United Artists Communications, Inc.

UNITED ARTISTS COMMUNICATIONS United Artists Communications , Inc. and Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Southern Association of I.A.T.S.E. District No. 2 Locals, AFL-CIO, and its Constituent Local Unions No. 215, 297, 504, 521, 577, 709, and 762 and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, Southern Association of I.A.T.S.E. District No. 2 Locals, AFL-CIO, and its Constituent Local Union No. 294. Cases 21-CA-21653 and 21-CA-22248 (formerly 28- CA-7358) 14 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 November 1983 Administrative Law Judge Richard D. Taplitz issued the attached deci- sion. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs, and the Respondent filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. This proceeding raises issues under Section 8(d) of the Act regarding the obligation of a party re- ceiving notice of the proposed termination or modification of a collective-bargaining agreement to notify mediation services before implementing changes in terms and conditions of employment. Relying on Peoria Painting Contractors, 204 NLRB 345 (1973), enf. denied 500 F.2d 54 (7th Cir. 1974), and Hooker Chemicals Corp., 224 NLRB 1535 (1976), enf. denied 573 F.2d 965 (7th Cir. 1978), the judge found that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing new conditions of employment without first resorting to a 30-day mediation period by Federal and state me- diation services under Section 8(d)(3) and (4). For the reasons set forth below, we are persuaded by the reasoning of the United States Court of Ap- peals for the Seventh Circuit in denying enforce- ment in Peoria Painting and Hooker Chemicals, and we shall overrule the Board's decisions in those I The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive la", judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 75 cases and dismiss the consolidated complaint in this proceeding. The essential facts are as follows. For many years the Respondent and District 2 Stage Employ- ees IATSE and its constituent, Southern California Locals, have been parties to a series of collective- bargaining agreements covering projectionists em- ployed by the Respondent. The Respondent has also been a party to a series of collective-bargain- ing agreements with District 2 and IATSE Local 294 in Phoenix, Arizona, covering projectionists in Phoenix and Scottsdale, Arizona. On 1 December 1981 District 2, on behalf of the Southern Califor- nia Locals, advised the Respondent by letter of its desire to meet for the purpose of negotiating a new bargaining agreement to take effect at the termina- tion of the existing contract on 31 January 1982. District 2's reopener followed Local 294's notice of 7 May 1981 advising the Respondent of its desire to negotiate on its own a new agreement covering the Arizona projectionists to succeed the existing agreement also terminating on 31 January 1982. Pursuant to these notices by District 2 and Local 294, the parties commenced negotiations in January 1982. As set forth in detail in the judge's decision, the parties bargained for several months thereafter, but failed to reach agreement.2 The principal issue and stumbling block in the negotiations concerned the proposed alteration of certain existing work duties and practices in the projection room. After continued negotiations proved unsuccessful, the Respondent notified District 2 on 21 September 1982 that the Respondent would implement its most recent and final offer effective 11 October 1982 in the southern California unit. On 10 October 1982 District 2 authorized a strike because of the Respondent's announced changes in working con- ditions. On 11 October 1982 the Respondent imple- mented its final proposal, and the projectionists in the southern California unit refused to work under the Respondent's newly established work rules. Thereafter, on 6 December 1982, the Respondent implemented its final proposal in the Arizona bar- gaining unit, and the employees in the unit refused to work under these new working conditions. Nei- ther the Respondent nor District 2 or Local 294 formally notified Federal or state mediation serv- ices of the existence of a dispute before the imple- mentation of the new terms and conditions of em- ployment. On 26 January 1983 the Respondent for- mally notified the mediation services of the exist- ence of a dispute. 2 In September 1982 District 2 notified the Respondent that Local 294 and the Arizona unit would henceforth be represented in negotiations by District 2 The parties thereafter negotiated on a joint basis for both units 274 NLRB No. 17 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel and the Charging Party contend that once the Respondent received written notice of the proposed modification of the existing bargaining agreements under Section 8(d)(1) the Respondent was required under Section 8(d)(3) and (4) to continue in full force and effect all the con- tractual terms and conditions of employment of the projectionists in both the southern California and Arizona bargaining units for a 30-day period fol- lowing formal notification to the mediation services of the existence of a dispute. Because the mediation services were not formally notified of the existence of a dispute before the Respondent's implementa- tion of the changes in employees' terms and condi- tions of employment, the consolidated complaint alleged, and the judge so found, that the Respond- ent thereby violated Section 8(a)(5) and (1). The General Counsel does not contend that the Re- spondent otherwise failed to bargain in good faith during contract negotiations or that the Respond- ent implemented the change before reaching a good-faith impasse in bargaining. Section 8(d) of the Act provides in pertinent part as follows: Provided. That where there is in effect a col- lective-bargaining contract covering employ- ees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desir- ing such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termina- tion or modification sixty days prior to the ex- piration date thereof, or in the event such con- tract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Con- ciliation Services within thirty days after such notice of the existence of a dispute, and simul- taneously therewith notifies any State or Terri- torial agency established to mediate and con- ciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichev- er occurs later. . . . [Emphasis added.] In Hooker Chemicals, above at 1538, the Board interpreted the foregoing provision as follows: [B]efore any action is taken to undermine the continuity and stability of the collective-bar- gaining relationship, the parties must allow mediation efforts to take place for 30 days. In other words, when a notice of dispute is un- timely filed, the 60-day period referred to in Section 8(d)(4) is tolled so that mediation ef- forts may take place for the 30-day period en- visioned by Section 8(d)(3) of the Act. As in the instant proceeding, the employer in Hooker Chemicals occupied the status of a nonini- tiating party under Section 8(d)(1), i.e., the union and not the employer had tendered a written notice under Section 8(d)(1) of a proposed termination or modification of a collective-bargaining agreement. Although conceding that the employer as the non- initiating party had no statutory obligation under Section 8(d)(3) to file a notice of dispute with the mediation services, the Hooker Chemicals Board found that in order to facilitate recourse to the me- diation services the noninitiating party "may find it necessary to file such a notice or compel the other party to do so, if it intends to resort to economic actions without violating the Act."3 Based on this interpretation of Section 8(d) and notwithstanding numerous bargaining sessions and the passage of well over 1 year from the date of the 8(d)(1) notice of termination in the Arizona bargaining unit and approximately 10 months from the date of the 8(d)(1) notice in the southern California unit, the judge found that the Respondent was not privi- leged to implement its final proposal even though it was the noninitiating party. As found by the Seventh Circuit in denying en- forcement to Hooker Chemicals, the concept of shifting the burden of filing the 8(d)(3) notice of dispute to the noninitiating party in order to estab- lish a uniform 30-day mediation requirement is a matter of policy that simply is not reflected in the statutory language of Section 8(d). Thus, it is evi- dent from a fair reading of Section 8(d) that the notice burdens of that provision fall exclusively, in the words of the statute, on "the party desiring such termination or modification." Although the participation of the mediation services is clearly an important and principal policy interest embodied in Section 8(d), we will not interpret the statute in a 3 We recognize that, unlike the lockout undertaken by the employer in Hooker Chemicals, the Respondent herein did not resort to a lockout, but instead implemented changes in existing terms and conditions of employ- ment It is well established, however, that in appropriate circumstances the notice provisions of Sec 8(d) apply even when no strike or lockout is involved Mar-Len Cabinets, 243 NLRB 523, 534 (1979), enfd in part 659 F 2d 995, 998 (9th Cir 1981) UNITED ARTISTS COMMUNICATIONS manner mandating a rigid and absolute 30 -day me- diation requirement when the initiating party pos- sessing the notice burden has made no effort to sat- isfy its notice obligations and thereby has fore- closed the noninitiating party's right to resort to economic weapons or, as here, to implement new terms and conditions of employment . We agree fully with the Seventh Circuit's observation that the wording of Section 8(d) and its legislative his- tory indicate that the method Congress chose to serve the purpose of facilitating the involvement of the mediation services "was to assign to one party, the initiating party, a fixed and definite responsibil- ity for notifying the mediation services ." Hooker Chemicals Corp. v. NLRB, above, 573 F.2d at 970. See also Amax Coal Co. v. NLRB, 614 F.2d 872, 889 (3d Cir. 1980). Because the Board's rationale in Peoria Painting and Hooker Chemicals effectively places the burden of notification on the noninitiat- ing party, it is at odds with the language of the statute as written by Congress.4 Accordingly, rather than continue to perpetuate the anomaly that a party having no obligation to file a notice of dis- pute must nonetheless do so if it desires to under- take otherwise lawful economic action , we over- rule Peoria Painting and Hooker Chemicals. We now hold that the burden of notifying the mediation services of a dispute under Section 8(d)(3) and (4) rests exclusively with the initiating party and that the initiating party's failure to file such a notice cannot serve to preclude the noninitiating party from undertaking otherwise lawful economic action. We shall therefore dismiss the consolidated complaint in its entirety.5 ORDER The complaint is dismissed 4 The judge cited Fort Smith Chair Co, 143 NLRB 514 (1963), enfd 336 F 2d 738 (D C Cir 1964), in support of the proposition that the 60- day period set forth in Sec 8(d)(4) must include the 30-day period speci- fied in Sec 8(d)(3) In Fort Smith, the initiating party failed to tender the 8(d)(3) notices to the mediation services and its resulting strike was there- fore unlawful from its inception Accordingly, it is evident that Fort Smith involved the failure of the initiating party to tender the required notices and the consequent limitation of its right to take economic action in such circumstances In contrast, the instant proceeding concerns the issue of limitations on the right of the noninitiating party to take otherwise lawful economic action 5 In view of our dismissal of the consolidated complaint, we find it un- necessary to address the propriety of the judge's remedy or his discussion of various Board and court cases DECISION STATEMENT OF THE CASE RICHARD D TAPLITZ, Administrative Law Judge. This case was tried in Los Angeles, California, on August 10 and 11, 1983 The charge and the first and the 77 second amended charge in Case 21-CA-21653 were filed respectively on October 8 and 22 and November 1, 1982, by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, Southern Association of I A T S E District No. 2 Locals, AFL-CIO, and its Constituent Local Unions No. 215, 297, 504, 521, 577, 709, and 762 (District 2; the locals are referred to as the Southern California Locals). A complaint issued in that case on January 31, 1983. The charge in Case 21-CA-22248 (formerly Case 28-CA-7358) was filed on March 7, 1983, by Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, Southern Association of I A T S E. District No. 2 Locals, AFL-CIO, and its Constituent Local Union No. 294 (Local Union No. 294 is referred to as Local 294 or the Phoenix Local; all of the above labor organi- zations are jointly referred to as the Unions). A com- plaint issued on that charge on April 18, 1983. An order consolidating cases and a consolidated amended com- plaint issued on June 23, 1983 The consolidated amend- ed complaint alleges that United Artists Communica- tions, Inc. (Respondent or the Company) violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act. i Issues The primary issues are. 1. Whether Respondent had a duty pursuant to Section 8(d),(3) of the Act to notify state and Federal mediation services before making unilateral changes at the expira- tion of a collective-bargaining agreement under circum- stances where the Unions initiated the request for negoti- ations. 2. If Respondent breached such a duty, what would the appropriate remedy be? 3. Whether a strike called by the Unions upon imple- mentation of the unilateral changes by Respondent con- stituted an unfair labor practice strike All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent, and the Charging Party. On the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing i When issued, the consolidated amended complaint contained allega- tions relating to Case 21-CA-22254 (formerly Case 32-CA-4921) At the outset of the trial, the General Counsel and Respondent entered into an informal settlement agreement resolving all aspects of that case After considering the objections of the Charging Party, I severed Case 21-CA- 22254 from the other cases in the consolidated complaint and approved the settlement agreement Those paragraphs of the consolidated com- plaint that related to Case 21-CA-22254 were stricken from that com- plaint In his brief, counsel for the Charging Party requests that the ap- proval of the settlement agreement be rescinded That request is denied 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Respondent, a Maryland corporation with its principal office at 172 Golden Gate Avenue, San Francisco, Cali- fornia, is engaged in the business of motion picture enter- tainment in California and Arizona where it operates var- ious theaters During the year immediately preceding is- suance of the complaint, Respondent derived gross reve- nues in excess of $500,000 from both its California and Arizona operations and, during the same period, it pur- chased and received at its California and Arizona facili- ties goods valued in excess of $50,000 directly from sup- pliers located outside of California and Arizona. The complaint alleges, the answer admits, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Unions are labor organizations within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Agreed-Upon Facts An examination of the pleadings and stipulations in the record reveals that the parties are in agreement with regard to the number of the underlying facts. District 2 and the Southern California Locals are the exclusive collective-bargaining representatives of Re- spondent's movie projectionists in its theaters in southern California (the southern California unit).2 District 2 and Local 294 are the exclusive collective- bargaining representatives for Respondent's projectionists in the Phoenix and Scottsdale, Arizona area (the Phoenix unit).3 For many years Respondent has had a collective- bargaining agreement with District 2 and the Southern California Locals as well as with District 2 and the Phoenix Local The latest contract in both units expired on January 31, 1982. From early 1982 to September 9, 1982, Respondent, District 2, and the Southern California Locals engaged in negotiations for a new contract in the southern Califor- nia unit. On September 9 Respondent presented its final offer to District 2 and the Southern California Locals and notified those unions that the terms and conditions 2 The full description of the unit is All full-time and regular part-time employees of operating or projec- tion rooms and operators of apparatus in connections appertaining thereto employed by Respondent at its theaters identified as follows Westminster Mall, Westminster Twin, UA Cinemas in Costa Mesa UA Cinemas, the City of Orange, UA Movies, Brea Shopping Center (Local 504), Cerntos Mall, Cerntos Twin, UA Marketplace Movies, Long Beach (Local 521), UA Cinemas, Tyler Mall, UA Riverside Movies, UA Movies, Montclair (Local 577), Glass House Movies, San Diego, UA Cinemas, El Cajon (Local 297), Santa Maria, UA Cinemas (Local 762), UA Movies, Bakersfield (Local 215), and UA Movies, Thousand Oaks (Local 709), excluding all other employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 3 A full description of that unit is All moving picture projectionists employed by Respondent at its Phoenix and Scottsdale, Arizona facilities, excluding all other em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act of the offer would be implemented on October 11, 1982. By letter dated October 6, 1982, Respondent notified District 2 of the new schedule that would be put into effect on October 11. The schedule does not indicate how many employees would be needed with relation to the job needs before the change From early 1982 to November 8, 1982, Respondent, District 2, and the Phoenix Local met to negotiate a new contract in the Phoenix unit. On November 8, 1982, Re- spondent presented its final offer to those unions and no- tified them that the terms and conditions of the offer would be implemented on December 6, 1982. On October 11, 1982, Respondent unilaterally imple- mented the terms of its final offer in the southern Cali- fornia unit and on December 6, 1982, it unilaterally im- plemented its final offer in the Phoenix unit. In neither case did it give notice to the Federal Mediation and Conciliation Service nor the appropriate state concilia- tion service before putting the changes into effect. The implementation of the final offers resulted in a reduction in the number of available unit jobs and the reduction of the number of employees in both bargaining units. On October 11, 1982, Respondent's employees in the southern California unit went out on strike and on De- cember 6, 1982, the employees in the Phoenix unit also struck. None of the unions have ever filed a notice to the state or Federal mediation services with regard to the inci- dents described in the complaint. B. Findings Based on the Evidence 1. Background-changes in technology Traditionally a projectionist has been on duty in the projection room whenever a movie was being shown.4 Until about 10 or 13 years ago there was no question that the duties of the projectionist required his constant presence. The projector made use of carbon arc lamps that contained no fail-safe systems and had to be super- vised. The film came in 20-minute reels and there was no automatic way for changing from one reel to another. In addition the projectionist had to maintain the equipment, thread the film and rewind it at the end, splice broken film, keep the proper focus, maintain the sound level, and in general attend to the operation of the equipment. About 10 or 13 years ago all of Respondent's theaters were equipped with more modern systems. Zenon lamps replaced the carbon arcs. The new lights could be re- placed routinely before the end of their life expectancy and they did not need the same type of care as the carbon arcs. A new "platter" system was used whereby the projectionists could join together the 20-minute reels of film so that the entire picture could be shown without any changing of reels. From Respondent's point of view projectionists were often sitting in the projection room with nothing to do throughout the entire showing of the picture. From the Unions' point of view the projection- ists were still needed for the maintenance of the equip- 4 More than one screen could be used from one projection room UNITED ARTISTS COMMUNICATIONS ment, the sound levels, the adjustment of focus, the splic- ing of broken film and other necessary matters In later 1981 Respondent negotiated with various IATSE unions in northern California They arrived at an agreement under which there were major changes in the duties of the projectionists. Under the new contract the projectionists travel from one theater to another At each theater the projectionists would thread the projector, do preventive maintenance and other work, and then move on to a new theater where he would repeat those tasks. During the showing of the film there would often be no projectionist in the booth. If the film broke and had to be spliced or adjustments to sound or focus were needed, it would be done by a management official. The result was that many fewer projectionists were needed. The dispute involved in this case arose when Respondent adopted this new procedure in southern California and Phoenix. 2. The negotiations for a new contract and notification of the mediation services , The most recent collective-bargaining agreement in the southern California and Phoenix bargaining units ex- pired on January 31, 1982. That contract contained a provision that a projectionist had to be in the booth whenever a movie was shown In both the Phoenix and the southern California bar- gaining units, the unions were the initiating parties in opening negotiations for a new contract. By letter dated December 1, 1981, Walter Blanchard, the vice chairman and secretary-treasurer of District 2, on behalf of the Southern California Locals, advised James Gallagher, general manager of Respondent, of the unions' wish to meet for the purpose of negotiating the terms of a new agreement to take effect upon the termination of the then outstanding contract.5 For many years the Phoenix Local bargained as part of District 2. However, it began negotiations for a new contract independently from District 2. On May 7, 1981, Nugget Cornell, a business agent for the Phoenix Local, sent Respondent a telegram stating that the Phoenix Local would negotiate the contract on its own. The tele- gram requested Respondent to let the union know when they could meet. Cornell credibly testified that he re- opened the contract for negotiations through a telephone call he made to Gallagher, the general manager of Re- spondent. Respondent and the Phoenix Local held their first meeting shortly after the contract expired on Janu- ary 31, 1982 During the summer of 1982 Respondent and the Phoe- nix Local held three negotiating sessions in Scottsdale, Arizona, in which the Phoenix Local negotiated inde- pendently of District 2 At a meeting with District 2 and the Southern California Locals in September 1982 Blan- chard, the vice chairman and secretary-treasurer of Dis- trict 2, informed Respondent that the Phoenix Local would from that point on be represented by District 2. Subsequent negotiations were held jointly. 5 The letter stated that District 2 was acting on behalf of the unions listed on its letterhead That letterhead did not list the Phoenix Local 79 The first negotiating session between Respondent and District 2 was held on January 21, 1982. Respondent took the position that it considered the existing practices in the projection room to be featherbedding and it pro- posed an arrangement similar to the one that had been negotiated in northern California in which the projec- tionists would go from theater to theater. Respondent took the same position with the Phoenix Local. District 2 proposed a 1-year extension of the existing contract. Respondent and District 2 held 16 negotiating sessions during which all aspects of a proposed contract were dis- cussed. Agreement was reached with regard to some proposals but not with regard to others. The parties dis- cussed and could not agree on such matters as changes in the wage structure and a "buy out" proposal by the Unions that would compensate employees who would no longer have jobs if the Company's proposals were ac- cepted. By letter dated September 21, 1982, Respondent, through its attorney, J. Mark Montobbio, sent District 2 a copy of Respondent's final offer that had been present- ed to District 2 at a negotiating session on September 9, 1982, and requested the Union to submit the offer to its membership for a ratification vote. The letter stated that the offer constituted Respondent's best and final offer and that if it was not accepted Respondent would imple- ment its proposal in the southern California unit effective October 11, 1982. On October 8, 1982, a high-level meeting was held be- tween Respondent's president, Robert Naify, and IATSE's International vice president, Steven D'Inzillo. No agreement was reached On October 11, Respondent unilaterally implemented the terms of its final offer in the southern California unit. Under that newly implemented proposal, there was no work available for a substantial number of Respondent's employees. By letter dated November 22, 1982, Respondent, through its district manager Lee Josselyn, notified Nugget Cornell, the business agent of the Phoenix Local, that on December 6, 1982, Respondent would implement its proposal to the Phoenix Local. The new plan was im- plemented on December 6, 1982 and, as with the south- ern California unit, there was a substantial reduction in the number of projectionists who are needed to do the available work. There is extensive testimony in the record concerning what was said and done at the various negotiating ses- sions. That testimony would have been necessary if there were a contention in this proceeding that Respondent had engaged in surface bargaining, had sought to under- mine the bargaining agent, had unilaterally made changes in the absence of impasse, or lacked good faith in trying to reach an agreement. However, none of those matters are at issue. The only wrongdoing alleged in the com- plaint or litigated at the trial related to Respondent's im- plementation of changes in conditions of employment at the expiration of the collective-bargaining agreement without giving notice to Federal and state mediation services pursuant to Section 8(d) of the Act. It is undis- puted that Respondent did make the changes discussed above It is also undisputed that Respondent failed to 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give any notice to the state and Federal mediation serv- ices before making those changes. Respondent did give formal written notice to the mediation services, but that was well after the changes were put into effect. On Janu- ary 26, 1983, Respondent's attorney Montobbio notified the Federal Mediation and Concilliation Service, the Ari- zona Industrial Commission, Labor Department, and the California State Mediation and Conciliation Service of the dispute on the form prescribed by the Federal Medi- ation and Conciliation Service. Though none of the unions gave the state or Federal mediation services a formal written notice of the dispute and Respondent only notified those services after the changes were put into effect, the Federal Mediation Service was aware of the dispute and actually took part in the negotiations before the changes in the Phoenix unit were put into effect. Walter Blanchard, the vice chairman and secretary-treasurer of District 2, credibly testified that it was his understanding that IATSE Inter- national vice president and District 2 representative Steven D'Inzillo requested the Federal mediation service to conduct a meeting. The Federal mediator must have received notice of the dispute on or before November 1, 1982, because on November 1 Respondent's general man- ager Levin sent a letter to D'Inzillo and to Blanchard of District 2 confirming a conversation of that date in which a meeting was requested for November 8, 1982, between Respondent and the District 2 Locals after a meeting with the Federal mediator at 10 a.m regarding the Phoenix Local. On November 8, 1982, Respondent met with the Federal mediator, District 2, and the Phoe- nix Local. On January 20, 1983, another meeting was held between the Federal mediator, District 2, and the Phoenix Local. No agreement was reached in any of those meetings. 3. The strike On October 10, 1982, the day before Respondent im- plemented the changes in the southern California unit, 15 delegates to District 2 held a meeting at which they au- thorized a strike in the southern California unit Walter Blanchard is vice chairman and secretary-treasurer of District 2. He testified that at the meeting the delegates discussed their belief that Respondent was locking them out without the benefit of proper notification to the me- diation and conciliation service. He averred that they also discussed their belief that Respondent was not bar- gaining in good faith. According to Blanchard the strike was authorized because of those things. I am unable to credit Blanchard with regard to his assertion that the lack of notice was discussed at the meeting or was con- sidered in connection with the reason for the strike vote. His testimony in that regard was equivocal and his de- meanor did not inspire confidence in his veracity. He tes- tified that he was sure that he must have spoken about the notice and then testified that he could not recall spe- cifically doing so. When asked who spoke about the notice, he replied that he believed that a number of people did. He was unable to identify any individual Though the union voted to strike, there is no indication that anyone considered whether the union had to file notice before striking. District 2 filed a charge and two amended charges involving the southern California unit. Though the charge alleged in general terms that there was a refusal to bargain within the 6 months immediately preceding the filing of a charge, there was no specific mention of a failure to file notice. In a 23-page affidavit that Blanchard gave to the Board on October 28, 1982, there is a detailed explanation of why the union felt that Respondent refused to bargain in good faith. In the affi- davit Blanchard states that the union did not give notice to Federal or state mediation services. However, there is no mention of a meeting of delegates prior to the strike at which the reasons for a strike were discussed. There is no indication in the affidavit that the strike was motivat- ed in any part by Respondent's failure to give notice to the mediation services, or that he was even aware that Respondent had any obligation in that regard. In sum, I believe that the "notice" issue was not considered by District 2 in determining to strike and that issue was in- serted as an afterthought well after the strike began. I find that District 2 and the Southern California Locals decided to strike in the southern California unit because Respondent was about to change the working conditions as described above. On October 11, 1982, about 10 projectionists in the southern California unit reported for work. They were told by Respondent that they would be permitted to work only under the changed conditions of employment. They refused to go to work under those conditions.6 As of the date of the trial, none of the projectionists who worked in the southern California unit reported back to the job to work under the changed conditions. Also as of the date of the trial, Respondent had not hired any re- placements for those projectionists. Apparently the work is being done by management personnel. A similar scenario unfolded in the Phoenix bargaining unit. On December 5, 1982, there was a membership meeting of the Phoenix Local at which the members re- jected Respondent's proposed contract. The employees voted to strike because they were not satisfied with the terms of the proposed contract.? When projectionists in the Phoenix unit went to work on December 6 they were asked by Respondent's representatives whether they would work under the terms that Respondent had proposed and they replied that they wanted to go to work under the terms of the old contract. Respondent's representatives said they could only work under the new terms. At that point the employees began to picket. As of the date of the trial, none of the projectionists who had worked under the expired agreement in the Phoenix unit reported to work under the new conditions. Also, as of the date of the trial, Respondent hired no replace- ments for those projectionists.8 6 The record is not clear with regard to how many jobs were available under the changed conditions Blanchard testified that before the change about 50 employees were needed and after the change only about 8 would be required However, he further testified that he was not sure I do not believe that Blanchard was a reliable witness and I do not rely on his guess with regard to the amount of work available 7 These findings are based on the credited testimony of Nugget Cor- nell, the business agent of the Phoenix Local 6 Larry Levin, Respondent' s general manager, testified that jobs are still available for projectionists if they want to work under the changed conditions UNITED ARTISTS COMMUNICATIONS C. Analysis and Conclusions 1. The refusal to bargain If an arbitrator were empowered by the parties to re- solve the dispute in an interest arbitration by setting new contract terms, he or she might well evaluate the histori- cal rights and duties of the parties, the evolution of tech- nological change, the ability of the various parties to absorb the impact of such change and all the equities in- volved I have no such luxury. The complaint was nar- rowly drawn and the only issues in this case are those framed by the complaint and the answer. The gravamen of the General Counsel's case is that Respondent made unilateral changes after the expiration of the collective- bargaining agreement without giving notice to the medi- ation services as required in Section 8(d)(3) of the Act. There is no allegation related to surface bargaining, to changes in the absence of impasse, or to any aspect of the bargaining obligation other than that connected to the notice requirement. There is no allegation that Re- spondent violated Section 8(a)(3) or that there were any discharges or constructive discharges that violated the Act. As the case turns on the notice requirements of the Act, the starting point must be the wording of the Act itself. The relevant parts of Section 8(d) read: where there is in effect a collective-bargaining contract covering employees in an industry affect- ing commerce, the duty to bargain collectively shall also mean that no party to such contract shall ter- minate or modify such contract, unless the party de- siring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof . . . ; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Concilia- tion Service within thirty days after such notice of the existence of a dispute, and simultaneously there- with notifies any State or Territorial agency estab- lished to mediate and conciliate disputes within the State or Territory where the dispute occurred, pro- vided no agreement has been reached by that time; and (4) continues in full force and effect, without re- sorting to strike or lockout, all the terms and condi- tions of the existing contract for a period of sixty days after such notice is given or until the expira- tion date of such contract, whichever occurs later The 60-day waiting period specified in Section 8(d)(4) has been deemed to include the 30-day waiting period set forth in Section 8(d)(3) The result is that the waiting period, before effectuating a change, must include a full 30-day period after notification to the mediation services. As the Board held in Fort Smith Chair Co., 143 NLRB 514, 519 (1963), enfd. 336 F.2d 738 (D.C. Cir. 1964), cert. denied 379 U.S. 838 (1964): 81 . it has also been concluded that, where late no- tices under Section 8(d)(3) to Mediation and Concil- iation Service are filed, the waiting period must be extended to include a full 30 days after the filing of such notices in order to give mediation its intended statutory period in which to work. Section 8(d) has been interpreted so as to limit contract changes in the absence of proper notice even where no strike or lockout is involved NLRB v. Mar-Len Cabinets, 659 F.2d 995, 997 (9th Cir. 1981). Section 8(d) provides that the party desiring to termi- nate or modify the contract shall follow the procedures prescribed in Section 8(d)(1) through (4). Though an ar- gument could be made that both parties to the contract may desire modification of the contract and therefore both have the duty to file the notices, the Board and the courts have narrowly defined the statutory terms It is only the party who makes the first move to reopen the contract who is considered to be the "party desiring such termination or modification." That is the "initiating party" and the obligations of that initiating party do not switch to the other party no matter what happens in the course of negotiations. As the Board held in Fort Smith Chair Co, supra, at 516-517:9 The Trial Examiner has found, in effect, that while Section 8(d) imposes its requirements upon the party desiring to terminate or modify the con- tract, the duty of complying with these require- ments may at times shift from the party who initial- ly invokes that section to the other party. We per- ceive no basis in this section, or in the legislative history, for viewing the responsibility under this section so tentatively. To make this section's contin- ued applicability to the party initially desiring the change turn on the unpredictable course which the ensuing bargaining may take is to bring the disquiet of a potential lockout or a strike into an area where Congress wanted quiet-indeed, a "cooling-off" period. We therefore conclude contrary to the Trial Examiner that, by serving notice of its desire to ter- minate the existing contract and to negotiate a new agreement, the Union took upon itself the responsi- bility for complying with the remaining require- ' See also United Furniture Workers ofAmerica v NLRB, 336 F 2d 738, 741 (D C Cir 1964), cert denied 379 U S 838 (1964), where that court held the Board read Section 8(d), correctly we think, as expressly putting the responsibility for giving the required notices, under § 8(d)(3) as well as under § 8(d)(1), upon the party to the contract who raises the possibility of industrial conflict by moving to open up to the existing contractual arrangements Once the contract is thrown out on the table for re-bargaining at the instance of one party, counter-proposals are normally forthcoming, and the course of bargaining frequently tends to become a dim and tangled thicket in which it is easier to sense the lurking threat of industrial strife than to see from what quarter it comes Because this is the likely course of events once an initiative is taken to change a contract, and be- cause Congress believed that it was imperative in the public interest for disinterested and expert third parties to have an opportunity to bring the parties together, the burden of giving the notices was, not unreasonably, placed on the party who voluntarily elects to put these events in train 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments of Section 8(d) before engaging in a strike and that its failure to file the notices required by Section 8(d)(3) caused the strike to be unlawful from its inception In the instant case it is clear that the Unions were the initiating parties. It was the union in both bargaining units that opened negotiations Respondent contends that it had no duties under Section 8(d)(1) through (4) of the Act because those duties are required only of the initiat- ing party. i ° If Respondent did not have any duty under Section 8(d)(1) through (4), it could not breach such a duty Such a position finds some support in earlier Board cases. Royal Packing Co, 198 NLRB 1060, 1068 (1972), enfd. 495 F 2d 1075 (D.C Cir. 1974), Fibreboard Paper Products Corp., 130 NLRB 1558, 1573 (1961), reconsid- ered and reversed on other grounds 138 NLRB 550 (1962), enfd. 322 F 2d 411 (D.C Cir 1963), affd. 379 U.S 203 (1964). However, the Board took a different tack in Peoria Painting Contractors, 204 NLRB 345 (1973), enf denied 500 F 2d 54 (7th Cir. 1974) In that case the union, who was the initiating party, did not file timely notice to the mediation services. The company locked out its employees the day after the contract ex- pired. That was more than 60 days after the union's serv- ice of an 8(d)(1) notice but less than 30 days after the union served an 8(d)(3) notice. The administrative law judge held that the company was not privileged to resort to a lockout without regard to the requirements of Sec- tion 8(d) merely because of a default on the part of the union to meet those requirements The Board adopted the administrative law judge's findings and conclusions without any comment The Seventh Circuit Court of Appeals had a great deal of comment. In refusing to en- force the Board Order that court held. The Administrative Law Judge concluded as a matter of law that the Association violated Section 8(d)(4). Since the command of Section 8(d)(4) was directed only to the initiating party since the Union, not the Association, initiated this dispute, the Asso- ciation cannot be held liable for violating Section 8(d)(4), on which the findings of unfair labor prac- tices violative of Section 8(a)(5) and (1) were predi- cated. Furthermore, there is nothing in the legislative history of the Act which suggests either that the extent of the "cooling-off" period is variable, de- pending on when the initiating party chooses to notify the mediators, or that the mediation provi- sion is operative independently of the entire Section 8(d) scheme. On the contrary, the legislative history suggests that notice to the mediation services within thirty days after notices is given to the other party 11 The preamble to Sec 8(d)(l)-(4) states that no party shall make a modification unless the party desiring "such" modification gives the re- quired notices It thus apears that no party can make the modifications desired by the initiating party unless the notices are given Here Re- spondent did not make the modifications desired by the Unions (who were the initiating parties) The wording of Sec 8(d) does appear to place all the obligations of Sec 8(d)(l)-(4) solely on the initiating party implies the corresponding obligation by the nonini- tiating party to bargain in good faith during the re- maining portion of the sixty-day period. Thus, once the noninitiating party has observed its duty to bar- gain collectively during the sixty-day period subse- quent to receiving notice, it has fulfilled its duty under Section 8(d), whether or not the initiating party has met its obligation under Section 8(d)(3) to notify state and federal mediators In Hooker Chemicals Corp., 224 NLRB 1535 (1976), enf. denied 573 F 2d 965 (7th Cir. 1978), the Board had an opportunity to reconsider its Peoria decision in the light of the Seventh Circuit's refusal to enforce it. The facts were very similar to those in Peoria The union was the initiating party, it gave notice required by Section 8(d)(1); it did not give timely notice to the mediation services, and the employer locked out its employees more than 60 days after the 8(d)(1) notice but less than 30 days after the 8(d)(3) notice to the mediation services. The Board decided to follow its Peoria decision and found that the company violated the Act, holding (at 1538). It is undisputed that the noninitiating party, here the Respondent, does not have any obligation under Section 8(d)(3) to file such a notice But since the obligation of Section 8(d)(4) falls equally on both parties, the noninitiating party, in order to comply with its duty to maintain the status quo during the statutory period of mediation, may find it necessary to file such a notice or compel the other party to do so, if it intends to resort to economic actions with- out violating the Act. Although this appears to shift the burden of filing the notice of dispute, it operates to facilitate the mediation period which is the crux of Section 8(d)(4) of the Act The Seventh Circuit in denying enforcement of the Board Order held (573 F.2d at 967-968): The Board's position was that the employer vio- lated 8(d)(4) by locking out its employees before the mediation services had 30 days to intervene, even though the burden to notify the mediation services was clearly on the union. We refuse to enforce this construction of 8(d) because it requires contorting the statute's plain language without any clear indi- cation of legislative intent suggesting such a perver- sion We are of the opinion that the employer ful- filled its statutory duties under 8(d) by bargaining in good faith until the contract expired It has long been Board policy to require administrative law judges to follow Board rather than circuit court law, where there is a conflict between the two, until such time as the Supreme Court has ruled. Regency at Rodeway Inn, 255 NLRB 961 fn 2 (1981); Iowa Beef Packers, 144 NLRB 615 (1963), enf. denied in part 331 F 2d 176 (8th Cir 1964). In the instant case Respondent, the noninitiating party, modified the contract after the ex- piration of that contract under circumstances where the mediation services did not have the full 30 days' notice UNITED ARTISTS COMMUNICATIONS of the existence of a dispute. Unless some other defense is successfully raised, a finding is required under the Board's Peoria and Hooker cases, supra, that Respondent has refused to bargain in violation of Section 8(d) and Section 8(a)(5) of the Act. Respondent has not advanced any additional defenses that would preclude such a find- ing. It is true that union officer Blanchard "understood" that another union agent requested the Federal Media- tion Service to conduct a meeting. Such meetings were held on November 8, 1982, and January 20, 1983. How- ever, even if an informal oral notice is sufficient to meet the requirements of Section 8(d)i i and even if the notice of one party can be relied on by the other party, 12 there was no notice to the State Mediation Service. Such notice to the State Mediation Service is mandated to the same degree as notice to the Federal Mediation Service. See Retail Store Employees Local 322 (Wilhow Corp), 240 NLRB 1109 (1979) 2. The status of the strikers As found above in section B,3, the Unions decided to strike because Respondent was about to change the working conditions and then struck when the changes were implemented. District 2 and the southern California Locals struck in the southern California unit on October 11 and the Phoenix Local struck in the Phoenix unit on December 6, 1982. Both strikes were intended to put pressure on Respondent to accept terms and conditions of employment that were desired by the Unions rather than those which Respondent had put into effect. Under ordinary circumstances the strikes would have been eco- nomic in nature However, in the instant case the changes in conditions of employment that Respondent put into effect, though not improper in themselves, were unlawful because proper notification had not been given to state and Federal mediation before the changes were made. The Unions did not strike because of Respondent's failure to give that notice They struck because they were dissatisfied with the changes. The question is whether the failure to give notice so tainted the changes that the strike should be considered to be an unfair labor practice strike As the Board held in Tufts Brothers, Inc., 235 NLRB 808, 810 (1978).13 An unfair labor practice strike is one which is caused in whole or in part by an unfair labor prac- tice The requirement of a causal connection be- tween the unfair labor practice and the strike is not satisified merely because the two coincide in time. It is necessary for the Board to find that Respond- ent's unlawful conduct in fact constituted a contrib- uting cause to the strike that followed. In the instant case Respondent engaged in an unfair labor practice by modifying the contract without proper notice having been given to the mediation services. The unions struck because of those modifications. Whether or not 11 See Mine Workers Local 1854 (Amax Coal Co), 238 NLRB 1583, 1609 fn 43 ( 1978), enf denied in part 614 F 2d 872 (3d Cir 1980) 12 NLRB v Mar-Len Cabinets, 659 F 2d 995 , 998 (9th Cir 1981) " See also Whisper Soft Mills, 267 NLRB 813 (1983) 83 the unions even knew of any notice requirements, the modifications were unlawful because of the context in which they were given. Neither the failure to give notice standing alone nor the modifications in the contract standing alone were unlawful. It was the combination that violated the Act and I do not believe that the two parts can be separated in assessing the motivation for the strikes. I therefore find that the strikes were unfair labor practice strikes and that the strikers were unfair labor practice strikers. CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing and giving effect to collective-bargaining proposals covering terms and con- ditions of employment of its employees in the southern California and the Phoenix bargaining units at a time when the notice provisions of Section 8(d)(3) and (4) of the Act had not been fully complied with. 2. Respondent's employees in the southern California and the Phoenix bargaining units who struck in protest against the changes made by Respondent engaged in unfair labor practice strikes and were unfair labor prac- tice strikers. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom, and to take certain affirma- tive action designed to effectuate the policies of the Act. The Charging Party, the General Counsel, and the Re- spondent are in sharp disagreement with regard to the nature of the remedy The Charging Party takes the position that Respond- ent's late filed notice to the mediation service was of no effect because it was given in the context of an outstand- ing unremedied unfair labor practice, that a status quo ante remedy is required, that all employees should be re- instated with full backpay, and that no change in the terms and conditions of employment should be allowed until after the violation is fully remedied and a new proper notice to the mediation service is given. In its brief, the Charging Party argues at length for the propri- ety of such remedy. However, such a remedy would re- quire a substantial change in existing Board law It would not be appropriate under the cases cited below. The General Counsel contends that Respondent's em- ployees in the Southern California and the Phoenix Local should be entitled to backpay for a limited time. Under the General Counsel's view of the case the back- pay should begin as of the date Respondent made the unilateral change in each unit and end 30 days after Re- spondent gave notice of the dispute to the mediation services The change in the southern California unit was on October 11, 1982, and the change in the Phoenix unit was on December 6, 1982. Respondent gave notice to the Federal and State Mediation Services on January 26, 1983 The General Counsel also contends that the em- ployees should be given the reinstatement rights due to unfair labor practice strikers. Those two positions taken by the General Counsel appear to be inconsistent In the 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of a discharge or constructive discharge, strikers are not entitled to backpay until they offer to return and are refused . i 4 That applies even to unfair labor practice strikers. There is no allegation in the complaint , or find- ing in this decision that the employees were discharged, constructively discharged , or unlawfully denied re instate- ment. As of the date of the trial none of the strikers had offered to return to work The General Counsel places primary reliance for its position with regard to remedy on Mar-Len Cabinets, 243 NLRB 523 (1979), enf denied in part and remanded on other grounds 659 F.2d 995 (9th Cir. 1981), original deci- sion affirmed 262 NLRB 1398 (1982). In that case the Board found that a company violated Section 8(a)(5) of the Act in two separate units, an inside and an outside unit. With regard to the inside unit the Board held that the company violated the Act by refusing to bargain in good faith and by unilaterally withdrawing recognition from a union . There was no 8(d) notice issue in that part of the case . With regard to the outside unit the Board found that the company , who was the initiating party, violated the Act by unilaterally implementing its bargain- ing proposals without providing the mediation services with timely notice of the dispute In that case the union refused to bargain in the outside unit because it took the position that an associat ionwide contract covered that unit The company filed notices with the mediation serv- ices after it made its unilateral changes. The Board or- dered the company to make the outside employees whole for loss of wages and benefits incurred as a result of the company's unilateral implementation of its bargaining proposals from the time those proposals were implement- ed until 30 days after the notice to the mediation services was given That is the relief sought by the General Counsel in that instant case The Respondent contends that it has not violated the Act but goes on to argue that if a violation is found, it would be cured by the posting of a notice and that a backpay award would constitute a penalty rather than a remedy . In support of that position the company cites Fox Midwest Theatres, 158 NLRB 1096, 1099-1100 (1966). That case was similar in many ways to the instant one. There the company made unilateral changes with- out giving the proper 8(d) notices and those changes re- duced the amount of available work The Board adopted the administrative law judge's decision which held: The only substantial problem posed by the record is the contention of the General Counsel that the re- medial order to be entered herein require Respond- ent to reinstate Winburn and Bowman to their former positions and to make them whole for any loss of pay suffered since October 6, together with interest thereon at 6 percent per annum . I find no merit to this contention. The General Counsel makes no claim, indeed the record contains no evidence , that Respondent's con- 14 As the Board held in Abilities & Goodwill, 241 NLRB 27, 28 (1979), enf denied on other grounds 612 F 2d 6 ( 1st Cir 1979) striking employees-who have not been unlawfully dis- charged-are not entitled to backpay while engaged in a strike unless and until they abandon the strike and request reinstatement duct in terminating either the contract or the em- ployment of Winburn and Bowman was motivated by union animus Nor is there any claim or evi- dence, except for the failure to give the required notice to the Federal and State authorities, that Re- spondent did not negotiate in good faith for a new contract . On the contrary, Winburn's own testimo- ny requires a finding that Respondent endeavored in good faith to reach agreement with the Union. Having failed to reach accord, and being confront- ed with the Union's demand that the 49-hour guar- antee be continued Respondent was within its rights in terminating the employment of these two men. "The power [of the Board] to command affirma- tive action is remedial , not punitive, and is to be ex- ercised in aid of the Board 's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those conse- quences are of a kind to thwart the purposes of the Act . . . . Here, there is no basis for a finding that the [terminations of the two men] were a conse- quence of the unfair labor practices found by [me, or that these terminations] in themselves thwart any policy of the Act, or that [the reinstatement and award of backpay] would in any way make the order to cease the specified practices any more ef- fective." [Emphasis supplied] . Consolidated Edison Co. of New York, Inc v. N.L.R.B., 305 U.S. 197, 236. Here, reinstatement of Winburn and Bowman, and an award of backpay, would bear no relation- ship to the violations found, nor would it remedy or tend to remedy the unfair labor practices found. "The Act is essentially remedial. It does not carry a penal program declaring the described unfair labor practices to be crimes . The Act does not prescribe penalties or fines in vindication of public rights." Republic Steel Corp. v. N.L.R.B., 311 U S 7, 10 To award backpay to Winburn and Bowman because Respondent failed to give the statutory notice would be no less than the imposition of a fine or penalty. It is mere speculation to assume that the negotia- tions between the parties would have been more fruitful if the Federal or State authorities had been notified In any event, the parties stipulated that the Union itself gave notice to these authorities on October 8, 1964, and Winburn testified that the parties had further negotiation meetings on October 27, and November 4 and 27. It was also undisputed that Re- spondent on December 7 and again on December 22, repeated its offer to have Winburn and Bowman "return to work to do whatever work may be avail- able without a guarantee of a certain amount of work per week " Notwithstanding this continuing stalemate through December, the record fails to dis- close that either the Federal or State authorities in- tervened notwithstanding the Union's notice to such authorities given on October 8. Respondent's failure to give earlier notice must therefore , under the cir- cumstances existing here, be deemed to be no more UNITED ARTISTS COMMUNICATIONS than a technical violation of the Act which caused no loss or harm to the Union or its members To grant the General Counsel the relief requested by him would constitute the imposition of a fine or penalty for that technical violation This I decline to do. The reasoning in that case is persuasive. Backpay, to be a remedy, must be geared to putting employees back in the position they would have been in but for the unfair labor practice. Though ambiguities may be construed against the wrongdoer, there must be some basis to reasonably infer that the employees would have received the amount of backpay but for the unfair labor practice. As in the Fox Midwest Theaters decision I do not believe that such a reasonable inference is warranted under the facts of this case There is no allegation of overall bad- faith bargaining and apparently the parties had reached an impasse. Basic problems relating to technological changes were involved and the parties met and bargained over the impact of those changes on many occasions The Federal Mediation Service was in fact involved in those negotiations more than 30 days before the changes in the Phoenix unit were put into effect. The Federal Mediation Service was involved in the negotiations in the southern California unit after the changes had been put into effect but was unable to make any contribution to the resolution of the probemm. The record does not give a clear indication of how much work was available after the changes The Union never tested that matter be- cause as soon as the changes were made, a strike oc- curred and as of the date of the trial, no replacements had been hired. In the absence of unlawful discharge or constructive discharge strikers are not entitled to back- pay until after their offer to return to work has been re- fused. There are other cases where backpay has been award- ed to remedy a violation based on a failure to give 8(d) notices, but in each of them there are significant factual matters that distinguish them from the instant situation 15 The central question is whether the remedy provisions of Fox Midwest Theatres, supra, were overruled by the Mar- Len decisions, supra. It is noted that in the original Mar- Len decision, 243 NLRB 523, 534 (1979), the Board 15 See, for example, Hooker Chemicals Corp, supra and Peoria Painting Contractors, supra, in which there were unlawful lockouts, Pacific Grind- ing Wheel Co, 220 NLRB 1389 (1975), enfd 572 F 2d 1343 (9th Cir 1978), and Bagel Bakers Council, 174 NLRB 622 (1969), enfd in part 434 F 2d 884 (2nd Cir 1970), in which there was overall bad-faith bargaining, and Huttig Sash & Door Co, 154 NLRB 811 (1955), enfd 377 F 2d 964 (8th Cir 1967), in which there was a midterm modification 85 adopted the decision of the administrative law judge which cited Fox Midwest Theatres for the proposition that 8(d)(3) notices were required There is no other ref- erence to Fox Midwest Theatres in that case. I believe that Mar-Len is sufficiently different on its facts from Fox Midwest Theatres that there is no basis for saying that Mar-Len overruled Fox, sub silentio. There was no bargaining, much less bargaining to impasse, the outside unit in Mar-Len. Also in Mar-Len there was overall bad- faith bargaining in the inside unit that may well have col- ored the remedy with regard to the outside unit. In sum I believe that under the narrow factual circumstances present in Fox Midwest Theatres and in the instant case the Fox Midwest Theatres decision is still controlling law I shall therefore not recommend the backpay award re- quested by the General Counsel. As the strikers in the southern California and Phoenix bargaining units have been found to be unfair labor prac- tice strikers, I recommend that they be given reinstate- ment rights as are set out in Whisper Soft Mills, 267 NLRB 813 (1983) It is recommended that Respondent be ordered to reinstate those employees upon their un- conditional request, to their former jobs or, if such posi- tions no longer exist, to substantially equivalent posi- tions, t 6 without prejudice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, any replacements, and that it make whole such employees for any loss of earnings resulting from its failure to reinstate them within 5 days of their uncondi- tional request with interest thereon to be computed in ac- cordance with Florida Steel Corp., 231 NLRB 651 (1977) 17 If Respondent has already rejected, or hereaf- ter rejects, unduly delays, or ignores any 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 un- conditional offer to return to work. i 8 Such employees for whom no employment is immediately available shall be placed on a preferential hiring list for employment as positions become available and before other persons are hired for such work. Priority for placement on such list is to be determined by seniority or some other nondis- criminatory test 19 [Recommended Order omitted from publication.] 16 Nothing herein is to be construed as to require Respondent to rein- state the job duties of the projectionists that existed prior to modifications that Respondent made on October 11 and December 6, 1982 17 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 18 See Newport News Shipbuilding and Dry Dock Co, 236 NLRB 1637 (1978), enfd 602 F 2d 73 (4th Cir 1979) 1s Cutten Supermarket, 220 NLRB 507 (1975)