Swearingen Aviation Corp.

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swearingen Aviation Corporation and Rojelio Ordaz. Case 23-CA-5734 - December 13, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On May 14, 1976, Administrative Law Judge Almira- Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order as modified herein. Certain of Respondent's employees struck on August 25, 1975,2 to protest their dissatisfaction with Respondent's wage policies. As the Administrative Law Judge correctly found, Respondent thereafter unlawfully discharged the strikers, thus converting the economic strike into an unfair labor strike. Subsequently, however, the strikers attempted to return to work. The Administrative Law Judge concluded that the strikers' various efforts to return, particularly their September 3 offer through their representative Rojelio Ordaz, did not constitute unconditional offers to return and therefore Respon- dent did not violate Section 8(a)(1) of the Act by refusing to accept these offers. Upon our review of the evidence in the record, we disagree with this conclusion of the Administrative Law Judge and find that an unconditional offer to return was made by Ordaz on behalf of the strikers on September 3, and that Respondent therefore violated the Act by rejecting this offer. It is clear that the employee group which had walked out on August 25 very shortly thereafter began attempts to reclaim their jobs. On August 26 Ordaz telephoned Haines twice. During the first call, he asked, and was told, that the striking employees had, in fact, been discharged. In the second call Ordaz intended to make an offer for the employees to return to work but, as the Administrative Law Judge I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It Is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 227 NLRB No. 32 found, he never got an opportunity to do so. Instead, when Ordaz told Haines he was speaking for those who had walked out, Haines responded he had nothing indicating Ordaz was their spokesman, and he hung up on Ordaz. Later that day Ordaz was interviewed by a local television station reporter and Ordaz apparently indicated to him that he had called Haines to extend the employees' unconditional offer to return but Haines had hung up on him. The reporter then called Haines and related Ordaz' message. Haines denied such an offer had been made by Ordaz and then refused to answer a hypothetical question as to whether the strikers would get their jobs back if they presented Haines with an unconditional offer to return. Thereafter, on September 2, Ordaz met with Haines to discuss again the possibility of returning the strikers to their former positions. Ordaz said he was anxious to get the men back to work and had tried previously to make an unconditional offer- to return but Haines had hung up on him. This meeting produced no definite results, however, because a problem arose over Ordaz' inclusion of group leaders Buentello and Salazar on the list of employees seeking reinstatement. Haines refused to reinstate the two as he deemed them supervisors. Ordaz, who sought the return of those on the list on an "all or none" basis, said that before he responded to Haines' demand he would have to confer with the entire group. The parties agreed to meet the following day. Thereafter, on September 3, Ordaz returned and informed Haines that he no longer represented Buentello and Salazar. Ordaz then presented Haines with a paper stating: "Reinstate the Strikers uncondi- tionally, immediately as I proposed 8/27/75. Rojelio S. Ordaz." 3 Haines stated that there had been no offer made on August 26 and consequently he could not accept the memorandum. Ordaz replied that he _ had tried to make an unconditional offer during their telephone conversation on that date but that Haines had hung up the phone before he was able to do so. Haines stated that if Ordaz would change the date to September 3, then the offer would be acceptable. After brief deliberation, Ordaz decided that the offer as set forth was final. Haines refused to accept it and Ordaz left. The Administrative Law Judge found that Ordaz, by including the date, August 27 (which should have been August 26), had conditioned the offer upon Respondent's acknowledging that an unconditional NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 All dates are 1975 unless otherwise noted. 3 Ordaz admitted that the date appearing in the memorandum, August 27, 1975, was an inadvertent error and should have been August 26, 1975. SWEARINGEN AVIATION- CORPORATION 229 offer to return had been made on August 26. Finding that a condition which Respondent was not legally required to accept had thus been attached to the employees' latest, offer to return, the Administrative Law Judge concluded that Respondent was never confronted with an unconditional offer to return by the group and that Respondent did not violate the Act by rejecting the September 3 offer. Contrary to the Administrative Law Judge, we find that Ordaz' written statement of September 3 evi- denced a clear intent on the part of the strikers to both abandon the strike-and return to work uncondi- tionally and that further, Ordaz' accompanying remarks emphasized that fact. The presence of the date August 27 (which should have been August 26) merely indicated that on September 3, as they had intended but failed to communicate on August 26, the employees were offering unconditionally to return to work. Consequently, we find that Ordaz' offer of September 3 was unconditional and imposed upon Respondent the responsibility of reinstating the strikers.4 Its failure to do soy -was a viola*ion of Section 8(a)(1) of the Acts Remedy In order to effectuate the policies of the Act, we shall order the Respondent to cease and desist from the unfair labor practices found here and by the Administrative Law Judge and to take certain affir- mative action. In view of the nature of the unfair labor practices, we shall order the Respondent to cease and desist from infringing in any manner upon employee rights guaranteed by Section 7 of the Act. Altho7ugh there is some indication that all the strikers who were, unlawfully discharged have re- turned to work, this matter is not clearly established in the record. We shall therefore order that, in view of our findings that the Respondent unlawfully refused to reinstate the unfair labor practice strikers, listed below, Respondent shall offer each of them immedi- ate and full reinstatement without prejudice to their seniority and other rights and privileges to their former jobs, discharging if necessary any employees 4 Our conclusion that the striking employees did make an unconditional offer to return on September 3 is buttressed by the events comprising the entire dispute. Haines' attitude was revealed when Haines, acting in direct contravention to Englebach's orders, did not merely replace the strikers but discharged them And as late as September 3, after numerous events had occurred substantiating Ordaz' status as the group 's spokesman, Haines continued to request evidence of Ordaz' authority to act as such. And, finally, the rejection of the September 3 offer because of the reference to August 27," is indicative of the resistance put forth by Respondent in its dealings with the striking employees. We also note that by September 3 Ordaz had dropped Buentello and Salazar from the group request for reinstatement, thereby removing the condition on which the oral request for reinstatement foundered on September 2 This evidence of Respondent's overall attitude adds support to our conclusion that Ordaz' offer to return on September 3 was unconditional and that Respondent's rejection of said offer violated Sec. 8(ax 1) of the Act. hired as replacements for them, but, if those jobs no longer exist, the Respondent shall offer them substan- tially equivalent positions. The Respondent shall also make such employees whole for any loss of earnings they may have suffered by reason of the discrimina- tion against them by payment to each of them of a sum of money equal to that they normally would have earned from the date of their unconditional request for reinstatement-which for employees Joe Perez, Joe Sierra, and Pete Villarreal is August 25, 1975, and for all the others, September 3, 1975-to the date of Respondent's offer of reinstatement, less any net earnings during such period. The backpay shall be computed in accordance with the remedial relief policies set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The employees entitled to reinstatement are: Armand Arguello Rojelio Ordaz Vlademar Camacho Roy Parkman Manuel Enriquez, Jr. Merrill Parsons Clifton Gonzales Willie Mae Patterson J. L. Gonzales Barry Patton Joe O. Gutierrez Joe Perez Jesse Maldonado Joe Salazar Celestino Martinez Joe Sierra Edward Mendiola Mario Soria Jim Morris John Valdez Jesus Nieto Pete Villarreal ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Swearingen Aviation Corporation, San Anto- nio, Texas, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Add the following as paragraph 1(c): 5 The Administrative Law Judge also found that striker Pete Villarreal did not make an unconditional offer to return to work and therefore is entitled to reinstatement only upon apph^mtion. To the contrary, we find that by informing Villarreal that under no circumstances, i.e., with or without the requested 10-cent raise, would he be rehired, Respondent created conditions that would tend to render any subsequent offer by Villarreal futile. In so doing, the Respondent violated Sec. 8(a)(1) of the Act 6 For the reasons set forth by the Administrative Law Judge, Member Walther would adopt her finding that Ordaz offer to return made on September 3, in behalf of all the striking employees, was not unconditional and therefore was lawfully rejected. And, on the facts of this case, Member Walther would not find that Respondent had created conditions that would have made any subsequent offers to return by Villarreal futile. Consequently, he would find that Villarreal is entitled to reinstatement only upon application. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(c) Discouraging participation in activities protect- ed by Section 7 of the National Labor Relations Act, as amended, by refusing to reinstate, upon their unconditional application for reinstatement, those employees engaged in an unfair labor practice strike, or in any other manner discriminating against such employees in regard to their hire and tenure of employment. 2. Substitute the following for paragraph 2(a) in the Order: "(a) Reinstate immediately the below-named em- ployees and make them whole in the manner set forth in the Remedy section of the Board's Decision and Order: Clifton Gonzales J. L. Gonzales Joe O. Gutierrez Jesse Maldonado Celestino Martinez Edward Mendiola Jim Morris Jesus Nieto Willie Mae Patterson Barry Patton Joe Perez Joe Salazar Joe Sierra Mario Soria John Valdez Pete Villarreal Armand- Arguello Vlademar Camacho Manuel Enriquez, Jr. Clifton Gonzales J. L. Gonzales Joe O. Gutierrez Jesse Maldonado Celestine Martinez Edward Mendiola Jim Morris Jesus Nieto Rojelio Ordaz Roy Parkman Merrill Parsons Willie Mae Patterson Barry Patton Joe Perez Joe Salazar Joe Sierra Mario Soria John Valdez Pete Villarreal 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge, or dis- charge, our employees because they engage in protected concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT discourage participation in activi- ties protected by Section 7 of the Act, by refusing to reinstate to their jobs, employees who engage in an unfair labor practice strike, when they uncon- ditionally ask to be reinstated. WE WILL immediately reinstate the below- named employees to their former jobs: Armand Arguello Rojelio Ordaz Vlademar Camacho Roy Parkman Manuel Enriquez, Jr. Merrill Parsons WE WILL make whole the above-named em- ployees for any loss of earnings they may have suffered as the result of our unlawful discrimina- tion against them. SWEARINGEN AVIATION CORPORATION DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard in San Antonio, Texas, January 19-21 and February 25-26, 1976. The charge was filed by Rojelio Ordaz August 29 and served on the Respondent September 3, 1975. The complaint was issued November 6, 1975, amended at the hearing, and duly answered by the Respondent. The issues are whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by refusing to allow the Charging Party to present grievances on behalf of himself and other employ- ees and have them adjusted; - threatening to discharge employees if they intended to protest their wages, hours, or working conditions; discharging strikers ; and refusing to reinstate strikers upon their alleged unconditional offer to return to work. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a Delaware corporation engaged at San Antonio, Texas, in the manufacture of commercial aircraft. During the past 12 months it has purchased goods and materials valued in excess of $50,000 which were shipped directly to its San Antonio, Texas, facility from outside Texas. The Respondent admits, and I conclude, that it is an employer engaged in commerce in the meaning of Section 2(6) and (7) of the Act. SWEARINGEN AVIATION CORPORATION 231 II. THE UNFAIR LABOR PRACTICES' A. Introduction The Respondent began production at the San Antonio aircraft manufacturing plant-here involved, as a subsidiary of Fairchild Industries, in June 1972. National Labor Relations Board elections have been conducted among the production and maintenance employees of the plant every year, in September 1973, November 1974, and December 1975, all resulting in no majority for union representation. The following individuals were the Respondent's supervi- sors and agents at relevant times: Thomas Haines, director of employee relations; Paul Granada, assistant director of employee relations; Don Richards, plant superintendent; Paul Goetz, foreman; Jesse Arzola, foreman, and Ray Placa, foreman. This case concerns events which began shortly before August 25, 1975, the date a group of-production employees struck the Respondent over wages and working conditions. The Respondent concedes, and I find, that 22 of the employees named in the complaint,2 walked out that day. With respect to the three other employees named in the complaint, the Respondent denied that Roger M. Cortez took part in the strike. No evidence was presented support- ing the allegation that he participated, and I shall therefore recommend that the complaint be dismissed as to him on this ground. The Respondent contends that the remaining two strikers, Group Leaders Gilbert Buentello and Carlos Salazar, were supervisors within the meaning of the Act. B. Sequence of Events 1. Before August 25 Beginning about August 1, employees of Department 115 and others began meeting together on the plant premises during breaktime and discussing their wages, the rise in the cost of living, and a July advertisement by the Company to the effect that its business was improving. Group Leaders Gilbert Buentello and Carlos Salazar asked Department 115 Foreman Placa if he would meet with the department employees and hear their complaints, but Placa said it would be better for them to elect representatives and go through the regular grievance procedures provided in the employee handbook. At a subsequent meeting, the employ- ees elected group representatives for that purpose, and discussed the possibility of walking out if they could not get anywhere with their wage complaints. The Charging Party, Rojelio Ordaz, was elected a representative and assumed the leadership of the effort. Shortly after that Ordaz heard from another employee that the grievance procedure had been changed and, on August 21, Ordaz asked Foreman Placa if that was true; Placa, who had meanwhile learned of the change, showed 1 Where credibility is not specifically discussed, the facts are based on substantially uncontradicted evidence. 2 Armand Arguello, Vlademar Camacho, Manuel Ennquez, Jr., Clifton Gonzales, J L. Gonzales, Joe O. Guitierrez, Jesse Maldonado, Celesuno Martinez, Edward Mendiola, Jim Moms, Jesus Nieto, Rojeho Ordaz, Roy Parkman, Merrill Parsons, Willie Mae Patterson, Barry Patton, Joe Perez, Joe Salazar, Joe Sierra, Mario Soria, John Valdez, Pete Villarreal. 3 The facts as to the Ordaz-Haines meeting are based on Ordaz' credited Ordaz a copy of a new handbook which did not provide for employee-group representatives, but only for-the processing of individual complaints beginning with the immediate supervisor with appeals through the supervisory hierarchy. Ordaz had never before seen the new handbook, and Placa told him he could get one at the personnel office. Ordaz did so, and after the matter was discussed with Buentello and a group of employees on breaktime, the employees agreed that Ordaz would act as their spokesman and take the group's grievances through channels. Ordaz persuaded Foreman Placa_ to arrange a meeting for him with Plant Superintendent Don Richards to discuss the employees' grievances. 2. August 25 Ordaz met with Superintendent Richards and told him employees were upset over the newspaper advertisement about the Company's booming business and they needed a raise because the cost of living was up. Richards explained on a blackboard company costs for parts,- labor, and so forth, and its profit situation, and told`Ordaz that he could do nothing for the employees as far as raises were concerned, but he would set up a meeting with Director of Employee Relations Thomas Haines. This was done and Ordaz met with Haines and Richards that same morning. Ordaz began by asking Haines why the new handbook contained nothing about a group represen- tative. Haines replied the procedure was eliminated because no one wanted to be a representative and the true grievances were not getting through to him. Ordaz request- ed that the representative procedure be revived. Although Haines said he could not recognize Ordaz as a spokesman, Ordaz testified that he nevertheless continued to speak for the employees, and Haines did not shut him up, but listened to him, as follows: He told Haines that the people really needed a wage increase, because the cost of living was up. Haines responded that he knew the cost of living was up. Ordaz went on 'to complain that the platforms employees stood on to perform their work were insecure and might fall, and there were shorts in electric wiring, and these conditions were dangerous for the employees. Haines responded that the maintenance department was small and it takes time to fix everything. Haines then told Ordaz he did not want to cut him off, but Haines had to go to a meeting. Ordaz responded, "Mr. Haines,there are things down there-there are things that might happen down there that I would like to prevent, but so far I feel you haven't told me anything to tell the people." Haines replied, "Well, you do whatyou can, and that's all you can do."3 Ordaz met with the group of 20 to 25 employees during lunchbreak after his conversation with Haines. When they asked what happened about the wage problem, Ordaz told them, "basically nothing, that I had gotten the runaround." After further discussion, the employees decided to walk out. testimony. Oddly perhaps at first glance, Haines testified to the effect that throughout this meeting he steadfastly refused to discuss complaints of any employees other than Ordaz himself I do not credit Haines' version even though he presented allegedly corroborating notes purportedly made immediately after this, and other incidents, because Haines struck me as capable of rearranging events to suit his purposes and his account of this meeting seemed artfully designed to fit in with his subsequent refusal to recognize Ordaz as the authorized representative of the strikers 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the end of thee lunchbreak, 19 of them returned to their work stations, locked their toolboxes, and walked out. Others walked out shortly thereafter. Although Ordaz was personally opposed to walking out, he joined the others, and the group assembled in a nearby roadside park. Striker Joe Sierra indicated, and Buentello and Ordaz ultimately reluctantly conceded, that the group decided, from the beginning, they would return to work on an all-or-none basis. ` A guard reported to Director of Employee Relations Haines that a group of employees hadgone out the gate together, and he contacted the superintendents and asked what happened. They reported 24 employees had walked off the job, they did not know why, but it was rumored that more might walk out. Haines immediately telephoned the Fairchild director of employee relations, Clarence Engle- bach, and related what he knew.-Englebach told him he was not sure of the employees' status, that Haines should replace them, but not discharge them. Englebach said that the most important consideration was to prevent further walkouts as the Company could not afford a general strike, and Haines should do this by the "tactical maneuver" of letting "the word leak out into the shops that the employees who had walked off the job had, in fact, been discharged, for walking off the job without permission of supervisors"; and that Haines was to document everything that hap- pened. Haines then met with Factory Manager Don Howard 'and the four superintendents and directed them to contact their foremen to let the word leak out that the employees who walked-out had been dismissed for doing so. Haines testified that he told his personnel staff (Assis- tant Director Paul Granada and Haines' secretary) that employees were not to be discharged, and no paperwork was to be processed to that end. When Haines obtained the timecards and prepared a list of those who had walked, Foreman Placa pointed out that two of them, Buentello and Salazar, were group leaders. Haines then directed that Buentello and Salazar be discharged that day, August 25, for misconduct, "supervisors involved in an employee dispute." The following testimony by nonstriking employees is undisputed: Jack Ellis -testified that Department 116 Foreman Paul Goetz told him and another employee that those who walked out were terminated. Henry Guerrero and Frank Martinez testified that-Department 117 Fore- man Jesse Arzola called his employees together that afternoon in two, groups of 4-or 5 and 10 or 11 employees, and announced that those who walked out were terminated and that anybody else who did so would also be fired. Moses Garcia testified that he went to the personnel office about 3:30 p.m. with another employee and told Assistant Director Granada they wanted to see Haines "about the people that walked out," and that Granada said it would do no good as the people had been terminated for misconduct. 4 Joe Perez was recalled to his job September 2-or 3, 1975, by letter from Haines telling him his "unconditional offer to return to your former position at Swearingen is hereby accepted." 5 The facts as to these interviews are based on the testimony of the three employees, whose demeanor was that of persons telling the truth as they remembered it, and whose testimony was mutually consistent. Their accounts of Haines' conduct on these occasions were also more consistent than Haines' with his other conduct as found throughout the relevant period. Three department 116 employees who joined the strike returned to the plant and had separate interviews with Haines that same afternoon. Joe Sierra told Haines he would like to have his job back. Haines asked him why he had walked out, and Sierra said it was not over wages but because the employees were being pressured too much, the same production being required even with some employees on layoff. Haines responded that he could not help Sierra if he wanted to talk about working conditions. Sierra asked, "What do you mean, do you mean I am fired?" and Haines told him he was. Joe Perez told Haines he might have done a wrong thing, but he wanted his job back. Haines responded there was no way;.Perez had left without reason and the Company could not tolerate walkouts; everybody made mistakes and he just had to live with his. Perez asked if Haines would call him if he should see his way clear to accept Perez' offer, and Haines agreed to do that .4 Pete Villarreal informed Haines he was willing to return to work if he got a 10-cent raise which Foreman Goetz had promised him. Haines responded it would be against company policy to give him a raise, that Villarreal was terminated due to his walkout, and that he had made a mistake and would have to live with it. Villarreal asked if that meant he could not go back to his job, with or without the 10-cent raise, and Haines answered that was it .5 3. August 26 Haines testified that he spoke with Englebach early on August 26, and was told to consider those who walked out to be economic strikers. Englebach approved the termina- tion of Group Leaders Buentello and Salazar, but affirmed his instructions that no one else was to be dismissed. Haines testified he was in daily contact with Englebach from then on and kept him informed, and that the company president agreed that the walkouts were economic strikers and that they would be accepted back upon their unconditional offers to return. Nonstriker Moses Garcia, referred to above, got in to see Haines early on the morning of August 26, and told Haines he wanted to talk about the people who walked out; but Haines told him he was not a spokesman or representative, and Haines would talk only about any individual problems Garcia might have. Department 116 striker Jesus Nieto returned to the plant about 10 a.m. and Foreman Goetz told him everybody who walked out was fired, and directed him to sign a paper stating he was dismissed for walking off the job. Ordaz telephoned Haines twice on August 26. In the first call, Ordaz told Haines he had heard rumors that those who walked out were fired and asked if that was true. Ordaz credibly testified that Haines responded, "Yes, the people that walked out yesterday ... have been terminated for walking off the job without their supervisors' permission." 6 6 1 do not credit Haines' testimony that he told Ordaz that only he was terminated, and that he nusspoke when he used the word "dismissed," because he meant "replaced," as he had replaced Ordaz earlier that morning Ordaz was generally more credible than Haines. As for Hames' reference to having replaced Ordaz, this is as good a place as any, I suppose, to dispose of Haines' testimony about replacing the strikers , none of which is credited for SWEARINGEN AVIATION CORPORATION 233 Ordaz telephoned Haines again 10 or 20 minutes later. He testified, and I believe him, that the purpose of this call was to make an offer for the employees to return to work, but he never got a chance to do so. Ordaz and Haines testified to the same effect that Ordaz told Haines he was speaking on behalf of the people who walked out, and that Haines responded he had nothing to indicate Ordaz was their spokesman and would not recognize him as such, and hung up the telephone. About mid-afternoon a majority of the strikers met again at the roadside park and, a local television reporter, Bob Branson, appeared and asked who their spokesman was. Upon being informed that Ordaz was the spokesman, Branson recorded an interview with him. The recording is not in evidence, but the evidence indicates that Ordaz told Branson the people were protesting wages and grievance procedures, and that they had been relieved of their jobs. Ordaz testified that he also told Branson that "I had tried- I had called Mr. Haines that morning and I told him that I had called him to offer the people back unconditionally, but he had hung up on me." Branson subsequently reached Haines on the telephone and asked for a statement. Haines, having been informed that Branson was trying- to reach him, read Branson the following statement: The company is somewhat confused about what has happened. About all we know is that approximately 20 out of a total of 380 employees walked off the job yesterday at noon. They didn't indicate any particular reason for their action. We feel the majority of our employees are very satisfied with their jobs and produc- tion is continuing as normal. Branson told Haines that Ordaz said he had called Haines and made an unconditional offer to return the men to work but Haines had hung up on him. Haines -responded that no such offer had been made. Branson then asked if the men would get their jobs back if they came to Haines with an unconditional offer, but Haines said he would not answer a hypothetical question.- The local television station carried the story twice that evening, with Ordaz identified as the spokesman for the group who walked out over pay and grievance procedures. Branson said, among other things, that the men had been told not to come back and were without jobs and that, "The men say they will go back to work . . . unconditionally ... but Sweargin [sic I refuses to say whether they would be allowed to do so." 4. August 29 Ordaz next telephoned Haines on August 29 to ask about the -pay, checks of those who walked out, and Haines told him the checks were in the mail. 5. September 2 This was the next time Ordaz and Haines spoke to each other. They met that day in Haines' office with employee Camacho and Assistant Director of Employee Relations Granada present. - Ordaz had called Haines earlier in the day and asked to talk about getting the people's jobs back, and Haines had set - a time for their meeting, telling Ordaz to bring something to indicate he was the spokesman, suggesting a petition signed by them. Haines testified that he had learned by this time that Ordaz had spoken for the others on television, and agreed to talk if Ordaz brought him information in writing that he was their spokesman. Ordaz had then met with the strikers in the park, and 23 of them (all but Perez) signed a petition prepared by Ordaz to the following effect,"Since on or about August 1, 1975, we the undersigned have chosen Rojeho Ordaz to act as our spokesman for the purpose of collective bargaining repre- sentative pertaining to rates of pay, wages, hours of employment, or other conditions of employment." At the meeting with Haines, Ordaz showed him the petition, and Haines checked off the names. Ordaz said he was anxious to get the people back to work. Haines responded that he wanted them back as well, and that one or two were already back. Ordaz stated he had tried to make an unconditional offer before but Haines had hung up on him. Haines said that two whose names were on the petition-Group Leaders Buentello and Carlos Salazar- were terminated, and he would not reinstate them. Ordaz protested that they were "part of the group I represent .. . that walked out," and that the group decided from the beginning that all or none would return to work. Haines said he would accept the other people but not the group leaders, and Ordaz agreed to take the matter up with the people and meet with Haines again the next day. Ordaz returned to the park where approximately 20 strikers awaited him. He told them what happened at the meeting. The employees, as well as Buentello and Salazar, agreed that the two group leaders would drop out and that Ordaz was to no longer include them in the offer to return to work. 6. September 3 This was the last meeting between Ordaz and Haines, and they were in substantial agreement as to what occurred. Ordaz presented Haines with a copy of the petition previously shown to him, with the names of the-two group leaders still on it, but told Haines he no longer represented them. Ordaz also presented a document to the following effect: the following reason-the applicable rule provides that the Respondent bears the burden of proving that strikers have been permanently replaced (Truck Drivers and Helpers Local No 728, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Georgia Highway Express, Inc J v. N L KB., 403 F. 2d 921 (C.A D.C., 1968)).Yet the only evidence presented by the Respondent consisted of testimony by Haines who has been found not particularly credible; his testimony lacked the specificity required such as-exactly who replaced whom and when, and no documentary support was offered as was done to support Haines' version of other events, despite Haines' assertion that Englebach ordered him to "document everything," and that he followed that order by maintaining "a separate hating" of which job was filled by which replacement. Moreover, Haines admitted he never told any striker he had been replaced. Also unsupported was Haines' further testimony that the only reason he eventually, on a date he believed to be on September 18, offered "the jobs back to those people who walked off' was that the Company "had an increase in our production schedule." 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To Reinstate the Strikers unconditionally, immediately as I proposed 8/27/75. Rojelio S. Ordaz Haines said he would not accept this document because of the date on it, as Ordaz had never made such a proposal on August 27 or any other previous date. Ordaz told him the August 27 date was wrong and should be August 26. When Ordaz tried to make an unconditional offer, Haines hung up the telephone, and when the television reporter had promised to tell Haines about the unconditional offer, Haines responded that he had hung up the telephone because he thought the conversation was over; he could not go by what the reporter said as the reporter had been incorrect as to other facts; and that the only offer Haines had received had been made on September 2 and was on an all-or-none basis including the two group leaders. However, Haines continued, if Ordaz would change the date on the document from August 27 to September 3, he would accept it, as no unconditional offer had been made before the latter date. Ordaz protested that he would have to check back with the strikers before he could change the date. Realizing then that this was his "final offer," Ordaz testified, he extended the document to Haines again and asked him if he would accept it. Haines responded he would not. Ordaz left and has not been in touch with Haines since that day. Haines testified that if he had accepted the document with the August 27 date on it, he might have thereby acknowledged that an unconditional offer had been made on that date and possibly accepted liability for backpay from that'date, whereas any offer received before September '3 had been on an all-or-none basis including the two group leaders. C. Supervisory Status of Group Leaders Gilbert Buentello and Carlos Salazar The position of group leader was established in June 1972, when the Respondent first began operating the plant. The plant hierarchy consisted, and consists, of the factory manager, production superintendents, foremen, and group leaders. The original job 'description for the position of group leader was as follows: Organizationally the group leader falls between the foreman and the worker on the floor and assists the foreman in performing his responsibilities as well as performing work within his classification group. Group size averages about ten people, but could be larger or smaller depending on needs of the group. Principal duties include the following: 1. Assigns work to members of group in order to maintain proper work flow, and keep employees active- ly working. II. Trains employees in group on work methods and techniques. III. Coordinates the efforts of all employees in group. IV. Checks machines, equipment, incoming materi- als and completed work. V. Records information, such as time and produc- tion data. VI. Directs workforce and makes significant re- commendations to foremen regarding personnel deci- sions such as: hiring and firing, promotion and transfer, pay adjustments and disciplinary action. VII. Regularly performs all tasks of workers in occupational group when not involved in supervisory or administrative duties. NoTE: Since Group Leader will spend at least 20% of time performing work, he loses his exemption under the Fair Labor Standards Act and is subject to overtime payment at 1-1/2 times hourly rate for hours worked in excess of 40 per week. When the group leader position was set up, there were 400 to 500 rank-and-file employees in the plant. By the spring of 1973, when the Regional Director excluded group leaders from the unit found appropriate for a Board election on the ground that they were supervisors,7 the plant had reached its peak complement of approximately 700 employees; there were approximately 50 group leaders, 20 foremen, and 4 or 5 production superintendents. During the ensuing 2 years, the complement was reduced as a result of layoffs until the Respondent found itself with too many group leaders. In June 1974, it "deactivated" about half of them, including Buentello and Salazar. Thereafter, some, including these two, were "reactivated." Buentello and Salazar were appointed group leaders in department 110 in 1972 on the recommendation of Fore- man Ray Placa. It is undisputed that Buentello and Salazar were included in a basic supervisory workshop given to all group leaders and foremen, and that they exercised the full authority spelled out in their job descriptions until their deactivization on June 24, 1974, except that the group leaders ceased to recommend wage increases in November 1973 because the Respondent went to an automatic wage increase system for its employees. Salazar was "reactivated" as group leader, department 115, by ForemanDon Ashmore (who did not testify) July 8, 1974. Ray Placa took over Department 115 in November 1974, and on his recommendation, Buentello was reactivat- ed on November 25, 1974. Both Buentello and Salazar received wage increases to $4.13, 25 cents more than the highest pay for their crewmembers, at the time of their reactivation. In August 1975, there were 22, to 24 employees in Department 115, and three group leaders-Buentello, Salazar, and Joe Gonzales (who did not testify). Buentello and Salazar testified that after their reactiva- tion they continued to perform only the nonsupervisory duties they had performed as inactive group leaders. Employee Relations Director Haines and Foreman Ray Placa testified that the group leader job description has never been changed and that all active group leaders possess and exercise the authority given therein except for recommending merit increases, as they have done in the past. Department 115 is engaged in two operations, fuselage mate and laydown. Aircraft under construction are moved 7 Case 23-RC-3920. The Regional Director found among other things made effective recommendations regarding employing, discharging, promot- that group leaders spent 60 percent of their time directing employees, and mg, transferring, and disciphnmg employees. SWEARINGEN AVIATION CORPORATION 235 through these operation& on a schedule of 16 days in fuselage mate and 8 days in laydown, with four or five planes being worked on at all times. In fuselage mate, a plane is placed in a jig where the forebody section, nose, tail, and quarter panels are fitted, mounted,-and assembled into a fuselage. The plane is then removed from the jig, inspected, and defects reworked. It is then placed in a laydown position where basic environmental systems, plumbing, and electrical wiring are installed; groundwork for ailerons, rudder, and stabilizer is done; ventral fin and tail cone are fitted and installed; floor-board installations completed; and the inspection procedure is then repeated. Short and long body planes are manufactured, and the length of the body determines the size of the crews assigned in fuselage mate, 6 to 8 per group leader for short bodies, and 7 to 10 for long bodies. There are four to six members in a crew in laydown. Crewmembers are shifted about frequently depending on production needs and qualifica- tions. Much of the testimony about the authority and responsi- bility of these two group leaders is in sharp dispute. 1-have given it all the thoughtful consideration demanded by the realization that the reinstatement and backpay of all the strikers depends to a large extent on how this issue is resolved. I have concluded that Haines had no direct knowledge of Buentello's and Salazar's duties and authori- ty, but based his testimony solely on the job description and his surface observation of-group leaders generally. More- over, I do not credit entirely either Foreman Placa, on the one hand, or Buentello, Salazar, and Camacho, on the other. Without-ruling on all indicia of supervisory authority concerning which conflicting evidence was received, the following factual findings are based on the comparative persuasive force of the testimony in light of the probabilities on the record as a whole. Thus, I find, as Placa and Buentello testified, that the two group, leaders spent about 50 percent of their time working alongside their crewmembers. I also find that they spent the other 50 percent of their time as follows: Based essentially on Placa's testimony, I find that he received weekly and daily time schedules on the planes moved into the department, and met regularly with the group leaders and discussed the schedules and worked out the assignments of crewmembers with them, the group leaders determining the makeup of crews subject to any changes Placa might make because he did not consider a crewmember qualified- to do the work to which assigned. I also find that these group leaders directed the work of their crews. Thus, Foreman -Placa persuasively testified that he was acquainted with the qualifications of the employees in-his department, including what each can do, but he could not supervise the work of 22 to 24 employees in all the tasks they performed and he relied on his group leaders to supervise their work, maintain the workflow, coordinate the 8 1 do not credit Buentello's testimony that the statement to this effect which appears in his prehearing affidavit in the present tense was meant to apply only to the period before his deactivation. 9 Because the signing of the logbook and the initiation of MRB action appear to be of such importance to the quality of the work performed, I discredit Buentello and Salazar that all employees had the same authority in this respect, and credit Placa that only the group leaders and foremen had such authority. efforts of their crewmembers, record time and production data, and check out the fixtures, tools, and materials. Buentello's statement affirmed that he spent 50 percent of his time directing employees as to what type of work needed to be done to- accomplish the production schedules as set by the foreman, showing employees how certain tools were to be used, and indicating the correct procedures to be undertaken.8 - Buentello and Salazar also visually inspected completed work and either signed the logbook indicating that the work was ready for the attention of the inspection department; or initiated MRB (Material Review Board) action, indicating that a major mistake had been made and requesting the inspection department to call in the engineering depart- ment to prescribe the corrective steps to be taken, and thereafter signed the logbook certifying that the corrected work was ready for inspection.9 It is also clear that these group leaders shared with Places the authority to approve employees' timecards, a prerequi- site for their being paid. I credit Placa that he relied on the group leaders to train probationary employees or assign them to an experienced employee for training, and to give him their evaluation as to whether probationers should be retained and if so. at what grade level, discrediting as improbable Buentello's assertion that all new employees "were supposed to be experienced." In addition, Placa's testimony that he relied on the recommendations of the group leaders in selecting employ- ees for layoff and discipline found support in Salazar's concession that he discussed with Placa employees who were excessively absent, and recommended-that they not be fired yet, and that they were not fired, and on another occasion Placa asked his opinion as to who should be selected for layoff although Salazar could not recall the result. The credible evidence also shows that Director of Employee Relations Haines included Salazar in a Septem- ber 1974 briefing to the effect that as supervisors group leaders were not allowed to participate in or interfere with employee activities in connection with the forthcoming November 1974 Board election; and Foreman Placa cautioned both Salazar and Buentello, about 3 weeks before the -August 25 walkout when they asked him to meet with his employees and hear their complaints, that they were supervisors and must remain neutral in such mat- ters.i0 In the spring of 1975 Salazar and Buentello attended college level management courses at company expense; although they did not wear a coat and tie or sit at a desk as Places did, they wore distinctive identification badges different from those worn by rank-and-file employees and similar to those worn byforemen and superintendents; and they were assigned planned reserved parking spaces, as were other group leaders, foremen, and superintendents, but not rank-and-file employees. 10 There was no direct denial of Placa's testimony to this effect I cannot credit the testimony of Salazar and Buentello that in response to a question they put to Placa during the summer of 1975 he told them they were not actually supervisors but were merely working group leaders. This testimony was denied by Placa, was inconsistent with other facts found, and Salazar and Buentello were unable to satisfactorily explain their failure to mention this alleged incident in their preheating affidavits. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the Charging -Party, Rojelio Ordaz, credibly testified that Buentello and Salazar told him shortly before August 25 they knew, they would be fired if they participat- ed in the walkout as they were not supposed to get involved because of their positions as group leaders.'1 Without challenging the supervisory status of the group leaders generally, the General Counsel insists that these two particular group leaders were not permitted by their foreman, Ray Placa, to exercise any of the indicia of supervisory authority. Placa certainly came through as a strong, knowledgeable, and efficient foreman. Nevertheless, the facts recited above show that his group leaders. spent only 50 percent of their time engaged in production work. The remainder of their time was regularly spent in effectively_ recommending assignments, certifying time worked for pay purposes, and directing the work of crewmembers. In view of the variety, complexity, and preciseness of the functions performed in the, department, direction of the work so as to maintain quality and flow to meet time targets cannot be found to be merely routine nor the group leaders', role merely that of conduits or messen- gers, as in the cases cited by the General Counsel. I therefore fmd that the direction provided by the group leaders was responsible direction requiring the exercise of independent judgment.,As Buentello and'Salazar also made effective recommendations as to selection for layoff, discipline, and retention of probationary employees, re- ceived higher pay than their crewmembers, and that they were treated as, and were aware that management consid- ered them to be, supervisors, I find that Buentello and Salazar were supervisors within the meaning of Section 2(11) of the Act.12 D. Conclusions 1. The complaint alleges that on August 25 Director of Employment Relations Thomas Haines violated Section 8(a)(1) by refusing to allow the Charging Party, Rojeho Ordaz, to present grievances on behalf of himself and other employees and have them adjusted: I have found, however, based on Ordaz' testimony, that Haines did not refuse to listen to the complaints voiced by Ordaz as the spokesman for the group of employees who subsequently chose to walk out concertedly in their meeting on that date. But even if Haines had so refused, I am aware of no authority for concluding that such conduct would have violated the Act. Hugh H. Wilson Corporation v. N.LRB., 414 F.2d 1345 (C.A. 3, 1969), cited by the General Counsel, affirms the right of Ordaz and the other employees involved herein to band together for the purpose of presenting their comp- laints concerning wages and grievance procedures, and the protection afforded them by Section 7 of the Act against retaliation by the Respondent for engaging in such concert- ed activity for their mutual aid or protection. In Textile Machine Works, Inc., et al., 96 NLRB 1333, 1360 (1951), also cited by the General Counsel, the Board held that the employer could not retaliate against an employee for refusing its order that he act as the representative of grieving employees where he and they did not wish it and there was no contract obligation to that effect. But in neither of these cases, nor in any other case I know of, has it been held violative of Section 8(axl) for an employer to refuse to entertain and adjust grievances in circumstances such as those present here where there is no collective- bargaining agreement with an exclusive representative of employees in an appropriate unit requiring it to do so. Accordingly, I conclude that this allegation must be dismissed. 2. The complaint alleges in effect that foreman and admitted agent Jesse Arzola threatened employees with discharge if they should strike in protest of their wages, hours, or working conditions. As found above, based on the undisputed testimony of nonstrikers Henry Guerrero and Frank Martinez, Foreman Arzola called his employees together in two groups on the afternoon of August 25 and announced that those who had walked out were terminated and anybody else who did so would be fired. Those announcements constituted infringements on the employ- ees' right to engage in protected concerted activity and, I conclude, were clear violations of Section 8(a)(1) of the Act.13 3. The complaint alleges that the Respondent dis- charged the strikers in violation of Section 8(a)(1). The Respondent contends that none of the strikers except Group Leaders Buentello and Salazar were actually dis- charged. I agree with the Respondent to the extent that its termination of Buentello and Salazar, found above to have been supervisors, for engaging in the walkout was not a violation of the Act which does not protect such conduct by supervisors, and I conclude that the allegation with respect to them should be dismissed.14 Whether or not the remaining employee strikers were actually discharged, the Respondent's conduct, described in its own words as a "tactical maneuver" to prevent the spread of the strike,, in leaking the word through its supervisors and management personnel to its employees that the strikers were discharged, and in Haines' telling strikers Perez, Sierra, and Villarreal they were discharged and telling Ordaz that all the strikers were discharged, as found above, was, without more, unlawful interference with employees' right to engage in concerted activity and violative of Section 8(a)(1).15 Moreover, I agree with the General Counsel that the evidence justifies the inference that the strikers were, in fact, discharged. Although Haines testified to the contrary, I have found him not to be a credible witness. Moreover, I have found that Haines told 11 1 do not credit Buentello's self-serving version to the effect that he told Ordaz his position as group leader would bring about his termination as the instigator of the walkout. Ordaz' version was not controverted by Salazar. 12 See Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. N.LRB., 532 F.2d 47 (C.A. 7, 1976); Weather-Shield Corporation, 222 NLRB 1171 (1976); Hermet, Inc, 222 NLRB 29 (1976); Schultz, Snyder & Steele Lumber Company, 198 NLRB 431(1972); Milford Fabricating Company, Inc., 193 NLRB 1012 (1971). 13 Matlock Truck Body & Trailer Corp., 217 NLRB 346 (1975). 14 See NLRB. v. Big Three Welding Equipment Company, 359 F.2d 77 (C.A. 5,1966); Oil City Brass Works v. N.L.R.B., 357 F.2d 466 (C A 5, 1966). 15 Shopmen's Local Union No. 733, International Association of Bridge, Structural and Ornamental Iron Workers, A FL [Kerrigan Iron Works, Inc I v. N.LRB., 219 F.2d 874 (C.A. 6, 1955); Maxville Stone Company, 166 NLRB 888 (1967) SWEARINGEN AVIATION CORPORATION 237 three strikers individually they were terminated, and told Ordaz all the strikers were terminated.16 The most common way of proving a discharge is the presentation of testimony that an employee was told by someone with authority that he was discharged. Here, the evidence indicates that the employees affected took Haines at his word and considered themselves discharged, as Ordaz told television reporter Branson (and as Branson understood and broadcasted). Haines never disavowed these statements, and as none of his conduct thereafter was inconsistent with them,17 I, too, take him at his word, as credibly repeated by the General Counsel's witnesses, and find that he discharged the strikers because they struck, as he said, and conclude that he thereby violated Section 8(a)(l) of the Act as alleged in the complaint,18 and converted the strike into an unfair labor practice strike.19 4. The complaint alleges that the strikers offered unconditionally to return to work and the Respondent refused to reinstate them. The Respondent contends such an offer was never made. It is well established that strikers, whether economic, discharged, or unfair labor practice strikers, are entitled to reinstatement only upon their unconditional application.20 I find that Joe Sierra and Joe Perez applied unconditionally for reinstatement on August 25, and that the Respondent violated Section 8(a)(1) by refusing their offers because they had joined the strike 2i I further find that the offers of the remaining strikers were made by and through Rojelio Ordaz, who was their designated spokesman and represen- tative from and after August 21 for the purposes of presenting their grievances to management and for purpos- es of offering to return to work.22 Moreover, Ordaz informed Foreman Placa,- Superintendent Richards, and Director of Employment Relations Haines on August 25 of this representative status. At the end of the interview with Haines, Ordaz' statement that "there are things that might happen down there-that I would like to prevent, but so far I feet you haven't told me anything to tell the people," clearly put Haines on notice of the possibility of strike action, and, when the walkout occurred almost immediately thereafter, of the nature of the dispute, the strike, and the leadership status of Ordaz.23 When Haines thereafter on August 26 refused to recognize Ordaz as spokesman, and on Septem- ber 2, after admittedly knowing that Ordaz had spoken for the, strikers on television, conditioned meeting with Ordaz "to talk about getting these people's job back" on Ordaz' 16 Although this conduct certainly exceeded Englebach's order that Haines merely let the word leak out that the strikers were discharged , Haines also did not replace the strikers as Englebach purportedly told him to do. 17 Hanley Dawson Chevrolet, Inc., 168 NLRB 944 (1967), and other cases cited by the Respondent are not applicable on this point, as factors such as disavowal letters to purportedly discharged employees, relied on in those cases to find no intent to discharge , are not present here 18 Crenlo, Division of GF Business Equipment, Inc v N.L.R B, 529 F.2d 201 (CA. 8, 1976). 19 Winn-Dixie Atlanta, Inc., 207 NLRB 290 (1973 ); Astro Electronics, Inc, 188 NLRB 572 (1971). 20 N.L.R B. v. International Van Lines, 409 U S. 48 (1972), Larand Leisurelies, Inc., 222 NLRB 838 (1976); Winn-Dixie of Atlanta, Inc, supra, Astro Electronics, Inc., supra The General Counsel does not contend and the evidence does not establish that it would have been futile for the strikers in this case to apply for reinstatement . Cf Valley Oil Co., Inc, 210 NLRB 370 (1974). 21 I find that Pete Villarreal did not make an unconditional offer during his interview with Haines on the same day bringing documentary evidence of Ordaz' representative status, Haines was merely trying to "hide behind [his I own self-constructed wall of obstinance," a technique which the Board has said cannot succeed "Under a statute requiring cooperative attitudes-to achieve industrial peace ... 1124 as the General Counsel contends. Nevertheless, I have found that there existed an agree- ment among the strikers from the beginning that they would return to work on an all-or-none basis.' Ordaz' attempts to offer the return of the strikers, and the offer he made to Haines on September 2, were made on that basis, including the return of Buentello and Salazar. As I have found that these two group leaders were supervisors, the Respondent was not legally compelled to reinstate them, and all such attempts and offers were therefore -not unconditional.25 That impediment was removed when Haines and Ordaz met again and-finally on September 3. If Ordaz intended, and conveyed, an unconditional offer on that day, there- fore, the strikers are home safe. The only offer he made that day, however, was backdated to August26. Thus, he"began the meeting by extending a document containing a written request that the Respondent "Reinstate the Strikers uncoil- ditionally, immediately as I proposed 8/27/75," explaining forthwith that the date intended was August 26. I agree with the Respondent that this offer was conditional on the Respondent's acknowledgment that an unconditional offer had been made on August 26, and that the Respondent was not legally required to accept it. Moreover, even though Haines expressed his willingness to accept Ordaz' offer if he would change the date to September 3, Ordaz clearly indicated he was not authorized by the strikers to do that. I therefore find that these strikers never made an uncondi- tional offer to return to work,26 and that the allegation that the Respondent violated the Act by refusing to accept such an offer should be dismissed as to all strikers except Joe Sierra and Joe Perez. M. REMEDY In order to effectuate the policies of the Act, I recom- mend that the Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action. In view of the nature of the unfair labor practices, the Respondent will be ordered to cease and desist from infringing in any manner on its employees' 22 Phaostron Instrument and Electronic Company, 146 NLRB 996 (1964), enfd 344 F.2d 855 (C.A. 9, 1965). 23 Haines' implication that Moses Garcia, when he visited Haines' office on the morning of August 26 "to talk about the people that walked out" was claiming to be the spokesman of the strikers is without ment. Garcia was not a striker, and he made no such claim. 24 The Barnsider, Inc., 195 NLRB 754, 764 (1972). See also N L R.B v. Regal Aluminum, Inc, 436 F.2d 525 (C.A. 7,197 1); Richard L Cannady and Jane Cannady d/b/a Bob White Target Company, Division of Cannady Supply Co., 189 NLRB 913, 923 (1971), and Phaostron Instrument and Electronic Company, supra. 25 Cf. American Optical Company, 138 NLRB 681, 682 (1962); Tex-Tuft Products, Inc., 138 NLRB 628 (1962). Okla-Inn d/b/a Holiday Inn of Henryetta, 198 NLRB 410 (1972), where the mere inclusion of the name of an ineligible employee on the list of strikers wishing to return was held not to render their offer conditional, is clearly inapposite. 26 See cases cited in fn. 25 above. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed by the Act. N.L.R.B. v. Entwistle Manu- facturing Co., 120 F.2d 532 (C.A. 4, 1941). Although there is some indication that all the strikers who were unlawfully discharged have returned to work, this matter is not clearly established in the record. I shall therefore recommend the remedy usual to such cases as this, to be carried out by the Respondent to the extent it has not already done so. Joe Sierra and Joe Perez having unconditionally offered to return to work, the Respondent will reinstate them immediately with backpay from August 26, 1975, until their reinstatement. The Respondent will notify the remaining strikers whose names are listed in footnote 2 of this Decision immediately that each will be reinstated upon making proper application and their backpay" shall commence 5 days following such uncondi- tional applications. All reinstatements shall be to the jobs formerly held or, if such jobs no longer exist, to substantial- ly equivalent jobs, without prejudice to seniority or other rights and privileges, dismissing if necessary persons hired since proper applications are made. All backpay will be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER27 The Respondent, Swearingen Aviation Corporation,' San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge, or discharging, employees because they engage in protected concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in their exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Reinstate immediately Joe Sierra and Joe Perez; and, upon their unconditional application, offer to the below- named employees immediate and full reinstatement, and make them whole in the manner set forth in the Remedy section of this Decision. Armand Arguello Vlademar Camacho Manuel Enriquez, Jr. Clifton Gonzales J.L. Gonzales Joe O. Guitierrez Jesse Maldonado Celestino Martinez Edward Mendiola Jim Morris Jesus Nieto Rojelio Ordaz Roy Parkman Merrill Parsons Willie Mae Patterson Barry Patton Joe Salazar Mario Soria John Valdez Pete Villarreal (b) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll and social security payment records, timecards, personnel records and reports, and all other records necessary . to analyze the amount of backpay due. (c) Post at its plant in San Antonio, Texas, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Director of Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found herein. 27 In the event no exceptions are, filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. 28 In the event that the Board's Order is enforced by a Judgment of a Uruted States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "