Freezer Queen Foods, Inc.

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freezer Queen Foods, Inc. and James H. King, James R. Harris, Tanya R. Baker, and Carl L. Swindel. Cases 3-CA-6816, 3-CA-6816-2, 3- CA-6816-3, and 3- CA-6816-4 May 6, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On February 13, 1978, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(l) and (3) of the Act by recalling striking probationary employ- ees as new hires upon termination of the strike. However, we think that it is necessary to expand on the Administrative Law Judge's analysis of the applicability of N.L.R.B. v. Great Dane Trailers, Inc., ' to the facts in this case. The facts, as set out more fully in the attached Decision, are not in dispute. The contract between Respondent and Local 2000-A, International Long- shoremen's Association, AFL-CIO (the Union), ex- pired on September 30, 1976,2 and the Union called an economic strike on October 1. Thereafter, some employees, including the alleged discrimina- tees, did not report for work. The strike ended on October 29 with the execution of a new contract, as discussed below. Under the terms of the recently expired contract, as interpreted and enforced by the Employer and the Union, new employees were hired subject to a 60-calendar-day probationary period. During that period, probationary employees could be dis- charged without further recourse, and could not bid for other jobs. Furthermore, Respondent did not make contributions to its medical insurance plan until an employee had completed 90 days of employment from the "last date of hire." Respondent's practice under the old contract had been to assign a "new hire date" to probationary employees who did not work for a period of more than 7 consecutive days during the probationary ' 388 U.S. 26 (1967). 2 Unless otherwise indicated, all dates are in 1976. 249 NLRB No. 45 period, the new hire date being the first day of work after the break in service. Upon completion of 60 consecutive calendar days from the most recent new hire date, employees were placed on the seniority list, retroactive to the "original date of hire." This practice was followed, without ob- jection from the Union, during major layoffs in 1975 and 1976. Although the Union, as stated, had not objected to the practice of assigning new hire dates to probationary employees, no formal written agreement embodying this practice was ever ex- ecuted. During the contract strike lasting from October I through October 29, 46 probationary employees did not report to work. Upon their return to work, Respondent, applying the practice described above, assigned new hire dates to the 46 striking proba- tionary employees which were, in each case, the date on which each probationary employee re- turned to work.3 The union stewards were notified of these actions on November 1. In the spring of 1977, subsequent to the filing of the instant unfair labor practice charges, Respond- ent and the Union agreed to a probationary period of "45 working days" as a replacement for the 60- day period in effect at the time of the strike. As a result of this change, Respondent no longer follows its previous practice of assigning new hire dates, and simply does not credit days on which an em- ployee does not work toward the 45-day require- ment. In finding that Respondent had violated Section 8(a)(1) and (3) of the Act by its assignment of new hire dates to returning probationary employee- strikers, the Administrative Law Judge found that there was insufficient evidence to show an actual intention to discriminate unlawfully against proba- tionary employees. The Administrative Law Judge noted, however, that the facts in the instant case are very similar to those in National Seal.4 The em- ployer in that case terminated its probationary em- ployees who had participated in a lawful strike solely because it was that employer's past practice to do so whenever there was a break in service be- s Because of the application of this practice, probationary employees did not receive credit for the time they had worked before the strike but were forced to work a full 60 calendar days after their return to work to complete their probationary periods. In addition, under the terms of the agreement between Respondent and the Union which settled the October strike, probationary employees received wage increases which were smaller and more delayed than wage increases received by employees who had completed their probationary periods. Finally, it appears that eight employees who were assigned new hire dates had completed at least 53 calendar days of employment, and therefore would appear to have completed their probationary periods during the strike without having missed more than 7 consecutive days within the 60-day period; counsel for the General Counsel rejected a proposed settlement as to these eight employees. 4 National Seal, Division of Federal-Mogul-Bower Bearings, Inc., 141 NLRB 661 (1963), enforcement denied 336 F.2d 781 (9th Cir. 1964). FREEZER QUEEN FOODS, INC. 331 cause that employer preferred that probationary periods be continuous. Although, as in the instant case, there was no evidence of union animus, the Board found that by equating strike absences with other forms of absences not protected by Section 7 of the Act the employer had violated Section 8(a)(1) and (3) of the Act. The Administrative Law Judge in the instant case concluded that he was bound by National Seal, rejected Respondent's con- tention that the applicable legal principles had been changed by the subsequent decision of the Supreme Court in Great Dane, supra, and therefore found that Respondent had violated Section 8(a)(1) and (3) of the Act by assigning new hire dates to its striking probationary employees. The Administrative Law Judge was correct inso- far as he found that Respondent's actions coerced and discriminated against striking probationary em- ployees by causing them to forfeit their probation- ary days earned prior to the strike. However, the Adminstrative Law Judge did not apply the further test set forth in Great Dane, supra, requiring that the Board consider whether the employer has prof- fered "a substantial and legitimate business end" as justification for its actions. 5 In Great Dane and in National Seal, this step was unnecessary because the employers in those cases offered no justification beyond asserting that the actions taken were in accord with their previous practice. In the instant case, however, Respondent has come forward with reasons which it claims justify following its past practice-namely, Respondent's interest in preserving its ability to observe and evaluate new employees for "a significant number of working days prior to awarding them regular status." Respondent asserts that, because of the par- ties' interpretation of the contract as requiring 60 consecutive days' probation beginning with the date of hire, it was not possible to achieve its pur- pose by tolling the probationary period for the du- ration of the strike. Instead, Respondent asserts that its only alternatives consistent with the con- tract were (1) to discharge those probationary em- ployees who had not worked enough days in the 60-day period to give Respondent an adequate basis for evaluating them, or (2) to assign new hire dates, as it had done in the past when employees had missed substantial periods of work during the 60 days following their dates of hire. As support for its contention that it had no other alternatives under the contract, Respondent notes that the Union has never objected to the assignment of new hire dates. In our view, Respondent's asserted justification is insufficient to meet the requirements of Great s 388 U.S. at 34. Dane. In essence, Respondent attempts to rely on the contract as support for its extra-contractual action of assigning new hire dates. However, Re- spondent has offered no evidence that this practice was consented to by the Union to the exclusion of all other possible extra-contractual practices. Indeed, it would seem odd if the Union had insist- ed that Respondent must strip probationary em- ployees of all credit for time worked and could not take the less severe step of merely tolling the pro- bationary period during absences. Nor has Respondent offered any reason why as- signment of new hire dates serves a purpose which could not be served equally well by tolling the pro- bationary period. The fact that Respondent's new hire date policy was neutral and nondisparate in its inception and application provides no additional justification under Great Dane. Respondent has not established that this policy, as opposed to other less destructive policies which would achieve the same end of allowing observations of new employees for a substantial uninterrupted period of time, serves any legitimate or substantial business or economic purpose. 6 Respondent further asserts that the impact of its actions on employee rights was "comparatively slight," and, having established a substantial busi- ness reason for doing as it did, it must be shown that Respondent harbored an improper motive in order for a violation to be found. As noted above, we have found that there was no substantial busi- ness purpose for Respondent's conduct, and it is therefore unnecessary for us to consider "the degree to which the challenged conduct might have affected employee rights." 7 Having found that Respondent has failed to es- tablish a legitimate and substantial business objec- tive for its conduct,8 and having found that such conduct coerced and discriminated against striking probationary employees, we shall adopt the Ad- ministrative Law Judge's finding that Respondent violated Section 8(a)(1) and (3) of the Act by as- signing new hire dates to the striking probationary employees in October 1976. e See Knuth Bro., Inc., 229 NLRB 1204 (1977), enfd, 584 F.2d 813 (7th Cir. 1978). 7 388 U.S. at 34. a In so finding, we do not rely on the statement by the Administrative Law Judge to the effect that Respondent's agreement, following the filing of charges herein, to modify the collective-bargaining agreement and provide a 45-working-day probationary period indicates that it had no substantial reason for its previous practice. The record does not show what concessions were made on either side in negotiating for this provi- sion, and it would be inappropriate for us to speculate on the motives of the parties in agreeing to the new provisions. FREEZER QUEEN FOODS, INC. 331 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Freezer Queen Foods, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order,9 except that the attached notice is substituted for that of the Administrative Law Judge. 9 Inasmuch as the appendix to the complaint names 46 probationary employees and Appendix A to the parties' stipulation shows 50 such em- ployees hired between August 2 and September 29, with no explanation as to the status of the remaining 4 employees before. during, and after the strike, we shall defer to the compliance stage of these proceedings a de- termination as to the identity and correct number of such probationary employees to whom the remedy and recommended Order shall apply. Backpay and interest herein are to be computed in accordance with the Board's established standards as set forth in F. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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 adherence to Local 2000-A, International Longshoremen's Association, AFL-CIO, or any other labor organization, by assigning new hire dates to probationary employees who engage in a lawful strike, or by otherwise dis- criminating against any of our employees in regard to their hire, tenure of employment, or other terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL rescind the new hire dates as- signed to the probationary employees who participated in the strike which began October 1, 1976, WE WILL give them credit for the time worked by them prior to the strike, and WE WILL make them whole for any loss of earnings or other benefits they may have or shall have suffered as a result of the discrimi- nation against them, with interest. FREEZER QUEEN FOODS, INC. DECISION BERNARD RIES, Administrative Law Judge: These consolidated cases were heard in Buffalo, New York, on August 24, 1977. The issue presented is whether the recall of striking probationary employees as new hires upon termination of the strike violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amend- ed. Briefs were received from General Counsel and Re- spondent Freezer Queen Foods, Inc., on or about No- vember 2, 1977. Upon the record, my observation of the witnesses, and careful consideration of the briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION Respondent, a Delaware corporation, maintains its principal place of business in Buffalo, New York, where it engages in the processing and sale of frozen food prod- ucts. In the course of that enterprise, in the year preced- ing issuance of the complaint, Respondent produced goods valued in excess of $50,000 which were shipped to States of the Unites States other than the State of New York. Respondent concedes, and I find, that it is an em- ployer engaged in commerce within the meaning of the Act. II. THE STATUS OF THE LABOR ORGANIZATION Respondent admits, and I find, that Local 2000-A, In- ternational Longshoremen's Association, AFL-CIO (the Union), is a labor organization within the meaning of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Facts The principal evidence was presented in the form of a written stipulation, which sets forth the following facts. The Union represents "certain employees" of Re- spondent, including the 46 probationary employees named as discriminatees in the complaints. On October 1, 1976, the day after the expiration of a collective-bargain- ing agreement, the Union called a strike in support of its contract demands, which strike was terminated on Octo- ber 29. During the period of the strike, "certain employ- ees" of Respondent, including the alleged discriminatees, did not report for work. The stipulation states: On October 5, 1976, Respondent determined that: a. the strike which began on October 1, 1976, would last longer than seven days. b. in accordance with its past practices and poli- cies, all probationary employees would be laid off and removed for the payroll. The stipulation supplies the following information with respect to Respondent's "past practices and policies" re- garding probationary employees. The expired bargaining agreement had provided that a new employee "shall be employed on a sixty (60) day trial basis during which FREEZER QUEEN FOODS, INC. 333 period he or she may be discharged without further re- course. After sixty (60) days, the employee shall be placed on a regular seniority list, retroactive to the origi- nal date of hire." Respondent and the Union have con- strued this provision in the past to mean 60 calendar, rather than working, days. The parties have specifically stipulated to the "pur- pose" of the foregoing provision: "to provide a proba- tionary period during which the Respondent has the op- portunity to observe and evaluate the employee to deter- mine whether the employee can satisfactorily perform his or her assigned duties and comply with Respondent's rules and procedures." In implementing this provision, Respondent furnishes the appropriate supervisor with an evaluation sheet when an employee has worked for ap- proximately 30 days; the supervisor completes and re- turns the sheet to the personnel office "before the end of the probationary period." Although not set out in writing or publicized, "[I]t has been the practice of Respondent to assign a 'new hire date' to probationary employees who are not actually working for a period of more than 7 consecutive days during their probationary period.' The 'new hire date' assigned is the date the employee returns to work." This procedure was followed during two major layoffs, in September 1975 and May 1976, and was not challenged by the Union on those occasions. On October 29, when the strike ended, "[O]nce again in accordance with past practices and policies, Respond- ent rehired its probationary employees from lay-off status and assigned them a 'new hire date,' said date being the first day the employees returned to work." Neither the Union nor the affected employees learned about either the October 5 personnel action or the new hire status until November 1, when Respondent notified the union stewards of these actions. The assignment to the probationary employees of a new hire date adversely affected the timing of their right to enjoy various benefits afforded by the agreement con- cluded by Respondent and the Union on October 29. During the spring of 1977, Respondent and the Union agreed to a new probationary procedure which provides for a probationary period of "45 working days"; ab- sences now do not detract from the probationary cred- ited time. B. Discussion and Conclusions Although the complaint alleges both that Respondent unlawfully "terminated" the striking2 probationary em- I Sensibly construed, this would seem to mean 7 consecutive working days. 2 Respondent contends that General Counsel has failed to establish that the absence of the named probationary employees during the strike is at- tributable to Sec. 7 activity. Four such employees testified at the hearing. Only one testified, in effect. that he was on strike. The record shows that there was indeed a concerted withholding of services; that 46 probation- ary employees on the payroll as of September 29 did not report to work during the entire period of the strike; and that the 46 employees returned to employment when the strike ended. The cases cited by General Coun- sel lead me to believe that the Board would consider that such circum- stances provide a prima facie basis for concluding that the 46 employees were participating in the strike. Cf Local 760, International Brotherhood of Electrical Workers. A. F. of L. (Roane Anderson Company), 82 NLRB 696, 704-705 (1949); International Brotherhood of Electrical Workers, AFL- ployees on October 5 and then, upon "recall," unlawful- ly "treated them as new hires," the stipulation, as indicat- ed, states only that Respondent "determined" that the employees "would be laid off and removed from the payroll" and that it subsequently "rehired its probation- ary employees from lay-off status." This peculiar mixture of standard terminology (a "terminated" employee is usually "rehired" rather than "recalled"; a "laid-off em- ployee is normally not "removed from the payroll," nor is an employee generally "rehired from lay-off status") leaves doubt as to the precise nature of the October 5 personnel action. Neither party addresses this question on brief, however, and it is clear from the arguments made that they consider the critical issue to be the legal- ity of the failure to give the returning probationers credit for time worked prior to the strike.3 General Counsel argues, although briefly, that the evi- dence points to the existence of an actual discriminatory intent. He cites the testimony of four employees that, when they questioned Personnel Manager Lawrence Roche after the strike about their loss of credited time, he attributed the result to their decision to go on strike. 4 At bottom, such a statement was completely consistent with Respondent's contention that any absence in excess of 7 days traditionally warranted such treatment, and I cannot find Roche's statements that the employees had, by their own actions, invoked the rule, to be other than a neutral expression of cause and effect. Cf. Gulf States Manufacturers, Inc., 230 NLRB 558, 571 (1977) (no viola- tion where employee was told that "if [he] had stayed and not gone on strike . . . [he] would have taken a job at a higher level of pay and in 30 days been getting that [raise]."). General Counsel further notes that Respondent failed properly to apply its own rule by changing the status of some employees (eight, or so it would appear from an appendix to the stipulation) who had completed at least 53 days of employment prior to the strike and therefore were "entitled" under the rule to a 7-day absence with- out losing credit for time worked. Respondent's counsel agreed with this interpretation at the hearing, assigning the action to inadvertency, and offered, in vain, a partial settlement of the case as to those employees. There is a certain persuasive force in General Coun- sel's contention, particularly in view of his further rhe- torical question as to why the "mistake" was not reme- CIO (Bendix Radio Division of the Bendix Corporation), 138 NLRB 993. 1000 (1962), International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forger and Helpers, Local No. 193 (Combustion Associates Inc.). 144 NLRB 1206, 1217 (1963): The Hearst Corporation, American Di vision, 161 NLRB 1405, 1412 (1966). D General Counsel's brief states the issue as "whether Respondent vio- lated Sections 8(aX3) and (1) by reinstating, after a strike, probationary employees as new hires and, therefore, requiring that they begin anew a 60-day probationary period with resulting loss of seniority and benefits." Thereafter, the brief nowhere refers to the October 5 change of status, but speaks only of the "assignment of new hire dates." 4 Although Roche did not testify to the contrary, I would not credit the testimony of Katherine Boyd, who gave the Board an affidavit which expressly stated that she "did not got to Roche and question him," and I had certain reservations about Stroud's testimony The other two wit nesses appeared to be reliable. FREEZER QUEEN FOODS, INC. 333 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD died prior to the hearing. Since the matter was not liti- gated, however, and I have no knowledge of the proce- dure which led to the culling out of all probationary em- ployees on October 5, it is difficult to say that the across- the-board sweep was animated by antipathy toward the strike activity. Similarly, since I do not know when Re- spondent discovered the "mistake," I cannot say that its failure to have remedied the error at the time of the hearing suggests a discriminatory motive. Finally, although General Counsel does not argue the point, it seems strange that Respondent would have "de- termined" on the third working day of the strike, Octo- ber 5, that the strike "would last longer than 7 days," which "determination" provoked application of the rule regarding probationary employees who are "not actually working for a period of more than 7 consecutive days." In the absence of more detailed knowledge about this "determination," however, I am reluctant to infer animus. Accordingly, after weighing all the foregoing evi- dence, and in the presence of an admitted consistent past practice respecting the treatment of absent probationers, I am unable to conclude that General Counsel has suffi- ciently proved an actual intention to discriminate unlaw- fully against the probationary employees. The primary thrust of General Counsel's argument is that the treatment of the probationary employees violat- ed the Act without regard to proof of the presence of union animus. Respondent devotes much time to a refu- tation of this argument. Both sides recognize that in Na- tional Seal, Division of Federal-Mogul-Bower Bearings, Inc., 141 NLRB 661 (1973), the Board found a violation on similar facts. In National Seal, the employer terminated five unre- placed striking probationary employees, consistent with its prior practice with respect to such employees and due solely, according to a stipulation, to a desire on the em- ployer's part for "all probationary periods to be continu- ous rather than broken." The Board (Member Rodgers dissenting) held the terminations to be violative, even though the employer had, without deviation, always ter- minated employees whose probationary periods were in- terrupted. While an employer may apply such a rule to other ab- sences, the Board said, the protection offered by the Act prohibits application of "this 60-day rule employees who are absent because of a strike." The Board deemed "con- trolling" its Decision in Quality Casting Company, 139 NLRB 928 (1962) (Chairman McCulloch and Member Rodgers disssenting), which had found violative a profit- sharing plan provision equating strike absences with normal absences for purposes of determining forfeitures, and which had held that an employer may not consider that "strike time is merely another form of absence, equating it to other forms of absence discouraged by it, and them proceed to impose a total and nonproportion- ate forfeiture on employees because they engaged in such absences." In National Seal, supra, at 664, the Board saod in conclusion, "The application of the rule herein, equat- 5 According to my calculations, two of the employees, Richard and Cimicato, had, as of October I, not only come close to 60 days' tenure, but had in fact satisfied the 60-day rule. ing strike absences to normal absences for such purposes, necessarily interferes with the employees' right to engage in protected concerted activity and discriminates against such employees." The Board's Decision in National Seal was reversed on review, 336 F.2d 781 (9th Cir. 1964) (as was its Quality Castings decision, 325 F.2d 36 (6th Cir. 1963)). In re- viewing National Seal, the court noted the intervening Supreme Court decision in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221 (1963), which, the Ninth Circuit be- lieved, "clarifies the rules to be applied to the question presented here." Citing several passages from the Erie Resistor opinion which "indicated the necessity for bal- ancing the equities," the court concluded that in view of the employer's adherence to the longstanding probation policy, acquiesced in by the union, in view of the reason- able and practical purpose behind the policy, and in view of its application to probationary employees, whose tenure was tentative, the balance should be struck in favor of the employer. Respondent argues rather specifically, and General Counsel's brief implies, that, despite the apparently con- trolling character of National Seal to the present facts, it is appropriate to recast analysis of these facts in terms of the formulation subsequently enunciated by the Supreme Court in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), and applied again in N.L.R.B. v. Fleetwood Trailer Company, Inc., 389 U.S. 375 (1967). In Great Dane, the Court "review[ed] . . . our recent decisions," 6 and distilled the significant principles therefrom. When discrimination and a tendency to discourage union mem- bership have been demonstrated, as required by Section 8(a)(3), the Board must then determine whether the em- ployer was motivated by illicit considerations. In making that determination, where employer conduct is shown to be "inherently destructive of employee interests," the employer "has the burden of explaining away, justifying or characterizing 'his actions as something different than they appear on their face"'; if he does not, an unfair labor practice is made out; and even if he "does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy." If, however, "the ad- verse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitmate and substantial business justifications for the conduct." 388 U.S. at 33, 34. A question arises as to the effect to be given the Board's Decision in National Seal. Respondent's brief argues, and General Counsel's brief hints, that I should de novo analyze these facts under the Great Dane formu- lation in order to assess the legality of Respondent's con- duct. The fact of the matter is, however, that there is on the books an essentially similar factual case, National N.L.R.B. v. Erie Resistor Corp.. supra; NL.R.B. v. Brown, 380 U.S. 278 (1965); American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965). FREEZER QUEEN FOODS, INC. 335 Seal, in which four Board members stated their positions. For me to review these facts anew in Great Dane terms would be to accept that Great Dane effected a basic change in the law pertaining to 8(a)(3) discrimination which fundamentally differed from the standards applied by the Board in deciding National Seal. I think it would be presumptuous of me to declare that the Board, in 1963, was, after 28 years of experience with Section 8(a)(3), ignorant of the principles applicable to deciding cases under that provision. This seems par- ticularly so in light of the fact that in Erie Resistor Corp., 132 NLRB 621 (1961), a case predating National Seal, the Board had laid the groundwork for one of the Su- preme Court decisions, N.L.R.B. v. Erie Resistor Corp., supra, which became one of the "recent decisions" relied on by the Great Dane Court as the predicate for its "dis- tillation" of the "several principles of controlling impor- tance" there set out. N.L.R.B. v. Great Dane Trailers, Inc., supra, 388 U.S. at 33-34. The intent of the rather straightforward language of National Seal must be considered against the Board's ear- lier Erie Resistor analysis. Further, it may also be said that, although, in National Seal, the Board did not spe- cifically allude to the weight to be given the employer's asserted business justification, it did set out at some length the employer's "reasoning" with regard to the le- gitimacy of its probationary policy, with which the Board "was unable to agree." The Board's Decision may simply have been a shorthand conclusion that the con- duct fell into what is now referred to as the "inherently destructive" category-it said that the application of the rule "necessarily interferes . . . and discriminates"-thus permitting the Board to "draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights ... ." Respondent further stresses the distinction between the termination of probationers in National Seal and the more benign reinstatement, albeit without credit for prior service, in the present case. In my judgment, that factual difference would have been considered immaterial by the Board in National Seal, since it found "controlling" there its prior decision in Quality Castings, which had branded unlawful the loss by strikers of a profit-sharing distribu- tion-relatively innocuous as compared to discharge. 7 I do not believe that the Board which decided National Seal would have reached a different result had the pres- ent facts been before it. Respondent's brief recognizes that "the Administrative Law Judge may feel compelled to follow National Seal notwithstanding the reversal by the Circuit Court." For the reasons given above, I think it would be inappropri- ate for me to do otherwise, and I shall accordingly find the violation charged and issue an appropriate recom- mended order. In view of the continuing development and refinement of the law since 1963, however, I think it would not be amiss to discuss the present case in the analytical frame- work provided by the Supreme Court in Great Dane, for 7 The Board has cited Quality Castings with approval only recently. Electra Vector, Inc., 220 NLRB 445, fn 3, 446 (1975). enforcement denied on other grounds 539 F.2d 35 (9th Cir. 1976). whatever use it may be to the Board's present considera- tion of the issue. As indicated, the necessary first step in the Great Dane analysis is a finding that, as the statute requires, the em- ployer's conduct implicates "a discrimination and a re- sulting discouragement of union membership." Great Dane. supra, 388 U.S. at 32. Although there is no show- ing here that the probationary employees were treated disparately inter se,8 it is settled that statutory discrimina- tion may consist of conduct affecting the entire class. Allied Industrial Workers, AFL-CIO, Local Union No. 289 [Cavalier Division of Seeburg Corporation and Cavalier Corporation] v. N.L.R.B., 476 F.2d 868, 877 (D.C. Cir. 1973); N.L.R.B. v. Jemco, Inc., 465 F.2d 1148, 1152 (6th Cir. 1972) ("The Section 8(aX3) discrimination in the present case lies in the employment benefit afforded to all employees prior to their engaging in a concerted ac- tivity and the benefit which was denied to all employees after they engaged in such an activity"). And, in the words of the Great Dane Court, depriving probationary employees of credited probationary time for having en- gaged in a strike "surely may have a discouraging effect on either present or future concerted activity."9 Great Dane, 388 U.S. at 32. This brings us, as the Great Dane opinion points out, to the question of whether the "discriminatory conduct was motivated by an antiunion purpose," and the conse- quent application of the principles earlier set out. It is, then, necessary first to consider whether the rein- statement of striking probationary employees as new hires may reasonably be deemed "inherently destructive of important employee rights," in which case the Board can (but need not) find an unfair labor practice despite employer justifications (presumably even "legitimate and substantial" ones) or whether the effect of the discrimi- natory conduct is "comparatively slight," in which case the employer may provide "legitimate and substantial business justifications" in the face of which the Board apparently may not "nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance," which it is free to do with respect to "inherently destructive" conduct. The discrimination between "inherently destructive" and "comparatively slight" discrimination has been de- scribed as an "uneasy path" which, in Allied Industrial Workers, AFL-CIO, Local Union No. 289 v. N.L.R.B., supra, 476 F.2d at 878, the Court of Appeals for the Dis- trict of Columbia found it "unnecessary for us to tread." I am not aware of much authority attempting to define the two concepts. The cases, however, appear to focus not on the quantum or severity of the discrimination, but rather on its relationship to protected activity. The Ninth Circuit has broadly held that where "dis- criminatory conduct is directly related to protected ac- I The complaint names 46 probationary employees, but an appendix to the stipulation shows 50 such employees hired between August 2 and September 29. What the status of the remaining four employees was before, during, and after the strike is unexplained 9 This language, and the cases cited thereafter, fully answer Respond- ent's contentions regarding the significance of its failure, during the strike itself, to communicate to probationary employees their change of status Swedish Hospital Medical Center, 232 NLRB 16 (1977): cf. Aero-Motriv Manufacturing Company, 195 NLRB 790, 792 (1972). FREEZER QU E O D , .NC...35 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivity . . . such conduct is inherently destructive and an inference of improper motive is warranted," Kaiser Engi- neers v. N.L.R.B., 538 F.2d 1379, 1386 (9th Cir. 1976);1 ° accord: Signal Oil And Gas Co. v. N.L.R.B., 390 F.2d 338, 343, 344 (9th Cir. 1968). In a number of cases deal- ing with the denial of vacation pay and bonus payments to strikers, and other changes resulting from a strike, the Board has characterized such conduct as "inherently de- structive," a reading which seems consonant with the view of the Ninth Circuit that discrimination of any sort directly arising out or protected activity is "inherently destructive" of the right to engage in such activity. E.g., Tex-Tan Welhausen Company, etc., 172 NLRB 851, 890 (1978), enfd. 419 F.2d 1265 (5th Cir. 1969) (vacation pay); Electro Vector, Inc., supra (bonus payments); Moore Business Forms, Inc., 224 NLRB 393, fn. 3, (1976) (Member Murphy dissenting) (retention after strike of fixed-shift system adopted during strike). It should be pointed out, however, that in Great Dane, because the employer had come forward with no justifi- cation at all, the Court found it "not necessary for us to decide the degree to which the challenged conduct [denial of accured vacation benefits to strikers] might have affected employee rights"; it was enough, given the lack of explanation, that there had been a showing of "discriminatory conduct carrying a potential for adverse effect upon employee rights." 388 U.S., at 34, 35. And in N.L.R.B. v. Jemco, Inc., supra, the Sixth Circuit held simply that denial of vacation benefits to strikers "could have adversely affected employee rights to some extent," which holding, coupled with an inadequate employer ex- planation, sufficed to support a finding of violation. It may be argued that Great Dane requires considera- tion of either the character of the loss suffered by the employees or of its specific effect upon them in the cir- cumstances. This perceived need arises from the exist- ence, specifically acknowledged by the Court, of con- duct having a "comparatively slight" effect on employee rights, but which nonetheless can result in a finding of violation. If, as the Court envisions, there is a type of conduct as to which there can, at the threshold, be found the requisite "discrimination and a resulting discourage- ment of union membership," but which at the same time can also be found to have a "comparatively slight" effect on employee rights, it may be contended that, contrary to the precedents cited, the Court believed that such one-time and relatively tolerable losses a vacation pay were not to be labeled as "inherently destructive," but rather as "comparatively slight" in effect. Some recognition must be given, it would seem, to the "comparatively slight" category described by the Court. If conduct which is both descriminatory and discourag- ing can nevertheless only have a "comparatively slight" effect on employee rights (but may nonetheless be viola- tive), and if such a finding is not to be based, as theo- rized above, on the gravity of the loss suffered, the Court may then perhaps have had in mind that findings could be made in appropriate cases that the predictable {o The court's nonstop transition from the categorization of the con- duct to the drawing of an inference of intent seems to ignore the Great Dane intermediate requirement that the employer's explanations he con- sidered. effect on employees of the discouraging and discrimina- tory conduct was not unduly harsh. In general, however, the cases do not only find em- ployer conduct to be "inherently destructive" if it is a direct result of the protected activity, without regard to its specific nature, but they also seem to pay scant atten- tion to the probable reaction of employees to particular conduct. It would seem arguable, in considering whether an action is "inherently destructive" of employee rights, that some weight to be given to likely employee attitudes and expectations, but that does not seem to be the rule. There are a number of cases in which employers have taken unprecedented strike-related actions which appar- ently have been considered inherently destructive, e.g., Harper & Row Publishers, Inc., 196 NLRB 343 (1972) (creation of a new "regular" class of employees who worked during strike); Geo. A. Hormel & Co., 226 NLRB 55 (1976) (exclusion of employees at striking plants from participation in Joint Earnings Plan because of poor pro- ductivity during strike). The unusual, ad hoc character of such conduct has never been stressed. It might be con- tended that, unlike such cases where an employer, as here, has made clear to employees the need for a rela- tively continuous period of initial service for purposes of evaluation, that knowledge might mitigate any prospec- tive adverse effect upon the willingness of these employ- ees, or others, to engage in future concerted activities, since they would recognize that the forfeiture was rooted in what was perceived to be a legitimate employ- er need, and not in antipathy toward the strikers. The more accepted approach, however, seems to be a per se rule. In several vacation pay cases, for example, despite the existence of plant rules predicating the right to such pay upon an employee's work status on given dates, the Board, sometimes with court approval, has not hesitated to hold that application of the rules to strikers, who presumably were aware of the rules, was invalid. Electro Vector, Inc., supra; Tex-Tan Welhausen Co., supra; N.L.R.B. v. Frick Company, 397 F.2d 957 (3d Cir. 1968); N.L.R.B. v. Duncan Foundry and Machine Works, Inc., 435 F.2d 612 (7th Cir. 1970). The cases, therefore, in the main would seem to sup- port a conclusion that the forfeiture by these probation- ers of their prestrike credited time was conduct "inher- ently destructive of important employee rights." It seems worthy of note that whether or not a striker has "lost" a benefit has sometimes been judged, in the past, according to the manner in which the benefit plan has been formulated by the employer. Thus, in Knuth Bros., Inc., 229 NLRB 1204 (1977), the panel majority construed the vacation policy to provide for "accumula- tion" of leave throughout the year, and found the condi- tion that employees be on the "active payroll" as of a certain date to be an insubstantial requirement which could not be applied to strikers. In so concluding, the majority distinguished, and implicitly approved, other cases finding no violation in which the prevailing policy had required that "employees had to work a full year to be entitled to any vacation pay" N.L.R.B. v. Alamo Ex- press, Inc., and Alamo Cartage, Inc., 420 F.2d 1216 (5th Cir. 1969) and Glomac Plastics, Inc., 194 NLRB 406 (1971). Applying such an analysis to the present case per- FREEZER QUEEN FOODS, INC. 337 mits an argument that the probationary employees in fact "lost" no benefit by the assignment of new hire dates be- cause they would only have become entitled to seniority credit for the time worked by successful completion of the probationary period. Whether the instant action is "inherently destructive" or whether it be deemed "comparatively slight," howev- er, Great Dane next imposes a common requirement that the employer advance "legitimate and substantial" busi- ness justifications for its conduct.'' It need scarcely be said that striking employees are not immune to all losses during the strike period. Their deci- sion to strike is a decision to forfeit wages and other im- mediate benefits. In General Electric Company, 80 NLRB 510 (1948), the Board held that an employer could also lawfully refuse to award to strikers service credits used for determining fringe benefits such as pensions and va- cations, these being in the nature of "deferred benefits," on the inarguable theory that the employer is not re- quired "to finance" a strike. In Illinois Bell Telephone Company, 179 NLRB 681 (1969), the Board held that Great Dane did not overrule General Electric, and that the refusal to provide strike-period credit for such de- ferred benefits was grounded in a "legitimate business in- terest," 179 NLRB at 685. It is at the same time clear, as the Board also held in General Electric, that tolling the seniority of strikers during a strike is unlawful. It is plain that the general effect of altering the relative seniority standing of strik- ers and nonstrikers is to prefer the latter over the former in areas which usually have little effect on the operation- al needs or purse of the employer, such as order of layoff and recall, choice of vacations, and the like. Since, how- ever, an employer can have no licit reason for wishing to prefer nonstrikers over strikers in these matters, it cannot rightly claim that its decision to do so is based on "legiti- mate and substantial" justifications. But while tolling the seniority of a striker (or, a for- tiori, stripping away his accrued seniority, Anvil Products, Inc., 205 NLRB 709, 712 (1973)) a sound, business-relat- ed reason for taking action affecting the seniority of pro- bationary employees. Here, for example, Respondent es- tablished a policy of requiring probationers to serve a relatively uninterrupted trial period, for the purposes, as stipulated, of giving Respondent "the opportunity to ob- serve and evaluate the employee to determine whether the employee can satisfactorily perform his or her as- signed duties and comply with Respondent's rules and procedures." The long interruption of that period of ob- servation here might be argued to be a plausible and sub- stantial reason for the application of the rule to striking probationers. As far as I can ascertain, the cases in which strike-re- lated violations have been found by expressly applying the Great Dane tests generally fall into two categories. In the first, as in Great Dane, the employer, whose conduct is deemed destructive, has simply failed to come forward ' As I read Great Dane, the Board may, even in the face of such con- siderations, "nevertheless ... strike the proper balance" where "inher- ently destructive" conduct is involved, but may not put aside such dem- onstrated business considerations where the conduct has only a "com- paratively slight" impact. with any explanation or justification for his conduct. E.g., N.L.R.B. v. Frick Company, supra; Tex-Tan Wel- hausen Co. v. N.L.R.B., supra, N.L.R.B. v. Duncan Foundry and Machine Works, Inc., supra; Knuth Bros., Inc., supra. In this line of cases, involving vacation or bonus policies under which benefits would accrue to em- ployees while in work status but which also required the employees to meet certain conditions, such as being at work on a particular day in order to collect the benefit, the reasons underlying the existence of the stated condi- tions were not explained. The other category of violations are cases in which justifications were offered, but they were clearly insuffi- cient George A. Hormel & Co., supra (employees made a poor productivity record during a strike); Jemco, Inc., 190 NLRB 166, supra (withholding of vacation pay as a setoff to legal costs incurred by unlawful picket line not "legitimate and substantial"). The facts of the present case (and those of National Seal) appear to present a stronger justification than those advanced in most post-Great Dane decisions. Respondent here was applying a well-established, neutral rule which seems to have a solid business purpose. In Electro Vector, Inc., supra, 220 NLRB at 445, fn. 3, the Board acknowl- edged that the relationship of a rule to productivity is pertinent, and "[w]hether there is a sufficient relationship to productivity to warrant denial of benefits to strikers must be determined on the facts of each case." The fact that invocation of the rule affects the potential seniority of the probationers does not, in these circumstances, nec- essarily bring the General Electric case into play.' 2 For one thing, the probationers did not forfeit "real" senior- ity, since their retroactive seniority does not begin to accrue until they successfully complete their trial period. For another, it might be said that this tentative seniority is so intertwined with the probationary status that its loss is truly in the service of a legitimate business purpose, a contention that very likely could not be advanced by an employer who forces a regular employee to begin again as a new employee. Cf. Anvil Products, Inc., supra at 712 (offering a striker employment without accrued seniority "was wholly unrelated to any of [the employer's] eco- nomic needs"). On the other hand, it could be argued that the policy, while legitimate, was not sufficiently "consequential" (Knuth Bros., Inc., supra) to warrant application to pro- tected strike activity. The rule itself, unlike that in Na- tional Seal, permitted probationers to interrupt their trial period for 7 days without sanction, thus indicating that a totally unbroken span of evaluation was not critically im- portant to Respondent. Furthermore, General Counsel does not seek to have the strike time counted as proba- tionary time, but only to have the prestrike trial time credited toward the total 60-day period, the remainder to be worked after the strike; he argues that, regardless of how much or how little an employee had worked prior to the strike, such a revision of the rule would not have deprived Respondent of a fair opportunity to gauge his 12 It will be recalled that, once a probationer has graduated to regular employee status, his seniority is made retroactive to the commencement of his employment. F R E E Z E R Q U E E N F O O D S , I N C ~ ~~ ~ ~~~~~~~~~~~~~ 7 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performance. The strength of this contention may vary with the length of the strike. In my view, one of the weightiest arguments warrant- ing a conclusion that a reasonably continuous trail period was not in fact a matter of "substantial" importance to Respondent in this case is the stipulation that after the strike, the parties negotiated a new policy which, as Re- spondent states in its brief, "enunciate[s] a probationary period of 45 working days so that the probationary period would not run during a period of absence," thus relieving "any furture concern employees might have on exercising their protected right to strike." Respondent's post-strike demonstration of willingness thus to tolerate potentially lengthy interruptions in probationary periods manifestly implies that a strict application of the prior rule could not have been deemed of "substantial" value to it. As stated above, I consider myself bound by the Na- tional Seal decision. I shall enter an appropriate recom- mended order. CONCLUSIONS OF LAW 1. Freezer Queen Foods, Inc., is an employer engaged in commerce within the meaning of the Act. 2. Local 2000-A, International Longshoremen's Asso- ciation, AFL-CIO, is a labor organization within the meaning of the Act. 3. By assigning new hire dates to striking probationary employees in October 1976, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend certain remedies de- signed to effectuate the policies of the Act. I recommend that the new hire dates assigned in Octo- ber 1976 to the 46 probationary employees named in the complaint be rescinded and that the employees be cred- ited with the time they had worked prior to the strike which began on October 1, 1976, for purposes of com- puting the completion of their probationary period. I fur- ther recommend that the employees be made whole for all financial and other benefits lost by them as a result of the assignment of new hire dates, with interest as pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977). I further recommend that Respondent be ordered to cease and desist from the conduct here found unlaw- ful,' 3 and that it be required to post the customary no- tices. Is In National Seal, 141 NLRB at 667, the Board issued a narrow order; I shall do the same. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 The Respondent, Freezer Queen Foods, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or adherence to Local 2000-A, International Longshoremen's Association, AFL-CIO, by assigning new hire dates to probationary employees who engage in a lawful strike, or by other- wise discriminating against its employees in regard to their hire, tenure of employment, or other terms and conditions of their employment. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Rescind the assignment of new hire dates to the employees named in the appendix to the complaint in this case, give them credit for time worked prior to the October 1, 1976, strike, and make them whole in the manner set forth in the section of this Decision 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, time- cards, personnel records and reports, and all other rec- ords necessary to analyze and compute the amount of backpay due under the terms of this Order. (c) Post at its place of business in Buffalo, New York, copies of the attached notice marked "Appendix."15 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Re- spondent'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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. '4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '° 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 Board."