Brinkerhoff Signal Drilling Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brinkerhoff Signal Drilling Co. and Alaska Rough- necks and Drillers Association Brinkerhoff-Nabors Joint Venture 36 Drilling Co. and Alaska Roughnecks and Drillers Associ- ation. Cases 19-CA-12160 and 19-CA-12161 September 29, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 28, 1981, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief,' and Re- spondents filed exceptions, amended 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,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein and set forth below. 1. We agree with the Administrative Law Judge's findings that Respondent Brinkerhoff Signal Drilling Co. (hereinafter referred to as Re- spondent Brinkerhoff) violated Section 8(a)(l) of the Act by creating the impression that economic strikers who were seeking to return to work were not being granted their Laidlaw preference4 in em- I We find no merit in the General Counsel's motions to strike Re- spondents' exceptions, brief, table of contents, and amended exceptions inasmuch as they were timely filed in conformance with the Board's Rules and Regulations. a In response to the parties' motions and exceptions, we note errors in the Administrative Law Judge's Decision: (I) Fn. 4 of the Administrative Law Judge's Decision should state that it was impossible to "picket," not "strike," at Rigs 36 and 58 because they were situated at remote loca- tions; (2) sec. l(c)(g) of the Administrative Law Judge's Decision should state that Mike Pearson signed the employment application register on October 29, rather than on October 9; (3) fn. 23 of the Administrative Law Judge's Decision incorrectly spells employee "Rask's" name as "Rasch." Respondents have 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. 3 In his exceptions, the General Counsel contends, inter alia, that the Administrative Law Judge should have included in his recommended remedy that Respondents make the discriminatees whole for any loss of wages or other benefits they may have suffered. We find that the Admin- istrative Law Judge's recommendation that the discriminatees shall be made whole for "any loss of earnings" includes any loss of benefits. Laidlaw Corporation v. N.L.R.B., 414 F.2d 99 (7th Cir. 1969). 264 NLRB No. 49 ployment over new applicants. We note, however, that the Administrative Law Judge failed to find that both Respondent Brinkerhoff and Respondent Brinkerhoff-Nabor Joint Venture 36 Drilling Co. (hereinafter referred to as Respondent Joint Ven- ture) violated Section 8(a)(1) by requiring returning strikers to fill out and sign an employment applica- tion register which did not distinguish between ap- plicants for employment and returning strikers. As found by the Administrative Law Judge, Re- spondent Brinkerhoff is the operating partner in Respondent Joint Venture. In that capacity, Re- spondent Brinkerhoff conducts the day-to-day op- erations of the Joint Venture including the hiring and firing of employees. Due to union negotiations, Respondent Joint Venture and Respondent Brin- kerhoff shut down their respective operations at oil Rigs 36 and 43. Subsequent to the shutdown, Re- spondents' employees engaged in an economic strike. Before the cessation of the strike, Respondents resumed operation of Rigs 36 and 43. Pursuant to their policy of restaffing temporarily shutdown rigs with laid-off employees, Respondents attempted to contact each employee who had been employed on Rigs 36 and 43. Due to the strike several employ- ees rejected Respondents' offer. Respondents, in turn, filled vacant positions by using applicants who had answered help-wanted ads placed by Re- spondents. The record establishes that individuals who answered the help wanted ads were instructed to fill out an employment application register locat- ed in Respondent Brinkerhoff's front office. Re- spondents' operations manager testified that both new and previously employed employees fill out this register and that Respondents refer to the reg- ister when personnel is needed. In this context, the record also establishes that when the returning strikers requested reinstatement, agents of Respond- ents not only informed them that there were no jobs available because there were a significant number of applicants ahead of them on the register, but also instructed them to sign and fill out the same employment application register used by new employees. For example, employee Douglas Rask, who prior to the strike had worked for Respondent Brinkerhoff on Respondents' Rig 43, was informed that there were no job openings, that he should place his name on the employment register, and that over 600 applicants had already signed the register. Employee Mike Pearson, who prior to the strike had worked for Respondent Joint Venture on Respondents' Rig 36, was informed that there were no job openings and that he too should sign the employment application register. 348 BRINKERHOFF SIGNAL DRILLING CO. Based on the foregoing, the Administrative Law Judge correctly found that the statements made by Respondent Brinkerhoff's agents violated Section 8(a)(l) of the Act by creating the impression that economic strikers were not being granted prefer- ence in employment over new applicants. In this same context, and under these circumstances, we also find that both Respondents violated Section 8(a)(l) of the Act by further requiring returning strikers to fill out the employment application reg- ister which gave strikers the impression that they were not being granted preference in employment. 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Brinkerhoff Signal Drilling Co., Anchorage, Alaska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to reinstate economic strikers who have unconditionally requested rein- statement when work for which they are qualified becomes available. (b) Giving economic strikers who have requested reinstatement the impression that it was hiring other applicants with less seniority ahead of them. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: 5 In determining whether the alleged discriminatees in this case were entitled to preferential hiring rights the Administrative Law Judge stated, inter alia, that the discriminatees must have "engaged in conduct which was reasonably calculated to alert" Respondents to the fact that they were strikers. The General Counsel has excepted to this finding asserting that other than a showing that an employee was a striker and that he made an unconditional request for reinstatement, knowledge is not an ele- ment of the prima facie case. Under the circumstances of this case, and given the ambiguity created by the employees' inactive status at the time the strike began, we find that it was reasonable to require the General Counsel to show that the employees engaged in some overt action giving Respondents reasonable notice of their strike support. See Connecticut Distributors Inc., 255 NLRB 1255 (1981) (employee Perry). We further agree with the Administrative Law Judge's finding that employee Wyne did not occupy the status of a striker inasmuch as he was unable to work dunng the strike and therefore was unable to with- hold his labor from Respondent Joint Venture in support of the strike. Before the strike, Wyne was laid off when Rig 36 was shut down. Two days later, still before the strike, he broke his arm and because of that injury was unable to work until after the strike ended. In these circum- stances, we find, contrary to the General Counsel's contention, that Wyne's performance of picket line duty during the strike does not con- vert his status to that of an economic striker. Wyne is not entitled to any greater status because of the strike than he would have, had no strike oc- curred. In either case, his disabling injury would have prevented him from working for Respondents. Since there is no contention that Wyne was denied accrued disability benefits, E L Wiegand Division, Emerson Electric. Ca, 246 NLRB 1143 (1979), relied on by the General Counsel, is inapposite. (a) Make whole George Brewster, Douglas Kelly, Douglas Rask, Billy Ray Jackson, and David Stewart for any loss of earnings and benefits suffered as the result of our discrimination against them in the manner set forth in the Administrative Law Judge's Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Anchorage, Alaska, facility, and at its several rigs, copies of the attached notice marked "Appendix A."6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent Brinkerhoff'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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days' from the date of this Order, what steps Respondent has taken to comply herewith. B. Respondent Brinkerhoff-Nabors Joint Venture 36 Drilling Company, Anchorage, Alaska, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving economic strikers who have requested reinstatement the impression that it was hiring other applicants with less seniority ahead of them. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at its Anchorage, Alaska, facility, and at its several rigs, copies of the attached notice marked "Appendix B." 7 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent Joint Venture's authorized representative, shall be posted by Respondent immediately upon receipt 5 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." I See fn. 6, supra. 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX A NOTICE To EMPL OYEES POSTED BY ORDER OF THE NATIONAL LABOR REI ATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to reinstate eco- nomic strikers who have unconditionally re- quested reinstatement when work for which they are qualified becomes available. WE WILL NOT give economic strikers who have requested reinstatement the impression that we will hire other applicants with less se- niority ahead of them. 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 WII.I. make whole George Brewster, Douglas Kelly, Douglas Rask, Billy Ray Jack- son, and David Stewart for any loss of earn- ings suffered as the result of our discrimination against them, with interest. BRINKERHOFF SIGNAI DRILLING CO. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILI. NOT give economic strikers who have requested reinstatement the impression that we will hire other applicants with less se- niority ahead of them. 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. BRINKERHOFF-NABORS JOINT VEN- TURE 36 DRI.L ING CO. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this consolidated proceeding took place No- vember 20, 1980, and January 27 and 28, 1981. It is based on separate unfair labor practice charges filed on March 5, 1980, by Alaska Roughnecks and Drillers Association, herein called the Union, in Case 19-CA-12161 against Brinkerhoff-Nabors Joint Venture 36 Drilling Co., herein called Respondent Joint Venture, and against Brinkerhoff Signal Drilling Co., herein called Respondent Brinker- hoff. On April 30, 1980, the General Counsel of the Na- tional Labor Relations Board, herein called the Board, through its Regional Director for Region 19, issued a consolidated complaint in these cases which was amend- ed at the start of the hearing and again at the start of the second day of the hearing. The amended consolidated complaint alleges that Respondents violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Specifically, the com- plaint as amended alleges that Respondents violated Sec- tion 8(a)(3) and (1) of the Act by failing to reinstate to their former or substantially equivalent positions 10 em- ployees who engaged in an economic strike against Re- spondents and requested reinstatement at the conclusion of the strike. The complaint as amended also alleges that Respondents violated Section 8(a)(l) of the Act by main- taining an employment application register that did not distinguish between applicants for employment and re- turning strikers, by informing strikers that it would be futile to place their names on the employment applica- tion register because there were so many applicants ahead of them, by threatening a striker that neither the striker nor the Union would ever get into employment by Respondents again, and by requiring a striker to fill out a job application in order to be reemployed. Re- spondents filed an answer to the amended consolidated complaint denying the commission of the alleged unfair labor practices.' Upon the entire record, including my observation of the witnesses and upon consideration of the briefs, I make the following:2 Respondents' answer admits that the Union is a labor organization within the meaning of Sec. 2(5) of the Act and that each Respondent meets the Board's applicable discretionary jurisdictional standard and is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. 2 1 have taken judicial notice of the proceedings ii Cases 19-RM-1657 and 19-RM-1603, as requested by the General Counsel, but since those cases are not relevant to the instant proceeding I have not relied upon them in deciding any of the issues herein. I have rejected Respondents' argument that the Regional Director's dismissal of the prior charges filed by the Union in Case 19-CA-12010 is res judicala as to some of the alleged discriminatees herein or that said dismissal estops the Board from proceeding in this case. The Regional Director's action in Case 19-CA-12010 was taken before the conduct of a hearing and without the opportunity for adjudication of the merits. See Local Union No. 38, Sheet Metal Workers' International Association (Mid- Hudson Sheet Metal Inc.), 183 NLRB 110, fn. 1, 117 (1970). and cases cited therein. 350 BRINKERHOFF SIGNAL DRILLING CO. FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondents drill oil and gas wells for oil companies in the State of Alaska. During the time material Re- spondent Joint Venture operated only one drilling rig, Rig 36, whereas Respondent Brinkerhoff operated sever- al such rigs. Respondents are separate companies, but Respondent Brinkerhoff is the operating partner of the Respondent Joint Venture and as such conducts the day- to-day operations of the Joint Venture, including the hiring and firing of employees and other labor relations matters, as well as its own day-to-day operations. In 1971 Respondents recognized the Union as the col- lective-bargaining representative of their production em- ployees employed in the State of Alaska and thereafter each Respondent entered into separate successive collec- tive-bargaining contracts with the Union covering these employees. Respondents bargained with the Union on the basis of separate bargaining units; namely, one unit covering the employees employed by Respondent Joint Venture on Rig 36 and another unit covering all the em- ployees employed by Respondent Brinkerhoff on its rig in the State of Alaska. The collective-bargaining agree- ments in effect during the time material herein had a common expiration date of July 31, 1979. In the spring of 1979 the Union commenced negotiations with Re- spondents for successor agreements but by the termina- tion date of the existing agreements was unable to reach agreement. During the period immediately prior to July 31, 1979,3 Respondent Joint Venture was operating Rig 36 and Re- spondent Brinkerhoff was operating Rigs 43, 58, and 59. Respondents heard rumors that their employees did not intend to continue working after the expiration date of the current contract, but intended to walk off their jobs and picket Respondents' rigs. A sudden walkout would pose a danger to the rigs, so Respondents, in anticipation of an employee walkout, decided to shut down Rigs 36 and 43 which were in a position to be shut down with- out difficulty, whereas the drilling positions of Rigs 58 and 59 made it impossible for those rigs to be shut down. On July 31 Rig 36 was shut down and on August 3 Rig 43 was shut down; all the employees employed on those rigs were laid off. Rigs 58 and 59 continued to operate. The personnel action notice prepared by the supervisors of the employees laid off from Rig 43 stated that the em- ployees were laid off "due to ARDA Union negotia- tions." The Union, in order to assure Respondents that Respondents' fears of a union strike were unfounded, wrote Respondents in August, immediately after the shutdown of Rigs 36 and 43, that its members employed on those Rigs "are not engaged in concerted activity of any type and are ready and willing to return to work." The contract negotiations between the Union and Re- spondents reached an impasse in the middle of Septem- ber and no further bargaining took place thereafter. In September the Union's membership voted to conduct a 3 All dates hereafter refer to the year 1979 unless otherwise specified. secret mail ballot election to decide whether or not to authorize the Union to conduct a strike against Respond- ents in support of the Union's contract demands. A mail ballot strike vote was in fact conducted among the mem- bership. The ballots were opened on September 24 and the tally of ballots revealed that a majority of those members who cast ballots voted to authorize the Union to call a strike. The Union's officers on September 24 im- mediately notified the membership of the results of the election and instructed the membership to commence a strike that day against Respondents' business operations. On September 24, when the strike began, only Rigs 58 and 60 were operating, Rigs 36 and 43 having been shut down 6 weeks earlier. Rigs 58 and 60 operated through- out the strike and Rigs 36 and 43, as described infra, re- sumed operations in October prior to the cessation of the strike. During the strike the Union's members picketed Re- spondents' operations. Specifically, picketing was con- ducted on a continual basis at Respondent's office in An- chorage, Alaska, and at the sites of Rigs 43, 59, and 60 and at the airport when Respondent Joint Venture re- sumed operating Rig 36, with signs stating that the Union was conducting a "strike" against Respondents. 4 Some of the employees who were working at the start of the strike on Rigs 58 and 60 withheld their services from Respondent Brinkerhoff in support of the strike. 5 How- ever, a substantial number of the Union's members did not support the strike and continued to work for Re- spondent Brinkerhoff and returned to work when Re- spondent Joint Venture resumed operating Rig 36 and when Respondent Brinkerhoff resumed operating Rig 43. Since there were so many union members not honoring the picket lines and working for Respondents, the Union's executive board, less than a month after the start of the strike, decided to end the strike. On October 19 the representatives of the Union pursuant to the execu- tive board's decision notified the membership that the strike was over, to stop picketing and to return to work. Early in October Respondents decided to resume oper- ating Rigs 36 and 43. Pursuant to their policy of staffing rigs which were shut down with the same employees who had been employed at the time of the shutdown, 4 There was no picketing at the sites of Rigs 36 and 58 because the) were situated in remote locations where it was not possible to strike 5 In this regard I note Operations Manager Dunbar testified that Rig 58 continued to operate despite the picketing "with the people that did not walk off and supervisors." See also G.C. Exh 13 6 The evidence set forth in the text. supra, overwhelmingly established that the Union. in support of its bargaining position in its onil-act negoti- ations with Respondents, sanctioned a strike against Respondents' oper- ations from September 24 through October 19. 1 have considered that a union representative never notified a representative of Respondents in person or in writing about the strike, that less than a majority of the Union's membership voted to authorize the strike, that the strike was not successful, and that the Union, at a State of Alaska unemployment corn pensation hearing, may have taken the position that the workers laid off from Rigs 36 and 43 were entitled to unemployment compensation bene- fits until October 20. These considerations do not, in m) opinion, detract from the weight of the other evidence set forth In detail iupra, which overwhelmingly establishes that the Union authorized a strike against Re- spondents from September 24 through October 19 and that ;he picketing herein was a part and parcel of that strike. 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents contacted each employee who was em- ployed on Rigs 36 and 43, at the time they were shut down, for the purpose of asking said employees to return to work. A significant number of these employees reject- ed Respondents' offers of reemployment or did not return Respondents' phone calls. Respondents filled the vacant positions by using applicants for employment, in- cluding applicants who had answered a help-wanted ad placed by Respondents in an Anchorage, Alaska, news- paper.7 The record reveals that Rig 43 went back into operation on October 4 and that Rig 36 resumed oper- ation on October 16. B. The Alleged Violations of Section 8(a)(1)8 I. Respondents leave strikers with the impression that they are not being given preference in employment over other applicants with less seniority Respondent maintains an employment application reg- ister which is divided into several columns: date; name of applicant; age; phone number; address; last employer's address; position desired and years of experience in the several positions which comprise a drilling crew. Re- spondents' operations manager, Jack Dunbar, testified that the purpose of this register is as follows: We have a roster on our front desk for people coming in and out of work, and when new employ- ees or people who worked for us in the past come in and sign the roster they do not have to fill out an application. They sign a roster in case we need per- sonnel. I'll go back and refer to this roster for years of experience and all. That is where we pick out our people. We have done that for many years. The employment application register is located on the front desk in Respondents' office where Respondents' as- sistant office manager, Vivian Walton, usually sits, and is under Walton's supervision, or whoever sits in for Walton when she is absent. The record establishes that a substantial number of ap- plicants answered Respondents' help-wanted advertise- ment published during the strike and that these appli- cants signed and filled out the employment application register in the order that they applied. The record also establishes that at the conclusion of the strike when some of the strikers asked representatives of Respondent Brin- kerhoff to return to work they were instructed to sign and fill out the employment application register and that there were a significant number of applicants ahead of them on the register.9 Douglas Rask, a striker, phoned 7 the advertisement informed applicants that Respondents were hiring "drilling crews," listed the positions and wage rate and other benefits, and advised applicants to "sign up" at Respondents' office and that "ap- plicants may have to cross a picket line." I The General Counsel's post-hearing brief does not urge that Re- spondents, as alleged in the amended complaint, required a striker to fill out a job application form as a condition of employment. I shall recom- mend the dismissal of this allegation because there is insufficient evidence in the record to support it a This finding is based on the testimony of strikers Rask, Brewster, and Jackson, which has been set out in detail infra, and which was uncontro- verted except for the testimony of Walton that she did not speak to Respondents' office during the week of October 22 about employment and spoke to either personnel secretary Miller or Assistant Office Manager Walton. He was in- formed that there were no job openings and that he should place his name on the employment application register, but that over 600 applicants had already signed the register. The following week Rask visited the office to sign the register. Rask, observing that there were a significant number of applicants already on the register, asked Walton how many applicants were ahead of him on the register. Walton advised him that there were over 600 applicants ahead of him. Rask did not sign the regis- ter. George Brewster, a striker, phoned Respondents' office during the week of October 22 and spoke to the person at the receptionist desk who answered the phone. Brewster was not able to identify the voice of the person who answered the phone but testified it was a lady. Brewster identified himself and stated he wanted to return to work. The person who answered the phone stated that there were no job openings, that Brewster should come to the office and sign the employment ap- plication register, and that there were about 1,500 appli- cants on the register. Brewster signed the register on No- vember 14 and thereafter, during November and Decem- ber, phoned the office and asked about his chances of re- turning to work; he was advised by the persons answer- ing the phone that Respondents, as a result of the help- wanted advertisement, had a number of job applicants and that Brewster should get his name on the register along with the names of other applicants. Billy Ray Jackson, a striker, visited Respondents' office during No- vember and asked Vivian Walton if there were any job openings. Walton stated there were no openings and ad- vised Jackson that there were 3,000 applicants waiting on the employment application register. The aforesaid statements made by representatives of Respondent Brinkerhoff' ° to strikers Rask, Brewster, and Jackson were reasonably calculated to create the im- pression that the strikers who were seeking to return to work were not being granted preference in employment over the applicants who had previously signed the em- ployment application register and had never worked for Respondent Brinkerhoff. By engaging in this conduct Respondent Brinkerhoff violated Section 8(a)(1) of the Act. " anyone about the number of applicants on the employment application register or estimate this number. I have credited Rask, Brewster, and Jackson over Walton where there is a conflict in their testimony because demeanorwise they impressed me as more credible witnesses. '0 I am of the opinion that Respondent Brinkerhoff is responsible for the statements voiced by Walton and Miller as well as for the statements of the unidentified person who spoke to Brewster, inasmuch as Respond- ent Brinkerhoff placed them in a position whereby the returning strikers could reasonably believe they spoke on behalf of management. The record establishes that the employment application register was located on Walton's desk, that Walton was primarily responsible for the register and for dealing with applicants who phoned the Employer, that manage- ment uses Walton and Miller as its liaison in speaking with applicants, and that if the unidentified lady whom Brewster spoke to was not in fact Walton then she must have been the person who was susbstituting for Walton and who, in Walton's absence, was responsible for performing Walton's duties with respect to the employment application register. II The law is settled that economic strikers who have been permanent- ly replaced retain their status as employees and, if jobs are not available Continued 352 BRINKERHOFF SIGNAL DRILLING CO. 2. The alleged threat The amended complaint alleges that Respondents Op- erations Manager Dunbar threatened a striker with repri- sals for supporting the strike. In support of this allega- tion, David Stewart, who during the strike picketed in front of Respondents' office, testified that while he was picketing Dunbar yelled out to him that neither Stewart nor the Union would ever get into the Company again. 1 2 Dunbar testified that he never voiced the remark attributed to him. Since Dunbar impressed me as a more credible witness than Stewart while testifying about this particular episode, I have rejected Stewart's testimony. I therefore shall recommend that this allega- tion be dismissed. C. The Alleged Violations of Section 8(a)(3) and (1) of the Act 1. The applicable legal principles The amended complaint alleges that Respondents in violation of Section 8(a)(3) and (1) of the Act failed to reinstate 10 employees who engaged in a strike author- ized by the Union even though these employees had un- conditionally requested reinstatement. The applicable principles of law which govern this allegation are briefly stated. Economic strikers retain their status as "employees" under Section 2(3) of the Act'3 and thus have a right to be reinstated to their former positions at the conclusion of a strike. An employer who refuses or delays the rein- statement of economic strikers violates Section 8(a)(3) and (1) of the Act unless the employer can show "legiti- mate and substantial business justifications" for the em- ployer's actions. N.L.R.B. v. Fleetwood Trailer Co., supra; N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967); The Laidlaw Corporation v. N.L.R.B. supra at 103-107. Since an employer has a substantial and legiti- mate business justification for hiring permanent replace- ments in order to continue his business during an eco- nomic strike, he need not discharge those replacements to create vacancies for strikers who wish to return to work and may lawfully refuse to reinstate strikers whose positions are occupied by such replacements when the strike ends. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938); N.L.R.B. v. Fleetwood Trailer Co.. supra. However, even when economic strik- ers have been permanently replaced, they are "entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment or unless the em- ployer has sustained his burden of proof that the failure upon their unconditional application for reinstatement, are entitled to be placed on a preferential hiring list ahead of other applicants with less se- niority. The Laidlaw Corporation v. N.LR.B., 414 F.2d 99, 103 (7th Cir. 1969); N.L.R.B. v. Fleetwood Trailer Ca, 389 U.S 375. 379-381 (1968). Elsewhere in this Decision I have found that Rask, Brewster, and Jack- son were employees of Respondent Brinkerhoff engaged in a strike against that Employer and that Respondent Brinkerhoff had knowledge of their striker status. 12 Stewart did not date this alleged threat. ' Sec. 2(3) provides that the term "employees" "shall include any in- dividual whose work had ceased as a consequence of, or in connection with, any current labor dispute . . to offer full reinstatement was for legitimate and substan- tial business reasons." The Laidlaw Corporation v. N.L.R.B., supra, 414 U.S. at 103. Accord: N.L.R.B. v. Fleetwood Trailer Co., supra, 389 U.S. at 379-381. With- out such proof, a refusal to reinstate employees after a strike constitutes an unfair labor practice, despite the ab- sence of bad faith or union animus, since such refusal "discourages employees from exercising their rights to organize and to strike guaranteed by Sections 7 and 13 of the Act ... N." N.L.R.B. v. Fleetwood Trailer Co., supra, 389 U.S. at 378; N.L.R.B. v. Murray Products, Inc., 584 F.2d 934, 939 (9th Cir. 1978). 2. The status of the employees laid off from Rigs 36 and 43 prior to the strike Several of the alleged discriminatees worked for Re- spondents on Rigs 36 and 43 and were laid off prior to the strike when those rigs were shut down. Respondents take the position that these alleged discriminatees are not strikers because they could not withhold their labor since they were not employed by Respondents when the strike began. Section 501(2) of the Act defines "strikes" as encom- passing "any strike or other concerted stoppage of work by employees . . . and any concerted slow-down or other concerted interruption of operations by employ- ees." Thus, in evaluating Respondents' contention that the laid-off employees were not strikers it is necessary to first examine the content and meaning of the term "em- ployee" as used in the statute. In Section 2(3) of the Act, Congress stated that "'employee' shall include any em- ployee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states oth- erwise ... ." In thus describing the term, Congress did not essay any restrictive definition but drew the term broadly to accommodate the various and changing em- ployment arrangements and relationships which might arise between parties during the course of disputes cov- ered by the statute. As the Supreme Court noted in the Phelps Dodge case: 14 The policy [Congress] expressed in defining "em- ployee" both affirmatively and negatively, as it did in Section 2(3), had behind it important practical and judicial experience .... This was not fortu- itous phrasing .... The broad definition of "em- ployee," "unless the Act explicitly states otherwise" . . .expressed the conviction of Congress "that dis- putes may arise regardless of whether the disputants stand in the proximate relation of employer and em- ployee". ... In that case, the Court held that applicants who were discriminatorily denied employment were entitled to the same statutory protections as "employees" even though they were not under a contract of hire when the discrim- ination occurred. In short, whether the laid-off workers involved in this case had the status of "employees" as used in the statute depends upon considerations of the peculiar character of the intended relationship or ar- i4 Phelps Dodge Corp. v. N.L.R.R., 313 UI.S. 177, 191-192 (1941). 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rangement between these workers and Respondents, and is not controlled exclusively by any immediate employee- employer nexus. In the instant case the record reveals that Respondents intermittently shut down their rigs for various periods of time and resume operating them and that as a matter of policy, upon resuming operations, employ the same crew of workers which are employed on the rig when it is shut down. Consistent with this policy Respondents, when they resumed operating Rigs 36 and 43 in October, offered employment to the workers who were employed on those rigs when they were shut down. In other words, Respondents when they shut down Rigs 36 and 43 committed themselves to reemploy the employees who were laid off. Because of this I find that an estab- lished arrangement and course of employment was con- templated by Respondents affecting the employees laid off from Rigs 36 and 43 which has sufficient characteris- tics of certainty and continuity to warrant the conclusion that they remained employees of Respondents during the period of conclusion that they remained employees of Respondents during the period of their layoff even though they do not stand in the proximate relation of employer and employee. Cf. Phelps Dodge Corp. v. N.L.R.B., supra at 191-192. I further find that alleged discriminatees Rask, Brewster, Jackson, and Kelly, who worked on Rig 43 at the time it was shut down, became strikers in or about October when they refused to accept Respondent Brinkerhoff's offers to return to work on Rig 43.15 By engaging in this conduct these employees withheld their services from Respondent Brinkerhoff in support of the Union's strike and thereby became strik- ers.16 3. The alleged discriminatees a. Fred Wyne Wyne was a floorman on Rig 36 who was laid off on July 31 with the other workers when the rig was shut down. On August 2 Wyne broke his arm in an auto- mobile accident and was unable to work until October 26, the date on which his doctor stated he was "released for work."' 7 In August, while in hospital, Wyne was no- tified by Respondent Joint Venture that he needed a work release to return to work. During the strike Wyne performed picket duty for the Union at Rigs 43 and 60. Respondents contend that they have no obligation toward Wyne under the Act because he as unable to do that which is the sine qua non of striker status: voluntar- ily withhold his services from Respondents in support of a labor dispute. The General Counsel agrees that because '5 The record establishes that when Rig 43 resumed operating in Octo- ber, prior to the end of the strike, Rask, Brewster, Jackson, and Kelly were notified by their drillers that the rig was about to go back into op- eration and were asked by their drillers to return to work, but they turned down the job offers because of the picket line. I note that since Rig 43 was a "drive to rig" it was customary procedure for Respondent Brinkerhoff when this rig resumed operation after a shutdown to contract a drilling crew through the drillers. I I The striker status of the employees laid off from Rig 36 prior to the strike is discussed infra. 17 Wyne's doctor on October 16 gave him a note stating he was able to return to work on October 26. "Wyne was injured before the strike and was not re- leased for work until after the strike . . . it appears that Wyne would not be entitled to reinstatement under Laid- law inasmuch as he was never in a position to withhold his labor from Respondent." (Br., p. 33.) However, the General Counsel contends that by appearing on the picket line Wyne participated in the strike thereby plac- ing himself in the position of forfeiting accrued sick and accident benefits, citing E. L. Wiegand Division, Emerson Electric Co., 246 NLRB 1143, (1979), and from this he argues that it would be incongruous to impose the obli- gations of a striker on Wyne without also granting him the statutory benefits normally accorded an economic striker. As described above, due to his broken arm Wyne was unable to work during the strike, thus, he was unable to withhold his labor from Respondents in support of the strike. I therefore find that Wyne did not occupy the status of a striker."s In view of this Respondents were under no obligation to afford him the statutory rights of an economic striker. The Board's Decision in Emerson Electric is inapposite and, in any event, there is no con- tention or evidence that Respondents penalized Wyne for his participation in the strike by terminating his disability benefits. It is for these reasons that I shall recommend that the allegation in the amended complaint pertaining to Wyne be dismissed. b. Douglas Rask Rask was employed on Rig 43 and was laid off due to the shutdown of that rig in August. During the strike he picketed Rigs 43 and 60. When Respondent Brinkerhoff decided to resume operating Rig 43 during the strike Rask was asked to return to work on that rig by Waters, the driller he was working for at the time the rig was shut down. Rask declined the offer, explaining to Waters that he would not cross the Union's picket line. On Oc- tober 20, the day after the strike ended, Rask phoned Waters and told him that the strike was over and he was now available for work. Waters told him there was no room on his crew as he already had hired a full crew. Early during the week of October 22 Rask phoned Re- spondents' office and spoke to either Personnel Secretary Miller or Assistant Office Manager Walton. He identified himself and stated that now that the strike was over he desired to return to work but knew from his conversa- tion with driller Waters that there were no job openings on Rig 43 and asked if there were any openings on other rigs. He was advised that there were no vacancies on any of the rigs and that his name was about 656 on the employment application register. On or about November 2 Rask visited Respondents' office to sign the employment application register but when he observed there were a substantial number of names already on the register he asked Walton how many applicants were ahead of him on the register. Walton told him there were over 600 applicants. Rask did not sign the register. 18 Respondents' several other defenses in Wyne's case have not been Considered because of this finding 354 BRINKERHOFF SIGNAL DRILLING CO. On November 23 Rask accepted regular employment with an employer other than Respondents which w*as substantially equivalent to his employment with Re- spondent Brinkerhoff. Previously, Respondents had not offered to reinstate him since Waters' offer prior to the end of the strike. As I have found, supra, Rask was an employee of Re- spondent Brinkerhoff during the time material herein and became a striker when he withheld his labor from Re- spondent Brinkerhoff by refusing driller Waters' offer of reemployment. I further find that Respondent Brinker- hoff knew of Rask's status as a striker. Thus. Rask during the strike publicly enmeshed himself in the strike activi- ties by picketing Respondent Brinkerhoff and inasmuch as there was a rig operating at one of the sites he picket- ed, it is a fair inference that Respondent Brinkerhoff, through its supervisors, knew about Rask's picketing.'5 This, plus Rask's refusal to accept driller Waters' request to return to work during the strike because he did not want to cross the picket line, warrants the inference that Respondent Brinkerhoff knew that Rask had withheld his services from Brinkerhoff because of the strike when it resumed operating Rig 43 during the strike. 20 I also find that Rask unconditionally requested Re- spondent Brinkerhoff to reinstate him to a position on Rig 43 when he phoned driller Waters on October 20 and stated he was now available for work since the strike had ended. 2 ' Thereafter on or about October 24 when Rask spoke to either Walton or Miller about returning to work I find that Rask unconditionally requested Re- spondent Brinkerhoff to reinstate him to any position that it had available regardless of rig. 22 It is undisputed that Rask, prior to his aforesaid requests for reinstate- ment, had been permanently replaced; thus, the question 9 Operations Manager Dunbar did not specifically deny knowledge of Rask's picketing 20 In imputing the knowledge of driller Waters to Respondent Brinker- huff I have relied upon the fact that .ln drise-to-rigs such as Rig 43 Re- spondent Brilikerhoff in effect authorizes the drillers to hire the enlplo)- ces and the driller is in charge of his crew 21 As I have found supra, on drive-to-rigs such as Rig 43 the dnllers have been, in effect, given the authority to hire the employees they direct. They select the initial crews and the replacements for vacancies which may later occur. subject to the final approval of management which grants such approval in at least 95 percent of the time. Under these circumstances Respondent Brinkerhoff placed its drillers who worked on drive-to-rigs such as Rig 43 in a position where the returning strikers who worked under their direction could reasonably believe that it was the drillers whom they should contact when they wanted to return to work on a specific rig Howsever, it is clear from the record that appli- cants, including former cres members, knew that the hiring authority of a driller was limited to that driller's rig 22 As I have found suprau I am persuaded that the record establishes that Respondents placed Miller and Walton in positions where applicants front employment reasonably could believe that on matters of employ- ment Walton and Miller spoke for management and that applicants in making their desires known to management should speak to Miller or Walton. Thus, it is plain from Operations Manager Dunbar's testimony that he only rarely spoke to employees about matters dealing with their employment but used Walton and Miller as conduits to convey his mes- sages and to receive messages from applicants. Walton testified she was primarily responsible for maintaining the employment application register which was on her desk and further testified she was the "liaison" be- tween applicants and management and was the person who explained em- ployment procedures to applicants. Miller testified that she acts as a con- duit between management and applicants regarding matters of employ- ment involving "camp rigs." for decision is whether a job became available on a rig operated by Respondent Brinkerhoff for which Rask was qualified23 between October 20 and November 23, the date on which Rask accepted regular and substantially equivalent employment. In this respect, the record estab- lishes that Rask qualified to perform the work of floor- man and that there were a number of such vacancies on rigs operated by Respondent Brinkerhoff2 4 during the relevant period of time for which Rask qualified.26 Re- spondent Brinkerhoff has not advanced any legitimate or substantial business reasons for refusing to reinstate him to any one of these vacancies. I therefore find that Re- spondent Brinkerhoff violated Section 8(a)(1) and (3) of the Act by refusing to reinstate Rask when work for which he was qualified became available after he had un- conditionally requested reinstatement. c. George Brewster Brewster worked for Respondent Brinkerhoff on Rig 43 and was laid off on August 3 due to the shutdown of that rig. During the strike he picketed Rig 59 which was not operating but was observed by one of the tool push- ers for that rig who spoke to him on the picket line. 26 During the strike Brewster's driller, Waters, in prepara- tion for the resumption the operation of Rig 43, told him that the employer intended to "fire up" Rig 43 and asked if he wanted to go back to work. Brewster answered that, while he wanted to return to work, he would not cross the picket line. On October 20, the day after the strike ended, Brew- ster phoned driller Waters and told him the strike was over and he wanted to return to work. Waters advised him that his crew was full and that Brewster would have to go through the office. The next working day, Monday, October 22, Brewster phoned Respondents' office. He introduced himself to the lady who answered the phone and stated he had worked on Rig 43 prior to 2: Respondent Brinkerhoff appears to contend that, in considering the vacancies for which Rasch and the other alleged discriminatees who it employed were eligible to fill. only those rigs from which the discrimina- tees withheld their services should be considered. I disagree because it is undisputed that all of the rigs owned and operated by Respondent Bnn- kerhoff comprise a single bargaining unit-the unit which was involved in its labor dispute with the Union which resulted in the instant strike. 24 In determining whether work became available for the strikers who were employed by Respondent Brinkerhoff after they had unconditional- ly requested reinstatement I have not considered vacancies on Rig 36 op- erated by Respondent Joint Venture for, even though Respondents may constitute a single employer for purposes of the Act, the record also es- tablishes that the employees of Respondent Brinkerhoff and the employ- ees of Respondent Joint Venture were covered by separate collective- bargaining agreements encompassing separate bargaining units and they do not have common seniority. In other words, although Respondents may be a single employer, each enterprise is a separate unit for purposes of collective bargaining. See A-I Fire Protection. Inc., 233 NLRB 38, 39 (1977). The fact that both employers use the same group of applicants as a source of employees and there have been isolated instances where em- ployees have been transferred between employers does not alter this con- clusion. 15 The record reveals the following vacant floorman positions: vacan- cies filled on Rig 60 by T. Johnson 10-25-79, D. Pink 11-7-79, and A. Thompson 11-8-79; vacancies on Rig 58 filled by Lubold and Merideth on 11-2 -79; a vacancy filled on Rig 43 by M. Egholm on 11-8-79. 26 A tool pusher is the top ranking member of management stationed at the site of the rig; he is in charge of the rig and is a supervisor within the meaning of the Act. 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike and was ready to return to work. The lady stated that there were 1,500 applicants on the employ- ment application register, that Brewster could come in and sign the register, but there were no job openings. Brewster lives 180 miles from the office and visited it on November 14 at which time he signed the employee ap- plication register and among other things listed his mail- ing address and phone number where he could be con- tacted. On December 30 Brewster accepted regular employ- ment with an employer other than Respondents which was substantially equivalent to his employment with Re- spondent Brinkerhoff. Respondents prior to this had not offered him reemployment other than driller Waters' re- quest that he return to work during the strike. As I have found supra, Brewster was an employee of Respondent Brinkerhoff during the time material herein and became a striker when he withheld his labor from Brinkerhoff by refusing drilling Waters' offer of reem- ployment during the strike. I further find that Respond- ent Brinkerhoff knew of Brewster's status as a striker be- cause Brewster publicly enmeshed himself in the Union's strike activities by picketing Respondent Brinkerhoff's operations where he was observed by a member of man- agement.2 7 This plus Brewster's refusal to accept Waters' job offer during the strike because he did not want to cross the picket line warrants the inference that Respondent Brinkerhoff knew that Brewster had with- held his services from Brinkerhoff when it reopened Rig 43 because of his support for the strike. I find that Brewster unconditionally requested Brinker- hoff to reinstate him to a position on Rig 43 when he phoned driller Waters on October 20 and stated he wanted to return to work. Thereafter, on October 22, when Brewster phoned Respondents' office and indicated he wanted to return to work I also find Brewster uncon- ditionally requested Respondent Brinkerhoff to reinstate him to any position that it had available regardless of the rig.2 8 It is undisputed that prior to these requests Brew- ster had been permanently replaced; thus, the question for decision is whether a job became available between October 20 and December 30, the date on which Brew- ster accepted regular and substantially equivalent em- ployment, for which Brewster was qualified. In this regard the record establishes that Brewster was qualified as a motorman, derrickman, floorman, and roustabout 2T I note that Operations Manager Dunbar did not specifically deny knowledge of Brewster's picketing. 28 I recognize that Brewster was not able to identify the person who spoke to him on Octooer 22 but, as found supra, the persons who normal- ly speak on behalf of Respondents to applicants for employment who phone the office were placed in a position by Respondents where appli- cants could reasonably believe that they spoke on behalf of management in matters dealing with employment. I reject Respondents' contention that in the case of Brewster and other alleged discriminatees its obliga- tion to reinstate them did not begin until the dates that they signed the employment application register. In addition to placing Miller and Walton and the drillers on its drive-to-rigs in a position where the return- ing strikers could reasonably believe they were accepting messages on behalf of management with respect to reemployment, the employment ap- plication register, which was signed by hundreds of applicants who had applied during the strike, on its face was reasonably calculated to lead a returning striker to believe that he was competing for reemployment against scores of other applicants, including nonstrikers with less senior- ity, for a job. and that Respondent Brinkerhoff knew of his qualifica- tions. Also, the record establishes there were numerous vacant positions available on rigs operated by Brinker- hoff during the relevant period of time for which Brew- ster qualified. 29 Respondent Brinkerhoff has not ad- vanced any legitimate or substantial business reasons for refusing to reinstate Brewster to any one of these vacan- cies.3 0 I therefore find that Respondent Brinkerhoff vio- lated Section 8(a)(3) and (1) of the Act by refusing to re- instate Brewster when work for which he was qualified became available, after he had unconditionally requested reinstatement. d. Douglas Kelly Kelly was employed by Respondent Brinkerhoff on Rig 43 and was laid off August I due to the shutdown of that rig. During the strike he picketed Rig 60 which had remained in operation and picketed Rig 43 after it re- sumed operation in October. Kelly was observed picket- ing by Operations Manager Dunbar and General Man- ager Furry. During the strike Kelly's driller on Rig 43, Rasch, apparently in preparation for the resumption of the operation of Rig 43, asked Kelly whether he would cross the picket line and return to work. Kelly told him he would be unable to work behind the picket line. On approximately October 26 Kelly got in touch with Rasch and asked if there was an opening available for Kelly on Rasch's crew. Rasch stated he had a full crew but would let Kelly know if he had a vacancy. Thereaf- ter, on October 31 Kelly phoned Respondents' office and spoke to Walton and after identifying himself asked what the hiring procedure was. Walton told him that he should talk to Operations Manager Dunbar who was out of the office and suggested that Kelly write Dunbar a letter.3 t The next day, November 1, Kelly wrote Dunbar stating he had worked on Rig 43 about 3-1/2 years and wanted to return to work for Brinkerhoff on one of its rigs, preferably as a motorman or derrickman or in whatever position was available. Kelly advised Dunbar that he could be contacted by calling 262-4112 which he stated was a "message phone" and that any message left at that number would be relayed to Kelly. On November 5 Dunbar received this letter. In the middle of November Kelly spoke personally to Dunbar and asked about returning to work. Dunbar advised him that his name had been placed on the employee applica- tion register and that he should stay in touch with Dunbar by speaking to Walton. 29 Derrickman: vacancies on Rig 31 filled by S. Merideth 11-29-79, D. McLend 12-7-79, J. Phillip 12-11-79, W. A Foorest 12-17-79; vacancies Rig 43 filled by H. R. Fisher 11 29-79. Rousrtbout: vacancies on Rig 31 filled by J. Leigh, K. Kirsch, and G. Herman on 12-14-79; C. Sanders on 12-24-79. Floorman: vacancies on Rig 31 filled by J Mclntire 11-29-79, P. Cooper 12-14-79, K. Darby 12-17-79; vacancies on Rig 58 filled by A Lubold and S. Merideth 11-2-79; M. Krato 11-29-79; vacancy on Rig 43 filled on 11-18-79 by M. Egholm. so Completely irrelevant to its obligation to offer Brewster reinstate- ment during the period material herein, October 22 to December 30, is the fact that Brinkerhoff in April 1980 tried for the first time to contact Brewster by phone to offer him a job but could not reach him due to the fact that he did not have a phone number where he could contact him. Sl Kelly lived in Soldotna, Alaska, which is 180 miles from the office which is located in Anchorage 356 BRINKERHOFF SIGNAL DRILLING CO. In December, shortly before Christmas, Kelly went to work for Parker Drilling Company. The job was only a temporary one as he substituted for an injured employee and worked a total of 12 days. On March 15, 1980, Kelly accepted regular and substantially similar employment with this employer. Regarding Brinkerhoffs efforts to offer Kelly rein- statement, Personnel Secretary Miller testified that the Company's record showed that a representative of the Company, whom she did not identify, tried to contact Kelly about a job at the "message number" he had given Dunbar but that the number was nonworking number. Miller did not indicate when this took place but Kelly testified that the message number which he had given Dunbar was the number of his next-door neighbor and that on approximately December 1 the neighbor changed his number. It is undisputed that on December 19 Kelly gave Brinkerhoff three different phone numbers where he could be reached and that it was through the use of one of these numbers that the Company, in April or May 1980, made its next contact with Kelly pertaining to em- ployment. Based upon the foregoing and the record as a whole I find that Respondent Brinkerhoff, other than for the 19-day period from December I to December 19, had a phone number through which it could reach Kelly. As I have found supra, Kelly was an employee of Re- spondent Brinkerhoff during the time material herein and became a striker when he withheld his labor from Brin- kerhoff by refusing driller Rasch's offer of reemployment during the strike. I further find that Respondent Brinker- hoff knew of Kelly's status as a striker inasmuch as Kelly publicly enmeshed himself in the Union's strike activity by picketing Rigs 43 and 60 and was observed doing this by Operations Manager Dunbar and General Manager Furry. This plus Kelly's refusal to accept Rasch's job offer during the strike because he did not want to cross the picket line warrants the inference that Brinkerhoff knew that Kelly had withheld his services from the Em- ployer when it reopened Rig 43 because of his support for the Union's strike. As I have found supra, on October 26 Kelly, through driller Rasch, asked Brinkerhoff for reinstatetment to a position on Rig 43 and thereafter on October 31 asked Brinkerhoff for reinstatement to a job on any of its rigs.3 2 It is undisputed that prior to these requests Kelly had been permanently replaced, thus the question for de- cision is whether a job became available for which Kelly was qualified between October 26 and December I and between December 19 and March 15, 1980, the date on which he accepted regular and substantially equivalent employment.3 3 In this regard the record establishes that 32 As I have found supra, the October 31 request was made to Brinker- hoff through Walton who, for the reasons set forth previously, I have found was held out by Brinkerhoff to the returning stnkers as its agent for purposes of reemployment This conclusion is bolstered by the fact that, as described supra, Dunbar advised Kelly to keep in touch with him by speaking to Walton. as The reason I have excluded the period from December I to Decem- ber 19 is that it was during this period that the phone number which Kelly gave Dunbar for the purpose of contacting him about employment was out of order It was during this period that Respondent Brinkerhoff apparently tried to reach Kelly about employment through this number. I believe it would be inequitable to make Brinkerhoff liable for its failure to reinstate Kelly to job openings which occurred during that period. Kelly was qualified as a motorman, derrickman, floor- man, and roustabout and that the Company knew of his qualifications. Also, the record establishes there were nu- merous vacant positions available on rigs operated by Brinkerhoff during the relevant period of time for which Kelly qualified. 34 Respondent Brinkerhoff has not ad- vanced any legitimate or substantial business reasons for refusing to reinstate Kelly to any one of these vacancies. I therefore find that Respondent Brinkerhoff violated Section 8(a)(3) and (1) of the Act by refusing to reinstate Kelly when work for which he was qualified became available, after he had unconditionally requested rein- statement. e. Billy Ray Jackson Jackson was employed as a floorman on Rig 43 and was laid off on August I when the rig was shut down. During the strike he picketed Rig 60 which had re- mained in operation and he picketed Rig 43 in October after it resumed operation. Jackson was observed while picketing by two of Brinkerhoffs tool pushers, who as noted supra, are in charge of the operations of the rigs and are the highest ranking members of management and are admittedly statutory supervisors. When Rig 43 re- sumed operations in October, Jackson's driller, Al Rasch, asked him to return to work. Jackson refused, explaining to Rasch that he would not cross the picket line. On October 23, following the end of the strike, Jack- son phoned Rask and asked to return to work. Rasch stated he had already replaced'him and had a full crew. About 3 or 4 days later Jackson spoke to Rig 43 tool pusher Davis and asked if Davis could put him to work. Davis stated he had a full crew but that Jackson should check with the drillers. On or about November 6 Jackson visited Respondents' office in Anchorage and spoke to Vivian Walton. He asked if there were any job openings as he wanted to return to work. Walton replied that there were no job openings and that "they had about 3,000 men on the waiting list." Jackson asked to speak to Operations Man- ager Dunbar and asked whether there was any need for him to sign the "waiting list." Walton told him Dunbar was not in the office and she did not reply to his ques- tion about signing the "waiting list." 3 s Thereafter, Jack- 34 For the vacancies which Kelly qualified for dunng the relevant period of time see fn. 29, supra, but exclude those vacancies during the period December I to December 19. For the period after December 30 the vacancies which Kelly qualified for were: derrickman: vacancy Rig 60 filled by O. Pederson 2-18-80. Roustabout: vacancies Rig 31 filled by L. Hile 1-17-80 and K. Mueller 2-4-80. Floorman: vacancies Rig 31 filled by G. Herman I-24-80, Rig 58 filled by J. Weiershanswer 1-18-80; and vacancy Rig 43 filled by R. Kine 1-3-80. 3s The description of Jackson's conversation with Walton is based on Jackson's testimony. Walton did not testify about this conversation. She testified that her normal procedure when an applicant came into the office was to advise them to fill out the employment application register; she denies ever having estimated the number of applicants who had signed the register when speaking to an applicant. I have credited Jack- son's testimony because Walton failed to specifically deny his account but more important is the fact that demeanorwise Jackson seemed to be the more credible witness. In any event, if Walton had advised Jackson to fill out the employment application register his failure to do so is perfectly understandable because Jackson's remarks were calculated to give him Continued 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, on more than one occasion, phoned the office and asked for work. He spoke to Walton and to another person whom he was unable to identify. He identified himself, asked for a job, and asked to talk to Operations Manager Dunbar. He was apparently told there were no job openings and that Dunbar was unavailable. He was not told to sign the employment application register. On April 26, 1980, Respondent Brinkerhoff reemployed Jackson. As I have found supra, Jackson was an employee of Respondent Brinkerhoff during the time material herein and became a striker when he withheld his labor from the employer by refusing driller Rasch's offer of employ- ment on Rig 43. 1 further find that Brinkerhoff knew of Jackson's status as a striker because Jackson publicly en- meshed himself in the Union's strike activities by picket- ing Rigs 43 and 60 and was observed doing this by mem- bers of management. 36 This, plus Jackson's refusal to accept driller Rasch's offer to resume work on Rig 43 during the strike because he did not cross the picket line, warrants the inference that the Employer knew Jackson had withheld his services from the Company when it re- sumed operating Rig 43 during the strike on account of his support of the Union's strike. I further find that on October 23 Jackson through the driller he had worked for on Rig 43 asked Respondent Brinkerhoff to reinstate him to a position on that rig and thereafter on November 6 through Walton asked Brin- kerhoff to reinstate him to a job on any of its rigs. It is undisputed that prior to these requests for employment Jackson had been permanently replaced; thus, the ques- tion for decision is whether a job became available for which he was qualified between October 23 and April 26, the date on which he was reinstated.37 In this regard the record establishes that Jackson was qualified as a mo- torman, floorman, and roustabout and that the Employer knew of these qualifications. The record further estab- lishes that there were numerous vacant positions availa- ble on rigs operated by Respondent Brinkerhoff during the relevant period of time for which Jackson quali- fied.3 8 Respondent has not advanced any legitimate or the impression that rather than being placed on a preferential hiring list, as required by law. Jackson was instead being considered for employ- ment along with hundreds of other applicants with less seniority. 36 I note that Operations Manager Dunbar did not specifically deny having knowledge of Jackson's picketing. a? I realize that on or about April 15 Respondent Brinkerhoff, through Miller, phoned Jackson and offered him a job on one of its rigs. Jackson indicated he would like to accept the offer but that he was employed part time by another company and wanted enough time to give his current employer adequate notice before quitting. It is undisputed that Miller gave Jackson no time to make arrangements to quit his current job but stated he would have to start work immediately. This job offer did not toll Respondent Brinkerhoffs backpay liability because a discriminatee must be granted a reasonable period of time to consider whether to accept such offer, the length of which depends on the factual circum- stances of each particular case. See Murray Products. Inc., 228 NLRB 268 (1977), enfd. 584 F. 2d 934 (9th Cir.). An offer that demands that the em- ployee accept and return to work, on the same day he receives it, is not sufficient to terminate the backpay period. 38 Motorman: vacancies on Rig 31 filled by R. Carlson 11-29-79 and Rig 58 by J. Wilson on 11-2-79; roustabouts; vacancies on Rig 31 filled by J. Leighland, K. Kirsch, G. Hermand, and C. Sanders 12-14-79; L. Hile 1-17-80 and K. Mueller 2-4-80; on Rig 58 filled by A. Lubold and S. Merideth 11-2-79, M. Krato 11-29-79, and J. Weiershanser 1-18-80; Rig 43 filled by T. Kroto 11-23 79; floorman: vacancies on Rig 31 filled substantial business reasons for refusing to reinstate Jack- son to any one of these vacancies. I therefore find that Respondent Brinkerhoff violated Section 8(a)(3) and (1) of the Act by refusing to reinstate Jackson when work for which he was qualified became available, after he had unconditionally requested reinstatement. f. Larry Bramel Bramel was employed by the Joint Venture on Rig 36 until July 31 when, with the other workers on that rig, he was laid off due to the shutdown of the rig. The Union, as described in detail supra, called a strike against the Joint Venture and Brinkerhoff, in connection with its dispute with these employers over the terms of new con- tracts, and the strike lasted from September 24 through October 19. Bramel, having already been laid off, was not working for the Joint Venture at the inception of the strike and did not support the strike by picketing nor did Bramel otherwise publicly indicate his support of the strike. During the strike and after his July 31 layoff, for a period of time not set out in the record, Bramel worked for Eskimo, Inc., on Alaska's North Slope. He was em- ployed by this employer on the day the strike ended. On October 16, Rig 36 resumed operation, and in preparation for this Respondent Joint Venture on Octo- ber 11 and 12 contacted all the laid-off employees, as was its practice in such a situation, for purpose of asking them to return to work. When Bramel was phoned by a representative of Joint Venture he was not home to re- ceive the phone call inasmuch as he was working for Eskimo, Inc., several hundred miles away on Alaska's North Slope. Bramel did not return the Joint Venture's phone call as requested by the message which was left for him. The operations manager of Joint Venture, Dunbar, had previously been informed by some of Bra- mel's fellow workers on Rig 36 that he was employed by Eskimo, Inc., on Alaska's North Slope and had indicated that he intended to remain working for that employer rather than to resume working for the Joint Venture when Rig 36 resumed operating. Dunbar concluded that the reason Bramel had failed to return the Joint Ven- ture's phone call was that he had decided to continue working for the other employer rather than return to work for the Joint Venture. This was not an unusual oc- currence inasmuch as it is undisputed that when rigs resume operation after a shutdown that it is not unusual for several employees to ignore Respondents' message to return to work for a number of reasons including their decision to work for another employer. by J. Mclntire 11-29-79, P. Cooper 12-14-79, K Darby 12-17-79, and G. Herman 1-24-80; Rig 60 filled by T. Johnson 10-25-79. D. Pink II- 7-79, A. Thompson 11-8-79; and Rig 58 filled by M. Egholm 11-18-79 and R. Kine 1-3-80. There were several vacant positions on Rig I which the General Counsel claims Jackson was qualified to fill in April 1980. Hoewever, the record shows that at this time Rig I was acquired by the Employer from another company and virtually all of the predecessor's employees remained in its employ. It appears that a significant number of the alleged vacant positions pointed to by the General Counsel on this rig were filled by the predecessor's employees in which case I would not treat them as vacancies to which the discriminatees herein were entitled to be reinstated. In view of the ambiguity in the record I leave this matter to the compliance stage of this proceeding. 358 BRINKERHOFF SIGNAL DRILLING CO. As I have found supra, Bramel, during the time materi- al, was an employee of the Joint Venture. The question remains whether he was a "striker" and even if he was a striker whether he engaged in conduct in connection with the Union's strike which was reasonably calculated to place the Joint Venture on notice that he was a strik- er. I am persuaded that. even assuming Bramel voluntar- ily withheld his services from the Joint Venture in sup- port of the Union's labor dispute with that employer and hence was a striker for purposes of the Act (see National Lumber Company, 82 NLRB 565, 577 (1949)), that the Joint Venture was not obligated to grant him the prefer- ential hiring rights due economic strikers under the Act for the reason that he did not engage in conduct which was reasonably calculated to place the Joint Venture on notice that he was a striker.39 Bramel, who at the start of the strike was laid off from work, did not support the strike by picketing or other- wise publicly engage in conduct which was calculated to reasonably place the Joint Venture on notice that he was supporting the strike. And, when Rig 36 resumed operat- ing during the strike, Bramel, unlike the employees from Rig 43, did not indicate that he was withholding his labor because of the strike. Bramel simply failed to return the Joint Venture's phone message or answer its letter without explanation. In the circumstances of this case it is impossible to conclude that the Joint Venture should have inferred from this conduct that Bramel was withholding his labor from it in support of the union strike. Thus, it was not unusual for laid-off workers to ignore the Joint Venture phone calls when Rig 36 re- sumed operation and in the instant case the only informa- tion in the Joint Venture's possession regarding Bramel's failure to communicate with it was that he was working for another employer on Alaska's North Slope and had indicated that he intended to remain working for that employer rather than return to work for the Joint Ven- ture when Rig 36 resumed operation. In view of these circumstances I am of the opinion that the record estab- lishes that Bramel did not engage in conduct which was reasonably calculated to alert Respondent Joint Venture to the fact that he was a striker and I further find that because of this the Joint Venture did not have an obliga- tion to afford him the preferential treatment normally ac- corded to economic strikers under the Act. Based upon the foregoing I shall recommend the dis- missal of that portion of the amended complaint which alleges that Respondent Joint Venture violated Section 8(a)(3) and (1) of the Act by refusing to reinstate eco- nomic striker Bramel after he had unconditionally re- quested reinstatement. g. Mike Pearson Pearson was employed by Respondent Joint Venture as a floorman on Rig 36 until he was laid off with the other Rig 36 employees on July 31 when the rig was shut down. During the Union's strike Pearson carried a 39 In view of this conclusion I have not considered whether Bramel made an unconditional request for reinstatement at the end of the strike, and, if so, whether he had been permanently replaced, and if this was the case whether a position for which he was qualified became vacant there- after picket sign in front of Respondents' office and was ob- served picketing by Operations Manager Dunbar. On October 16, Rig 36 resumed operation and in prep- aration for this the Joint Venture on October 11 and 12 contacted all the laid-off employees, as was its practice in such situations, for the purpose of asking them to return to work. When Pearson was phoned by a repre- sentative of the Joint Venture he was not at home to re- ceive the phone call and did not contact the office of the Joint Venture as requested by the message which was left for him. He testified that his reason for not returning the Joint Venture's phone call was that he had no inten- tion of returning to work for them because it would have meant crossing the picket line. As found supra, the Union's strike ended Friday, Octo- ber 19. Sometime during the week of October 22 Pear- son phoned Respondents' office and spoke to Vivian Walton and told her he was looking for a job. Walton informed him that there were no vacancies at that time and advised him to come into the office to sign the em- ployment application register. On October 9 Pearson vis- ited the Respondents' office, Walton showed him the register which was located on Walton's desk, and Pear- son filled out the register. On December 27 Pearson was hired as a floorman by Respondent Brinkerhoff on Rig 58 and began work the next day. I have concluded for reasons set forth elsewhere in this Decision that Walton is an agent of Respondent Joint Venture for purposes of sending and receiving mes- sages relating to matters dealing with employees' em- ployment, thus when Pearson, the week after the strike ended, spoke to Walton about a job, it was sufficient to constitute notice to the Joint Venture that Pearson had made an unconditional request for reinstatement. None- theless, assuming arguendo that Pearson was a striker and that the Joint Venture had notice of his status as a strik- er, I am persuaded that the Joint Venture did not refuse to offer Pearson a job for which he was qualified during the period in which it was obligated to make such a offer. Thus, it is undisputed that Pearson was permanent- ly replaced during the strike and that from the date of his unconditional request for reinstatement to the date he was hired by Respondent Brinkerhoff there were no va- cancies on Rig 36 for which Pearson qualified. I recog- nize that there were vacancies during this period on rigs, other than Rig 36, operated by Respondent Brinkerhoff. However, as I have indicated previously, in considering whether work became available for strikers who were employed by the Joint Venture on Rig 36 after they had unconditionally requested reinstatement, I have not con- sidered work available on the several rigs operated by Respondent Brinkerhoff. Even though the record reveals these employes may constitute a single employer for pur- poses of the Act the record also establishes that employ- ees employed by the Joint Venture on Rig 36 and those employed by Brinkerhoff on its several rigs work in sep- arate bargaining units covered by separate collective-bar- gaining agreements and do not have common seniority. In short, although Respondent Joint Venture and Re- spondent Brinkerhoff may be a single employer, each 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer constitutes a separate unit for collective-bar- gaining purposes including employees' employment, tenure, and terms and conditions of employment. See A-I Fire Protection, Inc., supra at 39, and cases cited therein. The fact that the record reveals that both enterprises use the same group of applicants as a source of employees that that there have been a few instances where employ- ees were transferred between enterprises is not sufficient to alter the conclusion that each enterprise constitutes a separate bargaining unit. Based on the foregoing I shall recommend the dismiss- al of that part of the amended complaint which alleges that Respondent Joint Venture violated Section 8(a)(1) and (3) of the Act by refusing to reinstate economic striker Pearson. h. Jason Dewan Dewan began work for the Joint Venture on Rig 36 on June 26 and worked on that rig as a roustabout until July 30 when he was laid off with one other worker. The next day the rest of Rig 36's employees were laid off due to the rig's shutdown. During the Union's strike against the Joint Venture, Dewan picketed the Joint Venture on one occasion. This was during the week of October 11 when the workers hired by the Joint Venture to work on Rig 36 which was to commence operations on October 15 were picketed by a group of about seven pickets including Dewan at the airport while on their way to the rig. On October 19, as described supra, the strike ended. On Monday, October 22, Dewan visited the Joint Ven- ture's office and signed the employment application reg- ister. Dewan accepted regular and substantially similar em- ployment with another employer on January 1, 1980. He was not offered employment by the Joint Venture or Brinkerhoff between October 22, 1979, and January 1, 1980. Respondent defends its failure to offer a job to Dewan between October 22, 1979, and January 1, 1980, on the grounds, among others, that Dewan was not an employ- ee during the strike and assuming he was an employee that he was not a striker and, even if he was a striker, the Joint Venture had no knowledge of this. These con- tentions are meritorious. The Union dispatched Dewan to Rig 36 pursuant to Operations Manager Dunbar's request to Union Repre- sentative Boll for a "temporary roustabout" for a couple of hitches, 40 a total of about 4 weeks. 4 I Also significant 40 The finding that Union Representative Boll dispatched Dewan in re- sponse to Operations Manager Dunbar's verbal request for a "temporary roustabout" is based on Dunbar's testimony which Boll did not deny. I have considered that Dunbar's subsequent correspondence to the Union confirming the dispatch does not state that Dewan was a temporary em- ployee, but I am of the opinion that it does not impugn Dunbar's testimo- ny inasmuch as there is no evidence that Dunbar, in his written corre- spondence to the Union confirming prior dispatches, ever indicates whether the employer is employing someone as a regular or temporary employee. 41 Although Dewan was on the Joint Venture's payroll for about 5 weeks, the record reveals that workers worked 2 consecutive weeks and then have a week off in evaluating Dunbar's assertion that he was hiring Dewan only on a temporary basis is the fact that when Rig 36 resumed operating in October the Joint Venture did not contact Dewan to offer him reemployment at it did with all of the other workers who were employed at the time of the layoff. 4 2 It is for all of these reasons that I find that Dewan was not an employee of the Joint Venture during the strike. As described supra, Dewan's only participation in the Union's strike was his picketing that I day at the An- chorage airport when the employees who had been hired to work on Rig 36 were leaving Anchorage. Dewan did not withhold his labor from the Joint Venture nor did he engage in other conduct which was reasonably calculat- ed to place the Joint Venture on notice that he was with- holding his labor from the Joint Venture because of the Union's strike. The fact that Dewan picketed on one iso- lated occasion is insufficient by itself to have placed the Joint Venture on notice that he was withholding his services from the Joint Venture. Thus, even assuming that Dewan was an employee of the Joint Venture during the strike I would still recommend dismissal of the portion of the complaint pertaining to Dewan for the reason that he was not a striker or that the Joint Venture had no knowledge of his status as a striker. Based upon the foregoing I shall recommend the dis- missal of that part of the amended complaint which al- leges that Respondent Joint Venture violated Section 8(a)(1) and (3) of the Act by refusing to reinstate striker Dewan. i. John Howard During 1979 Howard was employed by Respondent Brinkerhoff on Rig 59 as a motorman. In August he asked his supervisors, tool pushers Johnson and Dodge, for permission to be absent from work for 2 weeks, ex- plaining to them that these 2 weeks when coupled with the 2 weeks he was scheduled to be off work would enable him to take a 4-week vacation and visit Texas. Dodge and Johnson indicated they had no objection and assured Howard that at the end of his 4-week leave of absence his job on Rig 59 would be waiting for him. 4 3 4z The record also shows that roustabout Curtis, whose position in the mud plant was eliminated when Rig 36 resumed operation, was not con- tacted by Joint Venture to return to work. Regarding the elimination of Rig 36's mud plant the record establishes that prior to resuming the oper- ation of Rig 36 it had operated a mud plant which required the services of about two roustabouts, but that when Rig 36 resumed operating this mud plant was eliminated. The result was that whereas prior to the layoff Rig 36 employed approximately six or seven roustabouts that after it re- sumed operations only four roustabouts were employed for the next sev- eral months. Dunbar's testimony that Dewan replaced an injured mud plant roustabout appears to have been erroneous However, the fact that Dunbar was mistaken about the identity of the person who Dewan re- placed does not, in my opinion, impugn the reliability of his testimony concerning the temporary nature of Dewan's employment inasmuch as he impressed me as a credible witness when he presented this testimony and, as described supra, it is not inherently implausible when viewed in the light of the whole record. 43 The above finding that Howard's supervisors granted him a 4-week leave of absence with assurances that he could resume work when he re- turned is based upon Howard's testimony, even though, as indicated infra, he did not impress me demeanorwise as a credible witness and in granting Howard a leave of absence his supervisors acted in derogation Continued 360 BRINKERHOFF SIGNAL DRILLING CO. The record reveals that Howard left work on August 16, on his leave of absence (G.C. Exh. 16), and that on either September 6 or 7, prior to his return, Rig 59 shut down during the normal course of business when it com- pleted the well it had been drilling. Rig 59 did not resume operating until May 17, 1980. During the strike Howard picketed Rig 60 which re- mained in operation and Rig 43 which resumed operating early in October. He was observed picketing by two tool pushers. On November I Howard, who lives in Kenai, Alaska, testified he spoke to tool pusher Johnson at the employ- er's Kenai yard and told him in substance that since "ev- erything was settled" he was ready to return to work. Johnson replied that the drillers were responsible for the hiring of employees, not Johnson, but that Johnson could be of influence. Thereafter, Howard testified, while going to the store or post office in Kenai he spoke to tool pushers Baker, Davis, and Depriest on "about going back to work." Howard testified he had such conversa- tions on a weekly basis, but did not give any time frame nor did he describe what was said. Baker and Davis were tool pushers on Rig 43 which was in operation and on which, as described supra, the drillers had the respon- sibility for hiring the members of the drilling crew. Davis was a tool pusher on Rig 31 which was not in op- eration at that time and did not commence operation until November 29. During March Howard testified he phoned Respond- ents' office and spoke to Operations Manager Dunbar and told him that he felt the Employer was blacklisting him and asked to be put to work. Dunbar denied there was a blacklist, stated that the only list maintained by the employer was a signup list, and in response to Howard's inquiry stated he would sign the list for Howard in order to save Howard from making a trip to the office from Kenai. Dunbar's version of this conversation differs sharply from loward's. Dunbar testified that Howard asked how the work situation looked, and Dunbar indi- cated that the employer expected to start up more rigs in the near future and would need more workers. Howard stated he would like to go to work when he had finished the electrical work he was doing on his house and would come to see Dunbar when he was ready to return to work. I have credited Dunbar's testimony and rejected Howard's since demeanorwise Dunbar seemed to be the more credible witness. The record reveals that Howard began work for Re- spondent Brinkerhoff on Rig I between May 1 and May 14, 1980. His version of how he was referred to this job is that in May Personnel Secretary Miller phoned him and offered him the job and he accepted it and went to work. Dunbar testified that in April Howard visited the office and stated he was ready to return to work and that Dunbar at this time placed Howard's name on the employment application register and told him he would keep him in mind for any job openings and that about 2 weeks later sent him to the Rig I job. I have credited of company policy. Nonetheless, I have credited Howard's testimony be- cause Respondent Brinkerhoff did not call either of the supervisors to refute Howard's testimony and Howard's testimony was not inherently implausible Dunbar's testimony and rejected Howard's since de- meanorwise Dunbar seemed to be the more credible wit- ness. I am persuaded that the portion of the amended com- plaint which alleges Respondent Brinkerhoff violated the Act by refusing to reinstate economic striker Howard after he had unconditionally requested reinstatement should be dismissed on the ground that he was not a striker. 44 Howard, in my opinion, was not a striker be- cause even if he had not taken his leave of absence he would have been laid off on September 6 or 7 with the other employees when Rig 59 shut down and not offered reemployment on that Rig until May 17, 1980, when it resumed operation. In short, at no time during the strike did Howard withhold his services from Rig 59.4 5 In con- cluding that Howard was not a striker I have rejected his testimony that when he returned at the end of his leave of absence to go to work on Rig 59 he refused tool pusher Johnson's request to return to work because he did not want to cross the Union's picket line. I have re- jected this testimony, even though Johnson did not tes- tify, because Howard did not seem to be a credible wit- ness demeanorwise and his testimony was inherently im- plausible. Thus, Howard began his 4-week leave of ab- sence on August 16 and was scheduled to return to work on about September 13, 11 days before the start of the Union's strike and about a week after Rig 59 had ceased operating. Plainly, Johnson could not have offered him a position on Rig 5946 and Howard could not have refused the position because of the picket line. Based on the foregoing I find that Howard was not a striker and for this reason shall dismiss the allegation that Respondents violated the Act by refusing to reinstate him. j. David Stewart During 1979 Stewart was employed as a floorman on Rig 58 until August 23 when he injured himself on the job and as a result was required to absent himself from work. Normally an employee who incurs a work-related injury is reemployed by the company in his former posi- tion when the employee brings in a release from his doctor. Stewart received such a release on September 23, but did not return to work under the following circum- stances. During the last week in September Stewart spoke to his driller at Rig 58, H. Waldron, and indicated he wanted to return to work. Waldron stated he would speak to Operations Manager Dunbar and, shortly there- after, told Stewart that if he was willing to cross the Union's picket line there was a job on Rig 58 for him. Stewart accepted Waldron's offer and Waldron, in turn, notified Personnel Secretary Miller who proceeded to make Stewart's transportation arrangements and told 14 In view of this finding I have not considered any of Respondents' other defenses raised in Howard's case. 4' I note that, with respect to Howard's status as an "employee," he was one only insofar as he could expect to be recalled to work on Rig 59 46 There is no evidence that tool pusher Johnson was employed by Brinkerhoff as tool pusher on any of its other rigs after the shutdown of Rig 59. 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waldron to be sure he got a doctor's release from Stewart before he got on the plane. In the meantime, however, Stewart, after talking to a representative of the Union, changed his mind about going back to work for Respondent Brinkerhoff while there was a strike and in- stead joined the picket line in front of Respondents' An- chorage office where he was observed picketing by Operations Manager Dunbar. The strike ended on Friday, October 19, and on Octo- ber 29 Stewart phoned the Company's office and spoke to Personnel Secretary Miller. identified himself, and asked if there were any job openings. Miller stated there were no vacancies and advised him that the Company maintained an out-of-work list which Stewart should come to the office and sign. The next day, October 30, Stewart visited the office and filled out the employment application register. Respondent Brinkerhoff did not offer Stewart a job until April 1980 when on approximately April 11, 1980, it offered him a job as floorman but advised him that he would have to bring in a doctor's release to the office before he went to work. On April 14, 1980, Stewart brought his release from the doctor and went to work.4 7 As I have described supra, Stewart was an employee of Respondent Brinkerhoff during the time material herein 48 and became a striker when he withheld his labor from this employer by refusing to return to work during the strike, after he had recovered from his injury, because he did not want to cross the Union's picket line. Respondent Brinkerhoff had notice of Stewart's status as a striker inasmuch as hard on the heels of his refusal to return to work during the strike he publicly enmeshed himself in the Union's strike activities by picketing the Company's office and was observed doing this by Oper- ations Manager Dunbar. I further find that on October 30 Stewart, by filling out the Company's employment application register, un- conditionally requested that Respondent Brinkerhoff re- instate him to a job on one of its rigs. It is undisputed that prior to this request for reemployment Stewart had been permanently replaced, thus the question for decision is whether a job became available for which Stewart was qualified between October 30, 1979, and April 11, 1980, the date on which he was reinstated by Respondent Brin- kerhoff. In this regard the record establishes that Stewart was qualified as a motorman, floorman, and roustabout and that Respondent Brinkerhoff knew of these qualifica- tions.4 9 The record further establishes that there were 47 Stewart apparently was assigned to Rig I for a very brief period of time and immediately transferred to Rig 58. 4s During the period he was absent from work due to his injury in- curred on the job, Stewart retained his employee status inasmuch as he was guaranteed reemployment when he recovered from his injury. 49 I reject Respondents' contention that Stewart failed to advise it of his qualifications as a motorman. Thus, when he filled out the employ- ment application register on October 30 Stewart, in response to the Com- pany's inquiry, wrote that he had several years of experience as a motor- man. In fact, at the time of the hearing in this case Stewart had been em- ployed as a motorman on Rig 58 for 6 weeks and credibly testified that in this period there had been no complaints about his work. I reject Dun- bar's conclusionary testimony, which was without corroboration, that Stewart was not "fully qualified" as a motorman. numerous vacant positions available on rigs owned and operated by Respondent Brinkerhoff during the relevant period of time for which Stewart qualified. 50 Respond- ent Brinkerhoff has not advanced any legitimate or sub- stantial business reasons for refusing to reinstate Stewart to any one of these vacancies. 5" I therefore find that Re- spondent Brinkerhoff violated Section 8(a)(1) and (3) of the Act by refusing to reinstate Stewart when work for which he qualified became available. 11. I'HIE RI.MI I)Y Having found that Respondent Brinkerhoff has en- gaged in certain unfair labor practices, I shall recom- mend it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent Brinkerhoff violated Section 8(a)(3) and (1) of the Act by failing and refusing to offer reinstatement to Rask, Brewster, Kelly, Jackson, and Stewart as work for which they were qualified became available. Inasmuch as I have found that Rask, Brewster, and Kelly accepted regular and substantially equivalent work with another employer and Jackson and Stewart were reinstated by Respondent Brinkerhoff, I shall not recommend the usual remedy of reinstatement but shall recommend only that Respondent Brinkerhoff make Rask, Brewster, Kelly, Jackson, and Stewart whole for any loss of earnings they suffered by reason of Re- spondent Brinkerhoff's failure to reinstate them by pay- ment to each of a sum of money equal to that which they normally would have earned until the dates on which they secured regular and substantially equivalent employment with another employer 52 or were reinstated by Respondent Brinkerhoff.53 Loss of earnings, as re- ferred to above, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as computed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In determining Re- spondent Brinkerhoff's backpay liability herein the fixing of the dates for the commencement of the backpay period for each discriminatee shall be determined in the compliance stage of this proceeding. Likewise, the order of recall and the positions to which Respondent Brinker- hoff was obligated to recall the discriminatees is best left to the compliance stage of this proceeding. 50 The vacant positions which Stewart .,as qualified to perform during the relevant time period are listed at fn. 38, supra. 5 l reject Respondent Brinkerhoffs contention that it was not obligat- ed to offer Stewart reemployment until he had presented his doctor's re- lease to the Company. The record establishes that an offer of reemploy- ment to a person in Stewart's position is not conditioned upon his having filed a doctor's release with the Company, rather that the Company's policy is to offer the employee a position with the understanding that prior to going to the jobsite the employee will furnish management with a doctor's release. I note this is the manner in which the Employer treat- ed Stewart when it reinstated him in April 1980 and previously, in late September 1979, when he initially indicated he desired to return to work 51 As I have found supra, Rask accepted regular and substantially equivalent employment on November 23, 1979; Brewster, December 30. 1979; Kelly, March 15, 1980. 53 As I have found supra, Jackson was reinstated by Respondent Brin- kerhoff April 26, 1980, and Stewart April 1i. 1981). 362 BRINKERHOFF SIGNAL DRILLING CO. CONCLUSIONS OF LAW 1. Respondent Brinkerhoff and Respondent Joint Ven- ture each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By failing and refusing to reinstate economic strikers Douglas Rask, George Brewster, Douglas Kelly, Billy Ray Jackson, and David Stewart when work for which they were qualified became available. and after they had unconditionally requested reinstatment, thereby discour- aging membership in the Union, Respondent Brinkerhoff has violated Section 8(a)(3) and (1) of the Act. 4. By giving economic strikers who had requested re- instatement the impression that it was hiring other appli- cants with less seniority ahead of them, Respondent Brinkerhoff violated Section 8(aX)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent Brinkerhoff has not otherwise violated the Act. 7. Respondent Joint Venture has not violated the Act. [Recommended Order omitted from publication.] 363