Airport Parking Management

AIRPORT PARKING MANAGEMENT Airport Parking Management and Office and Pro- fessional Employees International Union, Local No. 3, AFL-CIO. Cases 20-CA-15710 and 20- CA-16105 September 22, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On January 19, 1982, Administrative Law Judge Jay R. Pollack issued the attached Decision in this proceeding. Thereafter, Respondent and the Gener- al Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Airport Parking Management, San Francisco, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: i. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Expunge from its files any reference to the discharge of, or failure to reinstate, the above- i 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's Decision we find it un- necessary to pass on his remark that Respondent retains the usual reme- dies for breach of contract against the Union for failure to honor the strike settlement agreement. 3 We shall modify the Administrative Law Judge's recommended Order so as to require Respondent to expunge from it files any reference to the discharge of or failure to reinstate James Allen. Jose D'Encarna- cao, Dennis Foley. Gary Klemme, Wayne Lawson. Tony Perry, Simon Prenowitz, John Reeder, Kevin Tobin, and Robert Wood. and to notify them in writing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel actions against them. See Sterling Sugars. Inc., 261 NLRB 472 (1982) In accordance with his dissent in Olympic Medical Corporation. 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. 264 NLRB No. 2 named employees and notify them in writing that this has been done and that evidence of the unlaw- ful discharge or failure to reinstate will not be used as a basis for future personnel actions against them." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPI OYEES POSTED BY ORDER OF THF NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WII.L NOT discharge or otherwise dis- criminate against employees for supporting or engaging in activities on behalf of Office and Professional Employees International Union, Local No. 3, AFL-CIO, or any other labor organization. WE WIt1. NOT fail and refuse to reinstate unfair labor practice strikers upon their uncon- ditional offers to return to work. WE WILL NOT threaten to discharge employ- ees for supporting a strike. WE WILL NOT interrogate employees con- cerning their support of a strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL offer James Allen, Jose D'Encar- nacao, Dennis Foley, Gary Klemme. Wayne Lawson, Tony Perry, Simon Prenowitz, John Reeder, Kevin Tobin, and Robert Wood full and immediate reinstatement to their former positons or, if those positions no longer exist, to substantially equivalent positions, discharg- ing if necessary any replacements, without DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to their seniority or other rights pre- viously enjoyed, and WE WILL make them whole for any loss of pay or other benefits suf- fered by reason of the discrimination against them, with interest. WE WILI expunge from our files any refer- ences to the discharge of or failure to reinstate the above-named employees and WE WILL. notify each of them that this has been done and that evidence of the unlawful discharge or failure to reinstate will not be used as a basis for future personnel actions against them. AIRPORT PARKING MANAGEMENT DECISION STATEMENI OF THE CASE JAY R. POI.I.ACK, Administrative Law Judge: I heard these consolidated cases at San Francisco, California, on October 6 and 7, 1981. The cases arose as follows: Office and Professional Employees International Union, Local No. 3, AFL--CIO (the Union), filed a charge in Case 20- CA-15710 on September 29, 1980, against Airport Park- ing Management (Respondent). Following investigation thereof, the Acting Regional Director for Region 20 of the National Labor Relations Board issued a complaint and notice of hearing on December 24, 1980. On March 19, 1981, the Union filed a charge in Case 20-CA-16105 against Respondent, which charge was amended on March 31, 1981, and May 27, 1981. Thereafter, on May 29, 1981, the Acting Regional Director issued a com- plaint and notice of hearing in Case 20-CA-16105. That same date, the Acting Regional Director issued an order consolidating the two cases for hearing. The complaints allege in substance that Respondent has engaged in cer- tain violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq., herein called the Act. All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross-exam- ine witnesses, to argue orally, and to file briefs. Based upon the entire record, and from my observation of the demeanor of the witnesses, I make the following: FINDIN(iS OF FACT ANI) CONCI USIONS 1. JURISDICT ION At all times material herein, Respondent. a general partnership, with an office and place of business at San Francisco International Airport in San Francisco, Cali- fornia, has been engaged in the management of parking facili,.... at the airport and the operation of a taxi dis- patch system which provides for the orderly flow of taxicabs through the Airport. During the 12 months pre- ceding the filing of the instant charges, Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $50,000 from the trans- portation of passengers from the airport to the city of San Francisco and the surrounding area pursuant to an agreement with the Airport Commission of the city and county of San Francisco. Accordingly, it admits, and I find, Respondent to be an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THl. i ABOR ORGANIZATION INVOIVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ili. THE ALLEGED UNFAIR I.ABOR PRACTICES A. Background and Issues As mentioned above, Respondent is engaged in the op- eration of a taxi dispatch system at the airport. These cases involve Respondent's taxi dispatchers and cashiers employed in its taxicab operations. The dispatchers and cashiers had been represented by the Union for several years when Respondent took over this concession from Open Taxi Lot in July 1979. The first collective-bargain- ing agreement between the Union and Respondent, cov- ering the terms and conditions of employment of the dis- patchers and cashiers, expired on June 30, 1980. The in- stant cases arise out of negotiations for a succeeding col- lective-bargaining agreement. Negotiations began in June 1980 and concluded on March 16, 1981, with the signing of a strike settlement agreement. On September 18, 1980, Respondent dis- charged employee James Allen, a union steward and a member of the Union's negotiating team. Thereafter, on September 27, 1980,. the Union commenced a strike against Respondent. The complaint in Case 20-CA- 15710 alleges that the discharge of Allen violated Section 8(a)(3) and (1) of the Act and that Respondent commit- ted certain independent violations of Section 8(a)(l). The comnplaint in Case 20-CA-16105 alleges that the strike of September 27 was caused by the unfair labor practices alleged in Case 20-CA-15710, and that Respondent vio- lated Section 8(a)(3) and (1) of the Act by failing and re- fusing to reinstate 10 employees' who participated in the strike and who later, allegedly, through the Union, made unconditional offers to return to work 2 Respondent denies the commission of any wrongdoing and as an af- firmative defense alleges that the Union entered into a strike settlement agreement with Respondent. which agreement "constitutes a valid waiver of any and all rein- statement rights the employees in question might have had." B. The Discharge of James Allen James Allen started as a taxi dispatcher at the airport in 1978 and was retained as a dispatcher by Respondent when it took over the taxi operation from Open Taxi Lot in July 1979. Allen worked at the taxistand outside the I The 10 employees are Jamens Allen. Jose D'Encarriacao, Dennis Ftolty. Gary Klemme. \'ayne ia.,ss,on. Tony Perry. Simon Prenowitz. John Reeder, Kevin Tobin. and Robert NWood. t Ihe complaint further alleges that. on January 13, Dennis Foley and, on January 14. John Reeder and Kexin Tohbin made unconditional offers to return to work 6 AIRPORT PARKING MANAGEMENT United Airlines terminal at the airport. During the time material herein, Allen worked under the supervision of Art Riddle, Respondent's manager of taxi operations.3 There is considerable testimony that Riddle had a strong dislike for Allen. As will be seen below, Riddle's dislike for Allen was, in substantial part, based on Allen's union activities. Allen was an alternate union steward from July 1979 until August 1980. From August 1980 until his discharge on September 18, Allen served as a union steward. During the negotiations, including sessions after his dis- charge, Allen was one of two employee-members of the Union's negotiating team. Allen testified that on August 28 or 29, a few days after a union meeting, Riddle approached Allen at the employee's work station and said, "I hear you and that bitch you're pimping for, Tonie Jones, called for a strike." Allen answered that he and Jones (a union busi- ness representative) had asked for a strike vote as a nego- tiating tool but would not go on strike without another membership meeting. Riddle answered that he did not believe Allen. He further said, "I worked hard to put this thing together. Anybody that goes on strike will be fired." Allen responded by saying that Riddle had to be kidding and that Riddle could not fire him for that. Riddle answered, "I know that. You do your job well, but I'll find a way." Allen further testified that Riddle said, "You know, you owe me loyalty." Allen asked what Riddle meant and Riddle answered that if it was not for Riddle the employees would not be working for the Company. A few days later, Riddle initiated a conversation with Allen at the taxistand at the United Airlines terminal. Again Riddle said he would fire employees who went on strike and that Allen owed him loyalty. According to Allen, Riddle made similar remarks on four other occa- sions prior to Allen's discharge on September 18. Striker Dennis Foley testified that on August 22 he re- ceived a telephone call from Riddle. Riddle told Foley that there was a rumor of a strike and said that he wanted to know who was going to work if there was a strike. Foley answered that he could not cross a picket line. Allen's name came up during the conversation and Riddle said that employees were going to lose their jobs because of Allen, Jones, and the Union. Riddle called Allen a "radical shit disturber." In early September, Riddle again called Foley about the strike, attempting to find out who would work in the event of a strike. Riddle told Foley that Allen was the cause of all the problems and said that, if the employees listened to Allen, there would not be any jobs. Striker Tony Perry testified that on August 25 he called Riddle at Riddle's home. At the end of this con- versation, the subject of the negotiations between Re- spondent and the Union was mentioned and Riddle said that, if employees listened to Jones and Allen, they would lose their jobs. Riddle called Jones and Allen "radical bullshit union shit disturbers." Kevin Tobin testified that, on September 3, Riddle called him at the taxi lot cashier's booth and told Tobin s All subsequent dates refer to the period from August 1980 to May 1981, unless otherwise stated. that he (Riddle) was making up a list of those who would work during the strike. Riddle asked whether Tobin would put his name on the list but Tobin said he had to discuss the matter with his wife. In this conversa- tion, Riddle called Allen a "nut" and a "shit disturber." When Riddle was finished talking to Tobin, Tobin handed the telephone to Perry. Riddle then asked Perry if Perry would work in the event of a strike. Perry told Riddle that the employees had the right to strike but were not going to strike that Friday. Riddle told Perry that, if there were a strike, the employees who struck would be out of a job and those who did not strike could bargain for themselves. Riddle denied that he asked any employee whether he would work during a strike. However, in addition to the above testimony, two of Respondent's witnesses, Jona- than Reeder and Gary Klemme, contradicted Riddle's general denial. I credit the testimony of Foley, Perry, and Tobin as set forth above and do not credit Riddle's denial. On September 18, Allen reported for work at 6 a.m. and was greeted by Riddle.4 Riddle handed Allen a white envelope containing Allen's termination slip and related documents. 5 Allen asked why he was being ter- minated and Riddle answered because Allen had parked his car in a white zone and was insubordinate to a police officer. Allen said that Riddle must be kidding and asked whether Riddle had fired him. Riddle answered that Wil- liam Wheeler (Respondent's general manager) had fired Allen. Allen said, "Well, Art, you could have intervened for me." Riddle answered, "Yes, if I wanted to, I could, but you didn't show me any loyalty, why should I show you any?"6 At about 10 a.m. that same date, Allen went to Rid- dle's office to receive his paycheck. Allen asked Riddle when he was going to hire Allen back. Riddle replied that he was not going to rehire Allen. Allen then asked Riddle what he (Allen) was going to do for a job. Riddle answered, "Well, see that bitch Tonie Jones that you're pimping for. She'll take care of you."7 Riddle's dislike for Allen continued after Allen's dis- charge. On September 23, Riddle approached Foley at Foley's work station and again asked whether Foley would work in the event of a strike.8 In this conversa- tion Riddle told Foley that "the radical bullshitter is gone," an apparent reference to Allen's discharge. On or about September 30, George Santori, a member of the Union who had volunteered to picket during the strike, accompanied Jones to the airport.9 Santori testi- 4 Employee Jose D'Encarnacao was called at home on September 18 at 3:30 a.m., to report to work at 5: 30 a.m D'Encarnacao then worked Allen's shift. 5 Respondent's reasons for the discharge will be discussed in the sec- tion of this Decision entitled "Respondent's Defense" a Riddle did not deny making these statements Riddle did not deny making these statements 8 The Union held a meeting on September 23 at which meeting em- ployees voted to go on strike if Respondent did not meet its demands. 9 Santori was not an employee of Respondent However, Santori was on strike against his own employer and volunteered to picket for the Union in its dispute with Respondent 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled that he overheard a discussion between Riddle and Jones in which Riddle said that, if Jones and Allen had not been troublemakers stirring everyone up, there never would have been a strike. According to Jones, Riddle said that if "you and Jim Allen hadn't started this whole thing, I could have prevented it." Although Riddle's tes- timony regarding this argument with Jones at the airport substantially differs from Jones' testimony, Riddle did not specifically deny the statements attributed to him re- garding Allen. During the first week of the strike, while Allen was picketing at the airport, he was approached by Riddle. Riddle told Allen, who was seated, to get out of the chair. Allen replied that it was his chair and he was going to sit in it. Riddle then cursed Allen and attempted to get Allen to fight him. C. Respondent's Defense Respondent contends that Allen was discharged based on events which occurred on August 17, but were not reported to Respondent until September 17. On September 17, Riddle learned from General Man- ager William Wheeler that Sheldon Fein, manager of landside operations at the airport, had made a complaint about Allen. The substance of Fein's complaint was that, on August 17, Allen had a dispute with a police officer concerning Allen's parking of his car in the loading zone in front of the United Airlines terminal and that Allen had untruthfully told the officer that he had permission from Fein to park in the loading zone. Riddle, upon learning of Fein's complaint, called Fein and then went to the offices of the Airport police to obtain a copy of the police report of this incident. Later, that same date, Fein sent a memorandum to Wheeler regarding the inci- dent. Fein did not testify. However, his memorandum to Wheeler, dated September 17, states that the matter in- volving Allen did not come to Fein's attention until Sep- tember 16. Riddle testified that on September 17 he decided to terminate Allen as a result of Fein's complaint. Riddle testified on cross-examination that he called Allen during the afternoon of September 17 to obtain Allen's version of the incident. According to Riddle, Allen was insubor- dinate in this conversation and refused to discuss the matter. Allen testified that he had no such conversation with Riddle. Allen was not scheduled to work on Sep- tember 17 and was at the racetrack when the conversa- tion was alleged to have taken place. Allen's testimony is credited over that of Riddle.10 Prior to his discharge on September 18, Allen had two previous warnings in his personnel file. The warnings concerned two separate incidents which occurred in late 10 Riddle made no mention of asking Allen for his version of the August 17 incident on direct examination. It was not until after the Gen- eral Counsel pointed out that Riddle had not followed his usual practice of getting an employee's side of a complaint that Riddle offered testimo- ny concerning a conversation on September 17. Further. Riddle made no mention of this alleged conversation with Allen in his pretrial affidavit regarding the discharge. For these reasons, and because of Riddle's de- meanor on the witness stand, I do not credit Riddle's testimony concern- ing a conversation with Allen on September 17. but rather view such tes- timony as a belated attempt to support Riddle's defense of Allen's dis- charge. October 1979, which resulted in written warnings to Allen on November 16, 1979. What is most significant about the 1979 incidents is that Riddle had originally de- termined to discharge Allen but, after allowing Allen and the Union to present their side of the case, Riddle reduced the discipline from discharge to suspension, and, finally, to a written warning for each offense. When faced with complaints against him in 1979, Allen submit- ted to Riddle, through his union steward, statements from witnesses indicating that Allen was not at fault. In relating Allen's warnings of 1979 to the discharge, Riddle testified that other employees had two warning notices but none had three warnings. However, Riddle did not testify that there was a practice or policy requir- ing dismissal for a third offense. D. The Strike Votes As stated earlier, the initial collective-bargaining agreement between Respondent and the Union expired on June 30, 1980. The parties agreed to extend the agree- ment pending negotiations until either party gave 72- hour notice to terminate. On August 25, Jones, unhappy with the state of negotiations, asked the employees to vote for authorization to give Respondent 72-hour notice of termination of the extended agreement. Thus, at a meeting on August 25, the employees voted to give the Union's negotiating team authority to terminate the con- tract. On September 12, the Union held meetings with the unit employees concerning the state of the negotia- tions. One meeting was held for night-shift employees and one for day-shift employees. A vote was taken whether to authorize a strike. The balloting resulted in a tie vote and a strike was not called. On September 23, Jones held two meetings with the unit employees, one for night-shift employees and one for the day shift. The night-shift employees attended the first session. The meeting started with a discussion of Allen's discharge. Jones told the employees that Allen had been terminated and read Allen's termination notice to the employees. Several of the employees voiced the opinion that Allen had been terminated because of his ac- tivities as union steward and negotiating committee member. After considerable discussion of Allen's dis- charge, Jones told the employees that they could vote to make Allen's return to work part of the Union's negotia- tion package. The discussion then turned to the econom- ic issues which had not been resolved by the Union and Respondent. Finally, Jones asked the employees to vote whether to reject Respondent's contract proposal, to go out on strike, and to demand Allen's return to work. Jones then conducted a secret-ballot vote. The ballots used by Jones contained a yes box and a no box but did not indicate what question was being voted upon. " " Respondent offered the testimony of two witnesses, Reeder and Klemme, in an attempt to prove that Allen's return to work was not in- cluded in the strike vote. To the extent their testimony varies from the credited version of the meeting as recited above. I do not credit their tes- timony. However, I note that, on cross-examination, Klemme testified that he believed Allen's reinstatement was included in the questions pre- sented to the employees in the strike vote. 8 AIRPORT PARKING MANAGEMENT The second meeting on September 23 was attended by the day-shift employees. This meeting also commenced with a discussion of Allen's discharge. Jones read Allen's termination letter to the employees and then the employ- ees discussed the discharge. The discussion then turned to the issues of wages. During this session, Doug Tanner, an employee, suggested that Allen challenge his dis- charge before the Board and not make it a strike issue. Allen responded that he was willing to have his return to work dropped from the Union's demands if the members wanted that. However, the employees stated that they wished to include Allen's return to work as part of their demands of Respondent. The employees then voted on whether to reject Respondent's contract proposal, to go out on strike, and to demand Allen's return to work. The combined vote of the two meetings was 13 yes and 7 no ballots. 2 On September 26, the parties met with the Federal Mediation and Conciliation Service in an effort to settle the issues. The representatives of the Union were in one room and the representatives of Respondent were in an- other room. The Federal mediator talked with both sides separately. Jones testified that she advised the Federal mediator that, unless Respondent agreed to a S1-an-hour wage increase and to return Allen to his job, the Union would strike the next day. The mediator, after speaking with Respondent's representatives, told Jones that the Union's offer was rejected. Respondent's general man- ager, Wheeler, denied receiving a proposal concerning Allen. On September 27, the Union commenced a strike and picketing against Respondent. Respondent continued to operate during the strike. Approximately one-half of Re- spondent's employees participated in the strike. The 10 employees, at issue herein, including Allen, were the only employees participating in the strike. E. The Alleged Unconditional Offer To Return To Work The complaint alleges that on or about November 25 the Union, on behalf of the 10 striking employees, made an unconditional offer to return to work. Respondent contends that the Union made no such offer until March 16. On March 16, the parties agreed to a strike settle- ment agreement which provided, inter alia, that the strik- ers would be reinstated to the next available positions ac- cording to company seniority. On November 25, a negotiation session was held at the offices of Respondent's counsel. Present for the Union were Jones, Allen, Perry, and Simon Prenowitz. Present for Respondent were its counsel Milton Mares and Wheeler. According to Jones, she told Respondent that the Union was not succeeding with its picketing and wanted to know what the parties could do to settle their dispute. Mares offered to extend the expired contract to the end of 1980. The Union then requested that the meet- ing be recessed so that Jones and the employees could caucus. After the caucus, Jones told Mares and Wheeler that a contract having only 35 days was worthless. She 12 The testimony of employee Melvin Holly to the extent it differs from the above account of this meeting is not credited. then asked when Respondent was going to put the strik- ers back to work. Wheeler replied that the strikers did not have jobs any more. According to Jones, she said, "Well, we're making an unconditional offer to return to work." Mares answered that the strikers had been per- manently replaced. Wheeler added that the striking em- ployees could fill out job applications and Respondent would consider them for hire as new employees. Jones replied that she would discuss Respondent's offer with the employees. Perry corroborated Jones' version of this meeting. However, Allen did not effectively corroborate Jones' testimony. Allen testified that Jones said "the men un- conditionally surrendered." Prenowitz could not recall anything that occurred at this meeting. Wheeler testified that Mares offered the Company's proposal to the Union: a 7-1/2-percent wage increase; a contract to December 31, 1980; and no union retaliation against the employees who worked during the strike. The Union then asked for a caucus. After the caucus, Jones asked when the strikers would be invited back to work. Wheeler said that the strikers had been permanent- ly replaced and that, as jobs became available, the strik- ers could come down and apply for jobs. Allen then cursed Wheeler. Jones said she would take Respondent's offer back to the union membership. Mares testified in substantial accord with Wheeler's testimony. Both Mares and Wheeler emphatically denied that Jones made an un- conditional offer to return to work. On March 5, 1981, the parties met again for approxi- mately an hour. At this meeting Respondent made a pro- posal regarding wages, holidays, sick leave, and no re- taliation by the Union against nonstriking employees. Jones said she would take the proposal back to the mem- bership. According to Jones, she repeated her uncondi- tional offer to return to work. Mares then said Respond- ent would hire the employees by order of seniority if openings became available. Wheeler and Mares deny that Jones made any offer for the employees to return to work. The final negotiation session between the parties took place on March 16, 1981. According to Mares, Respond- ent made a proposal to the Union and the Union cau- cused. After the caucus, Jones said that, no matter what happened, the employees made an unconditional offer to return to work. Thereafter, the parties reached agree- ment on a strike settlement. The agreement provided for (1) an increased wage rate; (2) increased payments to the health and welfare plan; (3) the Union to withdraw all pending Board charges and not reinstitute them; (4) rein- statement, according to seniority, of the 10 striking em- ployees (including Allen) to the next available positions; (5) a 4- or 5-day workweek at Respondent's option; (6) the addition of the job classification of "survey person"; and (7) the expired agreement to be extended to Decem- ber 31, 1981, as modified. On March 17, 1981, Jones prepared the original charge in Case 20-CA-16105 alleging, inter alia, that Respond- ent had "refused to reinstate striking employees when they offered to unconditionally return to their jobs." Al- though Jones had previously filed a charge in Case 20- 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CA-16028 on February 13,13 alleging that Respondent had permanently replaced the strikers, she made no men- tion of an alleged unconditional offer to return to work. When asked to explain this omission, Jones answered that she "didn't know that was an unfair labor practice." Jones further testified, "I knew that they were supposed to go back somehow, but I was just trying to get them back to work and that's how our attorney said to get them back." However, it appears that such advice was obtained by Jones much later than November 1980, be- cause Jones testified that, about the same time that she was negotiating the settlement with Respondent, she found out about possible unfair labor practices from the Union's attorneys and "some people" at the Board. I credit the testimony of Mares and Wheeler that Jones did not make an unconditional offer to return to work until March 16, 1981. Jones' demeanor on the stand, her omission of the alleged offer from the charge filed in February, and her testimony that she did not learn of the legal consequences until March convince me that Jones did not make an offer to return to work at the November 25 meeting. Rather, I find in accordance with the testimony of Mares and Wheeler that Jones simply asked when the employees would be invited back to work. 1 4 It is undisputed that on January 13 and 14, 1981, Tobin, Reeder, and Foley visited Respondent's office and filed written job applications for their former posi- tions. Subsequent to the filing of these job applications, several vacancies occurred in Respondent's taxicab oper- ations. Neither Tobin nor Foley was recalled to fill these vacancies. However, Reeder was recalled to work as a dispatcher on June 5, pursuant to the strike settlement agreement. Riddle testified that he did not recall Foley, Tobin, or Reeder when vacancies occurred prior to March 16, because Respondent "still had a proposal from the Union and still had a Union dispute."' 5 F. Conclusions Regarding 8(a)(1) Issues 1. As stated above, Riddle told Allen on several occa- sions that he would fire employees if they went on strike. Further, Riddle told employees Foley and Perry that, if employees went on strike, they would lose their jobs. Such threats clearly interfere with the employees' right to strike. Thus, I find that by these statements Respond- ent violated Section 8(a)(1) of the Act as alleged in the complaint. 2. As discussed above on several occasions in August and September, Riddle questioned employees Foley, Tobin, and Perry as to whether they would work in the s3 The charge in Case 20-CA-16028 was withdrawn after March 17. 14 I note that I have generally credited the testimony of Allen and Jones. However, on this point Allen was not convincing and Jones must be discredited. As Chief Judge Learned Hand aptly said in N.LR.B. v. Universal Camera Corporation. 179 F.2d 749, 754 (2d Cir. 1950), reversed and remanded on other grounds 340 U.S. 474 (1951): It is no reason for refusing to accept everything that a witness says. because you do not believe all of it; nothing is more common than to believe some and not all of what a witness says. I' Sometime in June, employee Klemme filed an application for em- ployment with Respondent. Klemme was not reinstated because Re- spondent was recalling employee in accordance with the agreement of March 16. event of a strike. Such questioning conveys an employ- er's displeasure with employees' union activity and there- by tends to discourage such activity. See PPG Industries, Inc., Lexington Plant, 251 NLRB 1146 (1980); Centre En- gineering, Inc., 253 NLRB 419 (1980). Moreover, Riddle followed his questions with threats against those who would participate in a strike. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by this conduct. G. Conclusions Regarding the Discharge of Allen In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980),t' the Board announced the follow- ing causation test in all cases alleging violation of Sec- tion 8(a)(3) of the Act or violations of Section 8(aX1) turning on employer motivation. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a "mo- tivating factor" in the employer's decision. Upon such a showing, the burden shifts to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct.' 7 In presenting his prima facie case of wrongful motive, the General Counsel demonstrated that Allen was of union steward and a negotiating team member and that Riddle was actively antagnostic against Allen and Allen's perceived role in the events leading to the strike. Riddle had threatened to discharge Allen if there was a strike and, after Allen pointed out that Riddle had no reason to discharge him, Riddle threatened to find a way to dis- charge Allen. An inference may be drawn from such animus, which the discharge would gratify, that the animus was the true reason for the discharge. General Thermo, Inc., 250 NLRB 1260, 1261 (1980); Best Products Company, Inc., 236 NLRB 1024, 1026 (1978). The credited evidence establishes that the decision to discharge Allen was made without giving Allen an op- portunity to explain the circumstances which gave rise to the discharge. This is strong evidence of discriminatory motivation, particularly in the light of Riddle's past prac- tice of giving an employee an opportunity to present his side of a third-party complaint. This conclusion is but- tressed by Riddle's belated attempt to establish that he contacted Allen on the day prior to the discharge. I con- sider Riddle's false testimony on this point to be yet an- other indicia of discriminatory motive. Finally, Riddle told Allen that he could have saved Allen's job if Allen had been "loyal" to him. Within the background of Riddle's previous conversations with Allen, loyalty to Riddle meant not supporting the Union's threatened strike. Accordingly, I find that the General Counsel has established a strong prima facie case. I find that Respondent has not rebutted or met the General Counsel's prima facie case. Assuming Allen en- gaged in some type of misconduct which prompted 1s Enfd. 662 F.2d 899 (Ist Cir. 1981). 17 The Court of Appeals for the First Circuit in its Wright Line deci- sion stated that the employer's burden is to come forward with credible evidence to rebut or meet the prima facie case. The ultimate burden of proof remains with the General Counsel. 10 AIRPORT PARKING MANAGEMENT Fein's complaint to Respondent, the severity of this of- fense was never established. Riddle, motivated by dis- criminatory reasons, did not permit Allen to present miti- gating evidence. While Allen had two warnings, no evi- dence was presented that a third warning mandated dis- charge. With regard to the severity of the discipline, Riddle told Allen that he (Riddle) could have saved Allen's job had Allen been "loyal"; i.e., had Allen not supported the impending strike. Thus, I find the record evidence insufficient to make a finding that Allen would have been discharged because of Fein's complaint in the absence of Allen's union activities. Rather, I find, in ac- cordance with Riddle's statement to Allen, that Allen would not have been discharged had he been more loyal to Riddle and not supported the impending strike. Ac- cordingly, weighing all the evidence, I find that Re- spondent's discharge of Allen violated Section 8(a)(3) and (I) of the Act. H. Conclusions Regarding the Unfair Labor Practice Strike Issues As noted above, the General Counsel contends that the strike of September 27 was caused by Respondent's unfair labor practices, particularly the unlawful discharge of Allen. Respondent, on the other hand, contends that the strike was simply an economic strike in support of the Union's contract demands. The evidence shows that, prior to Allen's discharge, the Union conducted a strike vote which resulted in a tie vote. On September 23, the employees voted to reject Respondent's contract proposal, to go on strike, and to demand Allen's return to work. It is not possible to de- termine what weight the employees gave to Allen's dis- charge in deciding to strike. However, it is clear that Allen's return to work was the subject of significant dis- cussion and was made a part of the strike vote. The Board has long held that a strike is an unfair labor prac- tice strike if one of the purposes of the strike is to protest an employer's unfair labor practice. See, e.g., Juniata Packing Company, 182 NLRB 934 (1970); Larand Leisur- elies, Inc., 213 NLRB 197, fn. 4 (1974), enfd. 523 F.2d 814 (6th Cir. 1975). Accordingly, I find sufficient evi- dence to support the conclusion that there is a causal connection between Allen's unlawful discharge and the strike. Therefore, I find that the strike was an unfair labor practice strike. It having been established that the employees were unfair labor practice strikers, it follows that Respondent was obligated to immediately reinstate the unfair labor practice strikers to their former positions of employment upon their unconditional offer to return to work, dis- charging, if necessary, any employees hired as replace- ments during the strike. See, e.g., United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1780, 244 NLRB 277, 281 (1979); Atlas Metal Parts Co., Inc., 252 NLRB 205 (1980). As discussed above, in January, employees Tobin, Foley, and Reeder made unconditional offers to return to work. Respondent refused to reinstate Tobin, Foley, and Reeder and, therefore, violated Section 8(a)(3) and (1) of the Act. Carpenters 1780, supra; Atlas Metal Parts, supra. Further, I have found that the Union made an uncondi- tional offer for the employees to return to work at the negotiation meeting of March 16. The effect of the strike settlement agreement of March 16 will be considered next. 1. Conclusions Regarding the Strike Settlement Agreement The crucial question presented is what effect should be given to the strike settlement agreement of March 16. The General Counsel, citing Roadway Express. Incorpo- rated,'8 argues that the strike settlement agreement is a deficient settlement of the instant charges and, therefore, not entitled to deference. Respondent, on the other hand, relying on United Aircraft Corporation,.' argues that the Board should honor the settlement as an amicable solu- tion to this labor dispute arrived at through collective bargaining. As stated above, on March 16 when the parties met and reached agreement on a settlement of the strike, a complaint in Case 20-CA-15710 was outstanding, alleg- ing the unlawful discharge of Allen and certain viola- tions of Section 8(a)(l). Although not alleged in that complaint, Respondent had unlawfully refused to rein- state Tobin, Foley, and Reeder. Further, the other strik- ers had a right to immediate reinstatement upon their un- conditional offer to return to work. Thus, as argued by the General Counsel, the strike settlement agreement falls far short of the established Board remedy for such violations. However, as argued by Respondent, the agreement was reached through collective bargaining, with no evidence of bad faith on the part of Respondent. Thus, a review of the authorities behind the cases cited by the parties is necessary to reconcile these conflicting approaches. In Wooster Division of Borg-Warner Corporation, 121 NLRB 1492 (1958), decided prior to United Aircraft, the Board refused to defer to a strike settlement agreement because the agreement did not give the unfair labor prac- tice strikers the reinstatement rights to which they were entitled under the Act.20 The Board gave the following rationale for its decision: Under Section 10(a) of the Act, the Board is given exclusive power to deal with unfair labor practices and to prescribe the appropriate remedy. As a matter of practice, the Board has exercised its discretion and refused to be bound by any settle- ment agreement or arbitration award where such settlement agreement or award was at odds with the Act or the Board's policies. As the settlement agree- ment does not purport to accord the strikers the rights to which, as unfair labor practice strikers, they are normally entitled under Board policies, and as it was not executed by the strikers statutory rep- '" 246 NL.RB 174 (1979). enforcement denied 647 F.2d 415 (4th Cir. 1981) 19 192 NLRB 382 (1971). enfd in pertinent part 534 F2d 422 (2d Cir 1975)1 cert. denied 429 U.S. 825 (1976). 20 The Board had previously deferred to the agreement (113 NLRB 1288) but, on remand from the United States Court of Appeals for the Sixth Circuit (236 F 2d 898), it reversed its original decision that the strike v as an economic rather than an unfair labor practice strike Il DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative, we find that the agreement may not constitute a defense to the allegations of discrimina- tion or serve to deprive the strikers of their rights. [121 NLRB at 1495.] In Erie Resistor Corporation, 132 NLRB 621 (1961), 2 1 the Board refused to defer to a strike settlement agree- ment in which it found that the union had agreed only to an interim settlement pending legal determination of the employees' rights and had not waived their rights. The agreement in Erie Resistor included the following lan- guage: "The Company's replacement and job assurance policy is to be resolved by the NLRB and the Federal Courts and to remain in effect pending final disposition." However, the Board did not confine its holding to the particular facts of the case, but, citing Wooster Division, stated: In any event, we would not in our discretion honor a private settlement which purported to deny to employees the rights guaranteed them by the Act. [132 NLRB at 631, fn. 31.]22 On remand, the United States Court of Appeals for the Third Circuit sustained the Board's holding in Erie Resis- tor, stating in pertinent part: Section 10(c) of the Act . . . invests the Board with power to effectuate the policies of this remedial leg- islation ... . It follows that the rights of discrimin- atorily discharged employees under the statute are not subject to private adjustment. Such an adjust- ment, if made, cannot bar the Board's exercise of its statutory authority. [328 F.2d at 727.) In United Aircraft, relied on by Respondent, the Board decided to defer to a settlement agreement, even though it terminated the preferential rights of economic strikers after a certain date, which was contrary to their statu- tory rights under Board law at the time the case was de- cided.23 The strike in United Aircraft was an economic strike which was complicated by the violence which accompa- nied the strike and by the Company's attempts to contin- ue operating with the aid of various expedients, including the hiring of new employees, transfers, promotions, over- time, and subcontracting. During negotiations the com- pany insisted, as it had a lawful right to do, that it would not reemploy strikers who had engaged in serious mis- conduct during the strike, and that it would not dis- charge striker replacements to make room for the return of strikers. Eventually, the points of disagreement be- tween the parties were resolved by a strike settlement agreement and the strike was terminated. The Board noted that the agreement was negotiated by top union officials and that it was reached as the result of fair bar- gaining and in good faith, and did not unreasonably deny employees their reinstatement rights. 21 Enfd on remand 328 F 2d 723, 727 (3d Cir. 1964). 22 See also George Banra Company, Inc., 256 NLRB 1197 (1981). 23 The settlement agreement was signed 8 years before the lead case of The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The Board stated that, even though it is not bound by any private adjustment of rights guaranteed by the Act, it may, in its discretion, accept a particular private ad- justment as conforming to the policies of the Act. The policy of the Act is not only to protect the Section 7 rights of employees, but also to encourage collective bar- gaining as a means of resolving labor disputes. "l'here is therefore a public policy embodied in the Act which favors enforcement of voluntary agreements settling strikes."2 4 The Board expressly refrained from deciding whether United Aircraft would apply to an unfair labor practice strike, stating: As the strike in the instant case was an economic rather than an unfair labor practice strike, we find it unnecessary to pass on the effect of a recall agree- ment on the rights of unfair labor practice strikers, and we do not do so. [192 NLRB at 388, fn. 31.] In American Cyanamid Company, 239 NLRB 440 (1978), the Board refused to defer to a strike settlement agreement which provided, inter alia, that a striking em- ployee's discharge be reduced to a suspension. The strik- ing employee filed a charge with the Board subsequent to the execution of the strike settlement agreement. The Board held that, while the union could contractually waive employees' right to strike, it did not follow that the union could waive an employee's right under the Act to have his employer's unfair labor practice remedied. Thus, the United Aircraft case was distinguished as only determining the right to waive statutory rights of eco- nomic strikers and was found not applicable to unfair labor practices occurring during a strike. In Roadway Express, relied on by the General Counsel, the Board refused to defer to a private settlement agree- ment between a union and a company which provided for reinstatement but not backpay for an allegedly discri- minatorily discharged employee. The Administrative Law Judge, relying on Central Cartage Company, 206 NLRB 337 (1973), deferred to a private settlement on the ground that it would effectuate the policies of the Act not to disturb the agreement. In reversing the Ad- ministrative Law Judge, the Board found that the record did not disclose whether the legality of the employee's discharge was ever discussed, much less resolved, during the settlement negotiations. Further, the Board noted that, in Central Cartage, no issue was raised concerning the settlement agreement by any of the parties to the agreement, while, in Roadway Express, the employee contended that he did not agree that the issue of backpay was resolved by the settlement agreement. Thus, the Board concluded that there was a dispute between the parties concerning the terms and application of their pri- vate settlement. The Board then remanded Roadway Ex- press to the Administrative Law Judge.25 24 192 NLRB at 387 12 The decision on the merits of the case is reported at 250 NLRB 393 (1980). The United States Court of Appeals fior the Fourth Circuit denied enforcement. The court found that: (1) the discharge had been fully dis- cussed between the parties; and (2) the employee had agreed to the terms Continued 12 AIRPORT PARKING MANAGEMENT In Central Cartage, supra, the Board announced that it would defer to a settlement agreement when, given the particular facts of the case, it would effectuate the poli- cies of the Act to do so. The circumstances in Central Cartage justifying the deferral were: (1) the settlement in- dicated that all the issues in dispute were considered and appropriately resolved, i.e., the settlement recited that the employee was not discharged for union activity, and (2) none of the parties directly involved was disputing the settlement agreement, i.e., the General Counsel was arguing the unfair labor practice case before the Board; the Union and employee were willing to abide by the terms of the settlement agreement. In United States Steel Corporation, 250 NLRB 387 (1980), the Board refused to defer to a settlement agree- ment which included a provision that the settlement was in full and final settlement of the employee's grievance. The Board distinguished Central Cartage on the grounds that: (1) the extent to which the settlement agreement discussions dealt with the unfair labor practice issue was unclear; (2) the extent of the employee's participation in the discussions was unclear; (3) the employee was in dis- agreement with the settlement; and (4) the agreement contained no written provision that the previously filed 8(a)(3) charge would be withdrawn. Applying the above case law, it can be seen that the Board in United Aircraft expressly refrained from decid- ing whether the rationale of that decision could be ex- tended to unfair labor practice strikers. In American Cyanamid the Board held that a union's strike settlement agreement may not waive a discriminatee's remedy under the Act. Thus, United Aircraft was held to apply to economic strikers and not to apply to previously com- mitted unfair labor practices. The American Cyanamid decision does not refer to Central Cartage. However, even under the Central Cartage rationale, it does not appear that the Board would defer to the instant settle- ment agreement. First, the unfair labor practice nature of this strike and its effect on the employees' rights to rein- statement were never discussed. Second, the settlement does not include anything like the usual Board remedy for the serious violations involved; i.e., reinstatement and backpay. Third, the Union, and presumably the employ- ees, did not understand that the agreement was intended to extinguish all claims arising out of the strike. Fourth. the Union most likely did not know of Respondent's sep- arate liability towards Foley, Tobin, and Reeder and, therefore, cannot be deemed to have waived those rights. In analyzing the rationale of United Aircraft, it is ap- parent that the Board weighed the policy of favoring agreements reached through collective bargaining against the harm to employees' rights if the agreement were given deference by the Board. In United Aircraft the pri- vate settlement agreement did not unreasonably deny employees their reinstatement rights. Employees received less under the agreement than under decisional law. However, the agreement put an end to a violent strike of the agreement since when he w.as infirmed ofr its terms he did not pro- test them, and he acquiesced to the terms without complaint for 4 months before filing a charge 647 F 2d 415 (1981) Itow.ser. the court cited American Cyanamid with appros.al Its resrsal of the Board Was based on the facts and not the law with attendant legal complications. Thus, in United Air- craft the Board in its discretion determined that accept- ance of the private settlement was more advantageous than reopening the dispute. Here, where the Board's policy of remedying violations under the Act is balanced against the public policy favoring agreements reached through collective bargaining, I am convinced that the Board would not defer to the private agreement of the parties. The agreement is simply not a reasonable com- promise of the disputed claims. Deferring to the agree- ment would simply extinguish valuable remedial rights of the employees. In accordance with American Cyanamid, I find that the Union's agreement cannot waive the rights of the unfair labor practice strikers. J. The Unconditional Offer To Return To Work Based on the credited version of the negotiation ses- sions, on March 16, Jones, for the first time, made an un- conditional offer for the employees to return to work. The substance of the negotiations which followed is not in the record.26 However, it is undisputed that, shortly thereafter, Jones agreed to Respondent's proposal that the employees, including Allen. be reinstated according to seniority as jobs became available. As previously found, the strike settlement agreement does not extin- guish the strikers' rights as unfair labor practice strikers. The issue presented is what effect the strike settlement agreement has on the unconditional offer to return to work. Although no case directly on point has been found, some guidance can be drawn from J. H. Rutter-Rex Manuficturing Company, Inc.,27 and ThIe Laidlaw Corpo- ration. 2 In Rutter-Rex, the union sent letters to the employer unconditionally offering to return to work on behalf of 153 strikers. The employer responded with a request that the employees be sent in groups of 20 to file applications. The union agreed and complied with this request. In one of its letters to the employer, however. the union stated that although it was sending employees to the employer's personnel office in groups of 20 per day, the union still considered the employees as having unconditionally ap- plied for work on the date the letters were received. The employer contended that, in agreeing to send the em- ployees in groups of 20, the union withdrew its original blanket application for reinstatement and relied on the in- dividual applications of the employees made thereafter. The Board rejected this argument for the following rea- sons: (1) clear proof of waiver of the rights created by the union's letters of application would be required-one of the union's letters made it explicit that the union was not abandoning its earlier blanket application for rein- ZB It has long been settled that a statutory bargaining representative has the authority to apply for reinstatement on behalf of employees whom it represents regardless of whether individually authorized to do so or not J H Rutter-Rex Manujacruring Connpan.t Inc.. 158 NLRB 1414. 1439 (1966), and cases cited therein at fn 6. modified on other grounds 399 F.2d 356 (5th Cir. 1968), modification resersed 39t lU.S 258 (1969) 27 Supra at fn 26 2- 207 NLRB 591 (1973). enfd 507 F2d 1381 (7th Cir 1974). cert. denied 422 U S 042 (1975) 13 1I)tCISIONS OF NATIONAL LABOR RELATIONS BOARD statement; (2) complying with the company's request to send the employees in groups of 20 was not inconsistent with reliance on the union's original blanket letters of ap- plication, but supports an inference that the union was trying to be helpful in assisting the company in reinstat- ing a large number of strikers in a short period of time; and (3) since the union was under no legal obligation to facilitate the company's reinstatement task, its efforts to cooperate should not be construed as indicating an aban- donment of its earlier blanket applications, absent clear proof of a meeting of the minds in this regard. In the Laidlaw case, a settlement agreement was reached in which the employer agreed to hire 23 unfair labor practice strikers whose names were submitted by the union. The employer then contended that in present- ing a list of 23 strikers the union thereby implicitly waived reinstatement and backpay as to all other strikers. The Board rejected this argument, and found that the settlement agreement did not toll backpay for any of the employees, except that the earnings of employees rehired pursuant to the settlement agreement mitigated the em- ployer's backpay liability. The decision was based on the gounds that: (1) the employer admittedly was not pre- pared to put all strikers back to work, but made its "offer" in order to end the strike; and (2) even assuming that the union assured the employer that 23 named em- ployees were the only discriminatees that sought rein- statement, the Board's rule is that there can be no waiver of a right to reinstatement prior to ani actual offer of re- instatement by the employer. While the Board did not discuss whether the settlement agreement withdrew the union's previous unconditional offer to return to work on behalf of all strikers, implicit in the decision that no waiver of reinstatement rights occurred is the concurrent finding that the earlier offer to return to work survived the settlement agreement. Applying the rationale of Rutter-Rex and Laidlaw to the instant case, it appears that no waiver can be found and, therefore, that the offer to return to work survived the settlement agreement. There was no meeting of the minds that the Union's acceptance of the settlement agreement constituted a satisfaction of the Union's un- conditional offer to return to work nor is there clear evi- dence that the Union intended a waiver of the rights cre- ated by its unconditional offer to return to work. The filing of the charge with the Board, the next day, indi- cates that the Union had no intention of waiving such rights. Accordingly, I find that Respondent was obligat- ed to immediately reinstate the strikers, discharging re- placements if necessary, upon the Union's unconditional offer to return to work and that Respondent's failure to do so violated Section 8(a)(3) and (I) of the Act. As no waiver has been found, it may appear that Re- spondent has been unfairly deprived of the benefits of its negotiated settlement with the Union. However, I do not find that contract unlawful or unenforceable. Rather, I merely find that the agreement cannot be used as a de- fense to the employees' rights to a remedy for their em- ployer's violations of the Act. It appears to me that Re- spondent retains the usual remedies for breach of con- tract against the Union. THE REMEDY Having found that Respondent, Airport Parking Man- agement, engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist there- from and that it take certain affirmative action to effectu- ate the policies of the Act. Respondent shall be required to offer James Allen, Jose D'Encarnacao, Dennis Foley, Gary Klemme, Wayne Lawson, Tony Perry, Simon Prenowitz, John Reeder, Kevin Tobin, and Robert Wood immediate rein- statement to their former jobs or, if such jobs are no longer in existence, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, discharging if necessary any replacements. Further, Respondent shall be required to make them whole for any loss of pay they may have suffered as a result of the discrimination against them. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See also Olympic Medical Corporation, 250 NLRB 146 (1980). See, general- ly, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Airport Parking Management is an employer en- gaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local No. 3, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully discharging employee James Allen. 4. The strike which commenced on September 27, 1980, was an ufair labor practice strike. 5. Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate unfair labor prac- tice strikers Kevin Tobin, Dennis Foley, and John Reeder upon their unconditional offers to return to work. 6. Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate unfair labor prac- tice strikers on and after March 16, 1981, the date of the Union's unconditional offer to return to work. 7. Respondent violated Section 8(a)(1) of the Act by threatening that employees would be discharged if they participated in a strike, and by interrogating employees concerning their support of a strike. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: 14 AIRPORT PARKING MANAGEMENT ORDER2 9 The Respondent, Airport Parking Management, San Francisco, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against employees for supporting or engaging in activities on behalf of Office and Professional Employees Internation- al Union, Local No. 3, AFL-CIO, or any other labor or- ganization. (b) Failing and refusing to reinstate unfair labor prac- tice strikers upon their unconditional offers to return to work. (c) Threatening that it would discharge employees for supporting within a strike. (d) Interrogating employees concerning their support of a strike. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer James Allen, Jose D'Encarnacao, Dennis Foley, Gary Klemme, Wayne Lawson, Tony Perry, Simon Prenowitz, John Reeder, Kevin Tobin, and Robert Wood full and immediate reinstatement to their 29 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 fir all purposes former positions or, if those positions no longer exist, to substantially equivalent positions, discharging if neces- sary any replacements, without prejudice to their senior- ity or other rights previously enjoyed, and make them whole for any loss of pay or other benefits suffered by reason of the discrimination against them in the manner described above in the section entitled "The Remedy." (b) Post at its San Francisco, California, facility copies of the attached notice marked "Appendix." 30 Copies of said notices, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by 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. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all the records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (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. so In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 15