Foote & Davies, Inc.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foote & Davies, Inc. and Atlanta Printing Pressmen & Assistants' Union, Local No. 8. Case 10- CA-18431 17 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 13 September 1983 Administrative Law Judge Howard I. Grossman issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed a brief in opposition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, 2 and conclusions and to adopt the recommended Order3 as modified. We agree with the judge, for the reasons stated below, that the Respondent violated Section 8(a)(3) and (1) by failing to recall Spencer Smith. Accord- ing to the credited testimony, the relevant facts are as follows. Spencer Smith, who had worked for the t The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law 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 reversing the findings 2 Because the judge found that the Respondent unlawfully refused to recall employee Spencer Smith commencing in July 1982, he found it un- necessary to pass on the Charging Party's contention that the Respondent also unlawfully refused to recall Smith in November 1982 when it re- called some laid-off employees We agree However, we disavow the judge's nonprejudicial misstatement, made in his discussion of this point, that whether a newly opened position is substantially equivalent to that last held by an economic striker is not a "determinative distinction" with regard to the striker's reinstatement rights. Certified Corp, 241 NLRB 369, 373 (1979) The judge also misquoted, at sec B,3, par 8, of his deci- sion, a portion of the Respondent's brief to him That excerpt should read. [The Respondent's] transfers of active employees had no effect what- soever on Mr Smith's reinstatement rights The transfers made by the company were made in connection with the recall of employees having recall rights superior to those of Mr Smith. If the transfers had not been made, Mr Smith still would not have been reinstated because the employees on layoff or leave of absence still would have had a superior right to any vacancies that were available. This error is nonprejudicial 3 The Respondent excepts to the expunction of its answer to Smith's grievance filed in July 1982 In this answer, the Respondent informed Smith that it no longer considered him an employee and thereby gave bun effective notice that his reinstatement rights as an economic striker would not be honored An expunction order is generally appropriate to remedy discriminatory adverse effects on employment See R. H Macy & Co, 266 NLRB 858, 861 fn 19 (1983) We therefore adopt the judge's recommended expunction order We have considered this case in light of the standard set forth in Hick- mott Foods, 242 NLRB 1357 (1979), and have concluded that a narrow cease-and-desist order is appropriate We shall modify the judge's recom- mended Order accordingly Respondent for 17-1/2 years, most recently as a second pressman (he also had worked as a first pressman), made an unconditional offer to return to work on 16 July 1982 at the end of an economic strike which he honored in sympathy. Two days earlier, on 14 July, first pressman Robert Samples gave notice of his resignation. A notice was posted instructing all interested employees to apply by 23 July, and Samples' last day of work was 29 July. The position was filled by then second pressman Creighton Fuller. Fuller's vacated position was in turn filled by E. Talmadge Whatley, an employee who had been on, sick leave for 3 months but who had returned to work on 19 July with the Re- spondent's advance notice. Another opening occurred during the first week of January 1983 when first pressman Donald Lewis resigned. Second pressman J. B. Baker was placed in the newly opened position. His job in turn was filled by a laid-off employee.4 Smith was not ad- vised of either of these openings. It is undisputed that the collective-bargaining agreement between the Respondent and the Union gave the employee with the greatest departmental seniority "first consideration" for promotion and recall purposes and that the Respondent's practice was to fill job openings on that basis. It is also un- disputed that Smith had greater departmental se- niority than either Fuller, Whatley, Baker, or the unidentified laid-off employee who was recalled in January. Of 167 employees in the department, Smith was no. 24 in seniority, and Fuller, Whatley, and Baker were no. 50, no. 61, and no. 99, respectively.It is well settled that when a vacancy occurs for which a returning striker is qualified, he is entitled to be considered for this position on the same basis as any other employee, unless the em- ployer can show a legitimate business reason for not doing so-5 Here, two vacancies arose,6 one in July 1982 and one in January 1983, for which not only was Smith qualified but for which, according to the Respondent's own seniority system and prac- 4 The record does not reveal the identity of this employee or the date he was laid off. s NLRB v. Fleetwood Trailer Co., 389 US 375 (1967), Laidlaw Corp, 171 NLRB 1366, 1369 (1968), enfd 414 F 2d 99 (7th Cir 1969), cert denied 397 U.S. 920 (1970) See also Textron, Inc, 257 NLRB 1 (1981), enfd in pertinent part 687 F.2d 1240 (8th Cir 1982), MCC Pacific Valves, 244 NLRB 931 (1979), enf denied in pertinent part 665 F 2d 1053 (9th Car. 1981). 6 The Respondent contends that pursuant to Giddings & Lewis Y. NLRB, 675 F 2d 926 (7th Car 1982), denying enf of 255 NLRB 742 (1981), no vacancy occurred in July or January As the judge correctly noted, that case dealt with whether vacancies were created by the layoff of permanent striker replacements. Here, there were no permanent re- placements and the vacancies were created by the resignation of regular employees Accordingly, Giddings & Lewis is inapplicable We find it un- necessary to rely on the judge's discussion of Giddings & Lewis and the related case, Bancroft Cap Co, 245 NLRB 547 (1979) 278 NLRB No. 12 FOOTE & DAVIES 73 tice, he was more qualified than the employees placed in those position.' Further, the Respondent had neither alleged nor adduced evidence that it had a legitimate business reason for not recalling Smith. 8 We accordingly conclude that by failing to recall Smith to fill 'the vacancies created in July 1982 and January 1983, the Respondent violated Section-8(a)(3) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Foote & Davies, Inc., Doraville, Geor- gia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following as paragraph 1(b). "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. 7 Member Johansen also infers from the Respondent's shifting reasons for not recalling Smith that it acted from animus to his protected con- certed activity. 8 In its brief to the Board, the Respondent claims it could lawfully transfer employees instead of recalling Smith as long as it did so for non- discriminatory reasons However, for such a transfer to be lawful , it, too, must be based on a legitimate business purpose See Overhead Door Corp., 261 NLRB 657, 664-665 (1982); Pillows of California, 207 NLRB 369 (1973) The Respondent's contention is therefore without merit. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to offer qualified, unrein- stated economic strikers who have made uncondi- tional applications for reinstatement available posi- tions for which they are qualified because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Spencer Smith immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL remove from our files our 27 July 1982 answer to a grievance filed by Spencer Smith and notify,him in writing that this has been done and that the answer will not be used against him in any way. FOOTE & DAVIES, INC. Gaye Nell Hymon, Esq., for the General Counsel. Richard R. Boisseau, Esq., and Richard R. Carlson, Esq. (Kilpatrick & Cody), of Atlanta, Georgia, for the Re- spondent. James D. Fagan Jr., Esq., and Debra Schwartz, Esq. (Stan- fora, Fagan & Giolito), of Atlanta, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge was filed on August 12, 1982, and an amended charge on September 22, 1982, by Atlanta Printing Pressmen and Assistants' Union, Local No. 8 (the Union or Charging Party)., A complaint and notice of hearing issued on September 24, 1982, alleging that Foote & Davies, Inc. (Respondent) refused to reinstate striker Spencer Smith on July 16, 1982, because of his union activities, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. A hearing was held before me on these matters in At- lanta, Georgia, on January 27, 1983. On the entire record, including my observation of the demeanor of the witnesses, and consideration of briefs filed by the Gener- al Counsel, Respondent, and the Charging Party, I make the following - FINDINGS OF FACT 1. JURISDICTION The pleading and a stipulation of the parties establish that ' Respondent is a Delaware corporation with an office and place of business located at Doraville, Geor- gia, where it is engaged in the printing business. The pleadings further establish that, during the calendar year preceding issuance of the complaint, Respondent sold and shipped from its Doraville! Georgia facility , finished products valued in =excess of $50,000 directly to custom- ers located outside the State of Georgia. Respondent admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICE A. Factual Summary 1. The strike and the new contract Respondent has approximately 800 employees, about 225 of whom, located in the pressroom and related facili- ties, are represented by the Union. Three other labor or- ganizations have representative status with respect to other employees of Respondent. The Company has had a collective-bargaining agree- ment with the Charging Party for many years. In mid- October 1980, the then existing agreement expired, and the Union engaged in an economic strike. The parties continued to negotiate, and reached agreement on a new contract effective from November, 13, 1980, to October 12, 1983 (Jt. Exh. 1). On the same day that the parties reached agreement, the Carpenters Union, representing other Respondent's employees, put up a picket line at Respondent's plant. Many of the Company' s pressroom employees honored the Carpenters picket line and failed to return to work. On November 20, 1980, Respondent sent telegrams to all members of the Union urging them to report to work, and stating that the Company would be unable to meet its commitments to its customers if the employees did not report (C.P. Exh. 3). A few days thereafter, all the strik- ers, except Spencer Smith, returned to work. None of them was required to file an application to do so. 2. Spencer Smith and the sympathy strike Smith continued to honor the Carpenters' picket line. The parties agreed that the Union did not waive Smith's right to engage in a sympathy strike on behalf of the Carpenters, and further agreed that in doing so, he was engaged in protected activity. I concur on the basis of established Board law. Smith was first employed by Respondent in March 1963 as an apprentice assistant and unit assistant. He completed the apprenticeship program and was certified as a journeyman web offset pressman. From about 1971 to about 1978, he was a "first pressman," and as such was responsible for the direction of a crew and for the final product coming off one of Respondent's presses. At the time of the events in this case, Smith was "second pressman" on a color press. During his period of em- ployment, he had worked on six of the Company's seven presses. At the time of the strike Smith was the Union's chapel chairman and, as such, processed grievances, collected dues, and assisted employees with respect to their union activities. Smith worked on the day shift, and appointed assistant chapel chairmen for the other two shifts. Just before Thanksgiving 1980, Smith's supervisor called and asked whether he would be returning to work which was available for him. Smith answered that he would not be returning until the Carpenters' picket line came down. Smith called the supervisor after the rest of the strikers returned a few days later and reaffirmed this position. 3. Smith's return to the plant The Carpenters' picket line came down between 7:30 and 7:40 a.m. on July 16, 1982. At the same time, Smith started to enter the plant in his van. The first shift, on which Smith had worked, started at 8 a.m. Smith was stopped by the guard, and was approached by Skip Mar- tens, who works in Respondent's personnel department.' Martens asked Smith whether he was coming back to work, and Smith replied that he was. Martens asked Smith to pull over to the side and park. The latter did so, and Martens went to the guardhouse and made a tele- phone call. He returned and told Smith that if the latter desired work he would have to come back between 8:30 and 11 a.m. when, "as [Martens] put it, he normally takes applications for employment." "Who decided to handle it this way?" Smith asked Martens, and the latter replied that it was David C. Jones (Respondent's vice president for industrial rela- tions). "If that's the way you want to handle it" Smith responded, and this ended the conversation.2 Smith did not return to the plant to file an application. Instead, he filed a grievance 4 days later asserting that he had been "discharged without just cause." The grievance asserts that Martens told Smith that he would have to file an application if he "desired employment." "I al- ready have a job at Foote & Davies," the grievance con- cludes. It is signed by Smith and a chapel chairman (G.C. Exh. 2). In response, Vice President Jones wrote as follows: We have received this piece of paper which pur- ports to be a grievance. We deny any relief because (1) the document is not a grievance, (2) Spencer Smith is not an employee, (3) the document does not present a claim under any provision of the con- tract, and (4) the matter is not grievable or arbitra- ble. Jones testified that he did not have any discussion with the Union about the matter, because there was no viola- tion of the contract. Asked about his written answer, Jones replied: "The document states that this is not a grievance, and that Spencer Smith was not at work, an active employee, and that the document doesn't present any claim on the contract. 3 There was no grievance." Under the date of September 10, 1982, union counsel wrote a letter to the Company's counsel requesting that it be considered as "another unconditional offer by Spen- cer Smith to return to work at Foote & Davies" (C.P. Exh. 1). Although the company representative replied, ' The parties stipulated that Martens was an agent of Respondent z The foregoing account of the Smith-Martens conversation is based on the credited testimony of Smith Martens did not testify a Sec. X, item 1, of the collective-bargaining agreement reads as fol- lows: No employee shall be discharged for Union activities except and unless such activities interfere with the normal and regular work of the office It is recognized that the Chapel Chairman or Assistant Chapel Chairman shall be granted reasonable time to carry out has responsibilities such as collecting dues and processing grievances. [Jt Exh 1] FOOTE & DAVIES 75 he declined to do so in detail on the ground that the matter was before the Board (C.P. Exh. 2). 4. The issue of whether work was available for Smith-the Company's seniority policy Jones testified that 'Martens called him on July 16, 1982, and informed him that "Spencer Smith was at the gate, coming in to go to work." According to Jones, he told Martens that "there was no vacancies [sic], and if he wanted to make application, that he should do so when the personnel office was open." However, the asserted claim that there was no vacancy was not communicated to Smith at the time. Further, as indicated above, Jones' written answer to the grievance did not assert lack of work. Respondent filed an answer to the complaint on October 7, 1982. Although various affirmative defenses are alleged, there is no allegation of lack of available work for Smith (G.C. Exh. 1(g)). The first time that this claim as made by Respondent was at the hearing on Jan- uary 27, 1983.4 On July 14, 1982, 2 days before Smith appeared at the plant, Robert Samples gave Respondent notice of his in- tention to resign about August 1. Samples was a first pressman, and had been employed since 1962. Respond- ent posted a notice, dated July 15, 1982, announcing an opening for a first pressman. The notice was placed over the timeclock, and advised employees to respond by-July 23 (C.P. Exh. 5). Samples quit work about July 29. The opening was filled by Creighton Fuller, a second press- man. Fuller's job, in turn, was filled by Talmadge E. Whatley,5 an employee who had been on sick leave and had undergone heart surgery. Whatley arrived at the plant on July 19, prior to Samples; departure, in order to determine whether he would be able to work.6 The collective-bargaining agreement requires Re- spondent to maintain a list showing plant and job seniori- ty of each employee. One section of the contract covers procedures to be followed in the event of a "reduction" and "subsequent increase in the size of the working force." This section applies to layoff and recall, and pro- vides that the "last [employee] to be employed in''the [Web] Department, [i.e., the presses] shall be the first to be laid off," while the, "last to be laid off in the various job classifications shall be the first to be reemployed (Jt. Exh. 1, sec. XIII, item 3.) In effect, layoff and recall are governed by job seniority.? As noted above, Respondent posted an opening for a first pressman on July 15. Although Smith had previous- ly held this position, he was a second pressman at the time he participated in the strike , -as was Creighton Fuller. The contract section covering "promotions" pro- vides that "the employee with the highest job seniority in the next lower classification in the department where, the vacancy occurs shall receive first consideration for the promotion ...." (Id., sec. XIII, item 7.) Harold G. Landis, an employee of the Company for over 17 years and a chapel chairman, testified that he dealt with seniority matters and that it was company policy to "go by seniority first", in cases of "a job open- ing." His testimony is consistent with and supplements the contract provisions outlined above . I credit that testi- mony and find that Respondent's policy, in cases of recall after layoff, promotions, and "job - openings" in general, -was to give first consideration to departmental seniority. Landis and Greer testified, and Respondent stipulated, that Smith's seniority was superior to Fuller's at the time the latter received the job vacated by Samples in July. The departmental seniority list is in evidence, and con- firms this fact. There are about 167 names on the list, with some deletions. Smith is designated as no. 24 in se- niority, while Fuller is no. 50. Whatley, who filled Fuller's job; is no. 61 (C.P. Exh. 6). - According to Press Room 'Manager Greer, the Com- pany discontinued operation of one of the presses in the first half of October 1982. About 24 employees were laid off, including pressman Tom Curran. About 15 employ- ees were downgraded. The Company renewed operation of the press on November 15, 1982, and all laid-off em- ployees except Curran were recalled. Greer testified that Smith's seniority was superior to that of any of the re- called employees. He was not advised of any of these openings, according to Greer's credited testimony.8 Greer further averred that first, pressman Donald Lewis quit in the first week of January 1983, and that his job was filled by second pressman J. B. Baker.9 The latter had been one of the downgraded employees in the October layoff. Baker's placement on the seniority list is no. 99, as, compared to Smith's no. 24 (C. P. ' Exh. 6), a fact confirmed by Greer.'Baker's job, in turn, was filled by - a laid-off employee. Smith was not advised of these openings. 1,0 4 After Respondent at the hearing asserted its defense of lack of work, the General Counsel requested a subpoena duce tecum and a continuance for the purpose of securing various documents from Respondents pertain- mg to the issue of lack of work I denied the motion, and the General Counsel's special appeal from my ruling was dented by the .Board The Charging Party filed a motion to reopen record on the basis of events which allegedly took place subsequent to the hearing The General Counsel supported and Respondent opposed the motion, which I denied, 5 Whatley is referred to as "Eugene Whatley" in the transcript The name given above, which I conclude is accurate, appears on Respond- ent's departmental seniority list (C P. Exh 6). 6 The description of the filling of the vacancy caused by Samples' de- parture is based on the testimonies of Vice President Jones, Respondent Press Room Manager David T Greer, and second pressman Harold G Landis As noted above, Fuller's job was filled by Whatley, who had been on sick leave The contract provides that an employee in such status retains company and job seniority (Jt. Exh 1, sec XIII, item 6). B. Factual and Legal-Analysis 1. Summary of principles governing reinstatement of economic strikers - The Supreme Court has established that economic strikers remain employees who are entitled to'be reinstat- 8 Vice President Jones said that he assumed he would have been able to reach Smith by letter or 'telephone, based on his personnel records, but did not try to do so. ' 9 Although Greer did not specifically identify Lewis as a "first' press- man, I infer that this was the job classification because the vacancy was filled by a second pressman, and from the context of the testimony 10 There were additional layoffs during the week of the hearing, ac- cording to Greer . He estimated that 66 employees were on layoff status at that time 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed to vacancies, although they may not replace perma- nent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). In balancing the competing in- terests of the employees' right to strike and the employ- er's right to carry on his business during the strike, there is a limit to the "permanence" which the employer may grant to replacements, and a 20-year grant of a seniority credit, or superseniority, exceeds the permissible limit, NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). A recall procedure established on these principles is inher- ently destructive of employee rights. The striker remains an employee until he has obtained other regular and sub- stantially equivalent employment, and he is entitled to a job for which he qualifies when it becomes available, unless the employer can show legitimate and substantial business justifications. There is no need to show antiun- ion motivation in such circumstances . NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Relying on these prin- ciples, the Board has concluded that economic strikers who unconditionally apply for reinstatement when their positions are filled by permanent replacements are enti- tled to full reinstatement when the replacements leave or when jobs for which they are qualified become available, unless they have acquired other regular and substantially equivalent employment, or the employer shows that le- gitimate and substantial business reasons justify the fail- ure to reinstate the strikers. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). 2. Smith's application for reinstatement Respondent in its brief argues that Smith failed to make an unconditional application for reinstatement. This contention is advanced in separate arguments. The first argument is that Smith's "attempt to return to work," as Respondent characterizes it, excluded "any terms except immediate reinstatement in his old position as First Press- man on the first shift."11 This argument is not supported by the factual record. According to Smith's uncontra- dicted testimony, Martens asked him whether he was coming back to work, and Smith replied affirmatively. There is no evidence whatever that Smith attached any conditions to this application for work. Although it was made just prior to the start of the first shift at 8 a.m., this was a coincidence-the Carpenters' picket line came down between 7:30 and 7:40 a.m., and Smith, as he had advised management officials during his sympathy strike, made immediate application to return to work. There is no doubt that Respondent viewed the matter in this light-Vice President Jones testified that Martens called him from the gate and said that Smith was "coming in to go to work." Respondent's second argument concerning Smith's ap- plication asserts that he "was instructed to report to the personnel office during regular office hours if he wished to make' application for reinstatement." This assertion misstates the facts. Martens actually told Smith to come back between 8:30 and 11 a.m., when the former normal- ly took applications "for employment." Respondent 1 i Smith was a second pressman at the time he went on strike, al- though he had previously served as a first pressman. argues that Smith was not told that the application would have to take any particular form or that he would have to apply as a new hire. However, the fact remains that Smith was told to file an application "for employ- ment," not "for reinstatement."12 Smith's account of Martens' instruction was memorialized in his grievance, Smith said that he was asked to apply for employment, and responded that he already "had a job." The griev- ance thus clearly informed Respondent of Smith's view that Martens had demanded that he file an employment application. Vice President Jones' answer to the griev- ance did nothing to dispel this conclusion. In fact, it con- firmed it, since Jones denied that Smith was even an em- ployee. This is consistent with Smith's account that Mar- tens told him he would have to file an application "for employment" if he wanted to work at Foote & Davies. Further, as set forth above, Respondent did not require the returning strikers in 1980 to file any applications. The different treatment of those strikers, the undisputed nature of Martens' instruction to Smith in 1982, and its confirmation by Jones, make it clear that Respondent re- quired Smith to file an application for employment before returning him to work. Respondent relies on NLRB v. Pepsi-Cola Bottling Co. of Topeka, 613 F.2d 267 (10th Cir. 1980), enfg. in part and denying in part 227 NLRB 1959 (1977). The Board had concluded that the employer committed an unfair labor practice by requiring economic strikers to file em- ployment applications if they wished to fill future vacan- cies. According to the court, the record disclosed that the strikers were told to file "some kind of formal appli- cation," but that there was "evidence showing treatment consistent with continuing employee status" (supra at 271). The court concluded that the Board's finding was not supported by substantial evidence. In the case at bar, however, Smith was directed to file an employment appli- cation rather than one of an unspecified nature, and there is no evidence to show that he was considered by the Company as retaining employee status. On the contrary, Respondent said he was not an employee. The Supreme Court stated in Fleetwood that "[t]he right to reinstatement does not depend upon technicali- ties relating to application." 389 U.S. 375 (1967). The Board has concluded with judicial approval that verbal requests to return to work, some made on the telephone, constituted valid requests for reinstatement.' In one case, the Board found that the appearance of strikers at the plant constituted an offer to return to work. Sunbeam Lighting Co., 136 NLRB 1248 (1962). In another case, an ambiguous conversation between the striker and a super- visor made it clear under the circumstances that the striker intended to return to work. LaGrange Land Corp., 184 NLRB 693, 696-697 (1970).14 12 See Brinkerhoff Signal Drilling Co, 264 NLRB 348 (1982), wherein the Board found that the employer violated Sec. 8(a)(1) by, inter aha, re- quiring returning strikers to fill out an application register, which gave them the impression that they were not being granted preference in em- ployment as against new applicants 18 Albritton Engineering Corp-, 138 NLRB 940 (1962), enfd as modified 340 F 2d 281 (5th Cir. 1965), Hartmann Luggage Co., 183 NLRB 1246 (1970), enfd as modified 458 F 2d 178 (6th Cir 1971) 14 See also Rice Lake Creamery Co, 131 NLRB 1270 (1961), enfd 302 F.2d 908 (D.C Cir 1962) FOOTE & DAVIES 77 I, therefore, find that Smith made an unconditional ap- plication for reinstatement on July 16, 1982, and that Re- spondent required him to sign an employment applica- tion form before he could return to work. The Board has held this to be a violation of Section 8(a)(1) and (3). At- lantic Creosoting Co., 242 NLRB 192 (1979). Smith's offer was renewed in September 1982 by union counsel. 3. The availability of work Respondent's second principal contention is that there have been no job vacancies since July 16, 1982, which Smith was entitled to fill. Thus, the Company argues that it has hired no new employees since that date, and that all job openings have been filled by current employees who were either on leave of absence or on layoff. As Respondent views the law, an economic striker is not en- titled to displace such employees unless the latter have no reasonable expectation of reemployment, despite the fact that the striker may have seniority rights which are superior to the current employees. The Board held to the contrary in Giddings & Lewis, 225 NLRB 742 (1981). In that case, the employer's em- ployees engaged in an economic strike during which 323 permanent replacements were hired. The strikers made an unconditional offer for reinstatement at the end of the strike, and the employer established a preferential hiring list. As employees left the work force, the employer hired off this list. The employer also promulgated senior- ity rules providing that, in the event of a layoff, perma- nent replacements and reinstated strikers would be re- called on the basis of seniority, in preference to more senior unreinstated strikers. In doing so, the Board held the employer granted superseniority to the laid-off em- ployees in violation of Erie Resistor, supra, and Section 8(a)(1) and (3) of the Act.15 The employer's unlawful conduct consisted in "promulgating and maintaining se- niority provisions which discriminate against unreinstated strikers in the filling of all postlayoff vacancies as well as in the filling of job vacancies which do not result from layoffs . . . ." 255 NLRB at 745-746. The decision of the Court of Appeals for the Seventh Circuit, on which Respondent relies, denied enforcement of the Board's Order. Giddings &'Lewis v. NLRB, 675 F.2d 926 (7th Cir. 1982), denying enf. of 255 NLRB 742 (1981). The court's decision is grounded on the right of the employer, established in Mackay, supra, to replace striking employees with permanent replacements. Ac- cording to the court, the seniority rules in Giddings & Lewis serve "only to assure replacements the permanent status to which Mackay says they are entitled. Affirm- ance of the Board's holding that layoffs activate a strik- er's right to reinstatement would eviscerate the Mackay rule. Employers attempting to hire replacement workers could guarantee them employment only until a layoff oc- rs The Board discussed Bancroft Cap Co., 245 NLRB 547 (1979)- relied on by Respondent herein-and stated that the decision "does not permit an employer to escape its Laidlaw obligation by merely stating that laid-off employees have a reasonable expectancy of recall " 255 NLRB at 744 The Board noted that in Bancroft it had relied on the fact that the layoffs were for periods of only 2 to 7 days and were due to shortages of materials. curred. Such replacement workers could hardly be called `permanent'." (supra at 930.) There is no evidence in the case at bar, however, that strike replacements are involved. The relatively high po- sitions on the seniority list of Creighton Fuller and J. B. Baker, who filled vacancies after Smith had made his ap- plication for reinstatement , strongly militate against an inference that they were replacements. The same is true of Whatley, who filled Fuller's job. As noted above, the strike lasted only a little over a month in late 1980. The Company's telegram to employees in November 1980 said nothing about replacements. Instead, it suggested that the business would close down if the strikers did not return. I conclude that the evidence is insufficient to es- tablish that any of Respondent's employees were replace- ments hired during the short-lived strike. It follows that the court's rationale in Giddings & Lewis does not apply to this case, because the right of an employer to hire - strike replacements, established in Mackay, is not involved. A case closer to the facts herein is MCC Pacific Valves, 244 NLRB 931 (1979). Although strike replacements are involved, it is their departure and the filling of the subse- quent vacancies, rather than the employer's right to hire them, which was in issue. At the time of the departure of the strike replacements, there were qualified unreinstated strikers. Some initial job openings were not offered to these employees. Instead, employees then on the payroll bid on posted jobs. "Respondent invited unreinstated strikers to bid on the job that finally became open when the dust of upward mobility had settled, rather than on the first job which was posted" (244 NLRB at 932). The Board commented on this practice as follows: In opening those jobs for bidding, and in filling them, Respondent was ' not entitled to prefer strike replacements then on the payroll to qualified strik- ers awaiting reinstatement. Respondent could not bypass qualified unreinstated strikers by waiting to make a job offer to them only if there were no suc- cessful bidders from among the active strike re- placements nor could it wait until the chain reaction effect had run its course before offering the "final" job to a striker awaiting recall. Respondent was ob- ligated to offer the initial job vacancies created by the departure of strike replacements to unreinstated, qualified strikers [244 NLRB at 933-934]. By failing to offer these initial job vacancies to quali- fied strikers awaiting reinstatement, in preference to strike replacements then on the payroll, Respondent vio- lated Section 8(a)(1) and (3) of the Act (244 NLRB at 936-937). Respondent in its brief argues that MCC Pacific Valves does not apply to this case. Thus, the Company contends that its "transfers of active employees had no effect whatsoever on Smith's reinstatement rights. The transfers made by the Company were made in connection with the recall of employees having recall rights ' superior to those of Smith. If the transfers had not been made, Smith still would have had a superior right to any vacancies that were available." - ' 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent thus argues that Whatley-who came back from sick leave in July 1982-to take the job vacated by Fuller when the latter was transferred to Samples job-and the laid-off employee who was given Baker's job in January 1983 when the latter was awarded Lewis' position, both had recall rights superior to Smith, despite the fact that he was senior to both of them. This argument is contrary to the Board's finding in MCC Pacific Valves that the gravamen of the employer's offense was his failure to fill the initial vacancies with qualified, unreinstated strikers. In this case the relevant vacancies were those created by the departures of Sam- ples in July 1982, and Lewis in January 1983,16 not the vacancies created by the Company's transfers of other employees into their positions. The argument is also con- trary to the Board's conclusion in Giddings & Lewis that an employer may not discriminate against unreinstated strikers in the filling of vacancies.17 MCC Pacific Valves and other cases were cited by the Board to the reviewing court in Giddings & Lewis, in support of "a uniform rule that unreinstated strikers have a right to reinstatement when a vacancy occurs." Al- though the court stated that it agreed with the Board's summary of the cases, it considered them to be inapplica- ble in Giddings & Lewis because "a layoff, by definition, is not a termination of the employment relationship .... There is, therefore, no creation of a `vacancy' in the work force which would entitle a striker to reinstate- ment .. .." Giddings & Lewis v. NLRB, supra 675 F.2d 926, 931. In that case, the allegedly discriminatory se- niority rules applied in case of a layoff. In the instant case, however, the vacancies were created by the volun- tary resignations of Samples and Lewis, not by a layoff. The same issues arose in a later case, Textron, Inc., 257 NLRB 1 (1981), enfd. as modified 687 F.2d 1240 (8th Cir. 1982). In that case the Board found, inter alia, that the employer had violated the Act by failing to offer un- reinstated strikers the opportunity to bid on special rated jobs in preference to strike replacements then on the payroll. _ Some of the vacancies had been created by the departure of other strike replacements. The Board's reli- ance on MCC Pacific Valves was supported by the Court of Appeals for the Eighth Circuit, which stated as fol- lows: Randall's procedure was discriminatory in the same sense as the grant of superseniority in Erie Resistor;, Randall gave an additional preference besides per- manence to those who remained at work as opposed to those who struck, despite the fact that the latter 16 The Union argues that another opening for Smith was created in November 1982, when laid-off employees were recalled Curran, the pressman who was laid off, never returned and his position was not filled. Although Smith would obviously have been qualified for any of the other positions in November 1982, it is not clear that any of them were substantially equivalent to his last job as second pressman Although I do not consider this to be a determinative distinction in connection with re- instatement rights in general, I consider it unnecessary to pass on this contention in light of my other findings 11 Because the right of the Employer to hire strike reinstatements is not involved in this case, the Board's rationale in Giddings & Lewis is ap- plicable despite the opinion of the Court of Appeals for the Seventh Cir- cuit were still "employees" for legal purposes [687 F.2d 1240 at 1246].18 In similar manner, in the instant case Respondent did not fill either of the vacancies created by the departures of Robert Samples and Donald Lewis by awarding either job to Smith, despite the fact that he had applied and was more senior than either Fuller or Baker who re- ceived the jobs, and despite the fact that the Company's usual policy was to fill such jobs on the basis of seniori- ty. The only reasons suggested by the record for Re- spondent's failure to follow its usual policy are the facts that Smith engaged in a sympathy strike on behalf of the Carpenters and had been active as a chapel chairman. A final consideration is the applicability of principles concerning economic strikers to Smith, who had been an economic striker during the 1980 strike and thereafter was engaged in a sympathy strike just before his uncon- ditional application for reinstatement. The Union con- tends that the parties stipulated at the hearing that Smith continued to be a lawful economic striker when he chose to engage in a sympathy strike. Respondent's counsel ac- tually stated that Smith was engaged in protected activi- ty as a sympathy striker, and, when the Carpenters' picket line came down, "was entitled to certain rights under the law upon making an unconditional offer to return." I see no useful purpose in discussing ' the exact nature of the stipulation. The Board has uniformly held that "[t]he right to strike, including the right to engage in sympathy strikes or in refusals to cross other unions' picket lines, is a right guaranteed by the Act." ACF In- dustries, 247 NLRB 1056 (1980), revd.' on other grounds 641 F.2d 561 (8th Cir. 1981). A conclusion that a sympa- thy striker has lesser privileges for reinstatement on dis- appearance of the picket line which he was honoring than does an economic striker could serve to only invali- date the former's statutory right. For the foregoing reasons, I conclude that Respond- ent, as alleged in the complaint, refused to reinstate Spencer Smith on July 16, 1982, on the latter's uncondi- tonal application for reinstatement because of his union activities and thereby violated Section 8(a)(3) and (1) of the Act.19 In accordance with my findings above, I make the fol- lowing as The court also referred to the Employer's reliance on the decision of the Court of Appeals for the Seventh Circuit in Giddings & Lewis, which it distinguished on the ground that the case at bar did "not in- fringe on the permanence of replacements" (Textron, Inc, 687 F 2d 1240 at 1247) It also rejected the employer' s reliance on Bancroft Cap Co and another case on the ground that they "illustrate that employers may refuse to reinstate strikers to certain positions ifthey have legitimate busi- ness reasons" (supra at 1245, in 8) 1s The Union argues alternatively that Respondent actually discharged Smith when it stated in its answer to his grievance that he was not an employee Under this theory, according to the argument, Smith would be entitled to reinstatement without making an unconditional offer to return to work and without proof that a vacancy existed at the time I find it unnecessary to pass on the merit of this argument because of my conclu- sions set forth above FOOTE & DAVIES CONCLUSIONS OF LAW 1. Foote & Davies, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Atlanta Printing Pressmen & Assistants' Union, Local No. 8 is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to award unreinstated striker Spencer Smith a position as first pressman on July 16, 1982, and again in January 1983 because of his union ac- tivities, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. Inasmuch as Respondent failed to reinstate Spencer Smith on July 16, 1982, because of his union activities, it is recommended that it be ordered to offer immediate reinstatement to him and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, such payment to be made on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).20 As it has also been found that Respondent issued an answer to a grievance filed by Smith in which it made various assertions, including the allegation that he was not an employee, I shall recommend that Respondent be ordered to remove the answer from its personnel record and inform Smith in writing that answer is null and void, and that its provisions will not be used as a basis for future personnel actions against him. I shall also recommend that Respondent be ordered,to post appropriate notices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 20 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 21 If no exceptions are filed as provided by See. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses ORDER 79 The Respondent, Foote & Davies, Inc., Doraville, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to offer to qualified, unreinstated strikers, who have made unconditional applications for reinstate- ment, available positions for which they are qualified, be- cause of their union activities. (b) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate reinstatement to Spencer Smith and make him whole for any loss of pay he may have suffered by reason of Respondent's unlawful failure to reinstate him, in the manner set forth in the remedy sec- tion of this decision. (b) Remove from its personnel records its answer to a grievance 'filed by Smith shortly after-July 16, 1982, and inform Smith writing that the answer is null and void and will not be used as a basis for future personnel ac- tions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Doraville, Georgia copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by Respond- ent's authorized representative, shall be posted by Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice readmg "Posted by Order of the Nation- al 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 "