Best Industrial Uniform Supply Co., Inc.

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Best Industrial Uniform Supply Company, Inc., and Leonard Franklin, Individually and Laundry, Dry Cleaning and Dye House Workers, Local Union No. 218. Case 23-CA-4684 April 29, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 15, 1973, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, General Counsel and Respondent filed limited exceptions and supporting briefs, and Respondent filed an answering 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. Contrary to the Administrative Law Judge, we find that the record evidence is insufficient to enable us to reach a decision as to whether Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate Augusta Thomas, an unfair labor practice striker on whose behalf an uncondi- tional offer to return to work had been made. In a prior case involving the Respondent,3 from which the issues in the instant case arise, the Board ordered Respondent to offer immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all employees who went on strike on October 23, 1972, or thereafter. Thomas was among those employees who went on strike. Respondent contends that the fact that Thomas is under indictment for murder is a valid defense to the reinstatement order. The parties stipulated that Thomas has been indicted for murder in connection with the shooting death of one Birdie Mae Vaughn, a striking employee. Thomas has pleaded not guilty i The Administrative Law Judge found, inter aha, that Respondent violated Sec. 8(aX5) and (1) of the Act by refusing to comply with the Charging Party's request for data relating to the strikers' reinstatement rights, and bypassing the Charging Party by unilaterally contacting and reemploying some of the strikers. The Administrative Law Judge also found that Respondent did not violate Section 8(ax3) and (1) of the Act by refusing to reinstate Ester Franks , Arzettia Neal, Jedy Robertson, and Mary Ringo. In the absence of exceptions thereto, we adopt these findings pro forma. , We find merit in the General Counsel's exception to the Administrative and has been released on bond pending his trial. The circumstances of the incident were not introduced into evidence, and there was no testimony adduced concerning the incident. Since the record is devoid of any facts regarding the alleged crime, upon which we could base a decision, and since the parties have stipulated that the backpay due Thomas, if any, is to be calculated in the compliance stage of the earlier case, 23-CA-4600, we feel that the issue of Thomas' reinstatement can best be resolved as a part of compliance in Case 23-CA--4600. Accordingly, we shall dismiss the allegation of the complaint relating to Respondent's refusal to reinstate Augusta Thom- as, without prejudice to the issues being raised in the context of whether Respondent properly complied with the Board's Order in Case 23-CA-4600. We agree with the Administrative Law Judge that Respondent has legally reinstated Dorothy Macon within the terms of the Board's outstanding Order.4 However, we find it unnecessary to rely on his interpretation that the distinction between inspecting garments in the hanger department and handling towels in the towel room is one without a difference. We find that the evidence establishes that up until a short time prior to the commencement of the strike on October 23, 1972, Macon worked in the packing department. Macon testified that about 2 or 3 weeks prior to the strike, she was assigned the job of inspecting garments in the hanging department. Respondent contends that she worked as an inspec- tor at most for 3 days immediately prior to the strike, and that she was classified as a packing department employee.5 Further, Respondent proposed that Charles Franklin, its vice president, would testify that the work performed by Mrs. Macon in the hanging department was an experimental job estab- lished by him in contemplation of the installation of a new conveyor system in the hanging department, and that there was no position prior to that time, nor did such a position become finalized in the sense of being established until 6 to 8 weeks after the strike had begun. The General Counsel stipulated that Franklin would so testify. In view of the above, we conclude that the General Counsel has not estab- lished that Macon was employed as an inspector in the hanging department when the strike commenced. Therefore, Respondent's assignment of Macon to the Law Judge's failure to provide for the posting of a notice encompassing the violations of the Act found in his Decision. Accordingly, we shall order the posting of the usual notice. 3 Best Industrial Uniform Supply Company, Inc., 203 NLRB No. 186 (23-CA-4600). See In. 3, supra 5 The parties stipulated that during the strike the packing department operation was changed for business reasons to a one-person operation. General Counsel does not contend that the failure to return Macon to the packing department at the time the strike ended was improper. 210 NLRB No. 38 BEST INDUSTRIAL UNIFORM SUPPLY CO. towel room, when she returned to work on April 23, 1973, does not violate Section 8(a)(3) and (1) of the Act. 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 Administrative Law Judge, as modified below, and hereby orders that Respondent, Best Industrial Uniform Supply Company, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Delete paragraph 1(b) and reletter the remain- ing paragraphs accordingly. 2. Delete paragraph 2(a), reletter the existing paragraph 2(b) as 2(a), and insert the following as 2(b): (b) Post at its plant in Houston, Texas, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized 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 materi- al. 8 In the event that the Board's Order is enforced by a Judgment of United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT fail or refuse to reinstate unfair labor practice strikers within 5 days of their unconditional offer to return to work. WE WILL NOT fail or refuse to furnish data relating to strikers' reinstatement rights to your collective-bargaining representative. WE WILL NOT bypass your collective-bargaining representative by contacting and reemploying strikers unilaterally. 301 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. BEST INDUSTRIAL UNIFORM SUPPLY COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4812. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in this case was filed on February 22, 1973,1 and amended on March 13. The complaint was issued on April 6 and amended at the hearing . The hearing was held in Houston, Texas, on July 11 and 12 and September 11. (I closed the record on July 12 on the basis of an understanding with counsel that , in the event they were unable to settle issues posed by the complaint and answer but not yet litigated before me with respect to the reinstatement rights of a number of unfair labor practice strikers, I would grant the General Counsel's motion to reopen. As it turned out, settlement was reached as to all but one, Dorothy Macon. Consequently, the Macon issue was heard on September 11.) The complaint alleges violations by Respondents (in the interest of simplicity, I have hereinafter referred to the Respondent corporation as Respondent and the Respondent individual by his name) of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended. For the reasons set forth below, I find that Respondent did violate Section 8(aXl), (3), and (5) although Leonard Franklin did not . However, as to the principal issue actually litigated before me, the failure of Respondent to reinstate four strikers because they had engaged in picket line violence , I find for Respondent. Upon the entire record, including especially my observa- tion of the demeanor of the witnesses, and after due consideration of the excellent briefs filed by counsel for r All dates are between October 1972 and September 1973. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both the General Counsel and Respondents, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation, is engaged in Houston in the business of providing an industrial uniform supply service. During the year just prior to issuance of the complaint in this case it purchased goods and materials valued in excess of $50,000 from suppliers who received such goods directly from points outside the State of Texas. H. THE UNFAIR LABOR PRACTICES A. The Liability of Leonard Franklin Leonard Franklin is president of Respondent. He owns 50 percent of Respondent's stock. His wife owns the other half. He participates actively in the day-to-day operation of the plant. He testified as follows: Q. .... as the chief officer, you set the labor relations policy for the employees at the plant, is that right, sir? A. I work with it. I don't set the policy. I work with other officers of the Company. I imagine I make the final decision. Q. I beg your pardon? A. I would make the final decision. Q. All right. You have the final decision over labor relations policy for your company? A. That's right. At the time of the hearing Respondent had outstanding two loans from Houston Citizens Bank and Trust Compa- ny the notes for which Franklin had signed in his capacity as president of the corporation and cosigned as an individual. Sixteen other notes are signed by Franklin only in his capacity as president. On the basis of these facts, the General Counsel asserts that Leonard Franklin is Respon- dent's alter ego and, therefore, properly included as a party respondent. The General Counsel relies on Ogle Protection Service, Inc., and James L. Ogle, 149 NLRB 545. As the balance of this decision will, I hope , make clear, Leonard Franklin played no outstanding role in the events with which we are here concerned. I assume that the final decision not to reinstate Esther Franks, Arzettia Neal, Jedy Robertson, Mary Ringo, and Augusta Thomas, the issue this case is really all about, was made by him in his capacity as president of Respondent. But a key participant in each of those events was Charles Franklin, Respondent's vice president and Leonard Franklin's son. Charles, it is obvious, plays an important role in the decision making process, whether the problem is reinstatement of certain strikers or the more mundane questions which come up in the course of day-to-day operations of Respondent's plant. Moreover, there is no indication of any effort by Leonard Franklin to hide behind the corporate veil to escape the requirements of the law or of any reason why a remedial order directed against Respondent alone will not effectuate the purposes of the Act. Finally, the General Counsel did not attempt to include Leonard Franklin as a party respondent in Best Industrial Uniform Supply Company, Inc., 203 NLRB No. 186, despite the greater role he played in the events there involved . Therefore, I find that Leonard Franklin is not Respondent's alter ego in the sense in which that expression is used in Ogle Protection Service, supra, and has been improperly included as a party in this case. B. Background On October 23, virtually all of Respondent's 73 pro- duction and maintenance employees struck. The Charging Party filed a charge in Case 23-CA-4600 on November 30. Complaint was issued in that case on December 22, and hearing was held before Administrative Law Judge Joseph 1. Nachman on January 24 and 25 . On February 5 the Charging Party made an unconditional offer to return to work on behalf of all the employees. When Respondent failed to reinstate the strikers, the Charging Party filed the charge in this case. Judge Nachman issued his decision in Case 23-CA-4600 on March 9. He found that Respondent had violated Section 8(axl), (3), and (5) and that the strike which began on October 23, was an unfair labor practice strike. On June 4, after issuance of the complaint but before the hearing in this case, the Board issued a short- form adoption of Judge Nachman's decision and recom- mended Order in Best Industrial Uniform Supply Company, Inc., 203 NLRB No. 186. The Board denied Respondent's motion to reopen the record in Case 23-CA-4600 and consolidate it with this case. C. The Technical Violations The complaint alleges and the answer admits that Respondent failed and refused to reinstate 55 named strikers within 5 days from February 5. Since it is well settled that failure to reinstate unfair labor practice strikers within 5 days of their unconditional offer to return to work, notwithstanding the fact that the nature of the strike is still a matter of dispute at the time the 5-day period runs, I find Respondent thereby violated Section 8(aX3) and (1) of the Act. The complaint alleges and the answer admits that "since on or about February 5" (i.e., from the Charging Party's unconditional offer to return to work, to the issuance of the complaint on April 6; Respondent began reinstating strikers after April 6), Respondent failed and refused to comply with the Charging Party's request for data relating to the strikers' reinstatement rights and bypassed the Charging Party by unilaterally contacting and reemploying some of the strikers. Since, as the Board found in Case 23-CA-4600, the Charging Party has been the duly designated collective-bargaining representative of Respon- dent's production and maintenance employees since October 25, Respondent was under a duty to consult with it on and after February 5 concerning reinstatement of strikers. By failing to carry out that duty in the manner alleged in the complaint Respondent violated Section 8(a)(5) and (1) of the Act. D. The Litigated Allegations Sometime after Judge Nachman's decision on March 9 BEST INDUSTRIAL UNIFORM SUPPLY CO. 303 and before the Board's on June 4 Respondent began a good-faith attempt to comply with what ultimately became the Board's Order in Case 23-CA-4600. As a result, the reinstatement rights of 49 of the 55 strikers named as discriminatees in this case because Respondent failed to reinstate them within 5 days after February 5 have been handled as part of the compliance stage of that case. Four of the other six have been denied reinstatement by Respondent on the ground that they engaged in picket line violence. Whether they had, in fact, done so was the only issue as to which testimony was taken during the July phase of the hearing. The fifth, Augusta Thomas, has been denied reinstatement on the ground that he is under indictment for murder. The facts as to him were stipulated in July. The sixth, Dorothy Macon, was discharged for cause after being reemployed by Respondent, although not, the General Counsel contends, reinstated. The facts in her case, too, are essentially undisputed. As in Thomas' case, the issue posed is a legal one. I turn first to the four women who allegedly engaged in acts of violence. 1. Esther Franks, Arzettia Neal, Jedy Robertson, and Mary Ringo Esther Franks and Arzettia Neal have been denied reinstatement on the ground that they threw rocks at Charles Franklin, Respondent's vice president, on October 25, the third day of the strike. Jedy Robertson has been denied reinstatement on the ground that she dropped roofing tacks in a driveway at Respondent's plant while picketing during November. Mary Ringo has been denied reinstatement on the ground that she beat up a nonstriking employee, Anna Saucedo, during December. Each incident presents a sharp credibility conflict in the record. As to the rock-throwing incident, all witnesses agree that Franklin crossed the street in front of Respondent's plant in the late afternoon of October 25 to a point where some 40 to 50 strikers were gathered and warned them not to throw stones at automobiles leaving the plant parking lot. According to all of Respondent's numerous witnesses, he was stoned and chased back across the street, suffering an injury to his ear. According to all of the General Counsel's numerous witnesses, he returned to the plant unmolested. In their version, stones were never thrown, either before or after Franklin crossed the street. As to the roofing tacks incident, Charles and Leonard Franklin testified that they saw Jedy Robertson drop them. Mrs. Robertson, although admitting that she picketed at the driveway and in the costume described by the Franklin, denied that she dropped anything. As to the assault, the conflict in the testimony is total. Anna Saucedo and Rosemary Arredon- do, another nonstriking employee who was leaving the plant with Miss Saucedo at the time, described the beating. Stella Leal, a bilingual, nonstriking employee who inter- preted Miss Saucedo's Spanish to Plant Manager David Mark when Miss Saucedo, battered and bloody, returned to the plant after escaping from Mrs. Ringo, testified as to Miss Saucedo's appearance at that time and her account of what had happened to her. Miss Saucedo, Mrs. Leal, and Mark testified about an incident some 3 weeks later when Mark took Miss Saucedo out to the picket line to see if she could identify her assailant and Miss Saucedo picked out Mrs. Ringo. Mrs. Ringo testified that neither the assault nor the identification had ever taken place. In finding all four strikers guilty as charged, I have relied primarily on the fact that the strike which began on October 23 and ran until February 5 was marked by considerable violence, especially in its early days. Respon- dent continued in operation, hiring replacements within a day or two of October 23 and acquiring a full complement of employees within a week and a half. Rocks were frequently thrown at trucks and automobiles as they came to and left the plant. Bricks were thrown through the glass of at least two vehicles. Flat tires were common. One of Respondent's trucks was forced off the road by a striker who waved a pistol. Strikers followed and harassed strikebreakers. On one such occasion, the strikebreaker pulled a gun on the strikers and wound up in jail. Charles Franklin carried an unloaded shotgun in his car. He and his family were threatened by anonymous telephone calls. In such an atmosphere I find incredible the testimony of the strikers that they conducted themselves like ladies on these three occasions. Charles Franklin would not have crossed the street to confront a crowd of strikers if he had not been provoked. His description of what happened to him when he got there is consistent with what strikers did on other occasions. That they did not respond to his anger with anger of their own is inconceivable. Similarly, beating up a nonstriker who says she is going to call the police because strikers are rocking the car in which she is sitting is consistent with the situation that obviously prevailed at Respondent's plant. I have no doubt that Miss Saucedo was, in fact, beaten. There is no basis in the record for finding that she was mistaken when she picked out Mrs. Ringo as her assailant, either on the picket line or in the hearing room. In Jedy Robertson's case, I have relied on more than simply the fact that tacks or other sharp objects dropped in Respondent's driveways caused flat tires. The Franklins testified that their attention was called to Mrs. Robertson on the day in question by the fact that she was wearing an Army fatigue. jacket over one of Respondent's jumpsuits, thus they happened to be watching her when she dropped the tacks. Mrs. Robertson denied that the jumpsuit she had on was one of Respondent's. She described it as a garment she had borrowed from her husband. The jumpsuit she wore on the picket line is in evidence. So is a jumpsuit taken out of Respondent's stock. The two are identical. Because the strike at Respondent's plant was violent in nature and because General Counsel's Exhibit 7 and Respondent's Exhibit 9 are identical, I have discredited all of the General Counsel's witnesses and credited Respon- dent's where there are conflicts between them in making the following findings of fact: On the afternoon of the third day of the strike, strikers, including Esther Franks, threw stones at an automobile as it left the plant parking lot. Charles Franklin observed this. He crossed the street and approached a group of approximately 10 strikers who were lounging in the driveway of a building at which strikers congregated during the strike. Esther Franks and Arzettia Neal were in the forefront of this group. Franklin recognized Mrs. Franks and Mrs. Neal. Franklin said to the group, "If you 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue throwing rocks at vehicles going out of our parking lot we are going to have to try to have you thrown in jail." Mrs. Franks screamed, "You are on our side of the street now, you honky bastard." She called him various other names, including "honky mother-fucker." She yelled, "Hit me, honky, hit me." She picked up a stone and threw it at him. It hit him in the chest. As he turned away, she threw another stone which hit him on the left ear, cutting it and causing it, eventually, to swell and turn black and blue. Others in the group, including Mrs. Neal, began to throw stones at Franklin . At the same time other strikers in the area converged on the action , taking up the cry that Franklin was now on "their" side of the street and yelling, "That's Chuck, let's get him." Some 40 to 50 persons pursued Franklin and stoned him as he hurried back to the safety of Respondent's parking lot. They yelled, "We are not throwing rocks at you; these are not rocks we are throwing at you," and laughed. As Franklin started across the street some of the stones struck a passing car. It stopped and the driver, a large black man, got out. He belligerently asked Franklin who had hit his car with rocks. Franklin said that the stones thrown at him had hit the car. At the same time the pursuers attempted to goad the black man into attacking Franklin by yelling, "He did, he did." The man followed Franklin onto Respondent's parking lot but desisted, returned to his car, and drove away when several employees came to Franklin's assistance. Franklin telephoned his doctor about the injury to his ear. He did not, however, heed the doctor's instructions to come to his office so that the doctor could take a look at it. The next day, Franklin swore out a warrant for Mrs. Franks and Mrs. Neal. Mrs. Neal was arrested in the vicinity of Respondent's plant that day. Mrs. Franks, when she learned the police were also looking for her, turned herself in voluntarily. Both were released on bail. The case had not come to trial at the time of the hearing herein. Around the third week of the strike, at a time when flat tires were the particular harassment being suffered by Respondent, Jedy Robertson dropped roofing tacks while picketing at the middle of three entrances into the parking lot in front of Respondent's plant. This entrance is directly in front of the plant. Leonard and Charles Franklin observed her dropping tacks at this place and time because they were watching her through the window of the plant. They were watching her because Charles had noticed and called to his father's attention the fact that she was wearing one of Respondent's jumpsuits. One afternoon in December Anna Saucedo was leaving the plant around 4 o'clock at the end of the workday in the automobile of Rosemary Arredondo. The car stalled in the driveway at the west end of the parking lot in front of Respondent's plant. Three pickets, two women, including Mary Ringo, and one man, were in the vicinity of the driveway. They began rocking the car and scratching it with a rock. Miss Saucedo got out and began walking back to the plant. Mrs. Ringo asked her where she was going. Miss Saucedo, said, in Spanish, she was going to call the police. Mrs. Ringo grabbed her by the wrist, wrestled her to the ground, and punched and kicked her. Miss Saucedo suffered a black eye and a cut over the eye. She managed to escape Mrs. Ringo, fled into the plant, and, through interpreter Stella Leal, reported what had happened to her. At the time of this attack Miss Saucedo was able to describe but not name her assailant. David Mark, Respondent's plant manager, decided that the description fit Mrs. Ringo. Consequently, about 3 weeks later, when Mrs. Ringo was on the picket line, Mark took Miss Saucedo outside to see if she could identify Mrs. Ringo. He took Mrs. Leal along to act as interpreter. Miss Saucedo identified Mrs. Ringo as the woman who had beaten her up. Each of these incidents is, in my opinion, serious enough to disqualify the strikers involved from reinstatement. The fact that, presumably, other strikers than Mrs. Franks and Mrs. Neal were among the 40 or 50 persons in the mob that stoned Charles Franklin does not make them any less culpable. In any event, they were the only two he was able to identify. I find, therefore, that Respondent is justified in not reinstating Esther Franks, Arzettia Neal, Jedy Robert- son, and Mary Ringo to their former or substantially equivalent positions and has not, by failing and refusing to reinstate them, violated Section 8(aX3) and (1) of the Act. 2. Augusta Thomas The overwhelming majority of Respondent's production workers are women. Most of Respondent's male prod- uction workers did not strike. One of the few who did was Augusta Thomas. During the strike, but under circum- stances as to which the record is completely silent, Birdie Mae Vaughn, a female striker, was shot to death. Thomas is under indictment for her murder. The record does not reveal whether the indictment is for the crime of murder with malice or murder without malice, the only two degrees of homicide provided for under Texas law. Thomas has been released on bond pending trial. Respondent has refused to reinstate Thomas because, in the words of Charles Franklin: We have very few male employees in the plant. The majority of the people in the plant are women. He was one of the few male employees that we had. The fact that he has been charged with murder and it was a highly-publicized thing on the radio and on TV, and everyone talked about it at great length, I sincerely fear that if I were to bring him back in the plant there will be some considerable apprehension since this was a female and we have predominately female employees, this being one of the few males we have in the plant, since him being charged with murder, I feel the friction that would be brought about is unnecessary. There is no real precedent on this issue, as Respondent concedes in its brief. The only case it points to in support of its position is Loffland Brothers Company, 166 NLRB 195. There the fact that arson charges were pending against the alleged discriminatee was weighed in the context of a dispute over whether a discharge ostensibly for that reason was the respondent's real motive or a pretext . The case did not involve the reinstatement rights of an unfair labor practice striker. It is, therefore, clearly inapposite. Respondent's rationale for refusing to reinstate Thomas would carry more weight if there were some evidence in the record that the homicide was connected with or grew out BEST INDUSTRIAL UNIFORM SUPPLY CO. 305 of the strike in some way . There is no such evidence since the record consists solely of a stipulation as to Thomas' indictment and present freedom and Charles Franklin's testimony quoted just above. In that state of the record, I think there is no reasonable basis for Respondent's apprehension. Even though the principle that a man is presumed innocent until found guilty does not always apply in the real world to persons in high places, it is nonetheless still one of the foundations of our system of justice. I rely on it to find that Respondent is not justified, on this record, in refusing to reinstate Augusta Thomas because he is under indictment for murder. By so doing it has violated Section 8(a)(3) and (1) of the Act. 3. Dorothy Macon The Board's Order in Case 23-CA-4600 requires Respondent, "upon unconditional application," to "offer immediate, full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all employees who went on strike on October 23, 1972." The issue with respect to Dorothy Macon is whether she has been reinstated within the meaning of that Order. Mrs. Macon was one of three employees who packed uniforms in Respondent's packing department. A few days before the strike began she was moved to the hanger department and assigned the chore of inspecting garments for defects such as missing buttons before they left the plant. When she returned to work on April 23, she was assigned to the towel room. A replacement hired during the strike continued to perform the inspection job in the hanger department. In all other respects such as wages, fringe benefits, and supervision, the terms and conditions of Mrs. Macon's employment were the same after the strike as before. On June 6 she was discharged for cause. (Actually, she was "suspended indefinitely," but Respon- dent had no intention of recalling her. Respondent blamed her for a 1-hour shutdown in production when a machine on which she was working malfunctioned. Whether Mrs. Macon, in fact, was responsible is not an issue in this case.) Only after June 6 did she or the Charging Party take the position now advanced by the General Counsel that she was not legally reinstated because she was not put back on the inspector's job in the hanger department when she first returned to work. I find Respondent has legally reinstated Mrs. Macon within the terms of the Board's outstanding Order. I do not rely especially on the "or substantially equivalent posi- tions" wording of the Order. Even if it had been couched in the more conventional "former positions or, if those positions no longer exist, substantially equivalent posi- tions," I would still arrive at the same conclusion. In my opinion, Mrs. Macon was returned to her "former" position in the sense in which that adjective is used by the Board. This is not a case of a skilled mechanic assigned to sweeping floors or an employee with a cushy assignment near the radiator assigned to backbreaking chores in the plant's Siberia. All of the jobs in Respondent's plants as to which this record gives any insight are unskilled and menial in nature. The distinction between inspecting garments in the hanger department and handling towels in the towel room is one without a difference. Mrs. Macon and the Charging Party obviously considered this to be so since no issue as to her reinstatement arose until after her subsequent discharge and, at least insofar as this record reveals, none has arisen as to the reinstatement of any of the other 49 strikers named in the complaint. Even if I am wrong in my interpretation of the Board's use of the word "former" I would still not recommend reinstatement for Mrs. Macon. She received all the perquisites of employment between April 23 and June 6. The only thing Respondent can be said to have denied her that she was entitled to was the privilege of working in the hanger department instead of the towel room. She was then discharged for cause. (The issue of whether Mrs. Macon's discharge violated Section 8(a)(3) and (1) is presently before the General Counsel on appeal from the Regional Director's refusal to issue complaint. Counsel for the General Counsel has carefully preserved in this record the right to contend in subsequent litigation that Mrs. Macon was discharged for a reason violative of the Act in the event a complaint should ultimately issue . My findings on this point are for purposes of this case only and are not intended to preclude the General Counsel in any way from following such a course .) The General Counsel argues that this fact is irrelevant because the course her employment would have followed had she been reinstated to the inspector's job is pure speculation. I think it is the most relevant fact in the situation because her discharge for cause is not speculation. It is the only hard fact available. Respondent has not condoned the act for which it discharged Mrs. Macon on June 6. There is no evidence Respondent had any ulterior motive directed against her when, as part of its effort to comply with what eventually became the Board's Order, it put her in the towel room rather than the hanger department. Therefore, it should not, I think, be penalized now by an order which would, in effect, wipe the slate clean for Mrs . Macon over its protest. (An order which now required Respondent to reinstate her to the inspector job but permitted it to discharge her immediately thereafter for the cause she gave in June would exalt form over reason.) I find, therefore, Respon- dent has not violated Section 8(aX3) and (1) of the Act ty failing to reinstate Dorothy Macon to her former or substantially equivalent position. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: Conclusions of Law 1. Best Industrial Uniform Supply Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laundry, Dry Cleaning and Dye House Workers, Local Union No . 218, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its plant located at 6410 Cavalcade Street, Houston, Texas, excluding all truckdri- vers, part-time employees, office clerical employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Since October 25, 1972, the Charging Party has been and is now the representative for the purpose of collective bargaining of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. By failing and refusing to reinstate unfair labor practice strikers within 5 days of their unconditional offer to return to work, Respondent has violated Section 8(aX3) and (1) of the Act. 6. By failing and refusing to reinstate Augusta Thomas, an unfair labor practice striker on whose behalf an unconditional offer to return to work had been made, on the ground that he is under indictment for murder, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By failing and refusing to comply with the Charging Party's request for data relating to strikers' reinstatement rights and by bypassing the Charging Party to contact and reemploy strikers unilaterally, Respondent has violated Section 8(a)(5) and (1) of the Act. 8. The allegations of the complaint that Respondent has violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate Esther Franks, Arzettia Neal, Jedy Robertson, Mary Ringo, and Dorothy Macon have not been sustained. 9. The allegation of the complaint that Leonard Franklin is the alter ego of Respondent and, therefore, properly included as a party respondent in this case has not been sustained. The Remedy If it were not for my findings with respect to Augusta Thomas, I would recommend dismissal of the complaint. There is already outstanding against Respondent a broad 8(a)(1), (3), and (5) Board order. A second one adds nothing to the situation as a practical matter and may serve to open wounds between Respondent and the Charging Party which were apparently healing at the time of the hearing. However, since an order must be issued in this case in order to remedy the wrong done Thomas, I will include a narrow recommendation that Respondent be ordered to cease and desist as well from the technical violations found. I will also include the usual make-whole provision with backpay and interest at 6 percent per annum computed as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I will not, however, recommend a bargaining order. The one outstanding is sufficient. Neither will I recommend posting of the usual notice. In view of Respondent's good-faith efforts to comply with the outstanding Board Order, a second notice would not effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER2 Best Industrial Uniform Supply Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to reinstate unfair labor practice strikers within 5 days of their unconditional offer to return to work. (b) Failing and refusing to reinstate unfair labor strikers on whose behalf an unconditional offer to return to work has been made on the ground that they are under indictment for crimes not related to its relationship with its employees. (c) Failing and refusing to furnish data relating to strikers' reinstatement rights to its employees' collective- bargaining representative. (d) Bypassing its employees' collective-bargaining repre- sentative by contacting and reemploying strikers unilater- ally. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Augusta Thomas immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any earnings he lost on and after February 10, 1973, plus interest, as a result of Respondent's failure to reinstate him. (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 analyze the amount of backpay due under the terms of this recommended Order. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges the commission of any unfair labor practices by Leonard Franklin individually and insofar as it alleges Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate Esther Franks, Arzettia Neal, Jedy Robertson, Mary Ringo, and Dorothy Macon. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes.