Pacific Mutual Door Co.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 854 (N.L.R.B. 1986)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Mutual Door Company and General Drivers,
Helpers and Truck Terminal Employees, Local
Union No: 120, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case 18-
CA-7598
28 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 December 1982 Administrative Law
Judge Russell M. King Jr. issued the attached deci-
sion. The General Counsel, the Respondent, and
the Charging Party filed exceptions and supporting
briefs. The Respondent filed a brief in answer to
the General Counsel's 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, l and
conclusions only to the extent consistent with this
Decision and Order.
Of four economic strikers alleged to have been
unlawfully refused reinstatement because perma-
nent replacements had not been hired at the time of
their unconditional request for reinstatement, the
judge found that the Respondent violated Section
8(a)(3) and (1) with respect to three of them and
that the fourth had not been entitled to reinstate-
ment because of strike misconduct. We agree with
the Respondent that one of the three discriminatees
engaged in serious strike misconduct justifying the
Respondent's refusal to reinstate him. Further,
while we find in accord with the judge that the
Respondent engaged in unlawful discrimination by
failing to reinstate the two remaining discrimina-
tees, we do so on the basis of a somewhat altered
rationale. We also agree with the Respondent that
the reinstatement offers made to the two remaining
discriminatees in May 1982 were valid offers which
tolled the Respondent's backpay obligation and its
1 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
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.
The last sentence of fn 10 of the judge's decision is corrected to the
following to reflect more precisely the record testimony "During the
first week of the strike, there had been some periodic violence outside the
plant "
reinstatement obligation arising from the unlawful
conduct.2
The facts, more fully set forth in the judge's de-
cision, are as follows. The Charging Party, General
Drivers, Helpers and Truck Terminal Employees,
Local Union No. 120, affiliated with international
Brotherhood of Teamsters, Chauffeurs,, Warehouse-
men and Helpers of America (the Union) represent-
ed a unit of four truckdrivers at the, Respondent's
facility. The Respondent and the Union had had a
collective-bargaining relationship for approximately
30 years; the most recent contract covering the
drivers expired 15 July, 1981. All four drivers went
on strike on 2 September 1981 after the Respond-
ent and the Union failed to reach agreement on
economic issues for a new contract. On 11 Septem-
ber 1981 the Respondent entered into a contract
with a driver leasing company, Transportation
Services, Inc. (TSI), and throughout the strike used
the services of the drivers' provided to replace the
striking drivers. There is no dispute that these re-
placements were temporary.'The contract stated on
its face:
This agreement shall become effective on 11
Sept. 1981 and shall continue in force and
effect for one year and thereafter until termi-
nated by either of us by giving to the other
not less than 30 days prior written notice.3
In the margin of the contract next to this para-
graph were the handwritten words "Does not
apply" with an arrow pointing to the line begin-
ning "effect for one year ...." The Respondent's
branch manager who signed the contract, Lambert
Imse, testified that the notation was placed by him
on the contract on the day the contract was signed
and during a conversation with the officer from
TSI who signed the contract; Imse "could not
say," however, whether the notation was made
before or after the contract was signed . Imse fur-
ther testified that the TSI officer agreed to relin-
quish the 1-year duration term of the contract but
not the 30-day cancellation term. Imse stated that
the marginal notation referred only to the 1-year
term and that he had agreed to go along with
TSI's demand for the 30-day provision.4
On Friday, 20 November 1981, the picketing
ceased, and the Union sent a telegram to the Re-
spondent stating that the strike had ended and
2 As discussed below, on rejecting the reinstatement offers, the discri-
minatees retained their status as strikers and attendant reinstatement
rights to that status.
3 The "11 Sept. 1981" and "30" were typed in on the lined spaces.
4 Questioning about the import of the duration clause, the notation,
and the surrounding conversations was initiated and pursued by the Gen-
eral Counsel. There was no objection to the receipt of this testimony.
278 NLRB No. 120
PACIFIC MUTUAL DOOR CO.
making an unconditional offer, on behalf of the
four striking drivers, to return to work the follow-
ing Monday. On 20 November the Respondent, by
telegram, stated its understanding that the Union's
telegram represented an unconditional offer to
return to work, stated that its contract for replace-
ments during the strike did not allow for cancella-
tion on such short notice, stated that it had been
considering permanent subcontracting, stated that it
was putting the drivers on temporary layoff while
it considered its long-term options, and stated that
it was continuing to investigate the possibility of
discharging certain drivers for strike misconduct on
the picket line. On 23 November 1981 the four
drivers reported to the Respondent's facility, but
were not permitted to work. On 25 November
1981 the four drivers applied for state unemploy-
ment compensation; the Respondent's answer to
the claims was that the temporary drivers were
hired on a contract basis and the Respondent had
to lay off the strikers until the contract was com-
pleted.
On 1 December 1981 the Respondent notified
the Union that it had made a tentative decision to
permanently subcontract the driving work. There-
after, the Respondent met with the Union and of-
fered to discuss the decision and effects of perma-
nently subcontracting the drivers' work, but no
agreement was reached. On 18 December, the Re-
spondent entered into a 1-year contract with TSI
to provide driving services, effective 14 December
1981. On 23 December 1981 the Respondent noti-
fied the Union of the 1-year contract. The Union
made no further request for bargaining about that
issue.
On 23 February 1982 the drivers resumed picket-
ing claiming an unlawful lockout. 5 On 10 and 17
May 1982 the Respondent made written offers of
reinstatement to drivers Thurstin and Kraus, re-
spectively. Record evidence shows that the Union,
on behalf of those drivers, rejected the offers
claiming that they were invalid because they by-
passed the drivers' collective-bargaining representa-
tive and that they were discriminatory because
they did ,not follow contractual seniority. No simi-
lar offers were made to strikers Lenhart and Hu-
berty; the Respondent took the position that they
engaged in serious strike misconduct which did not
entitle them to reinstatement.
5 On that same date, the Union filed the initial charge in this case al-
leging violations of Sec , 8(a)(1), (3), and (5) in unlawfully and discrimma-
torily subcontracting out unit work and locking out employees and in en-
gaging in surface bargaining Subsequently, the charge was amended by
striking the prior allegations and asserting only an unlawful refusal to re-
instate the four drivers This allegation was the only one set forth in the
complaint, which contained no allegation of an unfair labor practice
strike.
855
1. The judge found Huberty's conduct during the
strike-firing a weapon while at the plant-not suf-
ficient to remove him from the protection of the
Act because it could not be concluded with cer-
tainty that Huberty aimed at the plant facility.
There is no dispute that on the evening of 29
September 1981 strikers Huberty and Kraus were
at the plant. Huberty was in possession of an "air
pistol" or "BB gun" and while he was at the plant
entrance he discharged the gun more than once. A
security guard called the police, and Huberty was
charged with possession of a dangerous weapon.
Huberty subsequently pleaded guilty to the charge.
While one of the guards on duty testified that
shots were fired which hit the Respondent's prop-
erty, he also testified that an examination of the
building the following day did not reveal any
damage. Huberty denied shooting in the direction
of the plant.
In our view, the absence of conclusive evidence
that Huberty fired at and/or damaged the Re-
spondent's facility is not' determinative of whether
his conduct removed him from the protection of
the Act. Rather, we find the fact that he dis-
charged a weapon at the plant entrance to be seri-
ous strike misconduct which justifies the Respond-
ent's refusal to reinstate him.6 As we stated in
Clear Pine Mouldings:7
... the existence of a "strike" in which some
employees elect to voluntarily withhold their
services does not in any way privilege those
employees to engage in other than peaceful
picketing and persuasion. They have . . . cer-
tainly no right to carry or use weapons or
other objects of intimidation.8
2. In reaching his conclusion that the Respond-
ent unlawfully refused to reinstate certain of the
strikers, the judge made a series of preliminary
findings. Thus, he found that on 20 November 1981
the Union made a valid and unconditional offer to
return to work on behalf of the striking employees.
He found that as of 20 and 23 November 1981 the
striking employees had not been permanently re-
placed and the Respondent was at that time only
"contemplating" the prospect of permanently sub-
contracting its driving operations. He found that it
was not until 1 December 1981 that the Respond-
ent informed the Union that/it had reached a "ten-
tative decision" to subcontract its driving operation
6 See MCC Pacific Valves, 244 NLRB 931, 946 (1979).
7 268 NLRB 1044, 1047 (1984). Member Dennis relies on her Clear
Pine concurrence and finds that Huberty's conduct reasonably tended to
coerce or intimidate other employees.
8 We do not rely on the citation of W C McQuaide, Inc., 220 NLRB
593 at in 18 of the judge's decision.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a "long-term basis." Accordingly, as he found
that the drivers had not been permanently replaced
and their jobs were still in existence on 20 Novem-
ber 1981,9 he recommended that the Respondent
be ordered to offer them reinstatement subject to
his further determinations on strike misconduct.
The judge , however, dated "reinstatement for
backpay purposes" from 30 days after 20 Novem-
ber, i .e., 20 December 1981 , thereby taking into ac-
count the 30-day cancellation provision in the Re-
spondent's 11 September contract with TSI. The
judge stated that , although the contract drivers em-
ployed during the strike were temporary, the
record failed to establish that it was the intent of
the parties to abrogate the 30-day requirement. 10
The judge explicitly stated that he saw no need to
approach the issue of whether the Respondent and
TSI were joint employers by virtue of their 11
September 1981 contract and accordingly found
that TSI was not a necessary party to the case; he
did not discuss whether the Respondent and TSI
were joint employers by virtue of the relationship
which ensued from the permanent subcontract of
the drivers ' work and did not examine the impact
of the contract on the Respondent's obligation to
reinstate certain striking drivers.
We agree with the judge that the Respondent's
obligation to reinstate the striking drivers arose
with the Union's unconditional offer, on the strik-
ers' behalf, to return to work, which occurred at a
time when their jobs were still in existence and no
permanent replacements had been hired . We dis-
agree with, the judge's analysis of when the rein-
statement obligation matured and the violation oc-
curred. We find that date was 18 December 1981,
at which time the Respondent 's obligations under
the 11 September contract had apparently ceased
by agreement between the Respondent and TSI
since those parties then entered into the 1-year con-
tract. Thus, to the extent that the judge found the
11 September contract 's cancellation provision"
9 In his Conclusions of Law, the judge dated the violation as occurring
on either 20 or 23 November 1981, the latter date being the one when the
strikers were actually turned away from work
10 The judge rejected what he apparently viewed as the General
Counsel's and the Union 's argument that there was sufficient "parol" evi-
dence to warrant varying or disregarding the 30-day provision. He had
earlier found that the contract was for a term of 1 year but provided ter-
mination by either party on 30 days' prior written notice
11 In their exceptions , the General Counsel and the Union argue that
the entire duration clause of the 11 September contract , including the 30-
day cancellation provision , was effectively deleted by the marginal nota-
tion and thus the judge erred in postponing the reinstatement date. Nei-
ther the contract nor other record evidence clearly demonstrates that the
marginal notation referred to the entire contract clause in issue Rather,
contrary both to the argument of the General Counsel and the Union and
to the judge's statement of fact about the 1 -year duration of the contract,
we find that the marginal notation created an ambiguity in the document,
that ambiguity being the applicable scope of the marginal notation. For
that reason, we consider it appropriate to resort to extrinsic evidence to
resolve such ambiguity . See Memphis Furniture Mfg. Co., 252 NLRB 303,
postponed the Respondent's reinstatement obliga-
tion, and therefore its backpay obligation, we
agree. The provision gave the Respondent a "le-
gitimate and substantial business justification" for
its delay in reinstating the strikers . For it appears
that a condition of obtaining the temporary re-
placements and thereby continuing its operation
was agreement to the 30-day cancellation provi-
sion.12
However, we find that once the 11 September
contract, and hence the cancellation provision, was
no longer in effect and the arrangement for the
services of temporary replacements ceased, the rein-
statement obligation matured . 13 This does not end
our analysis . Since the Respondent 's actions in dis-
posing of the services of the temporary replace-
ments and in entering into a 1-year contract for the
work of the drivers were simultaneous , we must
assess the nature of the relationship that ensued to
determine whether there continued to be jobs into
which the Respondent could reinstate the former
strikers. Both the General Counsel and the Union
argue on exception that the Respondent and TSI
entered upon a joint employer relationship and,
hence, that the jobs of the former strikers had not
been eliminated. The Union also contends that the
Respondent's contract with TSI was not exclusive
and in no way precluded reinstatement of the
former strikers. The Respondent maintains that the
nature of the relationship between the Respondent
and TSI under the 1-year contract is not relevant
because it fulfilled its bargaining obligation to the
Union about the subcontracting. It nonetheless also
306-307 (1980), Food Fair Stores, 202 NLRB 347, 353 at fn. 11 (1973).
The extrinsic evidence , the testimony of Imse about the intent of the no-
tation, clearly establishes that the parties sought to delete only the 1-year
term and not the 30-day cancellation provision.
12 An employer who refuses or delays the reinstatement of economic
strikers violates Sec . 8(a)(3) and (1) of the Act unless the employer can
show "legitimate and substantial business justifications" for such actions.
NLRB v Fleetwood Trailer Co., 389 U.S 375 (1967), NLRB v. Great Dane
Trailers, 388 U.S. 26 (1967); Laidlaw Corp, 171 NLRB 1366 (1968). While
a recognized justification has been the employment of permanent replace-
ments, we believe that this short-term contractual notice provision when
the supplier of the temporary drivers declared the necessity of the provi-
sion also falls within the category of such justifications . See also Randall, -
Burkart/Randall, Division of Textron, 257 NLRB 1, 6-7 (1981) (in which
justification for at least a 30-day delay in reinstating economic strikers
was found in the fact that inventory had been built up in anticipation of a
strike and poststrike production levels accordingly did not require the im-
mediate employment of a substantial number of the strikers); Mercy-Me-
morial Hospital, 231 NLRB 1108, 1113-1114 (1977) (in which justification
for an approximately 20-day delay in reinstating economic strikers was
found in the need for a complete physical examination of returning hospi-
tal workers and in problems necessarily occasioned by the sudden termi-
nation of a 3-year-old strike).
13 We do not consider the fact that the 11 September contract's provi-
sions ceased before the 30-day cancellation period as affecting our view
of the cancellation provision as a legitimate and substantial business justi-
fication for the delay in reinstatement . In this regard, we note that the
succeeding 1-year contract was with thu same company as the 11 Sep-
tember contract and there is no indication an accommodation on the can-
cellation provision would have been made under other circumstances
PACIFIC MUTUAL DOOR CO.
maintains that the Respondent and TSI are not
single or joint employers.14 We, agree with the
General Counsel and the Union that by virtue of
the relationship under the 18 December contract
the Respondent and TSI became joint employers
and therefore that the jobs of the former strikers
were not eliminated. -
The Respondent's branch manager testified that
the main difference between the distribution oper-
ation under the contract with TSI and under the
prior operation was that the Respondent no longer
had to perform certain bookkeeping work, includ-
ing salary information or reports to the govern-
ment for tax purposes or social security.
The contract between the Respondent and TSI.
was for 1 year and thereafter, until terminated for
any reason upon 90 -days' written notice. If TSI
failed to provide backup or substitute drivers in
more than 4 days in any month, the Respondent
was free to cancel the contract. Further, any mate-
rial breach of the contract or failure of TSI to pro-
vide sufficient qualified drivers entitled the Re-
spondent to terminate the contract on 1 week's
notice.
Under the contract, TSI was to furnish the nec-
essary drivers for the efficient operation of the Re-
spondent's St. Paul, Minnesota operation and the
Respondent agreed to pay for such services on a
weekly basis. The Respondent was to provide
work for four full-time drivers, but reserved the
right to increase or decrease the number of drivers
used on 24-hour notice; the Respondent was, how-
ever, to 'make every effort to provide 1 week's
notice should business conditions dictate a lengthy
decrease or increase in the number of drivers re-
quired.
The contract stated that the drivers were to be
employees of TSI, that TSI is not an employment
agency, and that the purpose of the contract is not
an attempt to secure permanent employment for
the drivers with the Respondent.15
TSI was to pay the wages of the drivers, to -pay
applicable payroll taxes, to carry workers' compen-
sation insurance, and to make such payments to
welfare funds for the benefit of drivers as may be
required. The Respondent was to pay the expenses
incurred by the drivers including gas, oil, vehicle
repair, tolls, and telephone calls; on overnight-trips,
the Respondent agreed to pay lodging expenses
14 The Respondent acknowleges that at the hearing the General Coun-
sel asserted a joint employer status existed between the Respondent and
TSI even though the complaint did not allege such status. Further, there
is no question that this issue was litigated with respect to the Respondent
and was fully briefed to the judge and to the Board
15 In the event a TSI driver became employed by the Respondent as a
driver within 24 months from the date of the contract, the Respondent
agreed to pay TSI $2500 as liquidated damages resulting from TSI's loss
of the services of the driver and its training investment.
857
and a food allowance of $11 per day. TSI or the
drivers were to be responsible for all moving, park-
ing, and zoning violations; the Respondent was to
be responsible for any violation of weight require-
ments and/or vehicle violation.
The Respondent was to pay TSI for the services
of the drivers the sum of $12.50-per-hour for any
work up to 8 hours and $15.06 per hour for work
in excess of 8 hours.16 The Respondent acknowl-
edged that the hourly rates were based on payroll
taxes and workers' compensation rates at the time
of entry into the contract and agreed to accept ad-
ditional hourly costs should such rates change. The
Respondent was to pay a $12.50 per hour fee for
nine holidays even though drivers were not to
work on those days, provided the driver completed
45 working days for the Respondent and provided
the driver worked the last scheduled workday
before and first scheduled workday after the holi-
day unless excused for reasonable cause, in writing,
by the Respondent. The Respondent was to pay a
vacation rate of $12.50 per hour to eligible drivers
according to their service to the Respondent as'of
1 January of the vacation year; it appears the pay-
ment was to be made to TSI. If drivers worked a
minimum of 1600 hours for the Respondent during
a year prior to 1 January, there was a sliding scale
of benefit, from 40 to 160 hours paid time, depend-
ing on length of service, from 1 year to 18 years or
more. The contract further stated that the Re-
spondent was to assign vacations giving preference
to the choice of the driver where practicable and
subject to the ability of TSI to provide a replace-
ment driver.
Pursuant to the contract, TSI was responsible for
providing ongoing supervision of its drivers "sub-
ject to the direction" of the Respondent. The Re-
spondent was to have the right to pass on the expe-
rience and qualifications of the drivers and to dis-
miss any 'of them from its service if they should fail
to meet its requirements which were to be deter-
mined in' the sole discretion of, the Respondent.
Subject to such right of dismissal, TSI was to
assign the drivers to the Respondent's vehicles on a
continuing basis.
The contract stated that the Respondent was to
"control the drivers in the operation of their vehi-
cles"; to instruct them in the operation and mainte-
nance of'the vehicles, applicable safety and motor
16 In a 28 September 1981 letter from TSI to the Respondent, it was
explained that the $12 50 per hour charge includes F LC A worker's
compensation, state unemployment, Federal unemployment, and hospitali-
zation benefits as well as the drivers ' wages and TSI's fee , it also stated
that drivers receive time-and-a-half pay for work in excess of 8 hours per
day and that TSI drivers "are under [the Respondent's] supervision and
control" and backup drivers are supplied when needed
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carrier rules, and the procedure to be followed in
case of accidents; to instruct them in the proper
and safe handling of all property and material en-
trusted to them ; to train them in the special precau-
tions required to be taken in transporting the Re-
spondent's materials and in the assistance they may
be called upon to give in loading and unloading the
Respondent 's materials ; and to "assume all respon-
sibility for acts of the drivers as would be assumed
for any regular employee" of the Respondent. The
Respondent also agreed to release , indemnify, and
hold TSI harmless for any liabilities and expenses
for any injuries or damages caused by the drivers
to the Respondent's property.
The Respondent was to specify the starting
point, the destination point , and the route to be
traveled in respect to each trip . The Respondent
was to see that the drivers submit daily trip re-
ports, accident reports, and trip logs required by
the U.S. Department of Transportation (DOT)
and/or the Respondent to the Respondent 's desig-
nated representatives ; TSI was to provide the Re-
spondent with a weekly account of the work per-
formed by the drivers and maintain all records re-
quired by DOT other than those specifically indi-
cated.
The Respondent was to carry public liability and
property damage insurance with respect to the op-
eration of its vehicles and was to assume full re-
sponsibility to the public for their operation. It
agreed to release, indemnify , and hold TSI harm-
less from all claims , demands, costs, actions , liabil-
ities , and expenses arising out of or resulting from
or sustained in connection with the use or oper-
ation of the Respondent 's trucks in the perform-
ance of their duties by the drivers, whether or not
the result of negligence or other acts of misconduct
by the drivers ; this provision explicitly did not de-
prive the Respondent of any right of action it had
directly against the drivers for acts of negligence
or misconduct and did not absolve TSI of liability
if TSI or the drivers engaged in conduct contrary
to the directions or instructions of the Respondent.
In' practice , it appears that several drivers are
regularly assigned by TSI to work for the Re-
spondent on a full-time basis, while a limited
number of other drivers have been assigned to
work for the Respondent for several days a week
or on an ad hoc substitute basis . It further appears
that ' the regularly assigned drivers have regularly
assigned routes . All routes driven, that is , the start-
ing point, the order of stops, and the destination
point , have been determined by the Respondent.
The routes are essentially the same as those previ-
ously assigned to the Respondent's former employ-
ees, the equipment used by the TSI drivers is es-
sentially the same as that used by the Respondent's
former employees, and the procedure for picking
up orders is basically the same as that followed by
the Respondent 's former employees.
While the testimony indicates that TSI selects
the drivers to assign to the Respondent , ensuring
they have the proper licenses and have met DOT
regulations , and assigns the drivers to certain
routes , it is clear that the Respondent retains ulti-
mate authority over both the selection and the as-
signment . Thus, on one occasion when the Re-
spondent considered a newly assigned driver to be
too slow in meeting his stops , the Respondent told
TSI it did not want the driver back, and the driver
was no longer assigned to the Respondent.
While the Respondent 's terminal manager Imse
testified that the Respondent does not establish the
wage rates for the TSI drivers and has no knowl-
edge of whether TSI drivers are provided with
hospitalization insurance , other insurance, or pen-
sions, it appears clear that Imse was informed in
September 1981 that TSI's $12 .50-per-hour fee in-
cludes the drivers ' wages and other benefits, in-
cluding hospitalization benefits . Further, while
Imse testified that TSI basically sets the drivers'
starting times, he also testified that the Respond-
ent's customers are open from 7 a.m. to 5 p.m. and
the drivers are expected to complete a schedule of
their routes during that period of time.
The drivers turn in a daily trip record to the Re-
spondent which documents the drivers ' stops, the
amount of time spent at the stops and unloading
merchandise , the mileage covered , and total meals
for the day . The Respondent pays TSI weekly for
the drivers' meal allowances , but directly advances
gasoline money to the drivers . The drivers also
turn their delivery tickets into the Respondent;
those tickets show customer receipt of the mer-
chandise.
The individual to whom the drivers report at'the
Respondent 's facility is the shipping supervisor.
While the TSI drivers report anticipated absences
to TSI, the evidence does not clearly demonstrate
that TSI exercises daily supervision over the driv-
ers.
Based on the foregoing , we find that although
the Respondent and TSI appear to be separate busi-
ness entities , 17 the Respondent shares sufficient
control over the drivers provided by TSI to drive
its trucks and deliver its merchandise to evidence
joint employer status.18
17 The evidence reflects that the Respondent's officers and stockhold-
ers do not own any portion of TSI and TSI's officers and stockholders
do not own any portion of the Respondent.
113 As previously found, the issue of joint employer status is a factual
one involving whether separate business entities exercise common control
Continued
PACIFIC MUTUAL DOOR CO.
In reaching this finding, we note particularly the
ultimate direction the Respondent has over the su-
pervision of the ,drivers; its control over the
number of drivers and which drivers work for it;
its control over their conduct in operating its vehi-
cles and its responsibility for their conduct in oper-
ating its vehicles; its control over the nature of
their work and the daily conditions under which
they work; its control over the hours they work;
its indirect control over the amount of wages they
receive and their daily expenses; and its control of
the benefits received as paid holidays and paid va-
cations.
In view of this finding that the Respondent re-
mained an employer and retained control of em-
ployeesls who began to perform the work of the
unreinstated drivers on a permanent basis after the
unreinstated drivers unconditionally requested rein-
statement, we find that the jobs of the unreinstated
drivers were not eliminated and that the Respond-
ent in essence hired new employees instead of rein-
stating Thurstin and Kraus-after their uncondi-
tional request for reinstatement. Accordingly, we
find that the Respondent's matured reinstatement
obligation to Thurstin and Kraus was not obviated
by the 18 December contract and conclude that the
Respondent violated Section 8(a)(3) and (1) by fail-
ing to reinstate Thurstin and Kraus on 18 Decem-
ber.
3. Although the judge described the Respond-
ent's May 1982 reinstatement offers to Thurstin and
"Kraus, he failed to make any explicit findings about
the validity of those offers. However, in his recom-
mended remedy, the judge appeared to take cogni-
zance of the offers; he recommended that the Re-
spondent be ordered to offer reinstatement to
Thurstin and Kraus, but limited backpay to the
period "from December 20, 1981, to the date Re-
spondent offered them reinstatement plus interest."
(Emphasis added.) The General Counsel and the
Union both except to this apparent tolling of back-
pay. The General Counsel maintains that the offers
were invalid because they were made to less than
the total number of former strikers entitled to rein-
statement on 20 November 1981, while the Union
claims the offers were invalid because they were
discriminatory. The Respondent contends that its
reinstatement offers were valid and their rejection
over essential terms and conditions of employment of a group of employ-
ees. Boire v. Greyhound Corp., 376 U S. 473 (1964), Pacemaker Driver Serv-
ice, 269 NLRB 971 (1984); Browning-Ferris Industries, 259 NLRB 148
(1981); American Air Filter Co., 258 NL1YB 49 (1981); US. Pipe & Found-
ry Co., 247 NLRB 139 (1980)
to We reject the Respondent's argument that TSI was a necessary
party to this proceeding Quality Motels of Colorado, 189 NLRB 332, 334
(1971); see also Trans-States Lines, 256 NLRB 648, 649 (1981)
859
should not only toll backpay, but should also .end
the Respondent's reinstatement obligation.
Both offers stated, in pertinent party
This is a formal offer of reinstatement to your
former position with Pacific Mutual Door
Company without loss of seniority and at your
former rate of pay. This offer 'is made without
prejudice to -any rights that you for the Union
or Pacific Mutual Door Company, may have in
connection with the pending unfair labor prac-
tice case against Pacific Mutual Door Compa-
ny.
Each offer stated that if Thurstin or Kraus, respec-
tively, should desire to accept reinstatement, they
should report to work a week from, the date on the
letter.
On their face, these offers are neither invalid nor
conditional. The time period for acceptance of the
offers is similar to time periods the Board has
found acceptable.20 Nor has it been shown that the
offers were discriminatory. The facts that the offers
were made seriatim, not by seniority, and directly
to the employees, do not, as argued by the Union,
demonstrate discriminatory motive. Finally, the
fact that reinstatement offers were made to less
than all the eligible former strikers at, one time does
not render each offer invalid.21
Accordingly, we find that the rejection of the
Respondent's May 1982 reinstatement offers to
Thurstin and Kraus tolled their backpay and satis-
fied the Respondent's reinstatement obligation with
respect to the unfair labor practices alleged here.22
We shall 'therefore modify the judge's order to
comportwith our findings.
AMENDED CONCLUSIONS OF LAW
Delete paragraph 5 of the judge's Conclusions of
Law and substitute the following:
"5. That Respondent Employer, by failing and
refusing to, reinstate employees Gary Kraus and
William Thurstin on 18 December 1981, violated
Section 8(a)(1) and (3) of the Act."
20 Woodland Supermarket, 240 NLRB 295 (1979); Southern Household
Products Co., 203 NLRB 881 (1973). We note that the Union' s response
to both offers, on behalf of the employees, was made several days before
the employees were to report to work if they wanted to accept the
offers
21 See, e.g., National Business Forms, 189 NLRB 964 (1971); O'Daniel
Oldsmobile, 179 NLRB 398 (1969); Southwestern Pipe, Inc., 179 NLRB 364
(1969)
22 We note that Thurstin and Kraus, having declined the offers of rein-
statement while continuing to engage in strike activity, retained their
status as strikers, with whatever rights are attendant to that status See,
e.g., Seyforth Roofing Co., 263 NLRB 368 (1982); Southwestern Pipe, supra
at 365. We do not now venture an opinion as to the nature of their strike
activity.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Pacific Mutual Door Company,
Roseville, Minnesota, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on
behalf of General Drivers, Helpers and Truck Ter-
minal Employees Local No. 120, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, or any other
labor organization, by discriminatorily failing or re-
fusing to reinstate striking employees to their
former positions, or to substantially equivalent posi-
tions for which such employees are reasonably well
qualified, after their unconditional offer to return
to work.
(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) Make employees Gary Kraus and William
Thurstin whole for any loss of earnings they may
have suffered by reason of the discrimination
against them as described herein and in the manner
set forth in the remedy section of the judge's deci-
sion.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its plant and facility in Roseville,
Minnesota, -copies of the attached notice marked
"Appendix C."23 Copies of the notice, on forms
provided by the Regional Director for Region 18,
after being signed by the Respondent's authorized
representative, 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 custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
23 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 C
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 discourage membership in or ac-
tivities on behalf of General Drivers, Helpers and
Truck Terminal Employees Local No. 120, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by discrimina-
torily failing or refusing to reinstate striking em-
ployees to their former positions, or to other sub-
stantially equivalent jobs for which such employees
are reasonably well qualified, after their uncondi-
tional offer to return to work.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make striking employees Gary Kraus
and William Thurstin whole for' any loss of earn-
ings they may have suffered by reason of the dis-
crimination against them, with interest.
PACIFIC MUTUAL DOOR COMPANY
Mary E. Leary, Esq., for the General Counsel.
James R. Willard, Esq., and William C. Martucci, Esq.
(Spencer, Fane, Britt & Browne), of Kansas City, Mis-
souri, for the Respondent Employer.
Jan D. Halverson, Esq. (Robin.; Zelle, Larson & Kaplan),
of St. Paul, Minnesota, for the Charging Union.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge.
This case was heard by me in Minneapolis, Minnesota,
on October 25 and 26, 1982. The initial charge was filed
by General Drivers, Helpers and Truck Terminal Em-
ployees, Local No. 120, affiliated with the International
PACIFIC MUTUAL DOOR CO. 861
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America (the Union) on February 23,
1982 , 1 with an amended charge filed April 9 , 1982, and
the complaint issued on April , 9, 1982 , by the Regional
Director for Region 18 of the National Labor Relations
Board on behalf of the Board 's General Counsel.2 The
complaint alleges that the Respondent Employer (the
Company) violated Section 8(a)(1) and (3) of the Nation-
al Labor Relations Acts by failing or refusing to rein-
state the Company 's four striking drivers on November
23, 1981 , and after they had unconditionally offered to
return to work. The Company defends on various
grounds , alleging it had legitimately contracted out its
transportation services , and picket line violence by two
of the four employees.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed herein by the General Counsel and coun-
sel for the Union and the Company , I make the follow-
ing
FINDINGS OF FACT4
1. JURISDICTION
The pleadings , admissions, and evidence herein estab-
lish the following jurisdictional facts . The Company is
now, and has been at all times material , a Washington
corporation with an office and place of business in Rose-
ville, Minnesota, where it is engaged in the wholesale
and distribution of millwork . The Roseville facility or
plant is the only plant directly involved in this case.
During the 12-month period ending December 31, 1981,
the Company shipped and sold goods and materials
valued in excess of $50,000 directly to points located out-
side the State of Minnesota , and during the same period
purchased and received goods valued in excess of
1 Hereinafter dates in July through December are in 1981, and those in
January through June are in 1982.
2 The term "General Counsel ," when used herein, will normally refer
to the attorney in the case acting on behalf of the General Counsel of the
Board, through the Regional Director.
29 U.S.C. § 151 et seq. The pertinent parts of the Act provides as
follows:
Sec. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise
of the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization ... .
Sec. 7 . Employees shall have the right to self-organization, to
form, join , or assist labor organization , to bargain collectively
through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ... .
* The facts founds herein are based on the record as a whole and on
my observation of the witnesses . The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of NLRB Y. Walton Mfg Co., 369 U.S. 404, 408
(1962). Concerning whose testifying in contradiction of the findings
herein , their testimony has been discredited either as having been in con-
flict with the testimony of credible witnesses or because it was in and of
itself incredible and unworthy of belief. All testimony and evidence, re-
gardless of whether or not mentioned or alluded to herein , has been re-
viewed and weighed in light of the entire record.
$50,000 directly from points located outside the State of
Minnesota. Thus, and as admitted , I find and conclude
that the Company is now , and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Also,
and as admitted , I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The evidence and testimony in the case established the
following history and facts leading to this litigation. The
Union represented a unit of four truckdrivers at the
Company's Roseville facility (the plant). The Union and
the Company have had a collective-bargaining relation-
ship for some 30 years with the most recent collective-
bargaining agreement (contract) expiring on July 15,
1981. The Company employed approximately 40 employ-
ees at the plant, most of whom were carpenters and who
had also been represented by the various unions over the
years . During the period involved in this case (approxi-
mately mid-1981 to mid-1982) the Company was experi-
encing business decreases due mainly to the nationwide
building slump.
Negotiations for a new contract commenced on or
about July 10, but the Union and the Company were
unable to reach an agreement on economic issues and the
four drivers went on strike September 2, and established
a picket line .5 The carpenters at the plant did not honor
the Union's picket line and continued to work . Thereaf-
ter the Company did not replace the drivers with its own
individual hires but , on September 11, entered into a
Driver Placement Agreement with a Minneapolis firm
named Transportation Services , Inc. (TSI). This agree-
ment was for a term of 1 year but provided that the
agreement could be terminated by either party upon 30
days' prior written notice . 6 The agreement served to fur-
nish drivers for the Company and gave the Company
substantial control over the daily at-work activities of
the drivers furnished by TSI . By at least mid-October
the Union's business agent , Ray Langevin , had learned
the Company had subcontracted out its driving and was
considering this on a permanent basis . Langevin was
again reminded of this on November 13, and during ne-
gotiations on November 17 or 18 the Company made a
new offer and again reminded Langevin that it was con-
sidering contracting out its driving . On November 19 or
20, Langevin met with the drivers to discuss the Compa-
ny's recent contract offer and current state of affairs, and
the drivers told Langevin that they wished to end the
strike and go back to work . On Friday, November 20,
the picketing ceased and Langevin sent a telegram to the
Company stating the strike had ended and that the driv-
ers "unequivocally" offered to return to work.? Also on
a The four employee-drivers were Don Huberty, Gary Kraus, Ray
Lenhart, and Bill Thurstin. Their seniority varied.
s The pertinent parts of the agreement are set out in the attached App.
A.
7 The telegram read as follows:
Continued
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 20 the Company telegrammed Langevin ac-
knowledging receipt of his telegram and again indicating
that -the Company was considering the permanent sub-
contracting out of,its driving operation and that the driv-
ers would be placed on "temporary layoff status while
we consider our long term options."s Also during this
period of time the Company and the. Union had been at-
tempting to settle their differences through the use of a
mediator. Notwithstanding the Company's "temporary
layoff" reply, the four drivers reported for work the fol-
lowing Monday, November 23, but were not allowed to
punch in and return to work.9 On December 1, the
Company wrote Langevin that it had made a "tentative
decision" to subcontract its driving on a "long-term
basis." On December 9'`the Company's president and the
Company's attorney met with Langevin and the Union's
attorney, and offer to discuss the Company's decision to
subcontract `its driving, or the effects of that decision. No
agreement was reached at that meeting. Thereafter the
Company negotiated and signed another agreement with
TSI entitled "Contract to Provide Drivers," effective
December 14, which provided that TSI would furnish
driving services to the Company for 1 year. The Compa-
ny notified Langevin of this fact by letter dated Decem-
ber 23. The Union has since made no further request for
bargaining.
On February 23, 1982, the Union filed its initial charge
in this case and on the same date the drivers resumed
picketing at the plant, claiming an improper lockout. On
May 10 and 17 the Company made formal and written
offers of reinstatement to drivers Thurstin and Kraus; re-
spectively. Such offers were not made to drivers Lenhart
and Huberty, against whom the Company charged picket
line violence during the earlier strike.10 On behalf of
Thurstin and Kraus, Langevin turned down the offers of
reinstatement as "invalid," claiming the offers violated
the seniority rights of the drivers as set forth in the old
contract which had expired July 15, 1981.
With the foregoing rather complex and unusual back-
drop or history of basic facts and events, I shall hence-
forth address what I preceive to be the important and
specific issues in the case.
Please be advised effective Monday, November 23, 1981 the follow-
ing named persons stand ready, willing and able to work and hereby
unequivocally offer to retun to their jobs- Gary Kraus; Don Hu-
berty; Ray Lenhart; Bill Thurstm. At this time, no decision has been
made as to whether your latest contract offer will be accepted. Nev-
ertheless, the Local Union is terminating the strike. It will continue
to negotiate with you regarding a new collective bargaining agree-
ment Please contact the employees directly regarding what time you
want them to commence work on Monday, November 23, 1981.
s The body of the telegram is attached and set out in full marked App.
B, and made a part of this decision.
9 On or about November 25 the four drivers applied for state unem-
ployment compensation, and the Company's response to all four claims
reads as follows:
Was on strike 9/2/81-11/23/81-No settlement Union informed
strikers to go back to work. Temporary drivers were hired on a con-
tract basis-had to lay off until contract is completed.
10 In the case of Lenhart, the alleged misconduct involved an attempt
to slash a tire on a company truck and assaulting ,a security guard during
the evening of September 22. In the case of Huberty, the alleged miscon-
duct involved shooting at the plant facility during the evening of Septem-
ber 29 During the first strike, there had been some periodic violence out-
side the plant
B. Evaluation of Law and Evidence, and Initial
Conclusions
Striking employees retain their status as employees
under Section 2(3) of the Act.11 It is an unfair labor
practice in violation of Section 8(a)(1) and (3) of the Act
for an employer to refuse reinstatement of striking em-
ployees on their unconditional offer to return to work,
unless permanent replacements have >leen hired or their
jobs have been eliminated for legitimate and substantial
business justifications.12 I find in this case that as of No-
vember 20 and 23, the four striking drivers had not been
permanently replaced, nor had their jobs been eliminat-
ed. I further find that the "unequivocal" telegraphic
offer by Union Business Respresentative Langevin made
on November 20 on behalf of the striking drivers was a
valid and unconditional offer to return to work, and was
accepted as such by the Company." a
The General Counsel is apparently fearful in this case
that by virtue of the September 11 Driver Placement
Agreement between the Company and TSI the drivers'
jobs were either eliminated or that the drivers had been
permanently replaced, and thus advances the theory that
the Company and TSI became "joint employers." 14 The
Union joins in this theory, although it makes alternative
arguments, and of course the Company strongly dis-
agrees with the theory of proposition. Much verbiage is,
in my opinion, wasted on the subject in the three briefs
submitted herein. I find no need to even approach the
issue in this case . The September 11 agreement provided
for cancellation by, either party on 30 -days' written
notice, and the Company's own branch manager, Bert
Imse , who signed the agreement on behalf of the Compa-
ny as "Lessee," testified that the reason for entering into
the agreement at the time was to provide drivers during
the strike (which had commenced on September 2).15
The Company's reply to the Union's reinstatement offer
(App. B) on November 20 refers to the September 11
agreement as not providing for cancellation "on such
short notice as to allow a recall of strikers on Monday
[November 23]," and places the drivers on "temporary
layoff status while we consider our long term options."
11 NLRB v. Mackay Radio & Telegraph Co, 304 U.S. 333, (1938).
12 NLRB v. Fleetwood Trailer Co, 389 U.S. 375 (1967). See also NLRB
v. Great Dane Trailers, 388 U.S 26 (1967).
12 The Company's telegraphic response of the same date confirms such
understanding and acceptance ,See attached App B
14 The only other possible reason why the General Counsel would
take this position is that during the post-September I1 contract negotia-
tions the Union became aware that the Company was "considering" a
permanent subcontracting arrangement, and thus had a duty to bargain
about the matter but waived its right to later object to the results of such
an arrangement by failing to so bargain. The Company, in its brief, ad-
vances a somewhat similar argument , which I find to be without merit in
this case It follows in my findings as above noted that TSI is not a nec-
essary party to this case, and thus the Company's motion to dismiss the
complaint on these grounds is denied.
15 The term of the agreement and the termination or cancellation
clause are contained in a preliminary and unnumbered paragraph. Ap-
pearing in the margin to the left of the paragraph there are 'the hand-
printed words "DOES NOT APPLY" with an arrow pointing to the
middle of the paragraph. Imse testified that he made or added the nota-
tion at the time the agreement was signed by both parties, and that the
notation referred to that portion of the paragraph which recites the 1-
year initial term of the, agreement No one from TSI testified in the case.
PACIFIC MUTUAL DOOR CO. 863
The Company's reply to the drivers' November 25 un-
employment compensation claims refers to the drivers
furnished under the agreement as "Temporary drivers,"
adding that the four claimants were laid off until the
agreement was "completed ." The evidence in the case
reflects that by November 20, the date of the uncondi-
tional offer to return to work, the Company 's prospects
of subcontracting out its driving operations had reached
the "contemplating" stage at best, and it was not until
December 1 that the Company informed Union Business
Representative Langevin that It had reached a "tentative
decision" to subcontract out on a "long-term basis." Also
prior to November 20, negotations for a new contract on
behalf of the drivers had been ongoing . 1 ° As indicated
earlier, I find that as of November 20 the drivers' had
not been permanently replaced and that their jobs were
still in existence, and I will thus recommend that the
Company be ordered to offer reinstatement to the driv-
ers subject to my further determinations herein on the
subject of strike misconduct.17
C. The Alleged Strike Misconduct of Drivers Lenhart
and Huberty
Generally an employee 's misconduct during a strike
which is of a minor nature does not remove from the
protection of the Act. However , when such misconduct
is of a serious and violence nature , it may well deprive
the employee of such protection . " About 10 p.m. on
September 22 strikers Gary Kraus and Ray Lenhart
were picketing at the plant when a departing company
truck brushed or struck Kraus . 19 At the moment Len-
hart pulled a knife from his pocket and attempted to
slash a tire on the truck but was halted by security guard
Byron Adams . Adams testified that he and another secu-
rity guard were on either side of the truck , escorting its
departure from the plant , an when he saw what Lenhart
was about to do he pushed Lenhart on the left shoulder
and away from the tire , whereupon Lenhart came at him
slashing with his knife . Adams indicated that he then
backed up , tripped on a curb , and fell to the ground, but
that Lenhart continued slashing at him with the knife
and threatening him while on the ground until Kraus
16 There is no evidence in the record that these negotiations were not
conducted in good faith . However , and in my opinion, both parties at
times showed signs of uncertainty in their positions . No doubt the possi-
bility of permanent replacements was a motivating factor in the uncondi-
tional return offer , and the Company, some 5 months after it had entered
into a permanent subcontracting agreement , offered reinstatement to two
of the four drivers.
1 9 The date of reinstatement for backpay purposes will be sent 30 days
after November 20, taking into consideration the 30-day written termina-
tion clause in the September 11 agreement. The General Counsel and the
Union urged that there is sufficient "parol" evidence in the case to war-
rant varying or disregarding the 30-day clause , theus allowing the back-
pay period to commence on November 20 or 23 . I disagree . Although I
have found that the contract drivers were temporary at the time, and so
considered by the Company , the record fails to establish in my opinion
that it was the intent of the parties to abrogate the 30-day requirement.
1e Star Meat Co ., 237 NLRB 908 (1978), enfd . 640 F .2d 13 (6th Cir.
1980); W. C McQuaide, Inc., 220 NLRB 935 (1975), enfd . in part 552
F.2d 519 (3d Cir . 1977).
19 Kraus was not hurt . Security guard Byron Adams testified that
Kraus had moved to the middle of the road and in front of the truck,
which was moving approximately 5 miles per hour.
grabbed Lenhart and pulled him away. 20 Adams de-
scribed the knife as a yellow Staghorn knife with a blade
approximately 3-1/2 inches long, although Lenhart testi-
fied that the knife was merely an average pocketknife.
Lenhart conceded that he became angry and attempted
to slash the tire but testified that Adams hit him from
behind and that he then put the knife back in his pocket,
and that at no time did he hit or lunge at Adams, al-
though Adams did trip and fall . The police arrived and
arrested Lenhart for assault . 2 t I credit the testimony of
Adams over that of Lenhart regarding that incident.22
Lenhart's actions were serious, violent, agrressive, and
threatening and relected an intent to damage the Compa-
ny's property and injure security guard Adams. I thus
find and conclude that Lenhart's actions on the evening
of September 22 removed him from the protections of
the Act and that he is thus not entitled to reinstatement.
On September 29, in the evening , strikers Don Hu-
berty and Gary Kraus were together at the plant, having
apparently arrived in Huberty 's truck . Security guard
Bryan Adams arrived at approximately 8 p.m. to com-
mence his shift and was told by another guard that a
"ricochet" of the plant building had been heard. Adams
himself then walked around the building , during which
time "several ricochets" did occur . Adams concluded
that someone was shooting at him or at the building with
a high-velocity type weapon , either a "wrist rocket or a
.22," and called the police . 23 When the police arrived
they searched Huberty and Kraus , and then Huberty's
truck where they found a newly purchased "pellet gun"
in its original box with "several rounds" that came in the
box missing . Huberty was charged with possession of a
dangerous weapon and later pleaded guilty . Huberty
himself testified that he had purchased the gun earlier in
the evening in anticipation of a weekend hunting trip,
but that while at the plant entrance he had only shot at a
"sign and pop can," denying that he had shot in the di-
rection of the plant . 24 I do not minimize the seriousness
of someone firing a weapon at the plant facility but I
find the record lacks sufficient evidence from which it
could be concluded with any necessary degree of cer-
tainty that Huberty actually shot at the plant. I thus find
and conclude that as a result of whatever happened on
the evening of September 29, Huberty remained under
the protection of the Act.25
Upon the foregoing findings of fact and inital conclu-
sions, and upon the entire record , I make the following
SO Kraus did not testify in the case.
81 These charges were apparently later dismissed.
as Adams was a fairly young man but his demeanor and mannerisms
while testfying lead me to conclude that he took the matter seriously,
was conscientious , and completely truthful . Lenhart's demeanor lead me
to question his veracity in the matter . His approach to the matter, i.e.,
that it was him that had been "put upon ," reflected definite signs of insin-
cerity, and was inconsistent with his anger at the time and an incident
itself.
29 The following morning the outside of the building was inspected
and no visible damage was found.
24 As indicated earlier, Kraus did not testify in the case.
86 I note also that the record lacks evidence that the rights of other
strikers were effected or influenced that evening , nor was there any
damage or destruction of company property.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Charging Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. On September 2, 1981, employees Donald Huberty,
Gary Kraus, Raymond Lenhart, and William Thurstin
ceased work and concertedly 'engaged in an economic
strike, which strike continued until on or about Novem-
ber 20, 1981.
4. On November 20, 1981, unconditional offers to
return to work were made by and on behalf of the em-
ployees named in paragraph 3, above.
5. The Respondent Employer, by failing and refusing
to reinstate employees Donald Huberty, Gary Kraus, and
William Thurstin on November 20 or 23, 1981, violated
Section 8(a)(1) and (3) of the Act.
6. The unfair labor practices found and concluded in
paragraph 5, above, affected commerce within the mean-
ing of the Act.
7. Except for the unfair labor practices set out in para-
graph 5, above, the Respondent Employer has not other-
wise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom, to post an appropriate notice, and
take the following affirmative action designed to effectu-
ate the policies of the Act. My recommended Order will
require Respondent to offer employees Donald Huberty,
Gary Kraus, and William Thurstin immediate reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
In addition, I shall recommend that the Respondent be
ordered to make whole the three employees by paying to
them a sum of money equal to the amount they normally
would have earned from December 20, 1981, to the date
Respondent offered them reinstatement with interest.26
The amount of money due shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as set forth in Isis Plumbing Co., 138
NLRB 716 (1962), and Florida Steel Corp., 231, NLRB
651 (1977). Payroll and other records in the possession of
the Respondent are to be made available to the Board or
its agents to assist in such computation.
[Recommended Order omitted from publication.]
26 The date of December 2, 1981, is chosen because of the 30-day ter-
mination clause in the agreement the Respondent had entered into with
TSI See fn 17, supra
APPENDIX A
1. Subject to reimbursement from Lessee, Lessor shall
pay the wages of the drivers and the applicable payroll
taxes and shall carry Workman's Compensation Insur-
ance, and shall make such payments to welfare funds for
the benefit of the drivers as may be required.
2. Lessee shall have the right to pass upon the experi-
ence and qualifications of the drivers and to dismiss any
of them from their service if they should at any time fail
to meet their requirements. Subject to such right of dis-
missal, the driver shall be assigned to the operation of
Lessee's vehicle on a continuing basic.
3. Lessee shall control the drivers in the operation of
their vehicles and, to this end, Lessee shall instruct them
as to the operation and maintenance of the vehicles, as to
the applicable safety and motor carrier rules of Federal,
State, and Local Authorities, and as to the procedure to
be followed in the case of an accident. Lessee shall in-
struct the driver in proper and safe handling of all prop-
erty owned or entrusted to Lessee and shall otherwise be
assumed for any other regular employee. Lessee agrees
to release indemnify and hold Lessor forever harmless
from any liabilities and expenses for any and all injuries
or damages caused by driver to property of or in the
possession of Lessee.
4. Lessee shall specify the starting point, the destina-
tion point, and the route to be traveled in respect of each
trip.
5. Lessee shall train the drivers in the special precau-
tions required to be taken in transporting Lessee 's materi-
als and in the assistance they may be called upon to give
in the loading and unloading of the same.
6. Lessee shall determine when the drivers take their
vacation periods and shall pay the expenses incurred by
the drivers in the course of the operation of the vehicles,
including the cost of gas, oil, the repairs of the vehicles,
tolls, meals,-and telephone calls.
7. Lessee will see that' the drivers submit daily trip re-
ports, accident reports and trip logs required by the
United States Department of Transportation to Lessee's
designated representatives, who shall retain these records
in accordance with established regualtions. A weekly ac-
counting for payroll purpose with respect to the work
performed by the drivers will constitute the only report
with regard to the operation of Lessee's vehicles made to
Lessor.
8. Lessee shall carry public liability and property
damage insurance with respect to the operation of their
vehicles and shall assume full responsibility to the public
for their operation. Lessee hereby agrees to release and
to indemnify and save Lessor forever harmless from and
against all claims, demands, costs, actions, liabilities and
expenses whatsoever, including but not limited to person-
al injury, death, or property damage and attorney's fees,
if any arising out of or resulting from or sustained in
connection with the use or operation of Lessee's trucks
by the drivers furnished by Lessor hereunder, and
whether or not the result of negligence or other acts of
misconduct on the part of such drivers.
9. In the event legal process is undertaken for collec-
tion the sums due hereunder, Lessee agress to pay all
costs of collection, including attorney fees. Lessee recog-
nizes that the drivers hired on lease from Lessor have re-
ceived appropriate tranining in the operations of motor
vehicles, are properly licensed operators, and are familiar
PACIFIC MUTUAL DOOR CO.
with the requirements of the Department of Transporta-
tion both of the State of Minnesota and Federal Govern-
ment and that such tranining and preparation has been
through the efforts of Lessor. As a result of the training
and a substantial investment by Lessor in making avail-
able drivers pursuant to this type of agreement , Lessee
agrees that in the event the named driver herein becomes
employed by Lessee within 12 months from the date of
this agreement , Lessee will pay to Lessor the sum of
$2,500.00 dollars as liquidated damages resulting from
Lessor's loss of the services of said driver and the invest-
ment therein . Lessee agrees that Lessor is not an employ-
ment agency and that the purpose of this lease agreement
is not an attempt to secure permanent employment for
the driver with Lessee.
APPENDIX B
THIS WILL ACICNOWLDEGE RECEIPT OF YOUR TELE-
GRAM OF NOVEMBER 20, 1981 [SIC] , WHICH WE UNDER-
STAND TO ANNOUNCE A TERMINATION THE STRIKE
AGAINST PACIFIC MUTUAL DOOR AND AN UNCONDIC-
865
TIONAL OFFER ON BEHALF OF CERTAIN EMNPLOYEES TO
RETURN TO WORK.
WE REGARD THE COUNTER PROPOSAL OF 11-19-81
THROUGH THE MEDIATOR AS A REJECTION OF OUR OFFER
OF NOVEMBER 18 WHICH WAS CONFIRMED BY OUR NO-
VEMBER 19 LETTER AND BECAUSE OF THIS REJECTON
THAT OFFER IS WITHDRAWN.
AS YOU KNOW WE HAVE CONTRACTED FOR DRIVERS
DURING THE STRIKE AND OUR AGREEMENT DOES NOT
PROVIDE FOR CANCELLATION ON SUCH SHORT NOTICE AS
TO ALLOW A RECALL OF STRIKERS ON MONDAY. FUR-
THER YOU ARE AWARE THAT WE ARE CONSIDERING THE
PERMANENT SUBCONTRACTING OF OUR DRIVING OPERAT-
ING WITHOUT REGARD TO THE STRIKE . FOR THAT
REASON WE WILL PLACE THE DRIVERS NAMED IN YOUR
TELEGRAM ON TEMPORARY LAYOFF STATUS WHILE WE
CONSIDER OUR LONG TERM OPTIONS . AS WE ADVISED
YOU IN OUR LETTER OF NOVEMBER 19, 1981 WE ARE
CONTINUING TO INVESTIGATE THE POSSIBILITY OF DIS-
CHARGING CERTAIN DRIVERS FOR STRIKE MISCONDUCT
WHILE ON THE PICKET LINE.
IF YOU FEEL THAT FURTHER DISCUSSION OF THESE
MATTERS WOULD BE HELPFUL , PLEASE ADIVSE ME.