Dublin Town Ltd.

National Labor Relations Board - Board Decisions

Nov 28, 1986

282 N.L.R.B. 307 (N.L.R.B. 1986)

DUBLIN TOWN LTD 307
Dublin Town Ltd. and Blouse , Skirt and Sportswear
Workers Union , Local 23-25, International
Ladies Garment Workers Union, AFL-CIO.
Case 2-CA-19674
28 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 March 1984 Administrative Law Judge
Raymond P. Green issued the attached decision.'
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief, cross-exceptions, and a brief in support of the
cross-exceptions.
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 has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order as modified.
The judge found that the Respondent violated
Section 8(a)(1) of the Act by discharging six em-
ployees for their protected concerted activity. The
judge further found that employee Tommie Lee
Johnson, unlike his fellow employees, was not dis-
charged, but rather became an unfair labor practice
striker when he refused the Respondent's request
to return to work. Thus, the judge concluded,
Johnson is not eligible for reinstatement and back-
pay until he unconditionally offers to return to
work. The General Counsel excepts, contending
that Johnson was discharged in violation of Section
8(a)(1). We find merit in the General Counsel's ex-
ceptions.
The essential facts are as follows. The Respond-
ent is a garment industry jobber, cutting fabric and
shipping the pieces to be sewn by subcontractors.
It employed seven employees as cutters and pack-
ers, the most senior of whom was Tommie Lee
Johnson. The Respondent's employees did not have
an exclusive collective-bargaining representative.
Over a period of time, the employees complained
to each other about various terms and conditions of
their employment, e.g., inadequate insurance cover-
age, late wage increases, vacation scheduling, and
racist jokes told by the Respondent's president,
David Cohen. The employees did not decide to
take concerted action until Wednesday, 18 May
1983,2 when the employees agreed that Tommie
Lee Johnson should speak with Cohen on their
behalf.
Johnson tried but was unable to meet with
Cohen on 18 May and suggested to the other em-
ployees that they stay home on Thursday, 19 May,
to attract Cohen's attention to their complaints.
The employees did not report to work that day
and did not tell the Respondent why they were
absent. On Friday, 20 May, some of the employees
gathered at a park about one block from the facto-
ry to wait for Johnson, their designated spokesman.
Cohen approached the group about 8:05 a.m. and
told the employees to report to work.3 They re-
fused and said they were waiting for Johnson. One
of the employees told Cohen they wanted to talk
about benefits with him. Cohen said he would talk
to them when they went to work. The employees
insisted on waiting for Johnson before going in to
work. Cohen left and, about 10 to 15 minutes later,
he reappeared with the employees' paychecks.4 At
this or the first meeting, Cohen told the employees
that he would have to suspend operations if the
employees did not report to work.
Shortly thereafter, employee Marvin Kershaw
came to Cohen's office and said that he had noth-
ing to do with the employees' work stoppage but
had been at the hospital and he was running late
that (Friday) morning. Kershaw did not reply
when Cohen asked how he knew about the em-
ployees' action. Cohen then told Kershaw that he
was suspending operations in an hour, gave Ker-
shaw his paycheck, and told him to leave the
premises.
Johnson arrived about 9:30 a.m. and all the em-
ployees went to see Cohen, who refused Johnson's
request to talk. Cohen told Johnson that he could
return to work, but he wanted the other employees
"out of here." Johnson replied, "If they don't
work, I'm not working." Johnson turned in his key
to the office. Cohen then distributed the paychecks
and told all the employees to remove their personal
belongings from their lockers. Cohen spoke pri-
vately with Johnson and offered to provide job ref-
erences if needed and said he would send Johnson's
vacation pay by mail. Johnson joined the other em-
ployees and went to speak with representatives of
the Union. The next Monday they set up a picket
line, with signs reading "Unfair Labor Practices,"
in front of the Respondent's building.
z All dates are in 1983 unless otherwise indicated
Starting time was at 8 a m
4 The Respondent 's normal practice was to pay its employees in cash
1 On 25 April 1984 the judge issued an Errata correcting his recom- Cohen testified that he used paychecks because he wanted proof of pay-
mended Order merit Some of the employees did not accept their checks from Cohen
282 NLRB No. 46
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The judge found that the employees, with the
exception of Johnson, had a reasonable basis for be-
lieving they had been discharged and he concluded
that their discharges , which were motivated by
their strike action protesting their working condi-
tions, violated Section 8(a)(l). The judge therefore
ordered the Respondent to reinstate the employees,
with the backpay period starting on the ' date of
their discharge to the date of the reinstatement
offer.5 We adopt these findings of the judge.6
As to Johnson, the judge found that he had not
been discharged but had become an unfair labor
practice striker when he refused Cohen's request to
return to work. We disagree. As the judge recog-
nized in Ridgeway Trucking Co., 243 NLRB 1048,
1048-1049 (1979):
The test for determining "whether [an em-
ployer's] statements constitute an unlawful dis-
charge depends on whether they would rea-
sonably lead the employees to believe that
they had been discharged," and "the fact of
discharge does not depend on the use of
formal words of firing . . . . It is sufficient if
the words or actions of the employer would
logically lead a prudent person to believe xhis
tenure had been terminated."
Applying this test, we find, contrary to the
judge, that Johnson was justified in thinking he had
been discharged with the other employees. In
making a distinction between Johnson and the
other employees, the judge relied on the fact that
Johnson, unlike the other employees, received an
offer from Cohen to return to work. Under all the
circumstances, however, we fmd that this distinc-
tion does not outweigh all the other factors on
which the judge relied to fmd that the employees
were discharged.
Although Cohen' told Johnson that he could
return to work if he wanted, Cohen said at the
same time that he wanted the other employees "out
of here. With this statement, Cohen led Johnson
to believe that the other employees were dis-
charged. Therefore, when Johnson told Cohen that
he would not return to work without the other em-
ployees, Johnson, the avowed leader of the em-
ployees, could reasonably believe that he was being
discharged as well.
Cohen's subsequent actions reinforced that belief.
Cohen handed out paychecks to everyone, includ-
ing Johnson, and told them all to clean out their
lockers. Cohen offered to act as a job reference for
Johnson and told him that his vacation pay would
be mailed to him. Such statements are consistent
with a discharge and could only serve to reinforce
Johnson's belief that, because he conditioned his
return to work on the return of the other employ-
ees, his services were no longer wanted. Moreover,
to the extent that the events of 20 May were am-
biguous, any ambiguity would have been cleared
up on Monday, 23 May, when the employees
began picketing with signs stating that the Re-
spondent had committed unfair labor practices.7
Despite this clear signal to the Respondent that the
employees believed that they had been discharged,
the Respondent did not advise the employees at
that time that they were mistaken.
For these reasons, we find that Johnson, like the
other employees, was discharged for his protected
concerted activity in engaging in a strike against
the Respondent. Accordingly, we find that the Re-
spondent unlawfully discharged Tommie Lee John-
son in violation of Section 8(a)(1) and we shall
order his reinstatement with backpay.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Dublin Town Ltd., New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Offer to Darryl Bennett, Tyrone Powell,
Judon Brown, Clarence Bell, Fred Gibson, Marvin
Kershaw, and Tommie Lee Johnson full and imme-
diate reinstatement to their former positions of em-
ployment or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other, rights or privileges
previously enjoyed."
2. Substitute the attached notice for that of the
administrative law judge.
5 Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27
(1979), and would date the Respondent's backpay obligation to the dis-
charged strikers from the time they made an unconditional offer to return
to work
6 The Respondent contends that two employees engaged in - postdis-
charge strike misconduct which would preclude their reinstatement Be-
cause the record regarding ' the alleged misconduct is not complete, we
believe, as did the judge, that such issues are more appropriately left for
resolution in the compliance stage of this proceeding.
' In determining that Johnson had reason to believe that he had been
discharged, Member Stephens finds it unnecessary to rely on the picket-
ing that commenced on 23 May Johnson was for a brief moment an
unfair labor practice striker when he told Cohen he would not return
unless the other employees were allowed to return . When Cohen re-
sponded by stating that he wanted the other employees "out of here" and
by arranging to give Johnson his accrued vacation pay and references for
another job, Johnson had reason to believe that the Respondent was ter-
minating him rather than treating him as a current employee on strike
DUBLIN TOWN LTD 309
APPENDIX DECISION
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discipline
employees because they engage in a protected
strike , work stoppage, or other concerted activity
for their mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Darryl Bennett, Tyrone
Powell, Judon Brown, Clarence Bell, Fred Gibson,
Marvin Kershaw, and Tommie Lee Johnson full
and immediate reinstatement to their former posi-
tions of employment or, if those positions no longer
exist , to substantially equivalent positions without
prejudice to their seniority or other rights and
privileges previously enjoyed.
WE WILL make the aforesaid employees whole
for any loss of earnings they may have suffered
from 20 May 1983.
WE WILL remove from our files any references
to the discharges of the employees named above,
and WE WILL notify them in writing that this has
been done and that evidence of those discharges
will not be used as a basis for future personnel
action against them.
DUBLIN TOWN LTD.
Ellen Dichner, Esq and Mary Schmette, Esq., for the Gen-
eral Counsel.
Alfred Schnall, Esq. (Ruben, Schwartz & Schnall), of New
York, New York, for the Respondent.
Stanley L. Goodman, Esq. (Chaiken & Chaiken), of New
York, New York, for the Charging Party.
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in New York, New York, on De-
cember 20, 1983. The charge was filed on May 31, 1983,
and the Acting Regional Director for Region 2 of the
National Labor Relations Board issued a complaint on
July 29, 1983. In substance, the complaint alleges that on
May 19 and 20, 1983, certain employees of the Respond-
ent engaged in a concerted work stoppage to protest
their rates of pay, benefits, and working conditions. It
further alleges that on May 20, the Respondent, by its
president David Cohen, discharged these employees be-
cause of their work stoppage.
The Respondent asserts (1) that it was not aware of
the reasons its employees did not come to work on May
19 and 20; (2) that the employees were repeatedly asked
to return to work; and (3) that it never discharged them.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses,
and after considering the briefs filed, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a New York corporation engaged
in the manufacture of women's apparel. Annually it sells
goods valued in excess of $50,000 directly to firms locat-
ed outside the State of New York. It therefore is con-
cluded that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It is further concluded that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE OPERATIVE FACTS
Basically, the Company is a jobber in the garment in-
dustry. As such it designs apparel, makes patterns, cuts
cloth, and sends out the cut pieces to be sewn by sub-
contractors After the garments are sewn, they are re-
turned to the Company's manufacturing premises where
they are shipped to customers. In the operation of its
business, the Company has a showroom where it em-
ploys, inter alia, sales and clerical employees . It also has
a separate facility for cutting and shipping. It is at the
latter facility that the seven employees involved in this
case were employed. The Company's owner and presi-
dent is David Cohen.
In substance, the General Counsel's witnesses testified
that over a period of time they had been irked by certain
actions of the Employer. Thus, some were displeased by
what they considered inadequate health insurance.
Others were displeased with delays in receiving prom-
ised wage increases. One was unhappy over the fact that
a new employee (Manny) who had been hired was
giving him orders and had been allowed to take a vaca-
tion ahead of him. Still others were annoyed by what
they described as racial jokes and slurs made by David
Cohen. In the latter regard, Cohen acknowledged that
he told jokes from a popular joke book (Truly Gross
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jokes), which contains jokes relating to various ethnic
groups including blacks. All the employees involved
herein are black.
The record indicates that although some of the em-
ployees individually complained to either David Cohen
or Abbie Cohen," the evidence does not show that these
various complaints came together as a matter for con-
certed action until around May 18, 1983.
According to the General Counsel's witnesses,2 at
lunchtime on May 18 the employees met and talked
about their respective concerns. They testified that al-
though there was some talk about contacting a union,
they decided not to do so and instead agreed to have
Tommie Johnson (the cutter) ask David Cohen for a
meeting. Johnson was the most senior and skilled of the
employees.
According to Johnson, he tried to talk to David
Cohen in the afternoon of May 18, but could not do so
because Cohen was too busy. He testified that after
work, he told the other employees that he had not been
able to talk to Cohen and suggested that they all take the
following day off in order to attract Cohen's attention.
He also told them that if they took the day off, all or
some of them might be fired. All the employees agreed
to stay away from work on May 19.
On May 19, the employees stayed home. None, how-
ever, communicated with the Company as to why they
were absent and David Cohen testified that he had no
idea what was going on or why the employees had not
shown up for work.
On Friday, May 20, the employees, except for
Tommie Johnson, arrived at Greeley Square about 8:30
a.m. (Greeley Square is about a block away from the fac-
tory and a subway station is located there.) Here they
congregated and decided to wait for Johnson to arrive.
About 8:05 a.m., they were approached by David Cohen
who told them to report to work. (Starting time is at 8
a.m.) They refused, stating that they were waiting for
Johnson. When Cohen asked why they were waiting,
one of the employees said that they wanted to talk about
benefits and Cohen said that he would talk to them when
they went to work. The employees still refused to go to
work. According to Darryl Bennett, but unconfirmed by
the others, Cohen said that if they did not return to
work in 5 minutes, they would be fired. Also, according
to Bennett and Judon Brown, when the employees said
that they were waiting for Johnson, David Cohen re-
plied that Johnson was history and that they could wait
for their black rabbi.
David Cohen's version of the above is that when he
asked the employees to go to work, they refused and
said that they were waiting for Johnson. He states that
when he asked them why they were waiting, Fred
i Abbie Cohen is a retired person who apparently works at the factory
without pay. He is an old family friend of David Cohen (not related)
Although not an employee of the Company, David Cohen described
Abbie Cohen as his eYes and ears at the factory. I take this to mean that
David Cohen relies on Abbie Cohen io report to him what goes on at the
factory.
2 The General Counsel called four of the seven employees. These were
Judon Brown, Tyrone Powell, Darryl Bennett, and Tommie Lee John-
son. It is noted that of these witnesses, Judon Brown and Darryl Bennett
had been convicted of felonies within the past 5 years
Gibson said that they wanted to talk about benefits. Ac-
cording to Cohen, he told them that they could talk
about benefits at work and again asked them to return to
work. He denies that he threatened them with discharge,
although he does state that he told them that if they did
not come to work he would be forced to suspend com-
pany operations. (According to Cohen, without these
men at work, the Company would be unable, at least
temporarily, to cut and ship apparel to its customers.)
Cohen asserts that the men-still refused to come to work
and so he went back to his office to cool down.
About 10 or 15 minutes later, Cohen reappeared,at the
subway station where the employees were now congre-
gated. (Johnson still had not arrived.) Judon Brown and
Tyrone Powell testified that on this occasion (about 8:15
or 8:20) Cohen said "as of 8:30 you guys had a job," and
that Cohen began handing out paychecks which were re-
fused by some of the employees. According to Darryl
Bennett, Cohen said that as of 8:15 they all were fired.
Cohen denies telling the employees that they were fired
or using the phrase "as of 8:30 you guys had a job."3 He
also testified that he paid them by check, instead of his
normal procedure of cash payment, because it was
Friday, the normal payday, and he wanted proof of pay-
ment because he believed they were quitting.
According to Cohen, shortly thereafter one of the em-
ployees, Marvin Kershaw, came to his office and said
that he had been in the hospital on Thursday, that he
had nothing to do with the work stoppage, and that he
was "just running late this morning." He states that he
told Kershaw that if he had nothing to do with the stop-
page, how come he knew all about it. Cohen states that
Kershaw did not reply but merely smiled. Cohen also
states that he told Kershaw that he was suspending' oper-
ations in an hour, gave Kershaw his check, and asked
him to leave the premises.
Tommie Johnson finally arrived about 9:30 a., m. and
he, along with the other employees, went up to talk to
David Cohen. According to Johnson, when they arrived,
David Cohen said, "I'm ruined, I'm broke, how could
you do this to me." Johnson testified that Cohen then
told him that if he wanted to go to work he could, but
that he wanted the others "out of here." Johnson'states
that he told Cohen that he would not go to work if the
others did not. According to Johnson, he then spoke pri-
vately to Cohen who said that if-Johnson needed a refer-
ence he should call. He also states that when he asked
about his vacation pay, Cohen said that a check would
be put in the mail on Monday.
According to Judon Brown, when the group went up-
stairs, David Cohen spoke to Johnson but that he did not
hear their conversation. He testified that he too had a
private conversation with Cohen wherein Cohen said
"where did you get the balls to do this" and referred to
the fact that he had helped Brown out before.4
3 Since it is alleged that this statement was made around & 15 or 8.20,
the phrase that they no longer had a job as of 8 30 does not make much
sense
4 When Brown was convicted of a felony, Cohen wrote a letter to the
court on his behalf
DUBLIN TOWN LTD. 311
Tyrone Powell's testimony regarding this meeting was
that when the group got upstairs, Cohen told them to get
their stuff out of their lockers. He states that Cohen said
that he was ruined and that the employees had hurt him.
Powell relates that Cohen said "why did you have the
balls to do this to me?" He also states that Cohen told
Johnson that he could go to work but, in reference to
the others, "the hell with them, damn them." According
to Darryl Bennett, he asked Cohen at this meeting about
his vacation pay and that Cohen replied that he deserved
none . He also said that he got angry and cursed at
Cohen, whereupon he was told to leave the premises,
which he did.
With respect to the above, Cohen testified that when
the group of employees came up to his office he spoke
privately with Johnson who asked for his check. He
states that Johnson said that the other employees were
young kids who did not know what they were doing and
that he (Johnson) had gone with them out of sympathy.
Cohen states that at one point Darryl Bennett said that
they all were entitled to vacation pay but that there was
no other conversation relating to wage or benefits at this
time . He asserts that none of the employees indicated
that they wanted to return to work and that he told
them that he was suspending aerations. Cohen did not
deny Powell's testimony to the effect that he told the
employees to remove their personal effects from the
lockers. He also testified that Darryl Bennett took a
swing at him and that shortly after the group left, he did
temporarily suspend operations by sending his remaining
employees home.
After the meeting with Cohen, the employees went to
the Union and thereafter started picketing with signs
reading, "Unfair Labor Practices." This picketing contin-
ued for about 2 months during which time neither the
Union, the employees, nor the employer ever communi-
cated with each other. Thus, at no time did either the
employees or the Union on their behalf ever ask the
Company for their jobs back. By the same token, the em-
ployer never, after May 20, asked the employees to
return to work and did not notify them that they had not
been discharged. During the course of the picketing, the
Company resumed operations on Monday, May 23, at
first by using its other employees and Cohen's relatives.
Also, it subcontracted the cutting work and had the gar-
ments sent from its subcontractors directly to its custom-
ers. Still later, the Company began hiring replacements.
Analysis
The evidence indicates that on Thursday, May 19, the
employees in question engaged in a work stoppage in
order to bring to their employer's attention their collec-
tive grievances. The evidence also shows that when this
work stoppage occurred, the employer was not aware of
why it was happening as he was given no advance notice
of this action and no collective grievances had been
brought to his attention before it occurred. Nevertheless,
by Friday, May 20, Cohen was apprised that the employ-
ees were refusing to work and that they wanted to talk
about benefits. Although it is clear that the employees'
group action was not related to union activity, it never-
theless is clear that it was concerted activity for mutual
aid and protection as defined in Section 7 of the Act.
Accordingly, if the Respondent is held to have dis-
charged these employees because of their strike action, it
must be concluded that it violated Section 8(a)(1) of the
Act. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962); Ridgeway Trucking Co., 243 NLRB 1048 (1979),
enfd. 622 F 2d 1222 (5th Cir. 1980).
This then leads to the principle issue in this case which
is whether the employer did in fact discharge the em-
ployees as alleged by the General Counsel. In this
regard, it is my opinion that when Cohen first confront-
ed the employees on the morning of May 20 he told
them to return to work and that they refused, stating
that they were waiting for their spokesman Tommie
Johnson. [ believe that on this occasion, or at the second
meeting about 15 minutes later, that Cohen told them
that if they did not return to work he would have to sus-
pend operations. I do not believe, however, that on
either occasion Cohen either told the employees that
they had been fired or that they would be fired unless
they returned to work by 8:30 a.m.
Nowithstanding the above, I am inclined to think that
the employees had been discharged. Thus, Cohen admit-
tedly told them that he was going to suspend operations
if they did not return to work and he came down with
their paychecks instead of paying them in cash as had
been the normal practice.
The conclusion that the employees thought that they
had been discharged is buttressed to a degree by the
transaction involving Marvin Kershaw as related by
Cohen. As noted above, Kershaw, sometime after 8:30
a.m. went to talk to Cohen privately and it appears that
he was attempting to disassociate himself from the other
employees by saying that he was in the hospital on May
19 and had nothing to do with the work stoppage. In es-
sence, it seems that he was asking to return to work.
Nevertheless, Cohen obviously did not believe Ker-
shaw's assertion about not being involved in the work
stoppage and instead of letting him go back to work,
gave him his check and told him to leave the premises.
It also is apparent to me that, when the main group of
employees went up to see Cohen about 9:30 a.m., Cohen
expressed his anger at their action. Although Cohen
denies that he told them that they were fired, he did not,
at this time, make a last attempt to get them to return to
work. Further, he did not deny that he told the employ-
ees to remove their personal effects from the lockers. Fi-
nally, Johnson credibly testified that although Cohen
asked him to resume work, he stated that he wanted the
others "out of here."5
Although one would ordinarily expect that the ques-
tion of whether an employee had been discharged would
be free from ambiguity, this is not always the case. In
Ridgeway Trading Co, supra, the Board in a 2-to-1 deci-
sion held, in circumstances very similar to the instant
case , that certain employees had been discharged. It
stated:
5 On the basis of the record as a whole and on demeanor grounds, I
shall credit Johnson's testimony
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The test for determining "whether [an employ-
er's] statements constitute an unlawful discharge de-
pends on whether they would reasonably lead the
employees to believe that they had been dis-
charged," and "the fact of discharge does not
depend on the use of formal words of firing ... .
It is sufficient if the words or actions of the employ-
er would logically lead a prudent person to believe
his tenure had been terminated."
Applying the test annunciated in Ridgeway, it seems to
me that all the employees, except Johnson, had a reason-
able basis for believing that they had been discharged,
notwithstanding the Employer's assertion that they had
not. Moreover, to the extent that the transactions of May
20 may be ambiguous, it seems to me that , once faced
with the picketing on May 23, the Employer should have
communicated in some way with these employees to
advise them that they had not been discharged.6
As to Johnson, it seems to me that the facts warrant a
different conclusion. In his case, and by his own testimo-
ny, when he spoke to Cohen on May 20, the latter spe-
cifically asked him to 'return to work, a request that
Johnson refused on the grounds that he would not return
unless the others did. In this respect, I therefore con-
clude that unlike the other employees, Johnson was not
discharged but rather became an unfair labor practice
striker. As such, he would be entitled to reinstatement to
his former position only if he made an unconditional
offer to return to work. Because no such offer was ever
made by Johnson or by the Union on his behalf, the em-
ployer would not have incurred any backpay liability in
his case.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging striking employees because they en-
gaged in protected activities for the purposes of mutual
aid and protection, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, and
in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the Act. ,
With respect to employees Darryl Bennett, Tyrone
Powell, Judon Brown, Clarence Bell, Fred Gibson, and
Marvin Kershaw it is recommended that Respondent
6 I note that I am almost equally disturbed by the fact that the Union
made no effort to communicate with the Employer. Had it done so, there
would at least have been the possibility that this entire situation could
have been resolved at an earlier time and without litigation I simply do
not understand why either side failed to at least try to communicate with
the other
offer them immediate reinstatement to their former jobs,
or if those jobs no longer exist to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges previously enjoyed. Additionally, in
accordance with the majority opinion in Abilities &
Goodwill, 241 NLRB 27 (1979), reversed on other
grounds 612 F.2d 6 (1st Cir. 1979), it is recommended
that for the purpose of computing backpay, the com-
mencement of the backpay period shall start as of the
date of their unlawful discharge until the date that Re-
spondent offers them reinstatement.' Backpay shall be
computed with interest in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
Notwithstanding my recommendations regarding rein-
statement and backpay, it -is noted that the record con-
tains some indication of misconduct by certain of these
employees during the period of picketing. I therefore do
not wish to preclude the Employer from establishing that
some of these employees had engaged in conduct suffi-
ciently egregious so as to warrant a denial of reinstate-
ment or a cutoff of backpay from the date of such mis-
conduct. The record in this respect is not complete, in
part due to my expressed opinion at the hearing that
such issues more appropriately should be dealt with in
the compliance stage of this proceeding. Accordingly,
my recommended Order should be not construed as pre-
cluding Respondent from raising such issues during the
compliance procedure.
Finally, in accordance with Sterling Sugars, 261 NLRB
472 (1982), I shall recommend that Respondent remove
from its files any reference to the discharges of the
above-named employees and notify them in writing that
this has been done and that evidence ,of these unlawful
discharges will not be used as a basis for future personnel
actions against them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Dublin Town Ltd., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from discharging or otherwise dis-
ciplining employees because they engaged in a protected
strike, work stoppage, or other concerted activity for
their mutual aid or protection.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
7 In Abilities & Goodwill, 241 NLRB 27 (1979), a majority of the Board
reversed prior precedent and concluded that unlawfully discharged strik-
ers were to be treated in the same fashion as other discnmmatorily dis-
charged employees . The prior rule was that an employer's backpay liabil-
ity did not start to run until the strikers made unconditional offers to
return to work. Members Murphy and Pennello dissented in Abilities &
Goodwill.
a If no exceptions are filed as provided by Sec 102A6 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
DUBLIN TOWN LTD.
(a) Remove from, its files any reference to the dis=
charges of the aforementioned employees and notify
them in writing that his has been done and that evidence
of the unlawful discharges will not be used as a basis for
future personnel actions against. them.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its place of business, copies of the attached
notice marked "Appendix."9 Copies of the notice, on
9 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
313
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent -to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"