Towne Ford, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1998

327 N.L.R.B. 193 (N.L.R.B. 1998)

TOWNE FORD, INC. 193
Towne Ford, Inc. and International Association of
Machinists and Aerospace Workers Peninsula
Lodge No. 1414. Cases 20–CA–26250 and 20–
CA–26447
November 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 16, 1996, Administrative Law Judge Jay
R. Pollack issued a decision in this case. On February
22, 1996, the judge issued an errata to his decision and
the attached revised decision. The Respondent filed lim-
ited exceptions and a supporting brief and the General
Counsel and the Union (the Charging Party) filed excep-
tions and supporting briefs. Thereafter, the Respondent
filed an opposition to the General Counsel’s and the Un-
ion’s exceptions and the Union filed a brief in reply to
the General Counsel’s exceptions.
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 decided to
affirm the judge’s rulings,1 findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.3

1 The Respondent has excepted, inter alia, to the judge’s failure to
grant its motion to revoke subpoena ad testificandum, its motion for
suppression of evidence, and its motion for sanctions against the Gen-
eral Counsel and the Regional Director. We deny these exceptions as
lacking in merit.
On the last day of hearing, August 28, 1995, counsel for the General
Counsel moved to amend the complaint to allege that the mid-August
1994 statement of Ben Kopf, the Respondent’s president, to service
advisor Ray Haverson, that Kopf didn’t like unions and he would not
be union, regardless of how much it cost and how long it took, violated
Sec. 8(a)(1). That allegation was supported by the testimony of Haver-
son, and the General Counsel contends that the judge erred by refusing
to permit Haverson’s recall to permit the Respondent to cross-examine
him regarding his testimony on this issue, which Haverson gave on the
third day of hearing, June 22, 1995, and by failing to find an 8(a)(1)
violation based on Haverson’s testimony. We find the General Counsel
is foreclosed from making these arguments here because counsel for the
Union, in apparent agreement with counsel for the General Counsel and
the Respondent, ultimately agreed on the last day of hearing that coun-
sel for the General Counsel and the Union were “not going to pursue
the 8(a)(1) on Haverson as an independent 8(a)(1) at this point” and
that the General Counsel and the Union reserved the right to reopen the
issue if the Board were to remand the case to the judge in the future.
2 Apprentice painter Jack Flanagan spoke to Dave Haley, the Re-
spondent’s body shop manager, on August 23, 1994, not August 16 as
the judge found. This inadvertent error does not affect the results of
our decision.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
Contrary to their dissenting colleague, Member Fox and Member
Liebman agree with the judge that the Respondent violated Sec. 8(a)(1)
of the Act by attempting to blacklist service advisor Ray Haverson
through the statement of Tim Toland, the Respondent’s service man-
ager, to a potential employer, Angelo Tufo, that Haverson was a strong
union supporter who “would do whatever the Union said.” Although
Toland gave Haverson a good recommendation as a worker, we find
that Toland’s unsolicited statement regarding Haverson’s union loyal-
ties constituted a warning that Haverson was someone with unquestion-
ing loyalties to the Union, and was therefore likely to interfere with
Haverson’s application for employment. The fact that Tufo had already
offered Haverson a position is immaterial because Tufo could simply
withdraw that offer after learning that Haverson was a strong union
supporter.
1. On August 28, 1995, the judge issued an Order
Granting Partial Dismissal, attached as Appendix A to
this decision, in which he granted in part the Respon-
dent’s motion to dismiss certain complaint allegations in
Case 20–CA–26250. In this regard, the judge dismissed
all the allegations which alleged that the Respondent had
violated Section 8(a)(5) of the Act by refusing to bargain
in good faith with the Union. We agree with the judge
that under Nickles Bakery of Indiana, 296 NLRB 927
(1989), the 8(a)(3) and (1) allegations contained in the
amended charge in Case 20–CA-26250 are not sufficient
to support the 8(a)(5) allegations contained in the com-
plaint.4 The judge further found that since he lacked ju-
risdiction to find that the Respondent refused to bargain,
he could not find that such alleged unfair labor practices
converted the economic strike, discussed below, into an
unfair labor practice strike. We agree with the judge and
find that the strike which began on July 27, 1994,5 and
ended on August 5, was an economic strike from its in-
ception.6

3 We shall modify the judge’s recommended Order to include provi-
sions that are in accord with our decision in Indian Hills Health Care
Center, 321 NLRB 144 (1996), as modified in Excel Container, Inc.,
325 NLRB 17 (1997).
4 In adopting the judge’s dismissal of these 8(a)(5) allegations,
Member Fox and Member Liebman do not rely on his discussion of
Lotus Suites, Inc. v. NLRB, 32 F.3d 588 (D.C. Cir. 1994).
5 All dates hereafter refer to 1994 unless otherwise stated.
6 The General Counsel and the Union have excepted to the judge’s
dismissal of these 8(a)(5) allegations and his failure to find that the
strike was an unfair labor practice strike. The General Counsel and the
Union contend that the judge erred in failing to find that the require-
ments of Sec. 10(b) of the Act are satisfied here because the complaint
in Case 20–CA–26250 was filed within the 10(b) period and the 8(a)(5)
allegations contained in the complaint in Case 20–CA-26250 are
closely related to the allegations contained in the charge, as amended,
in that case. We find this exception without merit because, as ex-
plained by the judge in his Order Granting Partial Dismissal, although
the amended charge in Case 26-CA–26250 (unlike the initial charge)
mentioned Sec. 8(a)(5), it failed to include any factual allegations indi-
cating “specifically or generally that Respondent had failed to bargain
in good faith”; and because the General Counsel solicited a withdrawal
of the one charge (in Case 20–CA–26222) that did include a refusal-to-
bargain allegation. That withdrawal occurred on July 27, 1994, a little
less than a month before the amended charge in Case 26–CA–26250
was filed. Thus, the possibility of a refusal-to-bargain allegation was
known to the Charging Party and the General Counsel when the
amended charge was being filed and the failure to include it in the
amendment excludes that as a theory of the case, even when, as here, a
complaint containing the refusal-to-bargain allegation issued within the
10(b) period. Further, contrary to the Union, it is irrelevant that the
Union initially brought the issue “to the attention” of the Regional
Office, because a determination whether complaint allegations are
327 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
2. The judge found, and we agree, that the Respondent
violated Section 8(a)(3) of the Act by laying off, or
refusing to reinstate in the absence of substantial
business reasons, strikers Ray Haverson, Ron Cosgrove,
and Steve Stewart at the end of the economic strike on
August 5. The issue here is whether apprentice painters
Jack Flanagan and Patrick Heffernan were entitled to be
recalled to the newly created polisher position after the
strike. Contrary to the judge, we find that they were.
The judge’s factual findings, as supplemented by un-
controverted testimonial evidence, establish that prior to
the strike there were three classifications of employees in
the Respondent’s paint shop, helpers, apprentice painters,
and journeyman painters. The helpers performed prep
work (rough sanding, masking, priming, “jamming”
(painting the inside of door jambs), and blocking). The
painters spray painted cars and performed some polish-
ing work. Apprentice painter Flanagan testified without
contradiction that apprentice painters “[took] a job all the
way through,” i.e., they performed all three tasks, prep-
ping, painting, and polishing.7 After the strike, however,
as the judge explained, Haley, the Respondent’s new
body shop manager, reorganized the paint shop into three
separate operations, prepping, painting, and polishing.
The recalled journeyman painters and helpers performed
the painting and prep work respectively. Instead of im-
mediately recalling the apprentice painters, however, the
Respondent hired new employees to fill the newly cre-

barred by Sec. 10(b) depends on analysis of charges that were filed and
remained on file.
We deny the Respondent’s motion to strike certain portions of both
the General Counsel’s and the Union’s briefs “related to the facts giv-
ing rise to the improperly alleged Section 8(a)(5) allegations.”
After the judge dismissed these 8(a)(5) allegations, the General
Counsel moved to amend the complaint to restore the allegation that the
Respondent violated Sec. 8(a)(5) by eliminating the classification of
apprentice painter, a mandatory subject of bargaining, without notifying
or bargaining with the Union. The General Counsel contends that the
judge erred by refusing to grant its motion to reinstate this 8(a)(5) vio-
lation. In this regard, the General Counsel argues that the Respondent
waived the dismissal of this allegation because in defending against the
8(a)(3) allegation that it had discriminatorily refused to recall the ap-
prentice painters after the strike, the Respondent raised and litigated an
8(a)(5) defense by, in effect, asserting that it had legitimate business
reasons for the elimination of the apprentice painter classification.
Thus, the General Counsel apparently contends that the Respondent has
waived the application of Sec. 10(b) by its conduct in defending against
this 8(a)(3) allegation. We deny the General Counsel’s exception be-
cause we cannot agree that the Respondent, in defending against an
alleged violation of Sec. 8(a)(3) of the Act, somehow “waived” its
10(b) defense to the 8(a)(5) allegations contained in the complaint.

7 Flanagan also testified without contradiction that polishing in-
volved color sanding with fine sandpaper to get dirt or a run out of the
new paint and polishing to bring back the shine. Flanagan further
explained that there was a danger of burning through the paint, in
which case the car would have to be repainted. Body Shop Manager
Haley testified that “polishing in itself is an art. Even good polishers
can burn a paint job.”
ated position of polisher.8 As noted above, the appren-
tice painters had performed this work prior to the strike.
The judge found that the Respondent was not obligated
to reinstate Flanagan and Heffernan because there was no
work for the apprentice painters to perform at the conclu-
sion of the strike. The judge further found that while the
apprentice painters were qualified to perform the work of
polisher, the Respondent was not obligated to reinstate
them to the polisher position. In this regard, the judge,
citing Rose Printing Co., 304 NLRB 1076 (1991), found
that the newly created polisher position was not substan-
tially equivalent to the apprentice painter position be-
cause the job of polisher was less skilled and paid less
than the job of apprentice painter. The judge also ob-
served that performing the polishing work would not
help the apprentices become journeyman painters.
We acknowledge that Board law, as stated in Rose
Printing, supra at 1076, defines an employer’s reinstate-
ment obligation to former economic strikers (its so-called
Laidlaw obligation)9 as limited to the offer of reinstate-
ment to “vacancies created by the departure of replace-
ments from the strikers’ former jobs and to vacancies in
substantially equivalent jobs.” Contrary to the judge,
however, we find that, given the changes which the Re-
spondent had made in its organization of the work, the
polisher position was substantially equivalent to the ap-
prentice painter position which Flanagan and Heffernan
had held before the strike, and they were therefore enti-
tled to be reinstated to vacant polisher positions on their
offers to return following the strike.
It is undisputed that polishing work was a not insig-
nificant part of the job that apprentice painters had per-
formed before the strike, and had the three been working
as apprentice painters at the time the reorganization of
the operation into three separate functions occurred, they
would logically have been moved to the polisher posi-
tion. Only they and the journeyman painters did polish-
ing work, and under the reorganization, the journeyman
painters moved to the job that was exclusively painting.
(We take the reorganization as the logical framework for
analysis because there is no non-barred allegation that
this was undertaken unilaterally in violation of the Act.)
Thus, in finding substantial equivalence, we are not run-
ning afoul of the Rose Printing rule that there is no Laid-
law obligation to reinstate strikers to any position for
which they are qualified, without regard to what they did
before the strike. Rather, we are carrying out what was
acknowledged in Rose Printing as the Board’s duty: “to
ensure that strikers who have unconditionally offered to
return to work are . . . treated the same as they would
8 R. Exh. 29 indicates that polisher Ian Deal left the Respondent’s
employ on March 1, 1995, not in November 1994 as the judge found.
We leave to compliance the resolution of this issue for backpay pur-
poses.
9 Laidlaw Corp., 171 NLRB 1366 (1968).
TOWNE FORD, INC. 195
have been had they not withheld their service.” Id. at
1078.
The circumstances here are somewhat similar to those
in Medallion Kitchens, 277 NLRB 1606 (1986), enfd. in
relevant part 811 F.2d 456 (8th Cir. 1987), in that the
prestrike positions were changed by virtue of circum-
stances not alleged as discriminatory, and the employer
was required to offer the strikers the modified positions
because they involved the same work that the strikers
had done before the strike. There, the new circumstance
was damage suffered by the plant in a fire and the em-
ployer’s decision to move to a new plant a great distance
away. As the operations at the old plant wound down
and replacements left, certain limited duration positions
came open, and it was to these that the Board required
reinstatement offers, even though the pre-strike positions
had not been temporary. 277 NLRB at 1614.10 Had the
employees not gone on strike, they would have been fill-
ing those positions.
Accordingly, the Respondent was obligated to reinstate
apprentice painters Flanagan and Heffernan to polisher
positions unless the Respondent “[could] sustain [its]
burden of proof that the failure to offer full reinstatement
was for legitimate and substantial business reasons.”
Laidlaw Corp., 171 NLRB 1366, 1370 (1968). Since the
Respondent has failed to present such legitimate and sub-
stantial business reasons here, we find that the Respon-
dent violated Section 8(a)(3) by failing to reinstate ap-
prentice painters Flanagan and Heffernan to the newly
created polisher position.
ORDER
The National Labor Relations Board orders that the
Respondent, Towne Ford, Inc., Redwood City, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Attempting to blacklist an employee by telling
other employers about that employee’s union activities or
union sympathies.
(b) Threatening employees with reprisals for engaging
in union activities or other protected concerted activities.
(c) Laying off employees for engaging in an economic
strike or failing and refusing to reinstate employees upon

10 For the same reason, the difference in pay between the prestrike
apprentice painter positions and the poststrike polisher positions does
not automatically defeat a finding of substantial equivalence. The
change in pay was not alleged as unlawful, so presumably Flanagan and
Heffernan would lawfully have been paid at this rate once the division
of work had been altered, even if they had never gone on strike. We
note that in Medallion Kitchens, the employer also paid lower wages
and benefits to employees hired into the temporary positions, and the
judge nonetheless found substantial equivalence, noting, inter alia, that
the “pay and benefits [for the temporary positions] were set unilaterally
by [the employer] after the strike ended.” Although, as our dissenting
colleague points out, the reviewing court assumed that the strikers
would have been paid their regular wages and benefits if they had been
reinstated into the temporary positions, the court’s main point was that
a determination of “substantial equivalence” rests on many factors. 811
F.2d at 460.
their unconditional offer to return to work from a strike
without substantial business justification.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ron Cosgrove and Ray Haverson full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Steve Stewart, Jack Flanagan, Patrick Hef-
fernan, Ron Cosgrove, and Ray Haverson whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the judge’s decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Redwood City, California facility copies of the at-
tached notice marked “Appendix.”11 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 5,
1994.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region attest-
ing to the steps that the Respondent has taken to comply.

MEMBER BRAME, dissenting in part.
I agree with my colleagues’ findings, except as fol-
lows: I would not find that the Respondent violated Sec-
tion 8(a)(1) of the Act by attempting to blackball service
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
advisor Haverson; further, contrary to my colleagues, I
would adopt the judge’s finding that the Respondent did
not violate Section 8(a)(3) of the Act by refusing to recall
two former economic strikers, apprentice painters
Flanagan and Heffernan, to the newly created polisher
position. I shall discuss these issues in turn.
1. As to the alleged blackballing of Haverson, the
judge has fully set out the facts. In brief, in July 1994,1
Tufo, the service manager of another dealership, offered
Haverson a job. After the economic strike at the Re-
spondent’s facility, which began on July 27 and ended on
August 5, the Respondent refused to reinstate Haverson
on the ground that he had been permanently replaced. In
mid-August, Tuvo called the Respondent’s service man-
ager, Toland, to obtain a reference for Haverson. Toland
gave Haverson an excellent recommendation. As found
by the judge, Toland also stated that Haverson was a
strong union person who “would do whatever the Union
said.” Emphasizing that Toland had volunteered this
information, the judge found that the Respondent vio-
lated Section 8(a)(1) by attempting to blackball Haver-
son. My colleagues adopt the judge’s finding of this
violation. I disagree.
As relevant here, in order to establish that a respondent
has violated Section 8(a)(1) by attempting to blackball,
or blacklist, an individual in violation of Section 8(a)(1),
the General Counsel must show that the respondent inter-
fered in the employment process by causing or attempt-
ing to cause a potential employer not to hire the applicant
because of the applicant’s union or other protected con-
certed activities. In Madison South Convalescent Center,
260 NLRB 816 (1982), for example, an official of the
respondent had described former employee Freeburger as
a “union agitator” to a prospective employer who had
called for a reference in regard to Freeburger’s employ-
ment application. In finding this conduct violative of
Section 8(a)(1), the judge explained that

[s]uch labeling of employees would have a natural ten-
dency to impede and interfere with an applicant’s em-
ployment opportunities. Such interference amounts to
blacklisting and has been held by the Board to be a vio-
lation of Section 8(a)(1) of the Act.2

In the present case, by contrast, Toland, in responding
to Tuvo’s request for a reference for Haverson, neither
disparaged Haverson’s work nor labeled Haverson a un-
ion agitator or a union instigator. To the contrary, To-
land gave Haverson an excellent reference and spoke
highly of him as an employee. In this context, I would
not find Toland’s statement—that Haverson was a strong
union supporter and would do what the Union told him—
was unlawful. In this regard, in light of Toland’s very

1 All dates hereafter refer to 1994 unless otherwise stated.
2 Id. at 823. See also Advance Window Corp., 291 NLRB 226, 228
(1988).
strong recommendation, I find his further observation, to
the effect that Haverson was a strong union supporter,
could not reasonably be said to be an attempt to cause
Tuvo not to hire Haverson.3 Indeed, this would have
been impossible in any event because, as the judge him-
self noted, Tuvo had already offered Haverson a job prior
to calling Toland. For all these reasons, I would reverse
the judge and dismiss this allegation.
2. As to the 8(a)(3) allegation that the Respondent un-
lawfully refused to reinstate former economic strikers
Flanagan and Heffernan to the newly created polisher
position, I agree with the judge that the polisher position
was not substantially equivalent to their prestrike posi-
tions as apprentice painters, and that therefore the Re-
spondent was not obligated to reinstate Flanagan and
Heffernan to the polisher position.
As explained in Rose Printing Co., 304 NLRB 1076,
1077–1078 (1991) (emphasis in original):

[T]he touchstone for determining reinstatement
rights is ascertaining whether the job is the same as,
or substantially equivalent to, the prestrike job. To
be sure, the striker’s qualifications are not irrelevant.
The issue of whether the striker is qualified to per-
form the job may shed light on whether the job is
substantially equivalent. . . . it may well be that the
job must be substantially equivalent to the prestrike
job and the striker must be qualified to fill it. But
the essential point is that mere qualification to per-
form the job will not suffice.

In determining whether two positions are substantially
equivalent, the Board examines, inter alia, the wages, bene-
fits, duties, and skills of the two jobs. Thus, in Rose Print-
ing, supra, the Board reversed the judge, who had found that
“[t]he Board clearly obligates an employer to offer former
strikers any available unit position for which they are quali-
fied,”4 and found that the Respondent did not violate Section
8(a)(3) by failing to offer certain former economic strikers
who had worked in the respondent’s bindery department
reinstatement to entry level general worker positions. The
Board reasoned that the available general worker positions
3 I find distinguishable the cases cited by the judge in support of his
finding of this violation. Thus, in Springfield Manor, 295 NLRB 17, 30
(1989), the judge found that the respondent violated Sec. 8(a)(1) by
telling a potential employer that the respondent had discharged a former
employee because of union activity; in Truck & Trailer Service, 239
NLRB 967, 970 (1978), the judge found that the respondent there vio-
lated Sec. 8(a)(1) by telling the potential employer of former employee
Moody that Moody was a union instigator and was not a desirable
person to have working for him; and in NLRB v. Mount Desert Island
Hospital, 695 F.2d 634, 642 (1st Cir. 1982), the court upheld the
Board’s finding that the respondent violated Sec. 8(a)(1) by advising a
potential employer not to hire a former employee of the respondent
because the former employee had been a “troublemaker” who had
caused the respondent grief. By contrast, in the present case, Toland
gave Haverson a glowing recommendation and simply noted that he
was a strong union supporter.
4 Id. at 1083.
TOWNE FORD, INC. 197
were not substantially equivalent to the former strikers’
bindery department jobs because of the lower wages and
skill levels required for the general worker position.5
Applying this analysis here, the judge found that al-
though the apprentice painters were qualified to perform
the work of polisher, the Respondent was not obligated
to reinstate the apprentice painters to the polisher posi-
tion because the polisher position was not substantially
equivalent to the position of apprentice painter. In reach-
ing this conclusion, the judge relied on the facts that the
polisher position was less skilled and paid less than that
of apprentice painter. Since the judge’s analysis is in
accord with Board precedent, I agree with his finding
that the polisher position is not substantially equivalent
to that of apprentice painter. Accordingly, I would find
that the Respondent did not violate the Act by refusing to
reinstate apprentice painters Flanagan and Heffernan to
the polisher position.
Finally, I find the majority’s analysis of this issue un-
persuasive. In finding the polisher position substantially
equivalent to the apprentice painter position, the majority
professes to find substantial equivalence on the basis of
the comparable skills and duties of the two positions.
However, as the judge found, this is simply not true. For
while the polisher position may require some skill, the
skill level needed for polishing cars is not the same as
that required for painting, which, after all, was the ap-
prentice painters’ primary job. In this regard, as the
judge noted, the skills involved in polishing would not
help the apprentice painters become journeyman painters.
Further, I find unpersuasive the majority’s reliance on
Medallion Kitchens, 277 NLRB 1606, 1614 (1986), enfd.
in relevant part 811 F.2d 456 (8th Cir. 1987), for the
proposition that the fact that an available position offers
lower wages than a former job does not establish that the
jobs are not substantially equivalent. As the court ex-
plained on review, although the 24 new hires who filled
the positions at issue received substantially lower wages
than did the regular production workers, if Medallion had
reinstated former bargaining unit employees to the posi-
tions at issue instead of hiring new employees, Medallion
would have had to pay each worker regular production
wages. Medallion Kitchens v. NLRB, supra at 460 fn. 2.
Accordingly, there would have been no disparity in
wages between the former economic strikers’ previous

5 See also Oregon Steel Mills, 300 NLRB 817, 822 (1990) (position
offered to former economic striker Hunker not substantially equivalent
to former position because the salary was less and required Hunker to
rotate shifts, periodically working nights and weekends, where he had
worked straight days before the strike); and Chicago Tribune Co., 303
NLRB 682, 694 (1991) (offer of reinstatement to former economic
strikers was not an offer to former jobs or substantially equivalent
positions where wages and benefits offered to former strikers was sub-
stantially less than wages and benefits set out in applicable contract).
positions and the positions found substantially equiva-
lent.6
Thus, stripped of its rhetoric, the majority’s analysis is
simply that the polisher position must be substantially
equivalent to the apprentice painter position because the
apprentice painters, having performed polishing work
prior to the strike, are obviously qualified to perform that
work. But this is precisely the logic which the Board
explicitly rejected in Rose Printing, supra, and which the
judge properly found without merit here.7
In sum, I agree with the judge that the polisher position
is not substantially equivalent to the apprentice painter
position. Accordingly, I would adopt the judge’s finding
that the Respondent did not violate the Act by refusing to
reinstate apprentice painters Flanagan and Heffernan to
the newly created polisher position.

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.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT attempt to blacklist an employee by
telling other employers about that employee’s union ac-
tivities or union sympathies.
6 In this regard, I observe that the judge in Medallion Kitchens ap-
pears to have based his finding of substantial equivalence on the ground
that the former strikers were qualified to do the jobs which the 24
newly hired temporary employees were to perform. Id. at 1614 fn. 16.
As explained elsewhere in my dissent, this is precisely the logic which
the Board rejected in its analysis of substantial equivalence in Rose
Printing, supra.
7 I also reject the majority’s assertion that the polisher and apprentice
painter positions must be substantially equivalent because the appren-
tice painters, had they been working at the time of the reorganization,
“would logically have been moved to the polisher position.” In assert-
ing, in effect, that vacancy establishes substantial equivalence, the
majority is assuming what it would prove. That the apprentice painters
were left without work and that the polisher position was vacant after
the reorganization, do not establish that the polisher position is substan-
tially equivalent to the apprentice painter position. Thus, while the
majority’s “logic” might apply if this were a case of musical chairs, the
issue here is not whether the polisher position, or “chair,” was vacant,
but whether it is substantially equivalent to the apprentice painter posi-
tion. For the reasons set out above, I find that it is not substantially
equivalent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
WE WILL NOT threaten employees with reprisals for
engaging in union activities or other protected concerted
activities.
WE WILL NOT lay off employees for engaging in an
economic strike or fail and refuse to reinstate employees
on their unconditional offer to return to work from a
strike without substantial business reasons.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ron Cosgrove and Ray Haverson full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Steve Stewart, Jack Flanagan, Patrick
Heffernan, Ron Cosgrove, and Ray Haverson whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, less any net in-
terim earnings, plus interest.

TOWNE FORD, INC.

APPENDIX A
ORDER GRANTING PARTIAL DISMISSAL
On August 12, 1994, International Association of Machinists
and Aerospace Workers Peninsula Lodge No. 1414 (the Union)
filed the charge in Case 20–CA–26250 alleging that Towne
Ford, Inc. (Respondent) committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act (the Act).
On August 19, the Union filed the first amended charge. On
December 30, the Regional Director for Region 20 of the Na-
tional Labor Relations Board issued a complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(5) and (1) of the Act by bargaining to impasse
over a nonmandatory subject of bargaining and by unilaterally
implementing changes in terms and conditions of employment.
The complaint further alleges that Respondent violated Section
8(a)(3) and (1) of the Act by failing and refusing to reinstate
certain striking employees alleged to be unfair labor practice
strikers. Further, the complaint alleges that Respondent vio-
lated Section 8(a)(3) and (1) even if the strikers were found to
be economic strikers. Respondent filed a timely answer to the
complaint, denying all wrongdoing.
On the first day of the hearing, Respondent moved for dis-
missal of the 8(a)(5) and (1) refusal-to-bargain allegations of
the complaint based on its contention that there was no underly-
ing charge to support the allegations. I deferred ruling on that
motion until after the General Counsel's and Union's cases.
During a recess in the proceedings, on July 14, 1995, Respon-
dent filed a motion to dismiss the refusal to bargain allegations
of the complaint, certain 8(a)(3) allegations and the entire com-
plaint in the companion case of 20–CA–26447. On August 14
the General Counsel filed an opposition to Respondent's mo-
tion. The Union filed a brief in opposition to Respondent's
motion on August 15.
This order deals only with Respondent’s contention that the
refusal-to-bargain allegations of the complaint in Case 20–CA–
26150 are not supported by a timely charge. The other issues
raised by Respondent s motion are deferred, to my decision
after the conclusion of the case.
The Charges
The complaint alleges that Respondent insisted, as a condi-
tion of reaching any agreement on a successor collective-
bargaining agreement, that the Union agree that service advi-
sors be removed from the unit and be established as a separate
bargaining unit. The complaint then alleges that Respondent
insisted to impasse on this alleged nonmandatory subject of
bargaining. Continuing on this line, the complaint alleges that
the strike that ensued was an unfair labor practice strike. Fur-
ther, the complaint alleges that Respondent violated the Act by
treating unfair labor practice strikers as economic strikers. The
complaint alleges in the alternative that Respondent failed and
refused to bargain over the strikers' return to work and that
Respondent discriminated against the employees because they
engaged in a strike. The complaint further alleges that Respon-
dent failed to bargain in good faith by eliminating the classifi-
cation of apprentice painters without prior notice to and bar-
gaining with the Union.
The amended charge, which the General Counsel and the
Union contend supports the complaint, states that Respondent
restrained and coerced employees in the exercise of their Sec-
tion 7 rights “by various means including, but not limited to,
threats, inducements, interrogations, harassment, surveillance.”
The charge further states that Respondent “discriminated
against employees on account of their Union and/or protected
activities” and “refused to reinstate striking employees.” Fi-
nally, the amended charges state that Respondent has refused to
reinstate striking employees. The original charge did not in-
clude the allegation that Respondent refused to reinstate strikers
nor list Section 8(a)(5) among the subsections of the Act alleg-
edly violated. Although the amended charge alleges that Re-
spondent violated Section 8(a)(5) it does not allege a refusal to
bargain by insisting to impasse on a nonmandatory subject of
bargaining nor does it allege a general refusal to bargain.
The charge in Case 20–CA–26447, the companion case, al-
leged that Respondent violated Section 8(a)(5), (3), and (1) by
discriminating against an employee by blackballing him, refus-
ing to hire him, and by advising other employees of his union
activities. The separate complaint which issued in that case
only alleges a violation of Section 8(a)(3) and (1) and did not
allege a violation of Section 8(a)(5). That complaint did not
allege a refusal to bargain generally or specifically.
A charge was filed in Case 20-CA-26222 on July 27, 1994.
That charge alleged, inter alia, that Respondent had refused to
bargain with the Union. However, that charge was withdrawn
and the subsequent charge in Case 20–CA–26250 did not allege
a refusal to bargain.
Analysis and Conclusions
Section 10(b) of the Act provides:

Whenever it is charged that any person has engaged in any . . .
unfair labor practice, the Board . . . shall have power to issue
and cause to be served upon such person a complaint stating
the charges in that respect.

As stated by the United States Supreme Court in NLRB v.
Fant Milling Co., 360 U.S. 301, 307 (1959), the Board is not
barred from citing in a complaint “unfair labor practices which
TOWNE FORD, INC. 199
are related to those alleged in the charge and which grow out of
them while the proceeding is pending before the Board.” How-
ever, the Board does not have “carte blanche to expand the
charge as [it may] please, or to ignore it altogether.” Id. at 309.
The charge must form the basis of the complaint because Sec-
tion 10(b) states a requirement that the Board “not originate
complaints on its own initiative.” G. W. Galloway Co. v. NLRB,
856 F.2d 275, 280 (D.C. Cir. 1988). In Galloway the court held
that the Board had exceeded its authority when it issued a com-
plaint alleging that an employer had threatened to terminate
employees picketing in front of its plant, whereas the underly-
ing charge had alleged only that the employer discharged an
employee for engaging in protected concerted activities.
In Nickles Bakery, 296 NLRB 927 (1989), the Board adopted
the reasoning of Galloway and reaffirmed the three-part test
advanced in Redd-I, Inc., 290 NLRB 1115 (1988), to determine
whether the allegations of a complaint are sufficiently related to
the allegations of the underlying charge. The test requires an
analysis of whether (1) the allegations involve the same legal
theory as the allegations of the charge; (2) the allegations arise
from the same factual circumstances or sequence of events; and
(3) a respondent would raise similar defenses to both allega-
tions. In Lotus Suites, Inc v. NLRB, 32 F.3d 588 (D.C. Cir.
1994), the circuit court held that an unfair labor practice charge
which contained boilerplate language, but stated no facts, could
not possibly meet the Nickles Bakery standard. As the court
stated, where the charge contains no factual allegations at all,
there can be no nexus and a complaint cannot issue. The court
held that the Board was without authority to investigate and
issue a complaint based on an unfair labor practice charge con-
taining only boilerplate allegations that the employer violated
Section 8(a)(1) and utterly lacking in factual content. Thus, the
court held that to allow the Board to issue a complaint based on
a charge containing only a boilerplate 8(a)(1) violation, un-
bounded by any specific facts, “is tantamount to allowing the
Board to enlarge its jurisdiction beyond that given by Con-
gress.”
The charge contains general language alleging violations of
Section 8(a)(1) and (3) and the specific allegation that Respon-
dent had refused to reinstate strikers. In that amended charge
the Union never alleged specifically or generally that Respon-
dent had refused to bargain in good faith. First, the allegation
that Respondent insisted to impasse on a nonmandatory subject
of bargaining does not involve the same legal theory as the
8(a)(1) and (3) allegations of the charge. Second, the refusal to
bargain does not arise out of the same factual circumstances or
events as the 8(a)(1) allegations or refusal to reinstate strikers.
Most important, the defense to the refusal to bargain involves
evidence of bargaining history, negotiations, and strike votes
which evidence would not be required in the 8(a)(1) and (3)
case. Thus the amended charge is lacking in any factual con-
tent to support a refusal-to-bargain case.
!n the investigation of the charge, the Regional Director de-
termined that Respondent had refused to bargain by insisting to
impasse on a nonmandatory subject of bargaining. The Board's
own Casehandling Manual requires that if on investigation it
appears that “the allegations of the charge are too narrow, an
amendment should be sought, and. . .if amendment is not
filed, the case should be reappraised in this light, and the com-
plaint issued, if any, should cover only matters related to the
specifications of the charge. Galloway, supra, quoting NLRB
Casehandling Manual, Sec. 10064.5. I do not intend to imply
that the Regional Director did anything wrong in investigating
the refusal to bargain or in finding a violation thereof. How-
ever, as pointed out in Galloway, the proper procedure was to
seek an amended charge and in the absence of such an amend-
ment, issue a complaint without the refusal-to-bargain allega-
tions.
The General Counsel argues that listing of subsection (5)
along with Section 8(a)(3) and (1) in the charge gave notice that
the charge alleged an unfair labor practice strike and that the
underlying unfair labor practice must have been a refusal to
bargain. The inclusion of subsection (5) does not contain any
factual allegation at all which would sustain a refusal-to-
bargain case. Further, the General Counsel assumes that the
charge alleges that the strikers were unfair labor practice strik-
ers when, in fact, the charge merely alleges that they were
strikers. Even construing the term strikers in the broadest sense
to include economic and/or unfair labor practice strikers, the
charge lists unfair labor practices in violation of Section 8(a)(1)
and (3) which would more likely form the basis for the allega-
tions that the strike was caused or prolonged by unfair labor
practices. While the prior unfair labor practice case, Case 20–
CA–26222, did allege a general refusal to bargain, the refiling
did not include such an allegation. Thus, the refusal-to-bargain
allegation remained withdrawn. Thus, as indicated above, at
the time of the issuance of the complaint the Regional Director
had no charge alleging that Respondent either generally or by
insisting to impasse on a nonmandatory subject of bargaining,
refused to bargain in good faith.
Accordingly, based on Nickles Bakery and Lotus Suites I find
that the complaint allegations that Respondent refused to bar-
gain in good faith are not supported by a charge and must be
dismissed.
Since I have found that I may not, under Section 10(b), prop-
erly decide the complaint allegations that Respondent refused
to bargain in good faith, it follows that I may not litigate or
consider those unfair labor practices in deciding whether the
strikers were unfair labor practice strikers. In Machinists Local
1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960), the United
States Supreme Court held that where a collective-bargaining
agreement was lawful on its face evidence outside the time
limitations of Section 10(b) could not be used to revive a le-
gally defunct unfair labor practice. The Court cited with ap-
proval Greenville Cotton Oil Co., 92 NLRB 1033 (1950), affd.
sub nom. American Federation of Grain Millers, AFL v. NLRB,
197 F.2d 451 where the Board held that the acts alleged to form
the basis for an unfair labor practice strike occurred outside the
6-month limitation period, Section 10(b) of the Act barred the
General Counsel from litigating whether the strikers were un-
fair labor practice strikers. The situation here appears analo-
gous, having no jurisdiction to find that Respondent refused to
bargain, I cannot find such unfair labor practices to convert an
economic strike into an unfair labor practice strike. To do so
would be finding an unfair labor practice unsupported by a
charge in contradiction of the holdings of Fant Milling and
Bryan Mfg.
ORDER
It is ordered that complaint allegations paragraphs 9, 10,
11(b), 12(e), (f), and (g), 13, 14, 16(b), and 17 are dismissed.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
Marilyn O'Rourke and Shelley Brenner, Esqs., for the General
Counsel.
Richard Thesing, and David F. Byrnes, Esqs. (Littler, Mendel-
son, Fastiff, Tichy & Mathiason), of San Francisco, Cali-
fornia, for the Respondent.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger & Ro-
senfeld), of Oakland, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on June 20–23, and
August 28, 1995. On August 12, 1994, International Associa-
tion of Machinists and Aerospace Workers Peninsula Lodge
No. 1414 (the Union) filed the charge in Case 20–CA–26250
alleging that Towne Ford, Inc. (Respondent) committed certain
violations of Section 8(a)(3) and (1) of the National Labor Re-
lations Act (the Act).1 On August 18, the Union filed the first
amended charge.2 On December 30, the Regional Director for
Region 20 of the National Labor Relations Board issued a
complaint and notice of hearing against Respondent, alleging
that Respondent violated Section 8(a)(5) and (1) of the Act by
bargaining to impasse over a nonmandatory subject of bargain-
ing and by unilaterally implementing changes in terms and
conditions of employment. The complaint further alleged that
Respondent violated Section 8(a)(3) and (1) of the Act by fail-
ing and refusing to reinstate certain striking employees alleged
to be unfair labor practice strikers. Additionally, the complaint
alleged that Respondent violated Section 8(a)(3) and (1) even if
the strikers were found to be economic strikers. Respondent
filed a timely answer to the complaint, denying all wrongdoing.
The charge in Case 20–CA–26447, the companion case, al-
leged that Respondent violated Section 8(a)(5), (3), and (1) by
discriminating against an employee by blackballing him, refus-
ing to hire him, and by advising other employers of his union
activities. The separate complaint which issued in that case
only alleges a violation of Section 8(a)(3) and (1) and did not
allege a violation of Section 8(a)(5). The complaint did not
allege a refusal to bargain generally or specifically. Respon-
dent also filed a timely answer to this second complaint deny-
ing all wrongdoing.
On the first day of the hearing, Respondent moved for dis-
missal of the 8(a)(5) and (1) refusal-to-bargain allegations of
the first complaint based on its contention that there was no
underlying charge to support the allegations. I deferred ruling
on that motion until after the General Counsel's and Union's
cases. During a recess in the proceedings, on July 14, 1995,
Respondent filed a motion to dismiss the refusal-to-bargain
allegations of the complaint, certain 8(a)(3) allegations, and the
entire complaint in the companion case—Case 20–CA–26447.
On August 14 the General Counsel filed an opposition to Re-
spondent's motion. The Union filed a brief in opposition to

1 A charge was filed in Case 20–CA–26222 on July 27, 1994. That
charge alleged, inter alia, that Respondent had refused to bargain with
the Union. However, that charge was withdrawn and the subsequent
charge in Case 20–CA–26250 did not allege a refusal to bargain.
According to Don Barbe, business representative, the charge was
withdrawn because of the Region's “time targets.” Barbe was told that
the allegations of the July 27 charge would be pursued in Case 20–CA–
26250 which was still under investigation.
2 The amended charge alleged violations of Sec. 8(a)(3) and (1) but
did not allege a refusal to bargain or an 8(a)(5) violation.
Respondent's motion on August 15. On August 28, 1995, after
the General Counsel and Union had rested, I granted Respon-
dent's motion in part and dismissed the 8(a)(5) allegations of
the complaint in Case 20–CA–26250. I issued a written deci-
sion incorporated in the record as Judge's Exhibit 1. I reaffirm
that decision and find, under G. W. Galloway Co. v. NLRB, 856
F.2d 275, 280 (D.C. Cir. 1988); Nickles Bakery, 296 NLRB 927
(1989); and Lotus Suites, Inc. v. NLRB, 32 F. 3d 588 (D.C. Cir.
1994), there was not a charge to support the refusal-to-bargain
allegations of the complaint.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posttrial briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in Redwood City, Califor-
nia, where it is engaged in the selling and servicing of new and
used automobiles. Respondent, in the course and conduct of its
business operations, annually derives gross revenues in excess
of $500,000 and purchases and receives goods valued in excess
of $5000 which originate outside the State of California. Ac-
cordingly, Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates an automobile dealership and service
department in Redwood City, California. It has had a collec-
tive-bargaining relationship with the Union for at least 10
years. The most recent collective-bargaining agreement was
effective from July 16, 1989, until July 15, 1993. The 1989–
1993 bargaining agreement covered the employees in Respon-
dent's body shop and service department.
In September 1993, the parties began meeting in an unsuc-
cessful attempt to negotiate a new contract to succeed the ex-
pired 1989–1993 agreement. The parties met on September 10
and 22, 1993, February 25, March 8, and June 23, 1994, with-
out reaching agreement. An impasse occurred and the bargain-
ing unit employees went on strike on July 27, 1994.
Within this factual framework, the General Counsel con-
tends, in Case 20–CA–26250, that the strike was an unfair labor
practice strike and that Respondent was obligated to reinstate
the strikers on their unconditional offer to return to work not-
withstanding that certain strikers may have been replaced. In
the alternative, the General Counsel contends that even if the
strikers were economic strikers, Respondent violated Section
8(a)(3) by rejecting the unconditional offers of five strikers to
return to work. The complaint further alleges that Respondent
violated Section 8(a)(1) of the Act by threatening employees
with adverse action for engaging in a strike and encouraging
employees to withdraw from the Union. In Case 20–CA–
26447, the complaint alleges that Respondent violated the Act
by refusing to reinstate one of the strikers and by attempting to
discourage another employer from hiring that same employee.
TOWNE FORD, INC. 201
Respondent contends that the strike was an economic strike
and not an unfair labor practice strike. Further, Respondent
contends that two of the strikers at issue were permanently
replaced and are only entitled to reinstatement on the opening
of a position. Regarding the remaining three strikers, Respon-
dent contends that it had no work for them at the conclusion of
the strike and recalled the three employees when the volume of
business increased and made recall economically feasible.
B. Facts
As mentioned above, the strike began on July 27, 1994. The
bargaining unit employees picketed Respondent's facility from
7: until 9 a.m. Two of the picket signs carried drawings of
large red rats on them and the words “DO NOT PATRONIZE.”
The service advisors, including alleged discriminatees Ray
Haverson and Ron Cosgrove, stood by the service entrance and
asked customers not to patronize Respondent during the strike.
The service advisors handed out leaflets and gave the names
and addresses of other dealerships for the customers to go dur-
ing the strike. The leaflets gave consumer tips on buying new
or used cars and also the names and addresses of other dealer-
ships. The activities of the service advisors and other strikers
were observed by Respondent's managers and supervisors.
Ray Haverson, a service advisor, testified that he was a team
leader during the strike. According to Haverson on one occa-
sion while he was explaining the strike to a customer Ben Kopf,
Respondent's owner, was nearby. The customer asked Haver-
son who the owner was and Haverson pointed out Kopf. The
customer then went to talk to Kopf. There is no record evi-
dence of what took place between the customer and Kopf.
Haverson also testified that prior to the strike, he had two
conversations with Tim Toland, Respondent's service manager,
concerning the possibility of a strike.3 Toland asked the em-
ployee if Haverson thought the employees were going to strike.
According to Haverson, after he said that the employees might
be striking soon, Toland replied that it would be a very long
strike. Toland testified that on both occasions he asked Haver-
son whether he (Toland) could safely go on vacation because of
concern over a strike.
During the strike, a meeting was held on Friday, August 5,
1994, at the office of a federal mediator. At this meeting Re-
spondent told the union negotiation committee that it had begun
hiring permanent replacements. As a result of this meeting, the
employee-members of the Union's negotiation team met with
the employees. At this meeting the striking employees voted to
return to work. Union Steward Louis Baeza appointed Terry
Clark, dispatcher, and Andrew Kolchev, service technician, to
talk to Toland about the employees returning to work.
Clark and Kolchev told Toland that the employees were re-
porting for work. Toland asked “In what capacity?” and Clark
replied, “All of us.” Toland asked the two employees to wait in
his office while he spoke with Kopf. Clark and Kolchev waited
at the entrance to the shop with the other employees. Toland
came back and told the employees, “You can come back.”
Clark asked if all the employees could come back and Toland
answered, “Yes, all of you.” Clark asked what Toland wanted
the employees to do since there was not much work in the shop.
Toland told the employees to punch in anyway and that “Ben
[Kopf] would subsidize” the employees. The employees were

3 Haverson and Toland were friends at work and away from work.
Haverson often took his breaks in Toland’s office.
to bring their tools back into the shop and prepare for the fol-
lowing Monday.
The employees went inside the shop and punched the time
clock at approximately 3 p.m. that afternoon and engaged in
cleanup activities. That afternoon, Baeza had a conversation
with Kopf about the strike. According to Baeza, Kopf told him
that Baeza had cost Kopf a lot of money and grief. Baeza an-
swered that Kopf had done the same thing to him. Kopf then
said to Baeza, I ought to kick your ass.” Baeza then told
Knopf, “Go ahead, one free punch.” Kopf also told Baeza that
he wanted everyone back to work on the following Monday
morning. Although the words spoken by Knopf sound like a
threat, I do not find that they were reasonably taken to be so by
Baeza. Baeza is a much larger and younger man than Kopf and
Kopf would not seriously challenge Baeza to a fight. Baeza
admitted that the remarks were made in jest and that both he
and Kopf were smiling and laughing. Under the circumstances,
I cannot find that either man took these words seriously.
On the afternoon of August 5, Ron Cosgrove, service advi-
sor, clocked in with the other employees. Between 4:30 and 5
p.m. Cosgrove told Toland that he was going home and would
see Toland on Monday morning. Toland replied that Cosgrove
could leave and that he would see the employee on Monday
morning. However, approximately 2 hours later, Toland called
Cosgrove at the employee's home and told Cosgrove that
Cosgrove had been replaced. Toland told Cosgrove that during
the strike Respondent had hired two service advisors and that
Haverson and Cosgrove would not be returned to work.
Patrick Heffernan, an apprentice painter, also returned to
work on the afternoon of August 5. Heffernan performed some
work in the body shop that afternoon after clocking in. How-
ever, after he left work, Heffernan received a telephone mes-
sage from Pam Bacon, assistant body shop manager, telling him
not to come into work on Monday. On August 15, Heffernan
went to the body shop and spoke with Bacon. Heffernan asked
if there was enough work in the shop for him to return to work.
Bacon answered that work was too slow. Heffernan returned to
the shop on August 22 and was again told by Bacon that there
was not enough work for him. Heffernan went to speak to To-
land. Toland also told Heffernan that there was not enough
work. On September 5, Heffernan spoke with Dave Haley,
Respondent's body shop manager. Haley said, “We have no
intention or inclination to bring back the apprentices.” Haley
further explained that Respondent had journeymen painters and
assistants but was interested in “low-tech employees not tech-
nical employees.” Heffernan was recalled on February 6, 1995.
Jack Flanagan, apprentice painter, also punched in on the af-
ternoon of August 5. Flanagan did some cleanup and then
punched out. On Saturday, August 6, Flanagan received a mes-
sage from Bacon telling him that work was slow and that he
should not report to work on Monday. Flanagan called the
shop several times before he was told to speak with Haley. On
August 16, Flanagan went to the shop and spoke with Haley.
Haley told Flanagan that Haley was not interested in hiring
back the apprentices but was looking for lower paid personnel.
Flanagan then went to speak with Toland. Toland told Flana-
gan that the employee should start looking for another job.
Haley called Flanagan back to work in January 1995, and
Flanagan returned to work on February 7.
Steve Stewart, journeyman painter, punched in for a short
period of time on August 5. On August 6, Bacon called Stew-
art and told Stewart not to report for work on Monday because
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
there was not any work for Stewart. On August 10, Stewart
went to the shop and spoke with Toland. Toland told Stewart
that a painter hired during the strike had more seniority than
Stewart. However, on August 11, Respondent recalled Stewart
back to work.
Haverson, was not present when the employees returned to
work on August 5. He was on a previously scheduled vacation
in Reno, Nevada. On August 6, while on vacation, Haverson
met another employee who told him that the employees had
returned to work on August 5. The following day, Sunday,
Haverson called Toland, at Toland's home, and offered to
shorten his vacation and return to work the following day.
Toland told Haverson that the employee did not have a job
because Respondent was “keeping the permanent replace-
ments.”
On Tuesday, August 9, Haverson went to the shop and spoke
with Toland and Gary Crowe, assistant service manager. Hav-
erson protested Respondent's refusal to return him to work.
Toland told Haverson that Haverson had been permanently
replaced and that the replacements had seniority over Haverson.
Haverson continued to complain that another service advisor
with less seniority had punched in and that he had more senior-
ity than the recently hired replacements. According to Haver-
son, Toland said, “If you quit lighting fires you'll be back here a
lot sooner.” Both Toland and Crowe deny that Toland made
such a remark to Haverson.
Haverson further testified that he complained to Crowe that
Toland had made a mistake by telling the employees that they
were all welcome back and letting them punch in and move
back their tools. According to Haverson, Crowe answered,
“Well, if you quit lighting fires and calm your ass down . . .
you'll be back . . . . We'd have you back.” Crowe admitted
telling Haverson to “calm down” and “cool it” but denied tell-
ing Haverson to quit lighting fires.
Approximately 1 week later, Haverson met with Kopf. Hav-
erson told Kopf that he was sorry that things had deteriorated
and asked why he had not been called back to work. During
this conversation, Kopf stated that he had objections to the rat
picket signs. Kopf said that the rat picket sign was degrading
and embarrassing. According to Haverson, Kopf stated that he
really did not like unions and that Kopf said, “I won't be union,
I don't care how much it costs me. I don't care how long it
takes.” Kopf told Haverson that Haverson was on a preferential
hiring list and if one of the replacements did not work out,
Haverson would be recalled.
Haverson began to look for work with other dealerships.
Angelo Tuvo, service manager for a Dodge dealership in Red-
wood City, testified that he called Toland in August 1994, to
inquire about Haverson's qualifications. Tuvo testified that
Toland told him that Haverson was a very good service advisor.
In addition, Toland mentioned that Haverson was a very strong
union person and “would do whatever the Union said.” Toland
testified that Tuvo said, “We're working non-union here, and
what type of guy is he?” Toland testified that in response to
Tuvo he said that Haverson would do whatever the Union
asked. Tuvo was a disinterested witness whom I believe was
testifying to the best of his ability. I credit Tuvo's testimony
over that of Toland.4 As of the trial, Haverson had still not
been recalled by Respondent.

4 Tuvo had offered Haverson a job in July 1994.
In September Respondent hired two employees in the new
classification of polisher. One of these polishers worked only 1
day. The other polisher was terminated in November. On No-
vember 7, Respondent hired another polisher. These polishers
were hired to perform some of the work previously performed
by the apprentice painters. The hiring of the polishers was part
of a reorganization of the painting operation put in place by
Haley after he became manager of the body shop after the
strike. Respondent still employs the polisher hired in Novem-
ber.
Haley set up a separate polishing area outside of the body
shop in an effort to improve the quality of this work. This was
consistent with Haley's methods of operations at his previous
places of employment. Union considerations placed no part in
this decision. Haley's decision to have a separate polishing
location was based on a decision to have an employee special-
ize in polishing so as to increase efficiency and quality. A side
benefit of this method of operation was also a reduction in labor
costs.
Finally, the General Counsel alleges that Respondent vio-
lated Section 8(a)(1) of the Act by the statements contained in a
letter sent to the employees by Kopf in October 1994:

Negotiations with [the Union] were held on Wednes-
day, September 28, 1994.
Towne Ford made one change to its Final Offer. That
change was to provide for voluntary Union membership.
This proposal was based on several factors including the
fact that approximately 5 of our long-term employees have
advised us that they have resigned from the Union and do
not wish to be members and most of our employees hired
since the strike have also indicated they do not desire to
become members of the Union.
[T]he Union responded that it will never sign a con-
tract with voluntary membership and its next step is to try
to put Towne Ford out of business. We anticipate that
there will be picketing and other actions directed against
Towne Ford intended to cause it great financial loss and
harm to its reputation.
I am sorry that we were not able to reach an agreement
and that the situation has deteriorated to the point where
the Union has stated that it desires to put us out of busi-
ness. However, in light of all the circumstances, I believe
that voluntary Union membership at the present time is a
fair and reasonable position.
Some of you have asked what happens next. The em-
ployees hired since the strike have not joined the Union
and several employees who went on strike have now re-
signed from the Union. If we reach the point where the
Union no longer represents a majority of Towne Ford em-
ployees, Towne Ford will become non-union. In the ab-
sence of a loss of majority support, we will continue to
recognize the Union as the exclusive bargaining agent of
all employees and bargain in good faith with the Union
upon request. However, in view of the Union's position at
the last negotiation session, we believe the Union has
given up on negotiations as a tactic.
Some of you have asked what will happen if Towne
Ford becomes non-union. It is very difficult to advise you
in these circumstances because the Federal Labor Laws re-
strict what Towne Ford can say. On the other hand, the
Union can lie to you in order to scare you into staying in
the Union. For example, in the Union's letter of Septem-
TOWNE FORD, INC. 203
ber 22, 1994, they state that if Towne Ford goes non-
union, your pay will be cut and you will lose holidays, va-
cation and seniority protections.
THIS IS RIDICULOUS! In the event a majority of
employees no longer desire union representation, we
would put into effect every aspect of the Final Offer as
modified by last week's negotiations. The only possible
exception is the retirement plan, which might convert to
the profit sharing plan which presently is in existence for
all non-union employees. We believe that such a change
would have little impact since the profit sharing contribu-
tions over the last ten years have been roughly equal to
your existing plan.
Analysis and Conclusions
1. Independent 8(a)(1) statements
In June and July, Toland asked Haverson whether Toland
could go on vacation because the employees might be going on
strike. Haverson replied that the employees might be going on
strike. Toland responded that it would be a very long strike.
The General Counsel argues that Toland's statement was not a
prediction but rather a threat of the Respondent's determination
to keep the strikers out of work.
As stated in NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969):

If there is any implication that an employer may or may not
take action solely on his own initiative for reasons unrelated
to economic necessities and known only to him, the statement
is no longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment. . . . [As] stated elsewhere, an employer is free
only to tell “what he reasonably believes will be the likely
economic consequences of unionization that are outside his
control,” and not “threats of economic reprisal to be taken
solely on his own volition.” NLRB v. River Togs, Inc., 382
F.2d 198, 202 (2d Cir. 1967).

Here, I find that Toland was merely stating his opinion as to
the length of the strike. In the context of a casual conversation
between friends, I do not find Toland’s comment to amount to a
threat of retaliation.
On August 9, after Haverson complained about not be re-
called to work, both Toland and Crowe told him that “if you
quit lighting fires” you'll be back to work sooner. I find that by
such conduct, Respondent unlawfully threatened Haverson in
violation of Section 8(a)(1) of the Act.
The credible testimony of Angelo Tuvo establishes that To-
land volunteered the information that Haverson was “a strong
union person” and “would do whatever the Union said.” I find
that by such conduct Respondent attempted to blacklist Haver-
son in violation of Section 8(a)(1) of the Act. Springfield
Manor, 295 NLRB 17, 30 (1989); Truck & Trailer Service, 239
NLRB 967, 970 (1978); and NLRB v. Mount Desert Island
Hospital, 695 F.2d 634, 642 (1st Cir. 1982).
The General Counsel argues that Kopf's October letter deni-
grates the Union and suggests that employees withdraw from
the Union. While Respondent did indicate that some employ-
ees had withdrawn from the Union, Respondent also indicated
that it would continue to recognize and bargain in good faith
with the Union. I do not find that Respondent unlawfully sug-
gested that employees withdraw from the Union. Accordingly,
I find that Kopf's letter was a lawful expression of his opinion
of the bargaining situation and lawful under Section 8(c) of the
Act.
2. Reinstatement of the strikers
Economic strikers retain their status as employees and are
entitled to reinstatement to their former positions at the conclu-
sion of the strike unless the employer can establish legitimate
and substantial reasons for the failure to reinstate the strikers.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). During a
strike an employer may hire permanent replacements to con-
tinue to operate its business, and that proof of such action con-
stitutes legitimate and substantial justification for refusing to
reinstate those strikers so replaced. NLRB v. Great Dane Trail-
ers, 388 U.S. 26. 34 (1967); NLRB v. Mackay Radio Co., 304
U.S. 333, 345–346 (1938). Even if permanent replacements
have been hired for the strikers, on the departure of the re-
placements, the former strikers are entitled to reinstatement to
their former jobs unless they have obtained substantially
equivalent employment elsewhere or unless their employer is
able to sustain his burden of proof that the failure to recall was
justified by legitimate and substantial business reasons. Laid-
law Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 379 U.S. 920 (1970). Unless an employer
sustains his burden of proof, a refusal to reinstate strikers con-
stitutes an unfair labor practice notwithstanding the absence of
animus or bad faith; for such conduct “discourages employees
from exercising their rights to organize and to strike guaranteed
by Sections 7 and 13 of the Act.” NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967). The reinstatement rights of
economic strikers may be modified by a strike-settlement
agreement. See United Aircraft Corp., 192 NLRB 382 (1971)
enfd. in part 534 F.2d 422 (2d Cir. 1975).
In the instant case, employees Clark and Kolchev told To-
land, Respondent's service manager, that “all of us” are report-
ing to work. After discussing the matter with Respondent's
owner, Toland told the employees that they could return to
work, “yes, all of you.” Toland told the employees that they
could punch the timeclock and prepare for work the following
Monday (the next workday). I find that by such conduct, Respon-
dent accepted the unconditional offer of the employees to return to
work together and had thereby reinstated them. One could only
speculate as to whether the employees would have abandoned the
strike had Toland resisted returning the replaced employees. Here
the employees agreed to give up the strike and Respondent agreed
to reinstate all the strikers including those it had allegedly perma-
nently replaced. Viewed another way, Respondent waived its right
to contend that it had hired permanent replacements.
In Colonial Press, 207 NLRB 673, 674 (1973), enf. denied
in relevant part 509 F.2d 850 (8th Cir. 1975), the Board found
that by offering unfair labor strikers re-employment, the re-
spondent-employer had condoned any prior misconduct. The
Board then decided that even after the employees declined the
offers of re-employment and continued to strike, the prior acts
of misconduct were still condoned and that as unfair labor prac-
tice strikers, the employees were entitled to immediate rein-
statement upon their unconditional offer to return to work. The
Board held that the employer could not shift its position and
refuse employment to the former strikers. In the instant case,
Respondent, having accepted the employees' offer to return to
work, reinstated all the strikers including those whom it re-
placed. Following the logic of Colonial Press, I find, that in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
this case, Respondent could not shift its position and contend
that the employees had been permanently replaced.
On a second independent basis I also find that Respondent
has not met its burden of establishing that it had hired perma-
nent replacements for the employees at issue. As mentioned
above, during a strike an employer may hire permanent re-
placements to continue to operate its business, and that proof
of such action constitutes legitimate and substantial justification
for refusing to reinstate those strikers so replaced. NLRB v.
Great Dane Trailers, supra,; NLRB v. Mackay Radio Co., su-
pra. It is the employer's burden to prove its affirmative defense
that the alleged discriminatees were permanently replaced.
Augusta Bakery Corp., 298 NLRB 65 (1990), enfd. 957 F.2d
1467 (7th Cir. 1992); and Aqua-Chem, Inc., 288 NLRB 121
(1988). Such proof must be specific and must show a mutual
understanding between the employer and the replacements that
they are permanent. Chicago Tribune Co., 304 NLRB 259
(1991); and Hansen Bros. Enterprises, 279 NLRB 741 (1986),
enfd. 812 F.2d 1443 (D.C. Cir. 1987), cert. denied 484 U.S. 845
(1987). However, the Board has not required an employer to
have used “the magic word ‘permanent’” in order to establish
that it indeed hired replacements as permanent employees. See
Crown Beer Distributors, 296 NLRB 541, 549 (1989). In O.E.
Butterfield, Inc., 319 NLRB 1004 (1995), the Board held that in
all cases, both representation and unfair labor practice cases, it
would presume that replacements for strikers are temporary
employees, and that the employer must “show a mutual under-
standing between itself and the replacements that they are per-
manent.” The Board further affirmed that evidence that a re-
placement was “full-time” is not sufficient to establish that the
employee was hired as a permanent employee.
Respondent offered little evidence to overcome the presump-
tion that the replacements were temporary. Toland testified
that he hired three service advisors during the strike, one jour-
neyman painter, and several mechanics. There was no evidence
that any of these employees were told that they were permanent
employees. None of the employees testified. Choctaw Maid
Farms, Inc., 308 NLRB 521 (1992). Toland told the strikers
that he had hired permanent replacements but there was no
evidence to show a “mutual understanding between the em-
ployer and the replacements” that the replacements were per-
manent. Based on a lack of evidence I find that Respondent did
not meet its burden of showing that it had hired permanent
replacements.
Although I have found that the strikers were not permanently
replaced and had been recalled, it does not follow that Respon-
dent was obligated to employ more employees than was justi-
fied by the volume of business. The rights of economic strikers
do not require the employer to create jobs or vacancies for the
strikers. Oregon Steel Mills, 291 NLRB 185 (1988). Thus, I
find that Respondent could lay off or delay the recall of em-
ployees based on a lack of work in its service department.
However, under its last contract with the Union, and under its
unilaterally imposed conditions, Respondent laid off employees
according to seniority. Here the returning service advisors and
the journeyman painter had more seniority than the replace-
ments. Accordingly, the returning strikers were entitled to their
jobs. If any service advisors were laid off on a non-
discriminatory basis, it would have to be the less senior strike
replacements. If a painter needed to be laid off it would have
been the less senior replacement and not Stewart. The recently
hired replacements could not lawfully be given “superseniority”
over the strikers. NLRB v. Erie Resistor Corp., 373 U.S. 221
(1963).
The record supports Respondent's contention that there was
insufficient work in the body shop for the apprentice painters.
Respondent reinstated the apprentices when the volume of
work increased. However, the apprentices were qualified to
perform the work of the polisher. The Board has held that a
respondent's reinstatement obligation is not limited to the strik-
ers' old positions but includes reinstatement to substantially
equivalent positions which the strikers are qualified to perform.
Rose Printing Co., 304 NLRB 1076, 1078 (1991). The issue
then becomes whether the position of polisher was substantially
equivalent to the strikers’ former position of apprentice painter.
As mentioned above, Haley set up a separate polishing area
outside of the body shop in an effort to improve the quality of
this work. This was consistent with Haley's methods of opera-
tions at his previous places of employment. Union considera-
tions placed no part in this decision. Haley's decision to have a
separate polishing location was based on a decision to have an
employee specialize in polishing so as to increase efficiency
and quality. A side benefit of this method of operation was also
a reduction in labor costs. I find that the job of the polisher was
not substantially equivalent to that of an apprentice painter.
While the painter apprentices were qualified to perform the
work of the polisher, I find that under Rose Printing Respon-
dent was not obligated to reinstate the strikers to this position. I
find that the job of the polisher was less skilled and less paid
than the job of apprentice. Further, working as a polisher
would not help the apprentices become journeymen painters.
Accordingly, I find the position of polisher was not the same or
substantially equivalent to the position held by the apprentice
painters prior to the strike. Thus, I find no evidence of unlaw-
ful motivation and further find that the Respondent’s conduct
was not inherently destructive of the employee’s right to strike
under Board law.
I find C&E Stores, 229 NLRB 1250 (1977), cited by the
General Counsel to be inapposite. In C&E Stores, the respon-
dent-employer attempted to lay off three unfair labor practice
strikers after brief reinstatements. Over a 2-week period, one
of the employees worked 8 hours and the other two employees
worked only 6 hours each. The Board found that the employ-
ees' momentary return to work was not the reinstatement re-
quired by the Act and held that the employees had, in effect,
not been reinstated. Thus, the unfair labor practices strikers
were entitled to their jobs over strike replacements even if the
strike replacements had seniority. Here, Respondent treated the
apprentice painters (economic strikers) consistent with their
Laidlaw rights. Respondent simply did not have sufficient
work for the apprentice painters at the end of the strike. It rein-
stated those two employees when the volume of work in its
body shop increased. Oregon Steel Mills, supra; and Provi-
dence Medical Center, 243 NLRB 714 (1979). Here whether
the two apprentice painters are viewed as having been laid off
or as not having been reinstated, Respondent treated them con-
sistently with their rights to reinstatement after an economic
strike.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
laying off two service advisors and one journeyman painter
TOWNE FORD, INC. 205
because the employees engaged in an economic strike or refus-
ing to reinstate those strikers in the absence of substantial busi-
ness reasons.
4. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees with the loss of employment or other reprisals
for engaging in union activities or other protected concerted
activities and by attempting to blacklist an employee because of
the employee's union activities.
5. Except as found above, Respondent has not violated the
Act as alleged in the complaint.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act.
I shall recommend that Respondent offer to Ray Haverson
and Ron Cosgrove, full and immediate reinstatement to the
positions they held prior to the unlawful layoff or refusal to
reinstate them.5 Further Respondent shall be directed to make
the Haverson, Cosgrove and Steve Stewart whole for any and
all loss of earnings and other rights, benefits, and emoluments
of employment they may have suffered by reason of Respon-
dent's discrimination against them, with interest. Backpay shall
be computed in the manner set forth in F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in New Horizons
for the Retarded, 283 NLRB 1173 (1987); See also Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139
NLRB 716 (1962).
[Recommended Order omitted from publication.]

5 I have not ordered reinstatement of Steve Stewart, journeyman
painter, because he had been reinstated prior to the instant hearing.
However, Stewart is entitled to backpay for the short period of time for
which he was laid off or denied reinstatement.