White Coffee Corporation

National Labor Relations Board - Board Decisions

May 21, 1982

261 N.L.R.B. 1025 (N.L.R.B. 1982)

WHITE COFFEE CORPORATION
White Coffee Corporation and Local 966, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
William Stubbs. Cases 29-CA-7963 and 29-
CA-7990
May 21, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On July 31, 1981, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the 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 conclusions2 of the Administrative Law Judge
only to the extent consistent herewith.
1. We agree with the Administrative Law
Judge's finding that Respondent discharged Wil-
liam Stubbs in violation of Section 8(a)(3) and (1)
of the Act, but only for the reasons set forth
below.
The Union began to organize Respondent's em-
ployees in April 1980.3 Robert Jones, an employee,
was very active in the Union's campaign. He solic-
ited authorization cards and met with union offi-
cials to discuss the organizing effort. Respondent
discharged Jones on April 24, ostensibly because he
was not doing his job properly. Jones was alleged-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
Nor do we find ment in Respondent's contention that, because the Ad-
ministrative Law Judge generally discredited Respondent's witnesses and
credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice N.L.RB. v Pittsburgh Steam-
ship Company, 337 U.S. 656 (1949). We have further considered Respond-
ent's contention that the Administrative Law Judge generally evidenced
a bias against Respondent's position. We have examined the record and
the attached Decision and reject these allegations.
2 Member Jenkins does not rely on Wright Line. a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981).
That decision concerns identifying the cause of discharge where a genu-
ine lawful and a genuine unlawful reason exist. Where, as here, the assert-
ed lawful reason is found to be a pretext, only one genuine reason re-
mains-the unlawful one The attempt to apply Wright Line in such a sit-
uation is futile, confusing, and misleading.
In the absence of any exceptions to the Administrative Law Judge's
refusal to grant a remedial bargaining order, we find it unnecessary to
pass upon this issue
I All dates herein are in 1980.
261 NLRB No. 149
ly pouring flavoring substances onto coffee beans
instead of spraying it on, as he had been instructed
to do. The Administrative Law Judge found, and
we agree, that this reason was pretextual, and that
Jones was really discharged because he was a
union activist, in violation of Section 8(a)(3) and
(1).
When he was discharged, Jones notified a union
representative of that fact and the two of them
filed a charge with the NLRB Regional Office.
They then met with approximately 12 of Respond-
ent's employees after the end of the shift. The
union representative reviewed the situation, and the
employees voted unanimously to go on strike the
following day, Friday, April 25, in order to force
Respondent to reinstate Jones and to recognize the
Union as their bargaining agent. Beginning around
noon on April 25, approximately 10 employees left
work and picketed Respondent's plant. The Ad-
ministrative Law Judge found, and we agree, that
the strike which began on April 25 was an unfair
labor practice strike because it was provoked by
Jones' unlawful discharge.
William Stubbs was one of the employees who
picketed on April 25. Stubbs' annual I-week vaca-
tion had been scheduled to begin at noon on that
day. Stubbs reported to work that morning and
began to perform his job of roasting coffee. He did
not join the other employees as soon as they began
to picket, indicating that he would not do so until
he completed his roasting work and prepared the
orders for Monday. When he finished these tasks,
shortly before noon, he joined the other employees
and picketed throughout the afternoon. Stubbs did
not picket during the rest of his vacation.
During his vacation, Stubbs received a letter
from Respondent which acknowledged that he had
not reported to work and stated that Respondent
was obtaining replacements. Stubbs telephoned his
supervisor, Seymour Smolin, on May 5 and asked
if he could return to work. Smolin replied that he
could not because he had worn a picket sign.
Stubbs visited the plant the next day, and Smolin
reiterated that he could not return to work because
he had picketed. Relying on these two statements
made by Respondent's supervisor, we find that,
contrary to Respondent's contention, Respondent
did not refuse to allow Stubbs to work because he
had been replaced but, instead, discharged Stubbs
because he had exercised his right under the Act to
picket in support of the employees' unfair labor
practice strike. We further find that Stubbs was dis-
charged on May 5, at the end of his vacation,
when he learned that Respondent would not permit
him to return to work. Respondent's backpay liabil-
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity accrues from that date, as noted by the Admin-
istrative Law Judge.
2. The Administrative Law Judge implicitly
found that Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to reinstate seven unfair
labor practice strikers after they had made an un-
conditional offer to return to work. Accordingly,
he recommended that Respondent reinstate these
strikers, with backpay accruing from the date that
Respondent rejected their offer to return to work.
We do not agree with the Administrative Law
Judge's implicit finding on this issue, and therefore
we do not adopt his recommended remedy.
The Administrative Law Judge found that the
strikers made an unconditional offer to return to
work by letter dated June 18, and that Respondent
rejected this offer by letter dated June 27. Counsel
for the General Counsel, however, did not allege in
the complaint or the amended complaint that Re-
spondent had violated the Act by refusing to rein-
state unfair labor practice strikers after an uncondi-
tional offer to return to work. At the outset of the
hearing, counsel for the General Counsel clearly
stated that the only remedy he sought was rein-
statement and backpay for the unlawful discharges
of Jones and Stubbs. He reiterated this at the con-
clusion of the hearing, even while acknowledging
that there were several unfair labor practice strik-
ers who had unconditionally offered to return to
work. Respondent was therefore without notice
that its refusal to reinstate the unfair labor practice
strikers was at issue, and a full record was not de-
veloped respecting such a possible violation of the
Act.
An administrative law judge's authority to
amend a complaint "is clearly limited to those in-
stances where the amendment is sought or consent-
ed to by the General Counsel, or where evidence
has been received into the record without objec-
tion."4 Since counsel for the General Counsel did
not seek to amend the complaint in this regard, and
indeed specifically stated that a remedy was not
being sought with respect to the unfair labor prac-
tice strikers, the Administrative Law Judge erred
in implicitly finding that Respondent violated Sec-
tion 8(a)(3) and (1) by not reinstating the strikers
after an unconditional offer to return to work and
in providing a corresponding remedy.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(3) and (1) of the Act, we shall order that it
cease and desist therefrom and that it take certain
GTE Automatic Electric. Inc., 196 NLRB 902 (1972).
affirmative action to effectuate the policies of the
Act.
Respondent shall offer Robert Jones and William
Stubbs immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed. Respondent shall
also make them whole for any loss of pay resulting
from the discrimination against them by payment
of a sum of money equal to the amount they nor-
mally would have earned from the dates of their
discharges to the date of their reinstatement, less
net interim earnings. Backpay shall include interest
to be computed in the manner prescribed by the
Board in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB
651 (1977). 5
CONCLUSIONS OF LAW
1. White Coffee Corporation is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By discharging Robert Jones and William
Stubbs for engaging in union activities, Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. The strike which commenced on April 25,
1980, was an unfair labor practice strike from that
date and throughout its duration.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
White Coffee Corporation, Queens County, New
York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against, employees because of their membership in,
or activities on behalf of, Local 966, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
5 See, generally, Isis Plumbing d& Heating Co., 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
1026
WHITE COFFEE CORPORATION
2. Take the following affirmative action neces-
sary to effectuate the policies of the National
Labor Relations Act, as amended:
(a) Offer Robert Jones and William Stubbs im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed.
(b) Make Robert Jones and William Stubbs
whole for any loss of earnings they may have suf-
fered due to the discrimination practiced against
them in the manner provided in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its plant in Queens County, New
York, copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 29, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent, immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, or otherwise dis-
criminate against, employees because of their
membership in, or activities on behalf of,
Local 966, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Robert Jones and William
Stubbs immediate and full reinstatement 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 privileges previously enjoyed.
WE WILL make Robert Jones and William
Stubbs whole for any loss of earnings they
may have suffered due to the discrimination
practiced against them by paying each of them
a sum equal to what he would have earned,
less any net interim earnings, plus interest.
WHITE COFFEE CORPORATION
DECISION
PRELIMINARY STATEMENT OF CASE-ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge:
This consolidated proceeding' under the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq. (the
Act), was litigated before me in Brooklyn, New York, on
January 22 and February 18, 1981, with all parties par-
ticipating throughout by counsel and given full opportu-
nity to present evidence, arguments, proposed findings
and conclusions, and briefs. After unopposed extensions
of time to file briefs on applications of counsel, briefs or
letters in lieu of briefs were received by April 7, 1981;
those, together with the entire record, have been careful-
ly considered.
The principal issues are whether Respondent violated
Section 8(a)(3) and (1) of the Act through discharging,
and failing and refusing to reinstate, or offer to reinstate
its employees Robert Jones and William Stubbs because
they exercised their rights under the Act by engaging in
protected concerted activities, and whether a work stop-
' Complaint in Case 29-CA-7963 dated May 29. growing out of a
charge filed on Apnl 24, 1980, by Local 966, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and
consolidated amended complaint in Cass 29-CA-7693 and 29-CA-7990,
dated June 6, based on an additional charge filed May 7, 1980, by Wil-
liam Stubbs in Case 29-CA-7990.
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
page and strike of Respondent's employees resulting
therefrom was or became an unfair labor practice strike.
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCI.USIONS
I. JURISI)ICTIION
At all material times, Respondent has been and is a
New York corporation engaged in processing, selling,
and distributing coffee, tea, herbs, and related products
at and from its principal office and place of business in
the borough and county of Queens, city and State of
New York, where, during the representative year imme-
diately preceding issuance of the consolidated amended
complaint, it purchased and received in interstate com-
merce directly from States other than New York over
$50,000 worth of such products.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that,
at all of those times, Local 966, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union), has been and is a labor
organization within the meaning of Section 2(5) of the
Act.
II. AL IEGED UNFAIR LABOR PRACTICES
A. Facts as Found
1. Background
Respondent Employer imports, roasts, grinds, and fla-
vors raw coffee beans which it then packages, sells, and
distributes to restaurants and other users. Respondent
conducts its business in and from its Queens County,
New York City, plant, consisting of a building approxi-
mately 300 feet by 75 feet containing a truck loading
area (25 feet by 35 feet) whence a doorway leads to an
L-shaped area (75 feet by 75 feet) comprising the coffee
bean roasting and packaging area; an accessory coffee
bean storage and general storage area (75 feet by 100 to
125 feet); a storage room (25 feet by 40 feet); a coffee
spray area (15 feet by 15 feet); a general coffee machine
repair shop (25 feet by 15 feet); and a general office area
(50 feet by 20 feet). There is also an outside parking lot
(75 feet by 75 feet). According to Respondent's plant and
production manager, Smolin, the entire production area
is 50 feet by 75 feet. In what is called the flavoring de-
partment, roasted coffee beans are fed into a pan and
flavor-sprayed (e.g., cinnamon, cherry, orange, etc.) from
a bottle while the beans are slowly stirred by a hand
scoop or paddle.
Respondent's principal and president is Irwin White,
and its plant and production manager and foreman in
overall charge of its production operations and personnel
is Seymour Smolin, who testified that he constantly
walks through the plant to assure that employees are per-
forming their work properly and that he observes each
employee 10 to 30 times daily. Smolin has a desk just
inside the truck loading area, and another which he
shares with employee Robert Jones in the center of the
50- by 75-feet production area where most of the em-
ployees work within his view. Respondent's plant work
force consists of about a dozen (or perhaps as many as
18) production and maintenance employees and 7-8
truckdrivers, all functioning under Smolin's supervision.
Respondent's discharge of two of those production em-
ployees, Robert Jones and William Stubbs, under circum-
stances to be described, resulted in the filing of the
charges which gave rise to the instant proceeding.
2. Respondent's discharge of Robert Jones
Robert Jones entered Respondent's employ at the be-
ginning of January 1980, functioning thereafter as an
order picker, coffee flavorer, and delivery preparer.
About 20 percent of his time, but on some days none at
all, was devoted to flavoring coffee. At least five other
employees also flavored coffee, a "very simple oper-
ation" requiring little if any skill.
Jones' work history remained unremarkable until he
attempted-at the beginning of April 1980 at the behest
of one of Respondent's truckdrivers who complained he
was "tired and fed up" with Respondent's treatment of
its employees-to solicit fellow production employees to
sign the union authorization cards of the Charging Party
Union for collective-bargaining purposes. In the course
of the ensuing 2-week period in early April 1980, Jones
distributed 11 union cards amongst Respondent's produc-
tion employees, receiving 10 back filled in and signed.
On April 14, Jones and several fellow employees met
with the union representative at the Union's premises,
where the employees described the perceived inadequa-
cies of their existing terms and conditions of employ-
ment, and the objectives and mechanics of the union or-
ganizational attempt were explored, including the
Union's intention to request Respondent to engage in
collective bargaining with it.
Soon on the heels of the foregoing, on or about April
18, Jones received a complaint from Plant Manager
Smolin that skids were being left in the aisles. Although
these had been left there by packagers and Jones ex-
plained that he had not yet had time to move them,
Smolin began shouting at Jones, provoking Jones to re-
spond in like tones.2 On the very same day, while Jones
was flavoring coffee as usual, Smolin again approached
Jones and told him that a customer had complained
about the taste of coffee he had received, so Smolin
asked Jones to show him how he was doing it. Smolin
expressed approbation following Jones' demonstration. A
few days later, however, Respondent's principal, Irwin
White, asked Jones also to show him how he was flavor-
ing coffee. After Jones demonstrated it to White, the
latter also expressed general approbation, while remind-
ing him not to spray the flavor on the coffee beans too
2 Although the incident, seemingly unparalleled in the previous work
history, ended peaceably, without admonition or warning from Smolin, a
few days later Jones apologized to Smolin, who again said nothing fur-
ther about it.
1028
WHITE COFFEE CORPORATION
heavily, and White left after complimenting Jones on the
neatness of his work area.3
Also during the second week of April, Jones asked
White for a pay increase. Expressing no adverse reaction
to his work performance or the request, White referred
Jones to Smolin. 4 When Jones then spoke to Smolin
about it, Smolin told him to bring it up a week later.
When Jones did so, Smolin indicated he was thinking
about it. According to Jones, Smolin told him on April
23 that he had put him in for a raise but that it would
have to await the return of the company bookkeeper the
following week. 5
On April 23, Jones collected five signed union cards
from fellow employees in the warehouse and back area
during the course of the day until the end of the after-
noon.
When Jones reported to work at 7:45 a.m. on Thurs-
day, April 24, he was met at the timeclock by Smolin,
who asked him whether he had received a telegram the
previous evening. Jones said no.8 Smolin thereupon
handed Jones a check and told him his services were no
longer required. When Jones asked him why,7 Smolin
replied that it was because Jones had been "fooling
around yesterday in the back area.8 . . . That's all I can
tell you" and would say no more.
3 Although White denies this episode or, indeed, that he at any time
discussed Jones' work performance with him, on the basis of comparative
testimonial demeanor observations, considering that both White and
Jones are interested witnesses, I prefer and credit the testimony of Jones
Observing Jones as he testified, I find it difficult to believe that Jones
simply invented the described episode, nor is there persuasive basis for
why he would. It is, moreover, noted that although White denied the de-
scribed episode on both direct and cross-examination, on later cross-ex-
amination he conceded that "I may have told him something. I don't re-
member specifically" Under these circumstances, I prefer and credit
Jones' superior recollection.
4 For reasons already explicated (fn 3, supra), I credit Jones' testimony
in preference to White's denial that this occurred.
5 Smolin's version is that he refused Jones' request for a raise because
he was "not doing your job properly"--meaning that Jones was not
maintaining his storage area properly and was pouring instead of spraying
flavoring substance on the coffee beans. Although, according to Smolin
on direct examination, this provoked the rejoinder from Jones that "I'm
doing a good f-ing job and [you're] a son of a bitch," by cross-examina-
tion time Smolin altered or embellished this to add that Jones told him,
"[You arel no f-king good."
6 There is in evidence a Western Union "mailgram" stating it is "a
confirmation copy of the following [telephone?] message" to Jones, seem-
ingly logged in at 4:45 p.m. on April 23: "Do not report to work any
more as of Thursday 4-24-80. Your services are no longer required."
(Resp. Exh. 2). However, a Western Union report to Respondent con-
cerning this mailgram seemingly indicates that it was indeed not deliv-
ered, since it states that Jones was "unknown" at the address given
(Resp. Exh. 3).
Respondent's regular payday is on Friday, not Thursday.
7 I do not credit Smolin's testimony that Jones did not ask him why he
was being fired. The testimony of Respondent's witness and Shipping
Manager Jack Levy, that he neither participated in nor heard any con-
versation between Smolin and Jones on the occasion in question, while
Levy was checking delivery trucks in his normal morning routine, about
30 feet distant from the timeclock, with an intervening wall, does not de-
tract from this finding, particularly since, as pointed out by Respondent's
counsel in another connection, Levy is hard of hearing.
8 This could only have been a reference to Jones' distribution and so-
licitation of union cards in the "back" of the plant, i.e., the warehouse,
dressing room, loading space, men's room, and roasting areas, where he
had distributed and solicited signatures on those cards, and where he had
collected five signed cards from fellow employees on April 23, the day
he was summarily discharged by Respondent's April 23 mailgram.
White (according to his testimony) instructed Smolin
to fire Jones because "he was not performing his work
properly and was incompetent." In no way has this been
credibly established; indeed, the substantial credible
proof is to the contrary. According to Smolin, on April
23 he observed Jones pouring, instead of spraying, fla-
voring substance on the coffee beans as he had previous-
ly been instructed to do.9 I credit Jones' testimony that
after he had been instructed, long prior to April 23, to
spray the flavoring on he consistently followed that
practice. There is no substantial credible proof that he
was in any respect not doing his job properly.
3. Sequel to Respondent's discharge of Robert
Jones: Protest strike by Jones' fellow employees
Jones immediately notified his union representative of
the circumstances of his discharge, and followed his
advice to meet him at the Union's office and thence to
proceed to the NLRB Regional Office to file an unfair
labor practice charge. They then returned to a park near
the plant, where they met with Jones' fellow employees
after the end of their shift at or around 4:45 p.m. There,
after Union Representative McCarthy reviewed the situ-
ation and Jones' discharge with the assembled dozen or
so plant employees, they unanimously voted to go on
strike the following day (Friday, April 25) in protest to
"get Robert [Jones] reinstated and for us . . . to be rec-
ognized as a union," they having unanimously agreed at
that April 24 afternoon meeting to "stick together be-
cause if he's going to do it to one he'll do it to [us] all, so
if he [i.e., Irwin White, Respondent's principal] refuses to
reinstate him [i.e., Robert Jones] we had better walk at
that point and time, hit the street." And, because White
totally ignored all attempts to talk to him, the employees
thereupon did indeed carry out their resolution, with
about 10 employees-including William Stubbs, discussed
below-picketing Respondent's premises commencing
around noon, April 25, under the observation of Smolin
and White, the latter walking past the individual picket-
ers with pen and paper and making notes.10 Prior to
starting the picketing, according to the credited testimo-
ny of Union Trustee and Representative McCarthy,
when the latter approached White to discuss Jones' dis-
charge and the Union's representative status, White re-
mained mute and simply walked away.t I When McCar-
9 Flavoring substances which come in gallon jugs are funneled off into
quart plastic spray bottles equipped at the top with a plunger
' The foregoing is based substantially on the testimony of Robert
Jones, whom I observed to be a singularly straightforward and impres-
sive witness whose testimony is worthy of credit. Jones' testimony was in
part corroborated by the credited testimony of his fellow employee Wil-
liam Stubbs and Union Trustee and Representative Glenn C. McCarthy,
likewise witnesses of excellent quality.
"1 I do not credit White's testimony flatly denying that this ever oc-
curred, and that his first intimation as to any union activity or interest
came totally "out of the blue" when he observed the picketing employ-
ees. I am also not favorably influenced by the fact that, notwithstanding
White's denial on direct examination, he conceded on cross-examination
that Union Representative McCarthy did indeed speak to him, but that he
did not respond to McCarthy. This would appear to border on a seeming
attempt to mislead through the device of blandly denying under oath on
direct examination that a "conversation" had occurred between him and
McCarthy, on the theory that since he did not respond to McCarthy
Continued
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thy later that day, after the picketing had started, again
attempted to discuss the situation with White, the latter
merely called him a "son of a bitch."
Although the picketing, with signs stating, "Local 966,
IBT, White Coffee Unfair, On Strike-Please Cooper-
ate," continued for many weeks, but had been discontin-
ued by the time of the instant hearing, the strike has con-
tinued, and Respondent has not permitted the striking
employees to return to work, notwithstanding their un-
conditional written offer on June 18, 1980 (Resp. Exh.
4), to do so. That offer'2 was refused by Respondent by
its counsel's letter of June 27, 1980 (Resp. Exh. 5), stat-
ing:
This is to advise that the employees set forth in
your letter [of June 18 unconditionally offering to
return to work] who quit their jobs have been re-
placed and, furthermore, by reason of their unlaw-
ful activities in which they have engaged since on
or about April 25, 1980, they have forfeited any
rights which they may have had to their former
jobs at White Coffee Corporation.
Respondent's president Irwin White expressed his theory
at the hearing that his employees (other than Jones) had
"quit" their jobs by engaging in a strike and picketing,
thereby "abandoning" their jobs. There is no evidence
that the striking employees quit or abandoned their jobs,
or that they engaged in any unlawful activities.
4. Respondent's discharge of William Stubbs
William Stubbs entered Respondent's employ in or
about November 1974, and was continuously employed
there for 5-1/2 years until his precipitate discharge when
he joined the described employees' strike on April 25 fol-
lowing his fellow employee Robert Jones' discharge
under the circumstances set forth above.
Stubbs was a general warehouse helper, operated a
coffee bagging machine, unloaded coffee trucks, operat-
ed a Hi-Lo device, was an order picker, processed mer-
chandise orders, prepared consignments for delivery, and
also (after his first 3 years on the job) roasted coffee.
On or about April 23, 1980, while traveling home with
Jones, at the latter's solicitation Stubbs signed a union
card. Stubbs was among the employees who assembled
in the park after the April 24 workday and who voted to
strike in protest against Jones' discharge earlier that day.
Stubbs' annual one-week vacation had been scheduled
to start at noon on Friday,' April 25 to May 5, 1980.
Prior to that, Respondent's principal, Irwin White, as
well as its bookkeeper, Harriet Flax, had acceded to this
scheduling. On Friday, April 25, after reporting to work
around 8 a.m. as usual, Stubbs started coffee roasting op-
erations since the regular roaster was attending his wife
who was in labor. Early in the morning Stubbs reminded
Smolin that he was scheduled to leave on vacation at
what occurred did not satisfy the technical requirements of a "conversa-
tion" and therefore need not be disclosed in his direct testimony.
ia Respondent conceded, upon the record, that all of the nine employ-
ees enumerated in the unconditional offer to return to work were on
strike at the time of that offer (June 18, 1980).
Is Commencing a week's vacation at noon on Friday was a not unusu-
al practice at the plant.
noon. After receiving his paycheck from Smolin at or
around 9:45 a.m., Stubbs did not join the employees
when they started to picket, indicating he would not do
so until his roasting work was completed and orders
readied for Monday (April 28). When he had accom-
plished this shortly prior to noon, he joined the other
employees and picketed that afternoon, under the obser-
vation of Respondent's principal, White, who took notes
on a pad.
On Monday, April 28, during Stubbs' vacation, Re-
spondent dispatched a letter to Stubbs (G.C. Exh. 3) stat-
ing:
You have failed to report to work. We are in the
process of obtaining replacements.
In the event we obtain a replacement for you prior
to your offer to return to work, you future employ-
ment will be subject to the provisions of the law
concerning employees who fail to report to work in
the course of a job. 1 4
Seemingly this letter was received by Stubbs on his
return from vacation; he did not picket during that week
(April 28-May 5), and he at once telephoned Smolin on
May 5 and asked him whether he could return to work.
Smolin said no, adding:
Willie, if you hadn't wore [sic] a picket sign that
Irwin [White] would probably let you come back to
work. l s
Smolin did not, however, say that Stubbs had been re-
placed. And Stubbs was paid for his week's vacation of
April 28-May 5, notwithstanding Respondent's afore-
quoted letter of April 28 (G.C. Exh. 3).
The next day, May 6, Stubbs visited the plant in
person. Smolin indicated he would speak to White about
giving Stubbs his job back. However, Smolin soon re-
turned and told Stubbs, who had worked steadily for Re-
spondent for 5-1/2 years, that White would not rehire
him because he had picketed. At no time did Smolin in-
dicate that a replacement had been hired for Stubbs. At
no time has Stubbs been told that he had been replaced.
But also at no time since he joined the picketing on the
afternoon of Friday, April 25, has Stubbs (or any other
picketing employee) been permitted to come back to
work for Respondent. Stubbs continued picketing on his
return from vacation, concededly so observed by Re-
spondent's president, Irwin White.
'4 Respondent's president, Irwin White, testified that a similar letter
was sent by Respondent to all strikers/picketers, at the close of the day
of April 28. He also tesified that, contrary to the wording of that letter
that "We are in the process of obtaining replacements," all strikers had
been replaced that morning (April 28) before the letter was sent out.
Later, however, on cross-examination, White testified that all replace-
ments had been hired on April 25 and that all were still there as of the
date of the instant hearing; still later modifying this to state that "We
may have replaced . . . two or three [replacements on or about] the 30th
of April or maybe the Ist of May [1980]."
's Upon comparative testimonial demeanor observations, I credit
Stubbs' testimony that Smolin told him this, in preference to Smolin's
denial. As shown below, there were substantial inconsistencies between
Smolin's testimony on direct and on cross-examination.
1030
WHITE COFFEE CORPORATION
B. Discussion and Resolution
1. Jones
As to Jones, Respondent's defense is that he was dis-
charged for unsatisfactory performance of his job-spe-
cifically for allegedly persisting, contrary to Smolin's
instructions, in flavoring coffee by pouring, rather than
spraying, flavoring substance upon coffee beans. For a
number of reasons I conclude that this defense does not
hold water. To begin with, coffee flavoring was only one
of many chores performed by Jones, and there is no con-
vincing proof that he was performing any of them, in-
cluding coffee flavoring, in a less than acceptable fash-
ion. For practical purposes, Respondent's claim of Jones'
inefficiency is substantially confined to his coffee flavor-
ing activities. In that connection, the following are
noted. (1) According to Jones' testimony, which I prefer
and credit to that of Smolin,t 6 after he was instructed by
Smolin in January 1980 (soon after Jones started work)
to spray rather than pour flavoring substance on coffee,
at all times thereafter Jones did so, i.e., confined himself
to spraying flavoring substance on coffee he flavored. 17
(2) Although Respondent testified, through less than sat-
isfactory witness Smolin, ts that customers were return-
ing coffee for unsatisfactory flavor, no details as to any
such alleged "returns" or the true reason (or reasons)
therefor were supplied. Not a single such "customer"
was produced or even identified by name. Nor was any
detail provided as to the specific reason for the asserted
but unproven returns. It is a matter of common knowl-
edge and experience that coffee may not taste "right" to
a particular person or be pleasing to a particular palate,
for a variety of reasons-not limited to how it was or
was not "flavored" by the coffee roaster, but, for exam-
ple, how it was brewed or prepared before being dis-
pensed or served. It would thus be suppositious in any
event to link the alleged returns to any fault on Jones'
part. (3) It was not Jones alone who flavored the coffee.
Credited testimony of Jones, corroborated by credited
,I Observing him closely as he testified, I was impressed with Jones'
caliber as a forthright and honest witness testifying truthfully On the
other hand, Smolin, a somewhat evasive, combative witness given to
overstatement, testified on cross-examination differently from his testimo-
ny on direct examination. For example, although Smolin had testified on
direct examination that after he turned down Jones' request for a raise,
Jones told him, "[You're] a son of a bitch," on cross-examination he ap-
peared to embellish this to "[You're] a son of a bitch and no f-ing
good"; and, whereas on direct examination he had testified that on April
23 he told Jones "You know you're not supposed to do it that way," on
cross-examination he swore that what he told Jones was "You're pouring
flavor from the gallon bottle right on the beans." Furthermore, contrary
to Respondent's April 28, 1980, letter (G.C. Exh. 3) to Stubbs that "We
are in the process of obtaining replacements. In the event we obtain a
replacement for you prior to your offer to return to work . ... " Smolin
swore insistently that Stubbs was replaced on April 28 before the letter
was even sent to him.
17 No reason is apparent why Jones should or would deliberately vio-
late Smolin's instructions. I do not credit Smolin's theory that Jones did
so because it was "faster," considering the practicalities of the situation,
the apparent absence of any quantitative production quota work require-
ment, the described awkwardness of pouring from a gallon container jug
vis-a-vis the simplicity of merely pressing a plunger on a much smaller
and less cumbersome container in order to spray, and, finally, my assess-
ment of the comparative testimonial demeanor of Jones and Smolin as
observed.
Is See fn. 16, supra.
testimony of Stubbs, establishes that various employees 'i
other than Jones also regualarly flavored coffee. For this
additional reason it would be suppositious to link the al-
leged returns to Jones.
The objective and undeniable fact of the matter is that
it was not until Jones had undertaken leadership of the
union organizing activities-a right guaranteed to him by
the Act-that his job performance suddenly came under
withering and fatal fire. This would represent a startling
time coincidence which, under the circumstances, I am
not prepared to accept. Cf., e.g., N.L.R.B. v. Reinauer
Fuel Transportation Corporation, 661 F.2d 910 (2d Cir.
1981); N.L.R.B. v. Sequoyah Mills, Inc., 409 F.2d 606
(10th Cir. 1969); N.L.R.B. v. Dorn's Transportation Co.,
Inc., 405 F.2d 706, 713 (2d Cir. 1969); Tele-Trip Company
Inc. v. N.L.R.B., 340 F.2d 575, 579-580 (4th Cir. 1965);
N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497,
502 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957). See
also N.L.R.B. v. Long Island Airport Limousine Service
Corp., 468 F.2d 292, 295 (2d Cir. 1972). A key element in
employee discharge cases is the intent of the employer to
abort union activity. "Obviously the discharge of a lead-
ing union advocate is a most effective method of under-
mining a union organizational effort." N.L.R.B. v.
Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (5th
Cir. 1965).
Respondent further contends that it was wholly un-
aware of Jones' union organizational activities and there-
fore could not have discharged him for that reason.
However, for reasons already explicated preferring the
testimony of Jones to that of Smolin, Smolin's statement
to Jones that Jones was being fired for "fooling around
yesterday in the back area"-a clear allusion to Jones'
union organizational activities there on the day on which
it notified him by mailgram after he had left work that
he was discharged-show that Respondent, through at
any rate its plant manager, Smolin. was not only well
aware of Jones' union organizational activities prior to
his discharge, but also that, indeed, it fired him for that
very reason. Upon this basis, as well as for the reason
that since Jones' organizational activities in soliciting and
obtaining signatures on union cards were carried out
without concealment in this small plant,2 0 essentially if
not wholly in a relatively small area regularly patrolled
by Smolin (according to Smolin's own testimony), I find
1S At least five, including Fowler, Perrilli, Holland, and Santiago, as
credibly testified to by Jones on rebuttal without contradiction.
20 In view of Respondent's actual knowledge of Jones' union organiza-
tional activities, as established by Jones' credited testimony concerning
Plant Manager Smolin's admissions in that regard, it is unnecessary to
impute such knowledge to Respondent under the so-called "small plant
doctrine." Cf, e.g., N.L.R.B v. Long Island Airport Limousine Service
Corp., 468 F.2d 292, 295 (2d Cir. 1972); American Spring Bed Manufactur-
ing Company. d/b/a American Chain Link Fence Co., 255 NLRB 693
(1981); Overnite Transportation Company, 254 NLRB 132 (1981); Dynacor
Plastics d Textile Div. of Medline Industnes Inc., 218 NLRB 1404, 1412
(1975); Malone Knitting Company, 152 NLRB 643, 647 (1965), enfd. 358
F.2d 880, 883 (Ist Cir. 1966); Wiese Plow Welding Co.. Inc., 123 NLRB
616, 618 (1959); Abbott Worsted Mills Inc., 36 NLRB 545 (1941), enfd.
127 F.2d 438 (Ist Cir. 1942).
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent was in fact aware of Jones' protected
organizational activities prior to his discharge.21
For these reasons, it is found that Jones would not
have been discharged but for his union organizational ac-
tivities, and that Respondent has failed through substan-
tial credible evidence, as required,2 2 to rebut the General
Counsel's prima facie showing that Jones' discharge
under the described circumstances was violative of Sec-
tion 8(a)(3) and (1) of the Act.2 3
2. Stubbs
Certainly as to Stubbs, whom Respondent concededly
observed picketing its premises commencing on the after-
noon of April 25, the day after Jones' discharge, Re-
spondent makes no contention that it was unaware of his
union activities.
Respondent's defense as to Stubbs is that he was
merely an economic striker who was replaced when he
failed to return to work.2 4 However, Respondent's own
letter of April 28, 1980, to Stubbs (G.C. Exh. 3)-which
President White testified was mailed to Stubbs at the end
of the afternoon of that day (April 28)-that "We are in
the process of obtaining replacements," is contradicted
by the testimony of White as well as that of Plant Man-
ager Smolin, both of whom swore that Stubbs (as well as
all other strikers) was replaced no later than the morning
of April 28, i.e., before the letter of April 28 was dis-
patched (as testified to by Respondent's principal, Irwin
White), thereby making it impossible for Stubbs and the
other striking employees to avail themselves of the "op-
portunity" Respondent was professing to offer them in
its April 28 letter "to return to work." Under these cir-
cumstances, it is difficult to escape the conclusion that
Respondent intended to and indeed had already terminat-
ed or that it regarded as terminated-notwithstanding its
letter of April 28-Stubbs (as well as all of the other
striking employees) simply because they had gone out on
strike. Indeed, Respondent's counsel's letter of June 27,
1980 (Resp. Exh. 5), in response to the Union's letter of
June 18, 1980 (Resp. Exh. 4), unconditionally offering all
employees to return to work, comes close to so stating,
as did Respondent's principal, Irwin White, at the hear-
ing and as does Respondent's position in closing argu-
ment, viz, that the employees had "quit" (Resp. Exh. 5)
their jobs through their strike action without more. This,
however, flies in the face of the Act, which guarantees
employees the right to do so free from such reprisals as
21 Since Respondent disclaims all knowledge as to Jones' organization-
al activities, there is no contention or evidence that these were carried on
during working time or otherwise improperly or in violation of work
rules.
22 Administrative Procedure Act, 5 U.S.C. Secs. 556(d) and 706(2XE);
Wright Line, infra at fn. 23.
23 Cf., e.g., N.LR.B. v Lloyd A. Fry Roofing Company. Inc. of Dela-
ware, 651 F.2d 442 (6th Cir. 1981); Shattuck Denn Mining Corp. v.
N.LR.B., 362 F.2d 466 (9th Cir. 1966); Heartland Food Warehouse, Divi-
sion of Purity Supreme Supermarkets, 256 NLRB 940 (1981); Wright Line,
a Division of Wright Line, Inc., 251 NLRB 1083 (1980).
24 This places the best possible face on Respondent's contention since,
as shown above, Respondent wrote Stubbs during his vacation (G.C.
Exh. 3) that he was in process of being replaced for having "failed to
report to work" on April 28.
job loss.2 5 26 Furthermore, since, based on my close ob-
servations of his testimonial demeanor, I am persuaded
that Stubbs was essentially 27 credible; again in contrast
to my observations about Smolin, 2 8 I credit Stubbs' as-
sertions, in preference to Smolin's denials, that Stubbs
did indeed ask Smolin why he was being fired; that
Smolin did indeed remark to him that "Willie, if you
hadn't wore [sic] a picket sign that Irwin [White] would
probably let you come back to work"; and also that,
when Stubbs visited the plant personally a day later to
reclaim his clothes, Smolin did indeed tell Stubbs that
White would not rehire him because he had picketed. I
find Smolin's outright denials that Stubbs ever asked him
why he was being or had been fired to be singularly un-
persuasive and incredible, particularly considering the
fact that Stubbs had been in Respondent's employ for
some 5-1/2 years. Under these circumstances, it is so un-
likely as to be well nigh incredible on its face that Stubbs
would not even have asked why he was suddenly being
fired.
Again in the case of Stubbs, as in the case of Jones,
Respondent's explanation "fail[s] to stand under scruti-
ny" (N.L.R.B. v. Dant, 207 F.2d 165, 167 (9th Cir. 1953))
and the only feasible explanation that remains 29 is that
his union activity, even after 5-1/2 years of satisfactory
employment, cost him his job. Since, as in the case of
Jones, Respondent has thus failed to rebut the General
Counsel's prima facie case, it is likewise in this aspect de-
termined that Respondent through its discharge of
Stubbs violated Section 8(a)(3) and (1) of the Act.
3. Character of the strike as an unfair labor practice
strike
It is crystal clear under the circumstances presented
that the strike which started on April 25, on the heels of
the discharge of the Union's organizational leader, Jones,
was provoked and precipitated by Jones' discharge, and
that throughout its further course that remained its root
cause and that it retained that character. Since it was not
an economic strike, but was provoked and occasioned by
Respondent's discharge of Jones, and, since that dis-
charge was properly regarded as an unfair labor practice
in violation of the Act, the strike itself was, has re-
25 Secs. 1, 2(3), 7, and 8(a)(1) and (3); N.L.R.B. v Gissel Packing Co.,
Inc., 395 U.S. 575, 618 (1969); N.LR.B v. Washington Aluminum Compa-
ny, Inc., 370 U.S. 9 (1962). See also cases cited infra at fns. 30, 33, and 34.
28 In this connection, it is observed that, during closing argument, Re-
spondent indicated it remains unwilling to accord the striking employees
even so much as preferential hiring status if any of their jobs open up
(which it would have to accord them even if they were only economic,
as distinguished from unfair labor practice, strikers; cf. The Laidlaw Cor-
poration, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970))-now claiming additionally that they forfeit-
ed that right through alleged strike misconduct in no way shown here.
(Respondent maintains that the issue of strike or picketing misconduct is
reserved to it for litigation in any backpay proceeding supplemental
hereto, if reached.)
27 Typical and insubstantial difficulties as to specific dates aside. These
difficulties are regularly encountered among witnesses and, particularly in
the case of a patently honest witness like Stubbs, do not in my estimation
detract from his credibility.
28 See fn. 16, supra
29 Cf. Wright Line and other cases cited supra at fn. 23.
1032
WHITE COFFEE CORPORATION
mained, and is an unfair labor practice strike. 3 0 Accord-
ingly, the striking employees did not lose their character
as employees under the Act, Respondent did not have
the right by reason thereof to terminate or permanently
replace them or to regard or treat them as having "quit"
their jobs or its employ, and Respondent is required
upon the record here presented to restore them to those
jobs (or, if not available, equivalent jobs) and to make
them whole, to the extent required by law, for the conse-
quences of its actions.
It is found and determined that the strike which in-
cepted on April 25, 1980, under the circumstances de-
scribed, was, remained, and is an unfair labor practice
strike, and that all striking employees therein were and
are unfair labor practice strikers. 3 '
Upon the foregoing findings and the entire record, I
state the following:
CONCILUSIONS F01 LAW
A. Jurisdiction is properly asserted in this proceeding.
B. Through its actions as described in section III,
supra, terminating the employment of and at all times
since then failing and refusing to reinstate or rehire its
employees Robert Jones and William Stubbs under the
circumstances there set forth, Respondent has discrimi-
nated and continues to discriminate in regard to the hire,
tenure, and terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) of the Act;
and has thereby, further, interfered with, restrained, and
coerced employees in the exercise of their rights under
Section 7, in violation of Section 8(a)(l) of the Act, and
continues so to do.
C. The foregoing unfair labor practices and each of
them have affected, are affecting, and unless permanently
restrained and enjoined will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
D. The strike of Respondent's employees which com-
menced on April 25, 1980, was precipitated, provoked,
and caused by Respondent's aforedescribed unfair labor
practice on April 24, 1980, in discharging Robert Jones,
leader of the union organizational activities among Re-
spondent's employees, and was in its inception and has
continued since then to be and is an unfair labor practice
strike, and has been prolonged and is continuing to be
prolonged by reason of Respondent's unfair labor prac-
tices as described and found herein.
THE REMEDY
Having been found to have terminated the employ-
ment of employees Robert Jones and William Stubbs in
violation of Section 8(a)(3) and to have interfered with,
restrained, and coerced them and other employees in the
exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act, Respondent should, as is usual in such
cases, be required to cease and desist from continuing
30 Cf., e.g., Jacques Syl Knirwear, Inc., 247 NLRB 1525 (1980); King
Radio Corporation, Inc., 172 NLRB 1051 (1968), enfd. 416 F.2d 569 (10th
Cir 1969), cert. denied 397 U.S. 1007 (1970): D'Armigene. Inc., 148
NLRB 2 (1964), enfd. 353 F.2d 406 (2d Cir. 1965)
31 See, e g., cases cited supra at fn. 30
these or other such violations, offer the discharged em-
ployees 3 2 reinstatement, and recompense those employ-
ees with backpay and interest at the adjusted prime inter-
est rate as currently calculated by the Internal Revenue
Service on tax delinquencies, computed as explicated in
F. W. Woolworth Company, 90 NLRB 289 (1950): Isis
Plumbing & Heating Co., 138 NLRB 716 (1962); and
Florida Steel Corporation, 231 NLRB 651 (1977). The
backpay of Robert Jones should be calculated as of the
date of his actual discharge, April 24, 1980; that of Wil-
liam Stubbs, as of the date of his constructive discharge,
May 5, 1980, when, upon the expiration of his I week's
paid vacation, he was not permitted to resume the job he
had held for 5-1/2 years although he asked to return.
As to Respondent's other employees here found to be
unfair labor practice strikers, Respondent should be re-
quired to reinstate them, if necessary discharging their
replacements if any, 33 and to recompense them with
backpay and interest, calculated as set forth above, from
the date they offered unconditionally to return to work,
i.e., June 18, 1980.3 4
Respondent should also, as customary, be required to
preserve and open its books and records to the Board's
agents for backpay computation and compliance determi-
nation purposes. In view of the serious nature of the vio-
lations here, discriminatory discharges for exercising
rights guaranteed by the Act, and Respondent's intransi-
gent continuing insistence that its striking employees-
likewise exercising rights guaranteed by the Act-have
"quit their jobs" and "have forfeited any rights which
they may have had to their former jobs" (Resp. Exh. 5),
Respondent should further be ordered to cease and desist
from in any way violating its employees' rights under the
Act,3 s since those violations go to "the very heart of the
a2 Respondent concedes that it discharged Jones. Respondent's failure
and refusal to permit Stuhbs to return to his 5-1/2-year-old job on May 5
when his week's vacation was over, for the reason that he had engalged
in picketing. was equivalent to a discharge.
:':1 .':I..R. s Mackay Radio & Telegraph (o.. 30(4 US 333 (1938);
N.51.R.. v Pope Mainrenance Corp., 573 F.2d 898, 9)7 (Sth Cir 1978);
NL.R.B. v Fotochromme, Inc., 343 F.2d 631, 633 (2d Cir. 1965). cert
denied 382 U.S 833
3' See Resp. Exh. 4 The striking employees, aside from Jones and
Stubbs, so offering were Jeffrey Shettlewood, Terrence Daniel, William
Paulides, Jerry Fowler, Donald White, Alfonso D Holland, and Vincent
Santiago. Although unfair labor practice strikers are normally entitled to
backpay commencing 5 days after their unconditional offer to return to
work (Harris-Teeter Super Markets. Inc., 242 NLRB 132, fn 2 (1979)),
where, as here (Resp Exh. 5). the employer clearly indicates that it will
not reinstate them, the backpay obligation commences as of the date of
the employees' unconditional offer to return 0 & F Machine Productv
Company. 239 NLRB 1013. fn. 3 (1978); Harris-Teeler. supra.
Even if the strikers here had been economic strikers, the effect of Re-
spondent's June 27 letter (Resp. Exh. 5), refusing to regard them as em-
ployees, would have had the effect of converting such an economic strike
to an unfair labor practice strike, entitling them to backpay as well as re-
instatement. Cf., e.g., Raimund Corssen Co., Inc.. d/b/oa Raycor Co., 249
NLRB 565 (1980). See also NLR.B. v. W C. McQuaide, Inc., 617 F.2d
349 (3d Cir. 1980); % NLR.B. v. United States Cold Storage Corporation,
203 F.2d 924 (5th Cir 1953), cert. denied 346 U.S 818 (1953); King Radio
Corporation. Inc., 172 NLRB 1051, 1071. 1074. fins 61 and 64 (1968), enfd.
416 F.2d 659 (lOth Cir. 1969), cert. denied 397 U.S. 1007 (1970); The
Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir
1969), cert. denied 397 US. 920 (1970); NL.R.B. v Fleerwood Trailer Co..
Inc., 389 US 375, 378 (1967); N.LR.B. v. Great Dane Trailers, Inc., 388
US. 26, 32-34 (1967)
as Cf., e.g., NLR.B. v Entwistle Mfg. Co., 120 F 2d 532, 536 (4th Cir.
1941).
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act."3 6 Finally, Respondent should be required to post
on its premises the usual informational notice to employ-
ees, as well as to mail copies to the strikers whom it has
refused to take back into its employ.3 7
The Charging Party Union additionally seeks an elec-
tionless bargaining order in view of the egregious nature
of Respondent's unfair labor practices, citing N.L.R.B. v.
Gissel Packing Co., Inc., supra at 613-614; and United
Dairy Farmers Cooperative Assn. v. N.L.R.B., 633 F.2d
1054 (3d Cir. 1980). The General Counsel, on the other
hand, seeks no such relief. Because I am unaware of any
36 A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071 (1970)
"a This is to assure that those employees, no longer working at Re-
spondent's plant, are apprised of this Decision. See Creative Engineering.
Inc., 228 NLRB 582, 583 (1977).
case in which the Board has issued an electionless bar-
gaining order in the absence of proof of union majority
status in the bargaining unit, and since there is not only
no established union majority but not even any union
bargaining authorization cards in evidence-although
there is credible indication that some such were signed-
and considering that it is to be presumed that the Gener-
al Counsel, having the laboring oar in the prosecution of
this proceeding, would have presented such proof if
available and pressed such contention if warranted, cou-
pled with the final fact that not even the Charging Party
was presented such proof, I will not recommend inclu-
sion of a bargaining order under the circumstances.
[Recommended Order omitted from publication.]
1034