Western Steel Casting Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Steel Casting Company and Craig Angus. Case 19-CA-9316 December I, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 12, 1977, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. The issue herein is whether Respondent unlawfully failed to reinstate economic strikers Craig Angus and Edward Collins to substantially equivalent jobs. The General Counsel contends and the Administrative Law Judge concluded that Angus and Collins should have been offered "helpers" jobs in preference to newly hired employees. Respondent contends that the collective-bargaining agreement provides for and the parties agreed to recall of strikers pursuant to job classification seniority and therefore Angus, a "chip- per," and Collins, "a foundry burner" were not eligible for the "helpers" jobs. Respondent also contends that the "helpers" jobs were not substan- tially equivalent to their former jobs. Respondent's foundry employees have been repre- sented by International Molders and Allied Workers Union, Local 158, AFL-CIO, since 1936. In Febru- ary of 1976, Washington Metal Trades Association, the bargaining agent for Respondent and other Washington state foundries, along with similar California and Oregon associations, entered into negotiations with Local 158 and sister locals for a new collective-bargaining agreement to replace the agreement due to expire in March 1976. No agreement was reached at that point and on March 29, 1976, 5,000 workers in three States struck approximately 60 companies. Agreement was finally reached in May 1976 and the strike officially ended on May 26, 1976. No replacements were hired by Respondent for any of the strikers. Prior to the strike Respondent operated with both a day shift and a night shift. Both As the record adequately presents the positions of the parties, the Employer's request for oral argument is hereby denied. 233 NLRB No. 128 Collins and Angus were night shift employees. When the strike ended, Respondent decided to operate with only one shift instead of two due to decreased production needs. Respondent recalled employees using job classification seniority regardless of which shift they had worked on previously. As Angus and Collins had lesser seniority in their job classifications than other employees they were not recalled to their old jobs. At that time neither Collins nor Angus had found other work. The record is clear that the helpers jobs were the least desirable and lowest paying in the plant. Collins testified that helper work was that of a slave boy. Robert Alexander, Respondent's vice president and manager, described it as a fetch-and-carry job. The testimony is conflicting as to whether the method of recalling strikers was discussed or specifi- cally agreed upon during contract negotiations. But the record is clear and the Administrative Law Judge concedes that both Respondent and the Union regarded the job classification seniority clause as describing the proper manner in which strikers should be recalled. In fact, at least one grievance was disposed of by the parties on the basis of this understanding between the parties, and all other strikers were recalled by this method. We disagree with the Administrative Law Judge's conclusion that the parties' understanding is insuffi- cient to waive any statutory rights of strikers. In our view, he has too narrowly interpreted the require- ments of the Board's Decision in United Aircraft Corporation (Pratt and Whitney Division)2 which holds that a strike recall agreement is valid if it was not intended to be discriminatory and was not used by either party to accomplish a discriminatory objective, was not insisted upon by the employer to undermine the status of the union, and was the result of good-faith bargaining. Clearly, the classification seniority clause herein is the product of give and take at the bargaining table and it expressly provides that it will apply in all cases of increasing or decreasing forces. The record reveals no evidence of any actual discrimination or any discriminatory intent. It is undisputed that both management and Union clearly understood and agreed that the seniority provisions of the collective-bargaining agreement would govern the recall of strikers. In these circumstances we find that the parties' understanding constituted a valid and enforceable recall agreement and a clear and unmistakable waiver of the strikers' rights to any jobs except those to which they would be eligible on the basis of job classification seniority. We also reject the Administrative Law Judge's conclusions that the helpers jobs were substantially 2 192 NLRB 382 (1971). 870 WESTERN STEEL CASTING COMPANY equivalent. We find that the helpers jobs were not substantially equivalent to Angus' and Collins' former classifications. The record is clear that the helpers jobs were the least desirable jobs in the foundry. The pay rate for Angus' classification is 18 percent greater than the helpers rate and the rate for Collins' classification is 14 percent greater than the helpers rate.3 Accordingly, on the basis of all the foregoing, we find that Respondent has not engaged in any unlawful conduct and we shall order that the complaint be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 3 The Employer excepts to the Administrative Law Judge's conclusion that an employer must offer an economic stnker any employment for which he is qualified. In light of our decision herein on other grounds, we find it unnecessary to pass on that question. FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent is a State of Washington corporation with an office and plant located at Seattle, Washington, where it is engaged in the business of manufacturing metal castings and related products. It admits, and I find, that during the past 12 months it has sold finished products valued in excess of $50,000 to purchasers located outside the State of Washington and during the same period purchased goods and materials valued in excess of $50,000 which were transported to its Seattle plant directly from States other than Washington. Accordingly, it admits, and I find, that it is and has been at all material times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that International Molders and Allied Workers Union, Local 158, AFL-CIO (herein called the Union) is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES DECISION A. Background Evidence STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me at Seattle, Washington, on May 5, 1977, pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 19 on April 19, 1977, and which is based on a charge filed by Craig Angus, an individual, on March 15, 1977. The complaint alleges that Western Steel Casting Company (herein called Respondent) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Issues Whether a clause in a collective-bargaining contract providing for the rehire of employees pursuant to job classification seniority justifies an employer's bypassing former strikers, who have not been reinstated to their former jobs because no openings exist in those jobs, in favor of new hires when other jobs, for which the strikers are qualified, become available. If not, whether substantial and legitimate business considerations justifying bypassing those employees in favor of the new hires were present. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of both the General Counsel and Respondent. Upon the entire record of the case,' I make the following: I Respondent's unopposed motion to correct the transcript is hereby granted. Respondent is, and has been for many years, a member of a multiemployer collective-bargaining association known as Washington Metal Trades, Inc., headquartered in Seattle. This association represents Respondent, as well as approximately I I other employers in the same industry in bargaining collectively with the Union. On March 29, 1976,2 to obtain a new contract, the Union commenced an economic strike against Respondent and the other mem- bers of the association. The strike was part of a larger strike in the Pacific Northwest, including employers in northern California and Oregon. The California and Oregon employers are members of two different associations which deal with the Union's sister locals located in those States. The strike, insofar as it related to the State of Washington, lasted almost 2 months, ending on approximately May 26, when an agreement in principle was reached, although not fully reduced to writing until a later date. The duration of the new contract is March 14, 1976, to March 14, 1979. For at least 15 years, and perhaps much longer, the collective-bargaining agreements between the Union and Washington Metal Trades have contained identical clauses providing for job classification seniority insofar as increas- ing or decreasing work forces are concerned. In the current agreement, article XXI, section 2, sets forth this principle as follows: In cases of increasing or decreasing forces, the company will practice and apply the principle of seniority by departments or by classifications of work (as designated by each company and with notice of such designation to the Union) in every reasonable way 2 Hereinafter all dates are in 1976 unless otherwise noted. 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with due regard to each employee's ability to do the work and his performance. As can be seen, the language gives the employer the option of choosing either departmental or job classification seniority. The parties stipulated that Respondent chose job classification seniority. Although the date of the exercise of that option is not shown in the record, I presume that it occurred many years ago, for there appears to be no dispute about its historical application to Respondent's plant. B. The Recall of Employees After the Strike Ended Prior to the beginning of the strike Respondent had two shifts, a day and a night shift. At that time employees Edward Collins and Craig Angus worked on the night shift. Collins was classified as a "chipper" and Angus was classified as a "foundry burner." Both employees had worked for Respondent for several years, starting at the bottom and working up. Each had worked for a period as a "helper" and the parties stipulated that both men are qualified to perform the work of "helper." When the strike ended, due to production needs, Respondent decided to operate with only one shift.3 Accordingly, when it called back its employees, using job classification seniority, employees with lesser seniority, no matter which shift they had been on previously, were not recalled if Respondent had no need of them. As Collins and Angus had lesser seniority in their job classifications than other employees, they were not recalled to their old jobs. When the strike ended, they, together with other employees, learned of their situation by going to the plant and speaking with their immediate superior, Cleaning Room Supervisor Alec Kritsonis. When they entered the plant on May 29, they noticed a sign on the door saying, in effect, that employees would be recalled when production warranted. Both spoke to Kritsonis, asking if there was work for them. Kritsonis replied that Respondent had no work for them, and suggested they apply for unemploy- ment compensation insurance. Both Collins and Angus, though not together, then went to Respondent's office where they spoke to Norman Jones, the office clerical and bookkeeper. Each made certain that Jones had his correct mailing address and telephone number. Collins testified that Jones told him to check in at least once a month.4 Collins testified that he and Angus went to Respondent's plant approximately three times per month after that, each time speaking to Kritsonis and/or Jones, asking if work was available. 5 Collins, Angus, and Kritsonis all agree that at no time did either Collins or Angus limit their inquiries to specific jobs or to specific shifts. In each case they asked if Respondent had "any work" for them. Kritsonis responded each time that no work was yet available. Robert Alexander, Respondent's vice president and manager, made all the decisions relating to the recall of strikers. It was Alexander who decided to recall strikers 3 Respondent had hired no replacements during the strike. 4 Jones' advice was no doubt based on art. XXI. sec. 3(a), of the contract requiring laid-off employees to check in every 30 days or forfeit their seniority. according to job classification seniority, and it was he who directed Kritsonis to contact each striker regarding his recall. Although no separate recall agreement had been reached with, or even suggested by, the Union, it is clear that both Respondent and the Union regarded the job classification seniority clause as describing the proper manner in which strikers should be recalled. As a result of conversations with Kritsonis, Alexander was aware that Collins and Angus were seeking work. On October 18 and November 3 Respondent hired Petros Fintrilakas and Hershel Russell, respectively, as "helpers." Neither had been employed by Respondent prior to the strike. Alexander testified he did not call either Collins or Angus for these jobs because "it never occurred to me to do so." He explained that "he didn't have to" under the seniority clause of the contract. In addition, he said, it would have been "a demotion" and he could not demote employees under the contract except for "just cause." In support of this position he cited his belief that Respondent would have been required to give Collins and Angus their old seniority and he was afraid they would insist on their former rates of pay, which would create wage inequities with the other helpers. However, the last reason can only be characterized as speculation on Alexander's part as he never spoke with Collins or Angus to find out what they wanted. Assuming the truthfulness of Alexander's assertion that offering the helper jobs to Collins and Angus "never occurred to [him]," because the absence of contract terms requiring him to do so, his testimony regarding the contract as a justification for ignoring Collins and Angus is, nonetheless, curious, as exemplified by the following exchange: Q. (By JUDGE KENNEDY): Well, it seems to me - and I'm not the employer - but it seems to me that you had Mr. Angus and I think Mr. Collins as well, both working as helpers in the past. They were experienced and knew the job even though they had demonstrated higher expertise and had gone on to bigger and better things; but, why would it be a demotion for you to go to somebody like that and say, "Will you come back to work as a helper under a helper's classification, and because of the contract we have to pay you helper's wages?" What's the problem with that? A. Well, sir, I can't do that. Q. You can't do that? A. No sir. Washington Metal Trades has my bargaining rights with regard to - Q. Yeah, but we're just talking about going to a former employee or an employee who has been on strike and hasn't been called back. Can't you say to him when you know he's asking for work - he'd been talking to Mr. Kritsonis, or they both had. They're both looking for work. What's wrong with saying, "Well, the only thing we have is a helper's job. Are you interested in that?" Would that be a demotion? 5 Kritsonis testified that Angus came to the shop "a number" of times, but doubted if he had had three conversations with him. Kritsonis was not asked about Collins. 872 WESTERN STEEL CASTING COMPANY A. Well, the issue of pay for that job would immediately arise. Q. Well, I suppose so, but I don't suppose you'd pay a person for doing helper's work anything but helper's pay, would you? A. But, I can't do that under the contract, sir. I can't make that contractual relationship with the men. Q. I'm not sure I follow you. You're saying to me that if a guy goes out on strike in one classification, you can't bring him back because you have no opening in his old classification; but, if you have an opening in some other classification, you can't bring him back or ask him if he'll work in another classification? A. Sir, if he went to the Union, and the Union then came to me with him and said, "This individual would like to secure employment at this lower rate, and we would approve of it, we the Union would approve of his doing this," and then there would be a possibility of discussion of that particular facet I think. It should further be noted that the job of helper is the least desirable and lowest paying of any of the production classifications. It is hot, being in the foundry, requires a great deal of heavy manual labor, and also requires that individual to work closely with the journeymen, molders and coremakers, from whom the helper takes a certain amount of direction. Alexander described it as a "fetch- and-carry" job and Collins conceded that it was a "slave boy" classification. Furthermore, the jobs which Angus and Collins had previously held were in the cleaning room department, while the helper's job is in the foundry department. IV. ANALYSIS AND CONCLUSIONS At the outset it should be noted, in general, credibility is not an issue in this case. However, I confess that I have some difficulties with Manager Robert Alexander's expla- nation for his failure to consider Collins and Angus for the helper openings. Alexander testified that he did not consider them "because it never occurred to [him ]." That, without more, is understandable as a simple oversight. But he went on to explain that the reason it didn't occur to him was because of the recall system in the contract. He said, in effect, the job classification seniority system prohibited him from offering the helper jobs to Collins and Angus, even though they were qualified, having satisfacto- rily held those jobs in the past. According to Alexander, offering them the helper jobs would have been contrary to the job classification seniority system as well as being a "demotion." Respondent cites no authority or contract language in support of those conclusions. Indeed, although 6 N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 381 (1967), and concurring opinion of Justice Harlan at 381-382 (1967); The Laidlaw. Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 7 Cf. Best Industrial Uniform Supply Company, Inc. and Leonard Franklin, Individually, 210 NLRB 300 (1974). In that case the Board, in the absence of exceptions, adopted pro forma an Administrative Law Judge's finding that an employer violated Sec. 8(aX5) when it ignored the union's demand for information regarding the reinstatement of stnkers and dealt directly with the strikers. In making this finding the Administrative Law Judge cited no cases in support of his conclusion. Assuming that his conclusion is correct. I article II of the contract prohibits demotions except for "just cause" the concept of a demotion assumes that the demotee was actually employed. Here, of course, neither Angus nor Collins held any job, though they did retain employee status as unrecalled economic strikers. 6 Thus, rather than being faced with a decision to demote, Respondent was faced with the decision of whether or not it should "hire off the street" or first offer the job to qualified, unrecalled strikers. As I see it, Alexander's understanding of the contract in this regard is confused at best. Moreover, he testified that if he offered the helper jobs to Collins and Angus, he believed he would somehow be bypassing their bargaining representative, would have to give them their old seniority, and would have to pay them their old rate. With regard to Alexander's claim that making such an offer directly to the strikers would somehow constitute a bypass of their bargaining representative, such a conten- tion appears unfounded. At the end of strikes it is common for employers to deal directly with employees regarding their recall - indeed, Respondent, through Kritsonis, did so here with others. To be sure, those communications were consistent with the job classification seniority clause in the contract and entailed no risk of Union opposition. But, as noted, offering strikers other job openings when their former job is nondiscriminatorily filled is not inconsistent with the contract. Moreover, Respondent cites no case, and I have found none, holding that such a communication is violative of the Act.7 As with the demotion issue I find nothing in the contract which would require Respondent to give them their old seniority or pay them their old rate. Respondent, under article XXI, section 2, had opted for job classification seniority. Had it chosen to offer the unreplaced strikers jobs other than the ones they had previously held, solely because openings were only available in the lower paying classifications and not in their former classifications, job classification seniority and pay scales would apply. Such individuals would acquire new seniority in their new job and would be entitled only to the pay scale applicable to that job. Nothing in the contract suggests otherwise. As the reasons advanced by Alexander simply have no reasonable basis, I conclude they are after-the-fact justifi- cations engendered by the instant litigation and entitled to no consideration. It therefore appears to me that Alexander simply never thought about asking unreplaced strikers if they would be willing to take some other job. As I said before, an oversight of this nature is under- standable. The jobs which were open were the least desirable and lowest paying in the plant. Collins and Angus had long ago risen above those jobs. Perhaps Alexander regard the case as distinguishable on its facts. In that case, unlike the instant case, there was no accepted system covering the recall of strikers generally. Second, the union there did not know what factors the employer was relying on to recall strikers and accordingly made a demand for information which the employer ignored. Here both parties were in agreement regarding the manner in which strikers were to be recalled, and Respondent followed the prescribed manner. The problem now under scrutiny occurred because the system did not fully cover the situation as it arose. I would find nothing improper had Respondent, in an attempt to meet its reinstatement obligation, directly dealt with those strikers who were not covered by the general recall system. 873 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subconsciously thought those two would somehow be insulted if he offered them such a job. However, he knew they had not found permanent employment elsewhere and were periodically asking Kritsonis for work.8 However, without regard to whether Alexander's reasons for not offering the helpers jobs to Collins and Angus were credible, there remain two questions which must be resolved. First, may the job classification seniority clause be construed as a strike settlement agreement in which the Union somehow waived the right of strikers to reinstate- ment to jobs other than the ones they had held at the time of the strike? Second, if not, were there "legitimate and substantial business justifications" present privileging Respondent to offer the jobs to new employees? Both questions, in my opinion, must be answered negatively. With regard to the first, it is clear that although both the Union and Respondent intended the clause to govern the recall of strikers, it simply was not a strike settlement agreement. It was, and is, far broader than that, encompassing any kind of increase or decrease in the employee complement. That it was applied to the recall of strikers is not surprising, but Respondent's contention that the clause may constitute a waiver of any right to any other jobs for which strikers are qualified is startling. It is true that a union may waive certain statutory rights, including the right to be recalled to particular jobs. See United Aircraft Corporation, (Pratt & Whitney Division) 192 NLRB 382, 388 (1971), remanded 525 F.2d 237 (C.A. 2, 1975). But such an agreement is the product of give and take at the bargaining table. Nothing of the sort occurred here. The parties simply retained the seniority clause which had been in effect for at least 15 years. I cannot ascribe to the Union any intent to waive reinstatement rights under that circumstance. In any event a waiver of such rights would have to be made intelligently and be in clear and unmistakable terms. The language here does not rise to that level. Accordingly, I reject any contention that the job classification seniority clause is a waiver of any reinstate- ment rights held by the strikers. The reinstatement rights themselves are set forth in the Supreme Court's decision in Fleetwood Trailers, supra, and the Board's extension of Fleetwood in Laidlaw, supra. In Fleetwood the Court, saying that unrecalled strikers have a "basic right to jobs" with their employer, are entitled to an offer of reinstatement "If and when a job for which the striker is qualified becomes available." 389 U.S. 375, 381.9 In Laidlaw that policy was extended to cover strikers who had been permanently replaced, but whose jobs became vacant upon the departure of the strikers' replacements. The sum of these two cases is a well-grounded policy requiring employers to favor returning strikers over new employees when openings arise for which both are qualified. This policy is so strong, of course, that the employer's motive in failing to favor the striker over the new hire "constitutes an unfair labor practice without reference to intent." 10 Fleetwood, supra at 380. s Even if they had asked only once they were, absent "legitimate and substantial business justifications," entitled to some sort of consideration. See N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375, 380-381. where the Court said: "II It was clearly error to hold that the right of the strikers to reinstatement expired on August 20, when they first applied. This basic right The policy was reemphasized in Fire Alert Company, 207 NLRB 885, 886 (1973), where the Board said: In Brooks Research & Manufacturing, Inc., 202 NLRB 634, the Board noted that the Supreme Court in Fleetwood Trailer, 389 U.S. 375 at 381 (1967), had held: . . . The status of the striker as an employee continues until he has obtained "other regular and substantially equivalent employment".... If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the Employer can show "legitimate and substan- tial business justifications." N.LR.B. v. Great Dane Trailers, 388 U.S. 26. The Board continued in Brooks, supra, stating from its decision in The Laidlaw Corporation, 171 NLRB 1366, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970), that: . . . economic strikers who unconditionally apply for reinstatement when their positions are filled by permanent replacements are entitled to full reinstatement upon departure of replace- ments or when jobs for which they are qualified become available, unless they have in the mean- time acquired regular and substantially equiva- lent employment or the employer can sustain its burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. [Emphasis supplied.] Thus, it is obvious that the Respondent's reinstate- ment obligation here is not limited to the strikers' old positions, but rather includes reinstatement to substan- tially equivalent positions which the strikers are qualified to fill. Under this policy, the only insulation available to such an employer is the showing of a substantial and legitimate business justification privileging his choice of a new hire over a qualified striker. The only factors offered by Respondent to show the existence of a "legitimate and substantial business justifica- tion" for failing to offer Collins and Angus the helper jobs are: the helper jobs (1) are undesirable, involving low pay and arduous work under hot conditions; (2) would require Collins and Angus to work as subordinates for employees with whom they had previously been near peers; (3) are under different supervisory lines of authority than their previous jobs because those were in the cleaning room department under Kritsonis while the helper jobs are in the foundry department under the foundry supervisor. I am not persuaded that these reasons constitute "legitimate and substantial business justifications" privileg- ing Respondent to fail to offer its statutory employees to jobs cannot depend on availability as of the moment when the applications are filed." 9 Relying on Sec. 2(3) of the Act. lo Thus, even "oversight" such as Alexander's is no defense to a failure to recall strikers to jobs for which they are qualified. 874 WESTERN STEEL CASTING COMPANY openings for which they are qualified. First, an undesirable job may reasonably be expected to be more desirable than no job at all. Second, there is no evidence that any disruption of work would occur if Collins and Angus were assigned to work with the journeymen. When they worked in the cleaning room they were subordinate to the journeymen, at least in terms of pay rates. Yet they were satisfactory there and had satisfactorily worked as helpers in the past. Respondent is engaging in sheer speculation when it raises the question of whether or not Collins and Angus could be expected to subordinate themselves to the journeymen. Third, the fact that the helper jobs are under a different supervisor appears to me to be of little moment. Finally, Respondent asserts that a striker is entitled to be reinstated only to his prestrike job or to a job substantially equivalent to his prestrike job, if he is qualified for that job, but that he has no right to be reinstated to a job which is not substantially equivalent." It is true that each of the cases cited by Respondent contains a phrase to the effect that an employer is obligated to reinstate strikers to their former or "substantially equivalent" jobs. Certainly the Supreme Court's decision in Fleetwood Trailers, supra, contains no such limitation. The Court said merely: "if and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstate- ment." 389 U.S. 375, 381. Nowhere in the decision did the Court use the phrase "substantially equivalent" in describ- ing the employer's obligation to reinstate economic strikers. None of the cases cited by Respondent contains any analysis of the phrase vis-a-vis the obligation. The phrase merely stands alone, and one case, New Fairview Hall Convalescent Home, merely cites Fleetwoo,4 Laidlaw, and N.LR.B. v. Great Dane Trailers, Inc., 366 U.S. 26 (1967) (the decision upon which Fleetwood is based), without further explication. As I read those cases the phrase "substantially equivalent job" is not intended as a limit on the obligation beyond which an employer need not go but is rather a means to test the adequacy of the offer after it has been made. Thus, I regard the law as requiring an employer to offer economic strikers reinstatement to either their old job; or, if that is not available, to a substantially equivalent job for which they are qualified; 12 or, if neither of those options is available, any other job for which the striker is qualified.13 It is clear to me, under any of the above circumstances, that Respondent has not met its obligation here. First, all parties agree that Collins and Angus were qualified for the helpers jobs which became available. Second, I believe the helpers jobs were in fact "substantially equivalent" as that term is generally used. See Northwest Oyster Farms, Inc., 173 NLRB 872, 876 (1968) (Clark); cf. New Era Electric Cooperative, Inc., supra (striker not qualified for construc- tion job having held only maintenance jobs in the past). Thus, Respondent did have an obligation to offer the helpers jobs to the strikers so long as they had not obtained II In support of these propositions Respondent cites Crystal Princeton Refining Company, 222 NLRB 1068 (1976); New Era Electric Cooperative, Inc., 217 NLRB 477 (1975); Elsing Manufacturing Co.. 209 NLRB 1089 (1974); New Fairview Hall Convalescent Home, 206 NLRB 688 (1973); and N.L.R.B. v. Johnson Sheet Metal. Inc. 442 F.2d 1056 (C.A. 10, 1971). t2 Fire Alert Companv, supra. 13 Fleetwood. supra. any other regular and substantially equivalent employment elsewhere. As Respondent has been unable to justify its failure to offer the unrecalled strikers openings for which they were qualified, I find it has violated Section 8(aX3) and (1). Fleetwood Trailers and Fire Alert Company, both supra. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) by failing to offer the helpers jobs which became available on October 18 and November 3 to Collins and Angus,14 I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall, therefore, recommend that Respondent immediately offer Collins and Angus the jobs of helper, displacing, if necessary, any replacements, and make them whole for any loss of pay suffered by reason of the discrimination against them. However, if since the dates they should have been given the helpers jobs, higher paying jobs have become available which Collins and Angus would have successfully bid upon,i5 Respondent shall, instead, offer those jobs to Collins and Angus, displacing, if necessary, any replace- ments, and make Collins and Angus whole for any loss of additional pay so suffered. Backpay shall be computed in accordance with the formula set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950). The General Counsel has attached to his brief a supplement in which he urges the current 6-percent interest rate on backpay (see Isis Plumbing & Heating Co., 138 NLRB 716 (1962)) be increased to 9 percent. While there appears to be merit in the General Counsel's request, I believe such a request is more appropriately directed to the Board, as it has recently rejected numerous attempts to increase the interest rate.'1 Accordingly, I recommend only that Respondent be required to pay 6 percent interest in accordance with Isis, supra. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Western Steel Casting Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Molders and Allied Workers Union, Local 158, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing on October 18, 1976, and November 3, 1976, to offer Edward Collins and Craig Angus the jobs of helper, Respondent violated Section 8(aX3) and (1) of the Act. [Recommended Order Omitted from publication.] 14 1 shall leave to the compliance stage resolution of the question of which discrminatee should have been offered the first opening. I5 See sec. XXV of the new contract. s1 See Hyster Company, 220 NLRB 1230 (1975); Mercy Peninsula Ambulance Service, Inc., 217 NLRB 829 (1975); and the other cases cited in fn. 4 of the supplement. 875