Indian Head Inc.

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. & F. Binch Co. Plant of the Native Laces and Tex- tile Division of Indian Head, Inc. and Textile Work- ers of America. AFL-CIO. Case 3-CA-3473 February 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 7, 1970, Trial Examiner Benjamin K. Blackburn issued his Decision 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 Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief ; General Counsel filed exceptions to the Trial Examiner's Deci- sion, a supporting brief and an answering brief to Respondent's exceptions ; and the Charging Party filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except to the extent modified herein. Until 1967, Respondent's employees had been rep- resented for 20 years by the Glens Falls Independent Textile Workers Union. In a decision issued in De- cember 1967,1 the Board found, inter alia, that Re- spondent had violated Section 8(a)(1) and (2) of the Act by its dealings with the Independent, and ordered Respondent to cease and desist from maintaining in effect a collective-bargaining agreement with the In- dependent Union and from contributing assistance and support to it . The Board also ordered Respondent to withhold recognition from the Independent Union unless and until certified by the Board. The complaint in the present case was issued on April 7, 1969. The Charging Party in this case , the Textile Workers Un- ion of America, AFL-CIO, has had a petition for an 1 H & F. Burch Co, 168 NLRB 929. election at the plant pending since 1966, but that peti- tion has been delayed by the unfair labor practice proceedings in this and the prior case. On Friday, March 15, 1968, without punching their timecards, 15 employees walked off their jobs in the raschel department of Respondent's plant to protest a change in their work schedules.2 Shift supervisors immediately called management personnel to tell them of the walkout, and the management officials soon arrived at the plant. The management personnel included Misogianes, the plant manager, Cavanaugh, the manager of the greige mill (which contains the raschel department), and LaVaute, plant personnel manager. Cavanaugh spoke with employee Beaupre, president of the Independent Union, employee Cot- trell, a former president, and other rank-and-file em- ployees about the causes of the walkout. The walkout was not limited to supporters of the Charging Party, as is evidenced by the fact that Paul Wilson, chief steward for the Independent, was among those who walked out. Friends and relatives of employees who had remained at their jobs and of management per- sonnel were called in that same evening to man the machines of the strikers. Management informed the remaining employees that the new work schedule was voluntary, but made no effort to contact the strikers to so inform them. Misogianes, the plant manager, called counsel for Respondent to apprise him of the situation. Counsel told Misogianes that, under applicable law, Respon- dent could replace the strikers, but could not dis- charge them. He further advised Misogianes that, in order to "protect" itself, Respondent should find re- placements for the 15 employees who had left without punching out. Misogianes thereupon told Personnel Manager LaVaute to find replacements for the 15, as quickly, as possible the next morning. The timecards of the strikers were removed from the rack by Fore- man Red Macey, with the exception of one employee not known by Macey to be a striker. Shortly after the walkout, the 15 participants held a meeting that evening at a local restaurant, at which, by a vote, they decided to return to work in a body the next day. On Saturday, they met at the restaurant, shortly before the start of their 2 p.m. shift, and went to the plant as a group. By this time, Respondent in one way or another had contacted 15 new employees, had listed them as such on its records, and had mark- ed the strikers as "replaced." When the strikers came into the plant, after having signed a protest composed by employee Keith, they went past the timeclock to- ward the raschel department where they were met by 2 Three other employees also left early , on the pretext that they were ill. However, they punched their timecards , and when they returned to the plant the next day, they were permitted to work without any demurral by Respon- dent. These three employees are not further involved in this proceeding. The complaint alleges that the other 15 strikers are drscrsmmatees. 188 NLRB No. 98 H. & F. BINCH CO. Foreman Macey, who asked them where they were going. When one of the group replied that they were going to work, Macey said, in accordance with in- structions from Respondent's counsel, that they had been replaced and that they "have to report to person- nel at 8 :00 a.m. Monday morning." All the strikers then left the plant. Respondent had, as noted, allegedly obtained permanent replacements for all 15 before they appeared at the plant at 2 p.m. on Saturday. The Trial Examiner found, however, as discussed, infra, that 6 of these 15 alleged replace- ments were not legally permanent replacements, but that the other 9 had been permanently replaced. Subsequent findings relative to the question of the reinstatement rights of the strikers rest on the issue of whether the strikers were making individual uncondi- tional offers to return to work when they marched in as a group. That is, should the evidence establish that even if Respondent would have agreed to take back the employees who had not been permanently re- placed, their agreement to return to work would have been conditioned on the reinstatement of the employ- ees who had been permanently replaced, it would fol- low that the offers of the nonpermanently replaced employees were only conditional, and the right of the latter employees to reinstatement would not begin on March 16. The Trial Examiner found that there was no direct evidence of what the nonpermanently re- placed strikers would have done if Respondent had let them go to work and barred the others. According to the Trial Examiner, it was not established that if Re- spondent had reinstated only those strikers who had not, as a matter of law, been permanently replaced, all of those strikers would have walked out again. He reasoned that since it was Respondent's abrupt an- nouncement of total replacement which made it im- possible to say what the strikers would have done, the doubt must be resolved against Respondent. The Trial Examiner therefore concluded that when the March 15 strikers walked in on March 16, they made separate unconditional offers to return to work. The Trial Examiner, in consequence, further con- cluded that, although the Respondent was privileged to permanently replace employees who had engaged in an economic strike, its failure on March 16 to im- mediately reinstate those whom it had not perma- nently replaced (and who, as he found, by returning to work, had asked unconditionally for reinstatement) was a violation of Section 8(a)(3) and (1). A general meeting of employees was held on Sun- day evening, March 17, under the sponsorship of the Textile Workers. At that meeting, attended by ap- proximately 50 employees, a Textile Workers repre- sentative reviewed the facts that the March 15 strikers had struck in protest of the new schedule and that Respondent had refused to take them back. A vote 721 was taken as to whether a strike should be instituted to support the March 15 strikers and it was agreed unanimously that such action be taken. On Monday morning, March 18, picketing began at the plant. The signs read "Sunday A Day for Rest Not Business" and "On Strike, Unfair Labor Practices, Binch Won't Talk." Approximately 25 persons, not previously on strike, failed to report for work on that Monday. The Trial Examiner recognized that if Respondent had, in fact, permanently replaced all 15 of the March 15 strikers, the continued strike would necessarily still be an economic one. However, based on his previous finding that Respondent had illegally refused to rein- state six of the March 15 strikers, the Trial Examiner concluded that the enlarged strike, which he found to be, at least in part, in support of the original strikers' desire for reinstatement, became an unfair labor prac- tice strike. In addition to the 15 strikers, the complaint lists as discriminatees 19 more strikers who joined the strike on March 18. Early on March 18, after the picketing had begun, most of the strikers left the picket line and met at the Textile Workers labor hall. A committee was named, with Paul Wilson, Gordon Lomax, and several others as members. The strikers evolved a strategy of getting back to work as a group the next day by talking to Plant Manager Misogianes. Wilson and Lomax called Misogianes, but he refused to meet with the commit- tee and told them to write him a letter.3 The strikers discussed sending a telegram, but postponed their de- cision. On Tuesday, March 19, as picketing continued, an- other meeting attended by most of the strikers, was held at the labor hall of the Textile Workers. It was decided to send Misogianes a telegram, which asked for a meeting and also stated, in part, "all the employ- ees now on strike offer to return to work immediately provided you agree to take everyone back without discrimination." It was signed, on behalf of "a com- mittee of the employees of H & F Binch Co. of those who walked off the job," by employees Wilson and Lomax. Misogianes replied, in a March 20 letter, that, as a result of the Board order against Respondent, he could not meet with any group purporting to repre- sent employees. Additionally, he wrote that "any em- ployee who desires to return to work and has not been replaced, may apply to the personnel department on an individual basis." The Respondent had, in the meantime, proceeded to replace the March 18 strikers as it had the original March 15 group. At this early stage of the strike some of the March 18 strikers began 3 It will be remembered that the Board had ordered Respondent not to bargain with the Independent Union. Wilson was chief steward for the Independent. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandoning the strike and offered to return to work. Those who had not been replaced were reinstated without incident. Seventeen replacements were hired for the March 18 strikers and one employee was trans- ferred to a striker's job from another part of the mill. These replacements were completed by March 23. On April 3, pursuant to a discussion to be de- scribed, infra, at a meeting of some of the strikers, another telegram was sent to Misogianes. The tel- egram read, in part, "The employees of H & F Binch who are on strike offer to return to work uncondition- ally." It was signed by Lomax; Gatchell, an official of the Independent; and Hissam, an organizer for the Textile Workers. Misogianes replied, in a letter dated April 4, that Respondent was unable to concede that the senders of the telegram spoke for any group of employees and that "any striker who desires to make an unconditional offer to return to work may contact the Personnel Office, individually." The Trial Examiner found that the March 19 tel- egram was not a valid application for reinstatement, since it was conditioned on the return of all the strik- ers. He further found, however, that the April 3 tel- egram was an unequivocal, unconditional offer to return to work on behalf of all strikers by the striker's committee, and that, "since the strike was an unfair labor practice strike at that time . . . Respondent violated Section 8(a)(3) and (1) when it failed to rein- state all strikers not permanently replaced by March 18, following receipt of the April 3 offer to return to work, notwithstanding the permanent replacements it had hired." After sending the April 3 telegram, the Textile Workers prepared form letters to be sent to the Re- spondent. The letters read: "As an employee of H & F Binch Company on strike, I offer to return to work unconditionally. Please advise when I may return to work." On April 5 and 6, 21 strikers signed individual copies of this letter, which the Charging Party mailed to Respondent on April 6. On April 9, all of these persons, plus Rodney Keith who had not sent a letter, went to the mill to be interviewed. They were inter- viewed as to their job and shift desires, but were each told that there were no openings at the time. Two other employees signed such letters on April 18 and 20, which were also mailed to Respondent. At this juncture, Respondent was advised by its counsel not to hire any new employees until all the strikers who had individually applied for reinstate- ment were offered new jobs. In late April, Respond- ent prepared a preferential hiring list which was composed of the 23 strikers who had sent the individ- ual letters and Rodney Keith, who, as noted, had appeared at the personnel office. Thereafter, when Respondent began hiring new employees in late April and May, mostly for a third shift in the finishing department, it contacted all 24 employees on the pref- erential list, often several times for different jobs. All job offers were for jobs as new employees at the mini- mum rate. Twelve employees on the list accepted new jobs, and the others declined because they had new jobs or found the offered ones not to their liking. The other 10 alleged discriminatees named in the com- plaint, who had never applied personally for reinstate- ment, were never contacted by Respondent, with the exception of Paul Wilson, to whom Respondent of- fered a job in May. After the Board issued its decision in The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414 F.2d 99 (C.A. 7), cert. denied 397 U.S. 920, on June 13, 1968, Respondent was apparently advised by counsel to reinstate to their old jobs any strikers then employed (that is, who had been reemployed at some time after the strike) whose initial replacements had since left Respondent's employ. This was done, and six employ- ees were fully reinstated or offered reinstatement, five of them in July 1968. While not important to this case, it is noted that Laidlaw requires the reinstatement of an economic striker (who has not gotten substantially equivalent work) to his former or an equivalent job when his replacement has left or such a job has be- come available. The right to reinstatement is not de- pendent upon whether or not the economic striker has already been reemployed by the employer in some other capacity. Although jobs opened up in the summer of 1968 in the departments and on the shifts on which all the strikers had been working prior to the strike, the Re- spondent failed to consider most of the strikers (aside from the few adverted to above) for those jobs, and instead continuously hired new employees for those positions. On these facts, the Trial Examiner found, as previ- ously discussed, that Respondent violated Section 8(a)(3) and (1) by refusing to reinstate six of the March 15 strikers on March 16, 1968, when they un- conditionally offered to return to work at a time when they, in his opinion, had not been permanenetly re- placed, and further violated Section 8(a)(3) and (1) by refusing to reinstate unfair labor practice strikers who had not been replaced by March 18, following what he found to be their unconditional application for reinstatement on April 3, 1968. As part of the remedy, the Trial Examiner recom- mended that strikers who were thus discriminated against be made whole for any loss of earnings they may have suffered. The Trial Examiner, however, de- cided that backpay should be tolled for all strikers in this case. The complaint in this case did not issue until April 7, 1969, and the Trial Examiner reasoned that the Respondent should not be penalized for the Gen- eral Counsel's delay in issuing a complaint for more H. & F. BINCH CO. than a year after the charge was filed, a delay due, the Trial Examiner thought, to the General Counsel's in- ability to determine whether Respondent had com- mitted an unfair labor practice. Accordingly, the Trial Examiner recommended that, in the case of all per- sons found to be discriminatees during the compli- ance stage, the backpay period should begin on April 7, 1969. The Trial Examiner also noted that the record in- dicated that other strikers might be entitled to reme- dial relief even though not named in the complaint, and he recommended that such persons be considered for possible relief in the compliance stage of the case. The General Counsel, the Charging Party, and the Respondent have all filed exceptions to the Trial Examiner's Decision. The General Counsel urges us to find, among other things, that the replacement of all March 15 strikers was discriminatorily motivated. For this finding, the General Counsel would rely upon such factors as the haste with which Respondent sought out inexperienced replacements for the strik- ers, certain evidence tending to establish that the Re- spondent thought that the strike was inspired by the Textile Workers, a rival to the favored Independent Union, and similar matters. Although Respondent seems to have been extraordinarily anxious to secure "permanent" replacements for the strikers before their shift began on the day after the March 15 strike, we cannot say, as the Trial Examiner could not, that the evidence supports the finding requested by the General Counsel. We do differ with the Trial Examiner, however, as to certain of his findings regarding the six March 15 strikers he found not to have been permanently re- placed by March 16. An employer has a right to hire permanent replacements in the stead of strikers, whose return cannot usually be anticipated with any certainty. We have held that if the employer makes a commitment to the applicant for the striker's job, we will normally regard that commitment as a legitimate replacement even though the striker requests rein- statement before the replacement actually begins to work. Anderson, Clayton & Co., 120 NLRB 1208. The question of what constitutes a real commitment will, of course, vary with the circumstances of each situ- ation, but we believe, contrary to the Trial Examiner, that employees Lamoreaux and Harper, in addition to the nine strikers so found by the Trial Examiner, were validly replaced by March 16. Raymond Lamoreaux was allegedly replaced by Doris Rathbun. The Trial Examiner found that Rathbun's acceptance of the job was "conditioned" on her finding a babysitter. Rathbun had contacted James LaVaute, personnel manager, a few days be- fore the strike, saying that she was looking for work. Nothing was available at that time. On Saturday 723 morning, March 16, before the critical shift began, LaVaute called her, offering a job. According to La- Vaute, Rathbun accepted the job, but said, "I'm going to have a problem. I have to secure a baby sitter. I won't be able to come in today, but I will accept the job and I will do the best I can. I will get in as soon as I can." Rathbun actually started to work the fol- lowing Wednesday. The Trial Examiner found on these facts that Rathbun had not actually replaced Lamoreaux at the time, on March 16, that he attempt- ed to return to work. We are of the opinion that the fact that Rathbun had been looking for the job earlier in the week was indicative of her belief that she was in a position to accept a full-time job in spite of the fact that she would have to make arrangements for a babysitter. Her acceptance was not conditioned on her getting a sitter, but rather only the actual date of start was indefinite. Therefore, we conclude that Rathbun was a permanent replacement for Lamoreaux. William Harper was allegedly replaced by Paul Ma- cey. The Trial Examiner found that Macey's accept- ance of the job (offered to him by Red Macey, his uncle and a foreman in the raschel department) was conditioned on being allowed to report when most convenient for him, not when most needed by Re- spondent. Red Macey testified that he called Paul on Saturday, March 16, and asked him if he wanted a job. Paul said he had plans for the weekend and, since Monday was the regular day off, asked if he could come in on Tuesday. Red Macey told him that he could, and communicated this fact to LaVaute. We find that a definite commitment had been made by Paul Macey to accept the job and that he was there- fore a permanent replacement, even though he did not actually report to work until after Harper had applied for reinstatement on March 16. Accordingly, we reverse the Trial Examiner's deter- minations as to employees Lamoreaux and Harper and find that they were permanently replaced, when they returned to work on March 16, together with the nine other strikers so found by the Trial Examiner. We agree, however, with the Trial Examiner that em- ployees Harding, Potter, Wilson, and Gatchell were not permanently replaced when they asked to be re- turned to their jobs on March 16, and that Respondent's refusal to reinstate these employees was thus violative of Section 8(a)(3) and (1).4 Consequent- Potter and Wilson were allegedly permanently replaced by Mumblo and Burch, who were transferred from other departments of Respondent to the raschel department, creating vacancies that were not immediately filled in the departments from which they were transferred . Considering these circum- stances, we do not find such transferees to be permanent replacements . Potter and Wilson were therefore entitled to reinstatement to their former positions upon their unconditional offer to return to work, accompanied by a retrans- fer of the transferees to their original jobs We do not adopt the Trial Continued 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, they are entitled to an offer of reinstatement to their old jobs or, if not available, substantially equiva- lent ones, restoration of their seniority and other rights and privileges, and payment of backpay from i March 16, 1968. As to the permanently replaced March 15 strikers, early in his Decision the Trial Examiner found, and we agree, that they (together with the strikers who had not been permanently replaced) made an uncondi- tional offer to return to work by virtue of their appear- ance for work on March 16. In his final statement of his legal conclusions, however, the Trial Examiner did not either advert to this earlier conclusion or, as far as we can perceive, attempt formally to declare the legal status of this particular group of strikers, other than by a reference to them in his remedy section. In his concluding substantive paragraph, the Trial Ex- aminer first found that Respondent's refusal on March 16 to reinstate those March 15 strikers who had not been effectively permanently replaced was violative of Section 8(a)(1) and (3). He then found that the strike became an unfair labor practice strike on March 18, and that the April 3 telegram sent by the strikers' committee was an unequivocal, uncondition- al offer to return to work on behalf of all strikers. Finally, the Trial Examiner concluded, as we have already quoted in part: Since the strike was an unfair labor practice strike at that time [April 3], I find that Respon- dent violated Section 8(a)(3) and (1) when it failed to reinstate all strikers not permanently replaced by March 18 following receipt of the April 3 telegram notwithstanding the permanent replacements it had hired. Having found a viola- tion on the basis of an unfair labor practice strike, I do not reach the Laidlaw issues raised by Respondent. It thus would appear from this language that the Trial Examiner made findings only as to that group of strikers "not permanently replaced by March 18." As noted, however, there were 11 March 15 strikers who, we have found, were permanently replaced by March 18, and their rights must be dealt with under the Laidlaw principles.' Laidlaw holds that it is violative of Section 8(a)(3) and (1) to fail to reemploy permanently replaced strik- ers to their former jobs or substantially equivalent ones which become available after the strikers apply for reinstatement, unless the employer can advance legitimate and substantial reasons for failing to rein- state the strikers. This holding applies to the 11 March 15 strikers who, by attempting to return to work, ap- Examiner's conclusion in this regard that Potter and Wilson should have been assigned to the positions vacated by Mumblo and Burch. ' The Laidlaw Corporation, 171 NLRB No. 175, enfd 414 F.2d 99 (C A 7), cert. denied 397 U.S. 920 plied for reinstatement on March 16 .6 By thus offering themselves for work, these replaced strikers made it clear that they were seeking reinstatement. Under Laidlaw, the Respondent, absent a legitimate justifica- tion, would thereafter be required to offer these em- ployees such vacancies as became available in their old jobs and on their old shifts, on pain of being held legally accountable under Section 8(a)(3) and (1). It appears, however, that most of the strikers with- drew their unconditional applications for reinstate- ment on March 19, by agreeing on that date to send Respondent a telegram stating that all the striking employees offered "to return to work immediately provided you agree to take everyone back without discrimination." The condition thus imposed on the terms under which each individual striker would re- turn to work nullifies, we believe, the unconditional character of the offer to return made by the March 15 strikers on March 16. Accordingly, until the March 15 replaced strikers gave some further indication that they desired to return to work, without condition, their right under the Laidlaw doctrine became inoper- ative. The Trial Examiner found that the next telegram sent was an "unequivocal unconditional offer to re- turn to work on behalf of all strikers by the strikers committee." This telegram, sent on April 3, stated that Respondent's striking employees offered to return to work unconditionally, and asked Respondent to noti- fy the three signers of the telegram (Hissam, Lomax, and Gatchell) in care of Hissam. Hissam was an agent of the Textile Workers of America, which was not the bargaining representative of the employees. Gatchell was an employee of Respondent and an official of the Independent Union, which similarly did not represent the employees at the time. Lomax was an employee. The latter two were on the committee established by the striking employees a few days after the strike be- gan. The idea of sending the April 3 telegram was conceived by the committee, consisting of six or seven strikers. Unlike the circumstances of the March 19 telegram, discussed above, it does not appear from the record that the decision to make the April 3 uncondi- tional offer of reinstatement was approved by all or a majority of the strikers. While the decision to send the telegram was made at a "meeting" of strikers, there is no evidence as to how many- employees were in attendance. At the same time that it suggested the April 3 telegram, the committee, and apparently those at the meeting, agreed that all the strikers who wanted 6 The fact that these strikers, after being refused reemployment on March 16, continued to picket does not affect the efficacy of their request for reinstatement On the other hand, the fact that their strike became an unfair labor practice strike on March 18 does not entitle the March 15 permanently replaced strikers to the right to immediate reinstatement, displacing replace- ments if necessary, normally enjoyed by unfair labor practice strikers. See Johnson Sheet Metal, Inc, 179 NLRB No. 104 H. & F. BINCH CO. to go back to work should also send individual letters to Respondent. It thus appears from the record that the group of strikers which had coalesced by March 17 and had formed a committee at that time were no longer operating as a unit by April 3. In her testimony, committeewoman Damon testified that the individual letters suggested by the committee were to be sent by "all that wanted to go back to work.... They didn't have to if they didn't want to go back to work." Da- mon also testified that by April 3, "there had been quite a few that had gone and got other jobs and didn't care." Thereafter, on April 5 or 6, 6 of the 11 March 15 legitimately replaced strikers signed indi- vidual form letters to Respondent offering to return to work unconditionally, and a seventh appeared at the plant on April 9 for a personal interview. On the above evidence, it seems difficult to say, as did the Trial Examiner, that the telegram of April 3 was, in fact, an offer on behalf of "all the strikers" and was entitled to treatment as such by the Respondent. Since , as Damon testified, a number of strikers no longer "care[d]" to return to work, and it was agreed that those who did desire to return should write let- ters, the telegram can hardly represent a request by "all" strikers for reinstatement. An affidavit given to a Board agent on April 18 by employee Bovee sup- ports this view. Bovee stated, "I will not go back to work until the people who were fired get their jobs back." Clearly, Bovee, a March 18 striker, was not represented by the sentiment expressed in the April 3 telegram. In these circumstances, we believe that only the individual letters and personal requests which fol- lowed the April 3 telegram can be considered to be effective requests for reinstatement. Of the 11 permanently replaced March 15 strikers, then, the record shows that 7 of them (Beverly Coltey, William Harper, James Hill, Kathleen King, Robert Kingsley, Rodney Keith, and Joan Shippe) submitted such individual applications for reinstatement and are thus potentially entitled to an offer of reinstatement and payment of backpay in accordance with the Laid- law principle. The offers made to these and other employees, in April and May 1968, of jobs as new employees at the minimum wage rate and without credit for past seniority, did not satisfy the obligation of Respondent under our Laidlaw decidion. Under that doctrine, when striking employees have applied for reinstatement, the failure to offer employment in their former or similar jobs to such employees, when such jobs become available, carries a potential for adverse effect upon those employees' rights and con- stitutes a violation of Section 8(a)(3) and (1), absent legitimate and substantial employer justifications. The job offers contemplated by that decision must- in order to establish that the employer intends to treat 725 the strikers impartially-not only afford the employ- ees their old jobs or substantially equivalent ones, but must also permit the employees to earn the same wag- es and benefits as before and to receive credit for accumulated seniority. Unless the employer can dem- onstrate some legitimate and substantial business jus- tification for making only a lesser offer shorn of any or all such preexisting benefits, the failure to so fully reinstate employees will have the effect of discrimina- tion and will be the basis for a finding of violation of Section 8(a)(3) and (1). In the present case, the Respondent's conduct in regard to the seven permanently replaced strikers was clearly destructive of important employee rights. The April and May offers of employment pertain to differ- ent jobs from those the strikers had previously been performing, and these offers proposed reemployment only at the trainee rate and without credit for seniori- ty. Thereafter, beginning in June, when sufficient jobs became available on their old shifts to permit rein- statement of these strikers to their old or substantially equivalent positions, Respondent made no offers to return them to status quo ante, except for certain offers in July to strikers who accepted reemployment at less- er jobs in the plant. The fact that some of these seven strikers accepted the different and lower paying posi- tions offered to them in April and May did not extin- guish the Respondent's continuing duty to offer them reinstatement, at prestrike terms of employment, when jobs in their former shifts and classifications became available in June and thereafter. See C. H. Guenther & Son, Inc., 174 NLRB No. 174, enfd. 427 F.2d 983 (C.A. 5, June 1, 1970), cert. denied 91 S.Ct. 240 (1970). However, we believe that the record fairly estab- lishes that, of these seven strikers, three of them ob- tained "other regular and substantially equivalent employment" (Section 2(3) of the Act) before jobs became available for them at Respondent's plant after the strike ended. The evidence shows that employees Hill, Keith, and Harper all secured regular employ- ment with other employers not long after applying for reinstatement and, according to the findings of the Trial Examiner, before appropriate vacancies became available for them with Respondent. It would appear from the testimony that these three employees were satisfied with their new employment and received compensation and benefits equivalent to that derived from their previous positions with Respondent. Ac- cordingly, since striking employees lose "employee" status, and their right to preferential treatment, once they have obtained "other regular and substantially equivalent employment," the three named employees cannot be considered to have been discriminated against because the Respondent failed to reemploy 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them in June and thereafter when vacancies in their classifications and shifts occurred. Cf. Little Rock Air- motive, Inc., 182 NLRB No. 98. Finally, the 19 employees who went on strike on March 18 were, as the Trial Examiner found, at least in part, protesting Respondent's unlawful refusal to reinstate the 4 employees (as found herein) who had not been permanently replaced on March 16. As un- fair labor practice strikers, these 19 employees were entitled, upon application, to immediate reinstate- ment to their former jobs, replacing if necessary, any replacements hired prior to their applications for reinstatement . See Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278. Fifteen of these strikers' did sub- mit effective individual applications for reinstatement after April 3, in the same manner as the March 15 strikers, but, as with the latter, they received only the limited offers made in April and May and were not accorded the immediate preferential treatment to which unfair labor practice strikers who apply for reinstatement are entitled. They are therefore not en- titled to offers of reinstatement to their former jobs and to backpay commencing 5 days after their indi- vidual applications for reinstatement were submit- ted.' Several qualifications on the above discussion and on the Trial Examiner's Decision should be set forth. One relates to the Trial Examiner's determination that the backpay period for all discriminatees should only begin as of April 7, 1969, the day that the complaint issued in this case. The Trial Examiner based this judgment on his belief that it would be manifestly unfair to add to Respondent's back- pay liability the period of a year [starting with the filing of the charge on April 4, 1968] in which the General Counsel apparently could not make up his mind whether Respondent had committed an unfair labor practice, especially in view of Respondent's efforts to follow the law as it devel- oped during that period. The delay is indeed unfortunate, but we believe that the Supreme Court's decision in N.L.R.B. v. J. H. Rutter-Rex Manufacturing Co., Inc., 396 U.S. 258, strikes the balance, in situations such as this, in favor of employee rights. We shall accordingly not adopt the Trial Examiner's proposed tolling period for back- pay purposes. 7 Sharon Cook Blackbird, Malone Bovee, Kathleen Brown, Florence Da- mon, Alice Green, Edith Hall, Lois Hendy, Ruby Hill, Albert Kingley, James Knickerbocker, Gordon Lomax, Martin Nelson, Mane Pederson , Barbara Pincheon, and Robert Warner. $ Even if the March 18 strikers were not deemed unfair labor practice strikers, their right to reinstatement and backpay would commence with the appearance of vacant equivalent jobs in June, just as with the permanently replaced March 15 strikers discussed above. In view of the fact that the other four March 18 strikers have not been heard from in the more than 2 years which have elapsed since the strike, we think it reasonable to exclude them from the remedy hereinafter given We also consider inappropriate the Trial Examiner's suggestion that his remedial order may properly encompass an unspecified number of indi- viduals not named in the complaint, but who may, in the course of compliance proceedings, be found to occupy the same status as the employees so specifical- ly named. Both the General Counsel and the Respon- dent oppose this recommendation, and we perceive no basis for thus broadening the complaint. Long after the events, the General Counsel chose to com- plain only about Respondent's failure to reinstate 34 named strikers, and we believe that, in the interest of fairness, the remedy must be limited accordingly. Another remedial limitation arises with regard to six employees (Florence Damon, Richard Harding, Robert Kingsley, Martin Nelson, Ruby Hill, and James Knickerbocker) who were either in the group of March 15 strikers or were March 18 strikers, and who individually applied for reinstatement at various times after April 3. The record shows that all six were, at some point after the strike, offered full reinstate- ment to their original positions. The first five were reinstated, or were offered reinstatement, on July 16, 1968; Knickerbocker was reinstated on March 27, 1969. General Counsel appears to concede that such reinstatement included restoration of prestrike wage levels, benefits, and seniority credits. It follows that these six employees are remedially entitled only to such backpay and other benefits as should have ac- crued to them between the ripening of their right to restoration to their old jobs with prestrike benefits and the dates of their full reinstatement or offer of reinstatement. The same cutoff date would apply, of course, to any discriminatee who has been subse- quently restored to his prestrike position and level of emoluments. Whether or not Edith Hall was in fact reinstated to her prestrike position, as Respondent's counsel indicated at the hearing that she would be, is a matter for determination at the compliance stage. We do not now adopt the Trial Examiner's finding that she was so reinstated. We hold, in conclusion, that employees Harding, Potter, Wilson, and Gatchell were discriminated against when they unsuccessfully sought reinstate- ment to their still vacant jobs on March 16; that 4 other aforementioned March 15 strikers (Coltey, King, Robert Kingsley, and Shippe) are, under Laid- law, entitled to reinstatement and backpay beginning at times which further investigation will presumably establish; and that the 15 aforementioned March 18 strikers were unfair labor practice strikers as of that date and entitled to reinstatement and backpay as of 5 days from the dates upon which they requested reinstatement. We note that, in addition to backpay, all such discriminatees are entitled to be reimbursed for lost benefits, such as bonuses, vacations, and insu- H. & F. BINCH CO. rance, during the periods of discrimination, and to appropriate updating of their seniority rights. With the modifications expressly set out above, we other- wise adopt the Trial Examiner's Decision. His Con- clusions of Law are modified accordingly. THE REMEDY We shall order that the Respondent offer to the 23 discriminatees, named immediately above in our De- cision, immediate and full reinstatement to their for- mer or, if they are no longer available, substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges previously enjoyed, discharging replacements if necessary, and make them whole for any loss of earnings and benefits they may have suffered as a result of the discrimination against them. This make-whole provision will be sat- isfied by payment to the named discriminatees of the sums and benefits each would normally have earned and accrued from the dates of discrimination against them, as detailed above, to the dates of Respondent's offer of reinstatement, less their net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, H. & F. Binch Co. Plant of the Native Laces and Textile Division of Indian Head, Inc., Glens Falls, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Refusing to reinstate economic strikers who un- conditionally offer to return to work and have not been permanently replaced. (b) Refusing to reinstate unfair labor practice strik- ers who unconditionally offer to return to work. (c) Refusing to offer to reinstate 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 justifications for so refusing. (d) In any like or related manner discriminating against employees to encourage or discourage mem- bership in a labor organization. (e) 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 necessary to effectuate the policies of the Act: 727 (a) Offer to the employees, identified in our Deci- sion as entitled thereto, immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, substantially equivalent positions, without pre- judice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth above in the section entitled "The Remedy." (b) Notify immediately the above-named individ- uals if presently serving in the Armed Forces of the United States of the right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act. (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 oth- er records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Post at its plant in Glens Falls, New York, cop- ies of the attached notice marked "Appendix."9 Cop- ies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consectuve days thereafter, in conspicuous places, including all places where notices to employ- ees 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 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS HEREBY FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent violated the Act by other acts and conduct. CHAIRMAN MILLER, dissenting: I do not accept the key conclusions of my col- leagues. I do not agree that Respondent violated the Act by refusing to reinstate some March 15 strikers, for I do not agree that any of them made unconditional offers to return to work on March 16. The March 15 group struck as a body, signed a joint protest, voted to return in a body, and returned in a body. Consistent with this pattern of conduct, they sent Respondent a telegram on March 19 demanding group reinstatement. While 9 In the event that this 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 " 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my colleagues see this telegram as a withdrawal of prior unconditional offers to return to work, I find no evidence to support a conclusion that the character of the strikers' demands changed over the weekend. Therefore, I would find that the March 16 offer to return to work was conditioned upon group reinstate- ment and did not give rise to a duty on Respondent's part to reinstate any striker, replaced or not. I also do not agree that the March 18 strikers were unfair labor practice strikers or that the strike con- verted into an unfair labor practice strike on March 18. First, in my view, Respondent had not violated the Act. Second, it is cleat from the March 19 telegram that to whatever extent the strike involved a protest against Respondent's failure to reinstate March 15 strikers, it involved a protest against Respondent's failure to make a group reinstatement not required by the Act. Third, even if Respondent did violate the Act by refusing to reinstate some strikers on March 16, I fail to see that the strike was materially contributed to or motivated by that factor. The strikers never regard- ed Respondent's replacements as unfair labor prac- tices. Rather, they simply voted to "support" the March 15 group, and their picket signs referred only to Respondent's changes in the work schedule. I would find that the real motivation for the strike and its continuation was a desire to force rescission of those changes. Eventually 24 strikers (from both the March 15 and March 18 groups) did make valid applications to re- turn to work, during April 5-20. But by that time they had all been replaced. I would not apply the Board's Laidlaw 10 decision retroactively, for reasons which I stated in Coca Cola Bottling Works, Inc., 186 NLRB No. 142. The strikers' reinstatement rights having been disposed of under Board precedent applicable at that time, I would dismiss the complaint. 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: 10 The La,d(aw Corporation, 171 NLRB No. 175, enfd. 414 F.2d 99 (C.A 7), cert. denied 397 U.S. 920 To engage in self-organization; To form, join, or help unions; To bargain collectively through a representative 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 refuse to reinstate economic strikers who unconditionally offer to return to work before they have been permanently replaced; or unfair labor practice strikers who unconditionally offer to return to work at any time; or employees who have been replaced during an economic strike when jobs become available for them after they have made unconditional offers to return to work, unless we have legitimate reasons for so refusing. WE WILL offer to the following employees who participated in the strike commencing on March 15, 1968, immediate and full reinstatement to their former or substantially equivalent positions, if they have not already been so reinstated or offered reinstatement, without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of our discrimination against them with interest at 6 percent per annum: Victor Potter Alice Green Joseph Gatchell, Jr. Edith Hall Paul Wilson Beverly Coltey Richard Harding Kathleen King Robert Kingsley Joan Shippe Marjorie Bovee Kathleen Brown Florence Damon Lois Hendy Ruby Hill Albert Kingsley James Knickerbocker Gordon Lomax Martin Nelson Mane Pederson Barbara Pincheon Robert Warner Sharon Cook Blackbird H. & F. BINCH CO PLANT OF THE NATIVE LACES AND TEXTILE DIVISION OF INDIAN HEAD, INC. (Employer) Dated By (Representative) (Title) H. & F. BINCH CO. 729 We will notify immediately the above-named individuals if presently serving in the Armed Forces of the United States of the right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Seventh Floor, Drislane Building, 60 Chapel Street, Albany, New York 12207, Telephone 518-472-2215. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner : Textile Work- ers Union of America , AFL-CIO, referred to herein as the Charging Party, filed the charge which gave rise to this case on April 4, 1968 . It alleges violations by "H & F Binch Company, Div. of Indian Head Coin an ," I referred to herein as Respondent , of Section 8(a)(13, (2)), (3 ), and (5) of the National Labor Relations Act. The General Counsel of the National Labor Relations Board , by the Regional Di- rector for Region 3 (Buffalo, New Yor, issued complaint on April 7, 1969, and amended it April 30 , 1969. The written complaint alleged that Respondent had violated Section 8(a)(1) and (3) of the Act in various ways all growing out of a labor dispute which erupted at Respondent's plant in mid-March 1968. The complaint listed as discriminatees 15 employees whose participation in the strike began on March 15, 1968 .2 I have referred to them collectively herein as the March 15 strikers . The complaint also listed as discrimina- tees 19 employees whose participation in the strike began on March 18, 1968 .3 I have referred to them collectively herein as the March 18 strikers . Respondent's answer and an amendment thereto, duly filed, admitted certain allegations of the complaint, denied others, and denied the commission of any unfair labor practice . In addition, the answer stated as an affirmative defense that Respondent acted and relied upon the applicable decisions of the Board and courts in effect at the time the matters alleged in the complaint arose, that the complaint was based on the principles of the Laid- law decision 4 issued after the events alleged in the com- plaint, and that the Laidlaw decision was promulgated in disregard of the notice and publication requirements of the Administrative Procedure Act. Pursuant to due notice, hearing opened before me near Glen Falls, New York, on May 20, 1969. On May 22 I 1 Name of Respondent as corrected at the hearing is H & F . Binch Co Plant of the Native Laces and Textile Division of Indian Head, Inc 2 Beverly Coltey, Doris Donaldson, Joseph Gatchell, Jr , Richard Harding, William Harper, James Hill, Kathleen King, Robert Kingsley, Rodney Keith , Raymond Lamoureux , Gary Mumblo , Harold Mumblo , Jr., Victor Potter, Joan Shippe (nee Wolfe), and Paul Wilson. i Milton Barrisford, Sharon Blackbird (nee Cook), Marjorie Bovee, Kath- leen Brown, Florence Damon, Joyce Fitch, Alice Green, Sharon Greene, Edith Hall, Lois Hendy, Ruby Hill, Albert Kingsley, James Knickerbocker, granted the General Counsel's motion to amend the com- plaint again to allege various independent violations of Sec- tion 8(a)(1) in April 1969.5 The first phase of the hearing was held on May 20, 21, 22, 23, 26, 27, 28, and 29. During this period I admitted into evidence as General Counsel's exhib- its Respondent's payrolls beginning with the week endingg March 9, 1968, and ending with the week ending April S, 1969. A dispute developed between the General Counsel and counseF for Respondent over custody of and access to these bulky, voluminious records in the evenings and over the weekend. Also, the General Counsel was not certain which, if any, part of these records he wanted to leave in the record. Consequently, on May 29 I recessed the hearing in order to resolve the dilemma. Counsel for the Charging Party, who was present during the first phase of the hearing only on May 20, was not present at the time. Two nonlawyer representatives of the Charging Party were. I instructed the General Counsel to duplicate that part of the payrolls he wanted to leave in evidence and return the originals to Respondent. I ruled that, when the hearing resumed, I would strike those payrolls he did not want to keep in evi- dence. When the hearing on June 17, 1969, I was informed by the General Counsel that he had duplicated only the payrolls for the period beginning March 9 and ending Sep- tember 28, 1968, that the Charging Party had disagreed with his decision to limit the exhibits in evidence, and that he had returned the originals to Respondent pursuant to my in- structions notwithstanding the Charging Party's position and without giving the Charging Party an opportunity to reproduce additional payrolls during the recess? had grant- ed for that purpose. Counsel for the harging Party request- ed that I not strike the additional pa rolls. Counsel for Respondent refused voluntarily to produce the originals at that time so that the Charging Party could reproduce that part it wanted to add to the photocopies made by the Gener- al Counsel. Counsel for the Charging Party refused to take any steps at that time to force Respondent to produce the originals. I struck the payrolls for the period beginning Oc- tober 5, 1968, and ending April 5, 1969. The Charging Party took a special appeal of my ruling to the Board. On June 24, 1969, the Board reversed me. The second phase of the hearing was held on June 17, 18, 19, 20, 24, 25, and 26, 1969. When the Board's Order restor- ing the payrolls into evidence was received and thereafter, counsel for the Charging Party was not present. Respondent's and the Charging Party's positions, the latter stated by one of the representatives who did attend the entire hearing, were the same as they had been on June 17. When the presentation of evidence ended on June 26, I did not close the hearing at the Charging Party's request. In- stead I recessed it in order to give the parties an opportunity to resolve the problem of getting the payrolls physically into the record. Several special appeals to the Board which failed to solve the problem followed. Finally, by letter dated Sep- tember 10, [969, counsel for the Charging Party requested me to close the hearing. I did so by an order issued on September 19, 1969. Consequently, while Respondent's payrolls for the period beginning October 5, 1968, and end- Gordon Lomax, Martin Nelson, Mane Pedersen, Barbara Pincheon , Robert Warner, and Sandra Washburn (nee Campney) 4 The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414 F 2d 99 (C A. 7) 5 On June 20, 1969, at the close of the General Counsel 's case, I granted Respondent's motions to dismiss the complaint and strike the evidence with respect to these allegations It was based on the alleged conduct of Milton Misogianes, the 16-year-old son of Michael Misogianes , Respondent's gener- al manager, and a part-time employee of Respondent . I granted Respondent's motion on the ground that the General Counsel had failed to prove Milton Misogianes was acting as Respondent's agent. Cf International Van Lines, 177 NLRB No 33 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mg April 5, 1969, are in evidence, I have not had them before me and have not used them in my consideration of this case. The basic issues litigated before me were whether Re- spondent was discriminatorily motivated in treating the March 15 and March 18 strikers as it did, whether its con- duct was violative of the Act under pre-Laidlaw precedent, and, if not, whether its conduct was violative under Laid- law principles. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orall , and to file briefs. Upon the entire record,6 including briefs filed by Respondent and the General Counsel, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is engaged at the Glens Falls, New York, plant involved in this case in the manufacture of lace and other products. During a 12-month period Just prior to issuance of the complaint, this plant received materials valued in excess of $50,000 which were shipped directly to it from points outside the State of New York and this plant shipped goods valued in excess of $50,000 directly to points outside New York. 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. 11. 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 Sction 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Events of 1968' 1. Facts a. Background The Charging Party has had a representation petition for an election among Respondent's employees pending since 1966. The petition has been and remains blocked by unfair labor practice proceedings. In December 1967 the Board issued its Decision and Order in H. & F. Binch Co., et at 168 NLRB 929. The Board found that Respondent had violated Section 8(a)(1) and (2) and that Glens Falls Independent Textile Workers Union, referred to herein as the Independ- ent Union, had violated Section 8(b)(1)(A) of the Act. It found that Respondent had not violated Section 8(a)(3). The Board ordered Respondent to cease and desist from maintaining in effect a collective-bargaining agreement with the Independent Union and contributing assistance and support to it. The Board also ordered Respondent to withhold recognition from the Independent Union unless and until certified by the Board. The Independent Union had represented Respondent's employees for some 20 years prior to this Order. Respondent elected to comply with the Board's Order. It 6 The General Counsel's motion to correct the transcript is hereby granted 7 All dates in this section are 1968, unless otherwise specified. posted the notice prescribed by the Board on January 29. Almost immediately a dispute arose as to whether Respon- dent had, in fact, ceased to deal with the Independent Un- ion as the bargaining representative of its employees. The Charging Party pointed out that Respondent was contin- uing to deduct dues for the Independent Union. Respon- dent corrected the situation immediately. The Charging Party alleged that Respondent was still handling grievances through the Independent Union's stewards in various situ- ations. The 8(a)(2) aspect of the charge filed by the Charg- ing party to initiate this case on April 4 was predicated on the Charging Party's position that Respondent was not complying with the Board's outstanding Order in such situ- ations.8 In the investigation conducted by the Regional Di- rector of Region 3 of the compliance situation prior to the filing of the charge herein and of the charge thereafter, Respondent argued that the Charging Party's tactics were based on a desire to keep its pending representation petition blocked and that the Charging Party had deliberately in- stigated the strike involved in this case to that end. Respon- dent stated its own desire to resolve the rivalry between the Charging Party and the Independent Union which underlies the prior cases as well as this one by an early Board election. I presume the Regional Director found no merit to the Charging Party's allegations that Respondent was violating the terms of the Board's outstanding order by continuing to recognize and deal with the Independent Union .9 In any event, the complaint herein contains no such allegations. At the time of the hearing the Regional Director had not closed earlier cases against Respondent and the Independent Un- ion on compliance with the Board's Order. The Board no- tice was still posted on Respondent's bulletin boards. Early in the hearing before me the General Counsel sought to introduce evidence about incidents similar to those raised by the Charging Party in the investigative stage which, if meritorious, would have established noncompli- ance with the Board's Order. He argued that such evidence was relevant to his theory that the acts of Respondent alleg- ed in the complaint were motivated by animus toward the Charging Party. After eliciting from counsel the facts about the status of the earlier case against Respondent and the investigation which preceded issuance of the comVlaint in this one as set forth above, I sustained Respondents objec- tion. I ruled it would be a denial of due process to Respon- dent to permit the General Counsel to introduce evidence of activity proscribed by Section 8(aX2) in the face of an outstanding Board decision that Respondent had violated that part of the Act, absent any allegation of 8(a)(2) activity in the complaint being tried and absent an assurance by the General Counsel that he was not relying on the evidence to 8 The "basis of the Charge" section of the charge against employer form contains eight numbered paragraphs. Paragraph I begins, "Since on or about January 29, 1968, " Paragraph 2 reads, "[Respondent] has dominated, sponsored, assisted-financially and otherwise-the Glens Falls Independ- ent Union, contrary to the National Labor Relations Board's Decision and Order (Case No 3-CA-2916 and Case No. 3-CB-961), thereby interfering with the employees' formation of a Union of their own choosing and at all times since has continued to support such Independent Union and coerced its employees into refraining from exercising their rights guaranteed under Section 7 of the Act." 9 A letter in evidence dated June 7, 1968, from the Regional Director to counsel for Respondent reads, in part , " ... our investigation does indicate clearly, as we advised you, that the Order was repeatedly violated up to March 15." There is no explanation in the record of the apparent discrepancy between the letter and the complaint's failure to allege violations of Section 8(aX2) H. & F. BINCH CO. establish noncompliance with the outstanding order. I stat- ed on the record: It was developed in the first day of this hearing that this is the second stage in a continuing dispute between the Labor Board and the Respondent, round one of which has still to be ended and which is in [a] state of abey- ance [in] the Regional Office in Buffalo a year or more after the Respondent undertook to comply with the Board Order and there's apparently a very real live issue as to whether there has in fact been compliance with the pnor Board Order. The posture of this case, as I understand it, is that this is not an effort to litigate in any sense of the word that question of compliance with a prior Board Order. I think that to permit the General Counsel in this action under some other theory, aid you have a perfectly good theory, I agree with you, that there can be significance in this fact on the issue before me, but at the same time to permit you to pursue this policy with respect ... to the total situation [and) with respect to this Respondent raises in my opinion serious questions of due process being accorded to the Respon- dent; and subsequently, since you were unwilling to take a position on whether in fact these facts relate to the question of compliance or non-compliance with the prior Board Order, I'm sustaining the objection. Be- cause as I said the first day, the question of compliance is not before me. Now, if we can have it clearly understood by your position that you do not take the position that this would amount to non-compliance with the pnor Board Order and if this Respondent [could] be assured on this record that no such use will be made of this record, then I would permit you to develop these facts for the purposes of litigation before me. But so long as you are unwilling to give them that due process safeguard, I'll not permit this evidence to come in in this [state] of the total record. b. The strike begins Respondent's raschel (i.e., knitting) department is located in the greige mill. It is a three-shift operation. The third shift works the early morning hours on a .regular basis. Two other complete groups of employees swing weekly between the first, or daytime hours, shift and the second, or evening hours, shift. Between 5 and 6 p.m. on the evening of Friday, March 15, a new schedule was posted in the department which informed employees for the first time that they would work from 2 until 10 p.m. on Saturday instead of from noon until 6 p.m. and that they would work on Sunday instead of being off. The notice marked a shift by Respondent to a round-the-clock operation in order to increase pro- duction. Under this T-day schedule, each shift was to get 1 day off each week as the other two worked 12 hours each in order to keep production rolling. The employees dis- cussed the sudden change in their schedule among them- selves. Some of them asked Paul Wilson, chief steward for the Independent Union to ask Sheridan Cavanaugh, man- ager of the greige mill, whether overtime and, especially, Sunday work were mandatory. Cavanaugh told Wilson that if any of the employees did not want their jobs they could quit. Robert Kingsley, who did raschel-type work in a sam- ple area adjacent to the raschel department, told Cavanaugh that Sunday work would interfere with his drill commit- ments as a member of the Reserves and asked whether the 731 the shift, that he had to work Sunday, if he missed too many he would be fired. Rodney Keith, also an auxiliary man, telephoned Hartwell Rhodes, president of the Greater Glens Falls Labor Council and a participant in the Charg- ing Party's efforts to organize Respondent's employees, to tell him what was going on. Rhodes advised Keith that the employees should not walk out. Kenneth Cottrell, like Kingsley a sample man, telephoned David Beaupre, presi- dent of the Independent Union, and informed him of the situation. The upshot of the employees' concern over the new schedule and the indications they received that it was mandatory was a decision to walk out in protest. Three women, Winnie McIntosh, Louis Lupo, and Vir- ginia Ball, left prior to 8 p.m. on the pretext that they were ill. They punched out. At 8 p.m. the 15 employees named in footnote 2, above walked out in a group without punch- their timecards. They left their tools behind. They instructed an employee who did not leave to tell management that they were going to the Hideaway, a nearby cafe much frequented by Respondent's employees. Under the schedule in effect on March 15, the second shift was not due to end and the third shift to begin until 10 p.m. The 18 employees who left early represented somewhat less than half of the entire shift in the raschel department. Joseph Gatchell, another auxiliary man among those who walked out, was, like Wilson, an official of the Independent Union. Gatchell was a member of the executive committee. Some of those who left were adherents of the Charging Party. Beaupre went to the mill, left to drive by the Hideaway, and returned to the mill. Cavanaugh, Michael Misogianes, the plant manager, and James LaVaute, plant personnel manager, were summoned. Beaupre, Cottrell, and other rank-and-file employees talked to Cavanaugh, Macey, and other supervisors in the foremen's office about the situation. A former president, Cottrell was not an officer of the Inde- pendent Union at that time. Why the employees had walked out and whether they had quit were discussed. Manning the machines so as to maintain production for the balance of the shift was also discussed . Cottrell was pulled off his work in the sample department and placed on production work. Friends and relatives were hastily called in to man the ma- chines. By the time Misogianes arrived around 9:30 p.m., the production crisis caused by the walkout had been sur- mounted. Among those he found watching the knitting ma- chines and calling any irregularitties in their operations to the attention of experienced employees were his own wife, Macey's wife, and Cavanaugh's wife, as well as the wife of an assistant foreman and three friends with whom she hap- pened to be playing cards when the call for help came. Misogianes called Lowell Olson, counsel for Respondent, at his home in Atlanta. Olson asked whether the employees who had left had quit or not. When Misogianes indicated he did not know, Olson instructed him to find out. A list was prepared of those who had left before the end of the shift. It contained the 15 names listed in footnote 2, above, plus the names of McIntosh, Lupo, and Ball. Macey checked among the emoloyees still at work to find out who had left. He then pulled from the rack the timecards of those who had left without punching out. He inadvertently overlooked the timecard of Joan Shippe. Her unpunched card remained new schedule applied to him. Cavanaugh told him that it did. Francis (Red) Macey, shift foreman in the raschel de- 10 The raschel department utilizes machine operators , generally women, partment, told Raymond Lamoureux, an auxiliary man10 on and auxiliary men. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the rack. Misogianes called Olson again. Olson advised Misogianes on Respondent's rights and duties. He told Mi- sogianes that Respondent could replace strikers but that it could not discharge them. He advised Misogianes that Re- spondent should protect itself by seeking immediate re- placements for the 15 employees who had left without punching out. Misogianes instructed Macey to inform em- ployees on the third shift that the overtime and Sunday work contemplated by the new schedule were voluntary. Macey did so, calling the third-shift employees together in two separate groups for that purpose shortly after 10 p.m. Misogianes gave LaVaute the ist of those who had left and instructed him to find permanent replacements for the 15 as quickly as possible the next morning. Meanwhile, the 15 plus Louise Lupo and Virginia Ball had repaired to the Hideaway. Rodney Keith called Hart- well Rhodes again and told him what had happened since his first call. Rhodes came to the Hideaway. Paul Wilson received a call from David Beaupre. Wilson asked Beaupre to come to the Hideaway. Beaupre said there was no need for him to do so since Rhodes was already there. Robert Kingsley received a call from Kenneth Cottrell. Cottrell urged Kingsley to pet the strikers to return to the plant without success. A discussion took place among the employ- ees about what had happened and what they should do. Rhodes told them that they had made their point of protest- ing the new schedule by walking out 2 hours before the end of their shift. He advised them to return to work at the regularly scheduled hour the next day. All those present signed their names to a piece of paper." Finally, a vote was taken and a decision reached to return to work in a body at 2 p.m. the next day. The strikers then dispersed. Keith went home and wrote a lengthy protest. Around 11 p.m. yHid and one of his assistants, Jack Armstrong, stopped Mace in the Hideaway for a beer on their way home from work. Wilson and another striker returned to the Hideaway while they were there. Nothing was said about the situation which had arisen. Macey and Armstrong did not tell Wilson and colleague that Respondent planned to hire replacements the next morning. Wilson and colleague did not tell Macey and Armstrong that the strikers planned to return to work the next afternoon. c. Respondent obtains replacements LaVaute and Misogianes began hiring replacements for the 15 early Saturday, March 16. LaVaute reviewed recent applications on file and attempted to get in touch with the applicants. Su ervisors were asked to contact anyone they knew who might be interested in a job. One woman who had been hired a ew days before as an "extra girl" in the raschel department was upgraded to regular status. Two young men who worked in other departments and had asked LaVaute for transfers were transferred into raschel. By noon Respon- dent had effected 15 employee actions and had memorial- ized each on a "Pay Roll Change Notice" dated "3/16/68" and bearing a remark that the employee to whom the notice applied "Replaced" one or another of the March 15 strikers. Misogianes called Olson and informed him that Respon- dent had permanently replaced all 15. Olson advised Miso- gianes that, if they showed up for work, Respondent should 11 The nature of this paper is one of the few factual areas of this case about which there is any doubt in the record Some of the witnesses referred to it as a "protest," others as a blank paper circulated to obtain a roster of those present. The paper was not produced at the hearing It is clear that it is not the "protest" signed the next day by 15 employees about which more below I find, based on the record as a whole, that the paper was merely a roster not make the mistake of telling them they had been dis- charged. Rather, he instructed Misogianes that they should simply be told they had been replaced and to report to the personnel office on Monday morning. Misogianes relayed Olson's instructions to Macey. Details as to the manner in which the 15 replacements were acquired are as follows (in each case, the name of the striker follows the name of the person designated as his replacement on the morning of March 16): Fred Wiedl (Gary Munblo), Stanley Sunderland (Rod- ney Keith), Paul Keller (Harold Munblo), Connie Keller (Joan Shippe), Verna Myers (Kathleen King), Joan Flewell- ing (James Hill), Harriet Ordway (Beverly Coltey), Larry Hall (Robert Kingsley), and Mary Zeto (Doris Donaldson) all , began work at 2 p.m. on Saturday, March 16, after filling in applications (except for Wiedl and Mrs. Myers) and being interviewed by LaVaute that morning. The record does not reveal how Wiedl,12 a former employee of Respon- dent, and Sunderland came to be interviewed and hired. Wiedl was still employed by Respondent at the time of the hearing. Sunderland only lasted until March 26. Paul Keller was also a former employee. A few days before March 16 he and his mother-in-law, Verna Myers, applied for work. LaVaute told Keller at that time Respon- dent could not use him because of a back injury he had sustained. On the morning of March 16 LaVaute contacted Mrs. Myers. She brought her daughter Connie Keller, and son-in-law with her. Mrs. Keller was 2 months pregnant at the time. She left Respondent's employ around the first of April.13 Keller and Mrs. Myers were still working for Re- spondent at the time of the hearing. Keller's back has since put him in the hospital for a week, but not until April 1969. Foreman David Plude did his bit to help Respondent find replacements. His son steered him to Larry Hall. His wife passed word to Harriet Ordway's mother, who in turn passed it to her daughter and Joan Flewelling. Plude left the mill in his car sometime Saturday morning, picked up Hall, and the two women, and brought them back to be inter- viewed and hired. Like Mrs. Keller, Mrs. Flewelling was pregnant at the time. She left Respondent's employ in early April, having worked for less than 3 weeks. Miss Ordway was still working for Respondent at the time of the hearing. Hall was a high school student at the time. Since his school hours limited his availability, LaVaute assigned him to the 2 to 10 p.m. hours permanently rather than having him swing with the rest of the shift. l He left Respondent s em- ploy in May, returned in June after his father asked Respon- dent to forgive his absenteeism, and take him back, and left again, this time permanently, in July. Mary Zeto was called from the mill by her cousin, and employee of Respondent, on the morning of March 16 and told that jobs were available. She went there and was inter- viewed and hired. She was still working for Respondent at the time of the hearin James Mumblo (Victor Potter) and Harold Burch 12 Wiedl's application, which is in evidence, is dated February 7. On the basis of this document I presume that LaVaute contacted him on the morning of March 16 and did not have him fill out an apphcation when he came to the mill. Verna Myers' application also in evidence, is dated March 13; Paul Keller's, March 16 13 This finding is based on the aforementioned payrolls in evidence Mrs. Keller's name appears on the payroll for the week ending March 30. It is absent from the payrolls for the week ending April 6 and thereafter. 14 In this respect he was treated the same as Victor Potter, one of the March 15 strikers, and James Mumblo, Victor Potter's replacement (see below). H. & F. BINCH CO. 733 (Paul Wilson) also worked the 2 to 10 p.m. shift in the raschel department on Saturday, March 16. However, neith- er was interviewed and hired that morning since each was already a regular, full-time employee of Respondent pnor to March 15. Rather, each had, prior to March 15, requested a transfer, and LaVaute had taken their requests under consideration. On the morning of March 16 LaVaute con- tacted each, told him his request was granted, and ordered him to report for work in the raschel department that af- ternoon. James Mumblo was transferred from the finishing depart- ment. Both he and Victor Potter, the striker he was assigned to replace, were high school students and thus unable to work a morning shift. Therefore, LaVaute permitted Mum- blo, like Potter, to work regularly from 2 to 10 p.m. and not swing with the remainder of the shift. A week after his transfer another employee was transferred into the finishing department to take Mumblo's place. 15 Mumblo left Respondent's employ in June. Harold Burch worked on his old job in the shipping area on Saturday morning, then started in raschel at 2 p.m. Wayne Harrington and Daniel Morehouse were hired for jobs in the shipping area the following week.16 Burch left Respondent's employ in April. There is no evidence that either Harrington or Morehouse was hired as a replacement for an employee who participated in the strike on or after March 18. The remaining four persons designated as replacements by Respondent on the morning of Saturday, March 16, did not work that day. Respondent utilized the services of four maintenance men. 17 for that one shift to make up the differ- ence. The four were Marjorie Parker (Richard Hardin , Doris Rathbun (Raymond Lamoureux), Paul Macey P 11 ham Harper), and Randall Davis (Joseph Gatchell). Marjorie Parker was hired March 11 as an extra girl in raschel, that is, as a machine operator who could be called on to fill out a shift in the absence of a regular operator and thus avoid shutting down machines. She worked on Thurs- day, March 14, and was off Friday. On Saturday morning LaVaute tried to reach her to tell her that she was being made a regular, full-time employee. The foreman to whom LaVaute entrusted the chore was unable to do so. Conse- quently, Miss Parker first worked as a regular machine op- erator in raschel on Sunday, March 17. She left Respondent's employ in late April. Doris Rathbun was one of those whom LaVaute knew about because they had sought jobs a few days before March 16. LaVaute called her at home and offered her a job. She said she would take it but could not begin until she found a babysitter. She started on Wednesday, March 20. 15 This finding is also based on the payrolls in evidence . Mumblo's name appears under the heading "Finishing Indirect" on the March 16 payroll, along with the names of Wayne Dumas and 10 others. Mumblo is listed under "Raschel Direct Labor" on the March 23 payroll Dumas joined the strike on March 18 . On the March 23 payroll his name still appears with the other 10 under "Finishing Indirect" although the payroll indicates that he earned nothing that week. On the payroll for the week ending March 30 appear the same 10 names plus Thomas Bombard and Laurette Parot, for a total complement, once again of 12. Thomas Bombard was hired March 25 as a replacement for Dumas . Laurette Parot appears on the payroll for the preceding week (i.e., the week ending March 23) under "Jennying/Thread- drawing Direct," a category under which Respondent itemizes direct labor expenditures in the finishing department 6 Finding based on payrolls . I infer that Harrington and Morehouse were hired rather than returned from leaves of absence or some other explanation for their addition to payroll in the week ending March 23 from the fact that the payroll for that week shows no prior earnings for them 1 Kenneth Collette , William Nikas, Richard Hyatt, and Stephen Strader She was still in Respondent's employ at the time of the hearing. Paul Macey was recruited by his uncle, Foreman Red Macey. Uncle called nephew at home and told him there was a job open for him if he wanted it. Nephew said he wanted it but could not work Saturday or Sunday because of prior commitments. He came to the plant and filled out an application on Monday, March 18. Since, under the new schedule announced the preceding Friday night, Monday was the regular day off for the shift he was joining, Paul Macey actually began working for Respondent on March 19. He left Respondent's employ on April 12. Finally, Randall Davis was recruited through Foreman David Plude. Plude knew that Davis had just returned to the area from West Virginia and needed a job. Plude called Davis' mother in an effort to locate him. Mother told Plude that her son was on a trip to West Virginia to fetch his family. Plude explained the purpose of his call. Mother said Davis would accept the job. Thereafter, on Sunday, Davis called Plude. Plude explained the situation to him. Davis said he wanted the job but begged off going to work that day on the ground that he was exhausted from his long trip. Davis went to the plant on Monday and was introduced to Foreman Macey by Foreman Plude. On Tuesday, March 19, he filled out an application and started work. He left Respondent's employ around the beginning of April. All persons hired by Respondent to replace the March 15 strikers were inexperienced on raschel machines. They were trained by assigning them to work with experienced machine operators for a period of several weeks until they got the hang of the machines. This is Respondent's custom- ary practice on hiring new employees. d. The strikers return Sometime after noon and before 2 p.m. on Saturday, March 16, the March 15 strikers began to assemble at the Hideaway. Rodney Keith recopied the protest he had writ- ten the previous evening. Some of the March 15 strikers signed it at the Hideaway. The group then moved to the plant and waited for 2 p.m. to arrive at the entrance to the greige mill. They were joined there by the remainder of the March 15 strikers, all of whom, with the exception of Doris Donaldson, signed Keith's protest. Louise Lupo and Virgin- ia Ball did notjoin the group at any time on March 16. They reported for work individually, did not sign or attempt to sign the protest, clocked in, and went to work without inci- dent. Winnie McIntosh came by about 1:45 p.m. as the March 15 strikers were assembling outside the greige mill door, signed the protest, walked into the plant, clocked in at 1:57 p.m., and went to work without incident. At 2 p.m. all 15 of the March 15 strikers, Doris Donaldson includ- ed,t8 went into the mill in a group. They walked past the timeclock toward the raschel department. A short distance beyond the clock they came upon Macey and two of his assistants , Armstrong and Frank Thompson.19 Macey said, 18 1 base this finding on the record as a whole Dons Donaldson did not testify No other witness was able to testify that he saw her in the group on March 16 Her name does not appear on Keith 's protest However, there is direct evidence from competent witnesses that she participated in all the surrounding events such as the walkout and conference at the Hideaway on Friday night and the picketing which began on Monday, March 18 1 infer, therefore, that she was not absent at this crucial moment in the confrontation between Respondent and the March 15 strikers 19 My findings as to what happened at this point are based mainly on Macey's testimony Accounts of various witnesses vary only as to details There is no real conflict between Macey's version and that of the other Continued 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Where are you going?" One of the strikers said, "We are going out there to work." As he had been instructed by Misogianes , the plant man- ager, Macey said, "I'm sorry, but you have been replaced. You have to report to personnel at 8:00 a .m. Monday morn- in William Harper said, "Does that mean that we have been fired?" Macey said, "That you have been replaced." One of the strikers asked if they could go to their lockers to pick up their tools . Macey gave his permission. While the strikers were in the locker area Macey told several of them to get out. As the group was leaving, Joan Shippe pointed out that her timecard was still in the rack even though she had walked out with the others. Macey said, "Did you go out last night with the rest of these people?" Mrs. Shippe repeated that she had. Macey said, `I'm sorry. You have been replaced too. I must have missed your time card last night." He removed her card from the rack. The strikers left the mill and went to the Hideaway. e. The strike grows Once back at the Hideaway, Keith called Hartwell Rho- des and told him what had happened , Rhodes contacted Jack Rubenstein, the Charging Party's director for the State of New York, in New York City. It was decided to hold a meetingof Respondent's employees the next day sponsored by the harging Party. A lea et was prepared to that effect and circulated outside the mill on the evening of Saturday, March 16. The meeting took place as advertised at a restaurant in Glens Falls at 5 p .m. on Sunday, March 17. Some 50 to 60 of Respondent's employees , including the March 15 strik- ers, attended. Also present were Rubenstein , William His- sam, an organizer for the Charging Party, and another organizer who is unnamed in the record. Rubenstein presid- ed. He told the assembled employees what had happened. He said that the March 15 strikers had walked out to protest the new schedule and its overtime and Sunday work require- ments. He said that Respondent had refused to take them back when they sought to go to work on Saturday . He asked the March 15 strikers to stand up. He asked the other em- ployees present if they wanted to go out on strike in support of them. He asked for a show of hands . Hands were raised to indicate a desire to strike . When those who did not want to strike were asked to raise their hands, none went up. Pickets appeared at Respondent's mill at approximately 6 a.m. on Monday, March 18. They carried signs which read "Sunday A Day for Rest Not Business" and "On Strike, Unfair Labor Practices, Binch Won't Talk." Approximately 25 of Respondent's approximately 500 employees failed to report for work as scheduled. Most of those who failed to report participated in the strike, including but not limited to the 19 employees named in footnote 3, above 20 The March witnesses The only point which aroused any controversy at the hearing was whether the strikers were headed for the timeclock or had passed it and were headed for the raschel department when the confrontation took place . I think the point is insignificant . However, I conclude that the strikers were aware that their cards were not in the rack when they came into the mill and did not waste any time trying to perform a futile act as they sought to go to work 20 Sharon Blackbird is a special case. She was a machine operator on the third shift in the raschel department. On March 7 her doctor advised her not to work nights . On March 8 she told Assistant Foreman Thompson and asked for a transfer to a swing shift. He told her to report for the 2 to 10 p.m shift on Monday, March 11. Shortly after noon on March I1 LaVaute told her there was no opening on the 2 p .m. shift, report, as usual, at 10 p m. She checked with her doctor and received the same advice . That evening she told 18 strikers came from various departments as follows: Raschel-Sharon Blackbird Dyehouse-Milton Barrisford, Marjorie Bovee, Joyce Fitch, James Knickerbocker, Gordon Lomax, Barbara Pincheon, Robert Warner Finishing-Kathleen Brown, Florence Damon, Alice Green, Edith Hall, Lois Hendy, Marie Pedersen Framing-Sharon Greene, Ruby Hill, Sandra Wash- bum Greige storage-Albert Kingsley, Martin Nelson Around 7 a.m. the strikers, including March 15 strikers, March 18 strikers, and strikers not named in the complaint, went to the Labor Hall in Glens Falls. They left two or three of their number behind to maintain the picket lines while they caucused. Rubenstein, Hissam, and Rhodes were pres- ent at this meeting. A committee was named. Paul Wilson and Gordon Lomax were members of the committee . Strik- ers and friends discussed the situation and evolved a strate- gy of getting back to work as a group the next day through talks with Plant Manager Misogianes. To that end Lomax and Wilson periodically left the hall, went to the lobby of a hotel across the street, and sought to reach Misogianes by telephone. When they finally succeeded Misogianes refused to meet with the committee and told them to write him a letter. The strikers then discussed putting their arguments into a telegram. Decision was postponed until the next day. The meeting broke up around2 p.m. The strikers returned to the picket line. The pattern was repeated on Tuesday, March 19. Picket- ing continued. In midmorning most of the strikers went to the Labor Hall. There a decision was reached to send a telegram to Misogianes. It read: MICHAEL N MISOGIANES, GENERAL PLANT MGR DEAR SIR, WE ARE PART OF A COMMITTEE OF THE EMPLOYEES OF THE H A F BINCH CO OF THOSE WHO WALKED OFF THE JOB BE- CAUSE THE COMPANY REFUSED TO DISCUSS A CHANGE IN WORK- ING HOURS WITH THE EMPLOYEES OF RASCHEL DEPT . AND WHO WERE DISMISSED BECAUSE OF THEIR PROTESTING A COMPANY AC- TION MADE WITHOUT NOTICE OR ATTEMPT OF AGREEMENT. MR GORDON LOMAX AND MR. PAUL WILSON TELEPHONED SIX TIMES ON MARCH 18, 1%8 AND EACH TIME WERE TOLD YOU WERE IN CONFERENCE STARTING AT SAM AND ENDING AT 1015AM. AT 1015AM YOU RETURNED MR. LOMAX'S CALL AT THE RIALTO HOTEL LOBBY AND AT THAT TIME TOLD HIM YOU REFUSED TO MEET WITH THE COMMITTEE YOU FURTHER STATED THAT YOU WOULD ONLY RECEIVE A LETTER SETTING FORTH WHAT WE WISHED TO DISCUSS WE BELIEVE THIS MOST UNUSUAL THIS IS TO ADVISE YOU THAT ALL THE EMPLOYEES NOW ON STRIKE OFFER TO RETURN TO WORK IMMEDIATELY PROVIDED YOU AGREE TO TAKE EVERYONE BACK WITHOUT DISCRIMINATION. ALL EMPLOYEES ARE WILLING TO RE- TURN PROVIDED YOU ARE WILLING TO AGREE NOT TO DISCRIM- INATE AGAINST ANY WORKERS INCLUDING THE RASCHEL LaVaute she would not report because of her doctor 's orders. On Tuesday, March 12, she applied for unemployment compensation . On Wednesday, March 13 , she went to the plant and asked Misogianes and LaVaute for a layoff slip to support her claim. They refused to give her one on the ground that she was not laid off. She refused to quit. LaVaute told her he would call her as soon as there was an opening on a swing shift. Based on this sequence of events, I find that Sharon Blackbird had not terminated her employment prior to March 18 but was, rather, an employee in layoff status with a reasonable expectation of recall. I rely also on the facts, as developed below, that Mrs. Blackbird was treated the same as other strikers who made individ- ual applications for reinstatement on April 9, was included in the preferential hiring list which Respondent thereafter prepared, and received the same treatment as other strikers as a result of that list . Moreover, Mrs. Blackbird did specifically refuse to work for Respondent at the outset of the strike. Respondent sent her a telegram on March 18 ordering her to report for a job in the finishing department at 7 a .m. on March 19. She appeared as directed, refused to work while a strike was in progress, and rejoined the picket line. H. & F. BINCH CO. 735 WORKERS FOR THE PROTEST WALKOUT CONCERNING THE CHANGE IN WORKING HOURS AND YOUR FAILURE TO DISCUSS SAME YOUR FAILURE TO ACCEPT THIS OFFER WILL RESULT IN OUR REQUESTING THE TEXTILE WORKERS UNION OF AMERICA, AFL-CIO TO FILE CHARGES WITH THE N L R B AGAINST THE COM- PANY. PLEASE REPLY TO MR. GORDON LOMAX AT THE LANDMARK MOTEL SARATOGA ROAD SOUTH GLENS FALLS NY THE COMMITTEE STILL STANDS READY TO MEET WITH YOU AT YOUR CONVENIENCE. PAUL WILSON GORDON LOMAX Misoglanes replied as follows in a letter dated March 20: Messrs. Faul Wilson and Gordon Lomax The Company has your telegram dated March 19, 1968 in which you claim to be part of a committee purporting to represent some employees of H. & F. Binch Company. Please be advised that it would be Illegal at this time for the Company to meet with your alleged group or any other group purporting to represent employees. Additionally, such a meeting with any oup at this time would be in violation of the Order of the National Labor Relations Board and Notice posted in January, 1968. Therefore, we will not meet with your alleged committee or group or any other committee or group. Concerning your comments about the return of em- ployees now engaging in the economic strike , for your future information, any employee who desires to return to work and has not been replaced, may apply to the Personnel Department on an individual basis. M. N. Misogianes The strikers replied to Misogianes by telegram on March 21 as follows: MICHAEL MISOGIANES WE RECEIVED YOUR LETTER DATED MARCH 20TH 1968 IN AN- SWER TO OUR TELEGRAM PLEASE BE ADVISED OUR REQUEST FOR A MEETING IS MADE AS EMPLOYEES OF YOUR COMPANY WITHOUT REGARD TO ANY UNION AFFILIATION THIS PROPOSAL FOR A MEETING WAS FOR THE PURPOSE OF DISCUSSING GRIEVANCES PERTAINING TO NEW WORK SCHEDULES AND DISMISSAL OF EM- PLOYEES WE HAVE NOT MADE ANY DEMANDS UPON YOUR COMPA- NY FOR ANY ECONOMIC GAINS WE STILL REQUEST THIS MEETING FOR THE PURPOSE OF DISCUSSING WORK SCHEDULES AND DIS- CRIMINATION. WE FEEL YOU HAVE A LEGAL OBLIGATION UNDER THE LAW TO DISCUSS GRIEVANCES WITH YOUR EMPLOYEES THROUGH EMPLOYEES INVOLVED IN A GROUP ACTION GORDON L LOMAX The strike continued with daily picketing and almost dai- ly meetings of the strikers. During this early period some of those who remained away from work gave up and went back.21 Those who did so before a replacement had been hired for them were reinstated by Respondent without inci- dent. f. Respondent obtains more replacements As with the March 15 strikers, Respondent sought to replace each of the March 18 strikers except Sharon Black- bird. The following table sets forth relevant data on new employees hired to replace March 18 strikers initially:22 March 18 Initial Date Date Date Striker Replacement Hired Started Left H. Barrisford Kenneth Morrissey Mar. 18 Mar. 19 Mar. 1969 M. Bovee Marjorie Suttle Mar. 18 Mar. 18 K. Brown Doris Rozelle Mar. 22 Mar. 22 F. Damon Linda McEachron Mar. 18 Mar. 18 Apr. 26 J. Fitch Elaine Rodgers Mar. 21 Mar. 25 December A. Green Geraldine Condon Mar. 23 Mar . 25 Oct. or Nov. S. Greene Shirley Barry Mar. 18 Mar . 18 August E. Hall Patricia O'Connell Mar. 21 Mar. 22 June 27, 1969 L. Hendy Mary Lou Manning Mar. 18 Mar. 19 R. Hill Janice Williams Mar. 21 Mar . 21 June A. KingB,ley Michael Barger Mar. 21 Mar . 21 March J. Knickerbocker William Finke Mar. 20 Mar. 21 May M. Nelson Donald Kinnicutt Mar. 18 Mar . 18 March M. Pedersen Vivian Romano Mar. 18 Mar. 19 B. Pincheon Carol Terry Mar. 20 Mar. 20 R. Warner James Ellis Mar. 19 Mar. 19 S. Washburn Gayle Carpenter Mar. 20 Mar. 21 21 E.g., Dorothy Center, Agnes Dumas, Phyllis Dumas, Paul Grand, Violet LaRose, and Earl Marcellus. On the other hand, there were some strikers who did not go back, who were replaced , and yet who are not named among the March 18 strikers in the complaint. The names of Wayne Dumas, Carl King, Daniel LaCross, and William Simmons are mentioned in the record as being in this category . The record does not establish that they are the only strikers in this category The record does not reveal why they are not named as discriminatees in the complaint. 22 The "Date Hired" column reflects the date on which a payroll change notice entering the employee on the payroll was executed. The "Date Start- ed" column reflects the effective date of his entry onto the payroll and is the date he began working for Respondent . The "Date Left" column reflects the date on which the replacement left Respondent's employ Where there is no entry, the replacement was still working for Respondent at the time of the hearing. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent transferred Arthur Bacon from his dye tub job to Gordon Lomax's job on the Burlington in the dye- Ouse on March 18 . Bacon left Respondent's employ in September. William Finke, James Knickerbocker's initial replace- ment on the high pressure dyeing machine on the first shift, worked that specific job for only a short time . A few days after he began working, he swapped shifts with David Wood, so that at the time of the strikers' April 3 offer to return to work, Wood, an employee with prestrike seniority in the dyyehouse 23 rather than Finke was on Knickerbocker's job. As the above tabulation indicates, two other special situ- ations arose prior to April 3 when Albert Kingsley's and Martin Nelson's initial replacements left before the end of March . In Kingsley's case, Michael Barber went on sick leave and never returned . However, Respondent hired Jo- seph Jamison sometime during the week ending April 6.24 The record does not reveal precisely which day. Nelson's case gave rise to a situation which is alleged in the complaint as an individual discrimination against him in addition to discrimination against him as one of the March 18 strikers. On Tuesday, March 19, Nelson heard that strikers Earl Marcellus and Violet LaRose had given up and gone back to work . He wondered how come . He called the mill and asked LaVaute if he could come back to work on Wednesday. LaVaute told him he had been replaced and pointed out that Marcellus and Mrs. LaRose had called about coming back to work Monday night , before they had been replaced. That evening Nelson called his immediate supervisor, Marie Teague, to find out how come Marcellus and LaRose could return to work while he could not. Mrs. Teague referred him to Don Branchaud , Nelson's supervi- sor at the next level. Nelson called Branchaud at home and posed the same question . Branchaud told him the difference was that he had been replaced . He pointed out that he had seen Nelson on the picket line and, therefore, knew that he was not off sick, thus forcing Branchaud to seek an imme- diate replacement for Nelson. Branchaud had not sought immediate replacements for Marcellus and Mrs. LaRose on Monday because he was uncertain whether they had joined the strike. When Kinnicutt left around the end of March, Bran- chaud told LaVaute that he needed a man right away and asked him to try to get Nelson back. LaVaute tried to reach Nelson by telephone several times . When he was unsuccess- ful, he hired Clifford Reed, who had applied for a job on April 4, on Friday, April 5. Reed began working on Mon- day, April 8 . Reed was the last new employee hired in greige 23 Respondent follows a departmental seniority policy. 24 Finding based on payrolls 25 Respondent seeks a finding that Reed was the last new employee hired until after Respondent offered jobs to many of the strikers in May, as detailed below The payroll for the week ending April 13 indicates 10 new hires, Reed among them. But for the details about the hiring of Reed which are in the record, I would have found against Respondent on this particular point However, since the other nine employees who first earned money from Respondent in the week ending April 13 may, like Reed, have been hired the week before to begin working that week and since the record affords no basis for finding whether the others were hired before , simultaneously with, or after Reed, I specifically do not make the finding which Respondent seeks In my view of this case, although not in Respondent's, the point is immaterial The payrolls do otherwise bear out Respondent's point that no new employ- ees were hired until after jobs were offered to many of the strikers in May once counsel had advised Respondent to give preferential treatment to strik- ers who sought employment after April 3 I so find below I credit the testimony of LaVaute that the cropping up of a new name in the payroll could be the return of an employee from sick leave or analogous status as explaining the two or three instances in the payrolls between the week ending April 20 and the week ending June I storage until after Respondent reinstated Nelson to his old job pursuant to the Laidlaw decision in July, as detailed elow.25 g. The strike ends On April 3 the strikers sent another telegram to Misogi- anes. It read: MICHAEL N MISOGIANES , GENERAL PLANT MGR DEAR MR MISOGIANES THE EMPLOYEES OF H & F BINCH WHO ARE ON STRIKE, OFFER RETURN TO WORK UNCONDITIONALLY. PLEASE NOTIFY THE SIGNERS IN CARE OF BILL . HISSAM, LAND- MARK MOTOR LODGE ROUTE 9 S GLENS FALLS NY 12801 AS TO WHEN YOU DESIRE THE EMPLOYEES TO RETURN BILL HISSAM GORDON LOMAX JOE GATCHELL•26 Misogianes was away on a business trip on April 3. He did not see the telegram until Thursday, April 4. On that day he replied by a letter which read: Messrs. Joseph Gatchell, and Gordon Lomax Landmark Motor Lodge Dear Sirs: Acknowledgment is made of your telegram dated April 3, 1968. Although we are unable to concede that you repre- sent or speak for any group of employees, please be advised that the company is unable at this time to deal directly with or recognize any group purporting to rep- resent employees. However, for your additional information, any strik- er who desires to make an unconditional offer to return to work may contact the Personnel Office, individually, and we would suggest such strikers do this in person. Michael N. Misogianes The Charging Party prepared a letter which read: Dear Mr. l^iisogianes: As an employee of H & F Binch Company on strike, I offer to return to work unconditionally. Please advise when I may return to work. On either April 5 or 6 Sharon Blackbird, Kathleen Brown, Beverly Coltey, Florence Damon, Joseph Gatchell, Alice Green, Edith Hall, Richard Harding, William Harper, James Hill, Ruby Hill, Kathleen King, Albert Kingsley, Robert Kingsley, James Knickerbocker, Gordon Lomax, Martin Nelson, Marie Pedersen, Barbara Pincheon, Joan Shippe, and Robert Warner dated and signed individual copies of this letter.27 On the afternoon of Saturday, April 6, the Charging Party mailed these letters to Respondent in individual envelopes. Respondent received them on Mon- day, April 8. On April 9 all those strikers who had signed letters on April 5 or 6 plus Rodney Keith went to the mill in a group. They were interviewed individually by LaVaute. They said that they were applying for work as directed but under protest. LaVaute asked each one about his desires as to job and shift. LaVaute told each there were no openings at that time. 26 Gatchell had been named to the striking employees' committee in the interim since March 19. Hissam is the organizer for the Charging Party referred to above and not one of Respondent's employees. 27 Marjorie Bovee signed a copy of this letter on April 18; Lois Heady, on April 20 They were mailed by Hissam. H. & F. BINCH CO 737 Misogianes' letter of April 4 and LaVaute's conduct on April 9 were based on advice of Respondent 's counsel. Counsel advised Respondent not to hire any new employees until after all strikers who had individually applied for rein- statement were offered new jobs. Consequently, shortly af- ter receipt of Lois Hendy's letter of April 20, Respondent prepared a preferential hiring list, as follows: Marjorie Bovee Ruby Hill Kathleen Brown Rodney Keith Beverly Coltey Kathleen King Sharon Cook 28 Albert Kingsley Florence Damon Robert Kingsley Joseph Gatchell James Knickerbocker Alice Green Gordon Lomax Edith M. Hall Martin Nelson Richard Harding Mane Pedersen William Harper Barbara Pincheon Lois Hendy Robert Warner James Hill Joan Wolfe 29 Picketing continued after April 3, finally petering out in mid-May. h. Subsequent events During the first 6 months of 1968 Respondent was en- gaged in a multimillion dollar program designed to phase out its elastic knitting operations in Glens Falls. To that end it sold and moved out some old machines, bought and grad- ually moved in new nylon lace machines, and moved other old, retained machines to new locations. The result was a temporary excess of labor over Respondent's immediate, day-to-day needs. Consequently, a lag of several weeks en- sued between counsel's instructions to give preferential treatment to strikers and LaVaute's carrying out of those instructions. He first offered a job to a striker on April 29 when he contacted Robert Kingsley. Most of the contacts were made in middle and late May when Respondent was seeking to man a third shift in the finishing department. Two strikers were contacted as late as May 27. All offers were for jobs as new employees, at the minimum rate,with fringe benefits to be acquired as dictated by length of new service according to whatever rule prevailed for the artic- ular benefit. Several strikers were contacted severartimes before they either accepted a new job or LaVaute gave up on them. In cases where the striker indicated initially that he was no longer interested in working for Respondent, usually because he had a better job elsewhere, LaVaute gave up after the first contact. No new employees were hired by Respondent between receipt of counsels instructions and May 23. After LaVaute had carried out counsel's instruc- tions by offering new jobs to strikers one or more times, Respondent hired many new employees. These hires includ- ed new employees for each department from which the March 15 and the March 18 strikers had come and for each of the types of jobs held by the March 15 and March 18 strikers prior to the strike in numbers sufficient to establish that a vacancy developed on his old job for each of the March 15 and March 18 strikers prior to July 1.30 Details as to those persons on the preferential list who accepted new Jobs when contacted by LaVaute in this period are as fol- lows:31 Date Date Striker Started Department Job Left Sharon Blackbird 31/ May 26 Finishing Jennyer September Marjorie Bovee May 26 Finishing Threaddrawer Kathleen Brown May 26 Finishing Jennyer July Beverly Coltey May 26 Finishing Jennyer Florence Damon May 26 Finishing Jennyer Edith Hall May 26 Finishing Jennyer Richard Harding May 8 Framing Dry end operator Ruby Hill May 26 Finishing Jennyer or July threaddrawer (record unclear) Albert Kingsley May 20 Framing Dry end July operator Robert Kingsley May 1 Warehouse Material handler James Knickerbocker May 6 Framing (Record does not reveal) Martin Nelson May 26 Finishing Material handler 31 Mrs Blackbird appears on the payrolls under her maiden name, Sharon 28 Mrs. Blackbird Cook A relative, also named Sharon Blackbird, was also a machine operator 29 Mrs. Shippe in raschel before the strike , did not go out on strike , and appears throughout 30 Finding based on payrolls the payrolls for this period under that name 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Details as to those on the preferential list who declined new jobs when contacted by LaVaute in this period are as follows: Striker Date of Last Offer Job (s) Offered Reason for Declining Joseph Gatchell May 18 Warping & warehouse Had a job Alice Green May 23 Warping & finishing Third shift unacceptable William Harper May 23 Warehouse Had a job Lois Hendy 32 May 27 Finishing Third shift unacceptable James Hill May 21 Framing Had a job Rodney Keith May 17 Framing & warehouse Had a job Kathleen King 33 May 23 Finishing Preferred to collect unemployment Gordon Lomas May 24 Maintenance helper Had a job Marie Pedersen 34/ May 23 Warping Swing shift unacceptable Barbara Pincheon 35 May 25 Finishing Second & third shifts unacceptable Joan Shippe May 27 Finishing Third shift unacceptable Robert Warner May 17 Warping Had a job LaVaute tried to contact only 1 of the remaining 10 March 15 and March 18 strikers during this period. He tried to reach Paul Wilson by telephone and, when that failed, telegram around May 25. Wilson did not get the telegram until mid-June, when he called LaVaute. LaVaute offered him a third-shift job as a material handler in the finishing department. Wilson declined. He said that he had another job and was only interested in returning to his old job as an auxiliary man in the raschel department. The remaining nine March 15 and March 18 strikers, namely, Milton Barrisford, Doris Donaldson, Joyce Fitch, Sharon Greene, Raymond Lamoureux, Gary Mumblo, Ha- rold Mumblo, Victor Potter, and Sandra Washburn, were never contacted by LaVaute and never offered a job by Respondent at any time after April 3. The Board issued its Laidlaw decision, supra, on June 13 and made it public on June 19. Pursuant thereto, counsel 32 Mrs Hendy applied for a job in December and went to work on Decem- ber 4 as a third-shift machine operator in the raschel department . She quit in late February 1969 33 Mrs. King applied for a job a week or so later and went to work on June 11 sewing webs in the framing department . She quit on June 14. 34 Mrs. Pedersen continued to call on LaVaute periodically after May 23 seeking a day-shift job She finally went to work on January 20, 1969, as a threaddrawer in the finishing department . She was still working for Respon- dent at the time of the hearing 35 Mrs Pincheon subsequently informed LaVaute that she could work nights She went to work as a machine operator in the raschel department in October and was still working for Respondent at the time of the hearing advised Respondent to reinstate to his old job any person then employed whose initial replacement, that is, the person who had been designated as his individual replacement when the strikers were being replaced, had since left Respondent's employ. Respondent reinstated Florence Da- mon, Richard Hardmg, Robert Kingsley, and Martin Nel- son on July 16. It offered reinstatement to Ruby Hill at the same time. She declined since she was planning to quit in a few days to accept another job. David Wood, the employ- ee considered by Respondent to be James Knickerbocker's replacement under its counsel's interpretation of the Laid- law decision, left Respondent's employ in March 1969. Knickerbocker was reinstated to his prestrike job on March 27, 1969. Patricia O'Connell, Edith Hall's initial, individual replacement, was scheduled to leave Respondent's employ on June 27, 1969, the day after the last session of the hearing herein. Counsel for Respondent stated to Mrs. Hall that she would be reinstated to her prestrike job as soon as Mrs. O'Connell left. I find that she was. During the period from May 1968 to May 1969, that is, from the time when Respondent began hiring new employ- ees to the opening of the hearing, jobs formerly, held by the strikers opened up from time to time on the shifts on which the strikers had formerly worked. On occasions strikers who had returned to work as well as strikers who had not asked for and were denied these openings. They were filled by transfers of employees with greater departmental seniority than the person who raised the question. In each of these cases the seniority date used by Respondent for the striker who had been rehired and was inquiring was on or after the date of his rehire, not a date based on his prestrike employ- ment. Each striker who inquired was given this explanation H. & F. BINCH CO. by Respondent for not being placed in the job which ap- peared to the inquirer to be his old job. i. Employment o f March 15 and March 18 strikers since the beginning of the strike Five of the March 15 and March 18 strikers returned to work for Respondent after the strike without obtaining em- ployment elsewhere in the interim. They are Beverly Coltey, 739 Florence Damon, Edith Hall, Robert Kingsley, and James Knickerbocker. As to three others who did not testify and as to whom the testimony of those who did testify is minimal at best, the record does not permit an inference as to wheth- er they obtained other employment between the beginning of the strike on March 15 and the time of the heanng. They are Dons Donaldson, Alice Green, and Sharon Greene. All of the remaining 26 March 15 and March 18 strikers took regular, full-time jobs elsewhere, some before and some after April 3. Details as to those who found work before April 3 are as follows: Striker Date New Employer Nature of New Job Martin Barrisford March Harder Silo Factory work Harold Mumblo March Nibco Factory work Sandra Washburn April 1 Gruber's Sewing coaching Paul Wilson March His father operator Gas station attendant Details as to those who found other work after April 3 are as follows:36 Striker Date New Employer Nature of New Job Sharon Blackbird September Montgomery Ward Clerk Kathleen Brown August Decora Factory work Joyce Fitch June Warren Industries Factory work Joseph Gatchell April 24 Decors Factory work Richard Harding In April Storytown Groundskeeper William Harper after the 9th April 28 Patrician Paper Co. Factory work Lois Hendy November Jackson Factory work 36 M t f i James Hill May anu ac ur ng Chase Bag Co. Factory work Ruby Hill July Decora Factory work Rodney Keith April 22 Scott Paper Co. Factory work Kathleen King July Scott Paper Co. Factory work Albert Kingsley Summer George Adams Carpenter ' s helper Raymong Lamoureux April 16 Scott Paper Co. Factory work Gary Mumblo April 8 Scott Paper Co. Factory work Martin Nelson April 16 Martin Lumber Co. Lumber sorter Marie Pedersen November Warren Industries Factory work Barbara Pincheon July Glen Falls Paper Factory work B C Victor Potter July ox o. Nibco Factory work Joan Shippe July Frantcelli Motel Chambermaid Robert Warner April 22 Scott Paper Co. Factory work 36 Mrs. Hendy quit after 2 days She could not stand the work of catching and stacking blocks of wood as they came from a saw 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of the 24 persons tabulated above, some were still work- ing for the employer indicated at the time of the heanng. Others like Paul Wilson, for example, had held one or more jobs following the one listed, including some who , like Mar- tin Nelson, for example, worked for Respondent again after leaving the employer listed, as already found in this Deci- sion. till others like Ruby Hill, for example , went to work for the employer listed above after quitting their new jobs with Respondent, as already found in this Decision. The record does not reveal whether the remaining two March 18 strikers got their new, regular, full-time jobs be- fore or after April 3 . Marjorie Bovee testified only that she went to work for R & J Lingerie in Glens Falls as a sewing machine operator for 2 weeks prior to her return to Respondent's employ on May 26. Gordon Lomax did not testify. I base my finding that he obtained another job on the credited testimony of LaVaute that he spoke to Lomax on May 23 and 24 about coming back to work as a mainte- nance helper in the warehouse. LaVaute quoted Lomax as F sayying only that "He was working ... he had a much better ob .. he had another job making more money than when e left Binch." 2. Analysis and conclusions a. Positions of the parties The General Counsel tried this case on the theory that Respondent refused to reinstate the March 15 strikers when they walked into the mill on March 16 because it was moti- vated by animus against the Charging Party . The long and complicated complaint alleges that, from March 18 on, the strike was prolonged by Respondent's unfair labor practice in refusing to take them back because they went on strike and because they engaged in activities on behalf of the Charging Party . The whole thrust of the evidence which the General Counsel sought to adduce , successfully and unsuc- cessfully, was that Respondent reacted to the strike as it did because of the situation that prevailed with respect to the pending representation case and the outstanding 8(a)(1) and (2) Board Order . In the General Counsel's view, Respon- dent thought that the Charging Party caused the March 15 walkout in order to create more Board charges so that an election would remain blocked beyond the end of March. If this or some other case had not arisen , the representation case would have been ripe for an election soon after the posting period in the prior complaint expired around March 30. General Counsel stressed throughout the hearing that various subsidiary "discriminations' against the strikers such as refusing to transfer them to their old jobs once they had returned to work were related in some way to their adherence to the Charging Party. The main support of the General Counsel's theory lies in the 8(a)(2) type evidence which I barred on due process grounds. There is enough evidence in the record, however, to give such a theory color. The background of the repre- sentation and prior complaint cases is admitted. As a matter of fact, that background is the main ingredient of Respondent's position also. Letters in evidence show that counsel for Respondent did allude to the Charging Party's representation case tactics in correspondence with the Board's Regional Office over compliance with the outstand- ing order and investigation of these charges . The point of the General Counsels version of the incident involving Martin Nelson's calls to Respondent on March 19 is that Nelson was denied reinstatement at that time because he was seen on the picket line. The point of the General Counsel's presentation in connection with Sharon Blackbird's special case is that she handbilled the plant for the Charging Party between the time an assistant foreman told her she could transfer to a day shift and the time the personnel manager told her there was no vacancy for her. It is admitted that David Beau re came to the plant on the evening of March 15 and talked to management officials. It is not denied, as testified by Beaupre, that "They wanted to know why Paul [Wilson, the Independent Union's chief steward] was with the TWUA or how come he was with the TWUA." It was not denied that Joseph Gatchell walked off his job in a huff one day in February , then returned to work after Paul Wilson and Al Martindale , another of the Inde- pendent Union's stewards, smoothed things over . Nor is it denied that the ladies in the finishing department punched out and went home at noon one day because there was no heat in the mill, then returned next day without comment from Respondent, an incident tendered by the General Counsel as evidence of disparate treatment. For the General Counsel, the principles laid down by the Board in Laidlaw are only a secondary position to be fallen back on if his primary theory does not prevail. From Respondent's point of view, this is a Laidlaw case pure and simple. It asserts that a decision was reached by the Regional Director that the strike was economic in its inception and remained economic until its end and that the decision to issue complaint was based solely on the fact that issuance of the Laidlaw decision gave the General Counsel a new theory which might, in some way, cover the events which took place prior thereto. It relies for this position on the lapse of more than a year between filing of charge and issuance of complaint, the investigation which the Regional Office conducted and failure of that investigation to result in any direct allegation that Respondent has violated the Board's Order, and the fact that the Laidlaw decision sub- stantially altered the rights of economic strikers who remain employees of a struck employer after the sigmficant events relied on by the General Counsel had taken place. With that as its premise, Respondent bases its main position on a cogent legal argument that Laidlaw should not be applied because (1) the Board misconstrued the Fleetwood case 37 in issuing the Laidlaw decision, (2) Fleetwood and Laidlaw are distinguishable since Respondent gave preferential treat- ment to all strikers beyond that required by the law as it existed prior to Laidlaw, (3) the Board violated the Adminis- trative Procedure Act by failing to give notice of intent to change the law by publication in the Federal Register, fail- ure to give notice of hearing, failure to conduct hearing, failure to provide opportunity to be heard, and failure to provide 30 days' notice of change in the law, and (4) appli- cation of Laidlaw in this case would be an arbitrary and capricious act by the Board and would constitute an abuse of discretion under the Administrative Procedure Act. I disagree with both views. As to the General Counsel's that Respondent was motivated by antiunion ammus, I find that Respondent acted throughout not for any discriminato- ry motive but solely because of its reliance on its under- standing of the state of the law prior to and after issuance of the Laidlaw decision. In reaching this finding I rely on all the evidence in the record that Respondent's concern on the night of March 15 and thereafter was with its production and that it tried to accord the strikers what it understood to be their rights at all stages. While a spirit of loving forgive- ness and a Prodigal Son reception for the March 15 strikers when they walked into the null on the afternoon of March 16 would undoubtedly have precluded the long and bitter litigation of which this Decision is probably not the last step, I know of no rule of law that requires such an attitude 37 N L R B v Fleetwood Trailer Co , 389 U S 375. H. & F BINCH CO. on the part of an employer in the situation which Respon- dent faced on March 15 and 16 . I recognize also that Re- spondent acquired some obligations toward at least some of the replacements before the strikers showed up, so that criti- cism of Respondent's decision at the crucial moment may not be well taken . Certainly none is intended by me. In any event, Respondent was privileged to stand on its legal nghts. Hot Shoppes, Inc., 146 NLRB 802. In my opinion , the evi- dence that this is what Respondent sought to do, coupled with the evidence of its concern for production , is over- whelming when weighed against the evidence which sup- ports the General Counsel's theory. As to Respondent's view that this case turns on an appli- cation of the Laidlaw principles, I find that at no time prior to issuance of complaint did the Regional Director decide that the strike was economic throughout. I rely for this finding on the fact that there is no reference to any such decision in the evidence , principally letters, pertaining to the investigation which is in the record nor is there anything contained therein from which such an inference may be fairly drawn. I know of no rule of law which requires a Regional Director to conclude his investigation and consid- eration of a case and dispose of the charge in one way or another within any specified length of time . What is alleged in a complaint is within the discretion of the General Coun- sel and need not agree in all particulars with the allegations of the charge. Therefore, there is no significance in the fact that, while the Charging Party thought Respondent's ac- tions involved in this case violated Section 8(a)(2) of the Act, the Regional Director disagreed . I trust I have, by my ruling on admissibility of certain evidence , adequately pro- tected the rights of Respondent in the event there is some future charge that it has violated the Board's Order to with- draw recognition from the Independent Union and some improper use is attempted to be made of the proceedings before me. Be that as it may, I find that there is nothing in the manner in which this case was handled in the investiga- tive stage which precludes deciding it on the basis of the law with respect to the rights of strikers as it existed prior to the Laidlaw decision and requires that it be considered only in light of the principles laid down in that case . In my opinion, the answer to this case lies in principles which remain un- changed, Laidlaw notwithstanding. b. The offer to return issue The March 15 strikers walked out to protest the new schedule. When they did so an economic strike began. The March 18 strikers and others refused to report for work in support of the March 15 strikers and to protest Respondent's failure to take the March 15 strikers back when they sought to return to work on March 16. Whether the strike became an unfair labor practice strike at that point or remained an economic strike until its end depends on whether Respondent comnutted an unfair labor practice when it refused to let the March 15 strikers return on March 16. That question, in turn, hinges on two separate issues: (1) Did the March 15 strikers make an unconditional offer to return to work on March 16? (2) If they did, had they all been permanently replaced by that time? The first offer to return to work which is preserved in the record in haec verbae is a conditional one. The March 19 telegram reads unequivocally, "This is to advise you that all the employees now on strike offer to return to work imme- diately provided you agree to take everyone back without discrimination." An offer couched in all or nothing terms imposes no obligation on an employer. M. R. & R. Trucking Company, 178 NLRB No. 35; Beaver Bros. Baking Co., Inc., 741 d/b/a American Beauty Baking Co., 171 NLRB No. 98. But what offer were the March 15 strikers making when they marched into the mill in a body? Were they making an all or nothing offer? Or were they offering to go back individ- ually depending on whether or not they had been perma- nently replaced as of that moment? Or put another way, if Respondent had admitted some and barred others, would all 15 have turned on their heels and walked out again? The most significant fact in the record on this point is the fact that the strikers never got a chance to open their mouths when they confronted Red Macey and his two assistants near the timeclock on the afternoon of March 16. Macey treated them as a group. As a group they bowed to his pronouncement that they had all been replaced . As a group they gathered up their tools and left the mill. Therefore, there is no direct evidence of what they would have done if Respondent had let some go to work and barred others. The absence of any direct evidence does not, of course, bar a finding on this critical point . In fact, much time and effort was spent at the hearing in an effort to uncover evi- dence of the precise agreement the March 15 strikers came to at the Hideaway on the evening of March 15 as to what they would do next day in the hope that it might throw some light on the subject. Questioning of various witnesses about the nature of the paper they signed that night-whether it was a protest or merely a roster-alluded to in footnote 11, above, took place in this context. They were also asked for details about what the strikers said to each other on this subject with barren results . At one point near the end of the first phase of the hearing, Joan Shippe was asked by the General Counsel on redirect examination, "Would you have gone to work if they let you punch your card?" She responded, "If the rest of them had gone back along with me, yes." On recross, counsel for Respondent asked , "Mrs. Shippe, if five of the fifteen had been replaced , then you all wouldn't have taken your jobs?" The General Counsel objected on the ground that one woman's subjective state of mind was inadmissible to prove the nature of the offer the strikers intended to make when they walked into the plant. I over- ruled the objection on the ground that the question did not relate to Mrs . Shippe's state of mind but to what the strikers had agreed to do and that the General Counsel had opened up the area by his question on redirect . At the request of the General Counsel I postponed Mrs. Shippe's answer in order to give him time to take a special appeal to the Board. During the hiatus in the hearing the Board sustained the ruling. Mrs. Shippe was recalled to the stand when the hear- ing was resumed on June 17, 1969. However, counsel for Respondent withdrew the pending question . The net result of all this fine legal maneuvering was that the one question which, if followed up, showed any promise of throwing any direct light on whether the March I5 strikers agreed to take an all or nothing stance on March 16 never did get an- swered. All that the record does reveal is that the March 15 strik- ers walked into the mill on the afternoon of March 15 in a body, were told as a body that they had all been replaced, and left again in a body. Thereafter, on March 19 when the Charging Party and its professionals in the field of labor relations were taking an active role in plotting the strategy of the strike, a conditional offer was forthcoming. With the record in that state, I cannot find that, if Respondent had accepted those March 15 strikers who had not legally been permanently replaced by the time the walkin occurred, all 15 would have walked out again . I find, therefore, that when the March 15 strikers walked in on March 16 they made an unconditional offer to return to work . John H. Barr Mar- keting Company, 96 NLRB 875. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. The replacement issue Respondent acted as it did on the afternoon of March 16 because it thought in good faith that it had permanently replaced all 15 by noon of that day. The issue , however, is not whether it acted in good faith but whether , at law, it had hired or otherwise acquired a permanent replacement for each. Hot Shoppes, Inc., supra As to the nine 38 for whom it hired new employees on the morning of March 16 who, thereafter, began their actual employment with the 2 p.m. shift that afternoon , it clearly had.39 As to the other six,40 I think not. The most obvious case is that of Joseph Gatchell. His replacement was Randall Davis . Yet no official had even so much as spoken to Davis before Gatchell tried to return to work. Foreman David Plude had contacted his mother. Mother had "accepted" the job on behalf of her son. But there is no evidence in the record that Mother had any authority to bind her son as his agent in this regard . Simply to state the proposition is to demonstrate its absurdity. All that happened was that Mother sought to help her son who she knew was looking for a job . By telling Mother to have son contact him when son returned to Glens Falls , Plude did not bind Respondent to hire Davis any more than Davis was bound to go to work if he disagreed with his mother's decision. Since there was no commitment on either side, there was no hiring of Davis by Respondent before Davis himself applied for a job the following week and , therefore, no permanent replacement for Gatchell at the crucial mo- ment March 16. Ace Drop Cloth Co., Inc., 178 NLRB No. 107; cf. C. H. Guenther & Son, Inc., d/b/a Pioneer Flour Mills, 174 NLRB No. 174, and Anderson, Clayton & Co. Foods Division, 120 NLRB 1208. The same rationale ap p lies to William Harper, Richard Harding, and Raymond Lamoureux . In Lamoureux's case, Doris Rathbun's acceptance of the job offered by LaVaute on the morning of March 16 was conditioned on finding a babysitter. If she had never found a babysitter, she would have had no commitment to Respondent. In fact, it took her 4 days to find one . In Harper's case, Paul Macey's accept- ance of the job offered by his uncle was conditioned on being he was most needed by Respondent. In Harding's case, extra girl Marjorie Parker had not even received the message that she was being put on regular status when Harding tried to return to work . In each case, if Respondent had taken the striker back and notified the replacement promptly before the replacement had done anything as a result of Respondent's offer of permanent employment, the replacement would hardly have had grounds for indigna- tion against Respondent much less a cause of action. As with Davis, there was no real commitment on either side 38 Beverly Coltey, Dons Donaldson, James Hill, Rodney Keith, Kathleen Kin , Robert Kingsley, Gary Mumblo, Harold Mumblo, and Joan Shippe 399There is no significance in the fact that Joan Flewelling, an inexpe- rienced woman, was hired as the replacement for James Hill, an auxiliary man, a job to which men usually progress after a stint as a machine operator, nor in the fact that Larry Hall, an inexperienced high school boy, was hired as the replacement for Robert Kingsley, sample man, a job requiring some- what greater skill and experience than routine raschel production work. As to the man-woman distinction, there is no showing in the record that sex is a valid prerequisite for holding down the job of an "auxiliary man." As to Mrs Flewellmg's and Hall's lack of skill, ability immediately to do the job for which hired is not a prerequisite for being found a permanent replace- ment for a striker The controlling factor is the employer's intent at the time of hiring. I find that Respondent intended all 15 of the persons it dealt with on the morning of March 16 to be permanent replacements for the March 15 strikers Hot Shoppes, Inc., supra. 40 Joseph Gatchell, Richard Harding, William Harper, Raymond Lamour- eux, Victor Potter, and Paul Wilson. sufficiently important to outweigh the right of a striker un- der the Act to be reinstated when he makes an uncondition- al offer to return to work before being replaced. The cases of Victor Potter and Paul Wilson stand on a somewhat different footing . Each was ostensibly replaced by the transfer of a regular, full-time employee from another department . Respondent found it necessary within a short time to replace James Mumblo in the finishing department and Harold Burch in the shipping area. Therefore, even though Respondent undoubtedly had a right to transfer employees to keep its machines running (Colonial Shirt Cor- poration, 96 NLRB 711), each transfer created a vacancy elsewhere in the plant . Even if Respondent had adamantly insisted on its right to let the transfers of Mumblo and Burch stand when Potter and Wilson showed up, there is no reason why two of the strikers could not have been reinstat- ed to those vacancies . Therefore, I find that transfer of Mumblo and Burch to cover their jobs on Saturday, March 16, did not constitute permanent replacement of Potter and Wilson. d. Conclusion I find that Respondent violated Section 8(a)(3) and (1) of the Act when it lumped Joseph Gatchell, Richard Harding, William Harper, Raymond Lamoureux, Victor Potter, and Paul Wilson together with the nine strikers it had perma- nently replaced and refused to take them back on the af- ternoon of March 16 41 Respondent argues that the strike continued to be caused only by the new schedule on and after March 18, citing the wording of the picket siggns in support. However, every witness who attended the 1Glarch FT meeting testified that the vote which was taken was on whether those present wanted to strike in an effort to help the March 15 strikers, Gatchell, et al. included, get theirjobs back. As with the question of what would have happened March 16 if Respondent had acted within its clear legal rights by barring nine replaced strikers while taking six back, this record provides no basis for speculation on what would have happened March 17 and thereafter in that event. I find, therefore, that, on and after March 18, the strike was prolonged by Respondent's unfair labor practice. The April 3 telegram was an unequivocal unconditional offer to return to work on behalf of all strikers by the strik- ers' committee. 42 Since the strike was an unfair labor prac- tice strike at that time, I find that Respondent violated Section 8(a)(3) and (1) when it failed to reinstate all strikers not permanently replaced by March 18 following receipt of the April 3 telegram notwithstanding the permanent re- placements it had hired. Having found a violation on the basis of an unfair labor practice strike, I do not reach the Laidlaw issues raised by Respondent. 411 also find that Respondent did not violate the Act when it failed to hire Martin Nelson instead of Clifford Reed when Donald Kinnicutt quit This allegation in the complaint is based on the General Counsel's theory that Nelson made an individual unconditional offer to return to work on March 19 when he talked to James LaVaute, Mane Teague, and Don Branchaud on the telephone Nelson testified that he called LaVaute when he teamed Earl Marcellus and Violate LaRose had been permitted to return . His testi- mony as to each of the three conversations was that he asked if he would be permitted to return in the same manner , not that he stated his desire to do so. I infer from this testimony that his purpose in calling was not to make an unconditional offer to return to work but to find out what was going on. 42 Marjorie Bovee was not in the group which visited the mill on April 9 to apply for reinstatement . She did not send an individual letter to Respon- dent requesting reinstatement until April 18, after she learned what others had done from a Board agent engaged in the investigation of this case. She was not present when the sinkers decided to send the April 3 telegram H. & F. BINCH CO. 743 B. The Events of 1969 43 1. The Francis Sullivan incident On April 15 Foreman Francis Macey told Plant Manager Misogianes that Frances Sullivan, an auxiliary man in the raschel department , had passed out a union authorization card during working time . Misogianes thought Sullivan had passed out a white card for the Independent Union. He went to speak to Sullivan about a possible violation of Respondent's rule against solicitation during worktime. When Misogianes walked up to Sullivan he was surprised to see one of the Charging Party's blue cards sticking out of Sullivan's pocket. He asked Sullivan why he had switched his allegiance . A conversation followed in which Sullivan told Misogianes his gripes and Misogianes tried to point out to Sullivan why Respondent had acted as it had. In the course of the conversation Misogianes asked Sullivan if he was aware of Respondent 's rule and cautioned him not to break it . After Misogianes left, Macey came up to Sullivan and asked him if he knew why Misogianes had spoken to him about the rule. Sullivan said he did not . Macey told him he had been reported for giving a card to another employee on working time. Sullivan said he had given the card to the employee in question as the employee sat at a table where employees on coffeebreak sit. Macey replied that was so but Sullivan had given the man the card at 3 minutes before 2 pp in. when the man's break was not scheduled to begin until 2. That was the end of the incident. Respondent argues that there is no violation of Section 8(a)(l) here because the words spoken to Sullivan by Miso- anes and Macey were not coercive . I think they were. The Singer Company, 176 NLRB No. 149 (compare the finding of no violation because no coercion in Supervisor Tom Rose's words to employee James Hancock in footnote I with the finding of a violation in Foreman Billy Young's words to employee L . B. Jones in section 1 of that decision; here, Misogianes's words to Sullivan more nearly resemble the latter than the former). But, in view of the fact that all the independent violations of Section 8(a)(1) alleged in this case toll ool place more than a year after the activities dis- cussed in section A, above , and in view of the fact that this is the only such incident with any color of merit, I conclude that it is an isolated incident requiring no finding of a viola- tion to effectuate the purposes of the Act. Therefore, I find that Respondent did not violate Section 8 (a)(1) when Miso- gianes and Macey spoke to Sullivan on April 15. 2. The Harold Hay incident 44 Harold Hay and James Knickerbocker handbilled Respondent's plant on the morning of April 24. When it because of a death in her family. The affidavit she gave to the Board agent on April 18 reads, in part, "I will not go back to work until the people who were fired get their jobs back." I do not consider this as in any way altering the unconditional nature of the April 3 telegram It is well settled that an offer by a labor organization on behalf of all sinkers is an unconditional offer to return M R it R Trucking Company, supra That principle applies to the strikers' committee involved in this case , and is not affected by the subjective feelings 2 weeks later of one sinker who was not present when the decision to call off the strike was made 43 All dates in this section are 1969 , unless otherwise specified 44 My findings in this section are based on the testimony of James Knicker- bocker, Howard Moses, Harold McComsey, and Michael Misogianes I do not credit Harold Hay's testimony that he handed Charging Party's literature and authorization card to Moses before Hay's starting time on the morning of April 24. I found Hay to be a completely unreliable witness, unworthy of belief began to rain heavily they went into the plant around 6:30 a.m. Hay had coffee and a smoke and went to work as scheduled at 7 a.m. At 7:16 a.m. as Howard (Jerry) Moses was clocking in to go to work at 7:30 a.m., Hay handed him a copy of the Charging Party's magazine he and Knicker- bocker had been passing out in front of the mill that morn- ing. Moses carried the magazine to his work station, where he discovered one of the Charging Party's authorization cards inside. When Misogianes passed by on his daily rounds later that morning, Moses told him what Hay had done. Misogianes had warned Hay a week or so before about violating Respondent's rule against soliciting during worktime. Consequently, he went to Supervisor Ed Izzo. Hay was summoned to Izzo's office and asked whether h had solicited Moses when he was supposed to be working that morning. Hay first said that he did not know, then that he guessed he had, then that he wanted Moses present. Misogianes sent for Moses . Moses went to Izzo's office. Moses said that Hay had given him the magazine and card at the timeclock as Moses punched in that morning. Hay denied that he had, then started to cry. Misogianes sent Moses back to work. Then Misogianes sent Hay back to work. Misogianes told Izzo to investigate further and issue a written warning to Hay if he had, in fact, given the maga- zine to Moses when he should have been working. Izzo did so and found that Moses had punched in that morning after Hay's starting time. Somewhat later that day Ed Akins, Moses' Immediate supervisor, told Misogianes that Hay had solicited Harold McComsey a week or so before at a time when everyone else in the department had been on break but McComsey had been working in order to finish a rush r ob. That afternoon Izzo called Hay to his office and issued him a written warning for soliciting Moses during working time that morning. The employee warning notice form given to Hay and made a part of his personnel record was checked in the "1st Notice" box. Under "Remarks" it read, " Passing out literature during working hours. If this practice occurs again disciplinary action will be taken up to and including discharge.' I find that Respondent did not violate Section 8(axl) of the Act when it gave a warning notice to Harold Hay for violating its valid rule against solicitation during working time.45 Greentree Electronics Corporation, 176 NLRB No. 126. 3. The Alan Hoag incident Alan Hoag signed an authorization card for the Chargin Party on April 21. On April26 he had a conversation with Misogianes in which Misogianes told him he was careless about what he signed. Both Hoag and Misogianes testified about the conversation. Their versions agree in all essential details, including the fact that Misogianes spoke the words attributed to him. The conversation grew out of Hoag's recent removal as chairman of a plant safety committee. Both witnesses agree that there was no mention of the Charging Party or any other labor organization in the con- versation and that Misogianes did not specifically say that Hoag was careless when he signed the authorization card or allude in any way to the fact that Hoag had recently signed for the Charging Party. I credit Misogianes' explanation that he was referring only to Hoag's work on the safety committee when he said what he did. I find, therefore, that 45 Hay al$o testified about separate conversations with Michael Misogf- anes and Ed Izzo on April 15 which underlay other allegations of independ- ent 8(axl) violations in the complaint as amended at the hearing . I make no findings on these incidents because I do not credit Hay. Misogfanes was not asked about any such conversation Izzo did not testify. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not violate Section 8(a)(1) of the Act in this incident. Upon the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. H. & F. Binch Co. Plant of the Native Laces and Textile Division of Indian Head, Inc., is an employer en- aged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate economic strikers Joseph Gatc- hell, Jr., Richard Harding, William Harper, Raymond Lam- oureux, Victor Potter, and Paul Wilson on March 16, 1968, when they unconditionally offered to return to work and had not been permanently replaced, Respondent has en- gaged in an unfair labor practice within the meaning of Section 8(aX3) and (1) of the Act. 4. By refusing to reinstate unfair labor practice strikers upon and following their unconditional application for reinstatement on April 3, 1968, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The allegations of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by various acts and conduct during the month of April 1969 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. Faced with the sort of detailed complaint issued in this case, I would normally limit the remedy to the March 15 and March 18 strikers named by the General Counsel there- in. It is clear that the 15 persons named in the complaint as March 15 strikers are all who now belong in that category. It does not matter whether Winnie McIntosh, Louise Lupo, and Virginia Ball left work early that night because they too were protesting the new schedule and not because they were really sick. They returned to work the next day without incident, and I credit Respondent's explanation that it did not try to replace them on the morning of March 16 because they, unlike the other 15, had punched out the night before. However, it is equally clear that the list of March 18 strikers in the complaint is not definitive for remedy purposes. In the first place, I have found that Martin Barrisford, Harold Mumblo, Jr., Sandra Washburn, and Paul Wilson took oth- erjobs before the unconditional offer of April 3. By so doing each may have obtained regular and substantially equiva- lent employment within the meaning of Section 2(3) of the Act. The first three thus may have ceased to be employees of Respondent for whose benefits the April 3 telegram was effective, while the backpayy pperiod for Wilson may have ceased soon after it began. There are not sufficient details in the record as to all four, however, to justify a blanket finding that they are not now entitled to share fully in the remedy. In the second place, I have also found that other persons could have been listed among the March 18 strikers and were not without explanation. Yet it is not clear that all persons who were employees on April 3 and thus entitled to share in a remedy based on rights which accrued to unfair labor practice stnkers at that time are even now revealed in the record. Therefore, because the record does not permit a definitive finding that persons named as discnminatees in the complaint are entitled to a remedy or that persons in addition to those named in the complaint are not, I will not attempt to list individual discriminatees in the order and notice recommended but will, rather, couch my recommen- dations with respect to the reinstatement rights of strikers in general terms, leaving details as to which persons are covered thereby to the compliance stage of this case. 46 I will also recommend that strikers who have been dis- criminated against be made whole for any loss of earnings each may have suffered. In the cases of Gatchell, Harding, Harper, Lamoureux, Potter, and Wilson, the six against whom Respondent discriminated on March 16, 1968, the backpay period would normally begin on that day. Howev- er, it would be manifestly unfair to add to Respondent's backpay liability the period of a year in which the General Counsel apparently could not make up his mind whether Respondent had committed an unfair labor practice, espe- cially in view of Respondent's efforts to follow the law as it developed during that period. I will, therefore, recom- mend that, in the case of all persons found to be discrimina- tees during the compliance stage, the backpay period begin on April 7, 1969, the day complaint issued. In summary, then, I will recommend that Respondent offer to employees who participated in the strike commenc- ing March 15, 1968, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, discharging replacements, if necessary, to make room for them, and make them whole for any loss of earnings they may have suffered as a result of the discrim- ination against them. The make-whole provision of this re- commended remedy will be satisfied by payment to discnminatees of the sums each would normally have earned as wages from April 7, 1969, to the date of Respondent's offer or reinstatement, less his net earnings during such period, with backpay and interest theon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Despite the existence of an outstanding Board Order in H. & F. Binch Co., et al. supra, at the time of the events litigated in this case, I find no propensity on the part of Respondent to commit unfair or practices. Therefore, I will not adopt the General Counsel's request that I recom- mend a broad order. Upon the basis of the above findings of fact, conclusions 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 omitted from publication.] 46 Reinstatement for the nine March 15 sinkers permanently replaced while the strike was economic in nature hinges, of course , on whether their former positions have become available . Johnson Sheet Metal, Inc., 179 NLRB No 104. Since I have found that such jobs were available when Respondent hired new employees in June 1968, the nine are now entitled to reinstatement even if their initial , individual replacements are still in Respondent's employ C H Guenther & Son, Inc , d/b/a Pioneer Flour Mills, 174 NLRB No 174 Therefore, an order in general terms will protect their rights as well as the rights of the other stnkers even though they are not named therein