Alaska Pulp Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1989

296 N.L.R.B. 1260 (N.L.R.B. 1989)

1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alaska Pulp 19-CA-19242Corporation and David B.
Hiebert and Florian Sever and Mark W. Sim-
mons and Robert Henry Kinville and Joseph P.
Kilburn and Edward Reiner
S & S General Contractors and Equipment Rental,
Inc. and Joseph Kilburn. Cases 19-CA-19242,
19-CA-19377, 19-CA-19582, 19-CA-19322,
19-CA-19342, 19-CA-19564, 19-CA-19579,
19-CA-19610, and 19-CA-19503
October 10, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On December 7, 1988, Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision. The Respondent and the Charging Parties
filed exceptions and supporting briefs,' as well as
answering briefs to the other's exceptions.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and,
' Charging Party Florian Sever has requested oral argument The re-
quest is denied as the record , exceptions, and briefs adequately present
the issues and the positions of the parties Sever has also requested a lim-
ited reopening of the record so that he could introduce evidence pertain-
ing to certain congressional hearings that he claims will establish that he
was discharged for testifying before Congress in view of our finding
below that Sever was discharged in part for his congressional testimony,
we find it unnecessary to pass on his request , or to consider any docu-
ments submitted by Sever in support of his request which do not consti-
tute part of the record in this case . Finally, we deny Sever's request for
extraordinary remedies because we find the Board 's standard remedies
appropriate under the circumstances herein.
2 The Respondent has filed a "Motion to Strike General Counsel's
Brief in Support of Decision of Administrative Law Judge" and, in re-
sponse to the motion , the General Counsel filed a "Request for Permis-
sion to Withdraw its Brief " The General Counsel, however , has filed no
such brief with the Board Accordingly, we find it unnecessary to rule on
the Respondent 's motion or the General Counsel 's request
The Respondent also filed a "Motion to Strike Florian Sever 's Cross-
Exceptions to Respondent's Exceptions and Answers in Support of
Cross-Exceptions and Motion for Terms" on the ground that the brief in
support of the "cross -exceptions" contains "impertinent and scandalous
matter" and should be stricken under Rule 12(f) of the Federal Rules of
Civil Procedure, and because Sever has already filed exceptions in this
case and under Sec. 102 46 of the Board 's Rules and Regulations is there-
fore presumably precluded from filing cross -exceptions A review of
Sever 's "cross-exceptions " and brief in support thereof indicates clearly
that they constitute nothing more than an answering brief to the Re-
spondent 's exceptions, permitted under Sec 102 46 of the Board 's Rules,
and contain nothing that , in our view , can be considered as "impertinent
or scandalous." Accordingly, the Respondent's motion is denied
The Respondent also moved to strike that part of the Charging Parties'
brief in support of cross-exceptions pertaining to Florian Sever on the
ground that the attorney filing such cross-exceptions and brief does not
represent Sever in these proceedings but represents only the other Charg-
ing Parties We deny this motion to strike Sec 102.46 of the Board's
Rules permits any party to file cross-exceptions , with a supporting brief,
as to any portion of the judge's decision Accordingly, the cross-excep-
tions and brief filed by the Charging Parties ' attorney to certain findings
made by the judge concerning Sever was , contrary to the Respondent's
assertion , proper
except as noted below, has decided to affirm the
judge 's rulings, findings ,3 and conclusions and to
adopt the recommended Order.4
1. The judge found, inter alia, that on June 30,
1987, the Respondent unlawfully refused to consid-
er discriminatee Florian Sever for reinstatements
because of a letter he wrote on August 19, 1986,
which the Respondent claims was offensive to its
Japanese managers and warranted discharge, but
which the judge found constituted protected con-
certed activity. While we agree with the judge that
this letter constituted protected concerted activity
8 The Charging Parties have excepted to some of the judge 's credibil-
ity findings The Board's established policy is not to overrule an adminis-
trative law judge 's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 ( 1950), enfd . 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
We agree with the judge that the question whether the Respondent
could lawfully use a merit recall system , under which the Respondent
rated unreinstated strikers by merit rather than by seniority to determine
their order of reinstatement , was previously resolved in Case 19-CA-
19242 and is therefore not before us Thus, the charge in Case 19-CA-
19242 had alleged that the Respondent violated Sec 8(a)(3) and (1) "[b]y
using an improper system purportedly based on medical records, 'coop-
eration ,' safety , and other criteria , for recalling former strikers that is de-
signed to , or that has the effect of, violating former strikers ' recall
rights " As noted by the judge , the Regional Director dismissed this and
other portions of the charge , but allowed the remaining allegations con-
tained therein to stand As the judge further notes, there was no appeal
filed to the dismissal of the above allegations Thus, the issue of whether
the Respondent lawfully implemented a recall system for strikers is not
before us Rather , the issue here concerns the question whether the Re-
spondent could lawfully relegate unreinstated strikers who are offered re-
instatement to entry level jobs only The judge found , and we agree, that
such a procedure inherently discriminates against strikers because of their
union activities and is therefore unlawful. Our holding in this regard is
not, contrary to the Respondent 's assertion , inconsistent with the Su-
preme Court's recent holding in TWA v. Flight Attendants, 109 S.Ct 1225,
103 L Ed. 2d 456 (Feb 28 , 1989), that an employer is not required by the
Railway Labor Act to lay off junior nonstriking employees in order to
reinstate more senior full-term strikers at the conclusion of a strike In
that case , the Court found that once the full-term strikers were reinstated,
their seniority was in no way affected by their decision to strike , noting
that where vacancies developed in desirable job assignments , reinstated
full-term strikers who bid on these vacancies would maintain their priori-
ty over less senior employees whether they be new hires, "crossover"
employees, or full -term strikers In contrast , the unreinstated strikers
here, while purportedly retaining "mill" or plantwide seniority , could not
automatically progress to more desirable positions, but could bid only on
entry level jobs at other departments.
Member Cracraft does not rely on the judge 's citation at fn 13 of his
decision to Lone Star Industries , 279 NLRB 550, 551- 552 (1986), remand-
ed in part 813 F 2d 472 (D.C. Cir 1987)
4 The Respondent excepts , inter alia , to that portion of the judge's
Order requiring it to offer reinstatement to discriminatees Mark Simmons
and Debbie Harriman . It contends that such a remedial provision is not
needed because Simmons and Harriman were offered reinstatement
during the hearing While the record indicates that a reinstatement offer
was made , it is unclear whether the offer was in compliance with Laidlaw
requirements . Accordingly , we shall not delete the reinstatement provi-
sion from the judge's recommended Order, but shall leave the question of
whether these employees were properly reinstated to the compliance
stage of the proceedings.
5 The judge found that , on that day , the Respondent refused to place
Sever's name on a preferential hiring list as required under Laidlaw Corp,
171 NLRB 1366 ( 1968) The record however reveals , and the Respond-
ent admits , that Sever 's name had been on the preferential hiring list prior
thereto, but was stricken from the list on that day by the Respondent's
vice president of industrial relations , Jess Cline
296 NLRB No. 155
ALASKA PULP CORP.
and was a factor in the Respondent 's decision not
to offer reinstatement to Sever , the record evi-
dence convinces us that Sever 's testimony before
Congress was also a factor in that decision.6
The record reveals that although the Respondent
apparently decided that Sever was ineligible for re-
instatement at or about the time he wrote his
August 19 , 1986 letter , it did not advise him of that
fact until just shortly after he testified in Congress
adversely to the Respondent 's interest on May 19,
1987. Indeed , following his August 19 letter,
Sever 's name was retained on a preferential rein-
statement list kept by the Respondent , and updated
periodically by Cline . Sever's right to vote in a de-
certification election held in March 1987 was not
challenged by the Respondent despite the fact that
the latter challenged the ballots of other employees
who, like Sever , were purportedly ineligible for re-
instatement because of strike or other misconduct.7
In fact , the record shows that on May 1, 1987,
while updating the recall list , Cline wrote to Sever
(as he did to others on the reinstatement list) to de-
termine if he was still interested in reinstatement
and, if so, to notify Cline by June 7, 1987. As
noted , Sever , with the Respondent 's knowledge,
testified before Congress on May 19, 1987.8 On
June 3 , Sever timely notified the Respondent of his
interest in reinstatement , but by letter dated June
30, the Respondent discharged Sever by informing
him that he was ineligible for reinstatement and
striking his name from the list.
In its June 30 letter , the Respondent informed
Sever that he was ineligible for reinstatement be-
cause he ( 1) abandoned his job , (2) accepted equiv-
alent employment elsewhere , and (3) for "bona fide
business necessity ." When Sever requested clarifi-
cation from the Respondent concerning the above
reasons, Cline responded by letter dated July 28,
1987, stating that the Respondent was informed
that Sever had been employed by another employ-
er, Mountain Aviation , and had also been informed
of Sever 's "statements and activities destructive to
the Company and related logging operations."
The judge believed that the General Counsel and
counsel for the Charging Parties were arguing that
the Respondent 's admitted reason for discharging
Sever (i.e., the remarks contained in Sever's
August 19 , 1986 letter) was pretextual , and that the
s Like the judge, Member Devaney finds it unnecessary to also decide
whether Sever 's testimony before Congress likewise motivated the Re-
spondent 's decision not to offer him reinstatement.
7 Cline testified that he had grounds for challenging Sever 's ballot, but
did not do so because "it served no real purpose "
a Sever appeared as a representative of the Union and testified con-
cerning alleged abuses by the Respondent under existing legislation and
the effect it had had on employees' terms and conditions of employment
His conduct in this regard clearly constituted protected concerted activi-
ty.
1261
Respondent condoned the remarks contained in the
August 19 letter and decided later to deny Sever
reinstatement because of his May 19 , 1987 testimo-
ny before Congress . The judge , in rejecting this ar-
gument , reasoned as follows : "Contrary to the con-
tentions of the General Counsel and counsel for the
Charging Parties, and despite substantial evidentia-
ry support for their arguments , I find that the
record evidence , particularly the Respondent's un-
equivocal admission , warrants the conclusion that
the August 19, 1986 letter was a substantial cause
of the Respondent 's denial of reinstatement to
Sever."
We find no fault with the judge 's determination
that the August 19 letter constituted protected con-
certed activity and that it was a substantial factor
in the Respondent 's decision to deny reinstatement
to Sever . This determination , however , does not
preclude a finding that Sever 's support before Con-
gress of certain legislation was also a substantial
factor in the denial of reinstatement . Both the letter
and the testimony before Congress were fully liti-
gated in this proceeding . That the General Counsel
and the Charging Party may have argued that the
August 19 letter was a pretext neither bars a find-
ing that the letter was a factor in the denial of rein-
statement nor a finding that both the letter and the
testimony before Congress were motivating factors
in the denial of reinstatement.9
We are persuaded by the evidence in the case
that Sever 's congressional testimony of May 19,
1987, was a factor in the Respondent 's decision not
to reinstate Sever, along with his August 19, 1986
letter . Although Sever wrote the letter in August
1986, the Respondent , as indicated , retained his
name on the preferential reinstatement list until
June 30 , 1987, wrote to him on May 1, 1987 , advis-
ing him to notify the Respondent if he were still in-
terested in reinstatement , and did not challenge his
right to vote in the decertification election con-
ducted in March 1987 , while challenging the bal-
lots of other employees on the ground that they
were ineligible for reinstatement because of strike
or other misconduct.
These facts and the timing of Sever 's removal
from the preferential hiring list on June 30, 1987,
raise the inference that Sever 's appearance before
Congress was a factor in the decision to deny him
reinstatement. This inference is strengthened by the
9 The complaint in this regard alleges that the Respondent terminated
Sever's employment because he "engaged in the strike " and "joined, sup-
ported , or assisted the Union , and engaged in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, and
in order to discourage employees from engaging in such activities or
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection "
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent 's letter to Sever dated July 28, 1987,
stating , as clarification of the reasons for denial of
reinstatement , that the Respondent had been in-
formed of Sever's "statements and activities de-
structive to the Company and related logging oper-
ations." When questioned at the hearing about
what statements and activities other than the
August 19 letter figured into the decision to deny
reinstatement, Cline testified that Sever supported
"things" the Respondent "was not in favor of'
such as "some reform bills before Congress that are
damaging to the future of the Company."
Cline , to be sure , denied that Sever 's testimony
before Congress played any part in the decision to
deny him reinstatement . Thus, when asked if Sever
was denied reinstatement for having testified before
Congress, Cline stated, "Well, a person can testify
before Congress anytime they want to and there
are certain constitutional rights they have for that.
And we respect that. So his testifying before Con-
gress is not the reason that we discharged him."
When further asked if any statements made by
Sever during his May 19 congressional testimony
were part of the "statements and activities" that
the Respondent deemed "destructive to the Com-
pany," Cline replied , "I don't believe so . . . . So I
guess I'd answer no." On the other hand , Cline, as
noted , also testified that in preparing the July 28
letter to Sever informing him that he was not to be
reinstated , he took into account the fact that Sever
supported certain reform bills pending before Con-
gress that the Respondent opposed (and which co-
incidentally formed part of Sever's testimony
before Congress) and was opposed to the Respond-
ent's position with various Federal or state agen-
cies . Cline further suggested that "some things" in
Sever's congressional testimony he "continued to
repeat afterwards" were part of the reason for de-
nying him reinstatement. In light of the above
facts, we conclude that Sever was denied reinstate-
ment not only for his protected concerted activity
in writing the August 19 letter, but also for his pro-
tected activities on behalf of the Union and in sup-
port of legislation that the Respondent considered
inimical to its interests, and that formed the sub-
stance of his congressional testimony . For these
reasons, we agree with the judge that Sever's dis-
charge violated Section 8(a)(3) and (1) of the Act.
2. Contrary to the judge, we find that S & S
General Contractors and Equipment Rental, Inc.,
the Respondent in Case 19-CA-19503, violated
Section 8(a)(1) of the Act when its owner, Sudni-
kovich , told employee Reiner that if it were up to
Sudnikovich , employee Kilburn , who had filed a
charge against this respondent alleging he was un-
lawfully discharged , "would not get another job in
Sitka because of the charges he filed ." The judge
dismissed this complaint allegation because Sudni-
kovich was purportedly intoxicated at the time he
made the remark and because no contention had
been made that Sudnikovich "made any attempt to
convey his feelings to any prospective employers
of Kilburn." The judge, noting that Sudnikovich
had previously decided not to hire Kilburn for
nondiscriminatory reasons, viewed the alleged
threat to be of "minimal significance."
We disagree with the judge 's finding. In our
view , Sudnikovich 's remark constituted a clear
threat of possible retaliatory action against Kilburn
for having filed a charge with the Board. The
judge 's finding that Sudnikovich was upset with
Kilburn for having filed the charge suggests that
the remark was intended as a threat and not made
in jest . Further, as noted , the threat here was made
by the Respondent 's owner himself, who was on
the same level as other employers in Sitka and
therefore reasonably could be presumed capable of
influencing them . In these circumstances, the threat
can hardly be viewed as minimally significant.
Finally, that the Respondent may not have car-
ried out its threat of informing other employers
about Kilburn is not decisive , for the Board, in de-
termining whether such a threat is unlawful, looks
to whether the threat has a reasonable tendency to
restrain or coerce employees in the exercise of
their Section 7 rights, not to whether the threat has
been carried out. In making his remark , Sudniko-
vich sought to convey the message that the Re-
spondent would attempt to blacklist Kilburn for
having filed a charge against it. His statement in
this regard would clearly have the effect of re-
straining and coercing Kilburn , Reiner, and other
employees from exercising their Section 7 right to
file charges with the Board . For these reasons, we
conclude that Sudnikovich 's remark violated Sec-
tion 8(a)(1) of the Act , as alleged . To remedy its
unlawful conduct, S & S General Contractors and
Equipment Rental , Inc. shall be ordered to cease
and desist from engaging in such conduct and to
post an appropriate notice.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Alaska Pulp
Corporation , Sitka , Alaska, its officers , agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
The National Labor Relations Board further
orders that the Respondent, S & S General Con-
tractors and Equipment Rental , Inc., Sitka, Alaska,
its officers, agents, successors , and assigns, shall
ALASKA PULP CORP.
1. Cease and desist from
(a) Threatening to prevent employees who file
charges with the Board from obtaining employ-
ment elsewhere because they engaged in such pro-
tected activity.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Sitka, Alaska facility copies of the
attached notice marked "Appendix A."10 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 19 , after being signed by the Re-
spondent 's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten to prevent employees
who file charges with the Board from obtaining
employment elsewhere because they engaged in
such protected activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
S & S GENERAL CONTRACTORS AND
EQUIPMENT RENTAL, INC.
Patrick F. Dunham, Esq. and Melvin Kong, Esq., for the
General Counsel.
1263
Jerome L. Rubin, Esq. (Schweppe, Krug & Tausend), of
Seattle, Washington , for the Respondents.
Melinda Branscomb, Esq., of Nashville, Tennessee, for
the Charging Parties.
Florian Sever, of Sitka, Alaska, pro se.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOv, Administrative Law Judge.
Pursuant to notice , a hearing with respect to this matter
was held before me in Sitka , Alaska, on March 1 through
4; March 7 and 8, and April 25 through 27, 1988. The
charge in Case 19-CA-19242 was filed on July 13, 1987,
by David B. Hiebert, an individual. Thereafter, between
the dates of August 24, 1987, and January 15, 1988, vari-
ous individuals filed the other charges.
On August 26, 1987, the Regional Director for Region
19 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing alleging a viola-
tion by Alaska Pulp Corporation (Respondent or ALP)
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act). Thereafter, the Regional Director
issued various additional orders consolidating cases and
amended complaints , the most recent of which issued on
February 12, 1988, entitled "Fifth Order Consolidating
Cases, Fifth Consolidated Amended Complaint and
Notice of Hearing."
One of the above -mentioned cases, Case 19-CA-19503,
filed on November 18, 1987, by Joseph P. Kilburn, an in-
dividual , names a second respondent , S & S General
Contractors (S & S).
The parties were afforded a full opportunity to be
heard , to call , to examine and cross -examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing , briefs have been received from the General
Counsel , counsel for Respondent , and counsel for certain
Charging Parties."
On the entire record , and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Alaska Pulp Corporation is an Alaska corporation,
with its principal office and place of business in Sitka,
Alaska, where it is engaged in the business of operating a
pulp processing plant and related operations. In the
course and conduct of its business operations , ALP has
annual gross sales of goods and services valued at in
excess of $500,000, and annually sells and ships goods or
provides services from its facilities within the State of
Alaska to customers outside that State, of a total value of
in excess of $50,000.
It is admitted , and I find, that ALP is, and has been at
all times material , an employer engaged in commerce
1 David B Hiebert , Mark W. Simmons , Joseph P . Kilburn , Edward
Reiner , and Robert Henry Kinville.
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2 (2), (6), and (7) of the
Act.
S & S General Contractors is a State of Alaska corpo-
ration with an office and place of business in Sitka,
Alaska, where it is engaged in the construction business.
In the course and conduct of its business operations, S &
S has annual gross sales of goods and services valued at
in excess of $500,000 , and annually purchases goods and
materials valued at in excess of $50,000 directly from
sources outside the State , or from suppliers within the
State which in turn obtained such goods and materials
directly from sources outside the State.
It is admitted , and I find , that S & S is, and has been at
all times material , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union , United Paperworkers
International Union, Local 962, is, and has been at all
times material , a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent ALP has discriminated against eco-
nomic strikers by failing to properly recall them to work
following the termination of the strike , and whether it
has unlawfully refused to recall certain strikers because
of alleged strike misconduct.
B. The Facts
1. Background
The Union and Respondent have maintained a collec-
tive-bargaining relationship since about 1959. On July 11,
1986, employees in the unit ceased work and engaged in
a strike against the Company. The Union was decertified
following a Board-conducted election in March 1987,
and on or about April 7, 1987, the employees abandoned
the strike and notified the Respondent of their desire to
return to work . However, prior to this time the Re-
spondent had filled all of the unit jobs (approximately
300 positions) with permanent replacements or returned
strikers . Thereupon it placed the remaining strikers who
had requested reinstatement (approximately 150 individ-
uals) on a preferential recall list, except for those em-
ployees whom the Respondent believed had engaged in
strike misconduct sufficient to preclude their reinstate-
ment.
2. The recall of strikers
a. Facts
As a result of many years of collective bargaining, the
parties developed a very simple system of filling vacan-
cies when they occurred. This system is predicated upon
automatic progression within departments (also referred
to as "lines of progression") from entry level jobs to the
highest position in the department . Thus, with exceptions
not relevant here, when a vacancy occurs, the position is
filled by the individual immediately below in the line of
progression who, during the course of his work, will
have previously received training in the next highest
job.2 All the other individuals move up in automatic suc-
cession, thereby opening an entry level job for anyone at
any progression level in one of the other departments
who may want to bid into the available entry level job.
Thus, other than for entry level jobs, there is no other
"bidding" for any job within the mill. If there are no bid-
ders from other departments , the Respondent may then
employ a new hire.
The parties agree that there is no established precedent
for bringing returning strikers back to work. Prior to the
decertification, the Union requested that the strikers,
whether they elected to return to work during or after
the strike , be placed in their former positions with all the
seniority they previously had, and that the strike replace-
ments be dismissed , if necessary . The Respondent reject-
ed this proposal.
During the strike the Respondent hired permanent re-
placements and placed returning strikers in their former
positions if available . Upon the termination of the strike,
the Respondent implemented its plan for dealing with ap-
proximately 150 unrecalled strikers on the Laidlaw recall
lists in the following manner . First, it merit rated them
according to various criteria and gave each employee a
numerical ranking within his or her former department.
When a job became available, it filled the position from
within the department utilizing the same aforementioned
automatic progression system which existed prior to the
strike. When this process then opened an entry level job,
it was given to the individual on the recall list with the
highest numerical rating for that particular department.4
The Respondent 's rationale for this procedure was
threefold . First, it determined that seniority was not an
accurate measure of an employee 's worth. Therefore it
ranked employees according to merit so it could reinstate
them in order of their value to the Company . Second, it
was felt that it would be unfair to the permanent replace-
ments to fill vacancies with qualified employees on the
recall list, as the permanent replacements would, in
effect , be frozen in their positions for extended periods of
time without expectation of advancement and, moreover,
in the event of a layoff, those permanent replacements in
2 Each department may have employees at the same progression level
who perform the same job In this event , the employee with the most
departmental seniority is entitled to the next highest position . If two or
more employees within a department have the same job and equal depart-
mental seniority, then the employee with the greatest mill (or plant) se-
niority is entitled to the job
a Laidlaw Corp , 171 NLRB 1366, 1369- 1370 (1968), cert denied 397
U S 920 ( 1970). In Laidlaw the Board concluded.
We hold , therefore , that economic strikers who unconditionally
apply for reinstatement at a time when their positions are filled by
permanent replacements - ( 1) remain employees , and (2) are entitled
to full reinstatement upon the departure of replacements unless they
have in the meantime acquired regular and substantially equivalent
employment, or the employer can sustain his burden of proof that
the failure to offer full reinstatement was for legitimate and substan-
tial business reasons
4 At a later point in time individuals on the Laidlaw list were permitted
to return to work at entry level positions in other departments
ALASKA PULP CORP.
the lower levels of the progression ladder would be the
first to be laid off.5 Third , although not explicitly ad-
vanced as a rationale , the Respondent apparently decided
that it liked the simple way the prestrike automatic pro-
gression system worked , thus avoiding the intricacies and
problems associated with a bidding system.
Jess Cline is Respondent 's vice president of industrial
relations . Cline stated that after careful consideration of
Respondent 's options in recalling strikers , and after thor-
ough research of current Board and court precedent, he
premised the aforementioned recall system on what he
perceived to be one overriding consideration , namely,
fairness. As Cline testified:
And there were various [cases ] and it was diffi-
cult to have a firm understanding about the consist-
ency of what was being passed through the Labor
Board . One of the cases that I read , and I used this
one probably more so than any others , is that an
employer probably should not rely on past case
law. And the main thing is to be fair and don't dis-
criminate . And that we were in a situation where
we had to balance the rights of everyone. We had
to balance the rights of returning strikers , perma-
nent replacements, and to come up with a system
on how to do it. [Emphasis added.]
b. Analysis and conclusions
The General Counsel and counsel for the Charging
Parties maintain that the recall system the Respondent
has devised is "inherently discriminatory "6 as it punishes
the former strikers for supporting the strike by insuring
that they are relegated to the low-level jobs that pay
lower wages and are more susceptible to layoffs, and
fully ignores the years of seniority they accumulated
under the aforementioned seniority based system of auto-
matic progression . As a result , counsel argue, the em-
ployees on the Laidlaw or recall list should be placed in
their former , or higher , positions for which they are
qualified when such jobs become available.
In applying its carefully conceived reinstatement
policy, the Respondent must necessarily have arrived at
certain a fortiori conclusions. First, that relegating the
employees on the recall list to the entry level positions
would insure , in perpetuity, that they would always hold
positions inferior to permanent replacements and to strik-
ers who returned to work during the course of the strike,
and that there would therefore always be a clear line of
demarcation between the two classes of employees.
Second , that if it offered any and all available positions,
not merely entry level positions, to employees on the
recall list based on merit , date of application for recall,
alphabetical order, lottery, or in any other permissible
manner,' the resulting employee complement would nec-
5 This is in accordance with past practice and is also in accordance
with the provisions of Respondent 's published "Company Policies," ef-
fective April 7, 1987, which it promulgated and implemented after the
decertification
6 NLRB v Great Dane Trailers, 388 U S 26 (1967); NLRB Y Erie Re-
sistor Corp.. 373 U S 221 (1963)
7 See Mackay Radio & Telegraph Co, 304 U S 333. 347 (1938); Bio-Sci-
encc Laboratories, 209 NLRB 796, 803-804 (1974)
1265
essarily consist of permanent replacements , strikers who
returned to work during the course of the strike , and re-
called strikers , in a random pattern premised on blind
chance , with no line of demarcation separating one class
of employee from another and, in the event of a layoff,
with a good probability that the layoff would affect em-
ployees within each class . Clearly, in terms of fairness,
the second alternative is the more equitable , and I con-
clude that Respondent 's apparent definition of fairness is
significantly weighted against the interests of those em-
ployees awaiting recall.
Further, in agreement with the General Counsel 's posi-
tion , I find that the Respondent 's approach is inherently
discriminatory : It creates a subordinate class of employ-
ees-strikers who opted to remain on strike for its dura-
tion-in perpetuity ; it inequitably exposes them to poten-
tial layoff situations ; and it sends a message to employ-
ees, generally , that should they exercise their right to
strike, they are not only subject to being permanently re-
placed, but moreover are subject to forfeiture of their se-
niority, and may be treated , in effect , as new hires.
Clearly, such considerations would have an inhibiting
effect on an employee 's decision to support a strike.
Moreover , from the point of view of Respondent, under
the factual circumstances of this case , the recall proce-
dure it instituted would appear to serve no useful busi-
ness purpose other than to punish strikers and reward
nonstrikers.
The Respondent argues strongly that the system it de-
vised cannot be characterized as a grant of superseniority
to those employees who worked during the strike.
NLRB v. Erie Resistor Corp., supra, which Respondent
attempts to distinguish, appears to be directly in point. In
Erie Resistor , the employer, in order to attract and retain
permanent replacements and induce strikers to return to
work during the strike , credited those employees with 20
years of seniority which would be available only for
credit against future layoffs . Following the strike, a
layoff did occur, and the layoff adversely affected re-
called strikers who, but for the grant of superseniority,
would have been retained.
The Court stated at 231:
In the light of this analysis , super-seniority by its
very terms operates to discriminate between strikers
and nonstrikers , both during and after a strike, and
its destructive impact upon the strike and union ac-
tivity cannot be doubted. The origin of the plan, as
respondent insists, may have been to keep produc-
tion going and it may have been necessary to offer
super-seniority to attract replacements and induce
union members to leave the strike. But if this is
true, accomplishment of respondent's business pur-
pose inexorably was contingent upon attracting suf-
ficient replacements and strikers by offering prefer-
ential inducements to those who worked as opposed
to those who struck. We think the Board was enti-
tled to treat this case as involving conduct which
carried its own indicia of intent and which is barred
by the Act unless saved from illegality by an over-
riding business purpose justifying the invasion of
union rights.
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The instant case poses the converse - of Erie Resistor.
Thus, rather than granting superseniority to permanent
replacements and to strikers who returned to work
during the strike , the Respondent effectively eliminated
the seniority of the employees on the recall list. But the
resultant effect upon the recall rights of strikers, namely,
the denial of benefits, including access to other than
entry level jobs with the attendant higher wages, is iden-
tical, and is similarly unlawful.8
Moreover the Supreme Court's unstated but neverthe-
less apparent determination in Erie Resistor makes it clear
that an employer's promises to replacements in order to
induce them to accept employment during a strike are
not binding to the extent that such promises discriminate
against the recall rights of strikers. Accordingly, the Re-
spondent 's apparent promises to replacements and to
strikers who returned to work during the strike that, in
effect, they would always enjoy superseniority or other
preferential treatment over those employees who exer-
cised their lawful right to remain on strike, are simply in-
valid insofar as the fulfilling of such promises interferes
with the rights of strikers . Even though , as the Respond-
ent emphasizes , it may have been necessary to offer at-
tractive incentives to replacements in order to induce
them to cross the picket line and in some instances even
to bring them to Sitka from outside Alaska, the Respond-
ent has cited no precedent which would permit it to
thereby nullify the rights of strikers.
Both the General Counsel and counsel for the Charg-
ing Parties maintain that the Respondent is precluded
from applying its merit rating system to the unreinstated
strikers . I conclude that this issue is foreclosed as a result
of the dismissal of a charge specifically alleging the im-
plementation of the merit recall system as a violation.
Thus, on August 31, 1987, in Case 19-CA-19242, the Re-
gional Director for Region 19 issued the following dis-
missal letter:
Contrary to the allegations in the charge, the inves-
tigation did not disclose that the Employer illegally
implemented a new system for recalling former
strikers to work . The Employer is not using seniori-
ty but, instead , is using a merit system which it de-
vised after the Union was decertified. Under these
circumstances , I have concluded that it was not ille-
gal for the Employer to devise such a system or to
recall employees by department . In addition, I con-
clude that the Employer did not violate the Act by
not using the new recall system with respect to the
striker replacements because they were hired before
the system was devised.
No request for review was filed . Thus , the Respondent
may utilize its merit recall system in a manner which is
not inconsistent with this decision.°
8 See also Transport Co. of Texas, 177 NLRB 180 ( 1969), enfd 438 F 2d
258 (5th Cir 1971 ); Wisconsin Packing Co, 231 NLRB 546 (1977)
For similar reasons I find that , following the filling of all maintenance
department jobs, a distinct department, the Respondent 's placement of
maintenance employees at the bottom of the recall list is not violative of
the Act There is no showing that this policy decision was discriminatori-
ly motivated , or that it was inherently discriminatory toward strikers as a
class
In this regard , the Respondent has contrived an inter-
esting "bootstraps" argument by its application of the
merit recall system to the employees on the Laidlaw list.
As the Respondent emphasizes , its merit system has been
determined to be lawful and was purportedly instituted
to implement the Respondent 's stated "principal object"
of "improving production as soon as possible" by recall-
ing the best employees first. Thus, having ranked the em-
ployees numerically by merit, the Respondent now con-
tends that the only way to maintain the ranking hierar-
chy is to return the employees to the payroll in numeri-
cal order, which system has been , in effect , approved by
the Board . And in order to accomplish this, the employ-
ees must, of necessity , be given the entry level jobs. The
Respondent 's brief is most instructive on this point:
To achieve the object of a merit system, having
those on the list rated as better employees ahead of
those rated lower, the employees had to stay in
their assigned rank.
Cline explained:
Q. (By Mr. Rubin) I want to ask you a hypotheti-
cal question . I want you first to assume you've got
a merit system out there at the mill, okay?
A. Okay.
Q. But instead of taking the top person , in terms
of merit , off the list and putting them into a bottom
rung job , instead you tried to put them back into
their old position, the job they previously occupied
prior to the strike . Can you give us your opinion as
to what that would do, from a practical standpoint?
A. Well, it would have the ultimate effect of de-
stroying the merit recall system, because then you
would not be recalling people based on merit.
You'd be recalling people based upon terminations.
To preserve the rankings, it was necessary for re-
turning strikers to work up in order of their return.
A striker who came back earlier would thus move
up, as places opened , ahead of a striker who came
back later . A necessary corollary to the merit
system, if it were to be preserved , was that strikers,
like those returning from recall , had to begin at
bottom jobs.
The Respondent's argument does not appear to with-
stand scrutiny . It seems that in order to accomplish the
stated principal objective , namely, to improve production
as soon as possible , it would be more efficient to place
experienced employees in those vacant positions, rather
than the other way around . It must be remembered that
only the Laidlaw-list employees were rated and ranked.
Perhaps valid comparisons can be made as to their rela-
tive abilities, but it simply does not follow that, as a
class, relatively inexperienced employees are more pro-
ductive than individuals with proven abundant experi-
ence.
The most graphic evidence of the relative inefficiency
of Respondent's recall system is exemplified by the unre-
butted testimony of David Hiebert who, for about 10
years prior to the strike, had been a power boiler opera-
tor in the utilities department, one of the three top jobs
ALASKA PULP CORP
in that department . When the strike commenced, he was
making $ 12.96 per hour . He was placed on the recall list
in April 1987 and in July he was recalled to the position
of powerhouse utility, the lowest job in that department,
at the rate of $10.71. 10 Since returning to work, Hiebert
has been required to train several employees. He was
temporarily transferred to his former job , power boiler
operator , because there was no one qualified in a position
below that to perform the work . He trained people
below him who had been hired or returned to work
during the strike , and after the individuals were trained,
Hiebert was returned to his entry level position. He has
repeated this procedure on several occasions , and has
trained people for various positions in higher levels of
the progression ladder . After all employees on the pay-
roll move up a step in the progression ladder, an employ-
ee on the recall list , who may have been qualified to per-
form the higher level job without training , is then placed
in the vacant bottom level position . Clearly, this is the
very quintessence of inefficiency . It must be concluded
from the foregoing that Respondent 's apparent argument
that its lawful merit recall system constitutes an overrid-
ing business justification 11 and validates its refusal to
recall strikers to other than entry level positions is with-
out merit.
Having determined that the Respondent 's recall policy,
whether with or without a merit rating system , is inher-
ently discriminatory and therefore unlawful, there re-
mains the issue of determining the proper method of
recall . In Oregon Steel Mills, 291 NLRB 185 (1988), the
employer was found to have discriminated against un-
reinstated strikers by giving preference to employees
then on the payroll in bidding for job openings, thus
having the result of recalling strikers to the less favor-
able jobs. The Board adopted the finding of the adminis-
trative law judge who concluded that the employer was
also required to permit the unreinstated strikers to bid on
the available jobs.
In the instant case there was never a bidding proce-
dure except from one department into the entry level po-
sition in another department . Further, Respondent did
not initiate any other type of bidding procedure follow-
ing the decertification , nor did it merit rank employees
who were on the payroll when the strike ended in order
to compare their value to the Respondent with the value
of the unreturned strikers , who alone were rated. Under
these circumstances , namely, the finding that under Erie
Resistor, supra, it is inherently discriminatory to confine
recalled strikers to the bottom jobs, together with the
fact that the Respondent has failed to develop any type
of recall system wherein the various classes of employees
have, at the least, an equal right to be considered for a
position for which they may be qualified , 12 there appears
to be no alternative but to require Respondent to offer
the available positions to unreinstated strikers , as the Re-
11 At the time of the hearing he had moved up a step to the position of
fuel tender at $11 13 per hour.
" See Erie Resistor , supra.
12 See Oregon Steel Mills , supra , Transport Co. of Texas, supra , Wiscon-
sin Packing Co , supra, MCC Pacific Valves, 244 NLRB 931 (1979); Tex-
tron. Inc., 257 NLRB 1 (1981)
1267
spondent has not elected to devise a system 13 whereby it
could lawfully prefer an employee on the payroll to an
unreinstated striker . 14 Moreover, this comports with Re-
spondent 's stated intent at the commencement of the
strike, before it devised its inherently discriminatory
system . Thus, on July 11, 1986, immediately after the
strike commenced , the Respondent wrote to the striking
employees , inter alia, as follows:
6. What happens to me if I am permanently re-
placed and the strike ends or I later decide to work?
You will not have the right to return to your job
until the permanent replacement leaves or until
there is an opening for which you are qualified.
The Respondent maintains that the allegations regard-
ing the strikers ' return to entry level jobs are barred by
the 6-month limitations period of Section 10(b) of the
Act. Thus, Cline testified that between July 21, 1986, and
"as late as September 1986," while the strike was in
progress and prior to the decertification of the Union or
the date of Respondent 's development of the merit recall
system , he told the union representatives during a negoti-
ating session that the people who came back to work
during the strike would be afforded the highest position
that was available at that time , and that after all the posi-
tions were filled the people thereafter would be offered
the entry level jobs . During the same period he also
talked to three employees on the telephone , individual-
ly,1 s and told them that:
Well, each one of them called me separately and
asked me, you know , what we were doing as far as
bringing back people to work, and I told them that
we were bringing them back into the job that was
available or the bottom job. And, in fact, Hiebert
made an additional question and asked if that was
being treated basically like some sort of freeze. And
for terms of interpretation I said it could be consid-
ered that , or as far as our recall policy. [Emphasis
added.]
It is clear that at the time Cline made these statements
the strike was only several months old. In addition to the
foregoing, the employees had been told on July 11, 1986,
that if replaced they would have a right to their old job
when their permanent replacement left (above ). There
was then no Laidlaw list and the Respondent was at-
tempting to put all the returning strikers back to work at
their former positions . Respondent's mixed , contradicto-
'a Lone Star Industries, 279 NLRB 550, 551-552 (1986)
14 The Board's caveat in MCC Pacific Valves, supra at 934 fn. 15 is
equally applicable here
We recognize that not every job opening is one that an unremstat-
ed striker , though qualified , is entitled to fill There may be circum-
stances, for example , in which the rights of unreinstated strikers may
conflict with the rights of those strikers who have been reinstated or
even with the rights of permanent striker replacements However,
we find it unnecessary under the circumstances of this case to reach
and pass on these issues
is The record does not reflect whether these individuals , who were
union representatives , were inquiring on behalf of the Union or merely as
concerned employees
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ry, and unclear messages certainly were not explicit
enough to put the Union or the employees on notice that
the Respondent 's intent was, at some time in the future,
to recall employees at entry level positions only, and
thereafter apply automatic progression even though there
were available positions at higher levels . Indeed, there
had been no decertification , and the Respondent had not
yet formulated its recall policy. Thus, I conclude that
there is no merit to the Respondent 's 10(b) argument,
and that the 10(b) period commenced at some point after
April 7, 1987, the date the strike ended. See Southern
California Edison Co., 284 NLRB 1205 fn. 1 (1987).
For the foregoing reasons, I conclude that neither the
long-established automatic progression system nor the
poststrike merit recall system may be utilized as an im-
pediment to the recall rights of strikers , and I find the
Respondent has violated Section 8 (a)(1) and (3) of the
Act as alleged by its failure to offer any and all available
positions to unreinstated strikers.
A related complaint allegation concerns the Respond-
ent's policy of "freezing" a recalled employee for 6
months in the department to which the employee is re-
called (except when the employee is recalled in his or
her prestrike department ) thereby precluding the em-
ployee from bidding into the entry level job' 6 of another
department , including his or her prestrike department,
for 6 months . This policy also applies to new hires, but it
does not apply to recalled employees who return to their
prestrike departments . Thus, the latter employees are
credited with their prior service in that department, and
they are entitled to immediate bidding rights . The Gen-
eral Counsel and counsel for the Charging Parties be-
lieve this is unfair to certain recalled employees who are
frozen in a new department for 6 months , and that they
should be given immediate bidding rights.
The record shows that Respondent's long-established
freeze policy requires that all employees must remain in
a new department for at least 6 months . Further, the
policy does not automatically discriminate against re-
called strikers as a class, but rather may possibly impact
on some recalled strikers but not others , depending on a
number of variables , and even favors some recalled strik-
ers (those who were recalled to their prestrike depart-
ment or who have been back to work in a new depart-
ment for 6 months) over others. I am not persuaded that
this policy, which is applied to all employees , is discrimi-
natory when applied to certain recalled strikers . I shall
therefore dismiss this allegation of the complaint. See
Lone Star Industries, supra.
3. Vacation and holiday pay
The complaint was orally amended on the first day of
the hearing to allege that: "Since beginning to recall
strikers to work in approximately April 1987 and con-
tinuing to date [the Respondent] failed to pay holiday
pay to, or allow vacation to, returning strikers until they
have been back to work a minimum of 90 days."
Regarding the holiday pay, the new "Company Poli-
cies" promulgated by the Respondent on April 7, 1987,
state that:
16 As noted above, only entry level jobs are open for bidding.
To be eligible for a holiday the employees must
have been on the payroll for not less than the
ninety (90) days just proceeding the holiday and the
employee. must have worked the scheduled work
day before and the scheduled work day after such
holiday, unless Management approves the reasons
for absence.
The holiday provision in the expired 1985-1986 collec-
tive-bargaining agreement , section 7,F,1, is similar, and
requires an employee to be "on the payroll for not less
than the ninety (90) days just preceding the holiday."
It appears from the foregoing company rules that the
Respondent is not required to pay holiday pay to an em-
ployee unless he has been on the payroll (i.e., "back to
work" in the language of the complaint allegation) for
not less than 90 days preceding the holiday . Therefore,
as no discrimination against former strikers has been
demonstrated , I shall dismiss this allegation of the com-
plaint. The fact that the Respondent did mistakenly pay
holiday pay to some few employees who had not been
back to work for 90 days 'appears to have been a clerical
error and does not alter my conclusion.
That part of the aforementioned oral amendment to
the complaint referring to vacation pay alleges , literally,
that the violation results from Respondent 's failure to
pay vacation pay to returning strikers until they have
been back to work a minimum of 90 days . However, the
theory advanced by the General Counsel and counsel for
the Charging Parties has nothing to do with a 90-day
waiting period for vacation pay. Rather, the issue, fully
litigated , involves the fact that at the outset of the strike
the Respondent paid each striking employee his or her
pro rata share of vacation pay earned to the date of the
strike; but after the strike , the Respondent refused to pay
recalled employees vacation pay corresponding to a full
year of work even though they allegedly fulfilled the re-
quirements embodied in section 22 (vacations) of the
prior collective-bargaining agreement and in the booklet
entitled, "Company Policies-Effective 4/17/87,"; namely,
(1) being on the payroll on their anniversary date, (2)
having been an employee for not less than 1 year prior
to their anniversary date, and (3) working a minimum of
1000 hours during the year. Upon the anniversary date
of recalled employees who fulfilled each of the three re-
quirements , the Respondent refused to pay for a full
year's vacation , but rather paid them the remaining pro
rata share of their vacation pay that they had not been
paid at the outset of the strike . Thus, essentially, it is al-
leged that the Respondent has failed to adhere to the ex-
plicit provisions of its vacation pay policy.
The General Counsel would interpret the second re-
quirement , supra, as having been fulfilled by the strikers
during the strike, since they remained "employees" de-
spite the fact that they were withholding their services.
The Respondent would interpret the clause to mean that
the employee must be on the payroll or at least not vol-
untarily withholding his or her services . While the facts
are undisputed , neither the General Counsel nor counsel
for the Charging Party has cited any authority in support
of their positions in this matter . Moreover , it appears that
the issue is one of contract or policy interpretation not
ALASKA PULP CORP. 1269
cognizable by the Board. Therefore, I shall also dismiss
this allegation of the complaint.
4. Alleged discriminatory rating of union officials
It is alleged that the Respondent , for discriminatory
reasons, rated five former union officials lower than they
should have legitimately been rated, and thereby placed
them in lower positions on the recall list.
The record shows that each employee was rated by a
number of supervisors , and the numerical results were
averaged to arrive at a final score . Further, it is clear
that the ratings necessarily involved each supervisor's
subjective evaluation of employees' relative worth or
ability. It is clear, as Cline testified, that the Respondent
purposefully designed its merit rating system for the
recall of employees to entry level jobs with the intention
of having the employees remain in their respective nu-
merical order thereafter. Thus, as Cline testified, to recall
employees to their former jobs would have the "ultimate
effect of destroying the merit recall system , because then
you would not be recalling people based on merit." As
the Respondent 's recall policy has been found to be un-
lawful, it appears that in order to implement the recall of
employees in a manner consistent with this decision the
Respondent will not be utilizing the merit recall system
as originally intended . Therefore , any detriment to em-
ployees who are alleged to have been rated in a discrimi-
natory fashion is speculative.
Moreover , even assuming arguendo that the Respond-
ent has discriminated against such employees , there is no
practical method to determine where in the rankings
they should be placed . Thus, the employees in question
testified as to their past noteworthy employment history,
but they did not testify that they were superior to any
other specific individual who had a higher numerical
score , and the record contains no facts on which to base
such a determination.
Finally, the General Counsel and counsel for the
Charging Parties base their arguments on a statistical
analysis of the merit ratings of the union officials. The
analysis shows , generally, that the employees in question
were rated lower than most but higher than some em-
ployees in their respective departments.
I find the foregoing record evidence insufficient to
warrant the conclusion that the merit ratings in question
were discriminatorily motivated in violation of the Act,
and I shall dismiss this allegation of the complaint.
5. The discharge of certain strikers
a. Robert Kinville
(1) Facts
Robert Kinville was hired in 1964 and worked contin-
ually until the time of the strike in July 1986. He was the
senior mill boom man in the log handling department
and at the time of the strike was earning $13.22 per hour.
There were two others above him in seniority in that de-
partment . He was recalled after the strike on November
18, 1987 , as a bundle deck person , the entry or lowest
position in that department , at $11.03 per hour.
On the evening of November 20, 1987, Kinville re-
ceived a call from the guard on the night shift who
asked whether he would be interested in a temporary po-
sition which required working on logs in the mill pond.
This was the job that Kinville had prior to the strike.
Kinville told the guard that he was unable to accept the
job because it required certain safety equipment ; namely,
a pair of cork shoes or boots." On the following morn-
ing, November 21, 1987, at the guard shack , during a
casual conversation with Frank Simmons, a security
guard and long-time personal acquaintance , Kinville ex-
plained that he had the opportunity to work an extra
shift the previous night at his old job but could not
accept the job until he replaced a pair of cork boots that
had been stolen from his locker by "some scabs" at the
beginning of the strike.
Later that day Kinville told Marty Frederickson, his
shift foreman , who had worked the night before per-
forming the job that Kinville was unable to accept, that
he had been unable to work the extra shift because he no
longer had the required cork shoes ; that at the beginning
of the strike his locker had been opened and the shoes
were missing ;18 and that he thought that "some scabs"
had probably stolen them . Kinville testified that during
this conversation with Frederickson he was "calm and
friendly" and was trying to find out if he was going to
have to buy his own cork shoes or if the Company still
provided them as it had prior to the strike.
Frederickson , a shift foreman , has known Kinville for
22 years. He had worked the night of November 20,
1987, because he had to take the call- in that Kinville re-
fused . Frederickson testified that on the morning of No-
vember 21, 1987, he was making his rounds as shift fore-
man and asked Kinville why he did not take the call-in
the night before because Kinville was experienced and it
should not have been a big deal for him. Kinville replied,
according to Frederickson, "the f-ing scabs stole my
boots." Frederickson was taken aback because, according
to Frederickson, he was "one of those f-ing scabs that
Kinville was referring to." Frederickson then reported
this to Carl Alsup , his supervisor . Frederickson testified
that employees were not to refer to each other in a de-
rogatory manner and were not supposed to refer to re-
placement employees as scabs ; there was supposed to be
peace in the family following the strike.
Carl Alsup, wood prep supervisor, testified that he had
been instructed to meet with all the employees in April
1987 and advise them that the labor dispute was over
and done with and that there was to be no harassment
whatsoever regardless of the employees ' personal feel-
ings about the matter . Alsup testified that he met with
Kinville on November 18, 1987 , the day Kinville was re-
called to work and conveyed this message to him.
On November 21, 1987, Alsup mentioned to his imme-
diate supervisor, Norman Richards , that there was a
"slight problem" with Kinville, namely that Kinville had
14 These are boots with sharp spikes attached to the soles to prevent
slipping on the logs
1s Kinville testified that he had received permission to enter the plant 2
weeks after the strike commenced to pick up his personal belongings
from his locker, and discovered that the boots were missing
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said some things at the security office that other employ-
ees objected to. Thus, Alsup explained that employee
Gary Wilson had previously told Alsup that as Wilson
and others were near the timeclock at the guard shack,
Kinville looked directly at Wilson and said , "those f-
ing scabs have stolen my boots , my cork boots," and
that , according to Wilson , several employees voiced ob-
jections to him about this remark . Also, according to
Alsup, Frederickson complained to him about Kinville's
remark. Alsup testified that he had instructed his people
not to use the word "scab," as it was a word people did
not like.
On November 23, 1987 , Kinville was summoned to the
office of Production Superintendent Norman Richards.
Following some discussion , Kinville was given the fol-
lowing letter:
This letter is to confirm our conversation of this
date in the presence of Carl Alsup , Emil Stefanovic,
and myself.
When you returned to work on November 18, 1987,
following the strike , you were told that it was in-
cumbent on you to work cooperatively with the ex-
isting work force. You were also warned that any
acts of disruption and/or disorderly conduct on
your part, or another worker 's part , would result in
the immediate discharge of all concerned.
On November 21, 1987 as you reported for work on
day shift you were asked by the Security Guard, in
the presence of several employees , why didn't you
take the call -in that day for Boomman. You replied,
"Because scabs stole my boots ." You also made a
similar reply to another employee at the Woodroom
to the same question .' 9 As you are well aware the
term "scab" is clearly derogatory and inflammatory.
Therefore, you are terminated for disorderly con-
duct.
Richards testified that he made the decision to dis-
charge Kinville because he was not apologetic , thus indi-
cating that he would not be reluctant to continue to refer
to replacements as scabs, and because Frederickson and
Wilson were upset with Kinville. Further, Richards testi-
fied that he concluded that Kinville's conduct was delib-
erate and there were no mitigating circumstances . Lastly,
Richards testified that the basic reason for his decision to
discharge Kinville was his disruptive behavior , rather
than the precise words he uttered , 20 and that he prob-
ably would have only given Kinville a warning or short
suspension if Kinville had indicated that he would not do
it again.
In September 1987, Richards gave two employees,
who were replacements hired during the strike , a 4-day
suspension for disorderly conduct. Richards explained
that those employees took time away from their jobs for
19 Apparently referring to Shift Foreman Frederickson, who was an
admitted supervisor on the day of the incident
20 Kinville maintains that he did not say "f-mg" scabs, whereas Re-
spondent's witnesses claim that he did. In any event, Richards testified
that regardless of the expletive, which was not uncommon parlance at
the mill , the result would have been the same.
a few minutes and engaged in a verbal quarrel regarding
a work-related matter, used abusive language toward
each other , and were at the point where they were likely
to get into a physical fight.
Following the decertification of the Union , the Re-
spondent had established an appeal procedure and Kin-
ville appealed the matter of his discharge . A meeting was
held on November 24, 1987 . Kinville testified that in his
defense he said he had not used the word scab in a de-
rogatory manner and was not confronting anybody; that
his remarks were not intended to cause disruption; and
that he believed he was within his rights to use that
word . The record shows that prior to this appeal meet-
ing Kinville had been back to work for 5 days and there
were no problems between Kinville and his coworkers.
Further, he had never received a reprimand for misbe-
havior in over 22 years of employment with Respondent.
The appeal committee agreed with Richards ' evalua-
tion of the matter , and concluded that because of the un-
friendly feelings among employees at the mill, such pro-
vocative language could not be permitted. Further, as
Kinville did not seem to think there was anything wrong
with what he said, the committee believed that Kinville
was likely to continue this disruptive behavior.
(2) Conclusions regarding Kinville
It is clear that the strike was bitter and extremely divi-
sive, that employees harbored strong sentiments thereaf-
ter, and that recalled strikers with years of seniority
were required to accept inferior jobs with very little like-
lihood of ever progressing to their former jobs; With
such concerns in mind, the Respondent emphasized to its
employees that any remarks or conduct tending to exac-
erbate the matter would not be tolerated. However, at
the time of Kinville's return the situation was certainly
not volatile, and in fact, as Respondent states in its brief,
the tensions among the employees seemed to have eased.
I find that Kinville's remarks, which he repeated to a
security guard and a supervisor, were not directed
toward any particular individuals , 21 and were primarily
intended to convey Kinville 's strong disappointment that
he was unable to accept a work assignment , rather than
to express his sentiments about employees who worked
during the strike.
It is significant that about the same time , in September
1987, Richards applied an entirely different standard to
two nonstrikers who were in fact verbally harassing each
other to the point of a physical confrontation . Richards
deemed that this conduct warranted a 4-day suspension.
Had Kinville verbally harassed a nonstriker about work-
ing during the strike to the same extent, it appears that a
suspension of a similar length would not have been inap-
propriate. But summary dismissal , under all the circum-
stances here, including Kinville's 22-year employment
history and the fact that he worked 5 days upon his
return with no problems , clearly demonstrates that the
discipline imposed on Kinville was motivated not by any
21 Indeed, after investigating the matter , Richards' letter to Kinville
states only that Kinville made the remark "in the presence of several em-
ployees." Wilson did not testify in this proceeding
ALASKA PULP CORP.
"acts of disruption and/or disorderly conduct ," as Pro-
duction Superintendent Richards set forth in the Novem-
ber 27, 1987 dismissal letter, but rather by considerations
premised on Kinville's innocuous use of the word
"scab," thus manifesting his support of the Union and the
strike . The fact that Kinville did not apologize and be-
lieved he had done nothing wrong did not thereby give
Richards or the appeal committee reason to conclude
that Kinville would thereafter harass employees about
the strike, because this was clearly not Kinville 's intent
in discussing the matter with his supervisor and the secu-
rity guard . Moreover , the situation was not one that re-
quired the Respondent to take immediate preemptive
action against Kinville in anticipation of his possible har-
assment of employees , as Kinville had never demonstrat-
ed that type of behavior in the past , and there was at the
time no perceived atmosphere of tension among the em-
ployees.
Respondent's overreaction to Kinville 's remarks, under
all the circumstances , mandates the conclusion that his
discharge was premised upon his continued union sympa-
thies rather than on any legitimate employer concerns.
Further, it appears that the Respondent was under the
misconception that it was within its right to forbid the
use of the word "scab" under any and all circumstances
lest the word should offend the sensibilities of some em-
ployees . See Southwestern Bell Telephone Co., 276 NLRB
1053 fn . 2 (1985). I conclude that Kinville 's discharge
was violative of the Act, as alleged.
b. Mark Simmons
(1) Facts
Mark Simmons was first employed in January 1986
and went out on strike in July 1986. On March 27, 1987,
during the strike , he called Jess Cline to find out if he
could be rehired . Cline said he would call him when a
job became available. Cline called him later that day and
said he could come to work the following Monday,
March 30, 1987, as a log tender . However , Simmons did
not go to work that Monday . Rather, he sent a letter to
the Company which stated , according to Simmons, that
he thought there were more needy people who should be
recalled first , and also that he did not want to return to
work before the strike was officially over . 22 In April or
May, Simmons telephoned Cline to find out why he had
not been placed on the Laidlaw list. Cline replied that
Simmons had been terminated for refusing to return on
March 30.
Following the strike the Respondent sent letters to em-
ployees who were eligible for recall , stating that the
deadline for placing their names on the recall list was
June 7, 1987. Apparently, Simmons was not sent such a
letter as the Respondent believed that he was not inter-
ested in being recalled . However, Simmons sent a letter
to the Company dated June 5, 1987 , stating : "I, Mark
Simmons, want to be put down for the reinstatement
list." The Respondent apparently maintains that it did
22 The letter cannot be located and there is a dispute over its contents
1271
not timely receive this letter which , according to Sim-
mons, was hand-delivered by his father on June 5, 1987,
by the June 7 deadline . However, the Respondent does
acknowledge receipt of the letter.
Karla Parrish is assistant personnel manager for Re-
spondent . Parrish testified that in March 1987, a few
days after Simmons had been offered a job, she received
a note written by Simmons stating that he was declining
the job offer as there were others more in need of a job
than he was . Cline corroborated this testimony of Parrish
and testified that the note did not indicate that Simmons
intended to reserve his right to return to work at a later
date.
(2) Conclusions regarding Simmons
It is alleged that the Respondent unlawfully failed to
include Simmons ' name on the recall list. Assuming ar-
guendo that, as Parrish and Cline testified , Simmons ini-
tially stated in his note only that he was declining the
job offer because there were other employees more in
need of a job, it is clear that Simmons did not state that
he had no further interest in working for Respondent, or
that he had found substantially equivalent employment
elsewhere.
I find that Simmons indicated to Cline by telephone
shortly after the strike ended that he wanted to return to
work. 23 Moreover , I find that he sent the Respondent a
letter to this effect on June 5 , 1987, prior to the June 7,
1987 deadline that was given to the strikers who were in-
terested in being recalled . Whether the Respondent re-
ceived this letter prior to the deadline or shortly thereaf-
ter would appear to be inconsequential.
Under the circumstances, I conclude that the Respond-
ent was clearly put on notice in a timely fashion that
Simmons wanted his name to be included on the recall
list. As a result of Simmons ' initial decision to turn down
a job offer during the strike, the Respondent may not
have been obligated to seek out Simmons or affirmative-
ly inquire as to his interest in being recalled after the
strike . However, having received clear and timely notifi-
cation by Simmons, there appears to be no lawful reason
for refusing to honor Simmons ' request . See Heritage
House, Inc., 245 NLRB 242, 249 (1979). Thus, I find that
by refusing to place Simmons' name on the recall list and
thereby denying him the opportunity for employment,
Respondent has violated Section 8(a)(1) and (3) of the
Act, as alleged.
c. Florian Sever
(1) Facts
Florian Sever was denied reinstatement for sending the
following letters , dated August 16 and 19 , 1986, respec-
tively, to the management of ALP in Japan , and to vari-
ous newspapers , including the Sitka , Alaska newspaper:
as Cline testified that he did recollect a telephone call but believed it
was after June 7 , 1987, the date of the deadline However , he could not
say with certainty that the telephone call was not in April or May, as
Simmons testified I credit Simmons as to the approximate date of the
phone call
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dear Editor,
In the past ten years ALP has been able to secure
from the city of Sitka and-or its citizens the follow-
ing concessions and favored treatment:
1. Reduced tax assessment due to lowered evalua-
tion of mill property.
2. Ten-year moratorium on taxes, granted by city
at mill start-up.
3. City support in D-2 hearings.
4. City support in E.P.A. hearing.
5. Construction of Green Lake project. Mill uses
approximately 33% of output of hydro plant.
6. City and state support in 8.2 million dollar loan
guarantee for sludge disposal plant.
7. City partial payment of wages allotted, by the
courts, in lawsuit stemming from ALP's contracting
out of brush removal work at Green Lake site.
8. Timber from Green Lake project was awarded
to ALP without competitive bidding.
9. Maintenance employees at ALP were placed
on an involuntary 32 hour work week for approxi-
mately two years. ( 1983-1984).
10. A 10% voluntary pay cut by hourly workers
at ALP.
11. A voluntary freeze in C.O.L.A. by hourly
workers at ALP.
12. A 30% forced reduction in wages and bene-
fits. ( 1985 contract.)
13. City endorsement of ALP's position in cur-
rent Forest Service negotiations.
Before each of these requests by ALP, they stated that
these concessions were necessary for the mill to make a
profit or to "stay in operation ." To hear ALP's latest
lament , none of these concessions appear to have done
any good.
When will all of this end? Can the citizens of
Sitka and Alaska afford to be allied with a company
who always insist [sic] on taking every advantage,
yet seems to fail at every turn?
Are they making a hidden profit or can a compa-
ny who claims to have accrued a 120 million dollar
loss, over a period of more than 20 years, really
expect to suddenly turn a profit?
Before anybody make [sic] a decision on these
questions he or she should remember back to the
outcome of the Louisiana Pacific, Ketchikan-ALP
vs. Reid Brothers lawsuit . Any statements made by
a company with a track record like ALP's should
be taken , "with a grain of salt."
Remember one thing. The only thing that the
timber in the Tongass National Forest brings to the
economy of Southeast Alaska is jobs.
If the standard of living of the workers at ALP is
further reduced , the increased tax burden generated
must be absorbed by all the other members of the
community , not to mention the reduced "buying
power" these people will have in the community.
Many people will lose their homes, their liveli-
hoods and possibly their families . The wages of the
workers at ALP are the only benefits generated by
the mill that stay in the community . Virtually all of
ALP's purchases are from "out of state," and all of
their sales are out of the country , only the workers
[sic] wages stay here.
It is time for the citizens of Sitka to take a stand
behind fellow Sitkans, instead of a foreign entity.
Editor:
I would like to take this opportunity to clear up a
question of honor. At the onset of negotiations,
Local 962 officials and U.P.I.U. Regional officials
were accused of not honoring an agreement alleged-
ly made between George Ishiyama , representing
A.P.C. and Fran Pothier, Regional Vice President
of U.P.I.U. The honesty and integrity of Mr. Poth-
ier are above reproach . As for the honesty and in-
tegrity of Alaska Pulp Corporation and its manag-
ers, the following questions come to mind.
1. Is it HONORABLE to maintain two sets of
business records?
2. Is it HONORABLE to conspire with another
corporation to force others into bankruptcy?
3. Is it HONORABLE to hire and relocate new
employees under false pretenses?
4. Is it HONORABLE to say to your employees,
"There is NO more money ," yet spend many times
the amount they asked for to replace them with
new workers?
5. Is it HONORABLE to tell your employees,
"You are our most valuable resource," then cast
them aside when they ask for an equitable wage?
6. Is it HONORABLE to promise to bargain in
good faith, then fail to do so, time and time again?
A.P.C. is a company controlled by the Industrial
Bank of Japan and other Japanese companies which
are in turn controlled by the government of Japan.
Are the answers to the above questions indicative of
the honor of the Japanese people? Is Japan being
misrepresented by a few self serving , greedy indi-
viduals? If yes is the answer to this last question, it
is time for the record to be set straight. Action must
be taken by the people of Japan to right the wrongs
that are being done in their name . If the answer is
no, then I say to my beloved State of Alaska and
the United States of America, "Beware of Japan.
Her offer of friendship is but a Trojan Horse that
once taken in will open to plunder our vast re-
sources, leaving only a hollow shell to be cast aside
when no longer profitable."
Honor is a thing that is absolute . It is neither
qualitative nor quantitative . You are either honora-
ble or you are not. You cannot cheat and still be
honorable . You cannot tell lies and still be honora-
ble. You cannot live and do business by a double
standard and still call yourself . . . honorable.
Sever is an active union adherent , a prolific letter
writer, and a convincing spokesman for various causes.
He has utilized his persuasive talents to attempt to con-
vince various individuals or forums from the readership
of various newspapers , supra, to the Congress of the
United States , infra, that the Respondent 's business prac-
ALASKA PULP CORP.
tices are inimical to its employees , to the community of
Sitka, and to southeast Alaska.
The Respondent in its brief maintains that Sever was
refused reinstatement because of his "deliberately racist,
vocal, vitriolic disloyalty to his employer" in the letters,
particularly the second letter . Indeed, Dennis Huse, Re-
spondent's controller and chief financial officer, testified
that he believed the second (August 19) letter was "terri-
bly offensive," because "honor" to the Japanese is cen-
tral to all dealings and of the utmost importance , and the
letter constituted an attack on the honesty and honor of
the Company and its management . Regarding the first
(August 16) letter, which was printed in the Sitka news-
paper, Huse testified that he found it to be "somewhat
objectionable" but "not the worst thing I had ever seen,"
and that it would not have constituted grounds for dis-
missing Sever . Indeed, Huse testified that to his knowl-
edge no one from the Company ever advised him that
Sever was being discharged because of the August 16
letter. When asked to specifically relate what was objec-
tionable in the August 19 letter, Huse pointed out, inter
alia, that he found the statement about maintaining two
sets of business records personally offensive as he, as
controller, is in charge of the books.
The August 16 letter mentions a lawsuit that Respond-
ent was involved in: Louisiana Pacific, Ketchikan-ALP
vs. Reid Brothers . The August 19 letter states, "Is it
HONORABLE to conspire with another corporation to
force others into bankruptcy?" In his testimony , before
both the United States House of Representatives (May
19, 1987) and the United States Senate (November 5,
1987), regarding H.R. 1516 and S.708, respectively (The
Tongass Timber Reform Act), Sever mentioned that in
1981 Alaska Pulp and another company were "convicted
of conspiracy in restraint of trade and commerce and for
actual monopolization of trade." Apparently, this is what
Sever was referring to in the August 19 letter when he
asked , "Is it HONORABLE to conspire with another
corporation to force others into bankruptcy?"
There is nothing in the record, however, indicating
what Sever was talking about when he asked, in the
August 19 letter, whether it was honorable for the Re-
spondent to maintain two sets of books . Sever never ex-
plained this statement , even after Huse testified that it
was particularly offensive to him.
On June 3, 1987, Sever wrote to the Respondent re-
questing that his name be placed on the preferential
hiring list. Vice President of Industrial Relations Jess
Cline replied on June 30 , 1987, stating that Sever was
not eligible for the list because he had abandoned his job;
he had accepted equivalent employment elsewhere; and
for "Bona Fide Business Necessity ." Sever requested an
explanation of the reasons advanced by Respondent, and
on July 28, 1987, Cline sent the following response:
This is in response to your request for an explana-
tion of your rehire status.
We are informed that you are, or were, employed
by Arnie Johnson, owner of Mountain Aviation.
We are also informed of your statements and activi-
ties destructive to the Company and related logging
operations . These activities indicate a lack of con-
1273
tinuing interest in employment at the mill. Further,
it is our bona fide business object to keep the Com-
pany operating.
(2) Conclusions regarding Sever
Interestingly , both the General Counsel and counsel
for the Charging Parties have presented forceful and per-
suasive arguments in their briefs that, contrary to Re-
spondent 's contention , Sever was denied reinstatement
not because of the statements contained in the August 19,
1986 letter, but rather because of his testimony before
Congress . Indeed, it appears that counsel would have me
conclude that Respondent 's admitted reason for discharg-
ing Sever is pretextual and that , in fact, Respondent con-
doned Sever's remarks contained in the August 19, 1986
letter, and thereafter determined to deny him reinstate-
ment because of his May 19, 1987 testimony before the
House of Representatives.
Contrary to the contentions of the General Counsel
and counsel for the Charging Parties, and despite sub-
stantial evidentiary support for their arguments, I find
that the record evidence, particularly Respondent's un-
equivocal admission , warrants the conclusion that the
August 19, 1986 letter was a substantial cause of Re-
spondent 's denial of reinstatement to Sever.
It is clear that Sever, as a member of the Union's
public relations committee during the strike, wrote the
letter to elicit community support for the strike and also,
apparently , to persuade responsible representatives or
principals of Respondent to "right the wrongs" and
become more sympathetic toward the Union 's concerns.
Such activity is clearly "concerted." See Meyers Indus-
tries, 281 NLRB 882 (1986); El Gran Combo, 284 NLRB
1115 (1987); Emarco, Inc., 284 NLRB 832 (1987).
I further find that such concerted activity was also
protected. The content, tone, and tenor of the letter,
with its emphasis on the Japanese concept of honor in re-
lation to the ongoing strike, does not appear to be "so
disloyal , reckless, or maliciously untrue"24 as to deny
Sever the protection of the Act. While it is perhaps true
that Japanese representatives of Respondent would find
the letter more offensive than Respondent's American
counterparts, it has not been demonstrated by Respond-
ent that, absent obvious racist or other malicious slurs,
ethnic sensitivities , or subjective reaction alone are deter-
minative of the Act's protection.25 Here, Sever is assert-
ing his belief that the Respondet is not acting in an hon-
orable fashion vis-a-vis its relationship with its employ-
ees. Concepts, which the word "honorable" encom-
passes, such as honesty , fairness, and integrity, are cus-
tomarily called into play, implicitly or explicitly , during
labor-management relationships . Such rhetoric is under-
stood to be a part of strike situations where the very
livelihoods of individuals and the profitability of compa-
nies are being determined . And in such matters the
Board permits a great deal of latitude . Emarco, Inc.,
supra ; Postal Service, 250 NLRB 4 (1980); New York Uni-
versity Medical Center, 261 NLRB 822, 823-824 (1982);
24 Emarco. Inc, supra
25 See H,ghv,ew. Inc., 235 NLRB 672, 675-676 (1978)
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Harris Corp ., 269 NLRB 733, 738-739 (1984); Squier Dis-
tributing Co., 276 NLRB 1195 (1985 ); Ben Pekin Corp.,
181 NLRB 1025, 1028-1029 (1970); Dreis & Krump Mfg.,
221 NLRB 309, 314-315 (1975). Sever 's letter does not
exceed the permissible limits encompassed by the forego-
ing decisions.
In addition to the theme of "honorableness ," Respond-
ent takes particular exception to Sever's accusations of
unlawful conduct . Thus, Sever accuses the Respondent
of conspiring with another corporation to force others
into bankruptcy . Apparently , this is a reference to the
lawsuit, supra , which Sever mentioned in his August 16
letter and again in his testimony before Congress, and
there is no record evidence that this is other than a fac-
tually accurate statement . Similarly, while the record is
devoid of any evidence explaining or supporting Sever's
statement that Respondent maintains two sets of records,
neither is there any contrary evidence ; nor has there
been any attempt by Respondent to show that this state-
ment is "maliciously untrue ."26 As noted above, the only
evidence on this point is Controller and Chief Financial
Officer Huse 's limited testimony that he found the state-
ment regarding the two sets of records to be personally
offensive . While the aforementioned references by Sever
do not directly relate to the instant labor dispute, never-
theless the accusations are clearly designed to lend cre-
dence and support to Sever's overriding theme that Re-
spondent 's alleged unlawful modus operandi in certain
other business affairs carries over to its relationship with
employees . Accordingly, I conclude that the record evi-
dence does not support Respondent's apparent conten-
tion that Sever's references to the Respondent 's unethical
or unlawful conduct are sufficient to preclude his rein-
statement.
The Respondent contends that Sever is not entitled to
reinstatement because he obtained regular and substan-
tially equivalent employment as a mechanic with Moun-
tain Aviation , a Sitka company that operates amphibious
airplanes and helicopters and performs charter work.
The Respondent furnishes Mountain Aviation with about
40 percent of its business . Arnold Johnson, owner of
Mountain Aviation , hired Sever during the strike. John-
son testified that in the first week of April 1987, upon
the conclusion of the strike , he asked Sever what his in-
tentions were about going back to work for the mill.
Sever said , according to Johnson , that he had "buried
the hatchet with those-and I'm not-I don 't care if I
ever go back to work for them." Sever denies that he
made this statement . Rather, Sever testified that he told
Johnson that he did not think he would ever go back to
work for Respondent because he had been fired. I deem
it unnecessary to make a credibility finding on this point.
Nor does it matter that Johnson may have believed that
Sever intended to remain with Mountain Aviation and,
as a result , expended over $ 1000 on his training as a heli-
copter mechanic.
Mountain Aviation is a small employer, apparently
with only several employees, whereas the Respondent
operates a large mill, engages in extensive logging oper-
ations, and employs over 300 employees . The Respond-
26 Emarco, Inc., supra . Squier Distributing Co., supra, 1198.
ent has not established that the wages, hours, job oppor-
tunities, job security , nature of the work , fringe benefits,
or any other matters of interest to employees are substan-
tially equivalent between the two companies . Indeed,
even if Sever had terminated his employment with the
Respondent during the strike in an effort to obtain em-
ployment with Mountain Aviation or any other employ-
er, this would not have been enough to deny him rein-
statement when jobs became available . See Pacific Tile &
Porcelain Co., 137 NLRB 1358 (1962); Harvey Engineering
Corp., 270 NLRB 1290, 1304 (1984); Coca-Cola Bottling
Co., 232 NLRB 794, 810-811 (1977); Little Rock Airmo-
tive, 182 NLRB 666 ( 1970); Woodland Hospital, 233
NLRB 782, 791 ( 1977); Heritage House, Inc., 245 NLRB
242, 248-249 (1979).
On the basis of the foregoing, I conclude that Sever
did not obtain the requisite substantially equivalent em-
ployment which would privilege the Respondent 's refus-
al to place him on the recall list . I further conclude that
Respondent refused to place Sever on the Laidlaw list
and thereby denied him employment opportunities be-
cause of his authorship of the August 19, 1986 letter. As
a result, in both instances , the Respondent has violated
Section 8(a)(1) and (3) of the Act, as alleged.
d. Shawn McLeod
(1) Facts
The Respondent maintains that Shawn McLeod was
properly denied reinstatement due to strike misconduct.
Jess Cline testified that he heard from Larry Smith and
Mark Stubblefield, two replacement employees , that in
January 1987 a barroom fight broke out at the Kiksadi
Club in Sitka when McLeod put his hand on Smith's
shoulder and said , "What's your problem, scab?" Smith
threw the first punch, breaking McLeod's jaw , and both
McLeod and Smith suffered extensive injuries. Smith
quit work shortly thereafter and left the area . He did not
testify . Stubblefield testified that McLeod provoked the
fight by accosting Smith , as noted above.
McLeod testified that Smith threw the first punch
without provocation , that neither he nor anyone else
mentioned the word "scab ," and that Smith was a total
stranger to him.
(2) Conclusions regarding McLeod
McLeod favorably impressed me as a highly credible
individual, and I credit his testimony in its entirety. I
find that McLeod did not in any manner provoke the
fight or refer to Smith as a scab . The Respondent main-
tains that it defies credulity to conclude that Smith, ap-
parently a man of slight stature, would confront a man
the size of McLeod, who is 6 feet 8 inches tall and
weighs 300 pounds . While Smith 's conduct may show a
profound lack of good judgment, barroom fights are
seldom consonant with common sense. I further credit
McLeod 's testimony over that of Cline and find that
Cline never advised McLeod that he could bring in wit-
nesses to attest to the fact that McLeod was merely an
innocent bystander and had nothing to do with provok-
ing the fight . Rather , I find that, as McLeod testified,
ALASKA, PULP, CORP. ,
Cline simply told him that Cline's mind was made up,
and McLeod could go to the NLRB with his problem.
Accordingly, I conclude that Respondent 's denial of
recall rights to McLeod is violative of Section 8(a)(1)
and (3) of the Act, as alleged. Desert Inn Country Club,
275 NLRB 790 ( 1985).
e. Debbie Harriman
(1) Facts
The Respondent contends that Debbie Harriman was
denied reinstatement due to strike misconduct , namely,
intentionally throwing one -half of a cup of beer on
Becky Faeger at the Kiksadi Club.
Faeger was employed by the Respondent as a security
guard during the strike . Harriman testified that several
softball teams made a customary stop at the Kiksadi Club
after their softball games , and there was considerable
conviviality , particularly on the part of Harriman and
members of her team who had just won an important
game . During the festivities , someone bumped into Har-
riman causing her to spill part of a cup of beer on Becky
Faeger's sweater . Harriman told Faeger that it was an
accident . Faeger, who was a neighbor of Harrimans, ap-
parently did not believe her and felt it was strike related.
Thus, she accused Harriman of intentionally spilling the
beer on her, and began explaining to Harriman that she
had to cross the picket line because she was going to col-
lege and needed to pay her college fees . Harriman, who
was on strike , replied that she had to feed her kids, too.
Harriman testified that she had not had any prior dis-
putes with Faeger but that as a result of the strike situa-
tion "they never really talked ." Faeger did not testify in
this proceeding.
(2) Conclusions regarding Harriman
I credit Harriman and find that the beer spilling inci-
dent was accidental and not strike related . Further, I find
that at all material times, including her later conversation
with Cline about the matter , Harriman continued to pro-
fess that it was accidental. Therefore, by denying Harri-
man her Laidlaw recall rights, the Respondent has violat-
ed Section 8(a)(1) and (3) of the Act, as alleged. Summa
Corp., supra.
f. Kay Harrison
(1) Facts
The Respondent refused to reinstate Kay Harrison be-
cause of her part in vandalizing a vehicle owned by the
Ray brothers, who openly opposed the strike and the
Union.
Kay Harrison is the wife of John Harrison, a vice
president of the Union and, also, picket captain during
the strike . There were four people in the Harrison 's auto-
mobile on the night of January 9 or 10, 1987; namely,
Kay Harrison , John Harrison , Matt Jones , and Carolyn
Ludlow. The General Counsel correctly poses the issue,
as follows : Were the Harrisons and Matt Jones telling
the truth when they testified they had nothing to do
with breaking the windows of the Ray brothers ' truck,
1275
or was Ludlow telling the truth when she directly con-
tradicted their testimony.
Ludlow testified that on the night in question John
Harrison and Jones got out of the Harrison 's car in order
to break the windows of the Ray brothers' truck, at
which time Kay Harrison moved over to the driver's
seat pursuant to John Harrison 's instructions . Shortly
thereafter, according to Ludlow , the two men came back
to the car in a hurry, bragged about what they had done,
and John Harrison got behind the wheel and drove
off.27
Ludlow went out on strike and returned to work on
February 7, 1987. She has continued working since that
date . She did not advise anyone of her knowledge of the
window-breaking incident until February 29, 1988, short-
ly before the hearing in this matter , 28 at which time, ac-
cording to Ludlow , she became concerned about being
subpoenaed for the instant hearing and also feared bodily
harm or property vandalism by the Harrisons or Matt
Jones.
(2) Conclusions regarding Harrison
The General Counsel has presented no convincing evi-
dence for discrediting Ludlow 's testimony . Based on her
demeanor , and particularly the fact that her testimony
constitutes , in effect , a clear admission against interest as
a result of giving a false report of the incident to the
police, I find that her account of the event is credible. I
specifically discredit the testimony of John Harrison,
Kay Harrison , and Matt Jones.
I find that the Respondent was justified in refusing to
reinstate Kay Harrison as she was clearly an accessory to
the vandalism , knew it was about to take place , and was
prepared to drive the getaway vehicle if necessary. In
GSM, Inc., 284 NLRB 174 (1987), the Board found that
even though the driver of a vehicle did not directly
engage in any coercive or intimidating conduct, his
active cooperation justified his discharge . Kay Harrison's
"active cooperation" in the incident is apparent from
Ludlow's testimony and also from Kay Harrison 's failure
to demonstrate that, unlike Ludlow, she was not a will-
ing participant in the event but rather , by mere coinci-
dence, happened to be in the vehicle at the time of the
vandalism . I therefore conclude that Respondent 's refusal
to recall Kay Harrison was not unlawful . Clear Pine
Mouldings, 268 NLRB 1044 (1984); GSM, Inc., supra.
g. The General Counsel's theory of condonation
During the hearing the Respondent offered reinstate-
ment or placement on the recall list to Kay Harrison and
certain other employees who, according to Respondent,
were lawfully refused reinstatement because of alleged
strike misconduct .29 The General Counsel contends that
27 Following this episode , according to Ludlow, John Harrison broke
the headlights out of another vehicle.
2e In fact she furnished the police with a false report during the initial
investigation of the vandalism
29 No such offer was made to Florian Sever
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this constitutes condonation of the employees ' conduct
and that therefore the Respondent is precluded from
continuing to assert that they are not entitled to rein-
statement . I do not agree . Because the record is unclear
regarding Respondent 's rationale for offering reinstate-
ment, and because the issues involving these employees
continued to be litigated thereafter , there is inconclusive
evidence regarding Respondent 's motivation . Condona-
tion requires a clear and unequivocal intent to excuse an
employee's misconduct . Respondent 's actions are consist-
ent with the likelihood that it merely intended to toll
backpay pending the outcome of this proceeding. More-
over, this matter has neither been formally alleged or liti-
gated . I find the General Counsel's argument to be with-
out merit.
h. Edward Reiner
Wayne Funk testified that on that day leadman Bud Ray
told him about a "brawl " that David Ray and Reiner
had been involved in, and that Bud Ray believed "the
situation was really hot." However , Funk also testified
that when he asked Bud Ray if he thought there would
be any problems, Bud Ray replied , "Well, I don't
know." Funk testified that he was too busy to try to get
David Ray and Reiner to resolve their differences, so he
decided it would be best to exclude Reiner from the job
as David Ray was an acting leadman who had been as-
signed to perform specific and important jobs during the
shutdown and, at that particular time, was a much more
valuable employee . He testified that he told Bud Ray to
tell S & S to remove Reiner from the premises and sug-
gested that Reiner could work for S & S somewhere else
for a few days until "it cools off."
(1) Facts
During the strike and thereafter , while remaining on
the recall list , Edward Reiner worked for S & S General
Contractors , a contractor that customarily performed
contract maintenance work for the Respondent . Reiner
had worked for S & S at the Respondent 's mill "a long
time" prior to October 12, 1987, on which date the ALP
caused S & S General Contractors to discharge Reiner.
On October 9, 1987, David Ray, who had worked
during the strike, provoked a fight with Reiner at the in-
famous Kiksadi Club. The following Monday morning,
October 12, 1987, when Reiner arrived at work at Re-
spondent 's premises , his S & S foreman told him that
Bud Ray, an acting foreman for Respondent , did not
want him on mill property because he was a "trouble-
maker," and he was to leave immediately . Later that
day, Roger Sudnikovich , owner of S & S, told Reiner
that Respondent 's maintenance and engineering superin-
tendent, Wayne Funk, acknowledged that David Ray
started the fight in the bar , but that Funk 's hands were
tied because there were three Ray brothers working at
the mill and two of them were leadmen. Sudnikovich
gave Reiner a "Termination Notice" that day stating the
reason for termination as "Conflict of interest between
APC employees after working hours."
Reiner called Jess Cline on about October 23, 1987,
and asked why he was no longer allowed on mill proper-
ty. Cline said that it was because of the fight , and that
management could not ensure Reiner's safety or health
on the job because of the friction between strikers and
replacements . Reiner testified that, at a later date, some-
time in December 1987, Sudnikovich told him that he
had spoken with the mill management and that the Re-
spondent had no problem with his returning to work for
S&Satthemill.so
The plant was to be shut down for a period of 3 days
beginning October 12, 1987, during which period hun-
dreds of individuals , including employees of S & S and
other contractors , were to work in close proximity with
certain of Respondent 's employees for extended periods
of time . Maintenance and Engineering Superintendent
(2) Conclusions regarding Reiner
It is clear from the record evidence , and I find, that
David Ray instigated the fight at the Kiksadi Club and
that it involved , as Cline told Reiner, "friction between
strikers and replacements." However, Reiner was errone-
ously branded as the troublemaker and was excluded
from Respondent 's premises . Had Reiner 's exclusion been
limited to the duration of the 3-day shutdown only, Re-
spondent's determination to remove Reiner from the
premises may have been justified . However, the Re-
spondent apparently made no effort to assure S & S that
it had no objection to Reiner 's continued employment
until apparently several months thereafter , in December
1987, and during the interim period Sudnikovich was at-
tempting to convince the Respondent that Reiner should
be permitted to work for S & S at the mill. I do not
credit Funk's testimony that he wanted Reiner off the
job for only a few days . Rather, Reiner was told by
Cline on October 27, 1987, some 2 weeks later, that he
was not welcome at the mill.
Because of the Respondent 's failure to rectify the situ-
ation in a timely fashion, I conclude that Reiner's exclu-
sion from employment was discriminatory from its incep-
tion . Thus, the Respondent characterized Reiner as the
"troublemaker" in a strike-related fight, immediately
caused his discharge and excluded him from the prem-
ises, and made no timely effort to cause S & S to reem-
ploy him at the mill or anywhere else. The only conclu-
sion that may be drawn , therefore , is that the Respond-
ent really was not interested in ascertaining whether
Reiner or David Ray was culpable , or in merely keeping
the two employees apart during the 3-day shutdown, but
rather had made up its mind that Reiner, who supported
the strike , would no longer be permitted at the mill. As
the Respondent has not demonstrated that Reiner en-
gaged in any type of strike-related misconduct warrant-
ing his discharge or exclusion from the mill , I find that
the Respondent has violated the Act, as alleged , by caus-
ing S & S to discharge Reiner . Georgia Pacific Corp., 221
NLRB 982, 986 (1975).
ao At the time of the hearing Reiner had been recalled to the mill as a
permanent employee of the Respondent
ALASKA PULP CORP.
6. Allegations against Alaska Pulp Corporation
and/or S & S
a. Joseph Kilburn
(1) Facts
Joseph Kilburn, a striker , worked at the mill since
1979. He was hired by S & S to perform welding work
at the mill, apparently to temporarily fill in for another S
& S employee who was on vacation . It was customary
for Respondent 's Maintenance and Engineering Superin-
tendent Wayne Funk to approve the list of S & S em-
ployees, and S & S had performed work for Respondent
on numerous occasions using employees who had been
on strike against Respondent.
On September 3, 1987, when Funk learned that S & S
had hired Kilburn , he told the owner of S & S , Sudniko-
vich, that Kilburn was not wanted at the mill because he
was a marginal employee in terms of productivity and
ability . Funk testified that although Kilburn was accepta-
ble as an employee of Respondent , he was not worth the
$50 per hour that the Respondent would be paying S &
S for Kilburn 's services.
Sudnikovich observed Kilburn's work at the mill on
September 3, 1987, and thought he was taking too long
to do the work. Kilburn's supervisor , George Kubick,
who worked for S & S, told Sudnikovich that he did not
want Kilburn back on the job . Kilburn's other supervi-
sor, Ira Long, who also worked for S & S , told Sudniko-
vich that Kilburn was not a very good welder, and that
Long had to get someone else to do some of the welding
work . Sudnikovich testified that, based on his observa-
tion of Kilburn , he would never have used Kilburn again
as a welder , although perhaps he could have used him
on nonwelding work.
Supervisor Long testified that Kilburn was hired to fill
in for another employee who was on a moose hunting
trip . Long testified that Kilburn took too long to do the
assigned welding work , did not do a good job, and was
much slower than the rest of the crew . Long testified
that he reported this to Sudnikovich.
Thomas Scheidt, a welding instructor for Island Com-
munity College , near Sitka, was called by the General
Counsel as an expert welding witness . He testified, after
inspecting Kilburn 's welding work which Kilburn per-
formed at the mill on September 3, 1987, that he thought
the weld was not very good.31
Kilburn filed a charge against S & S on November 18,
1987, as a result of his discharge , supra . In December
1987, employee Edward Reiner saw Sudnikovich at a
bar in Sitka . According to Reiner , Sudnikovich was in-
toxicated . During the course of their conversation Sudni-
kovich said that his remarks were to go no further than
the two of them , but if it was up to him , Kilburn would
not get another job in Sitka because of the charges he
filed . Sudnikovich candidly testified that he believed he
did make that statement attributed to him by Reiner.
Si The record contains abundant evidence, and I am cognizant of the
fact, that this particular weld was necessarily of a makeshift nature and
did not require a great degree of precision
1277
(2) Conclusions regarding Kilburn
Regarding the discharge of Kilburn , I credit Funk,
Sudnikovich , Long, and Scheidt , and find that Kilburn's
work was deficient and that his discharge was not discri-
minatorily motivated by Alaska Pulp Corporation or by
S & S because of Kilburn 's support of the strike. Indeed,
the record shows that former strikers worked for S & S
at Respondent 's mill on many occasions , with Superin-
tendent Funk 's approval , and there is no evidence from
which it may be concluded that Funk was harboring par-
ticular animosity toward Kilburn . Further , I find that S
& S did not continue Kilburn 's employment thereafter
because Sudnikovich simply did not think that Kilburn
was qualified . I shall dismiss this allegation of the com-
plaint.
I also shall dismiss the complaint allegation against S
& S involving the alleged barroom threat by Sudniko-
vich. To be sure, Sudnikovich was upset that Kilburn
had filed a meritless charge against him. He was also in-
toxicated. He had previously determined , for legitimate
reasons, that he would not hire Kilburn, and there is no
contention that Sudnikovich made any attempt to
convey his feelings to any prospective employers of Kil-
burn . Since Sudnikovich had previously decided not to
hire Kilburn for nondiscriminatory reasons, the alleged
threat appears to be of minimal significance , and war-
rants no finding of a violation . I shall dismiss this allega-
tion of the complaint.
THE REMEDY
Having found that the Respondent , Alaska Pulp Cor-
poration , has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act.
The Respondent shall be ordered to offer reinstate-
ment to qualified employees on the preferential recall list
to any and all positions in each department and each pro-
gression level thereof which have been available since
the termination of the strike, in a manner consistent with
this decision . Further, the Respondent shall be required
to make whole such strikers , who shall be identified at
the compliance stage of this proceeding , for any loss of
pay and benefits they may have suffered by reason of the
Respondent 's discrimination against them , such payment
to be made in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded.32
The Respondent shall be required to include on the
preferential recall list those employees named below
whom it unlawfully excluded , commencing with the re-
spective dates of their unlawful exclusion , and shall be
required to reinstate them and make them whole for any
loss of pay and benefits they have suffered by reason of
32 283 NLRB 1173 (1987). Interest on and after January 1 , 1987, shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U S.C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S .C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent 's discrimination against them , in accord-
ance with the backpay provisions cited above . The em-
ployees are : Robert Kinville , Mark Simmons, Florian
Sever, Shawn McLeod , and Debbie Harriman.
The Respondent shall be required to make whole em-
ployee Edward Reiner for unlawfully causing S & S
General Contractors and Equipment Rental , Inc., to dis-
charge him on October 12, 1987, and shall be required to
make him whole for any loss of pay and benefit he has
suffered by reason of the Respondent 's discrimination
against him, in accordance with the backpay provisions
cited above.
CONCLUSIONS OF LAW
1. Alaska Pulp Corporation and S & S General Con-
tractors and Equipment Rental , Inc. are employers en-
gaged in commerce and in businesses affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Paperworkers International Union, Local
962 is a labor organization within the meaning of Section
2(5) of the Act.
3. By failing and refusing to offer qualified unreinstat-
ed strikers on the preferential hiring list any and all posi-
tions in each department and in each progression level
thereof which positions have been available since the ter-
mination of the strike on April 7, 1987, the Respondent
has violated Section 8 (a)(3) and (1) of the Act.
4. By discharging or refusing to place employees
Robert Kinville, Mark Simmons , Florian Sever, Shawn
McLeod, and Debbie Harriman on the preferential recall
list, thereby denying them employment , the Respondent,
Alaska Pulp Corporation, has violated Section 8(a)(3)
and (1) of the Act.
5. By causing S & S General Contractors and Equip-
ment Rental , Inc., to discharge its employee , Edward
Reiner, on October 12, 1987, the Respondent , Alaska
Pulp Corporation, has violated Section 8(a)(3) and (1) of
the Act.
6. Respondent Alaska Pulp Corporation and Respond-
ent S & S General Contractors and Equipment Rental,
Inc., have not, except as specifically found above, violat-
ed the Act as alleged.
[Recommended Order omitted from publication.]