Waveline, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 652 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waveline, Inc. and Vinvent Venditto, Jr. and Todd
Needham. Cases 22-CA-9900 and 22-CA-9942
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 31, 1981, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a cross-exception and a brief support-
ing the cross-exception and answering Respond-
ent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to reinstate probationary em-
ployees Vincent Venditto, Jr., and Todd Needham
after the conclusion of an economic strike in which
they had participated. Like the Administrative Law
Judge, we reject Respondent's contention that em-
ployees who have not completed a probationary
term ipso facto do not have the same rights to rein-
statement after economic strikes as regular employ-
ees.2 As found by the Administrative Law Judge,
Respondent, in refusing to reinstate Venditto and
Needham, deviated from its normal practice of al-
lowing such employees to complete their proba-
tionary terms before deciding whether to retain
them. Respondent admitted that it had not made
any decision before the strike concerning the reten-
tion of Venditto and Needham. It seized upon the
strike as an opportunity to evaluate them and find
In sec. 111, pars. 5, 6, and 7, of his Decision and in his Conclusion of
Law 3, the Administrative Law Judge indicated that Respondent had
violated Sec. 8(aX3) and (1) of the Act by "discharging" the Charging
Parlies. However, Respondent's conduct was alleged and litigated as an
unlawful refusal to reinstate economic strikers. Therefore, we disavow
such references to Respondent's conduct as constituting discriminatory
discharges, and we shall amend Conclusion of Law 3 accordingly.
We do not agree with the Administrative Law Judge that Respond-
ent's unfair labor practices warrant a broad remedial order to effectuate
fully the purposes of the Act. Hickmort Foods, Inc., 242 NLRB 1357
(1979). Accordingly, we shall narrow the scope of the Order to provide
that Respondent cease and desist from in any like or related manner in-
terfering with, restraining, or coercing employees in the exercise of their
rights guaranteed in Sec. 7 of the Act.
'See, e.g., Freezer Queen Foods, Inc., 249 NLRB 330 (1980); Compacted
Powdered Metals, Inc., 231 NLRB 68 (1977), enfd. 98 LRRM 2438. 84 LC
¶10,645 (3d Cir. 1978) (unpublished opinion).
258 NLRB No. 87
them unsuitable for reinstatement. Under these cir-
cumstances, Respondent's refusal to reinstate Ven-
ditto and Needham unlawfully penalized them for
participating in the strike.
We also agree with the Administrative Law
Judge that Needham did not abandon his job with
Respondent by taking a temporary job with an-
other employer during the strike. Respondent's ar-
gument in this regard is particularly unconvincing
because Needham was discharged by the other em-
ployer before the strike ended, and he subsequently
informed Respondent of his interest in returning to
work for it. Similarly, the evidence does not sup-
port Respondent's contention that Venditto's job
was eliminated after the strike.
Despite finding such refusal to reinstate Venditto
and Needham to be a violation of Section 8(a)(3)
and (1), however, the Administrative Law Judge
did not order backpay for Needham, instead leav-
ing that contingency to a backpay proceeding. He
did so because a permanent replacement for Need-
ham had been hired during the strike, and the evi-
dence was insufficient to determine whether any
substantially equivalent position for which he was
qualified became available after the strike ended.
We find merit in the General Counsel's exception
to this failure to order backpay.
Economic strikers who unconditionally apply for
reinstatement when their positions are filled by per-
manent replacements are entitled to full reinstate-
ment upon the departure of the replacements or
when jobs for which they are qualified become
available, unless the employer can sustain its
burden of proof that the failure to offer them rein-
statement was for legitimate and substantial busi-
ness reasons.3 The General Counsel sought to
prove herein that Respondent hired new employees
after the strike for substantially equivalent positions
that Needham could have filled. Respondent re-
fused to provide the records, which were subpen-
aed by the General Counsel, that would have es-
tablished whether such vacancies occurred. This
unexplained refusal to provide relevant evidence
within its control warrants the adverse inference
that a position became available after the strike that
Needham could have filled. 4 Inasmuch as we have
already rejected Respondent's asserted business rea-
sons for refusing to reinstate Needham, we shall
therefore order that he receive backpay in the
3 Brooks Research & Manufacturing. Inc., 202 NLRB 634, 636 (1973).
See also NL.R.B. v. Fleerwood Trailer Co., Inc., 389 U.S. 375 (1967); The
Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970).
' See Laher Spring & Electric Car Corp., 192 NLRB 464, 466, fn. 4
(1971): Mid States Sportswear. Inc., 168 NLRB 559, 560 (1967), enforce-
ment denied on other grounds 412 F.2d 537 (5th Cir. 1969).
652
WAVELINE, INC.
manner specified in the section of this Decision and
Order entitled "Amended Remedy."
AMENDED REMEDY
Having found that Respondent has engaged in
unfair labor practices violating Section 8(a)(3) and
(1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
We shall order Respondent to offer Venditto and
Needham immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and to make them whole for any
loss of earnings they may have suffered as a result
of Respondent's discriminatory refusal to reinstate
them by paying Venditto a sum of money equal to
what he would have earned from March 25, 1980,
to the date of Respondent's offer of reinstatement
to him, less his net earnings during that period, and
by paying Needham a sum of money equal to what
he would have earned from April 22, 1980,5 to the
date of Respondent's offer of reinstatement to him,
less his net earnings during that period, with back-
pay and interest to be computed in the manner pre-
scribed by the Board in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).6
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3 and substitute the
following:
"3. By refusing to offer Vincent Venditto, Jr.,
and Todd Needham reinstatement to their former
positions or to substantially equivalent positions
that became available after their unconditional
offer to return to work from an economic strike,
Respondent has discriminated against them with re-
spect to their hire, tenure, and terms and conditions
of employment, discouraging membership in the
above-named labor organization, and has thereby
violated Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
' Because Respondent refused to provide the records that would indi-
cate exactly when a vacancy became available for Needham, we shall
begin the backpay period from April 22, 1980, when the last striker was
recalled by Respondent.
' See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Member Jenkins would award interest on the backpay due in accordance
with his partial dissent in Olympic Medical Corporation. 250 NLRB 146
(1980).
Waveline, Inc., Fairfield, New Jersey, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on
behalf of Local 77A, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC, by refus-
ing to reinstate probationary employees to their
former positions or to substantially equivalent posi-
tions that became available after their uncondition-
al offer to return to work from an economic strike.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Offer Vincent Venditto, Jr., and Todd Need-
ham immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole, in the
manner set forth in the section of this Decision and
Order entitled "Amended Remedy," for any loss of
earnings they may have suffered as a result of Re-
spondent's discriminatory refusal to reinstate them.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, 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 in Fairfield, New Jersey,
copies of the attached notice marked "Appendix."7
Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
' In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations oard "
653
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 discourage membership in or
activities in behalf of Local 77A, Amalgamat-
ed Clothing and Textile Workers Union,
AFL-CIO, CLC, by refusing to reinstate pro-
bationary employees to their former positions
or to substantially equivalent positions that
become available after their unconditional
offer to return to work from an economic
strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL offer Vincent Venditto, Jr., and
Todd Needham immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
any other rights or privileges previously en-
joyed, and WE WILL make them whole, with
interest, for any loss of earnings they may
have suffered as a result of our discriminatory
refusal to reinstate them.
WAVELINE, INC.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge:
These consolidated cases were heard before me in
Newark, New Jersey, on January 5 and 6, 1981. The
complaint in this matter was issued by the Regional Di-
rector for Region 22 on June 19, 1980,1 based on charges
filed by Vincent Venditto, Jr. and Todd Needham on
April I and, 30 respectively. In substance, the complaint
alleges that the Respondent, Waveland, Inc., since on or
about March 17, 1980, has failed and refused to reinstate
the aforesaid employees who engaged in a strike by
Local 77A, Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC (herein called the Union), after
the strike ended and after an unconditional offer to
return to work was made on their behalf.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses,
and after consideration of the briefs filed, I make the fol-
lowing:
' Unless otherwise indicated all dates are in 1980.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the answer admits that the
Respondent is a New Jersey corporation with its princi-
pal office and place of business in Fairfield, New Jersey,
where it is engaged in the manufacture, sale, and distri-
bution of microwave equipment and related products. It
is further admitted that, during the past year, the Re-
spondent sold and distributed products valued in excess
of $50,000 which were shipped in interstate commerce
directly to States other than the State of New Jersey.
The Respondent concedes and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
It also is conceded and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In the autumn of 1979, the Union became the collec-
tive bargaining representative of certain of the Respond-
ent's employees pursuant to a secret-ballot election con-
ducted by Region 22 of the Board. Subsequent thereto,
negotiations commenced and a collective-bargaining
agreement was ultimately reached on March 10. Prior to
the agreement, a strike was conducted by the Union
from January 28 until March 10. It is agreed by the par-
ties that the strike in question was an economic strike. As
part of the strike settlement agreement of March 10, the
Union notified the Employer that the strike was termi-
nated and the Company agreed to recall the strikers on a
staggered basis in order to accomplish their return to
work in a manner consistent with the Company's need
and ability to reemploy them. The two individuals in-
volved in this case participated in the strike. However, at
the time the strike started, they had not yet completed
their probationary terms. 2 Venditto was employed as a
drill press operator and Needham was employed as a
trainee for numerically controlled (NC) machine tools.3
Both began their employment on December 17, 1979.
The evidence clearly establishes and there is no real
dispute that subsequent to the strike, the Respondent de-
cided that neither Venditto nor Needham would be al-
lowed to return to work. It is evident therefore that the
Company, in effect, terminated their employment. The
Respondent's position is as follows:
2 Prior to the execution of the collective-bargaining agreement, the
Company had a policy of hiring all employees on a 60-day probationary
period. The collective-bargaining agreement sets the probationary period
for 90 days.
I It appears from this record that the Company operates a number of
NC machines as a subdepartment within its machine shop and that the
normal complement for this subdepartment would be three employees
consisting of a lead man, an NC operator, and a trainee. It also appears
that these NC machines are quite sophisticated and require somewhat dif-
ferent skills and abilities than required from a regular machinist, which
itself is a highly skilled position. It appears that both NC machinists and
regular machinists require extensive on-the-job training (up to 3 years), in
order to become fully capable of performing their tasks even if they had
gone to trade schools before becoming employed.
654
WAVELINE, INC.
(a) As to both individuals, it is asserted that they had
completed less than half of their probationary periods
and that the Company decided, after the strike ended,
that it would not recall them because in management's
opinion they would not have successfully completed
their probationary terms. This is, in fact, the Company's
primary position in this case which includes a premise
that probationary employees have a lesser right of recall
than regular employees under the Act.
(b) As to Needham, it is asserted in the alternative that
he had voluntarily quit his employment to go to work as
a machinist trainee for a company called Ryan Machine.
(c) It is additionally asserted in Needham's case that a
temporary strike replacement was given a permanent po-
sition as the only NC trainee before the strike ended, and
therefore this person permanently replaced Needham in
the job for which he had been hired.
(c) As to Venditto, it is also asserted that his job as a
drill press operator was eliminated after the strike.
Venditto was hired as a drill press operator in the ma-
chine shop which was supervised by Foreman Stephen
Brozyna. Although a majority of his time was spent
doing drill press work, Venditto also performed milling
work and an operation called broaching. Venditto had
been employed for about 26 days prior to the start of the
strike and his strike participation was known to the Re-
spondent.
The Respondent asserts that Venditto was not a satis-
factory employee and that at a meeting held some time
between March 10 and 14, it was decided, based on the
recommendation of Stephen Brozyna, not to recall him.'
In essence, it is asserted that Venditto's performance was
at such a level so as to warrant the conclusion that he
would not have successfully completed his probationary
period.
With respect to the Company's policy regarding pro-
bationary employees, Plant Superintendent Allen Greg-
ory, testified that in almost all cases new employees have
been given the full probationary period before a decision
is made as to whether to retain them or to let them go.
According to Gregory, the only exceptions to this prac-
tice were when new employees had bad work habits
such as excessive absenteeism, latenesses, or were acci-
dent prone. He asserted that with respect to evaluating
probationary employees insofar as technical skills and
dexterity, the normal procedure has been to make the
final determination at the end of the probationary period.
With respect to Venditto, Gregory testified that he did
not have much chance to observe his work although he
did see that Brozyna spent a good deal of time with
Venditto in setting up the work, indicating to him that
this employee was having problems. Brozyna testified
that in his opinion, Venditto was not particularly skilled
in the type of drill press work done by the Company (in-
volving high tolerances), even though he had prior expe-
rience as a drill press operator. He therefore offered his
opinion that Venditto would not have been able to pass
his probationary term. However, Brozyna also testified
that, prior to the strike, he never made an assessment of
' The evidence herein establishes that the Company began recalling the
strikers on March 18, 1980, and that most returned to work by the last
week of March.
Venditto, "because he hadn't really been with me long
enough to make a full evaluation as to whether I would
keep him on as a full employee or to let him go." As far
as reporting his opinion to Gregory, Brozyna stated, "I
may have done it in passing . . . but basically, those de-
cisions were mine to make." Brozyna went on to state,
"I may have said something to Al Gregory as to not
needing his services any longer. I don't know if I had re-
lated it to anyone else."
The evidence indicates that after the strike ended, the
drill presses were still in operation notwithstanding the
Company's refusal to recall Venditto. In this respect,
Richard Korinis, a witness called by the General Coun-
sel testified that when he returned to work after the
strike had ended,5 he observed a person doing the drill
press work who had not been employed before the strike
started. He further testified that this person left the Com-
pany's employ about a week or a week and a half there-
after and that various people were then assigned to oper-
ate the drill presses. On the Respondent's behalf, Bro-
zyna testified that after the strike ended various people
within the machine shop and also various other employ-
ees classified as general factory workers did the drill
press work as well as other work that Venditto had per-
formed prior to the strike. Thus, according to the testi-
mony of Brozyna, no one person was classified as a drill
press operator after March 10, that job being performed
by a variety of different people, including new employ-
ees hired after the strike. He testified that these employ-
ees did this work in addition to their normal duties when
required.
As noted above, Needham was hired as an NC ma-
chine trainee and he too was a probationary employee at
the time the strike commenced. In addition to the con-
tention that Needham was an unsatisfactory employee, it
is asserted by the Respondent that he quit his job and ob-
He returned to work on March 18, 1980.
6 Prior to the hearing, the General Counsel subpened the following re-
cords from the Respondent:
I All books, records and other documents showing names, job
classification, and dates of employment of all employees hired by
Waveline, Inc., from January 28, 1980, to the present.
2. All books, records and other documents showing the names, job
classification, and termination dates of all employees of Waveline.
Inc., terminated during the period from March 17, 1980, to the pres-
ent.
The Respondent, despite the fact that it did not make a timely motion
to revoke the subpena, nevertheless refused to furnish many of the docu-
ments requested. In this respect, the Company did turn over the person-
nel file of David Crossman who is asserted to have permanently replaced
Needham as the NC trainee. Additionally, it did offer a list summarizing
the people who were recalled after the strike; the names and job catego-
ries of people hired after the strike until May 6, 1980; the names of the
people hired during the strike and some of their job classifications: and
the names of those people who left the Company's employ after the
strike ended until May 6, 1980.
Given this situation, in the context of this case I will not, as suggested
by the General Counsel. strike the Respondent's evidence regarding that
portion of its defense asserting that Needham was permanently replaced
inasmuch as documentry evidence concerning that matter was furnished
to the General Counsel. I also will not strike the evidence proffered by
the Respondent concerning the alleged unavailability of work for Ven-
ditto after the strike ended, but I shall accept and rely on the evidence of
Korinis (called by the General Counsel), to the effect that the Company
hired a drill press operator during the strike who left the Company's
employ about a week or a week and a half after March 18, 1980.
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained other employment during the strike with a compa-
ny called Ryan Machine. In this regard, the Respondent
asserts that it did not initially consider recalling Need-
ham when the strike ended as it was their belief that
Needham, having obtained other employment, would not
return to work. As to this contention, the evidence estab-
lishes that Needham did obtain a job as an NC trainee at
Ryan Machine during the strike, but that he was dis-
charged from that position prior to the end of the strike.
Needham testified that he accepted employment at Ryan
because he could not afford to remain without work
during the strike and that he told Ryan that he might
return to Waveline when the strike ended if the terms
and conditions of a contract were favorable to him.
Needham also asserted that he made similar statements to
Brozyna when he went to Waveline during the strike to
pick up his tools. No one from Ryan Machine was called
to testify as to the understanding between Needham and
that company concerning the latter's hire or as to wheth-
er his employment was intended or understood to be per-
manent, temporary, or conditional. The General Counsel
asserts that the mere fact that Needham went to work at
Ryan during the strike cannot lead to the conclusion that
he voluntarily abandoned his employment at Waveline.
When Needham was not recalled, he went to the Re-
spondent's premises on or about March 16 where he
filled out a form in which he indicated his desire to
return to work. Thereafter, the Company's management
decided to deny Needham's request to return to work es-
sentially on the ground that he, like Venditto, would not
have successfully completed his probationary term. In
this respect, Brozyna testified that Mirosky, the leadman
in the NC subdepartment, had expressed some negative
comments about Needham's productivity before the
strike had occurred, but that he (Brozyna), had decided
to keep Needham on anyway because he had to get the
work out. Mirosky was not called to testify in this pro-
ceeding and it is apparent from Brozyna's testimony that
he had not made any final evaluation of Needham's per-
formance during the period that Needham had worked
for the Company before the strike commenced.
With respect to Needham's situation, the evidence also
discloses that a person named David Crossman was hired
during the strike as a temporary replacement, who at a
point before the strike ended, was offered and accepted
the position as the NC trainee on a permanent basis.
Crossman was still employed by the Company in this po-
sition at the time the hearing herein was held. It there-
fore is evident that he permanently replaced Needham
during the strike.
I111. ANALYSIS AND CONCLUDING FINDINGS
When discussing the law applicable to economic strik-
ers, it must initially be noted that a violation of the Act
may be established even in the absence of discriminatory
motive. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S.
26 (1967). In N.LR.B. v. Fleetwood Trailer Co., Inc., 389
U.S. 375 (1967), the Supreme Court stated:
[T]he status of a striker as an employee continues
until he has obtained "other regular and substantial
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 "le-
gitimate and substantial business justifications."
Moreover, in The Laidlaw Corporation, 171 NLRB
1366, 1369 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), the
Board held that "economic strikers who unconditionally
apply for reinstatement at a time when their positions are
filled by permanent replacements . . . are entitled to full
reinstatement upon the departure of replacements." 7 Ac-
cordingly, it may be said that when economic strikers
make unconditional offers to return to work, a company
is compelled, as a matter of law, to accept such offers
unless it can affirmatively establish substantial business
justifications for its refusal. Similarly, the fact that the
strikers have been permanently replaced does not serve
to eliminate a company's obligation to reinstate such
strikers, but only serves to delay its obligation until such
time as suitable vacancies occur.
It also is established that probationary employees are
entitled to the same protection of the Act as permanent
employees. Thus, when probationary employees partici-
pate in an economic strike, they must be recalled to their
former jobs, upon their unconditional offers to return,
absent some substantial business justification for refusing
to do so. Freezer Queen Foods, Inc., 249 NLRB 330
(1980); Compacted Powdered Metals, Inc., 231 NLRB 68
(1977).
Notwithstanding the testimony of Brozyna and Greg-
ory to the effect that Needham and Venditto would not,
in their opinion, have successfully completed their proba-
tionary periods, it is clear from Brozyna's testimony that
such an evaluation had not been made for either employ-
ee before the strike commenced because he had not had
the full opportunity to observe and evaluate their per-
formance. Moreover, the decision to disqualify them for
reinstatement, which was made after the strike ended,
was made contrary to the Company's well-established
past practice of waiting the full probationary period
before making a final decision as to whether to retain or
reject any probationary employee.
Given the above facts, it is my opinion that the Re-
spondent has not established a substantial business justifi-
cation warranting its decision to disqualify these two
strikers for reinstatement. Moreover, as the decision in
' Also, the fact that a particular striker's job has been filled by a per-
manent replacement does not excuse a company's failure to recall the
striker if other equivalent jobs for which he is qualified become available.
Little Rock Airmotive, Inc., 182 NLRB 666, 672 (1970).
s In Markle Manufacturing Company of San Antonio, 239 NLRB 1142,
1150 (1979), the Board upheld the opinion of the Administrative Law
Judge who concluded that "legitimate business reasons" for refusing to
reinstate strikers does not include work deficiencies or undesirable habits
known to the employer at the time of the strike. In this respect the Ad-
ministrative Law Judge stated:
Denial of reinstatement to economic strikers is inherently destruc-
tive of important Section 7 rights, including the right to strike. If an
employer may seize upon a lawful strike to review strikers' compe-
tency and desirability as employees and, if they are found to be less
than adequate, assert such finding as a substantial business reason for
not reinstating them, where it is not established that such employees
would have been forthwith discharged, the result is inherently de-
Continued
656
WAVELINE, INC.
both instances was, in effect, that neither would be of-
fered their jobs back at any time, this action was tanta-
mount to the discharge of Needham and Venditto, two
employees, who with full knowledge of the Company,
had engaged in an economic strike. Markle Manufactur-
ing Company supra. As such, the fact that a permanent
replacement had been hired during the strike to replace
Needham, does not preclude a finding that his discharge
violated the Act, although it could serve to mitigate the
Respondent's backpay liability as discussed below.
It is also my opinion that the fact that Needham ob-
tained other employment during the strike cannot, in the
circumstances herein, be construed as indicating his aban-
donment of the strike or of his job at the Respondent.
Needham credibly testified that he accepted the job at
Ryan Machine only because he could not afford to be
without an income during the strike and that he specifi-
cally indicated to Ryan and to Brozyna that he might
return to Waveline after the strike ended.9 Accordingly,
when the Company decided, in effect, to discharge
Needham after he had lost his job at Ryan Machine, and
after Needham had unconditionally offered to return to
work on March 16, it is concluded that the Respondent
violated Section 8(a)(1) and (3) of the Act. Moreover,
this conclusion is reached even though the Company
may not have had an obligation to immediately reinstate
Needham due to the fact that it had hired a permanent
replacement. This is so because its decision effectively
precluded Needham's future recall in the event that a po-
sition for which he was qualified became available.
With respect to Venditto, the evidence establishes that
during the strike the Company hired a person to do drill
press work and that this person left the Company's
employ about a week or a week and a half after March
18. Therefore, applying the principles set forth in Laid-
law Corporation, supra, it seems to me that the Respond-
ent, as of about March 25, had an obligation to offer
Venditto his former position of employment, which was
as a probationary drill press operator. I also do not be-
lieve that the evidence presented by the Respondent is
sufficient to establish that Venditto's job was thereafter
abolished as it is clear from the testimony of Brozyna
that the drill press work and the other work that Ven-
ditto did before the strike was and is still being per-
formed at the Company by other employees, including
employees who were hired after the strike ended. There-
structive of the right to strike. Any employee with less than an ex-
emplary work record, which work record is frequently not known
to the employee, would be fearful to engage in this protected activi-
ty and afford the employer an opportunity to review his work
record and deny him reinstatement. In my opinion, a better rule
would be to preclude a struck employer from asserting as a legiti-
mate business consideration any work deficiencies or undesirable
habits known to it at the time of the strike as a basis for denying
reinstatement to its employees.
Cf. Q-T Tool Company. Inc., 199 NLRB 500, 501 (1972), where the
Board held, in the context of a case involving voter eligibility, that an
economic striker is presumed to continue in that status unless it is affir-
matively shown by objective evidence that the striker has abandoned his
interest in the struck job. The Board went on to state that, "acceptance,
of other employment, even without informing the new employer that
only temporary employment is sought, will not of itself be evidence of
abandonment of the struck job so as to render the economic striker ineli-
gible to vote." See also Woodlawn lospital, 233 NLRB 786. 791 (1977).
fore, it is my opinion that the Respondent, as in the case
of Needham, terminated the employment of Venditto by
disqualifying him for recall. As Venditto participated in
the strike, it is my conclusion that the Respondent there-
by violated Section 8(a)(1) and (3) of the Act.
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 Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Todd Needham and Vincent Ven-
ditto, Jr., who engaged in an economic strike, the Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
and 2(6) and (7) of the Act.
THE REMEDY
I recommend that the Respondent cease and desist
from its unfair labor practices and post a notice to em-
ployees. With respect to Todd Needham, although I
have concluded that the Respondent violated Section
8(a)(l) and (3) of the Act by discharging him, I shall not
at this stage of the proceeding require the Respondent to
make an immediate offer of reinstatement because an-
other employee had been hired during the strike to per-
manently replace Needham and this person was still em-
ployed at the time of the hearing. I shall therefore simply
require the Respondent to offer Needham his former or
substantially equivalent position of employment, if and
when such a position becomes available.' Similarly, I
shall not at this point order the Respondent to make
Needham whole for lost wages because the evidence
herein, although not absolutely dispositive, tends to es-
tablish that despite his discharge, he would not have
been recalled at any time up to and including the close
of this hearing as his position was occupied by a perma-
nent replacement."
'0 Of course if Needham is reinstated, he would resume his status as a
probationary employee.
" In this regard, the fact that the Respondent may have hired machin-
ists after the strike ended would not be relevant to Needham's situation
because, as a trainee, he could not have performed the work of a trained
machinist in either his subdepartment or in the rest of the machine de-
partment. However, because Respondent refused to turn over certain
documents subpened by the General Counsel, the record does not dis-
close whether any trainees. in addition to David Crossman, were hired in
the machine department in the NC subdepartment after the strike ended.
Therefore, my recommended Order shall not preclude the General Coun-
sel from establishing in any backpay proceeding that additional machinist
trainees were hired after the strike ended or that his replacement since
the close of the hearing on January 6, 1981, left the Company's employ
In either case, this Order shall then be construed so as to require the Re-
spondent to tender backpay to Needham from such time as his former or
substantially equivalent position of employment became or becomes avail-
able, if the Respondent at such time, refused or refuses to offer to recall
him. Such backpay, if any, would be computed as provided in F W
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), plus interest as set forth in Florida Steel Cor-
poration. 231 NLRB 651 (1977). 1 will further note that based on this
record, it appears to me that Needham would be qualified to be a trainee,
not only for the NC machines but for the machine department generally.
Therefore if a trainee's position becomes aailable in the machine shop,
such a position should be offered to Needham Little Rock .4irmorive Inc.
supra.
657
DECISIONS OF NATIONAL LABOR RELATIONS B()ARD
With respect to Vincent Venditto, Jr., I shall order the
Respondent to immediately offer to recall him to his
former position of employment as it is my opinion that
there is no current legitimate impediment to his reinstate-
ment. Also, as I have concluded that a replacement hired
to perform his work left the Company's employ on or
about March 25, 1980, I shall order that the Respondent
make Venditto whole for any loss of earnings he may
have suffered from that date. Here too, backpay shall be
computed in accordance with the principals set forth in
F: W. Woolworth Company, supra, and Isis Plumbing &
Heating Co.. supra, plus interest as set forth in Florida
Steel Corp., supra.
[Recommended Order omitted from publication.]
658