Bromine Division, Drug Research, Inc.

BROMINE DIVISION, DRUG RESEARCH Bromine Division, Drug Research, Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7-CA-13320 and 7-CA- 13487 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 27, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed cross-exceptions and a response to Respondent's exceptions. 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 brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).3 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 and hereby orders that the Respondent, Bromine Divi- sion, Drug Research, Inc., Adrian, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We agree that credited testimony establishes that striker Charles Moran abandoned his interest in employment and so advised Respondent. Therefore, we neither reach nor pass upon the Administrative Law Judge's analysis of the effect of communication with an employer in these circumstances under Trinity Valley' Iron and Steel Company, a Division of C C Griffin Manufacturing Companv, Inc., 158 NLRB 890 (1966). 3 See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case was heard at Adrian, Michigan, on February 28 and March I and 2, 1977. The complaint alleges several violations of Section 8(a)(1), (3), and (5) of the Act. A brief was received from Respondent on or about May 1, 1977; General Counsel has chosen not to file a brief in this case. Upon the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all material times, Respondent has maintained its principal office and place of business in Adrian, Michigan, and also maintains a plant in that city, at which it engages in the manufacture, sale, and distribution of swimming pool chemicals and related products. During a recent representative period, Respondent purchased and caused to be delivered to its Adrian place of business and plant goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Adrian directly from points located outside the State of Michigan. During the same period, Respondent sold and distributed from its Adrian place of business and plant products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from said plant and place of business directly to points located outside the State of Michigan. The answer admits, and I find, that Respondent has been, at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At the hearing, Respondent refused to stipulate that the Charging Party is a labor organization within the meaning of the Act. The testimony, however, establishes that it is, and I may unquestionably take judicial notice of the status of this Union. Accordingly, I find that International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Relevant Background In Bromine Division, Drug Research, Inc., 224 NLRB 1275, issued on June 18, 1976, the Board, modifying in part the Decision of Administrative Law Judge Wagman, held that Respondent had engaged in various violations of 'Certain errors in the transcript have been noted and are hereby corrected. 233 NLRB No. 45 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(l) and (3). It further ordered the opening and counting of five ballots which had been challenged in an election held among Respondent's production and mainte- nance employees on June 13, 1975. The revised tally showed that a majority of the employees in the unit had voted for the Union, and on July 1, 1976, the Regional Director for Region 7 issued a Certification of Representa- tive to the Union. B. The Alleged Discrimination Against Sterling and Burgess Two of the challenged ballots referred to above had been cast in the 1975 election by seasonal employees Catherine Sterling and Linda Burgess. In his Decision of February 23, 1976, Administrative Law Judge Wagman concluded, and the Board subsequently agreed, that the ballots cast by Sterling and Burgess should be counted. The complaint alleges that when Sterling, on or about March 8, 1976, and Burgess, on or about May 19, 1976, sought reemployment by Respondent for the 1976 season, Respondent refused to reemploy them "in order to preserve its position in a challenge proceeding, said employees and their voting eligibility being at issue in a prior and still pending Board case . . . and because their votes were important to the representative status of the Charging Party." Jackie McCarley, who was Respondent's manager of manufacturing services until July 23, 1976, when he was terminated, testified that he was in charge of maintaining the applications for employment made to Respondent. He said that Sterling filed an application in March 1976 and that he thereafter asked David Blohm, Respondent's production foreman, what kind of worker Sterling was. Blohm indicated that she was a good production worker and that he wanted to hire her. McCarley then went to see Laurene Paterson, Respondent's president, and asked if she would consider rehiring Sterling. Paterson told McCarley "in a raised voice, no, that we were not to hire her back. As to why, she said she is involved in litigation with the company." According to McCarley, when Burgess filed an applica- tion, probably in May, he asked Blohm if she should be reemployed, and Blohm replied that he thought "she is involved in a similar situation as Cathy Sterling." Blohm, however, wanted McCarley to check with Paterson. When he did so, "Again in a raised voice she said, no, under no circumstances are we to rehire Linda Burgess or that Catherine Sterling, because they were involved in litigation with the company." McCarley testified that at the time Sterling and Burgess applied for work, "jobs soon opened, within a day or two." He further testified that in May, production and the employee complement almost doubled. Sterling testified that after she filed her application, she called the plant and asked for a job. 2 She said that when she got through to Paterson, Paterson said that "the reason why she wouldn't give me my job back is because of us voting for the Union." Sterling had worn a union button at the plant prior to the election. 2 Sterling testified that she thought this occurred in March; McCarley testified that he believed she made the telephone call, which he answered and thereafter transferred to Paterson. on April 27. Burgess testified that around April 1976, she went to the plant and asked McCarley for an application. While there, she talked to Blohm, who said that "they were doing hiring, that he would see what he could do, and he put my application on top." In a call to Blohm a couple of weeks later, Blohm said that he had "done all he can do, and that he hasn't been able to get me in." During the preelection campaign, Burgess, and perhaps three other employees, wore a union button with the legend "UAW Organizer." Both Sterling and Burgess were eventually rehired by Respondent, Sterling perhaps in the first week of February 1977, and Burgess probably in December 1976. Blohm testified that he did not recall seeing any application from Sterling early in 1976 and did not recall any conversation about rehiring her at that time. However, lending some support to McCarley's testimony was Blohm's concession that he did not recall any prior occasion on which he asked for a specific person to be rehired "until just recently . . . when Cathy came back." He "wanted her and . . . asked for her," remembering from her previous employment that she was a good worker. Paterson testified that she had no discussion with McCarley about hiring Sterling in the spring of 1976, that she had no conversation with Sterling in March "that I recall," that she never told Sterling that she would not be rehired because of union activity, and that she never made such a statement to anyone else. She made similar denials with respect to Burgess. She testified that the first time she saw applications from Sterling and Burgess was on October 18, during an investigation by a Board field examiner. The foregoing testimonial statements by Blohm and Paterson appear to be in conflict with the position taken by Respondent's counsel at the hearing that Sterling "was not rehired because of her past employment record, which was to the effect that she had hired in and had left without any notice to us, because she did not have a babysitter. And her total employment record reflected various problems adjust- ing to working with her children and all." When subse- quently asked if she would have rehired Sterling, however, Paterson only said that she would have gone to Sterling's previous foreman and "asked his opinion and his recom- mendations." Although a diary kept by McCarley during part of his employment with Respondent discloses that he was considerably hostile to Paterson and to the rest of management, I found him to be an extremely impressive witness. I cannot say the same for Paterson. While I do believe that Sterling, contrary to Paterson's testimony, had a telephone conversation with Paterson, it seems difficult to accept her testimony that Paterson told her that she was being denied reemployment "because of us voting for the Union." I do not find this improbable on the ground, advanced by Respondent, that since the challenged ballots had not been opened at that time, Paterson could not have known of Sterling's predilection. Sterling had openly supported the Union, and Paterson might well have assumed that her ballot, challenged by Respondent, would have been cast in favor of the Union. However, I entertain some doubt as to whether Paterson would have been so 254 BROMINE DIVISION, DRUG RESEARCH candid in explaining to Sterling her reason for not rehiring her. McCarley's testimony, however, that Paterson said that Burgess and Sterling were not to be rehired "because they were involved in litigation with the company" makes more sense. While it is true that in the spring of 1976, a record had already been taken by Administrative Law Judge Wagman on the eligibility of Sterling and Burgess for inclusion in the unit and was then pending before the Board, the question of their eligibility centered on the expectancy of their recall to employment as seasonal employees. It would not be unthinkable for Paterson to have believed that if she were to rehire the two, the Union would seek to reopen the record in order to establish the probability of their expectation of recall by pointing out that they had indeed been rehired again in 1976. Refusing to hire applicants for the purpose of attempting to undermine their right to have their votes counted in an election clearly seems to constitute an unlawful restraint on the exercise of the franchise guaranteed by Section 7 of the Act. Accordingly, I find that by refusing to rehire Catherine Sterling and Linda Burgess in the spring of 1976 for proscribed reasons, Respondent violated Section 8(aX1) of the Act.3 C. The Refusal To Recognize the Union After the Union was certified on July I, Hoyt Emerson, international representative of the Union, made several attempts to meet with Respondent, but was unsuccessful. In its answer to the complaint, Respondent agrees that it has refused to bargain with the Union, stating that it "intends to test the validity of the certification of Charging Party as the bargaining representative and in order to do so must refuse to bargain with the Charging Party." In the proceeding before me, no attempt was made to demon- strate that the certification was irregular or altered by changed circumstances. I must, accordingly, accept its validity. I therefore find that by refusing to extend recognition to, and negotiate with, the Charging Party on and after July 1, 1976, Respondent violated Section 8(a)(5) and (1) of the Act. D. The Alleged Unfair Labor Practice Strike The complaint alleges that a strike which began on or about August 2, 1976, and ended on or about October I I, 1976, was an unfair labor practice strike. The testimony of Hoyt Emerson shows that prior to July 23, the employees were handbilled with an announcement of a meeting to be held on that date "for the purpose of taking an official strike vote." The reason given in the handbill for the meeting was that "the management has not agreed to sit down and bargain with the Union after certification as exclusive bargaining representative by the National Labor Relations Board." At the meeting on July 23, the employees, by secret ballot, voted "overwhelmingly" in favor of striking on August 2, if Respondent had not agreed to enter into negotiations by July 30. A letter to that effect was sent to Respondent on July 28. The answer 3 The precise timing of their application is not clear. Since the record indicates that the applications are on file, although they are not in evidence, I shall leave the matter for the compliance stage. admits the complaint allegation that on or about August 2, "certain employees of Respondent, employed in the unit of employees described above . . . ceased work concertedly and went out on strike." In view of the foregoing, I must obviously conclude that the strike which began on August 2, 1976, was caused and prolonged by Respondent's unlawful refusal to bargain with the Union, and was, accordingly, an unfair labor practice strike. E. The Events Immediately Preceding the Strike and Thereafter The principal substantive allegations of the complaint with respect to discrimination against employees are found in paragraphs 20 and 21 thereof. In paragraph 20, the complaint asserts that on or about October 11, 1976, the striking employees unconditionally applied for reinstate- ment to employment and ceased their strike, and, in paragraph 21, that since the foregoing date, Respondent has failed and refused to recall 17 named employees to their former positions, while employing replacement employees and individuals hired after cessation of the strike. Respondent's answer denies paragraph 20 and states, as to paragraph 21, "Respondent denies the allegations of paragraph 21, excepting insofar as Lillian Parr and Earl Stevens are concerned and as to said employees it will not recall or replace them because of illegal acts committed by them during the course of the strike including breaking and entering, malicious mischief, and assault on other employees." The complaint is silent, however, on one major event which is disclosed by the record and which may have impact on the status of 11 of the 17 persons named in the complaint. The record shows that on July 30, just before the strike commenced, 10 of the 17 employees named in the complaint were given "Termination Reports" indicating that they were being terminated as of that day (a Friday). These employees are shown on the termination forms as being in the category of "temporary seasonal," and the "Reason for Termination" shown is "Discharge." General Counsel did not make very much of this fact in his case-in- chief. He presented one witness who testified that she was hired on July 28 for a period described to her as "till the seasonal work was done," and was terminated on July 30. Another witness, Ronald Richmond, a so-called "perma- nent" employee who had worked for Respondent for 6 years, testified that on July 30, a majority of the employees were laid off, having been told by the foreman that it was the end of the high production season, and further gave some uncertain testimony as to the timing of the end of the production season in prior years. In Respondent's presen- tation of evidence, its counsel introduced the termination forms referred to above, and Respondent's president, Paterson, briefly referred in her testimony to the July 30 terminations, indicating that the seasonal employees were terminated on that day because the production season had come to an end, in the course of explaining a series of events surrounding and subsequent to the strike. 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By calling the two witnesses mentioned above, General Counsel seems to have been making some effort to suggest that the termination of the production season on July 30 was an abrupt response to the known plan of the Union to strike on August 2. Whether he intended by this presenta- tion to insert into the case a new allegation that the mass termination was an independent violation of the Act, or whether he was simply attempting to establish some additional color by which to judge Respondent, is not clear. As indicated above, General Counsel has not chosen to express his views on this rather complicated case by filing a brief. The fact is, however, that at no point in the case did General Counsel move to amend the complaint to include any allegation relating to the July 30 discharges. Any such amendment would, of course, effect a significant change in the complaint. It would mean, as to these 10 employees,4 that instead of having assertedly been denied reinstatement rights due to them as "unfair labor practice strikers" on or about October 11, when the Union made a group request for reinstatement, they instead had been assertedly dis- criminated against and were 8(a)(3) discriminatees as of July 30. Absent an express amendment of the complaint, I would not be prepared to conclude that such a major change in the nature of the complaint might be inferred unless I was convinced that the issue had been fully and consciously litigated at the hearing. Respondent, however, barely touched on the question of whether the July 30 seasonal closing in 1976 was in conformity with closing dates in prior years. Paterson testified that she had told the foremen 2 weeks prior to the closing that they were going to attempt to close on July 30, but Respondent did not bother to ask the foremen to substantiate this testimony, presumably relying on the absence of a complaint allegation relating to the closing. Although Richmond testified for the General Counsel that the season was "usually" over in the fall of every year-"it could be anywhere from September to December"- Administrative Law Judge Wagman found in the prior Board case that "the high production season usually begins in March and ends around August I," and that, in 1975, Burgess and Sterling had been terminated "on August 1, 1975, at the end of the year's high production season." At the present hearing, Burgess testified that "everyone" was released in 1975 on August 1, the beginning of "the slow season." On this uncertain state of the record, where there obviously could have been records and witnesses available to Respondent to attempt to demonstrate that there was nothing unusual about the closing on July 30, and in the absence of any effort to amend the complaint to allege a violation as of that date, I feel that I must accept the presumptive legitimacy of the terminations of the seasonal employees at that time. Given that constraint, I must further conclude that the 10 seasonal employees referred to above were validly dis- charged on July 30, before the strike began. And if they were validly discharged, I do not see how they could be 4 The record indicates, as to Kenneth Tilden, the I Ith seasonal employee named in the complaint, that he resigned on July 30. 1 Obermiller, Bivins. Miller. Lienhop. Jensen. Snyder. l)lle). Dalton, Brown, and Sugden. considered "employees" who would be entitled to enjoy the status of "unfair labor practice strikers." The record shows that, under Respondent's mode of operation, there is a core group of permanent full-time employees, most of whom work throughout the year, and there are seasonal employees who are hired for a produc- tion season running roughly from March until August (although there are apparently variations under which some of the seasonal employees may be retained for various lengths of time after the production season ends). Respondent does not recall seasonal employees as each new season comes on. While some are reemployed from season to season, or perhaps on an irregular seasonal basis, as indicated by the records of Sterling and Burgess, they are "always" required, as Burgess testified, "to make a new application." She further testified that each time she has been rehired in the past, she has had to return to the starting rate, even though she was earning more when she was last terminated. While, in a more informative case, it might be possible to construct a theory that particular seasonal employees had a sufficiently substantial expectan- cy of recall to qualify them as "employees" even though they were discharged on July 30, the record is barren of any such evidence as to the 10 seasonal employees who, as Respondent's records show, were discharged on July 30.5 As to those 10 employees, the evidence shows only that 3 were hired in March 1976, 3 were hired in May, and 4 were hired in June. The record is silent as to their prior experience, if any, with Respondent. Even if I were to equate the "employee" status of an individual for purposes of Section 8(aX3) with the analysis used to determine whether seasonal employees are entitled to vote in a representation election, a somewhat different matter, I could not make a finding as to these 10 employees similar to the one made by Administrative Law Judge Wagman in the earlier case in determining that Burgess and Sterling were entitled to vote in the election: "Here, I find from the respective employment histories of Burgess and Sterling that each had a reasonable expectation of obtaining substantial employment at the Company's plant from year to year, in the production and maintenance work force." Bromine Division, Drug Research, Inc., supra, 1286 (emphasis supplied). See also Knapp-Sherrill Company, 196 NLRB 1072, 1975 (1972). It is, furthermore, conceptually difficult to conceive of a validly discharged seasonal employee as being engaged in "withholding services" from an employer, which is the normal touchstone of the act of striking. I have found only a few relevant cases, a more recent one being The Colonial Press, Inc., 207 NLRB 673 (1973), where the Board held that lawfully discharged employees who thereafter joined a strike had a sufficient "nexus of employment" to entitle them to the rights accorded unfair labor practice strikers because the employer, throughout the strike, urged them to return to work and thereby "condoned" the misconduct for which they had been discharged.6 In the instant case, no such opportunity for "condonation" was present-there was nothing to con- 6 The Court of Appeals for the Eighth Circuit reversed, saying, "The mere offer of possible reemployment, without acceptance, could not have transformed the six dischargees into strikers and then. in turn, into unfair labor practice strikers entitled to reinstatement." 509 F.2d 850. 857. 256 BROMINE DIVISION, DRUG RESEARCH done. The fact pattern here seems to fit more aptly with Acrylic Optics Corporation, 222 NLRB 1105, 1106, 1107 (1976), which, in distinguishing Colonial Press, said that a striker lawfully discharged during a strike "lost her status as an 'employee,' " and the fact that she thereafter continued to participate in the strike did not "serve to restore her 'employee' status for purposes of asserting the right, as a striker, to reinstatement." It appears to me, therefore, that I may not find that the 11 previously named seasonal employees (including Tilden, who resigned on July 30) were denied reinstatement rights due to them as unfair labor practice strikers. F. The Procedural Issue Before discussing the further events of the strike, it is appropriate to consider a procedural question which arose during the hearing. As indicated above, paragraph 21 of the complaint states that Respondent has refused "to recall its below listed employees to their former or substantially equivalent positions of employment," and then lists 17 names. In the presentation of his case, General Counsel proved (as the answer admits) that an unidentified number of employees of Respondent went on strike on August 2, and further showed that on October 8, the Union sent a letter making an unconditional group offer to return to work effective Sunday, October I . Aside from the facts disclosed by employees Ronald Richmond and Lillian Parr about their own status in the course of testifying to other events, there was virtually no evidence presented by General Counsel that the other 15 individuals named in the complaint (1) had actually been employed by Respondent prior to the strike; (2) went out on strike; and (3) were not in fact reinstated upon request in October.7 As noted above, except with respect to employees Parr and Stevens, Respondent's answer to the complaint had generally denied these allegations of the complaint. When General Counsel rested, counsel for Respondent moved to dismiss the complaint as to all 17 of the individuals listed except Richmond and Parr "on the ground that there had been no evidence advanced whatever, either to show that we failed to recall them; that we had any former or substantially equivalent positions open; that we recalled other employees in their place; or that we continued to employ anybody in their place after the strike was over." In indicating my concern about the I Union Representative Hoyt Emerson did testify that James Jensen was "laid off' on July 21, when he and Jensen went to the plant, and that Larry Miller "was not at work that day." Parr also testified that Jensen had "workled I there before the strike." 8 In its brief, Respondent does. however, renew its motion to dismiss. It states that Respondent "should not be placed in the untenable position of either proceeding with proofs or face a possible judgment against it for failing to do so when the General Counsel has refused to proceed." That. however, was a matter ofjudgment for Respondent's counsel. The fact that I had denied the motion to dismiss does not mean that I would have overruled any objections by Respondent to questions by counsel for General Counsel which went beyond the scope of direct examination and thus filled in General Counsel's case. I denied the motion to dismiss, as I stated on the record, only because I considered that there was a possibility of ordering a prospective unfair labor practice strike remedy. even though I might be unable to issue an order specifically addressing the rights of the strikers about whom no evidence was adduced in General Counsel's case. sufficiency of the evidence presented, I noted that "I haven't heard any evidence that most of these employees were unfair labor practice strikers." I also pointed out that the parties had not even reached "a stipulation that the people named in this paragraph are employees or were employees at the time of the strike." Respondent's counsel then added that she did not think "there is any showing that any of these people went out on strike, that they wouldn't have worked during the strike, they would have been interested in further employment with the Company." In ruling on the motion to dismiss, I stated that even if there were a failure of proof in this matter, it nonetheless seemed possible that I might at least conclude that the strike had been an unfair labor practice strike and that the question of whether strikers had been afforded their appropriate reinstatement rights could be litigated in a subsequent compliance proceeding. I therefore denied the motion to dismiss. Counsel for General Counsel did not explain why he did not propose that he be allowed to supplement his case before Respondent began presenting its case in order to prove the relatively simple questions of fact as to whether any or all of the 15 employees had been employed prior to the strike, whether they failed to appear for work after the strike began, and whether or not they had been reinstated. However, when Respondent began presenting its wit- nesses, General Counsel, on cross-examination of those witnesses and clearly going beyond the scope of direct examination, adequately established these salient factors as to the employees, other than the discharged seasonal employees discussed above, with whom we will be hereafter concerned. Respondent did not object to this procedure. Respondent may have chosen not to do so because it agreed that indeed the matter could be litigated, as I had suggested, during a compliance proceeding, and concluded that it would be more practicable to dispose of the issues in this proceeding. At any rate, the record is now reasonably complete on these fundamental elements of proof, without objection by Respondent.8 It thus seems appropriate to proceed to judgment as to the remaining individuals, other than the seasonals, named in paragraph 21 of the complaint. In Respondent's case, testimony was offered by Respondent's witnesses as to the reasons why the employees were not reinstated on October II1, the effective date of the group request for reinstate- ment.9 Putting aside the 10 seasonal employees who were discharged on July 30, as discussed above; an I Ith 9 I note a potential problem in the Union's request for reinstatement. On October 8, the membership having voted to terminate the strike, Emerson sent Paterson the following letter: Please be advised that the U.A.W. and its Drug Research Inc. members hereby terminate the strike against the Company and make an unconditional offer to return to work effective 12:01 a.m. Sunday. October 11, 1976. Contact the undersigned or Ronald Richmond, Unit Chairman. to make immediate arrangements for the recall of employees. It could be argued that the foregoing constitutes only an offer to return by the Union's "members": the record contains no evidence as to which of the strikers were "members." The subsequent reference to the recall of "employees." however, seems to clarify the possible ambiguity. That Respondent had no misapprehension about the import of the letter is (Continued) 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seasonal employee, Tilden, who, as indicated, was hired on July 13 and assertedly quit on July 30; and Richmond and Parr, who testified as to their employment status and strike activity in General Counsel's case, there remain only four persons named in the complaint as having been denied reinstatement about whom there was no establishing evidence in General Counsel's case (Goodhue, Stevens, Moran, and Wilson). With respect to Stevens, as indicated above, Respondent's answer denied the allegations of paragraph 21 "excepting in so far as Lillian Parr and Earl Stevens are concerned and as to said employees it will not recall or replace them because of illegal acts committed by them during the course of the strike including breaking and entering, malicious mischief, and assault on other employ- ees." Thus, Respondent conceded in its answer that Stevens was an employee, had participated in the strike, and had not been recalled. In the course of Respondent's case, similar evidence was adduced as to Goodhue, Moran, and Wilson. I am thus satisfied that it would serve the ends of the Act, and not disserve due process, to reach conclusions as to the employees named. G. The Events Subsequent to August 2 Matters became confused at Respondent's plant follow- ing the July 30 shutdown. For some time, there had been the question of whether Respondent was violating its state permit because discharges from its chemical processing had been under investigation, and a letter in evidence sent to Respondent from the State of Michigan Department of Natural Resources, dated September 15, 1976, states that an administrative show-cause hearing had been held on August 2, the day the strike began, concerning Respon- dent's compliance with its "NPDES permit." The letter recites that Respondent's counsel had stated at the August 2 hearing that Respondent had temporarily ceased manu- facturing operations and "did not intend to resume manufacturing operations unless an acceptable remedy for your waste treatment problems could be developed." The letter also enclosed a proposed consent order. As far as this record allows one to judge, after July 30 there remained on Respondent's payroll 16 permanent employees.'10 Three of them did not go on strike, but remained working either for Paterson at her home or at the plant, along with some salaried employees and foremen. They apparently were finishing up production on a small amount of Respondent's product and were primarily engaged in cleaning and maintenance work. Of the other 13 permanent employees, only 6 are named in the complaint as not having been accorded proper reinstate- ment when the strike was abandoned on October 11. There was a fair amount of vandalism during the strike, including surreptitious entry, the cutting of telephone wires, the breaking of windows, etc. Because of fear of the mischief which could occur in a chemical plant, Respon- dent, on September 21, sent the following letter to the 16 permanent employees: indicated by the fact that its brief raises no question about the scope of the offer, nor did its explanation of the various reasons for failing to recall employees give any hint that it was misled by the wording of the offer. Due to extensive and continuing vandalism at our plant facilities, Drug Research is now forced to cease production. This letter will serve to notify you that your employment with Drug Research is terminated as of September 21, 1976. The record clearly shows, however, that there was almost no "production" going on in the plant prior to September 21. What the effect of this letter is thought by General Counsel to be is not disclosed on the record. The letter is not mentioned in the complaint. The record shows that Respondent had been negotiating with two other firms for some time with an eye to selling the plant. The letter, however, mentions as the reason for the "termination" only the vandalism which had been occurring. Although Paterson testified affirmatively in response to questions which used the word "discharge" in referring to the action effected by the letters, there is little else in the record to support the conclusion that such a personnel action was intended. Unlike the employees terminated on July 30, who had to sign a "Termination Report" which showed that they were "discharge[d ]" and which indicated that they had or had not returned company property, the 16 employees apparently went through no such formality. Furthermore, when the strike ended, Respondent treated these employees as if they were possessed of reinstatement rights, recalling a number of them and giving various reasons at the hearing as to why it thought it was not required to recall others. And, in discussing the conditions under which some of these employees returned subsequent- ly, Paterson testified, I would like to point out at this time we did not rehire these people in the ordinary sense of the word. These people came back at the pay scales then in effect. They did not lose any of their benefits. They did not lose their profit-sharing. They did not lose their Blue Cross. They lost nothing . ... They were not in fact rehired. Further, on September 27, there was a new development which seems to indicate that Respondent continued to regard these 16 employees as remaining in employment status. On that date Respondent sent a letter to I I of the 16 employees which read: This letter is to notify you that the closing of the Michigan Street plant will commence Wednesday, September 29, and you are expected to report to work at 7 a.m. this date for work assignment as a temporary employee for such period as may be required. Paterson explained this recall as follows: Apparently after September 21, she received a report from the police that there had been a threat to some tank cars of chemical which were on a track near the plant. She discussed the matter with the police and the fire department, and they were both quite concerned about the matter. A partially filled tank car near the plant contained chlorine, "a very i0 I base this figure on the fact that, as seen below, Respondent sent letters to 16 employees on September 21, notifying them that they were "terminated" as of that date. 258 BROMINE DIVISION, DRUG RESEARCH toxic gas." Respondent hired a guard with a police dog to secure the tank car. The police department furnished Respondent with a walkie-talkie and made periodic rounds. Paterson called the railroad to ask if it could move the car, but was told that a partially filled tank car would present a hazard. After consulting the chlorine supplier, she came to the conclusion that the best way to dispose of the chlorine, and therefore the potential threat to the town of Adrian, was to go into production and thereby use it up. Only 3 of the 1 I employees whom Respondent attempted to contact or did contact actually returned to work, and, apparently using salaried employees and supervisors, the group started producing Respondent's product. Respon- dent also advertised in a local paper for a few people, and on October 4 hired two new employees, one of whom quit on October 5 and the other of whom quit on October 14. On October 8, as stated above, the Union requested reinstatement of the strikers effective Sunday, October 11. Paterson testified that Respondent began to call the strikers on October 13. Although Respondent was still engaged in depleting the chlorine car, which task, Paterson testified, was not completed until November 10, the primary purpose for recalling the employees seemed to be that the interested purchasers of the plant had expressed a desire to view the plant in the actual production process; Paterson intended, therefore, "to get back to reasonable production so that these potential buyers could appraise our operation." Paterson testified that Respondent attempted to contact nine strikers; apparently six of them (Baker, Mohler, Morgan, Newsom, Marilyn Pratt, and Patricia Pratt) returned to work."1 The record is most unsatisfactory as to the level of the employee complement thereafter. Paterson testified, without offering documentation, that the work force stayed at or about 10 employees until November I1I, when the chlorine tank was emptied, and then became "very reduced." However, a document showing all hires between March 26, 1975, and December 1, 1976, was received in evidence as Administrative Law Judge's Exhibit 1.12 It reflects that 17 new employees were hired between October 21 and December 1, 7 of whom were still employed as of the latter date. It thus seems clear that there was a continuing need for regular production employees after the Union's offer of reinstatement, and I do not detect any argument to the contrary in Respondent's brief. Respondent's contentions as to why the six permanent employees named in the complaint were not recalled are discussed below. Lillian Parr: Paterson testified that Parr was not recalled because of an incident reported to her by Foreman Blohm during the course of the strike.' 3 Blohm testified that during the strike, he heard glass breaking in the women's restroom, and went to investigate. There he found broken " Of the other three (Wilson. Morbach. and Tripp), only Wilson is named in the complaint as having been unlawfully refused reinstatement. 12 This document was used by Respondent's counsel to refresh Paterson's recollection during redirect examination. I asked that it be received in evidence, since it appeared to be helpful in a case singularly devoid of the sort of documentary evidence it contains. Upon receipt of the exhibits file, I noted that the official reporter had indicated that the exhibit had been retained by Respondent's counsel after the heanng. On May 31. 1977, I requested counsel to forward the document to me, and received it shortly thereafter. The document has been inserted into the exhibits file. glass and rocks on the floor. He looked out the window and saw "Lillian with a slingshot winding up for another shot." Promptly, another rock came through the window; Blohm ducked and was not hit. Parr, asked on cross-examination by Respondent's counsel whether she knew anything 'about the windows that got broken," denied any knowl- edge beyond that bare fact. Although I disbelieved Blohm's testimony about Sterling, it seemed to me that he was telling the truth as to this episode, and I credit his testimony. Generally speaking, unfair labor practice strikers are entitled to reinstatement upon request, even if replace- ments for them have been obtained. Mastro Plastics Corp. et al. v. N.LRB., 350 U.S. 270, 278 (1956). While misconduct by unfair labor practice strikers may bar them from reinstatement, "where collective action is precipitated by an unfair labor practice, a finding that action is not protected under §7 does not, ipsofacto, preclude an order reinstating employees who have been discharged because of their participation in the unprotected activity." N.L R.B. v. Thayer Company and H. N. Thayer, 213 F.2d 748, 753 (C.A. 1, 1954). In evaluating the propriety of reinstatement in such circumstances, "the Board must consider both the seriousness of the employer's unlawful acts and the seriousness of the employees' misconduct in determining whether reinstatement would effectuate the policies of the Act." Local 833, UA W-AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America v. N.LR.B., 300 F.2d 699, 702-703 (C.A.D.C., 1962). As discussed above, the strike was provoked solely by the fact, as stated in the handbill announcing the July 23 meeting, that "the management has not agreed to sit down and bargain with the Union after certification." No reference was made to Respondent's prior unfair labor practices or to the treatment of Sterling and Burgess. Respondent has indicated that its purpose in refusing to bargain is to test in a court of appeals the Board's determination that the ballots of certain seasonal employ- ees were properly counted in the representation election. While I must conclude that the refusal to bargain technically constituted an unfair labor practice, it is difficult to think of that conduct as being "so blatant that [it] provoked employees to resort to unprotected action." Id. at 703. On the other hand, it seems to me that propelling a rock through a window of a restroom and thus deliberately shattering glass which foreseeably could have injured an occupant is serious misconduct. It became even more gross when Parr, presumably after seeing Blohm looking out of the window, threw a second rock. 4 In Ohio Power Company, 216 NLRB 348, 349-350, 354 (1975) (Alvarez), the Board refused to order reinstatement of an economic i3 Because Paterson advanced this single reason at the hearing and because Respondent's brief similarly states only that Parr "was not recalled because of an assault on Dave Blohm, a foreman, during the strike." I shall disregard the testimony of Vera Pinter., which I would credit, that she received a threatening telephone call during the strike from a voice she recognized as Parr's. Respondent does not argue that the call, even if it was not the basis for the refusal to reinstate, rendered Parr unfit for further service. 14 It is reasonable to infer that Parr threw the rocks on both occasions, although there is no eyewitness testimony that she threw the first one. (Continued) 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striker who, using a slingshot, broke a decorative glass panel on the exterior of a building. The demonstrably more perilous, and calculated, conduct of Parr merits no more generous treatment. I shall therefore recommend dismissal of the complaint allegation relating to Lillian Parr. Earl Stevens: Paterson testified that Stevens was not recalled because of "bad conduct" stemming from an occasion, around September 18 or 19, when he was arrested by the police at the plant. At the hearing, the parties stipulated that on November 24, Stevens pleaded guilty to two misdemeanors, "illegal entry without breaking" and "malicious destruction of personal property." Respon- dent's brief states, "As to Earl Stevens, he was in jail having pleaded guilty to malicious destruction of property of the corporation during the strike. The company feels that this is sufficiently serious misconduct not to recall him." It has been held that even in an unfair labor practice strike setting, "the burden of proving innocence of strike misconduct shifted to the general counsel upon proof of a good faith belief by the employer that such misconduct had occurred." Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B., 389 F.2d 553, 554 (C.A.D.C., 1968), enfg. 161 NLRB 887, 911 (1966); Capital Rubber & Specialty Co., Inc., 201 NLRB 715, 721 (1973). This should mean, however, that, in order for the burden to shift, the employer must prove a good-faith belief that the employee had engaged in conduct of sufficiently serious magnitude as would objectively disqualify him from the remedial rights ordinarily due him as an unfair labor practice striker. Respondent, however, failed to establish at the hearing the factual nature of the misconduct which it believed Stevens had engaged in. In the absence of such a showing, the burden should not shift. But even if it be said that the burden has shifted, the only burden upon the General Counsel is to prove Stevens innocent of conduct which could be said to disqualify him. While Respondent had shown that it believed Stevens guilty of two misdemeanors, that is inadequate. In Hendon & Company, Inc., 197 NLRB 813, 819 (1972), the Board held that proof that three strikers were "charged and convicted in a state court for assault and battery upon one Carter, presumably a nonstriking employee," was, in the absence of litigation of the incident at the hearing, insufficient to deprive the strikers of their reinstatement rights. Accord: N.L.R.B. v. Cambria Clay Products Co., 215 F.2d 48, 54 (C.A. 6, 1954). In the present case, I know nothing more of the Stevens convictions than the legal conclusions stated in the stipulation. It may be that the "illegal entry without breaking" and "malicious destruction of personal property" consisted of no more than walking through an open door for a few moments and, while there, breaking a pencil. In the absence of any detail and However, even assuming she did not, Blohm's direct testimony that she threw the second one clearly establishes reckless and dangerous misconduct on her part. 15 Respondent's reference in its brief to Stevens being "in jail" has no support in the record. The record, indeed, shows that Stevens was one of the employees who received the September 27 recall letter, even though he had been arrested prior thereto; Paterson explained that, at that point, his applying the principle of Hendon & Company, Inc., supra, I must conclude that the record does not support a finding that Stevens forfeited his right to reinstatement, and I so find.' 5 Diane Wilson: Paterson testified that she attempted to contact Wilson on October 13. The telephone listing given Respondent by Wilson turned out to be her mother's home. Wilson's mother said that Wilson, who had been ill, "was not a well person yet," and further said that Wilson was not there at the time, but that she would "get in touch with her." Paterson did not thereafter attempt to contact Wilson, but thought that, perhaps a month or two later, Wilson came in to place an application. When Wilson did appear, Paterson "questioned her health," "reviewed with her her absentee record," "discussed her work record with her floor lady," and "decided that we would keep her application on file if we needed her." Paterson explained that, after talking to Wilson's mother, she did not call Wilson again "because in the meantime, while her mother was trying to get in touch with her, we had already hired other people." Wilson was entitled to a prompt offer of reinstatement upon unconditional application. Mastro Plastics Corp. v. N.L.R.B., supra. In order to demonstrate compliance with the foregoing principle, an employer "must present proba- tive evidence showing a good-faith effort to communicate such an offer [of reinstatement] to the employee . . [and] must show that he has taken all measures reasonably available to him to make known to the striker that he is being invited to return to work." J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414, 1524 (1966). The Trial Examiner noted in that case that "the telephoning of the residence of a striker and leaving a message for him which is not shown to have been communicated to the striker" did not satisfy the employer's duty to communicate an offer of reinstatement. Plainly, the single telephone call to Wilson's mother did not suffice under the foregoing principle. Furthermore, it is obvious that Paterson was not in the least bit interested in making a "good-faith" effort to recall Wilson. She did not, after failing to hear from Wilson, take the Union up on its offer, in its October 8 letter, "to make immediate arrangements for the recall of employees" by contacting the Union to inquire as to Wilson's desires; in fact, by testifying that she made no further effort to call Wilson after speaking to her mother because "we had already hired other people," Paterson demonstrated that she believed Wilson was entitled to only one chance.16 In addition, when Wilson eventually came in, her health and absentee records were questioned, her work record discussed with her floor lady, and her application shelved, clearly inappropriate considerations and conduct with regard to an unfair labor practice striker. Indeed, whether there was any effort made at all by Respondent to recall Wilson is rendered doubtful by counsel's statement at the hearing culpability was based only on hearsay. Assuming that Stevens was later jailed, it presumably was after November 24. the date of his conviction, which impnsonment does not satisfactorily explain his failure to be recalled when the employees requested reinstatement in October. 16 Administrative Law Judge's Exh. I shows that two new employees were hired on October 12; one on October 14; one on October 15; and one on October 21. 260 BROMINE DIVISION, DRUG RESEARCH "that the reason she was not recalled was... because she was not a good employee." In the foregoing circumstances, the record clearly warrants a finding that Wilson was unlawfully denied the reinstatement to which she was entitled. Charles Moran. Paterson testified that one evening while the strike was in progress, Charles Moran drove up to her as she was leaving the plant and asked if she wanted a ride. She refused, but he told her not to be frightened, "[a]nd he said, Pat, don't be scared now. I have no part of this strike. I have another job and I am not interested in your company any more whatsoever." Paterson testified, with- out detail, that she later determined that Moran was "working at American Chain and Cable," and therefore did not attempt to call him when the strike ended. Moran did not testify, Paterson's account is not incredible, and I therefore credit her testimony on this issue. Board law, dealing primarily with the question whether strikers abandoned their jobs and were therefore ineligible to vote in elections, holds that the party opposing eligibility must show that the striker evidenced an intention to abandon his interest in the job. Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359 (1962). Where a striker has directly communicated to the employer his intention to quit, however, there must be some showing of reservation or qualification or continued interest before the Board will ignore that stated intention. Roylyn, Inc., 178 NLRB 197 (1969); Dalton Sheet Metal Company, Inc., 207 NLRB 188, 191-192 (1973); Winn-Dixie Atlanta, Inc., 207 NLRB 290, 299 (1973); P.B.R. Company, 216 NLRB 602, 603 (1975). Moran did not testify. Our sole information as to his interest in continued employment with Respondent is his statement to Paterson that he had "no part of this strike" and he "[had ] another job and I am not interested in your company any more whatsoever." There being nothing else in the record to indicate, contrary to these definitive statements, that Moran was not genuinely interested in permanently severing his employment with Respondent,'? I conclude that he did so, and further conclude that Respondent did not violate the Act by failing to offer reinstatement to Moran. Charles Goodhue. Paterson testified that Goodhue was not a production employee, that he was only "involved in shipping and receiving . . . back in the receiving depart- ment," and that there was no need for his services during the poststrike period of "very limited production," in which Respondent had not been making "one shipment a week." There is one other, "senior," employee in the shipping and receiving department; he presently performs the shipping and receiving functions, although he has other duties as well. Paterson testified that Goodhue will be recalled when the busy season begins. Goodhue did not testify. "[U]nless 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 '" Abandonment may be found even when the employee has not communicated to his employer an intention to resign, and has in fact sought reemployment. TrinitV alley Iron and Steel Company. A Division of C. Griffin Manufacturing Company. Inc. 158 NLRB 890, 903 (1966). 1, Defined by Paterson at one point as being "hired for year-round work." 19 At the hearing. Respondent's witness John Yoakum testified that perhaps 25 30 employees were working at the plant as of March 1977. labor practice. N.LR.B. v. Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden of proving justification is on the employer." N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967). At the hearing, Goodhue was treated as being in the category of a "permanent employee." 18 Paterson testified that, aside from the seasonal employees who are terminat- ed when the season ends, and the permanent employees who are retained, there is also a small group of permanent employees who are laid off at the end of the season, but kept on the payroll, listed as permanent employees until they are recalled. She did not testify that Goodhue fell into the latter category, which would have been a fact conclusive of the issue as to him. Her testimony, rather, is framed in such a way as to strongly suggest that, had it not been for the unprecedented "very limited production," he would have been working as usual. I shall therefore assume that would have been the case. In my opinion, Respondent has not come forward with sufficient evidence to shoulder its burden of establishing "legitimate and substantial business justifications" for refusing to recall unfair labor practice striker Goodhue. As noted, it appears that Goodhue would normally have been retained even through the slow winter season when, one would assume, there would hardly be sufficient shipping and receiving work available to keep him occupied fulltime. That the level of production, after October I 1 and until the time of the hearing in March 1976, was drastically lower than during a normal off-season is contraindicated by Paterson's testimony that she intended to get the plant "back to reasonable production so that these potential buyers could appraise our operation," as well as by other testimony discussed in connection with Richmond, infra, and by the hiring of new production employees in October and November.?9 At any rate, the Board has looked with disfavor in such situations upon the kind of "self-serving declaration" (Trinity Valley Iron and Steel Company, 158 NLRB 890, 896 (1966)) made by Paterson, when it would have been simple to present documentary evidence pertain- ing to the poststrike period, together with comparative records for similar periods in the past when Goodhue was retained.2 0 I conclude, accordingly, that Respondent, having failed to adequately establish "legitimate and substantial justifi- cations" for failing to recall Goodhue, must be adjudged in violation of Section 8(aX3) and (1) of the Act. 21 Ronald Richmond. Richmond, the unit bargaining com- mittee chairman, had worked for Respondent since 1971 as a year-round employee. He and employee Harold Opfer- man operated the three chemical reactors in which the batches of chemicals were processed. Richmond went on strike, Opferman did not, and, according to employee John Yoakum, when the decision to deplete the chlorine tank car was made during the strike, Opferman ran the reactor. 20 The testimony of Libey, who was performing shipping and receiving by himself without "difficulty" at the time of the heanng, is not helpful. 21 Moreover, the Board's decision in Fire Alert Company, 207 NLRB 885 (1973), would indicate that Goodhue should have been offered an opportunity to work at one of the production jobs which opened up. 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yoakum, who has worked for Respondent as a laborato- ry technician and quality control manager for 6 years, testified that, around the "first of December," Paterson asked him to learn how to operate the reactors. A stated purpose for doing so was to enable him to assist in compiling an operational manual for a prospective pur- chaser, which would employ technical language in which Yoakum was conversant. In order to do this, it was necessary for him to learn to run the reactor. However, Yoakum also testified, when asked why he was now operating the reactor, "Well, it was never necessary before the strike. In the course of the strike it became necessary to have another operator and since I was salaried personnel I was required to do whatever is required of me." The foregoing would indicate that Yoakum was tapped for the job not because of any novel need, but simply because "it became necessary to have another operator." In the course of running the reactor, Yoakum and other management officials have "redone the formula, the way we go about adding the various components so that it works better in the reactor." Paterson testified that when the potential purchaser asked that a manual be prepared, she could have acquired the data herself, but, because Yoakum was "competent" to do the job," and because he was not "particularly busy" at this time of the year, she assigned him to it. She also instructed Yoakum to attempt to solve a serious problem in the processing which Respondent had been experiencing for years and which Yoakum apparently cleared up, while discovering and also solving another problem along the way. Paterson further stated that as of October 13, the level of production was so low that Opferman alone was more than capable of making all the batches required. It seems probable that as of October 13, the date on which Respondent began calling employees back to work, there was not a desperate need for Richmond's services. There came a time, however, in the words of Yoakum, "when it became necessary to have another operator," probably around December I. While I can accept the contention that it was useful to the preparation of the operational manual that Yoakum learn how to operate the reactor, there is nothing in the record that persuades that it was necessary for Yoakum to routinely operate the reactor day after day in order to assist in writing a manual describing the process.22 It appears, rather, that Yoakum was pressed into service in a way that he would not normally have been used. Thus, while he testified that the winter season was normally "slack" and he had "time available," he also said that, after taking over the reactor, he continued to do his lab work "when I could get to it." The latter suggests that the idle time normally enjoyed by Yoakum was absorbed by using him in the capacity formerly occupied by Richmond. 23 And, although Richmond's presence may not have been imperative during the middle part of October, there is again missing any documentary evidence that that period 22 At the hearing in March. Yoakum testified that the information had been. by that time. compiled, and a management official was then editing it into a book. Richmond testified, without contradiction, that it took only 3 or 4 weeks for him to learn the reactor "inside and out." 23 Yoakum also appeared to testify that, with his guidance. Richmond could also have prepared the manual data. differed significantly from past slack times, when Rich- mond had been retained. Floor Lady Eilene Rickard testified that during the winter months, Respondent "usually cut down to one table," and Respondent's witness, James Libey, testified that during the 3 months preceding the March I hearing, Respondent had been producing "about the same" as in similar periods of preceding years. Paterson said the production complement from October 1976 on was "equivalent" to that of prior years. There is no evidence in the record that Richmond had ever been laid off, even at the depth of the winter season, in past years. On the basis of the evidence before me, I must conclude that Respondent has failed to carry its burden of proof that it had "legitimate and substantial" justifications for failing to recall Richmond. The fact that it could successfully absorb his job by using a salaried employee to perform that function is clearly no defense. Cf. N.LRB. v. Biscayne Television Corporation, 337 F.2d 267, 268 (C.A. 5, (1964)); Independent Sprinkler and Fire Protection Co., 220 NLRB 941,959 (1975).24 H. The Seasonal Employees Revisited Although I have concluded that the seasonal employees did not enjoy unfair labor practice striker status at the termination of the strike, I have given thought to the possibility of finding that they nonetheless were applicants for employment against whom Respondent unlawfully discriminated after the strike. It is clear that at least a few of the seasonals were, known to Respondent, actively picketing; and yet, as far as I can tell, Respondent made no attempt to hire them when the strike ended, employing instead what I suppose were new employees (although they, too, conceivably were former seasonals). I have concluded, however, that it would not be appropriate to make such a finding. The complaint, and, consistently, the proposed remedy contained therein,2 5 is framed so as to indicate that the theory of the case rests on all the named employees being deemed unfair labor practice strikers. Having established at the hearing that the seasonals had been discharged on July 30, Respondent may have chosen to rest on that ultimate defense to the claim of failure to reinstate unfair labor practice strikers, without being seriously concerned about having to defend against a charge of discrimination against the seasonals as applicants. In his argument on Respondent's motion to dismiss, the General Counsel made it quite clear that he was only asserting that the 17 employees were denied rights due them as "unfair labor practice strikers." Since I have found that the seasonals were validly discharged on July 30, there is a real question whether the October 8 union request for reinstatement may have been understood by Respondent as encompassing the seasonals. It is one thing to conclude that the request by "the U.A.W. and its Drug Research Inc. members" reasonably encom- passed all undischarged permanent employees; it is 24 That Respondent was able to solve a problem or two by virtue of Yoakum's replacement of Richmond was purely a dividend, and not a stated intention. of the substitution. 25 "(c) Offer immediate reemployment to the employees set forth in paragraph 21, above, to positions of employment which should have been accorded them on October 11, 1976. .... 262 BROMINE DIVISION, DRUG RESEARCH another to say that it also comprehended validly dis- charged seasonal employees. As noted, the traditional method of obtaining seasonal work is by individual application; Respondent does not expect seasonals back and makes no effort to recall them. Since Respondent ordinarily assumes that seasonals will express individual interest in working, its treatment of them here may have been colored by that expectation.26 If, as I have found, the 11 named seasonals were validly terminated prior to the strike on July 30, it would be logical to say that if they were nonetheless encompassed by the October 8 offer of services, so were all seasonals discharged by Respondent at any time prior to July 30 (which would undoubtedly comprehend hundreds of employees), since their status could not be theoretically distinguished.2 7 For these and other considerations, I have decided that it would be improper to further consider the possibility suggested. I. Miscellaneous Alleged Violations 1. The September threat Lillian Parr testified that on September 13, while she was doing picket duty, Paterson came up to her and told her she should stop making threats and cutting telephone wires. After denying the allegations, Parr asked Paterson if she was willing to negotiate. Some further conversation ensued, and Paterson then said "that the strike was illegal. It is not in-it is still in the high courts in Cincinnati, and we were trespassing. And if we didn't stop it, we were all going to the pokey." Paterson did not testify about this conversation, and although the allusion to the "high courts in Cincinnati" is obscure and the reference to trespassing may well have been pointed to some picketing which was done at Paterson's house, I credit Parr's testimony, since it is not inherently improbable and I have not had the benefit of an explanation or denial by Paterson. Telling Parr that the lawful strike was illegal and that the picketers were trespassing, which would land them in jail if they did not desist, implies that the employer would bring about that end, and thus constitutes an unlawful restraint upon the free exercise of Section 7 rights. 2. The September 27 letters As set out above, on September 27, Respondent sent letters to several employees stating: This letter is to notify you that the closing of the Michigan Street plant will commence Wednesday, September 29, and you are expected to report for work at 7 a.m. this date for work assignment as a temporary employee for such period as may be required. The complaint alleges that by this notification, Respondent "solicited its striking employees ... to return to work and to abandon the Charging Party." In Webb Wheel Division, American Steel & Pump Corp., 121 NLRB 1410, 1411, fn. 3. (1958), the Board noted that 26 It appears that many of the seasonals drift in and out of work, and often stay only brief periods of lime. 2T Why General Counsel did not include in his complaint Barbara Clark, "the individual noncoercive solicitation of the strikers to return to work" is not per se violative of the Act, but that violations had only been found where: (1) The solicitation constituted an integral part of a pattern of illegal opposition to the purposes of the Act as evidenced by the respondent's entire course of conduct; or (2) the solicitation was conducted under circumstances, and in a manner, reasonably calculated to undermine the strikers' collective-bargaining repre- sentative, and to demonstrate that the employer sought individual rather than collective bargaining. I note that the September 27 letters made no reference to the Union, disparaging or otherwise. Cf. Cantor Bros., Inc., 203 NLRB 774, 777-778 (1973). Taking together this and the prior case, there is disclosed "a pattern of illegal opposition to the purposes of the Act," but the solicitation was clearly not an "integral part" of that pattern. The fact was that, in order to dispose of the chlorine in the tank car, Respondent needed employees, and quickly; the most readily available were those on the picket line. Making this direct contact with them was plainly not an effort to wean them away from the Union, but rather to obtain their services for what was perceived to be work of some urgency. And it can scarcely be said that the solicitation was an effort to "demonstrate" that the employer sought individual rather than collective bargaining. Respondent intended no "demonstration" here, only the securing of employees; the employees presumably knew well enough that Respondent intended to test the certification and this communication did not add much intensity to that message already received. It does not appear to be the law that the noncoercive solicitation of strikers to return to work without change in their working conditions, when not violative of Section 8(a)(1), necessarily constitutes direct dealing in violation of Section 8(a)(5). Accordingly, I shall recommend dismissal of this allegation of the complaint. Coca-Cola Bottling Company of Louisville, 166 NLRB 134, 135 (1967). 3. The alleged unilateral increase in wages The complaint alleges that on or about October 15, Respondent unilaterally changed existing wage rates by granting certain employees a 10-percent pay increase retroactive to October 1, and by granting others retroactive increases of from 3 to 5 percent. The evidence of record is hardly as specific as the complaint, but there is substantial evidence that when employees returned to the plant after the strike, they received higher wages than when they had departed to go on strike. Respondent did not, of course, negotiate about the increases with the Union. The only apparent defense offered by Respondent was its attempt to elicit from General Counsel's witnesses that there had customarily been wage increases in the fall of the year. The principle that such discretionary increases are a mandatory subject of bargaining is as well-settled as any the only seasonal employee to testify of the group discharged on July 30, baffrnes me. 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could be. N.L.R.B, v. Katz, et al., 369 U.S. 736 (1962). Accordingly, I find that by unilaterally granting wage increases to employees in and after October 1976, Respon- dent violated Section 8(a)(5) and (1) of the Act. 4. The alleged threat to, and deprivation of benefits of, recalled strikers Clifford Baker, a permanent employee since 1971 who went on strike, testified that when Paterson recalled him to work in November, she told him he would have to start "as a new employee." He was required to fill out and sign an application, on which Paterson wrote that he "would have to deal with the new owners." Patricia Pratt, a permanent employee since 1969, gave some confused testimony, the gist of which seemed to be that when she was recalled after the strike, Paterson told her that "the business was in the process of being sold" and that she "would have to hire in as a new employee." Paterson testified that when she recalled the employees, she told them that Respondent was negotiating the sale cf the plant, "for their own information in case they did not want to come back, possibly had another job offer, that this was not necessarily a permanent job for them." She testified that the recalled employees "were not in fact rehired," that they did not lose any of their "benefits," "profit-sharing," or "Blue Cross"-"[t]hey lost nothing." The application in evidence made by Pratt shows that she filled out only a few lines of pertinent personal data at the top. The complaint alleges, as violative of both Section 8(a)(3) and 8(a)(1), that on or about November 5, Paterson "informed striking employees that they were regarded as newly-hired employees, thus removing all prior existing seniority and other accumulated benefits from them." In view of Paterson's uncontradicted testimony that the recalled strikers in fact "lost nothing," I see no basis for concluding that they were discriminated against in viola- tion of Section 8(a)(3). However, I credit the testimony of Baker, an impressive witness, that he was told he was being recalled as a "new employee," which clearly implied a loss of benefits and might well have been foreseen as causing him to reject the offer. I conclude that by making such a statement to a recalled striker, Respondent violated Section 8(a)(1). CONCLUSIONS OF LAW 1. Bromine Division, Drug Research, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by Respondent at its 1406 E. Michigan Street, Adrian, Michigan, plant; but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 4. By refusing on or about July 1, 1976, and at all times thereafter, to recognize and bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all the employees of Respondent in the aforesaid appropriate unit, and by unilaterally granting wage increases to employees in and after October 1976, Respondent violated Section 8(a)(5) and (1) of the Act. 5. The strike which began on August 2, 1976, in the aforesaid bargaining unit was in its inception, and continued thereafter to be, an unfair labor practice strike. 6. By refusing, in the spring of 1976, to reemploy Catherine Sterling and Linda Burgess, Respondent violated Section 8(a)(l) of the Act. 7. By refusing, since on or about October 12, 1976, to recall to employment Ronald Richmond, Charles Good- hue, Earl Stevens, and Diane Wilson, Respondent violated Section 8(a)(3) and (1) of the Act. 8. By telling an employee, on or about September 13, 1976, that the strike in which the employees were engaging was illegal and threatening employees with criminal prosecution if they persisted in striking, Respondent violated Section 8(a)(1) of the Act. 9. By informing reinstated striking employees, in October and November 1976, that they were to be regarded as newly hired, Respondent violated Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1 I. Respondent has committed no unfair labor prac- tices alleged in the complaint except as set out above. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent unlawfully refused to reemploy Catherine Sterling and Linda Burgess. Since the record shows that they had both been reinstated at the time of the hearing, I shall recommend that Respondent be required to make them whole for any loss of earnings they may have suffered by the reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned from the date of their applications for employment in the spring of 1976 to July 30, 1976, the date on which, I conclude, they would have been lawfully terminated, less their net earnings for such period. The backpay provided here shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent unlawfully failed and refused to restore unfair labor practice strikers Ronald Richmond, Charles Goodhue, Earl Stevens, and Diane 264 BROMINE DIVISION, DRUG RESEARCH Wilson, upon the Union's unconditional application effective October 12, 1976,28 I shall recommend that Respondent be required to offer them, if it has not already done so, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned from October 12, 1976, to the date of Respondent's offer of reinstatement, less their net earnings for such period.2 9 Backpay shall be computed as set out above. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 30 The Respondent, Bromine Division, Drug Research, Inc., Adrian, Michigan, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in or activity on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization, and interfering with the protected concerted activities of employees, by discriminat- ing against applicants for employment or by refusing to reinstate upon their unconditional application for rein- statement employees engaged in an unfair labor practice strike who are qualified for reinstatement, or by in any other manner discriminating against employees in regard to their hire and tenure of employment. (b) Refusing to bargain collectively concerning rates of pay, hours of employment, and other terms and conditions of employment with the aforesaid Union as the exclusive bargaining representative of the employees in the appropri- ate bargaining unit set out below: All full-time and regular part-time production and maintenance employees employed by the Respondent at its 1406 E. Michigan Street, Adrian, Michigan, plant; but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (c) Informing striking employees that a lawful strike is illegal and threatening them with criminal prosecution if they persist in striking. (d) Informing reinstated striking employees that they are to be regarded as newly hired. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Catherine Sterling and Linda Burgess whole for any loss of earnings they may have suffered by reason of Respondent's unlawful discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer Ronald Richmond, Charles Goodhue, Earl Stevens, and Diane Wilson, if it has not already done so, immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employ- ees hired as replacements, and make them whole for any loss of pay they may have suffered by reason of Respon- dent's refusal to reinstate them, by payment to each of them of a sum of money equal to what the employee would have earned from October 12, 1976, to the date of Respondent's offer of reinstatement, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security paynment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (e) Post at its Adrian, Michigan, plant copies of the attached notice marked "Appendix." 31 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly 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, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed except insofar as specific findings of violations based upon the allegations of the complaint have been made above. 28 Although the request for reinstatement stated that it was effective at "12:01 a.m. Sunday, October I . 1976." there is no reason to believe that the plant operated on Sundays. 23 The usual 5-day grace penod is not applicable in this situation. Drug Package Company., Inc., 228 NLRB 108. 114(1977). 30 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 its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 31 In the event the Board's Order is enforced by a Judgment of the 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." 265 DECISIONS OF 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 discourage membership in Internation- al Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW), or any other labor organization, or interfere with the protected concerted activities of employees, by refusing to hire applicants for employment, by refusing to reinstate upon unconditional application employees who have engaged in an unfair labor practice strike and who are qualified for reinstatement or in any other manner discriminate against employees in regard to their hire and tenure of employment. WE WILL NOT inform employees engaged in a lawful strike that the strike is illegal and that they will be criminally prosecuted if they persist in engaging in such a strike. WE WILL NOT inform reinstated striking employees that they are regarded as newly hired employees. The appropriate bargaining unit at our plant is: All full-time and regular part-time production and maintenance employees employed by Bro- mine Division, Drug Research, Inc., at its 1406 E. Michigan, Adrian, Michigan, plant; but exclud- ing all office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL, upon request, bargain with the above- named labor organization as the exclusive representa- tive of all employees in the aforesaid appropriate bargaining unit with respect to rates of pay, hours of employment, and other terms and conditions of employment of the employees included within the appropriate bargaining unit. WE WILL offer to Ronald Richmond, Charles Goodhue, Earl Stevens, and Diane Wilson immediate reinstatement to their former jobs, or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and WE WILL make each of them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them. WE WILL make Catherine Sterling and Linda Burgess whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. BROMINE DIVISION, DRUG RESEARCH, INC. 266