Snowshoe Co.

National Labor Relations Board - Board DecisionsMay 21, 1975

217 N.L.R.B. 1056 (N.L.R.B. 1975)

1056 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Snowshoe Company and Laborers' International Union of North America, Local Union No. 1182, AFL-CIO. Case 6-CA-7160 May 21, 1975 DECISION AND ORDER - By MEMBERS FANNING, KENNEDY, AND PENELLO On December 31, 1974, Administrative Law Judge Almira Abbot Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent Snowshoe Company filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, tide Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge only to the ex- tent consistent herewith, and to adopt her recom- mended Order as modified herein. The Administrative Law Judge found that Respon- dent's refusal on November 5, 1973,1 immediately to reinstate seven economic strikers upon their uncondi- tional offer to return to work violated Section 8(a)(3) and (1) of the Act. We find merit in Respondent's exception to this finding. The strike commenced on Friday, November 2.' During the following weekend, Harold Guy Riley' re- quested International Representative Jack Gillespie to come to the worksite Monday morning to confer with Respondent's representatives.' On Monday morning, some of Respondent's striking employees reported to the Company's premises. While most proceeded through the site entrance and went to work, the seven strikers in question remained at the entrance awaiting the outcome of the conference between union and com- pany representatives.' When Gillespie asked Dr. Brigham if he would put the strikers back to work immediately, Brigham agreed to put them all back to work the next day except for Riley, and said that Riley was fired.' Respondent's witnesses testified-that the 1 All dates hereinafter refer to 1973 2 On this date, all employees gathered at the Company's entrance and decided they would not work until the Company recognized the Union as their representative The employees then proceeded as a group to the site office. When the Company refused to recognize the Union, all except one employee left the premises. 3 Before the employees went to Respondent's office on Friday, Riley, who is one of the seven strikers in question , was appointed the employees' spokesman. 4 When the employees walked off the premises on Friday, November 2, Riley indicated that he would see Respondent's president, Dr. Thomas H Brigham, again on Monday, November 5, with the union representative - 5 Jack Gillespie and Harold Guy Riley met with Dr. Brigham and Respon- dent's manager, Daniel J. Seme, Jr confusion which was created by the strikers' sudden offer to return to work, on a morning when newly hired employees had already begun to work,' necessitated a day's delay in planning the disposition of its work force. It is well settled that, absent a legitimate and sub- stantial business justification for not reinstating them, economic strikers are entitled, upon application, to im- mediate reinstatement to their former or substantially equivalent positions of employment unless such posi- tions have been permanently filled or eliminated or are unavailable! Here, the seven strikers in question had made an unconditional offer to return to work at the Monday morning conference.9 Contrary to the Ad- ministrative Law Judge, however, we find that Re- spondent did not fail to offer timely reinstatement to the strikers other than Riley. Rather, we find that Re- spondent has shown a legitimate and substantial busi- ness justification for the day's delay in affording these strikers reinstatement. Nor do we agree with the Administrative Law Judge's finding that Respondent was not justified in requiring the strikers to contact the office individually. An employer may not impose a requirement that eco- nomic strikers file individual applications as a condition to their reinstatement.10 In the instant case, however, there is no evidence that either Gillespie or the strikers believed that the filing of individual applications was a prerequisite to reinstatement. Rather, the strikers were only informed to "contact" the office and that they would be put to work. Thus, Respondent had already agreed to put the strikers back to work when it re- quested that they contact the office. Imposition of this reasonable administrative requirement does not, in our view, constitute a requirement that strikers file in- dividual applications prior to reinstatement. Respondent, however, failed to offer immediate rein- statement to Harold Guy Riley. Thus, the evidence establishes that, unlike the other strikers, Riley was told by Respondent that he would not be reinstated but that instead he was discharged. Accordingly, we affirm 6 The complaint does not allege that this remark was separately and specifically unlawful 7 Between the commencement of the stake on November 2 and the conference on November 5, Respondent hired eight new employees. One was hired on November 3 and seven were hired on November 5. Respond- ent does not contend, however, that work was unavailable for the seven strikers in question 8 N.L R.B. v Fleetwood Trailer Company, Inc, 389 U S 375 (1967), N . L R.B. v M a c k a y Radio & T e l e g r a p h C o . , 304 U S 333 (1938); Daniel A. Donovan, et al., d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688 (1973); Newspaper Production Company, 205 NLRB 738 (1973), The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (C.A 7, 1969). 9 As found by the Administrative Law Judge, such offer was made by Jack Gillespie on behalf of the stokers. We affirm the Administrative Law Judge's finding that at the Monday meeting Gillespie was the spokesman for the seven strikers and was recognized as such by Brigham 10 See, e g ., American Machinery Corporation, 174 NLRB 130, 133-134 (1969), Wickland Oil Company, and Freeway Oil Company d/b/a King Dollar, 161 NLRB 471, 483 (1966) 217 NLRB No. 177 SNOWSHOE COMPANY the Administrative Law Judge's findings only with re- spect to Harold Riley. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Snowshoe Company, Elkins, West Virginia , its officers , agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Harold Guy Riley immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges , and make him whole for lost earnings suf- fered as a result of the discrimination against him." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions of the Act not found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse immediate reinstatement to strikers entitled to such reinstatement after mak- ing unconditional application therefor, or other- wise discriminate against any of our employees in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Harold Guy Riley immediate and full reinstatement to the job he held November 5, 1973, or, if that job no longer exists, to a substan- tially equivalent job, without prejudice to his seni- ority or other rights and privileges. WE WILL make Harold Guy Riley whole for any earnings he lost on and after November 5, 1973, because of the discrimination against him, plus interest at 6 percent per annum. SNOWSHOE COMPANY ,DECISION STATEMENT OF THE CASE 1057 ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at Elkins, West Virginia, November 7 and 8, 1974. The charge was filed and served on the Respond- ent on December 13, 1973. The complaint was issued Septem- ber 27, 1974, and amended at the hearing. The issues are (1) jurisdiction; and (2) whether or not the seven strikers named in the complaint made an unconditional offer to return to work and if so, whether or not the Respond- ent refused to reinstate them in violation of Section 8(a)(3) and (1) of the National Labor Relations act, as amended. For the reasons given below, I find for the General Counsel on all counts. Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the Respondent and the General Counsel, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Respondent contends it is not an employer engaged in commerce within the meaning of the Act, and that the Na- tional Labor Relations Board does not have jurisdiction in this proceeding. Since September 1973, the Respondent has been engaged in constructing a ski resort near Elkins, West Virginia. The parties stipulated that the Respondent is the same company as that involved in Snowshoe Company, 212 NLRB 535.' Based on the jurisdictional facts found by the Board in that case, with which the Respondent has no quarrel , I conclude, as did the Board therein, that the Respondent meets the jurisdictional standards for nonretail establishments by di- rectly and indirectly purchasing goods and services valued above $50,000 from outside the State of West Virginia, that it is therefore engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction. II LABOR ORGANIZATION The Respondent admits, and I conclude, that the Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background The parties are in substantial agreement as to the back- ground events. In October and early-November, 1973, the Respondent employed approximately 20 men in clearing land for building sites, ski slopes, and cross-country ski trails. The In its Decision and Direction of Election in 212 NLRB 535 dated July 23, 1974, the Board directed an election in a unit of construction laborers to determine whether or not they wished to be represented by Laborers' International Union of North America, Local Union No. 1182, AFL-CIO, the Charging Party Union herein. The Union lost that election. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seven employees named in the complaint live in or near Cass, Pocahontas County, and are sometimes referred to as the Cass group. The other employees live in or near Valley Head, Randolph County, and are referred to as Valley men. The Respondent's construction operations are directed by its president and chief executive officer, Dr. Thomas H. Brigham , and its mountain manager , Daniel J. Seme, Jr. In mid-October 1973, employee Harold Guy Riley began talking unionization to the other employees. He telephoned Jack Gillespie, International Representative of the Union, at his White Sulphur Springs office regarding organizing the employees for the purpose of improving their working condi- tions, particularly safety measures, and wages. Gillespie mailed union authorization cards to Riley who, after obtain- ing employee signatures , mailed the signed cards back to Gillespie. On Friday, November 2, 1973, all the employees gathered at the property entrance and decided they would not work until the Company recognized the Union as their representa- tive. They appointed Riley spokesman and proceeded as a group to the site office. Brigham and Seme came out, and Riley informed them that the men were dissatisfied with safety conditions and wages and would not work unless the Respondent recognized the Union. Brigham declined the recognition demand, and after some discussion , Seme told the men that those'who did not want to work should turn in their hard hats. All except one, George W. Swecker, laid down their hard hats and left the premises, Riley indicating he would see Brigham again on Monday with the Union repre- sentative. During that weekend, Riley requested International Rep- resentative Gillespie to come to the site Monday morning.' B. Monday, November 5 The events of this date, when the unfair labor practices are alleged to have occurred, are in dispute. The factual findings set forth below as to what actually happened have been made after careful consideration of the conflicting accounts given by Gillespie and Riley on the one hand, and Brigham and Seme on the other, and are based essentially on demeanor, consistencies, and the probabilities Brigham and Seme were less credible than the two witnesses for the General Counsel. Brigham 's explanation of an inconsistent statement in his pretrial affidavit was unsatisfactory, and the record as a whole conveys the impression that he and Seme were moti- vated more by self-interest than by a determination to stick to the facts. Both Brigham and Seme struck me as witnesses recounting the events of November 5 as they belatedly wished they had happened rather than as they did happen. By con- 2 No reliance is placed on Riley 's hearsay testimony regarding alleged coercive statements said to have been made during the weekend by manage- ment representatives to employees who were not called to testify directly to such statement Moreover, I do not credit the testimony of Harry Gum, Jr , where it is unsupported and contradicted For example, Gum testified that he telephoned Seme Friday afternoon and requested that Gum and the three Wolfe brothers, of Cass, be permitted to return to work, and that Seme said they could not. Seme denied receiving such a call, and the Wolfe brothers did not testify although they were in the hearing room, and I do not consider Gum's memory or veracity sufficiently reliable to support a factual-finding. trast, Riley's failure to list Snowshoe as a prior employer on a form requested by his subsequent employer was fully ex- plained In my opinion, Riley tried to tell the truth as he remembered it and his testimony was generally consistent with that of Gillespie who was the most impressive of the four witnesses. Gillespie's testimony appeared to be that of an experienced professional giving a detached, unexaggerated account of events he recalled clearly. On Monday morning, Gillespie arrived in Cass, where he met several of the strikers, all of whom proceeded to the site in their own vehicles except for one who rode with Gillespie to show him the way. The men from Cass brought their dinner buckets and were prepared to go to work that morn- ing. They waited together at the site entrance while all the other strikers proceeded through and went to work. Some of the latter asked Riley whether to wait until after the confer- ence with Brigham, but Riley told them to go onto work and not to wait.' Gillespie told the Cass men assembled at the entrance that he was going to ask the Company to take them back under the Company's, and not the Union's, conditions, as "we would have a much better opportunity of organizing by them working rather-than not working." Gillespie ex- plained that he was afraid these men would be replaced and not be eligible to vote if there had to be a Board election. Brigham and Seme arrived shortly, and the two of them got into a nearby automobile with Gillespie and Riley. In the car, Gillespie informed Brigham that he had cards signed by the men. Brigham replied he had done this kind of work in North Carolina and did not have a union down there. Gillespie told him that this was not North Carolina and that these men had a right to organize. Brigham said he did not know about that but would have his attorney contact Gillespie After some discussion of safety conditions, Gillespie asked if Brigham could put the seven Cass men back to work immediately, and Brigham replied, "No," but to have them contact the office that afternoon and he would put them all back to work the next day, except for Riley and that Riley was fired.4 Gilles- pie thereafter got out of the car and went over to where the men were standing and told them to contact the office that day and they would be put back to work. He asked, them to go back to work under the Company's conditions and not under the Union's conditions, and told them that that was the best thing to do. They agreed to do so. Brigham's attorney did not contact Gillespie that day. The Cass strikers did not contact the Respondent's office and no further offer was made to them.' C. Conclusions It is not disputed that the seven men in the Cass group were economic strikers, that there was work available for them to 3 I do not consider the testimony of Mike Ritter that he went to work without speaking to Riley as a contradiction of Riley's testimony to the above effect 4 The complaint does not allege that this remark, nor Brigham's and Seme's admitted statements on Friday, November 2, to all the strikers that management considered they had quit, were separately and specifically unlawful 5 No reliance is placed on the testimony of Jack Channell whose credibil- ity was undermined by his erroneous insistence that he had not discussed the case with a Board agent before the hearing SNOWSHOE COMPANY 1059 dc, and that they had not been replaced on Monday morning, November 5. Based on the above credibility resolutions, I find that at his conference with Brigham and Seme on Monday morning Gillespie made an unconditional offer for the seven, strikers -to return to work. Contrary to the Respondent's contention, I find that it was only during the Friday meeting which Gillespie did not attend, and not at the Monday meeting which he did attend, that Riley said the men would not return until the Respondent recognized the Union. This finding is supported by the facts that Gillespie, who clearly was the spokesman for these strikers and concededly was recognized as such by Brigham,6 was determined that they should call off the strike, and that the men came to the site Monday with their dinner buckets prepared to go to work as all the other strikers did. As economic strikers, the Cass employees were entitled to immediate reinstatement upon the unconditional request of their representative particularly where as here they had not been replaced and work was immediately available.' In these circumstances , there is no merit in the Respondent's contention that there was confusion on Monday morning which entitled it to d day's delay in planning the disposition of its work force which had been expanded by the hiring of additional employees during the weekend! Moreover, the Respondent was not justified in requiring the strikers to con- tact the office individually and they were not obligated to comply therewith,' even though they agreed at the time with their union representative's advice they do so.io I conclude that the Respondent's refusal on November 5, 1973, immediately to reinstate the seven economic strikers upon their unconditional offer to return to work constituted discrimination against them which discouraged membership in the Union, in violation of Section 8(a)(3), and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7, in violation of Section 8(a)(1) of the Act. V REMEDY In order to effectuate the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found and from infringing in any like 6 NL.R.B v I. Posner, Inc., 304 F 2d (C.A 2, 1962), American Machinery Corporation, 174 NLRB 130, 133 (1969), enfd 424 172d 1321 (C.A 5, 1970) 7 Daniel A Donovan, et al d/b/a New FairviewHall Convalescent Home, 206 NLRB 688 (1973); Newspaper Production Company, 205 NLRB 812 (1973) 8 Community Motor Bus Co, Inc., 180 NLRB 677 (1970); American Machinery Corporation, supra, at 134. The Rogers Manufacturing Com- pany, 197 NLRB 1264 (1972), relied on by the Respondent, is inapposite in this respect 9 Wickland Oil Company et at, 161 NLRB 471, 483 (1966). 10 Mooney Aircraft, Inc., 132 NLRB 1194 (1961). or related manner on the rights guaranteed its employees by the Act. Having found that the Respondent unlawfully refused to immediately reinstate seven economic strikers, I also recom- mend that it be ordered to offer these employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without preju- dice to their seniority or other rights and privileges, and to make them whole for any earnings lost on and after Novem- ber 5, 1973, because of the discrimination against them, plus interest at 6 percent per annum. F W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Snowshoe Company, of Elkins, West Vir- ginia, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing immediately to reinstate striking employees entitled to such reinstatement after making unconditional application therefor, or otherwise discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employment. (b) In any like or related manner interfering with, restrain- ing, or coercing its employee in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer the below listed employees immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of this decision entitled "Remedy:" Harry C. Gum Clayton H. Wolfe Max Lee Kramer Henry N. Wolfe Charles K. McNellan Raymond R. Wolfe Harold Guy Riley (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all records necessary to analyze the amount of backpay due under this Order. ii In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its premises near Elkins , West Virginia , copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 6, after being duly signed by an authorized representa- 11 In the event that the Board ' s Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." tive of the Respondent , shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director , in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.