Alcan Aluminum Corp.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alcan Cable West, a Division of Alcan Aluminum Corporation and United Steelworkers of America, AFL-CIO. Cases 20-CA-8160 and 20-CA-8251 October 24, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On June 6, 1974, Administrative Law Judge Rich- ard J. Boyce issued the attached Decision in this pro- ceeding. Thereafter, the Charging Party, Respon- dent, and General Counsel filed exceptions and sup- porting briefs. Respondent and General Counsel also filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge concluded that Re- spondent violated Section 8(a)(3) and (1) by termi- nating the recall rights of employees Preece, Hent- horn, Stratton, and Martin. With regard to Martin, the Administrative Law Judge found, inter alia, that on April 2, 1974, strikers Coon and Stebbins, along with Martin, set upon a caravan of nonstriking em- ployees forming at a local gas station during which Stebbins assaulted one of the nonstrikers with an alu- minum cable. The nonstriker, employee Lucas, ultimately reached apparent safety in employee Gibson's car and the caravan left the gas station. However, soon thereafter, Gibson noticed that his vehicle was being chased by a car driven by Coon with Stebbins and Martin as passengers. Coon thereupon drove his ve- hicle into the rear of Gibson's car sending it into a 50-foot skid. The Administrative Law Judge con- cluded, on the basis of this incident, that employees Coon and Stebbins were properly denied recall privi- leges by Respondent but that Martin, whose role was basically passive in character, should not be "tarr[ed] . . . with the excesses of Coon and Stebbins." We disagree. The record indicates that Martin was not a mere onlooker in the April 2 incident. While Stebbins was assaulting Lucas, Martin was screaming threats in apparent approval of Stebbins' conduct and joined in the chase which followed immediately. Although Martin was not the prime actor in the April 2 inci- dents, he did voluntarily accompany employees Coon and Stebbins, did not disassociate himself from their conduct, and must, therefore, bear a degree of responsibility for their serious misconduct.' Accord- ingly, we find that Respondent did not act unlawful- ly in terminating Martin's right to recall. The Administrative Law Judge also found that Re- spondent had justifiably terminated the recall right of employee Baldwin because the latter had torn the outside mirror off the car of Respondent's chief neg- otiator, Brewer. In so finding, the Administrative Law Judge rejected the General Counsel's argument that Baldwin had grabbed the mirror in a reflexive response to Brewer's nudging Baldwin with his vehi- cle as the latter blocked its progress. Although Brew- er conceded he may have, in fact, initiated the con- tact with Baldwin, the Administrative Law Judge re- lied, in part, on Baldwin's failure to testify in rejecting the General Counsel's argument. In determining whether a striker has, through his misconduct, forfeited his rights to preferential recall, the Board has, at all times, considered whether the alleged misconduct is of such gravity as to require, in the public interest, removal of the protective mantle which the Act affords striking employees. Not every impropriety committed in the course of events does, in fact, deprive the employee of that mantle.' Our inquiry necessarily considers all surrounding circum- stances to include analysis of the severity and fre- quency of the misconduct of the employee involved and the quality of the evidence tending to establish that misconduct. We note first that the strike herein was lengthy, heated, and, in the Administrative Law Judge's words, "not a model of restraint." Baldwin's conduct occurred over 2 months after the commencement of the strike. The incident depicted above was the only incident involving this employee. Films in evidence indicate that it was not uncommon for a picketer to lose his balance when confronted by the movement of an oncoming vehicle. Brewer himself conceded that Baldwin may have ended up on the fender of his vehicle as a result of the movement of the car and that Baldwin was "real shocked" after realizing what he had done. Furthermore the extent of the damage is not clear. The picture in evidence of the mirror hanging off the side of Brewer's car does not indicate whether repair of the damage may have been effect- ed by merely rescrewing the mounting. No evidence was presented concerning the cost of the damage and Brewer testified that he did not pay for the repair. "1 think Alcan paid for that directly . . . [Respondent's See The Firestone & Rubber Company, 187 NLRB 54, 55 (1970). 2See Coronet Casuals, Inc.. 207 NLRB 304 (1973), and the cases cited therein. 214 NLRB No. 35 ALCAN CABLE WEST President] felt a little funny about it or something." In consideration of all these circumstances we are unable to conclude that this single, isolated, and ap- parently minor incident involving employee Baldwin justifies the termination of his right to recall. The Administrative Law Judge's recommended Order and notice shall be amended accordingly to show an 8(a)(3) violation as to Baldwin, but none as to Martin.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Alcan Ca- ble West, a Division of Alcan Aluminum Corpora- tion, Sunset Whitney Ranch, Rocklin, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as so modified: 1. Delete from paragraphs 2(a) and (e) the name "J. Martin" and substitute the name "G. Baldwin." 2. Substitute the attached notice for the notice of the Administrative Law Judge. 3 Although we agree with the Administrative Law Judge that Respondent's termination of employee Preece's reinstatement rights violat- ed Sec . 8(a)(3) and ( I), we do not agree with his rationale for that conclu- sion. Instead we would find that at all times-both before and after the April 23, 1974, reinstatement offer-Respondent considered Preece to be a striker, and , at no point, did Respondent ever offer Preece his former posi- tion or a substantially equivalent position. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate the recall rights of economic strikers who do not engage in disquali- fying strike misconduct. WE WILL rescind our termination of the recall rights of E. Henthorn, G. Baldwin, T. Stratton, and Harry Preece. WE WILL offer immediate and full reinstate- ment with backpay to any of the above four em- ployees who would have been recalled but for our unlawful termination of their recall rights. WE WILL, to the extent that compliance with the preceding paragraph fails to achieve imme- 237 diate reinstatement for the four named employ- ees, preserve their recall rights, and, as vacancies occur for which any is qualified, offer him that position unless he has obtained other regular and substantially equivalent employment. ALCAN CABLE WEST, A DI- VISION OF ALCAN ALUMI- NUM CORPORATION DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Sacramento, California, on Decem- ber 11, 12, and 13, 1973; January 14, 15, 16, 17, 18, 28, 29, 30, and 31, February 1, 1974. The charge in Case 20- CA-8160 was filed on March 20, 1973, by United Steel- workers of America, AFL-CIO (herein called the Union). The charge in Case 20-CA-8251 was filed by the Union on April 25, 1973. The consolidated complaint issued on Au- gust 21, 1973, alleging that Alcan Cable West, a Division of Alcan Aluminum Corporation (herein called Respondent) had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Post-trial briefs were filed for the General Counsel and Respondent. 11. ISSUES The issues are whether Respondent: A. Failed to bargain with the Union in good faith be- tween October 5, 1972, and the onset of a strike among its employees on January 15, 1973, violating Section 8(a)(5) and (1). B. Failed to recall certain strikers on and after April 23, 1973, and ceased to consider Harry Preece for recall after September 10, 1973, in violation of Section 8(a)(3) and (1). The latter issues in turn raise several subissues, among them whether the strike was an unfair labor practice strike, entitling the strikers to immediate recall even at the cost of displacing their replacements; and whether, regardless of the strike's status, certain of the strikers disqualified them- selves for recall by misconduct during the strike. III. JURISDICTION Respondent is a New York corporation engaged at Sun- set Whitney Ranch, Rocklin, California, in the manufac- ture of cable products. It annually ships products valued in excess of $50,000 from that location directly to customers outside California. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7). IV. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a)(5) and (1) 1. The evidence On October 5, 1972, following an NLRB election in Case 20-RC-10880, the Union was certified as the exclusive col- lective-bargaining representative of Respondent's employ- ees in this unit: All production and maintenance employees employed by the company at its Sunset Whitney Ranch , Califor- nia, facility, excluding plant clerical employees , office clerical employees, technical employees, professional employees, guards, and supervisors as defined in the Act. The unit normally consists of approximately 100 employ- ees. The complaint alleges, the answer admits, and I find the unit to be appropriate within the meaning of Section 9(b) of the Act. By letter dated October 6, from Carl Jones, an official of the Union, to Indru Kriplani , Respondent's president, the Union invited Respondent to suggest "a date, time and place to begin negotiations ." Kriplani replied by letter dat- ed October 12, stating in part: [A] meeting within the next couple of days would not be productive . It would help us both if you can pre- pare your complete proposals in writing and present them to us at a meeting to take place on November 3. The reason for this date is that I am going away for two weeks and we have not as yet appointed our chief negotiator . During the week of October 30, we will get in touch with you as regards a mutually acceptable time and place . This would be a preliminary meeting and hopefully serious negotiations will begin soon af- ter we have had an opportunity to appreciate the exact extent of your proposals. Jones answered by letter dated October 16, confirming No- vember 3 "for a meeting to present our contract proposals" and asking that it be held at the plant . Kriplani responded by letter dated October 27, ruling out the plant as a negoti- ating site , adding that "our negotiator will be in touch with you probably on November 2nd to finalize a mutually ac- ceptable time and place." On November 1, Respondent retained August Somer- feld, a labor relations consultant operating under the style of Sequoia Employers Council , as its bargaining spokes- man, so informing the Union by letter that day. The Union meanwhile, on October 20, had conducted an election at the plant to determine its officers and the employee mem- bers of its bargaining committe . Those elected to the com- mittee were Bob Coon, Charles Eastwood , Jerry Martin, Harry Preece, and Ernie Walker. The election was held during shift changes. Respondent cooperated fully, its gen- eral manager, Lee Roullier, even posting a notice, provided by the Union, announcing the election's pendency. The first meeting: The first bargaining session was No- vember 3, as scheduled, in a guestroom of the Flamingo Motel, Roseville, California, lasting from about 10 a.m. to about noon. Present for the Union were Jones, Internation- al Representative Arthur Mullett, and the five-employee committee; for Respondent, Sommerfeld, Roullier, and Basil Kehoe, the head of its quality control department. Jones, the Union's principal spokesman, began the meeting by expressing regret for the "unfortunate delays" in its scheduling, and stating that he wished to work day and night to reach the earliest possible contract. Explaining his sense of urgency, Jones said he soon would be going to Hawaii on business and thus unavailable to stay with ex- tended negotiations. Sommerfeld replied that he, too, was anxious that a contract be reached, but that there would be no point in working through the night at this first meeting since he would need time to study the Union's proposals. Jones then tendered the Union's proposals. They con- sisted of 21 typewritten pages containing fully drafted ter- minology in 15 subject areas, together with a 3-page index enumerating 47 areas in all that the Union wished to have covered by contract. Concerning some of the 32 areas in which the terminology had not been worked out, the index indicated the Union's position in a general way. Regarding wages, for instance, the index stated, "Substantial Salary Increase"; and it stated concerning hours of work and ov- ertime: 8 Consecutive Hours 1-1/2 times for Saturday Work 2 times for Sunday Work Jones characterized the terminology that had been devel- oped as "boilerplate," adding that the Union's proposals had been compiled in haste, borrowing extensively from other contracts. This prompted Sommerfeld to observe that "every facility was unique" and that he was not amenable to saddling Respondent with a contract not tailored for it. Jones continued that, as to areas in which the language had not been refined, he would orally outline the Union's posi- tion during the meeting . He also said that there was a cer- tain amount of "trading stock" in the Union's proposals, and suggested that they resolve the noneconomic or "lan- guage" issues first, then take up the cost items. Sommerfeld agreed to that. So it was that, when Sommerfeld asked what was meant by "substantial salary increase," Jones an- swered that the Union was thinking in terms of about $1 an hour, but would make its specific proposal later. They also agreed that there would be no agreement until there was complete agreement on all issues. Preliminaries out of the way, Jones briefly explained the Union's proposals, item by item, inviting Sommerfeld's counterproposals on the "boilerplate" issues. Sommerfeld demurred, saying that he wanted to digest the document and review it with company officials before countering. Jones voiced disappointment with this, commenting that the boilerplate issues were not difficult or unusual and that he saw no reason why they could not work into the night to get them out of the way. During the meeting, Sommerfeld told Jones that Re- spondent would not be holding its usual Christmas dinner for employees that year. He explained that the dinner tra- ditionally had been a vehicle by which the president re- ALCAN CABLE WEST ported to the employees the Company's prospects, an- nounced wage increases , discussed other possible improve- ments in conditions, etc., and that that would be inappro- priate now that the Union was in.' Sommerfeld added that, in any event, Kriplani would be away to his native India over the holidays; moreover, that the Company was in per- ilous fiscal condition, considering even selling the plant, and it was Respondent's preference not to convey that de- moralizing possibility to the employees? Jones responded that he was not concerned about the dinner,,but did want the employees to get their Christmas turkey as in years past. Sommerfeld said that would be done, and Jones an- swered, "O.K." Also during the meeting, Jones asked that Respondent provide whatever written materials it had descriptive of job classifications, wage rates, and fringe benefits. Roullier complied by mail that afternoon. As the meeting closed, Jones pressed for a fixed date for the next meeting. Som- merfeld replied that he could not provide one, but that he would let the Union know when he had had a chance to study its proposals, and discuss them with company offi- cials, and was ready to meet again. The second meeting: The second session was held No- vember 29, at the same place. Precisely how that date was chosen is not clear from the record, but it is evident that the matter was raised in several telephone calls between Sommerfeld and union officials, and that there was con- cern that conflict with the Thanksgiving holiday be avoid- ed. The meeting lasted from about 10 a.m. to about 1 p.m. Jones was not present, Mullett assuming his role as chief union spokesman. Otherwise, attendance on the union side was as before. Sommerfeld and Roullier appeared for Re- spondent, Kehoe being absent. Sommerfeld opened the meeting by saying that, al- though the Union's proposals seemed but a "hodgepodge mixture" from various of its contracts, he was prepared to reply orally to them, and would reduce Respondent's posi- tion to writing by the next meeting. With that, he ad- dressed himself to the Union's proposals. To enumerate: 1. Management rights. Sommerfeld said that he was not in accord with the Union's management rights proposal, and that he intended to submit a "fairly comprehensive" counterproposal on the subject to assure to Respondent the necessary flexibility to run the plant. He added that he wanted to avoid the "administrative nightmare" of a griev- ance every time a supervisor picked up a wrench. Mullett replied that the Union did not mean to bar unit work by supervisors altogether, but did want it limited to teaching and demonstrating. Eastwood of the Employee bargaining committee joined in that Respondent regularly used super- visors for much more than that. Sommerfeld answered that 1 Respondent's "bluebook," descriptive of certain conditions of employ- ment before the advent of the Union, stated concerning the Christmas din- ner: "Each year prior to Christmas, the Company has a dinner, and at that time one of the executives of the Company reviews the Company's activities during the past year and gives some indication of the business outlook for the following year." 2 Respondent was weighing two alternative-sell the plant or expand it to achieve greater production . Shortly before leaving for India in December. Kriplani recommended to headquarters in Cleveland, Ohio, that the latter course be followed . That recommendation was adopted in January 1973. 239 Respondent meant to work supervisors in unit tasks only "when the occasion demanded it," Roullier noting that it was not his practice to use supervisors on production chores unless compelled by exceptional circumstances. 2. Seniority. Sommerfeld stated, in answer to the Union's proposal of plantwide seniority, that Respondent, while prepared to reduce the number of job classifications, would insist on seniority by classification.3 3. Overtime. To Mullett's assertion that procedures were needed to assure fair allocation of overtime, Sommerfeld replied that there had been no complaints about the ex- isting arrangement, nor any evidence of unfairness; conse- quently, that he saw no point in the creation of a "labori- ous recordkeeping system" to deal with the situation. 4. Union security. Sommerfeld said that, it being Respondent's view that each employee should have free choice whether to join the Union, an open shop was man- datory. Mullett voiced doubt that this would be acceptable, but said the Union would consider it. 5. Holidays. Sommerfeld stated that Respondent would propose continuation of the existing nine paid holidays, as against the Union's proposal that there be 10. He and Mul- lett briefly discussed the idea of a "floating holiday." 6. Subcontracting. Sommerfeld commented that the Union's proposal, providing for the submission of subcon- tracting plans to a joint "contracting out committee" and eventually to arbitration in the event of disagreement, was "harsh and frankly unnecessary" for Respondent's opera- tion. 7. Dues checkoff. Sommerfeld said without elaboration that the Union's proposal was unacceptable, and that he would submit a counterproposal. 8. Uniforms. Sommerfeld said no to the Union's propos- al that each employee be provided two additional uni- forms. Also discussed, although not among the Union's propos- als, were Respondent's salary continuation plan and the matter of the Christmas dinner. Concerning the former, which was a plan by which Respondent paid to employees on layoff the difference between their unemployment in- surance benefits and their salaries, Sommerfeld said that Respondent would prefer to discontinue it, instead raising wage levels an offsetting amount. That way, he explained, all employees would benefit, instead of just a few, and Re- spondent would be able to project its economic exposure with precision. Eastwood answered that he saw no problem with this in principle, but that he would have to study it in its particulars, and in the context of the overall cost pack- age, before passing final judgment. Sommerfeld did not indicate the extent to which wages might be raised by elim- inatingthe plan. Regarding the Christmas dinner, Sommerfeld repeated his assertion of the earlier meeting that there would be none this year, stating the reasons previously advanced. To Mullett's stated concern about the turkeys, Sommerfeld confirmed that each employee would receive one as in the 3 Respondent's "bluebook " listed over 40 classifications then in existence. Regarding seniority, the "bluebook" stated : "Seniority shall ... be fol- lowed in lay-offs and recall, provided the employees have the ability to perform the jobs. " (Emphasis supplied.) The practical effect or this language seem- ingly would be seniority by classification. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past, adding that the wives and children would be invited to the plant, when they were given out, for "goodies" and d punch. As the meeting ended, Mullett complained about the suitability of the Flamingo Motel for future sessions, both because of geographic remoteness and the smallness of its rooms. Sommerfeld responded that the Company would procure another site and submit written counterproposals at the next meeting.5 It was agreed to hold the next meeting December 7, subject to Sommerfeld's verifying with his of- fice that there would be no conflict. The third meeting: Sommerfeld learned the afternoon of November 29 that he had a prior commitment for Decem- ber 7, notifying the Union by telephone on November 30. The third session consequently was held December 12, in a remote portion of the lobby-a lobby meeting room, so- called-of the Sacramento Inn in Sacramento. It began about 10 a.m., adjourning 2 or so hours later. Mullett at- tended for the Union, along with four members of the em- ployee committee and one Mr. Prader, a union staff repre- sentative. Sommerfeld and Roullier were present for Re- spondent, together with Leland Brewer, an associate of Sommerfeld's with Sequoia Employers Council. The meeting began with Harry Preece of the employee committee complaining of the lack of privacy. Little fur- ther was said on that subject, however, for Sommerfeld presently tendered to Mullett Respondent's written coun- terproposals. They consisted of 26 typewritten pages, cov- ering 20 subject areas, and were accompanied by this let- ter: Dear Mr. Mullett: At our most recent meeting we reviewed the various aspects of the Union's proposals. At that time you re- ceived the Company's initial response and the reasons in support. Subsequently, the Company again very carefully considered their position as related to the Union's proposals. Attached you will find our written response. As you will recall, the discussions relating to Seniority were very candid. The attached proposals further re- flect the Company's position to retain the right to judge its employees. The bargaining committee expressed serious misgiv- ings about supervisors performing so called bargaining unit work. We have further considered this matter and do not feel work restrictions should be placed upon the supervisors. Please note the Management Rights as proposed by the Company also answers several of your proposals, and by doing so, constitutes our proposal on these issues. A "reception" was held at the plant December 23, during which turkeys were distributed among approximately 100 employees and "goodies" and punch were provided for wives and children. The cost of this affair was about $1,300. 5 There is conflict whether Mullett asked that Respondent's counterpro- posals be furnished before the next meeting to give the Union a chance to prepare for it. Mullett testified that he did , Roullier and Sommerfeld that he did not. Roullier and Sommerfeld are credited . Roullier in particular was impressive in recall , articulation , and concern for the truth. The Union has expressed a particular desire to obtain a Union Security clause (Compulsory Union Member- ship and/or tender of fees). We believe individual freedom is an undeniable right, and therefore propose the attached Employee Security clause (Voluntary Union Membership). Although we have not submitted a proposal at this time, we would accept a dues check- off, providing we can agree on a simplified voluntary procedure for implementation and cancelation; with consideration being given to the Company for their work in making such deductions. Attached we are submitting the following: Articles of Agreement; Management Rights; Discrimination; Recognition; Seniority; Steward; Casual Employees; Grievance Procedure; Arbitrator's Authority; Dis- charge and Disciplinary Procedure; Absences, Notifi- cation and Personal Leaves; Visitation (For Union Representatives); Military Leave; Employee Security; Unit Work for Supervisors; Hours of Work and Over- time; Assignment of Overtime; Safety; Holidays; and No Strike-No Lockout. These submissions are subject to correction. It is our understanding the Union's preference is to defer action on economic issues until we have reached agreement on contract language. We reserve the right to submit additional proposals in response to the Union's demands. We are most anxious to reach an agreement, and re- quest you give these proposals your careful consider- ation. In keeping with the earlier understanding to dispose of noneconomic issues first, Respondent's submission did not deal with cost items. Mullett, after quickly thumbing through the document, called a caucus, remarking that it was necessary only be- cause Respondent had failed to submit its proposals in ad- vance of the meeting. The caucus lasted close to 2 hours, after which Mullett announced that the Union would need still more time to study the matter, and suggested adjourn- ment. Sommerfeld asked if he had any questions or desired any clarification; Mullett said no. The meeting closed with Mullett saying that the Federal Mediation and Concilia- tion Service would be represented at the next meeting; that Sommerfeld would be hearing from the mediator about time and place.6 The fourth meeting: Following the December 12 meeting, Mediator Tony Vavrus of the FMCS initiated several tele- phone calls to Sommerfeld and to union officials regarding a date for the next session, the process being complicated by the Christmas-New Year's interlude. January 4, 1973, finally was settled upon.? The fourth meeting was held that day at the Sheraton Inn in Sacramento, under the guidance 6 Mullett's testimony is discredited that there was agreement to meet again not later than December 15. This not only was at odds with the testimony of Roullier, Sommerfeld , and Brewer, but with the undisputed testimony that the mediator was to arrange the next meeting. 7 Although sketchy in this regard , the record indicates that January 4 was one of the dates advanced by the mediator for the next meeting. He appar- ently proposed two or three other dates as well . The record does not disclose what those were, the bases for their being rejected , or who rejected them. ALCAN CABLE WEST of Mediator Vavrus, lasting from about 10 a.m. to 5 p.m. Edgar Stuart, a staff representative was the Union's princi- pal spokesman this time. Mullett, although present until about noon, took a passive role. The employee committee also was present. Leland Brewer was Respondent's chief spokesman, Sommerfeld being ill.8 In addition, Roullier and Roger Dittmer, a foreman, represented Respondent. Stuart, after introducing himself, proclaimed that the membership had rejected Respondent's submission, and suggested that further consideration be given the Union's proposals.9 Brewer asked that he state, specifically, what was wrong with Respondent's proposals, to which Stuart said that, in view of the members' sentiments, there was no point even in talking about it. Stuart continued that the Union's proposals were much like the provisions of Alcan contracts elsewhere, that there was "nothing outlandish" about them. Brewer countered that Respondent was not interested in contracts at other plants, only in one tailored to its circumstances. Brewer at length suggested that they place the two sets of proposals side by side for purposes of discussion and comparison. Stuart rejected that, adhering to his insistence that they concentrate on the Union's pro- posals. It at last was agreed, per Stuart's wishes, to look afresh at the Union's proposals. An item-by-item perusal ensued, taking the meeting into the afternoon.) That accom- plished, Brewer again asked that the two sets of proposals be considered side by side. Stuart relented this time, and the item-by-item process was repeated, attention now being given to Respondent's proposals. Not surprisingly, the wit- nesses had some trouble in their testimony segregating comments made during the first go-round from those dur- ing the second. The essence of the comments on the several subjects, made one or the other or both times, follows: 1. Articles of agreement. The parties were in agreement, Brewer assenting to the Union's proposal that the number of the local union be inserted. 2. Recognition. Stuart concurred in Brewer's view that recognition be limited to the plant in question; that there be no accretion clause. Stuart, however, objected to the exclusion of supervisors from the unit description in Respondent's proposed recognition clause, Respondent elsewhere proposing no limit on supervisors' doing unit work. 3. Unit work by supervisors. Continuing the foregoing discussion, Stuart said that the Union could not agree to supervisors' taking work from unit people, except in emer- gencies. Brewer answered that Respondent's proposal did not envision supervisors doing unit work in ordinary cir- cumstances; that it would be inefficient for them to do unit work on a regular basis. 4. No-discrimination. Stuart objected that Respondent's 8 Sommerfeld developed pneumonia before Christmas, remaining disa- bled for several weeks. 9 There is no evidence that a membership vote in fact had been held, causing one strongly to suspect that Stuart's mention of such an event was purely a ploy. to Roullier and Brewer are credited over the contrary testimony of Stuart and Eastwood that the Union 's proposals were reviewed first . Roullier, as previously noted , was an exceptionally convincing witness , as was Brewer. Moreover, Eastwood's testimony contradicts itself on this point. 241 proposal did not bring union membership within its protec- tive embrace, mentioning in passing the need to standard- ize lunchbreaks for men and women. Brewer agreed to the latter. Concerning the former, he said that, although laws amply treat with the situation, he would be agreeable to the inclusion of union membership and nonmembership. 5. Seniority. To the Union's insistence upon plantwide seniority, with some allowance, according to Stuart, for "expertise," Brewer reiterated Respondent's insistence on seniority by classification. 6. Union security. Stuart said the Union might consider a grandfather arrangement exempting present nonmember employees from joining. He added, however, that union security was most important to the Union; hence, that was the most it would give. Brewer said that he would reserve comment until seeing such a proposal in writing.) t 7. Management rights. Brewer observed that, this being a first contract, Respondent was apprehensive about re- stricting its flexibility as proposed by the Union; that Respondent's proposal would be much better for it without posing any threat to the Union.12 8. Safety. Stuart argued that since the employees' lives were at stake, the Union should have a strong voice in the membership of the safety committee. Brewer replied that there already was an effective safety committee, which in- cluded employees, that Respondent's safety record was good, and that the Occupational Safety and Health Act provided yet further protection. 9. Discipline. Stuart wanted Respondent's language per- mitting "discharge for cause" to read "just cause." Brewer said he would have to think further on that. 10. Breaks. To Stuart's insistence that all employees re- ceive a half-hour lunchbreak, off the clock, Brewer said it was essential that some employees eat at their machines to ensure continuity of production. 11. Plant access. Stuart said that Respondent's visitation proposal for union official was unduly restrictive, and would hamper the investigation of grievances. 12. No-strike, no-lockout. There was agreement on this. 13. Overtime. Stuart again voiced the Union's concern that provision be made for fair allocation of overtime, and Brewer again stated Respondent's position that, there nev- er having been a problem, there was no need to create a "bureaucratic nightmare." Stuart asserted additionally that Respondent's overtime proposal was regressive.(; Brewer replied to this that such is the nature of bargaining-there is no assurance that existing conditions will be maintained or improved upon. 14. Holidays. Stuart charged that Respondent's holiday proposal likewise was regressive. Brewer answered that Stuart apparently misunderstood Respondent's position, for it was its wish to maintain the existing 9-holiday struc- The Union never did tender a written proposal of this nature. 12 While he and Stuart discussed the Union's management rights propos- al, during the first part of the meeting, Brewer attempted to draw a compari- son with Respondent's proposal. Stuart squelched him with a statement to the effect that they were talking only about the Union's proposals, not Respondent's. The record does not disclose why Stuart considered this to be so. He presumably was referring to the proposal's failure, contrary to the past prac- tice as set forth in Respondent's "bluebook ," to pay overtime for work in excess of 8 hours in a given day. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture. The Union continued to press for 10. 15. Salary continuation. Stuart also labeled as regressive Respondent's proposed discontinuance of the salary con- tinuation plan, apparently being unaware of Sommerfeld's November 29 assurance of a commensurate improvemel.t of wages. 16. Job classifications. Stuart likewise expressed strong opposition to Respondent's proposal to reduce the number of classifications, refusing to see this as a quid pro quo to the Union's relinquishing its demand for plantwide senior- ity.14 17. Absences. Stuart protested that Respondent's pro- posal, requiring employees to notify Respondent during the first day of any absence, was burdensome. Brewer said the proposal was subject to modification, but that Respon- dent was not going to absolve the employees completely from such a requirement. 18. Arbitration. Stuart took issue with Respondent's proposal that the respondent in an arbitration proceeding have sole say, from a list furnished by FMCS, in the selec- tion of an arbiter. To Brewer's rejoinder that the Union, rather than the Company, might be the respondent in a given arbitration matter, Stuart commented that, in the na- ture of such things, the Company was far more likely to be. Although it was not a subject of either party's proposals, Stuart asked Brewer what Respondent planned to do in lieu of the Christmas dinner. Brewer repeated the reasons for its not being held, adding that the matter had been discussed and resolved with Jones and Mullett. Brewer said he would check with them. While the parties seemed to concur on some issues on January 4-articles of agreement; a no-discrimination pro- vision; a no-strike, no-lockout provision; and that there be no accretion clause-nothing was formalized and neither side considered the issues to have been appreciably nar- rowed. Even so, Stuart's testimony that they had not agreed on anything, "not even a preamble," perhaps was unduly bleak. At meeting's end, Stuart suggested that they meet again the next day, January 5, same time and place. Brewer said that would be impossible; that no one from the Company would be available. Brewer added that arrangements for future meetings should be made with Sommerfeld. Never= theless, with the mediator's blessing, Stuart announced that he, the employee committee, and the mediator would be there January 5. True to his word, Stuart did show up the next day, as did the employee committee and Mediator Vavrus. Brewer, true to his word, did not show, nor did anyone else for Respondent. At 2 p.m. that day, a Friday, the employees walked off the job, not to return until the following Mon- day. Involved were day and night shifts Friday, and a Sat- urday shift. The plant would have been down Sunday, re- gardless. Stuart admitted at a bargaining meeting January 19 that the walkout had been a pressure tactic in fur- therance of the Union's bargaining position. On January 8, Sommerfeld and the Union' s Jones con- 14 Stuart testified that Respondent wanted to reduce the number of classi- fications to four or five. As mentioned previously, the "bluebook" specified over 40. versed by telephone concerning a future meeting date. Sommerfeld proposed January 19, and Jones said any ar- rangements would have to be verified with Stuart. Som- merfeld accordingly informed Stuart, by letter dated Janu- ary 9, that "we still offer to meet on January 19, 1973"; and Stuart sent a letter to Sommerfeld, also dated January 9, stating in part: As you know there has been only four meeting's con- cerning these negotiations in approximately four months, and those four meeting's have borne very lit- tle fruit in fact nothing, to my knowledge has been agreed to, with respects to an agreement. Today, I spoke with your Secretary Julie and she in- formed me that you would be willing to meet on Janu- ary 19th, 1973. I appreciate your thought however with the circumstances being as they are it is of the upmost importance that a Meeting be held prior to that time. Please understand that should you not be able to meet we would be most happy to meet with anyone you designate. It is of the utmost importance that we meet otherwise a work stoppage could occur due to no talks, and I personally do not want this to happen, however, you should understand that should a work stoppage occur it would be due to the fact the Company had refused to bargain and I point out again, the Union is willing to meet with anyone you designate should you not be able to meet in an effort to avert any type of work stoppage. Hoping to hear from you soon with regards to this matter. Also on January 9, Jones telephoned Roullier, during which conversation the two agreed to meet January 16 for lunch to discuss the bargaining situation. Roullier later canceled on advice from Sommerfeld, who believed this to be part of an effort by the Union to circumvent and discre- dit him as Respondent's spokesman. On January 12, the Union convened a meeting of unit employees. Stuart and Eastwood reported to them that Re- spondent had not been bargaining in good faith, mention- ing the time lapses between meetings, that Respondent was bargaining regressively relative to existing benefits, and that it was using Sommerfeld's illness as an excuse for de- lay. Stuart recommended a strike. A strike vote followed, adopting that recommendation. The date set was January 15. The strike began as scheduled, lasting until April 23. Never before the strike did the Union expand in written form on its original incomplete written proposals. The strike did not prevent the parties' meeting January 19 for further bargaining, nor frequent and lengthy meet- ings thereafter.15 The parties have reached tentative agree- ment on a number of issues, but total agreement still evades them. It being the General Counsel's position that all parts of Respondent's 8(a)(5) misconduct were in place 15 The parties stipulated that there were 30 to 35 bargaining meetings between the start of the strike and trial herein approximately I I months later, and that most of the meetings lasted several hours. ALCAN CABLE WEST 243 before the strike, and that no additional indications of bad faith later emerged, the subsequent meetings will not be described. 2. Analysis of the alleged violation of Section 8(a)(5) and (1) An essential of good-faith bargaining, within the mean- ing of Section 8(a)(5), is a genuine desire to reach agree- ment. As the Supreme Court stated in N.L.R.B. v. Insur- ance Agents' International Union [Prudential Insurance Co.], 361 U.S 477, 485 (1960): Collective bargaining . . . presupposes a desire to reach ultimate agreement , to enter into a collective bargaining contract.... This was the sort of recogni- tion that Congress . . . wanted extended to labor unions; recognition as the bargaining agent of the em- ployees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. To this the Board has added that "the mere willingness of one party in the negotiations to enter into a contract of his own composition also does not satisfy the good-faith bar- gaining obligation." Wal-Lite Division of United States Gyp- sum Co., 200 NLRB 1098, 1101 (1972). The General Counsel contends that the totality of Respondent's prestrike conduct reveals a lack of the requi- site contractual desire, the parts alleged to comprise that totality being: (a) Kriplani's failure, in his letter to the Union of Octo- ber 12, to suggest a meeting before the week of October 30. (b) The 26-day lapse (November 3 to 29) between the first and second bargaining meetings , and Respondent's refusal at the first meeting to agree on a date certain for the next. (c) Respondent's failure to adhere to the December 7 date for the third meeting, necessitating its rescheduling to December 12. (d) The 23-day lapse (December 12 to January 4) be- tween the third and fourth meetings. (e) The failure of Respondent to be represented at the January 5 followup to the January 4 meeting. (f) Respondent's failure to make a counteroffer at the first meeting, its addressing itself to the Union's proposals at the second meeting rather than making a counteroffer, its failure to make a written counteroffer until the third meeting, and its failure to provide the Union with copies in advance of that meeting. (g) Respondent's refusal to accede to the Union's stated wish that they undertake marathon 'round-the-clock bar- gaining. (h) Respondent's failure to agree to any of the Union's proposals, and its failure to reciprocate the Union's state- ment that it was prepared to make concessions-that there was "trading stock" in its proposals. (i) Respondent's proposing, in its counteroffer, condi- tions less generous in certain respects than those in exis- tence. The General Counsel cites, in this regard, the pro- posals to reduce the number of classifications , eliminate the salary continuation plan, institute seniority by classifi- cation, and eliminate overtime for over 8 hours worked on a given day; and the failure to propose a wage progression plan at least matching that in the "bluebook." (j) Roullier's cancellation of the scheduled January 16 meeting with the Union's Jones. (k) The cancellation of the Christmas dinner. Examining these parts, singly and in their aggregate, one is compelled to the conclusion that, while Respondent's approach to prestrike bargaining was not overweeningly zealous, it did not reach unlawful proportions. Some of the General Counsel's arguments to the contrary seem almost to presuppose a double standard of bargaining behavior. Thus, while the General Counsel would blame Respondent for the delay of the first meeting until November 3, the Union had not chosen its employee bargaining committee until October 20, and its written proposals on November 3 were so incomplete and haphazardly assembled as to raise doubt of its ability to make an earlier showing. Nor would it be right to hold Respondent liable for the delay between the December 12 and January 4 meetings. Not only were arrangements for the latter made by Media- tor Vavrus, at the Union's behest; but there was the inter- vention of the holiday season, which inevitably is disrup- tive of commerce. As for Respondent's failure to appear on January 5, Stuart was adamant in his insistence on that date, without exploring alternatives, despite Brewer's dis- closure that Respondent could not and would not be repre- sented. It was a power play, bringing greater discredit to the perpetrator than to Respondent for refusing to submit. That Respondent failed to make any on-the-spot coun- teroffers at the first meeting, having never before seen the Union's proposals, perhaps was more consistent with a de- sire to reach a sound and reasoned agreement than no agreement at all; and in any case was no less reasonable than the Union's adjournment of the December 12 meet- ing, without any dialogue to speak of, upon receipt. of Respondent's written proposals. Similarly, the assertion that Respondent showed bad faith during the second meet- ing, by Sommerfeld's addressing himself to the Union's proposals rather than proffering counter-proposals, ignores the perfect appropriateness of his doing just that in the circumstances ; and rests on semantic nicety, besides, the reality being that Sommerfeld by whatever descriptive la- bel revealed Respondent's position in a number of areas in the process. That Respondent refused to join with the Union in mar- athon bargaining, far from showing bad faith, was alto- gether consonant with respect for bargaining as a reasoned deliberative process; and the failure of Respondent to mir- ror the Union's comment that its proposals were larded with "trading stock" might well indicate that the greater sincerity, in terms of proposal content, was on its side. Moreover, although the record reveals Respondent as dis- posed toward hard bargaining, it portrays the Union, most notably with Stuart as spokesman, in that same flinty light. Even at that, the rigidity was not absolute, and Section 8(d) of the Act precludes a finding of bad faith on the refusal to agree to a proposal or make a concession . H. K. Porter Co. v. N.L.R.B., 397 U.S. 99 (1970); United Steelworkers [Flori- da Machine & Foundry Co.] v. N.L.R.B., 441 F.2d 1005 (C.A.D.C., 1970). 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the alleged regressivity of certain of Respondent's proposals, its idea of reducing the number of classifications, coupled with seniority by classification, in part was to meet the Union halfway on its proposal for plantwide seniority; elimination of the salary continuation plan envisioned a wage boost as quid quo pro, a notion agreeable in principle to the Union at the second meeting; seniority by classification seemingly comported with estab- lished practice as defined in the "bluebook"; and the fail- ure to propose a wage progression scheme presumably was a manifestation of the earlier understanding to save cost issues for last. It is true that Respondent's overtime propos- al was regressive in its elimination of premium pay for over 8 hours in any I day, but, as Brewer correctly observed on January 4, lawful bargaining does not preclude that possi- bility. Nor was there anything damning in Roullier's cancella- tion of the January 16 meeting with Jones, or the cancella- tion of the Christmas dinner. Regarding the former, Roulli- er was acting out of commendable concern for the orderly conduct of negotiations through established channels; as for the latter, Sommerfeld made full disclosure to the Union, whose spokesmen voice acquiescence, at both the first and second meetings. That leaves the 26-day lapse between the first and sec- ond meetings, Respondent's failure to adhere to the De- cember 7 date for the third meeting, and its failure to fur- nish the Union with copies of its counterproposals in ad- vance of the third meeting. The first meeting having closed that Sommerfeld would contact the Union when ready to resume, Respondent must be held accountable for much of the lapse between the first two meetings, Thanksgiving also partly to blame. But, Thanksgiving or no, the one lapse alone would not carry a finding of bad faith; and, as this analysis elsewhere suggests, there is no link with a larger pattern to assist it in that direction. Concerning the rescheduling of the December 7 meeting to December 12 and the failure to provide advance copies of the counterproposals, the one did not cause a delay in- dicative of bad faith and the other no more betokened bad faith than did the Union's not supplying copies before the first meeting. To conclude, Respondent did not violate Section 8(a)(5). See generally, WCUE Radio, Inc., 209 NLRB 181 (1974); Alkahn Silk Label Company, 193 NLRB 167 (1971); W. L. McKnight, d/b/a Webster Outdoor Advertising Company, 170 NLRB 1395 (1968); The Proctor & Gamble Manufactur- ing Company, 160 NLRB 334 (1966). B. The Alleged Violations of Section 8(a)(3) and (1)-The Reinstatement Situation Generally 1. The evidence The strike was not a model of restraint, either at or away from the picket line. Respondent's administration building was under frequent rock barrage from the pickets, several broken windows resulting; 16 delivery trucks and vehicles 16 Respondent eventually boarded up the windows of the administration building. of nonstrikers likewise were stoned; windows of nonstrik- ers' vehicles were bashed in by ball bats; mirrors were rip- ped from cars passing through the picket line; car finishes purposely were defaced; at least one tire was knifed flat; there was vehicular harassment of nonstrikers on the high- ways; and sundry scuffles occured at the picket line, along with one full-scale riot. On a gentler note, the pickets voiced the traditional epithets and threats to nonstrikers and company officials; and regularly ambled in front of incoming and outgoing vehicles, delaying their progress variously from several seconds to several minutes.17 Some of this was recorded on film in evidence. Pickets were ar- rested from time to time, and the Superior Court of Placer County issued an order on January 30, 1973, restraining certain picketing activities, which was modified and broad- ened on April 5. The strikers voted April 17 to return to work on April 23. The Union's Stuart so informed Roullier that evening, both by telephone and telegram. The telegram stated in relevant part: This will confirm our telephone conversation of this evening wherein I informed you that all employees of Alcan Cable West, which are presently on strike, are returning to work on Monday April 23 at 7:00 a.m. Having been operating with permanent replacements," Respondent busied itself between April 17 and 23 de- termining where openings existed, which returnees to place in those openings, and which strikers to be denied recall for strike misconduct. It was decided that seniority would de- termine order of recall. Further to facilitate an orderly re- turn, Sommerfeld and Brewer met with Stuart and the em- ployee bargaining committee on the evening of April 18. The meeting failed its purpose, however, Stuart insisting that all the "scabs" be fired, adding that he was not inter- ested in negotiating a back-to-work agreement.19 The strikers assembled in Respondent's parking lot on April 23 at 7 a.m. Roullier read to them this prepared state- ment: I am glad to see that all of you are here today. As you are aware, during your absence the Company hired permanent replacements for some of the positions in the plant. We have 10 openings today and expect to have more in the immediate future. The positions which are open today are: Two Extruder Utilities One Twister URD Operator 17 Respondent's nonstriking personnel queued up in vehicular caravans going to and from work . Picketers commonly delayed each car in a caravan, the result being that those to the end of a caravan were delayed much longer than those at the head. is The General Counsel does not dispute the permanency of the replace- ments. 19 Sommerfeld and Brewer are credited that, from Respondent's vantage point at least , the reason for the meeting was to discuss a back - to-work agreement . Stuart saw it differently : "At one time they started to talk about one of those people. and I said I wasn't there to discuss the scabs. I was there to discuss labor agreement" ALCAN CABLE WEST R/F Utility Two Sr. Mechanics One Janitor One Shipping Utility One Test Tank Operator Those of you who are to work today are: Glen Henderson Paul Payne Harry Preece Peter Jenkins Ernie Walker George Suzuki Mack Tsujimoto Dick Horiuchi Sumito Horiuchi Jim Green Those of you who have been named should go into the plant and report to Basil Kehoe. As soon as you have done so, I will continue with outlining our program for returning the others to work. Those names again are: Glen Henderson, Paul Payne, Harry Preece, Peter Jenkins, Ernie Walker, George Suzuki, Mack Tsujimo- to, Dick Horiuchi, Sumito Horiuchi, and Jim Green. Those of you who have a legitimate right to return to work when openings arise will be contacted. It is our hope that we can return you to your positions as soon as possible. In this regard, we have your telephone numbers in the office. However, if during the strike you have moved to another location or obtained a dif- ferent telephone number, I would appreciate you call- ing Carline Fulmer at the plant and giving her the information. Let me assure you that if you are legitimately entitled to return to work we will make every effort to return you to your job as soon as there is an opening. During Roullier's reading of the statement, a chorus arose among the strikers, "All back or none," or words to that effect, and only one of those named by Roullier, one of the Horiuchis, did return that day. Stuart told Sommer- feld that same morning that the strikers had gone out to- gether and were going to come back together. The strikers nevertheless returned on a piecemeal basis, during the suc- ceeding days and weeks, as follows: Name Date Returned G. Henderson April 24 1. Horiuchi April 24 Z. Iqbal April 24 P. Jenkins April 24 P. Payne April 24 G. Suzuki April 24 M. Tsujimoto April 24 E. Walker April 24 D. Farmer April 27 K. Gilbert April 30 P. Green April 30 R. Kantola April 30 F. Nunez April 30 D. Coder May 11 T. Ozcan May 11 J. Ennega May 18 R. Korte June 4 D. Robertson June 8 R. Plunkett June II F. Horan June 18 V. Lopez June 26 C. Eastwood June 29 P. Gignac June 29 245 Among those denied recall because of alleged strike mis- conduct were: 20 G. Baldwin D. Lasick D. W. Braswell J. Lasick J. C. Braswell Vic Lopez R. Coon J. Martin D. Franklin R. McCoy R. Grenier B. Stebbins G. Hauer R. Spiller E. Henthorn T. Stratton The specific circumstances leading to the refusal to re- call these 16 were: Baldwin: On March 20, while picketing at the entrance- exit to the plant, Baldwin deliberately tore the outside mir- ror off Brewer's car 21 D. W. Braswell: On March 28, Braswell and a number of other strikers waylaid a four-car caravan of nonstriking employees near the plant., Braswell struck Robert Skidgel's truck with a ball bat, breaking the windshield and a side window.22 J. C. Braswell: On February 6, while Braswell was pick- eting, Skidgel mentioned to him that rock-throwing was dangerous. Braswell, replying that Skidgel should not ac- cuse him of that, swung at Skidgel through the window of Skidgel's truck, grazing his shoulder with a fist. Braswell then told Skidgel to get the hell out of there if he did not want trouble. On March 28, Braswell was among those who waylaid the four-car caravan in the incident mentioned above. There is no evidence that he personally inflicted any dam- age, but he was among those who stood in front of the caravan, body-blocking its progress in anticipation of the attack. That this was a coordinated effort among the sever- al strikers present was indicated by the manner in which 20This list includes only those claimed by the General Counsel to have been denied recall unlawfully. At least one other , Ron Jordan, was denied recall because of alleged strike misconduct. 2' Brewer conceded that his car may have nudged Baldwin as Baldwin blocked its progress . While this incident was not filmed , films in evidence depict several occasions when picketers stood in front of slowly moving vehicles , inviting harmless contact . It must be concluded from Brewer's testimony , and in the absence of testimony by Baldwin , that this was such an occasion . The speculative argument in General Counsel 's brief that Bald- win was forced onto the car by the impact, and grabbed the mirror as a reflexive act of self-preservation, is rejected. 22 The General Counsel argues in his brief that the record does not sup- port a finding that D. W. Braswell hit Skidgel's truck. To the contrary. James Caughman , whose vehicle was behind Skidgel 's. testified that he saw Braswell swing the bat ; and Skidgel testified that , while he did not observe the blows being struck , he saw Braswell next to his car , bat in hand, immedi- ately after . The inference thus can be drawn , particularly since Braswell did not testify. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the attack was triggered: Striker Charles Carnes dropped his raised arm and shouted, "Now!" 23 Coon: On or about March 8, Coon veered his car rapidly (40-50 mph) toward Security Guard Don Birdsong and another guard, as if going to hit them. The record does not disclose how close Coon's car came to them. On April 2, Coon and some other strikers set upon a caravan of nonstrikers forming at an Exxon station, after which Coon rammed his car into the rear of nonstriker Don Gibson's as it proceeded down a highway, throwing the Gibson car into a skid. The record does not disclose the extent of damage.24 Franklin: Franklin was among those involved in the ear- lier described ambush of the four-car caravan on March 28. There is no evidence that he personally inflicted any damage, but he, like J. C. Braswell, situated himself to force the caravan to stop. On March 31, Franklin kicked the sides of two cars as they left the plant, and on April 10 did likewise to Presi- dent Kriplani's car. There is no evidence of damage.25 Grenier.• On February 19, immediately after someone threw a chunk of concrete through the rear window of Se- curity Guard Carl Hayes' pickup, Grenier shouted at Hayes, "Get out, pig; get out you [expletive deleted] pig; get out." Someone then poured paint on Hayes' truck, prompting Grenier to state, "Hey, pig, how you like your paint job?" On an unknown date later in February, Grenier punc- tured a tire on Steven Rice's truck with a knife as the truck was detained at the picket line.26 On April 23, as the assemblage of returning strikers was dispersing, Grenier commented to Sommerfeld that Som- merfeld had on his "fruit shoes," then inquired, "Say, tell me, do you [expletive deleted] for a living?" Hauer: Brewer testified that, in early March as he drove slowly through the picket line, he heard a "scraping sound down the [passenger] side of my car." Brewer further testi- fied that, although there were several picketers in the vicin- ity, Hauer was the only one "within arm's reach at the time." Upon reaching the parking lot, Brewer examined his car, noticing that "it had a scrape down to the metal through the paint and the primer, . . . say four feet long." Nonstriker Evelyn Simpson testified that, on March 27 while her car was detained at the picket line, a person in a black raincoat walked along its passenger side "and I could hear a scratching noise as he walked alongside of it." She inspected the car moments later in the parking lot, detect- ing a "nice, long scratch . .. down to the bare metal." She estimated its length at 4 to 6 feet. Simpson, a new employ- ee, did not know the person who had done the damage; so, while still in the parking lot, she asked one Corky Corcor- an, who had been behind her in the caravan. Corcoran, according to Simpson, said it was Hauer. Corcoran did not testify. Simpson further identified the person as being bare- headed, with dark brown hair, and not wearing glasses. Film of the March 27 riot, which began moments after 23 J, C. Braswell did not testify. 24 Coon did not testify. 25 Franklin did not testify. 26 Grenier did not testify. Simpson's car was scratched, reveals Hauer as fitting Simpson's description, except that he wore glasses. Also on March 27, while climbing onto the hood of Brewer's car to obstruct Brewer's picture-taking of that day's not, Hauer pushed against the antenna with his body, breaking it. This apparently was unintentional. Hauer was precluded by illness from testifying. Counsel stipulated that, had he testified, he would have denied each instance of the conduct attributed to him. The General Counsel argues in his brief that neither Brewer's nor Simpson's testimony sufficiently identified Hauer as the actor in the scratching incidents, Simpson's being particularly suspect since the film proved Hauer to have been wearing glasses and her identification of Hauer by name was dependent upon the assertion of a third per- son, who did not testify. If the General Counsel's argument goes to competency, as opposed to weight, he is in error. Although Brewer did not actually see Hauer inflict the scratch, he competently could testify from Hauer's posi- tioning during the scraping noise, juxtaposed with observa- tion of a new scratch soon after, that Hauer was the actor. See 2 Wigmore, Evidence, § 660, p. 772, fn. 6 (3d ed. 1940). Similarly, Simpson competently could testify that the person in the black raincoat scratched her car; as she could that that person, as she later learned, was Hauer. As stated in 2 Wigmore, supra, sec. 667(a), p. 788, fn. 1: [T]he only source by which we "know" most persons' names is by somebody telling us that such is the name. 27 Brewer and Simpson both impressed as capable observ- ers and conscientious witnesses.28 Consequently, although the weight of their testimony might fairly be questioned, because of the ways their knowledge was obtained, and despite Hauer's denials in absentia, it is concluded that Hauer did deliberately scrape both cars. Brewer additional- ly is credited that Hauer broke the antenna, albeit inadver- tently. Henthorn: On March 18, while picketing, Henthorn sat on the hood of Brewer's car as it approached the plant, remaining there while Brewer slowly drove several hundred feet. Henthorn eventually jumped off and gave Brewer a salute, and they both laughed. A dent was left in the hood, requiring professional repair. On March 27, during a riot on the picket line, Henthorn ran up to nonstriker Ralph Okuma, who had just gotten out of a stopped car, and the two exchanges blows. Who struck first, and in response to what provocation , is left in doubt by the record.29 D. Lasick: On March 27, during the aforementioned riot n Or. as stated in State v. Deepe, 286 S.W.2d 776, 781 (Mo. 1956): ITlhough the source of information as to one's name may be hearsay, yet it is universally relied upon as a source of knowledge. 28 It would be contrary to the realities of everyday experience to reject the total of Simpson's testimony because the one detail, Hauer's glasses, did not register with her. v The riot started when Vern Barrett , a nonstriker, got out of his car at the picket line to check for possible picketer-inflicted damage . Before he could get back into his car, Picketer Ron Jordan attacked him. The melee expanded by a process akin to nuclear fission. Okuma had been a passenger in Barrett's car. ALCAN CABLE WEST 247 on the picket line, Lasick participated in the dragging of nonstriker Vern Barrett perhaps 50 feet into a nearby field, where Lasick kicked and slugged him. 30 J. Lasick: On March 1, Lasick threw an object through a glass window in the administration building; on March 27, during the above riot, slugged an officer of the California Highway Patrol who was trying to restore order; and on April 3, at the Placer County courthouse in connection with a contempt matter over the Union's picket line con- duct, threatened that he was going "to get" Brewer.31 Lopez: On March 16, while picketing, Lopez walked in front of Brewer's car, causing the car to touch him lightly, whereupon Lopez struck a window with his hand and shouted an expletive. No damage was done. On March 20, Lopez yelled at President Kriplani through a closed car window that he was going to kill Kriplani's "Indian ass." Lopez also participated in the previously described March 28 ambush of the four-car caravan, breaking the windshields of Dennis Bunz' and James Caughman's vehi- cles with a ball bat.32 Martin: On March 16, after Picket Ron Jordan induced nonstriker Mike Halsey to leave his car, resulting in a scuf- fle between the two, Martin took a poke at Halsey. 33 On March 27, during and after the riot earlier mentioned, Martin spit on cars carrying nonstrikers and said to Brew- er, "Next time it's going to be you, you fat sonofabitch." And Martin was among those at the Exxon station on April 2 and was in Coon's car when it later rammed the rear of Dan Gibson's car. McCoy: On February 6, while picketing, McCoy hit Dan Gibson's car with a rock, chipping paint and causing a dent. On March 1, he threw rocks at the administration building, apparently breaking a window. On March 19, while on the picket line, McCoy tore loose the outside mir- ror on Kriplani's car. On March 20, McCoy walked slowly in front of Brewer's car at the entrance-exit, both heading in the same direction. Upon the car's lightly touching him, McCoy casually sat back on the hood, riding several feet in that fashion. The hood suffered a dent requiring repair.34 10 The incident is depicted by film in evidence. Although the General Counsel disputes the identification of D. Lasick, he was not called as a witness. 11 J. Lasick denied the rock-throwing and policeman-slugging. Testimony regarding both incidents was augmented by films , in evidence, that revealed Lasick doing those things . His denials, moreover, were not supported by a convincing witness stand demeanor. Lasick also denied the courthouse threat to Brewer. Brewer, an impressively credible witness , is credited over that denial. 32 Lopez did not testify. 33 Neither Jordan , Halsey, nor Martin testified . Brewer testified of having seen portions of the altercation , and portions are on film in evidence. 14 McCoy denied hitting Gibson's car with a rock, or tearing off Kriplani's mirror. And, while admitting that he threw rocks from the picket line, he testified that he could not recall throwing any toward the adminis- tration building, only "out in the field and at the telephone poles." He also testified that he never saw anyone else throw rocks at cars or the building. This latter assertion is so implausible, in the circumstances , as seriously to flaw McCoy's testimony generally. Nor did his witness stand demeanor inspire particular trust. For those reasons, among others, Gibson is credited concerning the rock thrown at Gibson's car; Security Guard Don Birdsong is credited concerning the rocks thrown at the administration building; and Brewer is credited regarding Kriplani's mirror. The General Counsel quar- rels with Birdsong's testimony that McCoy's rock broke a window. That need not be resolved, marksmanship being beside the point. Alkahn Silk Stebbins: On March 1, Stebbins threw a rock through a glass window of the administration building. On April 2, during the incident at the Exxon station, Stebbins swung an aluminum cable against a truck that was to be part of the caravan, breaking an outside mirror and a turn signal, then swung the cable at Charles Lucas as Lucas took ref- uge in Gibson's car. Stebbins said to Lucas at the time, "You sonofabitch, come out of there and I'll kill you." Lucas was in charge of security for Respondent. Stebbins, in addition, was an occupant of Coon's car when it ram- med Gibson's moments later.35 Spiller: On February 2, while picketing, Spiller hit a supplier's truck with a rock, and on March I threw rocks at the administration building.36 On three occasions in March, either himself driving or being driven by Ron Jor- dan, Spiller engaged in high-speed freeway harassment of Dan Gibson, forcing Gibson to the shoulder, or to brake or swerve abruptly. Spiller interlaced all of this with threaten- ing epithets-"You sonofabitch, I'll get you," etc.- and the "finger." 37 Stratton: During the March 27 riot on the picket line, Stratton momentarily bearhugged a policeman trying to in- tervene, pulling him away from the melee. 2. Analysis of the alleged violations of Section 8(a)(3) and (1)-the Reinstatement situation generally The General Counsel contends that the strike was an unfair labor practice strike; therefore, that Respondent violated Section 8(a)(3) and (I) by failing promptly to re- call all the strikers upon their making themselves available, even at the cost of displacing their replacements. The Gen- eral Counsel further contends, concerning those 16 denied recall for strike misconduct, that Respondent violated Sec- tion 8(a)(3) and (1), whatever the status of the strike. The first contention necessarily fails, it having been de- cided that Respondent's bargaining conduct did not violate the Act. Respondent's treatment of those recalled as eco- nomic strikers, offering them recall only as positions arose, was not unlawful.38 Regarding the second contention, the Board is not quick to disqualify from recall strikers involved in strike-related incidents. Nor, on the other hand, does a strike bestow upon strikers unqualified license to engage in violence. As stated in Coronet Casuals, Inc., 207 NLRB 304 (1973): Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection. It is true, of course, that not Label Co., 193 NLRB 167, 175. 35 Stebbins did not testify. 3' James Cassil, the driver of the truck, is credited over Spiller's denial of throwing at the truck; and Security Guard Don Birdsong is credited over Spiller's denial of throwing at the administration building. The denials not- withstanding , Spiller evinced an attitude on the witness stand enhancing the believability of Cassil's and Birdsong's testimony. 37 Spiller did not deny "escorting" Gibson down the highway, but de- scribed the occurrences in terms more innocuous than Gibson's. Spiller tes- tified of a virulent resentment of Gibson-"the worst turncoat I have ever known against his fellow workers"-lending credence to Gibson 's version. 38 As previously mentioned, the General Counsel does not dispute the permanency of the replacements. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all forms of conduct literally within the terms of Sec- tion 7 and 13 remain entitled to statutory protection. In deference to the rights of employers and the public, the Board and the courts have acknowledged that seri- ous acts of misconduct which occur in the course of a strike may disqualify a striker from the protection of the Act. Thus, strikers have been deemed to lose the Act's protection when they seized the employer's property, or engaged in acts of "brutal violence" against a nonstriker. At the same time it is true that not every impropriety committed in the course of a strike deprives an employee of the protective mantle of the Act. Thus, absent violence, the Board and the courts have held that a picket is not disqualified from reinstatement despite participation in various inci- dents of misconduct which include obscene language, making abusive threats against nonstrikers, engaging in minor scuffles and disorderly arguments, momen- tarily blocking cars by mass picketing, and engaging in other minor incidents of misconduct. Consistent with these cases, the Board and the courts have long held that minor acts of misconduct must have been in the contemplation of Congress when it provided for the right to strike and that this right would be unduly jeopardized if any misconduct, without regard for the seriousness of the act, would deprive the employee of the protective mantle of the Act. Some of the 16 plainly engaged in disqualifying conduct. D. W. Braswell and Lopez, be breaking car windows with ball bats during the March 28 ambush of the four-car cara- van, are in this group. J. C. Braswell and Franklin, by their involvement in the same incident, also must be included. Although neither J. C. Braswell nor Franklin delivered the destructive blows, both performed the accessory role of forcing the caravan to a stop, enabling the attack to occur; and the surrounding circumstances dispel any doubt that all were acting in premeditated concern.39 Others to forfeit their recall rights by damaging vehicles are Baldwin, by tearing a mirror off Brewer's car on March 20; Grenier, by puncturing a tire on Steven Rice's truck with a knife in late February; Hauer, by scraping the sides of cars with a sharp object on two occasions in March; McCoy, by hitting Gibson's car with a rock on February 6, causing a dent and chipped paint, and by tearing loose the mirror on Kriplani's car on March 19; and Stebbins, by damaging a mirror and a turn signal on a truck with his aluminum cable during the April'2 incident at the Exxon station, followed by his attempt to strike Charles Lucas with the cable. While none of this conduct was as aggravat- ed as that of the two Braswells, Franklin, and Lopez, it nevertheless was deliberate, unprovoked, tending to the in- citement of retaliatory violence, and without the mitigating factor of misconduct by Respondent. Even the more for- giving standard applied to unfair labor practice strikers probably would not excuse such acts as these. Beaver Bros. Baking Co., 198 NLRB 327 (1972). McCoy and Stebbins engaged in additional disqualifying conduct March 1, when each threw rocks at the administration building. Al- kahn Silk Label Co., 193 NLRB 167, 175. Four of the remaining seven also forfeited their right to recall. Coon, by rear-ending Gibson's car April 2 after the incident at the Exxon station, apparently with considerable impact since the Gibson car was thrown into a skid, dis- played a disregard for life and limb that could only have fomented greater violence. He thereby deprived himself of the Act's remedial benefits. The Blair Process Company, 199 NLRB 194 fn. 3 (1972); Titan Metal Manufacturing Co., 135 NLRB 196, 206-207 (1962). D. Lasick, by helping drag Vern Barrett into a field during the March 27 riot, and then kicking and slugging him, evinced a brutality far overstepping the bounds of acceptable striker etiquette; and J. Lasick, during the same riot, by slugging a law offi- cer trying to restore order to an incendiary situation, like- wise exceeded proper limits, as he did by breaking a win- dow in the administration building with a rock on March 1. Spiller, apart from his rock-throwing, by harassing Gibson three different times on the freeway with the deadly weap- onry of the automobile, forcing Gibson variously to leave the road, swerve, and brake suddenly, disqualified himself much as Coon did by rear-ending Gibson. That leaves Henthorn, Martin, and Stratton, none of whom can be said to have disqualified himself. Although Henthorn damaged the hood of Brewer's car March 18, while sitting on it, the harm was slight and unintended and the incident good-humored. Henthorn's other impropriety, hitting Ralph Okuma during the March 27 riot, was of a graver nature, but not disqualifyingly so in view of the ambiguous nature of that incident and the surrounding bedlam generally. Martin's malefactions consisted of hitting Halsey March 16 during a scuffle between Ron Jordan and Halsey, spit- ting on cars and shouting expletives during and after the March 27 riot, and being a fellow traveler of Coon and Stebbins in the April 2 incident at the Exxon station. The record does not warrant tarring Martin with the excesses of Coon and Stebbins on April 2, and his involvement in the Jordan-Halsey altercation was momentary and minor. The spitting and expletives March 27, while not to be con- doned, long since have become expected and accepted in strike situations. Stratton's bearhugging of a policeman during the March 27 riot, however brief, was a technical obstruction of the law and theoretically contributed to a prolongation of that dangerous melee. Even so, it cannot be concluded that this one nonviolent and impulsive act, lasting at most two or three seconds, rendered Stratton unfit for further employ- ment. In summary, regarding the 16 strikers whose recall rights were terminated for misconduct, Respondent violated Sec- tion 8(a)(3) and (1) as to Henthorn, Martin, and Stratton, but not the remaining 13. 39 With regard to those found herein to have disqualified themselves for recall , no effort is made to evaluate all of the instances of their misconduct in light of the prevailing legal standard , only those instances most palpably meeting the test. ALCAN CABLE WEST C. The Alleged Violation of Section 8(a)(3) and (1)-The Harry Preece Situation 1. The evidence Preece, a member of the employee bargaining commit- tee, had been a day shift utility man in the covered wire department before the strike. He apparently never had worked nights in his several years with Respondent. His name was among those read by Roullier April 23 for whom there were immediate openings. Although present, he de- clined to report, presumably in adherence to the Union's all-or-none sentiment and without knowing what shift Re- spondent had in mind for him. In fact, the opening intend- ed for Preece, as is indicated by the May 10 letter to him from President Kriplani, quoted below, was on the night shift. On April 24, the day after declining Roullier's offer, Preece informed Respondent's Kehoe of his availability. Kehoe told him there was nothing on the day shift, but that there was an opening nights in his classification.40 Preece, explaining that he did not want to leave his wife alone nights, refused to accept. Preece then received the above-mentioned May 10 letter from Kriplani. The letter stated: On 23 April 1973, you were requested to return to work in the same position which you occupied prior to the strike. You were asked to report at 7:00 p.m. on 23 April 1973 and assume the duties of that position. Be- cause you failed to report as requested, you were given additional opportunities to do so. Nonetheless, you persisted in refusing the Company's request. You are hereby advised that the position which was previously offered to you has been filled. However, should you have any desire to return to the position which you occupied prior to the strike, you will be advised when an opening occurs. I would appreciate your keeping us informed of your whereabouts so that we may contact you as indicated above. This was followed by a letter from Kriplani to Preece dated May 30, which stated: As you were advised by telephone this date, you are requested to return to work at Alcan Cable West in Rocklin, California to assume the position of Utility Man in the Covered Wire Department on the 7:00 p.m. to 7:00 a.m. shift on June 8, 1973. You should report to Mr. Basil Kehoe at least one day prior to receive your instructions and identification card. We would appreciate your speedy return to work. If you do not return to work within seven days after date of sending of this letter, we shall assume that you are no longer interested in returning to work with this Company. 40 That there were no day shift openings in Preece's classification at any relevant time is not disputed. 249 Preece replied to Kriplani's May 30 letter by letter dated June 6, stating in part: I cannot work this shift [night] as it would create a hardship on my family. If you will check back on my past four years with the company you will see that I have always worked a less paying job so that I could be home during the night. I am more than willing to return to the job and shift that I worked prior to the strike. The letter concluded, referring to Section 8(a)(3) of the Act: Based on this section I feel that I am entitled to return to work on the job and shift that I held prior to the strike. This prompted a letter from Roullier, dated June 13: Further to your June 6th letter, I regret that, at this moment, we have no vacancy for a Utility Man in the Covered Wire Department on day shift. As and when a suitable vacancy opens up, I shall let you know. By letter dated August 2, Preece again was notified of "a vacancy on night shift for Covered Wire Utility Man." Preece refused the offer by letter dated August 10, adding: "My reasons for not accepting the opening are exactly the same as I wrote in my letter to Mr. Kriplani dated June 6, 1973." The next communication was this letter from Kriplani to Preece dated September 10: We are sending you the enclosure relating to payment of your benefits. As it is now apparent from your con- tinued refusal to accept our offers of employment, that you are no longer interested in working for the compa- ny. Please make arrangements to return any uniform, keys, and tools that you may have and call at the plant to receive the contents of your locker. The record does not disclose any later contacts between Respondent and Preece. 2. Analysis concerning Preece The General Counsel's theories concerning Preece are less than lucid. It apparently is contended, first, that Re- spondent violated Section 8(a)(3) and (1) by failing to offer Preece a day shift position, the theory being that day and night shifts are not substantially equivalent. This would seem to presuppose that Preece was an unfair labor prac- tice striker, unqualifiedly entitled to reinstatement, for there is no disagreement as to the nonexistence of day shift openings in his classification on and after April 23. Preece having been an economic striker, this contention perforce fails. The General Counsel's second contention, apparently, is that Preece was warranted in refusing night shift offers on 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonequivalency grounds; therefore, that Kriplani's Sep- tember 10 letter in essence removing him from further con- sideration for recall, day or night, violated Section 8(a)(3) and (1). This contention raises considerably more problems of analysis than the first. Had Preece rejected Roullier's April 23 offer on the ground of night-shift nonequivalency, as he did the later ones, he would have been on solid ground and Respondent could not then lawfully have ex- cluded him from further consideration. Cf. Stanley Building Specialties Co., a subsidiary of The Stanley Works, 166 NLRB 984, 986 (1967). It must be inferred from the cir- cumstances, however, that he then had no idea of being marked for night work, and that his only reason for not accepting was to support the Union's all-or-none posture. That is, Preece chose to continue striking in protest of Respondent's failure immediately to recall all of the strik- ers. In this, too, Preece would have been on solid ground had all the strikers been entitled to immediate reinstatement. As the Board stated in Southwestern Pipe, Inc., 179 NLRB 364, 365 (1969): A striker may refuse an offer of reinstatement, without losing his status as a striker, because the employer has not made a similar offer to other strikers who are also entitled to immediate reinstatement. The striker is thereby engaging in protected concerted activity. But many and perhaps all of those denied recall were not entitled to immediate reinstatement, being either economic strikers for whom there were no openings, or disqualified, by strike misconduct.41 It follows that Preece's first rejec- tion of recall, on the ground of all-or-none, was not validly premised, relieving Respondent of further duty to him, re- gardless of the underlying inadequacy of Roullier's offer. Cf. Research Designing Service, Inc., 141 NLRB 211, 216 (1963). Respondent, however, did not leave it at that. It instead continued to offer Preece night jobs, and to hold forth the prospect of day shift recall should an opening arise, until Kriplani's cutoff letter of September 10. Preece, mean- while, had abandoned the strike on April 24, shifting his reason for rejection of the night offers to the valid one of nonequivalency. Thus, Respondent tacitly condoned Preece's first rejection and his 1-day continuation of the strike; and, by so doing, revived its duty to recall him to a substantially equivalent job should one open. Cf. Confec- tionery Drivers Union v. N.L.R.B., 312 F.2d 108, 113 (C.A. 2, 1963); Union Twist Drill Co., 124 NLRB 1143 (1959). Respondent therefore violated Section 8(a)(3) and (1) by terminating Preece's recall rights on September 10. Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973); The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969). 41 The "many and perhaps all" usage allows for the possibility that some of the three earlier found wrongfully to have been deprived of recall rights would have been recalled Arpil 23 but for Respondent's misconduct against them. CONCLUSIONS OF LAW 1. By terminating the job recall rights of E. Henthorn, J. Martin, and T. Stratton as of April 23, 1973, and those of Harry Preece on September 10, 1973, Respondent in each instance violated Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent did not violate the Act in any other way. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practices found. Affirmatively, it is recommended concerning Henthorn, Martin, and Stratton that any who would have been re- called on or after April 23, 1973, but for Respondent's un- lawful conduct, be ordered immediately reinstated to the position in which he would have been placed (displacing the present occupant of that position if necessary), without prejudice to his seniority or other rights and privileges, and make whole for any loss of earnings and other benefits suffered by reason of the discriminatory failure to reinstate him.42 The same recommendation is made concerning Preece, the operative date being September 10, 1973, rather than April 23. Losses of earnings and other benefits shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Should compliance with the preceding paragraph fail to achieve immediate reinstatement for all, it is further rec- ommended that Respondent be ordered to preserve the re- call rights of the affected employees; and, as vacancies oc- cur for which any is qualified, to offer him that position unless he has obtained other regular and substantially equivalent employment. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 42 In its brief, Respondent argues in effect that , even if there were an improper termination of recall rights as to some strikers, there was no un- lawful failure to recall, and thus no backpay obligation, in view of the conditionality of the Union's offer to return . Accepting the premise that the all-or-none character of the Union's offer made it conditional , licensing Respondent to reject it, the all-or-none unity quickly gave way to individual applications, which were accepted. By April 24. nearly all of those offered recall April 23 had been restored to their jobs, and Respondent continued thereafter to recall all but those it deemed disqualified as openings arose. There can be little doubt, assuming openings . that Henthorn, Martin, and Stratton likewise would have been recalled but for Respondent 's unlawful conduct toward them. Nor can there be much doubt , given that conduct. that it would have been futile for them individually to have made uncondi- tional applications to return . A remedy without retroactive sanctions in these circumstances would reward Respondent for unlawfully discouraging these employees from curing the defects in.the first offer . The Board, treat- ing with an analogous situation in Winn Dixie Stores Inc., 206 NLRB 777. 778 (1973). stated: To require the fired employee [which Henthorn , Martin, and Stratton in reality are] to apply to the employer whc has evinced no retreat from his unlawful conduct appears hardly reasonable, and also contrary to the well-established legal principle that a condition once established- the employer's refusal to employ the employee-is presumed to contin- ue in the absence of evidence showing a change has occurred. ALCAN CABLE WEST 251 ORDER43 Respondent, Alcan Cable West, a Division of Alcan Aluminum Corporation, Rocklin, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from terminating the recall rights of economic strikers who did not engage in disqualifying strike misconduct. 2. Take the following affirmative action: (a) Rescind its termination of the recall rights of E. Henthorn, J. Martin, T. Stratton, and Harry Preece. (b) Offer immediate and full reinstatement with back- pay, as set forth above in "Remedy," to any employee who would have been recalled but for Respondent's unlawful termination of recall rights. (c) Should compliance with the preceding paragraph fail to achieve immediate reinstatement for the four affected employees, preserve their recall rights; and, as vacancies occur for which any is qualified, offer him that position unless he has obtained other regular and substantially equivalent employment. 43 All outstanding motions inconsistent herewith are denied . In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regula- tions 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, conclu- sions, and Order, and all objections thereto shall be deemed waived for all purposes. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amounts of backpay due under the terms of this Order. (e) Post at its Sunset Whitney Ranch, Rocklin, Califor- nia, plant and mail to Henthorn, Martin, Stratton, and Preece copies of the attached notice marked "Appen- dix." 44 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by it and mailed to said employees immediately upon re- ceipt thereof, and the posted copies 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 insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Except to the extent that violations herein have been found, the complaint is dismissed. 44 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."