Murray Products, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murray Products, Inc. and Orange County District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 21-CA-13901 February 17, 1977 DECISION AND ORDER On May 14, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-exceptions and a supporting brief. 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 his recommended Order, as modified herein.' 1. We find merit in the General Counsel's conten- tion that the discriminatees herein are entitled to backpay beginning with the date of the discrimina- tion against them. As we stated in Eagle International, Inc., 223 NLRB 29 (1976): "In cases where strikers have offered to return to work, and an employer has unlawfully denied them reinstatement, or where application would have been futile, backpay, typical- ly, is ordered from the date of application or abandonment of the strike." Such is the case here. The discrimination against nine of the discriminatees occurred when, as strikers, they applied for reinstate- ment to which they were entitled but Respondent refused to honor its reinstatement obligation. Except for Chavez, therefore, the backpay period for the discriminatees begins on August 4, 1975. In accor- dance with the Administrative Law Judge's finding that Chavez, who had the least seniority, was not improperly rejected by Respondent until August 6, 1975, we shall begin his backpay on that date. 2. We agree with the Administrative Law Judge that the Respondent's refusal to reinstate on August 4 the nine strikers involved herein was discriminatory. However, we cannot agree that, under the circum- stances of this case, the Respondent's offers of reinstatement were valid and sufficient to toll the backpay liability. Briefly, on August 4, after over 2 weeks of strike activity, 11 strikers,2 with employee Robert Bennett as their spokesman, offered unconditionally to return I In par. 1(c) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad mjuctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(ax3) discrimination conduct. See N.LR.B v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C A 4, 1941), Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the recommended Order to require the Respondent to cease and desist from in any other manner infringing upon employee rights. This change is also made in the revised notice. to work. The strikers were told by Kenneth Murray, secretary-treasurer and part owner of the Respon- dent, that their jobs had been filled and there were no positions available. However, based on the Adminis- trative Law Judge's finding that the Respondent had actually hired only one permanent replacement by August 4, we have found that the Respondent unlawfully denied reinstatement to the strikers.3 It is against this backdrop of the Respondent's unlawful and discriminatory acts that the offers of reinstate- ment must be evaluated. On August 6, 2 days later, the Respondent em- barked on a series of employment offers to the striking employees. Again, though the Respondent had 10 vacancies, it informed individual strikers that it had "an opening" and was seeking 1 employee for that position. In regard to the six discriminatees who were approached by the Murrays while picketing, it is clear that Respondent expected an immediate answer to its offer of reinstatement. The Board has long held that a discriminatee, on receiving an offer of reinstatement, has a "fundamen- tal right to a reasonable time to consider whether to return." Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting and Supply Corp., 216 NLRB 734 (1975). There is no per se rule as to the period of time that will constitute reasonable notice to the discriminatee.4 Rather, the Board examines the factual circumstances of the particular case to deter- mine what constitutes a reasonable time. In this case, we think it clear that the Respondent did not accord the discriminatees a reasonable time in which to decide whether to accept the offer to return to work. It would seem evident that the Board always allows some amount of time for an employee to deliberate as to the offer of reinstatement. In regard to an offer that demands the employee accept and return to work on the same day he receives it, the Board has stated: 5 That would, except in unusual circumstances, be an unreasonable condition to which we would not require strict compliance by the employee; nor would we find such an offer to have terminated the backpay period. 2 Strikers Rollins and Dillon are not involved as alleged discriminatees in this case. 3 As noted above, the discrimination against sinker Chavez did not occur until August 6. 4 In Penco, supra, the Board found "totally inadequate" an offer by an employer that would have required the discnminatee to inform the employer of his intentions on the day he received a letter offering reinstatement. S See Fredeman 's Calcasieu Locks Shipyard, Inc, 208 NLRB 839 (1974). 228 NLRB No. 33 MURRAY PRODUCTS, INC. 269 It is important to keep in mind that we are herein considering oral offers-at least in regard to six of the discriminatees 6 -that required immediate accep- tance. We certainly do not find "unusual circum- stances" warranting finding offers such as these to be valid. In examining offers of reinstatement, the Board has evaluated factors- such as a discriminatee's interim employment-in assessing what is a reasonable time to which to require his return to work. A significant factor to be evaluated in determining the amount of notice to be required is the acts of discrimination and their effect on the discriminatees. The Administrative Law Judge and our dissenting colleagues totally fail to deal with this circumstance in evaluating the offers of reinstatement. Here, the strikers on August 4 were unlawfully denied reinstatement. The Respondent, with a classic lack of candor and demonstrating its opposition to protected concerted activities, informed the discrimi- natees that they had been permanently replaced. Two days later and with 10 vacancies, the Respondent commenced a series of oral offers of reinstatement, all of which contemplated an immediate return to work. The fact that most of the strikers were on the picket line and apparently physically tble to return to work does not justify finding the offers of reinstatement to be valid. The Respondent's unlawful acts and its untruthful statements about vacancies created a situation which warranted allowing the discrimina- tees a reasonable time for serious evaluation of the offers of reinstatement. The strikers here were permit- ted absolutely no opportunity to evaluate their status and the Union's status in light of their having been previously informed that they had all been perma- nently replaced. Further, the Board's protection of employee rights through requiring valid offers of reinstatement to discriminatees is rendered meaning- less by putting the burden on the discriminatee-as 6 Strikers Robert Bennett, Donald Bennett, Patrick Mileham, Frank Moreno, Jesus Moreno, and Juan Chavez were approached while picketing. 7 In Harrah 's Club, 158 NLRB 758 (1966), the Board property held that requiring discriminatees to request extensions of reporting time would place an "undue and unwarranted burden upon the discnminatee to make a counterproposal." The Board added, "the reinstatement obligation properly rests with Respondent and is satisfied only by a valid and unconditional offer of reinstatement." 8 When the Respondent offered reinstatement to striker Donald Bennett, he replied that his blistered hands would prevent him from working. Displaying the spurious nature of its offers , the Respondent immediately informed Bennett that it "accepted" that reply as a "no." Under these circumstances, the Respondent's offer clearly did not toll backpay liability The Board normally requires employers to keep open offers of reinstatement for sufficient periods to allow an in employee to recover. See, e.g., Creutz Plating Corporation, 172 NLRB 1 ( 1968). Here, in light of the Respondent's informing Donald Bennett that his refusal to work with blistered hands constituted a "no" to returning to work, we cannot understand the Administrative Law Judge 's and our dissenting colleagues' rejection of backpay for Bennett. Bennett's failure to reapply later for work is hardly justification for denying him backpay. The Respondent' s statements to Bennett indicated that he must accept work immediately or not at all would our colleagues here-to request additional time to consider the offer.? In this case, the Respon- dent, apparently intent on obtaining rejections of its offers of reinstatement, scratched from its list the name of any discriminatee who was unwilling to immediately accept its oral offer of reinstatements In addition to its improper conduct in refusing to allow employees a reasonable time to accept the offers, the Respondent's misleading comments about the number of jobs available, and its "divide and conquer" tactics in engaging in this misconduct with each employee individually, seriatim and quickly, also show that the Respondent's offers of reinstate- ment were not made in good faith but were designed to prevent reinstatement. Such "offers" are not genuine, and cannot end the Respondent's backpay obligation. Thus, the oral offers made to the six picketing discriminatees, which contemplated accep- tance within a matter of seconds or minutes, were ineffective and did not toll backpay liability. We also find that the offers of reinstatement extended to discriminatees Schmitz,9 Corcoran, and Garcia (by telephone to Schmitz and Corcoran and by telegram to Garcia) were defective in that the offers were not kept open for reasonable periods of time. None of these three discriminatees was permit- ted a reasonable time, under the circumstances created by the Respondent's unlawful acts and lack of candor as to permanent replacements, to decide whether he wished to return to work. Accordingly, all offers to the nine discriminatees were invalid and all the discriminatees are entitled to backpay from the date of the discrimination against them until they received valid and legitimate offers of reinstatement in October 1975.10 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Thus, Bennett could reasonably assume that any future application for work would be futile In our judgment, placing the burden on Donald Bennett to reapply for work (or lose the right to backpay) would be totally unwarranted. The burden here rested with the Respondent to keep the offer open for a reasonable time to permit Bennett's hands to heal. We shall order backpay for Bennett, leaving to the compliance stage any reduction on backpay based on the time that Bennett was physically unable to work. 9 The offer made to Schmitz was remarkably similar to an offer found inadequate by the Board in National Tape Corporation, 187 NLRB 321 (1970). In that case, an employee, reporting for work on the next morning following the Employer's offer of reinstatement made by telephone, refused to work because of a picket line. On the same day, the employee received a telegram stating that he must report for work on that day or be permanently replaced. The Board found that the offer of reinstatement was "inadequate by its own terms since it was limited timewise to an unreasonably short period in that [the employee I was required to accept such offer on the very day it was received by him " 10 In October, seven of the discnminatees returned to work and one employee (Garcia) declined an offer to return Chavez was only a summer employee and therefore backpay for him would be tolled as of the end of summer 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Murray Products, Inc., Orange, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Make whole Robert Bennett, Donald Bennett, Patrick Mileham, Jerome Schmitz, Frank Moreno, Jesus Moreno, Mike Corcoran, and Silviano Garcia for any loss of earnings they may have suffered from August 4 and make whole Juan Chavez for any loss of earnings he may have suffered from August 6, all as a result of the discrimination against them as set out in this Decision." 2. In paragraph 1(b) delete the words "in any like or related manner" and in paragraph 1(c) substitute the words "in any other manner" for the words "in any like or related manner." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBERS PENELLO AND WALTHER, concurring in part and dissenting in part: Like the Administrative Law Judge we find that the backpay period in each instance terminated when the discriminatee was offered reinstatement, which he rejected, during the period August 7-12, 1975. Our colleagues would find that the offers of reinstatement made then were not valid because "Respondent did not accord the discriminatees a reasonable time in which to decide whether to accept the offer to return to work" In Fredeman's Calcasieu Locks Shipyard, Inc., 208 NLRB 839 (1974), which they cite, the Board noted that what constitutes a "reasonable time" will depend essentially on the situation in which an employee finds himself and, significantly, added: "Obviously, if there is no valid reason for his not being able to return to work at the fixed date, we will likely view that date as dispositive of the issue." In the case before us, as explained by the Administra- tive Law Judge, immediate tasks were awaiting each person approached with an offer of reinstatement; each offer, except for Donald Bennett's, was conve- niently susceptible to acceptance; no striker request- ed extra time to consider the offer or to adjust personal affairs or indicated in any way that he was not being given an adequate opportunity to evaluate the offer. Indeed, as concluded by the Administrative Law Judge, in deciding not to return to work, these discriminatees were influenced by apparent tactical or common policy front considerations causing most to choose continued picketing rather than abandon- ment of the strike. Thus, no time limitation imposed by Respondent for acceptance of any offer appears accountable for the discriminatees' rejection of em- ployment in August.ii Our colleagues question the good faith of the reinstatement offers made by Respondent. But the best evidence of whether the offers were made in good faith or were "genuine" would be Respondent's reaction to a striker's acceptance of its offer. There was only one striker who affirmatively responded to Respondent's request to return at the time it was made and that was Dillon. He was immediately put to work. There is not the slightest indication that any of the others would have been treated differently had he agreed to return when asked. Also persuasive of Respondent's willingness to reemploy strikers is the fact that strikers Walters and Cooksley (like Dillon, not discriminatees herein) were returned to work immediately upon their approaching Respondent and asking to be returned. And, later, when seven of the discriminatees decided to return to work and asked for reemployment, all were reemployed. 11 Contrary to our colleagues, this is especially true as to Schantz After a job offer was telephoned to him, he agreed to report to the plant but, upon arrival, refused to resume work because of the picketing As for Donald Bennett, he rejected the job offer because of blistered hands But there is no indication that his hands healed or that Bennett desired to return to work before he was reinstated on October 9 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to reinstate economic strikers who unconditionally offer to return to work before they have been permanently re- placed. WE WILL NOT discriminate against employees to encourage or discourage membership in Orange County District Council of Carpenters and Join- ers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights protected under the National Labor Relations Act. WE WILL make whole Robert Bennett, Donald Bennett, Patrick Mileham, Jerome Schmitz, Frank Moreno, Jesus Moreno, Mike Corcoran, and Silviano Garcia for their loss of wages from August 4 and WE WILL make whole Juan Chavez for his loss of earnings from August 6, all as a result of our discrimination against them. MURRAY PRODUCTS, INC. MURRAY PRODUCTS, INC. 271 DECISION STATEMENT OF THE CASE DAVID G . HEILBRUN, Administrative Law Judge: This case was heard at Los Angeles , California, on January 20 and 21 , 1976, based upon a charge filedI August 13 and complaint issued October 28 alleging that Murray Pro- ducts, Inc., herein called Respondent, violated Section 8(a)(1), (3), and (5) of the Act by threatening employees with discharge (and other reprisals) because they selected Orange County District Council of Carpenters, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, as their collective-bargaining representative and, if they continued to engage in protected concerted activities, by failing and refusing to reinstate certain striking employees who had unconditionally offered to return to work and by changing terms and conditions of employment through implementa- tion of a new policy regarding tardiness without prior notification to or bargaining with the Union. Upon the entire record in this case , including my observation of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation located in Orange, California, manufactures plastic laminated counter tops and bars. It annually sells goods valued in excess of $50,000 to customers in California, each of which annually sell and ship products valued in excess of $50,000 directly to their customers located outside California. I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES FACTS AND DISCUSSION Following certification of the Union in March, the parties bargained for an initial contract but reached impasse on July 16. The next day certain employees commenced an economic strike2 which continued until the events of August 4. That morning 11 strikers led by Robert Bennett sought out Kenneth Murray, secretary-treasurer and part owner of Respondent, and spoke with him in the plant I All dates and named months hereafter are in 1975, unless maicated otherwise. 2 This case concerns strikers Robert Bennett, Donald Bennett , Patrick Mileham, Jerome Schmitz, Frank Moreno, Jesus Moreno, Mike Corcoran, Silviano Garcia, and Juan Chavez (listed in order of seniority) 3 William Murray (brother of Kenneth), a vice president of Respondent, was present during this episode as were strikers Kevin Rollins and W. (Bill) Dillon. 4 A specific "increase in work load from our customers" had manifested itself by August 5; however, immediate need arose for one employee on August 6 because a router broke down. 5 The highest seniority striker, Kevin Rollins, was unavailable for work at the time due to an unhealed broken arm. kitchen.3 Robert Bennett stated the strikers were returning for their jobs, to which the Murrays replied that unfortu- nately these had been filled. With this the entire group of strikers left for the union hall. Late that morning Union Business Agents Irvin Osburn and Ernie Beltran (accompanied by Robert Bennett) appeared at Respondent's office and requested its presi- dent, Norman Murray (father of Kenneth and William), to supply a seniority list of employees. Norman Murray testified that Osburn acknowledged the purpose of this list was to bring strikers back to work as openings occurred. In contradiction Osburn testified that he declined to specify a reason for the request, stating only that he felt entitled to one and otherwise making no comment. The list was ready later that day as agreed but was not picked up by Osburn until the following morning. Strike activity resumed August 6. Based on increased production orders at that point in time, Kenneth Murray undertook a sequence of employment offers to strikers physically present as pickets or susceptible to home contact.4 Norman and Kenneth Murray approached strik- ers outside the plant and spoke first with Robert Bennett, saying, "we have an opening," which he declined on grounds of being the picket captain.5 Kenneth Murray advised aloud this was a "no" and lined Robert Bennett out on a list bearing employees' names with numbered seniority ranking. The Murrays then approached Dillon with the same offer. He caucused briefly with Robert Bennett, then put down his picket sign and went to work for the balance of the day.6 On both August 7 and 8, Respondent made further employment offers to strikers based on its upward business fluctuation. On August 7, Kenneth and William Murray approached Donald Bennett as he picketed, stating that they had an opening and needed him to come in and go to work. Donald Bennett displayed blistered hands, saying he could not because of them. Kenneth Murray "accepted" that reply as a "no" and continued making individual offers in seniority order. Mileham was contacted next and merited another "no" by refusing without stated reason.? Early on August 7 Schmitz was telephoned at home by Kenneth Murray. A plant job was offereds and Schmitz agreed to appear by 10 a.m. on August 8. Schmitz testified that in the telephone conversation (which he recalled as emanating from William Murray on August 9) he only agreed to talk about returning. He arrived as promised but would not resume work because picketing remained in progress. Schmitz was lined off the employee list since Respondent viewed him as going back on strike. Frank and Jesus Moreno were then approached by the Murray brothers and 6 Although scheduled for continued work, Dillon did not return to Respondent's employ thereafter. A further matter involving Dillon is evidence that Respondent transmitted a speed memo to the Union advising of his return "per our agreement with you." Norman Bashore, ordinarily the recipient of mail from Respondent as the Union's international representa- tive, denied ever seeing this communication. 7 Each instance of Respondent treating a striker's response as "no" also involved lining out that person's name on the pertinent list. 8 Schmitz had previously been Respondent's truckdnver On recommen- dation of Respondent's insurance carrier (based on Schnutz' driving record), Kenneth Murray withdrew the truckdriving job from consideration and instead described the immediately available position as one doing "other functions in the shop at the same rate of pay and seniority." 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered immediate return to work which each declined. On August 11, Kenneth Murray telephoned Corcoran at home with an offer of immediate employment which he declined unless everyone went back to work at the same time. Following this, Kenneth Murray made immediate efforts to contact Garcia by telephone. He was unsuccessful and on August 12 Respondent sent Garcia a telegram stating his "last chance" to report for work was 7 a.m. on August 14. Chavez was the person with least seniority ranking on the roster list involved in these recall activities . During'the course of unsuccessful efforts to contact Garcia on August 11, Chavez was approached by the Murray brothers and offered an immediate opening which he declined with reference to picketing then in progress. Respondent hired additional employees following com- mencement of the strike on July 17. During the time span July 18 - 31, Respondent hired (and each started to work) David Foust, Robert DeVito, Jr., Robert Koerner, and Rhae Foust. The first three named were advised by Kenneth Murray that their employment was temporary in the context of a labor dispute in progress and this was written on their applications above an acknowledging signature.9 Paul Harms was hired July 22 (to start July 25) for a "new position" in Respondent's upholstery depart- ment. Steven Sanford applied July 29 and was hired to start August 1; Timothy Wyatt applied and started August 1; while Chris Elliott applied August 1 and was hired to start August 6. In Sanford's case no "temporary" phraseology appears, while in Wyatt's case it does. As to Elliott the granting of employment was on a permanent basis consis- tent with policies of the rehabilitation program through which he was referred. Respondent's operations have three production areas: core makeup, form line, and flat finishing. It has followed a policy of assigning employees to different tasks within and between these functional areas for purposes of both crew flexibility and better morale. Ordinarily an employee could achieve a change in job duties upon request. Dan Dunn and Rick Simpson were, at material times, working leadmen in the flat finishing and form areas, respectively. This case involves interplay between principles applica- ble to rights of striking employees and the efficacy of reinstatement offers made for the purpose of fulfilling a reinstatement obligation plus the associated purpose of tolling backpay.10 On August 4 the 11 strikers commumcat- !i Outside this time span Steven Francis and Louis Taylor were hired July 15 and 16, respectively, and started work on July 18. Francis and Taylor each had the "temporary" notation added to their applications. 10 Ultimately in October the Bennetts, Morenos, Mileham, and Corcoran each returned to their former positions (although Corcoran voluntarily moved to core makeup), while Schmitz returned as a flat work employee since-still effectively disqualified from driving duties. General Counsel does not contend that Garcia or Chavez are currently entitled to reinstatement, in apparent reference to the former orally declining an offer to return about October and the latter only having been a summer employee. 11 Donald Bennett and Frank and Jesus Moreno recalled Robert Bennett's words expressing that "pickets [are /were I down" while Mileham, Corcoran , and Schmitz recalled use of the term "unconditional[ly]." Kenneth Murray testified that Robert Bennett said the signs were down and strikers wanted their Jobs back , to which his brother replied that openings did not exist at the time 12 Tex-Tuft Products, Inc, 134 NLRB 1628 (1961); American Optical Company, 138 NLRB 681 (1962); and Beaver Bros. Baking Co., Inc. d/b/a American Beauty Baking Co, 171 NLRB 700 (1968), are each factually ed unconditional offers to return to work through a spokesman.11 While Robert Bennett was coached to use the word "unconditional" in the course of planning for this confrontation, I doubt that he actually uttered it. However, what he did say was sufficiently clear, and should have been reasonably so understood under the circumstances, as a blanket reinstatement request made on behalf of each striker. No hint of qualification was embodied in this plain- spoken advice and Respondent is without valid basis to view this episode as a collective conditional offer to return only if all strikers present would be then reinstated.12 By August 4 Respondent had only secured one perma- nent strike replacement. This was Elliott to whom such a course of employment was committed within the doctrine of H. & F. Binch Co., 188 NLRB 720,723 (1973). None of the other nine persons starting work prior to August 4 did so under circumstances establishing them to be permanent strike replacements. Francis and Taylor were each hired prior to the strike, and logical consistency in applying the "commitment" principle of Binch requires the conclusion that these two could not have been replacements for persons not yet on strike at the time of their hire. Additionally, both were expressly advised that their posi- tions were temporary in the context of a labor dispute and otherwise "summer-only" employees. David Foust, Koer- ner, and DeVito were each similarly so advised, and upon such a showing none qualified as a permanent strike replacement. Harms was hired for a new position, which by definition means he did not replace any striker. This leaves for consideration Rhae Foust, Sanford, and Wyatt. They started on either July 31 or August 1; a point in time at which Kenneth Murray felt the Union's "change in attitude" relative to bargaining impasse made it "apparent that there would be no agreement." Influenced by this perception he considered that persons hired beyond a "time frame" ending no later than August 1 were employed unconditionally. This explanation fails to establish that Rhae Foust, Sanford, and Wyatt were permanent strike replacements. Resolution of this point turns on the intrinsic nature of newly created employment relationships, not conjecture by the employer as to whether, and when, a bargaining impasse would dissolve. Furthermore, the inconsistency and vagueness of Kenneth Murray's testimo- distinguishable . Also the claim that strikers were linking this group offer to bargaining demands is without foundation. No evidence of such condition existing on August 4 was advanced and the only contrary implication appears in Mileham's response to an individual reinstatement offer on August 7. On the basic issue of conditionality, I am satisfied that Corcoran is mistaken in his understanding of the offer as made on August 4. Alternative contentions by Respondent are equally unpersuasive. Given the unstruc- tured nature of plant operations and ease of employee interchange, there is no basis to examine the claim that "production [level] was down" either in terms of suspected strategy motivating the August 4 offer(s) or that tasks were not "immediately" available for the strikers as a whole . On the latter point Colour IV Corporation, 202 NLRB 44 (1973), is not germane since there the striker lacked qualifications legitimately expected for available work Neither does the expression of a plural offer to return necessarily make the communication conditional. Downtowner ofShreveport, Inc., 175 NLRB 1106 (1969), Okla-Imt, d/b/a Holiday Inn of Henryettta, 198 NLRB 410 (1972). Finally, the obvious disability of Rollins may be argued to be an offsetting factor to Elliott's employment, thus legitimatizing even a collective offer for the remaining 10 strikers. MURRAY PRODUCTS, INC. ny in this regard leaves Respondent's contentions without convincing evidentiary support.13 By reason of Elliott being the only permanently em- ployed strike replacement, 10 of the persons extending the unconditional return to work offer on August 4 were entitled to immediate reinstatement , and Respondent's failure to accord this amounted to unlawful discrimina- tion.14 The nature of resumed picketing on August 6 is immaterial to further resolutions in this case, other than as general context for the series of reinstatement offers made (for the most part) during the balance of that week at the actual site of picketing immediately outside the plant.15 How was the discriminatee status of these 11 persons (including Chavez) affected by consecutive offers during August 7-12? Most doctrine relating to efficacy of rein- statement offers deals with the written variety . Ordinarily a letter is at issue with respect to time and manner of its dispatch, circumstances of its receipt (actual or construc- tive), stated reporting date, requested "advise" date (if any), and such other features or alternatives whereby overall reasonableness of the offer may be judged. A personally communicated, at-site, verbal offer (based on contempora- neous "legitimate and substantial business justification") involves radically different dynamics. First is the question whether an offer was actually voiced . Here the Murrays spoke directly and unequivocally of customary production work waiting to be done .16 Second is the question whether the former (or substantially equivalent) position is con- templated by the offer. Given the work area interchange and common skill level of production tasks that obtained, the offers were adequate from this standpoint (including the justified variation respecting Schmitz). Cf. Trinity Valley Iron and Steel Company, A Division of C. C. Grin Manufac- turing Company, Inc., 158 NLRB 890, 901 (1966); Best Industrial Uniform Supply Company Inc., 210 NLRB 300 (1974). Third, and more complex, is the question whether a reasonable opportunity to consider the offer is accorded by its apparent terms. I am mindful of the many decisions in which too short a period of time is present and the offer lacks validity for such reason . See Harrah's Club, 158 NLRB 758 (1966); Portage Plastics Company, 163 NLRB 753 (1967); Collins Mining, supra at 241 , 250; National Tape 13 Most telling is the fact that Wyatt's application bears the "temporary" notation although he did not even apply until August 1, while the absence of this same entry on Rhae Foust's application may have been "an oversight. " Kenneth Murray first described Francis as a "permanent" hire but later conceded that he, "among others," was only employed seasonally. Finally, he fixes July 23 as the date on which a bargaining meeting produced "air [of a] wrong direction" in union dealings, yet, upon questioning concerning Sanford, could only respond that he might be one of a "few exceptions" to the conditional strike replacements occurring in "that period of time." 14 While a seniority roster was not formally agreed to by the Union, one was used by Respondent to determine the order of reemployment offers. Cf. United Aircraft Corporation (Pratt and Whitney Division ), 192 NLRB 382 (1971) Since the Union itself requested preparation of a seniority list on August 4 (without conceding its applicability to any recall actions Respon- dent might take), no better basis than actual seniority standing is present to determine which one person among the August 4 group was affected by Elliott's displacement . See Fire Alert Company, 223 NLRB 129 (1976), in which the "well established" grounds for so viewing seniority are noted. Accordingly, I exclude Chavez from the finding of discrimination on August 4. Cf C. E. Collins et at d/b/a Collins Mining Company, 177 NLRB 221 at 229 (1969). Since Robert Bennett declined reinstatement on August 6 and Dillon worked only for that day, it is amply clear that on August 6 the number of unrestored strikers had reduced to no more than 10, while an 273 Corporation, 187 NLRB 321, 325 (1970); Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting and Supply Corp., 216 NLRB 734 (1975). Also, there are cases in which unique circumstances impelled the Board to adopt the notion that an arguably ineffective reinstatement offer does not oblige an individual to abandon concerted activity being engaged in at the time (Leprino Cheese Co., d/b/a Leprino Cheese Mfg. Co., 170 NLRB 601 (1986)) and to hold that an indirectly communicated offer "only set the stage for . . . confusion" (Rafaire Refrigeration Corp., 207 NLRB 523 (1973)). More applicable rationale, however, is found in Fredeman's Calcasieu Locks Shipyard Inc., 208 NLRB 839 (1974). Here the Board summarized major principles relating to reinstatement rights and backpay cutoff dates. Fredeman's expressly contemplates that "unusual situa- tions" might require acceptance of a return-to-work offer on the same day it is received: This can only mean a circumstance where no particular impediment of personal readiness or prior commitment prevents the offeree's prompt conversion from a withholder to a provider of services. Contrary to General Counsel , I believe that "under the circumstances each offer was conveniently susceptible to acceptance (other than by Donald Bennett). Immediate tasks were awaiting each person approached and none requested extra time to consider the offer or adjust personal affairs. Any striker of such a mind could readily have emulated Dillon by accepting the offered employment. The Board has identified "reasonable time to consider whether to return to Respondent's employ, how they were to get there, and what they were likely to face upon arriving there" as factors to weigh in determining the, stringencies relative to expecting hasty return to work by claimants. Southern Household Products Company, Inc., 203 NLRB 881 (1973). Here the showing is one of persons physically present or available nearby (except Garcia), fully capable of work resumption (except Donald Bennett), and influ- enced by apparent tactical choice or common policy front causing most to choose continued general picketing rather than summarily abandoning the strike. Accordingly, the identical number of unreplaced positions were still available. Chavez' unconditional offer to return on August 4 is deemed a continuing one within the doctrine of The Latdlaw Corporation, 171 NLRB 1366(1968); therefore, Respondent's inaction with respect to Chavez on August 6 constitutes a separate discriminatory act (of omission) and gives rise to a backpay period for him commencing 2 days later than that of his companions. This separate qualification follows as to Chavez even though Rollins was temporarily physically disabled as of August 4, because a single strike replacement had actually occurred and Laidlaw requires preservation of status quo until some significant change in circumstance. 15 The requisite "causal relationship" necessary to convert this strike to one in protest of unfair labor practices is not present. See Harcourt and Company, Inc., 98 NLRB 892,909 (1952). No change in picket sign legend or other indication of prolongation relating to unfair labor practices is shown. Cf. Montgomery Word & Co., Incorporate4 202 NLRB 593, 613 (1973); The Masonic and Eastern Star Home of the District of Columbia , 206 NLRB 789 (1973). The point is academic here, since by August 6 each discnminatee (including Chavez) had succeeded to rights superior to those of an unfair labor practice striker (thepresent right of reinstatement). 16 The Board has recognized the colloquial expression "in a hole" as a component of dialogue interpreted to reasonably express an adequate (and immediate) offer of reinstatement . Moro Motors Ltd., 216 NLRB 192 (1975). 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offers of August 7-12 were each valid in the cases of seven persons physically present or summonable by telephone.17 I find that evidence in support of complaint paragraphs 16-19 is insufficient to establish any violation, taken intrinsically as to each allegation or placed in context with other aspects of the case. In support of paragraph 10, Donald Bennett testified that, about 3 weeks after the mid- March election, Kenneth Murray called a meeting of employees and stated, "Me union's in now, and were going to go by union rules and this tardiness - the guys that were tardy will be canned. . . . [D]on't be surprised when it happens." No other employee so testified and, although not specifically contradicted by Kenneth Murray, the point in time of this utterance coincides with the earliest negotiating session on April 9. Given this relationship to the fledgling bargaining relationship, the utterance is as much a point of information as a threat of discharge and reprisal for selecting the Union. The subject "Hours of work" was a matter agreed to (no later than July 9) following the exchange of "numerous proposals and counter-proposals" during the preceding 2 months. I do not view Kenneth Murray's statement as a unilateral change in any tangible term or condition of employment's or, derivatively, as carrying the ominous tone of coercion necessary to estab- lish an 8(a)(1) violation. Donald Bennett also testified, in apparent reference to paragraph 16(a), that moments following the count of ballots on March 14 Kenneth Murray expressed a "pissed off" state of mind saying, ".. . the whole shop (crew) would change within a three-month period of time." Kenneth Murray denies this, recalling only being upset after the count and while hurrying to "recluse" himself calling "son of a bitch" toward a union representa- tive. The former utterance is wholly speculative in content without reasonably suggesting that Respondent harbored intent of achieving such an end; the latter utterance is merely an excited expletive. Neither version constitutes an 8(aXI) violation. Respecting paragraphs 18 and 19, there is substantial evidence that both Simpson and Dunn funs i7 Donald Bennett declined work by reason of demonstrably blistered hands. He was eventually reinstated to his former position October 9. Without further indication of his medical condition during the interval involved or showing that he advised Respondent prior to October 9 of a recovery, I find no basis to accord him backpay. In the case of Garcia he was not reached by telephone under circumstances not shown to involve fault on his part. In view of the terms of Respondent's telegram to him (which provided a reasonable time to report under all the circumstances ), the offer was effective as of August 14. See Eastern Die Company, 142 NLRB 601, 604 (1963) The Board customarily awards backpay to persons discharged while on strike beginning 5 days from the date of an unconditional offer to return. Arturo Transportation System, Inc., 166 NLRB 795 (1967); Roosevelt Roofing and Sheet Metal Works, Inc., 204 NLRB 671 (1973); H.S. Knitting Mills, Inc., 211 NLRB 355 (1974); BMW Autozentrum, 219 NLRB 98 (1975). Here the strikers were not discharged as evidenced by the October reinstatements, by advice to Bashore, by Chavez' admission he was so assured, and by the credibly voiced description of Respondent's officers that they neither had nor effectuated such a purpose Testimony of contrary implication from Mileham and Donald Bennett is discredited as personal misconception. The sequence of events, coupled with teachings of Laullaw, amounts to a situation in which these unreplaced strikers had standing generally similar to dischargees. Coincident with experiencing the rejection of their uncondition- al offers to return, a 5-day adjustment period should be deemed to begin. This approach harmonizes with Ramona's Mexican Food Products, Inc, 203 NLRB 663 (1973), in which the Board noted "the large number ofstrikers seeking reinstatement" and "consistent with ... past policy" of fashioning a 5-day hiatus before backpay starts to accrue. Here only Garcia's offer was effective outside the 5-day span and he is entitled to backpay for the 3 days of tioned as supervisors of Respondent during the August period involved. Each effectively assigned tasks to employ- ees and, assuming their role in employee transfers, work releases, suspensions, and discharges was purely routine, the former finding suffices to establish agency status. All that relates to their conduct is Jesus Moreno's testimony that he overheard remarks between them, seemingly directed for his benefit, that the picketing employees would never come back to work. Given Respondent's generally unobstructive response to the advent of the Union and essentially innocuous nature of this remark, I find it to be only idle conversation between two supervisors without threatening implication to any employee of ordinary prudence and understanding. Accordingly, I find that Respondent has not committed any of the independent 8(axl) violations alleged in the complaint.19 CONCLUSIONS OF LAW 1. Respondent, by refusing to reinstate economic strik- ers who unconditionally offered to return to work and had not been permanently replaced, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any respect other than as specifically found. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 20 The Respondent, Murray Products, Inc., Orange, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to reinstate economic strikers who uncondi- tionally offer to return to work and have not been permanently replaced. August 11-13. Corcoran was offered reemployment on the fifth day following his reinstatement request. This characterization obtains even upon a favorable count that includes Saturday, August 9, since it was a day of some overtime including that performed by higher seniority (relative to Corcoran) striker Chris Walters who had unexpectedly appeared to work on that date. Chavez, also offered reemployment on August 11, did not constructively apply unconditionally until August 6 and is thus without backpay entitlement Backpay to Garcia shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962) is Cf. Donald Walker et al., d/b/a Central Buying Service, 223 NLRB 542 (1976), in which, as appropriate here , the application of principles relating to "significant detriment" and "real change" shows an unsustained burden of proof. 19 Garcia and Chavez each testified that on July 17 Kenneth Murray spoke aloud in reference to the newly picketing employees that should they be walking by the driveway when a vehicle is coming out to "run them over- it's their tough shit." Chavez also testified that he was told by Simpson to call in sick as a prelude to reinstatement. The complaint makes no allegation reasonably associated to this testimony and I consider it matter not litigated during the hearing. No evidence was advanced recognizably supportive of pars. 16(b) or 17. 20 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. MURRAY PRODUCTS, INC. 275 (b) In any like or related manner discriminating against employees to encourage or discourage membership in a labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Make whole Silviano Garcia for any loss of earnings he may have suffered during August 11-13, inclusive, as a result of discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Orange, California, plant copies of the attached notice marked "Appendix."21 Copies of said notice, on forms to be provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained 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 Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, 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 in all other respects. 21 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board" shall read "Posted Pursuant