Laher Spring & Electric Car Corp.

464 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Laker Spring & Electric, Car Corp. and Glen Robbins, and,-Julian F. McCarver, and Ernest L. Sanders, and Kendrick H. ,Reed,, and Leon Cook and H. L. Hill, and Carl Harris, and Ralph Hamblin, and Carl Kirk, and Elmer E. Miller, and Marvin Willard, and Benjamin W. Hall, and Herbert G. Kidd, and William Armstrong, and Cecil Lee Lindsey, and Walter,- B. Davis, and James A. Carwyle, and InternationalAssociation of Machinists and Aero- space Workers;. AFL-CIO, and Its Leal 'Loge -2350 ,1 Cases- 26--CA 3422,-1, 26-CA-3422,-2, 26-CA'3422,=3;`-26-CA-3422-4, 26-CA-3422,-5, 26-'CA-3422,-6,'26-CA,-3422,-7, 26-CA-3422, 8, 26-CA-34222 9, 26-CA-3422,-10, 26-CA-3422,-' 11, 26-CA-3451, 26-CA-3451,-2, 26-CA-3451, -3, 26-CA-3451,-4,26-CA-3451,-5, and 26-CA- 3532,-3 July 30, 1971 DECISION AND ORDER On November 5, 1970, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent, Laher Spring & Electric Car Corp., had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action neces- sary to remedy the violations found, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, together with a request for oral argument. The General Counsel filed cross-exceptions accompanied by a brief, and both above parties also filed answering briefs. Subsequent- ly, the National Labor Relations Board granted oral argument and furnished due notice to the parties. Thereafter, International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local Lodge 2350 (parties to the strike settlement memoran- dum), and the Charging Parties moved for leave to be represented by counsel, to engage in oral arliment, and to file a brief. Leave was granted by the Board and oral argument was held pursuant to the above notice on March 1, 1971. At this argument all parties were represented by counsel and fully participated therein. Thereafter, the Charging Parties and Unions requested leave of the Board to file a memorandum calling attention to a court decision issued after the oral argument. In the absence of any opposition thereto such leave is hereby granted. The Board has reviewed the rulings of the Trial 1 The case caption is hereby amended to include International Association of Machinists and Aerospace Workers, AFL-CIO, and its Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby-affirmed. The-'Board has considered the Trial Examiner's -, Decision, the exceptions; cross-excep- tions, the` briefs of the parties, the oral arguments made before the Board, and the entire record in this proceeding, and hereby adopts the findings,` conclu- sions, and recommendations of the Trial Examiner, as modified herein. The basic facts are as follows: Following ° the certification of the Unions as exclusive representative for all production and main- tenance employees at Respondent's _ New Albany, Mississippi, plant, negotiations, began for a first contract. The Unions called an economic strike on Monday, September 23, 1968. At that time there were 138 employees in the unit and 58 of these struck. The strike ended on December 6, 1968, when the parties entered into a 3-year collective-bargaining agreement. The parties, at that time, also entered into a strike-settlement agreement which provided that strikers who wished reemployment were to appear in person at the plant within 5 working days and fill out an application form. Pursuant to the agreement, the form afforded each applicant the choice of being put on a preferential hiring list for his last job, for any job in his department, for any job in the plant, or all three choices. The strike-settlement agreement further provided that applicants would lose all rights to reinstatement and be treated as new employee applicants if not reinstated within 6 months; i.e., before June 6, 1969. During the strike the Respondent had eliminated the night shift in the spring department and consoli- dated it with the day shift, transferred remaining night-shift nonstrikers to the day shift, hired 37 new employees, and rehired 8 strikers. The parties are agreed that on December 6, 1968, at the end of the strike, the total employee complement was 117. Of the 50 strikers, 40 became applicants for reinstatement. Between December 6, 1968, and June 6, 1969, 21 employees quit and 7 strikers were reinstated, reduc- ing Respondent's total employee complement further, from 117 to 103. Thus, on June 6, 1969, the employee complement was reduced by 35 from its size on September 23, 1968, when the strike began. There were 33 unreinstated applicants on that date. Between June 6 and December 30,1969, there were 38 more quits. The resulting vacancies, plus some additional jobs were filled by hiring 47 new employees and recalling 13 strikers. It appears from the record that the total complement on December 30, 1969, was 125, an increase of 22 from the June 6,1969; level. On that date there were 20 unreinstated applicants. Local Lodge 2350, as Parties to the Contract, as requested by the Charging Parties and these Unions. 192 NLRB No. 65 LAHER SPRING & ELECTRIC CAR CORP. The complaint alleges that the Respondent re- frained from materially increasing its work force until the expiration of the above 6-month period, in order to undermine the Union in the eyes of its employees and discourage employee adherence to the Union by rendering ineffectual the Union's efforts to secure their reinstatement, thereby discriminating against its employees because of the Union or their protected concerted activities. The complaint also alleges that following the 6-month period the Respondent dis- criminated against striker applicants by hiring new employees instead of them, and by withholding from returning strikers seniority and other employee benefits previously held by them. The complaint does not allege, in haec verba, that the strike-settlement memorandum was invalid. The Respondent in its answer denied that its new hires after the '6-month period were employed to perform work substantially equivalent to the jobs held by striker applicants, alleged that withholding of seniority from striker applicants was in accordance with the strike-settlement agreement, and denied that it otherwise discriminated against employees. The Trial Examiner found, in agreement with the General Counsel, that there were unfilled jobs in existence at the end of the preferential period for all strikers "interested in reinstatement" and that the Respondent was obligated under Fleetwood 2 to fill these jobs by reinstatements. He expressly discredited the Respondent's explanation for its refusal to fill those jobs, instead accepting the General Counsel's theory that the Respondent avoided rehiring more strikers by increasing overtime prior to June 6, even though that was more costly. He also rejected the Respondent's testimonial `explanation for the, in- creased hiring after June 6 on the ground that neither the alleged seasonal increase in business nor two alleged large orders for electric carts were supported by documentary evidence. He found that the failure of the Respondent to produce records of unfilled and filled orders which it possessed created an adverse inference that such records would have shown deliberate compression of the employee complement prior to June 6 and that such compression was for the purpose of avoiding the reinstatement of strikers. The Trial Examiner concluded that the strike-settlement agreement was part of the Respondent's scheme to avoid reinstatement of strikers. He also found that the strike-settlement agreement, which by its terms cut off reinstatement rights, after 6 months, was invalid as contrary to public policy, and for this and other reasons was no defense to the Respondent's failure to 2 N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375. 3 The Respondent asserts that a number of the above jobs were filled by permanent replacements during the strike. However, as found by the Trial Examiner, 'the Respondent failed to prove such assertion as the 465 rehire Leon Cook .because he applied for reemploy- ment one working day after the time specified in the strike-settlement agreement,--Respondent' s failure to rehire other strikers as jobs became available, ,and Respondent's, discriminatory rehiring of strikers as new employees on and after June 7, 1969, without their accumulated seniority and other rights and privileges. The General Counsel excepts, inter alia, to the failure of the Trial Examiner expressly to find-that the above acts of discrimination occurred-and constituted remediable unfair labor -practices- regardless of the "validity" or "invalidity" of the strike-settlement agreement. We find merit in this exception. We find it unnecessary to consider and do not decide whether the, strike-settlement agreement was valid or invalid because of the various provisions and limitations contained therein. Rather, we adopt and rely solely on the Trial Examiner's conclusions that the strike-settlement agreement was part of a scheme by Respondent to avoid reinstatement of strikers and that if this were not its scheme, the Respondent would have had openings for all unreinstated strikers on or after, December 7, 1968. In our view, these conclu- sions are amply supported by evidence adduced by the General Counsel showing the following: (1) A dramatic increase in new hires after the preferential period, i.e., after the expiration of the strikers' rights under the settlement agreement; (2) a substantial increase in the percentage relationship of overtime hours in the plant to total 'planf`hours' during the preferential period; and (3) the unexplained failure of 'the Respondent to reinstate the night shift in the spring department which encompassed a total of 16 jobs; to rescind the abolition of'leadmen's jobs in the battery and electric car departments formerly held by strikers, while continuing leadn eii's jobs held by nonstrikers in other departments; and to fill other jobs previously held by strikers, including-shoe, sort, and clean in the brake shoe department;- cutt'ing- grinding, assembly class 1, and Welder class 21n the electric car department; forming room helper and operator, plate paste, and finish line in the battery department; and die filler, grind printing, grind form, paint pack, block grind, saw operator,block press, and block press helper in the lasco department.3 In our view, the foregoing factors make a prima facie case of manipulation by Respondent, of, the settlement agreement to accomplish 8(a)(3) discrimination against strikers. Like the Trial Examiner, we are not persuaded that this prima facie case was rebutted by the Respondent's attempt to show' that there was 'replacements were new hires who were only classified "traineese'and paid at a lower rate of pay than that established by the Respondent for the above jobs. As it happened, many of these new hires left the employ of the Respondent during the preferential period and were not replaced. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increased productivity during the preferential period (December 1968 through June 1969) over the compa- rable 1967-68 period in the spring, brake shoe, and electric car departments 4 or by the Respondent's oral testimony that 'the- substantial increase in new hires following the end of the preferential period was due to two large orders in the electric car department and a seasonal increase in business in the battery department.5 We adopt-the Trial Examiner's conclu- sion that Respondent's actions during and after the strike-settlement agreement were "'motivated by a desire to'penalize the strikers." In the United Aircraft case, issued this day,6 we honored a settlement agreement as dispositive of the rights of unreinstated economic strikers. One condi- tion there cited,' however, was that the agreement not be "intended to be discriminatory or misused by either party with the object of accomplishing a discriminatory objective." Implicit in any strike- settlement agreement is the understanding that all parties will make a good-faith effort to comply with its terms, or, at the least, that'tthe agreement not be intentionally utilized as a means for defeating the reinstatement rights` of strikers contemplated by the statute.? Where such discriminatory manipulation has been shown, as here, we are unwilling to accord the literal terms of the agreement final and determinative weight. The policies of the Act would hardly be effectuated by, our deferring to an agreement, the terms of which have been utilized by Respondent in a manner as to cloak discrimination against strikers. We conclude, for the reasons indicated, that, after termination of the strike, Respondent discriminated against striker applicants, as alleged in the complaint, as job openings became available, in violation of Section 8(a)(3) and (1) of the Acts We find addition- ally that, as a part of its scheme to delay or avoid the rehiring of,strikers, the Respondent required strikers who were rehired after June 6, 1969, to apply for employment as new employees, thus discriminatorily depriving them of seniority and other benefits 4 We adopt the Trial Examiner's rejection of this reason asserted by Respondent for not hiring more strikers during the preferential period. We agree with the inference which the Trial Examiner drew from the Respondent's failure to adduce records of orders from customers during this period, that ;such records would have shown sufficient orders on hand to restore the prestrike complement, were it not for the Respondent's increase in overtime from 5 to 15 percent over the comparable 1967-68 period. We note that the increases in overtime in these departments were, respectively, from, 8.3 to` 16 percent, 2.7 to 15.5 percent, and from .2 to 7.7 percent. S We observe that an analysis of the record belies the defense alleged by Respondent in the pleadings that the new hires since June 6, 1969, were not hired to replace unremstated strikers , but were hired to fill the above- mentioned seasonal needs. Wade, Respondent's personnel manager, admitted , in ,his testimony that many were replacements. Assuming, however, that , the new hires in, the electric car and battery departments were not replacements but extras, this would not account for the substantial increase in, new hires in other departments where there were dependent thereon in further violation of Section 8(a)(3) and (1) of the Act. THE REMEDY We adopt the Trial Examiner's recommended Remedy herein, as modified in the following respects: 1. As contended by the Respondent and conceded by the General Counsel, and in accordance with the allegations of the complaint, the Trial Examiner's recommendations that the Respondent offer rein- statement, with backpay, are adopted only as to those unreinstated strikers who made application for reinstatement, including Leon Cook,, and not as to all unreinstated strikers. 2.' As the Trial Examiner in his Decision did not pass on the Respondent's contentions that certain employees had failed to respond to invitations to discuss job openings and thus were not entitled to reinstatement, but only referred to the fact that four of the strikers had found regular and substantially equivalent employment, and as he made no finding as to certain employees whom he ordered reinstated but who the parties agree were not strikers, we shall leave to compliance a determination of who these individu- als are, and whether or not they are entitled to reinstatement and/or backpay under the terms of our Order herein. CONCLUSIONS OF LAW 1. The Respondent, Laher Spring & Electric Car Corp.,_ is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions, International Association of Ma- chinists and Aerospace Workers,,AFL-CIO, and its Local Lodge 2350, are labor organizations within the meaning of Section 2(5) of the Act. 3. By refraining from materially increasing its work force and reverting to its, prestrike unit comple- ment following termination of the strike to June 7, 1969, the 6-month period in the strike-settlement memorandum, in order to avoid recalling or rehiring large numbers of unremstated strikers . Thus, the number of new hires m relation to unremstated strikers as of the end of the period from June 6, 1969, to the end -of that year were 6 to 7 in the spring department and 7 to I I in the lasco department. s United' Aircraft Corporation (Pratt and Whitney Division), 192 NLRB 62. 7 See the opinion of Judge Clarie in Lodge 743, PAM v. United Aircraft Corp., 299 F.Supp 877, 898 (D.C. Conn., 1969): These contracts carried with them the obligation of mutual good faith and fair dealing in their execution; and national labor law policy infused an additional element, namely that strikers could not be discriminated against in the administration of the recall provisions in the agreements. B Moreover, we find, in agreement with the General Counsel, that the Respondent discriminated additionally against Leon Cook by failing to reemploy him because of his protected activities of joining with the Union as party plaintiff in a suit against the Respondent, and other employers alleging that they conspired to prevent union organization of'employees. LAHER SPRING & ELECTRIC CAR CORP. unreinstated striker applicants, by failing to recall or reinstate such applicants as vacancies occurred, by using the strike-settlement memorandum as a device to, prefer new hires over such applicants and to defeat the reinstatement rights of strikers, and by discourag- ing such applicants by requiring them to come back to work as new employees, with loss of seniority and other benefits dependent thereon, because they participated with the Unions in a lawful strike, the Respondent has discouraged membership in and activities on behalf of the above labor organizations in violation of Section 8(a)(3) of the Act. 4. By refusing to reinstate Leon Cook, because he was - engaged with the Unions in a suit alleging violations by the Respondent and others by reason of a conspiracy to prevent union organization, the Respondent has discouraged membership in and activities on behalf of the above labor organizations in violation of Section 8(a)(3),of the Act. 5. 'By the above conduct the Respondent has interfered with the Section 7 rights of striker appli- cants, employees of the -Respondent, in violation of Section 8(a)(1) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the Respondent, Laher Sp>•ing. & Electric,Car Corp., New .Albany, Mississippi, its officers, agents, successors,andassigns, shall: 1. Cease and desist from: (a) Compressing the unit complement in order to avoid recalling or rehiring unreinstated employee striker applicants, intentionally refraining from recall- ing or rehiring such employees, using the strike- settlement agreement as a device to prefer new hires over such employees,-or discouraging such employees by requiring them to return to work as new employ- ees, with loss of seniority and other benefits depend- ent thereon, because such employees participated in a lawful strike on behalf of International Association of Machinists -and Aerospace Workers, AFL-CIO, and its Local lodge 2350. - (b) Refusing to reinstate Leon Cook because of his union activities. (c) In any other manner discriminating against employees to encourage or discourage membership in a labor organization. (d) In any other manner interfering with, restrain- 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 467 ing, or 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: - (a) Offer to employees referred to in our Decision and determined upon compliance as entitled thereto immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, 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 the discrimination against them in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," as modified in the Board's Decision. (b) Notify immediately the above 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. (c) Preserve and, upon request, make, available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (d) Post at its plant in New Albany, Mississippi, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative,, shall be posted by it, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by- any other material. (e) Notify the Regional Director for Region 26, in writing, within 20, days from the date of this Order, what steps the Respondent has. taken to comply herewith. 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.; MEMBERS FANNING AND BROWN, concurring: - - - For the reasons stated in our dissenting opinion in the United Aircraft case, supra,, we would sustain the complaint in this case whether or not Respondent discriminatorily failed to comply with the strike- settlement agreement respecting the restoration of strikers. In our view, under N. L. R. B. v. Fleetwood changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trailer Co., 389 U.S. 375, parties may not by agreement, albeit in good faith, curtail the reinstate- ment rights of strikers'at least until the normal level of prestrike production is reached. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local Lodge 2350, or` any other labor organization, by compressing our work force or using the strike-settlement agreement with the above Unions to avoid recalling or failing to reinstate strike applicants or preferring nonstriker applicants. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, or to join or assist the International Association of Machinists' and Ae- rospace Workers, AFL-CIO, and its Local Lodge 2350, or any other labor organization, to bargain collectively, through representatives of their own choosing, and to engage in, other concerted activities for the purposes of collective bargaining or other mutual aid or `protection, or to refrain therefrom. WE WILL offer to Leon Cook and to those other employees who applied for reinstatement follow- ing the strike commencing on September, 23, 1968, and who have not rejected an offer of former or substantially equivalent employment by the Em- ployer, and who have not been reinstated, immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to' substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make whole the above employees and those other employees who were rehired but suffered a , loss of seniority and other benefits dependent thereon for any loss of earnings and other benefits they may have suffered as a result of our discrimination against them, with interest thereon computed at the rate of 6 percent per annum. LAHER SPRING & ELECTRIC CAR CORP. (Employer) Dated By (Representative) (Title) We will notify any of these employees, if presently serving in the Aimed Forces ofthe 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 isan official notice and must not-be defaced by anyone. This notice must remain posted" for, 60 consective 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, '746-, Federal Office Building, 1"67 -North, Main Street, Memphis' Tennessee' 38103, Telephone 901-534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon various charges duly filed between July 17 and November 28, 1969, by various individuals, herein referred to as the Charging Parties, the General Counsel of the National Labor Relations Board, 'herein referred to as the ° General Counsel" and ' the Board, respectively, by `the Regional Director for Region 26 (Memphis, Tennessee), issued its complaint dated ` April' 9, 1970, against Laher ` Spring & Electric Car Corp., herein referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor' practicer, affecting commerce within 'the' meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, and herein referred toas the Act. Respondent duly, filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices., I I I ' ' 11 Pursuant to notice, a hearing"thereon was held before me in Oxford, Mississippi, on various dates beginning on July 6 and ending on July 21, 1970. All parties appeared at the hearing, were represented by counselor representative, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence materi- al and pertinent to, the issues. At the conclusion of the hearing oral argument was waived. Briefs^were received on August 26,1970. Upon the ^ entire record in the case and from my observation of the witnesses, I make'the following: 1 This term specifically mclndes'the attorneys appearing for the General Counsel at'the hearing. LAHER SPRING & ELECTRIC CAR CORP. FINDINGS OF FACT I. BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Esher Spring &,Electric Car, Corp. is now, and has been at all times ,material herein, a corporation with an office and place of business at NewAlbany, Mississippi, where it is engaged in the, manufacture of electric cars, batteries, truck springs, and brake blocks. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received at its New Albany, Mississippi, plant material and supplies valued in excess of $50,000 directly from points located outside the State of Mississippi, and during, the same period,, Respondent sold and-shipped products valued in excess of $50,Q00 directly to points located outside the State of Mississippi. Accordingly, I now find that Respondent is.now, and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO,' herein called the Union, is now, and has been at all tithes material herein, a labor organization admitting to membership-employees of Respondent. `III. THE UNFAIR LABOR 'PRACTICES A., The Facts Following two unsuccessful organizing attempts by IBEW in 1963 and 1967, on August 7, 1968, LAM Local Lodge; 2350 was certified as the exclusive bargaining representative, for,all-the employees,in"the production and maintenance unit at Respondent's plant at New Albany, Mississippi. Negotiations between Respondent and the Union began on August 29. After four such sessions without reaching an agreement, the Union went out on strike on September 23, 1968. Of Respondent's ,143 production and maintenance employees in the appropriate unit,, 58 left work and picketed the plant. Admittedly this was an economic strike and not caused by any unfair labor practices. At the next, negotiating - session on September 24 Respondent's executive, - vice president and the general manager of the New Albany plant, Wilbur Laher, requested the Union to return the strikers to work, promising that negotiations would continue-The Union refused. However negotiations did continue. -On September 26 Respondent placed a full half page advertisement in the local news paper stating that Respondent .was ' taking job applications for "regular production employees as well as skilled workers-" because of the strike existing at its plant. 2 The words -"at least" are here used advisedly for the reason that this figure, like most of the other figures to be used -herein, are compiled from a number of -exhibits in evidence. Many, of these exhibits do,not agree. Some contained pencilled inserts and exclusions without explanation. A number of employees' names appear ' on one exhibit and thereafter disappear 469 For quite some time prior to the strike Respondent had had a night, or second, shift composed of some 13- to 16 employees. However, with the advent of the strike this second shift was abandoned and the nonstriking employees thereof were combined with the remaining day-shift employees in order to continue the day shift in the plant. Respondent continued to operate the plant throughout the period of the strike using nonstriking employees together with new employees hired from September 24 on throughout the whole period of the strike. During the strike period Respondent hired at least .36 new employees who were almost without exception classified as "trainees",-and. paid at the minimum rate of $1.60 per hour.2 In addition to these 36 newly hired employees, 8 strikers, according to Respondent Personnel Manager Wade and according to the figures I have compiled, abandoned the strike and returned to work. Before placing these returning strikers back on their regular jobs at their former rate of pay with their former seniority and other rights, Respondent required each of these returning strikers to execute the following application: APPLICATIIRi BY STRIKING EMPLtlYEE FOR REINSTATEMENT- I do hereby unconditionally apply for reinstatement by Lasco Brake Products corporation on the job clas- sification held by me immediately prior to September 27, 1968, (the date of the strike). In the event that there is presently no vacancy in such job classification (chose one of the following); 1 ]1. I desire to obtain reinstatement as an employee of Lasco Brake Products-Corporation in any other job classification now open or in which there may be an opening for which I am qualified by my training or experience. [ ]2. 1 desire to be placed on a preferential hiring list for reinstatement only in my former job classification (held at the time of the strike) if and when that vacancy may result requiring the hiring of employees. - [ 13. 1 do not wish to be placed on a-preferential hiring list for the reason that [ 14. I understand that if I elect to be placed on a preferential hiring list I must keep Lasco Brake Products Corporation advised of any change in my address, and I must report for work within three (3) days when called or notified. Presented: Dated: Signature of Applicant Time: Acknowledge By: Present Address According to Respondent's brief, "The people hired during the strike were permanent employees." 3 As noted heretofore, the parties continued negotiations throughout the whole strike period. At the tenth--and,next to last negotiating session held on November 20, 1968, there was some conversation between the parties in regard without explanation. The words used are to indicate that the numbers may not be complete. 3 At this time Respondent had a 60-day probationary period for all new employees. On December 7, 1968, this probationary period was extended to 75 days by the collective agreement signed that day. 470 DECISIONS OF NATIONAL LABOR RELATIONS` BOARD to the method of returning -thestrikers to work at the end of the strike. `Faced^with ' the, knowledge that °14 strikers had deter- mined', to return to work on December 9 if no agreement had- been reached ' between the parties by, that date, the' Union at'the last" negotiating Session on December 5, 1968, capitulated and`agreed to'accept the Respondent's` offer of a' 3=year ,contract, With an immediate "5-cent across-the board`wage=mcrease too befollowed by two 10-cent annual increases'thereafter. Uri to- - 'the date of this capitulation, the Union, through ' its'- bargaining representative,' W. D. Christy,had been insisting on a contract of 1-year'duration with a larger across`-#the-board wage increase. At the December 5' meeting Respondent produced a document entitled "Memorandum as to Reinstatement of Sinkers of .La1 er`Spring ,&,,Electric Car Corp" which, as originally drafted, provided that the strikers would have 3 days, in, which to make personal application for reinstate- ment yand, that all' rights ,of reinstatment would expire, 6 months from the date of the execution of the memorandum. The Union requested that the rights of reinstatement should continue for A period of I year. Respondent finally agreed to a 5-day period for making application but insisted that the strikers rights to reinstatement should expire in 6 months in order, as it argued, that the memorandum should "conform",, to the, collective-bargaining agreement which provided that an employee laid off for a period of 6 months lost his status ,as an employee. Again the Union capitulated. It was agreed, that the collective-bargaining agreement and the memorandum would be executed by the-parties on December 7 after Respondent had them typed. On the , -evening of December 5, Christy read the collective-bargaining, agreement and the memorandum to the strikers at a union meeting. It was voted-by those present to accept both. On two occasions, one being at the negotiating meeting of December , 5 and the other a 'day or so later, Laher was asked ,by, union negotiating committee members when the night shift-,was going to be reestablished. On the first occasion Laher'answered that it-would take at least 2 weeks to reestablish the,second shift and on the second occasion he answered that the second -shift would not be ^reestab- l'ished until after " the Christmas holidays. Laher recalled these two inquiries and his answers thereto which, in his version, varied , only slightly in phraseology from that testified to by the General Counsel's witnesses. Laher, however, testified that, "No statement that we would start a night shift was ever made, no commitment as such." Accepting Laher's , slight ,,change in phraseology and his assertion that "No commitment as such" was ever made, I must find'-that the clear implication of Laher's answers was that the second shift would be reestablished in the near futures However the second shift, in fact, had not been established as' of the date of the hearing herein. As arranged on` December; 5, the parties signed up the collective-bargaining agreement on' Saturday, December 7. Article XI of this agreement provided as follows: New employees shall be considered probationary employees ' until they have continued employ of the Company for (75) days. There shall be no seniority among probationary employees for (75) days. After such time, their seniority shall start from the latest hiring in date. 6.2. Seniority by department, within jobs classifica- tion, shall be recognized in layoff and recall of employees;- it being the intent of this provision that within a classification in any of the present 7 (or ` any ` subsequently created departments) ;the employees with the most seniority will be laid off last'in-the event of a reduction in'-force, and' recalled liefore"an' employeeI with less 'seniorhy'in, the 'event of recall of,employees after layoff,- unless otherwise- specified in this -agree- ment. Employees with seniority who-are laid off shall remain on the seniority list for 6 (six) months from such date of layoff. On this same day, Saturday, December 7, the parties also executed the following memoranda which read as follows: LAHER SPRING AND ELECTRIC CAR CORP. This memorandum of agreement' entered into by and between Laher Spring and Electric Car Corp. (and its associated', companies ,Lasco Brake Products Corpora- tion, - and Laher Battery Pr'oducti'on Corporation), hereinafter called the Company,`and The International Association of Machinists and Aerospace Workers, AFL-CIO and its Local Lodge No. 2350,- hereinafter called the Union, witnesseth: That the Union is the certified bargaining agent of certain of the employees of the Company at its New Albany, Mississippi plant. Certain of those employees of, the Company have been on strike during the negotiation ,of a collective bargaining agreement, and thecontract has now been agreed to and has'been executed upon•the same date as this memorandum and is incorporated herein by reference. In order to provide-fora regular and orderly return to work" of those striking employees still out on strike who desire to return, it ' is 'agreed by and between the Company and the Union acting' for the' strikers, as follows: 1. All strikers who, desire , to return to- work shall sign an application in the form -attached hereto as Exhibit "A" to this, memorandum` within" five (5) 'working days from the date of this memorandum (Monday through Friday being considered ' working days), at the Personnel office of the, Company., Any striking employee who fails to make suchapplication within that time shall be deemed not to be interested.in reinstatment under this agreement and will be consid- ered to have resigned from employment "with the Company. 2. As to employees who request reinstatement in the job classification and department in which working at the time of going out on, strike, the Company will recall the employees in their order of seniority with the Company when a job vacancy occurs in the c1assifica-' Lion and department of the'stiriking employee. The pay LAHER SPRING & ELECTRIC CAR CORP. shall be at the rate for the job classification as provided in the bargaining contract. Such reinstated employee will retain full seniority rights under the bargaining agreement. 3. Should the ,employee apply for any job opening he. can file, within the department inwhich,he worked at the, time; of strike,the,Company' will consider all such applicants for reinstatement-when a job opening occurs as,to which there is no-unreinstated,applicant who had the classification of the job opening, and will call the applicant who, in the•opinion _of the Company, can best perform the rob. The,recalled employee will receive the pay of the job classification ,for which hired, and will retain full seniority rights under the contract. 4.-, Should' the employee apply for any job opening and no one is, available under, the provisions of paragraphs `2 and 3, above tie Company will recall the employee; who, in, its,, pinioal can best fill the job and if, in a department other than ^ the one in which he worked at the time of going out on strike, he shall retain seniority only' for vacation and holiday purposes (as provided' in ;Section 6.7 of the agreement as to inter- departmental transfer). 5. Each applicant for reinstatement shall keep the Company informed as tohiLcurrent address. 6. Any -employee' who is notified to report, under his appcation, shale report for work within three working days of"the-mailing of the notice to report by U.S. mail, and` a failure to report within that time-shall result n a' forfeiture of all rights under this agreement and he shall he deemed to have resigned. 7. Alf reinstateient rights of strikers shall expire six months from'the date of'this agreement. 8. ' Nothing contained herein shall be construed as any obligation ' by the- Company to create any job openings or to reinstate anyone, except as job openings occur in the regular course of the Company's opera- tions, nor shall this agreement require the lay-off or discharge of any person now working for the Company. 9. No exercise of discretion by the Company under paragraphs 3 and 4, above, in the filling of job vacancies shall be subject to grievance or arbitration under the terms of the bargaining agreement, or otherwise. , Attached to this memorandum at this time, and for the first time, was a form of the application to be executed by the individual striker applicants which read as follows: APPLICATION BY STRIKING EMPLOYEE FOR' REINSTATEMENT 1. I do hereby unconditionally apply for reinstate- ment by Laher" Spring and Electric Car Corporation (or 1- It was stipulated at the hearing that on October 11, 1968, a civil action styled I.A.M., et al. v. U.S. Extrusions Impacts, et al., was filed in the United States District Court for the Northers District of Mississippi in which Leon Cook was a named party plaintiff and Respondent was named as a party defendant. This action brought under the Civil Rights Statute contained an -allegation that there was a-conspiracy among certain officials and persons in Union County, including Respondent here, to prevent union activity. Subsequently the complaint was dismissed as not stating a cause of action. 471 its associated companies, Lasco Brake -Products Corpo- ration_or Laher Battery Production Corporation) in the Department and job classification held by me- immedi- ately prior, to September 23, 1968, (the date of strike). '2. 1 desire to be placed on a preferential hiring list for reinstatement only in my former job classification and - Department (as of September 23, 1968) if, and when, a vacancy occurs in that classification within 6 months. 3. I desire to be placed on a preferential hiring,list for any job opening in the Department where _ I was employed on September ' 23, 1968, which occurs within 6 months and which, in the opinion, of the Company, I am qualified to fill. 4. I desire to be placed on a preferential hiring list for any job opening in the Company in any Department which occurs within 6 months and which, in the opinion of the Company, I am qualified to fill. (I understand that in going into another Department, I forfeit seniority except as to vacation and holiday rights). I understand I must keep the Company informed of any change of address, and must report within 'three working days after being notified to do so, or else I will forfeit my rights to reinstatement: I further understand that my right to reinstatement will expire at the end of 6 months if I am not called to work within that time. DATE: Applicant for Reinstatement Address Application received by: On Saturday, December 7, and throughout the workweek ending Friday, December 13, most, but not all, of the strikers executed copies - of the application form provided by Respondent exercising ; one- or more of the various options provided thereon. Although Saturday was not a workday at the plant, Personnel Manager Wade accepted the numerous applications for reinstatement executed that day without question. On Saturday, December 14, striker Leon Cook appeared at Respondent's office for the purpose of applying for reinstatement. Cook had, taken interim employment during the strike at a meat packing plant some 30 miles' from Respondent's plant and had been unable-' to make application earlier due to this employment . When Cook informed Wade on this occasion that he desired to file an application for reinstatement, Wade refused to allow Cook to do so on the ground that Cook was a day-late in making application and to allow him - to' do so under that circumstance "would break the contract [memorandum]. "4 The record shows that at the time of the strike on At the hearing Respondent's counsel stated: Well, Mr. Examiner, Mr. Cook sued Laher Company in a law suit in which he said he didn't even know he was a party until his deposition was taken. After he became a party he didn't withdraw the suit, although he said' he didn't have any intention of suing anybody at the time he was examined. I think it is significant that the Laher Company did not reply to his Christy letter because the Laher Company doesn't care to have Mr. Cook working for them as a result of`this incident of the law suit. (Continued) 472, DECISIONSµ-'OF NATIONAL LABOR RELATIONS BOARD September 23, 1968,` Respondent had 143 employees of whom 37 were classifedas trainees while the remainder had job classifications 5 r" During the' period of the strike, - 'September , 23 , "to December 7, Respondent hired at least 36 new employees, most , all of ; whom were classified as trainees at ,the minimum, rate of, pay of $1.60 per hour. Eight. strikers abandoned the .strike and returned to their- previous positions with all rights and privileges. The payroll of December 6 "shows' that on' that date Respondent had 117 employees Of whom°53 were classified as "trainees:" In May and June 1969, as the expiration date of June 7 approached when, according to the reinstatement memo- randum, the-.rights of the strikers to reinstatement was to expire, many ^ of the still, nonreinstated strikers filed what was-called in this record the Christy letter with.Respondent, which read as follows: Gentlemen: - As you -know,, I participated in the strike at- your Company which was called offon (date ). I hired ,in, at your Company on or about ( date) I worked in the following classifications, ( item,), (item), (item). At the time of the strikeI-was a ( item). I am interested in recall and wish to be recalled when an opening occurs in my classification or any compara- blejob. Please treat,this-as a continuing request. My present address is: ( address ). Should there be any change of address, you will be advised. Sincerelyyours, On,June 6, ,the day prior toAhe reinstatement expiration - date,, Respondent . answered all - such Christy letters as, follows: June 6, 1969 We have received your letter dated; Mayr9th, 1969, stating,, that you wish- to be listed for continuing employment with us. ` . , In .order to do this, we request ,that ,you come to our , office-.and file an application for employment with us,,, and keep it„ in a current status as ,.has,- been, our employment policy, for many years. Rules for-, keeping,.. your application. current are pos d, in the employment office for your convenience. On June 7th your current application has become inactive. - Therefore, we again wish to advise that if, you still, wish to be placed-on-the-active job applicant list, please come to our office any, work day between-,8,vA.M,.and 12 Noon to file an application in accordance with the rules posted in the employment office, as a letter cannot be Christy letter and we haven''theard anything else about it. I ,am saying .that the Company does not want to rehire Mr, Cook and this is one reason why they do not, yes, that he participated in this suit and that he participated in it after he-said he-didn't know he was doing so but continued to do it. [Emphasis supplied.], 5 It is a moot question, as to whether these "job classifications;' were actually ,job classifications or merely job descriptions. According to the testimony of Laher, the men holding job classification status were trained considered a' formal job application in accordance with our 'employment policies.. 'Sincerely, .`^ On or about June'4,1969; nonreinstated striker°James A. Carwyle, whose - eniployinent with -'Respondent began , in Match 1965, reported to. the personnel office in an`swer` to Wade's telephone call`to him about reinstatement: In the office; Wade told Carwyle'tliat he'had an opening m-the brake department. Carwyle said thatM'he would'take the job but ,remarked that ' he- had ' opted on the'- reinstatement application form for a job in his former laic"' department, When Wade checked Carwyle's, application' , form ' and found Carwyle's statement to' be-`true,' Wade stated that under the terms ' of - 'the ^,_ reinstatement' 'contract (memorandum), he 'could not -transfer Carwyle to' another department and -would, therefore, give thejob to" Charlie McKenzie," another nonreiirsta'ted'° striker ' As ' °Carwyle started to leave the office,WWadesaid that ther`e' was a job in the lasco department but that he, Wade, did ndt'know what it was but would let Carwyle know by_telephone.,earwyle is been still waiting for that telephone call.y.Carwyle has "n,r einstated. ^^ McKenzie was reinstated on June,9,1969., During this 6-month h period ending June 7, 1969, at least 23 of. the "permanent replacement"1employees hired by Respondent during the strike left Respondent's ,employ. Prior to June 7 Respondent replaced theser23 with=one new hire,McIntosh,,on December 7, 1968,6 and,by,'recalling and reinstating 10 strikers. These reinstated strikers all returned to their .old jobswith the 5-cent incresenpay;as;called-for by the collective-bargaining agreement of ecember 7_ and with all rights and other privileges previously earned intact. The records show,, that after June-7,.1969, and for the rest of - the year of,196.9.Respondent hired, as new employees, as follows: month" , - New Hires ° ° , Stri'1Cer~'s' June, July August September October 14 November 3 December -:<4 0 All' these strikers reinstated or employed after June 7 returned-as probationary-employeeswithout their .previous- ly earned seniority or other previously earned rights and privileges, such as vacation rights. They-also were -employed and skilled operators. On the other hand," the testimony.of, the witnesses for the General Counsel tendedto indicate that each-man was able to; and did,• - perform many, if not all, , of, the operations performed in his- own departments. The testimony of Caber, however, proved that an employee would remain a "trainee"_ for many , months, before receiving a, job classification which entailed higher pay., - _ _, e The typed payroll of December' '6, 1968,- contains the name of McIntosh inserted in pencil. Another stipulated exhibit gives the seniority date of McIntosh as December 7, 1968. It thus appears clear that McIntosh LAHER SPRING, & ELECTRIC CAR CORP. in whatever jobs Respondent desired,them to occupy and at the rate of pay Respondent desired to pay. The number of - new hires during this period also conclusively proves that there were jobs available at Respondent's plant- for all the strikers-if Respondent had desired to hire the'nonreinstated strikers. B. Conclusion This case deals exclusively with the status and the rights of`economic strikers. The facts here ate simple and largely uncontroverted. Except for one 'point the-lawapplicable to those facts is well settled. On September '23, 196`8, 58 of Respondent's 143 production and maintenance employees went out on strike for the avowed purpose of obtaining bettor 'wages, hours, and working conditions from Respondent in ,a collective- bargaining agreement' then being ' negotiated ` by and between Respondent and the employees' recognized collective-bargaining agent, the Union. This was an economic strike and not caused by any unfair labor -practices. As to the status of these,58 economic strikers Section 2(3) of the Act provides in-pertinent part as follows: (3) - The term `employee' ... shall , include, any individual whose work has ceased' as a consequence of, or in connection with, any current labor dispute , . . and" who has not obtained any other regular and substantially equivalent employment ... . Thus the aforementioned 58 strikers whose, work had ceased as a consequence- of, or, in connection with, the current labor dispute and who had not obtained any other regular or substantially' equivalent employment remained "employees" of Respondent. During the course of Vie strike from September 23, to December 7; 1968, eight of the strikers abandoned the strike and returned to work with Respondent. They were reinstated to their former positions with an, their former rights and privileges including,seniority. As these eight had been reinstated to their' regular employment with Respon- dent, we have nothing further to do with them in this Decision. In addition, in order to maintain its operations, Respondent hired at least 36 new employees as "permanent replacements" of the 50 employees still on,strike. , On December 5, 1968, threatened with the defection of 14 more strikers, the Union capitulated and agreed to a 3-year collective-bargaining agreement with annual wage increas- es across the board of 5-10-10 cents although prior thereto the Union had been insisting on a 1-year- contract with a greater wage increase. As of the date of this capitulation Respondent had a payroll of 117 employees as compared to a total of 143 at the commencement of the strike. Thus there were 26 vacant positions in Respondent's plant as of December 7. On December 7, as agreed, the Union executed the collective-bargaining agreement and a document entitled "Memorandum as to the Reinstatement of Strikers of Laker Spring & Electric, Car Corp." This document provided that each individual striker who desired reinstate- ment to employment must make application therefor on forms prepared by Respondent within the next 5 working 473 days, Monday through Friday,. This memorandum con- tained the following provision: 7. All reinstatement rights of strikers shall expire six months from the date of this agreement. [Le. on June 7, 1969:] The negotiation of- this. memorandum had been perfunc- tory at best. Respondent had .agreed to extend the time for filing applications for reinstatement from 3 to 5 days but refused to extend the reinstatement expiration date from 6 months to a year. Admittedly . the memorandum was drafted and proposed by-Respondent. ` Most, if not - all,'the strikers applied for, reinstatement within the 5-day period on forms setting forth four different options, as prepared by Respondent. Many of these applications were executed on December 7, -which was not a working day as required by the memorandum. However these applications were'accepted.without question. One notable exception to the above 'was striker Leon Cook who, because of his interim employment was unable to apply until Saturday, December ' 14. Personnel Manager Wade refused' to accept Cook's application on that day on the grounds that to do so would be a' breach of the agreement (memorandum). Cook was known by Respon- dent to be an officer of the local union as well as a named plaintiff in a case under the - Civil Rights law charging Respondent with being a member of -a' conspiracy to prevent union activities in Union County, Mississippi, where Respondent's plant is located. Respondent became a strict constructionist of the memorandum in Cook's case. The "law applicable to economic ,strikers is succinctly set forth ' in the case of _C II Genther & Sot, Inc., d/b/a Pioneer' Flour Co., 427 F.2d983, 984-986,,,where the Fifth Circuit -Court of Appeals speaking through Judge Wisdom held as follows: The "Board further found that the Company violated Section 8(a)(3) and '(1)' of-the Act by discriminatorily refusing to reinstate strikers Wilburn, Samudio, and Woytasczyk at the end. of the strike, by failing to recall 14 strikers when their jobs became available upon the departure of temporary or permanent replacements, andby discriminatorily reducing the seniority and other benefits of Robles and Villarreal after they were reinstated. (The Trial, Examiner had not found an 8(a)(3) and (1) violation in the failure to recall 1 l of the strikers because their replacements, although departed, had been "permanent"). An employer may not, upon termination of an economic strike, refuse to reinstate the strikers because of their participation in the strike. Phelps Dodge Corp. v. N.LRB., 1941, 313 U.S. 177, 189, 61 S.Ct. 845, 85 L.Ed. 1271; N.L.RB. v. Albritton Eng. Corp., 5 Cir. 1965, 340 F.2d 281, 283, cert. denied, 382 U.S. 815, 86 S.Ct. 31, 15 L.Ed.2d 62; N.LRB. v. Marydale Products CO., 5 Cir. 1963, 311 F.2d 890, 891-892, cert. denied, 375 U.S. 817, 84 S.Ct. 53, 11 L.Ed.2d- 52. It is also settled that although an employer may hire permanent replace- ments during the course of the strike in order to continue his business, and is not bound to' discharge those replacements in order to create vacancies 'for strikers wishing to return to work, he may not resort to antiunion considerations in determining which of the 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers shall return to fill existing vacancies. N.LR.B. v. MacKay Radio & Tel, Co., 1938,1304 U.S: 333, 345-346, ,88•S.Ct. 904,02 L.Ed. 1381. Ample evidence supports the Board's finding that the Company refused to reinstate Wilburn, Samudio, and Woytasezyk upon-termination of the strike for discrimi- natory -reasons, in violation of Section:8(a)(3) and-(1) of the Act. Some of the, replacements whom the Company.1ired during the strike began leaving shortly after the strike terminated. Although-almost all of -die strikers made unconditional requests for reinstatement, and although the Union made such-,an offer on behalf of.all of the strikers. and , continued its efforts, to obtain their reinstatement throughout the six months following the strike, the Company did not reinstate strikers to fill the jobs vacated by the replacements, but hired instead new employees who had never worked - for the,- Company. The Board determined that3 of, the replacements had only been -temporary, and that the remaining I1 had been permanent. It further'.,determined that; both temporarily and permanently replaced, economic strik- ers are entitled to reinstatement ,upon,the' departure of their replacements, and therefore that the Company violated Section-8(a)(3) and (1) of the Act by ; ' g,new employees, rather than strikers, to fill the vacancies left by the departure of; the 14 replacements. Economic strikers retain their employee status and are entitled to reinstatement upon they departure of their permanent replacements. N.LRB. v. Fleetwood Trailer Co., ,1967, 389 U.S. 375, 88'S' Ct. 543, 19bL.Ed.2d 614; Laidlaw Corp. v. N.LRB., 7 Cir.1969; 414 F.2d 99, cert. denied, 1970,'39,7 U.S. 920, 90 S.Ct., 928, 25' L.Ed.2d 100; American Machinery Corp. v. N.LRB., 174 NLRB No. 25 (1969), enforced the Board's findings that'the eleven strikers in question wanted their jobs back, and the Company failed to meet its burden of establishing that there "was a legitimate and serious reasonlor not reinstating these employees. The Company had a 60-day training period for new employees. Three of the replacements hired during the course of the strike failed to 'complete this training period, and were terminated between February, 14 and March 2. In these 'circumstances, the Board' properly found that these three replacements were not perma- Total 'Time Period Employment Sept . 23--Dec. 7, 68 Dec, 7, 68-June 7,,69 June 7 , 69--July, 69' 117 I In early January 1969 four of the strikers ' had found regular and substantially equivalent employment elsewhere and hence under the provisions of Section 2(3) of the Act were no longer employees of Respondent. s, At'-rho hearing and in its brief Respondent argued that the Sept . 68 ' 143 nent replacements for strikers , but only temporary replacements. Kansas Milling Co., 97 N.LR.B. 219; 226 (1951). The Company's failure to "reinstate the strikers whose positions they, had ` vacated , was unlawful. N.LRB. v. Marydale -Products,. 5- Cir. 1963, 311 F.2d 890, cert. denied, 375 U.S. 817; 84 S.Ct. 53. The Company did reinstate two of the strikers, Robles and Villarreal, upon, the departure of their permanent replacements. Ten days later they were informed that because -o f a "new law" they would have to`fill out, application forms,,would not be covered-,by insurance for `30e days, and would lose their seniority and vacation benefits. In short, they were treated a's new employees. Failure to accord these two employees full and complete,reinstatement was clearly 'discriminatory and unlawful. The"record in the' instant matter proves that within the memoranduin.'s' 6-month period from December 7, 1968, ;to June, 7, l%9, at least 23 of the newly hired ,"permanent replacements" left Respondent's employ. To replace these 23' Respondent hired L new man (McIntosh) on December 7 and ` reinstated 10 strikers to'` their' former positions even though this required displacement of some `of ; the "peranent replacements." These "reinstated`'strikers re- turned with their former seniority andother rights ^ and privileges including vacations. Thus as of June 7, 1969, there were 13 more vacant jobs in the plant-or a total of 39 vacancies- figured at the - prestlike level of ° employment whereas there was a` total of 36'nonreinstated strikers who had applied for reinstatement?' - As June`7, 1969,` approached, many of the nonreinstated strikers renewed their unconditional-request for -reinstate- ment through the Christy letters` Beginning soon, after June 7,1969, with more permanent replacements leaving Respondent's employ, Respondent began hiring in earnest, ` Respondent hired 30 individuals prior toe the and of July. Of thesb, 23,wer'e new employees and 7 were strikers. However the seven strikers were hired as "new employees" stripped of their accumulated seniority and other rights and privileges., The discrimination against the strikers here is patent-unless the strikers' rights to reinstatement expired on , June 7 as provided in the memorandum. From the multitudinous exhibits- in evidence` Isere, the following emerges as to employment: Hire, Departures New. Strikers 36 8 23 1 10 23• , 7 applications filed, either originally and by the Christy letters, were not "unconditional." As the original applications for reinstatement were drafted and, prepared` by Respondent, Respondent= must be deemed in be estopped from making this claim. , LAHER SPRING & ELECTRIC CAR CORP. This score card proves that there were jobs for all the strikers interested-in reinstatement. There were 26 unfilled jobs by December 7.. There` were 23 "permanent replace- ments" who quit Respondent's employ by June 7, 1969, of whom only, 10,were replaced by strikers. Hence there were at least 39 unfilled positions as of June 7,, 1969. Eighteen strikers of the 58 had been reinstated while 4 others had ceased to be "employees" of, Respondent as they had in early January 11969 -secured regular and substantially equivalent employment elsewhere. This leaves a total of 36 nonreinstated-strikers and 39, unfilled jobs. The Supreme Court held inthe Fleetwoodand other cases that "Unless the employer who refuses to reinstate strikers can show that, his, action was, due to `legitimate and substantial business justifications,' he is-guilty of an unfair labor practice." 389 U.S. -at 378., The Pioneer Flour case, supra, holds,thisto be the'law s Respondent here attempted to show some" legitimate and substantial businessjustifica- tions" for its failure or refusal to reinstate these economic strikers. But none was credible' Laher testified that during' the 6-month„period 'there-Twas an unexplained ,increase in productivity- per man at` the plant. ' But the grafts he prepared in order to buttress this assertion proved that the amount of production, was in fact attributable to anundue amount of overtime rather than i&"unexplained increase in productivity, a act corroborated by`the overtime records in evidence. Laker also testified that no more employees were required''at the pant, cause Respondent had lost no orders during' the strike" and was able to fill all its` orders. This oral testimony was flatly contradicted°by Respondent counsels` written explanation'-of Respondent's position to the legional 'Office in which "he asserted that there had been a loss of -orders ' due ` to poor production during the period. In the,light of this contradiction and of Respon- dent's failure to' produce-^'any "company records to corroborate or reconcile these divergent positions, I can credit none of Respondent's allegedbusiness or economic- explanations and must infer that such records, if produced, would have been'? unfavorable to, Respondent's position. Laher's, attempted explanation that Respondent kept no records of orders, filled or unfilled, or profit and loss statements such as the ordinarybusiness firm today almost universally maintains-is so .incredible as to be unworthy of belief. Hence on this proffered ^ evidence as to legitimate and substantial business justifications, I can only find that Respondent has proved no ;legitimate or substantial business justifications for its refusal to reinstate the experienced economic strikers. Thus the- only defense^-Respondent has is that by the terms of the memorandum the xstrikers' rights-to- reinstate- ment- expired- on June 7, 1969, so that thereafter Respon- dent;was free to hire whom it chose. This defense is a matter of first instance.; Counsel, cite no casesdirectly on point and my research has disclosed none. All the-other points raised by Respondent have been decided adversely to Respon- dent's position in the Pioneer Flour case and cases there cited. 475 In its brief Respondent equates the strikers ' right to reinstatement to the right to strike or to seniority rights-and argues" from that that ' as the right to strike and 'seniority rights can be bargained away bythe bargaining representa- tive, so then can the right, to reinstatement, I find the argument unconvincing. The right to reinstatement is not equatable with either the right to strike or with seniority rights. - An economic striker's,right to reinstatement is statutory, stemming from Section 2(3) of the Act: It is a right granted for the public good to the individual strikers following-any current labor dispute and an unconditional request for reinstatement. A public statutoryright cannot be waived.or bargained away by private parties. That can be done only by amendment of the statute. I recognize ,that for a number of years a number of Board and court decisions misconstrued Section>2(3) of theAct by incorrectly engrafting thereon the limitation that once an economic striker was "permanently replaced" during a labor, dispute,,.he thereby lost his status as .an "employee" permanently. That error has now been corrected. This correctionalso eliminates Respondent's defense here. The Act does not create the - right to .strike but merely protects the use of that -long recognized technique by a union ; or, a group of employees- acting in concert. It is protection -granted to a, union Or. to-, a , , group of employees-not to the individualwk Such protection can be waived or. bargained away for a consideration or quid pro quo by the Union or the'group possessing that protection. Nor is seniority ,a statutory grant. Seniority isrecognized in the Act as a "term or _condition of employment" -and thus a bargainable issue. Seniority wines into existence only by a unilateral grant from the employer or , through a collective-bargaining contract. As a bargainable term or condition ,of employment, seniority can,alse be waived or bargained, away bythe employees' bargaining;representa- tive according to what they consider, to- be, their -best interests. It is difficult to see how the Union, or the bargaining representative here, could waive or bargain away the right to reinstatement -given,by,statute to, the individual, striker because the bargaining representative; as such, has, no, right,, title or interest in that right to „ rein statement created by Section 2(3)- of the Act. In fact Section 2(3)-is , one of the protections which the individual enjoys against both his employer,,and his union. Without Section 2(3) of the Act, the individual striker would be completely at the mercy,of, unscrupulous employers, and unions in situations `such as the present. With, Section 2(3) = the striker is entitled to reinstatement regardless of his employer or his bargaining representative. By limiting the rights to reinstatement to a 6-month period and, then not hiring any strikers nduring; that period, Respondent would, and did,- eliminate, as employees the strikers who were, of course,.known to be the prounion minded employees . This violates Section 8(a)(1).of the Act. Respondent's brief candidly acknowledges, "This con- s There is a lengthy and "erudite; but not-wholly complimentary, analysis of this phase of the law in 77 Yale L.J. 1269. 476 DECISIONS ' OF NNATIONAL LABOR RELATIONS BOARD tract [memorandum ] does limit rights the employees have under the Act and under Laidlaw and American Machinery." A public- right which can be limited by an agreement between,private, parties, can just as' easily ,be eliminated by, such private agreement. The old so-called Balleisen contract cases held that statutory 10 rights are not waived by, private contract even with , the individual employee. The same reasoning also appears in the recent case N.L.R.B: ,v. Mid- States Metal Products, Inc., 403 F.2d 702 (C.A. 5). However, even assuming the legality of this ' ,-,document entitled _"Memorandum as to, Reinstatement of Strikers," which- in the brief is referred to as a "contract,", the document must fall for two reasons, neither signatory party thereto had any .property .rights in the reinstatement rights supposedly ,affected by -such "contract" and there was no consideration ^or'quid pro, quo given - or received, for,,the' private "contract." To paraphrase ,the testimony of, one' striker witness, if we.wanted our jobs back, we hadto do it the:Respondent's way. Accordingly 'I must,-and hereby do, find that the 6-month limitation in' the memorandum relied-on by ,Respondent, here to be illegal and null and-'void as contrarytopublic policy, E, As noted in the ,Yale Law J,eurnal article, the above cited, cases reach identical results -but appear `to differ somewhat as do- 'the, proof ,required therefor. In, Fleetwood; ' for instance, `-the Court notes, 'in,,addition to the absende of "substantial, and business justifications," the proof of the employer's 'animus,'' antiunion motivation, and' inherent damage' done to union membership whereas the Court in Laidlaw=appears&to,inferthese-latter elements from the lack of proof of subsstantial and business justifications. In -'the ' instant case, unlike ,^Fleetwoo4 there ist' no independent'proof of the above referred to elements prior to the appearance of the memorandum. However, these elements do appear, simultaneously with the memorandum. By December- 1968 `Respondent^had successfully broken the` strike. With the Union beaten, Respondent imposed a collective-bargaining'agreement of--longer duration' and lesser benefits than desired upon the Union , thus indicating to, all employees the futility of union membership and activity. 'Respondent-then in its memorandum, denigrated the`-Union by'requiriing individual applications for reinstate- ment1by ' the=individual strikers in lieu of a blanket request therefor - by the bargaining agent. Further ^ Respondent required these individual applications within what 'sub giiently proved 4b be an•unnecessarily, if not unreasonably, short period W5-working days. In'the case of Leon Cook, who- applied for reinstatement 1 day after the `specif ied 5- day -, period,, expired, Respondent refused to I accept his application on 'the stated , ground that to accept the application I day late Would "'breach" the memorandum, thereby successfully eliminating a known union officer and striker"' In,addition;-to the aforementioned obstacles placed in the way of",-reinstatement by' Respondent's , memorandum, Respondent drafted a form of application requiring the 10 Hopwood Returning Co., 4 NLRB 922. ii Of course at the hearing counsel candidly admitted that Respondent did not want to rehire Cook as an employee giving as "one reason" therefor the fact that Cook had been a party to the Civil Rights case applicant to choose among four different options as to the type of reinstatement he desired . In the case of striker Carwyle- Respondent refused to reinstate- him,to the ; job then, being - offered- him., upon discoverythati on his application ,Carwyle had selected=the incorrect option to fit thejob, ;being offered. The -profferedjob,was,then given to-, another. In- short the, memorandum,-and the application forms -drafted by Respondent=actually operated as -hin- drances to reinstatement of strikers -rather than as aids. , , On December 5,1968, with employment already down by- 26 vacant positions and' witli `Laker implying; but without makingn any definite " "commitment,"' that the 13 to 16 second-shift jobs would 'be reestablished within a matter of weeks, the 6-month- expi 'ration' 'of strikers' f rights"=`''to reinstatement 'appeared more theoretical and real . Actually the facts -here prove that, if'Respondent had chosen to fill the jobs becoming, vacant 'On and after December 7, all the strikers Would have been " reinstated within the 6-month limitation period of` the inenmorandum. For -'reasons unexplained' in 'this record;"Respondent did not choose t6' fill those vacant jobs and then -in aperiod of 7 weeks or less hired 30 iffdivi_duals, 23 of-whom Were new'hires and only7 were strikers. These seven "'strikers were hired -as new employees, and thus deprived of'their'seniority and 'other accumulated-rights and privileges. By,lu ing new employ- ees" after J,une 7- R'e'spondent could and, in effect,, did' nullify the 5,-cent across-the-board wage increase granted in the collective-bargaining ' agreement of Deceinber '7:; or instance, Harry,.IDoom,;ayleadegnan ,machinist prior o the, 11 " „ was hired afterJune' 7asa"new machinist, being strike informed that his formerleaderman 'inachinistrposition had ^x s been ab.olisheci.; Soboom returned towork, without the 10 cents per hour; paid the eade"rman classification and thus 5 cents an hour less, than;he was paidbefore the strike. Respondent's,. actions .iii-, delaying reinstatement: of strikers until 7 and th afterm June en rehiring some-strikers only as new-employees are, in the absence of any legitimate and, substantial -busiress,justification- as,bere, explicable, only as motivated-,by'Ea^,desire -,to,penalize the strikers for exercising `their rights, to-,strike.'and to; join„a union. Such action- would tendIto discourage, union membership . and activity, This uncontroverted-, history, particularly when coupled. with the lack of any explanation for Respondent's failure to, reinstate the strikers-as- required, -both by,law and Eby the, terms, of the memorandum,, requires the ;inference .to be drawn, as I here do,. thatRespondent's refusal to reinstate strikers for having engaged in union activities including the strike. Accordingly- I must,'and' hereby do, find;that Respon- dent's refusal or failure toreinstatethe strikers on and after December 7, 1968, to! the then ' vacant-jobs and to those - which subsequently''became vacant - amounted to discrimi- nation 'and was " intended to discourage union activities among its-employees in violation of =Section 8(axl)`and(3) of the Act against Respondent and others. Counsels careful phraseology at the hearing did not eliminate Cook's union membership and strike activities as being among Respondents other reasons- for not, desiring Cook as an employee. LAHER SPRING & ELECTRIC CAR CORP. 477 IV. THE EFFECT OF THE UNFAIR LABOR,PRACTICES UPON COMMERCE The activities of 'theRespondent set forth in section III, =above, occurring in connection with the Respondent's operations described in section, I, above,, have a close, intimate, and-substantial relationship to trade, traffic,,and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of`dommerce. V. ,THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, ' T shall recommend - that the Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act.- I have found that Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily failing and refusing ion and after December 7,`,1968',` to offer reinstatement to each 'of, the economic strikers listed on the attached Appendix A--,'to' his"'former job'' or one substantially equivalent thereto which each held on the date the strike began on September 23, -19,68, as such jobs either were or .,became vacant _ for one, reason or another on and after December 7, 1968. I have also found, as the exhibits in this case prove, ` that, `absent this diseriminatory failure or refusal to reinstate,-all such economic strikers having made unconditional requests for such reinstatement would have been reinstated on-r-before June 7;`,1969. I will, therefore, order, Respondent to offer each of the economic strikers immediate , and. full reinstatement to his former or substantially equivalent `position, without prejudice to ' his seniority or other rights and'^privileges, and make each whole-for any ,loss of earnings he inay,have suffered by reason of the,, discriminatory failure to -reinstate shim by payment to, each of a sum of money equal to that which each normally would have earned as wages from the date of the discriminatory failure to reinstate him to the date 'of Respondent's`offdr of reinstatement less the net earnings of each during-such period with backpay and interest thereon at the .rate of 6: percent per annum. As to those economic strikers hired,by^ Respondent as new employees on and after June 7, 19'69,1 will order Respondent to pay each, in addition to the backpay due,for the period prior to, his reemployment, z the difference between the wages at whichI he was reempioyed and that which he Would have earned at his former wage, plus the wage increases' agreed to in the collective-bargaining agreement-of December 7,1968;, with interest thereon at 6 percentper annum. I also order that all seniority and other rights and privileges enjoyed prior to he strike of September 23, 1968, be restored. Because of the variety", of the unfair labor practices engaged in by-=Respondent, I'-sense an opposition by Respondent to the policies of the Act in general, and-hence I do find it necessary to order Respondent to cease and desist from in any manner infringing upon the rights guaranteed its employees; in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case,Tmake the following CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The ' Union is a labor - organization -within the meaning of Section 2(5) of the Act. 3. By failing to reinstate those employees listed on the attached Appendix A when , vacancies arose after their unconditional request for reinstatement on December 7, 1968, and by reemploying some of them on and after June 7, 1969, as new employees without their accumulated seniority and other rights and privileges, Respondent has discriminated with respect to their hire,,tenure, terms and conditions of employment, thereby discouraging member- ship'in the Union, and has engaged"in`and lis engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By the foregoing, conduct Respondent.has interfered ,with, 'restrained,-and coerced ;its employees in the exercise of their Section 7 rights and thereby has engaged inandis engaging, in unfair. labor practices- within the meaning of Section 8(a)(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. [Recommended Order Omitted from publication.] - APPENDIX A Billy Joe Kelly Glen L. Robbins Marvin Willard Thomas Thornton Billy George Dulin Hugh Allred Reeves W. Cobb Albert Dorrough Harold L. Hill Jollis Holland Troy Holmes Herbert Kidd William J. Kinds Carl Kirk Cecil L. Lindsey Percy Marzette Andrew= N. Matkins James T. McMillen Troy -Murray Kendrick Reed Ernest Sanders Wm. Armstrong Harry H. Doom Billy Wayne 'Medlin' Carl Harris Andrew Boatner James A.' Carwyle Leon Cook' Walter Davis Benjamin W. Hall John R. 'Hamblin Cleo Herring R. K. Hill, Julian McCarver Elmer E. Miller Leaunzia`Siddell Roy ' Tigner - Thomas R. Dillard Carl Sneed Edgar Cobb Bobby J.:Bailey Brown Bell, Jr. Robert Boyd Jimmy Dillard