Harris-Teeter Super Markets, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harris-Teeter Super Markets, Inc. and Local 525, Meat, Food and Allied Workers Union, Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Cases I CA-6827, I-CA- 6964, and 11-CA-7122 May 10, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 27, 1978, Administrative Law Judge Robert G. Romano issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed an answering brief and cross-exceptions. 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces 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. We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge. Upon our full con- sideration of the record, we perceive no evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated bias against Respondent in his analysis or discussion of the evidence. 2 In his remedy, the Administrative Law Judge provided that the backpay period for the unfair labor practice strikers entitled to reinstatement shall commence February 27, 1977-5 days after Respondent's receipt of the Union's unconditional reinstatement request-and continue thereafter until an offer of full reinstatement is made. The Board has found that the 5-day period is a reasonable accommodation between the interests of the employ- ees in returning to work as quickly as possible and the employer's need to effectuate that return in an orderly manner. Drug Package Company, Inc., 228 NLRB 108 (1977). Accordingly, if Respondent already has rejected or hereafter rejects, unduly delays, or ignores the unconditional offer to return to work or attaches unlawful conditions to its offer of reinstatement, the 5- day period serves no useful purpose, and backpay will commence as of the unconditional offer to return to work. National Car Rental System, Inc., Car Rental Division, 237 NLRB 172 (1978); Newport News Shipbuilding & Dry Dock Company, 236 NLRB 1637 (1978). For the reasons set forth in their dissent in Drug Package Company, Inc., supra, Chairman Fanning and Mem- ber Jenkins would not automatically grant this 5-day grace period. Neverthe- less, they acknowledge that, until such time as the majority view approving this practice changes, they are institutionally bound by this position. der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Harris- Teeter Super Markets, Inc., Charlotte, North Caro- lina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs 2(a) and 2(b): "(a) Offer William Huntley immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole in ac- cordance with the recommendation set forth in the section entitled 'The Remedy.' "(b) Offer the employees listed on Appendix B [Appendix B omitted from publication] immediate and full reinstatement (to the extent it has not already done so) to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay or other benefits suffered (com- mencing February 27, 1977) as a result of the refusal to timely reinstate such employees upon their uncon- ditional offer to return to work from an unfair labor practice strike engaged in by such employees. Such backpay and other benefits are to be computed in the manner set forth in the section herein entitled 'The Remedy.'" 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning their union interests, sympathies, strike intentions, or other union activities in a manner constituting interference, restraint, or coercion of employees engaged in the exercise of rights un- der Section 7 of the Act. WE WILL NOT create the impression in employ- ees that their union activities are regularly being kept under surveillance by telling our employees that individual employee union activists in our different departments have been identified or by seeking to determine from our employees the names of leading strike proponents and indicat- ing to employees that we intend to suppress the protected activities of those employees. 242 NLRB No. 32 132 HARRIS-TEETER SUPER MARKETS. INC. WE WILL NOT in an unlawful manner more strictly enforce our tardiness and doctor certifi- cate rules contrary to our practices thereon exist- ing prior to August 5. 1976. WE WIl. NOI promise raise increases to em- ployees to influence them to refrain from joining employees on strike. WE WILl NO threaten our employees with discharge for engaging in protected activity in support of the Union. including strike activity, or threaten that we will make it as hard as possible on our employees who have supported the Union. or threaten that identified leading union adherents will be the first to be discharged. WE WILL NOT discourage our employees from membership in, or support of, Local 525, Meat. Food and Allied Workers Union. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL CIO, or any other labor organi- zation or from engaging in protected concerted activities by discharging our employees, by oth- erwise discriminating against employees, or by refusing to timely reinstate unfair labor practice strikers upon their unconditional offer to return to work. WtE WIl. NOI in any other manner interefere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them under Sec- tion 7 of the National Labor Relations Act, as amended. WE WIlu.I offer William Huntley immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or any other rights or privileges previously en- joyed, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him, with in- terest. WE WtIt offer the employees listed on Appen- dix B (to the extent we have not already done so) immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges enjoyed, and WE WILL make them whole for any loss of pay or other benefits suffered (commencing February 27, 1977) as a result of the refusal to timely reinstate such employees upon their unconditional offer to return to work from an unfair labor practice strike engaged in by such employees. with interest. HARRIS-TEETER SUPER MARKETS, INC. DECISION SIA rEMENII OF ItF CASI RoBiRI G. ROMANO. Administrative Law Judge: A hear- ing in consolidated Cases 11-CA 6827 and 11 ('A 6964 was held initially at Gastonia, North Carolina. on June 14 17, 1977, and then at Charlotte, North Carolina. on July 13 14, 1977. Further, a hearing on ordered consolidation of Case I I ('A-7122 was held on March 28-30. 1978. at Cias- tonia. North Carolina. On a charge in Case I1 ('CA 6827. filed by the Union on November 23, 1976. an original com- plaint had issued on January 25., 1977. Following the Union's filing of a charge in Case I I CA 6964 on March 17, 1977 (amended April 6). an order consolidated cases and consolidated complaint in cases I1 -CA 6827 and 11 CA-6964 issued on April 7, 1977 (amended May 10). That consolidated complaint, as amended, and as further amended at the opening of the hearing. alleged: (a) exten- sive violations of 8(a)( I) generally in the period of mid- July-August and November 1976,1 (b) discriminatory dis- charges of employee William Huntley on September 29 and employees Joseph Nicholson and Kirkpatrick Carr on De- cember 6. and (c) that a certain strike which commenced on November 17 was an unfair labor practice strike in that it was caused and prolonged by the above-alleged discrimina- tory discharges and by the failure of Respondent to remed` certain other unfair labor practices in previously heard con- solidated Cases I -CA 6308 and II CA 6542.: Helpful briefs on the initial consolidated proceeding Cases 11 CA 6827. 6964) were timely filed by General Counsel and the Charging Party on or about September 12. 1977. In the interim. the original charge in Case 11 C(' 7122 had been filed by the Union on July 21. 1977 (amended December 13). A complaint in Case II CA 7122 issued on January 11. 1978. alleging that on February 19. 1977. 152 (named) employees. who had engaged in the above-alleged unfair labor practice strike or other concerted activities, had made an unconditional offer to return to their former or substantially equivalent positions of employment and that since that date Respondent had failed and refused to immediately reinstate the named employees, all in further violation of Section 8(a)( I) and (3) of the Act. On January 20, 1978. Respondent filed timely answer in Case II ('A 7122, denying the commission of any' unfair labor practices and praying that the complaint be dismissed. On January 24, 1978. General Counsel filed a motion to reopen record (in consolidated Cases I I CA 6827 and 11 CA 6964) and a motion for Case I 1-CA-7122 to be ordered consolidated. contending these matters had already been fulls litigated. On January 31. 1978, an Order To Show Cause issued with response by the parties returnable by February 14, 1978. B All dates referred to herein are in 1976 unless shown otherwise. 2On February 23. 1977. Administrative Law Judge Henry L. Jalette issued a Decision wherein he found that Respondent had engaged in certain unfair labor practices in iolation of Section 8(aX I). 3), and (4) of the Act On August 31. 1977. the Board affirmed. Harris-Teeter Super Markets, Inc., 231 NLRB 1058 11977). As requested b General Counsel and the Charging Party I shall take official notice (as appropriate) of those prior proceedings as background bearing on matters of the instant pro,'eeding. (See sec. Ii. D)I. infra). Reinforcing Iron Workers, Local mnion 426, Internainal .4ssotiauion, of Bridge, Structural and Ornamental Iron Workers, A FL -CIO Bro. n Bros . Inc J. 238 NRB 4 (1978). 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 6, 1978. the Charging Pary filed a second amended charge in Case1 CI-CA 7122. Thereupon, the General ounsel filed a motion to amend complaint' (in Case 11 (CA 7122) and a further response in support of a reopening and consolidation; as did the Charging Party. Respondent filed a response (in opposition) contending that although the prior consolidated complaint had alleged an unfair labor practice strike, the complaint in Case I -CA 7122 has now specifically named 152 individuals as "strik- ers" who allegedly had made unconditional offers to return to work and asserting that certain of its available defenses thereto had not been litigated: namely, that certain jobs had been legally abolished, that certain of the named em- ployees had not in fact gone on strike, that others had never in fact offered to return to work, and that still others had subsequently refused offers of reinstatement. Respondent thus demanded that hearing be provided on such issues, while alternatively urging that the complaint in Case II- CA-7122 be dismissed in its entirety and that such matters as were raised in that complaint be handled in a future compliance proceeding in Cases I -CA-6827 and 11 CA- 6964, when and if appropriate. None of the prior consoli- dated complaint proceedings in Cases 11 -CA-6827 and I CA-6964 had specifically alleged a refusal by Respondent to reinstate any strikers as being violative of Section 8(a)( I) and (3) of the Act. Upon full consideration of all the above premises shown, the record in consolidated Cases I1 CA 6827 and 11-CA-6964 was ordered reopened, the com- plaint allegations of Case 11 -CA-7122 ordered further con- solidated, and the amendment of complaint in I I-CA 7122 allowed. As noted, the latter consolidated issues came on for hearing on March 28-30, 1978. All parties have now filed timely and helpful briefs on or about May 16, 1978. On the second day of resumed hearing Respondent for the first time raised a contention that Section 10(b) of' the Act effectively bars all complaint allegations of failure to rein- state strikers as being in violation of Section 8(a)(3) and (1), excepting to three named strikers as alleged in initial charge filed in Case II CA-7122 on July 21, 1977. 1 find such contention to be without merit for reasons fully discussed infra. (See sec. 11, El.) Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following: FINDINGS OF FACT I. JURISDI('TION The Company is engaged in the retail sale of groceries, produce. meats, and other goods, with retail store facilities located throughout the States of North Carolina and South Carolina and with its general office and central warehouse located at Charlotte, North Carolina. During a material 12- month representative period the Company sold and distrib- uted goods valued in excess of $500,000, and during the same period the Company purchased and received goods The desired amendment essentially was to add the name of an employee who inadvertently had been omitted in the amended charge in Case I ICA 7122 and subsequently in the complaint issued thereon. (at its warehouse) valued in excess of $50,000 directly from points located outside the State of North Carolina. There is no dispute, and I find that the Company herein is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. HE AI.I.EG(ED UNFAIR ABOR PRA(CI1CES A. Background 1. Respondent's operations Respondent is engaged in the operation of some 62-64 retail stores located essentially throughout the States of North Carolina and South Carolina. Respondent operates a large warehouse and distribution center at Charlotte, North Carolina, servicing its retail stores. Respondent presently employs some 3,000 or more employees in all its operations. However, Respondent's Charlotte warehouse facility is the only facility involved in this proceeding. Presently Respon- dent employs some 290 employees in an appropriate unit essentially of warehouse employees, drivers, and garage me- chanics, for whom the Union presently is the certified col- lective-bargaining representative. 2. Statement of the issues The essential issues presented for resolution in the instant proceeding appear to be: a. Alleged interler/erence, restraint, and coercion in violation of Section 8(a)(lJ A determination must be made as to whether Respon- dent, in a period immediately preceding an election, inter- rogated employees as to who would vote for the Union in certain departments, by certain statements created the im- pression of surveillance of employees' protected activity, threatened employees with a proposed discharge of known union activists. in the period immediately following the election initiated a more strict enforcement of its tardiness and doctor certificate rules, and otherwise told certain of its employees that it was going to make it as rough as possible on employees who had voted for the Union; and whether Respondent (in a prestrike and immediate poststrike pe- riod) continued interrogations of its employees as to the names of union members or of employees with union sym- pathies and who would go out on strike, threatened em- ployees that if they went out on strike they would be termi- nated and not rehired, sought to dissuade employees from engaging in strike activity by unlawful promise of raises, informed employees who participated in the strike that they were discharged for striking and told employees to tell other employees the same thing, and coercively told employees it was futile to support the Union. b. Alleged discriminatorv discharges in violation of Section 8(a)(3) and (1) It must also be determined whether the September 29 discharge of William Huntley, a conceded top truckdriver 134 HARRIS-TEETER SUPER MARKETS, INC. with approximately 5 years' service and known to be a member of the employees' negotiation committee since Sep- tember 20, was based on pretextual reasons and was in fact discriminatorily accomplished in violation of Section 8(a)(3) and (1) of the Act and whether alleged terminations on December 6 and subsequent refusal to reinstate striking employees Joseph Nicholson and Kirkpatrick Carr were also pretextual and acts accomplished in violation of Sec- tion 8(a)(3) and (I) of the Act. c. The alleged unfair labor practice strike It must be determined whether a certain strike which commenced at 3 p.m., November 17, was caused and/or prolonged by Respondent's prior and presently alleged un- fair labor practices. d. Reinstatement of strikers Respondent's defenses If the allegation in section c, above is true, it must be determined whether Respondent has unlawfully refused to reinstate, or timely reinstate, 155 unfair labor practice strik- ers specifically named in the complaint (as amended), in violation of Section 8(a)(3) and (1) of the Act. Noteworthy subordinate issues of defense as raised by the Respondent would appear to be whether there was un- lawful refusal to reinstate striking employees Margie F. Kiser, Pamela Ledford, and John Thomas Caddell, whose former jobs, it is conceded, were in the interim lawfully abolished, and whether certain other of the named employ- ees never went on strike, have never offered to return un- conditionally to work, or have refused lawful offers of rein- statement. e. Remedy The issue here is one of the fashioning of an appropriate remedy for any violation(s) of the Act which may be found warranted by the evidence, with requests for certain special remedies being urged by the Charging Party. B. The Alleged Acts of Interference, Restraint and Coercion Preliminary Statement August 5 and November 17 are the two central event dates about which most of the independent 8(a)(l) com- plaint allegations are observed to revolve. Thus, an election was scheduled and held on August 5. The Union was at that time designated by a majority of the employees in an appropriate unit essentially of warehousemen, drivers, and garage mechanics as their collective-bargaining representa- tive by a vote of 163 to 116. The General Counsel argues that just prior thereto Respondent had promptly resumed its unlawful campaign against the Union despite, and im- mediately after, the hearing on the earlier consolidated pro- ceedings which had closed on July 1.4 General Counsel con- tends that the evidence herein established that the Employer has continued its antiunion campaign unabated. 4 Harris Teeter Super Markers, Inc., supra. The Charging Party has also urged that the matters of con- solidated complaint before me should be addressed in chro- nological sequence and also in relationship to prior pro- ceedings. in order that there may be evidenced the continuing pattern of conduct by Respondent in resistance before and after the employees selection of the Union as their collective-bargaining representative and the manner in which its acts intensified in degree of hostility to the Union thereafter, all of which conduct, unremedied, led inexorably to the certain strike which occurred on November 17. Both General Counsel and the Charging Party thus con- tend that the strike was in nature, from its inception and throughout its duration, an unfair labor practice strike. To the extent deemed feasible, such approach is made to the allegations and the consideration of the supporting evi- dence. At the outset, I note that a not insignificant number of the complaint allegations of interference, restraint, and coercion on which General Counsel and the Charging Party presented supporting evidence were ineffectively or even simply not met at all by Respondent. Respondent nonethe- less urges that the strike was an economic strike brought on simply by contended union economic dissatisfactions with the progress of negotiations during the several negotiation meetings which were held following the commencement of negotiations on September 29. I. Election period 8(a)(1) Employee Douglas Dover worked as a leadman in the produce department for some 8 months and did so up until about 3 weeks after the election, at which time Dover asked for and received a transfer. Tom Nance was the supervisor of the produce department. John Crawley was a night fore- man in the meat department. Both Nance and Crawley are admitted supervisors within the meaning of the Act. Dover testified that in Jul3 Supervisor Nance had questioned him in the produce office' as to how many employees Dover thought would vote for and against the Union and specifi- cally had asked Dover who in the produce and frozen foods department would vote against the Union. Dover replied that he was going to vote against the Union and also iden- tified by name four other employees who would similarly vote against the Union, also telling Nance that, other than that, everyone he knew would vote for the Union. Nance told Dover that the Company knew the people who were pushing for the Union, that they knew employee John Johnson was one of the people that had been pushing to get the Union in, and that Johnson would be one o the first people fired because of his activities. Dover's testimony in the above matters was given with clarity and conviction. In contrast, neither Nance nor Jonas testified at all. I credit Dover. I find that Respondent, during the month of July and prior to the election, unlawfully interrogated employees The record reveals that Jim Jonas, health and beauty aids manager talso an admitted supervisor), was in the room with Nance and had initially asked Dover how Dover thought the union election would go. and that Dover had initially replied to Jonas that he thought the Union would be voted n The inquiry of Jonas was not alleged as an independent violation Jonas did not testify. Under the circumstances of the violations otherwise found herein, I deem it unnecessary to reach the issue whether this matter should be consid- ered as one full) litigated What is deemed noteworthy is the fact that neither Nance nor Jonas testified in contradiction of Dover. 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to who and how many employees in the produce and frozen foods department would vote for and against the Union in the upcoming election; effectively created the im- pression that the union activities of employees were being kept under surveillance by informing an employee who had been so interrogated and who had revealed the union inter- ests of certain other employees that the Company knew who was actively pushing the Union, identifying one such employee by name; and that Respondent had then further coerced and threatened its employees by stating that the identified active union adherent would be one of the first people discharged because of his union activities, all in vio- lation of Section 8(a)(1) of the Act. Dover also testified that around July 12 foreman John Crawley had walked through the produce department and also engaged Dover in a conversation about the Union as Dover was working on the produce loading dock. Thus, Dover related that Crawley had asked Dover how he thought the election would go. Dover replied that he thought the Union would be voted in. Crawley then told Dover that if the Union were voted in, a lot of people would be disappointed because the Union would not be able to keep all of the promises that it had made. According to Dover, Crawley also told him that the Company knew who had been pushing for the Union. Crawley added that he knew that in his department (composed of 22 employees) Arthur O'Shields was one of the people trying to get the other people to join the Union and that O'Shields would be one of the first people gone. Crawley, when called as a wit- ness by Respondent, confirmed he had told Dover that O'Shields was a supporter of the Union, explaining, how- ever, that O'Shields had previously told Crawley that he supported the Union. Crawley denied he had told Dover that O'Shields was going to be terminated and that on one occasion prior to the strike he had said that Respondent was going to operate regardless of the walkout or who walked out and that employees would be replaced. On cross-examination Crawley admitted that he had received earlier instructions from his superiors to talk the Union down, but he nonetheless asserted he did not try to discour- age any employee from supporting the Union. Crawley ac- knowledged that in mid-July he was aware Dover was not a union supporter and in contrast admitted that O'Shields was then known by him to be a big (active) supporter of the Union. Finally, Crawley eventually admitted that he did not really remember the conversation with Dover, confirm- ing that he originally had told a Board investigator also that he did not recall a conversation with Dover about any union supporter. I have earlier found that Dover's testi- mony was credibly given without contradiction on other matters. As to the Crawley conversation, Dover's recollec- tions also remained substantially unaffected by cross-ex- anination. In contrast, Crawley's recollections in these matters became noticeably weakened with cross-examina- tion, to the point of appearing much less plausible, and his recollections, accordingly, I find substantially less convinc- ing. I credit Dover on these matters as well. I further find that by the above acts of interrogation and statements which reasonably tended to create an impression of surveil- lance, and which included coercive threats of future dis- charge of a specific employee for engaging in union activi- ties, that Respondent has additionally violated Section 8(a)(1) of the Act. The complaint herein alleges that Respondent more strictly enforced its tardiness rule after the election. There was considerable evidence offered on this allegation. Do- ver's transfer out of the produce department was accom- plished some 3 weeks after the election. I have earlier noted that for a period of 8 months prior to that transfer, Dover had been leadman in the produce department. Within a few days after the election, Department Supervisor Nance in- structed' Dover that if any employee was late, even a min- ute late. Dover was to write the employee up. According to Dover, the prior unwritten rule (practice) had been that employees were not written up before being 15 minutes late, indeed, if written up at all. Dover testified without testimo- nial or documentary contradiction that he subsequently had written up everybody in his department at one time or another (in those 3 weeks). It is noteworthy also that Nance had specifically instructed Dover that Dover was not to inform the employees that they were being written up for being tardy, though Nance told Dover the writeups were nonetheless to be put in employees' files. As Nance did not testify, Dover's testimony, again, was uncontradicted. I credit it. Hugh Ashcraft has been president of Respondent since 1973 and a member of its board of directors since 1963. Testifying as to Respondent's tardiness policy, generally Ashcraft related that there never was a time when an em- ployee could come in late less than 15 minutes without the Company making some note or record of it and that he presumed the rule on tardiness was that an employee who was I minute late was tardy. With the exception of drivers, employees punched a timeclock, which thus generated a permanent record of the time of arrival of the employee. No evidentiary claim is made by any of General Counsel's wit- nesses that they did not have established schedules or that they could be 14 minutes late and expect to be paid for that time. Rather, the thrust of the testimony of Dover and of other employees, in the meat department, supported by considerable documentary evidence, was that there was a change in the writeup procedure on incidents of tardiness. Ashcraft's testimony thus does not squarely address Gen- eral Counsel's evidence as to the contended changes in the implementation of the tardiness rule, viz, the evidenced changes in tardiness rule writeup procedure.7 President Ashcraft did acknowledge that he was not di- rectly involved in definitive implementations of tardiness (and sick leave) policy for the distribution center, as were Bill Mitchell, director of distribution, and Godfrey Bennett, the newly hired vice president of employee relations. Ben- ' All parties agreed and I find that Dover was not a supervisor within the meaning of the Act, but functioned routinely as a leadman in these matters, following supervisory instructions. At one point at the hearing, it appeared Respondent was contending the writeups were of no real significance, as they were not necessarily put into the employees' files or disciplinary in themselves. However, Godfrey Ben- nett, vice president of employee relations (since arrival on September 20). testified that such writeups when forwarded to him in personnel were placed in the employees' files: and there is record support to warrant conclusion they were then serviceable to form the basis of further disciplinary evalu- ations, including written reprimands. I thus would reject any contention by Respondent that tardiness writeups here under discussion were not intended in nature to constitute part of a potential disciplinary process or may be regarded otherwise as matters of no substance. 136 HARRIS-TEETER SUPER MARKETS, INC. nett testified that the overall policy implementation for the distribution center was (at that time) one previously devel- oped by Bill Mitchell and that it was Mitchell who deter- mined whether certain forms and reports went into an em- ployee's file. Bennett confirmed that if forms (writeups) were forwarded to personnel, they were then put in the given employee's file. However, Bennett was unable to tes- tify whether all writeups made had been forwarded to per- sonnel. Mitchell testified that the rule on tardiness was that if an employee was a minute late, the employee was tardy. According to Mitchell, the policy further was that an em- ployee who was tardy was to be written up. Mitchell con- firmed that all writeups went through him. Mitchell testified that the tardiness policy was contained in certain written rules and procedures.' However, the rule, in pertinent part, did not so specifically provide.9 It was also Mitchell's recol- lection that he had held a supervisory meeting prior to La- bor Day in which there was discussion of the subject matter of employees (as customary) working the upcoming holiday and that the subject of writeups for late arrivals had also been mentioned. Mitchell recalled that Supervisor Tom Nance (produce department) had stated that in his depart- ment he had been allowing 15 minutes before writing up an employee for tardiness. According to Mitchell, Nance in his practice of allowing an employee to be 15 minutes late be- fore writing the employee up had simply misunderstood the rule's reference to 15 minutes and had acknowledged such in the meeting. Mitchell testified Nance was the only super- visor doing so.'0 Mitchell confirmed that he had been told all the supervisors that there was nothing in the company rules which requires employees to be allowed 15 minutes (grace) and instructed them that (tardy) employees should be written up. I note in passing that even the contended written rule relied upon by Mitchell is at best silent on a policy implementation of when employees are to be written up for being tardy. The matter thus involves consideration of unwritten established practice (if any) of Respondent. Not only did Nance not testify at all, and thus fail to cor- roborate Mitchell in the above particulars, but I further note that none of the other supervisors (including John Watson and Doug Jones, who did testify on certain other matters) have corroborated Mitchell in his recollections of that discussion with Nance or other supervisors in that meeting as to their actual past practice, i.e., tardiness writeups. On the point of written rules relating to tardiness, I do note that Dan Price, supervisor of transportation (over some 60 drivers), did testify there was a written notice The matter of wntten rule posting and/or distribution is discussed more fully infra. Suffice it to note at this juncture that although these wntten rules (in form) provided for employee signature in acknowledgment of having read and understood the rules, no individual execution by any employee was offered in evidence. 9 The rule provided in full: (14) LATE TO WORK-ABSENTEEISM: All employees must call his supervisor no later than fifteen (15) minutes before reporting time if he is going to be late reporting for work. Employee arriving late must report to their supervisor or foreman before beginning work. The direct phone numbers are-Grocery Department-394-5955, Meat Department-399-6873, Produce Department-394-5065, Warehouse Office-394-5498, Transportation Office-394-5963. 10 This meeting was attended by some seven department supervisors. Not present were some 14 (first-line) foremen under the above supervisors. posted by him on that subject, dated May 2, 1974.' That notice, addressed to all company drivers, provided: SUBJECT: REPORTING FOR WORK AS SCHED- ULED Effective this date each driver is to report for work on or 5 minutes before scheduled reporting time. If for any reason you should report for work later than your scheduled reporting time a written notice will be prepared stating the facts of your lateness. The notice will then be placed in your driver file for review each month. EXAMPLE: John Doe - Due in at 5:00 am - Reported - 5:05 am (late) However, Price's testimony in support of Mitchell other- wise that drivers were to be written up for being I minute tardy was not corroborated by the testimony of Transporta- tion Foreman Preston Little as to the practice relative to even the drivers. Thus, Little (on rebuttal) testified that a driver was not written up until he was 5 minutes late. (I note the relation of such practice to the specific example given on the notice.) Perhaps more significantly, Price was not corroborated by any documentary evidence that a driver was ever written up for being less than 5 minutes late, either before or after the election. General Counsel offered other evidence in support of the complaint allegation that Respondent had effected a change in its tardiness rule implementation, which I find Respondent also has unconvincingly met. Thus, employee James E. Mobley, who was seldom late, testified that it was either Supervisor Doug Jones or Supervisor John Watson who told him shortly after he started to work (June 1974) that if he came in up to 15 minutes late, nothing would be held against him, though Mobley understood that he would not be paid for such time. Mobley also testified in a con- vincing manner on this matter. In contrast, neither supervi- sor Jones nor Supervisor Watson, both of whom testified on other matters, contradicted Mobley. I thus credit Mobley that on initial hire in June 1974 he was informed in sub- stance and effect that it was Respondent's practice to per- mit an employee's occasional tardiness of up to 15 minutes without any resulting discipline to the employee. Mobley. a loader in the meat department, also testified that such pol- icy after the election changed in that if the employee was a minute late, the employee was then written up. Mobley also testified that leadman Terry Givans, in early September, wrote him up, telling him at the time that it was not he (Givans) who was doing it, but that his supervisors had instructed him to do it, so he had to do it. John Henry Crawley, foreman in the meat department, did not deny issuing such an instruction to leadman Givans, but rather confirmed that Givans had succeeded John Chandler as leadman in his department, about May or June, and con- firmed that it was customary for either Crawley or the lead- man (at his direction) to write up employees. Crawley oth- erwise testified that his employees could hit the clock any time from 5 minutes before up to scheduled report time, but i While there is considerable conflicting evidence as to (any) posting of the above notice. I am fully convinced a practice of writing up drivers upon their being 5 minutes late was in effect during material times 137 DE.CISIONS OF NATIONAL LABOR RELATIONS BOARD that the tardiness rule was that if an employee was I minute late, he was tardy. Crawley further testified that such a tardy employee was written up by himself or the leadman. Crawley, a foreman since June 1974. related that he had never done it any other way, though he confirmed that there had been a 15-minute grace period sometime in the past. Crawley also testified the above rule was posted on the bulletin board." As compared with a substantial number of records introduced by General Counsel (including files of employees at one time or another supervised by Crawley). Respondent has introduced no documentary record support for Crawley's recollection to establish that during his fore- man tenure, any employee was written up by Crawley (or leadman Chandler or leadman Givans prior to the election for being less than 15 minutes late. Neither Givans nor Chandler testified at all. Under these circumstances. I con- tinue to credit the testimony of Dover and credit as well the mutually consistent and substantially corroborative testi- mony of Mobley. Additionally, I find their testimonies far more convincing under the total circumstances than the recollection of Crawley, uncorroborated as it is testimoni- ally or by any of Respondent's records. There is other cor- roborative, consistent, and equally convincing evidence. Employee Nathaniel Harris was employed in meat re- ceiving. Harris also testified that prior to the election Re- spondent's practice on tardiness was that employees were allowed to be 15 minutes late before they were written up. Even more pointedly, it was Harris' recollection it was about the day after the election that Foreman Dwight Johnson' came up to Harris in the meat department office and told Harris that they had checked the rule and did not find anywhere that they had to give employees 15 minutes before a writeup; that if one was I minute late, he had a writeup slip: that they had orders from the plant office to write employees up: and that the front office would decide whether or not to put the writeup in the employee's folder. According to Harris, prior to the election, whether there was a writeup (at all) was essentially up to the discretion of the foreman, but after the election, everybody tardy was written up. Harris also testified that after the election he had actually received writeups for being I minute late.'4 Foreman Johnson (called as a witness by Respondent) testi- fied that the rule was that if an employee was I minute late, he was tardy, and that he knew of no 15-minute leeway. However, again, Johnson was not supported by any actual employee writeups. I note also that in testifying as to policy postings, Johnson identified one certain policy as posted which Respondent otherwise has conceded was not ever posted on its bulletin boards. In summary, the testimony of General Counsel's wit- nesses in this area was essentially consistent, mutually cor- 12 Crawley referred in his testimony to rules under the name of Ralph Wilson. Mitchell's predecessor, and rules under Mitchell's signature after the latter was promoted. It is unclear what rules Crawley referred to as being posted. Crawley's recollection was in any event that the rules were the same. It has been noted that the above written rule under the signature of Mitchell is silent on when wnteups would be made for tardiness. " Johnson testified he was meat receiving foreman during this period. '* Harris testified he had received three such writeups for being I minute late after the election. The record reveals that only I- and 2-minute reports were to be found in his file. I do not view this variance as critical on Harris' testimony, particularly in view of his testimony and other evidence as to the procedure of selective forwarding of writeups to personnel. roborative, plausible, and independently supported by the thrust of a significant number of record exhibits on tardi- ness writeups and other documentary evidence, while the testimony of Respondent's witnesses in this area was nei- ther consistent nor convincingly corroborated, let alone supported by any substantial documentary evidence of rec- ord." I am thus wholly convinced and I now find that shortly after the election and prior to Labor Day. Respon- dent began to more strictly enforce its tardiness rule by instructing its supervisors, and by their in turn instructing subordinate foremen and leadmen, to commence writing employees up for any tardiness, even of a I minute; and the above circumstances otherwise warrant the further conclu- sion that Respondent did not do so solely or even directly to enhance or correct individual employees' attendance per- formance, but tightened and made more restrictive its tardi- ness rule and practices thereunder because its employees had recently designated the Union as their collective-bar- gaining representative, in violation of Section 8(a)( ) of the Act. The complaint, as amended at the hearing, alleges similarly that Respondent more strictly enforced its rule requiring employees to produce a doctors' certificates be- cause its employees solicited the Union. Evidence bearing upon this issue is conveniently considered injra in connec- tion with the discharge of truckdriver William Huntley. The complaint alleges that Foreman Fred Erwin. on two occasions in early August after the election, threatened em- ployees by telling certain employees that he knew "all the damn niggers" had voted for the Union and that he was going to make it as rough as possible on them. It is to be noted at the outset that the complaint does not allege that Respondent has violated the Act by changing any policy or practice in regard to breaks provided its employees, al- though one of the above incidents took place in the context of a change in the procedure by which certain employees began their morning break. The issues relate soley to whether either of the remarks were made as alleged in vio- lation of the Act. Respondent's warehouse is the size of a city block and contains some 425,000 square feet of warehouse space. On one side or end of the warehouse, there are (front and back) railcar unloading docks. On the opposite side of the ware- house are located the truck unloading docks. For 3 years or more, Erwin, an admitted supervisor within the meaning of the act, has been dry grocery receiving foreman under Gro- cery Department Supervisor John Watson. Erwin was, and is, in charge of all the truck and railcar unloading and re- ceiving for the warehouse. At material times, there were 13 employees (including I leadman) working on the two rail- car dock areas and 7 8 employees working on the truck 1t While the finding herein is not to he deemed controlled thereby. it is nonetheless warranted to note General Counsel's argument from the inci- dence of the reports in a significant group. Thus. of some 75 tardiness reports in evidence, some 62 reflect tardiness of 15 minutes or more. Of the remain- der, nine writeups on incidents of less than 15 minutes' tardiness occurred after the election, while only three occurred before the election tone being undated). Two of the latter writeups prior to the election ere applicable to a driver (Huntley) for a 5-minute tardiness on October I, 1974, and an 8- minute tardiness on April 21. 1976. notably consistent with the notice of Price dated May 1974 as interpreted and actually heretofore applied in prac- tice in that department. according to ittle. The periods covered by the files from which the reports emanate are such as to further render the sampling even the more convincing. 138 HARRIS-TEETER SUPER MARKETS. INC. docks. In early August, and for a period extending through October 3 (3 months), Erwin was assigned additional fore- man responsibilities over some 21 employees working in the drug department. Drug employee Brenda Fowler testified that on August 6. the day after the election, Foreman Erwin told Fowler that he knew that "all the damn niggers" had voted for the Union. and he intended to make it as rough as possible on them. Fowler relates that this was the only conversation she had with a supervisor about the Union. Fowler could not recall who started the conversation, though Fowler testified affirmatively that she had never personally asked Foreman Erwin how he felt about the Union. However, according to Erwin. Fowler had asked his opinion about the Union and had asked how the Union would affect the employees there. Erwin then told Fowler that he did not know that much about a union, that he had never dealt with one, but that he did not know if Fowler would be able to be out like she had been in the past when necessary with her (sick) daughter. Erwin categorically denied making the above remark con- taining the racial slur to Fowler or to drug employee Beatty (discussed infra). asserting, without objection, that he would not make such a statement. Other than that which is attrib- uted to him by Fowler (and Beatty, inra). no evidence to the contrary was presented. Before reaching consideration of the testimony of Beatty as to a second such incident which allegedly occurred in relation to breaktime alter- ations, sone additional background is warranted. Respondent provides two 15-minute breaks per workday for its employees. It is uncontested that a morning break was regularly scheduled for its pickers (grocery department) at 9 a.m. and that the ending of that break period was regularly signaled by an announcement to the pickers of worktime made over the public address system at 9:15 a.m. Truck dock employees had no scheduled breaktime. It is also uncontested that the scheduled breaktime for the drug employees and for the railcar employees was from 9:15 to 9:30 a.m. However, there are separate clocks in the grocery and drug departments. These clocks were not kept synchro- nized, and the drug clock apparently regularly ran ahead of (in time) the grocery clock. though the record is unclear which clock, if either, was actually accurate. According to Beatty (hired in November 1975), drug and rail dock em- ployees had regularly used the time shown on the drug de- partment clock to synchronize their personal watches and/ or to key the start of their morning break. I credit Beatty that these employees (at least for the period of her employ- ment), had not previously been required to key or cue the commencement of their break to the announcement of worktime for the grocery pickers. I further credit Beatty that, resultingly, it was not infrequently the case prior to the election that the pickers and drug and rail dock employees were able to be together on break in the cafeteria (at least) for a few minutes of their respective breaks. Beatty testified that it was during the week of August 9. following the election, on an occasion when the drug em- plovees had started to leave to take their break as usual. that Foreman Erwin had come out shaking his hands at them, telling them to go back to their work area and to wait until they' heard worktime announced for the grocery em- ployees before they began their break, which the employees then did. Later that afternoon Beatty asked Foreman Erwin why he had done this. According to Beatty. Erwin told her at the time that he knew "all the damn niggers" on the rail dock had voted for the Union and that he was going to make it just as hard on them as possible. This immediately led Beatty ( find not unreasonably) to believe that the drug employees were to be similarly punished. As earlier noted, Erwin has denied he made any such statement to either Beatty or Fowler. Erwin does confirm that in early August. shortly after he took over the supervision of the drug employees. he had occasion to stop the drug employees from going to break, though not the rail dock employees. as their break was con- trolled by his leadman on the rail docks. Erwin's version of this incident otherwise was that when he took over the drug employees he had noticed the drug employees were leaving earlier and earlier and that he had stopped them one day as they began to go to break at 9: 10 am.m. According to Erwin, when he directed the employees to return to work. Beatty was the sole employee who did not go immediately back to work as instructed. While the record is unclear how long it was thereafter, according to Erwin, Beatty eventually came back to Erwin and at that time asked Erwin why the, could not go on break in time to get a sandwich and have time to eat it. Erwin then told Beatty essentially that the Compan provided only a 15-minute break and that theirs was sched- uled for 9:15 9:30 a.m. It is preliminarily noted that the conflict between Beatty and Erwin as to this incident does not extend to a substantial disagreement as to the month of the incident's occurrence. with both placing it in August. On cross-examination of Beatty. Respondent established that in an affidav it provided by Beatty to a regional investi- gator on December 15. Beatts had narrated herein that the above remark she ascribed to Erwin had occurred on or about October II. Beatt readily admitted she had done this and acknowledged that it was a mistake on her part. However. Beatty then reaffirmed her testimony that the de- scribed incident had occurred during the week after the election and also that the expletive "damn" had been used.'" Beatt 3 further testified in explanation for the ari- ance as to the date that, accompanied by another employee, she had earlier in October reported Erwin's remark to Mitchell. director of distribution, along with reporting to him certain other personal complaints of alleged conduct of Erwin towards her which had then recently occurred in Oc- tober and had greatly disturbed her."l Beatty explained that when she gave the affidavit in December, she had gotten the remark of Erwin datewise "tangled" up in the affidavit with the other matters that had occurred in October and all of which at that time were reported to Mitchell. Beatts also testified that when she reported to Mitchell that the above remark had been made by Erwin, Mitchell had agreed with her that Erwin's terminology had been bad. Quite signifi- cantly. Mitchell. though testifying on other matters, did not I Beattiy estified that upon receiving a copy of her statement prior toi the hearing, she had recognized the error on the date and brought it to the attention of the General Counsel. is ell as volunteered that she had addi- tionally noticed that the remark as recorded in the affidavit did not contain the word "damn." which (as noted) she reaffirmed had been used r It appears Beatts's conference with Mitchell Has held on Wednesday. Oclober 13. According to Beatt,. Jnas took oser as super.isor of the drug employees the tollil ing ecek 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute Beatty's testimony as to the nature or timing of her report to him or even of the comments she ascribed as made by Mitchell about Erwin upon receiving the reports. An inference is warranted that the report incidents were not of recent fabrication. Furthermore, I have noted that Beatty's notation in the affidavit clearly describes as the incidental framework of the remark the very incident (Erwin's action taken on the drug employees' breaktime) which even Erwin's testimony confirms occurred in early August, not October. Under all of the above circumstances, I conclude that Beatty's testimonial explanation of her oversight on the date variance in the affidavit appears generally plausible. Nonetheless, the above variances seem to present cause for some degree of additional care in resolving this matter of credibility. To begin with, I detected nothing in the demea- nor of either Beatty or Fowler in describing this incident to warrant discrediting either of them. No significant prior af- fidavit infirmity is deemed present as to witness Fowler at all. The Charging Party, in addressing the issue of credibil- ity resolution on this matter, has urged that since the dis- criminatory or threatening remark involved also contained a racial slur, consideration should be given (of a probabil- ity) that Erwin understandably would not now want to ad- mit he had made such a comment about his rail dock em- ployees. There is some support to be derived for General Counsel's witnesses from this observed circumstance, but not such support as may be deemed controlling.' However, in several other areas, as urged by General Counsel, I do find that Erwin's testimony gives clear appearance of being strained, particularly in a seemingly unusual reluctance on his part to acknowledge that Respondent had ever cam- paigned against the Union, and as well in the nature of his testimony relative to his own awareness of the union senti- ment of the railcar dock employees whom he supervised. In respect to the first above, for example, Erwin acknowledged that the Company did not want the Union and that his own supervisor, Watson, had even individually instructed him that if employees asked him what he thought about the Union, he should tell them, and he admitted further that he had done so; yet he steadfastly denied the Company had campaigned against the Union. In regard to the issue of his awareness of the union sentiments of the railcar dock em- ployees, Erwin appeared to be especially sensitive. While maintaining that he was unfamiliar with and had no idea how the rail dock employees under him felt about the Union, Erwin on yet another occasion admitted to having personal feelings of how the railcar dock employees felt toward the Union. In passing, I note Supervisor Watson's testimony that Foreman Erwin was among his foremen who, as requested, had subsequently reported to him the number of employees (under his supervision) likely to strike. There is also the consistency of this foreman's re- " Respondent holds itself out to be an equal opportunity employer. The railcar dock employees under Erwin's supervision were predominately black. Further, unlike the truck receiving and unloading employees, who essentially were racially evenly divided, work together and had no set break period, the 13 railcar dock employees, who had the same scheduled break period as did the drug employees, were composed of 9 black and 4 white employees. The latter group worked at one dock area some 400 feet distant from the former's work area. Though all apparently had the same break period, it nonetheless seems clear to me that there is no warrant to reject evidence of an utterance of such a remark because of its being one that would have been made with an improbable plant application mark with other supervisor activities, e.g., in re the tardi- ness rule. While the issue remains one not wholly free from doubt, I am nonetheless persuaded that General Counsel's evidence predominates in this matter, and I am thus satis- fied that there is sufficient evidentiary support to warrant the finding I now make that Erwin uttered the remarks substantially as ascribed to him by witnesses Fowler and Beatty and that more pointedly thereby Respondent has additionally threatened and coerced its employees by telling employees it was going to make it as hard as possible on employees who had voted for the Union, in violation of Section 8(a)( 1 ) of the Act. 2. Strike period 8(a)( 1 ) Employee Margie Kiser, hired March 1974, was one of II employees employed in Respondent's salad kitchen. During material times, Kiser was supervised by Salad Kitchen Foreman Bill Williams, an admitted supervisor within the meaning of the Act. Kiser, active with the Union since May, subsequently served on the Union's committee during the negotiations which commenced September 29. Kiser had a good relationship with Foreman Williams, and the two frequently had discussed the ongoing negotiations. On November 5, Kiser related, she was with Williams in his office at 10:30 a.m. On that occasion Foreman Williams told Kiser that he had been told at a meeting that employ- ees who walked out on strike would be fired. Williams said that, not believing it, he had called his own lawyer. Wil- liams then repeated to Kiser that they would fire employees for going out on strike. Williams asked Kiser if the employ- ees in the salad kitchen would go out on strike. Kiser re- plied that they would. Williams inquired how many people Kiser thought would go out on strike, and how many would remain. Kiser replied she thought 10 would go out on strike, and I would remain. Kiser also testified that there then developed considerable argument between them over the subject of employees being fired for striking, with Kiser asserting that the Company could not legally fire employees for going out on strike and Williams insisting that they could and would. As Kiser prepared to leave the office, Williams then told Kiser to go tell the employees that if they went out on strike, they would be fired. After leaving the office, Kiser had the question put to a union represent- ative through a fellow employee and subsequently received the answer back that employees could not be fired for going out on strike. Later that afternoon, at 1:30 p.m., armed with this union assurance, Kiser again spoke to Williams near his office. Kiser then told Williams she had checked and found out for sure that the Company could not fire employees for going out on strike. At that point Williams told Kiser that he had also done some checking and that they would not fire them but that they would be replaced. Williams again asked Kiser how many would go out on strike, and Kiser repeated that 10 would. Williams asked how many would remain, and Kiser answered that probably one would. When Wil- liams inquired about that one crossing the picket line, Kiser replied she had no idea. Williams did not testify. I credit Kiser. I find that on November 5 Respondent interrogated an employee concerning her union strike sympathies and those of other employees in the salad kitchen; threatened 140 HARRIS-TEETER SUPER MARKETS. INC an employee that if employees went on strike. they would be fired: and instructed an employee to inform other em- ployees that if they participated in a strike, they would be fired and later, in substance and effect. threatened (unfair labor practice strikers) that they would be permanently re- placed, all in violation of Section 8(a)( ) of the Act. Pamela Ledford, hired in June 1974, also worked in the salad kitchen. Ledford testified that on November 16, after discussion of a requested transfer, Williams had asked Led- ford individually if she was going to walk out with the Union or stay. Ledford replied she did not know. Williams said that they were not going to have the Union and that Harris-Teeter had tried to keep the Union out and was going to continue to try to keep the Union out." Picking up a stack of papers in his hand, Williams then said that every- body who walked out would be given termination papers. Again I note Williams did not testify. I credit Ledford in the above particulars. I find that on November 16 Respon- dent continued individual interrogation of employees as to whether they would go out on strike, coerced employees by telling an employee Respondent was not going to have the Union, and threatened employees with discharge for going out on strike by causing an employee to reasonably believe that termination papers had already been prepared for em- ployees in the event they went out on strike. As to the issue of whether Respondent has informed its employees that it would be futile to support the Union, I am satisfied that the above statements of having tried and of the intention to continue trying to keep the Union out in context of the other statements made, e.g., that the Company was not going to have the Union coupled with the circumstances of exhibiting documents described as termination papers, are more than sufficient to support the further finding I make that Respondent, in substance and effect, by this conduct had expressed to its employees at this time that it would be futile for them to attempt to support the Union in a strike. I find that by engaging in such conduct, Respondent has thereby additionally violated Section 8(a)( ) of the Act. Employee John D. Bowman, hired September 1975, worked in dry groceries under the immediate supervision of Foreman Green McClain, who, in turn, reported to Super- visor John Watson. Watson supervised approximately 100 employees. Bowman testified that on November 8 Watson had stopped Bowman as Bowman was on the way to the dock, with Watson telling Bowman that Watson had infor- mation from a reliable source that Bowman was confused about what was going on between the Company and the Union. Watson asked Bowman if he had any questions about it. Bowman, who had not joined the Union at the time, told Watson that he was trying to decide whether or not to join the Union and had some questions about whether or not to join the Union. Watson inquired what the 19 In making this finding I have considered Ledford's prior affidavit refer- ences both that the Company was not going to have the nion and that iit had already tried and was going to continue trying to keep the Union out. The record is clear that witness Ledford drew no distinction in her testimony between Williams' saying the Company had kept the Union out and his saying the Company had tried to keep the Union out. etc In view of other statements made and other circumstances of this conversation. this impres- sion left with Ledford, in my view, is one wholly understandable It in no way detracts from findings based upon her uncontradicted testimony as to other remarks made. questions were. Bowman asked Watson if in his opinion the majority of the people had joined the Union. Watson then inquired what made Bowman think anybody was on the union side. Bowman replied that from conversations with most of his friends, there appeared to be only a few left on the company side. Watson then told Bowman that the peo- ple telling Bowman that might just be saying it to get Bow- man on their side. Watson asked if these employees had threatened Bowman in any way. Bowman told Watson they had not. Watson then asked Bowman where he had re- ceived his information. Bowman then specifically asked Watson if Watson meant for him to name names. At that point. Bowman testified, Watson told him that Bowman could help him put out the fire, but if Bowman did not name their names, it would seem to Watson that Bowman was just adding to the kindling. Bowman then told Watson that he would not name their names because they were friends of his, and Bowman did not want to get them into any kind of trouble. Watson told Bowman that if there was a strike and if Bowman decided to come to work like he was supposed to, Watson wanted Bowman to know the Com- pany would provide protection for him. Watson asked Bowman if he had cleared him up on the matter. Bowman replied that he had. Supervisor Watson essentially confirms much of Bow- man's testimony. However, Watson denied that he had asked Bowman to identify any employees. On cross-exami- nation, Watson's testimony as to the "kindling" statement attributed to him was only that he could not recall making it. Cross-examination also established that Watson, with in- formation supplied by subordinate foremen, had made two reports to Mitchell on the number of employees under his supervision likely to strike, the first report being 4-6 weeks before the strike and the second being about 2 weeks before the strike: that in the interim, in a supervisory meeting held 2-4 weeks before the strike, he had been informed that they could expect a strike; that in his first report he reported to Mitchell it would be about half and half: and that in the second report to Mitchell. about 2 weeks before the strike, he had reported that probably a little more than half of the employees would stay in the plant.?0 Watson also acknowl- edged that he had not been able to read employee Bowman and that he had talked to other employees in the same way he had talked to Bowman and that though most were vol- untary, he had initially contacted a few employees, as he had with Bowman. Bowman's testimony was consistent and wholly plausible. I am convinced Watson made the above inquiries of Bowman, including requesting that Watson name the names of his coemployees who were at that time informing other employees that most of the employees were for the Union, and that Watson had coercively pressed the interrogation with a remark that if Bowman did not do so, he would be viewed by supervisor Watson as adding kin- dling to the fire. By such conduct, I thus find Respondent has unlawfully and with coercion interrogated an employee as to his union activities and sympathies and in similar fashion as to the union activities and sympathies of other employees, all in violation of Section 8(aX I) of the Act. 20 Following such testimony Respondent stipulated that Respondent in anticipation of a strike made every effort to find out how many employees would walk and how many would stay. in an effort to plan how many replacements they needed. 141 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD The complaint alleges that on November 10 Bakery Manager Melvin Moore threatened employees that if they went on strike, they would be terminated and not rehired. Employee Frank D. Dunlap. hired in July 1970, worked in Respondent's bakery department under the supervision of Bakery Manager Melvin Moore. Dunlap testified as fol- lows: On approximately November 10 Moore called him into the office. Coordinator Barbara Stewart (Moore's sec- retary) was also present. Moore began by explaining to Dunlap that the reason he had called Dunlap into the office was because Moore had heard that the Union was going on strike. Moore then told Dunlap that the Union did not have a contract, that it was trying to get one, and that "[wlithout a contract, if you goes out on strike, it would be a wildcat strike because the union don't have a contract with the Company."' Moore said he called Dunlap in to tell him this because if Dunlap went out on strike, he could not hire Dunlap back, that Dunlap would be out of a job. Moore also told Dunlap that had the Union had a contract, and he struck, he would (then) get his job back. Moore told Dun- lap that he felt a man with a family the size of Dunlap's would not want to be out of work. Moore said he wanted Dunlap to know that the Company could 22 replace every man and woman in the bakery: that if it wanted to it could close the salad kitchen down, and the bakery, too; and that it did not make any difference to them (company officials). Moore added he had never told Dunlap a lie and was not doing so then. I find presently that, inter alia, Dunlap has essentially acknowledged that at one point Moore told him that if he went out on strike, he could be replaced. How- ever, I further conclude that the thrust of the other remarks of this conversation (if credited) would warrant the further finding that Dunlap, in substance and effect, was clearly told at that time that if he did strike, he would be perma- nently replaced. Such to me is the least interpolation of his being told he would then be out of a job. Moore, as bakery manager, did not report to Mitchell but rather reported directly to Ashcraft. Moore denied that he had received any written instructions from Ashcraft that employees who did strike would be replaced, a denial which I do not credit as being one of several significant factual assertions in conflict with Stewart's testimony. Rather, I am convinced this was an instance of an overly cautious (mis- guided) attempt to isolate Ashcraft from even any connec- 21 Moore denied referring to a wildcat strike. Stewart did not remember. I credit Dunlap. I note the above reference comported with Moore's under- standing of a wildcat strike. The Charging Party seemingly argues in its brief that Moore's misunderstandings in this matter were either irresponsible or more likely evidence that Moore did not want to understand what the rights of striking employees actually were. I do not agree. While I have serious misgivings as to Moore's testimony in several other respects (discussed infra). I am not persuaded that Moore's expressed interest and concern for the bakery employees (including Dunlap, who had worked with him well and fi)r a long time) was not genuine. Further, that very concern is wholly compati- ble with the forceful remarks I find were made by Moore. In any event, the issue is not whether Moore was in error-e.g.. as to application of a wildcat strike or, more pointedly, as to striker replacement rights but rather whether what he actually told an employee, under all the attendant circum- stances, constituted interference or coercion of Section 7 rights or, alterna- tively, was no more than lawful prediction or permissible information being imparted to employees as to the Employer's intended action in the event employees did strike. 22 This is based on Dunlap's December 15, 1976, affidavit, most favorable to Respondent. Dunlap's testimony on direct was that Moore said that the Company was set up to replace every man and woman, etc. tion with this incident. I am persuaded to accept Moore's testimony otherwise that at this time he had not been in- structed by any others as to what he could and could not say to his employees. Moore's version of his conversation with Dunlap was one of steadfast, and in my view unconvincing. oversimplication that the only thing he told Dunlap (and each of the other 20 employees to whom he similarly spoke in his department) was that if they walked out on strike, they would be re- placed, because the Company was going to continue to op- erate as long as possible. Moore's demeanor on the stand was that of a clearly volatile personality. Moore evidenced as well, as clearly appears of record, on a significant num- ber of occasions a proneness on his part to evade probing questions in pertinent areas of inquiry by counsel other than his own, which in my view would have presented jus- tification in that respect alone to render his limited testi- mony the more suspect, particularly where in conflict with that of Dunlap. However, there was another person in the room who presented testimony on this incident and as to whom I observed no such demeanor infirmity, namely, Moore's assistant, coordinator Barbara Stewart. Although Stewart's testimony was in a number of areas not support- ive of or consistent with that of Moore, I find that Stewart was a generally more credible and careful witness.2 It was Stewart's recollection, though unsure, that Moore spoke to his employees during the week of the strike, and in any event not a long period of time before the strike began. Stewart's testimony as to her recollections concerning Moore's interview with Dunlap were as follows: She re- called that Moore told Dunlap that if he went out on strike, he would be replaced and that Moore had told Dunlap that he was a good worker, a breadwinner, and that he would hate for Dunlap to walk out. Although she frankly testified that she could not recall the exact words used, she was sure that Moore had told Dunlap that he would be replaced and had not referred to a discharge or termination. (I note in passing Dunlap has not testified to the contrary in the sense of attributing such words, in haec verba, to Moore.) How- ever, I note also that in a number of other respects Stewart's testimony was simply not supportive of Moore. Nor was it really in conflict with that of Dunlap. To begin with. Stew- art testified (contrary to Moore) that she did not remember any specific instruction from Moore that she was not to go on about her regular duties while the interviews were being conducted; rather, she recalled that as she regularly occu- pied the same office, she simply was not asked to leave. Stewart confirmed that, in fact, she had gone about her regular duties and testified as well that Moore had dis- cussed many things with employees which were not covered by the letter. In that regard Stewart testified that Moore had not read from the letter in conducting his interviews. Significantly. Stewart testified only that she did not remem- ber references by Moore to Dunlap about a wildcat strike. about Dunlap's large family or concern about Dunlap's 23 Despite some confusion and/or inconsistency in the record bearing upon the identification of a certain letter as the one received by Moore. in regard to distribution, timing of receipt and letter date, and thus timing relationship to the interviews, I am nonetheless persuaded that Moore had received such an instructive letter prior to the conducting of interviews, as Stewart has recalled. Moore's testimony' of receiving a letter generally was contradictory re replacing strikers. 142 HARRIS-TEETER SUPER MARKETS. INC(' family,. about bringing employees in from other stores, about closing the salad kitchen or bakery, or about Dun- lap's not being able to get his job back. Such inconclusive evidence does not persuade me against Dunlap's testimony in these particulars, which I find remain credible. I credit Dunlap's testimony in those areas. Not only was Dunlap a generally credible witness, but I view it more likely than not under all the circumstances that Moore would have ad- dressed such subjects and, accordingly, in the manner Dun- lap has testified. I note the letter in question did address both loss of jobs and family.24 Under the total circumstances attendant to this incident, I am persuaded that it is highly likely that Moore. in not reading to employees the material referred to and in view of his personality, would not have spoken on these subjects with the precision of well-turned phrases, such as a state- ment that the strikers would only "run the risk of losing their jobs completely." Rather, based on Dunlap's credited testimony that Moore had told him of an outright inability to hire Dunlap back if he went on strike and such assertions as that Dunlap would then be out of a job. etc.. I am con- vinced that Moore, in substance and effect, told Dunlap that if he went out on strike, he would be permanently replaced and lose his job. Of course, as an unfair labor practice striker. Dunlap could not be permanently replaced. He did not run any risk of losing his job. I thus conclude that the unequivocal nature of the replacement and lost-job remarks as made by Moore have interfered with the pro- tected right of Dunlap to engage in an unfair labor practice strike without running the risk of permanent replacement. I so find. Moreover, this conclusion seems to be further but- tressed when other credited remarks ascribed by Dunlap to Moore are considered. Thus, the aforementioned possible closure of the bakery and salad departments and their clos- ing being a matter of indifference to the employer officials in no wise may reasonably be viewed as related to or re- stricted to events being carried along by economic neces- sity. Rather, such statements encompass an implication that the Employer may or may not take the action, should em- ployees strike, for reasons that might be totally unrelated to economic necessities, and this might be accomplished for reasons known only to the Employer. Such statements are not construable as reasonable predictions based upon avail- able economic facts and arguments which employees may then evaluate, but rather in a real objective sense constitute not very veiled threats of potential retaliation on a subject concerning which employees are especially sensitive and thus are concluded as going well beyond parameters of "first amendment" constitutional free speech and its imple- mented permissible 8(c) expression of"any views, argument or opinion." Rather, they clearly constitute evidence of (being in themselves coercive) unlawful threats of job loss to employees for engaging in protected strike activity, in U4 The letter in part specificall) provided: Those who do strike or stay away from work. will not only lose pay. they will also not draw any unemployment compensation. Most impor- tant of all. they will run the risk of losing their jobs completely, for it is the intention of Harri Teeter tofill jobs and replace those who go on strike in order Jbr our company to continue to operate. Think about these things carefully. Think about them earnestly while there is yet time. This matter is of vital importance to you and your family and your future. violation of Section 8(a)(I) of the Act. .L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969): Ludwig Mfotor Corp., 222 NLRB 635, 636 (1976). In such circumstances, it makes little difference in effect generated whether such re- marks are clothed in words of discharge, termination, or job loss. As such, these remarks thus lend still additional sup- port for the conclusion earlier reached that the remarks of Moore, in total context-that if Dunlap struck, he would be (permanently) replaced. could not be rehired, and would be out of a job were coercive and violative of the Act. I so find. The complaint alleges that on November 18 Meat and Dairy Department Foreman George Hamilton had also threatened employees by telling them that if they went on strike, the, would be terminated and not rehired and that Hamilton also attempted to dissuade an employee from joining the strike by informing the employee that employees who did not strike would get raises after the strike ended. Emploee Nathanial Harris. hired August 1972. was one of five emploxees who worked in meat receiving under the supervision of George Hamilton, also an admitted supervi- sor within the meaning of the Act. Curtis G. (George) Hamilton had become a supervisor only about 3 4 weeks before the strike, which began on November 17 at 3 p.m. Harris testified that on November 18, at 9 a.m.. Hamilton told Harris in the meat receiving office that employees Frank (Sullivan) and Roosevelt (Patterson) had not shown up for their shift and with an obscenity remarked they were terminated and could not return. (Harris had observed em- ployee Sullivan on the picket line that very morning.) Har- ris asked Hamilton, What if an employee wanted to honor the picket line, but did not want to picket? Hamilton re- plied he would consider that employee to be out there with them. With that, Hamilton walked to the timeclock. pulled two timecards (which Harris later determined were in fact the cards of Sullivan and Patterson), and put them in the desk drawer in the office. Harris acknowledged on cross- examination that he was friendly with Hamilton and at that time felt he could talk to Hamilton about anything that he wanted. Harris testified that at the time he personally was undecided about whether he should join the strike or not. At about 10 a.m., in the office, Harris asked Hamilton about his joining the strike. Hamilton replied that one more body would not make that much difference to the Union, adding that he knew for a fact that some money would be paid out after the strike in the form of raises for the employ- ees that stayed in. Harris joined the strike the next day, November 19. Hamilton confirmed that he was good friends with Har- ris. Hamilton initially did not recall any conversation with Harris about Sullivan and Patterson going on strike. He denied that he had told Harris that they were terminated. While confirming that he had pulled the cards of Sullivan and Patterson, he asserted he pulled the cards of anyone that was out and did not call in. However, on cross-exami- nation, Hamilton's testimony became significantly con- fused. Thus, he testified each employee had been told if he went on strike he would be replaced, but then could not recall discussing that subject with Harris, still later recalling he had told Harris that Sullivan and Patterson would be replaced if they did not show up on the job but then seem- ingly justifying his belated acknowledgement in this area 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the observation that he thought that was what his su- perior Doug Jones had told him to say. Hamilton's version of the conversation with Harris otherwise was that it was not in this conversation but rather about 3 days before the strike that Harris had asked Hamilton for advice as to whether Harris should stay with the Company or walk out. According to Hamilton, he had only told Harris that he should do what benefited him. Hamilton could not remem- ber an inquiry by Harris about not wanting to picket but wanting to honor the picket line. However, Hamilton con- firmed that they did have a conversation on November 18 and that it was the next day that Harris joined the strike. Hamilton also could not remember if he had cursed Sulli- van and Patterson when they did not show up, though he conceded that the failure of two of five workers to show up that day had made it much more difficult at that time to do the work. Hamilton's initial version also has Harris asking him if the Company was going to give out any more raises anytime soon and him replying to Harris only that there would be the periodic raises that they always got, which the Company would probably give them as the cost of living went up. Hamilton denied he said anything about raises to employees for not striking. Then, unconvincingly, on cross- examination, Hamilton could only remember there was a conversation about wage raises, but was not sure exactly what was said. On cross-examination, Hamilton finally ac- knowledged he could not remember exactly what their con- versations were. I do not find such vacillating denials, if not clearly resulting in wholly inconsistent testimony, in any event very convincing or persuasive testimony on these is- sues. In contrast, Harris' testimony remained substantially unaffected by cross-examination and plausible with other facts, while that of Hamilton was not. I credit Harris. I thus find that Hamilton, on November 18, the day after the strike began, informed an employee that two striking em- ployees were terminated and could not return and that on the same day Hamilton attempted to dissuade employee Harris from joining the strike by holding out to him the lure of wage increases after the strike to those employees who did not strike, all in further violation of Section 8(a)(l) of the Act. Summary I have found that on various dates prior to the election of August 5, Respondent, by acts and conduct of its depart- ment supervisors and firstline foremen, had unlawfully in- terrogated employees as to which and how many employees would vote for and against the Union in the upcoming elec- tion, engaged in conduct and uttered remarks reasonably tending to create effectively an impression in employees that the union activities of employees were regularly being kept under surveillance, and coerced and restrained em- ployees by informing its employees that individual em- ployee union activists in different departments had been already identified and by threatening that those same em- ployees would be among the first to be discharged by Re- spondent. I have also found that shortly after the election Respondent, then being aware that its employees had desig- nated the Union as their majority representative, through its aforesaid supervisors and agents continued to interfere with, restrain, and coerce employees by commencing to more strictly enforce its tardiness rule in writing up employ- ees for any tardiness (even for a minute), contrary to prior practice and under such circumstances (timing, individual concealment, and publicized selective forwarding) warrant- ing the further conclusion that the change was accom- plished in retaliation because the employees had continued their union activity and because they had designated the Union as their representative. Finally, also clearly and con- vincingly evidenced were varied coercive and threatening remarks made to employees directly related to their contin- ued pursuit of protected union activity and the futility of it; as later evidenced, particularly in the prestrike period, in- tensified interference, restraint, and coercion directed at employee engagement in protected strike activity, through systematic interrogations of employees as to their strike sympathies and intentions, with specific attempts to identify principal union adherents (or strike proponents) expressing employee solidarily coupled with expressed intent to sup- press same; and, finally, and beyond the point for reason- able questioning, widespread instances of various coercive remarks and threats to employees that they would be dis- charged for striking, with an evidenced use of promised reward of raise increases to influence working employees considering strike activity not to do so. The above is base enough to warrant conclusion of established strong animus on the part of Respondent as background to consideration of other matters raised in the present proceeding. I so find. C. The Alleged Discriminator)y Discharge of William Huntley; the Alleged Change in Respondent's Policy and/or Practice Re Requirement of Doctor's Certificate William Huntley was hired in January 1972 as a truck- driver. Thereafter, he received a safe driving award, in 1973. Huntley won the Company's annual rodeo in October 1975.26 It is uncontested that Huntley was an excellent driver. In point of fact, Ashcraft testified Huntley was Re- spondent's top driver. Following the election Huntley was selected by certain of his coemployees (drivers) to serve on the Union's negotiation committee. This activity became public through a union flier distributed to employees around Labor Day and of which management concurrently became aware. 7 Negotiations were scheduled to commence on September 29. Respondent's 60 or more truckdrivers daily transport merchandise and supplies to its 62-64 retail stores, which are open 7 days a week. Departing times varied, though drivers generally had regular workdays. Driver Huntley had worked September 23 (Thursday) and was scheduled to work Friday and Saturday, having Sunday and Monday then off. At 12:30 a.m., Friday, September 24, Huntley timely called night dispatcher Larry Lefler advising he would be unable to make his 3:15 a.m. shift that morning, 27 The complaint additionally alleged that Supervisor of Transportation Dan Price had also stated that certain striking truckdrivers were fired. Evi- dence bearing on this allegation, though appearing cumulative, is considered infra in connection with the alleged discriminatory discharges of striking employees Joseph Nicholson and Kirkpatrick Carr on December 6. 26 The competition of drivers was accomplished over a course prescnribed by the American Trucking Association. 27 I further find that Ashcraft was also notified by the Union, approxi- mately September 20. as to the employees who would serve on the Union's committee, which included Huntley. 144 HARRIS-TEETER SUPER MARKETS. INC. as he was then taking a cold. Huntley told Lefler he would report later as to his ability to work his shift the next day. However, day dispatcher Jack Cochran called Huntley ear- ly (7:30 a.m.) at his home and inquired of Huntley about his availability for his Saturday shift. Huntley told Cochran that he did not then know if he would be available, that he had a toothache and was going to try to see a dentist. and asked Cochran if he could let Cochran know later as to his availability. Cochran told Huntley he needed to know then. Thus pressed, Huntley again told Cochran he did not know and then asked Cochran if there was any way Cochran could work around him. Cochran told Huntley he would rather do that than set Huntley up for a run and have Huntley never show up. It was thus mutually agreed early Friday morning between Huntley and Cochran that Hunt- ley would not be assigned a run for early Saturday morn- ing28 rather than await later determination of Huntley's availability. Huntley testified that every time he takes a cold, it affects his sinuses and his teeth. Huntley frankly confirmed that he had not mentioned to Cochran that he had a cold. Neither Cochran nor Lefler testified. I credit Huntley as to the above conversations with Lefler and Cochran both as to timing and as to their content. Supervisor of Transportation Price testified that he had been informed by night dispatcher Lefler at or about 5:30- 6 a.m. that Huntley had earlier called in to report that he had a cold and would not be at work that day. Price also recalled that Cochran informed him about 9:30 10 a.m. that same morning that upon calling Huntley to see if he was going to be able to report for work the next day, Hunt- ley had told Cochran he would not be in, that he had a toothache and was going to the doctor. According to Price, Cochran had not told him that Cochran himself had indi- cated to Huntley that if Huntley thought he was (still) going to be sick, he did not have to come in, as he could schedule someone else.2 Price's recollection also was that he had no. known at this time that Huntley was going to serve on the Union's negotiation committee. Price's recollection in that respect is wholly unsupported by Mitchell. To the contrary, based on Mitchell's testimony that both he and Price were aware of Huntley's status from the distributed union flier, I find that both Mitchell and Price were aware at this time that Huntley was to serve on the Union's negotiation com- mittee. Furthermore, although Price did not testify as to having promptly reported this development on Huntley to Mitchell on Friday, it is clear from Mitchell's testimony that he did so. Thus, on cross-examination Mitchell ac- knowledged that it was on Friday afternoon that Price had informed him that Huntley had initially reported that he would not be in because he had a cold and felt sick and later had reported that his teeth were hurting very badly and that he was going to see a dentist. Mitchell testified that he knew even at that time that Price was going to ask Hunt- ley for a doctor's excuse, significantly explaining that it was because "we" felt Huntley was abusing the sick leave pol- 21 Under Respondent's absence rules, drivers were only required to call in 15 minutes before departure time if they were going to be late or report a (second) day of absence. n On this point, I note in passing that Director of Distnbution Bill Mitch- ell was not responsive when questioned as to his awareness of Cochran's willingness to schedule around Huntley. I find it either incredible or reveal- ing that Price and Mitchell would not have become aware of that circum- stance, icy. It would seem an opportune time to initially address Respondent's applicable sick leave and pay policy (written rules and practices) and its policy in regard to requiring doctors' excuses, the latter being alleged in the complaint to have been more strictly enforced after the election. President Hugh Ashcraft testified generally that the Company has had a sick leave policy since his association with the Company in 1963 and that there had been no change of which he was aware in the Company's right to ask for medical certificates or excuses in an enforcement of its sick leave policy. Although I find Ashcraft generally credible and his testimony as to general policy supported in the record, I find it not so supported as to written or prac- tice implementations of that policy in the warehouse. In- deed, Ashcraft himself generally conceded that he was not directly involved in the implementation of such policies, as were Mitchell and Bennett. However, it must be borne in mind that Bennett had only arrived in September. Ash- craft's lack of direct knowledge as to the implementation in the warehouse appears rather demonstrably in the record. Thus. Ashcraft at one point related it as being his under- standing that a certain form setting forth Respondent's sick leave policy had been distributed to employees and posted on the employee bulletin boards. (The form, entitled "Sick Leave Policy for Hourly Employees." with a date of March 10, 1975, contains the specific statement: "The Company reserves the right to request a doctor's certificate at an! time.") In the face of a significant number of employees from several departments having testified that they had never seen the above (policy bulletin) form, Respondent identified the aforementioned form as actually a policy bul- letin distributed to supervisors and contained in a supervi- sor's manual and conceded it had not been generally dis- tributed to employees or posted on employee bulletin boards. I find accordingly that the aforesaid policy had not been distributed or publicized to employees. ° Nonetheless. I am convinced and I credit Ashcraft that such policy ex- isted. Respondent during material times had a sick leave policy whereby it provided employees with 5 days of paid sick leave a year, with no deduction being made for a first or second day of absence due to illness; unused sick leave could be accumulated by an employee up to 25 full day's and thereafter, though at the rate of 10 half days per year. to a maximum of 25 additional half days. It was Respon- dent's policy that employees save their sick leave to enable them to continue to receive their paycheck when an unex- pected illness occurred. Respondent, I find plausibly so. also had a policy that its beneficial sick leave program should not be abused. I thus further credit Ashcraft that the company sick leave policy included a right to require a doctor's certificate. The issue nonetheless remains as to the parameters of application of that policy, including the writ- ten implementation of that requirement and of Respon- dent's established practices thereon. Moreover, I would ad- ditionally note Ashcraft's acknowledgments that the policy in the past was to ask the employee initially to bring in a doctor's excuse, not to discharge an employee: and his view was that the policy should be that if a man had excess M The record is wholly supportive in that many employees were not even fulN versant with the policy, e.g., not all knew of the provisions for accumu- lation of sick leave. Their testimony as to Respondent's practice with regard to requiring a doctor's certificate is discussed in/fra 14S DECISIONS OF NATIONAL LABOR RELATIONS BOARD absences or tardiness, the employee should be warned to look out and warned that if it kept up, the Company was going to have to start asking the employee for doctor's cer- tificates. The criterion would thus be the nature of the em- ployee's prior attendance record. Ashcraft also testified, and I credit him in this also, that there was no requirement that the employee be previously warned and that the super- visor had the discretion when an employee called in sick to then request the employee to bring in a doctor's certificate. However, Ashcraft testified further that if a supervisor thought there was some question about an employee's ab- sence, the supervisor should notify the employee to bring in a doctor's certificate and that in circumstances of a bad attendance record, he would expect the supervisor to tell the employee to get a doctor's certificate. Finally, Ashcraft ac- knowledged (what appears to me to be no more than a rule of reason) that if an employee had never been to a doctor, the employee could not get one. I have earlier noted that Mitchell related that on Friday afternoon both Mitchell and Price had felt there was a question about Huntley's abusing the sick leave policy. Wholly apart from consider- ation of actual awareness of Huntley's initial reluctance to prematurely release his scheduled worktime and Cochran's part in scheduling around him, I presently observe that nei- ther Mitchell nor Price at that time directed that a request be made to Huntley for a doctor's certificate. Rather, Re- spondent's agents elected to wait until Huntley called in (Monday) (thus knowingly), at a time when Huntley was ready for work. On its face such action suggests the ap- proach was one of employee entrapment rather than polic- ing of sick leave policy. This is not the case where the em- ployee had failed to call in. Nor did any of Respondent's agents ever ask Huntley for his explanation of the pur- ported variance in his reported illness. Huntley, who was not regularly scheduled to work Sun- day or Monday, was thus off September 26 and 27, respec- tively. By Monday morning Huntley felt well enough to return to work. On Monday morning (September 27), at I a.m., Huntley called to inquire what time he was to be scheduled out Tuesday (early) morning, September 28. At this time Huntley spoke to Dan Price, supervisor of trans- portation. Price instructed Huntley he was to report at 4:15 a.m., adding however, that Huntley was to bring a doctor's excuse. Huntley replied, "Okay." It was only after hanging up, however, Huntley realized the significance of what he had been asked to do. (Huntley quickly realized that since he had no actually gone to the dentist and was already well enough to report for work, he would be unable to get a doctor's certificate.) Huntley promptly attempted to call back Price. However, Cochran, whom he then reached, in- formed Huntley that Price was already at a meeting. Hunt- ley asked Cochran if there was any way he could reach Price. Cochran told Huntley that Price would be at the meeting until 5:30 or 6 p.m. and that he probably would not be able to get in touch with Price. As Cochran did not testify, I credit Huntley that he made this immediate effort to reach Price to explain that he had not been to a doctor and would be unable to produce a doctor's certificate. Un- able to reach Price, Huntley reported at 4 a.m., September 28 (Tuesday), for his scheduled 4:15 a.m., shift. Night dis- patcher Lefler asked if he had brought a doctor's excuse, informing Huntley that word had been left with Lefler not to let Huntley punch in if Huntley did not have a doctor's excuse. Since Huntley did not have a doctor's excuse, Lefler told Huntley that he did not know what the problem was, but that Huntley would have to call back after 7 a.m. that day (Tuesday, September 28) and talk to Price. Again, as Lefler did not testify, I credit Huntley as to the above par- ticulars. At 7:30 a.m. on September 28, Huntley called Price as directed. Huntley then explained to Price that he did not have a doctor's excuse because he had not gone to the doc- tor, but had instead stayed at home and used some medi- cine left over from a prior illness. According to Huntley, Price then said all he wanted was a doctor's certificate for September 24 and 25. Huntley then asked (was it to be required) even though he had not been to the doctor. Price repeated that all he wanted was a doctor's excuse for Sep- tember 24 and 25. Huntley then asked when they had started requiring doctors' excuses for being off I day,' add- ing that both of them knew other employees had been out more days without a doctor's excuse being required of them. Price replied the Company had a right to ask any- body it wanted for a doctor's excuse at any time. Huntley asked Price if Price was saying he did not have a job until he produced a doctor's excuse. Price replied he was not saying that and told Huntley that he should stay in touch. Huntley told Price that he needed to know. Price replied that he had to hear from Mitchell. Price essentially confirms the above conversation, except he relates that Huntley did not tell him at that time he had not been to a doctor and that he had learned that only later from Mitchell after Huntley called Mitchell. (On cross-examination, Price ac- knowledged Huntley had told him that he did not have an excuse.) According to Price, although he had not viewed Huntley's absentee record prior to requesting a doctor's cer- tificate, he had recalled that Huntley had a problem getting to work on time and was out quite a bit, and he relates that that had a bearing on his requesting a doctor's certificate from Huntley. I do note at this juncture that Price testified on the one hand that he had nothing to do with actually terminating Huntley, that he did not make any recommen- dation, and, on the other, that he told Huntley he had to talk it over with Mitchell and did so. On Tuesday, Septem- ber 28, Price reported to Mitchell that Huntley had told Price he would bring a doctor's statement and that Huntley did not have it, and Lefler sent him home with instruction to see Price; Price also reported that Huntley had called Price and wanted to know if he had been terminated, and Price had informed Huntley he would have to talk it over with Mitchell.3 According to Huntley, not having heard from the Com- 31 Although some of Huntley's testimony makes reference on Huntley's part to being off I day (no doubt a testimonial vestige of his recollection of his arrangement with Cochran), he was actually off 2 scheduled workdays. Similarly, I reject as without foundation Price's testimony that he felt Hunt- ley was trying to rip him off for 4 days' sick leave. noting that with cross- examination on the point, Price readily conceded Huntley was off but for 2 days. 32 I do not credit Mitchell's version (in/ra), of receiving a report from Pnce that Huntley had asserted he would not get one. I do not view such as being plausible under all the circumstances. I have rather credited Huntley's ver- sion. (I would note further that even Price's record (incident report) does not record such a statement as made by Huntley, nor did he testify to that effect.) 146 HARRIS-TEETER SUPER MARKETS. INC. pany. Huntley called on Mitchell on September 29 (Wednesday) at 9 a.m. and asked Mitchell if he had as yet met with Price. Mitchell told Huntley he had not. Huntley asked what his job status was, and Mitchell related that Huntley had not brought in a doctor's excuse. According to Huntley, Mitchell at that time only advised him that they would stay in touch with him. Huntley replied he needed to know if he had a job or not; if he had a job he would like to go to work, because he had a family to support and bills to pay just like everybody else; and if he did not have a job, he would like to know if he was terminated. Mitchell confirms receiving the call from Huntley but recalls it as occurring on Tuesday, September 28. Mitchell also asserts he told Huntley he had just finished having the meeting with Price. Mitchell's version is that Huntley at that time told Mitchell he had not been to a doctor, did not have a doctor's certifi- cate, and was not going to get one and that Huntley said that he wanted to be terminated, that he could not sit around the house, and that he had to go out and find a job. There is variance in Mitchell's testimony in that at one point he recalls he had then told Huntley he would take care of it shortly, and on another occasion he relates he told Huntley he would terminate him. (Huntley denies he ever asked to be terminated.) According to Mitchell. he subse- quently discussed the matter with Bennett (and counsel) but not Ashcraft, that they then reached a decision to terminate Huntley, and that he had informed Price not to schedule Huntley further. Mitchell related that the decision was made that morning to terminate Huntley because he did not produce a doctor's certificate and for his unexcused ab- sence. Mitchell asserts that rules and procedures applicable in this area have existed since 1974, that copies were distrib- uted to employees (and signed), and that a copy was posted. (These rules also referred to Respondent's right to request a doctor's certificate at any time.) Huntley testified he never saw the printed rules. The rules have, in their printed form, a provision for employee signature acknowledgment. None signed by Huntley (or, for that matter. by any other em- ployee) were produced covering any material period, let alone prior to the election. Numerous employees supported Huntley that the pertinent rules had not been distributed or posted or that the doctor's certificate requirement had not applied to them prior to the election. I credit Huntley and employees generally that they were unaware of these printed rules and find further that they had never been re- quired to produce doctors' certificates, although many had been absent more than Huntley. Respondent answers that the requirement was not always exercised. I otherwise note that Huntley had fully conformed with sick leave absence policy in regard to timely notifying the Company of his absence. The pertinent rules provided: (15) Any employee desiring to be off for personal rea- sons for one-half (1/2) or more days most notify his supervisor no later than twenty four (24) hours prior to the time he wishes off. It will then be the judgment [sic] of his supervisor as to employee being off with permis- sion. Any employee off without permission will be sub- ject to dismissal. (The above policy does not apply to sickness, but employee must call in 15 minutes prior to reporting time if sick and talk directly to his supervisor or foreman.) The company reserves the right to request a doctor's certificate at any time. (16) Any employee off work for more than one day must make arrangements before leaving or must call their supervisor daily so as to keep him posted as to when he (employee) expects to return to work. Anone violating this procedure will forfeit an, sick p due. I note that the rules provide for no standards or specifica- tions for excuse application. At best, it is thus discretionary and involves a consideration of Respondent's practices (dis- cussed inJfra). Mitchell's recollection of his conversation with Huntle 3 contained other inconsistencies. Thus, on direct examina- tion, he acknowledged that Huntley had told him in their initial conversation that he had not been to a doctor, but on cross-examination Mitchell asserted that he had not been told by Huntley or Price that Huntley had not gone to a doctor. I am convinced, and I find, that at the time the decision was made, not only Mitchell but also Price, were aware that Huntley had not gone to the dentist or to a doctor. Mitchell acknowledged that Huntley would not he able to furnish a dentist certificate for those days if he had not been to a dentist, then adding Huntley should hae never said he was going to do so. As noted, Mitchell at one point related he told Huntley that he was going to termi- nate him. Price offered testimony in corroboration that he was present for Mitchell's conversation with Huntlex and that he heard Mitchell ask Huntle,. "Do ou want me to terminate you?" and heard Mitchell add that he svould do so immediately. Unfortunately, such was wholly inconsis- tent with Mitchell's other relations that Huntle's alleged request for termination was not a factor. indeed, that the decision was not made at that time. but rather later and only after a consultation with Bennett (and counsel): such precautions assertedly were undertaken by Mitchell, ironi- cally, because of his awareness of Huntley's strong union activities and his membership on the negotiating committee and because of Mitchell's awareness that they might be fac- ing unfair labor practice charges over the discharge of Huntley. Under the total circumstances, I credit Huntley's version that on the occasion of calling Mitchell on the morning of September 29, he was informed b Mitchell only that he had not as yet spoken to Price, that Huntley by then had not been allowed to work on two shifts, and that Huntley had pressed upon Mitchell a need to know if he had a job or not in the manner he reports. I note that Ben- nett's references to a meeting with Mitchell and Price on the morning of September 29 further convinced me of the accuracy of Huntley's recollection as to the date of his con- versation with Mitchell being the morning of September 29. especially in view of Price's documentary recording that Huntley had called Mitchell on September 29. I so find. The Events of the First Negotiation Meeting on September 29 Huntley testified that when he arrived for the negotiation meeting on September 29, he found the union committee and the representatives of the Union already there. There- after, Ashcraft entered and stated that he saw that Mr. Huntley was there and that Huntley had called that morn- 147 DEC(ISIONS OF NATIONAl LABOR RELATIONS BOARD ing and asked that he be terminated, and they had ac- cepted." Huntley told Ashcraft that it did not happen that way, that he had only called Mr. Mitchell to find out what his job status was, and that he only wanted to know if he had a job or not. Ashcraft stated that that was his under- standing and that he would have to check it out with Mitchell, and he then asked for a 4- or 5-minute recess fior that purpose. 4 Ashcraft subsequently returned and stated, "Mr. Huntley, you are terminated." Coutlakis then in- quired of Ashcraft what the reason was for firing Huntley. Ashcraft replied that they were firing him for excessive ab- senteeism and past job performance. '5 Coutlakis immedi- ately questioned Huntley's discharge for the above reasons, asserting his understanding that Huntley had a good at- tendance record and that his job performance had not been all that bad. Coutlakis stated that the Union wanted the Employer to take another look at this, because they wanted the Employer to understand the impact of what they were doing. The Union also brought up the names of several other individuals who had been discharged or had work assignments changed, with the request that these matters also be looked into. Ashcraft said that it would take some time, and they would have to look into the records. It was agreed that a special meeting on October 13 would be held to discuss these matters. Huntley testified with corrobora- tion and without contradiction that there was no mention in this meeting of his failure to produce a doctor's certificate 13 The following findings of fact are based upon essentially mutually con- sistent and corroborative testimony of employee Huntley, Union Represen- tatives Emanuel Coutlakis (secretary-treasurer of Local 525 and an interna- tional representative for the Amalgamated Meat Cutters) and Tony I)ean Muncus (an organizer for Local 525), and employee members of the Union's negotiating committee. In many respects, the testimony of Ashcraft and Ben- nett was not inconsistent therewith. In those instances where there is a vari- ance of substance, such is noted, and the matter is resolved. 3 Ashcraft testified that he had been informed by those in charge of Hunt- ley that he had been terminated, but at that time he had no details. He had been informed that Huntley had called in and had wanted to be terminated. Although Ashcraft did not think he had stated that Huntley had requested to be terminated, he did not deny that he made that statement. Bennett recalls that Ashcraft had made the statement in substance. When called as a witness by Respondent, Ashcraft denied that he left the negotiation meeting to check with Mitchell, recalling then that he had only left once to check on certain wage increases that the Employer was desirous of putting into effect. Bennett has the Union calling the caucus. However, Mitchell testified that at that time he was called to Ashcraft's office, where Ashcraft directed that he re- port to him the things leading up to Huntley's discharge. Significantly, Mitchell learned from Ashcraft's secretary at that time that Huntley had already arrived and was in the negotiation meeting. I am thus wholly con- vinced that Ashcrafl misrecollects and that he did, in fact, leave the negotia- tion session for the purpose of checking Huntley's termination out with Mr. Mitchell, as Huntley and the others relate. 15 When called by Respondent, Ashcraft testified that he did not say that in this meeting. However, when initially called as a witness by the General Counsel at the outset of the hearing, Ashcraft's testimony had been that he did not deny he had said it but did not recall saying the reason for the discharge of Huntley was excessive absenteeism and past job performance. Bennett's testimony was that there was no reference to a reason made at that meeting. However, on cross-examination Bennett conceded that Coutlakis had made it clear from the very beginning that the Union was interested in Huntley's case. I note that on October 4, 1976, Huntley obtained from the personnel office of the Employer the separation notice required for the Em- ployment Security Commission of North Carolina. Therein it is provided that a detailed reason for separation be given. Shown on the form is "unac- ceptable attendance record." Under all of the above circumstances, includ- ing the credible testimony of Huntley, corroborated as it is by other wit- nesses. I credit Huntley that he was first informed in this meeting that he was being terminated for excessive absenteeism and past job performance. being the reason for his discharge.', Muncus testified that the discharge of Huntley was left open, with Muncus to call the Company about it. Pursuant thereto. Muncus did call Ashcraft, who advised him that he had not had a chance to discuss it further with Bennett and with Mitchell and that he would get back in touch with him. (Muncus testified (without contradiction) that he later received a call from Ashcraft's secretary advising him that Ashcraft was tied up and had had no chance to have the meeting. Muncus left word that Ashcraft should call him. Coutlakis testified that on October 4 he received a telephone call from Ashcraft. ('outlakis testified without contradiction that Ashcraft told him on that occasion that they had reviewed the record, and their suspicion was strengthened that the discharge of Huntley was because he had a bad absentee record. Coutla- kis testified that there was no mention even at this time of a doctor's excuse or failure to produce a doctor's excuse as being a reason. I credit C'outlakis, having noted previously that the collateral termination slip of the same date, pre- pared for the state employment office, listed an unaccept- able attendance record as the sole reason for separation. On October 7 Coutlakis telephoned Ashcraft to receive assur- ances that the Company would have the records of Huntley available for the meeting of October 13, and Coutlakis con- firmed that conversation by letter dated October 8. At that time Coutlakis had not received a certain letter, dated Octo- ber 6, from Ashcraft. The latter letter provided: This will confirm our conversation of' October 4th regarding the reasons for Mr. Bill Huntley's discharge. Mr. Huntley had a record of tardiness and failing to report for work. Hle had been instructed on a recent day's absence to bring a doctor's certificate which he first promised to do. Sometime later he refused to bring one in and said that he was not going to bring one in. He reportedly said, "Why don't you just go ahead and terminate me so that I can get another job?" He was discharged for his unacceptable attendance record and his attitude about it. The meeting to discuss discharges was held on October 13, as scheduled. Ashcraft read off the attendance and ab- sentee record of Huntley, and Coutlakis copied it. In perti- nent part, for 1976 the record reflected four incidents of tardiness during a 6-week period in March and April, with Huntley receiving a consultation report on April 28 from Price recording the employee being advised that he must report as scheduled." Huntley's file also records but one '6 1 have noted that a form was prepared by Mitchell which lists as reason for separation "insubordination-refusal to obey instructions." Significantly, the form was to be submitted as soon as termination was known, and it bears the date September 29, 1976. The execution of the form on September 29 thus lends support to the earlier finding that a decision on Huntley was made on that date. 37 The consultation report is a procedure utilized by the Employer to bring to an employee's attention that his work habits in some respect have become deficient. The specific and acknowledged tardinesses are March 11 (15 min- utes). April 9 (20 minutes), April 21 (8 rmnutes), and April 23 (35 minutes). Huntley's record in years past reflected that in 1972 he was 3-3/4 hours late and had received a written reprimand, in 1973 was 2 hours late and had received a written repnmand on April 17, and on May 4 received a second reprimand with a notation that if a third incident occurred by July 3, he would receive a 5-day suspension. In 1974 he received a written reprimand for I hour and 10 minutes with notice that if he was to have a second incident by April 3, he would receive I days suspension. There were other 148 HARRIS-TEETER SUPER MARKETS. INC. incident of absence for illness, on May 4. The file contained two other incidents of significance. Thus there was a consul- tation report with a date of April 3. 1976. for tardiness and not reporting for work as scheduled and absenteeism from work. (I note in passing that as of that date there had been no incident of absenteeism by Huntley reported in his file since October of 1975 and no recent absence at that time.) Finally, apart from matters relating to the instant absences and discharge, there was one other incident report reflecting a tardiness of 15 minutes on August 19. After Coutlakis had recorded the respective incidents, he stated that Huntley's record was not a bad record at all. Ashcraft replied that they thought it was bad. Huntley stated that their record was not right anyway, as he had had only one written warning on April 28. and that he was not tardy or absent on August 19, as he had not worked that day. Coutlakis then requested the records. Ashcraft replied that they were not there to go into a kangaroo court. Cout- lakis reiterated that Huntley's record was not as had as those of other employees. At that point Ashcraft inquired: "What about the doctor's excuse? The man said he would bring one and did not." Coutlakis pointed out that nor- mally Respondent asked for a doctor's excuse when a man had a bad record and wanted to point it out to him and get it corrected. Ashcraft replied that Huntley was a winner of their truck rodeo, a top driver, and they did not want to discharge a man like that. Coutlakis testified without con- tradiction that the Union was not allowed to review the records at that time. However, the April 3 and August 19 incident records were introduced in the instant record. Huntley testified concerning the April 3, 1976, written rep- rimand (employee consultation), that not only had he never seen it before but also, as to his purported signature thereon, he was absolutely positive that it was not his signa- ture. It is especially noteworthy, particularly in the face of such claim, that Price, also a purported signer, which would thus indicate Price had conducted the interview, did not testify at all to this document and that Mitchell. to whom such documents were regularly forwarded, had no recollec- tion as to it. Under the circumstances, I credit Huntley. I further reject the aforesaid document as being totally unre- liable evidence, and I shall afford it no probative value in support of the incident depicted by it. I further am con- strained under these circumstances to review the more closely other documentary evidence as to Huntley's termi- nation and find such in many respects also questionable.3 8 reflections of two incidents of being a few minutes late and one incident of being 10 hours late due to car breakdown. without apparent reprimand. There was another incident reflected of an absence without calling on May 27. More recently and thus more pointedly, in 1975 there were about four incidents reflected, with no repnmands or consultation reports. Indeed, in 1975 there were only two incidents of tardiness, on October 10 (20 minutesl and November 6 (30 minutes). The other two incidents related to absences due to sickness, with the first on January 24 reflecting timely report and the second on October 23 reflecting that the call reporting illness was 10 minutes after the scheduled report time. Huntley's 1975 record clearlb is not support- ive of excessive tardiness or absenteeism. n I note that the written warning of April 3, 1976, for absenteeism is the only item listed out of chronology on the sheet that was prepared of Hunt- ley's record of attendance and absenteeism provided to president Ashcraft for the October 13 meeting I find that coincidence and Bennett's explana- tion therefor as being simply because of an untrained secretar' as coming close to the point of straining credulity: as does its disappearance from Huntley's personnel file at time of investigation of this matter at the regional level as is also evidenced in this record occurred. Huntley also testified that in regard to the incident report of the tardiness of August 19, 1976, he had also never seen it before. More significantly, Huntley testified that he did not even work that da 5. Huntley's daily driver's log was then introduced into evidence, and it establishes the fact per ad- venture that he did not work that day. Huntley offered ex- planatory testimony that, in fact, on that day he had swapped his regular schedule with another driver to accom- modate the latter driver. an incident of which it appears Price was not aware. Even more pointedly, the record clearly reflects that this particular incident during investiga- tion at the regional level reflected an incident with onl) the date of "August 19." with the notation of the ear "76" not entered. In contrast, the exhibit introduced into evi- dence reflects the year "76." It was subsequently estab- lished from Huntley's timecard that the particular tardiness in all probability was tbr August 19. 1975. Unexplained satisfactorils in my view, was the entrO of the ear 1976 and, more pointedly, the utilization of that tardiness at an obvious time when the year was not entered on the card, itself suggesting that such an investigation of Huntley's cir- cumstances as was being accomplished by the Employer was not one reasonably to be viewed as directed at deter- mining actual performance but rather at bolstering a prior position taken. The significance of these two documents cannot he overemphasized. For if neither event occurred, the resulting record of Huntley simply pales when consid- ered with the records of many other employees, including several drivers who were retained with many more attend- ance and absentee incident reports, which the Employer obviously found acceptable theretofore. Nor is this some- thing that Respondent may reasonably be concluded to have overlooked, for even Ashcraft recalls at least a general protestation by Huntley concerning some of the reports being wrong in the October 13 meeting. Bennett also re- called that Huntley seemed to disagree with the documents. I have also considered Bennett's assertion, in explanation of Huntley's seeming disagreement and Bennett's nonre- cording of the question, that such loses sight of the fact that absenteeism and tardiness were not the issues but rather that the man had been asked to furnish the doctor's certifi- cate, had agreed to do so, and had then refused to do so. However, Bennett acknowledged that he was not at that time familiar with Respondent's sick leave policy imple- mentations in the warehouse and also that he was not aware that Huntley had not gone to a doctor prior to the hearing. Finally. I have considered Bennett's assertion that others a few weeks earlier had been terminated for being asked to furnish documentation and having also refused to do so and that Respondent's position was that Huntley should not be afforded privileged treatment. However, I find on the record before me that the instances relied upon (Mills, Reece. and Cornelius) are totally dissimilar on their facts. Respondent provides its employees certain paid holidays, including Labor Day. However, Respondent's retail stores are open every day. Thus, it is required that certain employ- ees be scheduled to work on holidays, including Labor Day. To avoid incidents which have occurred in the past, where a substantially insufficient work force reports for work on a holiday, it was Mitchell's practice prior to the (work) holi- day to hold supervisory meetings and instruct the supervi- 149 I)DECISIONS OFI NATIONAL LABOR RELATIONS BOARD sors to remind the employees that they were expected to work their schedules and that if they were not present, they would have to get proof (provide reason). Mitchell further testified without contradiction that 2 weeks before a holi- day he posts a notice to all employees with respect to the upcoming holiday and their requirements as a regular scheduled workday. Thus, as to employee Mills, Watson testified that Mills, scheduled to work Labor Day, did not show up on Labor Day and that when he reported on Tues- day, Watson inquired what the problem was. Mills asserted that he had gone to the beach and had mechanical break- down problems. Watson inquired about a repair bill and directed Mills to provide it to him the following day. Super- visor Watson related that the Reece situation was essen- tially comparable, with Reece not working on the scheduled Labor Day. Reece was allowed to work on the Tuesday following Labor Day, but was directed to produce a certain repair bill that he said he had. However, when Reece re- ported the next day, he told Supervisor Watson that the repair bill had gotten misplaced. Watson then directed that he needed to see a duplicate before Reece could report to work. On the following day Reece did not show for work but did come in at lunch to pick up his check. At that time Watson informed Reece that he would have to see the re- pair bill by Friday, or he did not have any choice but to terminate him. Watson did not see Reece thereafter, and. accordingly, he did terminate him on Friday. Watson re- ported both incidents to Mitchell. Grocery Supervisor Doug Jones testified that Cornelius was scheduled also to work on the Labor Day weekend and that rather than call his foreman (as required), Cornelius had simply sent word by another employee that he would not be in, that he was sick. When Cornelius reported for work the next day, Jones refused to allow Cornelius to go to work and instructed him to bring in a doctor's certificate. On the following day Cornelius came in and told Jones that he did not have a doctor's certificate and that he had no intentions of getting one. Jones brought Cornelius to Mitchell, and Cornelius repeated to Mitchell what he had told Jones.', There are obvious differences in Huntley's situation from the situation of employees who are absent on a holiday schedule when scheduled for work, particularly after being prewarned that proof will be required of them if they are absent, and also of an employee who similarly fails to re- port as scheduled on a holiday weekend and has failed to call in directly to report his illness and then subsequently advises his superiors that he has no intentions of getting one. Huntley had not been prewarned, and he was not ab- sent on a holiday. Huntley had called in timely and directly to report his illness. Finally, I have credited Huntley that he never told his superiors insubordinately that he had no in- tentions of getting a doctor's certificate, but rather had in- formed them prior to termination that he had not been to a doctor. The more is this difference apparent when it is clear that the employee involved is a top driver of the Employer and had not even used accumulated sick leave from prior years, let alone used sick leave in the instant year in a man- ner reasonably suggestive of an abuse. There is not even a 9 Cornelius did not testify. I thus credit Supervisor Jones that employee Cornelius had told Jones and later Mitchell that not only did he not have a doctor's certificate, but also he had no intentions of getting one. shred of' evidence that Respondent, by any of its supervi- sors, ever inquired of Huntley for his explanation, which would appear to me to be the most fundamental inquiry if they were genuinely concerned with only the variance in his reports to the dispatcher. Thus, Huntley was never afforded the opportunity to explain that taking a cold always has affected his sinuses and teeth, a matter which he well may have been able to establish independently to Respondent's complete satisfaction, had he been asked. However, I am wholly convinced from the state of this record, from the testimony of Huntly which is substantially corroborated and consistent with the testimony of many other credible witnesses, and in contrast with the testimony of Respon- dent's supervisors in this matter, which not only contain inconsistency but also actually provide indicated documen- tary discrepancies of an unacceptable and of a totally unre- liable nature, that in fact Respondent in its treatment as to Huntley's absence was not interested in ascertaining all the facts relating to Huntley's situation for a determination of whether this valuable employee should be retained but rather that Respondent's supervisors and agents, Price and/ or Mitchell, opportunistically seized upon Huntley's cir- cumstance and discharged him with real motivation of dis- charging a recently revealed leading union adherent who was to take part in the negotiations shortly to commence. If the seriousness of such violation gives cause for any pause, the background of the unfair labor practices earlier found in the present proceeding (as well as official notice of the prior proceeding) render this evidence weighted conclusion congruous and all the more factually convincing. I thus conclude and find that the reason ultimately advanced for Huntley's discharge, failure to provide a doctor's certificate, was itself pretextual. as were all the other vacillating rea- sons advanced, and that Respondent rather did discharge its top driver. William Huntley, on September 29, because of his union activities, in violation of Section 8(a)(3) and (1) of the Act.4 I have been also persuaded by the weight of the credible evidence and find that the Respondent utilized its doctor certificate rule as a pretext for the discharge of William Huntley. The record supports the conclusion that this rule was discriminatorily applied to Huntley as compared with many other employees, including drivers, whose attendance records were far poorer than Huntley's. The complaint has also alleged by amendment made at the hearing that after August 5 Respondent more strictly enforced its rule requiring employees to produce doctors' certificates because its employees had elected the Union as their bargaining representative. The record reveals that a significant number of employees testified that to their knowledge, the rule was never enforced before the election, but after the election supervisors had begun regularly re- questing a note from the doctor upon absences. Employees from various departments (for example, drug and grocery departments, meat and meat receiving, salad kitchen and bakery), many of whom had themselves had occasions for i Nor do overlook Mitchell's revealing testimony on cross-examination that the reason for Huntley being terminated was what was determined through Mr. Bennett through counsel, but not what he had reported to Ash- craft in their conversation on September 29. Bennett testified he was new at the time and a listener, though he had taken Ashcraft aside to warn him of the impact of discharging a member of the Union's negotiating committee. 150 HARRIS-TEETER SUPER MARKETS. INC. significant numbers of absences. testified variously that prior to the election they were not aware of any employees being required to bring certificates in, whereas thereafter they were. Respondent does not contest the above-men- tioned requirements of doctors' certificates postelection. It is Respondent's position that doctors' certificates had been required in the past, though not in all circumstances or from all employees. Such a position places no little burden upon the General Counsel in prevailing on this allegation, particularly where I am convinced that such a rule did exist and that it had in fact been used, e.g., with appropriate warnings to insure employees' attendance as scheduled on holidays and over holiday periods. Employee Doug Dover. whose testimony I have found wholly credible in a number of other instances, testified that Nance had instructed him after the election that if any of the employees working un- der him were off for 2 or more days, Dover was to make sure they had doctors' excuses before they clocked in. It will be recalled that Nance did not testify. Dover also testified that, being a leadman of some 8 months prior thereto, he was not aware of any employee ever being asked to bring in a doctor's certificate for an absence. I credit Dover. Respondent did offer the testimony of Bennett that he had made a random selection of employees' files. which contained doctors' certificates which reflected that doctors' certificates were received on various dates before and after the election. Thus, Respondent offered a compilation cover- ing some 33 employees supervised by various supervisors. Specifically, the files of four such employees employed un- der the supervision of Price reflected doctors' certificates received prior to August 5, 1976. I note in passing General Counsel's contention that even the weighted proportion of doctors' certificates reflected in these random file selections occurring after August 5, 1976, is supportive of and war- rants the conclusion that doctors' certificates were required with much greater frequency after the election than before and thus evidence an altered implementation of the rule. There is some support and merit to General Counsel's con- tention. Thus, I note there are 26 such incidents preelection and 46 such incidents postelection. However, I do not re- gard the number alone dispositive of the issue, since the 26 preelection incidents cannot be regarded as insubstantial if they reflect incidents in which doctors' certificates were ac- tually required. However, significantly, essentially no proof was offered from the respective files that reflected that a doctor's certificate was required versus being voluntarily produced. Strangely, Respondent then produced the testi- mony of only one of the listed supervisors to support the contention that the listed doctors' certificates were pro- duced as results of supervisors' requirements. Price initially acknowledged only one individual as having produced a doctor's certificate for him voluntarily (J. P. Knuckles). There were four other individuals whose files reflect pre- election doctors' certificates (Bobby Glenn, Terry Hender- son, John A. Cash, and James F. Horn). Price testified gen- erally that with regard to the I employees listed under his supervision (with the exception of Knuckles), if a file re- flected a doctor's certificate, it was one that he had re- quired. However, after an extensive cross-examination as to individuals whose files reflected doctors' certificates present prior to the election, Price acknowledged that he had no independent recollection of the details of those incidents. (I note in passing that each of the abo\ e individuals also had more incidents of tardiness and absence tIhin did lluntle in comparable periods.) Even more pointedl,. one em- plovee. Hlorn, was present and available and testified that no supervisor had required him to bring in the doctor's certificate contained in his file. While the other three em- ployees did not testilf, the record nonetheless does reflect various circumstances further substantiallly weakening Price's assertions. 4 Equally strangel, Supervisor Watson offered no testimony in support of the exhibit and his prac- tice, though some 14 of the instances preelection related to employees (100) under his supervision. In contrast. Michael Frick (testifying as to two such incidents) testified that his doctor's excuses were given to the Compan\ oluntarily, as did employee McMurray. Similarl., Supervisor Jonas did not testify at all, while employee Beatt testified that her doctor's certificates had been presented voluntaril (t\wo in- cidents). Bennett also testified that the rules were posted on all of the bulletin boards and that when new people start they are given a cops of the rules. However, it must be recalled that Bennett did not come on board until September 20. 1976. Even the rule itself provides onl that the Employer may require a doctor's certificate. Bennett's testimony as to the implementation of the rule was that the doctor's certificate could be required by a supervisor when an employee had less than a good absenteeism tardy record, when it was suspected that the individual was not giving an accurate reason for being absent. or when it was beneficial to the employee and the Company to continue to work. Howeer Bennett acknowledged that his understanding of the (prac- tice) implementation was not something that he posessed when he first started, but rather something which he arrived at over a period of time. However, even Bennett was totally unconvincing with regard to the application of the rule to an individual after the fact when the individual had not been to a doctor. Supervisor I)oug Jones testified only that it was common knowledge that a supervisor could ask for a doctor's excuse and was not definitive as to the implementa- tion. In final analysis, I am satisfied that the weight of the evidence from General Counsel's witnesses and the docu- ments of record continue to predominate and support the conclusion that although doctors' certificates had on occa- sion been required from time to time in the past, e.g. on work holidays, in the case of employees with bad attend- ance records, they were required after the election in far greater frequency than they were prior to the election. I am thus convinced and I now find, that the Employer. follow- ing the election and as part of a hostile reaction to the selection of the Union as their representative, began to re- quire of its employees a greater accounting on their ab- sences and that the same constitutes restraint on exercise of Section 7 rights and an independent iolation of Section 8(a)( I) of the Act. 4 Included would he: an instance of a recited doctor's certificate not being present in the file, with other documentary evidence indicating the individual had worked, though reporting late H(enderson), with another oi same rea- usnahbl relating to an industrial accident (Henderson). as was the case with the final emplosee (('ash) 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Alleged Unfair Labor Practice Strike 1. The prior proceeding as background 4 Before proceeding to a consideration of the evidence bearing upon the nature of the strike and related alleged violations of Section 8(a)(3), some additional reflection on the prior unfair labor practices as motivational background to the above is warranted. I have treated in considerable depth above the state of certain independent evidence of this proceeding, finding that such established that a significant number of specific acts and instances of conduct of Respondent's warehouse department supervisors and/or agents had occurred and constituted interference, restraint, and coercion of employ- ees engaged in protected activity. However, both General Counsel and the Charging Party in their initial briefs have essentially argued that the matters considered herein fairly are to be viewed as but a continuation of an overall and unabating deliberate strategy of Respondent to defeat and ultimately destroy the Union's organizational effort initi- ated at its warehouse. It is thus deemed wholly warranted at this juncture to reflect a proper awareness by me of the specific unfair labor practices which the Board has already (adopted) found to have occurred in the earlier proceeding brought before it and which unquestionably constitute still additional relevant background both to a determination of the true nature of the strike and, as well, to a proper evalu- ation of Respondent's true motivation in regard to certain additional 8(a)(3) allegations of the instant proceeding. I take notice of the following. Employee organizational activity initially began at Re- spondent's warehouse in December 1974 and continued there in 1975 and on into 1976. The new-adopted findings reveal that employee protected activity was unlawfully and substantially impeded during the above period and through April 1976 by certain conduct of Respondent heretofore determined to be in violation of Section 8(a)(l), (3), and (4) of the Act. More precisely, the Board has now affirmed earlier find- ings made in consolidated Cases 11 CA 6308 and I I-CA 65424' that during the material time of the employees' ini- tial organizational activity in 1975 through April 1976, spe- cifically: (a) that Respondent had promised and granted raises to employees to induce them to refrain from support- ing the Union or engaging in union activities, solicited em- ployees to inform on the union activities of other employees and to engage in surveillance of their union activities, and interrogated employees unlawfully about their union activi- ties, about the union activities of other employees, or about their participation in a Board proceeding, all in violation of Section 8(a)(l); (b) that Respondent advanced pretextual reasons for its discharges of truckdriver Jimmy Martin (an employee of 23 years' service) on October 7, 1975, and of forklift operators Jerome Little (an employee of 16 years' service) and James Wright (an employee of II years' ser- vice) on October 10 and 16, 1975, respectively, and that rather the above discharges (accomplished over but an 11- day period), viz, of Wright (general chairman of the em- 42 Harris-Teeter Super Markets, Inc., 231 NLRB 1058 (1977). al Harris-Teeter Super Markets, Inc., supra. ployees' organizing committee) and of Martin and Little (each cochairman of same), who were 3 of the (then 250) employees most actively involved in the Union's organiza- tional campaign, were in fact accomplished for discrimina- tory reasons and in violation of Section 8(a)(3) and (1) of the Act: and (c) that employee Earl Nixon, who had testi- fied in the earlier proceeding, on March 10, in support of certain such matters, was himself also discharged on April 15 (during adjournment) by Respondent for the dual reason of discouraging employees in their union activities and be- cause Nixon had given testimony earlier in that proceeding, in violation of Section 8(a)(3), (4), and (1) of the Act. While, on the one hand, a caveat is still in order that other alleged unfair labor practices herein still to be evalu- ated must receive convincing support from credible evi- dence of the instant record, on the other hand, it seems to me that it would be nothing short of naivete to assume that the above widespread and serious continued interferences which I have now found occurred and were committed by various warehouse department supervisors and firstline foremen. which are further observed to follow so closely on the heels of the earlier and substantial unfair labor practices as determined by Administrative Law Judge Jalette and adopted by the Board, were not accomplished without basic awareness of' the superiors of these warehouse supervisors and foremen. Indeed, it seems to me the more reasonably to be concluded under those circumstances that such are but mirror reflections of a deep-seated hostility toward the Union on the part of those superiors. I so conclude. 2. The nature of the strike which commenced on November 17 The General Counsel and the Charging Party contend that the strike which commenced on November 17 was an unfair labor practice strike from its inception and through- out its duration. Respondent would contend that the strike was essentially occasioned by the Union's displeasure over the progress of negotiations. Subsequent (material) negotia- tion meetings were held on October 27 and November I I, 16, and 18. The General Counsel presented credible evi- dence of employees who served on the negotiating commit- tee and of the union representatives conducting the Union's negotiations that the subject matter of the negotiations did include the (prior) discharges of its chairman and two cochairmen on the organizing committee (Wright, Little, and Martin) and of Nixon (who testified in the prior pro- ceeding) and, more recently, of Huntley (who served on the negotiating committee) as well as threats by the Company made against other employees. Although Ashcraft un- equivocally denied that there was any mention of the dis- charges in the meeting of November 6, Ashcraft frankly conceded that the discharges had come up inferentially in negotiations in regard to the parties' discussions on arbitra- tion. Bennett conceded that there were several references concerning Huntley during the negotiations, and I have previously adverted to Bennett's initial counseling of Ash- craft as to the impact of firing Huntley, who was a member of the negotiation committee. Wholly apart from the Company's position with regard to no mention of the particular discharges in the final nego- tiation session (prior to the strike), the evidence is over- 152 HARRIS-TEETER SUPER MARKETS, INC. whelming that the Company was on advance notice that the Union was contending that unjustified firings had oc- curred. Clearly, the Company was aware at this time that the Union had filed earlier charges contending such were unlawful and that a hearing thereon had been already held. The Company had received notice of unjustified firings from several sources. The evidence is overwhelming in this respect, and I see no useful purpose in reciting the full de- tails thereof; recitation of sources will suffice. This finding is further supported by a certain letter, dated October 25, from Coutlakis directly to Ashcraft: by the reports of the union representatives and negotiating committee to assem- bled employees on October 30, prior to a strike being au- thorized; by the discussions in negotiations with respect to the arbitration clause;" by the nature of certain letters (ini- tially drafted by Coutlakis) addressed from affiliated or friendly organizations (to the Union) to Ashcraft reciting references to unjustified firings and Respondent's antiunion campaign; by contemporaneous (union) literature; by the picket signs themselves, which variously related that the Company was unfair and had committed unfair labor prac- tices; and finally, totally convincing under all of these cir- cumstances, by (a) a certain press release on November 17. 1976, which contained specific references: The Union claims the Company is unfair to its workers and cites the firing of three Chairmen of its Organizing Committee during the organizational drive and the fir- ing of a member of the Negotiating Team after Con- tract Negotiations had begun as an example of the Company's contempt for modern industrial relations, and (b) a press release of November 20, 1976, in which the Union reported that the Company's offer to reinstate em- ployees Martin, Little, Wright, and Nixon had been made, but that there had been a failure to offer to reinstate others, including William Huntley, who was a member of the Union's negotiating team. 4 Thus, the weight of the evi- dence in this case is overwhelming, and I readily conclude and find that the strike which commenced on November 17. 1976, was from its very inception and throughout its dura- tion an unfair labor practice strike. General Drivers and Helpers Union, Local 662 (Rice Lake Creamery Co.) v. N.L.R.B., 302 F.2d 908, 911 (D.C. Cir. 1962), cert. denied 371 U.S. 827 (1962); and Northern Virginia Steel Corpora- tion v. N.L.R.B., 300 F.2d 168, 174-175 (4th Cir. 1962). It is enough that the Employer's unfair labor practices herein "The Company had proposed (after the Union had requested company counterproposals in the meeting of October 27) in the meeting of November II its arbitration proposal. The arbitration proposal of the Company pro- vided for the resident judge of North Carolina to control the selection of the arbitrator and alternatively offered to allow the Union the right to strike. Neither was acceptable to the Union. 45The record reveals that at the November 18 meeting held before the Federal mediator, Ashcraft delivered offers of reinstatement to the Union of the above four employees, having also sent a copy of same to the individuals. The Company had given the Union no indication throughout all the prior negotiations of willingness to do so. On November 19 each of the individuals sent a letter to Ashcraft accepting the offer of employment but advising: "[Wle understand there is an unfair labor practice strike against your Com- pany in progress now. It is against my conscience to cross a picket line. I will be happy to return to work as soon as dispute is settled." It has been astutely observed that a withdrawal of a causitive force in an unfair labor practice strike, "after the orchestrated momentum of the combined elements has been achieved, does not necessarily lessen that momentum." Head Division, A MF, Inc., 228 NLRB 1406, 1418 (1977). 1 find it did not do so here. and heretofore found are established as substantial factors in the strike. It makes no difference to the character of the strike that other reasons may have been present and also contributing causes. N.L.R.B. v. Stillev Plywood Co., Inc., 199 F.2d 319 (4th Cir. 1952), cert. denied 344 U.S. 933 (1953); Richardson Transfer & Storage Inc., 176 NLRB 504, 513 (1969); and The Lundv Packing Conmpany, 223 NLRB 139. 156-157 (1976). E. The Alleged Failure to Reinstate Strikers; Respondent's Defenses 1. The 10(b) defense Respondent contends that Section 10(b) of the Act effec- tivelv bars the Board's consideration of Respondent's al- leged failure to reinstate striking employees other than the three employees specifically named in the charge in Case 11 -CA 7122 as initially filed. Respondent presents no other authority in support of its position. For reasons explicated hereinafter, I conclude Respondent's 10(b) defense is with- out merit. Uncontestedly, the original charge in Case I -CA-7122, alleging violation of Section 8(a)(l) and (3) and encompass- ing Respondent's alleged failure to reinstate strikers Tom Caddell, Margie Kiser, and Pamela Ledford in February 1977, was timely filed on July 21, 1977.6 On December 13, 1977, the Charging Party filed an amended charge in Case 11-CA 7122, which continued to allege the violation of Section 8(a)(l) and (3) but added the names of the other unfair labor practice strikers. Complaint issued alleging that the above-named unfair labor practice strikers were not timely reinstated, and, on motion, the complaint was ordered consolidated for hearing in the instant proceeding, held on a consolidated complaint in Cases I 1 CA-6827 and II -CA-6964, which itself had timely alleged that the strike was an unfair labor practice strike. It has long been established that a complaint may prop- erly address violations of the same class as those set up in an initial timely charge. National Labor Relations Board v. Fant Milling Co., 360 U.S. 301, 307 (1959). Thus, in Fant Milling, the Supreme Court stated, at 307-309: A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. National Labor Relations Board v. . & M. Electric Co., 318 U.S. 9, 18. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the '* Respondent placed in evidence the August 22, 1977, dismissal letter of the Regional Director in which he initially dismissed the charge in Case I I- CA 7122. concluding there was insufficient evidence that "the Employer's failure to rehire" the three named employees was "for reasons violative of Section 8(aXl) and (3) of the Act." Upon dismissal, the Charging Party filed timely appeal with the General Counsel's office. Pending disposition of such appeal, the Regional Director elected to reconsider his prior determination, thereupon concluding that sufficient evidence had been presented of an un- fair labor practice commission in violation of Section (a)() and (3) as charged in that Respondent had failed to reinstate these employees as unfair labor practice strkers. With the above reconsideration by the Regional Di- rector and subsequent action thereon, the General Counsel's office consid- ered the Charging Party's appeal mooted 153 DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of' private rights. 'This would be alien to the basic pur- pose of' the Act. The Board was created not to adjudi- cate private controversies hut to advance the public interest in eliminating obstructions to interstate com- mercc. as this Court has recognized from the begin- ning. ationa/l Labhor Relations. Board v. Jones & Laughlin Steel Corp., 301 U.S. 1. Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investiga- tory power in order properly to discharge the duty of' protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of' a charge. For these reasons we adhere to the views ex- pressed in Vational Licorice Co. v. ational Labor Re- l(tions Board. What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left "carte blanche to expand the charge as they might please, or to ignore it altogether." 258 F.2d at 856. Here we hold only that the Board is not precluded from "dealing adequately with unfair labor practices which are re- lated to those alleged in the charge and which grow out of them while the proceeding is pending before the Board." Na'ional icorice Co. v. National Labor Rela- tions Board, 309 U.S. 350, at 369.... To be sure, the above-cited cases involved conduct which had occurred subsequent to the filing of' the charge. How- ever, it is also well established that conduct occurring within the 10(b) period, prior to the filing of the charge, is similarly covered ift' encompassed within a timely charged matter or of the same class of violation as that set up in the charge. N.L.R. RB. v. Gaivnor News Co. 197 F.2d 719 (2d Cir. 1952), affd. 347 UI.S. 17, 34 (1953): N.L.R.B. v. Southern Materialsv Co., Inc.. 447 F.2d 15. 17- 18 (4th Cir. 1971), and L.ubank Co., Marl Corporation. e al., 175 NLRB 213, 298 (1969). Moreover, where, as here, an amended charge is filed, although it be filed more than 6 months after the oc- currence of the alleged unfair labor practice, it will be con- sidered timely "if it relates to an unfair labor practice inher- ent in or connected with the original charge." Sunrise Manor Nursing Home. 199 NLRB 1120, 1121 (1972) and Gulf States Manujicturers, Inc., 230 NLRB 555 (1977). Contrary to Respondent's contentions, there can be no question that Respondent's refusal to reinstate other unfair labor practice strikers is inherently of' the same nature and class as Respondent's refusal to reinstate unfair labor prac- tice strikers Caddell, Kiser, and Ledford, which was not questioned as encompassed within the original charge timely filed in Case I -CA-7122. 4 7 The unfair labor prac- tice individually charged may, in the complaint issuance, cover a significant additional number of' victims. N.L. R.B. 47See also Evergreen Convalescent Home, Inc.. 209 NLRB 990, tn. I (1974); Humboldt Readvmi,. Inc.. 228 NLRB 733. 734, fn. 7 (1977); and application may he even as to other incidents so long as "closely related" or "of the same class," N L.R. B. v. International Union of Operating Engineers. Local 925, A Fl. ('10, and is Business Manager, H. B. Roherts [J L. Mania Inc.], 460 F.2d 589. 596 (th Cir. 1972). v. Gainor News Co., 197 F.2d 719, 721 (2d Cir. 1952), affd. 347 U.S. 17, 34. fn. 30 (1953). Accordingly, I find Respon- dent's argument based on the prescription of 10(b) to be without merit in the circumstances of this case.4 8 2. The General Counsel's burdens It was the responsibility of the General Counsel, in order to establish additional violations by Respondent of Section 8(a)(l) and (3) in refusing to reinstate strikers, to establish that the named individuals were unfair labor practice strik- ers and that they were discriminatees. Prima Jacie showing on the former is made in establishing participation in the strike. The burden of the latter is to be met as cogently stated by Administrative Law Judge Jerry B. Stone in C. K. Smith & Co., Inc., 227 NLRB 1061. 1075, 1076 (1977). It is General Counsel's burden to establish whether the employees who were unfair labor practice strikers in this case are discriminatees or not. If he proves that such unfair labor practice strikers have made uncondi- tional offer to return to work and have not been rein- stated or have not been timely reinstated, he has met his burden. If he does not establish the foregoing. the General Counsel has failed to meet his burden of proof. I conclude and find that the General Counsel has made primau facie showing as to the identities of individual unfair labor practice strikers during material times.45 I further con- 8 It is thus unnecessary to consider, apart from alleged 8(a)(1) and (3) violations, these matters as raising possible remedial issues, e.g., in regard to providing remedy for a timely alleged unfair labor practice strike. Cr Joseph H. Bliss, d/hb/a Artcraft Mantel and Fireplace Co., 174 NLRB 737, 745 1969). 4' This finding is founded on credited testimony of Union Representative Muncus that certain named employees had participated in vanous strike activities and/or activities in support ofI the strike, on consistent and cor- roborative testimony of a significant number of employees who participated in the strike, on evidence of substantial individual striker requests for rein- statement and their subsequent reemployment, on other documentary evi- dence, and on the weight of' the evidence of the record as a whole. In regard to certain of the documentary evidence relied upon, a few additional remarks appear in order. Received in evidence at the initial heanng was a determina- tion by the employment commission of the State of North Carolina that some 140 named employees had participated in the November 17 strike at Respondent's warehouse premises and were thus determined disqualified for unemployment insurance benefits while participating in the labor dispute under North Carolina general statutes 96 14(5). The Employer had ac- knowledged in the original hearing before me that it had initially supplied the state agency a list of the strikers as of' November 18. Respondent at initial hearing identified the above document as containing names of the stnkers as of that date. At the resumed hearing Respondent sought to clarify its position as being that it had not intended to vouch for the accuracy of that list or for the accuracy of certain other insurance lists provided the Union. Thus, similarly at the initial hearing before me documentary evi- dence was received in the form of a list provided by the Employer to the Union, which list contained the names of striking employees, together with the insurance benefit cost information for each of the striking employees. Moreover, at the resumed hearing additional documentary evidence was re- ceived which reflects Respondent was the source of striker identification for the employment commission on December 16. which led to the above deter- mination (Decision No. 937-L) on January 31, 1977. Thus, while the Em- ployer has sought to clarify its position at resumed heanng that it had not intended to vouch for the accuracy of these documents in identifying strikers, I am nonetheless persuaded that the foregoing lists, in identifying striking employees under the circumstances of their generation and use and in con- junction with the other evidence earlier referred to, are probatively reliable and are thus further corroborative in identifying the striking employees. 154 HARRIS-TI-ETER S PER MARKETS. INC5 clude and find that the General Counsel established that all of the employees listed on Appendix B were unfair labor practice strikers during material times. "' It remains to con- sider the General Counsel's evidence as to requested rein- statement of striking employees and of Respondent's other contended defenses and responses thereto. 3. The reinstatement correspondence On February 21 Respondent received letters ' (dated February 16 or 18, 1977) from 107 of the strikers named on Appendix B. On February 28 Respondent received a simi- lar letter (dated February 23, 1977) from seven additional strikers listed on Appendix B. On February 25. 1977. the four previously determined discriminatees (Little Martin. Nixon, and Wright) wrote individual letters to Ashcraft re- questing notification of when to return to work 5 2 Thus, the record reveals that the Respondent received 118 individual letters seeking unconditional reinstatement from unfair la- bor practice strikers, most named on Appendix B. The rec- 5 Each of the strikers named on Appendix B appears on both of the above lists. At the conclusion of the hearing. General Counsel, with the approal oft the Charging Party. withdrew the names of 15 employees from the complaint for various reasons, but essentially 12 who the record had established were not striking employees at time of requested reinstatement and 3 employees who the parties agree were previously fully reinstated to their former or substantially equivalent positions of employment Thus, withdrawn were Tump Anthony (uncontestedly discharged for strike misconduct: voluntarily resigning: RaundiF A ver (December 17), Dwight L Barker November 19). Walter R. Davis (November 10), and Darrel W1 Hagetr (December 16): dis charged with no unfair labor practice charge filed thereon: Lonard S Daii (November 16) and Kenneth Reese (September 7): Reginald Hatles, injured prior to the strike, who returned to work when physically able, on Januar 31: Lary E. Huffman, an applicant who never reported for work: Donni' E l ofton and Michael Mcl 'ev, who Muncus testified had not participated in the strike: and the name of Pamela B Walker, who the record reveals is the same individual as listed under the name of Pam L.edford. Additionally with- drawn were reinstated employees Willi S Hunt (February 7, 1977). Ronnie L. Hurst (December 28). and Harne- L. ungro (February 3. 1977) Al hearing, General Counsel also moved to withdraw the name otf l.lm Bi ru from the complaint. Charging Party's position was that Byrum w as ill the entire penuod of the strike and was still ill Respondent contends that By rum. initially disabled, was released by his doctor to come back o work. but did not report as scheduled (pror to the strike) and was terminated. Ruling on General Counsel's motion as to Byrum was reserved. Having now fully re- viewed the record. I find that Byrum did not report for work as scheduled on November 15, 1976. and that there is insufficient evidence to establish that he ever participated in the strike. The record thus reveals that after Byrum received treatment for an injury sustained on June 11, 1976, it was the con- clusion of the examining medical authority on October 27. 1976. that B rum was "capable of returning to full work at this time." Respondent. in due course, was so notified. On November 8 Mitchell wrote Byrum. inter alia "I must have you return to work by Monday, Nosember 15, 1976, or I must assume you have quit your job at Harms-Teeter." Bennett testified that Byrum's file showed no response to that letter Byrum did not testify. His name does not appear on either the insurance list of strikers or the state commission list. Nor is there any other evidence to warrant conclusion he was an employee who participated in the strike. I thus find, on the evidence before me. insufficient evidence that Byrum as an unfair labor practice striker and thus warrant to grant General Counsel's motion to withdraw the name of Lloyd Byrum from the complaint. 5 The aforesaid individual letters were addressed to Ashcraft and pro- vided: This is to advise you I am hereby making unconditional offer to return to work in your plant. ~: The letter provided: On November 17, 1976 it was my desire to strike with m fellow employees in protest against the unfair labor practices which the com- pany was committing. I now accept our prior offer of reinstatement and ask that you notify me when I may return to work ord reseals that no individual requests or reinstatement were made by approximately 20 other unfair labor practice strikers. On Februlars 18 John Russell. president o tLocal 525, also sent the following letter t Ashcraft. which xNas re- ceived on ebruar '21: Th is is to notits sour (Compan' i that l.ocal 525 herebx makes an imnlediate and unconditiollral request to reinstate all of the Harris-Teeter workers currently engaged in the strike against our Charlotte. North Carolina \Varehotuse as of the date of our receipt of' this letter or at any reasonable time filloming such date. Ashcraft replied to Russell hb letter dated Februarx 23, 1977, as follows: We have received our letter dated Fehruary 18, 1977. in which ou advise that local 525 is requesting this company to 'reinstate' all the 'workers currently engaged in the strike' against the Harris-Teeter Super Markets. Inc. Since we have received communication both from you and from a large number ot' strikers in the form of individual letters concerning the return to work of those currently on strike. we feel it necessary to hase clarification from ,Oiou at this time as to whether ou expect us to deal only with bour U nion on this matter. or whether ou expect us to communicate and deal directly with the individuals who havse written to us. Additionally we obserse no indication as et that the strike has ended. Please advise us when the strike activity is to he terminated. On Februar 2 Russell ssrote to Ashcraft as fIollowAs: In answer to our letter ofx February 23. 1977. IHar- ris-Teeter empl%ees have been on strike since Novem- her 17. 1976 in protest against the ('ompany's unfair labor practices. IThe individuall ., and the ininil col- lectielN. have made an unconditlional offer to return to work. Should you so desire, the Union would be willing to assist the (compan) in locating and notifying the strik- ing employees as to when they should report to work. and/or any other assistance we might offer should the Company ask for it. The offer to return to work is unconditional. As long as the Cornpanx continues to commit unfair labor practices. including its refusal to reinstate the striking employees. the Union is left with no alterna- tive but to continue its strike actisity. We urge you to return the striking workers to their jobs and limit your back pat liabilit!. On February 28. 1977. Respondent's Bennett sent a letter to each of the first group of employees initially w riting a letter to the Company. which provided as follows: "Please call me as soon as possible concerning your letter o'f Febru- ary 16. 1977." On March 1. 1977. Russell sent a Mailgram to Ashcraft. which provided: We reiterate our unconditional offer to return to work made on February 18 1977 on behalf of the employees 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by Local 525 who have been on strike against your Company in protest against unfair labor practices. At your request we have withdrawn our picket lines. Please advise our strikers when they can return to work On March 2, 1977, Ashcraft sent Russell the following letter: This is in further reference to your letter of February 18, 1977, which is supplemented by your telegram of March 1, 1977. It also has reference to a large number of letters we have received from individuals who for- merly worked here stating that they offer uncondition- ally to return to work. We asked in our letter of February 23, 1977, whether you wished us to deal directly with the em- ployees or with the Union but you have not responded to that question. We fully recognize your right to rep- resent strikers and we do not intend to interfere with or disregard that right. However, circumstances have come to our attention which prove that a number of the letters we received from individuals, stating that they desire to return to work, are not factually correct. This is causing substan- tial confusion which necessarily slows down the pro- cess of recall. It appears to our Company, therefore, that it is highly desirable, if not necessary, that you have all in- dividuals represented by your Union who are actually available for work to come by our office and sign a registry or otherwise personally signify their readiness to return or, if they are not now ready, to advise us when they will be available. It may also be desirable, moreover, to have them state preferences as to jobs and shifts under post-strike circumstances which now exist. By wire of March 7, to Ashcraft, Russell notified the Company: Reference yours of March 2, we would repeat the sec- ond paragraph about February 25 letter stating, should the Company request it. the Union would assist the Company in locating and notifying the striking em- ployees as to when they should report to work. To our knowledge all offers by the striking employees to return to work has been sincere. Circumstances of each striker changed from day to day, and is the Com- pany's legal duty to advise the striking worker when he may return to work, a responsibility the union will not assume. If the striker no longer wishes to work for Har- ris-Teeter it would behoove the Company to secure this refusal in writing and end his backpay liability. The Union would not want to be placed in the position of speaking for each individual striker in this matter. We would suggest a certified letter to each striking em- ployee offering reinstatement and advising them when they can return to work. If this is an inconvenience I would point out the inconvenience I was caused by the Company's unfair labor practices and failure to negoti- ate in good faith. On March 10. 1977, Bennett sent a letter to the employ- ees (only) who had by that time sent a written request for reinstatement to the Employer. Bennett's letter provided: We recently received a letter which appeared to bear your signature stating that you were unconditionally offering to return to work at our warehouse. At or about the same time, we received a large number of identically worded letters which were purportedly signed by your fellow workers. Circumstances have arisen, however, which make it clear that many such letters were sent with respect to strikers who are not interested in coming back to work at any time or who are not immediately available for work. The foregoing, combined with the imbalance and uncertainty of operations which were caused by the strike, have made it most difficult for us to make rea- sonable plans for utilization of the work force and strikers who sincerely desire to return at this time. We have received a communication from the Union which suggests that we contact you individually and states that "The Union would not want to be placed in the position of speaking for each individual striker in this matter." Accordingly, if you are actually available for work now or in the near future, please report in person to the Employee Relations Department during business hours as soon as you can do so. At that time, you will be requested to signify personally your availability, your job and shift preference, etc. Following that, we will make an appraisal of our work force requirements, including future prospects. If you do not appear as requested on or before 4:30 pm on March 16, 1977, we will assume that you are not actually interested in returning to work here. Party Contentions and Analysis It is the position of the General Counsel that the Union's letter of February 18, 1977, constituted a valid uncondi- tional offer to return to work which was effectively made on behalf of a/l the striking employees. It is thus the position of the General Counsel that individual offers were not re- quired, that Respondent could not delay the effective date of the unconditional offer by its correspondence, and that Respondent could not in any manner toll (or put off) its backpay liability by demanding subsequently a personal re- sponse to its inquiry from each striker. It is General Coun- sel's position that remedial backpay for the strikers should commence February 26, 5 days after February 21 (the day the unconditional offers were received and by their terms were effective). In that respect it is General Counsel's con- tention also that the circumstance that employees may have been picketing on February 18, or actually continued to picket after February 21, is of absolutely no consequence. Thus, the General Counsel argues that once an uncondi- tional offer of an unfair labor practice striker to return to work is received by an employer, the burden is then shifted to the employer to reinstate such strikers desiring reinstate- ment within 5 days or incur backpay liability. The Charg- ing Party's position is the same. In also contending that the 156 HARRIS-TEETER SUPER MARKETS. INC. exchange of correspondence in no way postponed the re- quired reinstatement date, the Charging Party also argues that the Company's confused and evasive responses and the dates and manner of reinstatement of strikers is to be ex- plained. in part at least, by the fact that the Company, as it subsequently stipulated, was treating its striking employees as economic strikers rather than as unfair labor practice strikers. The record fully supports the latter to be the fact, and I so find. Thus, Bennett specifically testified that the Company had considered the strike an economic strike and had treated strikers who indicated an interest in coming back to work as economic strikers who had by then been permanently re- placed. The Company put them on a preferred rehiring list. but not in any order, and individual strikers were then hired when an opening came up for which they were qualified. Positions were filled in consultation with Mitchell, who was then the director of distribution. Bennett did testify that. insofar as possible, strikers were hired into the job they held when they began the strike, but significantly acknowledged that no replacement was released to make way for any re- turning striker. Bennett confirmed that they filled jobs only as they needed to be filled. The parties stipulated as to dates that certain strikers were reemployed. The parties also stipulated generally that (apart from timeliness) 28 employees were offered reinstate- ment to their former jobs: 42 employees were offered jobs other than the jobs they initially occupied at the time the strike began, but subsequently have been transferred to their former jobs: and 15 were offered and presently occupy jobs which are not the same jobs as or substantially equiv- alent jobs to the jobs these employees had initially occupied prior to the strike. It was also stipulated that an undisclosed number were offered jobs and declined them. However. the record reveals that there were very few immediate reem- ployments. and, as I eventually find, for specific reasons hereinafter related, none (of those remaining in complaint) were reinstated timely." All parties are in general agree- ment that issues of late reinstatement and other matters bearing on mitigation of damages are matters for compli- ance. It is essentially Respondent's contention (apart from its contentions that the strike was an economic one and as to the applicability of Section 10(b), as to which contentions I have already found no merit) that there was no effective unconditional offer to return to work by the strikers. Thus, the last general contention of Respondent is that the Febru- ary 18, 1977, letter of the Union, which purported to be an unconditional offer to return on behalf of all strikers, and the certain individual letters purporting to be from strikers were contradicted by the facts, namely, that the strike was continuing in effect at the time all the letters were received and thereafter until March 4, 1977. In that respect, Respon- dent relies on the stipulated fact that picketing did not cease at all locations until March 4, 1977. Respondent also argues in its brief that no further correspondence was re- ceived from individual strikers after that date, though this 13 Only nine of the employees listed on Appendix B were reemployed b) March 7, 1977; six of them were reinstated to their initial jobs, and three received later reinstatement. None were reinstated prior to February 27. 1977. may be questioned in a few instances. Respondent also con- tends that the wire sent by the Union and received by Re- spondent after March 4 admitted that the Union was not making an offer to return on behalf of each individual striker and suggested that the Company contact employees directly, which it thereupon did. Respondent additionally contends, therefore, that not until the Company received a response to its letter of March 10 did it have any true notice as to which employees were actually making unconditional offers to return, all of which responses apparently it con- tends were received no later than April . 1977 (hence 10(b) applicable). Apart from the above, the Employer raises cer- tain individual defenses and contentions as to individual strikers which are considered hereinafter individually. Inasmuch as I have found that the strike in this matter was an unfair labor practice strike from its inception and throughout its duration, I find that Respondent's arguments based upon the nature of the strike being an economic one must in turn be concluded to be ineffectual. Further, it will be observed many ramifications unfavorable to Respon- dent's positions follow the conclusion that the strike was an unfair labor practice strike, particularly with respect to the to-be-observed individual factual patterns of reemployment as they developed under Respondent's erroneous treatment of strikers as merely economic strikers. Thus, in regard to unfair labor practice striker rights, it is appropriate to note at the outset that: Unlike those who strike to secure economic objectives in an atmosphere untainted by employer unfair labor practices, unfair labor practice strikers are not required to assume the risk of being replaced during the strike. but instead are guaranteed a right to return to their former positions as soon as they unconditionally seek active reemployment. Colonial Press, Inc., 207 NLRB 673. 674 (1973), modified (in other respects) 509 .2d 850 (8th Cir. 1975). Some sup- port for an employer's belief that a strike was an economic one is no defense to a failure to timely reinstate otherwise determined unfair labor practice strikers. Head Division AMF, Inc., 228 NLRB 1406, 1417. Nor is delay in returning unfair labor practice strikers to their jobs defensible be- cause their jobs may have been during the strike performed by nonstriking employees being moved to their positions from other classifications or positions, as the latter are but replacements in those positions. Mosher Steel Compan'. 226 NLRB 1163, 1164 (1977). The basic principle is settled that unfair labor practice strikers are entitled to reinstatement immediately upon their application, even if replacements have been hired. If required, in order to make way for re- turning strikers, replacements must be released. An employ- er's refusal to timely reinstate such strikers violates Section 8(a)(3) and (1) of the Act. Mastro Plastics Corp., and French-American Reeds MJg. Co., Inc.. v. N.L.R.B., 350 U.S. 270 (1956). Unquestionably, the union which repre- sents employees may serve valid notice of the termination of a strike by requesting an immediate return to work of (named or unnamed) unfair labor practice strikers, as a group, and individually. Ekco Products Company, 117 NLRB 137. 147, 148 (1956): National Business Forms, 189 NLRB 964 (1971). enfd. 457 F.2d 737 (6th Cir. 1972); and Acme Wire Works, Inc., 229 NLRB 333 (1977). As con- 157 I)1CISIONS OF NATIONAL ABOR RELATIONS BOARD tended by General ounsel. commencement of remedial backpay 5 days after strikers have offered to return in the circumstances of this case would appear to be appropriate. Ramona's Mexican Food Procots., Inc(., 203 NILRB 663 (1973), enfd. 531 F.2d 390 (9th ('ir. 1975). In that connec- tion, the Board has recently reviewed the balance it has struck in allowing 5 days as providing a reasonable period of time for employers to accomplish administrative tasks that may he necessary for orderly and timely reinstatement of unfair labor practice strikers and reconfirmed this bal- ance as previously struck. Drug Package ('ompanyl' Inc., 228 NLRB 108, 113, 114 (1977). It has similarly previously struck the balance between an allowance on the part of the employer to immediately commence the rehire of unfair la- bor practice strikers in less than the entire group and, thus. toll backpay for those so offered (Soulthwesern Pipe, Inc., 179 NLRB 364, 365 (1969)), though with the continued right of strikers to an immediate reinstatement with reme- dial backpay after 5 days if' not timely reinstated or to con- tinue unfair labor practice strike status (foregoing backpay remedy) while holding out for an entire group reinstate- ment, should they elect to do so. National Businevs Forms, mupra. Here, the Union's February 18 letter addressed to Respondent and received by it on February 21 was un- equivocal in terms constituting an immediate and uncondi- tional request of Respondent to reinstate all of the unfair labor practice strikers as of' the date of Respondent's receipt of the letter or at any reasonable time following such state- ment, which I conclude is reasonably to be construed to be within the 5 days allowed by the Board in such cases. 'Ihe substantiality of this letter was significantly (though unnec- essarily) buttressed by contemporaneous receipt of individ- ual letters from two-thirds of' the individual strikers. Re- spondent could not have been reasonably confused as to the Union's or strikers' intent thereon or evade the etficac of the Union's request. 4 I thus conclude that there was an effective request fr reinstatement made on behalf of' all strikers by the Union, which was effective when received by the Employer on February 21, 1977. Since I have found that the employees named on Appendix B were unfair labor practice strikers and since all there named were not rein- stated prior to February 27, 1977, 1 further conclude and find that Respondent has failed to reinstate or timely rein- state the unfair labor practice strikers named in Appendix B, in violation of Section 8(a)(I) and (3), absent some fur- ther justification shown. Such justification is not to be found in Respondent's letter of February 23. 1977, to the Union based on required clarification of whether the Union wished it to deal with the Union or with employees. The Union already had made the unconditional request for rein- statement on behalf of all employees, which I have found was clear and effective. The burden then became the Em- ployer's to reinstate employees in timely fashion, within the 5 days provided. The reiteration by the Union of its unconditional offer to return to work in its communications of February 25, March 1, and March 7 only serves to substantiate that the initial unconditional request for reinstatement was made, as does Respondent's continued failure to timely reinstate em- 5 Nor does the Union's reference in its letter of February 25 to forced continuation of strike activity reasonabls constitute. in my view, either a conditioning or withdrawal of the earlier unconditional offer clearly made. ployees in large measure thereafter. even after the Union's termination of all picketing on March 4, 1977, itself serve to spotlight that Respondent was not confused by the Union's initial offer but that its delay was occasioned by its treating employees as returning economic strikers. In any event, convincingly established is Respondent's failure in its obli- gation to return immediately to work the unfair labor prac- tice strikers upon their application. Nor do I find any merit in Respondent's argument based upon the continuance of picketing activity as precluding an unconditional offer on the part of the Union to terminate the strike on behalf of employees or as conditioning the requests of strikers for reinstatement, M Store, Inc., 147 NLRB 145, 153, 157 (1964), enfd. 345 F.2d 494 (7th Cir. 1965). Neither is picket- ing necessarily equatable with strike activity, the latter in its essence alone involving the voluntary withholding of labor, as the statute itself differentiates. Shell & Anderson Furni- ture Manuficturing Co., Inc., 199 NLRB 250. 263 (1972), enfd. 497 F.2d 1200 (9th C'ir. 1974): Edir, Inc., d/bh/a Wolfie's, 159 NLRB 686 (1966); see Shoppers Drug Mart, In(c., 226 NLRB 901, 910 (1976). Nor may Respondent law- fullyjustify its failure to timely reinstate unfair labor prac- tice strikers while requesting initial information (e.g., as to availability and interests of individual strikers) as to which it has no lawful right. Allied Indlustrial Workers, AFL-CIO, Ixocal Union No. 289 [('ovalier Div,. of Seehurg Corp. and Cavllier Corp.] v. N.L.R.B., 476 F.2d 868, 874, 883, fn. 24 (D.C. Cir. 1973). The employer has both the obligation and the facility to meet its burden as to unfair labor practice strikers as to whom it has received an unconditional request fir reinstatement by timely offering the required reinstate- ment and thus determining which strikers will actually ac- cept the required reinstatement when offered. It may do so as to the entire group or partially, and it effectively tolls its backpay liability proportionately in the latter approach in any event. National Busines.s orms, supra. It may do so expediently by mailing the required offer of reinstatement to the striker's last known address. Rental Unijbrm Serice, 167 NLRB 190. 198 (1967). However. this it elected not to do. Accordingly. I conclude and find that Respondent's general defenses for its failure to reinstate the unfair labor practice strikers are all nonmeritorious and resultingly con- clude and find that the unfair labor practice strikers listed on Appendix B were not reinstated or not timely reinstated by February 26, 1977, upon their earlier application for unconditional reinstatement to their jobs as was made on their behalf by the Union. effective February 21, 1977.55 I further find myself in agreement with General Coun- sel's contention that the circumstance that picketing was still going on was immaterial. Essentially, it is my view that "5 Respondent's assertion that the Union, by its wire of March 7. 1977, admitted that it was not making an offer to return on behalf of each striker and invited the Employer to make individual inquiry is, in my iew. simply an unreasonable interpretation, if' not a patent distortion of the Union's correspondence in this matter. Accordingly. I conclude such argument is desoid of an5 merit. Rather, I conclude and find that the matter as to which the Union had therein clearly informed Respondent was that the Union would not speak lir an unfair labor practice striker's rejection of an offer of reinstatement when made. Continuously and unmistakably, the Union had urged Respondent to make such offers of reinstatement timely to the strikers if Respondent was to limit its backpaNl liability. I conclude it did so effec- ively the first time. 158 HARRIS-TEET ER SUPER MARKETS. IN(' just as there may be a strike with or without picketing. there may be picketing without a strike. The conclusion as to which is present must rest on analysis of all of the facts of the given case. I would note in passing, however. that even should I be in error in my view above contrary to the Em- ployer that the circumstance of picketing occurring at the time an unconditional offer was made by the Union does not preclude an efficacious unconditional offer and that Re- spondent on the facts of this case was in some manner privi- leged to await the Union's clarification 56 (or even await a cessation of picketing at all locations, stipulated to have occurred on March 4, 1977), the result would not be appre- ciably changed, as it would appear that only six of the em- ployees listed on Appendix B would (even in the latter in- stance) be affected thereby.' 4. Poststrike allegations of 8(a)(3) and ( I ) violation a. Kirkpatrick Carr and Joseph Nicholson As alleged in the initial consolidated complaint in Cases 11 -CA-6827 and 11CA-6964, issues are presented whether Respondent discharged and thereafter failed and refused to reinstate employees Kirkpatrick Carr and Joseph Nicholson on December 6. Essentially. General Counsel and the Charging Party contend that these two employees were striking employees who, after inquiry of their Em- ployer concerning the possibility of abandoning the strike and returning to work, subsequently elected not to return to work but rather to continue in their strike activit. Conse- quently, upon their application for reinstatement, the argu- ment goes, they were entitled to he reinstated. Respondent contracontends that upon inquiry by these individuals, each was offered employment, resigned, and was terminated. General Counsel and the Charging Party contracontend that on the facts established by the record the position of Respondent is groundless and based on token argument and merely an attempt to deprive Carr and Nicholson of their entitlement to reinstatement in an effort to reduce Re- spondent's backpay liability. Kirkpatrick Carr. The facts are essentially not in dispute. Hired in 1974, Carr was employed as a truckdriver, signed a union authorization card, attended union meetings, and participated in the strike commencing on November 17. As I have found that the strike was from its inception an unfair 5 See and compare Rice Lake Creamers (ompaun. 131 NL.RB 1270(), 1300 11961), enfd. sub nom. General Drivers and Helpers nimn, 1, ocal 662, Interna- tional Brotherhood Teamsters, Chauffiur, Warehousemen and Helpers of America v. N R.. 302 F2d 908 (DC' C ir 1962) cert denied 371 UI.S 827 1962). " The parties have stipulated that there was an initial reinstatement: o' Wade L. Carpenter and William D. Lower, on Februars 28, 1977; of Doro- thy Ledford and Silas Spann on March 1. 1977: of Lamar Leung on March 2, 1977; and of Catherine L. Love on March 3. 1977. The only others Davis, Hager. McKinnes, and Patterson) reemployed in this period were stipulated as not initially reinstated but reinstated some time later. All others on Ap- pendix B Appendix B omitted from publication) were reemployed or rein- stated after March 9, 1977, or have not have been reemployed to date. The underlying simple explanation for all of this is, of course, as this record convincingly has disclosed. that Respondent was treating all these employees as replaced economic strikers. There is thus considerable merit to the C(harg- ing Party's contention that most of Respondent's marshaled general argu- ments are but attempts to salvage what it can from its basic error as to the nature of the strike being an economic one; and understandably the argu- ments Respondent travels on must founder repeatedly on that ver shoal. labor practice strike. Carr was at that time an unfair labor practice striker. In late November or early December Carr contacted Mitchell and inquired if it was possible for him to get his job back. Mitchell gave Carr an appointment to meet with him some days in the future. In late November or early December Carr went to Mitchell's office and had a conversation with Mitchell and Bennett. Carr acknowl- edged that he told them that he was interested in getting his job back. According to Carr., he was introduced to Bennett by Mitchell, who told him that Bennett would be working directly with the people returning from the strike. Bennett told Carr that they were glad to have him back, and upon his returning he would probably have a little difficults with some people who were already there because of the act that he did go on strike. but he should not kworry about it. because it would not last. Carr was not given a specific date to report to work at the time. It was shortly thereafter that Carr began picketing again. HIis wife next reported to him that he had received a call from Harris-Teeter. Carr called Mitchell on Fridas December 3. Mitchell instructed Carr to report on the following Tuesday.' " However, Carr did not report for work on Tuesday. nor did he subsequently advise the Company that he was not coming in to work. Instead, Carr (corroborated by employee Henderson) continued his strike activity. including picketing from that time until the end of the strike at the warehouse and at other locations. Carr testified that Respondent's supervisors were well aware of his picketing activity and that he, in act. had had his picture taken on one or two occasions by Respondent's supervisors.5? Mitchell did not contest the facts as related bh Carr. Bennett essentially agreed with Carr's version except that he placed their initial meeting on December 2 and recounts that his remarks to arr about difficulties that Carr might encounter covered also that he was likely to his car kicked as he crossed the picket line but that it ,ias their intention to protect him. Contrarn to Carr's recollection. Bennett denied that he told Carr the Company was going to try to keep the nion out of Hlarris-Teeter. Bennett in- formed arr that they would be in touch as to a specific starting date, and he relates that C'arr was subsequently called and told to report on December 6. When ('arr did not report tfor work on December 6. Bennett sent ('arr the following letter on December 8: This will confirm that you told us that ou were giving up our strike activity. fiolloing which we of- fered to reinstate you to your former job without loss of seniority. You were to report for work on December 6. 1976 and since we have not heard from you, we will have to assume that you declined our offer of emplo, ment. I conclude and find on the basis of the above facts that Carr elected to continue his protected strike activity along with his coemployees, exercising a right which the statute provides him. Accordingly. it follows that he continued in 5, According to ('arT, he as, instructed to report at 10:40 a.m on Tues- day. Tuesda) Sas December 7. (The (Compans would place the direction to report on December 6.) I find the ariance immaterial under the circum- stances More significantl,. ('arr testified without contradiction that he was picketing at the lime he receied Respondent's letter t)ecember 8 /in,ra '5 There is no issue nt unlawful ictls it5 with regard to the photographing of strikers. 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his unfair labor practice strike status. Whatever may have been the reasonableness of the Employer's immediate view of Carr's failure to report for work as scheduled, it could not affect his protected status in continuing his striker ac- tivity. I note in passing that Bennett's letter to Carr did not relate a termination. The complaint allegation is that on December 6 Respondent unlawfully terminated employee Carr. The General Counsel did offer other evidence bearing on that allegation. That evidence, however, must be viewed in the context of the Union's unconditional request for rein- statement and subsequent developments. Momentarily, apart from consideration of the Union's unconditional re- quest for reinstatement of all strikers, I note Carr made an individual request (dated February 16) for reinstatement which was received by the Company on February 21. On March 15, 1977, having received no word from the Com- pany, Carr called Bennett and asked when he could come down to register or to sign the list for returning to work as others were doing. Carr was informed by Bennett that there was no need. Bennett then referred Carr back to the De- cember 6 incident. Bennett told him that he was supposed to return on December 6 and that when he did not the Company had assumed that he had quit.6 Following his telephone conversation with Bennett, Carr went out to the warehouse and met with Mitchell and Ben- nett. Carr asked Bennett for something in writing. Bennett then gave him a form 502 showing the last date of work as November 17 and his separation date as December 6, with detail reason for separation as "voluntarily resigned." How- ever, the form signed by Bennett was dated March 15, 1977. The form is a separation notice provided for the employ- ment security commissioner of North Carolina. As noted, the record reveals that in North Carolina an employee's involvement in a labor dispute, such as is present in the instant matter, disqualifies the employee from obtaining un- employment compensation. Carr had been so disqualified through at least March. The record reveals that a termina- tion report was also made out on Carr dated March 15, 1977, showing as reason for separation: "[A]sked for and offered reinstatement on 12-6-76. Did not show up for work."6' Carr subsequently received a second form 502 with same stated reason for separation. This form was dated March 21, 1977, with signature of C. L. Teeter, Jr. I am wholly satisfied, on the basis of the above evidence and the record as a whole, that Respondent did not discharge Carr on December 6, unless it is to be concluded that Respon- dent constructively discharged Carr as of that date by its March 15 acts. This finding and conclusion has other rec- ord support in the circumstances that the Employer contin- ued to accept insurance payments from the Union on be- half of Carr throughout December and into January 1977. However, I am persuaded with equal conviction to General Counsel's contention in this matter that the tack that the Employer had taken in March 1977 was to opportunistical- ly relegate Carr to occupying the position of an employee 6°On direct examination, Carr's recollection was that Bennett had told him that he had forfeited his chance to return to the Company. However, Carr acknowledged that in an earlier affidavit he had recorded that Bennett had told him that the Company assumed that he had quit. In this incident I credit the latter. 61 In passing, I note that this termination report, made out by Bennett and dated March 15, 1977, indicates that Carr would not be recommended for rehire. This consideration is discussed in greater depth infra. who had voluntarily resigned. In doing so, I find that Re- spondent not only has refused to timely reinstate Carr, who continued to occupy an unfair labor practice striker status and on whose behalf the Union had made unconditional request for reinstatement, but has also, in fact, wrongfully discharged him. I shall provide an appropriate remedy. 62 Joseph Nicholson. The circumstances attendant to the al- leged discriminatory discharge of Joseph Nicholson on De- cember 6 follow an essentially similar factual pattern to that of Carr, with a few notable factual matters in dispute which must be resolved. Nicholson, hired in 1969, in due course signed a union card and attended union meetings. Nicholson testified that he participated in the strike which commenced on Novem- ber 17. However, Nicholson relates that on November 18 he contacted day dispatcher Lee and inquired whether or not his brother was working. Upon being informed that his brother was working, Nicholson then inquired of Lee if he could come to work. At this point, Nicholson was trans- ferred to Price, supervisor of transportation. Nicholson asked Price if he could come in to work. According to Nich- olson, Price then told him he could not, as he had been fired, and told Nicholson that all the truckdrivers that walked out on strike had been fired. Nicholson related also that he replied, "Okay," and Price then said that he would talk to Nicholson later. Price testified that on November 17 day dispatcher Lee had reported to Price that Nicholson had called in, advising him that the pickets would not let him come in and that he was going to come back that afternoon and go to work, but that Nicholson had not shown up for work at all.6 Price confirmed, in any event, that on November 18 Nicholson called him, wanting to know what his reporting time was. Price advised Nicholson that he did not have him on the schedule and did not have any runs available. According to Price, Nicholson asked Price if he was terminated, and Price told Nicholson that he was not, that it was just that he did not have any openings right then, and that he would be back in touch with him. Price denied that he had told Nich- olson that he was terminated. The initial factual dispute to be resolved is whether Price told Nicholson that he and the other truckdrivers who participated in the strike were termi- nated, as Nicholson recalls; or simply that Price did not have any openings right then, as Price recalls; or something else again. It is initially observed that both Nicholson and Price essentially confirm each other that at the end of the conversation, Price had told Nicholson he would talk to him later or be back in touch with Nicholson. Such a re- " Under the unique circumstances present, I find it unnecessary to resolve whether the Respondent's act of dating back the termination to December 6 technically supports a constructive discharge on December 6 or whether Carr was simply discharged on March 15, 1977. as the facts would appear to show. As the finding is warranted in either event that Carr had remained an unfair labor practice striker, the further finding is warranted that employee Carr was unlawfully refused reinstatement commencing February 26, 1977. 1 note the appropriate backpay remedy is not affected by his discharge circum- stances. I shall provide an order of reinstatement, as Carr was reemployed, but not reinstated on August 2, 1977. 61 In contrast, witness Beatty, whom I credit, testified that, although the strike commenced November 17 (at 3 p.m.), picketing was not established until November 18. Nicholson's absence on November 17 was not attribut- able to picketing, as Nicholson claims, but rather evidenced individual strike action. 160 HARRIS TEETER SUPER MARKETS. INC. mark appears seemingly incongruous with an earlier re- ported termination remark as recalled by Nicholson. I must further note that some confusion exists in the record in Nicholson's testimony as to that remark in relationship to reference to the strike. Thus, on two or more occasions Nicholson related Price made no mention of the strike. yet inexplicably recalls Price saying the truckdrivers who went on strike were terminated. However, although Price and Nicholson recall Price said he would contact Nicholson lat- er, both report he did not do so. I find revealing Price's additional testimony that he assumed Nicholson was strik- ing and, indeed, may have seen him on the picket line. However, I simply am not persuaded by General Counsel's evidence re the remark. Rather, I am convinced that in this instance Price's testimony that he told Nicholson he had no opening for him appears plausible under all the circum- stances, particularly when also taken into account is Mitch- ell's testimony that he had received a report from dis- patcher Lee that Nicholson had called and that Price had told him he was replaced. I conclude and find that Price, in substance and effect, told Nicholson that he had no opening for him, as Nicholson had been replaced along with all the other truckdrivers who went on strike.6 Of course, Nichol- son at this time was an unfair labor practice striker and entitled to an immediate reinstatement upon his uncondi- tional request. I am satisfied that, pragmatically viewed, that is precisely what his inquiry of Lee and then Price amounted to. However, I am equally convinced (discussed infra) that when not immediately returned, Nicholson im- mediately continued with his strike activity and, as we shall see, was not at all anxious thereafter to even communicate with Mitchell about a job offer, independently evidencing he thereafter did not forego his strike activity. As noted, Mitchell received reports from both Lee and Price concerning Nicholson's request to come back to work and Price's refusal. Mitchell reports that on Friday an opening developed, and he called Nicholson's wife on Mon- day morning, November 22, and told her that Nicholson had called wanting to come back to work and asked that Nicholson contact him. When Mitchell received no contact from Nicholson that day, he again called Mrs. Nicholson at 5 p.m., with Mrs. Nicholson indicating that Nicholson had been given the message. Mitchell again asked that Nichol- son get in touch with him. He called in the evening when Tuesday came and went without Nicholson contacting him. On Wednesday, November 24, Mitchell was handing out checks to the strikers. Nicholson approached for his check. According to Mitchell, he at that time asked Nicholson if Nicholson had gotten Mitchell's earlier messages. Nichol- son acknowledged that he had. Mitchell told Nicholson that they had a job for him and to report to work on Friday morning. According to Mitchell. Nicholson, a man of very few words, simply said, "I quit," took his check, and walked off. Nicholson acknowledges receiving from his wife Mitch- ell's message about coming back to work. He also confirms I do not overlook the substantial evidence that other supervisors, partic- ularly Williams, had told employees variously that they would be terminated or fired if they did strike. However. I note Williams later acknowledged to Kiser that if employees struck, they would be replaced. Weighing the plausi- ble to determine the probable, I am persuaded by the evidence the above reflects what probably occurred at that time. It also comports with Mitchell's recollection of what Price later told him. having a conversation with Mitchell on Wednesday as he was picking up his check. According to Nicholson. after he acknowledged receiving Mitchell's message. Mitchell asked him what he was going to do, and he told Mitchell that he guessed he was going to stay out on strike. Mitchell testified that Nicholson did not say he was going to stay out on strike. Nicholson testified that he never told Mitchell or anybody else that he quit and that he first heard Mitchell say he had quit at an unemployment hearing. The second material dispute of fact is thus whether Nicholson contin- ued striking or resigned on November 24. Bennett sent Nicholson a letter on December 6, which provided: This will confirm that you called to say that you are giving up your strike activity following which we of- fered to reinstate you to your former job as a driver without loss of seniority and that you declined such offer. I note Mitchell's testimony was to the effect that he had related the offer only in terms of having a job for Nichol- son, with instruction to report on Friday morning. Addi- tionally, Bennett's letter narrates that the job offer was one of reinstatement to Nicholson's former job. However, it did not relate any claim that Nicholson had quit or even volun- tarily resigned, but only that he had declined the offer made. Like Carr, Nicholson's name appears on both lists of strikers, i.e., as provided by the Employer to the Union and to the state commission. Nicholson testified without contra- diction that he had immediately continued to support the strike by picketing activity at various locations and that various named supervisors and managers of Respondent had observed him on the picket lines. I am wholly per- suaded and convinced by the weight of the above evidence that Nicholson did not quit or resign his employment but that he declined the offer of employment, electing to con- tinue as an unfair labor practice striker with his coemploy- ees. An unconditional request for reinstatement was made for Nicholson generally by the Union and individually by Nicholson in February 1977. When Nicholson did not re- ceive a letter at the time the other employees did, he was advised by Union Representative Lawrence to go out and see Bennett.6 ' On March 14, 1977, he met Bennett in his office, and Bennett asked Nicholson what had brought him out there. Nicholson told him he had come to register to go back to work, as all the other employees had gotten a letter to register to come back to work. Bennett, however, told Nicholson that Bennett had written him a letter back in December and that he had not answered, so Bennett fig- ured he had quit, and he did not have a job there. Nichol- son said, "Okay," and left. On the following day, March 15, Nicholson met Carr, who had at that time a slip (502 form) from the Employer, and Carr suggested to Nicholson that he go back out and get one for himself. Accordingly, Nich- olson went out on March 15 and again talked to Bennett with Mitchell present, in Mitchell's office. Bennett again asked Nicholson what he could do for him, and Nicholson stated that he had come out to pick up a layoff slip. The 65 It appears that Nicholson and Carr did not receive a March 10. 1977, letter 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff slip referred to by Nicholson is a form 502 (like Carr's) and is also dated March 15. 1977. It also related the last day worked as November 17, 1976, with date of separa- tion December 6. 1976. The detailed reason for separation shown is "voluntary resignation." Nicholson acknowledges that he began receiving unemployment in March-April of 1977. Although I have not been persuaded by the General Counsel's oered evidence and consequently have not found that Price had told employee Nicholson on Novem- ber 18 that the truckdrivers had been discharged for engag- ing in strike activity as alleged in the complaint as amended at the hearing, nonetheless, I am wholly satisified that Nicholson had engaged in strike activity on November 17, which is not diminished by the circumstance that he indi- cated he had second thoughts about continuing to do so on the following day in his inquiry as to whether his brother was working and his request to come back to work. Since the strike was an unfair labor practice strike from its incep- tion, Nicholson at the time occupied the position of an un- fair labor practice striker, with entitlement to immediate reinstatement upon application for reinstatement. It is clear that that is exactly what he was endeavoring to do on No- vember 18 in his conversations with dispatcher Lee and subsequently with Supervisor of Transportation Price. In point of fact, he was not returned to his job immediately, and no effort to do so was thereafter made by Price. How- ever, Mitchell did make repeated efforts to contact Nichol- son through messages left with his wife on November 22 and thereafter, which Nicholson acknowledges he received. I am thus persuaded that it was Nicholson's immediate de- termination to continue with his initially commenced strike activity that led him not to promptly respond to Mitchell's repeated inquiries in the following days. I am convinced that Nicholson promptly resumed and continued his strike activity thereafter and that the same soon became known to Respondent's supervisors. I am thus persuaded that Re- spondent's offered evidence does not adequately meet, nor may it be deemed to prevail over, the credited evidence that Nicholson had promptly continued his strike participation immediately upon being denied reinstatement by Price. As with Carr, I am persuaded that Respondent did not termi- nate Nicholson on December 6, for the reasons I have elu- cidated above in consideration of Carr's alleged discrimina- tion.6 However, I have equal conviction that, as with Carr, Respondent again opportunistically seized upon Nichol- son's earlier declining of a job offer and did so under cir- cumstances amounting to a constructive discharge. As with Carr, I find it unnecessary to resolve whether by virtue of the dating of the form 502 the Employer has constructively discharged Nicholson on December 6 or effectively as of March 15. Rather, as with Carr, I am satisfied that Respon- dent, in any event, failed to timely reinstate unfair labor practice striker Nicholson by February 26 and that a rein- statement offer is required, and an appropriate backpay remedy is in order. I shall so provide. Clearly, the date of December 6 does not relate to the contended quit- ting conversation, which occurred November 24. The 2-week delay not only is unaccounted for, it further renders Respondent's position on Nicholson less convincing. Nicholson was reemployed, but not reinstated, on July 26, 1977. b. The abolition of the ham operation in the salad kitchen; Respondent'sfailure to reinstate Thomas Caddell, Margie Kiser, and Pamela Ledford Prior to the strike I employees 67 worked in Respondent's salad kitchen. There were six production employees who worked on rotation, three in the kitchen (cooking) and three (on production work) in the finishing room. Two additional employees worked a salad-cupping machine in the finishing room. Three employees also worked on a ham operation. The salad kitchen is under the supervision of Bill Williams. Thomas Caddell was emloyed in the salad kitchen as assistant salad plant manager at the rate of $4.65 per hour. Employed by the Company since 1966, Caddell had held many jobs both in Respondent's stores and later in its ware- house, including, in the latter location, work involving driv- ing a forklift. Immediately prior to the strike Caddell spent most of his time in the ham operation, though he had had occasion to perform all tasks within the salad kitchen. Mar- gie Kiser was employed as a production worker in the salad kitchen and also worked in the ham operation. Kiser has had broken employment since 1970, last being rehired by the Employer in March 1974. Prior to the strike Kiser was paid an additional sum as a relief person, since from time to time she performed the other jobs in the salad kitchen. Pamela Ledford had also worked in the salad kitchen for a year and a half, and for the last 9 months in the ham opera- tion. In the summer of 1976 there was some talk of a possible discontinuance of the ham operation. It is uncontested that at that time supervisor Williams informed both Kiser and Ledford that if the ham operation were to cease, other posi- tions in the salad kitchen would be then made available to them on the basis of their seniority. The record reveals that it had been also Respondent's prior practice to transfer em- ployees to other available jobs for which they were qualified when jobs were abolished. By letter dated November 30 Ashcraft notified Coutlakis of certain proposed changes, with an offer to negotiate thereon. Included was notification that the Company did not propose to restart the ham operation in the salad kitchen, as it had not been a profitable operation. (No other jobs were to be abolished.) The Union did not request nego- tiation thereon. All parties agreed that no claim is raised herein that the abolition of the three jobs in the ham opera- tion was for other than legitimate business purpose. Each of the above employees participated in the strike from its inception on November 17. The Union on their behalf and each employee individually requested reinstate- ment effective February 21. On March I1, 1977, Ashcraft notified Coutlakis that there were no jobs to which these strikers were entitled as returning strikers. On March 12, 1977, Respondent issued a form 502 to each of the employ- ees showing as the last date worked November 17, 1976, with a separation date of February 16, 1977. Reason for separation was related as "layoff-lack of work." On March 15, 1977, Bennett made out termination reports for each of these employees, with reason for separation again shown as b7 The record reveals that after the strinke and as of September 1977, there were then nine employees employed in the salad kitchen, six production workers. two cupping machine operators, and one lead person. 162 HARRIS-TEETER SUPER MARKETS. INC. "laid off-lack of work-closed ham operation." Each report bore a notiation that the employee would not be recom- mended for rehire. Mitchell testified in explanation that the Employer's policy at the time was not to rehire employees who terminated. The record reveals such policy was not uniformly adhered to prior to the strike or after the strike commenced. On July 18, 1977, Bennett wrote Coutlakis that the Company's position on the above employees was that they were terminated employees. However. Respon- dent asserts that it in the interim reassessed its policy on rehires. In any event, at that time Bennett notified Coutla- kis that when it began to employ from the outside after the other strikers were reinstated. Respondent would give these employees equal consideration for jobs along with other applicants. Bennett testified that each of these employees had a good employment record. It is General Counsel's position that Respondent has un- lawfully refused to reinstate these three strikers after the Union's unconditional offer to return to work on their be- half, on the grounds: (a) that prior to the strike it was the unbroken policy of Respondent to transfer warehouse em- ployees to other jobs when the jobs on which they were working were abolished and (b) that other jobs were avail- able which were then held by replacements or which had opened up through strike interim resignations of other un- fair labor practice strikers, as to which positions General Counsel argues these employees enjoyed right of reinstate- ment. General Counsel thus contends that although the jobs of these employees had been initially lawfully abol- ished, the right of reinstatement of unfair labor practice strikers was not thereby extinguished and entitled them to these certain other positions if available. General Counsel appears to say that other unreturned unfair labor practice strikers had (paramount and initial) claim to their own jobs. However, after any of such strikers had been reinstated and resigned, or offered reinstatement and declined, each of the above employees' claims by virtue of right to reinstatement would next follow. General Counsel thus contends their right to reinstatement was superior to any position claim by striker replacements hired after the strike began. The Gen- eral Counsel effectively lays superior claim on their behalf to: (I) all positions of emloyees who initially joined the strike but who, for one reason or another, resigned from Harris-Teeter during the strike and (2) to all positions of striking employees who, after being properly offered their former position, elected not to return to work for the Com- pany, whether or not replacements currently held positions in those categories. The Charging Party essentially joins in General Counsel's position, urging that the abolishment of unfair labor practice jobs is not a valid defense to a charge that the Company failed to reinstate unfair labor practice strikers if the affected employees have qualifications to hold other positions within the plant which are presently being held by replacements. The Charging Party would appar- ently extend that right to claim all positions held by em- ployees hired after the strike commenced, irrespective of whether a striker or nonstriker was being replaced, inas- much as it argues that evidence that others had been hired after the strike is probative of the availability of positions that these employees could have held, citing Fire Alert Company, 207 NLRB 885 (1973). The Charging Party addi- tionally argues that the record reveals employees with less seniority were given positions which could have been of- fered to Caddell, Ledford, and Kiser. Finally, the Charging Party contends that when Respondent did offer jobs to Kiser and Caddell, Ledford not having been reemployed at all, it treated them only as new hires, with no seniority, which affected vacation benefits, and such was not full rein- statement. Respondent's position may be simply stated as being that since the jobs of these three strikers were abol- ished for legitimate business reasons, they consequently have no claim to reinstatement at all. I conclude that I must reject the oversimplified position of Respondent. As it is clear that economic strikers who have their jobs abolished do not thereby have their em- ployee striker status extinguished if they are qualified to perform other jobs which are available (Fire Alert Comn- pan'. supra68), I find the basic position of General Counsel and the Charging Party meritorious, that strikers' continu- ing right to claim certain positions is a fortiori applicable to unfair labor practice strikers. Moreover. I am persuaded. in view of the Board's prior holding that unfair labor practice strikers are not required to assume any risk of being re- placed during the strike, that their right of reinstatement is one with paramount claim to other positions held by any replacements (whether of strikers or nonstriking employees who terminate) hired since the start of the strike ftr which they are qualified as well as to those similar jobs subse- quently vacated by other unfair labor practice strikers who decline reinstatement or have resigned fromn same. Compare Colonial Press. Inc., sra, and Fire Alert (omepainv, supra. This appears to me to be no more than is included in the traditional approach of required dismissal of an, replace- ments upon unfair labor practice strikers' unconditional ap- plication to return and an inherent consideration in estab- lishing preferential hiring lists. Barnev'N Supercenter. Inc., 128 NI.RB 1325. 1330 (1960). enftd. 296 F.2d 91 (3d Cir. 1961). Thus in Barne ,' Spercenter, at 1331. the Board in similar circumstances remedially provided: Accordingly, we shall order the Respondent to offer to them and to the other unfair labor practice strikers who make a timely and unconditional application for reinstatement after the issuance of this Decision and Order, immediate and full reinstatement to their for- mer or substantially equivalent positions. without prejudice to their seniority or other rights and privi- leges, discharging, if necessary, any replacements in or- der to provide work for such strikers. If, after such dismissal or other disposition of such replacements. there are insufficient positions available for the strikers. the available positions shall be distributed among them, on the basis of seniority or such other nondis- criminative practice as mae have heretofore been ap- plied in a reduction in force in the Respondent's busi- ness. Thereafter, the employees for whom no employment is immediately available shall be placed on a preferential hiring list and recalled as soon as work becomes available on the basis of seniority or such other nondiscriminative manner as the Respon- dent ma 3 apply. 6e See also Brook Research & WAtp. Int. 202 NlRB 634, 636, 637 (19731 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, clearly Caddell and Kiser were not fully reinstated, since their seniority and entitlement to vacation benefits based thereon were not provided them in the job offers they did receive. It is additionally significant that it was not until August and September that Respondent of- fered Caddell any position, for example, in bakery ($3.70 to $4.20) or as a selector ($4), although this record makes it abundantly clear that there were various replacements holding positions for which he was qualified that would have been earlier available to him on a transfer basis had there been no unfair labor practice strike. There were sev- eral replacements hired as forklift drivers, selectors, receiv- ers, and stockers who occupied those positions in February 1977, at the time of the Union's request for reinstatement on behalf of Caddell. As the record reveals no other jobs were abolished, it is beyond the reasonable questioning that certain of such jobs, inter alia, were jobs which in the in- terim were held by replacements and for which Caddell on this record was qualified and as to which he was conse- quently denied timely reinstatement." In denying Caddell's seniority, with its effect on vacation benefits, it cannot be concluded that Caddell was fully reinstated with either of the job offers made in August or September. Otherwise, any additional issues of his placement and/or with regard to effect on mitigation of damages may await future compli- ance proceedings. Similar conclusions are even the more clearly observed warranted as to Kiser and Ledford, as there were positions in the salad kitchen itself for which these employees were qualified, yet Kiser was not reemployed until September 6, 1977, and Pamela Ledford has not been reemployed at all. '0 I conclude and find that neither Kiser or Ledford was rein- stated or timely reinstated upon the Union's request for their reinstatement. I further find that in its treatment of Kiser as a new employee, with consequent denial of senior- ity affecting vacation rights, that the Respondent has also failed to fully and properly reinstate Kiser. Of course, Re- spondent has wholly failed to effect timely reinstatement of Ledford. I shall provide an appropriate remedy for these additional violations of Section 8(a)(1) and (3) hereinafter. In view of these findings, I find it unnecessary to address all 69Since Caddell was not offered any position prior to August 1977 and since I have already found that openings were occasioned when (nonstriker) Dwight L. Barker, a receiver, resigned November 19; when Randy F. Avery, a selector, resigned effective December 17, 1976; and (as discussed infra) when a forklift driver position (Terry M. Hostetler) became open in January 1977, it is clear that Caddell was not timely reinstated. Nor was Caddell offered a full reinstatement in August or September 1977, when he was offered a position in bakery and then as a selector in grocery (both of which he subsequently declined), since he was not offered such positions even then with the senionty (11 years) to which he was entitled. 17 Records reveal that Debra Love was a production employee in the salad kitchen hired on November 29, thus after the strike began, and occupied that position as of September 27, 1977. Love thus occupied a position for which either Kiser or Ledford was qualified, as each had done all the other jobs in the salad kitchen. It is enough to note as well that Mina Stoeckel, an unfair labor practice stnker herself, who prior to the strike was classified as a stocker but regularly operated a forklift, was not reinstated to her former position but was reemployed as a production worker in the salad kitchen. Obviously, a replacement was occupying Stoeckel's former position. Had Stoeckel been properly reinstated, there would have been an additional posi- tion in the salad kitchen available. No prestrike (nonstriking) employee transferred out of the salad kitchen during the strike. On these facts, argu- ments advanced based on denied right of nondiscriminatory seniority dis- placement in a layoff would appear unnecessary to be considered. the various other contentions of General Counsel with re- gard to other transfer rights of I ese employees based on their seniority. Issues of reinstatement to substantially equivalent positions may remain a matter of compliance. Barney's Supercenter, Inc., supra at 1330, fn. 9.71 c. Respondent's contentions concerning striking employees who did not individually request reinstatement Respondent has contended that as none of the 20 em- ployees listed below made an individual written request for reinstatement, none were entitled to reinstatement. Thus, Respondent argues that as the Union did not make an ef- fective unconditional request on their behalf, it was other- wise required that a request for reinstatement be made by them individually. Employees in this group. none of whom (but Wallace B. Smith) were reemployed, are: Black, Randall A. Cloninger, David L. Deese. Mark A. Dorton, Steven A. Foster, Herbert F. Gainey. Paul T. Hiostetler, Terry M. Johns, Larry W. Johnson. Coley L. Jones. Robert B. Lineberger, Timothy Linker, Guice M. Lowery, David L. Lowery, John D. Parsons, Caster H. Ramseur, Reginald Smith, Wallace B. Tate, Manley S. Wright, Charles H. Yoxtheimer, John H. The short answer to the above contention of Respondent is. as I have earlier found, that the Union did make an uncon- ditional request for reinstatement on behalf of these em- ployees, on February 18, 1977, which was effective when received by Respondent on February 21, 1977. Timely rein- statement by Respondent was then required by February 26, 1977, and was not accomplished." The failure to do so was violative of Section 8(a)(1 ) and (3) of the Act. Respondent has raised several additional defenses with 71 In that connection, I do find specifically that Caddell had demonstrated on this record forklift operation ability and qualification in that position in the warehouse. In contrast, Kiser expressed only some familiarity with posi- tions of receiver, sanitation worker, and picker in the freezer department. The record as well warrants the conclusion that Kiser, as in the case of other employees, might have been entitled in other than unfair labor practice circumstances) to performance opportunities as a forklift operator (although a higher rate job) if that position was available. With regard to Ledford I further find that in addition to the above position, Ledford credibly claimed ability to perform position functions within the shipping and receiving de- partment. drug cage, and bakery and meat departments, which went unchal- lenged. These are all matters which can be more effectively handled at the compliance stage, but only if shown necessary, for example, if it can be shown that the available positions in the salad kitchen would not have been substantially equivalent positions of employment for Kiser and Ledford had they been timely reinstated and granted their full seniority rather than treated as new employees. 12 Unfair labor practice strikers who do not apply for reinstatement are not entitled thereto or to preferential hiring status until such application is made, unless it is to be concluded that such application would have been futile. Where the employer has commenced reinstatement of other strikers, such presumption will not lie. Barney's Supercenler, Inc., supra at 1330. fn. 8. 1 I would observe as to this group the same conclusion would apply with increasing firmness on the basis of the reiterated requests by the Union on February 25, and March I and 7. 1977. There clearly has not been timely reinstatement as to these employees. However, an additional defense is pre- sented as to Terry M. Hostetler and Herbert F Foster, discussed infra. 164 HARRIS-TEETER SUPER MARKETS, INC varying applicability to the individual strikers listed on Ap- pendix B. d. Respondent's c ontentions contcrning striking emiplove's who did not respond to Respondent's Mtarch () letter Respondent contends that certain striking employees who failed to respond to its March 10, 1977, letter are not entitled to reinstatement, as it reasonably appears that they did not really desire reinstatement or were not really ready for it. Seemingly, included in this group would be: Lynne P. Hastedt, Johnnie M. Gilbert, Billy J. Morrison. Edward M. Preslar, and Arthur L. Spears. Again. I have found heretofore that each was established as an unfair labor practice striker and that each of them was covered by the Union's unconditional application for reinstatement made on their behalf. 4 None of these em- ployees have been reemployed. Accordingly, Respondent's refusal to reinstate them was also violative of Section 8(a)(l) and (3), absent some other business justification ap- pearing to explain and justify its failure to do so. Essen- tially, Respondent's letter of March 10. 1977, upon which it seeks to rely, called for each striker to personally register with Respondent as to the striker's availability and job and shift preference. I note that it further advised the individual striker only that the Employer would thereafter make an appraisal. It did not offer the striker a job, let alone rein- statement.' It cannot prevail for Respondent, either as a valid offer of reinstatement or as engendering a requirement for some additional response from strikers before their right to timely reinstatement became established and effective. National Business Forms, 189 NLRB 964 (1971) Accord- ingly, I conclude and find that all of Respondent's argu- ments to the contrary, based on its March 10, 1977, letter. are without merit. Consequently, I conclude and find that Respondent has failed to reinstate unfair labor practice strikers Lynne P. Hastedt, Johnnie M. Gilbert, Billy J. Mor- rison, Edward M. Preslar, and Arthur L. Spears as of Feb- ruary 26, 1977, in violation of Section 8(a)(1) and (3) of the Act.7 e. Miscellaneous individual defenses: the matter of late alleged reinstatements There remains to consider Respondent's individual con- tentions as to employees Herbert F. Foster, Terry M. Hos- 7, All employees in this group had also made individual requests for rein- statement, which were received by Respondent on either February 21 or 28, 1977. 7' The letter, inter alia, provided: "Following that, we will make an ap- praisal of our work force requirements, including future prospects." 76 Similarly, for the above reasons. I find that Johnnie M. Gilbert's con- tinuation of his recently acquired work in Jacksonville. Florida. was wholly justified at the time, he not having received the required clear offer of rein- statement to his prior position which was existent at the time. Bennett's subsequent relation to Gilbert, on the occasion of Gilbert's later individual inquiry in May 1977, that Gilbert had lost his right to reinstatement in failing to reply to that letter is wholly erroneous as a legal conclusion of Gilbert's true status and ineffective to defeat Gilbert's lawful continuing nright to receive a proper offer of reinstatement As Gilbert was not sent a valid offer of reinstatement in the material period prior to his own renewed inquiry of Respondent for reinstatement, consideration of a valid offer sent to his last known address is not involved. Of course. the March 10. 1977. letter similarly did not constitute a valid offer of reinstatement to any other striker receiving it or create on their part any required response thereto which bore on reinstatement issues. tetler. Ronald J. Hudson, and James E. Terrell and its al- leged late reinstatements. Respondent contends that the named employees either never went on strike or have re- fused lawful offers of reinstatement. Respondent has con- tended that Foster had resigned prior to the strike and therefore was not an unfair labor practice striker, that strik- ers Terrell and Hudson were offered reinstatement and re- jected it, and that striker Terry Hostetler initially accepted reinstatement and then resigned. General Counsel and the Charging Party contracontend that each of the above em- ployees was an unfair labor practice striker and that none were offered full or timely reinstatement. The latter point will require some additional factual presentment in its dis- cussion. Herbert Foster. Essentially, Respondent contends that Foster resigned prior to the strike (quit on November 16) and thus was not a striking employee when the strike com- menced the next day. Respondent noted also that no indi- vidual request for reinstatement was ever received from Foster. However, called on rebuttal by General Counsel, Foster testified, and I find credibly so, that he had not quit. To the contrary. Foster testified he had worked on Novem- ber 17 in his job (selector) and that when the strike started. he had walked out with the other strikers at 3 p.m. and that he had engaged in picketing thereafter until he "started get- ting hungry." at which time he was forced to look elsewhere for work. Foster testified he finally was able to secure other employment in February or March 1977 that an employer for whom he had worked prior to commencing work with Respondent in September 1976. credit Foster. I note addi- tionally that Respondent offered no counterevidence to Foster's direct testimony that he was working November 17, although it is reasonable to presume that Respondent's emplotyment records on Foster would have readily estab- lished the contrary had such actually been the case. It is apparent and I find that Foster did not quit on November 16 but rather participated in the strike commencing No- vember 17. I further find that Foster occupied unfair labor practice status on February 21. when Respondent received the Union's unconditional request for reinstatement on be- half of him and all other unfair labor practice strikers. It was thus unnecessary for Foster to make a personal request for immediate reinstatement, as the Union had already ef- fectively done so for him. As Foster has not ever been of- fered reemployment, it is equally apparent that Respondent has failed to timely reinstate him, in violation of Section 8(a)(l) and (3) of the Act. I so find. Tero Hostetler. Essentially, Respondent's evidence was to the effect that reinstatement was not due to Hostetler because he had earlier resigned, on January 3, 1977.7' Ben- nett concedes that Hostetler went out on strike on Novem- ber 17. However, Bennett, testifying from Hostetler's file, related that Hostetler had called Respondent on January 3, 1977, and resigned. Respondent also notes Hostetler made no individual written request for reinstatement. Bennett tes- tified that he sent Hostetler a letter (dated January 4) con- firming that Hostetler had reported to the Company that he " In its brief Respondent apparently Inadvertently asserts that Hostetler initially accepted reinstatement and then resigned. 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had resigned.7 " Bennett related that Hostetler did not re- spond to the letter in writing. However, Bennett acknowl- edged that on March 2 he had received a call from Hostet- ler, who told Bennett that he was then ready to go to work. Bennett reminded Hostetler of his prior resignation and the confirming letter sent to him. Bennett candidly related that Hostetler at that time asserted he had not resigned and had not received the letter. General Counsel and the Charging Party apparently rely on that frank report and the claimed failure of Mitchell (called on other matters) to testify as to his conversation with Hostetler which Hostetler's file re- flected and which Bennett testified Mitchell had reported to Bennett.79 However, if Bennett is not shown corroborated by Mitchell or secretary Beverly Meggs, Bennett did testify as to his own action following reports of the resignation, and he did present documentary sustantiation. In contrast, General Counsel did not establish by any direct testimony that Hostetler did not resign in January 1977, as Hostetler was not called as a witness by the General Counsel, nor was his failure to testify satisfactorily explained in the record. Essentially, the General Counsel and the Charging Party appear to rely on Bennett's testimony that during the con- versation of March 2, it was reported that Hostetler seemed to feel he had not resigned and denied receiving the letter. Although I find General Counsel had initially established that Hlostetler was an unfair labor practice striker in No- vember and, of course, that the Union had requested rein- statement on behalf of all strikers in February, Bennett's testimony that, as a consequence of the reported resigna- tion, he had terminated Hostetler and confirmed it in writ- ing constitutes sufficient showing for inference that Hostet- ler had in fact resigned, particularly where employee Hostetler has not testified to the contrary. The case was not heard on any other basis. If I have any indication to the contrary, it lies not in Hostetler's nonreceipt of the letter but in a question of the voluntary nature of the resignation. Thus, Bennett's testi- mony that he sent the letter is credible, and a presumption lies therefrom that such a letter placed in the mail was de- livered in due course to the addressee, particularly where Bennett has also testified credibly that the letter was not returned. Such direct evidence warrants inference that Hos- tetler did receive the letter and that Hostetler's reported remark to the contrary was factually inaccurate. I so find. If I am given pause in the matter at all, it stems from a refer- ence in a memo from Respondent's file on Hostetler (unelu- cidated by any of' the parties) which provides: 7 The letter was not sent certified mail. The letter specifically related: Bill Mitchell has told me that you called him yesterday and voluntar- ily resigned your position with Harris-Teeter. I am enclosing your copy of Employment Security Form 502. Please let me know if' you have any questions. Bennett also testified that the effect of the issuance of the 502 form was that Hostetler would no longer he barred as a striker from receiving unemploy- ment compensation on the account of involvement in a labor dispute. 79 The ('harging Party's additional argument that there was no motive or reason shown for Hostetler to resign in January fails to take into account Bennett's additional testimony that an effect of' Hostetler's resigning was issuance to him of the form 502, with a lifting of disqualification before the North Carolina Employment Security Commission due to his involvement in a labor dispute. For reasons not clear of record, it may have some such effect. Compare Nicholson's situation. Beverly (Meggs) transferred him (Hostetler) to Bill Mitchell and he told Bill Mitchell that since we had no jobs available for him, he would resign rather than re- main on strike. The memo was written by Bennett and may constitute an admission against interest. In this instance, I view it as in nature res gestae evidence. The question rises whether it is sufficient to establish that the resignation was involuntary and only a result of a prior wrongfully denied individual request by unfair labor practice striker (Hostetler) for an immediate return to his prior position or whether Hostetler voluntarily made such statement on his own, desiring at the time to resign to be able to approach the commission with a claim for unemployment benefits. The issue appears close to me. However, to conclude the former, it seems to me, would necessarily rest on drawing an impermissible double inference. It was General Counsel's ultimate burden to es- tablish that Hostetler was an unfair labor practice striker at the time of requested reinstatement. I am persuaded in this instance he failed in such burden. Accordingly, I shall rec- ommend that the complaint allegation as to Terry Hostetler be dismissed. James Terrell. At the time of the strike Terrell was a selector, with the hourly rate of pay being $4.80 per hour. Respondent's position is based on its evidence that Terrell was offered a position in building and grounds on March 7, 1977, at $3.90 per hour and that Terrell had declined that offer. It is readily apparent that the aforesaid reemployment offer was neither timely nor an offer to Terrell of full rein- statement to his former or a substantially equivalent posi- tion. Terrell's job had not been abolished. I thus conclude and find that Respondent has failed to timely reinstate striker James E. Terrell. in violation of Section 8(a)( ) and (3) of the Act. Unresolved Contended Late Reinstatements Respondent also offered to introduce evidence as to offers of reinstatement made to employees after March 20, 1977. General Counsel objected, contending that whether other strikers were eventually offered reinstatement or substan- tially equivalent positions of employment after March 20 was unnecessary to be reached in resolution of any of the issues presented by the instant proceeding and was strictly a compliance matter. With subsequent agreement of all par- ties thereon, in order to limit the issues to those necessary to be presently resolved, I ruled that the efficacy of Respon- dent's contended offers of reinstatement made to any em- ployee after March 20 could be effectively left to any re- quired future compliance proceedings. Particularly is this so with the Respondent's record acknowledgement that the Union's requests were on February 18 and 25 and March and 7; that the last individual written striker request for reinstatement was received on February 28, 1977; that the earliest offer (reinstatement or otherwise) to any striker in this group was on March 29, 1977; and that prior to offers made to each striker below, the strikers' former positions were held at the time by replacements. Employees included in this group would appear to be: 166 HARRIS-TEETER SUPER MARKETS, INC. Alfred Brown James Knuckles Clayton Burris James Pender Roger Burris Sylvester Pride Michael Hawley Eugene Puckett Terry Henderson Janet (Quinn) Donald Floyd Richard Rapp Newton Lawson Jerry W. Parker Thomas Icenhour Mark White It is clear that none of the above employees were timely reinstated and that the refusal to timely reinstate them was in violation of Section 8(a)(1 ) and (3) of the Act. Ronald Hudson. Prior to the strike Hudson worked as a day grocery selector. Hudson's hours were then 6 or 7 a.m. to 3:30 or 4 p.m. Hudson worked on a straight 5-day-week basis. In addition to the Union's request on his behalf on February 18, 1977, Hudson made an individual uncondi- tional offer to return to work. Bennett testified that on March 9, 1977, Hudson was offered the position of night meat selector at his former rate, with a 15-cent night differ- ential. This position called for work hours of 4:30 p.m. to 12 or I a.m.; did not involve a straight 5-day workweek; and. unlike the day grocery selector position, did involve work- ing 3 out of 4 Sundays and working in a cooler at 40°F. Bennett related that Hudson initially accepted this position and was given a report time for the next day, but later called Mitchell back on March 9 and declined the position offered. Mitchell essentially corroborated Bennett, testify- ing to having had two conversations with Hudson. Mitchell conceded he had not offered Hudson any day selector posi- tion. However, Mitchell explained that Hudson had in- formed him in their first conversation that a parent of Hud- son's employed elsewhere (not by Respondent) had been transferred to a day shift and that Hudson could not ork days, as he had to watch his younger brother and sister. Thus, Mitchell testified that the offer of the night meat se- lector's position was made in an effort to accommodate Hudson, and Mitchell confirmed that Hudson had origi- nally accepted this position. Mitchell also confirmed that later that same day Hudson had called Mitchell back and notified him that Hudson could not accept the offered posi- tion, without stating a reason. A confirming letter as to his termination (resignation) was sent by certified mail and re- ceived by Hudson without any reply. Hudson did not tes- tify, as General Counsel could not locate him. It will be recalled that in these matters it was General Counsel's burden to establish that the named employee was an unfair labor practice striker, that an unconditional re- quest for reinstatement had been made on his behalf or by him individually, and that Respondent had failed to timely reinstate him. Unlike the case with Hostetler, the General Counsel has met this burden as to Hudson. It seems to me that any issue of late offer of reinstatement or of substan- tially equivalent position or of mitigation of damages as to Hudson may await compliance proceedings, as with the above 16 employees. I so conclude. CONCtIUSIONS OF LAW 1. Harris-Teeter Super Markets, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 525, Meat, Food and Allied Workers Union, Amalgamated Meat Cutters & Butcher Workmen of North America. AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully interrogating employees as to who and how many employees would vote for and against the Union in an upcoming election; by engaging in conduct tending to create the impression in employees that union activities of employees were regularly being kept under surveillance by coercively informing employees that individual employee union activists in different departments had been identified; by threatening that the same employees would be among the first to be discharged by Respondent; b threatening to make it as hard as possible on employees who engage in union activity; by more strictly enforcing its tardiness rule in writing up employees for any tardiness and in a manner contrary to practice existing before the election of August 5. 1976, because the employees had continued their union ac- tivity and because they had designated the Union as their representative; by other threats and various other acts of interference, restraint, and coercion directed at employee engagement in protected strike activity, through unlawful interrogations of employees as to their strike sympathies and intentions, by attempts to identify principal strike pro- ponents, and by expressions indicating intent to suppress their activities; by threats to employees that they would he discharged for striking; and by use of promised raise in- creases to influence working employees to refrain from join- ing employees on strike. Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)( 1) and Section 2(6) and (7) of the Act. 4. By discharging William Huntley, its top driver, on September 29, 1976, because of his union activities and membership on the Union's negotiating committee, Re- spondent has engaged in. and is engaging in. unfair labor practices within the meaning of Section 8(a( ) and (3) and Section 2(6) and (7) of the Act. 5. The strike which commenced on November 17. 1976. was from its very inception and throughout its duration an unfair labor practice strike. 6. By improperly treating striking employees Kirkpatrick Carr and Joseph Nicholson as resigned employees. Respon- dent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)( I) and (3) and Sec- tion 2(6) and (7) of the Act. 7. By failing to reinstate, or timely reinstate, each of the unfair labor practice strikers listed on "Appendix B" hereto, Respondent has engaged in, and is engaging in. un- fair labor practices within the meaning of Section 8(a)( I) and (3) and Section 2(6) and (7) of the Act. 8. Except as heretofore found, Respondent has not en- gaged in any other unfair labor practices within the mean- ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. THt RFMF)Y Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8a)(1) and (3) of the Act. I find it necessary to order Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I have found that Respondent has discharged William Huntley in violation of the Act, I shall order Respondent to offer him immediate and full reinstatement to his former job, or, if such job no longer exists, to a substantially equiv- alent position, without prejudice to his seniority or other rights and privileges. Although I have found that Huntley participated in union activity in support of the strike, in keeping with the Board's past precedent in such matters, as Huntley was discharged discriminatorily prior to the com- mencement of the strike and not offered reinstatement, I shall order that Respondent make Huntley whole for any loss of earnings he may have suffered by reason of Respon- dent's unlawful discharge of Huntley by payment to him of a sum of money equal to that which he normally would have earned as wages, from the date of their discharge of him on September 29. 1976, to the date of an offer of rein- statement. Donna Lee Sportswear, 174 NLRB 318. fn. 5 (1969). Backpay is to be computed on a quarterly basis, with interest thereon computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).s As to em- ployees Jimmy Martin, Jerome Little, James Wright, and Earl Nixon, the appropriate make-whole remedy has been previously provided in Harris-Teeter Super Markets. Inc., 231 NLRB 1058 (1977) which governs same. To the extent the participation of these previously found discriminatees in the unfair labor practice strike may nonetheless properly be deemed an issue before me, I would note the record has revealed that Respondent had strategically offered them re- instatement on November 18 and that they thereafter elected to participate in the unfair labor practice strike with their coemployees. In that respect, I would view the addi- tional holding of Donna Lee Sportswear, supra--that an oft fer of reinstatement, when made, effectively, tolls backpay for an employee determined to have been discriminated against prior to the commencement of a strike-as appli- cable thereto and binding on me and as effective until un- conditional request for reinstatement was made by them on February 25, at which time backpay would properly be deemed to run again until their reinstatement was effected.' Having also found that Respondent has violated Section 8(a)(3) and (I) of the Act by its refusal to reinstate, or rein- state in a timely fashion, the employees listed on Appendix B who I have found had been engaged in an unfair labor practice strike against Respondent, and on whose behalf the Union had made effective unconditional request or applica- tion for reinstatement, it will be recommended that Respon- dent be required to offer the unfair labor practice strikers immediate and full reinstatement to their former jobs or. if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired as replacements on and after November 17, 1976. 1L after such dismissals, there are insufficient positions remaining for any unreinstated striking employees who desire rein- ' 8See, generally, Isis Plumbing and Heating Co., 138 NLRB 716 1962). 1i Although backpay for these employees is governed by the prior proceed- ing, it may be appropriately noted here that the parties have stipulated in this proceeding that Jerome Little was reinstated thereafter on October 10, 1977; Jimmy Martin, on October 3, 1977; and Earl Nixon and James Wright. on September 13, 1977. statement, the available positions shall be distributed among them, without discrimination because of their union membership, activities, or participation in the strike, in ac- cordance with seniority or with other nondiscriminative practices as theretofore have been applied by the Company in the conduct of its business at its Charlotte, North Caro- lina, warehouse. Those strikers for whom no employment is immediately available after such distribution shall be placed on a preferential hiring list, with priority determined among them by seniority or by other nondiscriminative practices as theretofore have been applied by Respondent in the conduct of its business at its Charlotte, North Caro- lina, warehouse, and, thereafter, in accordance with such system, they shall be offered reinstatement as positions be- come available and before other persons are hired for such work. 1. W. Corporation, 239 NLRB 478 (1978). Respon- dent shall be further required to make each said employee whole for any loss of earnings resulting from Respondent's failure to promptly and timely offer each of said employees reinstatement to his or her former job or, in the case of Thomas Caddell, Margie Kiser, and Pamela Ledford, recall to substantially equivalent work with full rights and privi- leges. As to all such unfair labor practice strikers (excepting William Huntley and the four discriminatees determined in the earlier proceeding), the backpay period shall commence February 27, 1977,82 and continue thereafter until such offer of full reinstatement was made, or is made, if not already accomplished. Backpay for each of these employees during the above period shall be otherwise computed in accord with that provided for Huntley. The order of reinstatement shall insure that such employees are fully reinstated without loss of any benefits, seniority or otherwise, previously en- joyed The Charging Party has urged that in the light of con- tinuing flagrant violations of the Act, the Company should also be ordered to terminate its unlawful enforcement of rules regarding attendance and lateness; to mail copies of the cease-and-desist order herein provided to each of its employees: to read the cease-and-desist order issued herein 18 To be sure, the Union's February 25 letter reasonably makes reference to intended continuation of strike actiity because of Respondent's refusal to reinstate striking employees. However. as I understand the seemingly appli- cable Board precedent in this area. after the Union has made an uncondi- tional application for reinstatement on behalf of all unfair labor practice strikers, they individually are entitled to immediate reinstatement. A contin- ued absence from work on the part of individual strikers cannot then be concluded as voluntary on their part unless offers of full reinstatement are first made and declined to continue the strike. Souhiestern Pipe, Inc., 179 NLRB 364, 365 (1969); valional Business Forms, 189 NLRB 964 (1971). If I am in error in this regard it would seem to me the backpay period would commence no later than March I, 1977. when the Union wired Respondent, reiterating its earlier unconditional application on behalf of all the unfair labor practice strikers, thus advising Respondent again of an unconditional calling off of the strike, and also announcing (what I have heretofore deemed unnecessary) abandonment of even its picketing, at the request of the Em- ployer. in order to effect the prompt reinstatement of strikers, s3 Nothing in this recommended Order however, is to be construed as requinng Respondent to rescind an) wages or benefits heretofore granted to employees. To the extent that Respondent has already reinstated an, of the above employees. Respondent will he required in the compliance stage of this proceeding to take onl such steps as may be necessary to fully comply with the remedial Order. Respondent's right to establish factors in mitigation of damages other than on issues raised and resolved in this proceeding are reserved for compliance, as agreed b the parties. 168 HARRIS-TEETER SUPER MARKETS, INC. at a meeting of all employees in the presence of a duly authorized agent of the Union; to reimburse and pay to the Union all fees, expenses, and costs in connection with this proceeding; and to provide such other relief as is found fair and proper. I shall recommend that Respondent be ordered to cease and desist from more strictly enforcing its tardiness and doctor certificate rules, as I have found herein has oc- curred. I shall further recommend that an appropriate no- tice be posted as remedial action, which I concluded is ade- quate notice to employees under the total circumstances of this case. However, since the discriminatory discharge of William Huntley and the refusal to reinstate, or timely rein- state, unfair labor practice strikers and other discriminatory conduct evidenced herein are pervasive and go "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941)), 1 shall recommend that the Order to be issued be such as to safeguard employees against Re- spondent's infringement in any manner in the future of the rights vouchsafed to employees by Section 7 of the Act. R & R Screens Engraving, Inc., 151 NLRB 1579, 1587 (1965). It will be further recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data nec- essary to aid in analyzing and ascertaining whatever back- pay may be due under this recommended Order. Although the unfair labor practices found herein are concluded to have been pervasive and serious. I conclude that the reme- dial provisions herein being provided are adequate to effec- tuate the purposes of the Act and decline to recommend that Respondent be ordered to read the cease-and-desist Order at a meeting of all employees and decline as well, at this point, to recommend an order of reimbursement and payment to the Union of related fees in connection with this proceeding to date. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER84 The Respondent, Harris-Teeter Super Markets, Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union in- terests, sympathies, strike intentions, or other union activi- ties in a manner constituting interference, restraint, or coer- cion of employees engaged in the exercise of rights under Section 7 of the Act. (b) Creating the impression in employees that their union activities are regularly being kept under surveillance by telling employees that individual employee union activ- ists in different departments have been identified or by seeking to determine from employees the names of leading strike proponents. (c) Enforcing more strictly, in an unlawful manner. tar- u 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 pro ilded 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. diness and doctor certificate rules contrary to practices thereon existing prior to August 5. 1976, as determined in this proceeding. (d) Promising pay increases to employees to influence them to refrain from joining employees on strike. (e) Threatening employees with discharge for engaging in protected activity in support of the Union, including strike activity, or threatening to make it as hard as possible on employees who have supported the Union, or threaten- ing that identified leading union adherents will be the first to be discharged. (f) Discharging or otherwise discriminating against em- ployees, and refusing to reinstate employees or to timelb reinstate unfair labor practice strikers upon their uncondi- tional offer to return to work, in order to discourage em- ployees from being or becoming union members or support- ing the Union or engaging in concerted activities. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action, designed to ef- fectuate the policies of the Act: (a) Offer to William Huntley immediate and full rein- statement to his former position in accordance with the rec- ommendation set forth in the section of this Decision enti- tled "The Remedy." (b) Offer to the employees listed on Appendix B [Appen- dix B omitted from publication] an immediate and full rein- statement (to the extent it has not already done so) to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay or other benefits suffered (com- mencing February 27, 1977) as a result of the refusal to timely reinstate such employees upon their unconditional offer to return to work from an unfair labor practice strike engaged in by such employees. Such backpay and other benefits is to be computed in accordance with the manner set forth in the section of this Decision entitled "The Rem- edy." (c) Preserve and. upon request. make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records. timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at Respondent's warehouse at Charlotte. North Carolina. copies of the attached notice marked "Appendix A."' Copies of said notice, on forms provided by the Re- gional Director for Region II11, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent 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- g5 In the event that this Order is enforced by a Judgment of a ULited States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board" 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region II11. in writ- ing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dis- missed. 170