Vitronic Division Of Penn Corp.

VITRONIC DIVISION OF PENN CORPORATION Vitronic Division of Penn Corporation and Norma Bennett and Billy Ray Hall. Cases 14-CA- 10613-1 and 14-CA-10613-2 October 20, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On June 5, 1978, Administrative Law Judge John C. Miller issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and Charging Party Hall filed a brief opposing Respondent's exceptions. 2 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 conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Vitronic Division of Penn Corporation, Doniphan, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent contends that the complaint is barred by Sec. 10(b) of the Act on the ground that the violation occurred in September 1976 when the striking employees were required to sign requests for reinstatement, and not in April 1977, as alleged in the complaint, when they were terminated for failure to renew said requests for reinstatement. We find that this contention is without merit. Respondent did not raise this defense in its answer, at the hearing, or before the Administrative Law Judge. It raised the 0I(h) issue before the Board for the first time in its exceptions and brief in support thereof to the Decision of the Administrative Law Judge. The Board has long held that the 10(b) proviso is a statute of limitations, and is not jurisdic- tional. It is an affirmative defense and, if not timely raised. is waived. Chica- go Roll Forming Corp., 167 NLRB 961, 971 (1967): Luther W. Shumate. er al v. N.LR.B., 452 F. 2d 717 (4th Cir. 1971). Thus, Respondent's belated at- tempt to raise a lO(b) defense in this proceeding is clearly untimely In any event, even assuming that the defense was timely before us. we firli that there is no basis for Respondent's contention, since the termina- ,rltJ of the employees is the operative event from which the 10(b) period runs. In this regard, the reinstatement right of economic strikers is created by the statute and not by a respondent's reinstatement request forms. N.L.R.B. v. Fleerwood Trailer Co., 389 U.S. 375. fn. 4 (1967): The Laidlaw Corporation, 171 NLRB 1366, 1369 (1968). 414 F.2d 99 17th Cir. 1969), cert denied 397 U.S. 920 (1970). The parties stipulated that the economic strikers named in the complaint were terminated in April 1977 and the instant charges were filed in August 1977. Accordingly, we find that the charges were timely filed. 2 he General Counsel has filed a motion requesting the Board to amend the complaint by adding the name of Betty Nance as an alleged discrimina- tee and to remand the proceeding to the Administrative Law Judge to re- ceive additional evidence relating to her status. A brief in support of this motion was filed by Nance. The motion is hereby denied as the General Counsel seeks to adduce evidence which was available on the date of the hearing and thus does not constitute newly discovered evidence. DECISION STATEMENT OF THE CASE JOHN C. MILLER. Administrative Law Judge: This case was heard in Poplar Bluff, Missouri, on December 14, 1977, on the basis of a complaint issued on September 23, 1977, alleging that Respondent, on or about September 15, 1976, and thereafter refused to recall nine named employ- ees who had engaged in an economic strike and thereafter, on or about April 14, 1976, the Respondent terminated such employees, all in violation of Section 8(aXI) and (3) of the Act. Upon the entire record in this case,' including a stipula- tion executed by all the parties, and my observation of the witnesses and their demeanor, which testimony was deemed supplemental to the stipulation, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation authorized to do business under the laws of the State of Missouri. During all times material, Respondent has maintained an office and place of business in Doniphan, Missouri, where it is engaged in the manufacture, sale, and distribution of vinyl plastic products and related products. During the year ending Au- gust 31, 1977, Respondent manufactured and sold products valued in excess of $50,000 which were shipped to custom- ers located outside the State of Missouri. The Respondent admits the above factual allegations, and I find that Re- spondent has been at all times material an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent admits, and I find that Local 825, United Rubber, Cork, Linoleum and Plas- tic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Bockgrot.nd The hearing opc!l, i v. ith ..l thc pertts: involveu herein executing and aubm.iting a stipulaticn oil the iacts which stated, inter alia, at paragraph II, B, that this stipulation and exhibits "shall be the sole and only record considered by the Administrative Law Judge." Thereafter, however, Respondent's motion to correct record is not objected to by counsel for the General Counsel and, it appearing that the corrections are essentially typographical in nature, the motion to correct is granted in its entirety. 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for Charging Party Hall called a number of wit- nesses stating that he had expressly reserved the right to call witnesses for supplemental testimony and that he had so informed counsel for the General Counsel and counsel for the Respondent. Counsel for the Respondent objected, and counsel for the General Counsel objected somewhat later when he perceived that the stipulation might be un- dermined.2 Counsel for the General Counsel and Respondent had apparently agreed to merely submit the stipulation as the record in the case on the premise that only a question of law need to be litigated and resolved. Counsel for Charging Party Hall continued to maintain that he had previously informed the parties that he reserved the right to call wit- nesses. The General Counsel explained that his approach was simply to submit the question of law directly to the Administrative Law Judge on the premise that the Respon- dent's conduct as set forth in the stipulation was inherently destructive of employees' Section 7 rights and therefore violative of Section 8(a)(l) and (3) and unlawful motiva- tion inferred. Counsel for the Charging Party stated that he wished to adduce testimony to proof of "actual" discrimi- natory motivation. Respondent's counsel protested the tak- ing of any testimony as inconsistent with his agreement with the General Counsel and stated that he was not pre- pared to proceed to litigate any factual issues. It is apparent that there was a misunderstanding among counsel as to whether testimony was to be taken and on what subject matter. Upon careful consideration, I con- cluded that the case could in fact be tried upon two bases: (1) on the General Counsel's theory that the stipulated facts were sufficient to establish a discriminatory motive; (2) on testimonial evidence that the Respondent was dis- criminatorily motivated in inaugurating and carrying out its requirement that employees renew their request for rein- statement 6 months after their initial application in order to keep active their application for reemployment. I concluded that the case could be decided on either or both grounds and, as I find that the Charging Party's case was not in direct conflict with the General Counsel's theo- ry of the case but supplemental to it, I concluded that I would hear the testimony. In overruling Respondent's ob- jections, I noted that at a later point I would consider granting the Respondent additional time if he felt preju- diced by the testimony proffered. While normally the Gien- eral Counsel is responsible for the manner in which the case is presented, I concluded that the proffer of testimony in these circumstances was supplemental to and in addition to the theory of violation set forth by the General Counsel. Since the hearing was in progress, I was reluctant to fore- close testimony to be adduced by the Charging Party de- snite the language in the stipulation. B. The Issue Whether an Employer may lawfully terminate economic strikers' Laidlaw rights, i.e., preferential consideration for reemployment after permanent replacements leave, by hav- 2 At p 25 of the record, colinsel for the (ieneral ( ounsel stated "v,c would have no objection to testimlonn or evidence (on the matter ,r[ f1riilnls" ing them execute an application form in which they ac- knowledge that they must renew their applications within 6 months of their original application. The alleged discrimi- natees did not timely renew their requests for reinstate- ment. In this case Bennett and Hall attempted to untimely renew their requests for reinstatement but were refused. The reinstatement request form in question was as fol- lows: Date Time- I hereby request to return to work for Vitronic Divi- sion of Penn Corp. when work becomes available that I am qualified to perform. I understand this request must be renewed six months from this date. Sign [Signature of employee] Copy to employee C. The Stipulation (Joint Exh. I (a)) Inter alia, the stipulation provided as follows: (1) On or about April 6, 1976, Respondent's employees engaged in an economic strike which they terminated on or about August 11, 1976. (2) During the economic strike, Respondent hired per- manent replacements for Billy Ray Hall, Norma Bennett, Kathy Deckard, Nellie Dawes, Bernita Phelps, Sarah Crih- field, Ronnie Foulk, Willie Leonberger, and Velma Brown, all of whom are alleged here as discriminatees. (3) On September 14, 1976. Respondent mailed copies of a notice to certain employees (Exh. 2 herein) advising them that if theN wished to be considered for recall when an opening occurs, they must sign a "Request for Reinstate- ment" form by 8 a.m. on September 20, 1976 at the Vitron- ic office. (4) Each of the alleged discriminatees herein submitted a signed request for reinstatement which was accepted by the Respondent. k5) Respondent placed the names of all replaced employ- ees who executed reinstatement forms on a list to be ac- corded preferential recall rights when job openings oc- curred. (6) Apart from the copy of the request for reinstatement, the Respondent sent employees no other notice of the re- quirement that they renew their request for reinstatement within 6 months, nor was any other attempt made to re- mind employees of the necessity to renew their applica- tions for reinstatement. Employees did receive duplicates of their original request for reinstatement which informed employees that he or she must renew the request within 6 months in order to maintain eligibility for reinstatement or recall. (7) None of the nine alleged discriminatees timely re- newed his reinstatement request in the next 6 months. (8) On April 14, 1977, Respondent mailed employees a letter advising them that "by not filling out a reinstatement 46 VITRONIC DIVISION OF PENN CORPORATION slip, your personnel file has been removed from our active employees files and put in our 'former employee' files" (Joint Exh. 4). (9) Shortly after receiving Respondent's April 14, 1977, letter of Respondent, Charging Parties Bennett and Hall requested permission to sign and submit a new request for reinstatement, but their request was denied. Bennett and Hall and other alleged discriminatees state they have not abandoned their intent to seek reinstatement. (10) Respondent takes the position that by failing to re- new their offers of reinstatement 6 months after their initial submission of requests for reinstatement, employees have forfeited their right to preferential reinstatement rights, and continues to refuse to accord such employees any rights to reinstatement. (11) Charging Parties Bennett and Hall filed charges with the National Labor Relations Board on behalf of themselves and the remaining discriminatees. (12) Respondent admits it hired new employees after the 6-month limitation had expired. D. The Testimonial Evidence Counsel for the Charging Party called five witnesses, of whom three were alleged discriminatees. Norma Bennett, an alleged discriminatee, credibly testi- fied that, the day after receiving a letter dated April 14. 1977, from Respondent advising that inasmuch as she had not renewed her application for reinstatement in the 6- month period following her original reinstatement request, she was being placed in the former employee file, she called Bill Wright, personnel director, and asked if she could reinstate (her application). He replied no. Billy Ray Hall, another alleged discriminatee testified similarly that after receiving Respondent's letter he asked Bill Wright if he could sign a reinstatement form. Wright informed him that "time had run out." A third employee, Foulk, merely affirmed that he had originally filled out a reinstatement form in 1976 and that, in September 1977, he filled out a job application. He has not been rehired as of the date of the hearing. Lester Wright, Respondent's plant manager, called as an adverse witness by counsel for the Charging Party, conced- ed that they had hired some people for jobs that strikers had done before and that new personnel had been hired since the expiration of the 6-month reinstatement period. However, examination by his own counsel brought out that two-thirds of the strikers had been rehired and that after people [strikers] had made application, the strikers that wanted reinstatement were rehired, and in a few cases Re- spondent hired for specific positions, where the former em- ployees were not qualified. Lester Wright gave credible and undisputed testimony that some 20 to 30 strikers who had renewed their rein- statement applications had been rehired, and that in fact all strikers who had renewed their reinstatement applica- tions had been rehired. Bill Wright, personnel director and son of the plant man- ager, did not recall talking to either Norma Bennett or Billy Ray Hall but stated that if such conversations did occur notations of such conversations would be in their personnel file. He did not have such files with him nor were they subpenaed. He did state that he was aware that the 6-month period was running out but felt no obligation to notify former employees of such fact. Duplicates based upon the date of their original reinstatement application forms of the reinstatement forms were given to employees, and such form, without setting a specific date, did state that such reinstatement applications had to be renewed in 6 months. Counsel for the General Counsel stated that all the dis- criminatees listed in the complaint were interested in rein- statement with the Respondent. E. Position of the Parties Counsel for the General Counsel contends that Respon- dent's termination o' economic strikers' preferential recall rights is inherently destructive of employees' rights and that unlawful motivation can be inferred from such con- duct, particulary in the absence of any showing of business justification.' Counsel for Charging Party Hall contends that, in addi- tion to the grounds urged by the General Counsel, animus against the strikers is established by the testimony of Lester Wright, Respondent's vice president and plant manager, that Respondent hired new people instead of the strikers and that after the 6-month reinstatement period had ex- pired it hired other people and did not hire or offer to hire Hall or the other alleged discriminatees. Counsel for the Charging Party relies on rationale set forth in Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973), in which the Board stated that it saw no reason why Respondent could not request employees on preferen- tial hire list to notify Respondent whether they desired to maintain their recall status. The Respondent further con- tended that there is no evidence of animus, in that it hired two-thirds of the strikers back, and approximately 20 em- ployees who did renew their requests for reinstatement were rehired. Only the nine employees who did not timely renew their requests for reinstatement have not been re- hired. F. Discussion 1. Unlawful motivation inferred from admitted acts of Respondent With respect to General Counsel's theory of this case, the principle has been well established that economic strik- ers who had made unconditional applications for reinstate- ment are entitled to be offered the opportunity to fill va- cancies when permanent replacements leave for which they are qualified and that this continuing right can be defeated only by the employer's showing "legitimate and substantial business justification." This principle was established by the Board in Laidlaw, supra, which in turn evolved from the Supreme Court's decision in Fleetwood Trailer, supra. The \ L R B P. Itrlee,,,tld 7raei, ( ,. 389 L S 37s fn 4 (1967): Iachil, ('rp-ratlonr 171 Nl.RB 1366. 1369 1968). enfd 414 F 2d 99 (7th (Or 1969. cert denicd 39' 1 S Q20 { 1970) 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duration of the right for preferential recall is at issue here. There have been several subsequent Board decisions inter- preting the duration of the reinstatement rights of econom- ic strikers, and they warrant further discussion. In the Brooks Reseach case,4 an employer and union agreed that preferential hiring rights of certain employees extended to I year. Thereafter, the employer by letter uni- laterally notified 43 unrecalled employees and informed them that, to make it uniform for all employees, the dura- tion of the preferential hiring list would be extended to I year from the date of the application of reinstatement. The Board rejected the argument that economic strikers should be equated with laid-off employees, stating that the rein- statement rights of strikers are statutory. In that decision, the Board stated that it found it unnecessary to consider the suggestion of the Court of Appeals for the Fifth Circuit in the American Machinery case, in which the court stated: . . .he [respondent employer] might notify the strikers when they request reinstatement of a reasonable time during which their applications will be considered cur- rent and at the expiration of which they must take affirmative action to maintain their current status. [American Machinery Corp. v. N.L. R.B., 424 F.2d 1321, 1327.1 After citing and distinguishing the above language of the Fifth Circuit Court on the basis of differing facts, the Board stated in Brooks: However, in line with the Fifth Circuit's suggestion we see no reason why the Respondent cannot at reason- able intervals request the employees on the preferen- tial hiring lists to notify it whether they desire to main- tain their recall status. 1202 NLRB 634 at 637.] The Respondent contends that it relied on the Board decision in Brooks as well as the American Machinery Corp. case in instituting the reinstatement procedure here. The question thus arises whether the Board's adoption at least in part, of certain procedures approved by the Fifth Circuit legalizes the Company's specific actions here. The Respondent argues with considerable merit that the procedure utilized here literally complies with the cited views of the Fifth Circuit Court in American Machinery, supra. The Board itself expressed some reservations as to the court's language but did volunteer a procedure that could be utilized which appeared to place on the Employer the burden of notifying employees at reasonable intervals of the necessity to renew their reinstatement applications. It should be noted that Respondent has not set forth either evidence or argument that the procedure utilized here was prompted by "legitimate and substantial business justification." The most that could be inferred here is that the procedure was administratively convenient for the Re- spondent. In any event, I conclude that both the Fifth Cir- cuit Court and the Board would carefully review the factu- al context and the equities involved before determining the applicability of any dicta taken from their prior decisions. 4 Brooks Research & Mfg.. Inc.. 202 NLRB 634 (1973). see also Laher Spring & Electric (Car (orp., 192 NLRB 464 (1971). In resolving the issue posed, I start with the Board-stated premise that the rights of economic strikers to preferential recall, when permanent replacements have left, is a statu- tory one. It necessarily follows that employees' waiver of statutory rights will not be lightly inferred. Respondent contends here that signing a request for reinstatement which contained an acknowledgment that they must renew their request for reinstatement 6 months from the date this reinstatement form was submitted and by their subsequent failure to renew employees waived or forfeited their recall rights. However, employees had no choice since Respondent unilaterally included such acknowledgment on the request for reinstatement. Employees either signed this reinstate- ment form or presumably had no rights to reinstatement. Secondly, it appears clear, and I find, that Respondent's use of this form containing such acknowledgment shifted the burden of notification to the employees concerned with- out any further action by the Respondent. Thirdly, employees Bennett and Hall, shortly after re- ceiving notice that their preferential recall rights were ter- minated. attempted to renew their reinstatement requests and were denied because time had "run out." The remain- ing seven employees alleged as discriminatees also had not timely renewed their requests for reinstatement and stand in the same position as Bennett and Hall. Thereafter, Respondent admittedly hired new employees without prior experience without considering the nine dis- criminatees here. Respondent would consider such dis- criminatees only if they submitted a regular job application form. It was stated by counsel for the General Counsel that all nine discriminatees were still interested in employment with the Respondent. Lastly, I find that Respondent's re- quirements that former employees submit a regular em- ployment application in order to be considered at all after they failed to timely renew their reinstatement request places an additional burden on former strikers that seems unwarranted and inherently discriminatory. To illustrate, after employees Bennett and Hall indicated they wished to renew their reinstatement requests, Respondent not only refused to permit it because time had "run out" but did not consider them for employment equally with new applicants unless they filled out a regular job application. As former employees who were admittedly satisfactory and for whom Respondent already had personnel files, this additional re- quirement could only have been for the purpose of assur- ing that former strikers were not rehired. In sum, I find that in the circumstances related previously Respondent's failure to consider former employees (who did not timely reinstate for preferential recall) equally with other new em- ployee applicants is an additional factor to be taken into consideration in determining whether Respondent's overall conduct was inherently discriminatory. 2. Whether in the alternative the record otherwise discloses evidence that the procedure utilized by Respondent was discriminatorily motivated Proof of an actual discriminatory motivation, if it exists in this record, must be based on the testimony of Lester Wright, plant manager, and his son Bill Wright, the person- 48 VITRONIC DIVISION OF PENN CORPORATION nel manager, who were called as witnesse the Charging Party. Lester Wright testified initially that he ployees for jobs which the strikers could amination by his own counsel, he testifi mately two-thirds of the strikers had been all those strikers who timely renewed the applications, some 20 to 30 in number, h hired. He further testified that while som were hired ahead of the strikers it was strikers were not qualified to perform.5 He that the personnel department, working attorney, was responsible for setting this e cy. Again Lester Wright testified as follom Q. ... you did, in fact, hire some no experience, is that correct? A. [Lester Wright] Some new empl in certain classifications, whatever ji quired. Q. Did any of the strikers who h called have any of those job skills? A. No. However, on redirect examination L. V follows: Q. O.K., during the first six mon replacements, new employees, that w A. We did some, yes. Q. Were there any of the strikers w plied for reinstatement who could pe jobs that you hired new people to pe A. It is very fuzzy in my mind. I d some new ones during that time and everyone, I think we recalled them jobs. Q. You did hire new people durin period; do you know what jobs you A. Without checking the record, n Q. Do you know of any job that N persons, or any new person that was during that six-month period? A. I am not positive without checl Q. Do you know of any job that that none of these charging parties art A. Yes, we have got some. In sum, Lester Wright's testimony is c confusing despite repeated attempts to mony. I am unable to determine wheth resulted from honest confusion due to his suit records and the fact that he was not in the hiring process or whether he was pt ing to be contradictory or evasive. Abse testimony or documentary evidence, I am his testimony alone to establish actual at spondent. As to Bill Wright, the personnel direct( dent, his testimony was consistent with t 'Transcript, p. 30-31. es by counsel for e hired new em- perform. On ex- ed that approxi- rehired, and that eir reinstatement tad also been re- e new employees for jobs that the e further testified along with their employment poli- ns: new neonle with that he affirmed that he was aware that the 6-month limita- tion was running out but felt no obligation to notify the employees. He further conceded that subsequent to the ex- piration of the 6-month period in which the nine alleged discriminatees failed to timely renew their reinstatement requests, Respondent did hire employees who performed jobs that the nine discriminatees could perform. I find and conclude that there is insufficient proof of actual union animus, apart from the stipulated facts, for me to make the additional finding that Respondent's ac- tion in implementing this reinstatement procedure was dis- criminatorily motivated. G. Findings and Conclusions I rr -- I find that the procedure utilized here was inherently loyees were hired destructive of employee rights and that a discriminatory )b skills were re- motive can be inferred. In so concluding, I note that Respondent unilaterally set had not been re- a 6-month limitation on employees' recall rights without any legitimate and substantial business justification. Mere administrative convenience is insufficient to justify the pro- cedure here. Nor can the employer shift the burden of notifi- Vright testified as cation to the employee at some future date as a prerequisite for an employee to preserve his statutory recall rights. Re- ths, did you hire spondent's refusal to consider the "untimely" requests sev- vere not strikers? eral days after the 6-month period expired and its hiring of new applicants thereafter without at least giving equal con- * * sideration to the former strikers lend credence to the view that Respondent's procedure was designed to eliminate the vho originally ap- recall rights of economic strikers and was, thus, inherently rform any of the discriminatory. Such action is violative of Section 8(aX3) rform? and (1) of the Act.6 So know we hired that we recalled that we recalled CONCLUSIONS OF LAW to their original 1. Respondent Employer is an employer engaged in hired that sx-month commerce within the meaning of Section 2(6) and (7) of hired them for? as hired by new on't. 2. By terminating the preferential recall rights of Norma as hired byfor any job Bennett, Billy Ray Hall, Willie Leonberger, Sarah Crih- field, Kathy Deckard, Nellie Dawes, Ronnie Foulk, Velma Brown, and Bernita Phelps, the named discriminatees, Re- you filed [filled] spondent has engaged in unfair labor practices within the you qualified to filled] meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ontradictory and clarify his testi- THE REMEDY ler his testimony sinability to con- Having found that the Respondent has engaged in cer- directly involved tain unfair labor practices, I shall recommend that it be irposely attempt- ordered to cease and desist therefrom and take affirmative nt other credible remedial action, including the reinstatement of the discrim- unable to rely on iimus by the Re- °Brooks Research & Mfg Inc, 202 NLRB 634 636-637 (1977). Laher Spring & Elecrric Car Corp.. 192 NLRB 464. 466 (1971). 1 also rely on the )r of the Respon- fact that. although striker Ronnie Foulk submilted a regular application for employment in September 1977. he had not been rehired as of the date of he stipulation, in this hearing. Decerrber 14. 1977. although qualified for a number of posi- tions At p 57 of the record. Bill Wright conceded that he has hired new employees since September 1977. 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inatees and making whole the employees for any loss of earnings they incurred as a result of Respondent's discrimi- natory conduct, together with interest thereon to be com- puted in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 7 The dates the named discrimina- tees would have been rehired if their application for rein- statement would have continued in force as well as amounts of backpay can be determined in compliance pro- ceedings. The Respondent shall also be required to post the usual remedial notice at the premises of his facility. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ornmended: ORDER The Respondent, Vitronic Division of Penn Corpora- tion, Doniphan, Missouri, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Terminating the preferential recall rights of econom- ic strikers because they failed to renew their request for reinstatement within the time unilaterally set by the Re- spondent. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer immediate and full reinstatement to Norma Bennett, Billy Ray Hall, Willie Leonburger, Sarah Crih- field, Kathy Deckard, Nellie Dawes, Ronnie Foulk, Velma Brown, and Bernita Phelps discharging if necessary, any new employees hired since the expiration of the 6-month limitation and make the aforenamed discriminatees whole for any loss of earnings they may have suffered as the re- sult of their failure to be offered reinstatement with interest as set forth in the remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Doniphan, Missouri, copies of the attached notice marked "Appendix." 9 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 14. after being duly signed by Respondent's represen- tative. shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicious places, including all places where notices to employees are customarily posted. Rea- sonable 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 Rcgional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. See. genera.lI. IiU Plurmbtng S Iteatritng (Co. 138 NLRB 716 (1962). In tilhe event uk, exception.. ale filed as provided by Sec. 102.46 of the Rule' and Regulations of the National Labor Relations Board, the findings, c,,nilusi)ns,. and recl)mm nded Order herein shall, as provided in Sec 10248 of the Rules and Rq:gulations. be adopted by the Board and become its findings. conclusions. and Order, and all objections thereto shall be deemed waiLed for all purposes. In the esent that this Order is enforced by a judgment of the United States (Court of Appeals. the words in the notice reading "Posted by Order of the National Iabhor Relations Board" shall read "Posted Pursuant to a Judgment of the L nited States C ourt of Appeals Enforcing an Order of the Nationartl I abor Relations Board" APPENDIX NOTI(FE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIi.l NOT terminate the preferential recall rights of economic strikers because they failed to renew their requests for reinstatement within the time unilaterally set by us. WE WlIt. NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under the National Labor Relations Act. WE WILL reinstate Norma Bennett, Billy Ray Hall, Willie Leonburger, Sarah Crihfield, Kathy Deckard, Nellie Dawes, Ronnie Foulk, Velma Brown, and Ber- nita Phelps to jobs for which they are qualified, dis- charging, if necessary, any employees hired since the termination of their recall rights and make them whole for any loss of earnings, including interest, they may have suffered as a result of such action. VITRONIC DIVISION OF PENN CORPORATION