Duncan Foundry and Machine Works, Inc.

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duncan Foundry and Machine Works, Inc. and Unit- ed Steelworkers of America, AFL-CIO. Case 14-CA-4608 February 6, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 13, 1974, and- September 18, 1975, re- spectively, Administrative Law Judge Max Rosen- berg issued the attached Supplemental Decision and Second Supplemental Decision in this proceeding. Thereafter, Respondent filed limited exceptions and a supporting brief, and Counsel for the Acting Gen- eral Counsel, hereafter called General Counsel, filed exceptions and a supporting brief. 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 Second Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommendations as modified herein. 1. The Administrative Law Judge concluded, and we agree, that the record supports a finding that claimant Al D. Bond was a striking employee of Re- spondent on September 13, 1967, the critical date for establishing vacation pay eligibility, and hence is en- titled to vacation pay in accordance with the back- pay specification. However, because Bond failed to respond to the General Counsel's subpena and be- cause more than a year had elapsed since the is- suance of the Administrative Law Judge's first Supplemental Decision in this matter,' the Administrative Law Judge directed that Re- spondent's obligation to pay vacation pay to Bond be discharged should the Regional Director be un- able to summon Bond within 2 weeks of the date of the Second Supplemental Decision. We find no compelling reason under the circum- stances of this case to adopt the 2-week limitation recommended by the Administrative Law Judge. Ac- cordingly, we shall follow our usual practice 2 and ' By our order (May 13, 1974; unpublished) remanding this matter to the Administrative Law Judge we directed, inter alia, that he determine the employee status and eligibility of Bond and other nonvoting claimants with reference to their status as employees of Respondent on September 13, 1967 2 Brown and Root, Inc., et al., 132 NLRB 486 (1961), affd 311 F.2d 447 (C.A. 8, 1963). order that the sum of vacation pay due Al D.-Bond be paid to the Regional-Director for Region 14 to be held in escrow for a period not to exceed 1 year from the date of this Supplemental Decision and Order. 2. Contrary to the Administrative Law-Judge, we conclude that claimant Carl Patton is entitled to va- cation pay in accordance with the backpay specifica- tion. Patton, who picketed for 6 months after the strike began in January 1967, testified that he learned through the union hiring hall that the Illinois Termi- nal Railroad was hiring for the summer. Thereafter, in March 1967, Patton was interviewed by a railroad personnel officer Who, according to Patton, stated that the railroad job was "temporary" as part of a division gang "to put in railroad ties through the summer ...." Patton further testified that a num- ber of regular full-time railroad employees retired in the fall of 1967 and, consequently, in October 1967, the railroad offered him,, and he accepted, permanent employment. In denying vacation pay to Patton the Administra- tive Law Judge discredited Patton's testimony that at the time he was hired by Illinois Terminal he was told that the job was "temporary" and would last only until the fall. In so discrediting Patton's testimo- ny, however, the Administrative Law Judge relied solely on a stipulation of the parties that Patton was continuously employed by the railroad from March 20, that he completed a 60-day probationary period and received many fringe benefits thereafter, and that the director of labor relations for Illinois Termi- nal would testify, if called, -that it was not the railroad's policy in 1967 to hire full-time temporary help. In our view the stipulation as set forth above is of itself insufficient to warrant discrediting Patton's tes- timony. The critical question is whether, as of Sep- tember 13, 1967, Patton had accepted permanent, substantially equivalent employment. Patton testified that when he was hired by Illinois Terminal he was told that the job was temporary and not until Octo- ber, after a number of regular employees retired, did the railroad offer him permanent employment. In view of the fact that the railroad's director of labor relations and personnel was admittedly not involved in Patton's hire in March 1967, his testimony as to company policy in 1967 cannot, of itself, overcome Patton's direct testimony with respect to what was said to him at the time he was hired. Nor are events subsequent to September 13, 1967, necessarily rele- vant to a determination of Patton's "employee" sta- tus on that date. Thus the fact that Patton retained his employment with the railroad up to the date of the hearing herein, as well as the fact that Patton was awarded fringe benefits and reached an hourly rate 222 NLRB No. 116 DUNCAN FOUNDRY AND MACHINE WORKS of $3.05 by January 1, 1969, are not determinative of his status on September 13, 1967. Indeed, these fac- tors are consistent with Patton's testimony that he was offered and accepted permanent employment in October 1967. Accordingly, based on the record be- fore us, we are not persuaded that Respondent has met its burden of showing that Patton was no longer its "employee" as of September 13, 1967 . We shall, therefore, order payment of vacation pay to Patton in the amount set forth in the backpay specification. 3. We_ are also satisfied that Wilbert F. Schwab, a claimant who voted in the January 1968 election, is entitled to vacation pay for 1967. In concluding otherwise, the Administrative Law Judge noted that Schwab had accepted employment with the Lenhardt Tool and Die Company in February 1967, had re- ceived periodic pay increases from Lenhardt (includ- ing one on September 1, 1967), and had stopped pay- ing others to picket for him in July or August 1967. In particular, the Administrative Law Judge empha- sized Schwab's failure to seek reinstatement after the strike ended in January 1968, and Schwab's explana- tion : "There was more men with seniority than I that had not had a chance to go back and I had employ- ment so I never responded." As we have noted elsewhere , events subsequent to September 13, 1967, are not necessarily determina- tive of a claimant's status on that date ? Schwab testi- fied, without contradiction,- that when he and fellow claimant Adolph Kruse applied for work with Len- hardt , they informed Lenhardt that they Wete on strike and that they sought temporary employment. Indeed, in determining the vacation pay entitled of claimant Kruse, who was deceased at the time of the hearing, the Administrative Law Judge relied on and specifically credited Schwab's testimony that Kruse, a member of the union negotiating team, approached Lenhardt and inquired about the possibility of tem- porary employment on behalf of Respondent's strik- ing employees . The Administrative Law Judge fur- ther credited Schwab's testimony that when he and Kruse were personally hired by Lenhardt's owner, "it was understood 'by and between the parties-that their employment tour would be temporary in nature." In view of this credited ,testimony, and absent any testimony or other evidence that is inconsistent with Schwab's testimony that nothing was said prior to or in September 1967 about converting his temporary employee status with Lenhardt to permanent em- ployee status, we find that as of September 13, 1967, 3 The Administrative Law Judge had little difficulty in finding various other claimants entitled to vacation pay although they had obtained other jobs prior to September 13, had received pay raises and fringe benefits both before and after that date, and had failed to return to Respondent's employ at the end of the strike in January 1968. 769 Schwab had not obtained permanent employment but continued to be an employee of Respondent .4 Accordingly, we find Schwab entitled to vacation pay as set forth in the specification. 4. Finally, we turn to the Administrative Law Judge's conclusion that six claimants-Nathaniel Sheppard, Eddie Simmons; Henry Smith, James Walker, T. Willie Walker, and Burrel Wilkins-are not entitled to vacation pay for 1967 by reason of their employment with Chevrolet Shell Division of General Motors on and before September 13, 1967. In so concluding, the Administrative Law Judge found that the claimants' Chevrolet Shell jobs were regular, permanent, and substantially equivalent to the jobs they previously held with Respondent. We disagree. The record plainly establishes that new hires at Chevrolet Shell were told at the time of their employ- ment interviews with the Company that Chevrolet Shell held a government contract and that work would last only for the duration of the contract. Two of the six claimants who worked at Chevrolet Shell testified that they were specifically told that the then current government contract was due to expire in November 1967. The only other Chevrolet Shell claimant who testified recalled being told that the Company was not sure how long the job would last because of uncertainty about the contract. In concluding that the Chevrolet Shell jobs were "permanent" and thus that the six claimants em- ployed by Chevrolet Shell were not entitled to vaca- tion pay, the Administrative Law Judge relied largely on Chevrolet Shell Supervisor Gleason's testimony that the company considered all applicants to be "permanent" employees. Moreover, the Administra- tive Law Judge characterized Gleason's credited tes- timony as inconsistent with the testimony given by the claimants to the effect that they understood, as a result of information given them at the employment interviews, that the Chevrolet Shell jobs were tempo- rary and might or might not continue after Novem- ber. Contrary to the Administrative Law Judge, the record fails to -show any material conflict between Oleason's testimony and that of the Chevrolet Shell claimants. The issue here is not whether it was Chev- ° The Administrative Law Judge failed to note that Schwab worked the day shift with Respondent but was required to work the night shift with Lenhardt. The Administrative Law Judge also failed to note that although the Union offered to return all strikers to work as of January 31, I968, Respondent did not reinstate any strikers until March or April 1968, at which time, as found by the Board in its original Decision and Order, Re- spondent unlawfully discriminated against former strikers by stripping them of their seniority. In view of this background , claimant Schwab's explana- tion for his failure to apply personally for reinstatement is understandable as reflecting his recognition that Respondent was not willing to reinstate him and that his personal application would be futile 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rolet Shell's formal policy to treat all job applicants in 1967 as applicants for permanent and regular em- ployment. Rather, the issue is whether the claimants had abandoned their interest in employment with Respondent as evidenced by their acceptance of sub- stantially equivalent and permanent employment elsewhere. Given that the claimants were apparently led to understand that the Chevrolet Shell jobs would end in November 1967 unless the government con- tract under which Chevrolet Shell operated was ex- tended, we do not see how Respondent has met its burden of showing that these claimants had accepted permanent employment as of September 13, 1967. Hence we shall order payment of vacation pay to these six claimants .5 Nathaniel Sheppard Eddie Simmons Henry Smith James Walker . T. Willie Walker Burrel Wilkins $432.80 $312.80 $176.40 $162.00 $130.80. $177.60 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts the Administrative Law Judge's recommendations as modified below, and orders that Respondent, Duncan Foundry and Machine Works, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Make whole in the amounts set forth therein, together with interest thereon at the rate of 6 percent per annum calculated in the manner set forth in Lo- cal 138, International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk Contractors' As- sociation Inc.), 151 NLRB 972 (1965), less any lawful- ly required tax withholding, those striker-employees whose entitlement to vacation pay for 1967 was found by the Administrative Law Judge in his Sec- and Supplemental Decision. In said Second Supple- mental Decision the Administrative Law Judge inad- vertently changed the amount due Ray A. Tolbert from $240.80 to $204.80. Respondent shall make whole Ray A. Tolbert in the amount of $240.80 to- gether with interest calculated in the manner set forth above. 2. Make whole in the amounts set forth opposite their names listed below, together with interest there- on at the rate of 6 percent per annum, calculated in the manner set forth in Local 138, International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk Contractors' Association, Inc.), 151 NLRB 972 (1965), less any lawfully required tax withholding, the following striker-employees whose entitlement to vacation pay has been determined herein save that the entire amounts due Al D. Bond, Henry Smith, and James Walker shall be paid to the Regional Di- rector as provided in this Decision: Carl N. Patton $108.40 Wilbert F. Schwab $263.20 5 Although duly subpenaed, claimants Smith and James Walker failed to testify. We shall, therefore, direct that the amount of vacation pay due Smith and Walker be paid to the Regional Director for Region 14 to be held in escrow for a period not to exceed I year. The Regional Director is in- structed to make suitable arrangements to afford the Respondent , together with the General Counsel's representative , an opportunity to examine Bond, Smith, and Walker. The Regional Director shall make a final determination whether any vacation pay is due them. In the event the Regional Director determines that one or more of them is not entitled to vacation pay, the amount held in escrow in his name shall be returned to the Respondent. If it is determined that vacation pay is due Bond, Smith, or Walker, the amount required to be withheld for income tax purposes by Federal or state law shall be refunded to the Respondent at that time If any of the above- named individuals are not located within the period specified, then the es- crow account or accounts shall be refunded to the Respondent, but the refund will not operate to extinguish the Respondent's liability. SUPPLEMENTAL DECISION MAX ROSENBERG, Administrative Law Judge: This is a backpay proceeding which came on to be heard before me in St. Louis, Missouri, between September 10 and 13, 1973, pursuant to a backpay specification filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Duncan Foundry and Machine Works, Inc., herein called the Respondent. This instant liti- gation finds its origin in a Board Decision and Order_ren-, dered on May 29, 1969,' another handed down on August 20, 1970,2 and subsequent enforcing opinions of the United States Court of Appeals for the Seventh Circuit.' Following issuance of the Board's decisions and- the court's decrees, a controversy arose over the amount, if any,- of accrued vacation pay owed to 29 alleged discrimi- natees. In consequence of the dispute, the Regional Direc- tor for Region 14 issued a backpay specification and notice of hearing on June 13, 1973. On June 29, 1973, Respondent interposed its, answer to the foregoing affirmative plead- ings. At the hearing, all parties were afforded full opportu- nity to present evidence and to examine and cross-examine witnesses. Briefs have been received from the General Counsel and the Respondent which have been duly consid- ered. Upon the basis of the entire record made in these pro- ceedings, including my observation of the demeanor of the witnesses who testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS Without reciting the prior factual findings of the Board i 176 NLRB 263. 2 185 NLRB 16 3 The first decision of the court issued on December 1, 1970, relating to 176 NLRB 263, and the second was filed on April 6, 1972, regarding 185 NLRB 16 Neither is officially reported. DUNCAN, FOUNDRY AND MACHINE WORKS and the court in detail, it is sufficient to note and I find that, from 1942 until 1966, Respondent recognized and ex- ecuted successive collective-bargaining contracts with a la- bor organization entitled the, Employees' Association. These agreements, the latest of which was effective from May 18, 1963, through May 13, 1966, contained, inter alia, a provision for the payment of vacation benefits, based on length of service, to employees who worked continuously during the preceding year, who received earnings in at least 60 percent of the pay periods preceding May 1 of the year of payment, and who were employees on May 1, of the payment year. On February 21, 1966, United Steelworkers of America, AFL-CIO, filed a representation petition with the Board seeking an -election among Respondent's em- ployees. In the ensuing ballotmg held on July 19, 1966, the Steelworkers received a certification as the exclusive repre- sentative of the employees involved. Commencmg on October 4, 1966, Respondent and the new incumbent union engaged in numerous bargaining sessions. However, an impasse in negotiations was reached and, on January 29, 1967, the Steelworkers embarked upon an economic strike. Despite the work stoppage, collective bargaining continued until September 13, 1967, when the Employees' Association filed a petition with the Board questioning the Steelworkers representative status .4 On the following day, Respondent filed a petition of similar pur- port.' Between January 26 and 28, 1968, another election was conducted, and the Steelworkers' strike terminated on January 31, 1968. During the aforementioned election, Respondent chal- lenged the ballots of 178 employees, including 22 of the 29 individuals whose names are enumerated as vacation pay claimants in the backpay specification .6 On February 16, 1968, the Regional Director for Region 14 wrote to Re- spondent inviting it to submit a statement of its position as to the ineligibility of the challenged employees to vote in the election, together with any evidence it wished to proffer in support 'thereof. On April 6, 1968, Respondent re- sponded to the Regional Director's invitation. After a com- prehensive investigation of each of Respondent's chal- lenges, and a careful evaluation of the evidence which Respondent had provided, the Regional Director issued his Supplemental Decision on June 5, 1968, in which he la- bored at length to set forth the evidence as to each of the challenged voters which had come to his attention. In that Decision, he found as a fact that 172 of the challenged voters, including the 22 voting backpay claimants whose names are listed in the margin, were "employees" who were entitled to and did cast valid votes in the election conducted between January 26 and 28, 1968. Following an ° Case 14-RC-5787. 5 Case 14-RM-327. 6 The 22 challenged claimants are Eddie W. Arnold, Ulysses S. Bowie, Donald E. Bryant; Paul E. Cappel, Ollie Covington, Louis E. Dodge, Rich- ard G. Dunham, Berme M. Gonzales, Charles F. Henson, Leon Hicks, Adolph Kruse, Carl N. Patton, Robert C. Ragan, Jr, Donald Reynolds, Wilbert F. Schwab, Nathaniel Sheppard, Edd Simmons, Henry Smith, Ray A. Tolbert, James E. Walker, T. Willie Walker, and Burrel Wilkins The remaining seven claimants , who did not vote in the election and were there- fore not challenged, are: Walter L. Alexander, Al D. Bond, Richard D. Brown, Carl R Dunham, Stanley Morgan, Conway B Scott, and Larnell Tharpe. 771 unsuccessful appeal by Respondent to the Board alleging that it was entitled to, but was denied, an adversary hear- ing on its challenges by the Regional Director, and after the Steelworkers certification as the majority representative of the employees had issued, Respondent refused to bar- gain with that union, an act which the Board found viola- tive of Section 8(a)(5) of the statute in Case 14-CA-5216 (reported in 185 NLRB 16). Thereafter, Respondent sought review of the Board's adverse decision by the United States Court of Appeals for the Seventh Circuit. In a slip opinion rendered on April 6, -1972, that tribunal rejected Respondent's petition for review, stating: the Regional Director made a comprehensive investi- gation of each of the challenges made by the parties and set forth, in writing, his findings as to each. He sustained six of the Company's challenges and over- ruled the remainder. It would unduly prolong this opinion to discuss each challenge, or each category of challenges. We have studied the Company's entire submission, as well as the full report of the Director, and are satisfied that the judgments which he made were well within the area of his discretion, and that his investigation did not reveal the need for an adversary hearing. In sum, the court adopted the Board's view that the 22 challenged vacation pay claimants retained their status as "employees" of Respondent during their engagement in the economic strike which extended from January 29, 1967, to January 31, 1968. While the foregoing proceedings respecting the Respondent's challenges and its refusal to bargain were running their course, the Steelworkers filed charges with the Board on March 20, 1968, alleging that Respondent had unlawfully refused to award accrued vacation-pay for 1967 to certain employees who had participated in the strike during its entirety and/or who failed to return to work after September 13, 1967, the date on which the Em- ployees' Association petition for an election was filed. In its Decision and Order of May 29, 1969 (reported in 176 NLRB 263), the Board found that, although the 1963-66 contract between Respondent and the Employees' Associa- tion had expired when the strike began, Respondent never- theless continued to apply the vacation pay provision con- tained therein. Specifically, the Board found that, by affording vacation pay to employees who remained at work and strikers who returned,to their duties poor to Sep- tember 13, 1967, while withholding these benefits from strikers who remained on strike throughout its term or who returned to work after September 13, 1967, Respondent offended the provisions of Section 8(a)(3) of the Act as to the individuals who comprised the latter class. In reaching this conclusion, the Board stated that: We find that on May 1, 1967, the qualifying date on which benefits were computed, the strikers [those in the class who did not resume their duties with Respon- dent during the periods in question] maintained their employee status. The Board and the Courts have held 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an economic striker who has not been replaced not only remains an employee under Section 2(3) of the Act, but in regard to accrued vacation benefits must be treated in the same fashion as other employees.? During enforcement proceedings before the United States Court of Appeals for the Seventh Circuit, Respon- dent complained that the General Counsel failed in his complaint to plead and delineate adequately, and the Board in its decision failed to spell out, the class of em- ployees who had unlawfully been deprived of the vacation benefits. In its opinion filed on December 1, 1970, well over a year before the court adopted the Board's findings in the voter challenge refusal-to-bargain proceeding that the 22 challenged claimants were "employees" of the Respon- dent, the Court observed: The question of class composition posed by respon- dent would require the determination of each striking employee's status within the class prior to a finding of discrimination. For convenience, such matters are properly considered in the compliance stage of the case, after the question of discrimination has been def- initely settled. . . . the Company will have an ade- quate opportunity to object to the inclusion of individ- ual members of the class at that time.8 In light of the court's findings that the 22 challenged claimants continued to occupy the status of "employees" throughout the work stoppage, despite Respondent's con- tention that they had either quit their jobs with Respon- dent before May 1, 1967, or during the strike, or had found other regular and substantially equivalent employment in those periods, and the Board's pronouncement that "on May 1, 1967, the qualifying date on which benefits were computed, the strikers maintained their employee status," it seems clear to me that both the Board and the Court have already adjudicated the entitlement of these 22 indi- viduals to vacation pay for 1967. As the Respondent has not challenged the propriety or accuracy of the mathemati- cal computations regarding the amounts of vacation pay due to each of said discriminatees, I find and conclude that the 22 challenged voter claimants are entitled to the sums which appear opposite their respective names listed below, plus accrued interest, less any lawfully required tax with- holding .9 There remains for consideration the entitlement of the seven nonvoting claimants to vacation pay. ment and was paid $2.64 per hour. Alexander joined the strike at its inception and continued to picket until July 1967. In March 1967, Alexander obtained a job as a chip puller with the Schwinn Bicycle Company in Chicago and was paid at the rate of $2.12 per hour, a cutback of more than $.50. In October 1967, Alexander procured another position with Ingersoll Products where he received an hourly rate of $2.98. When Alexander applied for employ- ment at both Schwinn and Ingersoll, he informed those employers that he was an employee of Respondent who was engaged in the economic strike, and that he merely sought temporary work at their plants. Based on the fore- going uncontroverted testimony submitted by Alexander in this proceeding, I find and conclude that he was an em- ployee of Respondent on May 1, 1967, and, as such, is entitled to vacation pay in the amount set forth next to his name as indicated below. 2. Al D. Bond Although duly subpenaed by the General Counsel, Bond failed to appear at the hearing. The Backpay Specification alleges that Bond was an economic striker on May 1, 1967, the salient date. Respondent has moved for dismissal of the case as to Bond on the ground that the General Counsel has failed to sustain the burden of proof that Bond was a striking employee on that date. I find no merit in Respondent's contention. Ephrim J. Green, Respondent's personnel manager, testified that Bond actively worked at the plant until the strike commenced. Green stated that Bond never submitted a "quit slip" to his office and com- mented that Bond "must have" joined the strike because he "didn't work after the strike started." Moreover, Respon- dent offered no objective evidence to support its assertion that Bond never became a striker. Accordingly, I find and conclude that Bond is entitled to the amount of vacation pay set forth opposite his name below. However, inasmuch as Bond failed to present himself at the hearing and be subjected to examination by Respondent's counsel, I shall order that Respondent pay to the Regional Director for Region 14 the calculated sum of vacation pay to be held in escrow by him for a period not to exceed 1 year in order to afford a reasonable opportunity for Bond to come forward and be examined.10 In the event that Bond fails to do so within the prescribed period of time, the sum transmitted to the Director shall be returned to Respondent." 1. Walter L. Alexander Alexander's testimony is undisputed and I find that he began to work for Respondent on October 9, 1963, and hence had more than 3 years of seniority with the Compa- ny when the economic strike commenced on January 29, 1967. He worked as molder during his tenure of employ- 7 176 NLRB 263, 264. 'Shp opinion of December 1, 1970. 9 I am fortified in this conclusion by an appraisal of the evidence which Respondent adduced in this proceeding, which is not at substantial variance with the evidence which the Regional Director, the Board, and the court considered when they made the determination that the 22 challenged voters were "employees" of Respondent during the economic strike 3. Richard D. Brown Brown was employed by Respondent on March 12, 1965, and performed the duties of a crane operator receiv- ing a wage of $2.89 per hour. To accommodate his atten- dance at college, he worked straight afternoons. At the commencement of the strike, Brown picketed for a few 10 See Steve Alot Ford, Inc., 190 NLRB 661, 662 (1971) ii James E Walker and Henry Smith , two of the challenged voters whom I have heretofore found to be entitled to vacation pay, also failed to appear at the hearing although subpenaed by the General Counsel . I shall therefore recommend that the amounts of their vacation pay be also held in escrow by the Regional Director and be returned to Respondent after a year should these two individuals decline to come forward and submit to examination DUNCAN FOUNDRY AND MACHINE WORKS 773 weeks and thereafter occasionally visited the picket line. In February 1967 Brown searched for other work. In early February, he was interviewed for job placement by Office Manager Hutchinson of Crown Finance Company in Al- ton, Illinois. It is uncontroverted and I find that, during the interview, Brown notified Hutchinson that the former was an employee of Respondent who was on strike. Hutchin- son replied that he was looking for a full-time employee and advised Brown that he would have to sever his employ- ee-relationship with Respondent as a condition to employ- ment with Crown Finance Company. Brown followed this advice and, on February 10, 1967, dispatched a letter to Respondent which recited that he had voluntarily quit his job with the Company in order to take another position. Brown began his employment with Crown Finance Company on February 13, 1967, and worked on a full-time basis until September 1967, receiving an hourly wage of $2.30, some $0.59 less than he earned with Respondent. Moreover, Brown's new employment necessitated chang- ing his college schedule from attendance during the day to attendance in the evening. Respondent asserts that Brown, by voluntarily executing a "quit slip" on February 10, 1967, thereby forfeited his status"as an "employee" as of May 1, 1967, and therefore does not qualify for vacation pay under the contractual provision. I am not convinced that the execution of the document in question constituted a permanent resignation from Respondent's work force. The record shows that Brown was in need of gainful employment during the strike and sought a job with Crown Finance Company, even at a substantial sacrifice to income, to satisfy that need. More- over, it is uncontroverted that Brown would not have been employed by the enterprise unless he produced evidence that he had severed his ties with Respondent. As the court of appeals noted in its slip opinion of April 6, 1972, in considering the eligibility of Eddie Arnold, "the quit slips executed by Arnold and the others were consistent with a need to establish eligibility for interim employment else- where and did not necessarily demonstrate a permanent resignation." Accordingly, I find and conclude that-Brown remained an "employee" of Respondent on May 1, 1967, and that he is entitled to the sum of vacation pay listed opposite his name below. underwent a 45-day probationary period, and has toiled for the supermarket ever since. Respondent contends that Dunham had acquired regu- lar, permanent, and substantially equivalent employment with National Super Markets, Inc., on March 13, 1967, had therefore permanently abandoned his position with Re- spondent prior to the qualifying date of May-1, 1967, and consequently was disentitled to vacation pay for 1967. I do not agree. Despite his employment with the grocery chain-, Dunham continued to picket in support of the strike until as late as May or June 1967, thus evincing a persisting desire to support the economic strike in which he was in- volved. Furthermore, Dunham did not apprise his new em- ployer that he had relinquished any desire to return to work for Respondent. In short, I find and conclude that Dunham remained an "employee" of Respondent on the critical date of May 1, 1967, and should be awarded the sum of vacation pay listed next to his name below. 5. Stanley Morgan Morgan was employed by Respondent on August 22, 1965, as a hand grinder on the evening shift and his hourly rate of pay was $2.30. He testified without contradiction and I find that he joined the strike on January 29, 1967, and continued to picket until June 1967. During that peri- od, he searched for employment but was unsuccessful until June 13, 1967, when he was hired by National Marine Ser- vice. It was stipulated and I find that Morgan' s entrance wage was $2.00 per hour which was the contract rate for "temporary, inexperienced helpers," that he worked only 2 days in the first week and was then laid off until July 5, 1967. Upon his recall, he has worked continuously for that entity. Respondent claims that Morgan's employment with Na- tional Marine Service on June 13, 1967, was regular and substantially equivalent, and that he therefore should not be awarded any vacation pay for 1967. However, as chron- icled heretofore,12 the Board has made it abundantly clear the qualifying date on which vacation benefits are to be computed is May 1, 1967. Accordingly, I find and con- clude that, as Morgan maintained his status as an "employ- ee" of Respondent on that date, he is entitled to the amount of vacation pay set forth opposite his name below. 4. Carl R. Dunham Dunham worked for Respondent for approximately 1 year prior to the strike as either a carpenter or swing grind- er, and received the rate of $2.25 an hour. He testified without contradiction and I find that he engaged in picket- ing for 4 or 5 months after the commencement of the work stoppage. On March 13, 1967, he applied for employment at National Super Markets, Inc., in Alton, Illinois, at a starting rate of approximately $2.49 per hour. His employ- ment application reveals that he applied for "Any kind" of work on a "Full time" basis, and that he was a striking employee of Respondent. At the time of his hire, Dunham did not advise National Super Markets, Inc., whether he would return to his job with Respondent or that he had unequivocally abandoned his employment there. Dunham 6. Conway B. Scott Scott was subpenaed by the General Counsel to testify in this proceeding but did not appear. The record evidence relating to Scott, which is undisputed, came from the lips of Respondent's Personnel Manager Ephrim J. Green. Green testified that Scott left work at the inception of the economic strike against Respondent. On April 17, 1967, he visited the personnel office and announced to Green that he had unequivocally decided to quit his employment with the Company. Without objection, Respondent' s counsel submitted into evidence a document dated April 17, 1967, entitled "Service Record of Former Employee." Citing 12 See footnote 6, supra 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott's full name, job title, Social Security Number, and dates of employment, there also appears on the document after the phrase "Reason For Leaving" the comment "Quit voluntarily 4-17-67." There is nothing in the record to in- dicate that Scott executed the "quit slip" in order to qualify for employment at another establishment. At the hearing, the General Counsel candidly conceded that, if Scott had voluntarily quit his job on April 17, 1967, he would have forfeited his entitlement to vacation pay for the year 1967. On the basis of the foregoing testimony and documentary evidence, I find and conclude that Scott was not an "employee" of Respondent on May 1, 1967, and therefore is not entitled to the vacation pay set forth in the Backpay Specification. I shall therefore deny it to him. 7. Larnell Tharpe Tharpe entered Respondent's employment in 1951 and, when he joined the economic strike on January 29, 1967, he received an hourly wage of $2.61. Tharpe, who worked as a molder on a rotating shift, picketed from the inception of the strike until July 1967. It is his undenied testimony and I find that he unsuccessfully sought interim employment during the period from January to July 1967. In July 1967, Tharpe left Alton, Illinois, (his hometown and the site of Respondent's plant) and ventured to Tennessee where he obtained a construction job with a starting hourly rate of $2.24 which was later escalated to $2.45. Tharpe did not inform his new employer that lie was a striker against Re- spondent, nor did he state that he sought permanent em- ployment. In light of the facts that Tharpe was an econom- ic striker on May 1, 1967, who had not previously quit his job with Respondent and who had not obtained regular and substantially equivalent employment elsewhere prior to May 1, 1967, I find and conclude that Tharpe was an "employee" on that critical date who is entitled to the sum of vacation pay listed opposite his name below. Upon the basis of the foregoing findings and conclu- sions, I recommend that Respondent's obligation to make whole striker employees under the terms of the Board's Order as enforced by the court decree will be discharged by payment to the striker employees named below of the amounts set forth opposite their names, together with inter- est thereon at the rate of 6 percent per annum, calculated in the manner set forth in Local 138, International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk Contractors' Association,` Inc., et al.), 151 NLRB 972 (1965), less any lawfully required tax withholding. Walter L. Alexander $195.60 Eddie W. Arnold 327.60 Al D. Bond 110.40 Ulysses S. Bowie - 608.00 Richard D. Brown 115.60 Donald E. Bryant 166.80 Paul E. Cappel 221.60 Ollie Covington 190.20 Louis E. Dodge 534.40 Carl R. Dunham 133.20- Richard G. Dunham 108.80 Bernie M. Gonzales 181.21 Charles F. Henson 116.00 Leon Hicks 114.00 Adolph W. Kruse 553.60 Stanley Morgan 109.20 Carl N. Patton 108.40 Robert C. Ragan, Jr. 240.00 Donald Reynolds 211.20 Wilbert Schwab 263.20 Nathaniel Sheppard 432:80 Edd Simmons 312.80 Henry Smith 176.40 Larnell Tharpe 432.00 Ray A. Tolbert 240.80 James E. Walker 162.00 T. Willie Walker 130.00 Burrel Wilkins 177.60 SECOND SUPPLEMENTAL DECISION On January 18, 1974, I issued a Supplemental Decision in this proceeding in-which I found that 22 discriminatees who cast challenged ballots in an election conducted be- tween January 26 and 28, 1968, during the course of an economic strike against Respondent, were entitled to, vary- ing sums of vacation pay, as set forth in that Decision. I also found that six nonvoting claimants should be compen- sated for vacation pay from May 1, 1967, when their eligi- bility for this award vested.' Thereafter, the Board remand- ed the proceeding, stating: The Board is of the opinion that the critical date for establishing the employee status of the nonvoting claimants and hence their eligibility for vacation pay is September 13, 1967, rather -than the May 1, 1967, date found by the Administrative Law Judge. Accord- ingly, the Administrative Law Judge-is to determine the employee status and eligibility for vacation pay of each of the six nonvoting claimants whom he ,found entitled to payment in accordance with the September 13, 1967, date.2 - In addition, the Board is of the opinion that the Ad- ministrative Law Judge must make specific findings of fact and conclusions of law based thereon as to the entitlement to vacation pay of each of the 22 vacation pay claimants who voted in the January 1968 election. Such findings of fact and conclusions of law are to be made in light of the record developed at the hearing held before the Administrative Law Judge between September 10 and 13, 1973. i An existing collective-bargaining agreement between Respondent and a labor organization entitled the Employees ' Association contained, inter a/a, a provision for the payment of vacation benefits, based on length of service to employees who worked continuously during the preceding year,, who received earnings in at least 60 percent of the pay periods preceding May I of the year of payment, and who were employees on May I of the payment year Respondent does not challenge the propriety or accuracy of the math- ematical computations regarding the amounts of vacation pay due to the claimants herein as they appear in the Backpay Specification. 2 As chronicled in the Supplemental Decision , some of Respondent's em- ployees embarked upon an economic strike on January 29, 1967, which terminated on January 31, 1968. In its original Decision ( 176 NLRB 263), the Board determined that Respondent had discriminated against these strikers by withholding their grant of vacation pay on and after September 13, 1967, while affording this benefit to employees who remained at work or strikers who returned to their duties prior to that date. DUNCAN FOUNDRY AND MACHINE WORKS 775 In conformity with the remand, I hereby make the follow- ing: striking employee on and after September 13, 1967, and is entitled to the amount of vacation pay set forth 'opposite his name below.3 FINDINGS OF FACT AND CONCLUSIONS A. Vacation Pay Entitlement of the Six Nonvoting Claimants 1. Walter L. Alexander Based on the record made herein, I find that Alexander began to work for Respondent on October 9, 1963, and hence had more than 3 years of seniority with the Compa- ny when the economic strike commenced on January 29, 1967. He worked as a molder during his tenure of employ- ment and was paid at the rate of $2.64 per hour. Alexander joined the strike at its inception and continued to picket until July 1967. In March 1967, Alexander obtained a posi- tion as- a chip puller with-the Schwinn Bicycle Company in Chicago, a job which he began in July of that year, and was paid at the rate of $2,12 per hour, a cutback of more than 50 cents. In October 1967, Alexander procured another po- sition with- Ingersoll Products where he received an hourly rate of $2.98. It is undisputed and I find that, when he applied for employment at both Schwinn and Ingersoll, he informed those employers that he was an employee of Re- spondent, that he was engaged in an economic strike, and that he merely sought temporary work at their plants. When the strike terminated, Alexander remained with In- gersoll because he had then acquired tenure with that com- pany. Based on the foregoing uncontroverted testimony submitted by Alexander in this proceeding, I find and con- clude that he remained an employee of Respondent be- tween September 13, 1967, and January 31, 1968, and is entitled to vacation pay for 1967 in the amount set forth next to his name as indicated below. 2. Al D. Bond -Bond, although duly subpenaed by the General Counsel, failed to appear at the hearing. The backpay specification alleges that Bond was an economic striker on May 1, 1967. Respondent moved for dismissal of the case as to Bond on the ground that the General Counsel failed to sustain the burden of proof that Bond was a striking employee of Re- spondent during the critical period on and after September 13, 1967. I find no merit in Respondent's contention. Ephrim J. Green, Respondent's personnel manager, testi- fied that Bond actively worked at the plant until the strike commenced on January 29, 1967. Green stated that Bond never submitted a "quit slip" to his office, and commented that Bond "must have" joined the strike because he "didn't work after the strike started." Moreover, Respondent of- fered no objective evidence to support its assertion that Bond never became a striker, or had ever abandoned his engagement in the strike, or had obtained permanent and substantially equivalent employment at any time between September 13, 1967, and January 31, 1968, with another employer. I therefore find and conclude that Bond was a 3. Richard D. Brown Brown was employed by Respondent on March 12, 1965, and performed the duties of a crane operator at a wage of $2.89 per hour. To accommodate his attendance at college, he worked straight afternoons. At the commence- ment of the strike, Brown picketed for a few weeks and thereafter occasionally visited the picket line. In the month of February 1967, Brown searched for other work. In early February, he was interviewed for job placement by Office Manager Hutchinson of Crown Finance Company in Al- ton, Illinois. It is uncontroverted and I find that, during the interview, Brown notified Hutchinson that the former was an employee of Respondent who was on strike. Hutchin- son replied that he was seeking a full-time employee and advised Brown that he would have to sever his employee- relationship with Respondent as a condition of employ- ment with Crown Finance Company. Brown followed this advice and, on February 10, 1967, dispatched a letter to Respondent which recited that he had voluntarily quit his job with the Company in order to take another position. Brown began his employment with his new employer on February 13, 1967, and worked on a full-time basis until September 1967, receiving an hourly wage of $2.30, some 59 cents less than he earned with Respondent. In Septem- ber 1967, he became a part-time employee of Crown, and earned $2.45 an hour. Moreover, Brown's new employment necessitated changing his college schedule from attendance during the day to attendance at night. Respondent asserts that Brown, by voluntarily executing a "quit slip" on February 10, 1967, thereby -forfeited his status as an "employee" of Respondent as of September 13, 1967, and therefore does not qualify for vacation pay. I am not convinced that the execution of the document in question constituted a permanent resignation from Respondent's work force. The record shows that Brown was in need of gainful employment during the strike and sought a job with Crown Finance Company, even at a sub- stantial sacrifice of income and working conditions, to sa- tisfy that need. Moreover, it is uncontroverted that Brown would not have been employed by Crown unless he pro- duced evidence that he had severed his employment ties with Respondent. As the court of appeals noted in its slip opinion in this proceeding dated April 6, 1972, in consider- ing the eligibility of Eddie Arnold, "the quit slips executed by Arnold and the others were consistent with a need to establish eligibility for interim employment elsewhere and 3 Because Bond did not respond to the General Counsel's subpena, I ordered, in the Supplemental Decision , that Respondent pay to the Region- al Director for Region 14 the calculated sum of vacation pay which was to be held in escrow by him for a period not to exceed I year in order to afford a reasonable opportunity for Bond to come forward and be examined More than a year has elapsed since the issuance of that Decision . Accordingly, in the event that the Regional Director is unable to summon Bond within 2 weeks from the date of this Second Supplemental Decision, I shall order that Respondent's financial obligation to afford vacation pay to him in the calculated amount be discharged. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not necessarily -demonstrate a permanent resignation." I therefore find and conclude that Brown remained an "employee" of Respondent on and after September 13, 1967, and that he is entitled to the sum of vacation pay listed opposite his name below. 4. Carl R. Dunham Carl Dunham worked for Respondent as a swing grind- er, and received an hourly rate of pay of $2.25. He testified that he engaged in, picketing for 4 or 5 months after the commencement of the work stoppage on January 29, 1967. The record shows that Dunham was hired by National Food Stores on March 13, 1967, at the starting rate of approximately $2.49 per hour, and performed the duties of a stock and checking clerk . Dunham testified that, when he was interviewed for the position with National Food Stores, he informed the company that he was a participant in the strike at Respondent. When questioned as to wheth- er there was any discussion with his interviewer concerning the permanency of his new employment , Dunham re- sponded that, "We didn't discuss it, really. He said he didn't know what my intentions were, but he would try me for 45 days and that is all he said ." However, Dunham added, "I didn't tell him whether I was going back to work or not" with Respondent. On cross-examination, Dunham acknowledged that, during his entrance interview with National Food Stores, he was advised that, after the completion of a 45-day pro- bationary period, "if I wanted to stay, if I worked out, I could stay as long as I wanted to" and that "It [the job] was permanent as long as I wanted to stay there." In his testi- mony, Dunham initially denied that he told any official of the supermarket that "if the job worked out [he] would stay there." He then hedged by answering, "Not that I know of." Finally, when shown an affidavit which he gave to a Board agent, he admitted stating that "If it worked out, I would stay, which I did." During his employment tenure with National Food Stores , he received wage increases ev- ery 6 months which reached an hourly figure of $2.75 by February 11, 1968. Concluding his testimony, Dunham never applied for reinstatement with Respondent after his employment with the grocery store, and did not thereafter actively support the strike. On the basis of the foregoing, I am not persuaded that Dunham remained an employee of Respondent following his acquisition of tenure at National Food Stores. By his own admission, his job with that company "worked out" and he decided permanently to remain in that position. Accordingly, f conclude that Dunham obtained regular, permanent, and equivalent employment elsewhere prior to September 13, 1967, and that he is not entitled to vacation pay for 1967. 5. Stanley Morgan Morgan was employed by Respondent on August 22, 1965, as a hand grinder on the evening shift and his hourly rate of pay was $2.30. He testified and I find that he joined the strike on January 29, 1967, and continued, to picket until June 1967. During that period, he applied for a job with National Marine Service and, on June 13, 1967, was hired as a "temporary, inexperienced" laborer at a wage of $2 an hour. Shortly thereafter, he was laid off for 2 weeks, but, on July 5, 1967, was recalled and has worked regularly and continuously with National Marine Service ever since. After 90 days of his initial employment date, Morgan's hourly rate escalated to $2.60. When shown an affidavit which he gave to the Board , Morgan acknowledged that, after he returned from layoff on July 5, 1967, "I really took this job as a permanent job. The company knew I was a striker from Duncan . I think I told them, but I can't be sure. I had intended to take thejob as a temporary one, but they asked me if I intended to stay and I said I did." Dur- ing cross-examination, Morgan repeated that he had ac- cepted renewed employment with National Marine Service on a permanent basis in July 1967, and that he had in- formed that employer that he did not intend to return to his job with Respondent. Respondent claims that Morgan's employment with Na- tional Marine Service in July 1967 was regular, permanent, and substantially equivalent, and that he therefore should be denied vacation pay for 1967. In light of Morgan's testi- mony that he began his employment in July 1967 with that company on a permanent basis, I find merit in Respondent's contention that Morgan was not an "em- ployee" of Respondent on or after September 13, 1967, and should consequently be disqualified from payment of vaca- tion benefits for 1967. I shall therefore not award any vaca- tion pay to him. 6. Larnell Tharpe Tharpe entered Respondent's employment in 1951 and, when he joined the economic strike on January 29, 1967, received an hourly wage of $2.61. Tharpe, who worked as a molder on a rotating shift, picketed from the inception of the work stoppage until July 1967. It is his undenied testi- mony and I find that he unsuccessfully sought interim em- ployment during the period from January to July 1967. In July 1967, Tharpe left Alton, Illinois (his hometown and the site of Respondent's plant), and ventured to Tennessee where he obtained a construction job with a starting hourly rate of $2.24 which was later escalated to $2.45. Tharpe did not inform his new employer that he was a-striker against Respondent, nor did he state that he sought permanent employment. Tharpe testified without contradiction and I find that the construction jobs on which he worked were temporary in nature. Furthermore, Tharpe, a family man, did not move his household to Tennessee until October 1967. I find that, inasmuch as Tharpe had not quit his job with Respondent and had not obtained permanent and substan- tially -equivalent employment elsewhere prior to or after September 13, 1967, he remained an "employee" of Re- spondent on that critical date and until January 31, 1968, and I conclude that he is entitled to the sum of vacation pay listed opposite his name below. DUNCAN FOUNDRY AND MACHINE WORKS 777 B. Vacation Pay Entitlement of the 22 Claimants Who Voted in the January 1968 Election 1. Eddie W. Arnold Arnold had worked for Respondent for 16 years as a common laborer earning $2.58 an hour when he joined the strike on January 29, 1967, and, it is undisputed and I find that he picketed and otherwise supported the work stop- page until its termination on January 31, 1968. Arnold tes- tified that, a few weeks after the strike commenced, he was summoned to the office of Respondent's Personnel Man- ager Ephrim Green who inquired whether Arnold would be interested in crossing the picket line and returning to work. Arnold declined the offer "because I didn't want to cross the picket line." On a date prior to May 1, 1967, Arnold learned that a custodial job was vacant in the Alton school system. Armed with this intelligence, he visited the Alton School Board on April 21, 1967, and was hired as a custodian on May 1, 1967, at the rate of $382 per month, which works out to $2.21 per hour. When he submitted his application, Arnold did not list Respondent as a former employer, nor, according to him, did he seek permanent employment. It is Arnold's testimony that, when he was interviewed by As- sistant Superintendent of Schools Ed Luman for the job, no mention was made of the permanency of the position, "They [Luman] just told me they had me on trial." On June 19, 1967, Arnold visited Personnel Manager Green to straighten out a car loan. During their meeting, Arnold executed a "quit slip." When questioned as to the reason for this personnel action, Arnold replied that "the school board was putting pressure on me. They said that I either sign a quit slip or go back to Duncan's and work." After signing the slip, Arnold continued to support the strike against Respondent while he remained in the employ of the School Board. He further testified that he was not at any time informed by his new employer that his job had become permanent, and that he never returned to seek reemployment with Respondent. When queried as to whether he was interested in reinstatement at the foundry, Arnold replied that "The first year I was; but after it was like getting along for more than a year, I figured that I had lost all my seniority and everything I had coming, and I wasn't interested any more after one year." LeRoy Fritz, the Alton School Board's administrative assistant for personnel, was called to the stand by Respon- dent and was interrogated about the contents of Arnold's personnel record and the role that Fritz played in hiring Arnold. Fritz testified that Arnold was hired on May 1, 1967, at a salary of $382 per month and, by July 1, 1968, he had received wage increases which brought his monthly salary to $409. In addition, Arnold received paid vacations, sick leave, and paid holidays. According to Fritz, it was his understanding that Arnold became a "regular employee" on the date of his hire. However, Fritz, who on May 1, 1967, was the director of music and school-community re- lations and was not ' involved in personnel matters, ac- knowledged that it was Assistant Superintendent Luman who actually hired Arnold, and that Luman had men- tioned to Fritz that "quite a few Duncan people were ap- plying." Personnel Manager Green testimonially recalled that, in June 1967, he had a conversation with Arnold in which the latter informed him that Arnold was quitting the foundry, although Green initially maintained that Arnold made no mention that he was required to present a "quit slip" to his new employer which Green acknowledged was the Alton School Board. Green then stated that "I mentioned that I was surprised or sorry because of his length of service, length of time that he had been there. He said, `I have not been very active in the union,' but he said, `I am afraid to cross the picket line.' I asked why he was quitting and he said he was taking other work. Again, he said, `I sure don't want to sign a slip to show that I am quitting,' but he did come in and say he was quitting. This was his way of say- ing that he didn't want to quit." Green later reiterated that Arnold "disliked signing the quit slip and I took that to mean that he didn't want to leave." When pressed on the issue, Green conceded that he could not remember wheth- er Arnold had informed him that a "quit slip" was needed by his new employer. Accordingly, I credit Arnold's testi- mony and find that, on June 19, 1967, he told Green that he was in need of the slip because "the school board was putting pressure on me." In sum, I find that, although Arnold obtained a job with the School Board on May 1, 1967, he continued to support the strike throughout its duration and harbored the hope of returning to Respondent's employ because of his extensive seniority, until the strike terminated and he believed that he "had lost all my seniority and everything I had coming." I further find, based upon his credited testimony, that As- sistant Superintendent Luman hired Arnold on a "trial" basis. I am not persuaded that Arnold's execution of the "quit slip" on June 19, 1967, was either voluntary or mani- fested his intention permanently to abandon his "employ- ee" status with Respondent. I am fortified in this conclu- sion by the slip opinion of the United States court of appeals in this proceeding, dated April 6, 1972, in which the court noted: The Company objected most vehemently to the fact that the Regional Director counted the ballots of six employees who had executed `quit slips' and accepted employment elsewhere. The first employee named by the Company was Eddie Arnold who, according to the statement, formally resigned on June 19, 1967, with- drew from the profit sharing plan, and was perma- nently employed by the Alton School Board. The Regional Director verified the fact that Arnold had executed a quit slip and withdrew from the plan; he nevertheless concluded that Arnold had not volun- tarily resigned. His investigation disclosed that Arnold had approximately 16 years of seniority at Duncan and his pay scale was about $2.58 per hour. His substi- tute employment with the School Board was as a jani- tor earning $360 a month. It is no doubt correct that the new job was `permanent' in the sense that Arnold would retain it if nothing better was available; it seems equally clear, however, that the Regional Direc- tor could properly conclude that Arnold told the truth 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he said that he would prefer to return to Dun- can. The Regional Director concluded that the quit slips executed by Arnold and the others were consis- tent with a need to establish eligibility for interim em- ployment elsewhere and did not necessarily demon- strate a permanent resignation. Accordingly, I conclude that Arnold remained an "em- ployee" of Respondent on September 13, 1967, and still occupied that status until the strike terminated. I shall therefore award him vacation pay for 1967 in the amount set forth below. 2. Ulysses S. Bowie Bowie died prior to the hearing and the sole evidence respecting his vacation pay eligibility derives from the un- disputed testimony of his widow, Rose V. Bowie. Based thereon, I find that, at the inception of the strike on Janu- ary 29, 1967, Bowie was employed by Respondent as a molder and earned an hourly wage of $2.73. During the entire course of the work stoppage, he walked the picket line. On an undisclosed date in September 1967, Bowie enrolled in a federally funded school to study automotive mechanics, a course which lasted until June 1968, and was afforded a $30 per week transportation allowance. In July 1968, he obtained a job with Chevrolet Shell, a Division of General Motors Corporation. He was not offered reinstate- ment with Respondent until September 9, 1969. On the evidence thus presented, I find and conclude that Bowie did not obtain regular, permanent, and substantially equivalent work, and did not abandon his engagement in the strike, between September 13, 1967, and the strike's termination on January 31, 1968. I therefore conclude that his estate is entitled to the sum of vacation pay listed be- side his name below. 3. Donald Bryant At the time the strike began at Respondent's foundry, Bryant was employed at the installation as a hand grinder on castings and received the hourly wage rate of $2.66. He joined the work stoppage at its commencement and picket- ed for 4 months. In either March or April 1967, he ob- tained employment with John Deere Company as a tractor mechanic, and was paid $75.00 per week for 40 hours of work, or approximately $1.87 an hour. Bryant's testimony is uncontradicted and I find that, when he was hired by Deere, he was told that the job was a temporary one. Bryant advised Deere "that I was on strike, and that if I got called back, the strike was over and I got called back, that I would not, that I wouldn't be a permanent employ- ee." About a week after obtaining work with Deere, Bryant quit his job and procured a similar position with Taylor Implement Company at the same rate of pay. It is uncon- troverted and I find that, when hired by Taylor, he was apprised by the owner that the job was temporary and would last for only 2 or 3 months. Bryant left Taylor's employ in May 1967 to take a job as a tractor mechanic with the Oliver Implement Company at a starting pay of $2.75 an hour. When hired, Bryant was told "that I had a job as long as they, as long as he was in business, and I told hun that I was out on strike from [Respondent], and that if they got it settled and went back to work, that I would go back to Duncan's." Bryant worked for Oliver until 1968 when the business was sold. Inasmuch as the new owner possessed mechanical skills, Bryant lost his job . He appar- ently was out of work until 1969, when he obtained a posi- tion with another company. It is Bryant's undenied testimony and I find that he nev- er signed a "quit slip" for Respondent, and had never in- formed Respondent that he had no intention of returning to its employment rolls. Sometime in 1969 , Bryant rejected an offer of reinstatement at Respondent's plant. I find that, at no time, on or after September 13, 1967, did Bryant procure permanent and substantially equivalent employment with another employer, and that, at all times material herein, he fully intended to resume his employ- ment with Respondent when the strike ended. I therefore conclude that Bryant was an "employee" of Respondent between the dates of September 13, 1967, and January 31, 1968, and is entitled to the sum of vacation pay listed next to his name below. 4. Paul Cappel It is undenied and I find that Cappel worked for Re- spondent for 14 years and was a plant clerical employee at the commencement of the strike on January 29, 1967, earn- ing $2.68 an hour for a 45-hour week. He joined the strike at its inception and continued actively to support it until its abandonment on January 31, 1968. During the work stop- page, he obtained temporary employment through a local construction union and toiled for approximately four dif- ferent employers as a common laborer at an hourly rate of $4 on a sporadic basis. Cappel did not return to work with Respondent at the end of the strike, testimonially explain- ing that "I would say during the strike if it had been set- tled, and' picketing, why I would have went back; but, af- ter, no." I find and conclude that Cappel is entitled to the vaca- tion pay calculated below because, in my judgment, he failed to procure permanent and substantially equivalent employment during the entire span of the strike, inclusive of the critical period from- September 13, 1967, to January 31, 1968. 5. Ollie Covington Covington had been employed by Respondent as a chip- per and received $2.62 per hour when the strike began. It is undisputed and I find that he joined the work stoppage and picketed from 6 to 8 months thereafter. In March or April, after an unsuccessful search for interim employ- ment, he went on state aid and was referred to the City of Alton Park Department where he was paid $278 per month. On September 1, 1967, he received a 6-month pro- bationary job with the Alton Recreation Department as a temporary, seasonal employee, paying $1.85 an hour. At the time he applied for the latter position, he was tendered a temporary slot "because I was on strike, and they offered me a job, you know, and I didn't have a quit slip from DUNCAN FOUNDRY AND MACHINE WORKS 779 Duncan, they said, well, they would let me work until the strike was over. If I wanted to stay on steady, to go through training, they would give me a better position." Covington completed his probationary period on March 1, 1968, and was certified by the State Civil Service Commission on April 15, 1968, as a permanent member of the cadre, at which point his pay was escalated from $2.25 to $2.85 an hour. Rounding out Covington's uncontested testimony, he returned to Respondent's plant in either October or No- vember 1967 to check on a loan which he maintained with the credit union. In the course of his visit, he spoke with Respondent's Personnel Manager Ephrim Green about discharging the indebtedness. During their conversation, "it came up about me going back to work there, and I told him I would not cross the picket line." In light of the foregoing, I find and conclude that Cov- ington did not obtain permanent, substantially equivalent employment between September 13, 1967, and January 31, 1968, and did not abandon the work stoppage during that period. I therefore conclude that he should receive the amount of vacation pay reflected opposite his name below. 6. Lewis Dodge Dodge toiled for Respondent for 31 years and was a layout and drillpress man in the machine shop when the strike began, earning $3.19 per hour. It is undisputed and I find that he joined the picket line at its inception and en- gaged in picket duties for an unspecified number of weeks thereafter. In addition he performed the task of keeping records for the Union regarding the amounts of money spent in payment for picketing activities from the com- mencement of the work stoppage until after its conclusion on January 31, 1968. It was stipulated and I find that, on February 16, 1967, Dodge applied for employment with the Lenhardt Tool and Die Company. On his application form, he listed Re- spondent as his former employer but did not state that reason for leaving work. Dodge was hired by Lenhardt on February 20, 1967, to perform the same job which he held at Respondent's foundry, and received an entrance rate of $3.85 an hour. On September 1, 1967, Dodge was raised to the rate of $4.20 an hour as required under an existing contract between Lenhardt and the Union, and this figure jumped to $4.54 per hour on November 4, 1968. Dodge continued in Lenhardt's service until November 26, 1969, when he retired. Dodge testified that, when he visited Lenhardt's foundry in quest of a job, he was interviewed by owner Dixie Len- hardt and the latter's son. It is Dodge's undenied testimony and I find that, during the colloquy, the elder Lenhardt expressed his awareness of the strike at Respondent's facil- ity, and of Dodge's desire to resume his employment with Respondent when it terminated.4 In Dodge's words, "Mr. Lenhardt brought the subject up ... to begin with, and he sari, `I'm sure that you would want to go back [to Respon- dent] with the amount of seniority you've got if this is set- tled,' and really that's about all I can remember of it. Then he was aware of the fact that I would go back to Duncan if it was settled." Dodge further testified without contradic- tion, and I find, that he was never told by Lenhardt that his employment possessed any degree of permanence, or that he informed anyone at Lenhardt that he intended to re- main with that enterprise when the strike ended. On the basis of the foregoing, uncontradicted testimony of Dodge, I find that he was an "employee" of Respondent on September 13, 1967, and until the strike's conclusion on January 31, 1968, and that he continued as an economic striker throughout the course of the work stoppage. I con- clude, therefore, that Dodge should be awarded the amount of vacation pay for 1967 which appears below op- posite his name. 7. Richard Dunham Richard Dunham was employed by Respondent for ap- proximately a year prior to the commencement of the strike, and regularly worked in the foundry pouring cast- ings at an hourly wage of $2.54. It is uncontroverted and I find that he joined the picket line when the job action start- ed, and picketed for 8 months. In February or March 1967, he got a job as a carpenter's helper and laborer with a Jake Frech, for whom he had toiled in a similar capacity prior to his employment stint with Respondent, and was paid at the rate of $2.50 per hour. According to Dunham's undisputed testimony, "when we were out on strike, I was talking to him [Frech] at a cafe one morning and he asked me if I wanted to help them for a while while I was off, so I took it.... He just asked me if I was interested in helping them some while I was on strike down there." The employ- ment with Frechwas far from regular, for the record shows that Dunham worked but 4 days a week, and was totally unemployed during the winter and whenever the weather was inclement. Frech died during Easter of 1969, and, thereafter, Dunham became self-employed. He was not of- fered reinstatement by Respondent until August 8, 1969, which he eschewed. On the basis of Richard Dunham's uncontradicted testi- mony, I find that he persisted in the strike after September 13, 1967, and failed to obtain permanent and substantially equivalent employment with other employers between that date and the conclusion of the strike on January 31, 1968. I, accordingly, conclude that he should be paid the sum of vacation money set forth opposite his name below. 4It should be noted, as found elsewhere in this Decision, that Adolph Kruse and Wilbert Schwab also applied for and received jobs with Lenhardt on the same dates. As heretofore found, Dixie Lenhardt knew of the strike against Respondent because he sought to receive the Union's permission to cross the picket line in order to obtain some parts from Respondent's plant Moreover, I have found that Kruse, who was a member of the Union's negotiating committee, solicited temporary employment for the strikers with Lenhardt 8. Bernie Gonzales Gonzales worked at two or three different jobs with- Re- spondent prior to the strike on January 29, 1967, and earned $2.69 an hour. He joined the picket line on that date, and regularly picketed until the middle of November 1967. Thereafter, he supported the strike on weekends until its termination on January 31, 1968. At the end of Febru- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 1967, he obtained work as a construction laborer through the referral hall of a local construction union, and toiled for 15 to 20 employers on jobs which were generally of short duration. It is uncontroverted and I find that, in November 1967, he applied with the Ford Motor Company for "any" avail- able position and, on November 14, 1967, he was hired in the classification of "balance of chassis" at a rate of $3.28, plus a cost-of-living bonus of 23 cents. On his application, he made no mention of his prior employment with Respon- dent. Gonzales' testimony is uncontroverted and I find that, when he and other applicants were hired, the person- nel manager "told us that this was just temporary until they got all of their regular employees back and when they did get them back, the ones they needed from this bunch they would keep and the ones they didn't, well, that is, if they didn't quit the first day, a lot of guys were there half an hour or five minutes and left." 5 Gonzales was not told what the term of his employment would be. However, after 90 days, which would fall in February 1968, he completed a probationary period and was paid at the rate of $3.38, and received various fringe benefits. Gonzales was contin- uously employed by Ford thereafter. In view of Gonzales' undenied testimony that he sup- ported the strike throughout its existence, that he obtained sporadic employment in the construction industry from the end of February until November 14, 1967, and that he was hired by Ford on the latter date as a temporary employee and did not reach permanent status until the conclusion of his probationary period in February 1968, I conclude that Gonzales remained an "employee" of Respondent on Sep- tember 13, 1967, and continued in that capacity until the end of the strike on January 31, 1967. I conclude that he is entitled to vacation pay in the sum set forth opposite his name below. 9. Charles Henson Henson's testimony is undisputed and I find that he worked for Respondent as a press operator at an hourly wage rate of $2.73 until the strike. With the institution of the picket line, he joined the work stoppage and continued to support it throughout its course. In early February 1967, the area in which he lived experienced a heavy ice storm. In quest of part-time work, Henson presented himself to the local street and water commissioner, was hired as a common laborer at the rate of $1.75 per hour, and worked approximately 20 hours a week until February 1968, when he accepted a full-time job with that employer. When he first sought employment, he advised the commissioner that he was on strike at Respondent's plant, and the employing municipality deferred making him a permanent offer until the stoppage of work had ended. In light of the foregoing, I find that Henson was a striker on and after September 13, 1967, and that he did not pro- cure permanent and substantially equivalent employment from that date until January 31, 1968. I conclude that he is entitled to vacation pay for 1967 in the sum set forth be- low. 10. Leon Hicks Hicks had worked for Respondent as a crane operator on a rotating shift before the strike started and was paid at the rate of $2.40 or $2.47 an hour. He testified that he picketed for approximately 4 months, or until May 1967. The parties stipulated, the record establishes, and I find that Hicks sought and procured a job with Sterling Steel Casting Co., along with three other strikers, on April 20, 1967, as a yard laborer at an hourly wage of $2.40.6 His employment application bore the notation that Respon- dent was his previous employer and that he was unem- ployed due to the work stoppage. Pursuant to a labor con- tract between Sterling and the Union, Hicks became the beneficiary of a variety of employee-benefits after serving a probationary period of 20 workdays. Hicks also testified that, at the time of his employment, Sterling was aware that he was on strike and he was in- formed that the yard position was temporary in nature. However, about 6 or 8 weeks after his employment, Ster- ling experienced a recession in yard work and Hicks' three fellow strikers were laid off while he was retained. Hicks explained this happenstance on the ground that he learned that a crane operator's classification was open and, being experienced in that line due to his prior employment as a crane operator with Respondent, he applied for and was awarded this job with Sterling. According to Hicks, "They [Sterling] asked me could I handle the job, you know. They said they needed a man to work the outside crane and they wanted to keep me on, you know. . . . I stayed on up there." When questioned during his examination as to whether he joined the Union while at Sterling, Hicks made the curious comment that he had, "After about three months, after they found out that I was going to stay." (Em- phasis supplied.) With the assumption of his new duties as a crane opera- tor, Hicks' hourly wage was escalated by 15 cents, and he worked regularly and continuously for the company until the end of 1968, when he was furloughed because of lack of work. He was thereafter recalled to duty by Sterling. After a careful review of the evidence relating to Hicks, I am convinced and find that, in mid-1967, Hicks applied for and won a position with Sterling as a crane operator, the same job he had held with Respondent, and was awarded a wage increase of 15 cents an hour, giving him an hourly rate which exceeded the compensation paid by Re- spondent. I find that, upon embarking on this job with Sterling and joining the Union, he decided to remain and did remain in Sterling's employ until long after the strike against Respondent had been abandoned. Accordingly, I conclude that, prior to September 13, 1967, Hicks had ob- tained regular, permanent, and substantially equivalent employment with Sterling and thereby relinquished his sta- tus as an "employee" of Respondent. I therefore conclude 6 Hicks' memory regarding the dates of his employment with Sterling was By this, Gonzales meant that Ford's employees had concluded a strike extremely vague and confusing, as was his recollection of his entrance sal- against that company on November 13, 1967, and had begun to return to ary. Hicks testified that he was paid $2 87 per hour when he began, while his work personnel record shows the figure to be $2.40. DUNCAN FOUNDRY AND MACHINE WORKS that Hicks is not eligible for vacation pay for 1967. 11. Adolph Kruse Kruse, who worked for- Respondent for 40 years, is an- other discriminatee who died between the end of the work stoppage and the hearing herein. His widow, Molly Kruse, testified that, when the strike began, her husband joined the picket line, although she was unable to recall the period of time in which he picketed. On February 16 or 17, 1967, he obtained a job with Lenhardt Tool and Die Company, was laid off on March 7, 1967, and then procured a posi- tion with a firm called Rotary Rand, Inc., on a temporary basis. In connection with Kruse's employment with Len- hardt, discriminatee Wilbert Schwab testified that he ac- companied Kruse for an interview with Dixie Lenhardt, the owner of the company. It is uncontroverted and I find that, during the interview, Lenhardt was aware that both Kruse and Schwab were on strike at Respondent's plant because Lenhardt "had parts at Duncan Foundry to be machined and he wanted these out, permission to go through the picket line to get these parts. He contacted the union to get permission to go into the foundry." Schwab further related that, in his conversation with the Union, Lenhardt was asked by Kruse, a member of the Union's negotiating team, "if it would be possible to get temporary employment for some of the men. When we were inter- viewed, our years of experience and the fact that it was temporary employment were all discussed." According to Schwab's undenied testimony, when he and Kruse were hired by Lenhardt, it was understood by and between the parties that their employment tour would be temporary in nature.' Regarding Kruse's employment with Rotary Rand, Otto F. Becker, the office manager, testimonially recalled that he had a brief conversation with Kruse during his job inter- view and that Kruse was hired on April 10, 1967. Becker could not recall whether Kruse made any mention during the entrance interview about being on strike at Respondent's installation. However, Becker acknowledged that he did not hire Kruse, but summarily referred him to Respondent's owner for a concluding interview after he learned that Kruse had been a former employee. Becker further testified, on the basis of company records, that Kruse completed his probationary period on May 12, 1967, received 10-cent wage increases through October 1967, was laid off on December 29, 1967, and was rehired on June 14, 1968. However, Becker's testimony does not establish that Kruse's employment was on a permanent basis. Ephrim J. Green, Respondent's personnel manager, re- called that, on July 8, 1967, Kruse visited the former's of- fice and inquired about the payment of his profit share which had accrued because Kruse "didn't think he would be back to work." However, Green admitted that Kruse 7 The parties stipulated that, on the basis of Lenhardt's personnel records, Kruse applied for employment with Lenhardt on either February 16 or 17, 1967, listing Respondent as a former employer with the notation "close down plant or shop" as the reason for leaving. Kruse, according to the records, was hired on February 20, 1967, as a specialist earning $3.85 per hour. He was terminated on March 7, 1967, with no reason assigned for the termination. 781 had never been recalled to work with Respondent since the inception of the strike. Finally, Buddy W. Davis, a union staff representative, testified that Kruse was a member of the Union's negotiating team which met and bargained with Respondent until September 1967, and that the Union compensated him for the wages he lost during his interim employment for time spent while engaged in the bargaining process. On the basis of an amalgam of the foregoing evidence; I am not convinced that Kruse either abandoned his partici- pation in the strike on or after September 13, 1967, or ob- tamed permanent and substantially equivalent employ- ment elsewhere during the period ending January 31, 1968. I therefore find and conclude that Kruse's estate is entitled to the vacation pay for 1967 which is set forth below oppo- site his name. 12. Carl Patton Patton was employed as a laborer by Respondent when the strike occurred and earned $2.47 per hour. He testified that he picketed for 6 months after the commencement of the strike. Sometime prior to March 15, 1967, Patton went to a local union hiring hall, apparently in search of work, and learned that a vacancy existed in the ranks of the Illi- nois Terminal Railroad. On March 15, 1967, Patton was interviewed by a personnel officer of the railroad and was told, according to Patton, that "It was temporary. They hired help for the summer, and they still do that. While I was at the steel mill hall, and they said they were going to be hiring down there for the summer. . . . That day they took me right over, and I took my physical and everything, but they told me that it is just a division gang that they put on to put in railroad ties through the summer, and they do lay off, you know, in the fall, and they had a bunch of guys retire, and I was lucky enough to stay." In October. 1967, Patton stated that he was offered and accepted permanent employment with the Illinois Terminal Railroad. At the hearing, the parties stipulated that, based on Illi- nois Terminal's records, Patton applied for work on March 14, 1967, and was hired as a laborer with a seniority date of March 20, his first day of work. On his application form, Patton indicated that he had worked for Respondent and that his reason for leaving was due to the strike. Patton's entrance rate of pay was $2.67 per hour for a 40-hour week, and the hourly rate reached the figure of $3.05 by January 1, 1969. He satisfactorily completed a 60-day probationary period, and was awarded many fringe benefits pursuant to a contract between Illinois Terminal and a labor organiza- tion, some of which exceeded those granted by Respon- dent. From March 20, 1967, until the date of the hearing herein, Patton worked continuously for that company without experiencing any layoffs. The parties further stipu- lated that John W. Horan, the director of labor relations and personnel for Illinois Terminal, although not directly involved in the hiring of Patton, would have testified if called to the stand that "the company's policy in 1967 was not to hire full time temporary employee help and that record shows Patton was hired full time." In view of the stipulation of the parties, I am unwilling to credit Patton's testimony that, when he was employed 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the railroad, he was told that the job was merely "tem- porary" and would last only until the fall. By May 1967, Patton had passed his probationary test and began to re- ceive the full benefits of the collective-bargaining agree- ment. He worked regularly and continuously with Respon- dent since his date of hire on March 20, 1967, which also was the predicate for his seniority. Under the circum- stances, I conclude that Patton accepted regular, perma- nent, and substantially equivalent employment with Illi- nois Terminal Railroad prior to September 13, 1967, and that he, therefore, was. not an "employee" of Respondent on and after that date. I shall, accordingly, deny him a vacation payment for 1967. 13. Robert C. Ragan, Jr. Ragan's testimony is uncontradicted and I find that Ra- gan toiled for Respondent for 11 years and, on January 29, 1967, when he joined the strike, he was employed as a crane operator and was paid $2.85 an hour. He continuous- ly picketed until sometime in November 1967. In early February 1967, he obtained a temporary job with Hutton Ford earning $40 per week for a 40-hour week. This job lasted for approximately 2 weeks. Thereafter, he obtained jobs with at least 13 construction firms as a common labor- er, but did not work on a steady basis. After the: strike ended on January 31, 1968, he returned to the plant and spoke to Respondent's Personnel Manager Ephrim Green about returning to work. Green did not reinstate Ragan because "they [Respondent] didn't have enough work to call me back right then, at that time." Ragan was not of- fered reinstatement by Respondent until 1969 when he spurned working for his former employer. In light of the foregoing undenied testimony , I find and conclude that Ragan continued to support the work stop- page on and after September 13, 1967, and did not obtain permanent, equivalent employment thereafter in the salient period. Accordingly, I conclude that Ragan is entitled to vacation pay for 1967 in the amount indicated below. 14. Donald Reynolds Reynolds' testimony is undenied and I find that he worked a split shift for many years for Respondent as a janitor cleaning the bathhouse and the main office. With the commencement of the strike on January 29, 1967, he walked the picket line and served in the Union's soup kitchen for- 6 or 7 months thereafter. In either March or April 1967, he took his car in for service at Walts Oldsmo- bile and, while the repair was being attended to, he en- gaged in a conversation with the service manager in which Reynolds mentioned that he was on strike and out of work. The service manager inquired as to whether Reynolds de- sired to work for the agency washing cars. Reynolds thought the manager was jesting, but when the latter as- sured him, "No, we could use you for a while to wash cars," Reynolds accepted the position. Reynolds worked in this capacity for a few months, and was then laid off for a few days. He returned to work until August 1967, when the agency's employees embarked upon a work stoppage. A month later, he was recalled to work and stayed with that company until 1969. Reynolds testified and I find that he understood that his employment with Walts Oldsmobile would be on a tempo- rary basis because "I told them I just wanted to work until I was called back to [Respondent] and that is what I told him." According to Reynolds, "The boss, Dave Wilson was the manager, he -knew I was going to go back , if I was called back to Duncan, because he.talked to me about I could make a pretty good career there." When the strike- at the automobile agency terminated, Reynolds was asked to stay on but he stated that "my mind wasn't made up to stay because I said I felt I had a lot of years in at Duncan and I would have liked to have gone back." Reynolds was never recalled to work by Respondent, nor did he reapply for his former position because, in his words, "I figured I would be called back if they wanted me to come back." I find that Reynolds joined the picket line on January 29, 1967, and actively supported the strike by picketing and working in the union kitchen until the end of June.or July 1967. Based on his uncontroverted testimony , he continued to throw his lot in with the Union throughout the strike and obtained temporary employment with Walts Oldsmo- bile in anticipation of his recall to work with Respondent at the strike's end. I conclude that Reynolds was an em- ployee in strike status on and after September 13, 1967, and, during the material period, had failed to gain a perma- nent, substantially equivalent position elsewhere. Accord- ingly, I conclude that he is entitled to vacation pay in the amount listed beside his name below for 1967. 15. Wilbert F. Schwab Schwab had been employed by Respondent as a machin- ist for 14 years when the strike began at its plant, receiving the rate of $3.14 an hour. He picketed until May or June 1967, and, thereafter, he paid other strikers to perform this chore for him until July or August 1967. The parties stipu- lated and I find that, on February 16, 1967, he applied for a job with Lenhardt Tool and Die Company, together with Adolph Kruse, and was hired as a machinist at the starting rate of $3.85 per hour with a 10-percent shift differential for working nights. The completed application form, while listing Respondent as a former employer, contains no in- formation as to Schwab's reason for leaving Respondent's employ. It was further stipulated and I find that, on Sep- tember 1, 1967, Schwab received an increase in wages which brought his hourly rate to $4.20 plus the night shift premium of 10 percent, and was afforded substantial over- time work. Schwab fractured his leg on March 8, 1968, and returned to Lenhardt's employ on November 15, 1968, where he worked until January 14, 1969, when he left to accept a position with LaClede Steel Company. Schwab testified that, when he and Kruse applied for work with Lenhardt, they informed that employer that they were on strike at Respondent's plant and that they sought temporary employment. However, unlike Kruse, who worked but 84 hours with Lenhardt's, Schwab not only labored steadily for that company until March 8, 1968, when he broke his leg, in the same job as he held with Respondent, but by September 1, 1967, his hourly wage rate reached $4.62, which was $1.48 more than he earned at DUNCAN FOUNDRY AND MACHINE WORKS Respondent's plant without regard to the substantial over- time for which he was paid. Moreover, Schwab further tes- tified that, after the strike terminated, he did not apply for reinstatement with Respondent because "There was more men with seniority than I that had not had a chance to go back and I had employment so I never responded." (Empha- sis supplied.) Furthermore, Schwab's identification with the work stoppage ceased in July or August 1967, at which time he stopped paying others to picket for him. In view of Schwab's testimony and the stipulation of the parties, I find that, on February 20, 1967, Schwab obtained permanent, regular, and substantially equivalent employ- ment with Lenhardt Tool and Die Company, and that, in July or August, he abandoned his interest in the strike. Accordingly, I conclude that Schwab was not an "employ- ee" of Respondent on and after September 13, 1967, and that he is disentitled to vacation pay for 1967. 16. Nathaniel Sheppard Prior to the commencement of the strike, Sheppard worked for Respondent as a chipper and was paid $2.67 an hour. Sheppard testified that he joined the picket line for 2 months, and then paid someone to perform this duty for 3 or 4 months more. During the strike, he obtained a part- time job with a furniture company in order to pay off a bill which he owed to the store. Sheppard stayed on this job for 2 or 3 weeks, delivering ^ furniture for an hourly wage of $2.00 and working approximately 20 hours per week. Sheppard,further testified that, in March 1967, he was interviewed for a job with Chevrolet Shell, a Division of General Motors Corporation, by a Leo Taylor. According to Sheppard, Taylor reported at the interview that "the job was temporary at the time. They only had a contract through to November. They might extend it but he said he didn't know." Sheppard was hired as a press operator at the rate of $3.38 per hour, and worked until December 1969 when the plant closed. After 90 days of employment, he joined an incumbent union and received wage increases periodically until his terminal hourly rate was $4.10. Shep- pard stated that he worked regularly and continuously dur- ing his entire tour with Chevrolet Shell. James H. Gleason, Jr., Chevrolet Shell's supervisor of hourly personnel, testified without contradiction, and the personnel records of that enterprise establish, that Shep- pard applied for a job on March 6, 1967, and was hired on March 29, 1967, as an assembler and/or machine operator at a base hourly rate of $2.91-, plus- a 21-cent cost-of-living allowance. His seniority dated from March 29, 1967. By the end. of 1967, having fulfilled his probationary period, Sheppard earned an hourly wage of $3.75. Although Glea- son acknowledged that applicants were told that Chevrolet Shell was under contract with the U. S. Government and that the work would last only during the duration of that agreement, his testimony is uncontroverted and I find that all applicants were considered by his company as perma- nent employees and no individual was employed on a tem- porary basis. On the basis of the foregoing, I accept Gleason' s testi- mony that Sheppard and all other applicants became per- manent employees of Chevrolet Shell on the dates of their 783 hire, and I do not credit Sheppard's contrary assertions premised allegedly on the information obtained during his interview with Taylor. I find that, on March 29, 1967, Sheppard was hired by Chevrolet Shell as a regular, perma- nent employee in a substantially equivalent position as that held with Respondent, that he actively abandoned the picket line on this date, and that he continuously worked for that company until December 1969. I therefore con- clude that Sheppard was not an "employee" of-Respondent on and after September 13, 1967, and is disqualified from receiving vacation pay for 1967. 17. Eddie Simmons Eddie Simmons worked for Respondent as a molder prior to the work stoppage, and was paid $2.61 an hour. He picketed for about 5 months, and then abandoned this ac- tivity. He testified that, on March 17, 1967, he obtained a job with Chevrolet Shell cleaning the offices at night for $1.38 per hour. According to Simmons, he was told during his entrance interview that "they [Chevrolet Shell] had a year's contract, up until November 1967." However, he ac- knowledged that he was also informed that the contract "could be" extended, that "There wasn't anything defi- nite," and that, if the contract was renewed, "They would have more work." In his application, Simmons noted -that he had worked for Respondent and that he was on strike against the foundry. He testimonially_related, additionally, that he did not tell Chevrolet Shell that he would toil for it only-for so long as the strike persisted. Following his initial cleaning job, Simmons was transferred to the duties of ma- chine operator and paid at the rate of- $3.28 an hour. He received wage increases thereafter and, on May 7, 1968, he was promoted to foreman. He left his employment as a supervisor with Chevrolet Shell on December 31, 1969, and returned to General Motors' hourly employment rolls. As indicated elsewhere, Chevrolet Shell's Supervisor Gleason testified without dispute, and I have found, that all applicants for employment are hired on n-a permanent basis, and no temporary work is available. Moreover, when hired, Simmons was not told that he would be laid off in November 1967. On the foregoing state of the record, I am persuaded and find that on March 1967 Simmons received regular, permanent, and substantially equivalent employ- ment with Chevrolet Shell, abandoned the strike a few months later, and remained in that enterprise's employ. Accordingly, I conclude that he was not an "employee" of Respondent on and after September 13, 1967, and is disen- titled to vacation pay. - 18. Henry Smith Smith is another discriminatee who, although subpe- naed, did not appear at the hearing. The only evidence relating to the vacation pay eligibility of this individual comes from the testimony of Respondent's Personnel Man- ager Green and the personnel records of Chevrolet Shell. Green testified that no "quit slip" appeared in Smith's file upon inspection, that Smith had not worked for Re- spondent since the inception of the strike, and that Green had not observed him on the picket line. Chevrolet Shell's 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records demonstrate that, on March 31, 1967, Smith filed an application for employment but did not list Respondent as a former employer nor did he indicate that he was a striker. He was hired on April 13, 1967, his seniority date, as an assembler and/or machine operator and received pe- riodic wage increases until, by December 18, 1967, he at- tained an hourly rate of $3.01. The records also show that Smith worked regularly and continuously for that compa- ny until he was laid off on December 11, 1969, due to the expiration of the Government contract. As heretofore found, all employees hired by Chevrolet Shell were taken aboard as permanent employees. No evi- dence to the contrary has been adduced Accordingly, I conclude that Smith procured regular, continuous, and substantially equivalent employment with Chevrolet Shell on April 13, 1967, and was not an "employee" of Respon- dent on and after September 13, 1967. 1 therefore conclude that he is not entitled to any vacation pay for 1967. 19. Ray Tolbert This claimant worked before the strike with Respondent for 12 years as a crane operator on a rotating shift, and was paid $2.85 an hour. He testified without contradiction, and I find, that he actively picketed throughout the strike. Dur- ing the work stoppage, he obtained employment on refer- rals by a local construction union as a construction laborer and earned $34 for a full day's work. However, this em- ployment was sporadic and, while his longest job lasted for 3 months, Tolbert did not work every day and sometimes would experience weeks of unemployment. While on these jobs, he did not acquire seniority. On January 4, 1968, he was awarded a part-time position with the City of Roxana Street Department which was made permanent the follow- ing April. In view of the foregoing, including the facts that Tolbert actively supported the strike for its entire term, and did not obtain regular, permanent, and substantially equivalent employment on and after September 13, 1967, and before January 31, 1968, I conclude that he remained an "employ- ee" of Respondent after September 13, 1967, and during the critical period, and that he is entitled to the amount of vacation pay set forth opposite his name below. 20. James E. Walker Although duly notified of the pendency of the hearing herein, Walker failed to appear and be examined. The only evidence relating to him was elicited from the testimony of James Gleason, Jr., supervisor for the hiring of hourly per- sonnel at Chevrolet Shell, a Division of General Motors Corporation, and Ephrim Green, Respondent's personnel manager. Gleason testified that he interviewed Walker for employ- ment with Chevrolet Shell which manufactured missiles for the Unites States Army, and that Walker was employed on April 20, 1967, as an assembler and/or machine operator at a base rate of $2.91 per hour. He was employed by Chevro- let Shell until August 22, 1969, when he voluntarily quit and left the area. During the course of his employment, Walker was awarded wage increases on May 20, July 16, and October 16, 1967, and January I and November 25, 1968, at which point his hourly rate was $3.49. According to Gleason, all employees at Chevrolet Shell were hired exclusively for permanent positions, and Walker was employed with this understanding. Gleason further related that he was unaware that Walker had previously worked for Respondent. Green stated on the stand that he assumed that Walker hadjoined the strike on January 29, 1967, although he nev- er observed Walker's presence on the picket line, and never heard from Walker thereafter. Green added that Respondent's personnel files did not contain a "quit slip" for this individual. Due to Walker's absence from the witness stand, I can only conclude, on the basis of Gleason's and Green's testi- mony, that Walker left Respondent's employ on January 29, 1967, and gained regular, permanent employment with Chevrolet Shell from April 20, 1967, until he quit on Au- gust 22, 1969, inclusive of the critical period between Sep- tember 13, 1967, and January 31, 1968. I therefore con- clude that Walker was not an "employee" of Respondent on and after September 13, 1967, and I shall deny vacation pay to him for 1967. 21. T. Willie Walker T. Willie Walker labored for Respondent as a chipper and was paid at the rate of $2.62 an hour until he joined the strike. He testified that he picketed from that date until May 1967 While he was employed by Respondent, he worked on a sporadic, part-time basis for an automobile dealer washing cars. On April 24, 1967, he' applied for a position with Chevrolet Shell and was hired on May 8, 1967, as a machine operator at a starting rate of $3.33 per hour. During his employment interview, Walker was in- formed that Chevrolet Shell "didn't know how long the job would last. They wasn't sure whether it would be a year or two years or what, because it was what you would call a government job, making ammunition for the army." Walk- er admitted that, during this session, he did not tell the interviewer that he had previously worked for Respondent or that he was on strike. With the acquisition of the job at Chevrolet Shell, Walker ceased picketing. Walker received periodic wage increases until he was laid off on December 11, 1969, when work ran out and the plant was closed. Rounding out his testimony, Walker disclosed on the stand that he received an inquiry from Respondent's Personnel Manager Green in either 1968 or 1969 as to whether he wished to return to work with Respondent, and Walker replied that "I told him I couldn't return under the condi- tions." In light of the foregoing recorded evidence, I find that Walker abandoned his participation in the strike on May 8, 1967, when he accepted a job with Chevrolet Shell. Despite the fact that the company had geared its production to U. S. Army needs, its contract with the Government con- tained an indefinite terminal date which, in Walker's case, provided him with more than 2-1/2 years of permanent, uninterrupted, and substantially equivalent work. Al- though offered reinstatement and job security by Respon- dent in either 1968 or 1969, and after the strike had termi- DUNCAN FOUNDRY AND MACHINE WORKS nated, Walker refused the offer "under the conditions." Accordingly, I conclude that Walker was not an "employ- ee" of Respondent during the critical period from Septem- ber 13, 1967, to January 31, 1968, and is therefore not enti- tled to vacation pay for 1967. 22. Burrel Wilkins Wilkins died after the strike began and before the hear- ing in this proceeding. While alive, he worked for Respon- dent as a molder. According to the testimony of his wife, Elsie, Wilkins joined the strike and picketed for an unde- fined span of time. He obtained a job with Chevrolet Shell in April 1967. She testified that her husband's tenure at the plant was temporary because she claimed that she had seen a document received from Chevrolet Shell which bore out her assertion. When asked whether she could produce this document at the hearing, Mrs. Wilkins stated that her home had been burglarized and that the item was missing. Mrs. Wilkins finally stated that her husband had been em- ployed by Chevrolet Shell for only 5 or 6 weeks when he first commenced work at that plant, and did not achieve permanent status until the fall of 1968, probably in August of that year. Mrs. Wilkins' testimony regarding her husband's work history with Chevrolet Shell is belied by the records of General Motors and the credited testimony of Chevrolet Shell's employment supervisor, Gleason. These records clearly demonstrate that Wilkins was hired by Chevrolet Shell on April 20, 1967, as a handler-machine operator at the base rate of $2.91 an hour plus a cost-of-living allow- ance of 21 cents. On his employment application, he did not list his prior employment with Respondent. Following his hire, Wilkins received 5-cent increases at the end of 30 and 90 days, and other increases throughout his regular, continuous employment with that company which termi- nated on December 11, 1969, when Chevrolet Shell ceased business operations. Moreover, Gleason testified that the company had no practice of sending notifications to em- ployees concerning the permanency of their employment, 785 and that employees are led to understand during their en- trance interview that their job was of a permanent nature, subject to the future termination of the Government con- tract on which they were working. On the record before me, I find that, on January 29, 1967, Wilkins joined the strike and thereafter picketed. I find that, on April 20, 1967, he obtained a regular, perma- nent, and substantially equivalent job with Chevrolet Shell and that he continued to work for that organization until December 11, 1969 . I therefore conclude that, having ac- quired this position, Wilkins was not an "employee" of Respondent on and after September 13, 1967, and is not entitled to vacation pay for 1967. Upon the basis of the foregoing findings and conclu- sions, I recommend that Respondent's obligation to make whole those striker-employees whose entitlement to vaca- tion pay for 1967 has heretofore been defined will be dis- charged by payment to them of the amounts set forth op- posite their names listed below, together with interest thereon at the rate of 6 percent per annum, calculated in the manner set forth in Local 138, International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk Contractors' Association, Inc., et al.), 151 NLRB 972 ( 1965), less any lawfully required tax withholding. Walter L. Alexander $ 195.60 Eddie W. Arnold 327.60 Al D. Bond 110.40 Ulysses S. Bowie 608.00 Richard D. Brown 115.60 Donald E. Bryant 166.80 Paul E. Cappel 221.60 Ollie Covington 190.20 Louis E. Dodge 534.40 Richard G. Dunham 108.80 Bernie M. Gonzales 181.21 Charles F. Henson 116.00 Adolph W. Kruse 553.60 Robert C. Ragan, Jr. 240.00 Donald Reynolds 211.20 Larnell Tharpe 432.00 Ray A. Tolbert 204.80