Gaska Tape, Inc.

DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD Gaska Tape, Inc. and Local 1049, United Paper & Allied Workers, International Brotherhood of Teamsters, A/W International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-9324 April 3, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEII.O AND TRUESDALE On October 23, 1978, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs, and the General Counsel filed a brief in response to Re- spondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge only to the extent consistent herewith. I Respondent and General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Sandard Da 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 find- ings. 2 We agree with the Administrative Law Judge's conclusion that Respon- dent violated Sec. 8(a)3) and (I of the Act when it failed to properly rein- state and then terminated striker Jennifer Gilchrist. In so doing, we rely on the fact that Respondent, through its supervisor, George Lott. acquiesced in Gilchrist's absence from work until the third shift went into operation on Sunday, September 25, 1977. knowing full well that she was not ill and without conditioning her return upon tender of a doctor's excuse. Respon- dent thereby agreed to the manner of Gilchrist's reinstatement and was pre- cluded from subsequently invoking a purported company policy which con- flicted with the understanding it had reached with her, a policy with which it knew she could not comply. Having agreed to reinstate Gilchrist to the third shift beginning Sunday, Respondent had no justification for requiring a doc- tor's release as a condition of reinstatement and, therefore, unlawfully re- fused to reinstate her, in violation of Sec. 8(a)(3) and ( I ) of the Act. In view of the above, we find it unnecessary to rely on the Administrative Law Judge's statement implying that a returning striker is not subject to regulations normally applicable to Respondent's employees. We also do not rely on the fact there was no evidence that Gilchrist's failure to report to work until Sunday created "any production or personnel problems." We also adopt the Administrative l.aw Judge's conclusion that Respon- dent did not violate Sec. 8(a)(3) and (I) of the Act when it issued written warnings to four employees and discharged three employees in connection with its Saturday work policy. Contrary to the Administrative Law Judge's comment at the end of sec. B,2, of his Decision, we do not believe that, by merely failing to comply with an unlawfully instituted work schedule, the employees' conduct could in any way be characterized as an unprotected partial stnke. Finally, Member Penello finds it unnecessary to distinguish the facts of the present case from those of Advance Industries. Division-Overhead Door ('or- poration, 220 NLRB 431 (1975). enforcement denied in pertinent part 540 F.2d 878 (7th Cir. 19761. in which he dissented. The Administrative Law Judge found that Respon- dent violated Section 8(a)(5) and (1) of the Act when it unilaterally required all employees to work a 6-day week with a full shift on Saturdays. However, in his recommended Order he failed to provide for rein- statement and backpay for those employees dis- charged for failing to report for Saturday work or for failing to work a full shift. He also did not provide for rescission of disciplinary warnings issued in connec- tion therewith. Although we agree with his conclusion that Respondent violated Section 8(a)(5) and (1), we find merit in General Counsel's contention that, con- sistent with established Board precedent,3 any em- ployees who have been disciplined or who have suf- fered any loss by virtue of Respondent's unlawful act should be restored to the status quo ante. Therefore, we shall provide that Respondent rescind and ex- punge from its records all disciplinary warnings re- sulting from the failure to comply with the unilater- ally instituted Saturday work policy and provide further that Respondent offer all employees dis- charged for failure to comply with said unilateral change immediate and full reinstatement to their for- mer positions or, if they no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously en- joyed, and make them whole for any loss of pay they may have suffered as a result of their discharge. Back- pay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as set forth in Florida Steel Cor- poration. 231 NLRB 651 (1977). 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Gaska Tape, Inc., Elkhart, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Local 1049, United Paper & Allied Work- ers, International Brotherhood of Teamsters, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by failing or re- fusing to reinstate employees who have engaged in a See Boland Marine and Manufacturing Companrv. Inc., 225 NLRB 824 (1976). 4See, generally, Iis Plumbing & IHealing Co., 138 NLRB 716 (1962). Backpay shall be computed in the same manner for employee Jennifer Gil- christ pursuant to our adoption of the Administrative l.aw Judge's finding that she was not properly reinstated, in violation of Sec. 8(a})3) and (I). In addition, the Administrativ Law Judge inadvertently failed to provide that Respondent rescind its unilaterally instituted mandatory Saturday work policy. We shall provide for rescission of this unilateral change in our Order. 241 NLRB No. 96 686 GASKA TAPE, INC. protected strike conducted by such labor organization or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (b) Unilaterally changing the hours of work of em- ployees without notice to or consultation with the Union, as the exclusive representative of all its em- ployees in the appropriate bargaining unit, prior to making such changes. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing: and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection: or to refrain from any and all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Rescind its unilaterally instituted 6-day-work- week rule involving mandatory Saturday work. (b) Rescind its written warnings to Alma Jackson. Oressie Tyson. Ruby Stewart, and Barbara Crosslin issued as a result of their failure to comply with the unilaterally instituted Saturday work policy and ex- punge from its records all memoranda thereof or ref- erences thereto. (c) Upon request, bargain with the Union about the institution of a 6-day workweek involving manda- tory Saturday work and, if agreement is reached, em- body it in a signed contract. (d) Offer Alma Jackson, Oressie Tyson, and Ver- non Harris immediate, full, and unconditional rein- statement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of their discharge, in the manner set forth in the text preceding this Order. (e) Offer Jennifer Gilchrist immediate, full, and unconditional reinstatement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her in the manner set forth, in the text preceding this Order. (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 Elkhart, Indiana, Lusher Street and Minnie Street facilities copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 25, af- ter being duly signed by Respondent's representative, shall be posted by it 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (h) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. I 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 abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National labor Relations Board." APPENDIX NOTICE TO EMPLOYEF.S POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Re- lations Board has found that we violated the law and has ordered us to post this notice. WE WIL. NOI discourage membership in, or activities on behalt'of, Local 1049, United Paper & Allied Workers, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion of our employees, by failing or refusing to reinstate employees who have engaged in a pro- tected strike conducted by such labor organiza- tion or otherwise discriminate in regard to the hire or tenure of employment or any terms or conditions of employment of our employees. WF. W.L. NOT unilaterally change the hours of work of employees without notice to or consulta- tion with the Union, as the exclusive representa- tive of all our employees in the appropriate bar- gaining unit, prior to making such change. WE W11.l. NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL rescind our unilaterally instituted 6- day-workweek rule involving mandatory Satur- day work. WE WILL rescind our written warnings to Alma Jackson, Oressie Tyson, Ruby Stewart, and Barbara Crosslin issued as a result of their failure to comply with the unilaterally instituted Saturday work policy and expunge from our rec- ords all memoranda thereof or reference thereto. WE UlWLI., upon request, bargain with Local 1049 about the institution of a 6-day-workweek rule involving mandatory Saturday work and, if an agreement is reached, embody it in a signed contract. The appropriate unit is: All production and maintenance employees including truckdrivers employed at our Lusher Street and Minnie Street facilities, exclusive of all office clerical employees, professional em- ployees, guards and supervisors as defined in Section 2(11) of the Act. WE WILL offer Alma Jackson, Oressie Tyson, and Vernon Harris immediate, full, and uncondi- tional reinstatement to their former jobs or, if such jobs no longer exist, to substantially equiv- alent positions, without prejudice to their senior- ity or other rights and privileges previously en- joyed, and make them whole for any loss of pay they may have suffered as a result of their dis- charge, with interest. WE WIL.L offer to reinstate Jennifer Gilchrist to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay that she may have suf- fered as a result of the discrimination against her, with interest. GASKA TAPE, INC. DECISION STATEMENT OF THE CASE HENRY L. JALErE, Administrative Law Judge: This pro- ceeding involves allegations that the above-named Respon- dent violated Section 8(a)(1), (3), and (5) of the Act by certain unilateral conduct, failing to reinstate certain strik- ers, and discharging three employees. This proceeding was initiated by a charge filed by the above-named Union on October 5, 1977,' which charge was amended on October 21. Pursuant thereto a complaint issued on November 30. A hearing was held before me in Elkhart. Indiana on March 8 and 9, 1978. ' Unless otherwise indicated, all dates hereinafter are in 1977. Upon the entire record,: including my observation of the witnesses, and upon consideration of the briefs of the par- ties, I hereby make the following: FINDINGS OF FACT 1. THE FACTUAL SETTING Respondent is engaged in the manufacture, sale, and dis- tribution of paperbacked calking tape and related products, with its principal office and place of business at 1800 West Lusher Street, Elkhart, Indiana. and a facility at Minnie Street, Elkhart, Indiana.3 On or about March 3, pursuant to a settlement agreement with the Board, Respondent recog- nized the Union as the representative of its production and maintenance employees at both the Lusher and the Minnie Street facilities. On or about March 31 Respondent and the Union commenced negotiations. No agreement was reached, and on May 24, 38 of Respondent's 48 unit em- ployees went on strike. On September 15 Respondent en- tered into another settlement agreement with the Board, providing, inter alia, for the reinstatement of strikers upon unconditional application. The complaint alleges that thereafter three employees were denied reinstatement to their former jobs, that on October 17 three employees were discharged for discriminatory reasons, and, on or about September 22 Respondent unilaterally changed existing hours of employment. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Denial of Reinstatement 1. Karen Fogarty Fogarty was hired on April 25 as a trainee on the reel machine and was assigned to the first shift to train under reel machine operator Karen LaGrand. On May 24 she went on strike. On September 19 she applied for reinstate- ment and was told she was being assigned to the second shift for training for eventual assignment to the third shift. Fogarty protested that this was not in accordance with the terms of the settlement agreement. She did not report for work on the second shift and was subsequently terminated. The undisputed testimony indicates that Respondent has only one reel machine, and when Fogarty applied for rein- statement the machine was being operated on the first shift by Karen LaGrand, who had trained Fogarty and was her- self a reinstated striker. Thus, there was no vacancy on the first shift for Fogarty as a reel machine operator, and Fog- arty's testimony indicates that she wanted only first-shift work. Nevertheless, General Counsel contends that Re- spondent violated the Act by not reinstating Fogarty to first-shift employment, on the theory that there were striker replacements on the first shift performing other jobs, and it 2 Except for the proposed correction of tr. p. 89, . 20, General Counsel's motion to correct record is granted, as the proposed corrections are either unopposed or conform to the sense of the witness' testimony. Jurisdiction is not in issue. Respondent admits that it meets the Board's $50,000 direct inflow and outflow standards for the assertion ofjurisdiction. 688 GASKA TAPE, INC. was Respondent's duty to train Fogarty for one of those jobs. I reject the contention. General Counsel's contention is predicated on a state- ment in J. H. Rutter-Rex Manufacturing Compan,, Inc., 158 NLRB 1414, 1485 (1966). wherein the Board held that it was that employer's duty to transfer and retrain strikers. The case is distinguishable. The finding in that case was predicated on a record showing that employer's practice of reassigning and retraining operators when there were changes in the company's products. There is no evidence of such a practice here. Furthermore, the strikers in question in that case were experienced operators: in this case, Fogar- ty was a trainee who was obviously hired in contemplation of a shift transfer. According to the uncontradicted testi- mony of then Plant Manager George Lott, Fogarty was told before the strike of the shift transfer. For the foregoing reasons I shall dismiss the complaint allegation relative to Karen Fogarty. 2. Eugene Jackson Jackson testified he was hired in January 1977 and was assigned to work in shipping and receiving at the Lusher Street plant. Among his duties was the delivery of goods to customers, a job which he did daily. In addition, he would make trips to the Minnie Street facility to pick up raw ma- terial for the Lusher Street facility. Generally, this duty was performed with employee David Edel, in a truck driven by Edel, but in Edel's absence Jackson would do the job. Jackson was a striker. On September 21 he reported to work at about 7 a.m., to Plant Manager George Lott. Lott told him to report to Jack Smith, Jr., at the Minnie Street facility. Jackson testified he reported to Mr. Smith, Junior, and was told to help straighten up some logs that had fallen. (Logs are rolls of material.) Jackson protested that this was not his job and not in accordance with the terms of the settlement agreement, but Mr. Smith, Junior, told him he knew nothing about it. Jackson asked and received per- mission to call Lott. He did so and told Lott that according to the terms of the settlement agreement, he was supposed to work at the Lusher Street plant. Lott told him that if he did not like it, he could go home. Jackson returned to Mr. Smith. Junior, and told him, "You know this ain't right." Mr. Smith, Junior, told him there was nothing he could do about it. Jackson worked with Jack Smith, Jr., for a brief period. Contemporaneously, an oven in a production area of the Minnie Street facility broke down and Jack Smith. Sr.. and Lott arrived at the facility to look into the matter. Because the oven was not operative, Mr. Smith, Senior, told re- turned striker Leonard Patrick to go home. Patrick and Mr. Smith, Senior. exchanged words, and Patrick was told to get out. Jackson interjected himself with his complaint about noncompliance with the terms of the settlement agreement, and Mr. Smith, Senior, told him that, if he did not like what he was doing, he could get out of there. Jack- son did. The following day he returned to the plant and was told by Lott that he was fired for walking out without no- tice. The foregoing is based on the testimony of Jackson. A substantial part of it was contradicted by Respondent's wit- nesses Lott and Jack Smith, Jr., but General Counsel con- tends that Jackson's testimony deserves credence and that, on the basis thereof, a finding is warranted that Jackson was not properly reinstated. I find General Counsel's argu- ments unpersuasive. The first question presented is whether the work to which Jackson was assigned on September 21 was work which he regularly performed. On this point, General Counsel con- tends that Jackson was a deliveryman working at the Lusher Street facility whose assignments to the Minnie Street facility consisted of occasionally assisting David Edel in picking up materials at Minnie Street and substituting for Edel in his absence. I credit Jackson's and Edel's testi- mony in this regard, but I do not deem it dispositive of the issue. It is clear from Jackson's testimony that he was part of the shipping and delivery department and that, when not making deliveries, the majority of his duties were performed at the Lusher Street facility. It is also clear, however, that he had other duties, such as dumping trash and loading stock, including assisting in the transportation of materials from Minnie Street to Lusher Street. In my judgment, the work to which he was assigned on September 21 was not significantly different from the odd jobs he had performed before the strike and was consistent with the work of the shipping and delivery department. While he may not have been required to pick up logs prior to the strike, the need to do so arose accidentally, and such work can only be viewed as incidental to preparing logs for loading on the truck for transfer to Lusher Street. As the record indicates, the truck was brought over from Lusher Street to Minnie Street for that purpose. General Counsel adverts to that fact and the fact that the truck was driven over by strike replacement Jim Benjamin as though Jackson should have been assigned to drive the truck instead of Benjamin. That is not the case, Benjamin was David Edel's replacement, and Jackson had no right to that assignment. For the foregoing reasons. I am persuaded that the as- signment given Jackson on September 21 was within the range of the duties he had performed before the strike. It could be added that General Counsel offered no evidence at all concerning the duties to be performed at Lusher Street that morning. Thus, there was no showing that there was any loading or unloading of stock or dumping trash or making deliveries to customers. From this one can conclude that there were no duties for Jackson to perform at Lusher Street when he reported for work and that his assignment to Minnie Street was dictated by Respondent's immediate needs. In my judgment, the foregoing analysis is sufficient to dispose of Jackson's case. Mention should probably be made, however, of the fact that Jackson was given a Minnie Street. instead of Lusher Street, timecard. At the hearing, that fact seemed significant to me. On consideration of the record, I see little significance to it, because whatever the notation on the card, Jackson was not told to punch in at Minnie Street, and, in fact, he punched in at Lusher Street. In light of that, Lott's explanation for giving Jackson a Minnie Street card is not implausible, and I credit it. As to Jackson's driving his own car to Minnie Street, there is no evidence he was told to do so. The explanation lies in Lott's 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony, which I credit, that Jackson, upon being told to report to Minnie Street, grabbed his card and left. In light of all the foregoing circumstances. I conclude that Jackson was properly reinstated. As General Counsel does not contend that Respondent was unlawfully moti- vated in terminating Jackson on September 22 for leaving work on September 21, I shall recommend that the allega- tion of the complaint with regard to Jackson be dismissed. 3. Jennifer Gilchrist Gilchrist was hired on or about March I as a trainee roll coater operator on the first shift with the understanding she would be transferred to the third shift when the regular operator, Oressie Tyson, then on maternity leave, returned. Gilchrist participated in the strike. She testified that on Sep- tember 19, after the strike settlement agreement, she spoke to Lott about returning to work and he told her that Tyson had returned to work, and she would have to go on the second shift because the roll coater machine had been modified and she would need training. Gilchrist objected and expressed a desire to wait until the third shift went into operation on Sunday: Lott insisted she report to work on the second shift so that she could get some training. Gilchrist reported on the second shift on September 20 and worked until 10 p.m. She testified, without contradic- tion, that she received only a few minutes of instructions and worked most of the shift without supervision. The next day she called Lott and told him that inasmuch as she had worked by herself, she preferred to wait until Sunday to return to work on the third shift. He demurred, so she sug- gested being absent and bringing in a doctor's excuse. Ac- cording to Gilchrist, Lott did not tell her one would be required, only that it would be better and prevent hassles all the way around. Gilchrist did not report to work until Sunday night, Sep- tember 25, for the third shift. At that time she was asked by Jack Smith, Sr., president of Respondent, for a doctor's ex- cuse. She told him she had none, but that she would try to get one the next day. Smith told her that if she did not have one by the time the third shift started the next day, she was not to report back to work again. Gilchrist was unable to get a doctor's excuse (she had not gone to the doctor during her absence), so she did not report back to work on Septem- ber 26, or thereafter. Respondent discharged her on Sep- tember 29 for her absence on September 26 28. The discharge of Gilchrist poses a knotty question. Ac- cording to Respondent, Gilchrist was properly reinstated and thereafter terminated for cause. According to General Counsel, Gilchrist was never properly reinstated. General Counsel's argument is that inasmuch as work in Gilchrist's classification of roll coater operator was available on two shifts, Respondent was obligated to reinstate her to her re- quested shift. It is settled law that an employer who denies reinstate- ment to a striker has the burden of showing substantial economic justification. N.L.R.B. v. Fleetwoodl Trailer Com- pany Inc., 389 U.S. 375 (1967). In Gilchrist's case, it is un- necessary to decide whether, as a matter of law, she had the right to be reinstated to the third shift instead of the second. The fact of the matter is that Respondent did agree to rein- state her to the third shift. However, Respondent's agree- ment was conditioned on Gilchrist's receiving retraining on the second shift, a condition which could not in the circum- stances be said to be unlawful. Nevertheless, the uncontra- dicted testimony of Gilchrist was that she received only a few minutes of retraining on the day she worked on the second shift and that she operated the machine for a sub- stantial period of time without supervision. In her judg- ment, she required no more retraining. Of course, manage- ment has the right to determine how much training an employee requires, but in this case Respondent, by making out a timecard for Gilchrist for the third shift on September 25 although she had worked only on September 20, con- ceded either that further training was not required or that Gilchrist could obtain further training on the third shift. In these circumstances, what economic justification was shown for terminating Gilchrist? None. The only apparent justification could be that Gilchrist had been absent for 3 days without a valid excuse, and, according to Woodhams, this was contrary to company policy. There is some ques- tion in my mind about the existence of such a policy, be- cause it does not appear in Respondent's shop regulations. Be that as it may, it is one thing to apply a policy in the normal course of operations but another thing to apply it to a returning striker. In my judgment, under the circum- stances herein described, with no evidence that Gilchrist's failure to report for work on September 21 23 created any production or personnel problems, Respondent could not condition Gilchrist's reinstatement on a doctor's release. By so doing. and terminating her for failing to return to work after September 25, Respondent violated Section 8(a)(1) and (3) of the Act.' B. The Warnings and L)ischarge of Reinstated Strikers 1. The facts The record indicates that four strikers who were reinstat- ed during the week beginning Monday, September 19 (Alma Jackson, Ruby Stewart. Barbara Crosslin, and Ores- sie Tyson), were issued written warnings and that three strikers (Alma Jackson, Oressie Tyson, and Vernon Harris) were discharged for the asserted reason that they had failed or refused either to work at all on Saturdays or to work 8 hours on Saturdays. Thus, Ruby Stewart was given a writ- ten warning on October 4 for being absent from work on Saturday, September 24. Barbara Crosslin and Alma Jack- son did not work on Saturday, September 24, or on Satur- day, October , and they were given two written warnings.' Tyson did not work on October 1, and was given a written warning. On October 8 and 15 Jackson and Tyson worked from 7 a.m. to 12 p.m. They did not receive a written warn- ing for so doing on October 8, but on October 17 they were discharged for not having worked a full 8-hour shift on the 15th. Vernon Harris did not report to work following the strike until October 4. He did not work on Saturday, Octo- 4 According to Gilchrist's uncontradicted testimony, on September 20, the day she worked the second shift, she was given a warning. The warning was clearly unjustified, and although it was revoked, Gilchrist was not told of the revocation until September 25. Respondent's conduct in this particular sug- gests a purpose to discriminate against a returning striker, but the finding of a violation herein made need not rely on such conduct. Crosslin testified she did not receive a warning for her failure to work on September 24. but according to G (C. Exh 12. she did. 690 GASKA TAPE. INC. her 8. because he was sick. On October 15 he worked only until 12 p.m. On October 17 he was terminated with Jack- son and Tyson. 2. Analysis and conclusions The complaint alleges that the written warnings and dis- charges described above were attributable to the union ac- tivities of the employees in question and to their participa- tion in the strike and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. In support of that allega- tion, General Counsel adverts to what he describes as a pattern of discipline of the individuals in question which coincides with their union activity. Thus, the record (G.C. Exh. 12 and 13) indicates that prior to September 10, 1976, Respondent had only issued a total of six warnings to some five employees and that prior to February 1977 none of the alleged discriminatees had received any written warnings during a substantial period of service. However, in Febru- ary and March. Tyson, Jackson, Crosslin, and Stewart started receiving warnings. General Counsel contends, in light of these facts and the fact that the issuance of warn- ings coincided with the employees' union activities, that a finding is warranted that the warnings both then, appar- ently, and thereafter in September and October were attrib- utable to their union activities. The contention has no mer- it. For one thing. there is no indication that at the time of the warnings to the alleged discriminatees in February and March 1977. Respondent knew of their union activities. For another thing. General Counsel has not shown that during that same time the alleged discriminatees were the only em- ployees to receive written warnings. For yet another thing, General Counsel has not shown what was Respondent's practice of issuing warnings during the period between Sep- tember 10, 1976, and February 1977. Finally, it is notewor- thy that in the settlement agreement entered into by Re- spondent on September 15, 1977, there is no provision for remedying an unfair labor practice, such as the adoption of stricter disciplinary rules or the stricter enforcement of ex- isting rules because of employees' union activities. The ab- sence of such a provision in the settlement agreement sug- gests that at no time was Respondent charged with such an unfair labor practice. In light of all these circumstances. General Counsel's reliance on the disciplinary records to establish discriminatory motive in the warnings given to the alleged discriminatees in September and October and in their discharges is misplaced. In addition to the foregoing, General Counsel relies on testimony of the alleged discriminatees relative to receiving notice of Respondent's requirement that all employees work on Saturday and of Respondent's acquiescence in their working less than a full day. I see no useful purpose in discussing their testimony in detail, because it was substan- tially contradicted by Lott. and I am persuaded that be- tween the alleged discriminatees and Lott. Lott is the more credible witness because of the fact that at the time he tes- tified he was no longer employed by Respondent and would have no purpose to lie. Apart from that. I am persuaded that Vernon Harris' testimony relative to his leaving at noon on Saturday. October 15, is not deserving of credence. Insofar as Jackson, Tyson, and Stewart are concerned, the suggestion in their testimony that they did not know that Saturday work was mandatory is patently incredible. In ad- dition, if, as Harris testified, insisting that the individuals work on Saturday was Respondent's way of getting rid of the strikers, Lott would not have told Tyson and Jackson, as they testified, that it was okay to work only half a day on Saturday. For these reasons, I do not credit the testimony of the alleged discriminatees which is in conflict with Lott's testimony. In particular. I do not credit the testimony that on the day of the discharge. Lott told Judy Smith that he had to make the individuals in question work on Saturday in order to get rid of them. Inasmuch as I have found that Jackson, Tyson, and Har- ris left work early on October 15, without permission and in violation of the requirement that employees work a full shift. and in the absence of evidence of disparate treatment, the allegation that they were discharged in violation of Sec- tion 8(a)(1) and (3) of the Act must be dismissed. General Counsel contends that the discharges were viola- tive of Section 8(a)( 1) and (3) of the Act on an alternative theory, namely, that in relusing to work overtime on Satur- day or working only a partial shift, the employees were engaged in protected activity. In support of this contention, General Counsel relies on Advance Industries. Division Overhead Door Corporation, 220 NLRB 431 (1975), where five employees refused to leave their employer's premises in protest of a change in working hours which they reasonably believed was made in derogation of the rights of their col- lective-bargaining representative. As will appear below, I conclude that Respondent did violate Section 8(a)(11) and (5) of the Act by unilaterally instituting a mandatory 6-day work schedule. Nevertheless there are important factual dif- ferences between Advance Industries, supra. and this case which compel a different result. One factual difference is that none of the employees who was either warned or warned and discharged purported to be engaged in a protest of Respondent's mandatory Satur- day work requirement. Rather, Jackson and Tyson claimed to have acted with permission, and Harris claimed to be sick. Assuming. arguendo, that they were engaged in a work stoppage in protest of Respondent's unilaterally adopted Saturday work requirement, their discharge is nevertheless not violative of the Act. because, as Respondent points out. such a work stoppage was only partial, that is, limited to a refusal to work overtime, and recurrent. Although the over- time requirement was unlawfully instituted, the Board has held, as Respondent also points out. that "that unlawful act did not privilege the Union's resort to the partial strike as a self-help device, any more than the Union would have been privileged to engage in a sitdown strike or slowdown to protest the [employer's] action." Valley City Furniture Conm- pan', 110 NLRB 1589. 1595 (1954). Accordingly. I find no merit to General Counsel's alternative theory. C. The 8(a)(5) Allegation As noted above, after the strike employees were required to work on Saturdays as a condition of employment. The complaint alleges that this requirement was unilaterally in- 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stituted in violation of Section 8(a)(l) and (5) of the Act., The allegation poses both factual and legal issues. Factually, the question presented is whether the manda- tory requirement of Saturday work constituted a change in conditions of employment. According to Tyson, Stewart, Crosslin, and Alma Jackson, prior to the strike, work on Saturdays was not mandatory; rather, it was Respondent's practice to obtain volunteers when there was work to be performed on Saturdays. Although I have not deemed these individuals credible in other matters, their testimony in this matter is credited, as it was essentially confirmed by Lott. Thus, Lott testified that prior to the strike Respondent had relied on volunteers for Saturday work, but during the strike, on or about August 12-14, a decision was made that overtime would be mandatory. On August 16 a notice was posted advising employees that they would be working a 6- day workweek. Based on the foregoing testimony, I find that the requirement that employees work on Saturday con- stituted a change in conditions of employment. Respondent contends that even if there was a change, it had no obligation to bargain with the Union about the mat- ter, on the theory that such a decision, made for legitimate business reasons, was inherently managerial within the meaning of N.L.R.B. v. Adams Dairy Inc., 350 F.2d 108 (8th Cir. 1965), and Summit Tooling Company and Ace Tool Engineering Co., Inc. and Summit Tooling Company Division of Ace Tool Engineering Co., Inc., 195 NLRB 479 (1972). The assertion is too lacking in merit to require discussion.' Respondent contends that in any event it did bargain over the matter. In this connection Respondent adverts to its contract proposal of July 21, 1977, wherein it proposed, "The obligation of employees to work overtime when scheduled or when necessitated by the Company's policy of good customer service is recognized, provided that the Company will permit employees to be relieved from over- time for urgent personal matters." As is evident from the quoted language, the proposal made no reference to a 6-day workweek or to a 6-day work schedule with compulsory work on Saturdays. Nevertheless, Respondent contends that it bargained over the 6-day work schedule, because in the negotiations the Union's representative, Jimmy Skipper, in response to Respondent's proposal, adverted only to the fact that the proposal left out "half pay or premium pay for Saturday work," and Skipper did not at that time or any other time propose that Respondent could not schedule em- ployees to work as needed. Respondent overstates the rec- ord. According to Skipper, whose testimony I credit, Re- spondent's proposal was discussed only briefly at a negotiating meeting on July 28, with the Union stating that they would look the proposal over. At a negotiating meet- ing on August 31, the Union refused to agree to compulsory overtime. According to Skipper, the discussion on overtime centered on the matter of about 2 hours of overtime at the end of a shift as being compulsory. Overtime relative to work on Saturdays was discussed only in terms of premium 6 The complaint alleges, and Respondent admits, that at all times material herein, the Union has been the exclusive representative of Respondent's em- ployees in an appropriate unit of all production and maintenance employees. 7 See Mike O'Connor Chevrolet-Buick-GMC Co., Inc., etc., 209 NLRB 701 (1974). pay, not in terms of its compulsoriness. It is noteworthy, in this connection, that Respondent's proposal, in describing the hours of work, stated, "Except for over-the-road truckdrivers if any, the normal workweek will consist of three shifts, with each shift working 5 (five) consecutive days of 8 (eight) consecutive hours each excluding the lunch period, commencing on ilMonday of each week except for third shift which begins on Tuesday." On the basis of the foregoing, a finding is warranted that a compulsory 6-day work schedule was not discussed dur- ing the negotiations on a collective-bargaining agreement, and Respondent's assertion that it was is not supported by the record. Respondent defends its conduct on the alternative ground that the Union had, in effect, waived its right to bargain about the 6-day work schedule by its failure to request bargaining about the matter. While it is true that a union may waive its right to bargain about conditions of employment where it fails to request bargaining when it is on notice that the employer is contemplating or has insti- tuted a change in conditions of employments each case de- pends upon its own facts. In this case, Respondent relies upon the fact that the Union's representatives observed that employees' cars were at the plant on Saturdays during the period of the strike. This fact has no significance, because all it would indicate was that employees were working, not that they were being required to do so as a condition of employment subject to discharge for failing to do so. Respondent adverts to the fact that it met with the Union on August 31 and September 20, and on neither occasion did the Union question the 6-day schedule. No significance can be attached to the Union's failure to do so, as there is no showing that the Union, which was still on strike, was then aware of the compulsory nature of the 6-day work schedule. Respondent adverts to the fact that it met with the Union to bargain on October 25, and the Union did not raise the matter of a 6-day work schedule or any related issue, not- withstanding the facts that prior thereto employees had been warned for not working on the sixth day and that the employees named herein had been discharged. A finding of a waiver cannot be predicated on this fact inasmuch as on October 21 the Union had already put Respondent on no- tice of its opposition to the 6-day mandatory work schedule by amending the charge in this proceeding to allege, inter alia, "lO]n or about September 19, 1977, the Employer uni- laterally changed a condition of employment by making Saturday overtime mandatory without bargaining with Lo- cal 1049." In short, I find that the record does not support the con- tention that the Union waived the right to bargain about the change in the workweek. Accordingly, after consider- ation of all of Respondent's defenses, I find that Respon- dent violated Section 8(a)l I) and (5) of the Act by unilater- ally changing hours of work.9 I See, e.g.. The City Hospital of East Liverpool, Ohio, 234 NLRB 58 (1978). 9The complaint alleges that Respondent's conduct in issuing written warnings, discharging employees. and failing to reinstate employees was en- gaged in to undermine and destro; the Union's majority status. Based on the findings and conclusions made hrein, I find that the evidence is insufficient to support such allegation. 692 GASKA TAPE, INC. Ill. 1ti FL('I (OF rIlE UNFAIR I.ABOR PRA(TI('ES UPON ('OMMER('E The activities of Respondent set forth above, occurring in connection with its operations described 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. IV. TIIE REMtL)Y Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)( 1). (3), and (5), of the Act. I shall recommend that it be ordered to cease and desist therefrom and to take appropriate and affirmative action designed to effectuate the policies of the Act. As Respondent has discontinued its mandatory Saturday work rule, it is unnecessary to recommend that the rule be re- scinded, and the policies of the Act can be effectuated by requiring Respondent to bargain with the Union in the fu- ture. As I have found that Respondent failed to reinstate Jennifer Gilchrist because of her participation in a pro- tected strike, in violation of Section 8(a)(l) and (3) of the Act, I shall recommend that it be ordered to offer her im- mediate and full reinstatement to her former or a substan- tially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of the unlawful failure to reinstate her by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of failure of reinstatement to the date of a valid offer of reinstatement, less net earnings. to which shall be added interest to be computed in the man- ner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).10 '°See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CON('I.ISIONS OF LAVW 1. Gaska Tape. Inc.. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1049. United Paper & Allied Workers, Interna- tional Brotherhood of Teamsters. a/w International Broth- erhood of Teamsters, hauffeurs, Warehousemen and Helpers of America. is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Re- spondent. including truckdrivers, at its Lusher Street and Minnie Street facilities, exclusive of all office clerical em- ployees, professional employees, guards. and supervisors as defined in Section 2(11) of the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 1049 has been at all times material herein the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally instituting a mandatory requirement that employees work on Saturday, without notice to or con- sultation with the Union. Respondent has engaged in. and is engaging in, unfair labor practices within the meaning of Sections 8(a)( 1) and (5) and 2(6) and (7) of the Act. 6. By failing and refusing to reinstate Jennifer Gilchrist to her former or an equivalent position because of her par- ticipation in a protected strike, Respondent has engaged i. and is engaging in, unfair labor practices within the mean- ing of Sections 8(a)( I) and (3) and 2(6) and (7) of the Act. 7. General Counsel has failed to establish by a prepon- derance of the evidence that Karen Fogarty and Eugene Jackson were denied reinstatement because of their partici- pation in a protected strike or that Respondent discharged Alma Jackson. Oressie Tyson, and Vernon Harris because of their participation in a protected strike or protected con- certed activities. [Recommended Order omitted from publication.] 693