The National Automatic Products Co.

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the original Intermediate Report be modified so as to delete from the recommenda- tions therein made, the requirement that Koskovich be made whole for any loss of pay she may have suffered by reason of the discrimination against her. Said request is hereby granted. As supplemented by the information contained herein the Intermediate Report issued on February 9, 1959, is hereby reissued. The National Automatic Products Company and United Electri- cal, Radio and Machine Workers of America, (UE). Case No. 1-CA.-2993. August 16,1960 DECISION AND ORDER On April 8, 1960, Trial Examiner John F. Funke issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following modifications : 1. Unlike the Trial Examiner, we do not find that the offer of the strikers, who had previously been unlawfully discharged, made by Union Representative Tomassetti on September 28, to be an uncon- ditional offer to return to work. The evidence shows that on that date Tomassetti asked the Respondent what it was going to do about taking the strikers back to work, the Union having previously insisted upon reinstatement of both the strikers and dischargee Ziolkowski, and advised Respondent that unfair labor practice charges had been filed and that the reinstatement of the strikers and of Ziolkowski were being made part of contract negotiations. Ziolkowski had been law- fully discharged by Respondent. Not having made the offer for the return of the strikers clearly independent of reinstatement for Ziol- kowski, it cannot be said that a willingness to work by the strikers without Ziolkowski's reinstatement was shown. We do find, however, that at the hearing on February 9, 1960, Tomassetti did make an unconditional offer on behalf of the strikers 128 NLRB No. 72. THE NATIONAL AUTOMATIC PRODUCTS COMPANY 673 for reinstatement. We shall therefore order that backpay for the striking employees be computed from February 9, 1960, until the date Respondent offers such employees reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges or, as some strikers have been reem- ployed, until date of reemployment, whichever is earlier. 2. The Trial Examiner found that employee Neumann advised Foreman Slysz of the reason for the walkout. The record shows that in fact employee Neubauer so advised Slysz, and we so find. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The National Automatic Products Company, Berlin, Connecticut, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio and Machine Workers of America (UE), or in any other labor organiza- tion of its employees, by discharging or in any other manner discrim- inating against employees in regard to hire and tenure of employment, or any term or condition of employment, except as permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to each individual named in that section of the Inter- mediate Report entitled "The Remedy" immediate and full reinstate- ment to his or her former or a substantially equivalent position, with- out prejudice to his or her seniority or other rights and privileges, and make each of the aforesaid employees whole for any loss he or she may have suffered by reason of the discrimination against them, in the manner set forth in said section of the Intermediate Report, as mod- ified by this Decision and Order. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay due under this Order. (c) Post at its Berlin, Connecticut, plant copies of the notice attached hereto marked "Appendix." l Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2In the event that this Order is enforced by 'a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in United Electrical, Radio and Machine Workers of America, (UE), or in any other labor organization of our employees, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment, or any term or condition of em- ployment, except as permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired after September 10, 1959, to replace these employees, and we will make each employee whole for any lose of pay he may have suf- fered by reason of our discrimination against him : THE NATIONAL AUTOMATIC PRODUCTS COMPANY 675 George Angiletta Albert C. Neumann Sally Asal Juan Ortega John Bassen Angel L. Perez Joseph Bianchi Julia Ragalis Pedro Cardona William G. Reisaek Luis Cardona Richard Ruck Augustin F. Caron Patsy Saffiotte Donat Caron Stanley Smigiel Pauline Cugno Mary Stevens Michel Holowaty Susan Stone Robert H. Johnson Philip Todaro Grego Marycz Olegario Traverso Santa Napoli Frank TTchalik Joseph Neubauer Oneil J. Violette Edward Zenuh WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our 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 pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from be- coming or remaining, members of United Electrical, Radio and Ma- chine Workers of America, (UE), or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. THE NATIONAL AUTOMATIC PRODUCTS COMPANY, Employer Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with the General Counsel and The National Automatic Products Company, herein called the Respondent or the Company, represented, was heard 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the duly designated Trial Examiner on February 9, 1960, at New Britain, Connecticut, upon the complaint of the General Counsel and the amended answer of the Respondent. The complaint alleges that Respondent discharged some 30 employees on Septem- ber 10, 1959, because they engaged in concerted activity for purposes of collective bargaining and other mutual aid or protection. It is alleged that by these discharges Respondent violated Section 8(a) (1) and (3) of the Act. The answer alleges that the discharges were for cause. General Counsel made oral argument and able briefs were received from counsel for the General Counsel and for the Respondent on March 16. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Connecticut corporation having its principal office and place of business at Berlin, Connecticut. It is engaged in the manufacture, sale, and dis- tribution of small aircraft engine parts and related products. It has caused to be shipped from its Berlin plant to places outside the State of Connecticut products valued in excess of $50,000 annually. Respondent is engaged in commerce within the meaining of the Act. IL LABOR ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America,,(UE), herein called UE or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts The UE was certified as the collective-bargaining representative of a unit of production and maintenance employees of Respondent on August 31, 1959. Shortly thereafter Albert Neumann was elected president of the unit and Joseph Neubauer was elected vice president. An employee named Stanley Ziolkowski was named a member of the negotiating committee. On September 8 a centerless grinding operator notified the Company he was leav- ing its employ immediately. Ziolkowski I was notified by Bill Slysz, his foreman, that he would be transferred to centerless grinding the next day. Ziolkowski had been employed as a centerless grinder some 4 or 5 years ago and had been trans- ferred from that job after he acquired a rash. Ziolkowski did not protest the trans- fer when he was notified but about quitting time on that day he spoke to Neumann about the transfer. It was too late to discuss it at that time but it was arranged to discuss it the following morning. At starting time the next morning, September 9, Neumann and Neubauer advised Slysz that Ziolkowski did not want to go to grinding because he feared a recurrence of the rash. Ziolkowski told Slysz that he would not report to the job until he was examined by a doctor and received clearance. Slysz told Ziolkowski to stand by until he could consult with Anthony Kasprow, president of the Company. At the same time Neumann requested permission to talk to Kasprow, who was not yet at the plant, "as president of the union." (Although certified, the Union had not yet begun bargaining negotiations and no contract existed.) Slysz replied that Neumann could see Kasprow at any time just as he had in the past. About 9 or 9:30 Anthony Kasprow arrived and a consultation took place in his office between him, Joseph Kasprow, the general manager, Mrs. Gorban, secretary of the Com- pany, and Carl Peterson, another representative of management. Slysz reported everything that had happened with regard to Ziolkowski. Slvsz was instructed to tell Ziolkowski to report to the grinder or be discharged and did so. Ziolkowski again refused to accept the assignment without a doctor's certificate although he was assured by Slysz that if the rash recurred he would receive medical treatment. He was then discharged by Slysz. Neumann's machine was close to Ziolkowski's and Neumann overheard the dis- charge. When Slysz took Ziolkowski to the office Neumann "took a consensus around my area" and instructed Olegario Traverso, a roving inspector, to poll the rest of the plant. The purpose of the consensus and the poll was to determine what 1 That part of the charge which alleged that Ziolkowski was discharged In violation of Section 8(a)(3) of the Act was dismissed and Ziolkowski did not appear at the bearing. THE NATIONAL AUTOMATIC PRODUCTS COMPANY 677 action, if any, the employees wished to take in protest of the discharge of Ziolkowski. Traverso reported that the employees wanted to do something and Neumann decided to walk out. He was the first to punch out and some 30 employees followed. At the time he checked out Neubauer testified that he told Slysz the employees were leaving because Ziolkowski had been fired. Later that morning a group of the employees met in the office of Nicholas Tomassetti, field representative of the UE, who had organized the plant. After hearing their story Tomassetti called the Company, asked for Anthony Kasprow, was told by Mrs. Gorban that he was not in, and when Tomassetti told her he was calling regarding the discharge of Ziolkowski and the walkout, was referred to John Sullivan in New Haven, labor consultant for the Company. Tomassetti called Sullivan and gave him the facts as he had learned them and asked Sullivan for the Company's version. Sullivan called back the next day, September 10, to state the Company had discharged Ziolkowski for his refusal to accept the assignment, which Sullivan understood was only temporary, to center- less grinding. Tomassetti suggested that he (Tomassetti) calla meeting of the employees that afternoon and that, if the Company confirmed Sullivan, Ziolkowski would take the temporary assignment and the employees would return to work. Sullivan later called Tomassetti to tell him he could expect a call from Peterson about 3:30 on that day when he would get the Company's answer. Tomassetti was not called that day and on the next day, September 11, he called Peterson. Peterson said that the Company had reached its decision late the preceding night, that the-Company was discharging the strikers, and that individual notices would be received by the strikers. These notices were dated September 10, signed by Mrs. Gorban, and read as follows: You are hereby notified that you have been terminated by the Company effective September 10, 1959, for participating in an illegal walkout which took place September 9, 1959. Your pay will be mailed to you if not called for on September 11, 1959. These are the facts, with only minor discrepancies in the testimony,2 on which the complaint is grounded and on which decision must rest. ' Neumann, Neubauer, and Slysz were all credible witnesses. While Slysz stated that the request by Neumann to see Kasprow was not made until after Ziolkowski's dis- charge, I credit the testimony of Neumann that it was made about 7 or 7 :30 a.m. Neumann quite apparently took this, his first presentation of a grievance, seriously and I believe that his recollection of events and their sequence was clearer than Slysz's. I therefore find, on the basis of this request and the discussion between Neumann, Neubauer, and Slysz at which Zlolkowski and Traverso were present, the Company had knowledge that the Union wished to present a grievance regarding the transfer of Ziolkowski before Ziolkowski was fired. Slysz testified that be reported "everything to Joseph and Anthony Kasprow." I also find that Neumann, at the time he checked out, told Slysz why the employees were checking out, namely, because they wished to protest the discharge of Ziolkowski. I cannot, therefore, credit the statement of Joseph Kasprow that he did not know why the employees were leaving unless by that he meant that no employee or representative of the Union advised him personally why the em- ployees were leaving. Kasprow's testimony, respecting his conversation with employee Boshen, I find irrelevant to this issue. The conversation was hearsay and only estab- lishes that Boshen did not tell, and may not have known, why the employees were walking out. With respect to the contradictions in the testimony between Tomassetti and Sullivan, "I must credit Tomassetti. Tomassetti was an exceptionally credible witness who testi- fied with complete candor. He was knowledgeable and experienced in labor relations. Therefore I cannot credit Sullivan's testimony that Tomassetti told him that the Company was legally entitled to discharge the employees for walking out. While Sullivan testified that he (Sullivan) told the Company it could fire the employees, it is incredible that Tomassetti could have been in agreement with him or that he would have aban- doned the rights of the employees with such alacrity. In view of this one specific finding, I cannot give the same credence to the testimony of Sullivan as I do to that of Tomassetti. Apart from this, Sullivan was a consultant with many clients and engaged in substantial travel, as his diary established, and I do not believe his recollection of conversations was as accurate as that of Tomassetti. Tomassetti was close to the scene at the Berlin plant, he had organized it and knew the employees, and I believe a fair reading of the record establishes that events there had a greater urgency for Tomassetti and that he had a more immediate contact with them. These factors are not without relevancy in determining accuracy of recollection. 577684-61-vol. 128-44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusions Two propositions of law are involved in this case. The first is that employees who engage in a strike to protest the lawful discharge of another employee enjoy statutory protection as economic strikers.3 Secondly, the discharge of employees for engaging in concerted activity is not a per se violation of Section 8(a) (3) since the discriminatory motive must be established as required by the section.4 As to the first proposition, I find that the strike of the employees at Respondent's Berlin plant on September 9, 1959, was in protest of the lawful discharge of Ziol- kowski and that it was concerted activity protected by Section 7 of the Act. The brief of the Respondent asks these questions: Are we now to believe that every time a Company exercises its management functions and rightfully discharges an employee, it, at the caprice of his fellow employees, may have to stop its production, may have to shut down, may be exposed to breach of contract actions for failure to fulfill commitments because said employees disagree with its management prerogative of discharg- ing employees who fail to carry out legitimate directives and quit working? Are we then to believe that the Board will sanction such activity on their part under the thinly veiled disguise of concerted activity? The answer to these questions, even as stated, is in the affirmative. An employer has remedies for such situations, including the right to replace the strikers and the right to negotiate for a collective-bargaining contract which contains a no-strike clause. Respondent, in addressing itself to the second proposition, relies on Ford Radio, supra, footnote 4. In reaching the conclusion which it did in that case the court held that a discriminatory motive had not been established since the record did not disclose that the reason for the strike had been communicated to the employer. The employer could not, consequently, be deemed to know that the activity of the employees was protected. There was evidence that the strikers not only did not disclose their grievance prior to the walkout but refused to discuss it after the walk- out. The court went further, however, and found that since the strike was called to protest the discharge of a supervisor (foreman of the powerpress)- it was not protected under Section 8(a) (1) or (3) of the Act.5 The instant case is clearly distinguishable. The strikers here did make the effort, through Neumann, to discuss the grievance prior to the strike. Not only was the Employer, by notice to its foreman, advised of the reason for the strike at the time of the walkout but before the discharges were made Field Representa- tive Tomassetti requested a discussion of the strike and its causes in an attempt to reach an amicable solution. In fact, at the very time Respondent issued its discharge letters the Union was awaiting an anticipated response to its overtures for settlement. The decision to discharge was made without notice to Tomassetti and in utter disregard of the rights of the employees to engage in concerted activity. Thus the facts which led the court in the Ford case to conclude that no discrimina- tory motive had been established were not present here. They were, on the other hand, conspicuously absent and the exception to the general rule carved out by the Ford case cannot be applied. Respondent was fully aware of the reason for 3 N L R B v. J. I. Case Company, Bettendorf Works, 198 F. 2d 919 (C.A. 8), cert. denied 345 U.S. 917; N.L R.B. v. Globe Wireless, Ltd., 193 F. 2d 74'8 (C.A. 9) ; Time-O- Matic Inc. v. N.L.R.B , 264 F. 2d 96 (C.A. 7) ; N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F. 2d 503 (CA. 2) ; John S. Swift Company, 124 NLRB 394, Member Rodgers dissenting; Cleaver-Brooks Mfg. Corporation, 120 NLRB 1135 (dis- charge of a supervisor ) ; Summit Mining Corporation , 119 NLRB 1668. 4N.L.R.B . v. Ford Radio and Mica Corporation , 258 F. 2d 457 ( C.A. 2), remand accepted and order modified 122 NLRB 34 r, The same court is in 'agreement with the Board and other courts in holding that a strike to protest the discharge of a fellow employee is protected . In the Peter Cailler Kohler case, supra, Judge Hand stated, page 505: When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support , they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved work- man is the only one of them who has any immediate stake in the outcome. The rest know that by their action each of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping, and the solidarity so established is "mutual aid" in the most literal sense, as nobody doubts. THE NATIONAL AUTOMATIC PRODUCTS COMPANY 679 the strike and was likewise aware that a reasonable and speedy settlement was within reach. In Kennecott Copper Corporation, Ray Mines Division, 121 NLRB 801, cited by Respondent, the Trial Examiner found that the employees, on the basis of their own testimony, engaged in individual and not concerted activity when they quit em- ployment.6 In affirming the Board said: Indeed, on the basis of the evidence . . . we are unable to find that the com- plainants were engaged in conduct which amounted to a strike, or in any other concerted activity, at any time. Neither the complainants themselves, nor the General Counsel, contend otherwise. Again, this is not true here. The walkout of the employees was strike action in its purest form-concerted, deliberate, and immediate. No bargaining contract had been made and no grievance procedure had been established to provide for other redress. In N.L.R.B. v. Jamestown Veneer & Plywood Corporation, 194 F. 2d 192 (C.A. 2), the court denied enforcement to a Board order reinstating four employees who quit work to protest the shortness of a layoff notice. The court held that their leaving work had nothing to do with "collective bargaining or other mutual aid,or protec- tion" either present or future and that the quitting of a job without cause is ground for refusal to reinstate the quitters. It appears that the court gave an unusually restricted, construction_ to, the words "other mutual aid or protection" but, again, this same court has given statutory protection to a walkout in protest of a discharge. Peter Cailler Kohler, supra, footnote 5. The other cases cited by Respondent I find clearly inapposite. In V. O. Milling Company, 43 NLRB 348, the Board held that the refusal to reinstate strikers based upon a conditional application (the condition being that the employer negotiate a contract with the union) was pot a violation of Section 8(a)(3). In Office Towel Supply Company, Incorporated, 97 NLRB 449, the strikers had,not been discharged but had been replaced and the Board held that there was no evidence of- a discrimi- natory refusal to rehire them after replacement. In Barby's Frosted Foods, Inc., 108 NLRB 797, the Trial Examiner found insufficient evidence to support a find- ing that the discharge of five employees was due to their concerted protest of the discharge of another employee. He found- that no concerted activity took place.? Nor do I find any assistance to Respondent's cause in those cases which provide exceptions to the general rule that an employer may not discharge employees for engaging in the right to strike. In Doyle W. Terry, d/bla Terry Poultry Com- pany, et al., 109 NLRB 1097, the Board sustained the discharges of two employees who left the production line without permission in violation of 'a reasonable and well-established rule. Substantial 'damage was incurred as a result and the Board further found that there was nothing in the record to show that permission to leave the line to present their grievance would not have been granted if requested. (See also Santa Clara Lemon Association, 116 NLRB 44.) Nor does the action here taken by the strikers justify discharge because substantial property damage might result from the walkout; 6 plant property was unlawfully 'seized and' held; 0 the strike was unlawful in its incipience; 10 the strike was for an unlawful purpose.il Respondent urges that the action taken by the employees in the instant case exposed the Respondent to the danger of a complete shutdown and a failure to complete its contractual obligations. Quite true, but every strike involves action detrimental to the employer's interests and likewise involves economic distress and hazard to the striking employees. But neither the economic damage to the 9 The Trial Examiner also equated the compulsory grievance procedure with a no- strike clause and found the action Unprotected. 1 The following cases cited by the Respondent refer to the insufficiency of the evidence to support discriminatory motive in cases of individual discharges, not strike action. N.L.R B. v. West Point Mfg . Co., 245 F. 2d 783 (C A. 5) ; Campbell & McLean, Inc., 118 NLRB 967; IZaleyvilie Textile Company, Inc., 118 NLRB 1157; N.L.R.B. v. Arthur Winer, Inc., 194 F. 2d 370 (C.A. 7). 8 Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., 218 F 2d a119 (CA. 5) e N.L.R.B. v. Fansteel Metallurgical Corporation , 306 U.S. 240. 10 Southern Steamship Company T. N.L.R.B., 316 U.S. 31. u N.L R B. v. Sands Manufacturing Co., 306 U.S. 332; The American News Company, Inc, 55 NLRB 1302. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer, even where specially planned,12 nor the failure of the strikers to give adequate notice,13 warrants their discharge. I find the strike which took place on September 9, 1959, to protest the discharge of Ziolkowski was a lawful economic strike. I find that Respondent was put on notice of the reason for the strike prior to the walkout and that efforts to conciliate the dispute and negotiate a return of the strikers were made by the Union prior to the discharge of the strikers. Rather than negotiate the issues in dispute the Respondent elected the recourse of summary discharge. I find that the motive which actuated the Respondent was reprisal against its employees for their exercise of their right to strike. I can only infer, and the inference is not necessary to any finding made herein and none has been based thereon, that Respondent saw an opportunity to strike a crippling blow at union solidarity before bargaining nego- tiations took place and seized it. The inference fits the circumstances and Respond- ent's conduct. I therefore find the discharge of the strikers violative of Section 8 (a) (1) and (3) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. The affirmative provisions of the recommended order require discussion. Certain of the employees whom I have found to have been discharged in viola- tion of the Act have since been reemployed.14 The record indicates that Joseph Bianchi was reemployed on' September 17; Pedro Cardone, September 28; Frank Uchalik, September 28; Juan Ortega, October 5; Edward Zenuh, October 5; and Santa Napoli, February 1, 1960. Because there is some dispute in the record it must be determined during compliance proceedings whether or not these employees were reemployed without prejudice to their seniority and other rights and privileges. For this reason, and also for the reason that some or all of them may be entitled to backpay, they are included in the recommended order. As to all the other em- ployees named in schedule A of the complaint, the record indicates that they have not been reemployed and with the exception of Philip Todaro, have not been offered reemployment. I shall recommend that the Respondent offer the following employees full and immediate reinstatement to their former or substantially equivalent positions, without prejudice'to their-seniority or-other rights and privileges, dismissing if necessary, all employees hired by Respondent since September 10,' 1959: George Angiletta Sally Asa] John Bassen Joseph Bianchi Pedro Cardona Luis Cardona Augustin F. Caron Donat Caron Pauline Cugno Michel Holowaty Robert H. Johnson Grego Marycz Santa Napoli Joseph Neubauer Albert C. Neumann Juan Ortega Angel L. Perez Julia Ragalis William G. Reisaek Richard Ruck Patsy Safflotte Stanley Smigiel Mary Stevens Susan Stone Philip Todaro Olegario Traverso Frank Uchalik Oneil J. Violette Edward Zenuh If there is not then sufficient work available for the remaining employees, including those offered reinstatement, all available positions shall be distributed among them without discrimination because of union membership or activity, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by Respondent in the course of its business. Respondent shall thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. 12 N L R.B. v. M & M Bakeries, Inc., 271 F. 2d 602 (C.A. 1). " Morris Fishman & Sons, Inc., 122 NLRB 1436. 1* Vidal Ruiz returned to work the day following the walkout, September 10 He was not discharged and he is not included within the scope of the order. The correct name of the person designated in schedule A as Patsy Sameato is Patsy Saffiotte and the complaint is amended accordingly. THE NATIONAL AUTOMATIC PRODUCTS COMPANY 681 I shall further recommend Respondent be required to make each of the striking employees whole for any loss of earnings he may have suffered by reason of dis- crimination from the time the strikers indicated a willingness to abandon the strike and return to work until reinstated or until an offer of reinstatement was made, whichever was earlier. On the basis of the record herein and credible testimony 15 I find that the strikers indicated their willingness to abandon the strike and return to work on September 28, 1959, when Field Representative Tomassetti requested their reinstatement of Sullivan, Respondent's labor relations consultant . He was told by Sullivan that there was no change in the Company 's position; that the strikers had been discharged for cause; that those strikers who had been rehired had been rehired as new employees; that returning strikers would have to make individual application for work; and that decision would be made on an individual basis. Clearly, then, Respondent was continuing the discriminatory practices initiated by the discharges on September 10. Under these circumstances I find the offer made by Tomassetti sufficient and further individual application not only unnecessary but futile . As the Trial Examiner pointed out in the Massey Gin case,16 unfair labor practice strikers and economic strikers are required to make an unconditional offer to return but strikers who have been discharged in violation of Section 8(a)(1) and ( 3) are required to do no more than establish that they have abandoned the strike and are willing to return to work. Subtle though the distinction may be, it is a valid one and should be observed. This is so because the discrimination lies in entirely distinguishable kinds of action . When the strikers have not been discharged no discrimination is found until application for reinstatement is made. If reinstatement is then denied, the nature of the application and its concomitant circumstances are a part of the General Counsel's prima facie case, as to all of which he has the burden of proof . In the case of discharged strikers, however, the prima facie case lies in the finding of discrimina- tion in the discharge. At the time of application for reemployment the discharged strikers are in the same position as any other discriminatee under 8(a)(3), they are entitled to their jobs as a matter of right . Having found that the Respondent violated the Act on September 10 it is unnecessary to find that it violated it again when appli- cation to return was made. It is only necessary to show that the strikers were willing to go to work. In fixing September 28 as the first date of a valid offer I have rejected the conten- tion of the General Counsel that such offers were made by Tomassetti on September 10 and 16. While such offers were made they were made as part of a proposed agree- ment under which the employees would return to work and Ziolkowski would go back to centerless grinding on a temporary basis. Since the discharge of Ziolkowski was a lawful act the Respondent had the right to reject this proposal . The offer of September 28, on the other hand , was not so bound to the request for reinstatement of Ziolkowski.17 Nevertheless, it too, was unequivocally rejected and Respondent elected to stand on what it thought was its lawful prerogative . I therefore find it unnecessary to consider the subsequent applications made by Tomassetti except that the failure on the part of Respondent to do more than "note " the unconditional offer made by Tomassetti at the hearing confirms the conclusion already reached. Respondent was still standing by its putative right to discharge employees for striking. In reaching the conclusion that on September 28 a valid offer to return was made, I have given consideration to the fact that the picket line was still in existence on the day. I do not find, however, that a purpose of the picket line was the reinstate- ment of Ziolkowski . The record is barren with reference to the purpose of the picket line. Picketing started on September 14 and ended October 9. It is important to note that it was not established until after the strikers were discharged-during the 2-day period between the discharge of Ziolkowski and the receipt by the strikers of their discharge notices no picketing occurred. I can only infer that the primary purpose of the picketing was to protest the discharge of the strikers. To then draw the inference that the strikers would not have abandoned the line unless Ziolkowski, is I have already resolved (footnote 2, supra) conflicts between the testimony of Tomassetti and Sullivan in favor of Tomassetti. This finding specifically anDlies to conflicts In their testimony with respect to offers of reinstatement. 16 Massey Gin and Machine Works, Inc, 78 NLRB 189, 203. 17 Tomassetti told Sullivan that the Union was filing unfair labor practice charges and making the reinstatement of the strikers and of Ziolkowskt a part of contract negotia- tions. There is nothing to indicate that reinstatement of the strikers and of Ziolkowski were still interdependent issues. The previous offer by Tomassettl had been to return Ziolkowski as part of a "package deal." Now the issues were clearly separable. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too, was restored to employment, is to read in their minds an intent which they did not make manifest by their acts . The sole purpose served by such telepathy is the relieving of the Respondent from the consequences of its own unlawful conduct. Since Respondent had assumed and maintained so uncompromising a position with respect to its right to discharge the strikers and deny them reinstatement, the strikers had no immediate recourse other than picketing to voice their protest and seek reem- ployment. They could not be required to abandon this recourse until its objective had been attained . I find that the continuance of the picketing entirely compatible with an expression of willingness to go back to work. I shall therefore recommend that backpay be computed on a quarterly basis in accordance with the Woolworth formula from September 28, 1959 , until employees are offered reinstatement or were reemployed , whichever is earlier. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act. 2. United Electrical, Radio, and Machine Workers of America , (UE) is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees for engaging in concerted activity for their mutual aid or protection the Respondent violated Section 8(a) (1) of the Act 18 and by the said discharges the Respondent discriminated against them in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Is N.L R.B. v. J. I. Case Company, supra; Kallaher and Mee, Inc., 87 NLRB 410. Local 450 of the International Union of Electrical , Radio and Machine Workers, AFL-CIO [Sperry Gyroscope Company, Division of Sperry Rand Corporation ] and Mildred M. Britt. Case No. 2-CB-.304. August 16,1960 DECISION AND ORDER On April 22, 1960, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in any of the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 128 NLRB No. 84.