers the request for rein-
statement, Respondent employed six employees, five
‘‘shopmen’’ plus Foreman Kovacik, which is the identical
number of employees that it employed immediately prior to
the strike, and which is consistent with Respondent’s work
force from as far back as 1984, when the initial unfair labor
practice case found the unit to consist of from five to seven
employees. Thus, since its work force immediately prior to
the strike consisted of two finishers (Popp and Smith) and
four mechanics (Frank, Clark, Cimino, and Waltrop), it is
Respondent’s burden to establish that on the date of the re-
quest, its work force had changed so that it had ‘‘legitimate
and substantial business justification’’ for not reinstating the
strikers.
In an attempt to resurrect Marchese’s contrived and obvi-
ously less than candid testimony, Respondent attempted to
show that the additional employees hired were either not per-
forming ‘‘mechanics’’ work and/or were employed on only
a temporary basis. I find that Respondent has been unable to
substantiate these contentions. Thus, the three additional em-
ployees on Respondent’s payroll on July 21, 1991, Brabant,
Price, and Rogers, as well as the other employees hired sub-
sequently, were according to Marchese and Kovacik ‘‘help-
ers’’ who for the most part did not perform ‘‘mechanics’’
(i.e., fabrication) work and/or were considered ‘‘temporary’’
employees.
Brabant, Price, and Rogers, according to Marchese, per-
formed no ‘‘mechanics’’ work, and although they applied for
jobs as welders, they were incapable of welding, and spent
their time at Respondent performing ‘‘laborers’’ work such
as painting, tacking, loading, moving iron, and driving a
truck, and/or nonunit outside erectors work. Similar testi-
mony was adduced with respect to all but one of the addi-
tional hires, Leigh-Manuell, who Respondent conceded per-
formed ‘‘mechanics’’ work. Respondent argues that it is ir-
relevant that these additional employees performed ‘‘labor-
ers’’ or ‘‘outside’’ work, since that is not ‘‘mechanics,’’
work which would have been available for the returning
strikers. However, I have found above that prior to the strike
a substantial amount of the work performed by Respondent’s
mechanics prior to the strike, consisted of what Respondent
now contends is ‘‘laborers’’ and/or nonunit outside work.
Thus, since Respondent regularly assigned such work to its
mechanics before the strike, it has in effect unilaterally ex-
panded the job classification of mechanics to include both la-
borers and outside erection work. Whether or not this action
violates the contract, or whether as Respondent argues that
the employees could have rejected the work assignment and
filed a grievance7 is surely beside the point. The fact is this
work was regularly performed by the mechanics prior to the
strike, and became part of that job description by virtue of
Respondent having assigned such work to them. Arlington
Hotel Co., 273 NLRB 210 (1984). I therefore conclude that
as of July 22, 1991, employees Brabant, Price, and Rogers
were performing ‘‘mechanics’’ work under Respondent’s
system of how that job was defined. I similarly find that the
various other alleged ‘‘helpers’’ hired subsequently by Re-
spondent also were regularly performing such ‘‘mechanics’’
work during their employment. It is also noteworthy that Re-
spondent’s own witness, Kovacik, and Smith concede that
two of these alleged ‘‘helpers’’ Ruland and Chinea per-
formed regular ‘‘mechanics’’ work. Chinea was employed
from September 1991 to November 31, 1991, for a total of
385.25 hours. Ruland was employed by Respondent from
October 1991 to November 13, 1991, and once again from
May 13 to 20, 1992, when he, along with another alleged
‘‘helper,’’ Van Laar, who had just been hired, plus Patterson
were laid off for a ‘‘week or two.’’ This layoff interestingly
coincided with the start of the instant trial, during which
Marchese testified that Respondent didn’t employ any me-
chanics at the time of the trial. However, Marchese admitted
that Respondent recalled Patterson, Ruland, and Van Laar a
week or two after their layoffs. Particularly, in the absence
of any evidence as to the economic reasons for this unprece-
dented layoff, i.e., Patterson had never been laid off and Van
Laar had just been hired, I conclude that this action of Re-
spondent was nothing more than a clumsy attempt to dem-
onstrate its lack of available work for mechanics, by enabling
Marchese to testify that it didn’t employ any mechanics at
the time of the trial.
As noted, Respondent does conclude that employee Leigh-
Manuell was performing ‘‘mechanics’’ work, but contends
that he was just a temporary employee, hired only for the du-
ration of a particular job. Respondent also argues that some
of the other additional hires were temporary as well. How-
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 As noted, at least one mechanic’s position and the foreman fin-
isher were always available for a striker.
ever, under Board precedent, supported by the courts, an em-
ployee is not considered to be a ‘‘temporary’’ employee un-
less a definite termination was established at the time of his
hire. U.S. Aluminum Corp., 305 NLRB 719 (1991); NLRB v.
New England Lithographic Co., 589 F.2d 29, 32–35 (1st Cir.
1978); M. J. Pirolli & Sons, 194 NLRB 241, 250 (1972). Cf.
General American Transportation Co., 187 NLRB 120, 121
(1970). Here, Respondent introduced no evidence that Leigh-
Manuell or any of the other employees hired, were told that
their job would be temporary, that it would end on the com-
pletion of a particular job or given a specific termination
date. Therefore, Respondent has not established that any of
the employees were ‘‘temporary’’ employees under Board
standards.
Accordingly, turning back to the week of the reinstatement
request, the record discloses that Respondent employed
Kovacik as foreman and Patterson as a mechanic, two posi-
tions for which there can be no dispute were available for
returning striker Popp and for at least one mechanic. While
Respondent also employed Richard Smith as a finisher, he
was also a returning striker who had previously crossed the
picket line. His position is of course not available for any
of the returning strikers to fill. TWA v. Flight Attendants, 489
U.S. 426 (1989). However, Respondent also employed Bra-
bant, Price, and Rogers at that time, and I have found that
they were performing ‘‘mechanics’’ work as defined by Re-
spondent’s past practice. Thus, these three jobs were substan-
tially equivalent to their prior position of mechanic and also
were ‘‘available’’ for returning strikers. So on the date of the
request for reinstatement, I find that Respondent had four
mechanics or substantially equivalent positions, and one fin-
isher foreman position available for returning strikers. I con-
clude that therefore on that date, Respondent was obligated
to reinstate Popp, and at least four of the mechanics who ap-
plied, terminating replacement employees if necessary. Be-
cause Frank, Clark, and Cimino had been employed imme-
diately prior to the strike, they would be entitled to the first
three openings, with the final position available for one of
the three who had been on layoff status (Rivera, Deleyer, or
Jarrett).
However, as noted, Respondent continued to employ addi-
tional employees subsequent to July 1991, and as I have
found all of the ‘‘helpers’’ were performing ‘‘mechanics’’
work under Respondent’s system, all of the work performed
by these ‘‘helpers’’ was available for the strikers. Because at
various times Respondent employed as many as 10 employ-
ees (classified as ‘‘shopmen’’ by Respondent’s payroll), I
find that all the returning strikers should have been recalled
on these occasions when the Respondent employed a suffi-
cient number of alleged ‘‘helpers’’ to warrant their reinstate-
ment.
The question of the status of employees Heins and Sabina
is more difficult, particularly because for a substantial period
of time, Respondent employed only five employees, includ-
ing these two individuals, who Respondent claims were ‘‘fin-
ishers.’’ Here, Respondent could establish a substantial busi-
ness justification for refusing to reinstate some of the me-
chanics during this period of time,8 by proving that business
conditions had changed so that it needed only one mechanic
and four finishers. However, this is a burden that falls on Re-
spondent, which in my view it has failed to meet. Other than
the testimony of Marchese, Kovacik, and Smith that Sabina
and Heins were ‘‘finishers,’’ Respondent adduced no other
evidence or business explanation for its alleged substantial
change in the ratio of mechanics vis-a-vis finishers. Respond-
ent produced no testimony as to what business or economic
factors motivated it to suddenly decide that it needed four
finishers rather than two, and only one mechanic rather than
four. Although Respondent did present some unsubstantiated
testimony from its witnesses that business was poor, this tes-
timony was not corroborated by any records or documentary
evidence, Drug Research, 233 NLRB 253, 261 (1977), and
more importantly no testimony was furnished as to how this
alleged reduction in business translated to a necessity to
change the types of employees needed. Moreover, Respond-
ent adduce no evidence as to how much of the work per-
formed by Sabina and Heins constituted ‘‘mechanics’’ work
as defined by Respondent’s past practices. Since Respondent
adduced no evidence as to what happened to the ‘‘mechan-
ics’’ work that had previously been performed by as many
as eight employees, one can only assume that Sabina and
Heins performed a substantial portion of such work. Al-
though it is true than even before the strike, finishers per-
formed some mechanics’ work when they were not busy, it
is not clear whether Sabina or Heins performed more me-
chanics’ work than did the finishers employed prior to the
strike. Because it is Respondent’s burden to establish a sub-
stantial business justification, its failure to so prove leads to
the inference that at least one other mechanic’s position may
have been available in addition to Patterson’s position, dur-
ing this period of time, when it employed five employees on
a continuous basis. I would also note in this connection the
fact that the salaries of Sabina and Heins were $14.50 and
$14 per hour respectively, which is even less than the salary
received by Respondent’s mechanics employed prior to the
strike.
Accordingly, for the above reasons, I conclude that Re-
spondent has not met its burden of establishing a legitimate
and substantial business justification for failing to reinstate
the returning strikers. This is not to say that all the returning
strikers are entitled to reinstatement or to backpay for the en-
tire period. I shall leave to the compliance stage of the mat-
ter the determination of these issues. Daniel Finley Allen &
Co., 303 NLRB 846, 868–869 (1991). Those employees for
whom reinstatement is not ordered shall be placed on a pref-
erential hiring list. Crown Beer Distributors, 296 NLRB 541,
542 (1989).
CONCLUSIONS OF LAW
1. Respondent M.M.I.C., Inc., d/b/a Marchese Metal In-
dustries, Inc. is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Shopmen’s Local Union No. 455, International Associa-
tion of Bridge, Structural, and Ornamental Iron Workers,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of the
Act by refusing to reinstate returning strikers subsequent to
their unconditional application for reinstatement.
4. Respondent has violated Section 8(a)(1) and (5) of the
Act by refusing on and after May 20, 1991, to meet and bar-
1035MARCHESE METAL INDUSTRIES
9 As noted above, I shall leave to the compliance stage of this pro-
ceeding to determine which of the strikers should be reinstated, and
how much backpay if any they should each receive.
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.’’
11 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.’’
gain with the Union as the exclusive representative of its em-
ployees in an appropriate unit.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act, I shall
recommend that it cease and desist therefrom and take cer-
tain affirmative action necessary to effectuate the policies of
the Act. Having found that Respondent has violated Section
8(a)(1) and (3) of the Act by refusing to reinstate the unfair
labor practice strikers who requested reinstatement, I shall
recommend that Respondent be ordered to reinstate these
employees for whom it has available positions (consistent
with my findings above with respect to what I found to be
substantially equivalent positions in Respondent’s operation).
Those former strikers for whom no positions are available
shall be placed on a preferential hiring list in accordance
with their seniority or other nondiscriminatory criteria and
they shall be reinstated before any other person is hired for
such position or on the departure of any employees filling
such a position.
Additionally, I shall recommend that the employees dis-
criminated against be made whole for the discrimination
against them subsequent to July 22, 1991. Backpay shall be
computed in accordance with the formula set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).9
Further, in view of the past violations of Respondent, dem-
onstrating a proclivity to engage in illegal conduct, I shall
recommend that a broad order be issued. Daniel Finley Allen
& Co., supra at 869–870. Hickmott Foods, 242 NLRB 1357
(1974).
On the foregoing findings of fact and conclusions of law
and on the entire record, I issue the following rec-
ommended10
ORDER
The Respondent, M.M.I.C., Inc., d/b/a Marchese Metal In-
dustries, Inc., Holbrook, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate returning unfair labor practice
strikers subsequent to their unconditional application for rein-
statement to their same or substantially equivalent positions.
(b) Refusing to meet and bargain collectively with the
Union, Shopmen’s Local Union No. 455, International Asso-
ciation of Bridge, Structural, and Ornamental Iron Workers,
AFL–CIO as the representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees, including
plant clericals, employees of Respondent engaged in the
fabrication and/or manufacture of all ferrous and non-
ferrous metals, iron, steel, and other metal products, in-
cluding plastic products, and all maintenance employees
of Respondent engaged in maintaining machinery and
equipment and other maintenance work in or about Re-
spondent’s shop or shops, and work performed by such
production and maintenance employees, but not includ-
ing office clerical employees, superintendents, or em-
ployees represented by any other union affiliated with
the AFL–CIO with whom Respondent has signed a col-
lective-bargaining agreement, or to erection, installation,
or construction work, or to employees engaged in such
work.
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the following employees reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges, to the extent that these positions
are available.
Leroy Popp Miguel Rivera
Jacob Frank Howard Jarrett
Timothy Clark William Deleyer
Jerry Cimino
(b) Make these employees whole, with interest for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them as set forth in the remedy section
of this decision.
(c) On request, bargain with the above-named labor orga-
nization as the exclusive representative of its employees in
the aforesaid appropriate unit with respect to rates of pay,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody such understanding in
a signed agreement.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
amounts owed to the employees under the terms of this
Order.
(e) Post at its facility in Holbrook, New York, copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to reinstate returning unfair labor
practice strikers subsequent to their unconditional applica-
tions for reinstatement to their same or substantially equiva-
lent positions.
WE WILL NOT refuse to meet and bargain collectively with
the Union, Shopmen’s Local Union No. 455, International
Association of Bridge, Structural, and Ornamental Iron
Workers, AFL–CIO as the representative of our employees
in the following appropriate unit:
All production and maintenance employees, including
plant clericals, employees of Respondent engaged in the
fabrication and/or manufacture of all ferrous and non-
ferrous metals, iron, steel, and other metal products, in-
cluding plastic products, and all maintenance employees
employed by us engaged in maintaining machinery and
equipment and other maintenance work in or about
shop or shops, and work performed by such production
and maintenance employees, but not including office
clerical employees, superintendents, or employees rep-
resented by any other union affiliated with the AFL–
CIO with whom we have signed a collective-bargaining
agreement, or to erection, installation, or construction
work, or to employees engaged in such work.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their rights guar-
anteed them by Section 7 of the Act.
WE WILL offer the following employees reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
and other rights and privileges, to the extent that these posi-
tions are available.
Leroy Popp Miguel Rivera
Jacob Frank Howard Jarrett
Timothy Clark William Deleyer
Jerry Cimino
WE WILL make these employees whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, plus interest.
WE WILL, on request, bargain with the above-named labor
organization as the exlcusive representative of our employees
in the aforesaid appropriate unit with respect to rates of pay,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody such understanding in
a signed agreement.
M.M.I.C., INC., D/B/A MARCHESE METAL IN-
DUSTRIES, INC.