William O. McKay Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 388 (N.L.R.B. 1973)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William O . McKay Company, Inc. and Local 44, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Indepen-
dent. Case 19-CA-5911
June 22, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 22, 1973, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and a motion for recon-
sideration, and the General Counsel filed
cross-exceptions and a brief in support of the Deci-
sion and cross-exceptions.
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, briefs, and
motion for reconsideration and has decided to affirm
the rulings, findings, and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein and hereby orders that Respondent, William
0. McKay Company, Inc., Seattle, Washington, shall
take the action set forth in said recommended Order,
as so modified.
1 Contrary to that part of the recommended reinstatement order as to the
order of recall of Nordaker and Wendt , we are of the opinion , in agreement
with Respondent , that such order of recall is best left to the compliance stage
of this proceeding
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ. Administrative Law Judge: This case
was tried at Seattle, Washington, on December 7, 1972. The
complaint, based on a charge filed on June 26, 1972, by
Local 44, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Indepen-
dent, herein called the Union, issued on September 29, 1972,
alleging that William O. McKay Company, Inc., herein
called Respondent, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended.
The primary issue is whether Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by failing to reinstate econom-
ic strikers Frank Nordaker and Wilhelm Wendt when work
became available substantially after the end of a strike.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross- examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent , a Washington corporation , with its place of
business in Seattle , Washington, is engaged in the sale and
service of automobiles. During the calendar year preceding
the issuance of complaint , which was a representative peri-
od, Respondent 's sales exceeded $500,000 and Respondent
purchased goods valued in excess of $50 ,000 from directly
outside Washington . Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The setting and the strike
Respondent is a member of the Automotive Employers
Council, herein called the Council. Through the Council,
Respondent has a longstanding collective-bargaining rela-
tionship with the Union and Local 910, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. The Union and Local 910 jointly repre-
sent a group of Respondent's employees which includes
parts countermen.
Respondent, under a franchise with Ford Motor Compa-
ny, sells and services Ford automobiles, and as part of its
operation maintains a parts department. The countermen
sell parts in that parts department. The primary duties of the
countermen are to take orders for parts both in person and
on the phone, find the parts numbers so that they can be
located, and pull the parts from the correct bin. The parts
are sold to customers or are given to mechanics from
Respondent's own shop. In the past the countermen also
stocked the bins, but as is set forth in detail below, some of
that work is now performed by a noncounterman.
On about May 18, 1971, the Union and Local 910 jointly
began an economic strike against Respondent and other
204 NLRB No. 51
WILLIAM O. MC KAY CO. 389
members of the Council. Countermen Frank Nordaker and
Wilhelm Wendt, both of whom are members of the Union,
as well as other employees of Respondent represented by
the Union, participated in the strike. On about June 18,
1971, a collective-bargaining contract was signed and the
Union, on behalf of all the economic strikers, made an
unconditional offer to return to work. On the same day the
Union and Local 910 Jointly agreed with the Council that
the Council's members would rehire the economic strikers
when work became available. By this agreement the parties
intended to confer on the Council and the strikers only
those obligations and rights which the parties had under
existing law and no other obligations or rights. On or about
Monday, June 21, 1971, Nordaker and Wendt each made
unconditional offers to return to work.'
Prior to this strike, Respondent employed nine employees
in its parts department. Seven of these were countermen.
After the strike four countermen were recalled. Neither
Nordaker nor Wendt was recalled.'
The General Counsel does not contend that the reduction
in the number of parts department employees after the
strike was an unfair labor practice. In addition, there is
neither allegation nor proof that Nordaker and Wendt were
unlawfully discriminated against because of their member-
ship in the Union or their participation in the strike. The
only issue raised by the General Counsel relates to the rein-
statement rights of Nordaker and Wendt as economic strik-
ers who had unconditionally offered to return to work.
2. The availability of jobs for Nordaker
and Wendt after the strike
During 1970 Respondent's parts department showed a
loss of $4,477 on net sales of $565,313. Each of the first 3
months of 1970 showed a loss. In the early part of 1970
W. L. Green, Respondent's president and general manager,
discussed the situation with Clifford A. Hollenbeck, the
parts sales manager . Green had decided to let two or three
people go from the parts department but Hollenbeck
thought that in a couple of months the volume would be up
enough to justify the number of people then employed. At
about the same time there was an economy drive going on
through Respondent' s entire organization . Overall employ-
ment was reduced from about 100 to about 65 employees.
On a number of occasions Green told Hollenbeck that costs
were running too high based on volume. After comparing
costs with other dealers, Green decided that in order to
show a profit everyone in the parts department had to aver-
age about $7,000 a month in sales . During 1970 the average
sales per month per employee in the parts department was
1 The findings set forth in this paragraph are based either on stipulations
or on allegations in the complaint which were admitted in Respondent's
answer.
2 W. L. Green, Respondent 's president and general manager, testified that
the employees who were not recalled were Nordaker, Wendt, and Max
Christianson. The record does not disclose whether Christianson was a
counterman. However, only the status of Nordaker and Wendt is in issue
The General Counsel in its brief states that one of the three strikers who was
not recalled has retired . Clifford A Hollenbeck , Respondent 's parts sales
manager, credibly testified that before the strike there were seven count-
ermen employed and that four were authorized to come back after the strike
$5,234. Green concluded that Respondent had to either do
more volume or have less people employed doing the same
volume. However, no action was taken to reduce the num-
ber of countermen until the strike. During the strike Green
met with Hollenbeck and they decided that only four of the
seven countermen who had been employed before the strike
would be allowed to return. Though Hollenbeck testified
that the decision to reduce the number of countermen to 4
was a permanent one and that there was no intention to
reinstate Nordaker or Wendt, Green credibly testified that
no decision in the automobile business was permanent and
that it would be all right to have 20 men if volume justified
it. He further averred that the idea was to see where they
were and what business they were doing; that there was no
fixed decision as to the number of men; and that the num-
ber employed would be based on the $7,000 per month per
man sales figure. Respondent had lost business during the
strike and according to Green, he had no idea of how much
business they might recapture. As the reduction in force
which took effect at the end of the strike is not alleged to
have been an unfair labor practice, and as the uncontested
testimony of Green and Hollenbeck establish that the deci-
sion to reduce force was made on the basis of ordinary
business reasons, I must find that the reduction in force was
based solely on economic considerations.3
Respondent recalled four countermen after the strike. It
was not until June 12, 1972, that a fifth counterman was put
to work. On that date Respondent hired Robert Erwin as a
full-time counterman. Erwin had not previously worked for
Respondent. The job that Erwin took was not offered to
Nordaker, Wendt, or any other economic striker. Though
Hollenbeck testified that Erwin was hired for summer relief
while employees were on vacation, he acknowledged that
Erwin stayed on because he was an excellent worker, vol-
ume was improving, and Respondent was starting to show
a profit. Hollenbeck also acknowledged that Respondent
was not considering laying off Erwin. Though Erwin may
have originally been hired as a temporary employee, it is
clear that he thereafter became a permanent one. General
Counsel contends that Respondent violated the Act by not
offering Nordaker or Wendt the job that was filled by Erwin
on June 12, 1972.
Though Erwin was the first counterman hired after the
four striking countermen had been recalled, some of the
work previously done by countermen was assigned to Dan-
iel Benson. General Counsel contends that Respondent vio-
lated the Act by not offering the work performed by Benson
to Nordaker or Wendt. Benson began to do the work in
question on March 16, 1972. Benson was hired to do general
work by Respondent in May of 1971. In early May he spent
10 hours putting up fences, between May 17 and 25 he
spent 20 hours washing cars, and between May 26 and 28
he spent 9 hours working on errands for the parts depart-
ment. He then left Respondent's employ to go back to
school. On March 16, 1972, Benson returned to work at
3 When Respondent's counsel asked Green what effect the strike had on
his decision, counsel for the General Counsel stated his position by offering
to stipulate "that the reduction in the number of parts department employees
was economically motivated, or at least that counsel for the General Counsel
does not contend that the reduction in the number of parts department
employees was an unfair labor practice
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's premises. This time he was not hired by Re-
spondent, but was sent by Seattle Labor Supply, an organi-
zation that supplies workers pursuant to contract. On that
date Respondent reached an oral agreement with Seattle
Labor Supply to use Benson 's services . Benson was to do
general work helping wherever he was needed. The agree-
ment between Respondent and Seattle Labor Supply pro-
vided that Benson was to work at Respondent's premises by
the month. Each month the purchase order for his services
has been renewed. Benson is told what to do while on the
job by Respondent's supervisors. He works full time, 8
hours a day. Benson spends some of his time in the service
department but about 75 percent of his working day is spent
in the parts department. Benson 's principal duty is to stock
the bins in the parts department." The parts come from
various suppliers in packages. Benson receives the parts and
puts them in bins where they are stored. Until Benson began
doing that work on March 16, 1972, the stocking of bins had
been done by countermen and other employees in the parts
department. John D. Nurney, vice president and general
sales manager of Respondent, acknowledged that some of
the work that Benson does had formerly been done by
journeymen countermen, but he went on to explain that it
was not journeymen countermen's work, that countermen
usually did it on overtime, that the countermen didn't like
that kind of work, and that it was less expensive for the
company to have someone like Benson do it. Benson does
not sell parts and according to Nurney does not do any
journeyman parts counterman work. Under the current col-
lective-bargaining contract journeymen countermen with
over 5-years' experience (which was the category that Nor-
daker and Wendt had been in) earn $5.07 an hour which
would be $202.80 for a 40-hour week. Benson is paid ap-
proximately $490 a month.
Nurney acknowledged that Respondent did not offer to
bargain with the Union before asking Seattle Labor Supply
to furnish a man in March of 1972. However, there is no
allegation in the complaint that Respondent violated Sec-
tion 8(a)(5) of the Act by contracting out work that had
formerly been done in the bargaining unit. Nor is there any
allegation that Respondent contracted out that work as a
reprisal against the Union or employees for engaging in
protected activity. In his brief, counsel for the General
Counsel argues that Respondent deprived the strikers of
their work by subcontracting in a manner unlawful under
Section 8(a)(5) of the Act. However, the complaint does not
allege any such violation and that question has not been
litigated. As I cannot presume any unlawful conduct by
Respondent in the absence of proof of such misconduct, I
must assume that the contracting in itself was not unlawful.
The question remains whether the work of stocking the bins
which had been done by countermen should have been
offered to Nordaker or Wendt on March 16, 1972. That
work clearly was available as it was assigned at that time to
Benson.
3. Employment by Wendt after the strike
Wendt was hired by Respondent in 1940 as a shop pickup
and deliveryman. In 1946 he became a junior counterman
and thereafter he was made a journeyman counterman. His
employment with Respondent was uninterrupted from 1946
until the strike.
After the strike ended and Wendt had made his applica-
tion for reinstatement, he returned to Respondent's prem-
ises about once a week until October of 1971. After that time
he dropped in occasionally. On one occasion in late June or
early July 1971, Wendt told Hollenbeck not to forget his
telephone number. Hollenbeck replied "I have a whole
stack of them over there."
In late September or early October 1971, Wendt decided
to go into the real estate business. About that time he spoke
to Nurney and said that he thought he would try real estate
and that he realized he probably wasn't going to get his job
back. He began studying for the real estate exam in the
latter part of October and took it in November. After pass-
ing the salesman's real estate exam, he started working in
December 1971 on a commission basis for Matt Hanley
Real Estate. Wendt stayed in the real estate business until
May 10, 1972, when he left the real estate firm. During the
entire time he worked there he received no salary and his
total commissions amounted to $300. When Wendt started
in the real estate business it was his intention to break away
from the automotive business and to remain in real estate
if he made good at it. Though occasionally Wendt stopped
by at Respondent's premises after December 1971, he did
not specifically ask for work.'
On about June 30, 1972, Wendt became a temporary
employee of Sealand Construction. He helped move parts
when Sealand moved its parts department and after that he
did some maintenance work. His employment with Sealand
ended some time before December 7, 1972.
Since the strike, Wendt has not worked as a counterman.
He has applied for work in other parts departments without
success. In addition, he has asked the Union whether they
knew of any jobs and has been told that there were none.
Ivor Merryfield, secretary-treasurer of the Union, testified
that in August of 1972 he spoke to Vern Pelkey, the parts
manager of Riach Central Oldsmobile, who was looking for
a qualified journeyman counterman and that he told Pelkey
that none were then available. He also averred that he told
Pelkey that other dealers were requesting journeymen
countermen and he was unable to fill those requests. In his
testimony Merryfield explained that dealers normally want
a parts man who has worked with the same product that is
handled by the dealer and that Pelkey specifically requested
a General Motors Corp. parts man. Though it may well be
that the Union was remiss in trying to find employment for
Nordaker and Wendt, it cannot be said that Nordaker and
Wendt lacked diligence in seeking available employment.
Nordaker and Wendt had both asked the Union and a
number of others to try to help them find jobs. The Union's
5 Nurney testified that Wendt told him that he was thrilled to death to be
° This finding is based on the credited testimony of counterman Ed Han- in the real estate business and that Wendt did not show any interest in having
sen, who observed Benson working Hollenbeck credibly testified that Ben- his former job back However, Nurney's testimony does not establish that
son spends 75 percent of his time in the parts department , where he cleans Wendt withdrew his outstanding application for reinstatement with Respon-
up and puts stock away dent
WILLIAM O . MC KAY CO.
allegedly poor efforts in that regard can in no sense be
attributed to Nordaker or Wendt. Whatever reinstatement
rights may have existed ran to them and not to the Union.
4. Employment by Nordaker after the strike
Nordaker was employed by Respondent from 1960 until
1966 and then again from September 1968 until the strike.
He was a counterman.
Shortly after the strike ended and Nordaker had made his
application to return to work , he went to Respondent's
premises and asked Hollenbeck if there was any work and
if they were hiring . Hollenbeck replied that they were not.
From then to about August 1, 1971, Nordaker came to
Respondent 's premises weekly and the conversation with
Hollenbeck was repeated many times. After that Nordaker
came to Respondent 's premises about once a month. In
mid-August he asked Hollenbeck if they were going to put
on more help and Hollenbeck replied that there were no
changes as far as management was concerned.6
On about August 1, 1971, Nordaker began working for
Edwards Auto Parts as a temporary counterman to relieve
vacationing employees . When he was hired , Nordaker was
told that he was not a permanent employee and Nordaker
told Mac Edwards , who hired him , that he would return to
Respondent if he was called back. Nordaker was told that
if Edwards Auto Parts put in another store , that his job
could become permanent . However , the new store did not
materialize and Nordaker 's job with Edwards Auto Parts
ended in mid -September , 6 weeks after it began. While
working for Edwards , Nordaker earned $3 .65 an hour or
$146 a week for a 40-hour week , while he had made $181
a week from Respondent . The health and welfare benefits
at Edwards were $17 a week and at Respondent were $28.49
a week . Edwards did not pay any bonus or money toward
a pension fund while Respondent did pay a bonus and 20
cents an hour toward a pension fund.
Several weeks after he was laid off by Edwards , Nordaker
told Hollenbeck that he was no longer working for Ed-
wards.7
Nordaker remained unemployed from the time that he
left Edwards until April I, 1972, when he became a service
station attendant for William Paulson . During that period
of unemployment he visited Respondent and asked Hollen-
beck if they were going to hire more help. Hollenbeck re-
plied "Don 't call me , I'll call you ." At the time of the trial,
Nordaker was still working as a service station attendant,
but he had been informed that the job would end shortly
because of the death of the owner.
Nordaker unsuccessfully applied for work at a number of
other dealerships and has also attempted to obtain work
through the Union.
6 Hollenbeck testified that Nordaker came in on an average of once a week
for about a month and a half, that he asked "what 's it look like," that
Nordaker 's visits were social , and that Nordaker never definitely asked for
hisjob back I credit Nordaker's version of the conversations on which the
above findings of fact are based.
7 Hollenbeck testified that Nordaker did not ask for hisjob again after he
began to work for Edwards , but Hollenheck did not deny that he knew that
Nordaker had left Edwards ' employ.
B. Analysis and Conclusions
1. Preliminary findings
391
Nordaker and Wendt made unconditional offers to re-
turn to work at the end of the strike. Those offers were never
withdrawn and I find that they were outstanding at all times
material herein. Respondent repeatedly rebuffed Nordaker
and Wendt when they made inquiries about returning to
work. When Wendt told Hollenbeck not to forget his tele-
phone number Hollenbeck replied that he had a whole stack
of them (applications). When Nordaker asked Hollenbeck
if Respondent was going to hire more help, Hollenbeck told
him "Don't call me, I'll call you." The fact that Nordaker
and Wendt were seeking employment elsewhere is explaina-
ble more in terms of their need to survive financially than
their lack of desire to return to their former employment
with Respondent. The law does not require futile gestures.
After Nordaker and Wendt had made it clear to Respon-
dent that they wanted to return, there was no need for them
to go through the motion of repeating that offer after Re-
spondent had made it clear that the offer was unacceptable
to it. Nor did the mere passage of time diminish the vitality
of their outstanding offer to return. In American Machinery
Corporation v. N.L.R.B., 424 F.2d 1321 (C.A. 5, 1970), the
court addressed itself to the problem that a company had
in seeking out strikers "several months" or "five years" after
their application for reinstatement , by stating:
... he (a company) might notify the strikers when they
request reinstatement of a reasonable time during
which their applications will be considered current and
at the expiration of which they must take affirmative
action to maintain that current status. A reasonable
rule would not contravene Fleetwood's assertion that
"the right to reinstatement does not depend upon tech-
nicalities relating to application ." 389 U.S. at 381.
If Respondent was concerned with the length of time that
the applications would be outstanding , it was in a position
to set an outside date for the renewal of the applications. It
did not do so. Cf. N.L.R.B. v. Hartmann Luggage Co., 453
F.2d 178 (C.A. 6, 1971).
I find that neither Nordaker or Wendt accepted regular
and equivalent employment elsewhere after the strike. In
Little Rock Airmotive, Inc., 182 NLRB 666, enfd. in pert.
part 455 F.2d 163 (C.A 8, 1972), the Board pointed out that
such matters as "fringe benefits (retirement , health , seniori-
ty for purposes of vacation, retention, and promotion), loca-
tion and distance between the location of the job and an
employee's home, differences in working conditions, et cet-
era, may prompt an employee to seek to return to his old
job," and had to be considered along with the employee's
expressed interest in returning to the old job, in determining
whether the employee had obtained regular and substantial-
ly equivalent employment
Wendt only had two jobs after the strike. The first in-
volved work as a real estate salesman in which he earned
approximately $300 during 5 months. The second involved
temporary work moving parts and doing maintenance work.
As found above, Wendt's application to return to work for
Respondent was at all times outstanding . Neither of
Wendt's jobs after the strike could be considered regular
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and substantially equivalent to the job he held with Respon-
dent prior to the strike.
Nordaker also held two jobs since the strike . The first
involved temporary work as a counterman which lasted 6
weeks, for which he was paid substantially less in both
wages and fringe benefits than he had earned while working
for Respondent . The second job involved work as a service
station attendant. As found above, Nordaker 's outstanding
offer to return to work with Respondent was never with-
drawn . Neither of the jobs held by Nordaker after the strike
was regular and substantially equivalent to the one he had
with Respondent.
With regard to the availability of work at Respondent,
Erwin was hired on June 12, 1972, for a job that could have
been filled by Nordaker or Wendt . Immediately before Er-
win was hired, one journeyman counterman 's position was
available in Respondent's part department.
A more difficult question is presented with regard to the
availability of work for Wendt or Nordaker as of March 16,
1972, when Benson began stocking the parts department
bins. As the United States Supreme Court said in N.L.R.B.
v. Fleetwood Trailer Co., 389 U . S. 375 , 381 (1967), "If and
when a job for which the striker is qualified becomes avail-
able, he is entitled to an offer of reinstatement." Thus a
striker must be given any job for which he is qualified rather
than the specific job he had before the strike . Cf. Little Rock
Airmotive, Inc. v. N.L.R.B., supra, fn. 7. As the key to rein-
statement rights is the availability of the job , Respondent
cannot defend on the ground that it gave the job to a con-
tractor rather than to a striker. If the job were not available
it could not have been contracted out. Though the stocking
of the parts department bins was only peripherally the work
of countermen before Benson began doing it , it was work
that both Nordaker and Wendt were qualified to do. In
effect Respondent created a new job for Benson by taking
one duty away from the countermen . Respondent may well
have taken this action for legitimate business reasons in
order to effect an economy . However , a similar result could
have been achieved had Respondent offered the new job to
Nordaker or Wendt at a pay rate appropriate for a general
worker who stocked bins in the parts department . Journey-
man counterman rates needs not have been paid .8 I there-
fore find that work was available stocking bins from March
16, 1972, and that work was available as a journeyman
counterman from June 12 , 1972. I further find that both
Nordaker and Wendt were qualified to perform those jobs.
2. The legal framework
In N.L.R.B. v. Great Dane Trailers, Inc., 388 U .S. 26, 33
(1967) the United States Supreme Court held:
Some conduct , however, is so "inherently destructive of
employee interests" that it may be deemed proscribed
without need for proof of an underlying improper mo-
tive. That is, some conduct carries with it "unavoidable
consequences which the employer not only foresaw but
which he must have intended " and thus bears "its own
indicia of intent." If the conduct in question falls with-
8Cf. Columbia Tribune Publishing Co, 201 NLRB No 70
in this "inherently destructive" category, the employer
has the burden of explaining away, justifying or char-
acterizing "his actions as something different than they
appear on their face ," and if he fails, "an unfair labor
practice charge is made out."
In N.L.R.B. v. Fleetwood Trailer Co, supra, the United
States Supreme Court applied the Great Dane principle to
a situation where economic strikers had been refused rein-
statement , holding:
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3) )
provides that an individual whose work has ceased as
a consequence of a labor dispute continues to be an
employee if he has not obtained regular and substan-
tially equivalent employment. If, after conclusion of
the strike , the employer refuses to reinstate striking
employees , the effect is to discourage employees from
exercising their rights to organize and to strike guaran-
teed by §§ 7 and 13 of the Act (61 Stat. 140 and 151,
29 U.S.C. §§ 157 and 163). Under §§ 8(a)(1) and (3) (29
U.S.C. §§ 158 (1) and (3 )) it is an unfair labor practice
to interfere with the exercise of these rights . According-
ly, unless the employer who refuses to reinstate strikers
can show that his action was due to "legitimate and
substantial business j ustifications ," he is guilty of an
unfair labor practice. N.L.R.B. v. Great Dane Trailers,
388 U.S. 26, 34 (1967). The burden of proving justifica-
tion is on the employer. Ibid.
The Court went on to state that there are some situations
where "legitimate and substantial business justifications"
j ustify an employer's refusal to reinstate economic strikers.
One is where the jobs which the strikers claim are occupied
by workers hired as permanent replacements during the
strike in order to continue operations. That situation is not
present in the instant case. The Court stated:
A second basis for justification is suggested by the
Board-when the striker's job has been eliminated for
substantial and bona fide reasons other than consider-
ations relating to labor relations : for example, "the
need to adapt to changes in business conditions or to
improve efficiency .?" [7-Brief on behalf of NLRB
15.] We need not consider this claimed justification
because in the present case no changes in methods of
production or operation were shown to have been insti-
tuted which might have resulted in eliminating the
strikers' .jobs.
In the Fleetwood case , supra, the company could not rein-
state the strikers immediately upon application because of
the curtailment of production caused by the strike . Howev-
er, the company did intend to increase production to the full
prestrike volume as soon as it was possible . The Supreme
Court pointed out that the right of the strikers to reinstate-
ment did not depend on the availability of jobs as of the
moment of application. The Court stated:
Frequently a strike affects the level of production and
the number of jobs. It is entirely normal for striking
employees to apply for reinstatement immediately after
the end of the strike and before full production is re-
sumed . If and when ajob for which the striker is quali-
fied becomes available, he is entitled to an offer of
reinstatement . The right can be defeated only if the
employer can show " legitimate and substantial busi-
WILLIAM 0. MC KAY CO. 393
ness justifications." N.L.R.B. v. Great Dane Trailers,
supra.
In The Laidlaw Corporation, 171 NLRB 1366, enfd. 414
F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970), the
Board, based on the dictates of Fleetwood and Great Dane,
held:
. .. that economic strikers who unconditionally apply
for reinstatement at a time when their positions are
filled by permanent replacements: (1) remain employ-
ees; (2) are entitled to full reinstatement upon the de-
parture of replacements unless they have in the
meantime acquired regular and substantially equiva-
lent employment, or the employer can sustain his bur-
den of proof that the failure to offer full reinstatement
was for legitimate and substantial business reasons.
The passage of time itself does not change strikers' rights
to reinstatement. It is not an undue burden for an employer
to maintain preferential hiring lists. Cf. American Machinery
Corp. v. N. L.R.B., supra. I n N. L. R. B. v. Hartmann Luggage
Co., supra, the court specifically held that economic strikers
did not lose their status as employees 12 months after the
beginning of a strike. That court found that Section 9(c)(3)
of the Act, which under certain circumstances limits the
right of an employee to vote, does not take away the
employee's status as an economic striker under Section 2(3)
of the Act.
Conclusions
As found above, Nordaker and Wendt applied for rein-
statement at the end of the strike; the applications were at
all times outstanding; they did not obtain regular and sub-
stantially equivalent employment elsewhere; and one job
with Respondent for which they were qualified became
available on March 16, 1972, and another on June 12, 1972.
The reduction in force after the strike was based on eco-
nomic considerations and Respondent 's refusal to reinstate
them at that time was therefore based on a legitimate and
substantial business justification. However, with reference
to the dates on which work became available for which
Nordaker and Wendt were qualified, Respondent offered
no evidence of business justifications which would have
warranted its failure to offer them those jobs.
Nordaker and Wendt became economic strikers on May
18, 1971, when they participated in the strike against Re-
spondent. When the strike ended a month later and an
unconditional offer to return was made on behalf of all the
strikers, they as well as the other strikers were entitled to the
reinstatement rights set forth in the Fleetwood case. At the
time these reinstatement rights vested in Nordaker and
Wendt, Respondent, for valid economic reasons, had no
work available for them. Respondent was therefore justified
in not immediately reinstating them. However, this lack of
work did not divest Nordaker and Wendt of their rights as
economic strikers. Those rights remained outstanding and
reached fruition at the time the valid economic reasons for
denying them reinstatement ceased to exist. The controlling
law was set forth in Laidlaw, supra, where the Board quoted
from the Supreme Court's Fleetwood decision as follows:
It was clearly error to hold that the right of the strikers
to reinstatement expired on August 20, when they first
applied. This basic right to jobs cannot depend on job
availability as of the moment when applications are filed.
The right to reinstatement does not depend upon tech-
nicalities relating to application. On the contrary the
status of the striker as an employee continues until he has
obtained "other regular and substantially equivalent em-
ployment. " 389 U.S. 375.
There were no valid economic reasons adduced by Respon-
dent to warrant its failure to offer Nordaker and Wendt the
work that became available for one of them on March 16
and for the other on June 12, 1972 It is true that in Fleet-
wood, the lack of work available to strikers was caused by
the temporary loss of business attributable to the strike
while in the instant case Respondent's economic retrench-
ment was not shown to be related to the strike. However,
I do not believe that the distinction requires a conclusion
different than that reached in Fleetwood Respondent's re-
duction in force was not a permanent one, but was merely
a reaction to then existing sales volume in the parts depart-
ment . Green credibly testified that a larger employee com-
plement was acceptable if volume justified it. Respondent
did need a larger workforce as of March 16, 1972, when
Benson began working and as of June 12, 1972, when Erwin
was employed.
Respondent relies on Arthur H. Sumner, d/b/a Ateco
Products, 109 NLRB 234. In that case a company decided
to accommodate a retrenchment program to a strike situa-
tion by eliminating the Jobs of those on strike at that time,
rather than later in the month. The Board found that the
strikers were among those with least seniority and would
have been included in a subsequent layoff. While holding
that the company did not violate the Act, the Board specifi-
cally found that the evidence did not disclose that the posi-
tions held by the strikers were ever revived after they were
eliminated and that the evidence did disclose that the num-
ber of employees doing that work continued to decrease.
Thus, even if the Ateco case is current law after the change
in Board policy dictated by Great Dane Trailers and Fleet-
wood, it is distinguishable on its facts.
I find that Respondent violated Section 8(a)(3) and (1) of
the Act by failing to offer Nordaker and Wendt the work
which became available on March 16 and June 12, 1972.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(3)
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (1) of the Act by failing and refusing to offer reinstate - the amount of backpay due.
ment to Nordaker and Wendt as work for which they were
qualified became available on March 16 and June 12, 1972.
The work available on March 16 was general work which
consisted primarily of stocking bins in the parts department.
The work that became available on June 12, 1972, was
journeyman counterman work. The record does not furnish
any indication of what criteria Respondent customarily
used in recalling employees and the contract with the Union
is silent on that matter. As neither Respondent nor the
General Counsel put forth any alternative formula, I believe
that it is reasonable to use a seniority principle in decidin
who was entitled to the journeyman counterman job.
Wendt had uninterrupted employment with Respondent
since at least 1946 while Nordaker's hire was in 1960.
I therefore recommend that Respondent be ordered to
offer Wendt immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, dismissing anyone
hired on or after June 12, 1972, if necessary to make room
for him. I shall also recommend that Respondent be ordered
to make Wendt whole for any loss of earnings he suffered,
or which he may suffer, by reason of Respondent 's failure
to reinstate him on June 12, 1972, by payment to him of a
sum of money equal to that which he normally would have
earned from June 12, 1972, until the date on which a valid
offer of reinstatement is made by Respondent. Loss of earn-
ings, as referred to above, shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, with
interest at 6 percent per annum as prescribed in Isis Plumb-
ing & Heating Co, 138 NLRB 716.
I recommend that Respondent be ordered to offer Nor-
daker immediate employment as a general worker with the
primary duty of stocking bins in the parts department, with-
out prejudice to his seniority or other rights and privileges.
I further recommend that Respondent be ordered to make
Nordaker whole for any loss of earnings he suffered, or
which he may suffer, by reason of Respondent's failure
to offer him that position, by payment to him of a sum of
money equal to that which he would have earned as a gener-
al worker whose primary duty was stocking bins in the parts
department, from March 16, 1972, until the date on which
a valid offer of employment for that position is made by
Respondent. Loss of earnings, as referred to above, shall be
computed in the manner set forth in F. W. Woolworth Com-
pany, supra, with interest at six percent per annum as pre-
scribed in Isis Plumbing & Heating Co., supra. I shall further
recommend that Respondent be ordered to reinstate Nor-
daker to his former position as a counterman if and when
work becomes available for a counterman. If such work
does become available, and Respondent does not offer it to
Nordaker, backpay is to run from the date of such availabil-
ity at the rate paid to a counterman.
It is further recommended that Respondent be ordered to
preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records,
Social Security payment records, timecards, personnel re-
cords and reports, and all other records necessary to analyze
9 Cf Buncher v N L R B, 405 F 2d 787 (C A 3, 1969), The La,dlaw Corpo-
ration, supra
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in 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. By failing and refusing to reinstate economic strikers
Nordaker and Wendt on March 16 and June 12, 1972, when
work for which they were qualified became available, and
after they had unconditionally requested reinstatement,
thereby discouraging membership in the Union, Respon-
dent has violated Section 8(a)(3) of the Act.
4. By the foregoing conduct Respondent interfered with,
restrained and coerced employees in the exercise of their
rights guaranteed to them by Section 7 of the Act, in viola-
tion of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 10
Respondent, William O. McKay Company, Inc., its offi-
cers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate economic strikers
who have unconditionally requested reinstatement when
work for which they are qualified becomes available.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Wilhelm F. Wendt immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges , dismissing anyone hired on or after June 12, 1972, if
necessary to make room for him, and make him whole for
any loss of earnings in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Offer Frank Nordaker immediate employment as a
general worker with the primary duty of stocking bins in the
parts department, without prejudice to his seniority or other
rights and privileges; offer him reinstatement to his former
position as a counterman if and when work becomes avail-
able for a counterman; and make him whole for any loss of
earnings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
10 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Section 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and Order and all objections
thereto shall be deemed waived for all purposes.
WILLIAM O. MC KAY CO. 395
records, Social Security payment records, timecards, per-
sonnel reports and records, and all other records necessary
to analyze the amount of backpay due.
(d) Post at its Seattle , Washington, facility copies of the
attached notice marked "Appendix." II Copies of the no-
tice , on forms signed by Respondent's authorized represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced or covered by any other
material.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
11 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT fail or refuse to reinstate economic strik-
ers who have unconditionally requested reinstatement
when work for which they are qualified becomes avail-
able.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer Wilhelm F. Wendt immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, dismissing anyone hired on or
after June 12, 1972, if necessary to make room for him.
WE WILL make Wilhelm F. Wendt whole for any loss
of earnings he may have suffered, or which he may
suffer, by reason of our failure to reinstate him on June
12, 1972, by payment to him of a sum of money equal
to that which he normally would have earned from
June 12, 1972, until the date on which we make him a
valid offer of reinstatement with interest at 6 percent.
WE WILL offer Frank Nordaker immediate employ-
ment as a general worker with the primary duty of
stocking bins in the parts department, without preju-
dice to his seniority or other rights and privileges, and
we will offer to reinstate him to his former position as
a counterman, if and when work becomes available for
a counterman.
WE WILL make Frank Nordaker whole for any loss of
earnings he suffered, or which he may suffer, by reason
of our failure to offer him a position as a general work-
er with the primary duty of stocking bins in the parts
department, by payment to him of a sum of money
equal to that which he would have earned for that
position from March 16, 1972, until the date on which
we make him a valid offer of employment for that
position with interest at 6 percent.
Dated By
WILLIAM O. MCKAY COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 10th Floor, Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-7472.