Vorpal Galleries

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael Muldoon Elder, d/b/a Vorpal Galleries and Lesley M. Flesch, Lilah Thayer Toland, Susan M. Elsass, Shiwa Kartso Harris, John W. Jaccard, Michael Terry Jones, Michael Mulcahy, Mariett Muller, Kathryn Burke, Lynn Kearcher, and Tho- mas L. Wing Wo, Jr. Cases 20-CA-11047-1 through -11 December 20, 1976 DECISION AND ORDER On June 17, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. 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. The Administrative Law Judge's recommended Order conditions the discharged strikers' right to reinstatement, upon application therefor,2 on their jobs not having been filled by permanent replace- ments prior to their applications for reinstatement. As the discharge of the strikers is found herein to have constituted a violation of Section 8(a)(1) of the Act, their reinstatement rights cannot be affected by the hiring of replacements subsequent to their discharge. N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972). We shall modify the recommended Order accordingly. We shall also require the Respondent to notify the discharged strikers immediately that each will be reinstated upon his making proper application therefor. Valley Oil Co., Inc., 210 NLRB 370 (1974). 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- 1 Contrary to the Administrative Law Judge 's finding that no effort was made to offer reinstatement to any of the 11 employees who were laid off except 1, there is evidence in the record indicating that some kind of offer of reinstatement was made to 2 others of the 11. We find it unnecessary to resolve this factual issue. 2 See Mid-West Paper Products Co., 223 NLRB 1367 (1976), and cases cited therein Our dissenting colleagues find unjustified solace in the fact that, in Mid-West Paper Products and other cases they cite, backpay has been awarded to discharged strikers from the date it is affirmatively shown that the strike ended and the discharged strikers either sought to return to work or showed that it would have been futile for them to have done so. In the absence of evidence of futility , the majority view has long been that the burden is on the strikers to apply for reinstatement, thus accounting for our colleagues' individual dissents in Mid-West Paper Products and in such cases as Valley Oil Co, Inc., 210 NLRB 370 (1974), and Astro Electronics, Inc, 188 NLRB 572 (1971). As was stated in the majority opinion in Astro Electronics, supra at 573, in which Member Fanning participated and Member Jenkins dissented. Employees who are discharged while on strike .. must indicate abandonment of the strike and a willingness to return to work, in order to establish their right to their jobs and resumption of wages unless there 227 NLRB No. 65 ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Michael Muldoon Elder, d/b/a Vorpal Galler- ies, San Francisco, California, his agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 2(a): "(a) Immediately notify Lesley M. Flesch, Lilah Thayer Toland, Susan M. Elsass, Shiwa Kartso Harris, John W. Jaccard, Michael Terry Jones, Michael Mulcahy, Mariett Muller, Kathryn Burke, Lynn Kearcher, and Thomas J. Wing Wo, Jr., that he has no objection to their reinstatement, and thereaf- ter, upon their unconditional application therefor, offer them reinstatement to their former jobs or, if such jobs are not available, to substantially equiva- lent jobs, and make them whole for any loss of pay they may have suffered by reason of their discharges in the manner set forth in the section entitled `The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBERS FANNING and JENKINS, dissenting in part: We dissent from the majority's conclusion that in the circumstances of this case the unlawfully dis- charged employees are not entitled to backpay until they request reinstatement. It is the obligation of the party who terminated the relationship to indicate the termination has ended. The essential shortcoming of our colleagues' deci- sion is that they treat the discharged employees here as economic strikers rather than as unlawfully discharged employees. Where a strike is not involved and an employee is unlawfully discharged, the employer is required to make a valid offer of reinstatement in order to toll backpay. An employer has no lesser obligation when, as here, the employees are unlawfully discharged during a lawful strike.3 The existence of the strike is no reason to shift the burden is a showing that such applications would be rejected, i.e., that it would have been futile. 3 Our colleagues' reliance on Mid-West Paper Products Co., 223 NLRB 1367, only confirms the point. The respondent in Mid-West was required to pay backpay from the end of the strike and to offer reinstatement to an unlawfully discharged striker who had not offered to return to the job from which he had been unlawfully discharged while on strike . There was no pretense that he would have supposed his job was available or that the employer, who bad already told him his services were no longer wanted or required by the act of discharge, only awaited some indication from the discharged striker before welcoming bun back. At least three of the cases cited therein, which the majority specifically relies on, hold that it is for the respondent to offer to return a wrongfully discharged striker to his job, not for that employee to seek out the employer who has thus wronged bun. Universal Services, Inc., and Associates, 184 NLRB 381 (1970), Sea View Industries, Inc., 127 NLRB 1402 ( 1960); and Buzza-Cardozo, 97 NLRB 1342 (1952). The majority's protest and contrary characterization of those VORPAL GALLERIES to the employees to establish that they are available for employment.4 In either case, the employer has unlawfully discharged employees and by such dis- charges has made it appear to them that they will not be taken back. Hence the burden of undoing the wrong must rest on the wrongdoer in either case. To hold otherwise permits an employer to undermine and inhibit a basic Section 7 -right, the right to strike. K, in fact, the victims of the unfair labor practices are not available because they are striking or for other reasons, that is a matter to be decided at the compliance stage of these proceedings. decisions, no matter how vehement, cannot alter what was said, held, or done there, one whit. 4 Respondent's own unlawful discharges make it impossible to ascertain whether the unlawfully discharged strikers would have continued to strike, or if so for how long, in theabsence of the unlawful action. Thus, any resulting uncertainty must be resolved against the Respondent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that I violated the National Labor Relations Act and has ordered me to post this notice. I intend to carry out the Order of the Board, the judgment of any court, and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through represen- tatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. I WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights guaran- teed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of the Act, by discharging my employees for engaging in concerted activities for the purpose of their mutual aid or protection. I WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them by'Section 7 of the Act. I WILL immediately notify Lesley M. Flesch, Lilah Thayer Toland, Susan M. Elsass, Shiwa Kartso Harris, John W. Jaccard, Michael Terry Jones, Michael Mulcahy, Mariett Muller, Kathryn Burke, Lynn Kearcher, and Thomas J. Wing Wo, 447 Jr., that I have no objection to their reinstatement, and thereafter, upon their unconditional applica- tion for such, offer them reinstatement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges- I WILL make whole those strikers who are entitled to reinstatement for any loss of pay they may -suffer by, reason of my refusal, if any, to reinstate them in the manner set forth above. MICHEAL MULDOON ELDER, D/B/A VORPAL GALLERIES DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at San Francisco, California, on May 11, 1976.1 Charges were filed as follows: Lesley M. Flesch, Case 20-CA-11047-1, 1/27/76; Lilah Thayer Tolan, Case 20-CA-11047 2, 1/27/76; Susan M. Elsass, Case 20-CA- 11047-3, 1/28/76; Shiwa, Kartso Harris, Case 20-CA- 11047-4, 1/28/76; John W. Jaccard, Case 20-CA-11047-5, 1/28/76; Michael Terry Jones, Case 20-CA-11047-6, 1/28/76; Michael Mulcahy, Case 20-CA-11047-7, 1/28/76; Mariett Muller, Case 20-CA-11047-8, 1/28/76; Kathryn Burke, Case 20-CA-11047-9, 1/28/76; Lynn Kearcher, Case 20-CA-11047-10, 1/28/76; Thomas J. Wing Wo, Jr., Case 20-CA:-11047-11, 1/30/76. On March 5 the Regional Director for Region 20 of the National Labor Relations Board issued an order consolidating the aforesaid cases, and issued a consolidated complaint (complaint). The complaint alleges that Michael Muldoon Elder (Elder), d/b/a/ Vorpal Galleries, hereinafter referred to as Respondent, violated Section 8(a)(1) of the National Labor Relations Act, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed by General Counsel-and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a sole proprietorship, with an office and place of business in San Francisco, California, where he is engaged in the business of retail sales of prints and other art objects. During the past calendar year, in the course and conduct of its business operations, Respondent received gross revenues in excess of $500,000, and purchased and received directly from points outside the State of California goods valued in excess of $50,000. I All dates hereinafter are within 1976 unless stated to be otherwise 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ISSUE No labor organization is involved in this case. Respon- dent laid off or discharged the I I individuals named above, and the principal issue is whether they were laid off or discharged because of concerted activity protected by the Act, or because of Respondent's financial difficulties. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Elder is, and has been since he opened the first gallery in 1962, the owner of Vorpal Galleries. The first gallery was established in San Francisco (herein called the gallery), and others thereafter were established in Chicago, Laguna (California), and New York City. The galleries at New York and Laguna were established in January and July 1975, respectively According to Elder's testimony (summarized on this subject in this paragraph), the San Francisco gallery involved "absolute and utter privation" for the first year and a half. The salesmen and saleswomen then worked on sales commissions only; they received no salary. Beginning the third year of the gallery's existence, business began to improve. From then until the present there have been "a couple of fat years," but the financial situation of the gallery generally has been one of uncertainty. Almost from the beginning employees often have been paid late, from I day to several days. The gallery is not financed; Elder pays his employees "from the money that the business itself generated." Business began to drop about the middle of 1974, and 1975 was a poor business year. As frequently happened in the past, employees were paid late on many occasions in 1974 and about 13 times in 1975, from a few days to as much as 2 weeks. The employees became increasingly concerned by the late payments, and they held a meeting at the gallery in May 1975 to discuss the situation. Elder was present at request of the employees, and most of the employees named in the complaint attended. The problem of late payment of salaries was discussed, as was the desire of the employees for a health insurance plan. Elder said he would try to "regularize" the payroll if the employees would give him 60 days in which to solve the problem, and he said he saw no objection to providing a health insurance plan for the employees. Such a plan was initiated in July, with employees and Vorpal Galleries equally sharing the premi- um costs. The plan lapsed in January 1976 due to Respondent's not paying the premiums. The pay situation improved after the May meeting, and salary checks were received regularly in September and October. However, the December 15 salary checks were only partially paid on 2 Resp Exh 1 3 Resp Exh. 2 December 18 and were not fully paid until December 24. Salary due January 1 was not paid until January 16, 1976. The employees met on January 8 to discuss late payment of their salaries and to discuss a rumor they heard about the health insurance policy having lapsed. Elder had been in New York City since about the middle of 1975 and did not attend the employees' January meeting. Donn Downing (Downing), general manager of the gallery, and Barbara Gronbeck (Gronbeck), manager of the gallery, attended the meeting. Downing said there was no money for salaries, but that the situation would improve within 2 or 3 months. Downing said thought was being given to incorporation. He also showed the employees a letter from the insurance carrier (G.C. Ex. 2) confirming the rumor that the insurance policy had lapsed and acknowledged that the lapse was his fault. Gronbeck asked Downing about the effects if there were to be a work stoppage, and Downing left the meeting after remarking that he was part of management. Gronbeck later was asked to leave the meeting, which she did. The employees then elected spokesmen to act in that capacity on a rotating basis; Lilah Toland (Toland) was chosen as the first representative, a statement2 was agreed upon, and the following day Toland read it over the telephone to Elder, who still was in New York City. Elder said he would return the call, and the return call was made to Michael Mulcahy (Mulcahy) on January 10. Elder told Mulcahy that he only knew about the problem 2 days earlier; that the crisis was Downing's fault; that the employees would be paid as soon as sales were made; that an attempt would be made to have the health insurance policy reinstated; and that the situation apparently had reached the point at which the crucial question was who would quit rather than accept late salary checks. Elder said he would guarantee nothing. Lynn Kearcher (Kearcher) called Elder the following day to give him the group's response,3 and Mariett Muller (Muller) called Elder the day after Kearcher called.4 The employees met on January 14, at which time Elder's response 5 to Muller's call was given to the employees, together with partial payment of salaries due January 1. The employees decided to picket, and picketing com- menced January 15 .6 Nearly all employees participated, informational signs were carried, leaflets were distributed to passersby, and passersby were engaged in conversation about the problem. The picketing was peaceful and nonobstructive and continued until January 25. However, picketing was discontinued for I day on January 16, and I day on January 19, at Downing's request. On January 23 the employees involved herein were laid off for an indefinite period of time and were given checks postdated to January 26 for the remainder due to them as accrued salary and amounts due by reason of insurance premiums deducted from salary but not used for premium payments. No employee involved herein has been offered a job or rehired by Respondent (except one employee, discussed below). 4 Resp Exh 3. 5 G. C. Exh 3 6 The employees had stopped work and had gone on strike January 10 VORPAL GALLERIES B. Defense of Economic Necessity Respondent interposes several defensive matters, but principally relies on the contention that the employees were laid off because of the poor economic condition of the gallery, rather than because they struck and picketed. In support of this argument Elder testified: "except for a couple of fat years," the employees frequently have been paid late since the gallery was opened in 1962. Elder said his accountant, other dealers, friends, and a client-friend who is a business consultant have advised Elder "consis- tently" since "years before the strike" that he had too many employees and should lay some of them off. Elder said he and Downing talked some time prior to the stake about the possibility of layoffs, but no action was taken. The financial situation deteriorated rapidly and badly in late 1975 and early 1976, resulting in more late salary payments and, eventually, the strike of the employees. General Counsel's Exhibit 3 is a copy of the employees' ternunation notice, which recites Elder's contention that the staff would have to be trimmed because there were more employees than the gallery's revenue could support. Dowmng's testimony supported that of Elder. Downing stated that the gallery's income could not support the number of people on the payroll at the time of the strike. He stated that Respondent's Exhibit 4 is a bookkeeping summary. A reading of that summary shows a drop in total sales of the gallery of approximately 33 percent for the months of December 1975 and January 1976, compared with the months of Decmeber 1974 and January 1975. Downing testified that the drop in "cash flow" during the winter of 1975-76 caused serious problems with the Internal Revenue Service (a notice to make special deposits of taxes was served - Resp. Exh. 7), with the landlord (a notice to pay rent or quit was served - Resp. Exh. 5), with the State of California Board of Equalization (a notice of revocation of license was served - Resp. Exh. 8), and with creditors. Discussion A question concerning this defense is whether the factors relied on to support it relate primarily to an economic situation or simply to poor management. The latter is strongly suggested, and evidence relative to the former is equivocal. Respondent relies on its Exhibit 4 to show a drop in revenue from 1974-75 to 1975-76 of approximately 33 percent. However, that piece of evidence stands alone and is far from conclusive. There is no way to determine whether it shows all the revenue of the gallery, whether rental fees are included, whether intergallery transfers are involved, and whether any unusual transactions are reflect- ed which could distort comparisons. Elder testified that funds are transferred among the four galleries to meet contingencies. There is no way to ascertain the effect, if any, such transfers may have had on the financial situation of the San Francisco gallery. Finally, Respondent intro- duced no financial statements from which it can be ascertained whether the gallery was, in fact, in poor 449 financial condition. Based upon these considerations, Respondent's Exhibit 4 is accorded very little weight; certainly it does not support the contention that Respon- dent was unable to meet current expense from current revenue. Respondent relies on evidence and testimony of difficul- ties with IRS, the landlord, the Board of Equilization, and creditors to support its claim of serious economic straits in the winter of 1975-76.7 However, Downing acknowledged that there have been problems with IRS and the landlord in the past, without any resultant layoffs of employees. No support was offered for the claim of difficulties with creditors (other than those named above). Dowmng and Elder testified to severe economic stress at the gallery almost continuously since it was opened (except for the two "fat years"), yet that stress resulted in no layoffs. To the contrary, the number of employees has increased steadily over the years. Finally, Elder testified that he opened two new galleries in 1975 in New York City and Laguna. He attempted to minimize the obvious impact of those open- ings on his claim of severe financial problems by stating that "very, very little" expenditure of funds was involved, but that attempt was not convincing. Certainly the New York City gallery was not inexpensive - it required Elder's continuous presence in that city for at least 6 months in 1975. Based upon these considerations, Respondent's claim of insolvency in late 1975 and early 1976 simply is not believable. Elder contends that the layoffs involved herein were unavoidable and entirely proper. In support thereof, he testified that he felt a paternalistic responsibility for the employees; that he kept them on the payroll over the years, in spite of recommendations by qualified businessmen and his own accountant, because of his feelings toward them and because they liked the work and were willing to accept late pay in order to continue working for the gallery. This contention not only is unrealistic, it is contrary to Elder's own testimony: (a) Clearly the strike of the employees was unexpected and resented by Elder. He testified: So, the decision was to, at that moment, clean the slate and then, as soon as cash came in, rehire the most - some of the people and have them consolidate their activities so that we would have a much smaller staff. It was a physical impossibility to keep anybody there on the basis that they were, because they wouldn't be there, they'd be in front of the gallery and hindering our business. (b) Elder acknowledged that the strike precipitated the layoff. He stated: Q. The fact that they struck - was that responsible for your decision to lay them off? A. I'd say that certainly it was a factor. It had to be a factor. It called attention to the problem - it was a red flag. See also G C Exh 3 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. But aren't you testifying, sir, that if the employ- ees had not gone on stake they would not have been laid off? A. No, I'm not testifying to that. I am testifying that they all would not have been laid off as soon as they were. I would think that's a fairly reasonable conclu- sion. JUDGE STEVENS: Are you saying that they would have been laid off, but later? THE WITNESS: Yes. (c) Elder's motive in making the layoff is shown by his stating, when asked whether the strike was a factor in the layoff: Well, if somebody is walking up and down in front of your business, wanting to - with signs that lessen your capacity to survive, unless you're a fool you take it into consideration, of course. (d) Clearly, Elder had become accustomed to, and expected, acquiescence by the employees of late pay. He considers late salary payments in the same light as late payments for goods and materials: In business, generally you can buy materials and pay somebody within, say, a 30-day period or a reasonable period. The same kind of application had been func- tioning with the employees. They didn't particularly like it; they accepted it. The strike changed all that. (e) Rather than considering himself paternalistic, Elder considered the employees the possible moving force in resolving his own financial problems. On many occasions he asked for their patience, good faith, positive assistance, voluntary reduction of staff, resumption of work, coopera- tive attitude, interruption of picketing, and expressions of faith and trust. However, on no occasion did he offer to the employees a specific plan of action. He dealt only in generalities and platitudes. Even more telling, he insisted that the best way, and the only practical way, out of the difficulty was for the employees to exert added effort to make sales, so cash would be available for salaries. This is a cynical approach, in view of the varied nature of jobs performed by the employees, and the long history of late salary checks. Elder's contention of paternalism is specula- tive and is not believable. Elder testified that the business was a long series of ups and downs, mostly downs, yet there has been no previous layoff or temporary closing of the business. To the contrary, the business has grown over the years. Employees have been added and put on salary rather than commission. New galleries were opened in cities widely dispersed across the country. Downing testified that business was down for the calendar year 1975 about $50,000 over 1974. However, he said the number of employees was about the same in both years, and the record shows a substantial turnover of employees. The picture thus is not one of a naive, paternalistic operator of a small and marginally successful art shop, as Respondent attempted to show. Rather, it is one of a shrewd businessman who had a good thing going and was annoyed when it was brought to a halt by a strike.8 This defense is found to be unsupported by the record. C. Respondent's Contention that Success of the Staff Reduction Supports the Defense of Economic Necessity One of the II employees who were laid off, John Jaccard (Jaccard), was rehired January 29 and worked until March 5. Jaccard testified that, when he was rehired, Gronbeck was doing office work, framing work was being contracted out to Michael Vensell, Richard Royce was working in the print shop, three persons were selling, Jean Dunne had been hired as a bookkeeper, a janitor had been hired, Renee Fittinghoff had been hired as a clerk, and Harriet Payne had been hired as a bookkeeper. Jaccard said about two- thirds of his work time was spent framing. He stated that the staff, other than himself, was totally new, and that the premises housing the gallery were the same as before the stake. Downing testified that none of the II employees who were laid off have been replaced by new employees, but that three employees have been hired. The three are Diane Calthorpe, who sells and does clerical work; Jean Dunne, a bookkeeper; and Sean Duggan, a janitor. Downing said Vensell and Royce work on an independent contract basis, and Harriett Payne, an accountant for the reproductions shop, now also does accounting work for the gallery. On cross-examination Downing testified that Renee Fitting- hoff did work formerly done by Kearcher and Elsass, 2 of the 11 who were laid off January 23. Discussion The testimony concerning events at the gallery after the layoff of January 23 is not entirely clear, but some things are apparent. First, the business continued and the premises remained the same. Second, some jobs were consolidated and some work was contracted out. Third, some new employees were hired .9 Finally, no effort was made to offer reinstatement to, or to rehire, the II who were laid off, other than employment of Jaccard from January 29 until March 5. It is clear from the foregoing that there was little change at the gallery after the strike and layoff. The overhead possibly was decreased (although this was not shown), but there is no indication that there was any change adequate to rescue the business from the insolvency Downing claimed to have existed.'° Respondent introduced evidence intend- ed to show pressure being exerted by governmental and private creditors and contended such pressure proved that the gallery was in dire financial straits. However, such evidence may mean several things unrelated to the financial condition of the gallery. The attitude toward employee salaries invites the conclusion that a similar attitude prevails toward other debts. In any event, the burden of proving financial motive was Respondent's burden. No 8 There had been no previous strike or work stoppage by employees included One or two of the employees apparently had worked for the gallery 9 The testimony is confusing and uncertain , but apparently three or four on earlier occasions poor to the time involved herein employees were hired , and possible more, if part-time employees are 10 Insolvency was not estab lished and probably did not exist VORPAL GALLERIES 451 financial statement or other convincing proof of financial condition was offered. The burden not having been met, this defense is not accepted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. who are entitled to reinstatement for any loss of pay they may have suffered by reason of the Respondent's refusal, if any, to reinstate them upon request, by payment to each of them of a sum of money equal to that which he or she normally would have earned as wages during the period beginning 5 days after the date on which he or she applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to the backpay, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 176 (1962).13 Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the follwing: V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act The employees involved herein went on strike January 10 and commenced picketing January 15. A few attempts at negotiation, rather feeble and totally unsuccessful, were made by Elder and by the employees between January 10 and January 23. The employees named in the complaint were laid off January 23. However, based upon the record and the layoff notice given to the employees (G. C. Exh. 4), it is clear, and found, that the employees were discharged rather than laid off The initial strike by employees was called by them primarily to protest Respondent's repeatedly late payment of salaries. The strike was concerted activity protected by the Act, and it was in the nature of an economic, rather than an unfair labor practice, strike. Elder acknowledged, and it is found above, that the strike precipitated Elder's discharge of the employees. Since the strike was protected by the Act, termination for striking constituted a violation of Section 8(a)(1) of the Act.ii The record does not show that the striking employees ever requested reinstatement. 12 Their letter of January 15 (G. G. Exh. 6) appears to be no more than a continued offer to negotiate. Further, the record does not show the dates of employment of replacement employees, nor the types of jobs to which they were assigned. However, these matters can be determined at the compliance stage. I shall recommend, therefore, that Respondent, upon application, offer the strikers named in the complaint reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to the extent that those positions were not permanently filled by replacements prior to any offer by the strikers unconditionally to return to work. Those strikers not reinstated pursuant to these provisions shall be placed on a preferential hiring list and shall be offered the first available positions for which they are qualified. I shall also recommend that Respondent make whole those strikers 11 Roemer Industries, Inc, 205 NLRB 63 (1973), Red Top, Inc, 185 N LRB 989 (1970) 12 Mid-West Paper Products Co, 223 NLRB 1367 (1976) 13 The Laidlaw Corporation v N LRB , 414 F 2d 99 (1969) CONCLUSIONS OF LAW 1. Michael Muldoon Elder, d/b/a Vorpal Galleries, is an employer engaged in commerce within the meaning of Secion 2(6) and (7) of the Act. 2. By discharging Lesley M. Flesch, Lilah Thayer Toland, Susan M. Elsass, Shiwa Kartso Hams, John W. Jaccard, Michael Terry Jones, Michael Mulcahy, Mariett Muller, Kathryn Burke, Lynn Kearcher, and Thomas J. Wing Wo, Jr., on or about January 23, 1976, and refusing to reinstate them for their having engaged in concerted activities for purposes of mutual aid and protection, Respondent has interfered with, restrained, and coerced them in the exercise of their rights guaranteed by Section 7 of the Act and thereby has engaged in unfair labor practices proscribed by Section 8(a)(I) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above 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 14 Respondent, Michael Muldoon Elder, d/b/a Vorpal Galleries, San Francisco, California, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging his employees for engaging in concerted activities for the purpose of their mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Upon application, offer to the strikers named above reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, to the extent that those positions were not permanently filled by replacements prior to any offer by said strikers unconditionally to return to work. Those strikers not so reinstated shall be placed on a preferential hiring list and shall be offered the first available positions 11 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. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for which they qualify. Respondent shall make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of Respondent's refusal, if any, to reinstate them in the manner set forth above in the section entitled "The Remedy." (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 amounts of backpay due under the terms hereof. (c) Post at his gallery in San Francisco, California, copies of the attached notice marked "Appendix." 15 Copies of the notice on forms provided by the Regional Director for Region 20, after being duly signed by said Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 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