Hot Shoppes, Inc.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hot Shoppes, Inc.' and Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 2-CA-9057. April 14, 1961p DECISION AND ORDER On August 26, 1963, Trial Examiner William Seagle issued his In- termediate Report in the above-entitled proceeding, finding that 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 attached Inter- mediate Report. Thereafter, Respondent filed exceptions to the Inter- mediate Report and a supporting brief. General Counsel filed a brief in support of the Intermediate Report. 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 Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,2 and recommendations of the Trial Examiner only to the extent they are consistent herewith. Respondent Hot Shoppes operates a commissary at 152-65 Rock- away Boulevard in the city and State of New York for the preparation of meals supplied to various airlines operating to and from Idlewild International Airport,3 which meals are served to the airline pas- sengers during flight. On October 3, 1962, Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called Local 295, was certified as the exclusive ' The complaint named both Hot Shoppes , Inc., and National Caterers of New York, Inc., as Respondents . No exception was filed to the Trial Examiner's finding that National Caterers was not involved in the operation of the Rockaway Boulevard Commissary and that only the conduct of Respondent Hot Shoppes was to be considered. Furthermore, from an affidavit made in 1961 by Frank C. Kimball, secretary of American Caterers of New York, Inc , it appears that the corporate name of National Caterers of New York, Inc, was already in use by someone else, whereupon the corporate name was changed to American Caterers , Inc. Accordingly, we hereby amend the caption in this case by delet- ing therefrom the name National Caterers of New York, Inc. 2 The Respondent contends that the Trial Examiner was biased , pointing to his char- acterization and alleged distortion of the testimony , and his reliance on what Respondent asserts are assumptions and surmises . This charge of bias is not based upon any alleged statements of the Trial Examiner which might indicate that he had prejudged this case nor upon his conduct or rulings made at the hearing; but , as indicated , it is directed to his findings and conclusions , and the analysis of the facts upon which they are based, as set forth in the Intermediate Report. Possible errors of this sort are hardly sufficient to establish bias. Accordingly, while we do not subscribe to all of the Trial Examiner's find- ings and consider his dramatic style of presenting the evidence as inappropriate to an administrative tribunal , we reject Respondent's contention of bias . The Great Atlantic & Pacific Tea Company, Inc., 129 NLRB 757 , footnote 3 at 758, citing Sears, Roebuck & Company, 110 NLRB 226 , footnote 2 at 227. 2 Now called John F. Kennedy International Airport. 146 NLRB No. 93. HOT SHOPPES, INC. 803 bargaining representative of a unit of flight equipment handlers, flight equipment helpers, and dispatchers 4 at the Rockaway Boule- vard commissary. Thereafter, and until December 27, 1962, Respond- ent and Local 295 engaged in contract negotiations, but were unable to reach agreement. On several occasions in December 1962, Local 295 threatened to strike'if an agreement were not reached by Decem- ber 31. Respondent, on the other hand, told its employees on several occasions during December that in the event of a strike all strikers would be permanently replaced. The strike threat was reiterated at the final bargaining session on December 27. Thereupon, beginning on December 28, in anticipation of the strike and in order to insure uninterrupted service to its airline accounts, Respondent began taking and processing employment applications with a view toward replac- ing the possible strikers. It also enlisted temporary help from its operations in Chicago, New Jersey, and Washington, D.C. The first group of about 10 such employees arrived from Chicago on Decem- ber 28 and remained on a standby basis until the strike began on January 4, 1963. Others arrived after the strike commenced. On January 4, about 4:15 p.m., the 22 transportation department employees walked out and began picketing the Rockaway Boulevard commissary. Respondent thereupon sent telegrams to persons who had previously filed job applications, requesting them to report on the following morning. In the meantime, the out-of-town personnel com- pleted the work scheduled for that day. On January 5 Respondent hired 17 new employees; on January 6 it hired 1 more; and on Janu- ary 7 it hired 4 additional employees. All were assertedly hired on a permanent basis, thereby replacing all of the strikers; and some of the out-of-town employees remained to train the newcomers. Upon hir- ing a replacement, Warren Dietrich, Respondent's employment super- visor, prepared a memo to Manfred Sandler, general manager of the commissary, indicating that each new employee was permanently re- placing a named striker. A similar memo was prepared by Alfred Kramer, Respondent's regional personnel representative, for each of the two employees whom he hired. On January 16, the strikers called on John McNamara, president of Local 295, to say that they would like to abandon the strike and go back to work. McNamara told them that he would decide when to terminate the strike. Thereupon the strikers decided to apply for reinstatement and selected a committee of three to see Sandler and make the application. Sandler refused to see the committee, but agreed to see one of its members, Jean Claude Dorsainvil, who, on January 17, made an unconditional request for reinstatement on be- 4 Collectively called the transportation department. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD half of all the strikers.' The request was refused, whereupon the strike was abandoned. Besides the group application, the complaint alleged that certain strikers made individual applications for reinstatement at various times before January 17, and that Respondent's refusal of both the individual and group requests violated Section 8(a) (3) and (1) of the Act. Respondent admitted its refusal to reinstate three of the strikers who made individual applications, including Dorsainvil on January 17, but alleged that all of the strikers were permanently re- placed between January 5 and 7, before any of them requested rein- statement. The complaint also alleged, and Respondent denied, other unlawful conduct which will be discussed below. 1. Contrary to Respondent's contention, the Trial Examiner found that Respondent never intended the replacements who were hired be- tween January 5 and 7 to become permanent replacements for the strikers. Further, and more significantly, he found that the strike was converted to an unfair labor practice strike before any of the strikers applied for reinstatement, rendering moot the defense of permanent replacements. We disagree with these findings. The factors upon which the Trial Examiner based his finding that the replacements were not intended to be permanent are not -persua- sive. The record contains no evidence that Respondent, in hiring the replacements, acted contrary to its usual practice in any respect, except in preparing and keeping employment memorandums. 'This latter fact, however, has no relevancy in this case to the question of the permanency of the replacements. To the contrary, Respondent pre- sented uncontradicted testimony that between January 5 and 7 it hired replacements, who were told that their employment would be permanent during good behavior, for the entire complement of strikers. There is no evidence that special skills or experience was a prerequisite to being hired as a handler or helper in the transportation department. And under established Board precedent the fact that the replacements lacked experience and required some training, and that some did not remain permanently in Respondents' employ, does not de- tract from Respondent's intent at the time of hiring that the replace- ments become the permanent replacements of the strikers.6 Accord- ingly, we find that Respondent intended to, and did in fact, hire permanent replacements for the strikers. The Trial Examiner concluded that even if the strikers were in fact permanently replaced before any of them requested reinstatement, Respondent nevertheless violated Section 8 (a) (3) and (1) of the Act by its refusal to reinstate them because, in his view, the strike 6 For the reasons stated by the Trial Examiner, we find no merit in Respondent's con- tention that Dorsainvil was without authority to request reinstatement for all the strikers. 6 See Anderson, Clayton & Co. Foods Division, 120 NLRB 1208, 1214. HOT SHOPPES, INC. 805 was converted into an unfair labor practice strike before any of the strikers requested reinstatement. The Trial Examiner grounded his conclusion on his finding that Respondent, in hiring the strike re- placements, acted pursuant to a "contrived scheme" to defeat the economic strikers' rights to reinstatement and that such a scheme was unlawfully discriminatory. And from this he reasoned that the implementation of that scheme beginning on January 4, converted the character of the strike on that date.? We, however, disagree with the Trial Examiner's premise that an employer may replace economic strikers only if it is shown that he acted to preserve efficient operation of his business. The Supreme Court's decision in Mackay Radio c€ Telegraph Company,' and the cases thereafter,9 although referring to an employer's right to con- tinue his business during a strike, state that an employer has a legal right to replace economic strikers at will. We construe these cases as holding that the motive for such replacements is immaterial, absent evidence of an independent unlawful purpose.10 Therefore, we reject the Trial Examiner's conclusion that the plan to replace the economic strikers here was itself improper and that the strike was converted to an unfair labor practice strike on January 4 by Respondent's imple- mentation of such plan. 2. Alternatively, the Trial Examiner found that Respondent dis- criminatorily refused to reinstate Zapata on January 5,11 and that the strike was thereby converted on that date. This conclusion rested on his crediting Zapata's testimony that Zapata had applied by tele- phone call to Company Representative Sandler on January 5 and 16. This credibility resolution was not based on demeanor. Rather, it was grounded on the Trial Examiner's finding of a clear contradiction in the testimony of Sandler. Upon a thorough study of the record, and especially of 'Sandler's testimony, we disagree that such a contradiction existed.12 Accordingly, we find that the. record fails to establish by substantial evidence that Zapata requested reinstate- ment on January 5. ' In support of this finding, the Trial Examiner relied on Cone Brothers Contracting Company, 135 NLRB 108, enfd . 317 F. 2d 3 (,C.A. 5), and on Erne Resistor Corp , et at., 373 U.S. 221, both of which are clearly distinguishable and do not lend themselves to an analogy to the situation involved in the instant case. 8 304 U S. 333. 9 See, e.g., American Optical Company, 138 NLRB 681, 689. 10 Cf. Cone Brothers Contracting Company, supra. n The complaint alleged that Zapata was discriminatorily discharged on January 5. Al- though his request for reinstatement on that date was not alleged, the matter was fully litigated at the hearing and the Trial Examiner was, therefore , not precluded from making a finding thereon 12 The Trial Examiner Interpreted Sandler's testimony that "I never received any call from Zapata" as a denial of receiving a call from Zapata on either January 5 or 16, although Sandler was never asked about, and never denied , the call from Zapata on the latter date. In our view Sandler's testimony was solely in response to a question concern- ing the claimed call of January 5. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner further found that several other strikers in- dividually applied for reinstatement and that Respondent's refusal to reinstate these strikers tended to prolong the strike. The earliest of these, after the alleged refusal of Zapata on January 5, was Re- spondent's admitted refusal to reinstate Nelson on January 7.13 The Trial Examiner found that Nelson became a striker on January 6, and was discharged in violation of Section 8(a) (3) and (1) by being prematurely replaced on January 5. Respondent, however, while admitting that it refused to reinstate him on January 7 contended that Nelson was a striker as of January 4. Company Representatives Sandler and Bank, respectively, testified to seeing Nelson on the picket line on January 4 and thereafter.'4 Furthermore the record fails to establish conclusively that Nelson was not a striker before January 6, since, on cross-examination, he testified that, although he was not scheduled to Work on January 4 and 5, he "may possibly" have been at the commissary and talking with the strikers on January 4, and that he was definitely "around" the picket line on January 5. Under these circumstances we find that the record fails to establish that Respondent terminated Nelson in violation of Section 8(a) (3) and (1) of the Act. Having found that the General Counsel has failed to prove the Respondent engaged in unlawful conduct with respect to Zapata and Nelson, it is clear that we must reject the Trial Examiner's further finding that such conduct converted and prolonged the strike.15 The Trial Examiner found that Respondent independently violated Section 8 (a) (1) of the Act by virtue of Bank's interrogation of Dorsainvil on January 2 and 4, 1963, concerning the timing of the threatened strike. We, however, find it unnecessary to pass on the validity of that find- ing because in the circumstances of this case we do not believe that this isolated incident, even if found violative of 8(a) (1), would warrant the issuance of a remedial order. We also agree with the Trial Examiner's conclusion that no viola- tion was committed in connection with Respondent's interview with Areizaga on January 7, and in its meeting with Dorsainvil on Janu- ary 17. However, we do not adopt the Trial Examiner's rationale, but rely solely on the fact that no interrogation was established, as Areizaga and Dorsainvil each testified unequivocally that he vol- unteered the information. 13 The other refusals which the Trial Examiner found occurred after this date and were held to be discriminatory because the replacement plan was found to be unlawful In view of our findings herein , it is apparent that any unfair labor practice findings based on the other individual applications must fall 14 Neither Sandler nor Bank was specifically discredited on this point 15 We need not pass on the Trial Examiner's presumption of communication upon which be found that the alleged unfair labor practices converted and prolonged the strike. HOT SHOPPES, INC. 807 4. The Trial Examiner found that Mario Laboy was unlawfully discharged on January 5 because of Respondent's belief that he had participated in the strike and that Respondent's subsequent refusal to reinstate him violated Section 8 (a) (3) and (1) of the Act. We disagree. The record fails to establish that Respondent entertained any beliefs as to Laboy's participation in the strike; nor does it contain evidence of Laboy's past union activities, if any, and Respondent's knowledge or suspicions thereof.16 On the other hand, the record is undisputed that Laboy was overdue from his leave at the time of his discharge, the reason assigned by Respondent for the termination. Under these circumstances, we find that Laboy was discharged for overstaying his leave. 5. In sum, we have found that the preponderance of the evidence fails to support the allegations that any of the strikers were unlaw- fully refused reinstatement, or that Respondent engaged in any un- lawful activities. Accordingly, and in view of the foregoing, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER BROWN took no part in the consideration of the above Decision and Order. 19 The Babcock d Wilcox Company, 128 NLRB 239, 248-249 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on January 11, 1963, by Local 295, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, herein called Local 295 or the Union , a complaint was issued against Hot Shoppes, Inc., and National Caterers of New York, Inc., herein called the Respondents, under date of February 28, 1963, in which, as subsequently amended, it was alleged that the Respondents, in violation of Section 8(a) (1) and ( 3) of the Act, had discrimina- torily discharged 2 of their employees , Juan Zapata and Mario Laboy, and refused to reinstate 22 of the employees 1 who had gone on strike on or about January 4, 1963, despite the unconditional offers of these employees to return to work. It was also alleged in the complaint that by these unfair labor practices the strike in which the employees had engaged had been prolonged . In addition , the Respondents were charged in the complaint with the commission of independent violations of Section 8 (a) (1) of the Act, consisting of the interrogation of their employees con- cerning their activities on behalf of the Union and the plans of the Union for a strike. The answer of the Respondents , which was twice amended, denied the commission of any of the unfair labor practices , and pleaded as an affirmative defense that the 22 strikers, who had been engaged in an economic strike, had been permanently replaced on January 5, 6, and 7, 1963. Issue having been thus joined , Trial Examiner William Seagle held a hearing with respect to the allegations of the complaint at New York, New York, on April 9, 10, 11 , 12, 22, and 23 , 1963. At the conclusion of taking of testimony , counsel on both sides waived oral argument but subsequently filed briefs which have been duly considered. 1 Juan Zapata is also included among these 22 employees. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the record so made, and based on my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE RESPONDENTS At all material times, Respondent Hot Shoppes , Inc. (hereinafter sometimes referred to as Hot Shoppes), which is a Delaware corporation , has maintained its principal office and place of business at 5161 River Road in the city of Washington, District of Columbia,2 and also a place of business at 152-65 Rockaway Boulevard in the city and State of New York , as well as in other places of business in various States of the United States, where it has been engaged in the preparation , sale, and distribution of food and in the operation of restaurants and related services, includ- ing catering services . At the Rockaway Boulevard address Hot Shoppes has operated a commissary for the preparation of meals supplied to various airlines operating in and from the Idlewild International Airport , and served to the passengers of the airlines during flight . The airlines thus serviced are Eastern , Braniff, Delta, and Avianca. Approximately 80 percent of the Hot Shoppes business is done, however, with Eastern Air Lines . During the past year, which is generally representative of the Hot Shoppes business, the Company, in the course and conduct of its opera- tions, has sold products and performed operations valued in excess of $500,000. During the same period , Hot Shoppes has caused to be transported and delivered to the Rockaway Boulevard commissary beverages, foodstuffs, and other goods and materials valued in excess of $50,000, and these goods and materials have been trans- ported sand delivered to the said commissary from States of the United States other than the State of New York. It is also alleged in the complaint that Respondent National Caterers of New York, Inc. (hereinafter referred to as National Caterers ), a Delaware corporation that at all material times has been a wholly owned subsidiary of Hot Shoppes, has been involved in the operation of the Rockaway Boulevard commissary . It is further alleged in the complaint that Hot Shoppes and National Caterers have been affi- liated businesses with common officers, ownership , directors, and operators, and that the two Companies constitute a single integrated business enterprise , formulat- ing and administering a common labor policy, affecting the employees of both Companies. In its answer, Hot Shoppes denied these allegations and pleaded that National Caterers had ceased to exist as an operating entity. At the hearing, counsel for Hot Shoppes stated that National Caterers was no longer in existence , and that Hot Shoppes was the sole employer in the operation of the Rockaway Boulevard commissary. In view of the pleadings, and the contention of counsel for Hot Shoppes, it was incumbent on the General Counsel to prove the allegations of the complaint but she offered no satisfactory proof that National Caterers are still involved in the operation of the Rockaway Boulevard commissary.3 I am constrained to conclude, therefore, that the Rockaway Boulevard commissary has been operated solely by Hot Shoppes, and I shall consider the allegations of the complaint only insofar as they bear upon the conduct of the latter. II. THE LABOR ORGANIZATION INVOLVED Local 295, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organization which, on October 3, 1962, was cer- tified as the exclusive representative of the Hot Shoppes employees at the Rockaway Boulevard commissary who were flight equipment handlers, flight equipment help- ers, and dispatchers . Those employees at the Rockaway Boulevard commissary who were executives, production employees , office employees, clerical employees, watchmen, guards, or supervisors as defined in Section 2(11) of the Act were ex- cluded from the bargaining unit. 2It is so alleged in the complaint and not denied In the answer but actually the prin- cipal office of the Rot Shoppes Is in Bethesda , Maryland, a suburb of Washington, DC. 3 The only proof offered by the General Counsel was an affidavit made in 1961 by Frank C Kimball , secretary of American Caterers , Inc, from which it appears that due to an oversight, National Caterers of New York , Inc., never qualified to do business in the State of New York, and that by the time this was discovered it was also found that the corporate name, National Caterers of New York , Inc., was already in use by someone else, whereupon the corporate name was changed to American Caterers, Inc. HOT SHOPPES, INC. III. THE UNFAIR LABOR PRACTICES 809 A. Background of the present proceeding The present proceeding is the second one within a few years involving charges of unfair labor practices against Hot Shoppes.4 Early in 1960 three unions 5 carried on organizational work among the employees at the Rockaway Boulevard commis- sary (it will be referred to hereinafter simply as the commissary), and the charges which initiated the prior proceeding stemmed from this organizational campaign. The Trial Examiner and the Board found that during this campaign the Hot Shoppes management had interrogated employees concerning union activities; made threats of discharge; and discriminatorily laid off four of the commissary em- ployees 6 with the result that a strike was precipitated on April 25, 1960. As this strike had been precipitated by the unfair labor practices of Hot Shoppes, the Board ordered the reinstatement of the strikers, as well as the reinstatement with backpay, of the four laid-off employees? B. Events leading to the present proceeding After the certification on October 3, 1962, of Local 295 as the exclusive bargain- ing representative of the employees in the transportation department of the com- missary,8 Hot Shoppes management officials entered into collective bargaining with representatives of the Union, whose principal negotiator was John McNamara, its president. He was assisted by a committee of three of the transportation de- partment employees, Rene Sardinas, John Toscano, and Luis Alvarado. Among the Hot Shoppes management officials who participated in the negotiations were Foster M. Kunz, vice president of industrial relations, and John N. Smith, district manager, whose office was in the commissionary. Lewis Jackson, one of the Hot Shoppe attorneys, was also present during all the, negotiating sessions. The negotiations commenced in the middle of October 1962 and continued until nearly the end of December, the last meeting taking place on December 27. There were in all, apparently, five meetings, but the precise dates of the meetings are not established, except that there was a meeting on December 11, in addition to the meet- ing on December 27. After direct negotiations between the parties had broken down, there was also a meeting arranged by the New York State Mediation Board that took place on January 2, 1963. It appears that apart from the economic issues the chief sticking point in the negotiations was the refusal of the Hot Shoppes management officials to consider a union-security provision. Indeed, Kunz testified that with respect to such a pro- vision the position of the Company was a matter of "religious belief." As a result McNamara began threatening a strike as early as the meeting of December 11, and the threat was repeated at subsequent meetings. At the meeting on December 27, McNamara definitely took the position that union security was not negotiable. The evidence shows, however, that even before McNamara began making overt threats of a strike, the Hot Shoppes management officials assumed that the Union would call a strike, and began to make preparations both to forestall it and to defeat it if it occurred. The evidence also shows that they threatened that if the strike, which this time would be an economic strike, occurred, all the strikers would be permanently replaced. They had, indeed, a detailed and elaborate plan to deal with the approaching emergency. 4 The General Counsel requested that I take official notice of this proceeding, and I do so. 6 The three unions were Local 71, Transportation Terminal, Interplant and Commissary Food Employees Union, AFL-CIO, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO ; District 65, of the Retail, Wholesale and Department Store Union, AFL-CIO ; and Local 295 of the Teamsters. _ 8 Three of these four employees, Rene Sardinas, Jose Munez (also known as Jose Lopez), and Willie Cintron were flight equipment handlers. The fourth employee, Luciano Ramos, was successively a dishwasher, flight equipment helper, and coffeemaker Rene Sardinas is also involved in the present proceeding. 7 The Board's decision, which was issued September 7, 1961, is reported in 133 NLRB 3. This case involved also the operation of a Hot Shoppes restaurant In the Eastern Air Lines Terminal Building at Idlewild International Airport, but the charges involving the restau- rant employees were dismissed. 8 The bargaining unit consisting of flight equipment -handlers, flight equipment help- ers, and dispatchers will be hereinafter referred to, collectively, as the transportation department. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The outline of the plan was plainly indicated to the employees in a speech which Smith made to them on December 2 or 3, 1962. Manfred Sandler, the general manager of the commissary, assembled the employees who were not otherwise engaged on this occasion to make an announcement of the annual Christmas party. He did not merely make, however, a few extemporaneous remarks but read to the employees a prepared speech which, before it was delivered to them, had been sub- mitted to the scrutiny of the Hot Shoppes counsel. The verbatim text of this speech was as follows: I too want to see you all at the party. However, I do have something on my mind. So just give me a moment or two. I am a little disturbed by some of the things I have heard. I have been told there is talk around here that the Union has said that there will be a strike at the end of December and that there will therefore be no work. I am told that some of you are concerned about all this terrible loose and dangerous talk. It is because of this that I want to tell you just exactly how you and I stand in this situation. Hot Shoppes does not want a strike to take place. Hot Shoppes will do its utmost to reach agreement. Hot Shoppes is a place for work. We have our customers to serve and we must do so. There will be work here for those who wish to work. If the union should exercise its right to strike it will undoubtedly have some of your fellow workers out on the street on union dole walking up and down with signs calling Hot Shoppes all sorts of names. It is your right and privilege to come through that line as well as it is for you to stay and not come through the line. Those who come through will, of course, be welcomed and will be afforded every protection. Those of you who do not will be in a bit of an odd position. By that I mean that we will have to get employees to perform the work that you are failing to perform. When that happens anybody who is permanently replaced will unfortunately no longer be an employee of Hot Shoppes. Talk is cheap and that sort of talk leads to unemployment and loss of pay. You do not get paid while you are not working. I have been at all the meetings with the Union. We have met with them on a number of occasions. The union has made many demands which are as ridiculous as anything I have read about anywhere. The Company is not talking about,a strike. The Company is not looking for a breakdown of negotiations. The Company is actively working on negotiations. Where this strike talk comes from I don't know; but I tell you that it is loose talk, it is dangerous talk, and I ask each of you to take a good look at these rumors. Take a good look at the people who are engaging in this loose talk. Take a good look at their finances and see if they will pay you while you do not work. Again I regret that I have found it necessary to have to talk to you in this vein, but I have many friends here and I did it at least to tell them what is in my heart and in the heart of your employer. In evaluating the effect of this speech upon the employees an important linguistic and psychological factor must be taken into consideration. Most of the flight equipment handlers 'and helpers, not to mention employees in other categories, were Puerto Ricans who had arrived in the continental United States only in recent years. Although many of them spoke English well enough to make themselves understood in that tongue, their thought processes still made use of another and alien tongue. What meant one thing to an Anglo-Saxon, sometimes meant quite another thing to them. Assuming for the sake of argument that it is not an unfair labor practice for an employer to tell his employees while collective-bargaining negotiations are under- way that talk of a strike, which is their most effective weapon, is "loose and dangerous" talk, and that they faced the possibility of being permanently replaced if they exercised their right to strike, the fact would still remain that alien em- ployees would be ill equipped to appreciate the rather fine distinctions made in the speech. In fact, the evidence shows that at least four of the Puerto Rican employees who testified concerning Smith's speech-Rene Sardinas, Eluterio Rivera, Rinneceo Nelson, and Juan Fernandez, all of who were flight equipment handlers-regarded Smith's remarks as menacing and understood him as making threats to replace any employees permanently if they went on strike. Thus Sardinas testified: Mr. Smith say that he heard rumor that there is going to be a strike and that in the case of this strike, if it ever take place, he was ready to keep the company HOT SHOPPES, INC. 811 working and everybody who participate in this strike will be permanently re- placed. [Emphasis supplied.] Rivera's summary of Smith's speech was: "And I hear Mr. John Smith, he say that any of the people is going out on strike, this going to be permanently replaced" and Nelson's summary was "there is talk going around about -a strike or something, and if it would be a strike, everybody go out would be permanently replaced." [Emphasis supplied.] Although Juan Fernandez received the same impression from Smith's speech, he coupled what he considered to be a threat with a promise of pro- tection. Thus Fernandez testified: Well, I heard that-he says to the people that there going to be a strike, and they want to tell the people that don't be afraid because they going to be pro- tected by the company, and the people they stay home. The people they stay hom [sic], they no going to get paid and they going to be replaced right away. [Emphasis supplied.] Smith himself testified that his purpose in making the speech was "to reassure the employees that they had nothing to worry about .. ." If that was really his purpose, he seems to have failed signally. Actually, Smith revealed his true purpose in a gloss he put upon his speech in a conversation that he had on December 20 with Jean Claude Dorsainvil, one of the dispatchers, in the International Arrival Building at the Idlewild Airport. Hot Shoppes was expecting to service a Pakistani Airline jet the following week, having just obtained this account, and Smith had taken Dorsainvil, as well as another employee by the name of Carlos Galvos, who was an assistant manager in charge of foreign airline accounts , to the airport to look at the Pakistani equipment. When they attempted to board the Pakistani aircraft, they were met by the union steward of Pan American Airways, who refused to allow them to get on the airplane. Smith attempted to explain to the union steward that they would be catering the line in the future . The union steward told Smith , however, "that didn't make any difference. As long as they were handling it, they wouldn't allow any other caterer on the airplane , particularly the Hot Shoppes being non- union." Being thus rebuffed, Smith and his two companions retreated to their station wagon in order to escape the cold while waiting for the arrival of the Pakistani representative. While waiting, Smith talked to Dorsainvil and Galvos about the Union. According to Dorsainvil, Smith told him in the course of the conversation: He was sorry to see that those five guys, they are going to lose their job and then all of them would be replaced in the event of the strike, that he hate to see a guy like me in the street for the foolishness of the union, and then he asked me if I want to not go on strike and remain with the company. It would be good and I would not lose my job. Smith did not deny that Dorsainvil had correctly reported the purport of his remarks on this occasion. Smith's own version of the conversation is clearly confirmatory. Thus Smith testified: We went back and sat in the station wagon waiting for the Pakistani rep- resentative, and we got to talking about the union problem we just ran into, not being able to get on the airplane, because this had happened to us previously with our other airlines. And I stated that it was unfortunate that we had this problem that I hoped we wouldn't have any problem in the future with the Pakistani airplane, and because I had previously given a speech on this very problem that we might have, because of the rumors going around at the plant, I told Mr. Galvos and Mr. Dorsainvil that we were very fortunate to be able to continue on, pick up new business such as Pakistani, that we were a good com- pany and that we intended to provide good service to all our airline accounts. I said, "As you know, there have been rumors of a pending labor problem, that we in the company are doing everything we can to negotiate and avert this, but regardless, we are going to continue to service our customers and our airline accounts, that if there was any labor dispute or any walkout, any strike, that we would continue to the best of our ability to take care of these accounts and anybody who did not come to work because of the strike, we would replace." A similar gloss on Smith's speech was supplied to Dorsainvil by his more immediate supervisor, Paul Bank, assistant manager of the commissary , who was next in line to Manfred Sandler in its general operation . Dorsainvil and Bank frequently talked to each other, and once, when they were on their way to the Eastern Air Lines 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminal,9 they got to discussing the pending contract negotiations, and Bank told Dorsainvil that if there was a strike this time, it would not be an unfair labor practice strike. "It's going to be," Bank explained, "an economic strike and in that kind of strike, everybody is going to be replaced permanently if they go on strike." Bank also advised Dorsainvil not to go on strike because, as the latter testified, "that would be a good chance for me to make overtime." The record indicates, moreover, that the threat to replace any strikers was not merely a declaration of intention. The Hot Shoppes management attempted to make the threat more credible by telling various employees that replacements were already being recruited and that scores of such replacements were standing by in nearby hotels. Thus, Blank told Dorsainvil about 2 days before the strike actually occurred that "there are about forty people in hotels that could replace everybody, who go on strike." Almost identical statements were made shortly before the strike to Eluterio Rivera by Hector Reyes, an assistant manager, and to Rinneceo Nelson by Emilio Roman, another assistant manager. These declarations were accompanied, moreover, by an attempt on the part of some Hot Shoppes management officials to obtain information as to precisely when the strike, which, to them seemed more and more imminent, would -actually begin. Although a strike had long been rumored and they expected a strike, knowledge concerning its actual timing and the probable number of participants would, obviously, be very useful. As early as December 14, when Bank and Kramer were hiring a flight equipment helper by the name of Wayne Blasi, they told him in the course of the interview not only that "the union was trying to get in Hot Shoppes and that they didn't like this," but also that they would like him to report to them if he was approached to join the Union. About 2 days before the strike Bank pumped Dorsainvil at the timeclock about "how many guys were going on strike," and a few hours before the strike, Bunk asked Dorsainvil whether it was not true that he was coming from a union meeting, and that the strike was set for that day. As Dorsainvil testified: He told me, if I know at what time they are going on strike. First of all, he told me where I was-where I came from. I told him I was in Brooklyn. So he told me, if I had a meeting with the union. I told him no. So he told me at what time is going to be the strike? I told him, I don't know. He said that-and I let you know that the strike is for today, and that I would not like you to go on strike and if you stay with the company it will be all right. You will not lose your job. So don't be afraid. Don't go on strike.io The Hot Shoppes officials who had regarded a strike as a virtual certainty since the meeting with the Union on December 27 were not left in suspense very long. The transportation department employees went out on strike about 4:15 p.m. on January 4. The decision to strike was taken at a meeting held at about 2 p.m. that same day. The striking employees established a picket line at the main entrance to the commissary where the trucks entered and left. C. The participation of the employees in the strike The record shows that 15 of the transportation department employees were involved in the picketing of the commissary on January 4 after the strike commenced. These 15 employees were Rene Sardinas, Jean Claude Dorsainvil, Luis Alvarado, Ismael (Little Joe) Areizaga, Eluterio Rivera, Juan Fernandez, Renaclides Fonesca, Joaquin Rubio, David Gonzalez," Henry Dunn, Jr., Edward Harding, John Toscano, Felipe Rivera, Pablo Vasquez, and Joe Nowaski. Two other employees, Wilberto e Although I believe that Dorsainvil reported correctly the substance of this conversa- tion, he was probably mistaken as to the time when this conversation occurred, and he also did not correctly remember the name of the new assistant manager in whose presence the conversation occurred. Dorsainvil thought that the conversation occurred "about October 1962" and that the name of the new assistant manager was Tony Preston. Actu- ally, it is more likely, as Bank testified, that the conversation took place in December 1962 after Smith had made his speech. The name of the new assistant manager was actually John Priester. 10 In interpreting this testimony, it is necessary to take into consideration the tendency of the Puerto Rican witnesses to confuse the verb "to tell" with the verb "to ask." They commonly employed the former as a substitute for the latter. 11 Gonzalez, a flight equipment helper, had been injured on December 23, 1962, while servicing an airplane, and be was still on workmen's compensation on January 4 when the strike started. He was still unable to work but he joined the strikers by going on the picket line that day. HOT SHOPPES, INC. 813 (Willie) Melendez and Carlos Pardo , went on the picket line on January 5. Rinneceo Nelson also did not definitely join the pickets on the picket line until January 6, al- though he may have been at the commissary on January 4 and talked to the pickets on the line at that time.12 Three other employees, Anthony Giammusso, Wayne Blasi , and Juan Zapata refrained from crossing the picket line after the strike started because they feared for their safety. Giammusso, who was a utility man,13 was not scheduled to work until 6 p.m. on the day of the strike but he arrived at the commissary at about 4:30 p.m. to inquire about an opening in the stockroom about which he had heard . When he saw the picket line, and observed some rocks being thrown, he retreated to his car, and decided to circle the commissary to see what would happen . He then telephoned his wife and asked her to call Bank and explain to the latter why he was afraid to cross the picket line . Later Giammusso's wife told him that when she had called Bank he had informed her that the man who had thrown the rocks had been arrested, but that Bank had suggested that it would be better if he did not report for work until the following evening, when he could assist Giammusso in find- ing a safe place for his car .14 However, before the following evening arrived Giammusso sent a telegram to Bank, which was as follows : "I am sorry to inform you that I will not be able to cross the picket line partly due to explanation given to you at an earlier date." This telegram was sent by Giammusso to Bank at 5:51 p.m. on January 5. Giammusso finally went on the picket line on January 7. Wayne Blasi worked a double shift on January 4. He did so at the special request of Bank because another employee had become ill. He started to work at mid- night on January 4, and worked until 8:30 a.m. that day, when Bank requested him to go on the second shift. To have completed the double shift Blasi would have had to work until 5 p.m. But, when he returned to the commissary from the field about 4 : 15 or 4 : 30 p.m., he saw the picket line and went home without stripping or washing his truck . He came to the commissary on January 5 but he did not join the pickets. He just stood around . However, Blasi never crossed the picket line at any time thereafter. Juan Zapata worked all day on January 4. His hours were from 7 a.m. to 3:30 p.m. As this was his usual quitting time, he went home on January 4 before the strike had actually begun . He reported for work the morning of January 5 despite the fact that he had heard rumors of the strike but he saw the -picket line, and, being afraid to cross it, he went home. Indeed, on the day of the strike he had declared to two of his fellow employees whom he characterized as strikebreakers that he would not cross the picket line in the event of a strike . Zapata finally went on the picket line on or about January 8. The two employees to whom Zapata had spoken were Juan Rodriguez and Mario Mejia who, although they had participated in the strike, crossed the picket line and came back to work within several days after the strike had commenced. There were four other employees who had also done so, namely, Steve Pappas, Ed Perdono, Daniel Vasquez, and his brother Fernando Vasquez. Pappas returned the after- noon of January 6 but the other five employees returned to work early in the morning of January 7 . Fernando Vasquez was a helper but all the others were handlers. 19 Counsel for the Respondent attribute to Nelson an utter lack of credibility but I regard him simply as a witness who had a great deal of difficulty with dates . Nelson thought, for instance, that the strike occurred on January 3 or 5. His inability to remember whether he was at the commissary on January 4 was partly due to the fact that he was not scheduled to work on January 4 or 5. On his direct examination he testified that he "went to the picket line" on January 6 but he did not specifically assert that he did not visit the commissary either on January 4 or 5. During his cross examination, he kept insisting that he did not remember really whether he was at the commissary on these dates but conceded that he may "possibly" have been there, which, I believe, was the case. There is a distinction , however, between talking to pickets on a picket line and actually joining in the picketing, and this distinction should not be overlooked . There is no justi- fication for the contention of Respondent 's counsel that Nelson finally "conceded that he had been talking to some of the boys on the picket line that day" ( namely, January 4). Nelson merely conceded that he may possibly have been there. 13 This job consisted of dishwashing, making salads, packing spoons and knives, and the like. Giammusso was the only one of the strikers who was not either a flight equipment handler or helper. 14 Bank was not called upon to deny Giammusso 's testimony concerning the telephone call made by the latter's wife to him. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The countermeasures against the strike The record reveals two incidents involving some slight missionary work among the strikers on the picket line. On either January 6 or 7, Kunz approached Sardinas while the latter was picketing at the main gate of the commissary, and proceeded to commiserate with him over the fix the strikers had put themselves in by their conduct. According to Sardinas, Kunz asked him, "What they have done with those boys?" Sardinas told Kunz that "there wasn't no boys. Everybody was over 21," and that they knew what to do. Thereupon Kunz remarked-in the words of Sardinas-"They have discharged those boys because they have lost- all of those good boys have lost their jobs on account of the strike." Kunz did not deny having a conversation with Sardinas, although he reported its substance as follows: I approached Mr. Sardinas on the line and made a comment to the effect that I felt sorry for the men who were on the line, and then added that for someone who was attempting to do something for his fellowmen, he had cer- tainly done them a great disservice, and to this Mr. Sardinas become-became angry and shouted back at me and I shrugged my shoulders and walked away. The other incident involved Bank and one Raymond DeJean, the brother-in-law of Dorsainvil. A few days after the strike DeJean was passing the lobby of the Crossway Hotel when Bank spied him and asked him whether he knew Dorsainvil. DeJean replied that Dorsainvil was his brother-in-law. Bank remarked: "You look like-him," and they engaged in conversation. In the course of this conversation, Bank asked DeJean to talk to his brother-in-law "to tell him to go back to his j.ob." DeJean agreed to do so. Dorsainvil was ultimately rehired but this did not occur until the last week in January, which was after the strike had ended. In fact Bank also attempted to get Dorsainvil back to work through Steve Pappas, one of the six employees who had already returned to work. Pappas called Dorsainvil at home and asked him whether he wanted to come back to work. The link between Pappas and Bank is indicated by Dorsainvil's testimony that "they ask him to ask me if I want to come back to work." Dorsainvil told Pappas that he could not cross the picket line but that he wanted to speak to Bank himself. When Bank contacted Dorsainvil, the latter told him that he could not come back by himself but that he would do so if at least one-third of the strikers returned to work. Bank then told Dorsainvil that they were working on five of the strikers to get them to return to work and Bank named John Rodriquez, Eddie Perdono, the two Vasquez brothers, and Mario Mejia. As already related this effort was crowned with success. But the Hot Shoppes management officials were not relying primarily on any back-to-work movement, whether spontaneous or induced. They had been warned by their airline customers that no interruptions in the catering service would be tolerated, and they were determined that there should be none when the strike occurred. Even before the strike, they had been preparing, therefore, to recruit replacements for the prospective strikers. The boasts made to various of the com- missary employees that they had 40 or so people already in hotels ready to take their places were not idle ones. Raymond DeJean, the brother-in-law of Jean Dorsainvil, who was part owner of the Long Island Limousine Service, was engaged in transporting some of them to and from the Whitman Hotel which was on 89th Avenue in Jamaica. Indeed, it is not disputed that between January 28 and the beginning of the strike the Hot Shoppes management officials were engaged in bring- ing employees from their catering operations at other airports to service the flights at Idlewild when the strike, which they fully expected, actually occurred. Smith himself testified that he had called Hot Shoppes managers in Chicago on Decem- ber 27; that he had obtained 10 experienced people, who arrived in New York on December 28; and that he had obtained 2 more from Washington, D.C. In addi- tion to these 12 people, 10 to 12 more arrived the evening of January 4; another batch of 10 to 12 arrived on January 5, and still another batch of 8 or 9 arrived on January 6. They came either from Chicago, Washington, D.C., or Newark, New Jersey. Smith, who characterized these people as "temporary help," even conceded it to be possible that still additional personnel arrived on January 7, 8, or 9. Whether still more came between January 10 and 14, he could not recall. Thus at least 40 to 45 of the personnel engaged in other Hot Shoppes operations had been brought to the Rockaway Boulevard commissary by January 6 and others, too, may have arrived. In fact Smith was able to identify no less than 22 of the arrivals by name. Moreover, the testimony of a number of the strikers in- dicates that approximately 20 of the arrivals from the other Hot Shoppes operations HOT SHOPPES, INC.' 815 went into action within a half hour of -the commencement of the strike.. The strikers were able to, identify them because they wore Hot Shopper uniforms of a different color than their own, and carried personal luggage. - Furthermore, at the same-time that Smith was procuring the temporary help from other parts of the country,, the Hot Shoppes management was also taking steps to secure applicants who might ultimately replace the strikers. Warren W. Dietrich, one of Hot Shoppes' employment supervisors whose job was to hire people in,var- ious categories for the company, was summoned to New York. Dietrich arrived at the commissary on December 27, 8 days before the strike, and went into action the next day, interviewing applicants for employment who might replace any strikers. Dietrich testified that Smith had told him, in view of the strike threats, that he would like,him to process some applications for him. Dietrich testified with respect to his mission in New York as follows: Q. Mr. Dietrich, when did you first hear there was going to be a strike?, A,. I believe Mr. Smith told me that the union had threatened a strike and that he would like me to process some applications for him. Q. That was on January 4th? A. No, I believe that was on about the 29th. Q. Of December? A. Yes, 1962. Q. What does process applications mean? A. It meant to interview possible candidates. [Emphasis supplied.] Yet, although Dietrich had already given this testimony, Smith attempted to contradict him. Thus, Smith testified: Q. Mr. Smith, you heard Mr. Dietrich testify that he received a request from you some time around the end of December to secure applications? Is that correct? Was it at the end of December? - A. It could have been one of the times, yes. I talked to Mr. Dietrich frequently on applications. Q. Well, in reference to securing replacements for the transportation depart. ment, was it at the end of December that you asked Mr. Dietrich to secure applications for you? A. I didn't believe so, no, not at the end of December. Q. The beginning of January? A. "On January 4th, I told Mr. Dietrich to hire replacements for the employees who did not come in to work.' Q. In other words, before January 4th, you had not asked Mr. Dietrich to secure any replacements for you? A. No. Q. For the people in the transportation department? A. That's right. Q. Before January 4th, had you asked him to secure applications for the transportation department? A. No. [Emphasis supplied.] Kunz, the Hot Shoppes vice president of industrial relations, who followed Smith to the stand, agreed with Dietrich rather than Smith. Kunz testified plainly that follow- ing the negotiating session of December 27, he called Dietrich who was already in New York and told him "to process applicants, interview prospects." There can be no doubt about this, indeed, for the applications themselves, which are in evidence show that Dietrich was taking applications on and after December 28. Dietrich seems to have been assisted in the taking of applications, moreover, by Alfred E. Kramer, a regional personnel representative of the Hot Shoppes. According to Dietrich, the applicants for employment were not actually hired until after the strike had commenced, although he could not remember whether he had actually hired anyone between December 28 and January 4. He testified that it was not until about 11 p.m. on January 4 that telegrams were dispatched to the applicants requesting them to report to the Falcon Room of the Eastern Air Lines terminal the following day. Dietrich "also testified that Smith instructed him to fill the existing schedule of operations and that he proceeded to fill the schedule.15 Finally, Dietrich 15 This schedule, which was changed only when the airlines changed their schedules-this would be rather infrequently-contained boxes in which a particular handler and a par- ticular helper were paired for each run, the name of the handler being on the upper line of the box, and the name of the helper"on the lower line of the box. ' 744-670-65-vol. 1466--53 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he commenced hiring the new employees about 8 a.m. and that by 1 p.m. his work for that day was mostly completed. The record shows that Dietrich hired 17 new employees on January 5; that on January 6 he hired 1 more new em- ployee; and that on January 7 he hired 4 more new employees to replace those on the schedule. The record does not show, however, what shifts the replaced em- ployees had worked previous to the strike except in a small number of instances.16 Thus many of them may have been replaced before they were due to report. It is true that most of these replaced employees had gone on the picket line the night of January 4, but it is quite evident from Dietrich's testimony that he could not have known who was on the picket line and who was not. Indeed, he claimed that on the night of January 4 he was in the commissary office, and that from this point he could not see any of the temporary replacements driving out the trucks. This could have been true only if he had taken a firm resolution not to see or hear anything. Dietrich had, to be sure, the schedule to show him what shifts the various employees had worked, but the shifts of all 17 of the employees whom he replaced the morning of January 5 could not possibly have started that very morning. Moreover, he did not produce the schedule which he used. He also failed to produce the telegrams he supposedly had sent to the applicants the night of January 4. Like all the other Hot Shoppes management officials who testified at the hearing, he produced only selected documents and exhibited only a highly selective memory. Immediately after the strike started, the commissary became a beleaguered citadel manned by the top Hot Shoppes management officials and their lawyers. They were in conference less than an hour after the commencement of the strike but they were not considering, apparently, how best to induce the strikers to return to work. Counsel advised the management officials not only to hire replacements but to hire them on a permanent basis. Dietrich in particular was instructed that as he hired each replacement he was to prepare a memorandum stating who was being replaced by whom, and declaring that the applicant had been informed that he was being hired on a permanent basis.17 This was 'something which, or course, had never previously been done by the Hot Shoppes, and, as a procedure, it was singular indeed, for while an employer may occasionally assure an applicant for employment that a job is permanent, he will rarely, if ever, put this assurance in writing. In addition to advising the Hot Shoppes management hierarchy to make a written record of "permanent" replacement, counsel advised them to monitor all telephone conversations with strikers, and to make written records of the conversations. Bank in particular was advised to refrain from speaking to any of the strikers himself except to tell them that they would have to talk to Sandler. If Sandler was available at a time'that a telephone call was received, the call was to be transferred to him. E. The attempts of the strikers to return to work It is quite apparent from the testimony of the strikers themselves that the strike never had very wholehearted or enthusiastic support. This is manifest not only from the fact that six of the strikers had crossed the picket line and returned to work within a few days after the strike began but also from the fact that only fear had prevented some of the other strikers from crossing the picket line. Some of these strikers in- deed never actively participated in the picketing. Moreover, virtually as soon as the strike had commenced, a considerable number of the strikers were making individual attempts to get their jobs back, and within less than 2 weeks after the strike had commenced all the strikers as a group had resolved on the abandonment of the strike, and had requested that they be put back to work. As a rule, however, both the strikers who made individual requests and those who joined in the group request were met by a prepared formula: "You have been permanently replaced." 10 The record shows the starting times of the strikers on the day of the strike only in the cases of Dorsainvil (2 or 3 p.m.) ; Fernandez (3 p.m.) ; Giammusso (6 p m.) ; Rubio (10.30 a.m.) ; Eluterio Rivera (7 a.m.) ; Zapata (7 a.m.) Fonesca (3:30 p. m.) ; and Blast (midnight). 17 The memorandums, which were originally in Dietrich's handwriting but were sub- sequently typed up by a stenographer, are in evidence as Respondent's Exhibits Nos. 3, 5, 7, and 8A to 8Q. Two of the memorandums were, however, actually entered by Kramer. None of the original - handwritten memorandums was produced. In each of the typed memorandums; Dietrich or Kramer declared either in the body of the memorandum or in a postscript that when hiring the applicant he recalled telling him that he was a full-time permanent employee and that he would continue in the Company's employment as long as he did good work and followed company rules and regulations. ' HOT SHOPPES, INC. 817 There are 10 strikers who, allegedly, made individual offers to return but whose offers were refused, and 22 who joined in the group request. The latter include, however, the 10 strikers who are alleged to have also made the individual requests. The strikers who, it is alleged, individually made unconditional offers to return to work on specified dates but whose offers were refused are as follows: Date or dates of Name of striker offer to return Ismael Areizaga_________________________________ January 6 Rinneceo Nelson -------------------------------- January 7 and 12 Wilberto Melendez______________________________ January 7 Eluterio Rivera_________________________________ January 8, 11, and 17 Anthony Giammusso____________________________ January 8 and 18 Juan Fernandez --------------------------------- January 11 Carlos Pardo___________________________________ January 11 Felipe Rivera ----------------------------------- January 11 Jean Dorsainvil_________________________________ January 17 Joaquin Rubio ---------------------------------- January 21 In its answer the Respondent admitted only that Jean Dorsainvil and Joaquin Rubio made unconditional offers to return to work, and that it refused to reinstate Rinneceo Nelson, Jean Dorsainvil, and Joaquin Rubio on the dates on which they claimed to have made unconditional offers to return to work. In its answer the Respondent also pleaded as an affirmative defense that all 22 of the strikers who are seeking reinstatement were permanently replaced on January 5, 6, or 7. Although not allged in the complaint, Juan Zapata and Wayne Blasi testified that they made individual applications for reinstatement. Counsel for the Respond- ent argue that the testimony of Blasi may not be considered because an individual application by him is not alleged in the complaint. However, Blasi testified with- out objection with respect to his individual attempt to secure resinstatement, and counsel for the Respondent questioned their own witnesses with respect to the truth of the testimony given by Blasi. The issue having been fully litigated, there is no valid reason for not considering his individual application. 1. The individual applications for reinstatement The claims of individual strikers that they asked for their jobs back on particular dates raise the most disputed issues of fact in the case. The Union itself never applied for reinstatement on behalf of the strikers and none of the strikers themselves could prove by any documentary evidence, such as letters, or written applications, that they applied for reinstatement on the dates claimed by them. They claimed merely that they did so in telephone conversations either with Sandler or Bank, or in accidental personal encounters on the picket line. Only one of the strikers even claimed that he subsequently made a written record of his telephone calls. On the other hand, Sandler, the management official to whom by prearrangement all telephone calls were to be routed, was positively armed with memorandums concerning telephone calls as a result of the instruction to monitor all telephone calls. Where Sandler was able to produce a memorandum of a telephone call on a particular date, I have no reason to doubt the substantial accuracy of the memorandum,ls and I credit his testimony as to that call. But there cannot be absolute proof that telephone calls were not made on an occasion not covered by a memorandum. The Respondent never produced the operator who took the calls, or the secretary who made the memorandums concerning the calls, and there is considerable room for doubt that the instruction to monitor all calls was carried out with 100 percent efficiency. Sandler had a strong motive for denying any telephone call made before January 7, the date on which all of the strikers were supposed to have been permanently replaced, and the denials of such calls must be closely scrutinized. As for calls made after January 7, Sandler no longer had any good reason for monitoring them, or for denying any calls that were actually made, since he considered by this time that all the remaining strikers had been permanently replaced. Of course, the strikers also had strong motives to claim that telephone calls were made earlier than in fact they were made, and I do not credit the testimony of all of them about their efforts to return to work. In assessing the testimony on both sides, I have deemed it necessary to be eclectic. 1'The memorandums did not represent, however, verbatim records of the telephone calls, for Sandler himself testified that he would make corrections in the memorandums after they bad been typed up. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The earliest telephone call claimed by any of the strikers is `that of 'Zapata. He testified that he called Sandler the afternoon of January 5 after he had seen the picket line on reporting for work that morning, and had returned home. Ac- cording to Zapata, he told Sandler in the January 5 telephone conversation, "I want my job back," and Sandler told him that he had walked off his job and had been permanently replaced. Zapata protested to Sandler: "I didn't walk off my job. I was working to three-thirty and the strike started at four-thirty, so how could I walk off my job?" Zapata further testified that on January 16, between 12 and 1 o'clock, he called Sandler again, and told the latter: "I would like to have my job back" but that Sandler again accused him of having walked off the job, and told him that he had been replaced. Zapata, who was acquainted with Kunz, informed Sandler that he would call the former in Washington, D.C., and telephoned to him that same day. After testifying that he told Kunz about his call to Sandler, Zapata gave the following version of what Kunz said to him in this telephone conversation: So then he says to me , "I thought the union was going to do something for you, boy?" - I said, "Yes, but I don't know what happened. They didn't do nothing for us." And he says to me, "You can't collect unemployment either." I said, "Yes, I know that. That's the reason I ask for my job back." So then he told me, "How many times did I told you not to listen to Rene Sardinas." The examination then continued as follows: Q. Did he (Kunz) say anything else? A. So then I says, "Okay." And then that was the end as far as I can remember. Q. Did Mr. Kunz say anything else to you other than, okay? A. Yes. He told me, "Okay, boy, you will stand by." Q. He said what? A. He said, "Okay, boy, you stand by." When Sandler was asked whether he had received a telephone call from Zapata on January 5, he indignantly denied it . "No," he testified, "I did not. That is an outright lie. I never received any call from Juan Zapata ." [Emphasis supplied] Sandler went on to explain the basis for this assertion as follows: Well, January 5th was the second day after the strike. It started January 4th and there was no phone calls into my office at all on this Saturday or Sunday, and I think the first phone call was made on Monday after some of the strikers had returned to work in the afternoon by Rinnecceo [sic] Nelson, and I recall exactly, because that is when I used the first time the phrase that "you have been permanently replaced ," and he argued wi,h me on the phone and he mentioned, he says, "What do you mean?" He said, "I'm fired?" I says, "No, you have been permanently replaced." Kunz admitted, however, that he received the long-distance telephone call from Zapata on January 16. Indeed, Kunz recorded the substance of the conversation- he admitted that it was not a verbatim record-in a confidential memorandum to Sandler written on the same day. The first three paragraphs of this memorandum are: Juan Zapata called today and said he wanted to get his job back and asked whether I could be of any help to him. I told him he would have to call you about this. He then said he had spoken to you and you had told him he had been replaced. I told Zapata that if you had already told him he had been permanently replaced, I could do nothing for him. He then went on to say that he would like very much to get his job back, that he didn't do any harm and that he was afraid not to go to work because of the threats made by the other men who went on strike.' I asked him for details on the threat but his reply was general and nonspecific. He then said he thought the other fellows on strike were going to the Labor Board, or, he said, maybe the union, today to see about getting their jobs back. He volunteered that the union had not paid them anything for the time they had been off and said two weeks had now gone by and they had-received nothing. He said the union had told them before the strike that if they went out it would be for only a couple of days and then they would have their jobs back, more money and a lot of other things. [Emphasis supplied.] HOT SHOPPES,; INC. 819 I I credit the testimony of Zapata that he telephoned Sandler both on January 5, and 16, despite Sandler's overemphatic denials of both calls. In the first place,. Sandler contradicted himself. On cross-examination, he was asked whether he had received a telephone call from Pardo on January .17, and replied in the affirmative under the mistaken impression.that the question being put to him related to Zapata.. This was in effect an admission at least that he had received a telephone call from Zapata, although the date of the call was actually January 16. It is, therefore, not true that Sandler never received any telephone call from Zapata at any time, as he had asserted. In the second place, Kunz in his memorandum to Sandler, at least. recorded Zapata's claim to have spoken to him. In the third place, since the tele- phone call to Kunz is admitted, it is highly improbable that Zapata would not have called 'Sandler, his more immediate superior, before making a long-distance tele- phone call to Kunz. Counsel for the Respondent attack Zapata's credibility because he could not remember whether he had given one or two statements to Board agents, and when pressed on this point finally exclaimed more or less in desperation: "How can I remember what has happened two or three weeks ago?" If Zapata really under- stood the question, all he could have meant to assert was that he could not be ex- pected to remember whether he had given another statement more than 2 weeks ago. Obviously, it is not true that Zapata could not remember any events that had occurred more than 2 weeks ago. His testimony demonstrates that he remem- bered everything that had happened to him and everything that he had done per- fectly well. No inconsistency is shown between his testimony and his recounting of events in the one statement that be did give, and the testimony of Kunz, one of the Respondent's own witnesses, confirms some of the events to which Zapata did testify. The circumstantial evidence demonstrates, ,moreover, that Zapata must have been telling the truth. The sense of grievance because of his immediate replacement revealed by him was very real, and there is no doubt that he had com- pleted his day's work before the strike started. The' circumstances that led to his calls to Sandler and Kunz on January 16 cannot be questioned. As subsequently related, all the strikers were seeking reinstatement on January 16 after visiting union headquarters and the Board-events that are recorded in Kunz' memorandum. Zapata himself went to the union headquarters but not to the Board, and his calls to Sandler and Kunz that day were simply the implementation of a do-it-yourself philosophy. Zapata was certainly an indignant employee when he spoke to Sandler on the telephone on January 5 and demanded: "I want my job back." 19 There was nothing conditional in his demand. Indeed, Zapata was attempting to enlist the aid of Sandler in getting back to work. But he was treated to the prepared formula: "You have been permanently replaced." The fact that Zapata had told Rodriguez and Mejia the day before the strike that he would not cross the picket line in the event of a strike does not convert his unconditional into a conditional offer. There is nothing to show that what Zapata had said to Rodriguez and Mejia had been communicated to Sandler or anyone else. There is also nothing to show that Zapata could not or did not change his mind. On January 16, Zapata asked both Sandler and Kunz to put him back to work but he was again told that he had been permanently replaced. I find, therefore, that both 'on January 5 and 16 Zapata offered to return to work but was refused reinstatement. So far as the first week of the strike is concerned, the Respondent's witnesses admitted telephone calls from Areizaga, Nelson, and Melendez on January 7 and from Giammusso on January 10. The. only telephone call allegedly made during the first week of the strike that is denied altogether is that claimed by Eluterio Rivera, and I credit the denial., Rivera testified that he could' remember the telphone call which he had made because he had entered this call, as well as a later one, in a memory book, but .if he was that careful and methodical about his affairs, it is difficult to understand why he failed to mention the making of the telephone calls in a statement which he gave to'a Board agent. Although Sandler admitted receiving a telephone call from Areizaga on January 7, in which an interview with' him that took place later that day, in the presence also of Kunz and Bank, was arranged, Areizaga himself testified. that he telephoned r 19 It has been explicitly held that this form of locution is a natural way of making aii application for reinstatement. See N.'L.R B. v. Valley Die Cast Corp., 303 F. 2d 64,' 66' (C.A. 6), where the court said: "It is argued that because the employees-asked for 'my job" or 'my job back,' they failed to make an unconditional request for -reinstatement. We think this is a natural way for an employee to make application for reinstatement and to, hold otherwise would be quibbling." 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sandler on January 6. According to Areizaga, Sandler asked him in the January 6 telephone conversation what he wanted, and when he replied: "I want to have my job back," Sandler told him that he had been permanently replaced but after some urging agreed that he could come in for an interview. While I credit Areizaga's testimony that he first telephoned Sandler on January 6 rather than on January 7, the date on which Areizaga's preliminary call was made would seem to make no difference, for it is clear that in the January 7 interview Areizaga did not make an unconditional offer to return to work. Areizaga's own testimony concerning his interview with Sandler, at which Kunz and Bank were also present, makes it all too apparent that Areizaga was not then .and there ready to go back to work. When Sandler asked Areizaga whether he wanted his job back, the latter replied, "I like to" but he added that he would have to wait until Wednesday or Thursday when the strikers intended to have a meeting. This is entirely in agreement with the testimony of Sandler and Bank. Although Kunz was also present at the meeting, his mind was a complete blank concerning what was said at it by anyone. But Sandler recalled that when Kunz asked Areizaga at the meeting whether he was asking for his job back, the latter's reply was: "No, I am not begging," or something to that effect. "I like to" and "No, I am not begging" could, conceivably, be forms of Puerto-Rican politesse amounting to an offer to return to work but talk about waiting to see what would happen at a meeting of the strikers could not be reconciled with an unconditional offer to return to work. Although Kunz could not remember what was said at the meeting, he had recorded what was said in a letter written on the same day to one of the Hot Shoppe's lawyers as follows: He [Areizaga] said that he had talked to the guys outside and that every- body was going to have a meeting and that they are going to decide either to go for the Union or come in to work, and they intend to give their answers to the Company on Thursday. He [Areizaga] said, "You know before we went out I told you that if the majority went, that I would have to go." He also said, "Those men who went out were my friends," and he said, "I cannot break the line." At this point I said, "Joe, are you asking for your job back at this time?" Areizaga said, "No, I don't know." I then said, "Well, when you make up your mind call Mr. Sandler." Such in substance was also Bank's testimony about what was said at the meeting. Furthermore, Areizaga himself further testified that when a few days later he went to the commissary to get his check and encountered Bank, and the latter asked him, "What about it, Joe?" he replied: "Paul, we don't decide nothing about the meeting yet, but we come back to work on the union's condition." [Emphasis supplied.] So far as Nelson is concerned, he seems to have shared, initially at least, the fears of the other strikers, for, before getting in touch with Sandler, he had telephoned Bank and, in asking the latter what he should do, had expressed the fear that his car might be damaged if he came into work. Nevertheless, he had also expressed the intention to Bank to return to work, and he had told the latter that he was planning to return to work. Bank had advised Nelson to speak to Sandler and Nelson did so. Counsel for the Respondent admit that Nelson was refused rein- statement on January 7, and I find that Nelson made that day an unconditional offer to return to work which was refused. However, Wilberto (Willie) Melendez never unconditionally asked for his job back although he testified that he made such a request over the telephone not only to Bank on January 7 but also to Sandler on January 9. Melendez was a hopelessly confused witness. Part of his difficulty was with the English language. Thus he testified that, when he telephoned on January 7 and spoke to the secretary in the Hot Shoppes office, "She told me who I was," and "I told her she was Willie." But an even greater part of Melendez' difficulty was with his vague and contradictory memory. He finally conceded that he never spoke to Sandler on the telephone on January 9, and suddenly remembered that it was actually Kunz to whom he spoke, personally, in front of the plant gate. But, if any such conversation actually took place, Melendez', account of the conversation makes it evident that he was afraid to cross the picket line and return to work. Asked to state what his conversation with Kunz was, Melendez testified: "He asked me if, that's the way I feel. I told him that a job you can find any place, but life, anything can happen to my wife, my baby, and my car and I don't want that to happen. That's why I stay out." It is even plainer from Giammusso's own testimony that. when he spoke to Free-, man on the telephone on January 10 -that he was not asking for his job at the Rock- away Boulevard commissary but for a job at some other Hot Shoppes operation. HOT SHOPPES, INC. 821 Thus Giammusso testified: I told him, "Mr. Freeman, I would like to come back to work, but I do not wish to cross the picket line. Is there any place else that I could work where there aren't any strikes going on?" He said, "Yes, either Washington, D.C., or on the Freeway, the Thruway upstate New York." I said, "Mr. Freeman, quit pulling my leg. I'm *calling up in good faith there is no reason why you should kid around with me." So he said he wasn't kidding, and he says, that's the best he could do for me at the present moment. Despite the denials of Sandler, I credit the testimony of Blasi, Fernandez, and Pardo that they asked for their jobs back on January 11 but were told by Sandler that they had been permanently replaced. The requests of Blasi and Fernandez were made in telephone calls while that of Pardo was made in an encounter with Sandler on the picket line. Pardo reiterated his request, moreover, in a telephone call to Sandler on January 17, after the group request for reinstatement that followed the visits of the strikers to the Union and the Board that day. The requests on January 11 are inherently more credible than any of the preceding ones because a week had elapsed since the strike, and a return-to-work movement was definitely under way. But there are other reasons for crediting the testimony of Blasi, Fernandez, and Pardo as against the denials of Sandler, apart from the latter's general unreliability as a witness. The testimony of Blasi was very circum- stantial: his telephone call to Sandler on January 11 was made primarily because of a dispute about the amount of his paycheck arising from his working a double shift on the day of the strike. Sandler's denial of this call was obtained, moreover, only after a plainly leading question. Fernandez distinctly remembered that he made two telephone calls to Sandler on January 11, Sandler being out when he made his first call. In the case of Pardo, he had every reason to remember the January 17 date, since this was the date on which all the strikers were trying to get back to work. Indeed, Sandler first admitted and then denied any telephone call from Pardo on January 17, and this was the occasion when he seemed utterly con- fused as to whether he was testifying about Pardo or Zapata. As Felipe Rivera did not testify at the hearing, there is no proof that he applied for reinstatement on January 11. The offers of Jean Dorsainvil and of Joaquin Rubio to return to work on Janu- ary 17 and 21, respectively, and the refusal of the offers, is admitted by the Respondent. In summary, then, I find that the following strikers on the dates set opposite their names made unconditional offers to the Respondent to return to work: Juan Zapata------------------------------------ January 5 and 16 Rinnneceo Nelson------------------------------- January 7 Juan Fernandez--------------------------------- January 11 Carlos Pardo----------------------------------- January 11 Wayne Blasi------------------------------------ January 11 Jean Dorsainvil--------------------------------- January 17 Joaquin Rubio---------------------------------- January 21 2. The group application for reinstatement By January 16, the disillusionment of the strikers with both the -Union and the strike was complete. One of the prime causes of their dissatisfaction seems to have been that they were not receiving any strike benefits,20 and when it began to appear that the strike would be protracted, they determined to make a concerted effort to get their jobs back. With Dorsainvil acting as their spokesman, a group of the strikers, which included most of them, went to the union hall in the Bronx to see John McNamara, the president of the Union. Dorsainvil asked McNamara to call off the strike and to assist the strikers in getting their jobs back but was rebuffed. McNamara told Dorsainvil that the strikers would have to continue the strike, and that he would be the one to decide when the strike should be called off. In the words of Dorsainvil, McNamara said that "the ship only has to be one boss, and that will be him, and then if he has to call off the strike, it will be him. If decide to go with the strike, it will be him to decide, since he represent everybody." 20 So far as the record shows, only SaTdlnas and Alvarado were actually members of the Union. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leaving McNamara's office, the group of strikers gathered in the cafeteria of the union hall, and proceeded to consider what to do. They resolved to attempt to get their jobs back, and selected three of their number to act as a committee to represent them in this effort. The committee so selected consisted of Dorsainvil, Pablo (Rocky) Vasquez, and Areizaga. No formal vote was taken in the selection of the committee; it came into being as a result of informal discussion. As Sardinas put it: "Nobody was against them, so it was informal selection." From the union hall, the strikers went to the Board's Regional Office in New York to seek advice, and the Board agent who interviewed them explained to them there that, since they were economic strikers, they would have to make applications for reinstatement if they wished to get their jobs back. From the Regional Office, the group of strikers proceeded to the commissary and spoke to a few of the additional strikers who were still picketing the plant. Dorsainvil was deputed to telephone Sandler and arrange for a meeting between the committee and Sandler. Dorsainvil telephoned Sandler from a telephone booth which was in front of the bank across the street from the commissary. As Dorsainvil put it, he explained to Sandler that "the fellows, they were disappointed with the union and that I would like to talk to him because all of them, they would like to go back to Hot Shoppes." Dorsainvil also informed Sandler of the selection of the committee, and of the desire of the committee to see him. But Sandler told Dorsainvil that he would have to talk to Smith before he could take any action and suggested that Dorsainvil call him again between 9 and 9:30 the following morning. After talking to Dorsainvil, Sandler contacted the Hot Shoppes lawyer, Jackson, who told him that it would be against the law for him to talk to a committee of the strikers, since only the Union could represent the strikers. Consequently, when Dorsainvil telephoned Sandler again the following morning, he was told by the latter that he would only see him alone. When Dorsainvil reported this to his fellow strikers, they -were suspicious. The suspicion seems to have been voiced by Sardinas but Dorsainvil told the latter: "Look, Rene, the guy wants to see just me. If you do not trust me, send some body else. Do you still want me to represent you?" Thereupon, Dorsainvil testi- fied: "All of them agreed, and I should go by myself." Having thus quelled the incipient revolt, Dorsainvil again called Sandler who' told him that since Smith was attempting to call Washington, D.C., he could not say anything definite to him but that in the meantime he would come down "to listen to him and ask him a few ques- tions." The meeting place arranged was in the front room of the offices occupied by Dorsainvil's brother-in-law, DeJean, in the Crossway Hotel. In this meeting, Dorsainvil related to Sandler , in answer to the latter's questions, all the events of January 16, including the interview between the strikers and McNamara, and the visit of the strikers to the Board . Dorsainvil also specifically. in- formed Sandler that the strikers wanted to go back to work for the Hot Shoppes. Sandler did not give Dorsainvil , however, an immediate answer but told the latter that Smith would first have to contact the top management of the Hot Shoppes in Washington. As Dorsainvil testified: So he told me that if it was up to him, he would be glad to hire us back, and as it was , Hot Shoppes was deeply involved , so this thing-has to be accord- ing to legal steps, and he should see Mr . Smith, should call Washington to talk to the top management , and also to Hot Shoppes lawyer in order to decide what they are going to do, because they do not simply call us back, just like this. So, I told him, Fred, I wish that you give us a definite word and don't let us down just like this. And he told me don't worry, I am going to talk to Mr. Smith once he comes back from the court and then we will contact Washington and the lawyer, and if there is anything to do, I am sure Hot Shoppes is a very good company and they will never let all of you people go like this. Before they parted Sandler told Dorsainvil to call him that afternoon for his an- swer. When the latter did so Sandler proceeded to act as if only he was asking for reinstatement. Dorsainvil's testimony concerning the telephone conversation on this occasion was as follows: I said, is that Fred? He said, "Yes, how are you, Jean." I said, "Okay." He said, "First of all Jean, I would like to ask you some specific questions." I said, "Okay Mr. Sandler." ' Are you saying-are you asking the job-exactly I am 'going to tell you. He said, "Would you. like to , have your job back." I said, "Of Course,- Mr. Sandler." He said, "What about the other fellows?" I said, "Mr. Sandler, I HOT SHOPPES,,INC. 823 that is the reason I am talking to you . All of them would like to have their job back." " Then said, he said, "Jean, I am sorry, but this goes for you and all the other-fellows; that you have been permanently replaced. In his own testimony Sandler did not deny that he had the interview with Dorsainvil on January 17, and that the latter had related to him the events of., the previous day. He denied only that he directly questioned Dorsainvil about McNamara and the Union and, the visit to the -Board . Sandler also specifically admitted that in the interview with Dorsainvil the latter told him that the men would like to come back to work . Thus Sandler testified: Q. Did he also say that the men would like to come back to work? A. Yes, he mentioned that, but I didn't believe him. Q. Did you tell him you did not believe him? A. Yes . Q. What did he say? A. Well, if I did not believe him he would be willing to bring everybody in and let me talk to them myself. Q. That is what he said to you? A. That's what he said to me . [Emphasis supplied.] So far -as the telephone conversation with Dorsainvil later that day is -concerned, Sandler produced one of the inevitable memorandums of the call , which like the others had been monitored, and he declared that it refreshed his 'recollection. He then proceeded to testify that the conversation was as follows: Well, Jean called me and I said, "Hello." I said, "Jean, I have to ask you some specific questions ." And I begun to say, "Are you, asking me for your job back?" And he says, "Yes." I says, "Then I have to tell you that you have been permanently replaced." Then he said, "Does that go for the other boys, too?" ,I said, "That goes for the other boys , too." , There is thus no material variation between the testimony of Dorsainvil and Sandler with respect to the substance of what was said in the interview at the Crossway Hotel, or in the subsequent telephone conversation that same day. There are only some meaningless quibbles about the positions of the parties to the ex- changes between them, and their varying reactions to what was said . Sandler -considered that he was meeting Dorsainvil as an individual "`and not in any official capacity." But Dorsainvil nevertheless kept pressing not, only his own request for reinstatement but also requested reinstatement of all the other strikers . Sandler plainly understood that that was the import of Dorsainvil's request whether or not he believed its sincerity. Sandler had no basis ' for this disbelief, whether one considers what Dorsainvil told him; or what he himself knew about the situation of the strikers at the time and their desire to return to work . In fact, Sandler knew about this a day before his meeting with Dorsainvil from the confidential memorandum sent to him by Kunz ,on January 16 in which the latter informed Sandler that Juan Zapata , who had ,been replaced as a striker, had called him to ask for his job back : If Sandler was still incredulous after receiving Kunz' memorandum and after talking to Dorsainvil himself, it could only have been because he had a will to disbelieve . It is significant that when Dorsainvil offered "to bring everybody in," so that Sandler could talk to them Sandler ignored the offer , which rather indicates that he was determined that there should not be anything that would amount to an offer on the part of the strikers to return to work. I find, however, that on January 17, all the 22 strikers who are seeking reinstate- 'rnent made unconditional requests through Dorsainvil for reinstatement to their jobs. Fifteen of the strikers themselves testified that they asked Dorsainvil on January 16 to get their jobs back.21 Alvarado testified that six of the strikers were present when those requests were made , and, participated in the making of the request 22 Although Juan Seda did not himself testify, and Alvarado testified that he was not among those 21 These 15 strikers are in the order which they testified , Rene Sardinas , Jean Dorsainvil, Luis Alvarado, Wilberto Melendez, Ismael Areizaga; Eluterio Rivera, 'Rinneceo Nelson, Anthony Giaminusso , Wayne Blast, Carlos Pardo, Juan, Fernandez , Renaclides Fonesca, Joaquin Rubio, David Gonzalez, and Juan Zapata. r2 These six strikers are Henry Dunn, Jr., Edward (Joe) Harding, John Toscano,-'Felipe -Rivera, Pablo Vasquez, and Joe Nowaski. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present on January 16 when the requests were being made to Dorsainvil, there is no doubt that he was a striker 23 and that Dorsainvil made it plain to Sandler that all of the strikers wished to return to work. Thus there is no reason for excluding Seda. The arguments advanced by counsel for the Respondent against these findings seem quite untenable. There is no prohibition on employers against dealing directly with strikers who wish to abandon a strike, and seek reinstatement to their jobs. The strikers did not need the permission of the Union before they could seek to return to work. While Section 7 of the Act recognizes the right of employees to engage in concerted activities, it also recognizes the right to refrain from engaging in such activities. Consequently strikers may abandon a strike at any time, and no union may prevent them from reestablishing the employment relationship which they have not severed in any event by the mere act of striking. I also know of no requirement that before strikers can decide to return to work, they must adopt a formal resolution to return to work. The decision made by them in the cafeteria of the union hall and on the picket line was no less effective because it was informal. The same informality sufficed in the authorization of Dorsainvil to act as their spokesman, and to communicate to the Hot Shoppes management their desire to return to work. Dorsainvil did not have to prove his authority to act for them by an instrument under seal. Finally, the fact that the strikers made the offer to return to work as a group does not make their offer conditional. As the Board said in Draper Corporation, 52 NLRB 1477, 1479: "The offer to abandon a strike does not cease to be conditional merely because the offer contemplates a group return ...: . F. The so-called permanent replacements Having found that some of the strikers made individual applications for reinstate- ment after the strike, and that all of the strikers applied for reinstatement on January 17, it is in order to take a close -look at the so-called permanent replace- ments of the strikers. Counsel for the Respondent offered in evidence the employment application forms of 22 applicants for employment who, allegedly, replaced the 22 strikers who are seeking reinstatement in this proceeding. With one exception, none of the appli- cants was produced as a witness by the Respondent. Their applications cannot be .said to establish, therefore, that the representations made by the applicants were true. The applications were admitted in evidence, however, in order to show what representations the applicants made to the Respondent's personnel officials on the basis of which the applicants were employed. The applications were also admitted in evidence because they contained notations in the handwriting of Dietrich and Kramer who had interviewed the applicants. These notations are either special or regular. The special notations are usually made at the top of the application form, and no provision is made for them in the form itself, while the regular notations are those which the interviewer was required to make either in appropriate spaces or boxes. Examples of the special notations are the notation on the application form of Leonard Grum Amberman stating "he only worked 4 mos. and had to leave"; on the application form of Lewis I. Saitz, stating "can work shift work-stick shift OK-OK to hire-Knows airport"; or on the application form of Karl E. Mantenieks, stating "Driving experience limited 5 mos." Among the regular notations which the interviewer filled out were: Rate of Pay----------------------------------------------------- Part Time q Full Time q Perm. q Temp. q Job Title------------------------------------------------------- Hire Date------------------------------------------------------ If the applicant was to be hired as a handler, the starting rate of pay was stated as $1.90 an hour, while, if the applicant was to be hired as a helper, the starting rate of pay was stated as $1.85 an hour. Either Dietrich or Kramer regularly checked the "Perm." box in the case of each of the applicants. Of the 22 applications produced, the lines on which the applicants were to fill in the dates of the applications were left blank by 3 of them. The earliest dated ap- plication is on December 24, 1962, which is prior to the arrival of Dietrich in New York. There are three other applications that are dated in December 1962-two on December 28 and one on December 29. No less than seven of the applications are dated January 2, 1963, and no less than four of them are dated January 3, 1963. 23 Since the Hot Shoppes management treated him as a striker, there is no reason for not assuming that he participated in the strike. HOT SHOPPES, INC. 825 There are two applications that are dated January 4, 1963; there is one application that is dated January 5, 1963; and another that is dated January 7, 1963. The last two applications are those of applicants whose names are Eddie Morco and Jeffrey J. Carter, who were hired on the very same day that they made their applications. This certainly suggests undue haste, and a degree of haste almost as extreme is sug- gested by the dates of the other applications. Considering that no less than 17 of the replacements were hired on January 5, 1963, it is apparent that the great majority of them were hired after not more than a few days had elapsed since they made their applications. The haste in the hiring process is indicated no less clearly by affirmative evidence that the references of all of the applicants could not be checked before they were hired, and that they were not given physical examinations before they were employed, despite the fact that they were to handle food. The previous age and experience of the applicants who were hired as replace- ments is indicated in the following tabular summary: 24 Name of applicant Age Previous experience Jimmie R. Jones_______________ 27 Hospital aide. Leonard Grain Amberman____ 18 Jamaica bus company-washer John H Martin_______________ 19 Painter, maintenance, mail clerk. Mervin Graves________________ 23 Liquor packing, salesman; waiter. Alfred Brunelle________________ 26 Moving and trucking. John F. Groener_______________ 20 Cutter of materials, renewal clerk. Robert T. Stanley_____________ 20 Office clerk, stockroom. Manuel Pacheco_______________ 19 Dishwasher. Victor Zapata_________________ 24 Driver. Alfred Lozito__________________ 20 Machine milling; machine shop. Eddie Morco__________________ 21 Driver-welder; carpenter-helper. Jeffrey J Carter_______________ 21 In U.S. Navy-records and logs. J. Edward DeLoca, Jr_________ 20 Mechanic. Richard Havey________________ 38 Salesman; shipping-receiving, packing Wallace S. Knox_______________ 20 Driver. Lewis I. Saitz_________________ 20 Underwriter clerk. Karl E Mantemeks___________ 19 Mail clerk. James E. Burns_______________ 22 Driver; machine operator; driver. Theodore J. Hamm------------ 27 Refrigeration service; mechanic. Philip M. Kearney____________ 24 Driver; medic; landscaping and construction; guard. Robert M. Archambault______ 36 Fence installer; yards-driver, dishwasher; and poultryman. R. E Rossman---------------- 40 Television salesman; reporter, collector. It is apparent from this table that a majority of the applicants were very young. No less than 12 of them were 21 years of age, or under, and of these 12, one was 18 years of age; 3 were 19 years of age; 6 were 20 years of age; and only 2 were 21. The applications of four of the applicants in this age group show, moreover, that four of them had A-1 draft status, namely, John F. Groener, Alfred Lozito, Wallace S. Knox, and Lewis I. Saitz. It is apparent also from the table that the previous experience indicated by the applicants was not such as to recommend them to employment as flight employment handlers or helpers. Not a single one of them, so far as can be judged from their applications had any previous experience as handlers or helpers, or had ever had any connection with the preparation or handling of food. Curiously, moreover, of the seven applicants who claimed some driving experience, only three were actually hired as handlers, the other four being hired merely as helpers. The applications show, moreover, that of the 11 applicants who were allegedly hired as handlers, only 2 had chauffeurs licenses, which, the record shows, the Hot Shoppes had previously re- quired of all their drivers. The only two applicants who had chauffeur's licenses were Leonard G. Amberman and Alfred Lozito. The application of Victor Zapata is of special interest. He had previously been a flight equipment handler for the Hot Shoppes but he did not indicate this previous employment on his application. However, Freeman spotted this, apparently, in the Hot Shoppes personnel office in Washington, and made a notation on Zapata's ap- 24 According to the record made by Dietrich, all of these applicants were hired on Janu- ary 5, except Raymond E. Rossman, who was hired on January 6, and Robert T. Stanley, Victor Zapata , Jeffrey J. Carter; and Richard Havey, who were hired on January 7. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plication, reading "had several truck accidents." In fact, Zapatarhad been fired for wrecking a truck which he had been driving. As late as December 1962 Zapata had been seeking reemployment at the Rockaway Boulevard commissary but in vain. He was now rehired as a helper. Bank and Sandler demonstrated their usual .He in testifying about the previous employment history of Victor Zapata about which they could not but have known. Almost in the same breath, Bank both -denied and then admitted that he knew of Zapata's employment prior to the strike. Sandler testified concerning Zapata as follows: Q. Had he (Zapata) ever been employed by the company before the strike? A. Yes, I believe so. Q. Isn't it a fact that he was discharged on two occasions by the company, Mr. Sandler? A. I would not know. Q. How long have you known Victor Zapata? A. I have seen him off and on, a long time ago. There are also some indications that a considerable number of the applicants were hired for jobs for which they had not applied. Each application form had a box in which the applicant was supposed to indicate the position desired by him. Jimmie Jones indicated that he was applying for a job as "stock clerk." But the words "stock clerk" were crossed out and the initials "F. E. H." written over them 25 Robert T. Stanley applied for an office job but he was hired as a helper. Richard Havey applied for a job as "Cook-trainee" but was also hired as a helper. Others of the applicants may have been called to positions for which they had not applied. On at least five of the applications the box "Position Desired?" was left blank, and must also have been left blank on other applications, for there are six applications which show that the box "Position Desired?" was filled in in a handwriting, which, quite plainly is not that of the applicants 26 One of the principal contentions of counsel for the Respondent is that the airline catering business is "a round-the-clock" operation, and that in replacing the strikers the utmost consideration had to be given, therefore, to a particular applicant's availability to work on a particular shift. "Thus," it is argued, " in making replace- ment Dietrich had to coordinate the new man's availability and qualifications with the appropriate shift and classification of one of the strikers." It has already been shown that what Dietrich actually had to contend with was the applicants' lack of qualifications. As to whether there was also a shift problem, the applications themselves virtually negate this. Each application contained a box, "Hours Desired?" in which the applicant could indicate his preference. No less than 10 of the 22 applicants who, allegedly, replaced strikers wholly ignored the opportunity to indicate what shift they desired, leaving the box blank. Five others of the applicants did fill in the box but wrote in it the word "Any" or "Open," which, of course, would indicate that they would work on any shift. One applicant wrote in the box "8 hrs.," and another wrote in it "40 hrs." which was just another way of indicating that they were just interested in a job 27 One other applicant wrote in and below the box: "8 to 5, or any, except Tuesday or Wednesday, school." 28 This was not so much an indication of a desire for a particular shift as for particular nights off. Thus, 18 of the 22 applicants did not indicate that they wanted to work only on particular shifts. The remaining four applicants who did indicate some preference were Eddie Morco, who wanted to work from 12 a.m. to 8 a.m.; Richard Havey and Wallace S. Knox, who indicated a preference for daytime work; and Robert A. Archambault, who indicated a preference for nighttime work. Thus, actually, only a single applicant indicated that he wanted to work on a particular shift. Moreover, each application contained a line on which the interviewer could indi- cate the shift to which the applicant was assigned . This line was immediately above the lines on which the interviewer could indicate the employee's rate of pay, duration as The Initials "F E H." stand for both "Flight Equipment Handler" and "Flight Equip- ment Helper" but in filling in the spaces on the application designating the "Job Title" of an applicant Dietrich seems to have uniformly used the initials "F.E.H." only when he was hiring an applicant as a handler. Where an applicant was hired as a helper , the word "helper" was written in m See the applications of Mervin Graves, Alfred Lozito, Lewis I. Saitz, James E. Burns, Philip M. Kearney, Robert A. Archambault, and Raymond E. Rossman. - n These two applicants were, respectively, John F. Groener and Joseph E. DeLoca, Jr. 28 This ' applicant was the Karl E. Mantenieks who was still attending school. HOT SHOPPES, INC. 827 of his employment, job title, and hire date. Although these lilies were invariably filled in, Dietrich or Kramer, significantly, ignored the "shift" line, except in the case of Archambault, for whom the second shift was indicated. Furthermore; the testimony of some of the witnesses plainly indicates that; in the last analysis, the Hot Shoppes management officials who did the hiring deter- mined what shift an employee who was hired'should work, and that from 'time to time the shifts of employees were changed. Of course, this did not mean that if it was convenient an employee's preference would not be given some consideration;" it does mean, however, that Dietrich in filling the schedule was not the slave of fixed and predetermined shifts. The testimony of Wayne Blasi shows that he had nothing to do with determining the shift on which he worked. Blasi was the striker who was hired only a few weeks before the strike, and to whom Kramer and Bank had unburdened themselves about the Union. Blasi testified that when he was hired by Kramer, the latter "explained what the job entails and about the credit union, the hours and what shift I would be on." Blasi then went on to testify that Kramer called Bank down to the inter-' view, and that then they "talked to me some more about the job and what hours I would have to work, which would be the night shift." [Emphasis supplied.] The testimony of Theodore J. Hamm, the only one of the replacements who was called as a witness by counsel for the Respondent after he had been subpenaed to testify on behalf of the General Counsel, also shows that he had nothing'to do with determining the shift on which he would work. Hamm testified as follows: Q. You went to work immediately after you were interviewed? A. Well, I went to the flight kitchen, and from there they gave us regular hours. Q. I'm sorry, I didn't hear what you said. A. They gave us our regular schedule for the flight kitchen and I came back to work that night and went to work on nights. [Emphasis supplied.] Indeed, the testimony of Hamm utterly destroys the whole of the shift-matching theory, for Hamm, according to Dietrich's memorandum, was hired to replace Juan Zapata. The latter is one of the small number of employees whose shift is shown by the record. Zapata prior to the strike worked from 7 a.m. to 3:30 p.m. Yet Hamm, who supposedly replaced Zapata, was put on a nighttime shift. Moreover, the record also shows that Hamm's shift was subsequently changed. In a colloquy about whether Hamm should be excused upon the completion of his testimony, counsel for the Respondent stated that he had to take a flight out at, 2:30 p m. By his time, therefore, he was working on a daytime shift. Finally, the testimony of Dietrich himself is inconsistent with any precise shift- matching theory. In explaining how he filled the schedule in effect at the time of the strike, Dietrich testified: "In other words, some men could not work nights, or would not work nights and some preferred to work days, over nights, so de- pending on how I felt it worked out with the men's availability and his location as far as his transportation was concerned, and so forth, I proceeded to fill the schedule." [Emphasis supplied.] Furthermore, since the schedules were changed from time to time, periodic rearrangements of the shifts of the employees and their days off would be necessary. Passing now from the applications themselves to the memorandums that accom- panied them, it cannot be said that Dietrich did a very good job of matching the assignments which he indicated on the applications with the assignments he certified on the memorandums, or of matching the actual jobs of the replacements with the jobs of the strikers. He made, as he was almost bound to make, a considerable number of egregious errors, for he was merely a personnel officer whose activity was limited to hiring, and knew little about the actual operations of the commissary. Upon the application of Mervin Graves, whom, Dietrich stated in his accompany-. ing memorandum, he hired on January 5 as a permanent replacement for Jean Dorsainvil, Dietrich indicated that Graves was hired as a helper at $1.85 an hour, the starting rate for helpers, but in the accompanying memorandum Dietrich declared that Graves had been hired as a handler. But whether Graves was hired as a helper or a handler, he could not replace Jean Dorsainvil who was a dispatcher, a job that was both different from and superior to that of a handler. A dispatcher, while he also performed the same duties as a handler, was a very minor supervisory em- . ployee whose duty it was to make sure that a particular flight had been properly serviced. In the case of John F. Groener, who was supposedly hired as a replacement for Juan Fernandez, Dietrich matched perfectly the job title on Groener's application with the'job indicated on the accompanying memorandum. This job was-that of a 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD helper. But Groener was supposed to replace Juan Fernandez, and it is an un- doubted fact that Fernandez was a handler. Fernandez, who was one of the strikers who testified at the hearing, testified that he was a handler, and he surely must have known what his own job was, considering that he had been employed by the Hot Shoppes for 3 years. Again, in the case of Eddie Morco, who was hired supposedly to replace Rinneceo Nelson, both the entries on Morco's application and the accompanying memorandum agree that he was hired as a handler. If he really was a handler he could have replaced Nelson who had been a handler. But two of the Respondent's own wit- nesses, Bank and Hamm, testified that Morco was a helper. The replacement for John Toscano was supposed to be Robert Archambault but, while both the latter's application and Dietrich's accompanying memorandum agree that he was a handler, the fact is that Toscano whom he was supposed to replace was, like Dorsainvil, a dispatcher. Toscano was not himself a witness at the hearing but Luis Alvarado, who was, testified that Toscano was a dispatcher, and there is no good reason for doubting this testimony. There is more than one discrepancy in the case of Theodore J. Hamm, who was supposedly the replacement for Juan Zapata, who was a handler. On Hamm's ap- plication, Dietrich indicated that he was being employed as a handler. In the ac- companying memorandum, Dietrich stated: "On January 5, 1963, I hired Mr. Theo- dore Hamm as a Food Equipment Helper to replace Mr. Juan Zapata." But, in testifying as a witness for the Respondent, Hamm himself testified that he had been hired as a handler by Dietrich. As a handler, Hamm could have replaced Zapata, except for the fact that under the theory of counsel for the Respondent, their shifts would have had to be the same. But, as already mentioned, Zapata was on a day shift and Hamm was put on a night shift. Furthermore, Hamm testified that his first helper was none other than the Victor Zapata who had once been fired for wreck- ing a truck. But if Victor Zapata was acting as a helper to Hamm, he could not have replaced Edward Harding as a helper. To increase the confusion, Bank seems to have identified Hamm as a helper on the Hot Shoppes run schedule of March 29, 1963. In addition to Dietrich's and Kramer's memorandums, the Respondent offered still other paper records that only create another source of discrepancy. The Hot Shoppes personnel procedure required that whenever an employee was separated a Personnel Action Form (PAF) be sent to the home office in Washington, D.C. A PAF was made out by Sandler, therefore, for each of the 22 strikers who are seeking reinstate- ment. Shown the PAF's and asked to identify them, Sandler testified: "Yes, those are the PAF's I had made out on the day the employee was permanently separated." [Emphasis supplied.] Sandler was then asked the further question: "Will you notice the date on the form near your signature? Is that the date you prepared those forms?" and he replied: "That is the date I prepared it, yes, sir." But the date on these forms is not January 5, 6, or 7, the dates on which the strikers were, supposedly, permanently replaced. The date on each of the PAF's is January 14. Thus, in the PAF's Sandler gave the date of January 14 as the date of the permanent replacement of all the strikers. In addition to the discrepancies between the applications and the memorandums made by Dietrich or Kramer, there are two discrepancies between the hiring dates shown on both the applications and the memorandums and the hiring dates given in the Respondent's own payroll book. According to the record made by Dietrich, Robert T. Stanley and Victor Zapata were two of the four applicants who were hired on January 7 but the payroll book shows that they were hired on January 5. Finally, there is also a discrepancy between Dietrich's paper record and the Re- spondent's answers. The Respondent filed an answer, a first amended answer, and a second amended answer. The notation on the application of John H. Martin, who is alleged to be the replacement of Wayne Blasi, as well as Dietrich's memoran- dum concerning Martin, gives the date of Martin's hiring as January 5 but it is alleged in all three of the Respondent's answers that Wayne Blasi was permanently replaced on January 6. Having completed the survey of the so-called permanent replacements, it is now in order to inquire whether they proved permanent in fact. This is an inquiry that is attended with some difficulty, for Sandler and Bank made it quite evident that they were not too eager to reveal what had happened to the replacements. Sandler pleaded relative ignorance when asked whether he knew what had happened to all of them, and suggested that Bank would be the witness who would know. While some addi- tional information was obtained from the latter, as well as from Kramer, it was far from encyclopedic. HOT SHOPPES, INC. 829 Nevertheless, it was established at the hearing that no less than 11 of the 22 so- called permanent replacements-precisely one-half of them-had vanished like the snows of yesteryear. Leonard G . Amberman had resigned ; Manuel Pacheco and Eddie N. Morco had been discharged ; with respect to Richard Havey, Joseph DeLoca, Jr., Wallace Knox, Lewis I. Saitz , Robert T. Stanley, and Alfred Brunelle, Sandler testified merely that they were "no longer employed"; 29 with respect to Raymond E. Rossman and Robert Archambault , Kramer testified that they were "not with the company anymore ." The record shows affirmatively only that three of the so- called permanent replacements , Philip Kearney, John H . Martin, and Theodore J. Hamm were stilll in the employ of the Hot Shoppes at the time of the hearing, and that Jeffrey J. Carter and Karl Mantenieks were still employed on March 29, 1963.30 Thus the employment history of six of the so-called permanent replacements seems to be left totally blank. Yet it is not perhaps totally blank, for the record shows that additional new em- ployees were hired for the Hot Shoppes commissary , despite the so-called permanent replacements, in the week following the hiring of the latter . Indeed, this hiring proc- ess began the very day after the hiring of the so-called permanent replacements had been completed, and the number of additional employees hired during this week ran to seven as follows: Name of new Date of Job for Nanie of new Date of Job for employee hiring which hired employee hiring which hired Reinhardt Ludtke____ January 8___ Handler Joseph Manzella______ January 11 __ Helper. Fred Laurito _________ January 9___ Helper Dennis Grella____ ____ January 11__ Helper. Lawrence Gibson_____ January 10__ Helper. John Cronin __ ________ January 15 __ Helper. Richard Hummel ____ January 10__ Helper • - G. Concluding findings 1. The alleged Section 8 (a) (1) violations The complaint alleges only that the Respondent independently 'violated Section 8(a)(1) of the Act by interrogating its employees through Bank, and Sandler on various dates in January 1963 concerning the activities of the employees "on behalf of, and sympathy in and for the Union , and concerning the Union 's plans for a strike." Counsel for the Respondent object to the consideration of any violations of Section 8 (a)(1) of the Act other than those specifically alleged in the complaint, and since objection to receiving any evidence concerning any conversations between supervisors and employees occurring in any other month than January and relating to anything other than interrogations was voiced at the hearing, I shall not consider whether any incidents not covered by the allegations of the complaint , such as threats to employees to replace them permanently in the event of a strike, or the solicitations of Dorsainvil to return to work during the strike , constitute independent violations of Section 8(a)(1) of the Act. But such incidents may be considered, nevertheless, not only in determining whether the alleged interrogations were un- lawful but also as part of the general background of the Respondent 's scheme to replace the strikers. Indeed, such incidents form an integral part of this scheme. Thus, while I do not consider whether any part of the content of Smith 's speech which was delivered in December and which did not constitute , of course, an interrogation, was in itself unlawful , it is apparent that it was the first measure taken toward carrying out the contrived scheme of permanent replacement . The gloss put upon his speech by Smith himself in his conversation with Dorsainvil contains the first overt threat, even before the strike began, to replace any strikers per- manently, and the conversation between Bank and Dorsainvil suggests already the basic outline of the scheme which was shortly to be put into effect by the manage- ment officials of the Hot Shoppes. 29When Sandler was asked whether it was not true that Richard Haves' had been em- ployed only 1 day, his answer was that he could not recall ao This is the date of the run schedule wi ich was marked for identification as "General Counsel's Exhibit No 7," and on which their names appear. 830 DECISIONS OF NATIONAL LABOR }RELATIONS BOARD So far as concerns Bank's interrogations of Dorsainvil-on January 2 and 4, con- cerning the Union's strike plans, which are of' course, covered directly by the allegations of the complaint-I cannot accept the argument that there was a legitimate basis for the interrogations in operational requirements. According to their own testimony, the Hot Shoppes' management officials proceeded after the last negotiating session with the Union, which was on December 27, on the assumption that a strike was inevitable and were making all necessary preparations for replacing the strikers with personnel from other operations, and eventually with new employees. These preparations were already more than adequate when the interrogations took place. Furthermore, there is nothing to show that the Hot Shoppes' management officials needed to know the precise timing of the strike in order to avoid damage to ma- chinery or equipment, or even that food or food products would have been spoiled in the absence of such knowledge before adequate replacements could have been secured. On the contrary, the record suggests that Sandler and Bank wished to know the precise timing of the strike in order to jump the gun, so to speak, on the securing of the so-called permanent replacements. Interrogations, which are themselves part of an unlawful scheme, as will be shown, are themselves unlawful.31 I do not find any unlawful intent in the question put to Areizaga by Bank on January 7, concerning whether the strikers intended to come back to work, or in the questions put to Dorsainvil by Sandler on January 17, with reference to the visit of the strikers to the Union and the Board. All these questions were occasioned by the visits of strikers seeking to return to work, and were natural, if not inevitable, questions under the circumstances. 2. The refusal to reinstate the strikers It has been established that some of the strikers made, individually, unconditional offers to return to work, on various dates, and that all the strikers as a group made such an offer on January 17. The Respondent was bound to accept these offers, and to reinstate the strikers unless at the time the applications for reinstatement were made, the applicants had been permanenly replaced.32 The -burden of proving the replacement of a striker is, however, not on the General Counsel but on the Respondent who alleges the fact of replacement. This is a well-settled rule of evidence that has been uniformly followed by both the Board and the courts, and it is of crucial importance in assessing the evidence in the present case. As the Board said in New Orleans Roosevelt Corporation, 132 NLRB 248, 250: The courts have held that "Proof that jobs were unavailable was an affirmative defense, and the burden of establishing it rested upon the respondent company." Accordingly, it was for the Respondent to establish that it hired replacements before the time when the General Counsel's evidence showed the strikers had applied for reinstatement. This is also appropriate because the Respondent hired the replacements and it was therefore in a better position than the General Counsel to show when the hiring'occurred 33 a. The identity and timeliness of the replacements There are several alternative approaches to the evidence in this case. The first approach, which is the simplest but only partial, is to consider the evidence which bears upon the alleged permanent replacement of particular strikers. There are special factors present in some cases that are not present in others, and these factors are not limited, moreover, to the individual applications for reinstatement made by some of the strikers. There are six cases in which the discrepancies in the Respond- ent's own evidence are so serious that it cannot be said to have sustained the burden of proving that the alleged replacements' actually replaced the strikers in question. In the case of Jean Dorsainvil, who was a dispatcher, and whose alleged replace- ment was Mervin Graves, there are two such discrepancies. The first is that on Graves' application Dietrich indicated that he was being hired as a helper but, in ss See, for instance, Editorial "El Impartial," Inc., 123 NLRB 15'85, 1587, enfd. 278 F. 2d 184 (CA. 1). g' See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333; Kansas Milling Com- pany v. N L.R.B., 185 F. 2d 413, 419-420 (,C.A. 10) ; United States Cold Storage Corpora- tion, 96 NLRB-1108, enfd. 203 F. 2d 924 (C.A. 5), cert. denied 346 U.S. 818; American Optical Company, 138 NLRB 681. sa Citing N.L.R.B. v. Cambria Clay Products Company, 215 F. 2d 48, 56 (C.A. 6) ; N.L.R.B. v. J. U. Boswell Co., 136 F. 2d 585, 597 (C.A. 9). HOT SHOPPES, INC. 831 the accompanying memorandum concerning Graves, Dietrich ' recorded that he had been hired as a handler. The second discrepancy is that Dorsainvil was actually a dispatcher. Thus, whether , Graves was hired as a helper or a handler , he could not have been hired ' to replace Dorsainvil who was a dispatcher. In the case of Juan Zapata, who was a handler , and whose alleged replacement was Theodore J. Hamm, there is similarly a discrepancy between application and accompanying memorandum . On Hamm's application Dietrich indicated that he was being hired as a handler but, in the accompanying memorandum concerning Hamm, Dietrich recorded that he had been hired as a helper. But Hamm, the only one of the replacements who testified at the hearing, himself testified that he was employed as a handler. Dietrich's error may thus be said to be corrected by Hamm's, own testimony. But this testimony also reveals the discrepancy that Hamm was assigned to work on a different shift than Zapata whom he, supposedly, replaced. While the contention that the shifts are the keys to the replacement problem has been shown to be without any foundation , the shift discrepancy in the replacement of Zapata by Hamm nevertheless introduces an element of uncertainty and con- fusion which makes it possible that Hamm actually replaced some handler other than Juan Zapata. This possibility is strengthened by the fact that although Hamm also further testified that his first helper was none other than the notorius Victor- Zapata, Dietrich recorded in his memorandum that Victor Zapata had been hired as. a helper to replace E. Harding. Victor Zapata could not have replaced Harding, if he was a helper to Hamm. In the case of the three other discrepancies which involve the alleged replacement of Juan Fernandez by John F . Groener, of Rinneceo Nelson by Eddie Morco, and of John Toscano by Robert Archambault , the paperwork of Dietrich , as well as of Kramer, was flawless-the applications and the accompanying memorandums- agree-but the paperwork just does not correspond with the facts Although in. both paper sources Groener was declared to have been hired as a helper, the fact is- that Fernandez whom he was, supposedly,. to replace was a handler, as not only Fernandez himself but also Bank testified . Although Eddie Morco was declared in, both paper sources to have been hired as a handler, he actually was a helper, as both. Bank and Hamm testified , and he could not have been , therefore, the replacement for Nelson who was a handler . Finally, although Robert Archambault was declared in both paper sources to have been hired as a handler, and he worked as a handler- if he ever worked at all-he could not have been a replacement for John Toscano, who was a dispatcher, as Luis Alvarado testified. So far as Juan Zapata is concerned, moreover, the Respondent has not sustainedr the burden of proving that he had been replaced before he applied for reinstatement. Although Zapata did not call Sandler until the early afternoon of January 5, the evidence does not show affirmatively that he was replaced in the morning of that day, since Dietrich's work of replacement was not completed in that morning. As for Nelson, it is clear that he was replaced before he had even joined the strikers. Since he was not scheduled to work on January 4 and 5, and since he did not join the pickets until January 6, he was not a striker until sometime on January 6. Yet- Dietrich recorded in his memorandum that he had hired Eddie Morco to replace. Nelson on January 5. Moreover, since Nelson applied for reinstatement on Janu- ary 7 , he could not be denied reinstatement , even though he may have been replaced. It is well settled that a striker who has been discharged prior to his. replacement must be reinstated upon his application even if in the interim a replace- ment for him has been hired.34 There is, finally, the case of Anthony Giammusso , the only one of the strikers- who was neither a handler nor helper but a utility man or dishwasher . Since the- evidence shows that he was negotiating with Bank for protection in crossing the- picket line, and since he had been.promised such protection , he could not be replaced- until he had made it manifest that he was joining the strikers and that he would not cross the picket line. By sending a telegram to this effect , Giammusso put himself- in the same position as the other employees who had either joined the pickets or refused to cross the picket line. But since he did not send his telegram until 5:51 p.m . on January 5, and he was replaced much earlier that day by Manuel Pacheco, the position of Giammusso is essentially the same as that of Nelson. He is entitled to reinstatement upon his application notwithstanding the employment of Pacheco with instructions to report the following day. 34 See , for Instance, N.L R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 750 (C A. 9), and- other judicial, authorities there cited. See also Atlas Linen and Industrial Supply, 134- NLRB 1230, 1231. 744-670-65-vo] 146-54 .832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The permanence of the replacements A second and more basic approach is to consider the applications for reinstatement of all the strikers on January 17, in the light of the evidence concerning the permanence of all the replacements. This evidence compels the conclusion that none of the replacements were actually intended to be permanent at the time that they were hired. There are few problems that are more perplexing than the problem of determining whether an applicant for employment has been hired on a temporary or permanent basis. Jobs may be divided into two classes: those that are permanently temporary, and those that are temporarily permanent. The generality of employees have no employment contracts, and are not employed for definite terms. Their tenure is .during good behavior, and it is subject to the availability of work. When an applicant for employment is hired there may be, moreover, a little deceit on both sides. The applicant for employment may tell the prospective employer that he is interested only in a permanent job, although he intends to go back to school ,or college in a few months, or to leave as soon as he can locate a better employment prospect, or as soon as he comes into some property under an ailing uncle's will. The prospective employer may tell an applicant for employment, on the other hand, that he can offer him a permanent, if not a lifetime job, although in actuality he is really hiring him on a trial basis, or until his busy season is over. In the last analysis, the problem of determining whether a particular job should be regarded as permanent is one of intention but not infrequently what the parties have said to each other at the time the employment relationship has been established is far from the best guide to their intentions. A far safer guide to their intentions is to be found in the extrinsic circumstances surrounding the establishment of the employ- ment relationship and in the nature of the employment relationship itself. There are even greater difficulties, however, in determining whether a particular employee has been replaced, either on a temporary or permanent basis, when there are many jobs that are fungible. In the present case, the strikers were, with one exception, either handlers, helpers, or dispatchers. Although each one of these job categories was readily distinguishable from the others, there was nothing to dis- tinguish one handler from another handler, one helper from another helper, or one dispatcher from another dispatcher, except their respective names and personalities, and individual skills and experience. One handler could not be distinguished from another handler by virtue of the fact that he drove a particular truck, for a handler simply drove the truck that was at the platform when he left on a trip 35 He also could not be distinguished from another handler by virtue of the fact that he had a chauffeur's rather than a driver's license, since all handlers were required to have chauffeur's licenses. Handlers and helpers were distinguished from each other only by virtue of the fact that as long as a particular schedule was followed a particular handler normally worked with a particular helper. Since dispatchers also performed the duties of a handler, they must also have had particular helpers, although it is not entirely clear that this was always the case. The similarity of the duties of the employees in any one category is no doubt the reason why counsel for the Respondent have selected the shifts on which the different employees worked as the salient characteristic of their jobs but the evidence indicates quite clearly that the shifts were established by the supervisory personnel of the Hot Shoppes, and that there was nothing immutable or unchangeable about them. Actu- ally, counsel for the Respondent made no systematic attempt of their own at the hearing to establish the shifts of the various employees, and where the shift of a par- ticular employee is shown, the showing is wholly adventitious. It is obvious therefore that the selection of the shift structure as the key to the replacement problem is en- tirely an afterthought. The Board has held, moreover, that for the purposes of reinstatement the total complement of day- and night-shift employees must be con- sidered as a whole, and that strikers are entitled to reinstatement if vacancies existed on either the day or night shift.36 - It is significant also that in this case the Board described the employer's labor force as "essentially an amorphous, overall employee group." In view of the fungible nature of the jobs in any category, it is a rather remarkable feature of the present case that there is an indeterminate number of jobs that remains wholly unaccounted for. Smith, who, as district manager of the operations at the Rockaway Boulevard commissary, was in a specially good position to know, testi- fied that the transportation department consisted of handlers and helpers (dispatchers 95 Theodore J Hamm, one of the Respondent's own witnesses, so testified. 31 See Marydale Products Company, Inc., 133 NLRB 1232, 1234. HOT SHOPPES, INC. 833 who performed the duties of handlers would also be included) and that there were 32 or 33 employees in these categories. As the record shows only that 27 handlers, helpers, or dispatchers were at any time involved in the strike,37 there would appear to have been 5 or 6 of these jobs that were never filled at any time during the strike. It is perhaps even more remarkable that there is no direct and unequivocal proof that all of the so-called permanent replacements actually reported for work after they were hired. In the case of seven of the strikers, it is affirmatively shown that they reported for work,38 and worked for various periods but in the case of the others this is left entirely to inference. It is certainly not at all unheard of that an applicant for employment may be hired and then fail to show up, or that he may be asked to report for work at some later date.39 It will ordinarily be presumed, to be sure, that applicants who have taken the trouble to seek jobs, will take them when they have been offered to them. But, this presumption is not only less valid when the applicants have to cross a picket line to go to work; it is seriously weakened when the employer of the applicants furnishes only the vaguest information concerning their subsequent employment history and almost a third of the applicants have been replaced within a week after they have, supposedly, been hired. It is not without significance that Sandler and Kramer, in testifying about the so-called permanent replacements used such expressions as "no longer employed," or "not with the com- pany anymore," and gave no information whatsoever with respect to many of the other applicants. But assuming that all 22 of the strikers were actually replaced, it strains credulity to believe that they were intended to be permanent replacements. This incredulity is inspired by the precipitate manner in which the applicants were hired; the failure to check their references, or to give them physical examinations; the waiver of the chauffeur's license requirement; the character of the applicants-their youth, their lack of previous experience in food handling, and their general unsuitability; and the award to some of them of jobs for which they had not even applied. Incredulity mounts, however, when the applicants are compared with the strikers whom, supposedly, they permanently replaced. Although only 15 of the 22 strikers who are seeking reinstatement testified at the hearing, the nature of the jobs and the periods of employment of virtually all of them is established by the record. Over half of them had worked for the Hot Shoppes as either handlers or helpers for periods ranging from approximately 21/2 to 7 years. The nature of their jobs and the periods of their employment were as indicated in the following table: Name of employee Nature of job Approximate period of employment Name of employee Nature of job Approximate period of employment Juan Zapata__________ Handler_ 7 years. Juan Fernandez------ Handler____ 3 years. Eluterio Rivera______ Handler_____ 7 years Rmneceo Nelson_____ Handler_____ 3 years. Wilberto Melendez___ Handler_____ 7 years. Renachdes Fonesca___ Helper______ 3 years. Ismael Areizaga------ Handler____ 4 years Louis Alvarado_______ Helper______ 2% years. David Gonzalez ------ Helper______ 4 years. Rene Sardinas ________ Handler____ 2% years. Jean Dorsainvil______ Dispatcher-- 3 years. John Toscano________ Dispatcher-- 2% years. It is certainly not a mere coincidence that all' but three of these employees were handlers or dispatchers, for these were the more important jobs which would normally go to the steadier and more responsible employees. The handlers and dispatchers had to be able, moreover, to drive the specialized trucks employed in the flight servicing operations. They were thus the more valuable employees who would not lightly be replaced. Yet 3 of the 9 handlers in this group of 12 employees were, supposedly, replaced on a permanent basis by youths ranging in age from 18 to 20, and possessing A-1 draft status, namely Alfred Lozito, John F. Groener, and Lewis I. Saitz! It is certainly not surprising that only 2 of the replacements for employees in this group of 12 are still employed by the Hot Shoppes. 37 These 27, employees consist of the 6 strikers who returned to work by January 7-and- the 21 strikers who have never been reinstated. These seven are Robert T. Stanley, Victor Zapata, Philip Kearney, John H. Martin, Jeffrey J. Carter, Theodore J. Hamm, and Karl Mantenieks so Indeed, that this actually occurred in one instance in the present case is shown by the memorandum entered by Dietrich in the case of Pacheco. The memorandum reads: "On January 5, 1963, I hired Mr. Manual [sic] Pacheco as a Utility man to replace Mr. Anthony Giamusso [sic] to report for work 1/6/63 at 6:00 p.m." '[Second emphasis supplied ] 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is 'particularly instructive to take 'a look at the circumstances 'under, which Theodore Hamm, the alleged permanent replacement for Juan Zapata , one of the 7-year employees, was hired, and also at his unsuitability for the job of handler. Asked how long his employment interview with Dietrich in the morning of Janu- ary 5 had lasted, Hamm replied: "Not long, just a few minutes." Yet brief as the, interview was, Zapata claimed that Dietrich told him that he would have a per- manent job with the Hot Shoppes, despite the fact that he had bad eyes and had to wear glasses. It is hardly a cause for wonder that at least several days elapsed before he was allowed to drive one of the food equipment trucks even under supervision.40 I am aware that the mere unsuitability of replacements is not conclusive evidence that they could not have been intended to be permanent. An employer who is beset, by a strike will sometimes resort to desperate expedients . But the replacements in the present case were so patently unsuitable as to transcend even the limits of desperation; it is not natural to suppose that an employer, no matter how hard pressed will not turn over expensive flight servicing equipment to tyros in handling it; and I am convinced moreover that the Hot Shoppes management. never in fact did so. One of the apparent, puzzles of this case is why the 22 so-called -permanent replacements were hired at all, during the first 3 days of the strike when the Hot Shoppe's management had available twice their number in the experienced personnel flown in from its other operations. It would be natural to surmise that the jobs of servicing the flights while the strike was in progress was being handled by the latter while the temporary replacements were being tried out and trained and the Hot- Shoppes management officials were making, up their minds whether they should be permanently retained. There is, however, no need,. for surmise in this case. The testimony of Hamm makes it clear that the personnel from the other operations were used to train the, newcomers. Hamm testified that his period of training extended from 2 to 3 weeks. This testimony establishes that the period of training was not yet completed' when on January 17 all of the strikers offered to return to work, and if this period was not yet over, the Hot Shoppes management officials must still have been debat- ing among themselves whether the replacements should be kept on permanently, notwithstanding the fact that the PAF's had-already been sent on to Washington, D.C. Indeed, during the whole period of the strike, their, actions were consistent only with the assumption that under certain conditions they would be willing to take the- strikers back: This is established not only by the testimony relatingtto the individual attempts of some of the strikers to return to work but also by the testimony relating- to the group attempt of January 17. This testimony, makes it quite apparent that throughout the strike Sandler, Kunz, and Bank were ever ready to talk to the- strikers who contacted them, even though they had, supposedly, been permanently replaced. The purpose of talking to them could have been only to explore their- attitude toward the Union and the strike, to test their sentiments in order to deter-- mine whether to take them back. Kunz would not have told Zapata: "Okay, boy, you stand by," if he had really been permanently replaced. Sandler, Kunz, and Bank would not have talked to Areizaga about the meeting the strikers were planning- to have, nor would Bank have asked Areizaga subsequently to tell him what had happened at the meeting, if they were no longer interested in the services of Areizaga and of the other strikers. Finally, Sandler would not have gone to the Crossway- Hotel to hear what Dorsainvil had to say, or told the latter to get in touch with him again after he had contacted his superiors in Washington, D.C., if the fate of the strikers had already been sealed. 3. The contrived scheme of "permanent" replacement There is, however, a third and still more fundamental approach to the evidence in the case, and this approach makes it immaterial whether the Respondent actually replaced the strikers prior to their applications for reinstatement. The narrow issue of the permanence of the replacements , which was tendered by the Respond- 40 Incidentally, Hamm's testimony reflects seriously upon the credibility of both Bank- and Kramer as well' as upon his own credibility . It has been mentioned that Hamm testi- fied as a witness for the Respondent, although he had been subpenaed by counsel for the General Counsel. After receiving the subpena, Hamm was interviewed by- Bank and' Kramer Asked on cross-examination whether the latter had told him that if the strikers "got their jobs back you would be out of work," Hamm denied that they had said that "definitely" but he, did admit' that they had given him "a brief, rdsumf of what would! happen if they (the strikers) got their jobs back'or anything like that'. _ " HOT SHOPPES, INC. 835 ent's answer, is not really a genuine issue. If, in fact, the replacements were part -of a contrived scheme to make it possible for the Hot Shoppes management officials 'to'penalize various of the strikers and'to 'defeat their rights to reinstatement, the scheme was discriminatory and violated Section 8(a)('l) and (3) of the Act. If such violations occurred, replacement ceases to be a defense. The evidence is highly persuasive that the Hot Shoppes management engaged in a contrived scheme of "permanent replacement," and this evidence is both direct and circumstantial. The direct evidence is to be found in the threats preceding the strike and in Bank's explicit declaration to Dorsainvil that this time it would be an economic strike and that everybody who went on strike would be replaced. The circumstantial evidence is to be found in the implementation of the announced• intention under the tutelage of the Hot Shoppes counsel-the careful planning in advance of the strike, including the securing of the tentative replacements, and the interviewing of applicants who in turn might replace them, and the elaborate, as well as unique, paper record manufactured subsequent to the strike to establish the "permanency" of the replacements. , That this record would be vitiated by absurdities and blunders was more br ' less inevitable,' since, it had no correspondence with reality., Nevertheless, the paper schem`e'^Was undertaken, for it"enabled the Hot Shoppes management officials to take back such strikers as were believed td have learned their lesson and to have come begging-Little Joe Areizaga's "No, I_am not begging" is.eloquent in this regard-and'to cast into limbo such strikers as were believed not to have.yet learned that they must have nothing to do with unions and strikes. ' - The history of the administration of the National ' Labor' Relations Act reveals a constant struggle on the part of 'counsel for employers and labor unions to find loopholes in the Act of which their respective clients may take advantage. Thus, in recent years, counsel for employers invented the system of superseniority to impair and diminish, if not defeat, the right to strike. The right to grant artificial seniority to returning strikers and newly hired employees "was- assumed to be a necessary corollary of the employer's right, recognized in the Maekay'case, to replace strikers. The scheme devised by the Hot Shoppes lawyers was also based upon this right to replace strikers, and it may rightly be denominated a''scheme of superpermanent replacement, since it enabled the struck employer to operate with''a set of dual replacements, one temporary and the other permanent, on paper. ' Subsequent to the events in the present case, however, the Supreme Court of the United States in its decision in the Erie Resistor case 41 held superseniority, to be unlawful. It is apparent from this decision that the right of replacement recognized in Mackay is not absolute. It is accorded to the employer to enable him to operate his business when a strike has occurred and the strike is economic in nature. But even such a legitimate business purpose may not be accomplished in such a manner as to encroach upon protected rights. "When' specific evidence of a subjective intent to discriminate or to encourage or discourage union membership is shown, and found," said the Court, "many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices . The outcome may well be the same when intent is founded upon the inherently discriminatory or destructive nature of the conduct it- self." The protected right which was diminished by superseniority was, of course, the right to strike. In such situations, the task of the Board and the courts is one of bal- ancing interests---`'of weighing the interests of employees in concerted -activity against the interest of the employer in operating his business in a particular manner and of 'balancing in the light of the Act and its policy the intended consequences upon em- ployee rights against the business ends to be served by the employer's conduct." In the light of the decision in Erie Resistor, the real issue in every case is indeed whether the employer has acted only to preserve efficient operation of his business. Normally, the permanent replacement of an employee is an indication that the em- ployer has acted only to make it possible to continue the operation of his business. But even the permanent replacement of an employee is no defense if the employer's motive is to interfere with the protected rights of his employees or to discriminate against them. If the discharge of employees+for refusing to cross 'a picket line is an unfair labor practice if it is a part of a scheme, motivated 'by union animus,'of putting the employees in a position of either crossing the picket line, or quitting their employment, as was recently held,42 so is the replacement of the strikers-in carrying out the contrived scheme revealed by the evidence in the present case. The: discrimi- 41N.L.R.B. v. Erie Resistor Corp., et at., 373 U.S. 221.E 12 See N.L.R B v. Cone Bros' Contracting Co. etc., 317 F. 2d 3 (C.A. 5). - 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD natory nature of this scheme is highlighted by the reinstatement of some of the strikers, and the refusal of reinstatement to the others, as well as by the refusal to reemploy any of the strikers, although the Respondent was replacing the replacements within the first week of the strike. The device of superpermanent replacement, like the device of superseniority, repre- sents an abuse of the right of permanent replacement, which is given to an employer to enable him to run his business during an economic strike. The right of replace- ment is not given to an employer, however, as a means of enabling him to defeat the union organization of his employees. If an employer, while operating with temporary replacements, obtained prior to a strike, can create an irrebuttable pre- sumption of permanent replacement simply by making a paper record, a ready means will have been found of undermining the provision of Section 2(3) of the Act which preserves the status of economic strikers as employees and of impairing the declara- tion contained in Section 13 of the Act that nothing contained therein "shall be con- strued so as either to interfere with or impede or diminish in any way the right to strike." But, actually, far from creating an irrebuttable presumption, any employer who so departs from ordinary employment practices as to undertake to make a paper record of permanent replacement renders his motives suspect. The riddle may well be posed: When is a replacement for a striker not permanent? The answer to the riddle would seem to be: When a formal written record is made of the "permanence" of his replacement. Aware no doubt of the discriminatory implications of the Respondent's scheme of replacement, counsel for the Respondent argue that it cannot be charged with dis- criminating against the strikers by failing to offer them reemployment as vacancies occurred when all that is alleged in the complaint is the refusal to reinstate the strikers to their former positions. It is quite true that there is-at least for some purposes-a difference between the reinstatement of an employee and his reemployment. An employer who has legi- timately replaced an employee is under no obligation, when a vacancy subsequently arises, to seek out such an employee and offer him employment. But this is an entirely different question from the one whether an employer has discriminated against an employee at the very time when he applied for reinstatement. The failure or refusal to employ such an employee at a later time may well be regarded as evidence of the original discrimination. So far as the pleading problem is concerned, it does not necessarily follow, however, that an allegation that an employer refused to reinstate an employee does not permit proof that he was discriminatorily discharged at the time that he applied for reinstate- ment. The distinction between "discharge" and "replacement" is an artificial and empty distinction which was finally abandoned by the Board in Redwing Carriers, Inc., 137 NLRB 1545, after it had been criticized in N.L.R.B. v. Rockaway News Supply Company, Inc., 197 F. 2d 111 (C.A. 2), affd. 345 U.S. 71. Even before this, how- ever, the distinction had been abandoned for pleading purposes. In Atlas Linen and Industrial Supply, 130 NLRB 761, a case involving an economic strike, the Board at first held that the allegation of the complaint that the Respondent had failed to rein- state strikers could not support findings of discriminatory discharge but on recon- sideration 43 held that the complaint was sufficient. Said the Board: "An allegation that an employer has refused to reinstate or reemploy economic strikers because they engaged in protected activity could encompass the issue in question here." This was only a recognition, as the courts had frequently held, that the niceties of pleading had no place in Board proceedings. Despite its generality, the complaint in the present case does allege that the Respondent, by discharging two of its employees- Juan Zapata and Mario Laboy 44-and by refusing to reinstate the strikers who were seeking reinstatement, interfered with, restrained, and coerced its employees in viola- tion of Section 8 (a)( I) of the Act, and discriminated with respect to the hire and tenure of employment of its employees in violation of Section 8(a) (3) of the Act. It would seem that these allegations are sufficient to support the conclusion that the Respondent violated these provisions of the Act by its contrived scheme of permanent replacement. It was inevitable that the discriminatory nature of this scheme would be fully litigated when the Respondent made the issue of the permanence of the replacements the fulcrum of its defense. +a 134 NLRB 1230. While the case of Laboy, which is considered infra, is undoubtedly a special case, since he at no time was involved in the strike, there is nothing special about the case of Zapata, and there is no adequate basis in pleading requirements to distinguish between his "dis- charge" and the refusal to reinstate him as a striker. HOT SHOPPES, INC. 837 4. The conversion of the nature of the strike There is however, a final issue which must still be considered , and that is the allegation of the complaint that the strike was prolonged by the unfair labor practices of the Respondent in discharging Zapata and Laboy, and in refusing to reinstate any of the strikers when they offered to return to work . If the strike was prolonged by any of these unfair labor practices, the claimed permanence of the replacements would become immaterial also for this reason. The strike was undoubtedly economic in origin . This is impliedly conceded in the complaint when it is alleged that the strike was prolonged by unfair labor practices of the Respondent, and the economic nature of the strike is, moreover, established by the evidence. To convert an economic strike into an unfair labor practice strike, it must be shown, however, not only that unfair labor practices occurred but also that there was a relation of cause and effect between the occurrence of the unfair labor practices and the prolongation of the strike. The principal argument of counsel for the Respondent to establish that there was no causal relationship between the alleged unfair labor practices and the prolongation of the strike seems to be based on the fact that in a meeting arranged by the New York State Board of Mediation for January 9, and which was attended by representatives of the Union , and the Hot Shoppes management , the Union never raised the question of the Respondent 's refusal to reinstate any of the strikers. Counsel for the Respondent contend that a strike cannot possibly be said to have been prolonged by issues to which the union has never adverted and that this is established as a -general proposition of law by the decision in Mission Manufactur- ing Company, 128 NLRB 275 , and in Anchor Rome Mills, Inc., 86 NLRB 1120. In Mission, the respondent had excluded the union from grievance procedure while the strike was in effect, and this was held to be illegal, but the contention that this illegal exclusion had prolonged the strike was rejected on the ground that the matter had not been made an issue in the meetings between the respondent and the union. There was nothing in this case , however, to indicate that a universal proposition of law was being established to the effect that a strike could never be said to have been prolonged by anything that a union did not make an issue of. The same is ture of Anchor Rome Mills in which it was contended that the threats made in letters to three strikers to discharge and replace them had prolonged the strike. Counsel for the Respondent quoted the following comment from the Board 's decision: "Although the Union met with the Respondents on April 18 and May 17, 1948, for further contract discussion , it does not appear that there was any discussion at these meetings of the reinstatement of the strikers who had received the letters , nor, in fact, that reinstatement of strikers was at any time at issue between the Union and the Respondent." Counsel refrained from quoting, however, the sentence that imme- diately follows this quotation . "Furthermore," the Board went on to say, "it does not appear that the Union knew of-the three letters which the Trial Examiner found prolonged the strike, that the three strikers at any time applied for and were denied reinstatement, or that such application appeared to be futile." [Emphasis supplied.] Far from establishing that anything not brought up by a union cannot possibly be, said to prolong a strike, it is clearly implied in the Board's additional statement that if the strikers had applied for and been denied reinstatement, there might be a basis for concluding that the strike had been prolonged. There are indeed no general rules which govern the determination of the factual question whether a strike was prolonged by a particular cause . This question must be decided on the basis of the facts of each case. Certainly, when a union that has called a strike is made aware of the fact that the employer is threatening to discharge strikers who refuse to return to work and the union fails to register any protests or take any action in its meetings with the employer but continues the strike, it is normally to be presumed that the strike was not prolonged by the threats of dis- charge. Such a presumption is not to be indulged , however, when the strikers are actively seeking reinstatement while the strike is still in progress. Such steps by strikers are calculated , ordinarily, to lead to the collapse of a strike, and a union that is pursuing its own objectives is very likely to ignore the attempts of individual strikers to return to work . In such a situation , it is more logical to assume that refusals of requests for reinstatement do have a tendency to prolong the strike. Indeed, although it cannot be said in any case that any one particular factor, is decisive, of all the causes that may prolong a strike, the one that is perhaps most likely to do so is the refusal to reinstate strikers desirous of returning to work, and it is not merely a coincidence that this seems to be one of the two most common reasons for holding that strikes have been prolonged , the other being refusal to bargain. - 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am persuaded by the evidence in this case that the refusals to reinstate the various strikers who, individually, applied for reinstatement had the effect of pro- longing the strike. This conclusion is not only justified by the general tendency of such refusals to prolong a strike but also by the circumstances, already related, indi- cating the unpopularity of the strike in the present case from its very inception. Brief as the strike was-it lasted no more than .2 weeks-it would have been even briefer if the Hot Shoppes management officials had shown the slightest responsive- ness to the efforts of a number of the strikers to return to work. Had they done .so, the strike would have collapsed even sooner than it did. Instead, secure in -their ability to continue operations with their more than ample temporary replacements, they played a sort of cat-and-mouse game with the strikers, and this they were -enabled to do by putting into immediate effect the contrived scheme of replacement. While one of the causes that ultimately led the strikers as a group to abandon the strike appears to have been the failure of the Union to pay them strike benefits, this was only the last straw. Their group solidarity never appears to have been very strong, considering that more than half of them made individual efforts, conditional and unconditional, to get back to work. I am unable to accept various other arguments of counsel for the Respondent against the conclusion that the refusals to reinstate the strikers prolonged the strike. I do not believe that it was incumbent on the General Counsel to show explicitly that the union officials wanted the strike to continue as a protest against the unfair labor practices, or that the pickets bore signs indicating that they were protesting against unfair labor practices, or that the individual strikers who were denied reinstate- ment communicated their disappointment to the other strikers, and expressly declared that they would continue the strike because-they had been denied reinstatement. Insofar as the argument is based on the, desires of the Union, it is only another manifestation, of the untenable theory that a union has, so to speak, a vested interest in a strike, and that the strikers themselves cannot encroach upon his interest. Insofar as the function of the picket signs is concerned, they constitute only one item of evidence, and are not exclusive indications of intention, or of the objective of a strike, or the wishes of the strikers. As for the other arguments, they seem to be based on the fallacious theory that a causal connection between unfair labor prac- tices and the prolongation of a strike can be established only by direct evidence. It is true that there is no affirmative showing that any of the individual strikers who were refused reinstatement communicated the refusals, to their fellow strikers but a strike is, in its very nature, a concerted activity, and it is -to be assumed that such communications occurred. In fact the record is replete with evidence that the strikers were in constant communication with each other. It remains only to determine the date when the economic strike was converted into an unfair labor practice strike, for it is as of the date of such conversion that an employer forfeits the right to make replacements.45 No specific date is explicitly assigned to the event in the complaint but it was either January 4 when the Respond- ent put into immediate effect the contrived scheme of replacement which had been previously devised, or when, in first applying this scheme, on January 5, it denied reinstatement to Juan Zapata. It is, however, immaterial whether January 4 or S is accepted as the date of conversion.46 H. The special case of Mario Laboy The case of Mario Laboy with respect to whom the complaint alleges simply that be was discharged because the Respondent believed that he had participated in the strike is, of course, different from the cases of the strikers. He never in any way participated in the strike and he was undoubtedly discharged. The issue in his case is simply whether he was discharged for a legitimate reason rather than for the reason alleged in the complaint. On December 27, 1962, Laboy, who had been in the employ of the Hot Shoppes for about 3 years and who was a helper at the time of his discharge, received a telegram from Puerto Rico informing him that his sister had died. Laboy approached Bank the next day and asked the latter if he could take his vacation at that time. 'a See N.L.R B. v. Pecheur Lozenge Co., Inc., 209 F. 2d 393 (tC.A. 2), cert. denied 347 U.S 953, and earlier authorities there cited '0 While the record shows that Zapata did not request reinstatement until the afternoon of January 5, and that many of the strikers had been tentatively replaced during, the morning of January 5, the Respondent failed to identify the latter, and it is not possible to determine, therefore, what strikers had been replaced before Zapata applied for re- instatement. As the burden of establishing this was on the Respondent, all the strikers are entitled to reinstatement. HOT SHOPPES, INC. 839 Bank denied this request, however, on the ground that they were busy, and gave Laboy a week's leave of absence 47 to allow him to attend his sister's funeral in Puerto Rico. The last day that Laboy worked for the Hot Shoppes was December 28, 1962. He flew to Puerto Rico the following day but he did not return to New York until January 12, 1963. He thus overstayed his leave by more than a week. The reason for Laboy's failure to return on time was that when he left the United States, he neglected to book return passage. When he attempted to obtain passage on January 2, the earliest accommodation he could secure was for January 12. De- spite the fact that he knew as early as January 2, moreover, that he would overstay his leave, he did not communicate with anyone at the commissary in New York until January 9. He telephoned to Hector Reyes but the latter was out, and Laboy spoke to Carlos Francos, one of the supervisors, and explained to the latter that he would be delayed in returning from Puerto Rico. Francos promised to talk to Laboy's boss and report what Laboy had told him. The day after Laboy reached New York, which was Sunday, January 13, he telephoned Francos who then told him that he had been discharged. "He told me," testified Laboy, "that he had spoken to the boss and they told him they had discharged me because I did not come back in time." Francos suggested, however, that he might come in on Monday and talk to someone in person. About 9 o'clock on Monday morning, therefore, Laboy went to see Sandler. With respect to his interview with Sandler, Laboy testified as follows: He told me that they had given me five days and that I did not come back and then he said that, well, he could not give me back the work because my work had been given to someone else on the permanent basis. [Emphasis supplied.] Although Bank was a witness at the hearing, the only question put to him with respect to the case of Laboy was whether Horace Williams, an applicant for employ- ment, who was hired to replace' Laboy, was still working for the Hot Shoppes. Bank answered this question in the affirmative. Another of the Respondent's witnesses with respect to the case of Laboy was Dietrich who testified that in addition to hiring replacements for the strikers, he hired, at the request of Sandler, replacements for the two employees, who; Sandler told him, had not returned from Puerto Rico. These two employees, Dietrich testified, were Laboy and another employee by the name of Battencourt. Williams was hired by Dietrich on January 5. Finally, Sandler him- self testified with respect to the discharge of Laboy as follows: Q. When did Mr. Laboy return from Puerto Rico? A. I don't know exactly when he returned. I know he came to my office on January 21st. _ Q. Are you certain it was January 21st? A. No, I don't think so, I am not certain whether it was the 21st or not. Q. Do you know about what day it was? A. It was on a Monday after,the strike was ended. Q. Do you know what day the strike was over? A. About the 18th or 19th, something like that. Q. Do you remember what day of the week that was? A. Saturday and Sunday, so it must have been Monday, the 21st, yes, sir. Q. Was Mr. Laboy replaced prior to January 21st? A. Yes, he was. Q. And why was he replaced? A. As far as I recollect, he asked Mr. Bank for some leave, funeral leave, to go to Puerto Rico for two days and he did not return, and he did not notify us, so we replaced him. [Emphasis supplied.] Nothing could indicate better Sandler's unreliability as a witness than his testimony concerning the discharge of Laboy. It is inconceivable that Laboy, whose job was at stake, would have waited a whole week after his return from Puerto Rico before he talked to Sandler. There is not the slightest doubt that Laboy went to see Sandler on January 14. Yet Sandler, was quite sure that Laboy had come to see him on January 21. But even more incomprehensible is Sandler's testimony that Laboy was granted 2 days' leave to attend_a funeral in Puerto Rico! 41 On his direct ' examination , Laboy testified- that he obtained leave for a week but on cross-examination he testified that'Bank gave him 5 days and told him to "come back on Wednesday." This testimony Is not, however, necessarily contradictory. A' week and 5 days would amount to the same thing, since Laboy was off on Tuesdays and Wednesdays. If Laboy correctly recalled that Bank specified' that he should return on Wednesday, he could `not have meant that he should return to work on` Wednesday, which was January 2. I think that it is a fair conclusion that Laboy's leave was Intended to expire either on January 3 or 4. The latter date is, however, the more likely. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Laboy was somewhat remiss in overstaying his leave, it must be doubted that he would have been immediately replaced even under ordinary circumstances. After all, he was a 3-year employee, and he had taken leave to attend the funeral of a sister. His forgetfulness in such a mournful situation would be readily under- standable. But the conduct of Bank and Sandler are not to be judged in the light of ordinary circumstances. Even when Laboy was asking Bank for the funeral leave, they were expecting a strike and taking measures to secure replacements. Although Bank told Laboy that he could not let him take his vacation because they were busy, he undoubtedly also had in mind the impending strike. When Laboy's leave expired, the strike was an accomplished fact, and Dietrich and Kramer were literally scouring the woods for possible replacements. In the crisis engendered by the strike, the Hot Shoppes management would hardly have given a second thought to the absent Laboy, and if they did think of him, it would be to wish that he, who was one of their experienced helpers, would hurry back from Puerto Rico. Instead they replaced Laboy on the day after the strike with Horace Williams, a construc- tion laborer who had moved to New York from Savannah, Georgia, only a few months previously. Williams, as is shown by his application, had applied for a job and had been interviewed by Dietrich on January 4. If Laboy was being replaced merely because he had overstayed his leave and the need for replacing him was urgent, there was no impediment to putting him to work right.,away. But Dietrich hired Williams as of January 5, and, as in the case of all the other strikers who were hired as of January 5, also checked the "permanent" box in his case. Of course, Dietrich did not produce any memorandum certifying that Williams had replaced Laboy as a helper but this is hardly to be expected. Nevertheless, the fact that Laboy was replaced on January 5, the very same day that most of the strikers were being replaced, is not just a coincidence. Since Laboy was a helper, his name was on the schedule of runs, and since, as Dietrich testified, Smith told him to fill the existing schedule, Laboy was necessarily "permanently replaced." This testimony indeed renders implausible Dietrich's further testimony that Sandler told him specifically to replace Laboy as one of two employees who had not returned from Puerto Rico. I find that Laboy was replaced on January 5 not because he had overstayed his leave but because Dietrich erroneously assumed that he was one of the strikers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III of this report, occurring in connection with the operations of the Respondent described in section I thereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Since the unfair labor practices committed by the Respondent go to the very heart of the Act, I shall recommend not only that it shall cease and desist from committing these specific unfair labor practices but also that it shall cease and desist from infringing any of the rights guaranteed to employees by Section 7 of the Act. Having found that the Respondent unlawfully refused to reinstate the 22 strikers who are seeking reinstatement and who unconditionally requested reinstatement (the names of these strikers and the dates on which they first applied for reinstatement appear in Appendix A to this report), and having found that the Respondent dis- criminatorily discharged Mario Laboy, I shall also recommend that the Respondent offer to each of these employees immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him, discharging, if necessary, any new em- ployees hired subsequent to the date of his request for reinstatement, or discharge, as the case may be. I shall also recommend that the Respondent make each of these employees whole for any loss of pay he may have suffered by reason of the Respondent's unlawful conduct by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the Respondent's unlawful refusal to reinstate him (in the cases of each of the strikers), or from the date of his discharge (in the case of Mario Laboy), to the date that the Respondent offers reinstatement to each of them, less his net earnings during said periods in accordance with F. W. Woolworth Company, 90 NLRB 289. Interest shall also be computed on such amounts in accordance with Isis Plumbing-& Heating Co., 138'NLRB 716. THE EVENING NEWS ASSOCIATION 841 CONCLUSIONS OF LAW 1. The Respondent, Hot Shoppes, Inc., is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union, Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating their employees concerning their union and other concerted activities, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices in violation of Section 8 (a) (1) of the Act. 4. By refusing to reinstate on the dates set opposite their names the 22 strikers listed in Appendix A to this report, although they had unconditionally applied for reinstatement, and by discharging Mario Laboy, the Respondent discriminated with respect to the hire and tenure of employment of these employees, and committed unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. [Recommended Order omitted from publication.] APPENDIX A LIST OF STRIKERS WHO MADE UNCONDITIONAL APPI:ICATIONS FOR REINSTATEMENT Date of first Name of striker: application Juan Zapafa___________ January 5 Rinneceo Nelson_______ January 7 Juan Fernandez------- January 11 Carlos Pardo__________ January 11 Wayne Blasi__________ January 11 Jean Claude Dorsainvil_ January 17 Rene Sardinas_________ January 17 Luis Alvarado-------- January 17 Wilberto Melendez____ January 17 Ismael Areizaga_______ January 17 Eluterio Rivera________ January 17 Date of first Name of striker: application Felipe Rivera________ January 17 Anthony Giammusso__ January 17 Renaclides Fonesca___ January 17 Joaquin Rubio_______ January 17 Henry Dunn, Jr------ January 17 David Gonzales------ January 17 Joe Nowaski_________ January 17 Juan Seda___________ January 17 Juan Toscano________ January 17 Pablo Vasquez_______ January 17 Edward (Joe) Harding- January 17 The Evening News Association , Owner and Publisher of The Detroit News and Newspaper Guild of Detroit, American Newspaper Guild, AFL-CIO. Case No. 7-CA-3985. April 14, 1964 DECISION AND ORDER On December 9, 1963, Trial Examiner William J. Brown, issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision and support- ing briefs. 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 [Members Leedom, Fanning, and Brown]. 146 NLRB No. 101.