S.C.M. Corp.

HISTACOUNT CORP. 681 Histacount Corp., a subsidiary of S. C. M. Corpora- tion and Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-7576 24 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 30 October 1981 Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ent filed an answering brief. 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 Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The General Counsel has excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Or. 1951) We have carefully examined the record and find no basis for re- versing the findings William Sckuzman, Esq., for the General Counsel. Joel Kaplan, Esq. (Jaspar, Kaplan, Levin & Daniels), of Garden City, New York, for the Respondent. Herbert Simon, Esq., of Valley Stream, New York, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Admimstrative Law Judge. This case was tried before me on various days in January, March, and May 1981. The charge in this proceeding was filed by the Union on November 2, 1979, and a com- plaint based on that charge was issued by the Regional Director for Region 29 on December 19, 1979. The principal issue in the case is whether the Respond- ent failed or refused to timely offer reinstatement to eco- nomic strikers when they offered to return to work on September 17, 1979. As to the above allegation, the Respondent makes es- sentially two contentions in its defense. First, it contends that when the strikers offered to return to work, their offer was conditioned on the immediate reinstatement of all the strikers. Second, the Respondent contends that even if it is concluded that an unconditional offer to return to work was made, it did offer reinstatement to the strikers as soon as positions became available. In this respect, the Respondent asserts that as of September 17, it could not immediately reinstate the strikers because of the impact the strike had on its business, the hiring of permanent replacements during the strike, and other fac- tors described below. The Respondent therefore con- tends that it soon thereafter began to offer reinstatement to the strikers in basically a seniority order as jobs became available. Counsel for the General Counsel, for his part, con- tends that the offer to go back to work was uncondition- al, and that the Respondent did not offer reinstatement to the strikers as soon as possible. He contends, there- fore, that about September 17, the strike was converted to an unfair labor practice strike. Additionally alleged by the General Counsel is that on September 21, 1979, the Respondent warned its employ- ees of the futility of obtaining union representation and threatened them with the loss of existing benefits, if they became members of or supported the Union. The evi- dence proffered by the General Counsel concerning this allegation is not in dispute and consists of a letter sent to the employees on September 21. In brief, this letter makes two points. First, that even if the Union were to win an election' the Company had grounds for filing ob- jections to the election and therefore, after all the legal proceedings had been completed, it was probable that it would be 2 years or more before a final decision was made as to the election's validity and before the Compa- ny would be compelled to bargain, assuming that the Union prevailed. The second point raised in the letter was that bargaining starts from "ground zero" and that there was no guarantee that the Company's existing ben- efits would survive after bargaining. Based on the entire record herein, including my obser- vation of the demeanor of the witnesses, and after con- sideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION It is admitted that the Respondent is a New York cor- poration located at 965 Walt Whitman Road, Melville, New York, where it is engaged in the manufacture and sale of stationery and related products. It also is admitted that the Respondent annually sells products valued in excess of $50,000 which are shipped from its New York i A secret-ballot election was conducted by the Regional Office on September 28, 1979, in Case 29-RC-4660 In that election the Union failed to obtain a majority of the valid votes counted Subsequently, the Regional Director set aside the election based on the September 21 letter. The propriety of the Regional Director's decision in the representation case is not before me. 27'8 NLRB No. 104 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant directly to States other than the State of New York and that it annually purchases and causes to be delivered to its New York plant paper products, ink, and other goods valued in excess of $50,000 directly from points located outside the State of New York. It therefore is concluded that the Respondent is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At the hearing the Respondent amended its answer to admit paragraph 6 of the complaint which alleged that the Union is a labor organization within the meaning of the Act. Accordingly, it is concluded that Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE OPERATIVE FACTS As noted above, the Company is engaged in the manu- facture and sale of stationery and related products. More specifically, the Company manufactures stationery and business forms for a variety of businessmen and profes- sionals such as doctors and lawyers. Most of the Compa- ny's business consists of a large number of relatively small orders (in dollar amounts),2 received through the mail which are processed by a group of clerical employ- ees and manufactured on premises by a group of printing employees. It also is evident that a large percentage of the Company's business is generated through the distri- bution of catalogs by the Respondent to old and prospec- tive clients through direct mailing and that the produc- tion and distribution of these catalogs, on a systematic basis, is crucial to the Company' s success. Another ele- ment which appears to be necessary for the Company, in terms of its ability to compete, is the speed at which it processes orders and sends out the items desired by its customers. The evidence discloses that in June 1979, the Union commenced an organizational campaign among a portion of the clerical employees of the Company. Thereafter, on July 12, the Union made a demand for recognition which, when rejected by the Company, resulted in an economic strike by certain of the Respondent's clerical employees commencing on July 16, 1979. Thereafter, on August 1, 1979, the Union filed a petition for an election in Case 29-RC-4660 and on August 29, the Regional Di- rector for Region 29 issued a Decision and Direction of Election.3 An election was subsequently held on Septem- 2 According to company witnesses, the Company receives through the mail about 700 to 800 orders per day with the average order being about $50 a In the Decision and Direction of Election it was concluded that the appropriate unit consisted of all full-time and regular part-time clerical employees, including all filing clerks, order processing clerks, sales clerks, switchboard operators, zoning clericals, hourly paid and salaried accounting clericals, mailing clericals, medical claims processing clericals, and scheduling clericals, excluding all other employees including all ship- ping, printing, maintenance employees, guards, and supervisors as defined in the Act It is noted that the Regional Director included in the unit, over the objection of the Union, six mailing clericals, one medical claims processing clerk, four scheduling clericals, and two salaried accounting clerks. her 28, 1979, which was won by the Company, but which nevertheless was set aside based on the contents of the September 21 letter. Immediately prior to the commencement of the strike on July 16, the Company employed about 290 people in toto, and employed about 80 persons in various clerical positions, including the clerical employees involved herein. The strike was planned to coincide with the va- cation period of many of the employees so that when it occurred, it was difficult at first for the Company to as- certain who was striking, who was on vacation, and who was staying away for other reasons. It appears, however, that there were 32 employees who engaged in the strike and that these employees were the ones who were large- ly responsible for processing customers orders.4 Never- theless, not all of the clerical employees went on strike and remaining were the mailing clericals, scheduling em- ployees, sales clericals, and a group of seven clerical em- ployees having similar jobs as those who engaged in the strike.5 cause the persons engaged in the strike were the Be employees who were primarily responsible for process- 4 Based on the record herein, the strikers were: Name Date of Hire Job Classification Denise Vilaplana 10/14/68 Pricer Lorraine LaStrange 1/02/69 Typist Marjory Leeds 5/12/69 Checker Constance Alexander 10/07/70 Checker Gall Rosetta 10/08/70 Checker Joan Dudick 10/23/70 Sales Clerk Roselyn Rosenblatt 11/18/70 Look Up Clerk Nina Sticco 2/16/71 Typist Agnes Fritz 4/26/71 Typist Marjorie Wmnie 1/10/72 Correspondence Clk Sarah Kennedy 10/02/72 Checker Helen Lartigaut 10/02/72 Chief Clerk Kathleen Stamm 10/09/72 Correspondence CIk Frances Vicmo 6/05/73 Look Up Clerk Gerard Lombardo 8/08/73 Accounting Clerk Joanne Smalling 10/22/73 Typist Charlotte Diton 11/12/73 Pricer Mary Bowler 11/12/73 Correspondence Clk Joan Tomaselli 11/19/73 Look Up Clerk Myra Dantus 4/22/74 Pricer Catherine Grillo 6/24/74 Typist Diane Shannon 11/05/75 Typist Kathy McQuillen 8/29/77 Receptionist Patricia Warganz 10/10/77 Typist Rosemary Marchese 11/09/77 Typist Catherine Toscano 11/30/77 Typist Lilly Costa 6/20/78 Typist Rosemary Meehan 11/06/78 Typist Mary Pizzano 5/07/79 Typist Delores Grosso unknown unknown Lois Washington unknown unknown Madelyn Simonetti unknown unknown 5 Among the order processing clericals who did not strike were. 1 Frances Malone, a checker She however left the Company's employ on August 20, 1979. 2. Juhe Kaht, a checker She left the Company's employ on August 15, 1979. 3. Phyllis Rispoli, a checker She left the Company's employ on August 24, 1979. 4 Madelyn McDonald, a typist who remained with the Company. 5 Anthony Ten, an accounting clerk who remained with the Compa- ny. 6. Paulene Engelking, a typist. She left the Company on October 18, 1979. 7 Debra Marty, a file clerk She left the Company on September 17, 1979 HISTACOUNT CORP. ing customer orders, the Company had to determine its priorities if it wished to maintain its business. In this re- spect, it decided to concentrate its efforts on continuing manufacturing and on processing and filling orders. It therefore gave other areas of its operations a lower pri- ority. Accordingly, during the 11-week period of the strike, the Company made a number of changes and took certain actions to meet the strike situation as follows: 1. During the course of the strike and until September 17, 11 permanent replacements were hired. All these re- placements continued to be employed as of September 17, 1979.6 2. About August 1, 1979, five of the mailroom clerical employees (Elsie Greco, Josephine Russo, Frances Ma- guire, Stella Petasky, and Alice Knoblock) were trans- ferred to jobs held by the strikers. As of September 17, 1979, all five were employed in these positions and ac- cording to the Company they could not be moved back to the mailroom at that time because there was insuffi- cient- work in the mailroom for them to do. Thus, ac- cording to the Company if it did not retain these non- striking employees in their new,jobs, it would have been forced to lay them off.7 3. People from other departments such as scheduling people, sales ' employees, and executives were put into the office to perform tasks that were normally done by the strikers. 4. As a result of having to analyze the job functions needed, certain functions were streamlined, and certain jobs were found to be unnecessary. Thus, Gerald Kauf- man testified that two statistical jobs were eliminated, the chief clerk position was eliminated, one checking job was eliminated, and one correspondence clerical job was eliminated. 5. The 'Company eliminated the night shift which had been instituted shortly before the strike. 6. The Company increased overtime for the employees who were,available to it. a Curiously, in its brief,, Respondent asserts that 10 permanent replace. ments were hired whereas from the exhibits offered into evidence, I count 11: From the record the following people were hired into perma- nent positions from July 6, 1979: Name Date of Hire Jot' Classification Date Left Nancy McGregor 8/29/79 P/T Ass Scheduling Clerk 10/19/79 Barbara Cysner 9/11/79 Clerk Typist still employed Nancy Romeo 7/16/79 Clerk Typist still employed Kathleen Weisbrod 7/25/79 P/T Filing Clerk still employed Dailene Dorn 7/25/79 P/T Filing Clerk still employed Nancy Warren 8/27/79 Clerk Typist 2/29/80 Doris O'Connor 7/30/79 P/T ]Filing Clerk 1/15/81 Yolanda Sanacore 8/15/79 Clerk Typist 10/26/79 Maureen Till 8/22/79 Receptionist still employed Roseanne Mallamace 8/23/79 Accounting Clerk still employed Julie Ann Hopp 9/12/79 Filing Clerk still employed r Kaufman testified, without contradiction, that the mailroom clericals were given the option of permanently retaining the jobs to which they were transferred. However, they all did eventually go back to the mail- room. Thus, Maguire, Petasky, and Knoblock returned to the mailroom on October 1, 1979, and Greco and Russo returned to the mailroom on October 15, 1979 As noted above, the mailroom clerical employees were included as part of the appropriate unit in the Decision and Direction of Election previ- ously issued. 683 It also is evident that the impact of the strike reduced the number of clerical employees needed as there was credible testimony that the Company's orders declined to some degree due to the inability to get out the full mail- ing of the catalogs and because some customers went elsewhere when their orders were not timely filled.8 Thus, according to Respondent's witnesses, the business began to stabilize around the fourth week of the strike and by September 17 the Company was able to meet its somewhat reduced demand with the clerical -employees who did not strike, the transfers and changes which had been made, -and the permanent replacements who had been hired. On Monday, September 17, 1979, the strikers, with Charlotte Diton acting as their spokesman, made an oral request to return to work. It is agreed that this occurred at two separate meetings held successively in the Re- spondent's conference room with Otto and Kaufman present for the Company and with the strikers divided into two groups due to size of the room. Diton was present at both meetings. There is also substantial agree- ment that on each occasion when Diton stated that the strikers were ready to return to work, Otto responded that the Company could not immediately take the strik- ers back inasmuch as the strike had hurt the Company very badly and because the Company had restructed and streamlined the office. Otto then went on to say that the Company would phase the strikers back into their jobs according to their job seniority and according to job need. At this point, in the first meeting, some of the strikers started to assert that the Company was locking out the employees, an assertion which was denied by Otto. The testimony from both sides indicates that subse- quent to these meetings the strikers resumed their picket- ing until September 28, the day of the election, and that some of the picket signs used claimed that there was a lockout. Also, on September 18, the Company sent a letter to the strikers which stated: On Monday morning, September 17th, at ap- proximately 8:30 a.m. twenty-eight (28) striking His- tacount employees met with John Otto and Gerald Kaufman, at which time the striking employees an- nounced their willingness to return to work. They were told we have always considered them Histacount employees, and we'd be glad to have them back working. However, it was explained to them that because of the strike, we had to restruc- ture and streamline our operation. Also, the strike was responsible for hundreds of order cancellations and the company had to suspend its regular mailing advertising schedule, which, has resulted in a re- duced volume of business. Because of the below normal volume of business, and because we have streamlined our order process- ing procedures since the strike began, we do not a Catherine Grillo, one of the strikers and a witness called by the Gen- eral Counsel, testified that she found out, at the start of the strike, that many orders had been canceled and that during the strike she was aware that many customers were calling to complain that they were not getting timely delivery of their orders. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now know what the strength and mix of our work force will be. Consequently, it is not possible to have all of the striking employees return to work at one time. Therefore, the recall or phasing in will have to be done in an orderly fashion, based on se- niority and the level of skills needed. We will be in touch with you. Neither the Union nor the strikers responded to the letter quoted above. With respect to the September 17 meeting, the Compa- ny's version is that in addition to what has been de- scribed above, when Otto said at the first meeting that the Company could not immediately reinstate all of the strikers and would have to phase them back in, Rose- mary Meehan, one of the strike leaders, stated; "Well, we're not going to stand for that because they had walked out together and we all want to come back to- gether." Otto further testified that at the second meeting held on September 17, Diton said, "We all walked out together and we're going to come back together." The witnesses presented by the General Counsel denied that such a condition was placed on their offer to return to work, and therefore a critical, and difficult credibility issue is presented for resolution. For if, at this point in time, a conditional offer was made by the strikers, then the Company was under no obligation to offer reinstate- ment to the strikers unless and until they thereafter made unconditional offers.9 Subsequent to the September 17 meeting, the Compa- ny ceased hiring any further replacements for strikers.1 o Respondent also commenced, on September 26, to send letters to the strikers offering them reinstatement. These offers were thereafter made to all of the individual strik- ers over a period of time until March 11, 1980. The offers and the responses are set forth as follows: 1. On September 26, 1979, a letter offering reinstate- ment"' was sent to Denise Viliplana, who was employed 9 Laidlaw Corp., 171 NLRB 1306 (1968), Times Herald Printing Co., 221 NLRB 225 (1975), Tex-Tuft Products, 134 NLRB 1628, 1631 (1961). The situation involving unfair labor practice strikers, as opposed to eco- nomic strikers, is somewhat different Thus, in National Business Forms, 189 NLRB 964 (1971 ), the Board held that where unfair labor practice strikers make an offer to return to work and insist that all be given their jobs back or none would return, such an offer is not to be construed as conditional. In this respect unfair labor practice strikers are entitled to immediate reinstatement even where permanent replacements have been hired whereas economic strikers do not have the same right. 10 The record shows that two individuals were hired into bargaining unit jobs after September 17, 1979, but that no other person, other than recalled strikers, were hired into bargaining unit positions until March 31, 1980 The two individuals hired were Eleanor Minet, hired on January 28, 1980, and who left on January 29, 1980, and Margaret Potter, who was hired on February 25, 1980 Although their job classifications were listed as accounting clerks on a summary prepared by the Company and received into evidence as G.C. Exh. 30, Kaufman testified that the job in question was that of a payroll clerk (see fn. 13), which was not occupied by any of the strikers and which was created and filled in anticipation of the March retirement of Mary Ranna who did the payroll, and who was a salaried employee not in the bargaining unit. 11 The letter to Viliplana, which is typical in form to the letters sent to the other strikers, reads as follows: You are hereby notified that we are honoring your request to return to work. We have made arrangements for you to return on Monday, Oct. 8, 1979, at 7.45 am Naturally, you will be placed in a job within the bargaining unit as defined by the NLRB and at the new as a pricer and who had the most seniority of the strik- ers.12 In response, she sent a letter stating that she was planning to return on October 8 at 4:30 p.m. (the night shift). She explains that she indicated that she was plan- ning to return to the night shift inasmuch as immediately prior to the strike her request to go on that shift had been granted. However, she did not actually transfer to the night shift because of the intervention of the strike. By letter dated October 8, Viliplana was advised that there were no current openings on the night shift and she did not respond. Thereafter, on March 25, 1980, Vili- plana heard that the Company was advertising for part- time evening positions in Newsday.13 She thereupon called Kaufman told him that she saw the advertisement. She states that Kaufman asked her, during the call, if she was interested in the position, which she accepted. Vili- plana returned to work on April 14, 1980, but subse- quently left on May 12, 1980. 2. On September 26, 1979, an offer of reinstatement was made to Loraine LaStrange, a typist, who was the second most senior striker. She accepted the offer and returned to work on October- 8. She subsequently left the Company's employ on February 22, 1980. 3. On September 26 an offer of reinstatement was made to Constance Alexander, a checker, who was the fourth most senior striker. She accepted the offer and re- turned to work on October 8. 4. On October 10 an offer of reinstatement was made to Marjorie Leeds, a checker, who was the third most senior striker. She accepted the offer and returned to work on October 22. 5. On October 10 an offer of reinstatement was made to Joan Dudick, a sales clerk, who was the sixth most senior striker. She accepted the offer and returned to work on October 22. 6. On October 10'an offer of reinstatement was made to Nina Sticco, a typist, who was the eighth most senior striker. She accepted the offer and returned to work on October 22. 7. On October 10 an offer of reinstatement was made to Majorie Winnie, a correspondence clerk, who was the 10th most senior striker. She accepted the offer and re- turned to work on October 22. 8. On October 10 an. offer of reinstatement was made to Francis Vicino, a look up clerk, who was the 14th most senior striker. She accepted the offer and returned to work on October 22. rate, including the automatic raise, which you would have received had you not been on strike. You must notify us, by certified mail, mailgram or telegram, no later than Thursday, October 4, 1979, of your intention to return Failure to notify us or subsequent failure to report to work on the specified date, will be regarded as a voluntary quit. 12 Because the seniority status of a few of the strikers is unknown to me, the description hereafter of a striker's seniority status is, of necessity, approximate is This advertisement was placed in Newsday on March 20, to run on March 24, 25, and 26. It is established that apart from two advertisements for a payroll clerk appearing on January 13 and February 3 to 6, the first advertisement for a position previously occupied by a strike was the Newsday ad placed on March 20 for a part-time position on the night shift. As noted above, this latter advertisement was placed after all the strikers had been offered reinstatement. HISTACOUNT CORP. 9. On October 17 an offer of reinstatement was made to Agnes Fritz, a typist, who was the ninth most senior striker. She rejected the offer and did not return to work. 10. On October 17 an offer of reinstatement was made to Sarah Kennedy, a typist, who was the 11th most senior striker. She accepted the offer and returned to work on October 29. 11. On October 17 an offer of reinstatement was made to Kathleen Stamm, a correspondence clerk, who was the 13th most senior striker. She accepted the offer and returned to work on October 29. 12. On October 17 an offer of reinstatement was made to Mary Bowler, a correspondence clerk, who was the 18th most senior striker. She accepted the offer and re- turned to work on October 29. 13. On October 17 an offer of reinstatement was made to Joan Tomaselli, a look up clerk, who was the 19th most senior striker. She accepted the offer and returned to work .on October 29. 14. On October 17 an offer of reinstatment was made to Madeline Simonetti, whose job and seniority are un- known. She accepted the offer and returned to work on October 29. 15. On October 17 an offer of reinstatement was made to Joanne Smalling, a typist, who was the 16th most senior striker. She accepted the offer and returned to work on October 29. She, however, left the Company's employ on January 7, 1980. 16. On October 31 an offer of reinstatement was made to Gerard Lombardo, an accounting clerk, who was the 15th most senior striker. She accepted the offer and re- turned to work on November 12. 17. On November 13 an offer of reinstatement was made to Charlotte Diton, a typist, who was the 17th most senior striker. She accepted the offer and returned to work on November 26. 18. On November 13 an offer of reinstatement was made to Myra Dantus, a pricer, who was the 20th most senior striker. She rejected the offer and did not return to work. 19. On November 13 an offer of reinstatement was made to Catherine Grillo, a typist, who was the 21st most senior striker. She rejected the offer and did not return to work. 20. On November 14 an offer of reinstatement was made to Lois Washington, whose job and seniority is un- known. She accepted the offer and returned to work on November 26. 21. On November 23 an offer of reinstatement was made to Diane Shannon, a typist, who was the 22d most senior striker. She accepted the offer and returned to work on November 26. 22. On December 21 an offer of reinstatement was made to Gail Rossetti, a checker, who was the fifth most senior striker. She rejected the offer and did not return to work. 23. On December 21 an offer of reinstatement was made to Rosemary Marchese, a typist, who was the 25th most senior striker . She accepted the offer and returned to work on January 7, 1980. 685 24. On December 21 an offer of reinstatement was made to Dolores Grasso, whose job and seniority status are unknown. She accepted the offer and returned to work on January 7, 1980. 25. On December 22 an offer of reinstatement was made to Catherine Toscano , a typist, who was the 26th most senior striker . She accepted the offer and returned to work on January 7, 1980. 26. On March 11 an offer of reinstatement was made to Roslyn Rosenblatt, a look up clerk, who was the sev- enth most senior striker. She accepted the offer and re- turned to work on March 24, 1980. 27. On March 11 an offer of reinstatement was made to Helen Lartigaut, the chief clerk, who was the 12th most senior striker. She accepted the offer and returned to work on March 24. Although accepting a job different from the one she held prior to the strike, she did not suffer a loss of pay. As noted above, Kaufman' testified that the chief clerk's job was eliminated when it was de- termined that it was a superfluous position. 28. On March 11 an offer of reinstatement was made to Kathy McQuilken, the receptionist, who was the 23d most senior striker. She accepted the offer and returned to work on March 24. (One of the permanent replace- ments, Maureen Till , was hired as the receptionist.) 29. On March 11 an offer of reinstatement was made to Lilly Costa, a file clerk, who was the 27th most senior striker. 'She accepted the offer and returned to work on March 24. 30. On March 11 an offer of reinstatement was made to Rosemary Meehan, a typist, who was the 28th most senior striker. She accepted the offer and returned to work on March 24. 31. On March 11 an offer of reinstatement was made to Mary Pezzano, a typist, who was the 29th most senior striker. She did not respond to the offer and did not return to work. The General Counsel also contends that assuming an unconditional offer was made by the strikers on Septem- ber 17, the Respondent violated the Act by delaying the recall of the strikers . That is, instead of arguing that the Respondent simply refused to offer reinstatement to the strikers, his theory of violation is that even though the Company ceased hiring replacements after September 17, and did in fact make offers of recall to each and every striker, it could have, and therefore should have, made such offer sooner than it did. In support of this theory the General Counsel argues that after September 17, the Company required substantial amounts of overtime from the people ' who were working as compared with the amounts of overtime worked before the strike. He there- fore argues that had the Company not required such ex- cessive overtime, it could have recalled some or all of the strikers sooner . For its part, the Respondent asserts that overtime has always been a part of its normal oper- ations and therefore the utilization of overtime after Sep- tember 17 was nothing new. It contends that the Compa- ny's policy is and has been to maximize the hours of its work force so as to have the minimum number of people employed necessary to provide the required services. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In connection with the above, portions of the payroll records for the years 1979 and 1980 were introduced into evidence. These covered departments numbered 102, 130, 150, and 155, of which departments 102 and 130 in- clude both bargaining unit and nonbargaining unit posi- tions. While the payroll records received were not total- ly complete, a pattern did emerge which shows that, al- though overtime was worked before the strike and was increasingly worked during the months of June and early July 1979 (perhaps in anticipation of the plantwide vaca- tion), the amount of overtime increased dramatically during the strike and was maintained at a high level after September 17. One of the problems with the General Counsel's theory is that given the records in evidence , and also given the fact that the Company did not hire any people after September 17 to perform jobs previously done by the strikers, it is difficult at best to show that particular vacancies existed at particular times for particular strik- ers. It therefore would seem to me that it would be spec- ulative for one to say, that Miss X, for example, should have been offered reinstated 10 days sooner and there- fore is entitled to 10 days of backpay. Also, if overtime was increased dramatically during the strike so that the Company could meet its needs with an available work force, the retention of that practice after the strike ended could be construed as a legitimate business judgment in the absence of proof showing discriminatory intent.14 On the other hand, it may be possible to argue that the Company's policy of requiring excessive overtime after the strike ended was intended to delay the recall of the strikers.15 In addition to the contentions of the complaint relating to the alleged failure to reinstate the strikers, the General Counsel, as noted above, alleged that statements con- tained in a letter transmitted to employees on September 21 were violative of the Act. This reads as follows: To All Histacount Employees: This election is so important to all of us we want you to have all the facts so those who vote will make an informed , rational decision. ' WHAT HAPPENS AFTER AN ELECTION? First, one essential point: All that any union ever obtains if it wins an NLRB election is the right to 14 In NLRB v Fleetwood Trailers, 389 U S. 375 (1967), in connection with refusals to reinstate economic strikers: A second basis for justification is suggested by the Board-when the striker's job has been eliminated for substantial and bonafide reasons other than considerations relating to labor relations. for example, "the need to adapt to changes in business conditions or to improve efficiency." In Fleetwood, the Court did hold that certain strikers had been discrimi- nated against because the company hired new employees , rather than re- callmg ,those strikers. 15 In Beo-Medical Applications, 247 NLRB 973 In. 2 (1980), Board con- cluded that the Company had violated the Act when it discharged cer- tain strikers inasmuch as the evidence showed that the Respondent's re- fusal, "was accompanied by the hiring of nonunit employees (LPNs) to perform the same work and by an increase in the hours worked by both unit and nonunit employees. This further rebuts Respondent's assertion that it was able to operate normally without the unlawfully discharged strikers and without hiring additional employees." bargain as a representative of the employees in the voting unit. That bargaining may not begin until years after the election, depending on what took place prior to the election, Because of the many documented incidents of picket line violence, we guarantee you that in the unlikely event that the union has a majority vote, Histacount will object to the validity of the election on the grounds that the Teamster violence and co- ercion affected the votes of the employees. Once the company does this the Brooklyn NLRB Regional Office will obtain the facts about the ob- jection and make a decision. That decision, which will require some months, can be appealed to the NLRB in Washington, which normally takes more time. After that, if Histacount is dissatisfied with the NLRB decision, it can force the NLRB to take the case to the United States Court of Appeals which requires many months (often well over a year.) So it probably would be two years or more before there was a final decision on the election. Therefore, in the inconceivable event of a union election victory we can assure you that it would be approximately two years or so until the bargaining begins (and the bargaining would begin only in the unlikely event that the Board and Court of Appeals both ruled that the union won a fair election.) WHAT HAPPENS IN BARGAINING? Once the bargaining begins, the union makes its proposals to management and argues for their ac- ceptance. The company has equal rights to make its proposals and to try and convince the union of their acceptance. This process can continue for weeks, months, or even years until the parties come to a "mutual agreement," and "mutual" means that both management and the union agree. There is another important aspect of bargaining: There is no guarantee that the company's existing benefits "before bargaining" will survive the bar- gaining. In short, the company is legally entitled to bargain from "ground zero." This means that a company can get rid of one or more of its pre-exist- ing benefits in the course of bargaining. Let me give you, one example: One metropolitan area company had provided Major Medical coverage for its employees prior to bargaining. But as a result of bargaining, the compa- ny discontinued paying for the Major Medical cov- erage and the employees had to pay for the cover- age themselves. This same result could happen for various Histacount benefits in bargaining with the Teamster Local. So, in short, every pre-benefit is "up for grabs" in bargaining with the union. While the company would bargain "in good faith," it would do so in light of all of its legal rights: HISTACOUNT CORP. PUTTING PRESSURE ON THE COMPANY DURING BARGAINING At any time during the bargaining the Teamsters could call a strike as they already have done to try to put additional pressure on the company. But I think you have all seen that Histacount and the overwhelming majority of its employees will not give in to a strike. Should the union conduct another strike, the company can continue operating with the non -strik- ing employees, and can hire replacements for the strikers. There have been plenty of cases where strikes grind on for months without ever getting a union contract. So you can see that: There is more to bargaining than just accept- ing the union's proposals. Bargaining does begin at "ground zero." We do not think that Histacount employees need or want- to have us bargain with this Teamster Local. With all its fraud, mis-management and cor- ruption, we can't believe that this union is worthy of Histacount employees. It's your decision, and we feel confident that you'll make the right decision to VOTE "NO" to Teamster interference with Histacount em- ployees. to Teamsters causing a wasteful and unnecessary strike. to Teamster violence in that strike. to being members , of this graft-ridden, corrupt Teamster Local In connection with the September 21 letter, the Com- pany's argument is that its statements regarding bargain- ing from ground zero are privileged. As to its statements concerning the amount of time it would-take before the Union would have a right to bargain, the Respondent as- serts that this merely is an accurate description of reality. As to the latter point, the Respondent offered evidence that certain of the strikers, who are asserted to be strike leaders, had engaged in picket line misconduct.16 The Respondent therefore argues that if the Union had won the election, the Company would have had grounds for filing objections to the election and given the legal pro- cedures to resolve such issues, its statement about a pos- sible 2 years' delay before ' bargaining could begin was a realistic assessment of the circumstances existing on Sep- tember 21.17 16 Respondent does not contend that any of the strikers should be dis- qualified from reinstatement because of alleged picket line misconduct. ' a Since the election herein evolved from a Decision and Direction of Election issued by the Regional Director, the following procedure rela- tive to objections would normally, be followed. Had the Union won the election and had the Company filed objections to the election, the Com- pany would have been required in the first instance to furnish informa- tion in support of its objections, after which an investigation would be made by the Regional Office. If after an investigation had been conduct- ed, and if there was a prima facie showing that picket line misconduct had taken place and had been engaged in by persons for whom the Union was legally responsible, or in the presence of union agents who condoned IV. ANALYSIS 687 A. Alleged Failure to Recall the Strikers As I have indicated above, the issue of whether a con- ditional or unconditional offer to return to work was made is, to my mind, an exceedingly difficult issue as nei- ther side's testimony was wholly implausible and as none of the witnesses were obviously untruthful. Nevertheless, considering all the circumstances and the record as a whole, I am inclined to favor the Company's version as being more plausible. That is, I shall credit the assertions by Kaufman and Otto that Meehan and Diton said in effect that unless all of the strikers were reinstated to- gether, none of them would return to work. My reasons for this conclusion are as follows. Given the fact that the strike was called for the pur- pose of gaining recognition and as the strikers did not offer to return to work either when the Union filed its petition for an election on August 1 or when the Region- al Director issued his Decision and Direction of Election on August 29, it seems likely that the original intent was to maintain the strike until the election, and, have the people vote from the picket line. It appears, however, that during the week preceding September 17, the strikers began discussing among them- selves the idea of going back to work and on Friday, September 14, a meeting was held at the Union's office to discuss this idea. In attendance at the meeting were the strikers plus certain of the Union's officials. At the meeting, it was decided that the stikers would return to work and to that end Helen Lartigaut, one of the strik- ers, was delegated the responsibility of calling the Com- pany and/or its attorney over the weekend to let them know that they were returning to work: She, however, did not get through to the Respondent's attorney or its management. Whether conscious or not, it also was de- cided that the offer to return to work would be made orally and no provision was made to transmit the offer by letter or telegram. In support of the case, the General Cousel called as witnesses six of the striking employees whom he charac- terized as being militantly in favor of the Union. These were Charlotte Diton, Helen Lartigaut, Catherine Grillo, Rosemary Meehan, Marjorie Leeds, and Denise Vili- plana. As to the September 14 meeting, Catherine Grillo testified "We just decided to go back to work as a group, you know, to go in as a group." She testified that such conduct, a hearing would be held assuming that there were disputed issues of fact A hearing officer would then conduct such a hearing and issue a report which would be appealable to the Regional Director in the first instance, and then to the Board on a limited basis pursuant to a re- quest for review Assuming that the Board overruled the objections and a certification of representative was issued, the company could still test the certification by refusing to bargain with the Union In such a case, it would be normal for a complaint to issue under Sec 8(a)(5) of the Act alleging the refusal to bargain which would be processed before the Board in a summary judgment procedure After the Board issued its opin- ion, the matter could then be heard in an appropriate circuit court of ap- peals pursuant to Sec. 10(e) or (t) of the Act where the court would be called upon, in circumstances such as these, to approve or reject the Board's findings on the objections Needless to say, the above proce- dures, if earned through to their ultimate, would take a, considerable amount of time. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no discussion as to what the strikers would say if the Company told them that they could not be imme- diately reinstated, but that "we assumed that as a group they were going to take us back." With respect to the same meeting, Majorie Leeds testified, "I think we all decided that we would all come Monday. We would all get dressed and get back to work." (During the strike, the strikers wore different clothes than they normally wore at work.) She also testified that based on what took place at the Friday meeting, it was her opinion that if the strikers showed up for work on Monday, the Company would put them right back to work. Similarly, Denise Viliplana testified that at the Friday meeting, the strikers thought the Company would take them back on the day they came in or, if not on that day, then within the next day or two. In the same vein, Rosemary Meehan testified that, although the strikers were aware that the Company had hired people during the strike, they all thought that the Company would put them all back to work on Monday and that it was, in her opinion, a simple matter as the Company could take the people who were doing the strikers' jobs in the upstairs office and move them downstairs to do other work. With respect to the meetings held on September 17 with management, Charlotte Diton testified that the strikers all got dressed, "ready for work." She testified that she said, "we are here to come back to work," whereupon Otto said that he was happy to have them back but that there were some changes in the structure of the office and therefore the strikers could not come back at that time. She states that he told them that they would have to come back based on seniority and the need for their skills. Diton testified, "We wanted to know why we couldn't just come in that day, we were prepared to work." According to Diton, Otto responded that they could not because of the change in the office and because the Company was not prepared for their return. Diton recalls Rosemary Meehan asking why the Company could not simply put the strikers upstairs and take the people upstairs and send them downstairs. She also testified, "We came in thinking that we could all go back to our jobs. We knew our jobs and we knew that we were needed , so we didn't think in those terms as to this group going back or that group going back." Catherine Grillo's testimony relating to the September 17 meetings was that when Diton said, "we're here to work," Otto said, that due to the strike the Company was hurt very badly, that they had restructured the office up- stairs, that they could not take us back right then and there, and that they would have to phase in the strikers by seniority and need. According to Grillo, Diton said, "so then you're locking us out," which Otto denied. Helen Lartigaut testified that when Otto said that they could not "take us all in," there was a lot of shouting by the strikers, and that Myra Dantus may have screamed, "Lockout, does that mean you're locking us out." Also, Rosemary Meehan states that when the Company did not agree with her proposal that they put the strikers back upstairs and put the other employees back down- stairs, she asked if this meant that the Company was locking them out. She states that Otto said no, that the strikers were still employees of Histacount , and that the Company would bring them back to work when it could. 18 Following the meetings held on September 17, the strikers resumed their picketing and the evidence dis- closes that a picket sign with the phrase "lockout" was used. At the conclusion of the meeting, Majorie Leeds testified that after her group left the office, "we were a little upset because we thought we could really come back to work." Based on the above, it seems to me that the intent of the strikers, as manifested by their testimony (and their dress), was to return to work on Monday, September 17, with the expectation that the Company would immedi- ately reinstate them all as a group. Therefore if that was their collective intent, which I believe it was, it would be more likely than not that they translated that intent into verbal expression as contended by the Respondent. Moreover, the accusation by the stikers that they were being locked out, when they clearly were not, only makes sense if they had intended and expected to go back as a group and were expressing their anger in having such a demand rejected . In this respect, there is nothing in what Otto said, which to me could reasonably be construed as a lockout. In fact, he told the strikers that the Company still considered them to be employees, that he was happy to have them back, but because of the circumstances, the strikers would have to be phased back into work. That statement did in fact comport with the Company's situation at that time.' 9 In addition, the letter sent to the strikers on September 18 is consistent with and tend to confirm the testimony of Otto and Kaufman to the effect that on September 17 the strikers demanded to return to work on an "all or none" basis. Thus, the letter stated, inter alia, "Conse- quently, it is not possible to have all of the striking em- ployees return to work at one time." It is also of some significance that neither the Union nor the strikers re- sponded to this letter, or otherwise sought to meet with the Company to talk about arrangements for the orderly return of the strikers in some rational manner. While not totally free from doubt, the evidence as a whole suggests that on September 17 the strikers went to the Company seeking reinstatement as a group and ex- pressed the condition that they would only return if they all were reinstated together. In short , it is my conclusion that this is the more plausible verison of the events on 18 Denise Viliplana in her description of the conversation between Diton and Otto, testified on cross-examination Q. It's a fact, is it not, that Mrs Diton told Mr Otto and Mr Kaufman that you all wanted to go back to work but you all had to go back together, isn't that right? A I don't remember Q. I ask you to think very carefully, Mrs Diton did say in your presence that we want to come back to work, but its all of us or none of us' A. I don't remember. is At the very least, given the fact that 11 permanent replacements had been hired, that various employees had been transferred into jobs previously done by the strikers, and the evidence that there was some decline m orders, it seems clear that the Company was in no position to reinstate all of the strikers as of September 17 HISTACOUNT CORP September 17 and I shall therefore credit the testimony of Otto and Kaufman in this regard. In view of my conclusion that an unconditional offer to return to work was not made by the strikers, it there- fore follows that the Company was under no obligation to recall them.2° Thus, coupled with the evidence estab- lishing that as of September 17 the Respondent=did not have vacancies for the entire group of strikers , it is evi- dent that the General Counsel cannot successfully con- tend that the economic strike was converted into an unfair labor poractice strike. The fact that the Company thereafter offered to recall the strikers over a period of time, which offers were for the most part accepted, does not to my mind prove that an unconditional offer to return was made by the strikers in the first place or serve to impose on the Company an obligation to treat the conditional offer as if it were unconditional. With respect to Viliplana (a strike leader), who was one of the first persons offered reinstatement, the Gener- al Counsel asserts: (1) that the Company failed to offer her reinstatement to her prestrike job and (2) that she thereafter made an unconditional offer to return to work which was not honored in a timely fashion. As to the first proposition, this can only be sustained if it is con- cluded that an unconditional offer to return was made on her behalf before the Company's offer of reinstatement. As I have concluded that no unconditional offer was made on September 17, the General Counsel 's first con- tention can have no merit. As to the second point, it was shown that prior to the strike, Viliplana worked full time on the day shift, although her request to transfer to the night shift on a part-time basis had been approved by the Company. When the Company, on September 26, sent Viliplana an offer of reinstatement she responded that she intended to return to the night shift which, at that time, was not operational . On March 20, 1980, the Com- pany placed an advertisement in a newspaper for a part- time clerical position on the night shift which was seen by Viliplana about March 25, 1980 . Not having been no- tified of this vacancy by the Company, Viliplana phoned Kaufman who thereupon asked if she was interested in the job. She accepted, and thereupon returned to work. It therefore appears from this record that when the Company reinstated the night shift, it neglected to notify Viliplana of such a vacancy before seeking to employ other people. Nevertheless, it seems to me that this fail- ure to notify Viliplana was the result of inadvertence and was quickly remedied. As such, I do not conclude that the Respondent has violated the law in this respect. B. The September 21 Letter Whether or not statements by an employer that it will "bargain from scratch," are violative of the Act have, 20 In Laidlaw Corp., 171 NLRB 1366, 1370 (1968), the Board stated. [E]conomic strikeis who unconditionally apply for reinstatement at a time when their position are filled by permanent replacements (1) remain employees and (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can justify his burden of proof that the failure to offer full reinstate- ment was for legitimate and subtantial business reasons [Emphasis added ] i 689 under Board cases, turned on the context in which such statements were made. Thus in Plastronics, 233 NLRB 155, 156 (1977),-the Board stated: Depending upon the surrounding circumstances, an employer which indicates that collective bargain- ing "begins from scratch" or, "starts at zero" or "starts with a blank page" may or may not be en- gaging in objectionable conduct . . . . Such state- ments are objectionable when, in context, they ef- fectively threaten employees with the loss,of exist- ing benefits and leave them with the impression that what they may ultimately receive depends in large measure upon what the Union can induce the em- ployer to restore. On the other hand, such state- ments are not objectionable when additional com- munication to the employees dispels any implication that wage and/or benefits will be reduced during the course of bargaining and establishes that a re- duction in wages or benefits will occur, only as a result of the normal give and take of collective bar- gaining . . . . The totality of all the circumstances must be viewed to determine the effect of the state- ments on the employees. In the present case, the statements, (1) that bargaining "can take weeks, months, or even years," (2) that the Company is "legally entitled to bargain from ground zero," and (3) that "there is no guarantee that the com- pany's existing benefits . . . will survive the bargaining," were made in a context which would indicate to employ- ees that bargaining is a process in which each side makes its own proposals, that it requires mutual agreement, and where existing benefits may be traded away. Thus, these statements, in context, do not appear to be designed to relay the message that the employer would unilaterally discontinue existing benefits if the employees selected union representation, but rather that existing benefits may be lost as a result of bargaining.21 Nor is this case similar to one in which "bargaining from scratch" state- ments are coupled with expressions by a company that it intends to engage ' in long drawn out negotiations. Thus, unlike the situation in Madison & Kipp Co., 240 NLRB 879, where the employer also told employees that it in- tended to "bargain long" and gave as an example a com- pany which had bargained for 8 years without reaching an agreement, the letter herein merely states that bar- gaining "can continue for weeks, months or even years," and that the, Company would bargain in good faith "in light of all of its legal rights." The statements relating to the possibility that it would take 2 years or more before the Company would be le- gally compelled to bargain ' with the Union, are also al- leged as being violative of the Act. The fact is, however, that such statements are probably correct and given the evidence herein, there was at least a colorable ground upon which the Respondent 'could have filed objections to the election had the Union obtained a majority of the votes. The fact that the Respondent told its employees 21 Computer Peripherals, 215 NLRB 293 (1974); Host International, 195 NLRB 348 (1972), 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it intended to file such objections if it lost the elec- tion and that the legal process could take 2 years or more before it might be obligated to commence bargain- ing, was "simply a statement of what the Respondent was legally entitled to do" and therefore should not be construed as a threat that selection of a union by the em- ployees would be a futility.22 Although there are cases wherein the Board has held to be violative statements to the effect that bargaining would be delayed because of a company's intent to contest an election, those cases all involved situations where other 8(a)(1) conduct was also found.23 Moreover, in those cases there appears to have been no evidence that the respective companys had co- lorable grounds for filing objections to contest the out- come of the elections. Thus, in the cited cases, the asser- tions that the respective companys would contest the election can be viewed as statements indicating only an intent to delay or forestall collective bargaining rather than a good-faith assertion, based on objective evidence, that the companys intended to exercise their legal rights to contest the elections. As the Respondent herein ad- duced evidence to the effect that certain of the strikers and strike leaders engaged in picket line misconduct, it had a colorable objective basis for telling employees that it would file objections to the election if the Union won, and that the legal proceedings necessary to resolve such objections might take a considerable length of time. CONCLUSIONS OF LAW 1. The Respondent, Histacount Corp., a subsidiary of S.C.M. Corporation, is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any conduct viola- tive of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER It is ordered that the complaint is dismissed in its en- tirety. 22 Devon Gables Lodge & Apartments, 237 NLRB 775 (1978). Cf. Dal- Tex Optical Co, 137 NLRB 1786 fn. 8 (1962) 23 See May Department Stores Co., 191 NLRB 928 (1971); International Medication Systems Ltd, 244 NLRB 861, 869 (1979), Kent Bros. Transpor- tation Co , 188 NLRB 53, 59 (1971); Woodline, 233 NLRB 97, 100 (1977), Two Guys Department Stores, 242 NLRB 1139, 1149 (1979) 24 If no exceptions are filed as provided by Sec 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.