Little Rock Airmotive, Inc.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Little Rock AirmotA, Inc and Progressive Lodge No 997, International Association of Machinists and Aerospace Workers, AFL-CIO Case 26-CA-3319 May 22, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On October 13, 1969, Trial Examiner Benjamin K Blackburn issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs The Respondent also filed a reply brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case„ and hereby adopts the findings, conclusions, and recommendations of the, Trial Examiner as modified herein The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(3) and (1) of the Act by its refusal to reinstate five replaced economic strikers, subsequent to their unconditional offers to return to work, the departure of replacements, and the creation of vacancies in their classifications However, we disa- gree with the Trial Examiner's conclusion that Respond- ent did not violate Section 8(a)(3) and (1) of the Act by its failure to reinstate two other strikers, Kenneth Thompson and Walter Ogden As noted more fully in the Trial Examiner's Decision, Kenneth Thompson had been employed as a painter by Respondent since April 1968 Thompson participated in the strike of January 21 to January 31, 1969, and, with the group of strikers, offered himself for reinstate- ment on February 1, when he was told he had been replaced On February 17, Thompson sent a letter to Respondent requesting that he be recalled to work when "there is an opening in my classification or any other comparable job " In addition, Thompson contacted Respondent on two other occasions, once in person and once by telephone In the -iriterirn on February 6, Thompson had gone to work for Koolvent Aluminum Awning Company at less pay than he would have received with Respondent Although the job with Kool- vent involved some painting, it did not regularly involve painting but consisted mostly of installing awnings and gutters Respondent hired painters on February 12 and March 13, but did not offer employment to Thompson Walter Ogden was hired by Respondent in early 1968, and at the time of the strike, in which he participated, was employed as a trimmer After the strike, Ogden sought reinstatement on February 1, 1969, and on Febru- ary 13 sent Respondent a letter stating he wished to be recalled Ogden was not contacted for reinstatement although Respondent hired employees in his classification on March 4, April 16, and June 3, 11 „and 16 Ogden had an operation and had only returned to light duty 2 days prior to the strike When he was not recalled, Ogden drew unemployment compensation before he commenced work for Arkansas Sheet Metal Ogden was physically incapable of performing the work at Arkansas Sheet Metal because of his previous surgery Thereafter, Ogden worked for Phelps Fan for about 4 weeks before he left to work for his brother as a commercial trash hauler At Phelps Fan he received less than his rate at Respondent and was laid off from his commercial trash hauling work about 1 week before the hearing in this case The Trial Examiner found that both Thompson and Ogden had acquired regular and substantially equivalent employment prior to the time Respondent hired employ- ees in their respective classifications and had therefore ceased to be employees of Respondent at the time jobs became available for them Contrary to the Trial Examiner, we find that Thompson and Ogden continued as employees under the principles of our Laidlaw deci- sion' and were entitled to reinstatement The question of what constitutes "regular and substan- tially equivalent employment" cannot be determined by a mechanistic application of the literal language of the statute but must be determined on an ad hoc basis by an objective appraisal of a number of factors, both tangible and intangible, and includes the desire and intent of the employee concerned Without attempting to set hard and fast guidelines, we simply note that such factors as fringe benefits (retirement, health, senior- ity for purposes of vacation, retention, and promotion), location and distance between the location of the job and an employee's home, differences in working condi- tions, et cetera, may prompt an employee to seek to return to his old job As noted hereafter, we not only find contrary to the Trial Examiner that on the facts here presented neither Thompson nor Ogden had sub- stantially equivalent employment but note that the Trial Examiner gave no weight to the fact that both Thompson and Ogden expressed a continuing interest in returning to their jobs Thompson, who was` a painter, did not regularly per- form painting for Koolvent Aluminum Awning Company where his job paid him substantially less than he earned at Respondent In addition, after taking employment with Koolvent, Thompson did not abandon his employ- ' The Laidlaw Corporation 171 NLRB No 175 enfd 414 F 2d 99 (C A 7 1969) 182 NLRB No 98 LITTLE ROCK AIRMOTIVE, INC ment with Respondent He continued to make his availa- bility for reinstatement known through his letter, person- al contact, and by phone Similarly, Ogden's job at Arkansas Sheet Metal did not constitute regular and substantially equivalent employment since he was physi- cally incapable of performing this job, whereas he was physically capable of performing his job with Respond- ent Both Thompson and Ogden lost seniority by Respondent's failure to reinstate them, both received less pay, and both wished to return to their former jobs with Respondent Under these circumstances, we find that Respondent violated Section 8(a)(3) and (1) of the Act when it failed to offer reinstatement to Thompson on February 12, 1969, when a job as a painter became available2 and when it failed to recall Ogden on March 4, 1969, when a less senior striker's replacement in the trim shop left Respondent's employment 3 Therefore, we will order that Respondent offer reinstatement and backpay to Kenneth Thompson and Walter Ogden in the same manner that the Trial Examiner recommended for the other employees discriminatorily denied reinstatement Accordingly, the Trial Examiner's Conclusion of Law number 3 is hereby modified by adding the name of Kenneth Thompson on February 12 and the name of Walter Ogden on March 4 Conclusion of Law number 5 is modified by deleting their names and respective dates 4 ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Little Rock Airmotive, Inc , Little Rock, Arkansas, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified 2 Although the available job on February 12 was allegedly only part time Thompson being most senior was entitled to recall at that time Respondent hired a full time painter on March 15 at which time Thompson would have been entitled to full time reinstatement The other painter unlawfully denied recall Frank Nosal therefore would be entitled to an offer of reinstatement on the later March 15 date Whether the part time nature of the work of the painter hired on February 12 continued after March 15 or became a full time job is a question that we will leave to the compliance stage of the proceeding ' The Trial Examiner concluded that stoker Robert Edwards less senior than Ogden should have been reinstated on March 4 since it was his replacement who had departed leaving a job available Howev er Respondent claimed to be recalling employees on the basis of seniority in which case Ogden more senior than Edwards should have been recalled first Therefore we find that Ogden should have been recalled on March 4 and Edwards on April 16 when Respondent hired another employee in the tom shop Accordingly the Trial Examin er s recommended remedy and conclusions of law are hereby modified to reflect our changes in the dates that Thompson Nosal Ogden and Edwards were entitled to reinstatement " In view of the fact that Ralph Smith testified that he would not return to Respondents employ as a probationary employee we will not disturb the Trial Examiner s conclusion that the complaint should be dismissed as to him 667 I Paragraph 2(a) of the Trial Examiner's Recom- mended Order is amended Eby inserting the names "Ken- neth Thompson, Walter Ogden," after the name of Frank Nosal 2 Paragraph 2(b) is amended by inserting the names "Kenneth Thompson, Walter Ogden," after the name of Frank Nosal 3 Amend the third and fourth indented paragraphs of the notice , marked Appendix, to include the names "Kenneth Thompson, Walter Ogden" following the name of Frank Nosal ' TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K BLACKBURN, Trial Examiner Prog- ressive Lodge No 997, International Association of Machinists and Aerospace Workers, AFL-CIO, referred to herein as the Charging Party or the Union, filed an unfair labor practice charge against Little Rock Airmo- tive, Inc , referred to herein as Respondent, on March 21, 1969,1 and amended it on April 14 The General Counsel of the National Labor Relations Board, by the Regional Director for Region 26 (Memphis, Tennes- see), issued complaint on' May 9 It alleged that Respond- ent violated Section 8(a)(3) and (1) of the Act by failing to reinstate nine named strikers on various dates although they had made an unconditional' offer to work Respon- dent' s answer , duly filed, admitted certain allegations of the complaint and denied others, including the allega- tions that it had committed unfair labor practices The answer stated, with respect to one of the nine named discriminatees , that Respondent had failed to reinstate him by mistake and had since done so and made him whole At the hearing I granted the General Counsel's motion to delete the name of Brewster Wilhx from the complaint Consequently, the issue litigated at the hearing before me, held pursuant to due notice on July 9 and 10 in Little Rock, Arkansas, was whether Respond- ent had violated the Act under the Board's Laidlaw2 doctrine by failing to reinstate Kenneth Thompson, Wal- ter Ogden, Ralph Smith, James Bryant, Don Ballard, Arvid Straschinske, Frank Nosal , and Roberta Edwards All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evi- dence, to examine and cross-examine witnesses , to argue orally, and to file briefs Upon the entire record, including briefs filed by Respondent and the General Counsel, and from my observation of the demeanor of the witness- es while testifying under oath, I make the following All dates are 1969 unless otherwise specified ' ' The Laidlaw Corporation 171 NLRB No 175 enfd 414 F 2d 99 (C A 7) 1 Given name as corrected at the hearing 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Arkansas corporation, is engaged in the business of customizing and servicing private aircraft. During a 12-month period just -prior to issuance of the-complaint herein , it received materials valued in excess of $50 ,000 at its place of business in Little Rock which were shipped directly to it from points outside Arkansas and it shipped goods valued in excess of $50,000 directly to points outside Arkansas. On the basis of these admitted facts , I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges , the answer admits , and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts The Union was certified as the representative of Respondent's production and maintenance employees on July 9 , 1968, as the result of an election held in Little Rock Airmotive, Inc., Case 26-RC-3184. Collective bargaining for a first contract followed . By January approximately 12 negotiating sessions had been held. A session which began on January 20 ran into the early hours of January 21 . When it ended , the Union struck . Pickets appeared .at Respondent's place of busi- ness around 6 a.m. on January 21. Bargaining continued during the strike . A contract was finally agreed on. At a negotiating session held on January 29 the question of what would become of strikers who had been replaced during the strike came up for the first time . The Union asked Respondent to discharge the replacements in order to take back all strikers . Respondent refused . The Union asked Respondent to put replaced strikers on a preferential hiring list . Respondent refused. Picketing ended on January 31 . Early the next morn- ing, February 1, strikers appeared at the plant and met in the lobby . They were taken to a conference room in groups by departments where they were individ- ually told what their status was. Strikers who had not been replaced were immediately reinstated . Strikers who had were told that they had been replaced. Which strikers had been replaced - by persons hired during the strike was determined by application of the seniority principle, that is , the person with the least seniority in a particular job classification or department was considered to have been replaced by the first person hired in that job classification , or department . All eight of the men involved in this case except Frank Nosal were among the strikers who appeared at Respondent 's plant on the morning of February 1. -All eight , Nosal included, were among those who were replaced during the strike. - On February 1 a representative of the Union sent to Respondent a telegram which read in pertinent part: I hereby unconditionally offer to return . . . strikers to their former or substantially equivalent jobs. If their former or substantially equivalent jobs are not available then to any job. Please treat this offer as a continuing offer to return to work. The subject of returning all strikers to work came up again at a negotiating session held on February 3. Again Respondent refused to discharge replacements or to establish a preferential hiring list. A contract between Respondent and the Union was executed Febru- ary 5. Some of the replaced strikers sent letters , in some cases drafted for them by the Union , to the Respondent requesting reinstatement on various dates in February. In addition , a representative of the Charging Party sent a letter dated February 17 to counsel for Respondent which read in pertinent part: Please consider this as the Union 's . . . continuing request as stated in the telegram [of February 1]. We are the representative of these employees and expect you to notify this Union when work is available : At this time the employee or employees involved will be notified . This applies only to the so-called replaced employees. All striking employees offered themselves for employment on February , 1, 1969, and are still continuing to do so. Counsel's reply , dated February 19, read in pertinent part: It is the position of Little Rock Airmotive, Inc. that some of the company's employees who,engaged in an economic strike were replaced through the company hiring new employees to fill their jobs; that those persons who have been so replaced are no longer employees of Little Rock Airmotive, Inc. In the event job openings occur at Little Rock Airmotive , Inc., for which these employees are qualified , we will be happy to consider them for those jobs along with any other applicants. I am sure you are aware that there has been no agreement between the company and your union for any prefer- ential hiring ors union hall agreements concerning replaced strikers , and we do not intend to be respon- sible for notifying the union or any of them as vancancies occur. The same union representative wrote counsel for Respondent on February 21. This letter listed 12 replaced strikers for whom the Charging Party claimed job rights. It ended: Again , we offer the above mentioned , so-called replaced employees for employment to their former LITTLE ROCK AIRMOTIVE, INC. or substantially equivalent positions if these posi- tions are not available, then to any job. This is a continuing offer for the above mentioned employees to return to work. , . The names of the 8 men involved in this case were included among the 12 listed in this letter. Respondent never attempted to contact any of.the replaced employees through the Union, nor did it ever notify the Union when jobs became available from time to time after the strike. Except for Arvid Straschinske as detailed below, Respondent never attempted to contact any of the replaced strikers when jobs became available. Respondent has no personnel department and no per- sonnel manager . -Department managers hire employees for their departments as they are needed. Respondent followed the same hiring policies before, during, and after the strike. One of those policies is that it hires only applicants who present themselves at the plant when there is a vacancy. Another is a 90-day probation- ary period for new employees. Respondent's employ- ment complement, approximately 100, has been the same since the strike as before. Respondent was not motivated by antiunion animus in pursuing the course it has with respect to replaced strikers. Relevant facts respecting each of the eight persons named in the complaint are: 1. Kenneth Thompson Kenneth Thompson, a painter, was hired by Respond- ent on April 17, 1968. He was replaced by Kenneth Talley on January 29. Following the strike Respondent hired a part-time painter on February 12 and a full- time painter on March 15. As of the time of the hearing, Talley was still employed`by Respondent. On February 17, Thompson sent a letter to Respondent which read: This is to advise you that I participated in the strike at Little Rock Airmotive, Inc., from January 22nd through January 31st. I have not been recalled and, have been advised that I was replaced during the strike. I' would like to make it clear that I want my job back at Little Rock Airmotive. Please consider this as my request that I be called to work when there is an opening in my classification or any other comparable job. My address is as follows: 4921 Coral Street North Little Rock, Arkansas If I have a change in the above mentioned address, I will keep you so informed. I expect to hear from you when there is a job^available. He got a reply from Respondent's counsel, which read in pertinent part: Your job with. Little Rock Airmotive, Inc. was replaced during the time that you were still on strike. In order for you to be considered for re-employ- ment with this company, we would suggest that 669 you keep in touch from time to time to determine whether or not any job openings are available that you are qualified to fill. _ Future job openings will be filled by those persons making application therefor, at the time such open- ings may occur. In addition to showing up at Respondent 's plant -on February 1 with other strikers and sending his February 17 letter, Thompson contacted Respondent on two other occasions following the strike, once in person and once by telephone. The record does not indicate when. There was no opening for a.painter on either of these occasions. Thompson went to work for Koolvent Aluminum Awning Company on February 6 as an installer of awn- ings, gutters, "and stuff like that" and is still there. The job involves some painting. His rate of pay is $1.85 an hour. He regularly works' overtime. His present income is somewhat smaller than his income when he worked for Respondent. The record does not reveal what his income was when he worked for Respondent or just how large the difference is. He does not consider his present job permanent although he has taken no steps to find another one and, at the time of the hearing, had made no definite plans about when he would leave. 2. Walter Ogden Walter Ogden went to work for Respondent on Febru- ary 6, 1968. He worked with sheet metal in the trim ,shop. He was replaced by Bob Hoover on January 30. Following the strike, Respondent hired trim shop employees on- March 4 and April 16. As of the time of the hearing, Hoover was still employed by Respond- ent. . % On February 13 Ogden sent a letter to Respondent which was identical, except for ` Ogden's address, to the letter sent by Thompson. He received a reply dated February 14 which was identical to the reply received by Thompson. He contacted Respondent at no i time after the strike other than his visit to the plant on February 1 and his February 13 letter. Ogden returned to work for Respondent on January 20 following an 'operation. He was on a, light duty status! He did not `work during the strike or for 3 weeks thereafter. Around February 22 he went to work for Arkansas Sheet Metal Company at $2.50 an hour. His rate of pay when working for Respondent was $2.45 an hour. He left Arkansas Sheet Metal Company after only a week and a half because he could not stand the lifting required by the job. He was off for a week. He then went to work as a sheet metal man for Phelps Fan & Manufacturing Company. When he was hired, he was told that Phelps would only take him on if he was going to be a permanent employee. His rate of pay was less than $2.45 an hour. The record does not reveal how much less. He left Phelps Fan & Manufacturing Company after 4 weeks. He then went to work for his brother who is engaged in the commercial trash hauling business, a job Ogden held until he was laid off a week before the hearing. His 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay was less than he received from Respondent. The record does not reveal how much less. Ogden moved between the time he sent his February 13 letterr, to Respondent and the hearing. He notified the United States Post Office Department of his new address. He did not notify Respondent. 3. Ralph Smith Ralph Smith, a wiring technician, - went to work for Respondent on November 26, 1968. He was replaced by John Yarberry on January 30. Following the strike Respondent hired wiring technicians on February 24 and 27. Yarberry left Respondent's employ on March 28. Smith was still in his probationary period when the strike began. A decision to discharge him at the end of his probationary period had already been made by Respondent when the strike began. On February 17 Smith sent a letter to Respondent which was identical, except for Smith's address and telephone number, to the letter sent by Thompson. He received a reply dated February 26 which was identi- cal to the reply received by Thompson. On February 1, in addition to his interview with representatives of Respondent in the conference room, Smith sought out Dick Copeland, his immediate supervisor, and requested his job back. Copeland told- Smith, he hated to lose him, he would ,probably get his job back, just be patient. A few days later Smith telephoned Copeland. Copeland said he had not 'made any progress yet and would get in, touch with Smith. He never.- did. A few days' after the end of - the strike, Smith spoke to M. C. Magness , Jr.; Respondent's business manager, on the telephone . Magness told him to make application at the-plant if he-wanted to work for Respondent. Smith did not apply as directed. Smith went to work for Minnie Pearl Chicken as a store manager on March 4. He was hired at a salary of $450 a month. At the time of the hearing his salary was $550 a month, plus a percentage of the profit of the store he managed above a certain level. His rate of pay with Respondent was $2.45 an hour . Immediately , after he was hired, Smith spent 3 to 4 weeks in Hot Springs, Arkansas, undergoing training for his new job. Smith moved between the time he sent his February 17 letter to Respondent and the hearing. He notified the United States Post Office Department of his new address. He did not notify Respondent. 4. James Bryant James Bryant , an airplane and power plant mechanic, went to work for Respondent on October 23, 1968. He was replaced by Jerome Evans on January 28. Follow- ing the strike Respondent hired A & P mechanics on February 11 and 18 and on March 24. At the time of the hearing Evans was still in Respondent 's employ. Bryant was still in his probationary period when the strike began . A decision to discharge Bryant at the end of his probationary period had not been made by Respondent when the strike began . There is no evidence Respondent considered Bryant an unsatisfactory employ- ee prior to the strike. Bryant's only contact with Respondent following the strike was his visit to the plant on the morning of February l.in the company of other strikers. Two or three months after the end of the strike Bryant went to work for Ford Music Company in Pine Bluff, Arkansas. He sells and services electric organs. The record does not reveal what his income from that job is or how it compares with what he earned when he worked for Respondent. 5. Don Ballard Don Ballard, like Bryant an A & P mechanic, went to work for Respondent on October 24, 1968. He was replaced by Jerry Lawrence on January 30. Following the strike Respondent hired A & P mechanics on Febru- ary 1 and 18 and on March 24. Lawrence left Respond- ent's employ on February 4. Ballard was still in his probationary period when the strike began. A decision to discharge Ballard at the end of his probationary period had not been made by Respondent when the strike began. There is no evidence Respondent consid- ered Ballard an unsatisfactory employee prior to the strike. On February 10' Ballard sent a letter to Respondent which read: I was improperly replaced after the strike at Little Rock Airniotive, Inc. I request that I be returned to my former position immediately. My correct address is as follows: 109 Linderhurst Drive North Little Rock, Arkansas Telephone SK 3-9103 He received no reply. Other than this letter and his visit to the plant on February 1 with the other strikers, Ballard did not contact Respondent after the strike. There is no evidence what jobs, if any, Ballard has held since the strike. A United States marshal was unable to find him on July 8 in order to serve him with a subpena issued by Respondent to appear at the hearing in this case. 6. Arvid Straschinske Arvid Straschinske , a lineman, went to work for Respondent on April 20, 1968 . He was replaced by Jerry Lloyd on January 23. Following the strike Respond- ent hired linemen on February 13, 14, and 20 and on March 18. At the time- of the hearing Lloyd was still in Respondent 's employ. When the strike began Straschinske had-in his posses- sion $11.73 which belonged to Respondent. He had collected the money from a cash customer after servicing an airplane during a night shift just before the strike began. He did not turn it in until after he received a letter from Magness dated February 18 demanding he do so. Linemen on the night shift who take in LITTLE ROCK AIRMOTIVE, INC cash customarily turn it in the next day This incident played no part in Respondent's decision not to take Straschinske back after the strike On February 17 Straschinske sent a letter to Respond- ent which was identical, except for Straschinske's address, to the letter sent by Thompson He received a reply dated February 18 which was identical to the reply received by Thompson He also wrote to Respond- ent on February 19 in reply to the letter from Respondent demanding he return its $11 73 This letter ended, "Please consider this as my continuing request to be returned to work " Sometime prior to April 15 Stras- chinske's foreman, Joseph Dube, went to Straschinske's home He had an opening for a lineman and wanted to offer the job to Straschinske There was no one home He left a note on the door Straschinske did not get the note Straschinske has not worked since the strike 7 Frank Nosal Frank Nosal, a painter, went to work for Respondent on October 23, 1968 He was replaced by Leslie Brown on January 30 Following the strike Respondent hired a part-time painter on February 12 and a full-time painter on March 15 At the time of the hearing, Brown was still employed by Respondent Nosal was still in his probationary period when the strike began A decision to discharge Nosal at the end of his probationary period had not been made by Respondent when the strike began There is no evidence Respondent considered Nosal an unsatisfactory employee prior to the strike Nosal did not contact Respondent at all after the strike There is no evidence what jobs, if any, he has held since the strike A United States marshal was unable to find him on July 8 to serve him with a subpena issued by Respondent to appear at the hearing in this case 8 Robert Edwards Robert Edwards, like Ogden a trim shop employee, went to work for Respondent on October 24, 1968 He was replaced by Joel Collins on January 28 Following the strike Respondent hired trim shop employees on March 4 and April 16 Collins left Respondent's employ on February 28 Edwards was still in his probationary period when the strike began A decision to discharge Edwards at the end of his probationary period had not been made by Respondent when the strike began There is no evidence Respondent considered Edwards an unsatisfactory employee prior to the strike On February 13 Edwards sent a letter to Respondent which was identical, except for Edwards' address and telephone number, to the letter sent by Thompson He received a reply dated February 14 which was identi- cal to the reply received by Thompson Other than his letter of February 13 and his visit to the plant on February 1 with the other strikers, Edwards did not contact Respondent after the strike 671 Sometime in March Edwards began contracting to paint houses by himself In late April or early May he worked approximately 21 weeks as a carpenter for two different contractors His profit from his painting contracts has varied from a low of $70 for one house to a high of $120 for another When he worked for Airmotive he earned approximately $80 a week Edwards moved between the time he sent his February 13 letter to Respondent and the hearing He notified the United States Post Office Department of his new address He did not notify Respondent B Analysis and Conclusions In The Laidlaw Corporation, supra, the Board held that economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements (1) remain employees, (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employ- ment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legiti- mate and substantial business reasons Kenneth Thompson acquired a regular and substantial- ly equivalent job with Koolvent Awning Company on February 6, nearly a week before Respondent first hired a painter on February 12 following Thompson's offer to return to work Walter Ogden acquired a regular and substantially equivalent job with Arkansas Sheet Metal Company" around February 22, approximately 2 weeks before Respondent first hired a trim shop employee on March 4 following Ogden's offer to return to work Therefore, both Thompson and Ogden had ceased to be employees of Respondent at the time jobs became available for them Respondent had decided before the strike to discharge Ralph Smith at the end of his probationary period Therefore, Respondent had a legitimate and substantial business reason for not reinstating him to the wiring technician job which opened up on February 24 Since each of them fails to meet one of the conditions laid down by the Board's Laidlaw decision, I find that Respondent did not violate the Act when it failed to reinstate Kenneth Thompson, Walter Ogden, and Ralph Smith Respondent advances various grounds as legitimate and substantial business reasons for not reinstating one or more of the men named in the complaint 5 It cites ' I do not think the regular and substantially equivalent nature of Ogden s new job at Arkansas Sheet Metal was in any way altered by the fact that Ogden found the job physically too taxing If I am wrong in this finding however it does not follow that Ogden is entitled to a remedy in this case Ogden and Robert Edwards were both trim shop employees Respondent hired a new trim shop employee on March 4 and a second one on April 16 However the man hired on March 4 was a replacement for Joel Collins Edwards replacement during the strike Therefore as indicated below Edwards should have been reinstated by Respondent on March 4 A job was not available for Ogden until April 16 By that time he had acquired a regular and substantially equivalent job at Phelps Fan & Manufacturing Company The record does not reveal why Ogden left Phelps S A major section of Respondents brief is devoted to a cogent argument that the Laidlaw decision is wrong and should be reversed (Cont ) 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that it was not motivated by antiunion animus. It cites the fact that, in some instances, the striker's individual replacement is still working. It cites the fact strikers have applied for work elsewhere, arguing that this constitutes an abandonment of the employee rela- tionship. It cites the fact that strikers have not complied with its policy of hiring only at the plant door by making applications at times when jobs were available. It cites the fact that strikers have failed to notify it when they moved and, in the cases of Don Ballard and Frank Nosal, may have disappeared without leaving any clue as to their present whereabouts. In the case of Arvid Straschinske it cited the fact that he kept Respondent's $11.73 until Respondent asked him for it. In the case of Nosal it cited the fact that Nosal never personally made an unconditional offer to work.6 I agree with Respondent as to these facts. I disagree as to their legal significance in the cases of James Bryant, Don Ballard, Arvid Straschinske, Frank Nosal, and Robert Edwards. James Bryant did not get a job until several months after the end of the strike. There is no evidence in the record that Don Ballard has ever gotten another job. Therefore, neither had obtained regular and substan- tially equivalent employment by February 18 when Respondent hired the second of two new A & P mechan- ics. Since Jerry Lawrence, Ballard's replacement during the strike, left on February 4 while Jerome Evans, Bryant's replacement , is still working for Respondent, the Laidlaw doctrine operated for Ballard's benefit when Respondent hired a replacement for Lawrence on Febru- ary 11 even though Bryant had seniority over Ballard. A job became available for Bryant on February 18 when Respondent hired a second A & P mechanic. The absence of any evidence in the record about Bal- lard's employment since February 1 is of no benefit to Respondent since the burden of proof is on Respond- ent.7 The fact that Bryant's individual replacement is still working is of no benefit to Respondent since the Laidlaw doctrine applies when any job comes open which a replaced economic striker who has not lost his employee status could fill, not merely when the specific replacement leaves who was hired during the strike to take his job." I, of course , can entertain no such plea . I am bound by the Board's decision Consequently , my analysis is limited to Respondent 's conten- tion that it had legitimate and substantial business reasons, as that phrase is used in Laidlaw, for denying reinstatement to each of the eight men named in the complaint " Respondent makes this same argument with respect to Don Ballard However, as to Ballard , my findings of fact are against Respondent Neither Nosal nor Ballard appeared at the hearing . Neither could be located for subpena-serving purposes However, I have credited the testimony of Walter Ogden that he saw Ballard among the strikers who showed up at Respondent's plant on the morning of February I Among the numerous letters in evidence is one dated February 10 from Ballard to Respondent ' Duncan Foundry and Machine Works, Inc., 176 NLRB No. 31 This point applies also to Frank No?al , as to whom the record is equally silent " C H. Guenther & Son, Inc , dl bl a/ Pioneer Flour Mills, 174 NLRB No. 174 . This point applies , of course , in the cases of Arvid Straschinske and Frank Nosal , both of whose individual replacements were still working for Respondent at the time of the hearing. Arvid Straschinske has never gotten a regular job substantially equivalent to the one he held with Respond- ent. Therefore, the Laidlaw doctrine operated for his benefit when Respondent hired a lineman on February 13. The fact that Straschinske retained money belonging to Respondent for several weeks after he should have turned it in is not a legitimate and substantial business reason for failing to reinstate him. Respondent waived that possible defense when Foreman Dube went,to Stras- chinske's house to offer him a job as a lineman some time after the strike' ended. The fact that Respondent tried to find Straschinske on that occasion and failed is of no avail to Respondent. Dube was not seeking Straschinske to offer him full reinstatement to his former position as required under the Laidlaw doctrine. There is no evidence in the record that Frank Nosal has ever gotten another job. While his individual replace- ment still works for Respondent , Respondent hired a painter on February 12. Since Kenneth Thompson, the only other painter among the eight men named in the complaint, had terminated his employee status by that time, that job, even though only part time, belonged to Nosal under the Laidlaw doctrine. When Respondent hired a full-time painter on March 15, Nosal was entitled to be restored to his prestrike full-time status. The fact that Nosal, alone of the eight men involved in this case, did not personally make an unconditional offer to return to work does not require a different result in his case. The offer made by the Charging Party in its telegram of February 1 and again in its letters of February 17 and 21 was legally sufficient to constitute an unconditional offer to return on behalf of all strikers, Nosal included. Robert Edwards did not go into business for himself as a house painter until March, well after his individual replacement, Joel Collins, left Respondent's employ on February 28. It is, therefore, unnecessary to decide whether the work Edwards acquired constituted regular and substantially equivalent employment as that phrase is used in Laidlaw. He became entitled to his old job on March 4 when Respondent hired a trim shop employee to take Collins' place. Other defenses advanced by Respondent are equally without merit. The Laidlaw decision states explicitly ". . . we specifically find that . . . the failure to make ' . . . an offer [of full reinstatement absent a showing of legitimate and substantial business justification] consti- tutes an unfair labor practice even without regard to Respondent's intent or anti-union animus." The criterion established by Laidlaw is not whether strikers have sought regular and substantially equivalent employment elsewhere but whether they have found it. Laidlaw does not require replaced strikers 'to make known their availability for employment in the manner Respondent would require. It places the burden of offering reinstate- ment to a replaced striker who still retains his employee status on Respondent . It does not require the strike to comply with any conditions imposed by Respondent such as filling out an application at a particular time and place or being present at the plant at the precise moment when a job opens up. Finally, it does not LITTLE ROCK AIRMOTIVE , INC. 673 relieve Respondent of the burden of making a good- faith effort to find the strikers when jobs are available. If Respondent had tried to locate the strikers as jobs became available by sending letters to their last known addresses or by notifying the Union , it would have fulfilled its obligations under the Laidlaw doctrine since it would have done all that could reasonably be expected of it to offer reinstatement . It did not choose to do so. Therefore , the fact that such efforts might have failed because some or all of the strikers could not be found. is irrelevant. Under Laidlaw, the burden of seeking the strikers to offer reinstatement was on Respondent, not on the strikers to seek out Respondent so that an offer could be made. For the reasons stated , I find that Respondent violated Section 8(a)(3) and (1) of the Act when it failed to offer reinstatement to James Bryant on February 18, Don Ballard on, February 11, Arvid Straschinske on February 13, Frank Nosal on February 12, and Robert Edwards on March 4. Upon the foregoing findings of fact , and on the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Little Rock Airmotive , Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Progressive Lodge No. 997 , International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor , organization within the meaning of Section 2(5) of the Act. 3. By failing to offer full reinstatement to James Bryant on February 18, Don Ballard on February 11, Arvid Straschinske on February 13, Frank Nosal on February 12, and Robert Edwards on March 4 Respond- ent has discriminated with respect to their hire , tenure, and terms and conditions of employment , discouraging membership in the above -named labor organization, and thereby has violated Section 8(a)(3) and ( 1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The allegations of the complaint that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to offer reinstatement to Kenneth Thompson on February 12, Walter Ogden on March 3 , and Ralph Smith on February 24 have not been sustained. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent has violated Section 8(a)(3) and (1) of the Act by failing to offer to reinstate James Bryant , Don Ballard , Arvid Straschinske, Frank Nosal, and Robert Edwards. Therefore, I will recom- mend that Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed. In the cases of James Bryant , Arvid Straschinske, and Robert Edwards such offer shall be made by sending it to each at the address which he gave as his current address when he testified at the hearing herein. In the cases of Don Ballard and Frank Nosal such offer shall be made by sending it to each at a current address furnished by the Regional Director of Region 26. In the event the Regional Director is unable to locate Ballard and/or Nosal , no further action on Respondent's part shall be required. I will further recommend that Respondent make Bryant, Ballard , Straschinske , Nosal, and Edwards whole for any loss of earnings each may have suffered as a result of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned as wages from the date on which he should have been offered reinstate- ment until the date of Respondent 's offer of reinstate- ment , less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In the cases of Ballard and Nosal the make-whole portion of my recommended remedy, like the offer -of-reinstatement portion , shall only take effect in the event the Regional Director can locate Ballard and/or Nosal. Upon the basis of the above findings of fact , conclu- sions of law , and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER. Little Rock Airmotive, Inc., its officers, agents, suc- cessors, and assigns , shall: 1. Cease and desist from: (a) Failing to offer to reinstate its employees who have been replaced while engaged in an economic strike when jobs become available for them after they have made an unconditional offer to return to work in the absence of legitimate and substantial business justifica- tion. (b) In any like or related manner discriminating against employees to encourage or discourage membership in a labor organization. (c) In any like or related manner interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer to James Bryant , Don Ballard , Arvid Stras- chinske , Frank Nosal , and Robert Edwards immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and make each whole for any loss of pay suffered as a result of the failure to offer him reinstatement in the manner set forth above under the section entitled "The Remedy." 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify James Bryant, Don Ballard, Arvid Stras- chinske, Frank Nosal, and/or Robert Edwards if present- ly serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order (d) Post at its plant in Little Rock, Arkansas, copies of the attached notice marked "Appendix "" Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith "' I FURTHER RECOMMEND that the complaint be dis- missed insofar as it alleges that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to offer reinstatement to Kenneth Thompson on February 12, Walter Ogden on March 3, and Ralph Smith on February 24 To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL NOT discriminate against you after a strike by refusing to take you back provided that you have made an unconditional offer to return, a job is available for you, and you have not ended your status as one of our employees by taking a regular, substantially equivalent job elsewhere WE WILL immediately offer to reinstate James Bryant, Don Ballard, Arvid Straschinske, Frank Nosal, and Robert Ewards to their former or sub- stantially equivalent jobs without any change in the seniority or other privileges they enjoyed before we discharged them and WE WILL pay to them any money they lost as a result of our discrimination against them with interest at 6 percent WE WILL notify James Bryant, Don Ballard, Arvid Straschinske, Frank Nosal, and/or Robert Edwards if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces N In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "' In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 26 in writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights All our employees are free to join or not join Pro- gressive Lodge No 997, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization LITTLE ROCK AIRMOTIVE, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 3507 Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas 72201, Telephone 501-372-4361, Exten- sion 5512