The Mead Corp.

F.C.F. PAPERS, INC. F.C.F. Papers, Inc., a Division of The Mead Corporation and Teamsters Local 118, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 3-CA-5191 June 18, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 28, 1973, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a brief in support thereof. 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 Administrative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith. The background facts show that on January 26, 1973,1 a meeting was held at the union hall attended by all but one of Respondent's warehouse employees. All those present signed union authorization cards, and the Union subsequently requested recognition. Richard Handel, Sr., a working foreman and supervisor, who was at the time believed by the Union to be an employee, testified that he told Respondent's president, Arthur Ennis, that he and most of the other men had signed authorization cards. On February 2, the union president told Richard DuRose, an attorney for Respondent, that all employees, with the exception of Daniel Hamil- ton, had signed cards. As discussed below, Respon- dent's president convened a meeting of warehouse employees, and Respondent's attorney questioned certain employees. On February 9, Respondent discharged Handel, Sr., correctly believing he was a supervisor. The employees met on February 10 and voted to strike. The strike, which commenced on February 12, was continuing at the time of the hearing. 1. The Administrative Law Judge found that Respondent violated Section 8(a)(1) of the Act by inviting and encouraging the employees to bargain directly with Respondent as a means of warding off the Union. On February 7 Respondent's president I All dates are 1973. s Compare Eugene Yokel! and Bernard Yokell, Co-partners, d/b/a Crescent Art Linen Co., and Betsy Ross Needlework, Inc, 158 NLRB 447, enfd. 387 F.2d 751 (C.A. 2, 1967). The Board found a violation where the 657 conducted a meeting among the employees and said that he saw there were problems and wanted to get them straightened out. He stated, "Well if anybody got any problems they can come up and see me. I think we can straighten them out." Handel, Sr., accused Ennis of not being interested in the employees' problems and stated there were not enough men, forklifts, or pallets. Ennis' offer to deal with problems was not conditioned, directly or impliedly, on rejection of the Union. There were no antiunion statements; Ennis said that he had nothing against unions. When Handel, Sr., raised certain apparently recurring problems, Ennis did not offer any solution. In this context, we find that the speech appears to be an attempt to check into normal work problems rather than an invitation to bargain in derogation of the Union.2 Accordingly, we shall dismiss this allegation of the complaint. 2. The Administrative Law Judge found, on the following facts, that Respondent unlawfully interro- gated employees. On February 8, Respondent's attorney, Edward Mitchell, individually summoned five unit employees into the office of Respondent's president. Mitchell told each that he had the right to engage in or refrain from union activities, that his participation was voluntary, that there would be no reprisals or benefits, that Respondent had been informed of the January 26 union meeting, and that the only information sought concerned the activities of Handel, Sr. Three employees signed statements, one agreed to sign a description of the "assurances given," and one refused to answer any questions. The employees were asked whether they were present at the union meeting, whether others were present, who passed out authorization cards, who were given cards, and who signed cards. One employee told Mitchell the names of all the employees who had attended the meeting. Although questioning employees as to who attend- ed a union meeting and passed out, received, and signed authorization cards would, under most cir- cumstances, constitute unlawful interrogation, in the context here we find that it would not serve the purposes of the Act to find that Respondent's interrogation violated the Act. The Respondent had a legitimate concern about supervisory participation in the Union. That the supervisory status of Handel, Sr., was not finally determined until March 13 does not detract from Respondent's concern. The employ- ees were given assurances against reprisal and were told that their participation was voluntary. The employer told employees, in a poll he was taking, if you vote for the union we are through but if you vote against the union we can talk about your problems. The employees voted against the union, and for an hour thereafter discussed working conditions with the employer 211 NLRB No. 67 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal of one employee to participate indicates that those statements were communicated and believed. In addition, Respondent had been previously in- formed by the Union that all employees but one had signed cards, and at the outset of the interrogations Mitchell told the employees that he knew about the union meeting. Thus, any information about union strength or employee participation in the Union obtained during the interrogations would be cumula- tive. As the employees were aware that this was so, the interrogations did not tend to be coercive. Accordingly, we shall dismiss this allegation of the complaint. 3. The Respondent excepts to the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act by litigating in bad faith the contention that it need not reinstate the strikers because they had engaged in a slowdown . To find that the assertion of an affirmative defense, albeit frivolous, violates the Act is without precedent, is unfounded, and would tend to unduly restrict the rights of parties at Board hearings to fully litigate all issues. Accordingly, we shall reverse this finding. 4. The Respondent contends that the employees were engaged in an unprotected strike to force Respondent to reemploy a supervisor, Handel, Sr. We do not agree. We find, for the reasons set forth by the Administrative Law Judge in his Decision, that the strike was a protected economic strike. Moreover, even if the sole purpose of the strike had been to secure the reemployment of Handel, Sr., the strike would be protected since Handel, Sr., had an identifiable direct impact on the employees' own job interests.3 Handel, Sr., was a low level supervisor who also worked alongside rank-and-file employees. Handel, Sr., and Respondent's president had fre- quent discussions concerning the condition of the warehouse area. At the meeting called by Respon- dent on February 7, Handel, Sr., complained about certain operational problems and said that Ennis, Respondent's president, was out to "screw" the men in the warehouse . Thus, Handel, Sr., was clearly identified by the warehouse employees as taking their position against top management. 5. The Administrative Law Judge properly found that an unconditional offer to return to work was made on behalf of all the economic strikers by the Union in a letter which Respondent received on March 9. Although apparently all the strikers had been permanently replaced at the time of the Union's unconditional offer, it is clear that a number of 3 Dobbs Houses, Inc., 135 NLRB 885, enforcement denied 325 F.2d 531 (C.A. 5, 1%3). Although believing the means selected by the employees "was not reasonably related to the ends sought to be achieved ," the court, nevertheless, recognized that the discharge of a supervisor could be within the employees' legitimate concern and a protected activity. The Board vacancies subsequently arose. While we agree with the Administrative Law Judge that Respondent violated Section 8(a)(3) of the Act by failing to offer reinstatement to the strikers, we do not agree entirely with his analysis of the availability of positions where replacements had left or never been hired. We do not agree with the Administrative Law Judge's finding concerning the student part-time employees. There is nothing in the record to indicate that they were other than regular part-time employ- ees who were permanent replacements for the strikers. We also disagree with the Administrative Law Judge's finding that Barry Joy was hired on March 18, the day he began work, rather than on March 5 when the Respondent contends Joy was hired. Uncontradicted testimony indicates that Res- pondent accepted Joy for employment on March 5, but that Joy could not start work until later because he had to give his former employer 2 weeks' notice. Respondent's payroll records show that, as of March 9, there were 10 permanent replacements (of whom 3 or perhaps 4 were students) on the job, a commitment to hire 1 more, and 1 employee who had not struck. Thus, we find that the strikers had been permanently replaced when the unconditional offer to return to work was made. As found by the Administrative Law Judge, Respondent's payroll records show that a number of job vacancies occurred after March 9. Three persons, not including Barry Joy, were hired-one on March 26 and two on April 9. In addition, an employee was terminated on March 16 and two student employees were terminated on April 13 and May 18, respective- ly. Respondent made no effort to offer any strikers reemployment until it successively offered one job to four strikers on April 25, May 2, 9, and 23. Whether these were proper offers of reinstatement will be deferred to the compliance stages of this proceeding. What is clear from this record is that Respondent failed to offer reinstatement to any striker between March 9 and April 25, during which time three persons were hired and two terminated. Thus, we find that Respondent refused to offer strikers reinstatement during this period. In The Laidlaw Corporation, 171 NLRB 1366, 1369, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970), the Board held: ... economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; and (2) are entitled to full subsequently respectfully disagreed with the court's rationale. P/astilte Corporation, 153 NLRB 180, enfd. in relevant part 375 F.2d 243 (C.A. 8, 1967). More recently the Board has reaffirmed the Dobbs Houses principle in Okla-Inn, d/b/a Holiday Inn of Henryetta, 198 NLRB No. 68, and Kelso Marine, Inc., Kel Stress Division, 199 NLRB 7. F.C.F. PAPERS, INC. reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legiti- mate and substantial business reasons. We have found that an unconditional offer to return to work was made on behalf of the strikers at a time when the Respondent had apparently permanently replaced all of them. Since the Respondent subse- quently terminated certain employees and hired others, one or more positions of the strikers were vacant and one or more strikers are entitled to immediate reinstatement.4 The remaining strikers may also be entitled to reinstatement at the depar- ture of other replacements, unless they have, in the meantime, acquired regular and substantially equiva- lent employment. However, as we are unable to determine from the state of the present record which or how many of the strikers are entitled to immediate reinstatement, and, if properly entitled, the order of reinstatement of the strikers, we shall leave the questions of such individual reinstatement rights for resolution at the compliance stage of this proceeding. We shall further order that Respondent make whole those strikers entitled to immediate reinstatement for any loss of pay they may have suffered. 6. The Administrative Law Judge, relying on N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), found, upon the Union's bargaining request and the Respondent's unfair labor practices, that a bargaining order is necessary to protect the majority selection of the Union. We do not agree. We have reversed all the findings of violations except for the 8(a)(3) and (1) violation stemming from Respon- dent's failure to reinstate economic strikers. We find that in these circumstances this unfair labor practice, standing alone, is not so likely to have a lingering effect as to preclude the holding of a fair election. Accordingly, we shall dismiss this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, F.C.F. Papers, Inc., a Division of the Mead Corpora- tion, Rochester, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, re- straining, and coercing its employees in the exercise 4 Richard Handel, Jr., is not entitled to reinstatement because he engaged in picket line misconduct. S In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 659 of their Section 7 rights by failing and refusing to reinstate its striking employees to properly available positions after an unconditional offer to return to work has been made on their behalf, or in any like or related manner discriminating in regard to hire or tenure of employment or conditions of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) In accordance with the Decision and Order of the Board and subject to any supplementary pro- ceedings that may be had in this case, offer immediate and full reinstatement to such of the strikers whose former positions have been vacated after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed. (b) Make those strikers who have been improperly denied reinstatement whole for any loss of earnings they may have suffered by reason of Respondent's discriminatory failure to reinstate them. Backpay and interest shall be computed under the standards of the Board as set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and other records necessary and useful to determine the rights to reinstatement and the amounts of backpay due under this Order. (d) Post at its Rochester, New York, warehouse and facilities copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's 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 material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER JENKINS, dissenting in part: I cannot agree with my colleagues' dismissal of the allegations of the complaint with respect to Respon- dent's offer to straighten out employee problems or 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." 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances on February 7 and the interrogation of employees by Respondent's lawyer, Mitchell, on February 8. Since I would find that the above- described conduct by Respondent violates Section 8(a)(1) and join with my colleagues in finding violations of Section 8(a)(3) and (1) stemming from Respondent's failure to reinstate economic strikers, I would find also that a bargaining order is appropri- ate in these circumstances. In a reversal of the Administrative Law Judge's findings, my colleagues conclude that the Respon- dent's offer on February 7 to straighten out employee problems or grievances was an attempt to check into normal work problems and did not violate the Act because the offer to deal was not conditioned, directly or indirectly, on rejection of the Union. The credited testimony shows that Respondent's president, Ennis, conducted the meeting because he saw there were problems and wanted to get them straightened out. It had not been Ennis' practice to meet with the employees; in fact, Ennis told the employees he was sorry he did not get together with them before and closed the meeting by telling them he would be available more frequently than in the past and for the employees that had questions or problems to come and see him. The timing of the meeting is significant. It occurred immediately after the Union came on the scene and at a time when the Respondent had already received the Union's bar- gaining request and an election petition was pending. Thus, the effect of Respondent's offer to straighten out employee problems and grievances can only be an attempt to invite and encourage the employees to bargain with the Respondent. The implication that the employees do not need the Union to straighten out their problems or grievances necessarily follows. Accordingly, I would find, in agreement with the Administrative Law Judge, that Respondent's offer interfered with its employees' freedom of choice concerning collective representation. With respect to the interrogation of employees by Respondent's attorney, Mitchell, my colleagues excuse the conduct because Mitchell gave the employees certain assurances and stated that the only information sought concerned the activities of Handel, Sr., a foreman. In fact, the interrogation reached far beyond Handel, Sr.'s activities. The employees were asked whether they were present at the union meeting, whether others were present, who passed out authorization cards, and who signed cards. Mitchell elicited from one of the employees the names of all the employees who had attended the meeting . I am unable to understand how Mitchell's far-reaching questions can be excused as having been limited to the activities of Handel, Sr. Nor am I persuaded by the attempt to justify the dismissal on the ground that any information gathered from the interrogation would have been cumulative. This rationale is persuasive only if one makes the rather difficult assumption that the Respondent did not expect to learn anything more about the union activities of its employees from the interrogation. But, even if that were true, Respondent's continued interest in, and ascertainment of, the employees' support of the Union by directly approaching the employees themselves interfere with rights guaran- teed by the Act. The Board has held that interroga- tion which seeks to place an employee in the position of acting as an informer regarding the union activities of his fellow employees is coercive .6 The far-reaching scope of Mitchell's interrogations can- not be lightly brushed aside. Mitchell did not limit the interrogations to the activities of Handel, Sr. He also asked questions about the union activities of other employees. Under these circumstances, there can be no justification for failing to adopt the Administrative Law Judge's finding that Respon- dent's interrogations violated the Act. I likewise cannot agree with my colleagues' finding concerning the student part-time employees. The record shows that there were three, and possibly four, student part-time employees. Two of them served less than 3 months and only one apparently remained employed on May 30, less than 4 months after the strike. Since the Employer has the burden of proving these striker placements were permanent if that fact is placed in issue, in the circumstances here it does not appear to me he has sustained his burden. In my judgment, the nature and extent of this unlawful conduct warrants the granting of a bargain- ing order. At the time the Union made its bargaining demand on the Respondent, it represented, on the basis of cards, all but one of the unit's employees. Upon receipt of this demand, the Respondent's immediate reaction was to engage in unlawful activities designed to determine the number and identities of the union supporters and to suggest to employees that their demands and complaints were more likely to be settled if they would forego union representation and deal directly with the Respon- dent. The seriousness of this conduct, particularly when considered together with the Respondent's subsequent failure to reinstate employees in violation of Section 8(a)(3), persuades me, as it did the Administrative Law Judge, that there is little likeli- hood that a fair election could be held in the foreseeable future and that a bargaining order is both 6 Abex Corporation-Engineered Products Division, 162 NLRB 328; see also Swanson -Nunn Electric Company, Inc., 203 NLRB No. 43. F.C.F. PAPERS, INC. necessary and appropriate to remedy this unlawful conduct. In all other respects, I join in the determinations made by my colleagues. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Decision and Order of the National Labor Relations Board, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights by failing and refusing to reinstate econom- ic strikers who have unconditionally offered to return to work and whose former positions are not filled by permanent replacements. WE WILL, in accordance with the Order of the National Labor Relations Board and subject to any supplementary proceedings that may be had according to the Board's Order in this case, offer immediate and full reinstatement to those strikers whose former positions were or became vacant after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of our failure to offer them reinstatement. F.C.F. PAPERS, INC., A DIVISION OF THE MEAD CORPORATION (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, Ninth Floor-Federal Building, 111 W. Huron St., Buffalo, New York 14202, Telephone 716-842-3100. I All dates are in 1973. 2 The Union filed an original charge on February 14 and an amended charge on March 19 ; the complaint issued on March 30. DECISION STATEMENT OF THE CASE 661 BENJAMIN B. LIPTON, Administrative Law Judge: This proceeding was heard before me on May 30 and 31, 1973,1 in Rochester, New York, upon a complaint by the General Counsel2 alleging certain violations of Section 8(a)(1), (3), and (5) of the Act. Upon the entire record,3 after consideration of the briefs filed by General Counsel and Respondent, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent has its principal office and place of business in Dayton, Ohio, and maintains, inter alia, a warehouse in Rochester, New York, where it is engaged in the sale and distribution of paper products. The Rochester warehouse is the only facility involved in this proceeding. During the year preceding issuance of the complaint, Respondent had a direct inflow in interstate commerce of products and materials to its Rochester warehouse valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues Under Section 8(a)(1)-whether, on February 7, Respon- dent's president invited and encouraged assembled em- ployees to deal directly with Respondent concerning terms and conditions of employment, notwithstanding Respon- dent's prior receipt of the Union's demand for recognition as the majority representative; and whether, on February 8, Respondent's attorneys unlawfully interrogated individ- ual employees as to their union activities and those of other employees. Under Section 8(a)(3)-whether Respondent, by engaging in unfair labor practices, initially caused or thereafter prolonged a strike by its employees, and has refused to reinstate the striking employees following their uncondi- tional offers to return to work. Respondent presents the defenses that (a) the strike was unprotected because its purpose was to protest Respondent's discharge of its warehouse manager, and to compel it to rehire this individual, who was a supervisor; (b) the strikers were not entitled to reinstatement because they had engaged in misconduct in the form of a "slowdown" during the week preceding the strike; (c) one striker had engaged in picket line misconduct, thereby forfeiting his right to reinstate- 3 At p. 109, line 1, the transcript is hereby corrected to read : "Cross- examination does not give you unlimited latitude." 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment; (d) and the strikers had been permanently replaced preceding their unconditional offers to return. Under Section 8(a)(5)-whether Respondent unlawfully refused to bargain following the Union's demand; and whether a bargaining order is justified under the Gissel case,4 based upon a majority of membership application cards, in view of the serious nature of the asserted unfair labor practices. Respondent denies all the alleged violations. B. Organizational Activity and Subsequent Events On January 22, after earlier conversations with two or three employees on the subject of union representation, Ralph Hughson visited the Union's office. He had a preliminary discussion principally with Ernest Moyer, the Union's president, and agreed to invite interested employ- ees to a meeting with the Union set for Friday, January 26. Hughson returned to the warehouse and informed other employees of the scheduled meeting. At 5 p.m. on January 26, a meeting with Moyer and two other union agents was held at the union hall. All but one of the nine warehouse employees attended 5 and each listed on a sheet of paper his name, address, classification, and wage rate. In addition, Richard J. Handel, Sr., herein called Handel Sr., appeared and participated with the others under the following circumstances : He came to the meeting with his son, Richard F. Handel, age 17, in the event his signature was necessary for his son to join the Union. He told Moyer he was more or less in charge of the warehouse and did not know if he should be there. At Moyer's request, he described his duties, which included the distribution of work to employees and the performance of similar work himself in the warehouse. Moyer then told him that he was a group leader or leadman, as covered in union contracts, and that he could join the Union. During the meeting, membership application cards were signed by all employ- ees present and by Handel Sr. By letter dated January 29, the Union notified Respon- dent that it was selected as bargaining agent for the "drivers, warehousemen, helpers, group leaders and cut- ters," and requested a meeting to negotiate a contract. On February 1, it filed with the Board a petition for certification. It does not appear there was any written or verbal response to the Union's bargaining demand. On January 30, and within a period of the next 10 days, various telephone discussions took place between Moyer and Arthur Ennis, Respondent's president, and Richard Du Rose, an attorney for Respondent, who was present in the plant. In one such conversation, on February 2, Moyer told Du Rose that all employees except Hamilton signed a card at the union meeting on January 26. Du Rose asked him if he was aware that Handel Sr. was a supervisor, and Moyer asserted his position that Handel Sr. was only a working foreman or leadman. Without contradiction, it 4 N. L. R. B. v. Gissel Packing Co., Inc, 395 U.S. 575 ( 1969). S Ralph Baker, Jimmy Collins, Robert Durr, Richard F. Handel, Ralph Hughson , Eugene Lee, James McDonald, and Albert C. Schneider Daniel Hamilton did not attend. 6 Moyer was uncertain as to the dates of certain conversations He testified that, on February 7 or 8, he told Ennis that, if they were going to interrogate his people or discharge anybody, the Union would strike. He was testified by Handel Sr. that, on February 2, he was told by James Whalen and James Rodgers, executives of Respondent, that Respondent's board of directors decided to let him go. The reasons given related to the "condition of the warehouse," and Respondent's belief that he had brought the Union in. They informed him that he was going to be discharged and would receive 4 weeks' severance pay and his vacation pay. He promptly tele- phoned this information to Moyer. On February 2, Moyer left a telephone message for Ennis with Ennis' secretary to the effect that the Union would call a strike the next Monday (i.e., February 5) if any of the employees were harassed. Ennis testified that, when he returned the call that day, Moyer "emphatically" repeated the strike threat .6 On February 7, President Ennis made a speech to the assembled employees. And on February 8, the employees were individually interrogated in private offices at the warehouse by Attorneys Du Rose and Mitchell. Also, Respondent alleges that a concerted "slowdown" by the employees occurred during the week beginning February 5. These events are treated below. On February 7, Respon- dent posted on the bulletin board a standard Board notice indicating that an election petition had been filed and generally apprising the employees of their statutory rights. On February 9, Ennis posted a notice in substance that Respondent has no intention of taking reprisals "because of the union." On February 9, Handel Sr. was discharged. Informed of the discharge about 5 p.m. that day, Moyer scheduled a meeting of employees to be held at McGraw's Grill on February 10. At this meeting there were present, in addition to the union agents , seven employees 7 and Handel Sr. A strike vote was taken. Statements were made by Moyer that the employees were being interrogated, that Handel was discharged, and that "maybe the rest of you fellows will be following . . . because you joined the union." All agreed to strike beginning on Monday, February 12. At such time, picketing commenced at Respondent's premises with a sign stating, "Teamsters Local 118 on strike." On February 14, the Union filed with the Board its charges, which included an alleged violation of Section 8(a)(3) based upon the discharge of Handel Sr. On March 8, the Union sent the letter to Respondent requesting "immediate unconditional reinstatement" of eight named employees and Handel Sr. On March 13, a reply was sent to the Union-essentially that permanent replacements were hired and "no position is presently available for the individuals named in your letter." Further, Respondent requested the Union to answer certain questions. On March 13, the Union was verbally advised by the Board's Regional Director that, after investigation, it was determined that Handel Sr. was a supervisor. Thereupon, the Union formally requested by letter the withdrawal of its 8(a)(3) charge relating to Handel Sr. And on March 15, the Union wrote Respon- indicated that interrogations (by Attorneys Du Rose and Mitchell on February 8, described infra ) had taken place at that point . It is entirely plausible that Moyer would issue such a strike threat on February 2, upon his receipt of the information from Handel Sr. Although conceivable, it is not sufficiently clear, and I do not find, that he made an additional strike threat following the interrogations on February 8. 7 Excluding Hamilton and Schneider. F.C.F. PAPERS, INC. dent deleting the name of Handel Sr . and renewing its unconditional offer or reinstatement "on behalf of all the others" named in the March 8 letter. At the hearing, the parties stipulated that Handel Sr. was a supervisor under the Act. At different dates beginning April 25, ostensibly on the basis of a single vacancy, Respondent sent offers of "employment" separately to four of the striking employees. The circumstances of these offers, and of the alleged replacements, will be considered infra. As of the hearing, the strike continues.8 C. Restraint and Coercion 1. Ennis' speech on February 7 The meeting, convened by Ennis in the conference room, was attended by Handel Sr. and eight of the employees. Handel Sr. testified: Ennis said he was sorry he did not get together with the employees before, but he did not have the time. He saw that they have problems and wanted to get them straightened out. He asked what the problems were, and nobody answered. Then he said, "well, if anybody got any problems they can come up and see me. I think we can straighten them out." He does not have anything against unions and, in fact, belongs to a union himself-the Maritime Union. Handel Sr. spoke up. He accused Ennis of not being interested in the employees' problems. And he stated there were not enough men for the job, and they needed more forklifts and pallets. Ennis testified that he told the employees the purpose of the meeting was "to discuss the apparent slow-down in service in our warehouse." Later, he testified that the stated purpose was to discuss "some apparent deficiencies in the warehouse." In describing the "problems" to the employ- ees, he "emphasized" that of service to customers, meaning "operational problems," and the need to maintain such service even during a period of union negotiations. At the end of the meeting, he indicated that if there were any problems that existed in the warehouse he would like to know about them; he would be in Rochester more frequently than in the past; and if the employees had questions or problems to come and see him. In my opinion, Ennis was attempting to shape his testimony to preconceived legal conclusions. At the hearing, Respondent's position was essentially that, during the same week, the employees generally had engaged in an unprotected concerted slowdown, and that those involved in the subsequent strike thereby forfeited their right to reinstatement. Assertedly, Ennis was aware of the slow- down at the time of meeting on February 7. From Ennis' own account of the meeting, it would indeed appear to be an odd manner of addressing the employees on the subject of such serious misconduct .9 Rather, it is clearly inferable from the timing and the content of the speech that Ennis was referring to the "problems" underlying the employees' desire for union representation. I accept in essence the testimony of Handel Sr. and do not credit ^EnWs to the 8 Respondent had filed charges against the Union on February 9, alleging violations of Sec. 8(b)(1)(A) and (B). An informal settlement agreement was executed as to the 8(b)(1)(A) charge, involving alleged conduct by the Union unrelated to the issues in the present case. Concerning the alleged 8(b)(1)(B) charge, the Regional Director dismissed 663 extent of the conflict. At the time, Respondent had received the Union's bargaining request, and an election petition 'was pending. As alleged in the complaint, I find that ;Fpriis' primary purposelwas to invite and encourage the employees to bargain directly with Respondent-"as a means of warding off the Union, a violation of Section 8(a)(1)." 10 2. Interrogations of February 8 On this day, individual employees were summoned for separate interviews with Attorney Mitchell in Ennis'office and with Attorney Du Rose in the conference room. The violative allegations refer specifically to Mitchell. He testified, inter alia, that he told employee Hughson and Schneider that he was investigating the activities of Handel Sr. to determine if there were violations of the "Federal Labor Relations Laws"; that employees had a right to engage in or refrain from union activities; that their participation in the interview was to be completely voluntary; that there would be no reprisals or benefits from Respondent; that the only information sought were the activities of Handel Sr.; and that Union Agent Moyer had already informed Respondent there had been a union meeting on January 26 attended by employees and Handel Sr. His questions to the employees concerned the participa- tion of Handel Sr. in the organizing campaign and, as a "collateral matter," to confirm the status of Handel Sr. as a supervisor. Of the five employees called by Mitchell, three signed statements drafted by Mitchell covering the substance of the interview; one agreed to sign only a description of the "assurances" given, and one refused to answer any questions or sign a statement. Hughson testified that certain of the questions by Mitchell related to his own activity. Was he present at the union meeting? He answered yes. Were there others in attendance from the warehouse? He replied that there were, and gave Mitchell all the names. Who passed out authorization cards, who were given the cards, and who signed the cards? He supplied such information. Schneider testified that President Ennis introduced him to Mitchell. He was also asked if he attended the union meeting, if cards were passed out, and if anyone signed. His answers were affirmative, but he did not recall whether he named those who signed cards. Mitchell denied that he asked such questions. Hughson and Schneider are credited. Du Rose obtained signed statements from three employees. Handel Sr. was also summoned by Du Rose, but refused to answer questions without having his own attorney present. In Johnnie's Poultry Co., 146 NLRB 770, 774, a lead case, the following principles were delineated governing interro- gation of employees: Despite the inherent danger of coercion therein, the Board and courts have held that where an employer has a legitimate cause to inquire, he may exercise the privilege of interrogating employees on matters involv- the charge and was upheld on Respondent's appeal to the General Counsel. 9 The slowdown issue is more fully discussed infra. 10 N.L. R.B. v. Eugene Yokell and Bernard Yoked, d/b/a Crescent Art Linen Co., 387 F.2d 751, 755 (C.A. 2, 1967), and cases cited by the court. See also Donald Skillins d/b/a Yankee Distributors, 152 NLRB 1018, 1026. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing their Section 7 rights without incurring Section 8(a)(1) liability. The purposes which the Board and courts have held legitimate are of two types: the verification of a union's claimed majority status to determine whether recognition should be extended .. . and the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for trial of the case. In allowing an employer the privilege of ascertaining the necessary facts from employees in these given circumstances, the Board and courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Thus, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organiza- tion and must not be itself coercive in nature ; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjec- tive state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. [Footnotes and all case citations omitted.] Respondent advances the justification for the February 8 interrogations that it was investigating the activities of Handel Sr., a supervisor, with the view of filing unfair labor practice charges, and that as a result of these interviews it filed the Section 8(b)(1)(B) charge, earlier described herein." It immediately appears, among other things, that such a purpose does not conform with either type of permissible interrogation shown above. The inherent dangers of coercion are manifest to a much greater degree where an employer undertakes a course of employee interrogations seeking to develop a basis for filing charges, rather than in preparing a defense for the trial of an actual case.12 It can be seen that this type of an employer investigation, if generally permitted, would open up wide opportunities for subterfuge as a means of entering into the area of interrogation otherwise forbidden. In the circumstances of this case, I find that Respondent was engaged in conduct reasonably calculated to interfere with the employees' Section 7 rights. Justification for the interrogations is not established merely by asserting assurances to the employees against reprisal or benefit.13 The supervisory status of Handel Sr. was evidently a close question which remained unresolved until the Regional Director's determination was made known on March 13. That Respondent itself was in doubt is indicated by Attorney Mitchell's questions of the employees relating to the duties of Handel Sr. Furthermore, it is undisputed that high management officials told Handel Sr. a week " As noted, the charge was ultimately dismissed. As of February 8, the strike had not commenced and there was no indication of pressure by the Union upon Respondent in the selection of its representatives (under Sec. 8(bXIXB)). 13 Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527, 530. 13 See Sullivan Surplus Sales, Inc., 152 NLRB 132, 133 earlier, on February 2, that Respondent had made the decision to discharge him. This reduces even more the reasonability of Respondent's concern over a possible 8(bx1XB) violation. The Union and the employees who signed cards were then proceeding in good faith , and with Respondent's knowledge, on the basis that Handel Sr. was an employee, rather than a supervisor. Mitchell made it plain to the interviewees that he was gathering evidence for the purpose of taking action against Handel Sr. And, indeed, Handel Sr., was discharged the next day. Although Respondent was then acting at its peril, its opinion was later upheld that Handel was a supervisor. The timing was particularly sensitive in view of the Union's recent bargaining demand and the pending election petition. Respecting the substance of the interviews, Respondent reached beyond its own stated necessities . It systematically summoned at least eight of the nine employees -for interrogation concerning Handel Sr ., much of which could only have been cumulative and reflecting what Respondent already knew before February 8. The very nature of such a quest for evidence from employees relating to the organiz- ing campaign could predictably provide disclosures of the employees' individual activities and tend to coerce the employees as a result. Separately summoned into the boss' office, with Ennis present in at least one instance, the employees were thus questioned in a locus of high management authority and in an atmosphere of "unnatural formality." 14 This context was not, in my opinion, free of employer hostility to union organization such as would minimize the coercive pressures stemming from the interrogations. Then, finally, as I have found, there were direct questions concerning the activities of the interview- ees, Hughson and Schneider, and those of other employees, which in no event could be justified as having a legitimate purpose. Accordingly, it is concluded that Respondent engaged in coercive interrogations violating Section 8(a)(l), as alleged. General Counsel's contention that Mitchell conducted a poll of the interrogated employees is plainly without support. Such an allegation cannot be predicated merely upon evidence that one (Hughson) out of the five interrogated employees furnished answers to Mitchell indicating that a majority of the unit employees had signed authorization cards. Nor is there any merit to General Counsel's ultimate position that Respondent, having obtained such information from Hughson, could not rest its refusal to bargain upon the Union's lack of a proven majority.15 D. Cause of the Strike The complaint alleges that the strike begun on February 12 was an unfair labor practice strike undertaken in protest of Respondent's violative conduct in attempting to deal directly with the employees on February 27, in coercively 14 See Bourne Co. v. N. L. R. B., 332 F.2d 47, 48 (C.A. 2, 1964). 15 The cases cited by General Counsel , e.g., Sullivan Electric Company, 199 NLRB 809, are patently distinguishable . Those situations involve an actual poll in which the employer obtained from each employee the results showing a majority designation of the union which had previously requested recognition. F.C.F. PAPERS, INC. 665 interrogating them on February 8, and in refusing to bargain with the Union:op request. An unfair labor practice strike does not result merely because the strike follows the commission of an unfair labor practice. A causal connection between the two events must be established.16 My finding is that the strike was clearly precipitated by the discharge of Handel Sr. on February 9 and, but for this event, would not likely have commenced when it did. On this issue, it is of no consequence that the Union and the striking employees then believed that the discharge was an unfair labor practice and that their own jobs were similarly placed in jeopardy. Handel Sr. was a supervisor, as was later determined, and the Union conformed to this ruling. Thus it appears that, on February 2, Union Agent Moyer conveyed to Respondent a distinct strike threat after he was apprised by Handel Sr. of Respondent's decision to discharge him. There was no other apparent reason for such a threat at this early date following the Union's bargaining request. And on February 9, upon information of Handel Sr.'s actual discharge, Moyer immediately arranged for a meeting the next day to take a strike vote. At this meeting, as the evidence reflects, the essential discussion emanated from Moyer. By his own testimony, he adverted to Handel Sr.'s discharge, stating that "he is first, maybe the rest of you fellows will be following." He referred to the interrogations with the comment that he was not going to stand for it. I am unable to infer that the interrogations alone would have brought on the strike. Indeed, Moyer had earlier, on February 2, informed Respondent that all but Hamilton had signed union cards. While I do not assume that the employees were unaware of the unlawful character of Ennis' speech on February 7, I cannot find that such conduct combined with the interro- gations provided the actual motivations to embark on the strike. General Counsel's assertion that an unlawful refusal to bargain was a further causative factor merely begs the question. Even assuming arguendo that a remedial bargain- ing order would he under the Gissel case,17 this conclusion in itself would not establish that the strike was proximately caused by any unfair labor practices. However, it is quite evident that elements other than Handel's discharge were involved in the strike. A basic labor dispute existed in the whole context of the current organizational campaign, including Respondent's failure to grant the Union's request for recognition and the pending election petition. In net result, therefore, I find that it was an economic rather than an unfair labor practice strike in its inception. E. Protected Nature of the Strike Respondent has erected various defenses from the single fact, as ultimately determined, that Handel Sr. was a 1e Capital Rubber & Specialty Co., Inc., 198 NLRB No. 46. 17 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969) 18 As earlier noted , Respondent's charge alleging such a violation was dismissed by the Regional Director. 19 See Dobbs Houses, Inc., 135 NLRB 885, 888 ; Plasnhte Corporation, 153 NLRB 180. 20 Sec. 2(9) defines the term "labor dispute" as including "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of supervisor. It argues that the strike was unprotected, and the strikers should therefore be denied all rights to reinstatement because the strike sought to restrain and coerce Respondent in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. This is essentially the language of Section 8(b)(1)(B) of the Act defining a type of union unfair labor practice.18 From all that appears, Handel Sr. was a minor supervisor whose status presented a borderline question. There is no evidence that he was a management represent- ative who would participate, directly or indirectly, in the collective-bargaining process, or that he was on a level to be involved in the adjustment of grievances. The evidence does affirmatively show that the Union and the striking employees had a bona fide belief that he was a rank-and- file employee and that Respondent was fully aware of this position. The issue of his supervisory status was pending before the Board. Respondent could not reasonably assume that if Handel Sr. were found to be a supervisor, the Union would persist in seeking his reemployment. Indeed, when the Regional Office ruling came down that Handel Sr. was deemed to be a supervisor, the Union promptly withdrew its 8(a)(3) charge and notified Respon- dent that its unconditional request for reinstatement of the strikers did not include that of Handel Sr. Therefore, as a factual matter, it cannot be held in these circumstances that the purpose of the strike was to restrain or coerce Respondent in the selection of its representatives. The mere showing that employees strike in protest of the discharge of a person, or that a striking union seeks the reinstatement of a person, who is found to be a supervisor, does not ipso facto render the strike unprotected. Each case is determined on its own facts.19 This was not the type of case in which the sole reason for the strike or concerted activity was to protest the discharge of a supervisor, raising the question of whether a valid labor dispute existed within the meaning of the Act 20 "Where a `labor dispute' exists, the employees may engage in a peaceful primary strike or any other lawful manner of protest and still retain the protection of the Act." 21 Unquestionably here, as found, a labor dispute existed. And here the employees who joined the strike could have harbored the fear, whether reasonable or not, of further discharges in which they themselves would be affected.22 In sum, I find no basis for holding that the strike was unprotected. F. Reinstatement of Strikers 1. Unconditional application On March 9, Respondent received the Union's letter offering "immediate unconditional return to employment" of nine named "employees" who were on strike, including employment." And Sec. 2(3) defines the term "employee" as including "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute " 21 Plastilite Corporation, 153 NLRB at 184. 22 The "reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not" NL.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16 (1962). And see N L.R.B v. Solo Cup Company, 237 F.2d 521, 526 (C A. 8, 1956). 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Handel Sr. In its reply letter of March 13, Respondent indicated, inter alia, that it considered the strike an unprotected activity, justifying its refusal of reinstatement based upon the attempted compulsion to reemploy Handel Sr., and also alleged picket line misconduct on the part of "some" of the strikers 23 Respondent's letter further stated that, "moreover," it had hired permanent replacements and no position was presently available for any of the strikers named by the Union. The letter also asserted that the Union's offer was ambiguous in certain respects and requested answers to two questions: (1) Whether the Union's offer was contingent upon the reinstatement of all the named strikers, and (2) whether the Union would continue to strike if all the named strikers were not reinstated. On March 15, the Union replied to Respon- dent's letter reiterating that the offer was unconditional and deleting the name of Handel Sr. (after the Union was informed on March 13 of the Regional Director's decision that Handel Sr. was a supervisor). Respondent's construction of the Union's initial letter was not reasonable. The offer was stated as unconditional and conveyed no implication that reinstatement was sought on an "all or none" basis. Nor would it follow that the Union was conditionally insisting upon the reinstate- ment of Handel Sr., whose discharge precipitated the strike, while asserting at the same time that it was ready to abandon the strike. Respondent need only have refused to reinstate Handel Sr., maintaining its position that he was a supervisor. This issue was, in any event, removed when the Union advised Respondent that it withdrew its request for the reinstatement of Handel Sr. It is my finding that the Union's initial letter was unambiguous, that the Union was not obliged to reply to Respondent's questions, as it did not, and that it contained a valid unconditional offer of reinstatement on behalf of the eight strikers, excluding Handel Si'. 2. The alleged slowdown At the hearing, in its opening statements, Respondent asserted as a further affirmative defense that the employ- ees, who later became strikers, had engaged in unprotected activities in the form of a slowdown during the week before the strike. At the instance of the Administrative Law Judge during the hearing, Respondent's counsel specifically confirmed the position that Respondent was relying upon the alleged slowdown as reason for not reinstating the strikers after their unconditional application to return to work. A considerable part of Respondent' s case involved the introduction of evidence on this issue, in substantial length. A major portion of General Counsel's brief was devoted to analysis of such evidence. Then in a footnote in Respondent's brief it is simply stated that "Respondent does not urge a slowdown among employees as a justification for its refusal to re-employ the strikers." The statement of counsel at the hearing, accompanied by extensive evidence, was more than the urging of a legal position. It also contained the admission that Respondent refused to reinstate the strikers, when called upon to do so, because of an asserted belief that such a slowdown had occurred. As found below, the evidence scarcely establish- es even a colorable basis for a good-faith belief that the employees had engaged in such serious misconduct. In these circumstances, Respondent will not be permitted to escape the consequences of its fully litigated contention. Respondent's witnesses on this issue consisted of Thomas Fascetti, James D. Santini, and Arthur Ennis, all management officials. The essence of their testimony, based upon their observation and impression, was that during the week beginning February 5 there was an inordinate accumulation of unprocessed orders in the warehouse; a large number of customer complaints concerning delays in receiving their ordered merchandise; delivery trucks leaving Respondent's premises later than was normal; an excessive number of rail cars at the sidings which were not unloaded; aisles plugged and dock areas filled with cargo; and the warehouse generally in a condition of uncleanliness. In addition, Respondent submitted a document, prepared for the purpose of the hearing, which purports to show a comparatively sharp reduction in the mileage driven on its delivery trucks during the week ending February 10.24 Regarding the rail car situation, Santini spoke to employee Baker, an order picker, who responded that there were not enough pallets and "they don't have the time." Santini did not take the matter up with higher management. About February 6, Handel Sr. was approached by Fascetti, Avery, and Rogers concerning the "appearance of a slowdown." He told them there was no slowdown, that the trucks were being held up because of priority rush orders coming from the office. It is no light matter to advance such a contention asserting, on grounds of misconduct, the withholding of a basic right of strikers to the Act's protection. The Act is violated if a striker is discharged, or denied reinstatement upon unconditional application, for misconduct arising out of a protected activity when the employer does not have a good-faith belief that such misconduct was committed, or when it is shown, despite the employer's good faith, that the misconduct never occurred.25 In general character, Respondent's evidence is highly speculative and lacking in probity.26 Misconduct in the form of a slowdown, such as alleged by Respondent in the existing context, would necessarily have to consist of a deliberate and concerted action by employees relating to their organizational objectives. No attempt was made by Respondent to adduce evidence of such concerted activity, or to identify any employee believed to be involved. During the week preceding the strike, there is no indication of any serious concern by Respondent with such a problem. If the workflow had actually slowed down during this week, it is entirely plausible from this record that the causes were directly attributable to management responsi- bility, rather than to an unlawful design by the employees or the Union. 23 Only that of Richard F. Handel, herein called Handel Jr., was alleged counsel." As Exh. 11, the document is admitted as an affidavit at the hearing, infra. as N.L.R.B. v. Burnup & Sims, 379 U S. 21 (1964). 24 On the same subject , Resp. Exh. 11 was reserved at the hearing for 26 Particularly, I regard President Ennis' testimony on these matters as receipt of a stipulation . After the close, Respondent submitted an affidavit largely conclusory, unresponsive, and unreliable. of Joseph P. Moore, vice president, "in accordance with agreement between F.C.F. PAPERS, INC. I find that there was no reasonable basis for an honest belief by Respondent that the alleged misconduct oc- curred, that in fact it had not occurred, that Respondent acted in bad faith in presenting and litigating this issue, and that it completely failed to establish the necessary support for its contention as a reason for denying reinstatement to the strikers. Accordingly, on this ground alone, Respondent violated Section 8(a)(1) of the Act. 3. Alleged misconduct of Handel Jr. Handel Jr. had been an order picker and was one of the strikers. Respondent contends that, on at least two occasions, Handel Jr. had followed a company truck in a manner designed to deter the driver from the performance of his duties and to impede deliveries being made during the strike. Edward Wendelgass, a striker replacement, was the driver of Respondent's truck. Wendelgass testified concerning two incidents which took place in succession on April 19. He drove from Respondent's warehouse to a local freight company-a straight route of about one quarter mile along Commerce Drive. Handel Jr. followed in his private car, and then walked into the freight company while Wendelgass made his delivery. All the way back to Respondent's warehouse, Handel Jr. drove directly in front of Wendelgass "at twenty miles an hour and wouldn't speed up," but he speeded up when Wendelgass tried to pass. The city speed limit for streets is 30 miles per hour. Wendelgass added that this particular strip "where the main part" occurred was outside the city proper. He normally drives on Commerce Drive at 30 miles per hour. Upon his return to the warehouse, Wendelgass reported this incident to Respondent. Handel Jr. did not deny or contradict any of the foregoing. General Counsel argues that there is a "logical inconsistency" in the account given by Wendelgass as would in itself negate the alleged "boxing-in" action. The inconsistency is stated to be that Wendelgass normally drives on the 1/4-mile stretch of road only 15 miles per hour faster than Handel Jr. was traveling at the time. With the facts thus virtually admitted, I perceive no basis for turning the evidence on the theory of General Counsel. The "boxing-in" could have been accomplished quite effectively at the speeds indicated on such a length of road. Handel Jr. was deliberately manipulating his vehicle with varying speeds to prevent the truck from passing. It is well known that automobiles are dangerous instrumentalities. The risks assumed by Handel Jr. could, not unreasonably, have caused a collision involving Respondent's truck or other object. In my view, this is a type of recklessness tantamount to violence. There is, I find, sufficient ground for Respondent's asserted belief that Handel Jr. engaged in misconduct as would render him unfit for further employ- ment. As to Handel Jr., the complaint allegation is not sustained. It is therefore unnecessary to pass upon the second incident that day.27 27 This incident involved conflicting evidence on allegations that Handel Jr. had again followed the truck driven by Wendelgass and had repeatedly swerved his car toward the moving truck in an effort to stop it-with particular testimony by Handel Jr . to the effect that he had been greatly provoked and was attempting to apprehend Wendelgass , after the latter 4. The replacements 667 In the case of an economic strike, where the strikers unconditionally apply to return to work, the employer must offer them immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs. Those applicants whose positions are filled by permanent replacements remain employees and are entitled to full reinstatement upon departure of the replacements or when other appropriate vacancies occur, unless they have in the meantime acquired regular and substantially equivalent employment or the employer can sustain its burden of proof that the failure to offer full reinstatement was for legitimate and substantial ; business reasons 28 As noted, the Union's unconditional offer reached Respondent on March 9. President Ennis testified that Respondent hired "replacements" after the strike, without attempting to show in any instance that such employment was of a permanent nature. The following data was received in evidence: WAREHOUSE EMPLOYEES May 30, 1973 Actively employed since 2/12/73 Commenced Termi- Name Work nated Daniel Hamilton 4/10/72 LeRoy Beeman 2/26/73 James R. Jorgensen 2/26/73 Mike Kenny 2/26/73 Dan Geraci 2/26/73 James M. McNair 2/26/73 3/16/73 Barry Joy 3/19/73 Eddie Thompson 3/26/73 Ed. D. Wendelgass 4/9/73 Thomas R. Rowley 4/9/73 Daniel Giordano 3/6/73 Conrad Hoffman 2/16/73 Robert L. Olsen 2/16/73 4/13/73 Roger Houck 2/20/73 5/18/73 Robert Swartz 3/6/73 Respondent admitted that not all replacements were full-' time employees, and that none of the strikers had worked on a part-time basis . As replacements, college students were hired to work after school, 5 days a week, "usually" from 5 to 10 p.m. In this category were Olsen and Houck, later terminated as shown . Ennis stated that, on the payroll of May 30, there were two such part-time students, but named only Giordano. The particular job duties and rates of pay of these students were not disclosed . Fascetti, nearly ran him down with the truck while he was walking the picket line outside the warehouse. 28 The Laidlaw Corporation, 171 NLRB 1366, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testifying for Respondent, was questioned only concerning Barry Joy. He and Rogers had interviewed Joy as an applicant on March 5 or 6, and "accepted" Joy on the basis that he had to give his previous employer 2 weeks' notice. Joy was not called as a witness , and no records were produced to show that Joy was actually hired on March 5 or 6. When Respondent received the Union's offer embracing the 8 striking employees on March 9 , there were employed 10 nominal replacements, including the 3 named students and conceivably a fourth student. In the very nature of their employment, as appears, I do not consider that the student employees were permanent replacements. It is Respondent's burden to show the permanency of such employment. Thus, it is reasonable and proper to conclude that, as of March 9, there were six possible permanent replacements, or at least two job vacancies to which these strikers were entitled . Respondent was also under a duty to accord preferential hiring to the strikers as vacancies occurred after their unconditional application on March 9. As set forth above, the data submitted shows that four employees, not indicated as students, were hired from March 9 through April 9. By separate letters dated April 25, May 2, May 9, and May 23, Respondent offered "employment"-respectively to Baker, Lee, Durr, and Schneider. Ennis testified that each of them in turn declined . He averred that the offers were made on the basis of a single vacancy . The record does not reflect that this job was filled . It is not shown which job or vacancy he meant; from the chart, above, the appearance of a termination closest in time was that of a student, Olsen, on April 13 . Another student, Houck, was separated on May 18, after the first of the offers was made (to Baker), indicating a further vacancy. McNair's termina- tion occurred much earlier, on March 16, and Joy was hired, as I find, on March 19. It appears that Baker was a warehouseman and driver at $4.20 an hour; Lee was a driver at $4.15 an hour; Durr was an order picker at $3.25 an hour; and Schneider was a warehouseman at $3.60 an hour. The similar letters sent to these strikers do not specify the job and pay being offered. Ennis' testimony implies that the intention in each instance was to offer a single particular job which was made available by the departure of a replacement. On this state of the record, it need not be determined here whether proper offers of reinstatement were made and were effectively declined. These questions will be deferred to the usual compliance investigation following Board decision. It is sufficient on these facts to enter my findings that Respondent violated Section 8(a)(1) and (3) as to the striking employees generally, with the exception of Handel Jr., and thereby prolonged the strike by denying reinstate- ment to any of these strikers upon their unconditional application (a) as of March 9 when Respondent received such application, and (b) thereafter as further appropriate jobs were available.29 Concerning the status of these strikers after March 9, Respondent has presented no evidence of legitimate and substantial business reasons for its failure to offer them reinstatement ; nor was it shown that any of them had in the meantime acquired regular and substantially equivalent employment. In any event, I find that these strikers became unfair labor practice strikers after March 9 and were therefore entitled to offers of reinstatement to any available jobs and could not be permanently replaced after such date. Application of the necessary remedies affecting particular employees will be left for resolution in the compliance stage of this proceeding, as described in the remedy section infra. G. The Refusal to Bargain and the Gissel Issue General Counsel alleges, and Respondent admits, that an appropriate unit consists of all employees, including drivers, warehousemen, helpers, and cutters at the Roches- ter warehouse, excluding office clerical employees, sales- men, professional employees, guards and supervisors as defined in the Act. In its written bargaining demand sent to Respondent on January 29, the Union described essentially the same unit but specified the inclusion of "group leaders." On both sides it was understood that the reference to group leaders pertained only to Handel Sr. And, as already covered herein, a continuing issue existed as to the supervisory status of Handel Sr., until it was resolved, acceptably to the Union, by the action of the Regional Director on March 13. There is entirely no merit in Respondent's contention that the Union requested recognition for an inappropriate unit because Handel Sr. was sought to be included as a group leader . Clearly, such a variance between the requested unit and the appropriate unit is minor, subject to modification on the legal question of one individual's supervisory status, and would not relieve Respondent of any obligation to bargain.30 As previously indicated, the unit complement at the time of the Union's bargaining demand consisted of nine employees . In evidence are authentic union authorizations on behalf of eight such employees , excluding Hamilton, which they executed at the union meeting on January 26. Respondent submitted an affirmative defense that "the Union's authorization cards are invalid due to supervisor Handel's participation in the Union's card solicitation, and due to the coercive activities of other Union agents." No support was offered for the latter contention. In the circumstances earlier described, Handel Sr. attended the January 26 union meeting and signed a card with the others. There is no evidence that Handel Sr ., at the meeting or at any time, solicited any of the employees who signed cards or influenced them in any way to support the Union.31 Respondent relies on the testimony of Hamilton: Handel Sr. knew that Hamilton left his previous job because a union had come into that plant. In a conversa- tion with Hamilton "the last part of January," Handel Sr. "just wondered" what Hamilton thought about unions in general. About January 27, Handel Sr. told Hamilton that the employees "had decided they wanted the union, and it would be nice if I joined, and if I didn't that was alright...." About a week later, Handel Sr. told Hamilton that "something will work out for you if you xs Ibid. 30 E.g., The Hamilton Plastic Molding Company, 135 NLRB 371, 373. Hughson, Schneider, and Handel Sr. 31 Affirmative testimony of the absence of such influence was given by F.C.F. PAPERS, INC. 669 don't join the union," and asked him if he was sure he did not want to join. In these casual discussions, Hamilton's responses were, simply that he was not interested. He testified that Handel Sr. never solicited an authorization from him or threatened him about the Union . Hamilton was the only employee who did not sign a card. Respondent's defense that all the signed cards of employees are tainted, by reason of Handel Sr.'s conduct and status, is rejected as without substance . Handel Sr. was a low echelon working supervisor. During the organizing campaign and the strike, the employees believed him to be a rank-and-file employee . He was openly aligned with the employees in interest. In matters concerning the Union, it must have been obvious to them that Handel Sr. in no way spoke for management. It may not here be inferred that the employees signed cards from fear of future retaliation by Handel Sr. merely because he was present at the January 26 union meeting and signed a card himself. Accordingly, I find that the Union possessed eight valid cards of the nine unit employees, an overwhelming majority, when it presented its bargaining request.32 Respondent made no reply to the Union's request, and has refused to recognize and bargain with the Union. As detailed herein, Respondent engaged in serious violations of Section 8(a)(1) and (3) after the Union's demand for recognition. Thus,President Ennis , atameeting of assembled employees, invited and encouraged them to bargain directly with Respondent . Through its attorney, Mitchell, Respondent coercively interrogated individual employees summoned to Ennis' office . In bad faith, Respondent assumed the position that the employees were engaged in a concerted slowdown prior to the strike as a reason for generally denying reinstatement to the strikers upon their unconditional application . Similarly, its treat- ment of all the strikers as unprotected because they were, in part, protesting the discharge of Handel Sr. was unfounded ; and it persisted in this attitude even after the Union made it clear that reinstatement was not sought for Handel Sr. This evidence is significant in assessing Respondent's failure, initially and thereafter, to offer reinstatement to the applying striker employees when in fact it had properly available positions . It reasonably reflects, in my opinion, that Respondent was resolved to deny employees the protected rights under the Act as retribution for their having engaged in union and strike activity.33 Some pause is given on the question of issuing a remedial bargaining order under Gissel34 when none of the eight card signers in the original unit of nine is presently employed on job. However, this was essentially the situation involved in Franks Bros. Company v. N.L.R.B., 321 U.S. 702 (1944), in which the Court early stressed the Board's responsibility under the Act to direct such action as will dissipate the unwholesome effects of the violations, and not to permit employers to profit from their own wrongdoing. It is highly dubious, in my judgment, that the traditional remedies of reinstatement, backpay, and post- 32 E.g., N.L.R.B. v. Orlando Paper Co., 480 F.2d 1200 (C.A. 5, 1973), enfg. 197 NLRB 380; WKRG-TV, Inc., 190 NLRB 174; Clay City Beverages, Inc., 176 NLRB 681; Welcome-American Fertilizer Co., 169 NLRB 862 at fn. 1. 33 Cf. Linden Lumber Division, Summer & Co, 190 NLRB 718, 719. 34 N. L. R. B. v. Gissel Packing Co., 395 U.S. 575. ing of notices will serve to erase the lingering impact of Respondent's coercive conduct as would permit the holding of a fair and reliable election in the foreseeable future. The unfair labor practices here have the distinct tendency of destroying the Union's majority strength, as expressed by the employee authorization cards, and to impede any test of employee sentiment by the preferred route of a Board election. And these practices, which include the discriminatory denial of jobs to employees, are sufficiently egregious35 to fit well within the standards set forth in the Gissel case 36 In these circumstances, consider- ation may validly be given to the signed authorization cards as a reliable measure of the employees' representa- tion desires. In addition, persuasive corroboration of the Union's majority was demonstrated by the fact that all eight employee card signers joined in the strike shortly after the Union's demand for recognition.37 Therefore, it is concluded that, by refusing the Union's bargaining request and engaging in the aforesaid unfair labor practices, Respondent violated Section 8(a)(5) and (1), and that a bargaining order is necessary and appropriate to protect the majority selection of the Union, and otherwise to remedy the serious violations committed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the strike on February 12 was economic in its inception but was prolonged by Respon- dent's unfair labor practices in discriminatorily refusing to reinstate any of seven named striking employees, excluding Handel Jr., upon their unconditional application received on March 9, to positions properly available on March 9 and becoming available thereafter. I have found that the part-time students hired during the strike were not permanent replacements and, therefore, the positions held by them as of March 9 were properly available to the applying strikers; that at least two available positions existed as of March 9; that from March 9 through March 26 at least four additional positions, filled by new hires, became available; and that, on April 13 and May 18, further vacancies were created by the termination of two part-time students. Questions remain to be resolved in the 36 See, e.g., General Stencils, Inc., 195 NLRB 1109; and note particularly Chairman Miller's dissent, taking the view that repeated violation of Sec. 8(a)(3) is sufficient per se to justify imposition of a Gissel bargaining order. 36 395 U.S. at 614-615. 37 Gissel, 395 U.S. at 597. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compliance stage of this proceeding (a) whether any of the other replacements hired during the strike were permanent in nature; (b) whether Respondent made proper offers of reinstatement to Baker, Lee, Dun, and Schneider and, if so, whether they effectively declined such offers; and (c) the order in which the seven strikers in question were entitled to be recalled.38 It is reasonably inferred that positions were properly available on and since March 9 (apart from those which may have developed since May 30) sufficient in number to accommodate all seven of the entitled strikers. Accordingly, I recommend as follows: Respondent offer to Baker, Collins, Dun, Hughson, Lee, McDonald, and Schneider immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, 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 discriminatory failure to reinstate them, by payment to each of them a sum of money equal to that which each normally would have earned as wages from the date of the discriminatory failure to reinstate them to the date of Respondent's proper offer of reinstatement. Backpay and interest shall be computed under the established standards of the Board.39 If and as necessary to make room for the reinstatement of these strikers, Respondent shall dismiss the part-time student employees, such other replacements hired during the strike who were not engaged on a permanent basis, and all replacements hired after March 9. Further, it is recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the rights of reinstatement due under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to reinstate seven named striking employees, excluding Handel Jr., to properly available positions after their unconditional request for reinstatement, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. All employees, including drivers, warehousemen, helpers, and cutters employed by Respondent at its Rochester, New York, warehouse, excluding all office clerical employees, salesmen, professional employees, guards, 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. 5. Since January 26, 1972, the Union has been, and is now, the exclusive representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing, at all times since January 30, 1972, to bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the foregoing, and by other specific acts and conduct interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 38 See, e.g., Coca Cola Bottling Works, Inc., 205 NLRB No. 27. 11 F. W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co, 138 NLRB 716