Otsego Ski Club-Hidden Valley, Inc.

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Otsego Ski Club-Hidden Valley, Inc. -andHotel, Hos- pital, Restaurant Employees -& Bartenders Union, Local 395, Hotel - and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 7-CA-10620 April 16, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO minated for alleged picket line misconduct, the follow- ing letter: Dear . In view of the fact that some of you have requested re-employment, but the strike and picketing still continue, the matter is unclear as to what your desires may be. If you are available and desire to be considered for re-employment, please advise us by signing and returning the enclosed application by September 20, 1973. On June 28, 1974, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting 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. 1. The Administrative Law Judge dismissed the 8(a)(3) allegation with respect to the seven strikers who failed to respond to the Respondent's letter of Septem- ber 12, 1973.2 The General Counsel excepts; we find merit in his exceptions. The operative facts, more fully set forth in the Ad- ministrative Law Judge's Decision, are as follows: On March 3 the Union petitioned for an election. There- after, as a result of events outside the scope of this proceeding, including unfair labor charges filed by the Union which were settled, the election was delayed. On August 10, 38 employees struck. As Respondent's busi- ness declined because of the strike, it adjusted its opera- tions and did not hire permanent replacements for the strikers. On September 6, the strikers offered to return to work. However, when the Respondent refused to ac- cept them all that day because of depressed business conditions and asked those who wanted to return at a later date to sign a sheet of paper, the strikers resumed the strike. On September 12, before the strike ended, the Respondent sent the strikers, except those ter- I The Respondent excepts to the Administrative Law Judge's denial of its motion for -the release of a letter from the General Counsel's Office of Appeals (fn I of the ALJD), and requests that the Board rule that the Administrative Law Judge was in error when he denied the motion. For the reasons set forth by the Administrative Law Judge, we find the Respon- dent's exceptions without merit and deny its request. I Unless otherwise indicated all dates are 1973 These employees are Harry Koronka, Richard Miller, William Van Dusen, Pauline Prusakiewicz, Sherisan Kakaviska, Leora Kuck, and Jo Ann Milbocker. Robert Hayes General Manager I hereby apply for re-employment with Otsego Ski-Club-Hidden Valley, Inc. if and when such employment is available. Signed All but the seven strikers here in issue, signed and returned the attachment. The strike ended on Septem- ber 17. The seven strikers who did not respond were notified on September 26 that, because of their failure to respond, each was considered to have terminated his employment. Also on September 26, other employees, who the Administrative Law Judge found were ter- minated in violation of Section 8(a)(3), were advised that their employment as temporary employees was ended. With regard to the seven employees who were terminated because they failed to respond, the Re- spondent upon later reflection considered that its letter of September 26 might be a technical violation of the Act. It therefore subsequently sent some of them letters informing them that they were, being terminated as temporary employees as there was no further need for their services, while others were advised the Company had received information that they had quit voluntarily or had accepted employment elsewhere and in either event were considered terminated. The Administrative Law Judge found that the strike was at all times an economic strike. He further found that the strikers' offer that all of them be returned to work on September 6 without regard to whether jobs were available for them was unreasonable and therefore not an unconditional offer to return. In this respect he noted that Hayes was prepared to institute an orderly method of reinstatement once the strike ended, since the hotel occupancy rate, would presumably improve and more employees would be needed. He found that, since the strike had resumed, the September 12 letter was a reasonable and justified inquiry by Respondent as to whether the strikers intended to return uncondi- tionally and that in the absence of any 8(a)(1) violations 217 NLRB No. 64 OTSEGO SKI-CLUB during the strike, the September 12 letter was not a solicitation of the employees to abandon the strike. He concluded that the seven strikers who did not respond to the letter never made a valid unconditional offer to return to work and thereby forfeited any right to rein- statement they could otherwise have perfected. The General Counsel contends that, even assuming the strikers did not make an unconditional offer to return to work on September 6, the Administrative Law Judge's finding is erroneous because when the strikers returned to the strike they retained their full rights under the law as economic strikers and were entitled to that status until such time as they chose to make an unconditional offer to return. He further con- tends that in any event Respondent was not free under the Act to demand that they make an unconditional offer to return. We agree. Since its business was suffering, as a result of the strike and it did not have positions for all the strikers we agree that Respondent was not required to take all of the strikers back on September 6. But Respondent was not justified in making its September 12 demand. It could have advised the strikers that because of de- pressed business conditions it would take them back as jobs became available, or that it would place them on layoff status or on a preferential hiring list until jobs were available. But it could not demand that the em- ployees, while they were still engaged in a protected concerted strike, make not only an unconditional offer to, return but that they make it by September 20. The purpose and effect thereof was to threaten the strikers that, if they did not by September 20 indicate an inten- tion to abandon the strike, they would, in effect, be considered as having waived their right to reemploy- ment in the future. This is conduct violative of Section 8(a)(1) of the Act. As we have found Respondent's demand of Septem- ber 12 unlawful, the seven strikers did not forfeit their rights under the Act by not responding by September 20. Because they did not respond, as they did not need to in order to preserve their employee status, these strikers were discharged on September 26. Respondent thereby violated Section 8(a)(3) and (1) of the Act.3 2. We do not agree with the Administrative Law Judge that Gerald Mankowski did not engage in picket line misconduct sufficiently grave to warrant his dis- charge. Mankowski thrust a picket stake into the car of a nonstriking employee and threatened to "beat his 3 The action later taken by Respondent with respect to these employees was simply to disguise the fact of their unlawful termination Member Kennedy concurs in the additional violations found above How- ever, he does so only for the reason that Respondent's September 12 letter requiring the strikers to apply for reinstatement was null and void, because it was mailed to the strikers while they were still lawfully engaged in an economic strike Respondent may not lawfully impose a condition of rein- statement that striking employees affirm that they will, in effect, cease striking by a certain date. 409 ass." In our opinion Respondent was justified in dis- charging Mankowski. Accordingly, we will not order his reinstatement.4 AMENDED CONCLUSIONS OF LAW On the basis of the foregoing and the entire record, the Administrative Law Judge's Conclusions of Law are amended by deleting Conclusion of Law '3 and substituting the following: "3. By discriminatorily discharging Joseph Prusa- kiewicz, Stanley Slesinski, Shirley Samkowiak, and Helen O'Rourke on September 12, 1973, and Jo Ann Koronka, Bernice Wilson, Kathy Brink, Jean Wilma Cole, Barbara Kujawa, Theresa Vinecki, Karen Krzemien, Mildred Hintz, Harry Koronka, Richard Miller, William Van Dusen, Pauline Prusakiewicz, Sherisan Kakaviska, Leora Kuck, and Jo Ann Mil- bocker on September 26, 1973, thereby discouraging them and other employees from joining or assisting the Union, or from engaging in other mutual aid and pro- tection, the Respondent has engaged in other unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." AMENDED REMEDY The third full paragraph of the Administrative Law Judge's Remedy is amended to include the following employees, also terminated on September 26, 1973: Harry Koronka, Richard Miller, William Van Dusen, Pauline Prusakiewicz, Sherisan Kakaviska, Leora Kuck, and Jo Ann Milbocker. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein, and hereby orders that Respondent, Otsego Ski Club-Hidden Valley, Inc., Gaylord, Michigan, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Add the following names to those set forth in paragraph 2(b): Harry Koronka, Richard Miller, Wil- liam Van Dusen, Pauline Prusakiewicz, Sherisan Kakaviska, Leora Kuck, and Jo Ann Milbocker. 4 Member Kennedy dissents from his colleagues' adoption of the Ad- ministrative Law Judge's finding that Joseph Prusakiewicz and Stanley Sle- sinski were unlawfully discharged. Contrary to them, he views their picket line misconduct as sufficiently grave to warrant their discharge Joseph Prusakiewicz and Stanley Slesinski were part of a nail-strewing incident in the driveway and subsequently tailgated a supervisor's car on the highway. In his view Respondent was justified in discharging them 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Substitute the attached notice for the Administra- tive Law Judge's notice. MEMBER FANNING, concurring in part and dissenting in part: I would adopt the 8(a)(3) violations found by the Administrative Law Judge . I also agree with my col- leagues that the seven employees who did not respond to the Respondent's September 12 letter by September 20 were terminated in violation of Section 8(a)(3) and (1). However, I am unable to agree with my colleagues that Mankowski's picket line conduct was serious enough to warrant his discharge. The Administrative Law Judge found that on August 30 Mankowski struck a picket sign through the open window of the passenger side of nonstriker Campbell's car and threatened to get him orbeat his ass. As Campbell started forward Man- kowski withdrew the sign from the window and let it scrape the side of the car. The sign rubbed the dust off the body but did not scrape the paint. Mankowski de- nied Campbell's testimony. The Administrative Law Judge crediting Campbell found Mankowski's conduct not sufficiently serious to warrant his discharge for misconduct. Although Campbell's testimony as to what actually occurred was less than certain the Administrative Law Judge credited Campbell over Mankowski 's denial. However, the Administrative Law Judge apparently had some difficulty in determining which of Campbell's numerous versions of the incident should be credited. For example, he found Mankowski said he would ei- ther- get Campbell or beat his ass. The Administrative Law Judge's uncertainty is understandable : For Camp- bell in his Board affidavit said only that Mankowski pointed the sign at him. At the hearing he testified first that Mankowski stuck the 2- by 2-foot sign in the win- dow, but when confronted with his affidavit said that pretty much all of the sign got inside the car, then that the sign got about a foot away from him, and finally on redirect that he had to dodge the sign. Although admit- tedly only one verbal threat was made, Campbell first testified Mankowski said "he would get me," next that "he would beat me up," then that "he would kick my ass," and finally that "he would beat my ass." My colleagues engaging in rhetorical overkill de- scribe Mankowski's action as the thrusting of a picket stake into the car. According to Webster's Third New International Dictionary (unabridged, 1966), a stake is "a pointed piece of wood or other material . . . ." In fact Campbell testified that Mankowski stuck the sign itself which he described as being about the size of two legal pads or about 2 feet by 2 feet into the car. There is no evidence of what the sign itself was made of but if it were the typical picket sign it was probably made of cardbord-nonetheless hardly a stake. In my opinion taken in the light most favorable to the Respondent, Mankowski's conduct and accompan- ying threat constituted at worst a minor incident in a long and bitter strike and was not serious enough to warrant his losing his job. I do not condone picket line violence. The Board and the courts have acknowledged that serious acts of picket line misconduct, usually de- struction of property or other violence, may disqualify a striker from the protection of the-Act. On the other hand, absent violence, the Board and courts have held a picket is not disqualified from reinstatement despite participation in various incidents of misconduct such as using obscene language, making abusive threats against nonstrikers, or engaging in minor scuffles, or other minor incidents of misconduct .' I would put Man- kowski's conduct in the latter category. In short I do not believe Mankowski's conduct can fairly be consid- ered any more than the type of "animal exuberance" which the Board has recognized normally accompanies a strike. I would find his discharge violative of Section 8(a)(3) and order reinstatement. In response to Member Kennedy's dissent concern- ing the reinstatement of J. Prusakiewicz and Slesinski, I would indicate only that the Board has never held that the mere presence of strikers on the picket line, without more, when misconduct has occurred is enough to disqualify strikers from reinstatement. Moreover, their conduct when following Stone's car was not even characterized by Stone as tailgating: Stone testified that they sometimes "followed fairly close," and they came "closer than normal," and "it was an- noying" but "I don't know if there was any danger." He added that although Slesinski honked the horn while following him, he never drove alongside or tried to force Stone off the road. Their conduct clearly does not warrant disqualification from reinstatement. 5 See Coronet Casuals, Inc, 207 NLRB 304 (1973), and cases cited therein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, refuse to reemploy, or otherwise discriminate against employees who join or assist Hotel, Hospital , Restaurant Employees & Bartenders Union, Local 395, Hotel and Restau- rant Employees and Bartenders International Union, AFL-CIO, or any other labor organiza- tion, or who engage in other concerted activities for their mutual aid or protection. OTSEGO SKI-CLUB 411 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL offer Joseph Prusakiewicz and Stanley Slesinski immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights or privileges, dismissing, if necessary, any persons hired to re- place them, and make them whole for any loss of earnings suffered by reason of our discrimination against them. WE WILL offer the persons named below im- mediate and full reinstatement to their former jobs during the current season or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing, if necessary, any persons hired to replace them. We shall consider them for reemployment in future season on the same non- discriminatory basis on which other seasonal workers are considered, and shall also make them whole for any loss of earnings suffered by reason of our discrimination against them. Shirley Samkowiak Jean Wilma Cole Helen O'Rourke Barbara Kujawa Jo Ann Koronka Theresa Vinecki Bernice Wilson Karen Krzemien Kathy Brink Mildred Hintz Harry Koronka William Van Dusen Richard Miller Pauline Prusakiewicz Leora Kuch Sherisan Kakaviska Jo Ann Milbocker OTSEGO SKI CLUB-HIDDEN VALLEY INC DECISION STATEMENT OF THE CASE Upon the entire record in the case, including my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is engaged in the operation of a resort hotel and restaurant providing food, lodging, and recreational ser- vices to the public at Gaylord , Michigan. In 1972, Respond- ent sold food and liquor, provided lodging services, and derived revenue from ski lift tickets and golf greens fees, the revenues from which exceeded $500,000. In the same year, it purchased and caused to be delivered to its facility at Gay- lord, Michigan, goods and materials valued in excess of $5,000 directly from points outside the State of Michigan. Re- spondent admits, and I find , that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES Background and Facts Respondent operates a resort facility in northern Michigan which is open for business during two separate seasons-December to March, and May to October. Besides supervisors and office employees , the only year-round work- ers, employed on a 12 -month basis, is a small maintenance crew of three or four. All other employees, such as maids, restaurant help, golf course maintenance, ski tow operators, etc., amounting to 100-125 are employed seasonally. Their number rises and falls as the season reaches a peak and then declines. Additional extra help for holidays and other busy periods are also employed. On March 6, 1973, the Union filed a petition for an election in a unit consisting basically of all nonsupervisory employees. (Case 7-RC-1 1674). There then ensued a series of events, outside the scope of this proceeding, including unfair labor practice charges (Case 7-CA-10260) which were-eventually MILTON JANUS, Administrative Law Judge: The General Counsel issued a complaint in this proceeding on November 8, 1973, and an amendment thereto on January 8, 1974. The charges on which the complaint is based were filed on Sep- tember 20 and October 1, 1973. As amended , the complaint alleges that Respondent discriminatorily discharged certain employees on or about September 13, 1973, and on or about September 26, 1973, discriminatorily discharged other em- ployees and terminated the employment of still another group of employees by discriminatorily reducing their status and classification from that of regular seasonal to the lesser clas- sification of temporary employees. I held a hearing in this matter on February 26-28, 1974, at Gaylord, Michigan, at which all parties were represented. Briefs have been received from the General Counsel and the Respondent.' 1 After the close of the hearing, Respondent renewed a motion , which I had first denied at the hearing, requesting me to require the Regional Direc- tor for Region 7 to release certain information- to it. The information Re- spondent seeks is a letter of January 4, 1974, from the Office of Appeals to the Regional Director sustaining the Union's appeal from the Regional Director's refusal to include certain allegations of violation in the complaint Pursuant to the action of the Office of Appeals, the complaint was amended on January 8, 1974 On March 4, 1974, Respondent requested the General Counsel, pursuant to Sec 102 117(c) of the Board's Rules and Regulations, to release the letter of January 4, but the request was denied on March 12, 1974. Respondent's requests for the letter of January 4, are based on the Freedom of Information Act, 5 U S C Sec 552(a)(2) and the decision in Sears, Roebuck & Co. v. N.LR.B., 480 F 2d 1195 (C.A D.C.) I hereby deny Respondent's motion for release of the Office of Appeals letter of January 4 , 1974, since the material requested may not be disclosed, under Sec 102.118(a) of the Rules and Regulations, without the written consent of the General Counsel. Respondent has been unable to obtain such consent, and its recourse, under 5 U.S .C Sec. 552(a)(3) is to an appropriate U.S. District Court. - 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settled and which in effect served to delay action on the representation petition. About August 10, 1973, 13 em- ployees went out on strike to protest the delays in gaining recognition for the Union, and set up a picket line. -About 25 other employees refused to cross the picket line, thereby join- ing the strike. As Respondent's business declined during the strike, it adjusted its operations to the new conditions and made no attempt to hire permanent replacements for the strikers. On September 6, the Union offered to return the strikers to work unconditionally, but when the Respondent refused to reinstate them all that day, they resumed their strike and changed their picket signs to assert that they had been locked out. On September 12, Respondent sent some of the 38 strik- ers a letter (G.C. Exh. 6) advising them that if they were available and wished to be considered for reemployment to return an attachment reading as follows: "I hereby apply for re-employment with Otsego Ski Club-Hidden Valley, Inc. if and when such employment is available." All but seven of the strikers signed and returned the attachment. On September 17, the strike finally ended. On September 26, Respondent sent the seven strikers who. had not by then returned their applications for reemploy- ment, individual letters (G.C. Exh. 7) advising them that because of their failure to respond, they were listed on the Company records as having terminated their employment. Also on September 26, Respondent sent a letter (G.C. Exh. 8) to at least eight other strikers2 informing them "that be- cause of economic conditions, a lack of work, and reorganiza- tion, your employment at Otsego Ski Club-Hidden Valley, Inc., as a temporary employee is hereby terminated." During the strike certain acts occurred which the Re- spondent characterizes as picket line misconduct, and on September 12, it notified seven of the strikers that they were being terminated for that reason.' To round out the recital of significant facts, I note that the representation petition, filed in March 1973, was acted on by the Regional Director on February 15, 1974, when he ap- proved a Stipulation for Certification Upon Consent Elec- tion, in a unit of all employees. The election was scheduled to be held March 12, 1974, about 2 weeks after the instant hearing, but for reasons which I do not know, has apparently been postponed. Of the 38 employees who participated in the strike, 22 by my count were terminated or otherwise affected in their status by Respondent's actions during or after the strike. These 22 fall into three groups: (1) 7 who were discharged allegedly for misconduct during the strike; (2) 8 who were informed that they were temporary employees whose services were no longer needed; and (3) 7 who were informed that they were being terminated because they had failed to respond timely to an earlier letter inquiring whether they wished to be considered for reemployment; some in this group were also 2 G C. Exh 9a-9g are the employment records of seven of those to whom the letter was sent: Vinecki, Kujawa, Wilson, Brink, Hintz, Cole and Krze- mein But G.C. Exh. 8 itself shows that the letter was also sent to JoAnn Koronka 3 The letter is in evidence as Resp Exh. 2. It is undated, but the testimony of Hayes, Respondent's general manager, is that the letters were sent on September 12. later advised that they were-temporary employees and were terminated for lack of work. - The major issues in the case are whether the three classes of terminations (discharges, quits, changes in status or how- ever designated) were proper under the Act. The discharges for alleged misconduct Respondent's extensive property is about 3 miles from the town of Gaylord and fronts on State Highway M-32 which runs into the town. The main lodge is set back some distance from M-32. There are two driveways for automobiles from the highway, which then converge into one, leading to the lodge. Picketing occurred at the intersections of M-32 and the driveways from early morning into the evening. On August 20, 10 days after the inception of the strike, a circuit judge issued an ex parte restraining order imposing certain restrictions on the picketing, based on affidavits of employees, the sheriff, and a lieutenant of the state police. The order was later made permanent, with the same restric- tions in effect. Both before and after the issuance of the restraining order, the major hazard faced by nonstriking em- ployees and lodge guests was the presence of nails strewn on roads and thereabouts. All the pickets who testified, acknowl- edged seeing nails quite frequently in the area, but denied that they had placed them there, denied seeing anyone else place them there, and could offer no explanation for their presence. Respondent received many complaints from its employees and guests about the damage done to their tires by these nails. During the strike, Respondent hired a guard service to patrol the area, and patrolmen were stationed in a little guardhouse near one of the entrance roads and in a farm house on the property. (a) Chester Prusakiewicz and Leo Koronka: About 9:30 a.m. on August 31, General Manager Hayes received a call from a security guard, Schlicht, who was stationed in the farm house, that he was observing pickets placing nails in the main driveway entrance. Hayes and the Employer's control- ler, Gray, took a golf cart and proceeded to the farm house by a route which kept them out of the pickets' line of vision. Arriving at the farm house, Hayes, Gray, and Schlicht used field glasses to keep the activities of the pickets under obser- vation. During the next half hour or so they watched two of the four pickets at the driveway, C. Prusakiewicz and L. Koronka, drop five or six nails from their pockets and posi- tion them with their feet. On a subsequent unspecified date, Hayes and Schlicht again observed these two picketers en- gaged in the same deliberate dropping and positioning of nails in the driveway. I credit the testimony of Hayes, Gray, and Schlicht as to the nail dropping incident on August 31, and the testimony that C. Prusakiewicz and L. Koronka were similarly engaged on a later date during the strike. I specifi- cally discredit the testimony of the pickets who were so iden- tified, that they never dropped any nails in the driveway and had no idea how they got there. Strewing nails in a driveway leading to an employer's premises over which nonstriking employees and customers must proceed is clearly serious misconduct which justifies the discharge of the pickets so engaged, and I therefore find no violation of Section 8(a)(3) in Respondent's discharge of Chester Prusakiewicz and Leo Koronka.° OTSEGO SKI-CLUB 413 (b) Joseph Prusakiewicz and Stanley Slesinski. When Hayes and Gray observed Chester Prusakiewicz and Leo Koronka dropping nails in the driveway on August 31, there were also present two other pickets in the immediate area, Joseph Prrusakiewicz (Chester's brother) and Stanley Slesinski. Re- spondent witnesses do not claim that these two were also seen to be dropping nails, but assert that they seemed to be acting as lookouts. Slesinski and J. Prusakiewicz testified on behalf of the General Counsel, before Respondent's witnesses offered their evidence as to nail dropping on August 31, so that they had no opportunity to deny the specific allegations as to their conduct on that date. Both however flatly denied that they had ever seen anyone placing nails at the driveway. Although this is scarcely believable in view of Hayes' testimony that they were standing within 10 feet of C. Prusakiewicz and Koronka as the latter were surreptitiously dropping nails, it constitutes no more, in my opinion, than silent acquiescence in the misconduct of others. I do not feel justified in finding, on the basis of the evidence of Hayes and Gray, that J. Prusakiewicz and Slesinski were actively participating in the misconduct of the other two pickets, although they knew what was going on. I am unwilling to find on this state of facts that Prusakiewicz and Slesinski participated in the miscon- duct of the other pickets.' Respondent also urges that other conduct of theirs should disqualify them for reinstatement. During the first few days of the strike, Supervisor Stone drove a company vehicle into town to pick up nonstriking employees in order to bring them to work past the picket lines. On at least 2 days (or 5, accord- ing to Stone) Prusakiewicz and Slesinski followed in Slesin- ski's car, honking the horn. How close Slesinski drove behind Stone's vehicle is in dispute, but he never drove alongside it nor tried to force it off the road. His action may have been annoying, but it did not place Stone or his passengers in any danger. I find the conduct of Joseph Prusakiewicz and Stan- ley Slesinski not so aggravated as to warrant their discharge for misconduct.' I therefore find that Respondent violated Section 8(a)(3) by discharging them for either or both of the incidents on which it relied. (c) Shirley Samkowiak: Security guard Radtke testified that about 4 p.m. on Sunday, September 2, he was stationed in the guardhouse, which is glass enclosed, keeping the road under observation with binoculars. The guardhouse is about 200 feet from the driveway where strikers normally picketed. Pie said he saw a woman bending down every so often placing nails on the blacktop. He was unable to identify the woman by name, so he called the office which then contacted the guard captain Bell at the farm house. Bell came to the guard- house and identified the woman whom Radtke pointed out to him as Shirley Samkowiak. Bell then went out to where the woman was standing and picked up some nails. Radtke said he had never seen any other pickets dropping nails. 4 Borman's Inc, 199 NLRB 1250 (1972), and Jai Lai Cafe, Inc., 200 NLRB 1167 (1973). 5 Cf. The Firestone Tire & Rubber Co, 187 NLRB 54, 55 (1970) (Brous- sard) 6 Federal Prescription Service Inc., 203 NLRB 975 (1973) (McCormick and Edwards), and Consolidated Supply Co., Inc, 192 NLRB 982, 938-998 (1971). Bell corroborated Radtke's story as to his own involve- ment. He also said that when he went out to the driveway, Samkowiak walked away from him. Bell said he knew her name because he had talked to her on other occasions on the picket line, and they had discovered that-he was an old ac- quaintance of her uncle. He was positive in his identification of Samkowiak as the woman whom Radtke said he saw put- ting down nails on September 2. Samkowiak denied that she had dropped any nails, or in- deed that she had picketed at all that day. She testified that September 2 was her husband's birthday, and she accounted for her entire day, from church in the morning to attendance at two family gatherings during the rest of the day into the evening. I confess I am nonplussed by this stark contradiction be- tween Samkowiak's earnest denial that she was at the picket line on September 2, and the positive identification by Radtke that he saw her placing nails about 4 p.m. that day, and Bell's naming her. Although Bell did not see her actually place any nails, it seems impossible that there could have been two women there, with Radtke identifying the one who dropped nails and Bell naming the other. I was impressed by Sam- kowiak's demeanor on the witness stand. She appeared to me to be trustworthy, and although she had more to gain by lying than did Radtke or Bell, I have decided to credit her. I can offer no explanation of how Radtke and Bell may have gone wrong-I simply believe Samkowiak. I therefore find that Respondent wrongfully terminated Samkowiak even though it acted in good faith in relying on Bell's identification of her as the woman who dropped nails in the driveway on Septem- ber 2.' Respondent also relies for its discharge of Samkowiak on a threat which is supposed to have been made while picketing, to a nonstriking employee, Kerin Kassuba. Kassuba and Samkowiak are cousins. Samkowiak denied saying anything to Kassuba, and Kassuba did not testify. Respondent's infor- mation apparently comes from a statement furnished it by Kassuba, but without her testimony in this proceeding, I have nothing before me to contradict Samkowiak's story. As a matter of fact, an affidavit of Kassuba's, which Respondent used in support of its application for a restraining order, and which is therefore part of Respondent's Exhibit 1, does not even name the person who is supposed to have threatened her. I find that Respondent had no legitimate reasons for discharging Samkowiak. (d) Gerald Mankowski: On August 30, as nonstriker John Campbell was leaving work in his car, he came to a stop at the intersection of the driveway and M-32. Some pickets approached the car, and one of them, Mankowski, stuck a picket sign through the open window on the passenger side of the car, and threatened to get him or to beat his ass. As Campbell then started forward, Mankowski withdrew the picket sign from the window and let it scrape against the side of the car. It rubbed dust off the body, but the paint was not scraped. The above is based on Campbell's testimony. Man- kowski denied that he had put a picket sign through anyone's window or had threatened anyone. I credit Campbell but find that Mankowski's action and statement are not sufficiently 7 N.L.R.B. v. Burn up & Sims, Inc., 379 U.S 21 (1964). 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serious to warrant Respondent's discharging him for - and returning the enclosed application by September 8 misconduct. (e) Helen O'Rourke.- A few days after the strike began, Respondent's controller, Gray, drove his pickup truck into the driveway leading to the lodge past the pickets. In the truck with him were-his two teenage daughters who were working as temporary replacements for striking waitresses. O'Rourke is 65 years old, and from my observation of her at the hearing, stands about 5 feet tall and weighs about 100 pounds. She had been employed as a maid by Respondent since 1955. She testified that as Gray drove by, she gave way to an impulse, threw an egg at the truck, and managed to hit its windshield. She was discharged for this single instance of misconduct, on September 12. Later, she called Gray to apologize for what she had done; he told her they would forget about it, but she has not been recalled. I find O'Rourke's successful toss of an egg at Gray's vehi- cle insufficiently serious to warrant her discharge for miscon- duct, and I therefore find that Respondent violated Section 8(a)(3) thereby.9 Terminations and other changes in status During the strike, Respondent's business fell off, and it was able to take care of its guests with the 60 or so nonstriking employees. It also made some changes by imposing additional duties on some employees, reducing housekeeping functions and instituting buffet meals to save the time of waitresses. No permanent replacements were hired for any of the striking employees. Miller, the Union's representative in charge of the strike, sent Respondent a telegram on September 5 or 6 that the Union was returning all employees back to work uncondi- tionally, but before the telegram was actually received all the strikers returned to the premises and requested immediate reinstatement for all. General Manager Hayes told them that because of the reduced number of guests he was not prepared to take them back at once but would talk to them individu- ally. He asked them to sign a sheet indicating their willing- ness to return to work. The strikers refused to sign the sheet, insisting that they all be permitted to return at once. They then resumed picketing with signs asserting that they had been locked out. The strike ended after another 10 days, in some unspecified manner, presumably by the cessation of picketing. No request for reinstatement was made at that time. On September 12, before the strike finally ended, Respond- ent sent the following letter to all who had participated in the strike, except for the seven who were discharged the same date for alleged misconduct: Dear . In view of the fact that some of you have requested re-employment, but the strike and picketing still con- tinue, the matter is unclear as to what your desires may be. If you are available and desire to be consid- ered for re-employment, please advise us by signing 8 Coronet Casuals, Inc., 207 NLRB 304 (1973) (Whitfield); and New Fairview Hall Convalescent Home, 206 NLRB 688 (1973) (Izzo) 9 Coronet Casuals, Inc., supra (Waldrop). 20, 1973. , Robert Hayes General Manager I hereby apply for re-employment with Otsego Ski Club-Hidden Valley Inc. if and when such employ- ment is available. Signed Most of the strikers who received this letter signed and returned them, and although the number is not ascertainable from the record, I presume that some of these were soon rehired. At least, of the 30 or so letters sent out on September 12, only 15 are alleged in the complaint as not having been reinstated. Seven of these 15 failed to return a signed applica- tion for reemployment, and they were then notified on Sep- tember 26, that because of their failure to respond, each was considered as having terminated his employment." Another eight employees (those named in par. 12 of the complaint, plus JoAnn Koronka) were advised by letter on September 26, that their employment as temporary em- ployees was being terminated. These eight had all signed and returned the September 12 application for reemployment. Findings and Conclusions The strike was an economic strike at its inception, nor does the General Counsel argue that it was converted into an unfair labor practice strike, either on September 6, when the strikers' demand for the immediate reinstatement of all was rejected, or on the 12th, when the strikers (except those al- ready discharged for misconduct) were told to apply for reemployment. Since the issue of conversion into an unfair labor practice strike was neither asserted nor litigated, I find that the strike was at all times an economic one." The General Counsel argues that the seven employees who failed to respond to the September 12 letter, asking if they were available and wished to be considered for reemploy- ment, were nevertheless unlawfully discharged because the letter was an unlawful solicitiation of the employees to aban- don their protected strike. The facts, in my opinion, do not bear out this argument. The strikers' demand in their meeting with Hayes on Septem- ber 6, that they all be immediately reinstated- without regard to whether there were still places for them was unreasonable. Hayes was prepared to institute an orderly method of rein- statement once the pickets were removed and the strike ended, since it'could be presumed that the guest occupancy 10 These are the strikers named in par 11 of the complaint. On later reflection, Respondent considered that this letter of the 26th might be a technical violation of the Act, and it informed some of them that they were being terminated because they had been temporary employees and there was no further need for their services. Others were advised that the Com- pany had received information that they had quit voluntarily or had ac- cepted employment elsewhere, and in either event, they were considered as having terminated their employment with it. 11 W.J. Ruscoe Co., 166 NLRB 618 (1967) OTSEGO SKI-CLUB 415 rate would then improve, with a consequent need for more employees. Despite the Union's assertion in its telegram that the employees were returning unconditionally, they were in fact denying the Respondent any time to adjust to a sudden influx of returning employees without regard to Respondent's needs at the time. Nor can it be said that Respondent unduly delayed its answer to the strikers . Considering that the strike had resumed, the September 12 letter was a reasonable and justified inquiry as to whether the strikers did indeed intend to return unconditionally. I find, particularly in the absence of any violations of Sec- tion 8(a)(1) during the strike, that the letter of September 12 was not a solicitation of the employees to abandon the strike.12 It follows, in my opinion, that the seven strikers who, for whatever reasons did not respond to that letter, never made a valid unconditional offer to return to work, and have thereby forfeited any rights to reinstatement they could otherwise have perfected. The following strikers unconditionally indicated their availability for reemployment by September 20, in response to Hayes' letter of the 12th : JoAnn Koronka, Bernice Wilson, Kathy Brink, Jean Wilma Cole, Barbara Kujawa, Theresa Vinecki, Karen Krzemien, and Mildred Hintz. On September 26, Respondent informed each of them that "because of eco- nomic conditions, a lack of work, and reorganization, your employement . . . as a temporary employee is hereby ter- minated." It is the General Counsel's contention that, except for those employees hired only for holidays or peak weekends , all oth- ers are seasonal, and that there is no significant difference between those whom Respondent calls "regular seasonal" and "temporary" employees. However, even if there are in fact two such different groups in the "seasonal " category, the General Counsel argues that Respondent nevertheless vi- olated Section 8(a)(3) by selecting for termination after the strike only those employees who had joined or assisted the strike. I agree with him on both counts. Hayes in effect admitted that there were so-called tempo- rary employees who did not strike and who were not ter- minated afterwards , despite the "economic conditions, lack of work, and reorganization" on which he based the termina- tion of the strikers. If in fact there was a need after the strike to reduce employment from its prestrike level, it should have been done in a nondiscriminatory manner, utilizing whatever standards, such as seniority or employee efficiency, Respond- ent had used in prior seasons. The fact that the only em- ployees who were terminated on September 26 were those who had engaged in the protected activity of striking is prima facie proof of discrimination, which Respondent has not refuted. Furthermore, it has not established, despite its choice of nomenclature, that there is any significant distinction be- tween "regular seasonal" and "temporary employees." In March 1973 it listed, for purposes of previous Board litiga- tion, 67 employees as having been terminated that month as temporary employees, yet at least 3 of these, Helen O'Rourke, Shirley Samkowiak, and Julia Wojtkovviak were rehired the 12 This fact alone serves to distinguish this case from Ramona's Mexican Food Products, Inc., 203 NLRB 663 (1973), on which the General Counsel relied next season as regular Seasonal employees. There are also no differences in working conditions between the two so-called groups. They work similar hours and shifts, and perform exactly the same work, mainly as maids and waitresses. There was some evidence that Respondent offers a health insurance benefit to its year-round employees and to some seasonals, but as to the latter, it appears that the benefit was never publicized or bestowed on any rational basis. Samkowiak, for example, an employee for 18 years and admittedly a regular seasonal, was never told that she was eligible for it. In representation cases where the determination of "regu- lar," "seasonal" and "temporary" may be crucial as to voting eligibility, the test is clear: it turns on whether the employees who work less than year-round have sufficient community of interest with the year-round employees to warrant their in- clusion in the appropriate unit. Here, the nonsupervisory, nonclencal, year-round employees number no more than 5 or 6 out of a total peak work force of well over 100. Each of the employees in issue here had worked for Respondent in a season prior to the summer of 1973, and each had a reason- able expectation of substantial employment in subsequent seasons, despite the Respondent's self-serving notation on their personnel records that they were "temporary" em- ployees. As a matter of fact, those employees who were ter- minated in September and worked as maids were recalled in late December to work in that season. I am satisfied that the employees who were discharged on September 26 as temporary employees more aptly conform to the usual Board description of "regular seasonal" employees, as having a reasonable expectation of recurring employment from season to season and from year to year. And since I consider that all employees who are hired to work regularly during a season comprise a single class, even though the duration of their employment may vary during the season, I come to the same conclusion as before-that Respondent selected these employees for termination because they had joined or assisted in the strike, and not because their tenure or status was different than that of other employees who were also hired on a seasonal basis. I find that Respondent thereby violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Otsego Ski Club-Hidden Valley, Inc., is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Joseph Prusakiewicz, Stanley Slesinski, Shirley Samkowiak, Gerald Mankowski, and Helen O'Rourke on September 12, 1973, and JoAnn Koronka, Bernice Wilson, Kathy Brink, Jean Wilma Cole, Barbara Kujawa, Theresa Vinecki, Karen Krzemien, and Mildred Hintz on September 26, 1973, thereby discouraging them and other employees from joining or assisting the Union, or from engaging in other concerted activity for the purpose of collective bargaining or other mutual aid or pro- tection, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of, the Act. THE REMEDY Having found that Respondent violated Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Joseph Prusakiewicz, Stanley Slesinski, and Gerald Man- kowski were year-round employees, while the others who were wrongfully discharged worked on a seasonal basis. I shall recommend that Respondent be ordered to offer Joseph Prusakiewicz, Stanley Slesinski, and Gerald Mankowski im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privi- leges, dismissing if necessary, any persons hired to replace them, and make them whole for any loss of earnings each may have suffered, by payment to him of the amount he normally would have earned as wages from September 12, 1973, to the date of an offer of reinstatement. Shirley Samkowiak and Helen O'Rourke were also dis- charged on September 12, while JoAnn Koronka, Bernice Wilson, Kathy Brink, Jean Wilma Cole, Barbara Kujawa, Theresa Vinecki, Karen Krzemien, and Mildred Hintz were discharged on September 26, 1973. I shall also recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs during the current season, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing if necessary any persons hired to replace them. It shall consider them for reemployment in future seasons on the same nondiscriminatory basis on which other seasonal employees are considered , and shall also make them whole for any loss of earnings each may have suffered, by payment to her of the amount she would normally have earned as wages from the date of her discharge to the date of an offer of reinstatement. Backpay for each discriminatee shall be determined by deducting net earnings, computed on a quarterly basis as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), plus interest at the rate of 6 percent per annum. I shall also order the Respondent to post appropriate notices. 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: ORDER13 Respondent, Otsego Ski Club-Hidden Valley, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or support for Hotel, Hos- pital, Restaurant Employees and Bartenders Union Local 395, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, by discriminatorily discharging, terminating, or laying off any employee, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer Joseph Prusakiewicz , Stanley Slesinski, and Ger- ald Mankowski immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing if necessary, any persons hired to replace them, and make them whole for any loss of earnings suffered by reason of Respondent's discrimination against them, in the manner set forth in "The Remedy." (b) Offer to the persons named below immediate and full reinstatement to their former jobs during the current season or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing if necessary any persons hired to replace them. It shall consider them for reemployment in future seasons on the same nondiscriminatory basis on which other seasonal workers are considered, and shall also make them whole for any loss of earnings each may have suffered by payment to her of the amount she would normally have earned as wages from the date of her discharge to the date of an offer of reinstatement. Shirley Samkowiak Jean Wilma Cole Helen O'Rourke Barbara Kujawa JoAnn Koronka Theresa Vinecki Bernice Wilson Karen Krzemien Kathy Brink Mildred Hintz (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all records necessary to analyze the amount of backpay due, the right to reinstatement, and the right to be reemployed in future sea- sons on a nondiscriminatory basis. (d) Post at its facilities at Gaylord , Michigan, -copies of the attached notice marked "Appendix."" Copies of the notice, 13 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 14 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 'OTSEGO SKI-CLUB 417 on forms provided by the Regional Director for Region 7, steps shall be taken by Respondent to insure that said notices after being duly signed by an authorized representative of the are not altered, defaced, or covered by any other material. Respondent, shall be posted immediately upon receipt (e) Notify the Regional Director for Region 7, in writing, thereof, and be maintained by it for 60 consecutive days within 20 days from the date of this Order, what steps the thereafter, in conspicuous places, including all places where Respondent has taken to comply herewith. notices to employees are customarily posted . Reasonable