Squibb-Beechnut, Inc.

DOBBS HOUSES, INC. Dobbs Houses, Inc., a Division of Squibb -Beechnut, Inc. and Ruby Cooper. Case 26-CA-3998 June 23, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 24, 1972, Trial Examiner A. Norman Somers issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Dobbs Houses, Inc., A Division of Squibb- Beechnut, Inc., Memphis, Tennessee, shall take the action set forth in the Trial Examiner's recommend- ed Order. I As we agree with the Trial Examiner that Respondent's actions with respect to Cooper were motivated by her role in the strike, we deem it unnecessary to consider and therefore have not considered the Trial Examiner's further conclusion that Respondent 's actions were destructive of her reinstatement rights as a returning striker TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. NORMAN SOMERS , Trial Examiner: This case was tried before me in Memphis, Tennessee, on August 17, 1971, on a complaint issued by the General Counsel on June 25, 1971, on a charge filed by Ruby Cooper on May 7, 1971. The complaint alleges that the Company violated Section 8(a)(3) and (1) of the Act by failing and refusing to recall i Highway and Local Motor Freight Local 667 affiliated with the International Brotherhood of Teamsters of America 2 During the hearing, the Company was represented by counsel other than counsel filing the brief The Company substituted counsel sometime after the close of the hearing 3 In its answer to the complaint in this proceeding, the Company contested jurisdiction under our Act, claiming that it was an employer within the jurisdiction of the Railway Labor Act On this basis also, the Company had disputed the Board's jurisdiction in a representation proceeding involving a unit consisting of the production and maintenance employees of the Company's catering service at the airport , and after Board certification of the Union on November 29, 1969, refused to bargain 897 Ruby Cooper after a layoff, because of her having supported and assisted the Union.' The General Counsel and the Company presented evidence and have filed briefs, which have been duly considered .2 On the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent Company is a Tennessee corporation engaged in the restaurant and airline catering business, at the Memphis International Airport. Its gross annual revenue is at least $500 ,000, and its annual purchase and receipt of materials from out of the State is at least $50,000. The Company is an employer engaged in commerce, and the Union (supra, fn. 1) is a labor organization , each within the meaning of the Act.3 11. THE ALLEGED UNFAIR LABOR PRACTICE A. Issue The question is whether on the facts as a whole, the Company's failure to recall Ruby Cooper after her layoff shortly after her reinstatement at the end of a strike was discriminatory and thus in violation of Section 8(a)(3) and (1) on either or both of two bases: (a) that the Company's subjective motive was discriminatory in that its failure to recall her was because of her participation in the strike; (b) in any event that the Company's bypassing her on various vacancies after the layoff inherently undermined her reinstatement rights as a returning striker , for which the Company failed to establish a legitimate and substantial business justification. B. The Facts 1. Cooper's employment history from the time she was hired until her layoff on December 4, 1970 a. Before the strike Ruby Cooper was hired in the Company's catering unit (supra, fn. 3) on November 22, 1969. Her work throughout her employment was "production utility work." This is work in the kitchen, which has a variety of functions. Until the strike (which began May 7, 1970, and ended in November of that year), Cooper's regular work was washing dishes . She also relieved in the salad , the dessert, and the cup drawer departments (when help was short either because of an absence or there was a rush order). collectively with the Union on behalf of these catering unit employees The Board accordingly found the Company thereby violated Sec. 8(a)(5) and (1) and issued an order directing the Company to bargain with the Union as representative of the employees in that unit On court review, a decree issued on June 4, 1971, upholding the Board 's jurisdiction over the Company and enforcing the bargaining order Dobbs Houses, Inc v N LR B, 443 F 2d 1066 (C A 6) The Company, in its answer in this proceeding, filed July 2, 1971, still contested the Board's jurisdiction , stating that that issue was "still pending" in the appellate courts . This presumably was because the time for further appellate steps by the Company had not yet expired. That time has expired, and so far as appears, the litigation by this time has ended 197 NLRB No. 147 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The quality of Cooper's performance at that work is not in dispute, and also not disputed is her praise as a "good worker" given by Don Hunter, who was then the assistant manager of the catering init.4 b. The strike On May 7, 1970, employees in the catering unit struck. Though this occurred while the Company was disputing the Union's certification as bargaining representative of these employees (supra, in. 3), the record is silent concerning the actual cause, and so it is assumed the strike was "economic." Engaging in the strike were 51 employees, constituting the bulk of the employees comprising the unit Cooper's actual participation in the strike had been like that of the other strikers She walked the picket line and participated in a "sit-in" at the airport restaurant. This last consisted of the strikers, in groups of about 20, ordering and paying for food, but remaining seated, thus leaving no room for customers. The Company, on August 5, filed suit in the state court for an injunction and damages ($50,000 compensatory and $150,000 punitive). The defendants were the Union, its president and two business agents. Also named as codefendants were Cooper and two other strikers, Idie Randolph and Earnestine Yarbrough. A joint stipulation in this proceeding states these three striking employees were named "as select individuals representing a class action against the members of [the Union] who were employed by Respondent." On August 14, a hearing was held in this suit, and the Court issued an injunction against all defendants (except the president). At that hearing, Cooper did not testify, nor was she mentioned in the testimony. However, two photographs were then put into evidence, illustrative of the sit-in, with Cooper appearing in both pictures alongside Business Agent Al Shaw, one of the other defendants. c. The strike settlement and Cooper's work on her return after the strike Under the settlement made with the Union in November 1970, the Company agreed to take back the strikers who would apply foi reinstatement. Forty-one strikers were thus reinstated, including Cooper. (Randolph and Yar- brough, the other two employee codefendants in the state court suit never returned-one not having applied for reinstatement and the other, though offered a job never having showed up.) As the Company's brief indicates (p. 2): Employees who had worked during the strike were placed on lay off status to make room for returning strikers. Some strike replacements stayed on, presuma- bly because the nonreturn of some of the strikers made work available for strike replacements. The record does not specify the number of strike replacements put on 4 Hunter expressed'that praise directly to her and also to Alean Rogers, an employee in the unit since 1957 Rogers before the strike, had been at the silver table, which is near to the cup drawer department Hunter had asked Rogers to show Cooper what was required on relief at that work, and after this Hunter expressed to Rogers his appreciation of Cooper as a "good worker " 5 Supervisor Burchett, on being shown by Cooper the layoff slip that Pat layoff status when the strike ended or those then retained. When Cooper resumed work after the strike, she was put to work at the silver table (along with two other employees, who were also reinstated strikers). During the 3 weeks until she was laid off, she worked 4 days a week at the silver table and I day a week, Friday, relieving at the belt. (This last consists of putting the food on the trays that are conveyed by the moving belt to the planes . See also infra, fn 9.) Here too there were no complaints concerning her work, and indeed according to Cooper's undenied testimo- ny, Mary Burchett, her immediate supervisor at both these functions, expressed a good opinion of her work.5 2. The layoff and the futile requests to be recalled On December 4, 3 weeks after her return, Manager Woodward informed Cooper that with no blame on her part he was laying her off along with eight other employees, because business was down and that she would be recalled when "business picked up" (as Cooper testified) or "as soon as possible" (as Woodward testified). Thereafter, the Company filled vacancies in a variety of functions at the kitchen, including the belt (March 24 and 29), salad department (April 1), silver table, the work she had done before the layoff (April 24 and again on May 13), temporary work relieving at dishwashing (July 14) and indeed full time at dishwashing (July 3). In March, Cooper, being unemployed and unsuccessful in efforts to obtain other employment, and having been informed by an employee that the Company was hiring, spoke on the telephone to Assistant Manager Levesque and later to Manager Woodward. In each instance, she was told there were no openings and was again assured that she would be informed when there were any. (Woodward admitted he had her telephone number.) In April, Cooper spoke twice again to Levesque In the first call she told him she heard there was a vacancy in the salad department, the work she had done on relief before the strike. He said the vacancy had been filled. In the second call, Cooper said she heard there was an opening in the silver table, on which she had worked since her return following the strike. Levesque informed her that that too was filled. Later in April, Cooper called again. She reached Frances Davis, the company secretary. Cooper said she heard the Company had been hiring and Davis replied all vacancies had been filled. Manager Woodward admitted that he was informed by Levesque and Davis of Cooper's calls. When Cooper filed her charge on May 7, the Company had filled four vacancies including the one at her fob at the silver table. After this a vacancy again arose in the silver table and the job was again filled by another. As stated, by July, vacancies occurred in her original "regular" work as dishwasher She was not recalled for this either. Woodward , manager of the catering service , had handed Cooper on December 4, expressed her regret that Cooper was let go and informed Cooper that she had asked Woodward to lay off another employee and retain Cooper Woodward in his testimony indicated Cooper had worked under close supervision by Burchett , and he received no complaints from her about Cooper's work DOBBS HOUSES, INC. C The Defense- The Company's Explanation During the General Counsel's presentation, it had been made to appear, from company counsel's suggestion on cross-examination of Cooper, that the Company was disputing the quality of her work after the strike. Company counsel suggested that Levesque had told her that she was "slow" in her work after the strike and she should return to her "regular" work Cooper categorically denied this, and company counsel then implied that Levesque would later be called to support this impugnment of her competence.6 This never happened. Levesque, who was present through- out the hearing (supra, fn. 6), was never called as a witness and, as stated, Manager Woodward, when he took the stand as the Company's only witness, admitted he had been satisfied with Cooper's performance, that there was no question concerning her capability, and that no supervisor, including Levesque, had complained about her work either before the strike or after her return. The suggestions of deficiencies in Cooper's performance and that she had been "permanently terminated" (supra, fn. 6) was the prelude to the inquiry concerning what the reason was for her not being recalled, because it was difficult to rule on the relevancy of that line of inquiry without some statement of the Company's reason for not having recalled her. The Company then stated the reason to be that Cooper had less experience than those with whom it filled the vacancies.7 Woodward testified that a consultant group, after analyzing "our operation," recommended in November 1970, that by the end of that year, December 31, 1970, the catering unit be cut back by 13 people. He testified accordingly that between November 1970 and December 31, 1970, he reduced the unit by 13 (which decreased its size to 66) and that Cooper was included in that layoff on 6 On cross-examination of Cooper Q Did Mr Levesque, the gentleman right here, ever call you into the office and tell you that your work was deficient, approximately two weeks before you were permanently terminated? (Emphasis added ) A No Q That didn't happen? A No Q If Mr Levesque gets on the witness stand and testifies under oath to that effect what is your response to that? Mr Berger [for General Counsel] Objection, Your Honor Tnal Examiner We will wait until that happens • Q (By Mr Brackhahn) Now, Mrs Cooper, do you know what a verbal warning is'? Trial Examiner Something uttered by word of mouth instead of in writing Did you ever get a warning of that kind'? The Witness No • Q (By Mr Brackhahn) Did Mr Levesque ever discuss your work after the strike, after you returned to work from the strike9 A No Q At no time9 A No Q Did he ever tell you to go back to your department where you were supposed to be A Go back to my department'? Q Yes, ma'am A No Q Did he ever tell you that your work was too slow and it had to be sped up to meet certain standards" 899 December 4, with the assurance that she and the others included in the layoff would be called back "as soon as possible." Woodward did not specify whether the 13 thus cut back included the previously mentioned strike replace- ments who had been put on layoff status when the strike ended, but the timing and sense of his explanation as a whole indicates, as is here inferred, that these strike replacements were part of the 13 cutbacks referred to by Woodward. He also did not specify whether or to what extent any reinstated strikers other than Cooper were included in the layoff. As the specific reason for laying off Cooper, Woodward testified that Cooper had the "least experience" of the three then at the silver table.8 Coleman, one of the two at the silver table that had been retained (supra, fn. 8), quit her job on April 23, thereby creating a vacancy at the silver table. How it was filled will appear as that item is reached in the sequence. The joint stipulation shows that from March 24 to July 14, 1970, the Company filled vacancies 17 times. In all instances except two, it was filled by nonstrikers. The two exceptions were Frances Evans and Ethel Pointer, who had been strikers but, when the strike ended, had not applied for reinstatement and had thus abandoned their employ- ment, so that they were not in the layoff status to which Woodward attributed the cutbacks made pursuant to the consultants' recommendations. Of the total of 17 who filled vacancies after the layoff, 4 were on men's jobs, thus leaving 13 vacancies after the layoff involving women's work. The first two vacancies after the layoff were filled on March 24 and 29, each for work on relief at the belt-which Cooper had also done on relief every Friday of the 3 weeks following her return after the strike. The one filled on March 24 went to Christine Howard and the other to Nancy Martz. Each had been hired during the strike and were among the strike replacements who had been put on A No Q Would you remember if he told it to you'? A Yes Q Would you remember if he had told you to go back to your department [t e dishwashing] and continue working'? A Yes, I would Q It's your testimony he did not? A He did not Q On no occasion'? A He did not Q Did he ever discuss the fact that you were slow in your work? A No A No 7 In the colloquy concerning this, Company counsel stated Respondent's position thus MR BRACKHAHN Well, from all the information that I know and all that I've been told, that in December a reduction of work force was required, certain employees had to be terminated because of lack of work, but that condition has not variated (sic) since At the present date they are still in a depressed status, from the point of time when a group of employees, I think around 15, were terminated There has been, understandably, a turnover where the area of turnover developed In the silverware, as I understand, it, employees with more experience, more work experience than Mrs Cooper, were assigned to thatjob and to that task, and that is the end of the story TRIAL EXAMINER That's your position MR BRACKHAHN That's all that I've been told about the matter 8 Lucie Coleman and Rose Gordy, the other two at the silver table, had not worked there before the strike but they had worked longer in the kitchen than Cooper 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff status to make room for the returning strikers. Woodward testified the belt calls for training, which they had acquired during the strike, that exceeded the training Cooper had acquired on relief after the strike. Woodward admitted that Cooper had been "responding to the training," and that there would have been little difficulty in her completing that training at the belt .9 On April 1, Woodward filled a vacancy at the salad function, which Cooper had done on relief before the strike. It went to Frances Evans, who, as stated, like Ethel Pointer, had not applied for reinstatement when the strike ended and had thus abandoned her employment. On April 23 occurred the vacancy in the silver table created by the quitting of Lucie Coleman, one of the other two at the silver table whose greater experience than Cooper Woodward had testified to be the reason why he had laid off Cooper. The Company filled that vacancy at the silver table twice-once on April 24 and again on May 13, and in each instance with one who had had no prior experience at the silver table. On April 24, Woodward filled it with Freddie Hyde. She was a strike replacement, who after the strike worked at the cup drawer until the end of November, a few days before Cooper was laid off, when the cup drawer function was eliminated. Woodward explained that he filled that silver table vacancy with Hyde on April 24 because he wanted her to replace Ida Dennis, an employee at the belt, who was soon to go on maternity leave. Woodward never explained why the anticipation of later using Hyde at the belt called for his now filling the vacancy at the silver table with Hyde, when, of the two, Cooper alone had the prior experience. Further, in view of the manner in which Woodward's credibility was under- mined in consequence of demonstrated contradictions, later discussed, there is a serious question of whether Woodward truly regarded Hyde as more qualified than Cooper for even the anticipated vacancy on the belt.fo When, 3 weeks later, Hyde did replace Dennis on the belt, thereby again creating the vacancy at the silver table, Woodward, on May 13, filled it this time with Ethel Pointer. As stated, she, like Evans, had not applied for reinstatement at the end of the strike, and having thus abandoned her employment, was not even on the layoff status created by the cutback. As Woodward admitted, 9 Cooper candidly admitted that work on the belt was a "little difficult," since the menus on the various airlines differ and the employee working at the belt must be sure to place the proper items on the trays as they move along the belt. She testified that in each of the three Fridays she was on relief, she had been observed by Mrs Alexander, an old experienced hand at the belt work , and that Mrs Alexander never indicated she had made an error. Also, as Woodward admitted , Mary Burchett, who was Cooper's supervisor in her work at the silver table and the belt, had at no time complained of Cooper's performance. Regarding the specifics of these first two vacancies as filled. Christine Howard Woodward testified that on March 24, he needed someone on the belt at the 4 o'clock shift and so he asked her husband, who was the second cook, whether his wife "was available " Woodward also testified that Christine Howard , as a strike replacement , worked part-time at the hot food section along with her husband and also, as he added later on cross-examination , "part-time on the belt " Nancy Martz . She was called in on March 29 to relieve on the belt twice a week in connection with the meals of the United Airlines The work on the belt, as described, is essentially the same for all the airlines and, as stated, Cooper had done that work on relief during the 3 weeks since the end of the strike The work given Martz was 2 days a week on relief at the belt for United Airlines meals and 3 days a week on desserts, which last was one of Pointer first applied for work only a week before May 13, or 6 months after she thus abandoned her employment, and after Cooper's first bypassing at the silver table. Woodward testified that he, in discussion with Levesque who participated with him in the hiring process, had decided to have Pointer fill this vacancy at the silver table instead of Cooper, because Pointer had had 5 years "experience at [the] kitchen." On cross-examination, Woodward admitted that Pointer had had no prior experience at the silver table and that her only prior experience had been at the bakery. Of the six hirings thereafter, four were in June and two in July. Of the four in June, Divonna Wade, hired June 11 as a vacation relief in the sandwich department, and Susie Briggs, hired June 26 in the cook, or hot food, section had been strike replacements, but Cooper had not worked at either of these functions. The other two, Velma Ealy and Flora Turner, were "school girls" hired June 17 for summertime employment to fill in for employees on vacations in functions not specified. Turner had been a strike replacement in 1970 and Ealy was hired "off the street" with no prior experience. No explanation was offered as to why this temporary employment was not first offered to Cooper, since she was looking for work and had been promised to be informed of any openings. Of the two hirings in July, each was on work in the dish room. This was the work at which, as Woodward had testified, Cooper was "more qualified," and concerning which she was ""more experienced." Woodward added: TRIAL EXAMINER: So far as the other jobs are concerned you had no complaint about her perform- ance of the other jobs either? THE WITNESS: No. THE WITNESS: But she's even better in the dish room? THE WITNESS: Yes, sir. That's where she spent most of her time. Woodward until then had been stressing that he had filled vacancies only at work in which the person hired had more "experience" than Cooper.ii This led to the following inquiry of Woodward and his response: Q. (By Mr. Berger) Do you contend that Rosie Ford is more qualified than Mrs. Cooper? the three functions Cooper had done on relief before the strike. is Woodward testified that he employed Hyde as a strike replacement in May 1970 at the cup drawer, and that that function was eliminated July 1970, after which Hyde worked at the belt. This did not square with Woodward's earlier testimony , previously mentioned, that the elimination of the cup drawer occurred in November in connection with the cutback initiated that month on the consultant group's recommendation . That it was in November and not July that the cup drawer function was eliminated and that Hyde worked at the cup drawer until her layoff, the end of November, appears further in the undenied testimony of Cooper on her recall to the stand by Respondent itself. Cooper testified that from the time she came back in November after the strike until about a few days before her layoff, when Hyde was laid off, Hyde worked only at the cup drawer. Respondent had thus been using Cooper on relief at the belt during this period in which Hyde was being used only at the cup drawer . Woodward's testimony that he thought that Hyde's experience at the belt, when she was a strike replacement, surpassed the experience Cooper acquired at that function as a reinstated sinker or that he truly regarded Hyde as more qualified at the belt than Cooper is thus of rather dubious reliability. ii See supra, In. 8. Respondent in its brief further states . "It is the Company's policy that in recalling employees seniority is not a controlling factor Employees with the most experience are first recalled " DOBBS HOUSES, INC. 901 A. Q. A. Q. A. Q. A. No. She's a new employee. New employee right off the street? Yes, sir. Whatjob did Rosie Ford go into? Dish room. Dish room? Yes. these others were qualified , as was Cooper. Secondly, it was the Company itself that "singled" out Cooper and two other strikers as codefendants in the state court suit. Respondent made them the focus or symbol of the strike action . Respondent claims , however, that these were "select individuals representative" of the strikers as a whole. But this did not erase the fact that the focus was now placed on Cooper, who, as stated , was the only one of the three codefendants who returned after the strike. So while there was no "independent" violation of Section s(a)(1) or even expressions of hostility toward the Union, the consistent manner in which Cooper was not recalled after the layoff renders her role in the strike the only thing that "gives rational content to an otherwise irrational act." See Birmingham Slag Div., 137 NLRB 615, 616, and cases cited. The preponderance of the evidence thus supports the General Counsel's position that the Company's actions were motivated by Cooper's role in the strike. Q. That is the job that Mrs. Cooper performed for seven months? A. Right. Q. Why was Rosie Ford hired off the street? A. No. I take it back. Rosie Ford, I've got her mixed up . Pardon me. I can't remember which department Rosie Ford is in at this moment . I thought she was in the dish room, but I will say not. Woodward later explained that the only new hiring at the dish room was that given on vacation relief to a boy, Vernell Ford. The undenied testimony of Alean Rogers in rebuttal shows that Woodward was right the first time before he recanted his testimony that Rosie Ford was hired at the dish room . Rogers, who since the end of the strike has worked in the ' dish room, testified that Rosie Ford has been a regular employee full time in the dish room, while Vernell Ford, her son, is a vacation relief . The Joint Stipulation shows Mrs. Ford was hired on July 3 and Vernell was hired July 14. D. Appraisal and Conclusion (1) The revelation concerning the filling of the vacancy in Cooper's "regular" job at the dish room by persons taken "off the street" totally unraveled the fabric of Respon- dent's defense . Respondent, to be sure, had not engaged in any "independent" violations of Section 8(a)(1) or even in antiunion utterances . However, the consistent bypassing of Cooper, reaching absurdity when she was bypassed twice at the silver table, when she alone, of the two persons successively taken had the experience, and finally by her being bypassed at the dish room vacancy in favor of total outsiders , are rationally explainable only on the basis of some hostility to Cooper. Indeed, Woodward's backtrack- ing of his earlier admission that the job at which he had hired Rosie Ford was in the dish room, when he realized that that admission upset the reliance he had been placing on greater experience as the explanation for the bypassing of Cooper, bears on Respondent's motivation . Common- sense would indicate , as does established doctrine, that this lack of candor "betrayed a purpose to hide the only thing it [the employer ] could have a motive to conceal-the true reason for its action." 12 Respondent contends that since Cooper's role did not differ from that of the other strikers, it could not have "singled" her out from the others . Respondent's point is vulnerable on two scores . First, there is no evidence that reinstated strikers, other than Cooper , were included in the layoffs to which Respondent attributed the cutbacks and, if there were, whether the vacancies were at jobs in which 12 Local No 2, Plumbers (Astrove Plumbing), 152 NLRB 1093 , 1104, enfd. as modified 360 F 2d 428 (C A 2), cf also Shattuck Denn Mining Corp v N.L R B , 362 F 2d 466, 470 (C A 9); Betts Baking Co v NLRB. 380 F 2d (2) The foregoing has been on the assumption, in accord with the Respondent's assertion, that the General Counsel bore the burden of establishing the Company's subjective antiunion motivation in not recalling Cooper. That assumption overlooks the fact that in the circumstances here presented , it was Respondent that had the burden of establishing a legitimate and substantial business justifica- tion for the bypassing of Cooper in favor of others in the filling of vacancies after the layoff. At the very time that Cooper and the other strikers were reinstated , on applica- tion, Respondent had already embarked on the cutback program in response to the consultants' recommendation. Had Cooper not been reinstated, she would have been entitled to fill the first ensuing vacancies within the principle of Fleetwood Trailer.13 Three employees who had been engaged in an economic strike were denied reinstate- ment, on application, because the reduction in the employer's business lessened the number of jobs now available for all the strikers . As newjobs opened up in the course of reaching the prestrike level, the employer bypassed these strikers in favor of others. In upholding the Board's conclusion that the Company had thereby discrim- inated against the bypassed strikers in violation of Section 8(a)(3) and ( 1), the Court said: If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discour- age employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (61 Stat . 140 and 151, 29 U.S.C. §§ 157 and 163). Under §§ 8(a)(1) and (3) (29 U.S.C. §§ 158 ( 1) and (3) it is an unfair labor practices to interfere with the exercise of these rights. Accordingly, 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 . NLRB v. Great Dane Trailers, 388 U .S. 26, 34 (1967). The burden of proving justification is on the employer. [Emphasis supplied.] 199, 205 (C A 10) 13 N L R B v Fleetwood Trailer Co, 389 U.S 375 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Applying that principle, the Board with court approval, has, beginning with the Laedlaw case, infra, fn. 14, held the same burden to rest on an employer who refused strikers' applications for reinstatement because during the strike their jobs had been permanently filled by strike replace- ments but when they applied for reinstatement, their prestrike jobs were again open because the permanent replacements had interveningly quit or been otherwise termmated.14 In the most recent application of the Laedlaw doctrine, the employer on court review, in Hartmann Luggage, supra, fn. 14, challenged that doctrine. The court there, stated: Respondent contends that we should distinguish between positions made available by expanding pro- duction and those made available by resignations. We do not consider the distinction to be of controlling significance. The case before us presents a related application of that doctrine underlying Laidlaw and Fleetwood. To have bypassed Cooper in favor of others, such as these strike replacements who had been put on layoff status to make room for returning strikers, or those entirely outside the layoff status, like Evans and Pointer who had abandoned their employment when the strike ended, or like Rosie and Vernell Ford, who were hired "off the street," undermined the very reinstatement to which Cooper, as a returning striker, was entitled. Had Cooper been laid off the day after her reinstatement arid thereafter been bypassed in favor of persons other than reinstated stnkers,, it would have been a pointed example of an illusory, or meaning- less, reinstatement. It is the same in kind, if not in degree, to have laid Cooper off 3 weeks after reinstatement and then bypassed her on ensuing vacancies on work for which she was qualified, in favor of persons outside her category. Respondent's action in thus bypassing Cooper, a reinstated striker, in favor of others, bears comparison also with the employer's action in N.L R B v Erie Resistor Corp., 373 U.S. 221, 228-229. There the employer, during a strike, had, as an inducement to persons to accept permanent employment during the strike, promised them "supersen- iority" over returning strikers in the event of future layoffs. The Court that held the employer's action in favoring strike replacements over strikers in respect to layoffs, or recall after layoff, was inherently destructive of a striker's reinstatement rights, which called for the employer's demonstrating a legitimate and substantial business justifi- cation for its action. Respondent's action here in favoring others over Cooper similarly undermined her rights as a reinstated striker. In the circumstances here presented, the Company's action in bypassing Cooper on vacancies occurring after a layoff that was part of a cutback program already in process when the strike ended was a dishonoring of its reinstatement obligation to Cooper mitigated by the 3 weeks work interveningly given her. The Company had no more fulfilled its reinstatement obligation to Cooper than if, in the example previously stated, it had laid her off the day after her reinstatement and from then on bypassed her 14 The Laidlaw Corp, 171 NLRB 1366, enfd 414 F 2d 99 (CA 7), cert denied 397 U S 920, American Machinery Corp v N LR B, 424 F 2d 1321 (C A 5), N L R B v Johnson Metal, Inc, 442 F 2d 1056 (C A 10), N LR B v Hartmann Luggage Co, 453 F 2d 178 (C A 6). 15 While the bypassing of Cooper on the jobs at the silver table and at on work for which she was qualified, in favor of others to whom it was not thus obligated. Respondent's action inherently undercut her reinstatement rights as a striking employee, who had timely applied for reinstatement, as did the action of the employers in the Erie Resistor, Fleetwood, and Laidlaw line of cases. Like them the Company here, too, was required to demonstrate a legitimate and substantial economic justification for its action if it was to overcome the conclusion that this inherent discouragement of union activity violated Section 8(a)(3) and (1) of the Act. The contradictory explanations for the failure to recall Cooper, if not, as it has been found they are, inherent evidence of a hostility to Cooper explainable here by her role in the strike, nevertheless can hardly be said to have met the requirements of a legitimate and "substantial" justification for its action within the doctrine of Erie, Fleetwood, and Laedlaw. (3) Thus, Respondent's conduct was discriminatory, in violation of Section 8(a)(3) and (1) on either or both scores. First, the inherent contradictions concerning them demon- strated a hostility to Cooper for whose only rational explanation in the record is her role in the strike. Secondly, bypassing her on jobs for which she was qualified in favor of persons other than in her category was destructive of her reinstatement rights as a returning striker, for which the Company failed to establish a legitimate and substantial business justification. Ill. THE REMEDY Respondent's failure and refusal to recall Cooper after a layoff, having been found to be discriminatory and therefore an unfair labor practice within the meaning of Section 8(a)(3) and (1), it will be recommended that Respondent cease and desist therefrom, and since this impaired Cooper's tenure in a matter which goes "to the very heart of the Act" (N.L.R B. v. Entwistle Mfg., 120 F.2d 532, 536 (C.A. 4)), the injunctive provision recommended will be in broad form. As affirmative action to effectuate the policies of the Act, it will be recommended that Respondent post appropriate notices and offer Ruby Cooper immediate and full reinstatement to her former position or, if that no longer exists or is otherwise unavailable for nondiscriminatory reason, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any resulting losses in pay under the formula of F. W. Woolworth Company, 90 NLRB 289, with interest as set forth in )sis Plumbing & Heating Co., 138 NLRB 716.15 On the findings above and on the whole record, I hereby state the following: the dish room are pointed demonstrations of the discriminatory action, the wrong had already begun on March 24, 1971, in the first instance in which Cooper was bypassed on work for which she was qualified. Backpay accordingly runs from that date DOBBS HOUSES, INC. 903 CONCLUSIONS OF LAW 1. By bypassing Ruby Cooper in the filling of vacancies after her layoff because of her membership and support of the Union, Respondent engaged and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) and (I) of the Act. 2. Said unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 16 its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 'r In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " is In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "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 " APPENDIX ORDER Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Discriminating against Ruby Cooper or any other employee in respect to layoff or recall after layoff because of such employee's membership or support of Highway and Local Motor Freight Local 667 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or otherwise discriminating against any such employee for such reason. (b) In any other manner interfering with, restraining, or coercing employees in respect to the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is hereby found will effectuate the policies of the Act. (a) Offer Ruby Cooper immediate and full reinstatement to her former position or, if that be unavailable, to any position substantially equivalent thereto, without prejudice to her seniority and other rights and privileges, and make her whole for any loss in pay sustained by reason of such discrimination, in the manner indicated in the section of this Decision entitled "The Remedy." (b) 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 determine and verify the extent of compliance with the terms of the Order. (c) Post at its premises copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 26, after being signed by Respondent's representative, shall be posted by Respondent 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.18 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had an opportunity to present evidence, it was found that the undersigned employer had violated Section 8(a)(3) and (1) of the National Labor Relations Act by discriminating against Ruby Cooper by failing to recall her after a layoff, because of her supporting and assisting Local and Motor Freight Local 667 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in a strike. Accordingly, in order to remedy the unfair labor practice and effectuate the policies of the National Labor Relations Act, we state the following. WE WILL NOT discourage membership or support of said Union, or any other labor organization, by discriminating against any employee in respect to layoff or recall after layoff because of membership or support of said Union or any other labor organization in a strike or other lawful concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights, as guaranteed by the National Labor Relations Act, to self-organization, to form, join or assist the above Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activity. WE WILL offer Ruby Cooper full and immediate reinstatement to her former position or, if that no longer exists, or is presently unavailable for legitimate reasons, to any substantially equivalent position, without prejudice to her seniority and other rights and privileges, and WE WILL make Ruby Cooper whole with interest for any pay she lost by reason of this failure to recall her. Any employee is free to join, support, or assist said Union or any other labor organization, or not to do so, without discrimination or fear of discrimination for that reason. DOBBS HOUSES, INC., A DIVISION OF SQUIBB- BEECHNUT, INC. (Employer) 904 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative) (Title) Should Ruby Cooper be serving in the Armed Forces of the United States, she will immediately be notified of her 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.