Beverage-Air Co.

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beverage-Air Company and International Union of Electrical, Radio and Machine Workers, AFL- CIO. Case 11-CA-2943 August 27, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On May 29, 1967, the National Labor Relations Board issued its Decision and Order in this case,' finding that the Respondent had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. With respect to the 8(a)(3) violation, the Board found inter alia, that the Respondent had failed and refused to reinstate 21 named employees who were unfair labor practice strikers at its Spartan- burg, South Carolina, plant. The Board also found that the Respondent had failed and refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. Accordingly, the Board ordered that; (1) the Respondent reinstate certain unfair labor practice strikers to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by payment to them of a sum of money equal to that which they normally would have earned from March 21, 1966, to the date of the offer of the reinstatement, less any earnings they may have had during said period, and (2) that the Respondent reimburse its employees, with 6-percent interest per annum thereon, for the loss of any benefits which would have accrued to them under a contract which the Respondent unlawfully refused to sign on March 21, 1966. On September 27, 1968, following a petition by the Board for the enforcement of its Order, the United States Court of Appeals for the Fourth Circuit handed down its opinion herein in which it granted, in part, enforcement of the Board's Order.' The court denied enforcement of that portion of the Board's Decision finding that on March 21, 1966, the unfair labor practice strikers made an unconditional offer to return to work. On July 31, 1969, the Board's Regional Director for Region 11 issued and served upon the parties a backpay specification and notice of hearing, and on August 20, 1969, the Respondent filed an answer thereto in which it admitted some of the allegations ' 164 NLRB 1127 'NLRB v Beverage Air Co , 402 F2d411 (C A 4) of the specification, but denied others. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr on September 10, 1969, for the purpose of determining the amounts of backpay due. On December 5, 1969, the Trial Examiner issued his Decision on Backpay, which is attached hereto, finding, inter alia, that employees hired by the Respondent on and after March 21, 1966, the effective date of the contract, were entitled to a 5-cent hourly wage increase mentioned in the contract. The Trial Examiner also found that the Respondent failed to comply with that part of the Board's Order requiring the Respondent to reinstate certain unfair labor prac- tice strikers to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, upon their unconditional offer to return to work. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross- exceptions and a supporting brief Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the entire record in this case, including the Decision on Backpay, and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent here- with. In the underlying Decision and Order in this matter, as subsequently enforced by the United States Court of Appeals for the Fourth Circuit, the Board found that the Respondent had violated Section 8(a)(5) of the Act by refusing to execute a collective-bargaining contract to which it had agreed. To remedy this unfair labor practice the Board ordered, inter alia, that the Respondent execute the contract and reim- burse its employees for the loss of benefits which would have accrued to them under the contract, retroactive to March 21, 1966. On October 29, 1966, the Respondent had executed and put into effect the terms of the contract, including a 5-cent-per- hour wage increase, and the Respondent simultaneous- ly made whole the employees who were in the bargain- ing unit on the effective date of the contract by payment to them of 5 cents per hour for the period from March 21 to October 29, 1966. However, in his Decision on Backpay, the Trial Examiner found that the terms of the Board's remedial order in the underlying case also required the Respondent to make whole employees hired after the effective date of the agreement by payment to them of 5 cents per 185 NLRB No. 30 BEVERAGE-AIR COMPANY 169 hour from their date of hire to the date the Respondent executed and put into effect the terms of the contract. The Respondent has excepted to this finding, and we find merit in the exception. As it pertains to wages, the collective-bargaining agreement between the parties provides as follows: Article 14 ... (1) The Company agrees to pay its employees in the unit covered by this agreement, and the Union agrees that such employees will accept wages based upon the rates in effect at the com- mencement of this agreement, which shall average five cents (5t) per hour higher than the rates in effect immediately prior to the commencement of this agreement. The rates of pay established under this section will not be reduced during the term of this agreement. (2) The rates of pay applicable to persons who are brought into the unit during the term of this agreement shall be determined by the Company upon the basis of work assignment, past experience, skill, ability and other factors. Such rates, once established shall not be reduced during the term of this agreement. Notwithstanding the terms of the contract, the Trial Examiner, relying on the Respondent's past practice of hiring new employees at varying rates depending on skill, ability, and other factors, found that because section (1) of the article pertaining to wages created new top rates for all classifications, it was only logical to conclude that all lower rates, including the starting rate, would increase in like amount Inasmuch as the provisions of section (1) of article 14 were not limited, in haec verba, to only those employees in the unit on the effective date of the contract, the Trial Examiner concluded that employees hired into the unit after March 21, 1966, were entitled to the 5-cent-per-hour increase, effective as of their date of hire. We disagree with this conclusion. Our Order in this case, 'as it pertains to the Respond- ent's obligation to remedy the effects of its failure to execute the contract, requires only that the employ- ees be made whole for the loss of benefits which would have accrued to them under the contract. Accordingly, and without regard to what the Respond- ent's past practice with respect to wages was, the terms of the contract are controlling. Under section (1) of the wage clause, the Respondent agreed to give the employees in the unit an across-the-board 5-cent-per-hour increase effective as of March 21, 1966. Under section (2) of the wage clause, in clear and unequivocal terms, the Respondent reserved to itself the right to determine the wage rates for employ- ees brought into the unit during the term of the contract. In the light of these contractual provisions, we find that the employees hired by the Respondent after March 21, 1966, are not entitled to the 5- cent-per-hour increase from that date to the date the Respondent executed the contract. We also find merit in the Respondent's exceptions to the Trial Examiner's findings that the Respondent failed to comply with the Board's Order by not reins- tating employees Charles Foster and Leon Carree to their former jobs with full seniority, and that Foster and Carree are entitled to backpay as a result of the Respondent's selection of them for layoff on October 13, 1967. Foster and Carree participated in the unfair labor practice strike against the Respondent which began on January 26, 1966, and which, apparently, terminat- ed on or about March 17, 1966. There is no evidence in the record that coincidentally with the termination of the strike, or at any time thereafter, Foster or Carree, or the Union acting on their behalf, made any offer to return to work. In April or May 1966, Foster presented himself at the Respondent's plant and informed the personnel manager that he wished to withdraw his money from the Company's profit- sharing plan. Foster was informed by the personnel manager that employees could obtain their money from the profit-sharing plan only through retirement or quitting. Foster replied that he wanted his money because he had obtained a job with another company. Twice during May 1966, Foster was advised by the Respondent that a check for his share of the profit sharing had been received from the bank, and in September 1966, Foster came to the plant and picked up the check. Carree similarly visited the plant in November or December 1966, at a time when he was employed on the night shift of another employer, and requested his share of the money from the profit-sharing plan. Before leaving the plant he executed a separation notice which contained the reason for his separation as "Voluntarily Quit." Several days later, when Carree came to pick up his check, he signed another slip to the same effect. On June 8, 1967, subsequent to the issuance of the Board's Decision and Order in the underlying case, the Respondent sent letters to all of the strikers, except for Foster and Carree, inviting them to return to their former or substantially equivalent jobs without prejudice to 'their seniority or other rights and privi- leges. On the same date the Respondent sent letters to Foster and Carree advising them that the jobs they had occupied prior to the strike, or substantially equivalent jobs, were available at the current wage rate, and invited them to return to work on or before June 19. No mention was made in the letters to 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foster and Carree of reinstatement with seniority or other rights, but without questioning the Respond- ent's offer, both Foster and Carree returned to work on June 19, 1967. Both employees continued to work until October 13, 1967, at which time they were selected, among others, for layoff. The layoff was concededly dictated by economic considerations, the selection of the employees was made by the Respond- ent strictly in accordance with seniority, and Foster and Carree were selected on the basis of seniority dating from June 19, 1967. On these facts, which are not essentially in dispute, the Trial Examiner concluded that neither Foster's acceptance of his share of the profit-sharing plan, after having been told by the Respondent that such payments could be made only after termination of his employment status, nor Carree's acceptance of his share, coupled with execution of a separation slip stating that he had voluntarily quit, were sufficient to establish that Foster and Carree had lost their status as unfair labor practice strikers entitled to reinstatement . For the reasons related below we disa- gree with the Trial Examiner's conclusion. At the times Foster and Carree applied for and received payment for their shares of the profit-sharing plan the strike had long since been terminated , Carree had obtained employment with another employer, and Foster expressed expectations of doing likewise. Both employees were clearly informed that payment to them of their shares of the fund was conditioned on permanent termination of their employment with the Respondent . Carree, indeed, executed a separaton slip acknowledging that he had "voluntarily quit." The transactions leading to termination of their employment status were initiated by Foster and Car- ree, there is not the slightest hint in the record of any subterfuge on the part of the Respondent, and there is no evidence that the treatment the Respondent accorded Foster and Carree varied in any respect from the policies it generally applies to all employees. We find on these facts that Foster and Carrel freely and intentionally terminated their employment in order to withdraw their funds from the Respondent's profit-sharing plan. Accordingly, when they later returned to work at the invitation of the Respondent,' they were lawfully treated as new employees. Having found that the employees hired by the Respondent after the effective date of the contract are not entitled to the 5 -cent-per-hour wage increase ' In the view of our decision herein , we find it unnecessary to reach the Trial Examiner's finding that the Respondent's offer of employment to Foster and Carree , occurring as it did after their voluntary terminations, for the period from March 21 to October 29, 1966, and having further found that Foster and Carree were lawfully treated as new employees, and inasmuch as the Respondent has complied with the terms of our Order in the underlying case, we shall dismiss the backpay specification. ORDER It is hereby ordered that the Backpay Specification in the matter be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION ON BACKPAY JOHN P VON ROHR, Trial Examiner: On May 29, 1967, the National Labor Relations Board , herein called the Board, issued a Decision and Order' finding that Beverage-Air Company, herein called the Respondent, had committed certain unfair labor practices in violation of Section 8(a)(1), (3),and (5) of the National Labor Relations Act, herein called the Act The remedial provisions of the Board order directed, inter aka, that: ( 1) Respondent reimburse its employees, with 6-percent interest per annum thereon, for the loss of any benefits which would have accrued to them under a contract which the Respondent refused to sign, and (2) that Respondent reinstate certain unfair labor practice strikers to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by payment to them of a sum of money equal to that which they normally would have earned from March 21, 1966, to the date of the offer of reinstatement , less any earnings they may have had during said period. On September 27, 1968 , the U.S. Court of Appeals (Fourth Circuit) issued its decision2 in which it in part granted and in part denied enforcement of the Board's Order. Insofar as pertinent here, the only aspect of the Board's Decision not enforced was the finding of the Board that on March 21, 1966, the unfair labor strikers made an unconditional offer to return to work. On July 31, 1969, the Regional Director for Region l 1 (Winston-Salem, North Carolina) issued a Backpay Specifi- cation. Thereafter the Respondent filed an answer in which it admitted some of the allegations of the specification, but denied others. The issues thus put in dispute are noted and discussed below. Pursuant to notice , a hearing was held before Trial Examiner John P. von Rohr at Spartanburg, South Carolina, on September 10, 1969 All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and the Respondent and they have been carefully considered. Upon the entire record in this case , and from my observation of the witnesses, I hereby make the following: negated any requirement on their part to make an unconditional application ' 164 NLRB No 156 to return to work. ' NLRB v Beverage-Air Company, 402 F 2d 411 (C A 4) BEVERAGE-AIR COMPANY 171 FINDINGS OF FACT AND CONCLUSIONS A. Wages Due Employees Pursuant to the Remedial Provisions of the 8(a)(5) Violation The Board's Decision and Order, as enforced, requires Respondent to bargain in good faith with the Union, or, at the request of the Union, to sign an agreement which had been reached between the parties on March 21, 1966, and, in any event, to reimburse its employees with 6- percent interest for the loss of any benefits which accrued to them under the theretofore unsigned agreement. Specifi- cally, it is undisputed that under the aforementioned contract the employees are due a 5-cent-an-hour wage increase for each hour up to and including 40 hours per week and an increase of 7.5 cents for each hour worked in excess of 40 hours per week. On October 29, 1966, the Respondent gave an across- the-board increase of 5 cents per hour to all employees in the appropriate bargaining unit' In view of this action, the parties agree that October 29, 1966, serves as the cutoff date with respect to Respondent's liability for any benefits accruing to the employees under the terms of the March 21 contract. The employees who were on the payroll as of March 21 are not involved in this proceeding, Respondent having already made them whole in compliance with the Board's Order. However, the dispute herein arises from the parties' disagreement with respect to any backpay due the employees who were hired between October 29 and March 21, 1966. The General Counsel contends, and alleges in the Backpay Specification, that these employees are also entitled to the benefits accrued under the March 21 agreement. Respondent, on the other hand, denies any liability as to these employees, contending that the new employees hired after March 21 are not entitled to the wage benefits under the aforementioned agreement. It is Respondent's basic assertion that "by the express terms of the contract itself (the March 21 agreement) the 5-cent pay increase is applicable to only those who were employees in the unit on the date the contract was to have gone in effect." In support of this contention Respondent relies upon article 14, sections (1) and (2) of the contract which provide as follows: (1) The Company agrees to pay to its employees in the unit covered by this agreement, and the Union agrees that such employees will accept wages based upon the rates in effect at the commencement of this agreement, which shall average five cents (50) per hour higher than the rates in effect immediately prior to the commencement of this agreement. The rates of pay established under this section will not be reduced during the term of this agreement. (2) The rates of pay applicable to persons who are brought into the unit during the term of this agreement shall be determined by the Company upon the basis of work assignment, past experience, skill, ability, and other such factors Such rates, once estab- ' The unit consists of Respondent's production and maintenance employ- ees with the customary exclusions lished shall not be reduced during the-term of this agreement. Before turning to Respondent's argument, some further facts with respect to Respondent's hiring practices are in order Broadly stated, and as testified to by Personnel Manager Ansel Garrett, it was the policy of the Company "to hire different people at different rates of pay, based on their skill and ability."4 Elaborating further, Garrett testified that although there was no established minimum rate for any job (i.e , the Company had no set rates at which it hired new employees) the Respondent in fact did have a "top rate" at which it hired employees for the various types of jobs which it had available.' Explaining that it was a matter of company discretion as to how much below the top rate a new employee would be hired, Garrett gave the example of a painter and testified "If the top rate for a painter was $1.90 and I saw a fellow who was a real good painter, I might hire him at $1.80 or I might hire him at $1.85, just on my judgment." From the above facts, and without undue discussion, I find no merit or logic to Respondent's contention that the employees hired after March 21, 1966, are not entitled to the wage benefits contemplated by the contract of that date.6 Thus, Respondent admittedly having maintained a "top rate" for its various jobs, it is indisputably clear that the 5-cent raise under the contract would automatically create new top rates for each of such jobs. The tops rates thus having been increased by 5 cents, it seems only logical to conclude that all lower rates, including the hiring rate, would be increased by a like amount. As to Respondent's argument that the benefits granted by the contract should be limited only to those employees employed in the unit on March 21, 1966, the short answer to this is that the contract does not limit the increase only to the employees in the unit on the date mentioned. Rather, the language in the contract provides that the raise be given to "its employees in the unit." Accordingly, the raise begin given to the entire class of employees in the collective-bargaining unit, I find and conclude that this benefit should properly accrue to all employees who became employed within the said unit on and afterthe effective date of the contract. In sum, I find that the employees hired on and after March 21, 1966 are entitled to the 5-cent hourly wage increase and the previously mentioned overtime pay during the period March 22 to October 29, 1966.' The Respondent's answer to the backpay specification concedes that the com- putations in the specification "accurately reflects the addi- tional amount which each individual who performed any work for the Company between March 22 and October Garrett occupied the position of personnel manager from April 1965 until June 1966, and participated in the contract negotiations with the Union which took place during this period 'Elsewhere in his testimony Garrett equated the "top rate" with a "fixed rate" or a "standard rate " It should be made clear that Respondent does not contend that subsequent to March 21, 1966, it in fact hired new employees at a 5-cent higher rate than it did prior thereto ' At one point in his testimony, Frank Daniels, a field representative of the Union who participated in the contracted negotiations, asserted that it was his understanding during the negotiations that the starting rate would be increased 5 cents I do not credit this testimony of Daniels and do not rely on it in making the findings above 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 29, 1966 , would have earned if he had been employed at a 5-cent rate per hour higher than that rate at which he was in fact employed." Accordingly , and pursuant to the specification , set forth below are the names of the claimant employees and the amounts which I find due each of them Insofar as the detailed computations are concerned, these are set forth in the Backpay Specification which is hereby incorporated by reference B Everett J Barnette $ 15 66 James M McNeely $38 96 Kenneth W Cassel 15 83 Thomas A Biggenstafl 85 Jackie R Lindsey 38 13 Robert L Hause 24 93 Earnest D Painter 4.90 Willie H Green 8.23 Raymond Thompson 23 85 Ted C. Hamcink 5 53 Bobby Joe Peterson 58 49 John D Wolfe 8.25 Billy C Scruggs 63 23 Toy S Jennings 28 40 Carl Tillotson 66 36 Larry D Tillotson 27 03 L J Humphries 64 31 James E. Suddeth 25.96 Thomas K Mossey 4.65 Carl Bagwell 30 28 Charles Walker 18 76 Ludie P. Gwinn 40 Randolph Rice 67 73 Curtis A Smith 60 Johnnie F Logan 88 19 Ralph E Hawkins, Jr 6 30 Arthur Byrd, Jr 16 96 Percy Stephens 45 71 Ansel L Rhodes 1 20 Leroy Whittenburg 66.81 Clarence Randolph 5 60 Charles D Staggs 42 48 Harrison Irby 7 33 Troy Hogue, Jr 65 91 Charles K Neely 8.18 Herbert Lee Bobo 14 75 Wayne J Randolph 4 95 Samuel Watson 13.03 Marshall Rogers 2 90 Albeit Gene Painter 27.18 Ray S. Chesney 85 Franklin D Jenkins 31 55 Donold P Tisdale 5 95 Lewis E McDade 68 78 Cecil L Dobbins 6 20 Eddie C. Lawrence 54 28 Robert Henderson 2.00 Billy W Willis 59 50 Raymond Shaffer 22 85 Callie Ray Foy 27 28 Roy D Henderson 12 93 Dennis C Morrow 10 50 Melvin C Rice 84 76 John Paul Trammell 73 16 Leroy Dord 43 91 D H Seruggs 69 51 Richard L Robinson 54 01 Harold Everette Smith 11 88 Daniel L Jackson 28 43 Edgar Zimmerman 10.35 John W Bennett 79 49 David W Marshall 28 53 Harry Russell 10.93 Larry Wayne Gregory 31.58 Dustie P. Houston 1 90 David Renard Frey 23.91 Beamous C Hogue 84 91 Robert W Morgan 30 48 James Fowler 94 31 Charles H Tennet 20.05 Dennis Wayne Williams 40 25 Roger A Way 20.51 Fred D Smith 11 23 John Earl Bryson 3 25 Robert D. Mitchell 64 41 Charles R. Thrift 22 00 Leonard D Tother 77.13 Oliver M . Scruggs 10.75 Joe L Coley 2 53 Boyd T McCraw 9 65 David McSwain 55.61 Ronnie W Maxwell 13 83 Roney L. Jolley 2 93 Wallace W Tate 7.33 Bobby James Rice 4.08 Herman Eugene Easier ! 4 38 Olin D Cantrell 1.85 William Cooper 1.50 Burkett Reed Carver, Jr. 3 25 Willie S Nix .40 Lawrence Earl Jones 1.25 Leland Austin Parker 1.55 Charles E. Praytor 71.13 Odis Gerome Fisher 71.96 Cleveland W. Butts 1.30 Leon W. Hall 77 24 Boyce Lee White 11 90 Wallace J Hall 4.55 Larry Lail 4.00 Clifford Warren Owens 8 03 John L Watkins 2 23 ' Unfortunately , the original document offered in evidence showing the names of the employees, the computations , and the amounts due, is a photostat of a handwritten document which is not entirely legible I have particular doubt as to the names of L J Humphries, James M McNeely. and Leroy Dord I shall assume that clarification of these names or any other doubtful data reflected in the table above shall be handled at the compliance stage of this proceeding B The Seniority Status and Layoffs of Charles Foster and Leon Carree As more fully indicated below , the issue here arises under the requirement that Respondent reinstate certain unfair labor practice strikers, upon their unconditional offer to return to work, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges.' The only employees concerning whom there is dispute are Charles Foster and Leon Carree. Charles Foster. In about the latter part of April or early May 1966, Foster made a telephone call to Respond- ent's personnel manager, Ansel Garrett, telling Garrett that he wished to withdraw his money from the Company's profit-sharing plan Garrett advised that the only way any employee could obtain this money would be through retire- ment or quitting. Foster responded that he wanted the money because he expected to obtain a job with another company. Thereafter, by letter of May 10, 1966, Garrett advised Foster that a check for his share of the profit- sharing plan had been received from the bank and that he should come to the plant to pick it up There being no response from Foster, Garrett sent him a letter of similar content on May 20, 1966. Foster again made no response. It is undisputed that following his initial conversa- tion with Garrett, Foster made no effort to collect the profit-sharing money until about September 1966, at which time he came to the plant and received a check for the amount to which he was entitled. Other than to indicate that he wanted the money, Foster gave no reason for withdrawing the profit-sharing money at this particular time." Leon Carree. Carree went to Respondent 's plant in the latter part of November or early December 1966 and told Personnel Manager William McInnis (who at this time had replaced Garrett) that he wished to obtain his share of money from the profit-sharing plan Carree testified that McInnis stated that he could have it, whereupon he was given a check for the money due after appropriate calculations were made. Before leaving the plant, Carree, at the behest of McInnis, signed a Separation Notice which contained a notation in the space after "Remarks" which stated- "Voluntarily Quit."" Carree was employed on the night shift of the Butte Knit Company at the time he applied for and received his profit -sharing check. On June 8, Respondent sent the following letter to various of its employees who participated in the unfair labor practice strike: ' Although the court agreed with the Board that the strike which commenced on January 26, 1966 , was an unfair labor practice strike, it disagreed with the Board 's further finding that on March 21, 1966, the Union, on behalf of the employees , made an unconditional offer to return to work '° Foster testified that he did not obtain the job which he told Garrett he anticipated getting in late April or early May 1966 " Carree conceded that his signature appears on the separation notice, but testified that there was nothing in writing above it when he signed it i think that Carree was mistaken here and I do not credit this testimony McInnis, with whom Carree spoke at this time , did not testify BEVERAGE- AIR COMPANY 173 As you know, this Company continues to consider you to be in all respects a current employee, even though you have not reported for work since going out on strike in January, 1966. We would like at this time to notify you once again that a job substantially the same as the one you occupied at the start of the strike is still available, and, so far as the Company is concerned, you may return to that job without prejudice as to your seniority and other rights and privileges If you are available for this work , please report for duty at the Plant on or before June 19 On the same date, Respondent sent the following letter to Foster and Carree. This is to advise you that the job you occupied with this Company at the time you went on strike in January, 1966, or a substantially equivalent job, is available to you at the current wage level If you wish to return to work at this job, please report for duty on or before June 19. Both Foster and Carree responded to the above letter and were re-employed by Respondent on June 19, 1967. On October 13, 1967, Respondent laid off approximately 24 employees, including Foster and Carree 11 The record reflects, and it is substantially undisputed , that seniority was the sole criteria utilized by the Respondent in the selection of these employees for layoff." It is at this point that we reach the issue at hand Thus, the evidence reflects that Foster and Carree would not have been included in the layoffs had Respondent accorded them seniority from the date of their initial hire." This Respondent did not do. Rather, taking the position that Foster and Carree came back as new employees when they returned to work in June 1967, Respondent dated their seniority as beginning anew at that time . They were, accordingly , included in the October 13, 1967 , layoff. Principally relying on the fact that Foster and Carree withdrew their share of money from the profit-sharing plan under the circumstances noted above, it is Respondent's position that these employees voluntarily severed their employment relationship with the Company. Respondent further argues that these employees did not themselves apply for reinstatement , but returned as new employees only after the Company took the initiative of offering them new jobs of substantially the same kind they held before the strike. I must disagree with the Respondent " The General Counsel concedes that this layoff was economic in character " By memorandum dated October 13, 1967, Respondent notified its employees "The employees affected [by the layoff] were selected on the basis of plant seniority and job performance " However, the Respondent offered no evidence that job performance was a factor in its selection of the employees for layoff As a further indication that seniority was the sole determining factor , it is noted that Respondent states in its brief "Since Foster and Carree were among those having the lowest seniority , they were placed in layoff status until recalled on June 3, 1968 " " Carree and Foster were intially employed by Respondent in 1958 and 1962 , respectively The General Counsel adduced unrebutted testimo- ny that at the time of the October 13, 1967, layoff Respondent retained other employees in similar positions who were hired after Carree and Foster on both counts. As to Respondent 's argument that these employees voluntarily severed their employment, the strong- est case is to be made for Carree, for he signed a so- called quit slip at the time he withdrew his profit-sharing money. The question here is whether Carree's action in signing the quit slip is sufficient to show that he thereby abandoned his interest in his former job and thereby waived his rights as an economic striker. In a similar situation (except that economic strikers were involved) the Board found that employees who signed quit slips while on strike to obtain their vacation pay did not thereby indicate their intent to abandon their employees ' status. Roylyn, Inc., 178 NLRB No. 33.15 From the facts in this case, and especially in view of the rights accorded Carree as an unfair labor practice striker, I must hold that Carree's signing of a quit slip in order to obtain his profit -shanng money is not sufficient to establish that he thereby lost the status of an unfair labor practice striker with the right to reinstatement Further, Carree testified that his job with the Butte Knitting Company was not as desirous to him as his former job with the Respondent because he worked on the night shift . The job proffered him by Respondent, which he accepted, was to his former position on the day shift. Indeed, it might be said that Carree's very action in returning to work for the Respondent is demonstrative of the fact that he had no intention of severing his original employment relationship with the Respondent As to Foster, since he did not sign a quit slip, his case is obviously of even greater merit than that of Carree's. Accordingly, and irrespective of his conversation with Garrett in late April or early May 1966, I find that Foster did not relinquish his rights as an unfair labor practice striker when he procured his profit-sharing money in September 1966.16 Finally, I regard it as immaterial that neither Foster or Carree asked to be reinstated prior to Respondent's notification to them on June 8, 1967, that their jobs were still available and that they should report to work on or before June 19. Again, I think it clear the action of these employees in presenting themselves for work pursuant to the said notification was in itself tantamount to an unconditional offer by them to return to work at this time." In view of all the foregoing, I find that Respondent failed to comply with that part of the Board 's Order requir- ing that Foster and Carree be reinstated without prejudice to their seniority rights. Accordingly , I find that Foster and Carree are entitled to be made whole for any loss of pay they may have suffered during the period from October 13 , 1967, to June 3, 1968, they both having been recalled on the latter date. The amounts of backpay due Foster and Carree for the entire backpay period, as summarized and tabulated " Cf Guyon Machinery Company, 155 NLRB 591, 593-594 16 Conversely, I find that Respondent has not affirmatively established by objective evidence that either Foster or Carree abandoned their interest in their struck jobs The presumption that an unfair labor practice striker remains in such status therefore has not been rebutted Roylyn, Inc, supra " There is not evidence that Foster or Carree imposed any condition when they presented themselves to work at this time 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD below, are as set forth in the Backpay Specification and as admitted in Respondent's answer thereto 11 Plus year end bonus . . . . . . . . 35.00 Plus holiday . .. .. . . .. .. . . . . . 72 00 C. Backpay of Charles Foster, Sr Net backpay . . .. .. . . ... . . . $ 419.60 Plus vacation pay . .. . . . . . . . . 328.00 Plus year end bonus . . . . . . . . . 35.00 Plus holiday pay . .. . ... . . . . 80.00 Total backpay due Foster, upon which interest shall accrue at 6% per annum until paid . . . 867.60 D. Backpay of Leon Carree Net backpay . .. . .. . . . . . . . 2,904.00 Plus vacation pay . . . . . . . . . . . . . . 281.80 Total backpay due Foster, upon which interest shall accrue at 6% per annum until paid .. . 3,292.80 " As to vacation pay, holiday pay and bonus pay, I construe Respond- ent's Answer as conceding the computations but denying that the employ- ees were due these amounts only because the Specification accorded these employees seniority from the dates of their original hire Par III (4)(C) of the Backpay Specification alleges that Foster is entitled to the sum of $287 60 for medical expenses due him "either wholly or in part" under a medical insurance policy carried by Respondent on its employees Respondent's Answer denies that it has any backpay obligation with reference to any medical expenses Foster may have incurred during the backpay period Since General Counsel failed to offer any proof concerning this allegation, I shall not hold Respondent liable for any medical expenses allegedly due Foster during the hackpay period