Montgomery Ward & Co., Inc.

232 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Clerks Union, Local 1364, Retail Clerks Interna- tional Association, AFL-CIO. Case 20-CA-6445 April 1, 1975 SUPPLEMENTAL DECISION By MEMBERS FANNING, JENKINS, AND KENNEDY On March 20, 1973, the National Labor Relations Board issued a Decision and Order' in the above-enti- tled proceeding in which it adopted the findings, con- clusions, and recommendation of Administrative Law Judge Herman Corenman. The Board adopted the Ad- ministrative Law Judge's credibility resolutions and concluded, among other things, that Respondent had not engaged in conduct in violation of Section 8(a)(1) and (3) of the National Labor Relations Act as alleged. Subsequently, the Charging Party filed with the United States Court of Appeals for the District of Columbia Circuit a petition for review of the Board's Order dis- missing the complaint. On September 9, 1973, while the matter was pending before the court, the Union moved the court to remand the case to the Board to conduct a further hearing on newly discovered evidence. On January 15, 1974, the court, without objection from the Board, issued its or- der granting the Union's motion and remanded the record to the Board for consideration of such newly discovered evidence. On April 26, 1974, the Board is- sued its order reopening the record and remanding the proceeding to the Regional Director for a hearing to be held by Administrative Law Judge Corenman for the purpose of, and limited to, receiving such newly discov- ered evidence referred to in the Union's motion. The Board further ordered that after the close of the hearing the Administrative Law Judge prepare and serve on the parties a supplemental decision containing findings of fact, conclusions of law, and recommendations based upon the evidence received. On November 6, 1974, the Administrative Law Judge issued the attached Supplemental Decision in the above-entitled proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charg- ing Party filed a brief in support of the Administrative Law Judge's Decision. 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 Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- 1 202 NLRB 593 (1973) ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. In his Supplemental Decision , the Administrative Law Judge found and concluded that Respondent vi- olated Section 8(a)(1) and (3) of the Act by virtue of its mailing out to certain striking employees in July 1973 a statement with regard to the distribution to those employees of their shares in Respondent's profit-shar- ing program. We agree with the Respondent that the Administrative Law Judge improperly found and con- cluded that this particular conduct violated the Act. The underlying complaint herein, which issued on September 30, 1971 , alleged that various statements on the part of Respondent's supervisors threatened and coerced Respondent's employees in violation of Section 8(a)(1) of the Act. Several of the incidents were alleged to have occurred prior to September 29, 1970, the day the strike started, while the remaining incidents were alleged to have occurred in the several weeks immedi- ately following the start of the strike. The complaint also alleged that since on or about November 14, 1970, Respondent refused to reinstate unfair labor practice strikers in violation of Section 8(a)(3) of the Act. As noted above, after an extended hearing, the Adminis- trative Law Judge found and concluded that either the conduct complained of did not occur, or, if in fact certain statements had been made by supervisory em- ployees, they were statements protected by Section 8(c) of the Act. Again, as noted above, after due considera- tion the Board adopted the Administrative Law Judge's findings and conclusions and dismissed the complaint in its entirety. The Board accepted the court's remand for the pur- pose of receiving and considering the alleged newly discovered evidence. The Union in its motion to the court contended that the documents mailed out by the Respondent in July 1973 to striking employees estab- lished that certain employees had been terminated or discharged on September 29, 1970, the day the strike started, or shortly thereafter. If in fact these employees had been terminated in 1970 , such conduct would have been relevant to the issues raised by the original com- plaint and litigated in the 1972 hearings. However, the Administrative Law Judge found on the record pre- sented that these employees had not been discharged as of September 29, 1970, but rather that the employees involved had been consistently treated as striking em- ployees throughout the time period involved herein, a finding and conclusion with which we agree. It is clear from the record that the act of mailing these notices in July 1973 was an independent act, unrelated to any of the 1970 conduct alleged to have been unlawful in the original complaint . The record also shows that to date no charge has been filed with regard to this 1973 conduct. In the absence of any 217 NLRB No. 43 MONTGOMERY WARD & CO., INCORPORATED 233 relationship between the 1973 conduct and the allega- tions of the complaint, the conduct complained of must be the subject of a new charge with further proceedings. dependent on the General Counsel's determination that the charge has merit.' Section 10(b) of the Act, how- ever;, prohibits the Board from finding a violation based on any conduct that occurred more than 6 months preceding the date the charge is filed. In the absence of filing of a timely charge and the issuance of a new complaint, the Board is precluded from finding such conduct a violation of the Act.' Having concluded that the evidence proffered by the Union has no bearing on the issues litigated under the September 30, 1971, complaint, we adhere to our origi- nal Decision and Order. 2 In this respect, the record shows that shortly after receipt of the notice one of the employees wrote the Respondent inquiring as to the reason for his "termination" and that Respondent replied to the employee pointing out that he had not "been terminated but only permanently replaced " To pro- ceed further with the Administrative Law Judge's findings at this time would, in our opinion, usurp the function of the General Counsel to issue complaints based on timely meritorious charges We also note that the General Counsel has made no attempt to-amend the complaint. 3 LrunterSawDzvision ofAsko, Inc, 202 NLRB 330, fn. 1 (1973), Bastian- Blessing, Division of Golconda Corporation, 194 NLRB 609, 612 (1971). Accordingly, we do not pass on the merits of the Administrative Law Judge's findings and conclusions that Respondent did in fact violate Sec. 8(a)(1) and (3) of the Act by mailing out the July 1973 notices regarding the profit-sharing plan. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HERMAN CGRENMAN, Administrative Law Judge: The Ad- ministrative Law Judge issued a Decision in the above-cap- tioned case on October 24, 1972, recommending dismissal of the complaint in its entirety. This Decision and Recom- mended Order of dismissal was adopted by the Board on March 20, 1973 (202 NLRB 593 (1973)). Thereafter, the Charging Party, herein called Union, petitioned the United States Court of Appeals for the District of Columbia to re- view the Board's Decision and Order. While the matter was pending with that court, the Union on September 9, 1973, moved the court to remand the case to the Board to conduct a further hearing on newly discovered evidence. On January 15, 1974, the-court, without objection from the Board, issued its Order granting the Union's motion, and remanded the record to the Board for consideration of such newly discov- ered evidence. On April 26, 1974, the Hoard issued its Order reopening record and remanding proceeding to the Regional Director for hearing to be held by the Administrative Law Judge for the purpose of and limited to receiving such newly discovered evidence referred to in the Charging Party Union's motion in the court of appeals. A hearing in the remanded case' was held before the Ad- ministrative Law Judge on August 27 and 28, 1974, at Red- ding, California. All parties appeared and were afforded full I The Regional Director for Region 20 consolidated this case for hearing with objections and challenges in Cases 20-RD-747 and 20-RM-1579 On motion of the Respondent at the hearing, those two R-cases were severed from this case, and hearing on the R-cases was postponed indefinitely opportunity to adduce evidence, to examine and cross-exam- ine witnesses and to argue orally on the record, Briefs submit- ted by the Union and Respondent have been carefully consid- ered. Upon the entire record in the case- and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT A. The Issues (1) Whether strikers H. E. Glaze, P. E. Sizemore, L. N. Benich, and E. Blakesley were discharged from employment by the Respondent on September 29, 1970, because they went on strike on September 29, 1970; (2) whether nine other strikers were terminated by Respondent on other dates in October 1970; (3) whether the strike is an unfair labor prac- tice strike and if so as of what date. B. Preliminary Statement Before the court of appeals, the Union moved that the case be remanded to the Board to take newly discovered evidence which, the Union contended, would show that four striking employees, namely, H. E. Glaze, P. E. Sizemore, L. N. Be- ech, and E. Blakesley, had received documents from the Respondent in late July or early August 1973, indicating that they had been terminated by the Respondent on the first day of the strike, namely September 29, 1970. The documents show on their face that they were forms utilized by the Re- spondent in the cash distribution of profit-sharing funds for terminated members, and it is undisputed that these forms mailed to the four above-named strikers accompanied checks representing the cash distribution to the striker from the profit-sharing plan. These forms to the four strikers carried the information in the upper left-hand corner of the form "Date Terminated-9-29-70." On the face of the form. among other printing, was the following printed language "In Ac- cordance with the terms of the Montgomery Ward Profit- Sharing Plan, relating to termination of employment with the Company, you are now entitled to receive the value of your share in the plan." In its motion to remand before the court of appeals the Union contended that these four documents-as newly discovered evidence-were material for two reasons: (1) they were relevant to the question of whether the Respondent violated Section 8(a)(1) and (3) of the Act in its treatment of the strikers and (2) they were relevant to the question of the credibility of witnesses who have testified as to various threats made by the Respondent, since these documents corroborate such witnesses, and reflect on whether the strike was an unfair labor practice strike. The Profit-Sharing Plan The Respondent's profit-sharing plan is administered by the Respondent's compensation and benefits department located in Chicago, Illinois. This profit-sharing plan was in effect at the Redding store before the inception of the strike on September 29, 1970. The Respondent alone makes the contributions to the plan, and it makes such contributions 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only when the employee is receiving wages for work per- formed. If an employee for any reason does not receive wages for work performed, the Respondent does not make a contri- bution to the plan for that employee. The employee does not have the option to make contributions. But for one exception, it can be said that no money goes into the plan unless the employee is actively working and receiving wages. The excep- tion arises in the case of an employee who participates in the Respondent's long-term disability plan, an insurance plan, and becomes disabled under the long-term disability insur- ance plan. In that case, contributions from the long-term disability trust fund are made in that disabled employee's behalf to the profit-sharing plan. With respect to an em- ployee-participant in the profit-sharing plan who went on strike on September 29, 1970, and never returned to work for the Respondent, and was not on long-term disability, then as to that striking employee, there would be no money con- tributed by the Respondent to the plant or accepted from the employee as a payment to the plant. With respect to this profit-sharing plan, individual annual statements are furnished to each of the eligible employees showing such individual's accumulated interest in the plan. The profit-sharing plan consists of three funds, the A fund for interest bearing securities, the B fund for common stocks, and the C fund for Marcor stock, Respondent's parent corpora- tion. On these annual statements, there is also information concerning retirement benefits. The funds fluctuate with the market value of the stocks and securities held in the trust fund. With certain exceptions in hardship cases not relevant here, only employees who are separated from service with Respondent may receive a cash distribution of their profit- sharing funds. In all cases of separation, the separated em- ployee automatically, receives the profit-sharing cash distribu- tion without the necessity of making a request for it. As a rule, employees, including strikers, cannot receive a cash dis- tribution unless they first resign or are otherwise separated from employment. C. Circumstances Refuting the Claim that the Four Named Strikers were Discharged 9-29-70 May 1971; the 1971 reports mailed in April or May 1972, and the 1972 reports mailed in April or May 1973. It would be incongruous to say that the four named strik- ers, Glaze, Blakesley, Sizemore, and Benich were discharged on 9-29-70, the first day of the strike, in the face of the fact that they were sent annual reports for 1970, 1971, and 1972 advising them of their current interest in the profit-sharing and retirement funds. In this connection, it should be noted that profit-sharing funds are automatically disbursed to sepa- rated employees The fact that the Respondent retained their funds and annually after the strike kept the four strikers advised as to the current status of each of their interests in the funds is significant evidence that they had not been dis- charged on September 29, 1970. Additionally, the testimony of Store Manager Hanks, As- sistant Labor Relations Director Philbin, and Operating Manager McClure that none of the strikers except one named Lamar Thompson were discharged during the course of the strike stands uncontradicted except for the documents ac- companying the profit-sharing distribution to the four named strikers showing the termination date 9-29-70 for these four strikers, and nine other strikers showing termination dates in October 1970. In addition to the foregoing reasons which militate against the contention that the four strikers named in the motion to remand were discharged on September 29, 1970, is the credi- ble and uncontradicted testimony of Assistant Labor Rela- tions Director Philbin, explaining the circumstances under which the profit-sharing funds were disbursed,to these four strikers and his reasons for making the distribution. In this connection, it should be noted that during the course of the strike involving approximately 90 strikers, the Respondent continued to transmit the individual statements to the strikers concerning the current status of their profit-sharing funds. It also offered many of them their jobs without prejudice to their seniority status. For example on December 1, 1971, it wrote this letter to 61 strikers, including the 4 strikers named by the Union in its motion for remand, as well as 8 of the 9 other strikers' names mentioned here. December 1, 1971 Relative to the question whether the four strikers named in the Union's remand motion to the court of appeals, namely Glaze, Sizemore, Benich, and Blakesley, who, the Union claims, were discharged on September 29, 1970, the first day of the strike, as is evidenced by the document accompanying the check in distribution of that striker's interest in the profit- sharing fund, there are numerous circumstances which refute the Union's claim. Initially it is observed that these four strikers named in the Union's remand motion did in fact, with all other employees under the plan, receive annual statements from the Respond- ent for the years 1970, 1971, and 1972, showing the annual status of Fund A, Fund B, Fund C, and the total dollar amount of their interest. Additionally, the annual reports also showed the status of the employees' interest in the retirement plan. (Copies of these annual reports on the plans may be found in the record as Resp. Exhs. 5, 6, 7, and 8) The annual statements were mailed to all employees including the strikers Dear As you are aware, many of your fellow employees have crossed the picket line and returned to work for Mont- gomery Ward. As openings occur, we expect more em- ployees to cross the picket line and come back to work. It would therefore be helpful if you would advise us whether or not you would come back to work immedi- ately if the same or comparable job that you held before the strike is available to you now. Please mark the appropriate box of the enclosed post- card so that we will be able to employ you as soon as openings do occur. Sincerely yours, in April or May of the succeeding year. Thus the 1970 reports F. C. Hanks were mailed to individual employees and strikers in April or Store Manager MONTGOMERY WARD & CO., INCORPORATED 235 On March 27, 1972, Respondent wrote the following letter to 17 striking employees, among whom were included 8 of the strikers who were subsequently, in July or August 1973, mailed profit-sharing checks and termination notices, namely Arrowsmith, Benich, Clyde, Foss, Friend, Rusted, Stratford, and Wallace. March 27, 1972 Dear We are offering you your former job in your former department at your previous rate of pay plus any in- creases which would have been given to you had you remained at work throughout your work stoppage at the Redding store. In addition you will be returning with the same seniority rights that you had at the time you joined in the work stoppage against Ward's Redding store. If you are accepting this job, and are ready to report to work on [ 7 days from the date of this letter] , contact Mr. Donald McClure, the Redding store Operating Manager at 916-241-6522. If you are not ready on [ 7 days from the date of this letterj, the job will not be held for you. Very truly yours, F. C. Hanks It became evident to the Respondent as late as March 30, 1972, that many strikers were rejecting offers of reinstate- ment. The following letter from one of the strikers dated March 30, 1972, addressed to the Respondent is typical of a number of replies in uniform language from strikers: March 30, 1972 Mr. Fred Hanks, Manager Montgomery Ward & Co. 300 Locust Street Redding, California 96001 Dear Sir: Your offer of March 27, 1972 is rejected because time limits set in this letter are unreasonable and because you have not, to my knowledge, offered all other strikers their jobs back. I believe Wards should offer jobs to all the strikers and that as unfair labor practice strikers, we have the right to return as a group. I am interested in further employment with Wards and desire to return to my old fob.' ]1 am not abandoning my job with Wards. I will gladly accept offer if you will make comparable offer to all other strikers. Very truly yours, Michael L. Anderson Certified #745234 In reply to a letter from striking employee Jack E. Littleton to Respondent dated August 7, 1973, questioning whether the disbursement of his "retirement fund" was sufficient and inquiring the reason for his termination set forth in the letter accompanying his retirement check, the Respondent's Chicago office, under Philbin's direction, replied by letter dated September 6, 1973, in pertinent part as follows: Your contributions to the Company's Retirement Plan was returned because there exists no reasonable expectancy of reemployment by the Company. In fact, you have never been terminated but only permanently replaced. The Company did not consider it appropriate to return your contributions to the Retirement Plan un- less there existed a reasonable expectancy of your re- sumption of participation in the Plant which, of course, could only be accomplished by your reemployment. The Respondent's Decision to Distribute the Profit-Sharing Funds to Strikers Mr. Philbin, Respondent's assistant labor relations direc- tor, testifies credibly that he initiated the action to disburse to the four strikers named in the Union's remand motion as well as nine other named herein, their accrued interest in the profit-sharing plan. Philbin testified that some time in 1973, he had occasion to consider whether refunds should or should not be given under the profit-sharing plan to eligible em- ployees at Respondent's Redding, California, store who were still on strike. Philbin testified he had become aware that some strikers had requested a refund of their profit-sharing funds, and the Respondent had denied those refunds at the time unless they resigned.' Philbin testified further that fol- lowing the Board's affirmance of the Administrative Law Judge's Decision in this case, it became apparent to him that there existed no reasonable expectancy that those strikers who continued to strike would return to active employment with the Respondent. This consideration, according to Phil- bin's testimony, developed out of the fact that responses to offers of employment by these remaining strikers had been uniformly that "I will return when the Company accepts all the strikers back at the same time, or I will not return." Philbin testified further that in consideration of the Board's Decision holding that these strikers were economic strikers and were not entitled to immediate reinstatement, he con- cluded that the strikers had no reasonable expectancy of returning to active employment, and it would serve no pur- pose for Respondent to continue to refuse to disburse profit- sharing funds. Philbin testified that based on these consideratons, he de- cided that the Respondent should disburse profit-sharing funds to the remaining strikers. In June 1973, he contacted the management of the Redding store and asked for a list of current strikers participating in the plan, the date that the striker was permanently replaced if that was the fact, and if the striker had never been replaced, in that case, the last day he worked. This information was supplied by the Redding store to Philbin in the early part of June 1973. He then directed a Mr. Joe Doyle in the Respondent's compensation department in Chicago to prepare disbursements to profit- sharing and retirement funds to the strikers, to be mailed to the Redding store in sealed envelopes for mailing to the strik- 2 For example, on November 30, 1972, the Respondent advised striker Pearl E. Sizemore by letter that they were unable to comply with her request for disbursement of her profit-sharing funds unless she made a written resignation 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers. Philbin testified that the forms (appearing in the record as Union Exhs_ 1 to 13) were then in general-use,by the Respondent in disbursing profit-sharing funds to terminated employees. Although none of these strikers had in fact been discharged, according to Philbin's credible testimony, he nev- ertheless instructed Mr. Joe Doyle in the compensation and benefits department in Chicago to use the date of September 29, 1970, as "Date Terminated" (see Union Exhs. 1 to 4 in the record) for strikers Glaze, Sizemore, Benich and Blakes- ley because those employees had not yet been permanently replaced and because September 29, 1970, was in fact their last day worked. With respect to the other nine strikers, namely Clyde, Arrowsmith, Friend, Foster, Wallace, Foss, Stratford, Husted, and Olsen, (see Union Exhs. 5-13). Phil- bin instructed Doyle to show as "Date Terminated" the date that the particular striker had been permanently replaced. Accordingly, the profit-sharing distribution forms mailed to these nine employees bore different termination dates in Oc- tober 1970, which were in fact dates on which these nine strikers were permanently replaced.3 Philbin testified fur- ther that he never gave any instructions to the Redding store to terminate these 13 people; the instructions were merely to mail these forms to the strikers with the accompanying profit- sharing disbursement checks as prepared by the compensa- tion and benefit department in Chicago. Analysis and Conclusionary Findings Assistant Labor Relations Director Philbin testified that in mailing out in July 1973, the profit -sharing checks to the 13 strikers above mentioned, accompanied by the profit-sharing plan statement of cash distribution for terminated member (see Union Exhs. R-1 to-13 in the record), that he intended only to disburse the cash value of the strikers' vested interest in the plan, but not to discharge the strikers . The employee's service record (Resp. Exhs. 12-A to 12-M) taken from the personnel files for each of the individual strikers to whom disbursements were made in July or August 1973 (see Union Exhs. 1-13 in the record) in corroboration of the Respon- dent's witnesses, shows no record of termination of these 13 strikers. It is true that what Philbin accomplished in the case of these 13 strikers concerned in this matter was to disburse profit-sharing funds to each of them without requiring that they resign as had been the practice theretofore." Instead of seeking their resignation, he assigned termination dates as I have above described. Rather than carry the vested interest of these 13 strikers in the profit-sharing plan indefinitely into the future when it appeared, according to Philbin's testimony that "they had no reasonable expectancy of returning to active employment" with the Respondent, Philbin decided to distribute their vested interest without requiring their individual resigna- 3 Respondent's personnel records show that the Respondent made job offers to Bedich on 4-12-72, to Clyde on 4-28-72; to Arrowsmith on 3-27-72, to Friend on 3-6-72; to Wallace on 4-12-72, to Foss on 3-27-72; to Stratford on 4-12-72, and to Husted on 3-6-72. 4 See, for example the Respondent letter (Resp. Exh. 4) of November 30, 1972, to striker Pearl E. Sizemore declining to disburse her profit-sharing and retirement plan moneys unless she voluntarily resigned. tions. But the means used by Philbin , namely to show a termination date for the four unreplaced strikers, Glaze, Blakesley, Sizemore, and Benich, as the last day they worked, (September 29, 1970) and the other nine strikers as the date each was replaced in October 1970, could very well have given these strikers the impression that the Respondent, in making the cash distributions , was terminating each of them retroactively to the dates shown on the cash distribution forms which accompanied the checks. It is evident, however, from the past conduct of the Respondent vis-a-vis these strik- ers, namely in importuning them to return to work and in offering return to their jobs and in keeping their profit-shar- ing account current that the Respondent had not considered the strikers as terminated in September and October 1970. It must be remembered that there is a total absence of any evidence that these 13 strikers individually or as a group ever unconditionally applied for reinstatement. To the contrary it appears from the record in the original hearing that the offer made by the Union to return to work was conditioned on all of the strikers including those who had been replaced being taken back by the Respondent as a group. (See Administra- tive Law Judge's Decision.) Additionally, the record shows without dispute that on December 1, 1971, the Respondent sent letters to 12 of the 13 strikers with whom we are con- cerned here, inquiring whether or not they would return to work immediately if the same or a comparable job were avail- able; and on various dates in March and April 1972, the Respondent made job offers to 8 of the 13 strikers involved in this remanded hearing. Additionally it is shown that the Respondent continued the profit-sharing and retirement plans in force during 1970, 1971, and 1972, for the 13 strikers involved in this remand, something which they would not have done had they terminated the 13 strikers in September and October 1970. It is well established that an employer may not discharge economic strikers because they are striking. Relying on N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972), the Union contends that the Respondent violated Section 8(a)(1) and (3) in terminating Blakesley, Sizemore, Benich, and Glaze, the Union contending that they were terminated on 9-29-70 because they went on strike on that date. It cannot be doubted that Philbin's completing the date of the "Date Terminated" on the disbursement form created ambiguities which might have led one to believe that the strikers had been terminated on the dates shown on the form. Instead, Philbin would have been better advised if he had no intention to terminate these strikers, not to have used the "Date Ter- minated" space and preferably should have advised the 13 strikers that they were not being terminated. It is understand- able, however, that strikers receiving such a notice would conclude that they had been terminated retroactively to the dates shown on the form. Although Philbin testified he did not intend to terminate the strikers but merely to disburse their profit-sharing funds, I do find nonetheless, that the distribution of the profit-sharing funds accompanied by the termination notices to these 13 strikers would reasonably lead the striking employees to believe that they had been dis- charged. Sending the termination notices, in my opinion, violated Section 8(a)(1) of the Act and coerced and restrained the strikers in the exercise of their rights guaranteed in Sec- tion 7 of the Act to engage in strikes and other concerted MONTGOMERY WARD & CO., INCORPORATED 237 activity for collective-bargaining purposes and for their mutual aid and protection.' This newly discovered evidence of events which occurred in July 1973 leads me to conclude that the aforesaid Section 8(a)(1) conduct converted the strike into an unfair labor prac- tice strike in July or August 1973 and thereafter. See N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972). As profit-sharing funds under the profit-sharing plan can be distributed only upon an employee's separation from em- ployment, it-is reasonable to conclude, and I find that Philbin terminated these 13 strikers so as to enable the Respondent to distribute the profit-sharing funds to them. Philbin's stated reason for doing this, namely his opinion that "there existed no reasonable expectancy of the strikers returning to active employment with the Company," did not legally justify the termination of the strikers' employee status as defined by Section 2(3) of the Act which provides that the term "em- ployee ... shall include any individual whose work has ceased as a consequence of or in connection with any current labor dispute .. . . The Respondent's notice of termination of the employment of the 13 strikers, therefore, violated Section 8(a)(1) and (3) of the Act, and the strikers thereby became unfair labor practice strikers with the receipt of such termination notices and profit-sharing checks sometime in July or August 1973. N.L.R.B. v. International Van Lines, supra. It is reasonable to conclude that with the Respondent's disbursement of the profit-sharing funds together with the accompanying termination notice to these 13 strikers who had been on strike since September 29, 1970, the Respondent, in effect, was notifying them that their employer-employee relationship had terminated. I am of the opinion that Mr. Philbin misconceived the rights of these 13 strikers to continue to withhold their ser- vices in the course of the current labor dispute.' The fact that Mr. Philbin concluded that "there existed no reasonable expectancy of the strikers returning to active employment with the Company" did not legally justify action destructive of important employee rights, namely the right of striking employees to retain their status as employees. The fact that these strikers had by July 1973 withheld their services for almost 3 years in no way impaired their continued right to strike. Even those strikers who had been replaced still possessed potential reinstatement rights. See The Laidlaw Corporation v. N.L.R.B., 414 F.2d 99 (C.A. 7, 1969), enfd. 171 NLRB 1366 (1968); N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 66 LRRM 2737 (1967). Obviously, a notice of termination, such as the Respondent mailed to the 13 strikers, dis- criminated against them because of their assistance to the Union and discouraged their strike activity. International Van Lines, 409 U.S. 48. Although the Respondent may have 5 The Union did not call any of the 13 strikers who had received these profit-sharing distribution forms to testify, and we do not have the benefit of their understanding of the meaning of such forms Nevertheless, I would find that the language of the distribution notice would tend to lead the recipient of it to believe that he or she had been terminated See, for exam- ple, N.L.R.B v Hilton Mobile Homes, 387 F.2d 7 (C A 8, 1967), and cases cited. 6 In July and August 1973, the strike was still in progress and the Union continued to picket the Respondent's store at Redding Pickets were not withdrawn until January 1974. been motivated to terminate the 13 strikers in question for the purpose of disbursing their profit-sharing funds which it did not wish to retain indefinitely, it cannot be gainsaid that such notices of termination were destructive to the employee status of the involved strikers. Where the employer's action is de- structive of important employee rights, the employer's moti- vation becomes irrelevant in determining the violation. See N.L.R.B. v. Erie Resister, 373 U.S. 221 (1963); N.L.R.B. v. Great Dane Trailers, 388 U.S. 26 (1967). What the Supreme Court said in N. L. R. B. v. Great Dane Trailers, Inc., supra, is applicable here: From this review of our recent decisions, several prin- ciples of controlling importance here can be distilled. First, if it can reasonably be concluded that the em- ployer's discriminatory conduct was "inherently de- structive" of important employees rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. So, in the case at bar, even though Mr. Philbin was moti-, vated to disburse profit-sharing funds to strikers who he be- lieved had no reasonable expectancy of returning to active employment, his means of accomplishing that, by termina- tion notices, was so "inherently destructive of important em- ployee rights" so as to preclude the necessity of proof of antiunion motivation. It appears to me, moreover, that if Mr. Philbin had been interested solely in disbursing profit-sharing funds to these 13 strikers, he could have accomplished the objective without the termination notices. Indeed, in the case of striker Jack E. Littleton, where a distribution of his vested interest in the profit-sharing plan was made in September 1973 (see Union Exh. 18), the accompanying notice struck out with X's the word "TERMINATED," and the Respon- dent's benefit and compensation manager in his letter of November 20, 1972, to Littleton (Union Exh. 19) explained that the distribution was handled as a "withdrawal."7 THE REMEDY Having found that by the use of forms accompanying the profit-sharing checks to the 13 strikers indicating that four of them had been terminated on September 29, 1970, and the other nine had been terminated on various dates in October 1970, and that such action by the Respondent discriminated against employees in violation of Section 8(a)(3) of the Act and restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, all in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respond- ent cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. As I have found the remaining strikers became unfair labor practice strikers in the month of July or August 1973 and at all time thereafter, I shall require the Respondent in event any striker or strikers, individually or in a group, uncondi- tionally offer to return to work, to reinstate such striker or strikers to their former positions, or if unavailable, to sub- stantially equivalent positions, without prejudice to their I The last sentence of the letter reads as follows: "You will note in the upper left-hand corner of the statement, date terminated has been blocked out because this is handled as a withdrawal " 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges , dismissing, if neces- sary, replacements to make room for their return , Failing within 5 days to reinstate any striker or strikers who uncondi- tionally offer to return to work, the Respondent shall make him or her whole for any loss- of earnings each may suffer as a result of its failure to reinstate such employee, by payment of a sum of money equal to that which such employee would earn as wages from the Respondent from the date of the offer to return to work until such date of reinstatement, less net earnings during that period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. By accompanying profit-sharing checks to 13 strikers with forms indicating that they had been terminated, the Respondent violated Section 8(a)(1) and (3) of the Act. 2. The strike which remained an economic strike from its inception on September 29, 1970, became an unfair labor practice strike on and at all times after July or August 1973. [Supplemental Order omitted from publication.]