Giddings & Lewis, Inc.

GIDDINGS & LEWIS, INC. Giddings & Lewis, Inc. and District No. 10, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Cases 30-CA-5787 and 30-CA-6062 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On June 25, 1982, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Giddings & Lewis, Inc., Fond du Lac, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i No exceptions were filed to the Administrative Law Judge's dismiss- al of the allegations in Case 30-CA 5787 DECISION FRANK H. ITIKIN, Administrative Law Judge: An unfair labor practice complaint issued in Case 30-CA- 6062 on November 21, 1980.1 A complaint issued in Case 30-CA-5787 on May 20, 1981.2 The two proceedings were later consolidated, and a hearing was held on Feb- ruary 18, 1982, in Fond du Lac, Wisconsin. Respondent Employer manufactures machine tools and related products at its facilities in Fond du Lac. On Oc- tober 1, 1975, Respondent's employees commenced a strike which lasted until November 20, 1976. The rein- statement rights of striking employees have been the sub- ject of litigation before the Board in Giddings and Lewis, Inc., 240 NLRB 441 (1979), and Giddings and Lewis, Inc., 255 NLRB 742 (1981), enforcement denied 675 F.2d 926 i The charge in this case was filed by the Union on September 24, 1980. a The charges in this case were filed on May I and 12, 1980. 264 NLRB No. 78 (7th Cir. 1982), herein Giddings & Lewis I and II, respec- tively.3 The General Counsel now alleges in Case 30-CA-5787 that Respondent Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by engaging in the following conduct: In or around October 1978, a more precise date being presently unknown to the General Counsel, Respondent promulgated and at all times since has maintained, inter alia, "Seniority" rules regarding the filling of job vacancies by internally transferring employees which, by its terms, discriminatorily in- terferes with the preferential hiring rights of its un- reinstated economic strikers, thereby interfering with, restraining and coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. A copy of the "Seniority" rules is attached hereto as Exhibit A. The General Counsel also alleges in Case 30-CA-6062 that Respondent Employer further violated Section 8(a)(1) and (3) of the Act by imposing certain restrictions upon the recall rights of former economic strikers (in- cluding employee John E. Ferguson). Specifically, the General Counsel avers: On or about February 12, 1980, Ferguson re- ceived a certified letter from Respondent wherein Respondent acknowledged that Ferguson's name would remain on its preferential hiring list until September 1, 1980, and absent his being offered re- instatement during that period, further informed Ferguson that he would again have to notify Re- spondent of his desire to remain on its preferential hiring list, in writing, during the month of August 1980. On or about September 10, 1980, Respondent sent a certified letter to Ferguson wherein it noti- fied Ferguson of his failure to respond to its recall notice by August 31, 1980, regarding his intention to remain on its preferential hiring list, and further notified him that, as a consequence, it had removed his name from its preferential hiring list.4 Respondent Employer denies, inter alia, that it has vio- lated the Act as alleged. Respondent Employer also as- serts a number of affirmative defenses. Upon this entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs of counsel, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. I HE FINDINGS OF FACT IN CASE 30-CA-5787 Counsel for Respondent Employer asserts in Case 30- CA-5787 that, in view of the prior litigation between the 3 The parties stipulated that the Administrative Law Judge's recitation of facts in Giddings d Lewis II correctly states the background. 4 The Employer's policy, as applied to Ferguson, of requiring employ- ees on the preferential hiring list to restate periodically their desire to remain on the list, similarly resulted in the removal of other employees' names from the list. See AU Exh 1. 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties, "the principles of collateral estoppel and resjudi- cata require that the complaint be dismissed." The perti- nent facts were restated by the Board in Giddings & Lewis HI, as follows: On October 1, 1975, following the expiration of the contract and in support of the Union's bargain- ing demands, Respondent's employees began a strike which lasted until November 20, 1976. As of September 30, 1975, 706 unit employees were work- ing and 108 employees were in layoff status. During the strike, some of the striking employees returned to work and for others permanent replacements were hired. As of November 20, 1976, Respondent employed 323 replacements. At the conclusion of the strike, Respondent told the Union and the strik- ing employees that it would not be able to reinstate all the returning strikers, but that it would set up a preferential hiring list for those who had been per- manently replaced. This recall procedure was estab- lished and is not alleged to be unlawful. Initially, there were approximately 700 employees on the list. In October 1978, Respondent promulgated certain seniority rules which provide in pertinent part: Job classification seniority shall apply in the event of layoff due to lack of work in the divi- sion in the following manner .... Recall to work shall be made in reverse order of layoff whereby an employee laid off from a job classifi- cation shall be offered recall to that job classifica- tion prior to other employees being assigned, re- hired from the preferential hiring list or new em- ployees hired. Selection of an employee to fill an available job opening, where there is no employee current- ly on layoff (a layoff which commenced after September 30, 1975) from the job classification, shall be made considering the relative qualifica- tions or the ability to perform the work with a reasonable period of training and seniority. Where the qualifications or abilities of employees are deemed relatively equal by the Company, se- niority shall prevail. Consideration shall first be given to employees working in another job classi- fication in the division; and, second, to employees on layoff from the division. If the job opening re- mains unfilled, the preferential hiring list proce- dure shall be utilized prior to hiring a new em- ployee. All seniority rights shall be lost when an em- ployee . . . is laid off for a continuous period equal to the length of time actively employed prior to such layoff period. On April 16, 1979, following a Board-conducted election (Case 3-RD-388), the Union was decerti- fied as bargaining representative. At the time of the hearing, Respondent's work force numbered 508 employees of which 229 were replacements, 21 were strikers who returned to work before the end of the strike, and 258 were reinstated strikers. The number of employees on the preferential hiring list was 176. The General Counsel and the Union argued before the Board in Giddings & Lewis HI that Respondent Employ- er's "seniority preference to replacement employees for job-bidding purposes is an illegal grant of superseniority and . . . the seniority preference for job vacancies af- forded to replacement employees who had been laid off over unreinstated strikers is an illegal grant of supersen- iority" in violation of Section 8(a)(1) and (3) of the Act. The Board found . . .merit in Respondent's contention in its answer- ing brief to the exceptions that the issue of job-bid- ding procedures favoring currently working employ- ees was not alleged in the complaint and was not litigated. We therefore make no findings regarding that particular issue. [Id. at 743, fn. 1] The Board, however, concluded that Respondent's "recall policy favoring laid-off employees over unrein- stated strikers constitutes an illegal grant of supersenior- ity." Id. at 743. The United States Court of Appeals for the Seventh Circuit denied enforcement of the Board's Order in Gid- dings & Lewis 1. The court stated: The Board did not challenge the employer's job- bidding procedures which favored currently work- ing employees. Thus, our discussion will be con- cerned with the different treatment accorded the [remaining] categories of employees under the se- niority system. [675 F.2d at 928, fn. 4.] The court concluded that "an employer does not violate Section 8(a)(l) and (3) of the Act by promulgating rules providing that members of the existing force will be re- hired in order of seniority, but before unreinstated strik- ers, in the event of layoff." (Id. at 931.) It is clear that the General Counsel and the Union are now attempting to have declared unlawful in Case 30- CA-5787 that portion of the Employer's "Seniority rules," quoted by the Board above, which pertains to the filling of vacancies by the transfer of currently working employees. The General Counsel acknowledges that he is unaware of "anyone adversely affected by this lan- guage." Instead, the General Counsel generally asserts, as he did in Giddings & Lewis HI with respect to the relat- ed provisions of this same document pertaining to the filling of vacancies by the recall of laid-off employees, that such language is inherently discriminatory. The General Counsel offers no justification for his failure to allege and litigate this related portion of the Employer's "seniority rules" earlier in Giddings & Lewis II. Rather, the General Counsel acknowledges in his brief (p. 7) that "General Counsel filed exceptions" to the Administrative Law Judge's Decision in Giddings & Lewis II "and ex- panded its argument to raise the issue 'whether . . . Re- spondent's seniority preference to replacement employees 562 GIDDINGS & LEWIS, INC. for bidding purposes was an illegal grant of supersenior- ity' . . ."; the "Union's exceptions brief concurred with the General Counsel's attack on the 'internal transfer' policy .. . .5 In Peyton Packing Company, Inc., 129 NLRB 1358 (1961), the Board stated: Generally speaking, sound administrative prac- tice, as well as fairness to respondents, requires the consolidation of all pending charges into one com- plaint. The same considerations dictate that, wher- ever practicable, there be but a single hearing on all outstanding violations of the Act involving the same respondent. To act otherwise results in the un- necessary harassment of respondents. [129 NLRB at 1360.] And, in Jefferson Chemical Company, Inc., 200 NLRB 992 (1972), the Board (Members Fanning and Jenkins dissenting) explained: [We] believe that . . . the General Counsel is duty bound to investigate all matters which are encom- passed by the charge, and to proceed appropriately thereafter.... . . . We believe that such multiple litigation of issues which should have been presented in the ini- tial proceeding, constitutes a waste of resources and an abuse of our processes, and that we should not permit it to occur. [200 NLRB 992, fn. 3.] Subsequently, in Truck Drivers. etc. (Gasoline Retailers Association of Metropolitan Chicago), 210 NLRB 210 (1978), the Board, after quoting Peyton Packing, further explained: Separate litigation of roughly concurrent alleged violations has been held proper where the violations alleged in the second case "occurred after the com- plaint issued in the earlier case, were not known to the General Counsel at the time of the earlier hear- ing, were independent acts, and were not the type of alleged violation commonly known or readily I Counsel for Respondent notes in his brief (p. 9) that the General Counsel argued even earlier, in Giddings & Lewis 1, before the Adminis- trative Law Judge, as follows (G C. Exh. 12): . . this procedure that Mr. Braun [the Employer's personnel super- visor] testified to, about transferring internally, freezes all of them out. Does not allow the recall of any former strikers. Which, again, is part of General Counsel's overall theory, that Respondent was doing everything feasible to prevent striking employees from coming back to work. So if they can upgrade internally, they do not have to recall a former striker .. Counsel for Respondent acknowledges that the above-quoted colloquy by the General Counsel "appears" to show that the General Counsel "was thinking discriminatory motivation more than inherent discrimination, but it is nevertheless clear that the validity of the internal transfer policy was challenged . . in Giddings & Lewis I In the instant case, Braun credibly testified, without contradiction, that the Employer began "this practice of internal adjustment before going to the preferential hire list" back in Jan- uary 1977. Braun added: "This was a policy we had prior to the strike, and it's one that we wanted to continue . . ." discoverable, even after an exhaustive investiga- tion." More recently, the Board similarly noted in Harrison Steel Castings Company, 255 NLRB 1426 (1981), "There is nothing in the record to indicate that General Counsel was aware of the allegations of the present complaint at the time of the earlier proceeding"; "the prosecution of the instant case does not subject Respondent to unneces- sary harassment"; and "the allegations of the instant case are not intertwined with those of the earlier consolidated complaints, but rather are completely separate from the prior litigation." Also see Maremont Corp., World Parts Division, 249 NLRB 216 (1980), and cases discussed. Applying the foregoing Board policy here, I find and conclude that the complaint in Case 30-CA-5787 should be dismissed. The General Counsel offers no justification for his failure to litigate in a timely fashion, in Giddings & Lewis II, the internal transfer aspect of the Employer's seniority rules then under consideration. The internal transfer aspect of this program was one step of the same promulgated policy and contained apparently in the same document. Indeed, the Union's third amended charge filed in Giddings & Lewis II, on January 8, 1979 (Resp. Exh. 5), generally asserted: Since on/or about June 30, 1978, and continuing to date, [Respondent] discriminated against and contin- ues to discriminate against those employees who en- gaged in the strike against such Company and who are presently on preferential hiring status. This dis- crimination is a result of the newly established se- niority system as set forth in the Company's "Em- ployee Handbook." The General Counsel cites no employees "adversely af- fected" by the internal transfer aspect of this program. He advances, in significant part, the same contentions previously considered by the Board and the court in Gid- dings & Lewis IL It is therefore clear that the current liti- gation is substantially intertwined and related to the prior proceedings; the current contention was well known to the General Counsel at the time of the prior proceedings; and, consequently, the General Counsel cannot justifiably, on this record, be permitted to reliti- gate the seniority rules now.6 II. THE FINDINGS OF FACT IN CASE 30-CA-6062 The General Counsel specifically alleges in Case 30- CA-6062 that Respondent Employer improperly im- posed certain notification requirements upon employee John E. Ferguson which infringed upon his right to be offered the opportunity to fill job vacancies following his post-strike unconditional offer to return to work. The General Counsel moved for summary judgment in this proceeding. The Board, in denying the motion, summa- B Since I would dismiss this complaint in reliance upon the Board's policy, as stated above, it is unnecessary for me to also consider the Em- ployer's related contentions pertaining to res judicara, collateral estoppel. Sec. 10(b) time prohibitions, and the effect of the Seventh Circuit's deci- sion. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rized the essentially undisputed facts, in pertinent part as follows, 257 NLRB 843 (August 19, 1981): [O]n or about November 19, 1976, the Union, repre- senting John E. Ferguson and other employees of Respondent who had been engaged in an economic strike, made an unconditional offer for them to return to work. Respondent thereafter established a preferential hiring list and procedure for recalling strikers who had been replaced during the strike. By certified letter of February 9, 1979, Respondent notified Ferguson that his name would be removed from the preferential hiring list unless he informed Respondent by March 12, 1979, of his desire to remain on the list. By letter of March 5, 1979, Fer- guson informed Respondent that he wished to remain on the list. Respondent acknowledged re- ceipt of Ferguson's letter on March 7, 1979. In this same communication, Respondent instructed Fergu- son that he must again notify Respondent of his continued interest in remaining on the list during August 1979, or face removal from the list as of September. Ferguson complied with the August no- tification requirement. Subsequently, Respondent in- formed Ferguson that his name would be deleted from the list on March 1, 1980, unless he again noti- fied Respondent during February 1980 that he wished to remain on the list. Ferguson again sub- mitted a timely renewal of his continuing interest in reinstatement. Thereupon, he was told that he must repeat this procedure during August 1980. Ferguson failed to provide this notice and, on September 10, 1980, Respondent notified him that his name had been removed from the preferential hiring list. The Board noted: The General Counsel contends that under the prin- ciples enunciated in The Laidlaw Corporation, 171 NLRB 1366 (1968), and reaffirmed in Vitronic Divi- sion of Penn Corporation, 239 NLRB 45 (1978), Re- spondent has unlawfully infringed upon Ferguson's right to be offered the opportunity to fill job vacan- cies following his post-strike unconditional offer to return to work. In its answer to the complaint and in its memo- randum in opposition to the General Counsel's motion, Respondent admitted that it established the above-described system for keeping its preferential hiring list current and that it removed Ferguson from the list after he failed to express interest in re- instatement during August 1980. However, Re- spondent denies that it thereby violated the Act, and asserts that this procedure constitutes a reason- able administrative approach to maintaining an ac- curate and useful recall list. Respondent argues that the language of Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973), and American Machin- ery Corporation v. N.L.R.B., 424 F.2d 1321 (5th Cir. 1970), specifically permit an employer to impose reasonable notification requirements upon unrein- stated former strikers desiring reinstatement. Re- spondent contends that the General Counsel's motion should be denied and that a hearing should be held to permit Respondent to present evidence that its procedure was justified by legitimate busi- ness interests and was in no way designed to dis- criminate unlawfully against employees. The Board concluded that "there are substantial and ma- terial issues of fact and law which may be best resolved at a hearing before an administrative law judge" and, therefore, denied the General Counsel's motion. The evi- dence is summarized below:7 Paul Stelter, the Employer's personnel supervisor, tes- tified that on or about February 9, 1979, the Employer implemented a procedure which required all employees on the preferential hiring list to give the Employer writ- ten notification that they wanted to remain on the list; that there were then some 290 employees still on the list; and that the implementation of this procedure was com- municated by the Employer to all employees on the list by certified mail. Thus, the Employer initially apprised these employees on or about February 9, 1979 (G.C. Exh. 20), as follows: On November 19, 1976, we received a telegram from John W. David stating that the strike, which commenced October 1, 1975, was being terminated effective November 20. 1976. After confirming with Mr. Heidenreich that the telegram was intended as an unconditional offer to return to work on behalf of all strikers, we proceeded to reinstate those strik- ers for whom we had openings and we placed the remainder, except those discharged for strike mis- conduct, on a preferential hiring list. Subsequently, as additional openings have oc- curred, we have gradually reinstated some of those individuals included on the preferential hire list; however, a substantial number, including you, remain unreinstated. Up to this point we have assumed that all those who have not been contacted in connection with specific openings still desire to be continued on the preferential hire list. Now, however, since more than two years have passed from the date the list was established, we believe it is reasonable and ap- propriate to require all those who are still interested in reinstatement to take affirmative action to indi- cate that fact to us. Therefore, we will consider the original application to remain current only until March 12, 1979. If you wish to remain on the preferential hire list on and after March 12, 1979, you must notify us in writing and we must receive that written notice before March 12, 1979. A timely written notice will be acknowledged by return mail. IF WE DO NOT RECEIVE SUCH WRITTEN NOTICE FROM YOU BEFORE MARCH 12, 1979, YOUR NAME 7 At the hearing, as noted herein, the complaint was amended to aver, in effect, that the Employer's removal policy was unlawful as applied to Ferguson and to other employees adversely affected for whom a remedy is not barred by Sec. 10(b) of the Act. See AU Exh. I. 564 GIDDINGS & LEWIS, INC. WILL BE REMOVED FROM THE PREFER- ENTIAL HIRE LIST. Employees who complied with this requirement then re- ceived the following employer notice (G.C. Exh. 22): Thank you for your reply to our letter of Febru- ary 1979. As requested, your name will continue to be in- cluded on the preferential hire list. Your request for reinstatement will now be considered current until September 1, 1979. If you have not been offered re- instatement by then it will be necessary for you to again establish a continuing interest in being includ- ed on the list. You must do so by written notice, which must be received by us sometime within the month of August 1979. This same procedure was repeated every 6 months as re- flected generally in General Counsel's Exhibits 20-27. Stelter acknowledged that after sending an employee a notification, such as the notice quoted above, the Em- ployer "thereafter mailed no reminder notice to any em- ployee on the preferential hiring list that they were re- quired to respond by September 1, 1979"-the Employer also made "no reminder telephone calls to any employ- ees reminding them of the September 1, 1979 deadline." Employees not complying within the time limit set forth in the notice were removed from the list. Thereafter, as Stelter further testified, employees responding within the time limit set forth in the General Counsel's Exhibit 24 (establishing a deadline of March 1, 1980) similarly re- ceived General Counsel's Exhibit 26 which apprised them that they now had to notify the Employer again by August 1980 or be removed from the list. Again, no tele- phonic or written reminders of this deadline were sent to employees. And, as stated, employees not complying with these deadlines were removed from the list. How- ever, Stelter noted: Actually we use a one-week grace period, because letters may be received late, people may remember on the last possible day and couldn't get in. The employees admittedly were not advised of this "grace period."( See Resp. Exhs. 12 and 13.) Stelter be- lieved that some 50 to 100 employees were removed from the preferential hiring list by failing to respond within the above deadlines. (See Resp. Exh. 11.)8 Stelter further testified: Q.... Mr. Stelter, after employees received ter- mination notices similar to those that we talked about that are in evidence, such as General Coun- sel's Exhibit 27, you received a telephone call from employees asking that they be kept on the list, did you not? A. Yes, I did. Q. And employees told you, for example, that they had forgotten and they wanted to be given the opportunity [to] have their names retained on the list. Resp. Exh. II shows that actually 97 "names were removed from the preferential hire list for failure to send in notice of continuing interest" A. Yes. Q. And the Company's response was that the deadline had passed, is that not correct? A. Yes. Q. And, in fact, above and beyond telephone calls, employees wrote to you asking if they could not be retained on the list, that they had forgotten to respond in the proper time; isn't that correct? A. Yes. Q. Let me ask this. When people called and said that they wanted to be kept on the list, after the deadline had passed, and you indicated no, in fact, you continually told the employees they could apply as new employees, did you not? A. Yes. Q. And, in fact, on Mr. Knutson's letter, that is, General Counsel's Exhibit 30 . . . there is a nota- tion in the upper left-hand corner, is there not, to send him an application? A. That's correct. Stelter noted that by March 26, 1981, the preferential hiring list had been "exhausted with respect to every- body" except for one disabled individual who is still unable to return to work. Stelter explained the Employer's reasons for this 6- month renewal notification procedure, as follows: Q.... Now, I want to ask you why was it that this notice of continuing interest policy was estab- lished at that particular time? Namely, approximate- ly two years after the reinstatement process had begun? A. There were a number of things that had oc- curred through 1977 and 1978. Our business had been continuing to increase, we needed more and more people. And we were running our operation more efficiently. We didn't have extra people avail- able in the plant to fill in when someone would quit. We'd have some other opening in the plant. We had run into a number of situations where people had either found other employment, had moved away, or for one reason or another were no longer interested in reinstatement at Giddings & Lewis. Yet we were going through some lengthy delays in filling these jobs, because they would take their full calendar week before we would learn that they're not interested in returning to work. Because we were manning the plant rather tightly, and we were becoming more and more productive, there was more and more pressure to fill these jobs as they became open. As we got an opening, more and more pressure to make sure that we got someone in and got that job filled. We looked at it as a way to eliminate or sift out those people who were no longer interested in reinstatement [b]efore we had an actual opening for them. In other words, those people, when they weren't interested in returning to work, we could determine who they were [b]efore 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we had to wait a week to fill a job opening. It bene- fited us in that respect. And it also benefited those strikers who were genuinely interested in returning to work. Because they wouldn't have to wait out on the preferential hire list any time more than what was absolutely necessary.9 There were, as stated, some 290 employees remaining on the preferential hiring list when the Employer's 6- month renewal notification requirement was instituted on February 9, 1979. According to Stelter, "between the start of reinstatement and that February 9, 1979, letter" some 237 strikers "had accepted offers of reinstatement" and some 86 strikers "had rejected offers of reinstate- ment." From February 9, 1979, through March 26, 1981 (when the list was virtually "exhausted"), some 178 strik- ers were offered reinstatement and 47 had "rejected offers." (See also Resp. Exhs. 11, 12, and 13.) Employee John E. Ferguson testified, inter alia, that he "didn't submit a request" stating his continued interest in remaining on the preferential hire list after General Counsel's Exhibit 25, "because" several of his coworkers had told him that "there had been an updating of the law . . . and once your name was placed on a preferential hire list . . . the only further obligation you had at that point was to notify the Company of a change in ad- dress." Shortly after Ferguson received General Coun- sel's Exhibit 27, he telephoned the Employer and ulti- mately spoke with Stelter. Ferguson was then apprised that his "name had been removed from the preferential hire list and [his] employment had been terminated based on the fact that [he] had failed to respond to the Compa- ny prior to the end of August 1980." Ferguson told Stelter about his understanding that the "law had recent- ly been changed." Stelter informed Ferguson that the Company "was not aware of that" and then stated: "you have been notified."' 0 9 Stelter noted that the Employer would generally grant employees I week to respond to a "notice of reinstatement" when a position was available and, then, the Employer would generally grant employees "an- other week," after stating that he or she wished to return to work, or a "total of two weeks" There were, however, "exceptions to that." Stelter cited Resp. Exh 10 as an "example" of the "difficulties encountered in filling job openings." On cross-examination, Stelter acknowledged that the reinstatement time sequence illustrated in Resp. Exh. 10 as an "example" "isn't typical of what happened in all cases" and, further, that the Employer in fact had started to experience from the beginning of reinstatement this "diffi- culty in knowing as quickly as possible if people were going to accept the Company's job offer." io Upon cross-examination, Ferguson acknowledged that he was, when the strike commenced, a part-time dairy farmer; that he then had about 26 "milkers" and "overall" he had about 50 "head"; and that, by Septem- ber 1980, he had 35 milkers and 60 to 65 "overall." Ferguson explained that, prior to the strike, his gross annual income from the farm was about $30,000 and, in September 1980, his gross annual income reached about $60,000. According to Ferguson, in September 1980, he considered him- self "a full-time farmer." Ferguson further explained that, in March 1980, he had about 30 "milkers"-"this will vary" as a "cow wears out." Fer- guson also explained that 30 percent of his increased gross of S30,000 was attributable to inflation. The testimony summarized in this section is essentially uncontradicted. I credit the testimony of Stelter and Ferguson referred to above as fairly, truthfully, and reasonably reflecting the sequence in issue here. Discussion In Vitronic Division of Penn Corporation, 239 NLRB 45 (1978), the Administrative Law Judge, whose findings and conclusions were adopted by the Board, struck down an essentially similar renewal requirement placed upon economic strikers. The Administrative Law Judge found, inter alia, "that the procedure utilized ... was in- herently destructive of employee rights"; the employer "unilaterally set a 6-month limitation on employees' recall rights without any legitimate and substantial busi- ness justification"; "[m]ere administrative convenience is insufficient to justify the procedure here"; and an em- ployer cannot "shift the burden of notification to the em- ployee at some future date as a prerequisite for an em- ployee to preserve his statutory recall rights." (Id. at 49.) The Eighth Circuit (Circuit Judge Stephonson dissent- ing) granted enforcement of the Board's Order in 630 F.2d 561 (1979). The case, however, was then resubmit- ted to the court en bane and enforcement was denied by an evenly divided court, without opinions. Subsequently, in Charleston Nursing Center, 257 NLRB 554 (1981), the Board again dealt with this issue, stating as follows: Under Laidlaw, the employer has the duty to seek out replaced economic strikers in order to give them notice that a position has become available, unless the employer can prove legitimate and sub- stantial business justification for terminating their reinstatement rights. The Board does not require an employer to make periodic requests for current in- formation. Rather, any periodic requests an employ- er may send to unreinstated strikers for updated in- formation are merely for its own administrative convenience. The employer still has the affirmative duty to notify replaced strikers of job vacancies as they occur and of any possibility that their rein- statement rights may be terminated. While the em- ployer may be entitled to rely on any information it does receive in response to such a periodic request, we do not see any legitimate and substantial busi- ness reason which would justify an employer in ter- minating an employee's reinstatement rights merely because the employee failed to respond to such a periodic request. Any termination of reinstatement rights based on a failure to respond to such a periodic request would be premature inasmuch as no job vacancy existed at the time of the request. Further, the burden on the employer would be slight: it need only maintain a nonresponding employee's name on the preferential hiring list until he is offered rein- statement and either refuses or fails to respond to the job offer. The burden on the employee, howev- er, is severe: termination of all reinstatement rights. Even if the employer did not actually follow through by terminating the employee's reinstate- ment rights, the employee might be deterred from inquiring about future openings. Therefore, we con- clude that, although an employer may legally re- quest replaced economic strikers to furnish current 566 GIDDINGS & LEWIS, INC. information about their interest in reinstatement, an employer may not require replaced economic strik- ers to respond to such a request or risk losing their reinstatement rights. The rationale of the Board as stated in Vitronic and in Charleston Vursing is controlling here. Respondent Em- ployer's 6-month renewal notification requirement thus imposed upon those employees remaining on the prefer- ential hire list in February 1979 was inherently destruc- tive of employee reinstatement rights under Laidlaw and related decisions. And, although the Employer was af- forded here a full opportunity to present business justifi- cation for the unilateral implementation of this procedure some 2 or more years after reinstatement had com- menced, the proofs adduced, at best, only show "admin- istrative convenience" as a reason for this procedure. This reason is insufficient justification to "shift the burden of notification to the employees at some future date as a prerequisite for an employee to preserve his statutory recall rights," Vitronic, supra. Moreover, as the Board made clear in Charleston Nursing, supra, at 556- 557: . . . an employer may legally require replaced eco- nomic strikers to furnish current information about their interest in reinstatement . . .an employer may not require replaced economic strikers to respond to such a request or risk losing their reinstatement rights. 'I In sum, Respondent Employer has violated Section 8(a)(1) and (3) of the Act by terminating the recall rights of employee Flerguson and other employees for whom a remedy is not otherwsise barred by Section 10(b) of the Act. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce as alleged. 2. The complaint in Case 30-CA-5787 is hereby dis- missed for the reasons stated hereinabove. 3. Respondent Company violated Section 8(a)(l) and (3) of the Act by terminating the preferential recall rights of employee John E. Ferguson and other employ- " Counsel for Respondent argues that the complaint in this proceed- ing is barred by Sec. 10(b) of the Act. Counsel asserts that the 6-month time limitation of Sec I(h'b) should run from February 9, 1979, when the Company established the above procedure. The Board, in KVironic, reject- ed a similar contention. The operative event here, as held in Vitronc, is the termination of the employees' recall rights. Counsel for Respondent further argues that Ferguson "is entitled to relief only if, at or before September 10, 1980, the date of his removal from the preferential hire list. he had not obtained 'regular and substan- tially equivalent employment elsewhere."' The credible evidence of record here shows that Ferguson repeatedly expressed an interest in rein- statement, but was denied recall because of the above procedure Fergu- son did not, in my view, voluntarily remove himself from the labor market and, by continuing on as a dairy farmer, under the circumstances present here, did not obtain substantially equivalent employment else- where As counsel for the General Counsel notes, "dairy farming is not substantially equivalent to working for an employer engaged in the manu- facturing of machine tools." (GC br p. 131 Cf .L. LR.B. v. iami Coca-Cola Bottling Company, 360 F 2d 569. 573 (5th Cir. 1966) and Lee Cylinder Division of Golay & Co.. Inc. 184 NLRB 241. 244 245 (1970), enfd. 447 F 2d 290, 295 (7th Cir 1971). ees for whom a remedy is not otherwise barred by Sec- tion 10(b) of the Act. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Company will be directed to cease and desist from engaging in such conduct, and like or related con- duct, and to post the attached notice. Respondent Com- pany will also be directed to offer employee Ferguson, and all other employees who were similarly denied their recall rights and for whom a remedy is not otherwise barred by Section 10(b) of the Act, reinstatement and make them whole for any loss of earnings they incurred as a result of Respondent's discriminatory conduct, to- gether with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 2 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDERi3 The Respondent, Giddings & Lewis, Inc., Fond du Lac, Wisconsin, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Terminating the preferential recall rights of eco- nomic strikers because they failed to renew their request for reinstatement within the time unilaterally set by Re- spondent. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to employee John E. Ferguson, and all other employees similarly denied recall rights for whom a remedy is not otherwise barred under Section 10(b) of the Act, discharging, if necessary, any new employees hired since the expiration of the 6-month limitation, and make such discriminatees whole for any loss of earnings they may have suffered as the result of their failure to be offered reinstatement, with interest as set forth in the remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- 12 See, generally, Isis Plumbing & Heating Co, 138 NLRB 716 (1962). The understanding of Respondent and the General Counsel contained in ALJ Exh. I is adopted herein. I' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, 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 facilities in Fond du Lac, Wisconsin, copies of the attached notice marked "Appendix."' 4 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 14 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate the preferential recall rights of economic strikers because they failed to renew their requests for reinstatement within the time unilaterally set by us. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL offer immediate and full reinstatement to employee John E. Ferguson, and all other em- ployees similarly denied recall rights for whom a remedy is not otherwise barred by Section 10(b) of the Act, to jobs for which they are qualified, dis- charging, if necessary, any employees hired since the termination of their recall rights and make them whole for any loss of earnings, including interest, they may have suffered as a result of such action. GIDDINGS & LEWIS, INC. 568