Fire Alert Co.

National Labor Relations Board - Board Decisions

Dec 13, 1973

207 N.L.R.B. 885 (N.L.R.B. 1973)

FIRE ALERT COMPANY 885
Fire Alert Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , Local Union 452. Case 27-
CA-3606
December 13, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 15, 1973, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. The Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that the
Respondent did not violate Section 8(a)(3) and (1) of
the Act by failing to offer reinstatement to Paula M.
Taylor and Barbara Woolfolk, and by failing sooner
to offer reinstatement to Betty J. Armstrong, follow-
ing their participation in a strike from October 22,
1971, to January 14, 1972, and dismissed the
complaint in its entirety. The General Counsel has
filed exceptions to the above findings and dismissal
of the complaint and, for the reasons hereinafter set
forth, we find merit in these exceptions as to Taylor
and Woolfolk.
The Respondent is engaged in Denver, Colorado,
in the manufacture of ionization smoke detectors and
related products. On October 22, 1971, 31 production
employees at the Respondent's plant began an
economic strike. On January 14, 1972, the Union
sent and Fire Alert received a telegram which stated:
"We are hereby on this date terminating our strike
against your company and you are advised that all
employees on strike unconditionally request immedi-
ate reinstatement or reinstatement at such time as
vacancy may occur." On January 17, 1972, 23 of the
employees who went on strike on October 22, 1971,
including Barbara Woolfolk and Paula M. Taylor,
went to the Respondent's plant. At that time each of
the employees filled out and signed a form provided
by the Respondent and left the form with the
Respondent. Betty J. Armstrong was not among
these 23 employees. On January 20, 1972, Armstrong
207 NLRB No. 140
filled out and signed a form identical to the one
completed by the 23 employees previously referred to
and on that day mailed the form to Fire Alert. In
mid-March 1972, Respondent began to offer rein-
statement to the former strikers. Some accepted
reinstatement and some declined. Armstrong was
offered reemployment on July 31, 1972, which she
accepted. Woolfolk and Taylor have not to date been
offered reinstatement because the Respondent con-
tends their jobs were eliminated. With the exception
of Woolfolk and Taylor, strikers who had completed
the previously mentioned forms were first offered
reemployment followed by those who had not
completed the form. Armstrong was the 21st striker
offered reemployment.
Taylor began working for the Respondent in April
1969, was gone from August to December 1969, and
has worked there ever since. She has performed a
wide variety of production functions for the Respon-
dent. Along with many other employees, she signed
an authorization card for the Union on an undis-
closed date and engaged in picketing during the
strike.
Woolfolk worked continuously for the Respondent
from January 1967 until the strike and was the most
senior production employee in the plant. She was a
leadgirl from 1967 to 1970, and an assistant supervi-
sor for about 4 months in 1970 and 1971. She has
conducted group training sessions for Respondent,
during which she trained many of the present
employees in a variety of production tasks. She also
signed a union card and participated in the picketing.
On October 23, 1971, the second day of the strike,
Don Stroh, Respondent's then president, stated to
Woolfolk on the picket line that the strike would not
have occurred "if it had not been for" her. Woolfolk
claims no responsibility for the strike beyond that of
the other strikers.
The Respondent contends that it has not reinstated
Taylor and Woolfolk because their prestrike jobs,
unlike those of the employees reinstated, were
eliminated and that it did not earlier recall Arm-
strong because its reinstatement priority, other than
as applied to Taylor and Woolfolk, was based on the
date the strikers submitted the form signifying their
wish to return. The Administrative Law Judge found
that both Taylor and Woolfolk could have compe-
tently performed many of the jobs to which other
employees were reinstated.
There is evidence in the record that the Respon-
dent hired five nonstrikers within days of the trial of
this case. General Counsel contends that Taylor and
Woolfolk should have been reinstated ahead of these
five employees. The Administrative Law Judge
found that this issue was not sufficiently litigated to
support a finding of a violation. We disagree.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel questioned Respondent's
Manufacturing Manager Desourdy as follows re-
garding the new hires:
Q. You haven't had any new hires during this
time period referred to on there?
A. . . . No, I don't believe so.
Q. The date listed on this document is list of
employees, January 20, 1972, to March 25, 1973.
Have you hired any employees since March 25,
1973?
A. Yes.
Q. How many employees have you hired?
A. Approximately five.
Q. Were any of them ex-strikers?
A. No.
Q. What qualifications did you require for
hiring these employees?
A. I will tell, you how we ran the ad. We
looked for electronic assemblers with soldering
experience.
Q. What did you get?
A. Electronic assemblers with soldering expe-
rience.
The record shows that Taylor and Woolfolk are
qualified as electronic assemblers with soldering
experience. Thus, Respondent hired new employees
off the street at a time when it still had unreinstated
economic strikers who were fully qualified to fill the
positions for which the Respondent hired new
employees. We therefore do not agree with the
Administrative Law Judge's finding that "this issue
was not sufficiently litigated to support a finding of
violation." Respondent did not seek employees with
special skills to perform difficult tasks. It sought only
"electronic assemblers with soldering experience,"
and that is what it got, as testified by Mr. Desourdy.
The discrimination against Taylor and Woolfolk is
proven by this conduct for Respondent bypassed its
own qualified employees who remained unreinstated
in favor of new hires off the street. Likewise, the
hiring of new employees is further evidence of
Respondent's refusal to even consider Woolfolk and
Taylor for reinstatement.
In Brooks Research & Manufacturing, Inc., 202
NLRB 634, the Board noted that the Supreme Court
in Fleetwood Trailer, 389 U.S. 375 at 381 (1967), had
held:
... The status of the striker as an employee
continues until he has obtained "other regular
and substantially equivalent employment" ... .
If and when a job for which the striker is qualified
becomes available, he is entitled to an offer of
reinstatement. The right can be defeated only if
the Employer can show "legitimate and substan-
tial business justifications ." N.L.R.B. v. Great
Dane Trailers, 388 U.S. 26.
The Board continued in Brooks, supra, stating from
its decision in The Laidlaw Corporation, 171 NLRB
1366, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied
397 U.S. 920 (1970), that:
... economic strikers who unconditionally
apply for reinstatement when their positions are
filled by permanent replacements are entitled to
full reinstatement upon departure of replacements
or when jobs for which they are qualified become
available, unless they have in the meantime
acquired regular and substantially equivalent
employment or the employer can sustain its
burden of proof that the failure to offer full
reinstatement was for legitimate and substantial
business reasons . [Emphasis supplied.]
Thus, it is obvious that the Respondent's reinstate-
ment obligation here is not limited to the strikers' old
positions , but rather includes reinstatement to
substantially equivalent positions which the strikers
are qualified to fill. The Respondent's argument that
the particular jobs of Woolfolk and Taylor were
terminated , and that it thus had a legitimate business
reason for not reinstating these employees, will not
withstand scrutiny. The Respondent did not reinstate
the striking employees to their particular former
positions but reinstated them to whatever job
happened to be available at the time. The Respon-
dent stated that it recalled employees based upon its
need . A senior employee, Woolfolk, testified that the
only jobs she did not do while working in the
Respondent's plant were burn box and etching. She
had worked both as a leadgirl and as a supervisor
and had taught other employees various jobs in the
Respondent's plant. She was well qualified for
virtually any job which the Employer might have had
available. While it might be true that a less senior
employee might be equally qualified for a particular
job, Woolfolk is plainly qualified for almost any job
in which the Respondent had an opening.
It is true that employee Taylor did not have the
seniority and experience of Woolfolk, but she had
worked for the Respondent for a period of about 2
years. Taylor had a right to be considered for
reinstatement to a position substantially equivalent
to the position which she previously held in the plant.
The failure of the Respondent so to consider her
along with the other employees, and especially its
failure to consider her in preference to new employ-
ees with no experience in the plant , as shown by the
recent hiring of new employees other than strikers, is
contrary to the principle established in Great Dane,
Laidlaw, and Brooks, supra. Accordingly, we con-
FIRE ALERT COMPANY 887
clude that the Respondent violated Section 8(a)(3)
and (1 ) of the Act by refusing to offer to Woolfolk
and Taylor reinstatement to positions substantially
equivalent to those which they held prior to the
strike.
Section 7 of the Act, in violation of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
We have found that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing and
refusing to offer reinstatement to Woolfolk and
Taylor as work for which they were qualified became
available.
We shall order the Respondent to offer Woolfolk
and Taylor immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, dismissing anyone hired on or after March
30, 1973, if necessary, to make room for them. We
shall also order Respondent to make Woolfolk and
Taylor whole for any loss of earnings they suffered,
or which they may suffer, by reason of Respondent's
failure to reinstate them by payment to each of a sum
of money equal to that which they normally would
have earned until the date on which a valid offer of
reinstatement is made by the Respondent. Loss of
earnings, as referred to above, shall be computed in
the manner set forth in F. W. Woolworth Company,
90 NLRB 289, with interest at 6 percent per annum
as prescribed in Isis Plumbing & Heating Co., 138
NLRB 176.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to reinstate economic
strikers Woolfolk and Taylor when work for which
they were qualified became available, and after they
had unconditionally requested reinstatement, there-
by discouraging membership in the Union, the
Respondent has violated Section 8(a)(3) of the Act.
4. By the foregoing conduct the Respondent
interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed to them by
1 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read `Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Fire Alert Company, Denver, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate economic
strikers who have unconditionally requested rein-
statement when work for which they are qualified
becomes available.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Barbara Woolfolk and Paula M. Taylor
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing
anyone hired on or after March 30, 1973, if
necessary, to make room for them, and make them
whole for any loss of earnings in the manner set forth
in the section of this Decision and Order entitled
"The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel 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 Denver, Colorado, facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to reinstate
economic strikers who have unconditionally
requested reinstatement when work for which
they are qualified becomes available.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer Barbara Woolfolk and Paula M.
Taylor immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, dismissing if necessary anyone hired on
or after March 30, 1973, and WE WILL make them
whole for any loss of earnings they may have
suffered because of our discrimination against
them by payment to each of a sum of money
equal to that which they normally would have
earned, until the date on which we make a valid
offer of reinstatement, with interest at 6 percent.
FIRE ALERT COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, U.S. Custom House, Room 260, 721
19th Street, Denver, Colorado 80202, Telephone
303-837-3555.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was tried before me in Denver, Colorado, on April 10,
1973. The charge was filed July 11, 1972, by International
Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America , Local Union 452, herein called
the Union . The complaint issued January 8, 1973, alleging
that Fire Alert Company, herein called Respondent,
violated Section 8(a)(1) and (3) of the National Labor
Relations Act.
Issues
The issues are whether Respondent, by failing to offer
reinstatement to Paula M. Taylor and Barbara Woolfolk,
and by failing sooner to offer reinstatement to Betty J.
Armstrong, following their participation in a strike from
October 22, 1971, to January 14, 1972, violated Section
8(a)(1) and (3) of the Act.'
The parties were given full opportunity at the trial to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, subsequently were filed for the
General Counsel and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Colorado corporation whose principal
place of business is located in Denver, Colorado, is
engaged in the manufacture and sale of electronic
equipment. Respondent annually ships products valued at
more than $50,000 to customers located outside the State
of Colorado. Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On October 22, 1971, 31 of Respondent's production
employees engaged in a recognitional strike on behalf of
the Union, necessitating Respondent's hire of a number of
permanent replacements to maintain operations. An
NLRB election among Respondent's employees was
pending at the time.
I The complaint alleges that Respondent at all times has failed and
refused to reinstate all three alleged discriminatees . It developed at the trial
that Betty J. Armstrong had been reinstated , whereupon counsel for the
General Counsel stated his position that no violation occurred regarding
Armstrong after that date. The complaint as issued also alleged that a
reason for Respondent 's discrimination against the named individuals was
their engagement not only in union activities but "other concerted
activities." Counsel for the General Counsel conceded at the trial that he
had no evidence that concerted activities unrelated to union activities in any
way motivated the alleged unlawful conduct . Accordingly, Respondent's
motion was granted to strike from par. VII of the complaint the phrase "or
engaged in other concerted activities."
FIRE ALERT COMPANY 889
On October 28, 1971, Respondent distributed to each
striker this memorandum:
TO: All Strikers of Fire Alert
FROM: Don Stroh
We have heard that some of the strikers would like to
come back to work but don't know where they stand.
If a permanent replacement has not already been hired
for your job, or if your job has not been eliminated,
then you may return to work. If you wish to return to
work unconditionally, fill out the offer slip below and
either mail it in or take it in to the front office. You will
be informed by return mail whether or not your job is
still available; if your job is still available, you are
welcome to return to work under the same wages and
benefits that you were receiving before the strike, but
you will not be paid for your time on strike.
If you have been permanently replaced in your job,
Fire Alert will keep your name on a preferential hiring
list in the event a future vacancy occurs.
Date:
I [name] offer to return to my job
of [classification ] at Fire Alert unconditionally.
[Signature]
Issued this 28th day of October 1971
On January 14, 1972, the Union sent this telegram to
Respondent:
We are hereby, on this date, terminating our strike
against your company and you are advised that all
employees on strike unconditionally request immediate
reinstatement or reinstatement at such time as vacancy
may occur.
On January 17, 1972, 23 of the strikers, including alleged
discriminatees Taylor and Woolfolk, signed and submitted
the form attached to the above memorandum offering to
return to work. Three days later, alleged discriminatee
Armstrong also signed and submitted this form. None of
the other seven strikers did this.
Respondent began offering reinstatement to the ex-
strikers in mid-March 1972. All but Taylor and Woolfolk
eventually received offers. Except for Taylor and Wool-
folk, offers were made, on an as-needed basis, first to those
submitting the above forms January 17, then to Armstrong,
then to those who did not submit the form at all.
Armstrong was reinstated July 31, 1972. Taylor's and
Woolfolk's jobs, immediately preceding the strike, involved
the assembly of a so-called K2, K3, K4 relay. For reasons
of efficiency unrelated to the strike, Respondent arranged
during the strike to contract out the manufacture of this
item, continuing to do so ever since. Thus, Taylor's and
Woolfolk's jobs in a sense were eliminated, although
Respondent continues to have need for certain of the skills
used on those jobs.
Taylor began working for Respondent in April ' 1969, was
gone from August to December 1969, and has worked
there ever since. She has performed a wide variety of
production functions for Respondent. Along with many
other employees, she signed an authorization card for the
Union, on an undisclosed date, and engaged in picketing
during the strike. Woolfolk worked continuously for
Respondent from January 1967 until the strike, and was
the most senior production employee in the plant. She was
a lead girl from 1967 to 1970, and an assistant supervisor
for about 4 months in 1970 and 1971. She has conducted
group training sessions for Respondent, during which she
trained many of the present employees in a variety of
production tasks. She also signed a union card and
participated in the picketing. I find that both Taylor and
Woolfolk competently could have performed many of the
jobs to which others were reinstated.
On October 23, 1971-the second day of the strike-Don
Stroh, Respondent's then president, stated to Woolfolk on
the picket line that the strike would not have occurred "if it
had not been for" her.2 Woolfolk claims no responsibility
for the strike beyond that of the rest of the strikers.
Armstrong began working for Respondent in July 1968.
She was fired in 1969-a discharge later determined by the
NLRB to be in violation of the Act. Fire Alert Co., 182
NLRB 910. She was reinstated as a result of that decision
August 2, 1971, remaining until the strike.
Respondent explains that it has not reinstated Taylor
and Woolfolk because their prestrike jobs, unlike those of
the ones reinstated, were eliminated; 3 and that it did not
earlier recall Armstrong because reinstatement priority
other than as concerns Taylor and Woolfolk was based on
the date the strikers submitted the form signifying their
wish to return. The record is silent regarding criteria to be
observed by Respondent in determining priority in other
instances of major recall or layoff, of which there have
been none .4 Respondent has not left jobs unfilled or filled
by temporary replacements to avoid reinstating any of the
alleged discriminatees. In addition to recalling ex-strikers,
Respondent hired two nonstrikers between strike's end and
complaint issuance . Charles Moseley, Jr., and Elby French
were hired in June 1972, Moseley as a silk screener, French
in a classification unclear from the record.5
2 Stroh left Respondent in November 1972.
3 Because of the presence of permanent replacements, not all were
recalled to their former jobs. Bernard Desourdy, Respondent's manufactur-
ing manager , testified that the continued existence of the former jobs
nevertheless favored those recalled to different jobs over Taylor and
Woolfolk because it assured a qualified fillip for the old job at such time as
the replacement might leave.
4 General Counsel sought to introduce through Manufacturing Manager
Desourdy a document purporting to set forth company policy basing layoffs
and recalls on seniority. The offer was rejected because of Desourdy's
testimony that the policy "has long since been eliminated ," and the total
absence of foundation that it was in effect at any relevant time.
5 These findings regarding Moseley and French are based on a
document provided by Respondent and in evidence as G.C. Exh. 3, and are
in conflict with the testimony of Manufacturing Manager Desourdy that no
nonstrikers were hired during the period in question . I find the document,
based on Respondent's business records, to be the more probative. The
document purports to give French's job classification, as well as Moseley's
and many other employees', but the entry is illegible . There is no mention in
the record of Moseley or French aside from this document; additional
findings regarding their hire and job content, therefore , are impossible, and
would seem unnecessary since General Counsel does not contend that any
(Continued)
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Concluding Findings with the above-noted, on-the-record disavowal, that it was
not proper for Respondent to base Armstrong's recall
priority on the date relative to others that she submitted
the form signifying her wish to be recalled; and that
discontinuance of the K2, K3, K4 relay was not a valid
rationale for giving Taylor and Woolfolk bottom priority.
Logical consistency would require that the argument
regarding Armstrong also be made for those strikers who,
failing to submit the form altogether, were offered recall
after Armstrong, but that argument is not advanced. While
perhaps it would have been a violation for Respondent to
condition recall rights on the submission of the form, the
Union already having informed Respondent of the strikers'
availability (see, e .g., American Machinery Corporation, 174
NLRB 130), I see nothing unlawful in its basing order of
recall on date of submission, there being no conflicting
recall practice. Similarly, while it probably would be a
violation to bypass Taylor and Woolfolk with nonstrikers
on the theory that their reinstatement rights were extin-
guished, I see nothing improper in Respondent's giving
them a reduced recall priority, vis-a-vis other strikers,
because it no longer makes the items they previously
worked on.7
General Counsel's backup contention is that, Fleetwood
aside, Respondent was acting out a specific discriminatory
intent with reference to the alleged discriminatees, citing
the ability of all three to perform jobs to which others were
reinstated, their participation in the picketing, former
President Stroh's comment placing strike responsibility on
Woolfolk, and Respondent's earlier unlawful discharge of
Armstrong. This contention again presupposes either that
Respondent left jobs unfilled rather than recall the alleged
discriminatees, which did not happen; or that it should
have recalled them rather than recalling or hiring unspeci-
fied others, which is irreconcilable with the General
Counsel's disclaimer that "any particular position should
have been offered them in opposition to another employ-
ee."
On top of these difficulties with General Counsel's
argument, other factors militate against a finding of
subjective discriminatory intent against Taylor, Woolfolk,
or Armstrong: (a) Respondent's stated reasons for reinstat-
ing in the order it did are not patently capricious, and have
not been demonstrated by the General Counsel to be
pretextuous; (b) the order of recall has not been shown to
be in contravention of any practice Respondent might
follow in other instances of recall on this scale; and (c)
many reinstated employees supported the Union no less
than the alleged discriminatees, on the picket line and
otherwise. Cf. Granite Paving Co., 179 NLRB 899, 904;
Federal Electric Corporation, 167 NLRB 469, 473-474.
necessary to the disposition of this case finally to resolve that issue. The
evidence , as opposed to counsel's argument , does not indicate that
Respondent recalled other strikers ahead of Taylor and Woolfolk because
they no longer had recall rights , but rather for the valid-seeming reason
testified to by Manufacturing Manager Desourdy and summarized in fn. 3,
supra. Were the issue being litigated of Respondent 's hire of nonstrikers
ahead of Taylor and Woolfolk-not to be confused with that of the
legitimacy of its criteria for recalling some strikers ahead of others -the job-
elimination question perhaps would require explicit resolution . See Laidtaw
Corporation, 171 NLRB 1366. See, also, Brooks Research & Manufacturing,
Inc., 202 NLRB 634.
General Counsel, in arguing that Respondent violated
the Act by its failure to reinstate Taylor and Woolfolk and
its failure earlier to recall Armstrong, places primary
reliance upon the general right of protected-activity strikers
to reinstatement under such cases as N.L.R.B. v. Fleetwood
Trailer Co., 389 U.S. 375 (1967). Counsel for the General
Counsel stated at the trial that he is "not arguing that any
particular position should have been offered them in
opposition to another employee."
The Supreme Court decided in Fleetwood that an
employer's failure to reinstate strikers necessarily discour-
ages employees from exercising their rights to organize and
strike under the Act. Consequently, unless the employer
can show that its failure was due to "legitimate and
substantial business justifications," it is deemed to have
discriminated against the unreinstated employees in
violation of Section 8(a)(3) and (1), even absent proof of
subjective discriminatory intent.
A justification expressly sanctioned by the Court in
Fleetwood is "when the striker's job has been eliminated for
substantial and bona fide reasons other than considera-
tions relating to labor relations: for example, `the need to
adapt to changes in business conditions or to improve
efficiency.' "6 It is questionable, however, that this
exception to the right to reinstatement would license
Respondent 's denying recall rights to Taylor and Wool-
folk. For, although Respondent ceased making the compo-
nents they worked on before the strike, it still requires
certain of the skills they used on those jobs, as well as other
skills they used during their tenures with Respondent.
But even disregarding job-elimination considerations, it
cannot be concluded that any violations occurred under
Fleetwood Giving credence to General Counsel's on-the-
record disavowal of any contention that Respondent hired
or recalled others when it should have recalled Taylor,
Woolfolk, or Armstrong, an essential to a Fleetwood
violation would be a finding that Respondent left available
jobs unfilled rather than recall any of those three. That is,
the general right to reinstatement does not obtain where
the employer has no work for the ex-striker to do. General
Counsel does not assert that jobs went unfilled, nor is there
any warrant for such a finding. This compels the
conclusion that Respondent simply did not have enough
work for both permanent replacements and all of those
seeking reinstatement during the time of the alleged
discrimination . Taylor, Woolfolk, and, to a lesser degree,
Armstrong happened to suffer from this discrepancy in
supply and demand.
General Counsel argues in his brief, in apparent conflict
violation occurred in the hire of these people . There also is evidence that
Respondent hired five nonstrikers within days of the trial. General Counsel
contends for the first time in his brief that Taylor and Woolfolk should have
been reinstated ahead of these five. Having stated on the record , without
dissent from the parties , "I think we have to disregard for purposes of this
trial the very recent hire of new employees .... [T]hat obviously didn't
figure in General Counsel 's theory of the case," I find that this issue was not
sufficiently litigated to support a finding of violation.
6 389 U .S. at 379.
7 Respondent's counsel argues in his brief that Taylor and Woolfolk had
no right to reinstatement because their jobs were eliminated . Although I
have indicated my likely disagreement with that view, I do not think it
FIRE ALERT COMPANY 891
Neither Armstrong's earlier unlawful discharge nor Stroh's
statement to Woolfolk were so fraught with intimations of
continuing animus to overcome this aggregate of circum-
stances tending to Respondent 's exoneration.
Based on the foregoing findings of facts and analysis, I
conclude that Respondent did not violate Section 8(a)(1)
and (3) of the Act as alleged.
CONCLUSIONS OF LAW
commerce , and in activities affecting commerce, within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local Union 452,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent has not violated Section 8 (a)(1) and (3)
of the Act, as alleged.
[Recommended Order omitted from publication.]
1. Fire Alert Company is an employer engaged in