Heritage House, Inc.

DI4('ISIONS OF NAIIONAL LABOR RELATIONS BOARD Heritage House, Inc. of New Castle, Indiana and Blanche N. Gillock and Margaret L. Trueblood Retail, Wholesale and Department Store Union, AFL-CIO and Audrey L. Williams.' Cases 25 CA 8577 2, 25 CA 8810 2, and 25 CA 2902 September 24, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBLRS JNKINS AND PENFI.LO On May 25, 1979, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Respondent Employer, Respondent Union, and the General Counsel filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the rulings, findings.2 and conclusions of the Administrative Law Judge, as modified herein. We agree with the Administrative Law Judge that Respondent Union failed in its duty to fairly and im- partially represent employees in violation of Section 8(b)(1)(A) and (2) of the Act when it failed to include the names of Blanche Gillock and Audrey (Williams) Griffis on a list of employees to be recalled because they failed to engage in picketing during the Union's economic strike against Respondent Employer. The Administrative Law Judge found that this violation occurred on September 1, 1976, when the parties agreed to the strike settlement and recall list. The evi- dence shows, however, that Respondent Union un- lawfully dropped Griffis' and Gillock's names from the list of employees seeking reinstatement on July 25 and then continued to omit their names on all subse- quent lists. We find, therefore, that this continuing 'The case caption has been changed to correctly identify the (Charging Party for each case. The Region and the Administrative Law Judge had erroneously listed as charging parties all persons who were named as alleged discnminatees in the original charges. 2 Both Respondent have excepted to certain credibility findings made by the Administrative Law Judge. II is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. violation commenced on August 11, 1976, the earliest date permitted by Section 10(b) of the Act. We also agree with the Administrative Law Judge that Gillock, Griffis, and Trueblood are entitled to reinstatement and backpay. We do not agree with his determinations that Gillock and Griffis should be made whole from the dates that the first nurses aides were hired after September 1. 1976, and that True- blood should be made whole after March 31, 1977. Inasmuch as we are unable to determine from the record when these three employees would have been recalled absent the unlawful conduct, we shall defer that matter to the compliance stage of the proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that: A. Respondent Heritage House, Inc. of New Cas- tle, Indiana. its offices, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Refusing to reemploy or reinstate, or otherwise discriminating against employees who are economic strikers in regard to their hire, tenure of employment, or other terms and conditions of employment, in or- der to discourage membership in Retail, Wholesale and Department Store Union, AFL CIO, or any other labor organization. (b) Terminating the employee status of continuing strikers or failing to reinstate them to existing vacan- cies, or by discriminating against them in any other manner with respect to the hire, tenure, or any terms or conditions of employment. (c) Removing from a recall list and terminating the preferential hiring rights of unreinstated employees who unconditionally applied for reinstatement. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Margaret Trueblood immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, if she would have been recalled since March 31, 1977, but for Respondent Employer's unlawful conduct, and make her whole for any loss of earnings she may have suffered by reason of the discriminatory failure to reinstate her, paying her a sum equal to what she would have earned, less any net interim earnings plus interest, in the manner set forth in the section of the Administra- 245 NLRB No. 33 242 HERITAGE HOUSE IN(C tive Law Judge's Decision entitled "The Remedy," as modified in the Board's Decision and Order. (b) Offer Blanche Gillock and Audrey (Williams) Griffis immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously en- joyed, if they would have been recalled since Septem- ber 1, 1976, but for Respondent Employer's unlawful conduct, and make them whole jointly and severally with Respondent Union for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them, paying each of them a sum equal to what she would have earned, less any net interim earnings plus interest, in the manner set forth in the section of the Administrative Law Judge's De- cision entitled "The Remedy." as modified in the Board's Decision and Order. (c) Rescind its termination of the recall rights of Bell, Hasty, and Thurston and reinstitute and abide by the recall procedure set forth in the agreement between Respondent Employer and Respondent Union dated September 1, 1976. (d) Offer Bell, Hasty, and Thurston immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, if they would have been recalled since March , 1977, but for Respon- dent Employer's unlawful conduct. (e) Make whole Bell, Hasty, and Thurston for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them, paying each of them a sum equal to what she would have earned, less any interim earnings plus interest, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying. all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its New Castle, Indiana, facility, and mail to each of the unreinstated economic strikers, copies of the attached notice marked "Appendix A."'3 Copies of the notice, on forms provided by the Re- gional Director for Region 25, after being duly signed by Respondent Employer's authorized representative. shall be posted by it and mailed to said employees t In the event that this Order is enforced by a Judgment ol a United States Court of Appeals, the ords in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." immediately upon receipt thereof and the posted copies shall 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 hb Respon- dent to insure that said notices are not altered, de- faced, or covered by an, other material. (h) Notify the Regional Director for Region 25. in writing, within 20 days from the date of this Order. what steps have been taken to comipl herewith. B. Respondent Retail. Wholesale and l)cpartment Store Union. AFL IO('10 its officers. agents, and rep- resentatives. shall: 1. C(ease and desist from: (a) Failing and refusing to fairly and impartiall represent employees, including Blanche (Jillock and Audrey (Williams) Griffis, with respect to including their names on a list of economic strikers who were unconditionally offering to return to work. for arbi- trary and invidious reasons including their refusal to engage in picketing. (b) Causing or attempting to cause Respondent Employer to discriminate against certain employees by fariling to include their names as economic strikers who were offering to return to work and thereby causing the Employer to violate Section 8(a)(3) of the Act. (c) In any like or related manner restraining or co- ercing employees of Respondent Employer in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Make whole, jointly and severally with Re- spondent Employer. Blanche Gillock and Audrey (Williams) Griffis for any loss of earnings they may have suffered by reason of the discriminatory failure of Respondent Employer to reinstate them, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy," as modified in the Board's Decision and Order. (b) Post at its office copies of the attached notice marked "Appendix B."4 Copies of said notice, on forms provided by the Regional Director for Region 25. after being duly signed by Respondent Union's representative. shall be posted by it immediately upon receipt thereof and mailed to the above-named em- ployees and members, and the posted copies shall be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. 4 See fn. 3, lqrli 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Furnish to the Regional Director for Region 25 signed copies of the said notice for posting by Re- spondent Employer in places where notices to em- ployees are customarily posted. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the consolidated com- plaints be dismissed as to all allegations not found specifically herein to be violative of the Act. APPENDIX A NoICE-F To EMPI.OYEES POSTED BY ORDER OF THEI NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and ordered us to post this notice. We intend to abide by the following: WE WILL NOT discourage membership in or ac- tivities on behalf of Retail, Wholesale and De- partment Store Union, AFL-CIO, or any other labor organization, by terminating the employees status of continuing strikers, or failing to rein- state them to existing vacancies with full senior- ity, or by discriminating against them in any other manner with respect to their hire, tenure, or terms or conditions of employment. WE WILL NOT discourage membership in Re- tail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by removing from a recall list and terminating the preferential hiring rights of unreinstated eco- nomic strikers, so long as such strikers have not abandoned their employment with our nursing home for other substantial and equivalent em- ployment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer Blanche Gillock, Margaret Trueblood, and Audrey (Williams) Griffis imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, if they would have been recalled but for our unlawful conduct, and WE WIL.L make them whole for any loss of earnings suffered as a result of the discrimination against them, with interest. WEi WiLL rescind our termination of the recall rights of Georgia Bell, Maxie Pauline Hasty, and Betty Thurston, and reinstate and abide by the recall procedure set forth in the strike settlement agreement. and wE Wll. reinstate them to their former jobs or, if' those jobs no longer exist, to substantially equivalent positions, if they would have been recalled but for our unlawful conduct, and wI; Witi. make them whole for any losses suffered by them as a result of our failure to so reinstate them. HERIIA(;E HO)USE, IN(C. ()F NEW CAS IIE, IN- I)IANA APPENDIX B NoricE TO MEMBtERS PosUIED BY ORDER OF THiE NAIIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we have violated the National Labor Rela- tions Act, as amended, and has ordered us to post this notice. We intend to abide by the following: WE WI.L NorT fail or refuse to fairly and im- partially represent employees, including Blanche Gillock and Audrey (Williams) Griffis, with re- spect to including their names on a recall list of economic strikers who are unconditionally offer- ing to return to work, for arbitrary and invidious reasons including their refusal to participate in picketing. WE WIl. NO( refuse to include the names of employees on a recall list of strikers maintained by their employer, Heritage House, Inc. of New Castle, Indiana, in order to cause or attempt to cause such Employer to discriminate against em- ployees in violation of Section 8(a)(3) because of our refusal to include those employees on a strike recall list. WE WILL NOT restrain or coerce employees of Heritage House, Inc. of New Castle, Indiana, in order to cause or attempt to cause such Em- ployer to discriminate against employees in vio- lation of Section 8(a)(3) because of our refusal to include those employees on a strike recall list. WE WII.L NOT restrain or coerce employees of Heritage House, Inc., of New Castle, Indiana, in any like or related manner in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act, except to the ex- tent that such rights may be affected by an agree- ment requiring membership in a labor organiza- 244 HERITAGE HOUSE. INC. tion as a condition of employment in accordance performed with Section 8(a)(3) of the Act. plaint alleg WE WILL make jointly and severally with it is an eml Heritage House, Inc. of New Castle, Indiana, of Section Blanche Gillock and Audrey (Williams) Griffis for any losses they may have suffered, with inter- est, by reasons of our discrimination against them. Respond meaning of RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO DECISION The Eml STATEMENT OF HE CASE home, a h, Since Nove JULIUS COHN, Administrative Law Judge: This proceed- exclusive c ing was heard at New Castle, Indiana, on May 8. 9, and 10, dent Emplc 1978. Upon charges filed by various individuals the Re- keeping m gional Director for Region 25 issued the complaints in this April 14, proceeding an an Order consolidating cases for hearing on agreement June 21, 1977. The complaints alleged generally that Heri- new agreen tage House, Inc., New Castle, Indiana, violated Section bargaining 8(aX)() and (3) of the Act by failing at the end of a strike to ensued, ant include certain individual employees on a list for recall and Responden by refusing to reinstate such employees to their former po- separate str sitions in violation of their rights as economic strikers. A manner in complaint also alleged that Retail, Wholesale and Depart- Basically. ii ment Store Union, AFL-CIO, herein called Respondent status, and Union, failed properly to represent certain employees with they were respect to their rights to recall and reinstatement as eco- ceeding cer nomic strikers in violation of Section 8(b)(1)(A) and (2) of respect to c the Act. Both Respondents filed answers denying the com- the agreemn mission of unfair labor practices.' some who All parties were given full opportunity to participate, to tions. As t introduce relevant evidence, to examine and cross-examine were not al witnesses, to argue orally, and to file briefs. The General rately. Counsel and Respondents submitted briefs which have been carefully considered. On the entire record in the case B. The and fom my observation of the witnesses and their demea- nor I make the following: At the o tional Repr FINDINGS OF FACT tional Repr sentative in its second v 1. THE BUSINESS OF THE EMPLOYER not represei ing. This ty Respondent Employer, an Indiana corporation, main- a number oi tains a principal office and place of business at New Castle, at union me Indiana. During the year preceding the issuance of the General complaint herein Respondent Employer, which is engaged testified to t in the operation of a nursing home, purchased transferred, However. L and delivered to its facility goods and materials valued in and present excess of $50,000 which were transported to its facility in that in July Indiana from States other than the State of Indiana. In not support addition, during the same period Respondent Employer the picket i words regar At the hearing the parties entered into an all-party informal settlement of nection witl the complaint issued in Case 25 CA-8947 1, and that case was severed from another wit this proceeding. ently emplc 245 services valued in excess of $250.000. The com- es. Respondent Employer admits, and I find that loyer engaged in commerce within the meaning 2(6) and (7) of the Act. II. LABOR ORGANIZATION ent Union is a labor organization within the f Section 2(5) of the Act. THE ALLEGED UNFAIR I.ABOR PRA([I(ES A. Background ployer has operated and maintained a nursing ealth related facility, in New Castle, Indiana. ember 1969 the Union has been certified as the :ollective-bargaining representative of Respon- oyer employees in a unit consisting of all house- aintenance, kitchen, and dietary employees. On 1976, the then existing collective-bargaining expired, and thereafter, the negotiations for a lent having not succeeded, the employees in the unit struck at 12:01 a.m., May 9. 1976. Picketing d the strike continued until September I when ts reached agreement on a new contract and a ike settlement agreement which set forth in the which strikers were to be recalled to their jobs. t provided for the strikers to be placed in layoff they were listed by department in the order that to be recalled as openings occurred. This pro- nters around the conduct of Respondents with ertain strikers, some of whom were not named in ent, others who were removed from the list, and were denied reinstatement to their former posi- he factual patterns affecting these employees I similar, their situations will be dealt with sepa- Unair Lahbor Practice Allegations Against the Union utset it is alleged that Walter Kensit. Interna- esentative of the Union and the Union's repre- charge of the negotiations and the strike since week, threatened strikers that the Union would nt them if they did not participate in the picket- pe of statement was alleged to have occurred on f occasions in June and July on the picket line or eetings. Counsel presented a number of witnesses who this effect, most of whom were Charging Parties. Letha Woodward, not one of the complainants ly employed by Respondent Employer, testified Kensit told the strikers that the Union would anybody to get back to work who did not walk ne. While she said that he could have used these rding strike benefits. he also used them in con- h helping them get back to work. Helen Parker, ness who is not a Charging Party and is pres- oyed, stated that Kensit told the strikers to do DECISIONS OF NATIONAL LABOR RELATIONS BOARD their duty on the picket line and they would have a better chance of going back in. In addition, Charging Parties Dona Wilkinson, Maxie Pauline Hasty, Blanche N. Gil- lock, Georgia Bell, Audrey (Williams) Griffis, and Margaret Trueblood testified similarly and more specifically that Kensit said he would not represent them, particularly with respect to their going back to work for Respondent Em- ployer at the conclusion of the strike. Kensit categorically denied making these statements con- cerning the Union's representation of employees who did not participate in the picketing. However, he did admit stat- ing that he would not represent employees in connection with claims for strike benefits if they did not participate in the picketing. Kensit stated that he became aware some time prior to July 6 that some strikers were obtaining strike benefits who had not participated in the picketing. He then announced at the July 6 meeting that in accordance with the rules of the International Union people who did not picket were not eligible for strike benefits. Particularly, he told Gillock and Griffis quite plainly that either they picket or they do not get paid. He added that he would not repre- sent anyone on the strike fund who does not picket. I credit the testimony of the General Counsel's witnesses to the effect that Kensit did threaten employees or strikers that the Union would not represent those who do not picket, as they generally corroborate one another. More- over, in a report prepared and signed by Kensit at the end of the strike in early September Kensit said the following; "This means that those who saw fit to quit the Union and failed to support the strike properly were considered as quits and the Union no longer represented those who quit them on the picket line." This is an indication of Kensit's thoughts that the Union would not represent unit employ- ees who did not support the strike and lends credence to the fact that Kensit had indeed threatened these strikers. Although it is clearly unlawful to threaten employees that representation by the Union would be conditioned on the extent of their participation in picketing, the credited evidence reflects that Kensit's remarks were made during the months of June and July. As the charge against the Union in Case 25-CB-2902 was filed on February 11, 1977, more than 6 months after the threats, a violation of the Act cannot be found because of the limitation provided in Sec- tion 10(b) of the Act. However, in agreement with the General Counsel, I find that as such threats were actually made they may be con- sidered as background evidence.2 In this connection the General Counsel urges that the threats be considered in determining the Union's motivation for not including the names of Wilkinson, Trueblood, Gillock, and Griffis on the strike settlement agreement of September 1. I. Gillock and Griffis Both these employees were on sick leave at the time of the strike and continued for some period of time thereafter. Both were also members of a six-employee negotiations committee. However, by July 6, the date of a Union meet- I Local Lodge No. 1424, International Association of Machinists. A FL -CIO [/ryan Manufacturing Co.] v. N. LR.B., 362 U.S. 411 (1960). ing, they were the only remaining committee members, the others having abandoned the strike or obtained other em- ployment. Accordingly to Kensit, Gillock told him that she was on sick leave and under doctor's orders not to walk a picket line. If she did she would lose her sick pay, and she had no intention of walking the picket line. When informed by Kensit that he was going to cut off her $30 strike benefit, Gillock told him that she wanted nothing to do with him any longer. Kensit testified that Griffis also told him she was on sick pay and therefore not on strike. During the union meeting that night Kensit recommended that Gillock and Griffis be removed and a new committee be constituted from the four picket captains; the recommendation was passed at the meeting. According to Kensit, Gillock then told him that if she did not get her picket pay she would have nothing to do with the Union and that she would go to the Company and ask for her job back. He said she could do whatever she wanted. At the meeting Kensit circulated to the strikers an outline of the Union's position with regard to the strike issues as of that date. This also detailed the Employer's offer as to the return of strikers and provided a space for the strikers to sign an authorization for the committee to accept the pro- posal on their behalf. Kensit testified that those who signed this "petition," as he characterized it, indicated their desire to return to work and were included on the list submitted by the Union to the Employer. Both Gillock and Griffis signed the "petitions" at the July 6 meeting indicating their acceptance and authorization. Thereafter, at a July 15 meeting at the office of the me- diator, Kensit prepared a "seniority list of those willing to return" which included the names of Gillock and Griffis (then Williams). On it he noted that they as well as others were on sick leave and also indicated by the initials N.P. that they were not picketing. By letter dated July 25 ad- dressed to Respondent Employer's counsel Kensit sent an- other list of employees who wished to return: the list no longer contained the names of Gillock and Griffis. Finally, the strike settlement agreement of September I did not-in- clude their names either. Kensit had no explanation for the dropping of their names after July 15 from the lists of strik- ers who wished to return. He merely stated that as he had not heard from Gillock or Griffis he assumed that they had returned to the Employer and therefore removed them from the list. I do not regard his attempted explanation as ade- quate. If he assumed they were returning to work and aban- doning the strike as a result of the confrontation on July 6, his last contact with them, then it is not likely that he would have included Gillock and Griffis on the July 15 list. More- over, if he believed they had returned to work this informa- tion was available from the Employer at the time of settle- ment. Curiously, in the case of another employee, Trueblood, Kensit relied on the fact that he had not re- ceived from her the signed petition that she was willing to return to work, which he claimed he used as a basis for formulating his list. On the other hand, Gillock and Griffis had indeed signed these forms. I conclude that Kensit re- moved their names because of their refusal to participate in the strike. It is clear that the Union has an obligation to represent all the unit employees, and that Gillock and Griffis were 246 HERITAGE HOUSE INC. still employees while on sick leave and on strike. I find that the Union failed to fulfill this obligation and. indeed. did not represent Gillock and Griffis at the strike settlement for arbitrary and invidious reasons; i.e., their refusal to partici- pate in picketing. By such conduct the Union violated Sec- tion 8(b)(1)(A) of the Act. In addition, the Union violated Section 8(b)(2) of the Act by causing Respondent Employer to discriminate against Gillock and Griffis in violation of Section 8(a)(3) of the Act. As their names were not included on the list, for reasons known to the Employer as will be later discussed, Respon- dent Employer refused reinstatement to these two economic strikers who later offered to return to work. 2. Dona Wilkinson Wilkinson was hired on March 13. 1976, as a nurses aide, and pursuant to provisions of the collective-bargaining agreement she was on probation for 45 days. Some time in April her supervisor, Elizabeth Emerson, told her that her work was not satisfactory, but that she was going to keep her on probation for another 14 days. Emerson testified that on May 7 she told Wilkinson ei- ther in person or by telephone that her work was still not satisfactory, and therefore she was being terminated, By letter dated May 14, received by Wilkinson on May 15, Emerson referred to their conversation of May 7 and con- firmed the termination. Wilkinson denied having spoken at all to Emerson on May 7, stating that the telephone call came on May 14, the day before she received the letter. It is established by her payroll card that Wilkinson, in fact, worked on May 8, and did not work on May 7, her day off. Thus, her last day of employment was on May 8, and at 12:01 a.m. May 9 the strike commenced. Wilkinson began picketing immediately, and when she received the May 14 letter from Respondent Employer she showed it to Kensit, telling him she had been fired. Kensit stated that he asked her a few questions and said that he would try to represent her and see what he could do. He said that Wilkinson told him she had been called into the office and had been informed that her work was not satis- factory and also that she was on probation. Although the contract unit includes probationary employees, it is also clear that probationary employees had no rights under the grievance procedure. Kensit said that he met her at the picket line around the middle of June and told her there was nothing he could do because she was a probationary employee who had no se- niority rights or right to file a grievance. She asked him if she could still walk the picket line. He said that would be fine, and that he would retain her on the picket fund. Kensit said he did not talk to her again and had no further contact. He nevertheless included her name on the list of July 6 and submitted it. However, when it was pointed out to him by the Employer that she was a probationary employee he removed her name from the list. Wilkinson continued to picket until July when she became ill and left. Wilkinson stated that she did not recall being told by Kensit that she was probationary and he could do nothing for her. However, since her recollection is not clear on this point I credit Kensit to the effect that he did so inform her. Thereafter, the Union included her name with (Jillock. Griffis. and Trueblood in a letter dated March 31. 1977. bh which the Union's attorneN informed Respondent Em- ployer that those individuals requested unconditional rein- statement. In any case. Wilkinson testified that she never requested representation from the Union in connection with getting her job back at the Employer. nor did she re- quest Respondent Employer for reinstatement to her job during that period. Clearly, Wilkinson was a probationary employee at least until May I I. Since we are dealing with an alleged violation of Section 8(b)( 1 )(A) against the Union. it is not necessar' to resolve the question as to whether Wilkinson ma3 have been discriminatorily discharged b Respondent Employer or the issue as to whether she was discharged on Ma, 7. as stated by Emerson, or on May 14. as testified to by Wilkin- son.' The issue in the charge against the Union is whether the Union failed for arbitrary or invidious reasons to repre- sent Wilkinson in not submitting her name on a list of strik- ers who were offering to return to work. On the basis of the evidence outlined above I find that the Union has not vio- lated the Act as charged. Kensit relied on Emerson's letter exhibited to him by Wilkinson and the contract providing that probationary employees could not avail themselves of the grievance procedure. He actually submitted her name as being willing to return to work on July 6 because she had indicated that she was desirous of doing so and onlk dropped it when Respondent Employer pointed out that Wilkinson had been on probation. While it is conceivable that he may have been misled as to the exact date of her discharge so that her status may have changed if she had been discharged on May 14 rather than May 7. neverthe- less, there is no evidence from which one may conclude that he reached his determination to drop her from the list for unlawful reasons. Moreover, the testimony of Wilkinson is clear that at no time did she ask Kensit or the Union to represent her in this matter. Accordingly. I find that the General Counsel has not established by a preponderance of the evidence that the Union had failed properly to repre- sent Wilkinson, and I shall dismiss so much of the com- plaint alleging violation of Section 8(b)( I )(A) and (2) of the Act with regard to its representation of' Wilkinson. 3. Margaret Trueblood Trueblood had been employed since 1973 as a nurses aide and was a member of the Union. She went on strike with the other employees on May 9 and picketed until the middle of June. when she quit because she lived so far away that it was costing her more than the $30 strike benefit in order to commute. With a letter dated Jul), 9 the Union enclosed the "peti- tion" and requested that the employee sign and return it at once if the Employer's proposal as to recall of strikers % ~as acceptable to her. In conclusion the letter stated. "If 'you have no desire to return simply disregard this petition." Ac- cording to Kensit, these letters were mailed to all striking iNo allegation is being pursued that Wlkinson was discharged bs Re- spondent Employer in violation of Sec. 8(aH3) of the Act. as General (oun- sel concedes that such an allegation is barred bh Sec I)hi ot the Act 247 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD employees who did not attend the meeting on July 6. He stated that he received no response to his letter from True- blood. Trueblood's testimony was vague and at some points inconsistent with regard to this letter. She said once that she remembers getting some kind of letter which he asked her to sign, which she did. She then said that she does not recall receiving the letter which was shown to her as she testified, but she does recall receiving some other kind of letter. Since Kensit testified that these letters were sent out in the regular course of his operation and answers were received from at least three employees who did not attend the meeting, I credit his testimony and find that Trueblood did receive the letter and did not return it. This finding is bolstered by her later conduct or, more accurately, a lack of conduct or ac- tion with regard to seeking reinstatement to her job. Thus, she testified that she received a telephone call from another employee, Mayme Guffey, who told her that she was not on the list to return to work, and if she contacted Kensit her name would be put on the list. Trueblood said that she made no effort to ask Kensit to put her name on the list. On March 31, 1977, counsel for the Union wrote to the Employer requesting unconditional reinstatement for four employees including Trueblood. After receiving this letter Trueblood did call the Employer but admitted that until then she had not contacted either the Union or the Com- pany about returning to work. I find on the basis of the above that Respondent Union did not violate its obligation to fairly represent Trueblood, despite the fact that she ceased picketing. Unlike Gillock and Griffis, who signed the "petition" on July 6, as a result of Trueblood's inaction and failure to respond to communi- cations the Union could have been justified in believing that she was no longer interested in returning to work. Ac- cordingly, I shall dismiss so much of the complaint against the Union as alleges violation of Section 8(b)(1)(A) and 8(b)(2) in connection with the Union's failure to include Trueblood on the strike settlement list of employees seeking reinstatement to their previous positions. C. The Alleged Violations of Section 8(a)(3) and (1) of the Act The law in this area is well settled. In N.L.R.B. v. Fleet- wood Trailer Co., Inc., 389 U.S. 375 (1967), the Supreme Court held that an individual whose work ceases due to a labor dispute remains an employee if he has not obtained other regular or substantially equivalent employment, and that an employer refusing to reinstate strikers must show that the action was due to legitimate and substantial busi- ness justification. Thereafter, the Board held that replaced economic strikers who have made an unconditional appli- cation for reinstatement and who have continued to make known their availability for employment are entitled to full reinstatement to fill positions left by the departure of per- manent replacements.4 In Fleetwood the Court further held that the burden of proving economic justification was on the employer. In the instant case no such proof of economic justification has been offered. Finally, the right of reinstate- 4 The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969) cert. denied 397 U.S. 920 (1970). ment continues to exist so long as the strikers had not aban- doned the employ of their employer for other substantial and equivalent employment, and once having signified their intent to return by their unconditional application for rein- statement it is incumbent on Respondent to seek them out as positions are vacated. Failing to fulfill the obligation to reinstatement employees to their jobs as vacancies arise constitutes a violation by the employer of Section 8(a)(3) of the Act.' I. Margaret Trueblood As described above, Trueblood was not included on the list of employees submitted to Respondent Employer by the Union, nor did she herself for many months make any offer to return to work. However, as also noted, the Union on her behalf made an unconditional offer by letter dated March 31, 1977. The following day, having received a copy of this letter, Trueblood called Respondent Employer and in- quired when she would be able to return. This also consti- tuted a request on her part, which was refused. Respondent Employer seeks to rely on the fact that Trueblood's name was not included on the recall list submitted by the Union. The obligation to offer reinstatement to economic strikers who make an unconditional offer to return to their former employment rests upon the employer, who cannot avoid it on the ground that the Union failed to make an earlier offer for them. Moreover, Respondent Employer's reliance on Section 10(b) as a bar to Trueblood's application is also misplaced. Section 10(b) of the Act does not apply to the rights of an economic striker to make an unconditional of- fer to return to work.6 Accordingly, I find that by refusing to reinstate Margaret Trueblood who made an unconditional offer to return to her former employment by letter dated March 31, 1977, Respondent Employer violated Section 8(a)(3) and (1) of the Act. 2. Audrey (Williams) Griffis and Blanche N. Gillock I have previously found that the Union violated Section 8(a)(1)(A) and 8(b)(2) of the Act by arbitrarily excluding the names of Griffis and Gillock from the strike settlement list of September I. Griffis, a nurses aide, went to the nursing home sometime in July and submitted a return-to-work slip signed by the doctor. Although Griffis testified that she spoke to her su- pervisor, Emerson, and asked when she was going to be able to return to work, Emerson denied speaking to her on that occasion. Emerson is corroborated in this regard by Gail Coffey, who works in the business office. Coffey re- called seeing Griffis in July and gave her the return-to-work slip. Coffey said that she went to find Emerson but she was not in her office, and when she returned to where she was talking to Griffis the latter had left. Coffey testified in a credible manner, and I therefore credit Emerson's denial that she spoke to Griffis that day. In any case, the General The Laidlaw Corporation, supra. 6 The Board has rejected a contention that time limits must be placed on the reinstatement of economic strikers. Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973). 248 HERITAGE HOUISE. IN(C. Counsel has not contended that on this particular occasion Griffis made an unconditional offer to return to work which was denied. However, Griffis did speak to Emerson when she sub- mitted her resignation on August 30. Griffis was examined very extensively as to why she submitted her resignation. and she testified credibly to the effect that she did this be- cause she believed it would help her obtain another job as she felt that other employers would not hire her if she did not resign and was still on strike. Griffis also testified with- out contradiction that in December she filled out a new job application at the office of Respondent Employer. Although she obtained another job in February 1977, she stated that she was unable to go back to work for Respondent Em- ployer because she had not been recalled, and she was available, as indicated by the Union's letter of March 31. Gillock, an employee in the dietary department, had also been on sick leave until released on August 2. 1976, by the doctor. Gillock called Respondent Employer on September 2 and spoke to its administrator, Robert Dorsett. Gillock told him that she understood that the strike was over and asked whether he was calling any of the girls back to work. He said they were on call back. and when she asked if her name was on the list to return he replied that she was not. He told her that the girls on the negotiation committee the first time in 1976 were laid off and would not return. He further said that it was up to the Union, the Company, the supervisor, and the ability of the employee. Dorsett was called as a witness by the General Counsel at the outset of the hearing and was then recalled by the General Counsel after his other witnesses, including Gillock. had testified. Of course, Dorsett was subject to cross-examination by Re- spondent Employer. Nevertheless, Dorsett did not allude to or in any way deny the testimony of Gillock concerning the substance of her telephone call to him on September 2. Ac- cordingly, as Gillock testified credibly on this matter and her statement is uncontradicted on the record. I credit her testimony concerning the telephone call. On September 3. the day after his telephone call, Gillock appeared and sub- mitted a resignation to the Employer. As with Griffis, she also stated that she took this action because she believed other employers would not hire while she was on layoff status. Respondent Employer contends that the resignations of Griffis and Gillock resulted in an abandonment of their jobs. The Board has frequently dealt with the question of whether strikers abandon their jobs and thereby became ineligible to vote in a representation election. In that area the Board has held that the party opposing eligibility must show that the striker evidenced an intention to abandon his interest in the job and permanently sever the employment relationship. See Pacific Tile and Porcelain Company. 137 NLRB 1358 (1962). In other areas the Board has appar- ently made a distinction between strike situations and oth- ers where employees resigned because of some dissatisfac- tion with conditions. The Board has held that an employee who resigns during a strike may not in fact intend to perma- nently sever his relationship with the employer where he is on strike but only to convince other employers that he is not merely seeking interim employment with them. See S & M Manufacturing Company. 165 NLRB 663 (1967); Missis- ,ippi Stel (orporation, 19 NRB 47 (196(8). More re- cently the Board affirmed without ctmient simillar tind- ing in Coca-Cola Bottling Compani of Melemp.'li. 232 N I.RB 794 (1977). In these cases the Board has recognized that resignations were not intended as an abandonment of the strike but rather because of economic hardship. In the instant situation the uncontradicted e idtlnce is to the effect that both Griffis a.d (illock resigned because they felt that their laxoff status would he an impedimllent to their obtaining new employment. An indication that the, did not intend to abandon their interest in their jobs with Respondent Employer is the tact that they individuall? filed applications, one in November and the other in l)ecember. as new employees the only mode acceptable to Respondent Employer. Finally, both continued through the Illion to seek reinstatement. and in their behalf the I nion wrote the letter of March 3 1. Theretore. I ind that the resignations oft Gillock and Griffis did not constitute an abandonment, and they retained their rights as economic strikers. Moreover I find, based on the uncontradicted testimion of Gillock to the effect that [)orsett told her that the girls on the first negotiating committee (riffis and Gillock) kcere laid off and would not return, that Respondent Employer discriminated against them in violation of Section (a)( 3). It knew the reason for their names not being included bh the Union on the strike settlement list of September I and agreed to their exclusion with knowledge of the unlalful conduct of the Union. Accordingly. I find that Respondent Employer violated Section 8(a)(3) and I ) of the Act by agreeing on September I that the names of Gillock and Griffis not be added to the list of employces seeking rein- statement. It is noted that Respondent Emploser denied employment to Gillock again on September 2. to both s hen they individually applied in November and December. and again when the Union's letter of' March 31. 1977. as re- ceived. 3. Georgia Bell. Maxie Pauline fasty, and Betty T'hurston It has been stipulated that effective March . 1977. Re- spondent Employer removed the names of Bell, Hast. antd Thurston, three of' the striking employees. from the recall list in the strike settlement agreement of September 1. I'his action was taken pursuant to a provision in the collectiv.e- bargaining agreement that seniority be lost and terminated if employees are on layoff status in excess of 6 successive months. The contention of Respondent Employer that economic strikers be equated with laid-off employees has been re- jected by the Board which stated. "The reinstatement rights of economic strikers under Fleetwood Tradiler and L.ilf are statutory as distinguished from the rights of' laid-off em- ployees. A layoff constitutes a discontinuance of ",ork for an employer which does not rise to the lesvel of a latful economic strike. participation in which is protected under Section 7 and 14 of the Act." See Brook. Rwc.arh ,lilu- fileturing, In,. suprol at 636. The Board also rcjected an\ contention that a time limit should he placed on the rein- statement of economic strikers, saving that such a i is contrary to the principles enutnciated in lfelt,,ud anti 249 DE('ISIONS ()1: NAI()ONAI. ILABOR RI,.ATIONS BOARI) Laidlaw. Accordingly, I find that Respondent iolated Scc- tion 8(a)(3) and (I) of the Act bh removing the names of Bell, Hasty. and Thurston from the recall list on March I. 1977. IV. Iti ETFF ("I OF Ill UNFAIR .ABO()R PRA('II('I:S I P()N (')MMI R('I The activities of Respondents set forth in section III, above, occurring in connection with the operations of Re- spondent Employer described in section I. above, have a close, intimate, and substantial relationship to trade, traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. tI'eF REMEDY Having found that Respondents have engaged in certain unfair labor practices I shall recommend that they be or- dered to cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent Employer unlawfully re- fused to reemploy Margaret Trueblood on April 1, 1977, I shall recommend that Respondent Employer offer her Im- mediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position. without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of Respondent Employer's re- fusal to reinstate her by payment to her of a sum of money equal to that which she normally would have earned from the date of the hire of the first nurse's aide after April 1, 1977. when her unconditional offer to return was received. to the date of Respondent Employer's offer of reinstate- ment. The backpay shall be computed in accordance with F. ': NWoolworth C(ompanv, 90 NLRB 589 (1950). with in- terest thereon as provided in Florida Sleel Corporation, 231 NLRB 651 (1977). I have found that Blanche Gillock and Audrey (Wil- liams) Griffis were discriminatorily refused employment by Respondent Employer on September 1, 1976. Moreover, I have found that Respondent Union violated Section 8(b)( )(A) and 8(bX2) by its failure to include their names on the strike settlement list on September I as employees willing to return to their former jobs. Therefore, I shall rec- ommend that Respondent Employer offer them immediate and full reinstatement to their former jobs in accordance with the foregoing remedial provisions. I shall also recom- mend that Respondent Employer and Respondent Union be jointly and severally required to make them whole for any loss of earnings they may have sustained by reason of the discrimination against them from the date that the first nurse's aide was hired after September I. 1976, until Re- spondent Employer offers them unconditional reinstate- ment. except that the Union's liability shall cease on March 31, 1977, when it made an unconditional offer to the Em- ployer in behalf of Gillock and Griffis. Backpay with inter- est shall be computed as described above. 'See, generally. Isis Heating & Plumbing Co 138 NLRB 716 (1962). having found that Respondent Employer violated Sec- tion X(a)(3) and ( I ) of the Act hs unlawfully terminating the preferential hiring rights of Georgia Bell. Maxie Pauline Ihasty, and Bettv Ihurston. economic strikers, I shall rec- ommend that Respondent Employer rescind the action take on March 1,. 1977. and reinstate their names to the recall list and implement the recall procedures agreed to on Septem- ber 1. 1976. Further. the reinstatement rights of said em- ployees shall he continued in accordance with the principles set forlh in Fleetwood and Lalidlaw, and as vacancies occur, whether due to the departure of employees, increases in the work force, or otherwise. the said three employees shall be offered such positions unless they have obtained other regu- lar and substantial equivalent employment. Moreover. any of the above-named three employees who would have been recalled since March 1, 1977. but for Respondent Employ- er s unlawful conduct shall be reinstated to the positions in which the, would have been placed had they been recalled, without prejudice to their seniority or other rights and privileges, and made whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them in accordance with F W. Woolworth, mupra, with interest as provided in Florida Steel (Corporation, vupr. ('()(m l.ti(oNS ()' LA\' 1. Respondent. Heritage House, Inc.. New Castle. Indi- ana. is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Respondent-Union is a labor organization within the meaning of Section 2(5) of the Act. 3. B failing to reinstate Margaret Trueblood on April 1., 1977, after her unconditional request for reinstatement Re- spondent-Employer has discriminated with respect to hire. tenure, and terms and conditions of employment and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (I1) of the Act. 4. By tailing to include the names of Blanche Gillock and Audrey (Williams) Griffis on a recall list of September 1, 1976, with knowledge that Respondent-Union had not included their names for discriminatory reasons Respon- dent-E mployer discriminated against Gillock and Griffis with respect to their hire. tenure, and terms and conditions of employment. thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (I ) of the Act. 5. By removing, on March 1, 1977, the names of Georgia Bell. Maxie Pauline Hasty. and Betty Thurston from a re- call list and terminating the preferential hiring rights of these unreinstated employees who had unconditionally ap- plied for reinstatement at the cessation of an economic strike Respondent-Employer has discriminated in regard to their hire, tenure, and other terms and conditions of em- ployment in violation of Section 8(a)(3) and (I) of the Act. 6. Respondent Union. by not including the names of Gil- lock and G(riffis on the September I recall list for arbitrary and invidious reasons, failed in its duty to represent those employees in violation of Section 8(b)( 1)(A) of the Act, and by causing Respondent-Employer to deny reinstatement to those employees in violation of Section 8(a)(3) of the Act Respondent Union thereby violated 8(b)(2) of the Act. 250 HERITAGE HOUSE, INC. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except as specifically found herein Respondents have not otherwise violated the Act with respect to the allega- tions in consolidated complaints. Upon the foregoing findings of fact, conclusions of law, and upon the entire record and pursuant to Section 1(c) of the Act I hereby issue the following recommended: OR[)ER A. The Respondent, Heritage House. Inc.. Nesw Castle. Indiana, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to reemploy or reinstate or otherwise dis- criminating against employees who are economic strikers in regard to their hire, tenure of employment, or other terms and conditions of employment in order to discourage mem- bership in Retail. Wholesale and Department Store Union. AFL-CIO, or any other labor organization. (b) Terminating the employee status of continuing strik- ers or failing to reinstate them to existing vacancies or by discriminating against them in any other manner with re- spect to the hire, tenure, or any terms or conditions of em- ployment. (c) Removing from a recall list and terminating the pref- erential hiring rights of unreinstated employees who uncon- ditionally applied for reinstatement. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Margaret Trueblood immediate and full re- instatement to her former or substantial equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination prac- ticed against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to Blanche Gillock and Audrey (Williams) Griffis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Rescind its termination of the recall rights of Bell. Hasty, and Thurston and reinstitute and abide by the recall procedure set forth in the agreement between Respondent Employer and Respondent-Union dated September I. 197 1. (d) Offer immediate and full reinstatement, with back- pay as set forth in "The Remedy." to Bell, Hasty, or Thur- 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. ston or any or all of them if they would have been recalled since March 1, 1977, but fr Respondent-Employer's un- lawful conduct. (e) Preserve and, upon request. make available to the Board or its agents. for examination and copying, all pay- roll records, social security pa ment records, timecards. personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Post at its New Castle. Indiana. facility and mail to each of the unreinstated economic strikers copies of the at- tached notice marked "Appendix A." T Copies of the notice, on forms provided b the Regional Director for Region 25. after being duly signed b Respondent-Emplo er's autiho- rized representative, shall be posted bh it and mailed to said employees immediately upon receipt thereof, and the posted copies shall be maintained b it fr 60 consecutive days thereafter in conspicuous places. including all places where notices to employees are customarily posted. Reason- able steps shall be taken b Respondent to insure that said notices are not altered. defaced, or covered b any other material. (g) Notify the Regional Director fi`r Region 25. in writ- ing, within 20 days from the date of this Order. what steps have been taken to comply herewith. B. Respondent Retail. Wholesale and Department Union. AFL CIO. its officers, agents. and representatives. shall: I. Cease and desist from: (a) Failing and refusing to include the names of employ- ees on a list of economic strikers who were unconditionally offering to return to work, because they had not engaged in picketing. (b) Causing or attempting to cause Respondent-Em- ployer to discriminate against certain employees by failing to include their names as economic strikers who were offer- ing to return to work and thereby causing the Employer to violate Section 8(a)(3) of the Act. (c) In any other manner interfering with, restraining, or coercing employees of Respondent Employer in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Make whole. jointly and severally with Respondent Employer. Blanche Gillock and Audrey (Williams) Griffis for any loss of earnings they may have suffered by reason of the discriminatory failure of Respondent-Employer to rein- state them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its office copies of the attached notice marked "Appendix B," 0 said copies on forms provided by the Re- gional Director for Region 25. Copies of said notice, after being duly signed by Respondent Union's representative. shall be posted by it immediately upon receipt thereof and mailed to the above-named employees and members, and 9 In the event that this Order is enforced hb a Judgment ol'a niled States Court of Appeals, the words in the notice reading "Posted hb Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the nited States Court of Appeals Enforcing an Order of' the National labor Relallons Board. 'o See fn. 9, rupra 251 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the posted copies shall be maintained by it for 60 consecu- Employer in places where notices to employees are custom- tive days thereafter in conspicuous places, including all arily posted. places where notices to members are customarily posted. (d) Notify the Regional Director for Region 25, in writ- Reasonable steps shall be taken by Respondent Union to ing, within 20 days from the date of this Order, what steps insure that said notices are not altered, defaced, or covered have been taken to comply herewith. by other material. Ii Is FRI HFER ORD)ERED that the consolidated complaints (c) Furnish to the Regional Director for Region 25 be dismissed as to all allegations not found specifically signed copies of the said notice for posting by Respondent herein to be violative of the Act.