Allied Mechanical Services

32 320 NLRB No. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In fn. 2 of his decision, the judge inadvertently omitted the cita- tion for New Horizons for the Retarded, 283 NLRB 1173 (1987). 2 The clarification, signed by the Respondent’s president, reads, in pertinent part: POLICY ON OVERTIME PAY As stated in our Employee Handbook our policy on overtime pay is as follows: ‘‘Overtime is authorized work performed in excess of forty (40) hours per work week at time and one half (1 1/2) the regular straight time hourly rate.’’ The only exception to this policy is as follows: When an owner agrees to reimburse the company for all over- time and the company receives this reimbursement, we in turn will pass this on to the employee. Employees will, however, be penalized this overtime pay until they reach 40 hours if they ‘‘play the game’’ of missing work during the week only to make it up on the weekend with overtime. This is consid- ered unfair to both the company and to the owner we are working for. If the company, for whatever reason, has to authorize overtime and it is not reimbursed by the owner the rule as stated in the policy manual will be followed. 3 We find no merit in the Respondent’s contention that the October 16 and June 24 strikers did not have employee status because they were paid union organizers or ‘‘salts.’’ See NLRB v. Town & Coun- try Electric, docket No. 94-947 (Nov. 28, 1995) (job applicants who are also paid union organizers are nevertheless employees within the meaning of Sec. 2(3) of the Act and are entitled to its protection). Member Truesdale agrees with the judge that the employees’ work stoppages constituted protected activity within the meaning of Sec. 7 of the Act. Cf. DeMuth Electric, 316 NLRB 935 (1995) (an em- ployee who walked off the job without explanation to take a better paying job elsewhere did not engage in a protected strike but rather quit his employment). Allied Mechanical Services, Inc. and Plumbers and Pipe Fitters Local 337, United Association of Journeymen and Apprentices of the Pipe Fit- ting Industry of the United States and Canada, AFL–CIO. Cases 7–CA–34274, 7–CA–34798, and 7–CA–34967 December 18, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALE On July 19, 1994, Administrative Law Judge Rich- ard H. Beddow Jr. issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief in response to the cross-exceptions. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief in response to the excep- tions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, except as modified below, and to adopt the recommended Order as modified.1 1. The judge found that the Respondent did not vio- late Section 8(a)(5) and (1) of the Act by clarifying its existing company policy on overtime pay for employ- ees. We agree. In adopting his finding, we note the following undis- puted facts. For several years, the Respondent has maintained a formal, written overtime policy in its em- ployee handbook whereby an employee may receive overtime pay of time and one half after completion of 40 hours per week. In mid-1991 or early 1992, the Re- spondent began paying an employee double time for Sunday work on ‘‘reimbursable’’ jobs whenever the customer had agreed in advance to reimburse the Re- spondent for certain weekend overtime work. In mid- 1993, some employees began abusing the system by taking time off during their regular workweek only to make up their hours by receiving double pay for Sun- day reimbursable work. Recognizing that this abuse was unfair to its customer, the Respondent issued a written clarification of its overtime pay policy. The clarification indicates that an employee must complete the requisite 40 hours before overtime pay (including Sunday double pay on reimbursable jobs) will be paid.2 Here, the Sunday double pay practice on reimburs- able jobs appears to have emanated from the handbook overtime policy. The clarification, which issued only after employee abuse was discovered, is fully consist- ent with the Respondent’s overall overtime pay scheme. Consequently, we agree with the judge that the Respondent’s August 1993 notice to employees that they had to meet the basic 40-hour workweek re- quirement set forth in the employee handbook was fully encompassed within its existing overtime policy. We, therefore, find that the Respondent was not obli- gated to bargain with the Union before it issued this clarification. 2. The judge found that on October 16, 1992, em- ployees Ted Fuller, Harold Hill, Grant Maichele, Gil Ragsdale, Mac Rognow, and Steve Titus participated in an economic strike against the Respondent. He also found that on June 24, 1993, employees Jim Bronkhorst, Ken Falk, Marty Preston, and Brian Rowden participated in an economic strike against the Respondent. The judge concluded that these striking employees were engaged in protected concerted activ- ity under Section 7 of the Act.3 The judge also found that the above strikers made unconditional offers to return to work after the October 16 and June 24 strikes ended on November 10, 1992, and July 6, 1993, respectively. He further found that the Respondent subsequently refused to reinstate the strikers, pursuant to their offers, when jobs became available on or after June 14, 1993, but it instead hired new employees which was contrary to these strikers’ recall rights set forth in Laidlaw Corp., 171 NLRB 33 ALLIED MECHANICAL SERVICES 4 There is no indication from the record when the Union first dis- covered the alleged mistake. 5 This is in contrast to the situation after an earlier strike by 12 employees on July 20, 1992. There, the Union initially made an un- conditional offer to return to work, on August 4, 1992, on behalf of 10 of the 12 employees. On September 8, 1992, the Union cor- rected this error by making an unconditional offer to return on be- half of the two other employees who had earlier struck. 1366 (1968). The judge concluded that the Respondent thereby violated Section 8(a)(1) and (3) of the Act by failing and refusing to reinstate these strikers as jobs became available on and after June 14, 1993. The Respondent argues that the October 16 and June 24 strikes do not constitute protected concerted activity by employees and that it had no obligation to reinstate any striker after the strikes ended. We adopt the judge’s findings and conclusions, which are summa- rized above, except that we agree with the Respondent that it did not unlawfully refuse to reinstate Gil Ragsdale. As more fully discussed below, the record evidence shows that an unconditional offer to return to work on behalf of Ragsdale was never submitted or ef- fectively communicated to the Respondent, and there- fore no reinstatement obligation involving Ragsdale ever arose. Six employees, including Ragsdale, participated in the October 16 strike which was sponsored and sup- ported by the Union. The other unit employees contin- ued to work unimpeded by the strike. By letter dated October 16, 1992, the Union informed the Respondent that Fuller, Hill, Maichele, Ragsdale, Roggow, and Titus were on strike because of the Respondent’s pur- ported unfair labor practices. The strike continued until November 10, 1992. By letter dated November 10, 1992, the Union made an unconditional offer to return to work on behalf of Fuller, Hill, Maichele, Rognow, and Titus. This letter did not mention Ragsdale’s name and identified only the above five employees as having ended their ‘‘un- fair labor practice strike’’ against the Respondent. The judge concluded without explanation that Ragsdale’s name was omitted from the letter ‘‘due to an oversight by the Union.’’4 But the Union never notified the Re- spondent that Ragsdale’s name had been omitted by mistake and that he, like the other October 16 strikers, wanted to return to work.5 Ragsdale testified that on November 17, 1992, he went with the other strikers to meet with John Huizenga, the Respondent’s president. He testified that before that meeting occurred, the strikers first met with Vince Cristiano, the Union’s business agent, for coffee. Ragsdale testified that on that day he saw and read a copy of the November 10 letter before it was later pre- sented to Huizenga. There is no indication from the record that Ragsdale ever objected, then or at any time thereafter, to the fact that the letter had omitted his name from the list of returning strikers who wanted to return to work. The record also provides no expla- nation why Ragsdale or Cristiano took no action to add Ragsdale’s name to the list of strikers set forth in the letter as the Union had earlier done, as detailed at foot- note 4, supra. During the meeting with Huizenga later on Novem- ber 17, 1992, striker Hill served as the employees’ spokesperson and gave a copy of the November 10 let- ter to Huizenga. Ragsdale testified that Hill ‘‘said something in the way of saying we was there to go back to work’’ and that Huizenga replied that ‘‘he didn’t have no work for us.’’ As far as the record shows, this exchange between Hill and Huizenga was the full extent of this meeting. Ragsdale did not speak up, but was standing in a position to see Huizenga. Ragsdale, however, testified that he did not know whether Huizenga could see him too. Whether Huizenga was actually aware that Ragsdale was among the gathered strikers is not known. We find that Ragsdale did not effectively commu- nicate a valid unconditional offer to return to work based on the fact that he was present with the other strikers during the November 17 encounter with Huizenga when Hill announced that ‘‘we was there to go back to work.’’ This fact alone fails to take into ac- count all the circumstances surrounding the relevant events. In this regard, the Union’s November 10 letter spec- ified only five returning strikers, and this same written message was given the Respondent on two separate oc- casions. Before the second time, Ragsdale had even read the November 10 letter, but it was never corrected or supplemented to include his name before it was handed to Huizenga on November 17. Thus, the clear written message submitted to the Respondent from the Union and the strikers themselves was that Ragsdale was not among the strikers who were making an un- conditional offer to return to work on November 17. Furthermore, we find that the Respondent had no reason to doubt the accuracy or completeness of the striker list in the November 10 letter. As revealed by the record, throughout this period the Union had adopt- ed a bargaining strategy in which it encouraged strik- ing by some unit employees while allowing other unit employees to continue to work unimpeded during the strike. In this context, then, the omission of Ragsdale’s name from the November 10 letter probably would not have raised any suspicion on the part of the Respond- ent because the omission could have just as easily meant that Ragsdale remained on strike with the Union’s blessings. Nor do we consider Hill’s comment to Huizenga on November 17 to be sufficient notice of an uncondi- tional offer to return on behalf of Ragsdale. First, Hill’s statement was not made in isolation but in the context of the November 10 letter provided to 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Our dissenting colleague takes the position that Ragsdale, through employee Hill, made a sufficient offer to return to work. However, the dissent ignores the fact that Ragsdale admittedly read the November 10 letter, which was resubmitted on November 17, but he never complained nor questioned the omission of his name from the striker list. Instead, by doing nothing and remaining silent, both before and during Hill’s presentation of the striker list to Huizenga, Ragsdale himself created whatever confusion now exists over his status. In our view, the Respondent could not have antici- pated such confusion given the Union’s clear written message that only five strikers wanted to return. Huizenga during the same meeting. Thus, the ‘‘we’’ referred to by Hill in his statement could have reason- ably been interpreted by Huizenga as only encompass- ing the five strikers named in the November 10 letter. This interpretation is most likely for several reasons. First, at no time during the November 17 meeting did the strikers indicate that the ‘‘we’’ was broader than the five strikers named in the November 10 letter. Sec- ond, Ragsdale’s name was never mentioned and no ex- planation was provided to Huizenga as to why the No- vember 10 letter did not include Ragsdale’s name. Fi- nally, Ragsdale himself was not even sure that Huizenga was even aware that he was with the other strikers that day. Ragsdale never made his presence known by speaking up during that meeting, and he did not know whether Huizenga could even see him.6 Finally, we find that the circumstances of this case are different from the situation presented in Harowe Servo Controls, 250 NLRB 958 (1980), where the Board found that the union had made an effective un- conditional offer on behalf of all striking employees to return to work. In that case, the union representative, like Hill in the instant case, orally told company offi- cials that the strikers wanted to return to work. But, unlike Hill, the union representative in Harowe, supra, never gave the company officials a written notice indi- vidually naming the returning strikers. Rather, the union representative in Harowe took the opposite ap- proach by clarifying to the company that the union was making an unconditional offer to return to work for every striker as far as he knew. Then, in his official notice to the company sent the following day, the union representative again confirmed that ‘‘the strikers . . . have elected to end the strike and all are request- ing to be put back to work . . . .’’ (Emphasis added.) Harowe, supra at 1061. Thus, both the oral and written communication from the union to management in Harowe, unlike the present situation, conveyed the same clear message that all strikers wanted to return to work unconditionally. Therefore, in light of all the circumstances, we con- clude that the Respondent did not violate Section 8(a)(3) and (1) by refusing to reinstate Ragsdale. Ac- cordingly, we shall reverse the judge, dismiss this por- tion of the complaint, and exclude his name from para- graph 2(a) of the Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Allied Mechanical Services, Inc., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). ‘‘(a) Offer Jim Bronkhorst, Ken Falk, Ted Fuller, Harold Hill, Grant Maichele, Marty Preston, Mac Rognow, Brian Rowden, and Steve Titus 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 any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suf- fered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. MEMBER BROWNING, dissenting in part. I agree with my colleagues that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate certain former strikers when jobs became available on and after June 14, 1993. Contrary to my colleagues, however, I would adopt the adminis- trative law judge’s finding that the Respondent also unlawfully refused to reinstate employee Gil Ragsdale, and would reverse the judge’s finding that the Re- spondent did not violate Section 8(a)(5) and (1) of the Act by changing its premium pay policy without first bargaining with the Union. The Failure to Reinstate Ragsdale It is not disputed that six employees including Ragsdale attended a November 17, 1992 meeting with John Huizenga, the Respondent’s president, at which employee Harold Hill served as spokesman and orally made a collective, unconditional offer to return to work. Huizenga responded that he had no work for the former strikers, and made no subsequent offer of rein- statement to any of them. My colleagues find that Ragsdale’s presence at this meeting, and Hill’s collective offer to return, did not effectively communicate Ragsdale’s unconditional offer to return to work. Specifically, my colleagues contend that the communicative effect of the Novem- ber 17 oral offer to return—as it pertained to Ragsdale—was compromised because Ragsdale’s name was inadvertently omitted from the Union’s November 10, 1992 letter, a copy of which was presented to Huizenga at the November 17 meeting, which made an unconditional offer to return on behalf of the striking employees. I disagree. 35 ALLIED MECHANICAL SERVICES 1 I find irrelevant the fact that Ragsdale read the Union’s Novem- ber 10 letter but did not object to the omission of his name on the letter. Because Hill made a clear, oral offer to return on behalf of all the employees including Ragsdale, there was no need for Ragsdale to mention the omission. I find that Ragsdale, through employee Hill, made a sufficient offer to return to work at the November 17 meeting. Although the November 10 letter may con- stitute additional proof of an offer to return on behalf of the other five employees, the omission of Ragsdale’s name on that letter does not nullify Hill’s oral offer to return on behalf of Ragsdale. At most, the only conclusion to be drawn under these circumstances was that the omission of Ragsdale’s name was an inad- vertent, technical error. To the extent that the letter, viewed alone, caused any confusion concerning Ragsdale, that confusion was clarified by the oral offer to return.1 I find unpersuasive my colleagues’ contention that their finding is supported by Ragsdale’s testimony that, at the November 17 meeting with Huizenga, Ragsdale stood in a position to see Huizenga but did not know whether Huizenga could see him too. Such testimony does not establish that Huizenga was not aware of Ragsdale’s presence at the meeting, or that Huizenga perceived the offer to return as only on behalf of the five employees other than Ragsdale. Indeed, there is no testimony that Huizenga did not see Ragsdale at the meeting, or that the Respondent understood Hill to be speaking only on behalf of the five employees other than Ragsdale. In finding that the inadvertent omission of Ragsdale’s name from the November 10 letter effec- tively nullified the November 17 oral offer on behalf of Ragsdale, my colleagues have, in essence, found that there is ambiguity concerning the subsequent oral offer to return, and that such ambiguity should be re- solved in favor of the Respondent. Assuming arguendo the inadvertent omission caused any confusion that was not resolved by the oral offer to return, that confu- sion would have been clarified had the Respondent acted lawfully with respect to the other five discriminatees. Indeed, under lawful circumstances, the Respondent would have offered reinstatement to the other five discriminatees when work became available, and any legitimate, good-faith confusion by the Re- spondent concerning Ragsdale would have become ap- parent and properly dealt with by the parties. Thus, to the extent that there was any confusion over Ragsdale’s status, the Respondent, by its unlawful con- duct, prevented that confusion from being resolved. By resolving such uncertainty against Ragsdale, my col- leagues have allowed the Respondent to benefit from its unlawful conduct. Accordingly, because Ragsdale made an uncondi- tional offer to return to work, I would find the Re- spondent’s failure to offer him reinstatement when work became available violated Section 8(a)(3) and (1) of the Act as alleged. The Change in Premium Pay Policy My colleagues find, in agreement with the judge, that the Respondent did not violate the Act by chang- ing its policy and practice of paying employees pre- mium pay for reimbursable work on Sundays. I dis- agree. The Respondent’s handbook states that employees are paid one-and-one-half times the regularly hourly rate for work in excess of 40 hours per week. In addi- tion, the Respondent’s practice was to pay its employ- ees double time for work on Sunday that was reim- bursable by the customer. The Respondent paid its em- ployees the double time regardless of whether those employees had worked 40 hours in the previous week. In July 1993, the Respondent became concerned that certain employees were receiving more than their usual pay by taking time off during the week only to make up their hours by working for double time on reim- bursable jobs. To address this situation, the Respond- ent, without notifying the Union, issued a notice to employees stating that employees would no longer re- ceive double time for reimbursable work if employees took time off, without good reason, during the pre- vious workweek. My colleagues, in agreement with the judge, consider the Respondent’s notice to be a clari- fication of an existing policy. I find, however, that the Respondent, through this notice, announced a unilateral change from its previous practice. It is clear that the discussion of overtime in the Re- spondent’s handbook applied to situations other than work on reimbursable jobs. Whereas the handbook re- ferred to pay at time and one half for work in excess of 40 hours, the Respondent regularly paid its employ- ees double time on reimbursable jobs without regard to whether the employee had worked 40 hours in a week. Indeed, the Respondent’s notice admits by negative implication that the rule set forth in its handbook did not apply to reimbursable jobs. This notice states as follows: If the company, for whatever reason, has to au- thorize overtime and it is not reimbursed by the owner the rule as stated in the policy manual will be followed. Thus, the Respondent could not address its concerns merely by enforcing its written policy, because that policy did not apply to reimbursable work. Further, it could not rely on its past practice as support for its po- sition because it had paid employees double time on reimbursable jobs even if they had not worked a 40- hour week. Therefore, the Respondent addressed its concerns by changing its policy and past practice. The Respondent was obligated to bargain with the Union 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Indeed, that the Respondent had sought to correct what it per- ceived as a legitimate problem of employee abuse did not absolve it from its obligation to bargain with the Union. Instead of unilater- ally implementing its own solution to the perceived abuse, the Re- spondent was obligated to bargain with the Union concerning pos- sible solutions to the problem. 1 All following dates will be in 1993 unless otherwise indicated. over this change.2 Its failure to do so violated Section 8(a)(5) and (1) of the Act. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT fail and refuse to reinstate or to recall economic strikers to their former or substantially equivalent positions because they engaged in union and protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Jim Bronkhorst, Ken Falk, Ted Fuller, Harold Hill, Grant Maichele, Marty Preston, Mac Rognow, Brian Rowden, and Steve Titus imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest. ALLIED MECHANICAL SERVICES, INC. Joseph P. Canfield, Esq., for the General Counsel. Barry R. Smith, Esq. and Gary A. Chamberlin, Esq., of Kala- mazoo, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Grand Rapids, Michigan, on February 8 through 10, 1994. Subsequent to an extension in the filing date briefs were filed by the General Counsel and Respond- ent. The proceeding is based on a charge filed February 22, 1993,1 by Plumbers and Pipe Fitters Local 337, United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL– CIO. The Regional Director’s complaint dated July 14, 1993, as amended and consolidated with the two embraced cases, alleges that Respondent, Allied Mechanical Services, Inc., of Kalamazoo, Michigan, violated Section 8(a)(1) and (3) of the National Labor Relations Act by hiring new employees while refusing to reinstate or recall striking employees who made unconditional offers to return to work and violated Section 8(a)(1) and (5) of the Act by changing its premium pay pol- icy without first bargaining with the Union. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a corporation engaged in the fabrication and nonretail installation of heating, plumbing, and air-condi- tioning systems in the construction industry in the Kala- mazoo area and it annually purchases and receives goods and materials valued in excess of $50 directly from points out- side Michigan. It admits that at all times material it has been an employer engaged in operations affecting commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Pursuant to a settlement agreement in Case 7–CA–32727 the Respondent since July 30, 1991, has recognized the Union as the collective-bargaining representative of Respond- ent’s employees in the following ‘‘unit’’: All full-time and regular part-time plumbers, plumber apprentices, pipe fitters, pipe apprectices, welders, plumbing and pipe fitting service employees and shop employees employed by the Employer at and out of its facility located at 2211 Miller Road, Kalamazoo, Michigan; but excluding office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act and all other employees. While collective-bargaining negotiations have occurred and continue to occur, no contract has been agreed to. On two occasions in 1992, the Union struck the Respond- ent and, at least in part, it appears that the purpose and tim- ing of the strike related to a perceived lack of progress in negotiations. The first strike occurred on July 20 when 12 employees struck to protest Respondent’s coercion and intimidation of employees, constructive discharges of employees, and dis- crimination against employees (as reflected in the fourth amended complaint in Cases 7–CA–32727, et. al) thus, for example, the employees struck to protest written disciplinary 37 ALLIED MECHANICAL SERVICES warnings issued to employee George Vincent, and because of threats by Respondent to reduce its size and lay off employ- ees. On August 4, the Union made a written unconditional offer to return to work on behalf of 10 of the 12 striking em- ployees (strikers John Powers and Jim Bronkhorst were omit- ted from this offer by error). On September 8, the Union at- tempted to rectify its error, making a written offer to return to work on behalf of Powers and Bronkhorst. On September 11, the 10 employees listed were returned to work but Pow- ers and Bronkhorst were not returned until October 19. The 12 employees involved in this strike were the nucleus of the Union’s support and received a monetary stipend from the Union for engaging in organizational activity among Re- spondent’s other employees. That payment was the difference between the rate received from Respondent and the hourly rate of journeymen employees working in that area under a union contract (one example demonstrated a union rate of $27 versus Respondent’s rate of $16 an hour). The second strike occurred on October 16, when the Union faxed a letter to Respondent announcing the strike and stating that employees Steve Titus, Grant Maichele, Harold Hill, Mac Ragnow, Gil Ragsdale, and Ted Fuller were going on strike due to Respondent’s unfair labor practices. On that same date, Respondent faxed a letter to the Union informing the Union that it did not acknowledge or agree that the em- ployees were engaging in an unfair labor practice strike and that it did not recognize the strike as being protected. Assert- edly unbeknownst to the Union and strikers, on the day the strike started, Respondent sent a letter to Bronkhorst and Powers accepting the Union’s unconditional offer to return to work on their behalf, but, stating they were not to start until October 19. The purpose of the strike was said to be because of the Respondent’s failure to return strikers Powers and Bronkhorst and employee complaints regarding the Respond- ent’s asserted poor treatment of the employees returned to work on September 11 (including Respondent’s treatment of employee Steve Titus when he returned to work and its as- serted forcing of returning striker Grant Maichele to work in a ditch), and Respondent’s conduct during contract negotia- tions. Titus had worked on the Respondent’s Upjohn project be- fore the strike but when he returned to work Respondent’s president, John Huizenga, assigned Titus to a more remote location, the Hercules plant in Portage, Michigan. Titus testi- fied that the Respondent initially declined to provide him with a hardhat and safety glasses and also required him to work in an isolated manner he considered to unsafe. Titus testified that Huizenga said he had never had problems with Titus before, and asked why Titus was doing this to him. Titus asked Huizenga what he meant and Huizenga said the employees were puppets of the Union and they were not act- ing for themselves. When Titus asked Huizenga why he did not want to ‘‘go Union’’ and Huizenga answered that he had been a union man for 16 years and it was because of the Union that they had to close their doors. Huizenga also told Titus that if Titus had given him a chance, Titus would have come up the ladder also. On November 10, the Union sent Respondent a letter mak- ing an unconditional offer to return to work on behalf of five of the six employees who went on strike on October 16. Em- ployee Gil Ragsdale’s name was omitted from the letter, again due to an oversight by the Union. On November 16, the Union and Respondent signed an in- formal settlement agreement regarding the fifth amended consolidated complaint, and it was Union’s business agent, Vince Cristiano’s, understanding that the striking employees would be returned to work (the terms of this agreement were negotiated by Respondent’s attorney, Smith, and counsel for the Genral Counsel John Ciaramitaro and the Union was not a direct party to these negotiations). On November 17, all six of the employees who went on the October 16, strike (including Gil Ragsdale), went to Re- spondent’s facility and met with Huizenga. Employee Harold Hill, acting on behalf of the employees present, informed Huizenga that they were making an unconditional offer to re- turn to work. Huizenga’s reply to the employees was that he had no work for them, the employees left the premises and Hill told Business Agent Cristiano what Huizenga had said. On November 30, the Regional Director approved the set- tlement agreement negotiated on November 16. As far as the Union knew at that point Respondent had not hired any strik- er replacements and believed that the reason the strikers were not being returned to work at that time was because Re- spondent had no work for them. On June 14, 1993, Respondent began hiring new employ- ees and it has hired 26 new employees since that time. Re- spondent never informed the Union that it did not intend to recall the striking employees when work became available. The Union first found out the employees had been replaced several months after the strike when Respondent’s attorney mentioned it during negotiations in a side bar conversation to Business Agent Cristiano. Meanwhile, employee Bronk- horst called Cristiano and urging him to take some action against Respondent because of its hiring of new employees before returning the strikers to work. The 12 employees who were the nucleus of the Union’s support met with Cristiano and discussed their grievances, including Respondent’s fail- ure to return the October 16 strikers and the hiring of new employees. On June 24, 1993, Cristiano faxed a letter to Respondent informing Respondent that employees Jim Bronkhorst, Ken Falk, Marty Preston, and Brian Rowden were going on strike because of Respondent’s unfair labor practices, and they started a strike the same day. The striking employees were referred to jobs by the Union at the start of this strike (as they were at the time for the October 16, strike), but the Union did not know how long those jobs would last. On June 25, 1993, Respondent sent a letter to the Union informing the Union tha it considered the June 24 strike to be unprotected. On July 6, 1993, the Union sent Respondent a letter making an unconditional offer to return to work on behalf of the June 24 strikers. To date, Respondent has failed to return any of the employees who went on strike on Octo- ber 16, 1992, or June 24, 1993. An employee of the Respondent’s accounting department, Judy Kuntzman, testified that Respondent had a system whereby it paid overtime pay for weekend work even if an employee did not work 40 hours in the previous week if the job was what Respondent terms ‘‘reimbursable,’’ that is, under a customer contract that authorizes this payment. In July 1993, Kuntzman noticed that on certain jobs some em- ployees were regularly taking off during the week, yet re- 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceiving overtime pay for weekends. She informed Huizenga what was going on and, as a result, Respondent issued a doc- ument entitled ‘‘Policy On Overtime Pay,’’ in which it stated that overtime would not be paid for weekend work when it appeared that employee missed work during the week with- out good reason. This statement was announced unilaterally, without consultation or negotiations with the Union. On brief, counsel for the General Counsel renews a motion first proposed during the hearing in this matter to amend the com- plaint in this matter to allege that since on or about August 1993, and continuing to date, Respondent, through its agent John Huizenga, has withheld overtime premium pay from certain employees working on weekends and that on August 1993, Respondent, by its agent John Huizenga, withheld overtime premium pay from certain employees working at Respondent’s project at Upjohn’s building 89. As the pro- posed amendment is based on evidence presented by Re- spondent during the trial in this matter; the facts are closely related to the allegations presently encompassed in the com- plaint, are of the same class of violations, arose form the same factual circumstances, involved the same Respondent defenses, and was fully litigated, I will accept the amend- ment, see Pergament United Sales, 296 NLRB 333, 334 (1989); and Redd-I, Inc., 290 NLRB 1115 (1988). III. DISCUSSION A. Alleged Change in Premium Pay Policy The Respondent maintains a formal, written overtime pol- icy in its employee handbook. This policy provides: 4.05 Premium Pay Overtime is authorized work performed in excess of forty (40) hours perwork week and time and one-half (1-1/2) the regular straight time hourly rate for salaried and non-salaried employees who are non-exempt under the Fair Labor Standards Act. Kuntzman testified that when scheduled employees for weekend work on a reimbursable job and was paid at pre- mium rates by the owner, the Company had followed a prac- tice of passing the Sunday double time premium pay on to its employees. If weekend work was performed on a non- reimbursable job, however, an employee would not receive overtime until he had exceeded 40 hours per week. In August 1993 Kuntzman noticed a pattern of apparent employee abuse of the premium pay policy whereby several employees working on a reimbursable job were repeatedly taking time off during Monday through Friday and then, would work on the weekend and receive premium pay, even though they had not worked in excess of 40 hours. The Respondent addresses this abuse with a policy clari- fication as follows: The only exception to this policy is as follows: When an owner agrees to reimburse the company for all overtime and the company receives this reim- bursement, we in turn will pass this on to the em- ployee. Employees will, however, be penalized this overtime pay until they reach 40 hours if they ‘‘play the game’’ of missing work during the week only to make it up on the weekend with overtime. This is considered unfair to both the company and to the owner we are working for. If the company, for whatever reason, has to authorize overtime and it is not reimbursed by the owner the rule as stated in the policy manual will be followed. It also was established that employee Brad Wallace worked at Respondent’s Upjohn building 89 job in August 1993, but was denied premium pay after being told by his supervisor that he would receive overtime rates for weekend work. The employer showed, however, that Wallace was not working on a reimbursable job and his total hours did not exceed 40 in that pay week. Therefore, he was not entitled to overtime pay and he was specifically informed of this when he first complained to President John Huizenga. Here, the record shows that the Employer had a premium pay policy that provides for pay at time and one half for all hours worked over 40 in a workweek and that it followed a practice of passing on higher levels of premium pay to em- ployees who work on reimbursable jobs when an owner pays the Company for weekend work. In that case, the employee would receive time and one half for Saturday work and dou- ble time for Sundays. I agree with the Respondent that the employer’s notifica- tion that it would not bill customers reimbursable overtime (and will not pay premium pay) when in fact employees have missed work during the week but worked on weekend in order to work less for the same or a greater amount of money is a clarification that the policy would be followed except under limited circumstances where there has been ‘‘game playing’’ in an employee’s missing work and not a change in policy that would be a mandatory subject of bar- gaining. Here, as noted by the Respondent, the Employer has not attempted to disavow the Union’s authority as exclusive bar- gaining representative on behalf of employees in negotiations over terms and conditions of employment and it otherwise has solicited input from the Union on even minor proposed benefit changes, and has held off on making these changes when the Union objected. Moreover, Brad Wallace’s complaint did not relate to a re- imbursable job contract and resulted in no loss in premium pay and the Union did not make a timely request to bargain with the Employer about this overall matter, even though it was participating in bargaining on these same matters at this time (the Employer’s contract proposal mirrored its long- standing premium pay policy contained in the employee handbook and the Union’s overtime provisions of its pro- posal submitted in December 1993 were identical to the Union’s previous submission in September 1992, and did not change its proposal in response to any alleged unilateral change in overtime pay). Under these circumstances, I concluded that the record fails to support a conclusion that the Respondent has improp- erly withheld overtime premium pay or has changed its pre- mium pay policy or has failed to bargain with the Union over this subject and I find that the Respondent has not vio- lated Section 8(a)(1) and (5) of the Act in this respect, as alleged. 39 ALLIED MECHANICAL SERVICES B. Refusal to Recall Striking Employees The Union struck the Employer on three occasions and on each occasion it made valid subsequent unconditional offers to return on behalf of the striking employees. All were re- turned to work after the first strike, however, six employees were not reinstated after the October 16 strike and four em- ployees were not reinstated after the June 24, 1993 strike. In a discharge or tenure of employment situation such as that involved in this proceeding the Board applies a causa- tion test that requires that the General Counsel meet an initial burden of presenting sufficient evidence to support an infer- ence that the employees’ union or other protected, concerted activities were a motivating factor in the employer’s decision to terminate or, as here, fail and refuse to reinstate. Here, the General Counsel has shown that the alleged discriminatees engaged in two union endorsed economic strikes at a time when the Employer and the Union were en- gaged in ongoing negotiations of a collective-bargaining agreement (here there also is evidence that employees were concerned in the second strike with asserted unfair labor practices regarding alleged poor treatment of employees who returned after the first strike and, in the third strike with the alleged unfair labor practices of the Employer’s failure to re- call strikers after the end of the second strike). Under these circumstances, it is shown that both the em- ployees’ second strike on October 16, 1992, and their third strike on June 24, 1993, were activities protected by Section 7 of the Act. Accordingly, under the principles laid down by the Supreme Court in NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), and by the Board in Laidlaw Corp., 171 NLRB 1366 (1968), these strikers had continued status as employees and entitlement, on request, to be returned to their former job, or a substantially equivalent positions, absent proof of ‘‘legitimate and substantial business reasons.’’ Moreover, once the strikers made unconditional offers to re- turn to work, it was the Respondent who bore the burden of seeking out and contacting the employee and the mere pas- sage of 3 to 10 months would not limit the employees’ fun- damental right to reinstatement. See U.S. Mineral Products Co., 276 NLRB 140, 142 (1985). Otherwise, the Respondent’s own argument that it denied reinstatement to the strikers because they were paid union or- ganizers or ‘‘salts’’ specifically supports a conclusion that it was motivated by their union activities and, accordingly, I find that the General Counsel has met his initial burden by presenting a prima facie showing, sufficient to support an in- ference that the employees’ union and concerted activities were a motivating factor in Respondent’s subsequent deci- sion to deny them reinstatement. Accordingly, the testimony will be discussed and the record evaluated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980). See NLRB v. Transportation Corp., 462 U.S. 393 (1983). Under both the Wright Line and Laidlaw test the burden of proving justification for a failure to recall is on the em- ployer. Here, it is clear that after both the second and third strike and the corresponding unconditional offers to return to work, the employer disregarded its employees’ fundamental right to reinstatement and instead, on and after June 14, 1993, hired 26 new employees. The Respondent first contends that the Regional Director’s November 30 approval of a settlement agreement negotiated on November 16 following the second strike (that of October 16) bars litigation of the Employer’s presettlement conduct and contend that for this issue to survived it must be specifi- cally reserved citing Cambridge Taxi Co., 260 NLRB 931 (1982). The General Counsel, however, accurately points out that while the settlement agreement might arguably bar the litiga- tion of the events which led up to this strike as unfair labor practices, it is clear that it does not bar establishing the fact that the strike was a protected economic strike and that Re- spondent’s and postsettlement hiring of new employees and refusal to reinstate the strikers was subsequent conduct that violated the Act. Here, the settlement agreement was silent on the subject of reinstatement and the record shows that prior to the agreement and on the employee November 17 unconditional offer to return to work, the Respondent did not inform the Union that it would refuse to reinstate the strikers and only said that there was no work for them. Therefore, neither the Union nor the General Counsel could have know and they could not have readily discovered that Respondent was refusing to reinstate the strikers. See Hollywood Roo- sevelt Hotel Co., 235 NLRB 1397 (1978). Inasmuch as the settlement agreement negotiated Novem- ber 16 did not specifically waive the employees’ Laidlaw rights, it cannot be found that the Respondent’s post- settlement conduct in repudiating these fundamental rights is subject to any settlement bar theory and, accordingly, its de- fense in this respect must fail. The Respondent theorizes that the strikes were unprotected because the strikes were not motivated by employee concerns over employer unfair labor practices. Here, the employees’ Laidlaw rights are not dependent on unfair labor practice concerns or on the correctness or effectiveness of the Union’s predisposition to use a strike as a tool to influence contract negotiations. Employees may strike for a good or ju- dicious reason or for a bad or unwise reason and the employ- er’s perception of the reason does not control the protected nature of the activity. Moreover, as pointed out by the General Counsel, the tra- ditional approach by the Board is that if the strike is not an unfair labor practice strike, it is nevertheless an economic strike. See, e.g., Commercial Candy Vending Division, 294 NLRB 908 (1989), and when unfair labor practices cease to be the motivating factor for a strike, the strike is viewed as economic Trident Seafoods Corp., 244 NLRB 566, 569–570 (1979), enfd. 642 F.2d 1148 (9th Cir. 1981). The Respondent also implies that the strikes were unpro- tected because the Union waited to strike until a time when it could place the strikers in other jobs, and because the length of the strikes were related to the length of the interim employment. The Board, however, has found that the timing of a strike to accommodate the Union’s interests does not make the strike unprotected. R & H Coal Co., 309 NLRB 28 (1992). Respondent also contends the strikes were unprotected be- cause the Union did not communicate the reasons for the strike to Respondent and because the strikers had no inde- pendent reasons and merely did what the union representa- tive told them to do. Here, I find that the ongoing first con- tract negotiations by the employees’ certified representative provides a valid reason and basis for a protected concerted activity and, as the employees otherwise were not coerced to participate in the strike, I find that their acquiesence in the 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union’s decision is irrelevant to any evaluation of the pro- tected nature of their conduct. Otherwise it is shown that striker Titus spoke with the Re- spondent’s president about being reassigned to a more re- mote jobsite after his return from the first strike and it has been found that in similiar circumstances that Respondent cannot blind itself to the surrounding actions and claim that it did not know the walkout was based on a protected activ- ity. See Eaton Warehousing Co., 297 NLRB 958, 961–962 (1990), enfd. mem. 919 F.2d 141 (6th Cir. 1990). Here, the Union in each instance sent a letter that advised the Employer that they were striking because of ‘‘unfair labor practices.’’ Thus, a reason was given and the ultimate validity of unfair labor practice allegations again is not rel- evant or a justification for a failure to afford striking employ- ees their Laidlaw rights. Moreover, in Scioto Coca-Cola Bot- tling Co., 251 NLRB 766 (1980), the Board said: In order to find that a discharge . . . for engaging in protected activity violated Section 8(a)(1) it is not nec- essary at the time of the occurrence that the employer knew that the activity is protected . . . if in fact it is. However, in order for the Board to make such a finding there must be some evidence on the record from what- ever source that the activity engaged in was not only concerted but, more significantly, that it was in fact protected. [Emphasis added.] Finally, the Respondent also contends that the strikers were not employees because they received money from the Union for engaging in organizing activity while in Respond- ent’s employ. The Board, however, consistently has found that paid union organizers are employees within the meaning of the Act, and entitled to the protection of the Act. Town & Country Electric, 309 NLRB 1250 (1992); Sunland Con- struction Co., 309 NLRB 1224 (1992), as reaffirmed in Sunland Construction Co., 311 NLRB 685 (1993), a case which specifically disagrees with an argument citing H. B. Zachry Co., 886 F.2d 70 (4th Cir 1989), a case relied on here by the Respondent. Here, the so-called salts were regular employees of Re- spondent and were primarily working for Respondent in order to receive wages for work performed. They engaged in organizing activity only incidental to their work and were paid only the difference between the Respondent’s wage level and the area union wage level and I find no persuasive reason why they should be considered to have relinquished their status as statutory employees. Here, it may be inferred that on the negotiation of a mutually agreeable wage level and the entering into a collective-bargaining agreement, a union wage level would be in effect at the Employer and its union employees would no longer receive supplemental sti- pends from the Union. Thus, contrary to the situation in Ultrasystems Western Contractors v. NLRB, 18 F.3d 251 (4th Cir. 1994), also relied on by the Respondent, the employees here were primarily employees of the Company, not the Union, and they intended to remain as plumbers and pipe- fitters, rather than as union organizers. As noted above, the burden of showing special cir- cumstances which would justify taking away an employee’s protection under the Act is on the Respondent proponent. It is a serious burden that should not be lightly evaluated and here there are no compelling circumstances that would prove that the involved strikers were not primarily employees. Ac- cordingly, it cannot be held that they have lost the protection of the Act by their receipt of supplemental payments for their union organizational activities. Otherwise, the Board’s pre- vailing policy is to consider even those who are union em- ployed organizers to be entitled to the protection of the Act and, under all these circumstances, I find that the Respondent has failed to show that it had legitimate and substantial busi- ness reasons for failing to reinstate former strikers at the time it began to hire new employees. Accordingly, I find that the General Counsel has shown that the employees who struck Respondent on both October 16, 1992, and June 24, 1993, were engaged in an economic strike; that these employees, including employee Ragsdale, made unconditional offers to return to work; that Respondent refused to reinstate these employees pursuant to those offers, but instead hired new employees contrary to the employees Laidlaw rights and that it violated Section 8(a)(1) and (3) of the Act, as alleged. CONCLUSIONS OF LAW 1. Respondent Allied Mechanical Services, Inc. is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Jim Bronkhorst, Ken Falk, Ted Fuller, Harold Hill, Grant Maichele, Marty Preston, Mac Rognow, Gil Ragsdale, Brian Rowden, and Steve Titus are statutory employees of the Respondent and valid unconditional offers to return to work were made on behalf of each following their participa- tion in a protected strike. 4. By failing and refusing to reinstate the named employ- ees when jobs became available on and after June 14, 1993, the Respondent has violated Section 8(a)(1) and (3) of the Act. 5. The Respondent otherwise is not shown to have en- gaged in conduct violative of the Act as alleged in the com- plaint. REMEDY Having found that the Respondent has engaged in certain uunfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policiies of the Act. Inasmuch as Respondent failed and refused to offer timely recall on and after June 14, 1993, to the following individ- uals who made valid offers to return to work from an eco- nomic strike: Jim Bronkhorst, Ken Falk, Ted Fuller, Harold Hill, Grant Maichele, Marty Preston, Mac Rognow, Gil Ragsdale, Brian Rowden, and Steve Titus, it is recommended that Respondent must offer them reinstatement to their former jobs or substantially equivalent positions, dismissing, if necessary, any employees hired subsequent to June 14, 1993, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered because of the dis- crimination practiced against them by payment to them of a sum of money equal to that which they normally would have earned from the date of the discrimination to the date or rein- 41 ALLIED MECHANICAL SERVICES 2 Under New Horizons, interest is computed at the short-term Fed- eral rate for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. 3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ statement in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 1173 (1987).2 See also Dean Gen- eral Contractors, 285 NLRB 573 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 ORDER The Respondent, Allied Mechanical Services, Inc., Kala- mazoo, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to reinstate or to recall economic strikers to their former or substantially equivalent positions because they engaged in union and protected concerted ac- tivities. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Jim Bronkhorst, Ken Falk, Ted Fuller, Harold Hill, Grant Maichele, Marty Preston, Mac Rognow, Gil Ragsdale, Brian Rowden, and Steve Titus immediate and full reinstatement and make them whole for the losses they in- curred as a result of the discrimination against them in the manner specified in the remedy section. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facilities in Kalamazoo, Michigan, and at its jobsites in the Kalamazoo area, and mail to the named em- ployees at their last known address copies of the attached no- tice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.