Carter-Glogau Laboratories, Inc.

CARTER-GLOGAU LABORATORIES 447 Carter-Glogau Laboratories, Inc. and Construction, Production & Maintenance Laborers' Local Union 383, Laborers' International Union of North America, AFL-CIO. Case 28-CA-7280 19 June 1986 DECISION AND ORDER BY CHAIRMAN DoTSON AND MEMBERS DENNIS AND BABSON On 27 December 1984 Administrative Law Judge Gerald A. Wacknov issued the attached de- cision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent 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, and conclusions and to adopt the recommended Order. Contrary to our dissenting colleague, we agree with the judge that the complaint allegations re- garding the Respondent's failure to reinstate former economic strikers is barred by the 6-month limita- tions proviso to Section 10(b) of the Act. If the Re- spondent's November 1981 letter to the Union was not unequivocal regarding the Respondent's recall policy, then the April 1982 letter sent to the Union made clear the Respondent's intention, notwith- standing the Union's unconditional request to return for all, to put on the preferential hire list only those employees who supplied the Respond- ent with their phone numbers and addresses. The April letter sufficiently indicates that only those who had supplied such information earlier were of- fered jobs. In the face of the two unconditional offers to return to work or to be placed on a pref- erential hire list already made by the Union on behalf of the former strikers, the April letter also shows that only those "additional individuals" who then fulfilled the phone number and address re- quirement would be placed on the preferential hire list and would be considered for reinstatement in the future. The letter thus put the Union on suffi- cient notice of the alleged unfair labor practice to file a charge.I We also affirm the judge's dismissal on the merits of the complaint allegation that the Re- spondent violated Section 8(a)(3) by failing to pro- mote or transfer reinstated former strikers to unit positions they occupied prior to the strike. Here, I In adopting the judge's dismissal of this allegation on procedural grounds, we find no need to reach or rely on his analysis of the case law applicable to the substantive merits of the complaint. there is no evidence that the reinstated strikers were not reinstated originally to substantially equivalent positions. Harvey Engineering Corp., 270 NLRB 1290 (1984), cited by our dissenting col- league, is inapposite, and the General Counsel has not carried the burden of proving that the Re- spondent failed to satisfy its obligations under Laid- law Corp.2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER DENNIS, dissenting. I do not agree with my colleagues' dismissal of the complaint. I would not find that the complaint allegation re- garding the Respondent's failure to reinstate em- ployees is barred by Section 10(b) and would con- sider the merits of the allegation. The Respondent's 20 November 1981 letter to the Union stated that Respondent would place unreinstated strikers on a preferential hiring list and included the following request: "Please have those employees send their current phone number and address to [the Re- spondent]. The Company will call those individuals when openings in jobs for which they are qualified develop." Nowhere in the letter does the Respond- ent clearly and unequivocally state that employees would not be recalled unless they submitted the in- formation. Therefore, unlike my colleagues, I would not find that the 10(b) period began to run 20 November 1981. Harvey Engineering Corp., 270 NLRB 1290, 1293 (1984).' I would also find that the Respondent violated Section 8(a)(3) and (1) of the Act by failing proper- ly to promote or to transfer previously reinstated strikers to bargaining unit positions they occupied before the strike when those positions became available. Unreinstated economic strikers have a right to reinstatement to their former jobs or, if those jobs are no longer available, substantially equivalent jobs.2 An employee does not extinguish 2 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). 1 In finding that the 10(b) period commenced as of the date of the Re- spondent's letter, the judge relied on Postal Service Marina Center, 271 NLRB 397 (1984). In Stage Employees IATSE Local 659 (Paramount Pic- tures), 276 NLRB 881 (1985), however, the Board held that "Postal Serv- ice Manna Center . . . was limited to unconditional and unequivocal de- cisions or actions." Similarly, the Respondent's 28 April 1982 letter did not give the Union clear and unequivocal notice that the Respondent was disregarding the Union's mass unconditional request for reinstatement and would reinstate only those former strikers who applied individually Y Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S 920 (1970). 280 NLRB No. 49 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his Laidlaw rights by accepting a job that is not substantially equivalent to his former job. See Harvey Engineering, supra, 270 NLRB at 1292. There was no showing that the employees who are the subject of this allegation were reinstated to sub- stantially equivalent positions. Hector Nam, Esq., for the General Counsel. Gerald Morales and Tibor Nagy Jr., Esq& (Snell & Wilmer), of Phoenix, Arizona, for the Respondent. Michael J. Keenan, Esq. (Ward & Keenan, Ltd), of Phoe- nix, Arizona, for the Charging Party. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, the parties submitted the case by stip- ulation to me on September 11, 1984. The initial charge was filed on January 7, 1983, by Construction, Produc- tion & Maintenance Laborers' Local Union 383, Labor- ers' International Union of North America, AFL-CIO (the Union). Thereupon a complaint and notice of hear- ing, dated February 8, 1983, was issued by the Regional Director for Region 28 of the National Labor Relations Board (the Board). Thereafter the parties entered into a settlement of the matter, approved by the Regional Di- rector on April 20, 1983. On February 1, 1984, the Re- gional Director issued an order vacating and setting aside approval of the settlement agreement, and reopen- ing the case. Thereafter, on February 2, 1984, the instant complaint and notice of hearing was issued, alleging a violation by Carter-Glogau Laboratories, Inc. (the Re- spondent) of Section 8(a)(l) and (3) of the National Labor Relations Act (the Act). Briefs have been received from the General Counsel and counsel for Respondent. The Union submitted a letter adopting the arguments embodied in the General Counsel's brief. On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Respondent violated Section 8(a)(1) and (3) of the Act by failing to reinstate economic strikers after an un- conditional application for reinstatement was made on their behalf by the Union. B. The Facts 1. Background; related Board proceedings The facts are not in dispute and are based on the stipu- lated record herein. The parties have maintained a collective-bargaining re- lationship for a number of years and have been signatory to successive collective-bargaining agreements, the most recent agreement expiring on November 18, 1980. On November 19, 1980, the unit employees, comprising an overall production and maintenance unit, commenced an economic strike against the Respondent in which ap- proximately 93 of the 118 bargaining unit employees par- ticipated. About March 27, 1981, an employee filed a petition for decertification in Case 28-RD-379. Thereafter, on April 9, 1982, following a postelection hearing on challenged ballots and objections, a Certification of Representative was issued. Following the certification the Union requested that negotiations resume. The Respondent's refusal resulted in the Union's filing of a charge in Case 28-CA-6912, and on October 15, 1982, the General Counsel's Motion for Summary Judgment was granted by the Board. (265 NLRB 116.) The Board's Order was enforced by the United States Court of Appeals for the Ninth Circuit on March 14, 1984. The case is presently pending on the Respondent's petition for a writ of certiorari to the Su- preme Court. 2. The termination of the strike and related correspondence On November 17, 1981, the Union wrote the Respond- ent as follows: 1. JURISDICTION The Respondent maintains an office and place of busi- ness in Glendale, Arizona, where it is engaged in the business of manufacturing and packing injectible medica- tions. In the course and conduct of its business oper- ations the Respondent annually purchases goods and ma- terials in excess of $50,000 from suppliers located outside of the State of Arizona. The parties have stipulated, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It has been stipulated, and I find, that the Union is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. LOCAL 383 HEREBY UNCONDITIONALLY REQUESTS, ON BEHALF OF ALL THE STRIKING CARTER-GLOGAU EMPLOYEES, THAT THOSE EMPLOYEES BE IMMEDI- ATELY REINSTATED TO THE SAME OR SUBSTANTIAL- LY EQUIVALENT POSITIONS TO THOSE WHICH THEY HELD PRIOR TO THE COMMENCEMENT OF THE STRIKE. PLEASE ADVISE ME AS SOON AS POSSIBLE WHETHER THE EMPLOYEES WILL BE REINSTATED. IF NO IMMEDIATE OPENINGS EXIST, PLEASE SEE THAT THE EMPLOYEES ARE PLACED ON A PREFERENTIAL REHIRE LIST IN ACCORDANCE WITH FEDERAL LAW. WE STAND READY TO RESUME COLLECTIVE BAR- GAINING WITH YOUR COMPANY IMMEDIATELY. PLEASE PROVIDE US WITH DATES ON WHICH YOU WILL BE AVAILABLE TO RESUME BARGAINING. CARTER-GLOGAU LABORATORIES 449 IF WE DO NOT HEAR FROM YOU WITHIN FIVE DAYS OF THE DATE OF THIS TELEGRAM, WE WILL ASSUME THAT YOU HAVE DENIED OUR UNCONDITIONAL OFFER OF REINSTATEMENT ON BEHALF OF ALL STRIKING CARTER-GLOGAU EMPLOYEES AND THAT YOU ARE REFUSING TO RESUME COLLECTIVE BAR- GAINING. The Respondent replied by letter dated November 20, 1981, as follows: Carter-Glogau Laboratories, Inc. presently has no job openings. The Company will be happy to place the names of those individuals who went on strike on November 19, 1980, and who have not in the meantime acquired regular and substantial equivalent employment elsewhere, in a preferential hiring list. Please have those employees send their current phone number and address to Ms . Barbara Hanson, Director of Personnel, Carter-Glogau Lab- oratories, Inc., 5160 W. Bethany Home Road, Glen- dale, Arizona 85301 . The Company will call those individuals when openings in jobs for which they are qualified develop.' The Company must decline your invitation to engage in collective-bargaining, inasmuch as the majority of its employees voted last July that they do not wish to be represented by your labor organi- zation.2 On April 19, 1982, the Union wrote the Respondent as follows: Now that the certification has issued in the above-entitled matter [supra] the Union is anxious to resume negotiations, as soon as possible, toward a collective bargaining agreement to succeed that which expired in November of 1980 . In this regard, the Union is prepared to meet with you, or any other designated representative of Carter-Glogau, at the earliest possible date to conclude such negotia- tions. As you know, the Union has already tendered an unconditional offer, on behalf of bargaining unit em- ployees, that such employees either be returned to work or placed on a preferential rehire list. We renew that request at this time. Moreover, so that we can expedite bargaining, we would appreciate your providing us with a de- tailed statement of any changes which have been made in wages, hours and other terms and condi- tions of employment since the submission of your "firm and final offer" of November, 1980. If such ' Prior to November 17, 1981 , the Respondent had reinstated approxi- mately 47 of the original 93 strikers, after placing them on a preferential rehire list, pursuant to their individual requests to return to work 2 During the election the Respondent challenged the ballots of 24 mdi- viduals on the basis that they were former strikers who had obtained reg- ular and substantial equivalent employment elsewhere or did not want to return to work The challenges, which were determinative of the results of the election, were overruled in substantial part and the Union was cer- tified Thereafter the Respondent continued to maintain its position on the challenged ballots information is provided to us five days prior to the first negotiating session, the Union will be in a posi- tion to provide you with a revised contract propos- al. Respondent's reply, dated April 28, 1982, is as follows: We have received your April 19, 1982 letter ad- vising us that the union is prepared to engage in collective bargaining negotiations with the employ- er and requesting that striking employees be rein- stated or placed on a preferential hiring list. As you probably know, the employer placed all striking employees who made unconditional offers to return to work on a preferential hiring list and reinstated those employees as job openings for which they were qualified developed. Presently there are no job openings. The employer will be happy to place the names of any additional individ- uals who went on strike November 19, 1980, and who have not in the meantime acquired regular and substantial equivalent employment elsewhere on the preferential hiring list. Please have any such indi- viduals send their current phone numbers and ad- dresses to Ms. Barbara Hanson , Director of Person- nel, Carter-Glogau Laboratories, Inc., 5160 W. Bethany Home Road, Glendale, Arizona 85301. The employer will call those individuals when openings in jobs for which they are qualified develop. The employer must decline your invitation to engage in collective bargaining with the union, inas- much as the majority of its employees voted last July that they do not wish to be represented by said labor organization despite the repeated incidents of objectionable conduct committed by union officers. We are sure that you can understand that the em- ployer must comply with the wishes of its employ- ees and may not act in accordance with the wishes of individuals employed elsewhere. On October 22, 1982, the Union sent the following letter to the Respondent: I have received the decision and order NLRB Case 28-CA-6912 directing you to bargain with this organization as the Certified Bargaining Representa- tive for all production and maintenance employees at the employers facilities located at 5160 West Bethany Home Road and 5308 West Missouri. In accord with the order dated October 15, 1982, I hereby request commencement of bargaining at the earliest date possible. In preparation for bargaining, I am requesting a complete and detailed description of all current wage rates, classifications and benefits including costs of such benefits. Previously we have notified you of the desire of the striking employees to have their names placed on a preferential hiring list. I do not know the cur- rent employment posture or the hiring since our re- quest was made on November 17 , 1981. We are again requesting that the employees who were dis- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placed due to the economic strike be placed on a preferential hiring list and called whenever a vacan- cy exists in a classification of work previously per- formed by them. I am confident that with good faith bargaining a collective bargaining agreement can be achieved and consummated. The Respondent replied on November 1, 1982, as fol- lows- As you know, it is Carter-Glogau's position that a majority of its employees voted that they no longer wanted to be represented by your labor or- ganization. Accordingly, Carter-Glogau must de- cline your invitation to engage in collective bargain- ing. With respect to your request that striking em- ployees be placed on a preferential hiring list, we inform you again, that the employer has always placed any striking employee who has made an un- conditional offer to return in a preferential hiring list and has called them as positions have become available. If there are any additional striking em- ployees who wish to make unconditional offers to return, please have them call the personnel manager at Carter-Glogau and request that their names and current telephone numbers be placed in the prefer- ential hiring list. After receipt of the foregoing November 17, 1981, April 19, 1982, and October 22, 1982 communications, the Respondent placed on the preferential hiring list and thereafter reinstated only strikers who provided it with their current addresses and telephone numbers. In addi- tion, during the aforementioned time periods the Re- spondent hired applicants for employment from off the street with respect to additional vacancies in bargaining unit jobs, after exhausting the names on the preferential hiring list, without offering the vacancies to yet unrein- stated strikers who had not provided the Respondent with their current addresses and telephone numbers. Ad- ditionally, during this period of time the Respondent pro- moted and transferred nonstriking employees to bargain- ing-unit positions, while some reinstated strikers and yet unreinstated strikers, who occupied some of those posi- tions prior to the strike, were not offered or reinstated to those positions. C. Analysis and Conclusions The threshold issue in this stipulated proceeding is whether the charge, filed on January 7, 1983, is time- barred by Section 10(b) of the Act. Fundamental to this issue is the Board's recent pronouncement in Postal Serv- ice Marina Center, 271 NLRB 397 (1984). This case holds that, as succinctly stated by the Board: [T]he Board will henceforth focus on the date of the alleged unlawful act, rather than on the date its consequences become effective, in deciding whether the period for filing a charge under Section 10(b) has expired. Where a final adverse employment de- cision is made and communicated to an employee- whether the decision is nonrenewal of an employ- ment contract, termination, or other alleged dis- crimination-the employee is in a position to file an unfair labor practice charge and must do so within 6 months of that time rather than wait until the con- sequences of the act become most painful." s is Delaware State College v. Ricks, supra, 449 U S. at 258; Char- don v. Fernandez, supra, 454 U S at 8 The Respondent argues that, assuming arguendo it vio- lated the Act by failing to properly offer reinstatement to economic strikers, the violation occurred about Novem- ber 20, 1981, when it responded to the Union's reinstate- ment request on behalf of all the striking employees. Thus, in its response , the Respondent stated that no im- mediate job openings existed; that it would place those former striking employees, who have not acquired regu- lar and substantial employment elsewhere , on a preferen- tial hiring list; that the Union should have those employ- ees'send their current phone number and address to Re- spondent for placement on the preferential hiring list; and that the Respondent would call those employees whose names appear on the preferential hiring list when jobs become available. The Respondent reiterated this message to the Union on April 28, 1982, and again on November 1, 1982.3 A fair reading of the foregoing com- munications, in my opinion, clearly advises the Union that the Respondent does not intend to accede to the Union's general request to place all strikers on a prefer- ential hiring list and offer them reinstatement as jobs become available. Rather, the Respondent advised that it would limit the preferential hiring list and, therefore, re- instatement, to those strikers who affirmatively submitted their names and addresses . It would seem to follow that by these communications the Respondent advised the Union, which was acting as the employees' agent,4 that unless the expressed condition was met, the employees would not be considered for reinstatement. The General Counsel argues in her brief that this con- dition placed on the Union or the employees is not un- lawful, and that the gravamen of Respondent's conduct is its failure to seek out and recall employees when im- mediate openings become available. In other words, it is immaterial, according to the General Counsel, that the Respondent sought to rehire from a selective preferential hiring list, as such a list is merely for the Respondent's convenience and cannot be a substitute for the Respond- s The November 20, 1981 and April 28, 1982 responses request that the Union have those employees who have not acquired regular and substan- tial equivalent employment elsewhere send their names and addresses to the Respondent. The November 1, 1982 response requests that the em- ployees who desire to make unconditional offers to return to work call the Respondent The General Counsel argues that the November 1, 1982 communication is significantly different from the prior letters and "for the first time clearly rejected the Union's 'mass offer' and demanded, in- stead, that employees make their own unconditional offers " I fail to see any material difference in this latter communication except for the fact that, as the General Counsel emphasizes, the November 1, 1982 response falls within the 10(b) period Each of the three communications require that the individual employee take certain affirmative action to be placed on the preferential rehire list. 4 See Coca-Cola Co of Memphis, 269 NLRB 1101, 1109-1110 (1984) CARTER-GLOGAU LABORATORIES ent's affirmative duty to seek out each striking employee, as job openings become available, for whom the Union made its collective request to return to work. However, it appears that the General Counsel's argu- ment is inconsistent with both the allegations in the in- stant complaint and the law in this area . Thus, paragraph 16 of the complaint states as follows: 16. Since on or about November 17, 1981, and con- tinuing to date, the Respondent, as a condition for reinstatement and/or placement on a preferential rehire list, has required striking employees who had previous unconditional offers to return to work made on their behalf by the Union as described above in paragraphs 13(a) and 13(c) to first make in- dividual and unconditional applications for rein- statement, and to provide the Respondent with their current addresses and telephone numbers. And paragraphs 17 and 18 of the complaint specifically allege that the acts and conduct described in paragraph 16 are violative of Section 8(a)(3) and (1) of the Act, re- spectively. To this contention, the General Counsel maintains that paragraph 16 of the complaint constitutes evidentiary pleadings which shed light on the operative substantive allegations of the complaint , but does not constitute an independent allegation of discrimination within Section 8(a)(3) of the Act.5 I do not subscribe to the General Counsel's sophism that paragraph 16 of the complaint is not an allegation of unlawful conduct but is merely the pleading of supporting evidence . Rather, I find that the plain language of paragraph 16 of the com- plaint in conjunction with paragraphs 17 and 18 shows that it is and was intended to be a substantive allegation of unlawful conduct. Moreover, clear case law establishes that conduct simi- lar to that alleged in paragraph 16, namely, establishing conditions precedent to reinstatement of economic strik- ers, has been found to be inconsistent with the reinstate- ment rights of economic strikers as established in Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1979), cert. denied 397 U.S. 920 (1970). As enunciated by the administrative law judge in Little Rock Airmotive, 182 NLRB 666, 672-673 (1970): The Laidlaw decision states explicitly ". . . we spe- cifically find that . . . the failure to make . . . an offer [of full reinstatement absent a showing of le- gitimate and substantial business justification ] consti- tutes an unfair labor practice even without regard to Respondent's intent or anti-union animus." The criterion established by Laidlaw is not whether strikers have sought regular and substantially equiv- alent employment elsewhere but whether they have found it. Laidlaw does not require replaced strikers to make known their availability for employment in the manner Respondent would require. It places the burden of offering reinstatement to a replaced strik- er who still retains his employee status on Respond- 5 However, the General Counsel's brief also acknowledges that al- though such allegations embodied in par 16 of the complaint are tanta- mount to an unlawful threat, they are not to be considered as such 451 ent. It does not require the striker to comply with any conditions imposed by Respondent such as fill- ing out an application at a particular time and place or being present at the plant at the precise moment when a job opens up. Finally, it does not relieve Respondent of the burden of making a good-faith effort to find the strikers when jobs are available. If Respondent had tried to locate the strikers as jobs became available by sending letters to their last known addresses or by notifying the Union, it would have fulfilled its obligations under the Laid- law doctrine since it would have done all that could be reasonably expected of it to offer reinstatement. It did not choose to do so. Therefore, the fact that such efforts might have failed because some or all of the strikers could not be found is irrelevant. Under Laidlaw, the burden of seeking the strikers to offer reinstatement was on Respondent , not on the strikers to seek out Respondent so that an offer could be made. And in Charleston Nursing Center, 257 NLRB 554, 556 (1981), the Board found that a letter to unreinstated em- ployees requesting them to notify the employer of their interest in being reinstated, and advising that "[i]f we do not receive a reply, we will assume you are not interest- ed," was violative of Section 8(aXl) of the Act. The Board stated as follows: Under Laidlaw the employer has the duty to seek out replaced economic strikers in order to give them notice that a position has become available, unless the employer can prove legitimate and sub- stantial business justification for terminating their reinstatement rights. The Board does not require an employer to make periodic requests for current in- formation. Rather, any periodic requests an employ- er may send to unreinstated strikers for updated in- formation are merely for its own administrative convenience. The employer still has the affirmative duty to notify replaced strikers of job vacancies as they occur and of any possibility that their rein- statement rights may be terminated . While the em- ployer may be entitled to rely on any information it does receive in response to such a periodic request, we do not see any legitimate and substantial busi- ness reason which would justify an employer in ter- minating an employee's reinstatement rights merely because the employee failed to respond to such a periodic request. Any termination of reinstatement rights based on a failure to respond to such a periodic request would be premature inasmuch as no job vacancy existed at the time of the request . Further, the burden on the employer would be slight: it need only maintain a nonresponding employee's name on the preferential hiring list until he is offered rein- statement and either refuses or fails to respond to the job offer. The burden on the employee , howev- er, is severe: termination of all reinstatement rights. Even if the employer did not actually follow through by terminating the employee's reinstate- 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment rights, the employee might be deterred from inquiring about future openings. Therefore, we con- clude that, although an employer may legally re- quest replaced economic strikers to furnish current information about their interest in reinstatement, an employer may not require replaced economic strik- ers to respond to such a request or risk losing their reinstatement rights. Accordingly, we find that Re- spondent's letter of March 11, 1980, violated Sec- tion 8(a)(1) of the Act. See Giddings & Lewis, Inc., 264 NLRB 561 (1982); Penn Corp., 239 NLRB 45 (1978), enf. denied 630 F.2d 561 (8th Cir. 1979); Albritton Engineering Corp., 138 NLRB 940 (1962), enfd. 340 F.2d 281 (5th Cir. 1965). Applying the principles generally enunciated in Marina Center to the facts of the instant case, it appears that the final adverse employment decision which pre- cluded the employees herein from even being considered for their reinstatement rights under Laidlaw was the Re- spondent's clear and unambiguous November 20, 1981 communication to the Union that it did not intend to re- instate striking employees other than those who submit- ted their names and addresses. This conduct was indeed alleged as a violation , as found above . In my opinion this communication, specifically advising the Union that de- spite its collective request the prospects for reinstatement of any employee were nonexistent, absent compliance with the express condition that each employee's name and address be individually furnished , commenced the running of the 10(b) period within the intendment of Marina Center. Further, following this communication the Respondent not only did not engage in inconsistent conduct, but rather even reiterated to the Union on April 28, 1982, its intent to adhere to this procedure, well prior to 6 months preceding the filing of the charge herein.6 " The Union's failure to meaningfully respond to these communications is puzzling. There is no probative evidence that the Respondent's actions were intentionally contrived to deny employees their rights , and at most the Respondent appeared to be establishing a method , albeit allegedly not in compliance with the strictures of Laidlaw, whereby striking employees could in fact be returned to work. By apparently failing to comply with the Respondent's request that the Union advise the employees to individ- ually send the Respondent their names and addresses , the Union insured that those employees who actually desired reinstatement would never be called. It would appear that if the Union 's general offer of reinstatement was for the purpose of expediting reinstatement , it should have complied with the Respondent's request, or voiced an objection to the Respond- ent's letter, or filed a timely charge, or at least should have attempted to formulate an alternative method, in cooperation with the Respondent, of identifying those strikers who wanted reinstatement , thus ensuring that their return to work should be without undue delay . The Union's failure to act from about November 20, 1981 , until it filed the charge on January 7, 1983, during which time new employees were being hired, seems ex- traordmary under the circumstances. It is fair to speculate that the Union decided to officially end the strike and make a pro forma collective offer to return to work on behalf of the employees without knowing whether, in fact, any employees desired rein- statement However, once making this offer on behalf of the employees, and thereafter being requested that it should have the employees who were interested in reinstatement submit their names and addresses on an individual basis, it seems that the Union cannot thereafter simply ignore the request. Indeed, it would appear that the Respondent could interpret the Union's silence as acquiescence Thus, as persuasively pointed out by the Respondent in its brief- The General Counsel, citing Giddings & Lewis, Inc., supra, Charleston Nursing Center, supra, and Penn Corp., supra, maintains that the "Board has clearly and un- equivocally held that, once a valid unconditional offer to return to work is made, an employer's imposition of pre- conditions for reinstatement outside the 10(b) period does not terminate or otherwise affect the reinstatement right of unreinstated economic strikers as unit openings become available." However, the cited cases do not appear to stand for this averred proposition of law. Rather, the Board stated in Giddings & Lewis, Inc., supra at fn. 11, that "The operative event here, as held in Vi- tronic [supra] is the termination of the employees' recall rights." In both cases the Board deemed the Respondent to have unlawfully terminated strikers' recall rights, in violation of Section 8(a)(1) and (3) of the Act, when it notified the employees that their recall rights were termi- nated, which notification occurred within the 10(b) period. Furthermore, these decisions do not contain facts indicating that unit openings were available for the em- ployees at the time they received such notification.7 The General Counsel, in her brief, maintains that the Respondent's reliance on Marina Center is misplaced. According to the General Counsel, "The Board in Marina Mail simply held that the Section 10(b) period commences at the time an employee receives unequivo- cal notice of an adverse personnel action rather than at the time such personnel action becomes effective. How- ever, the Board has not held that an employer's state- ment of an intention to discriminate against economic strikers in the future triggers a 10(b) defense before the discriminatory act is consummated." In the instant case, however, the Union was advised not merely of Respondent's intention to discriminate in the future, but rather was apprised of the fact that the employees' reinstatement rights were being immediately curtailed.8 Thus, it is clear that from November 20, 1981, the Union, as the employees' agent, had been made aware that the employees' recall rights were, in effect, indefinitely suspended until such time as they elected to specifically notify the Respondent, in the prescribed manner, that they desired reinstatement. To be sure, the effect on the employees, whether they are given specific notification of termination or whether they are not con- sidered for employment, is the same: they remain unem- ployed as long as the unlawful conduct prevails. There- fore I see no reason why the "operative" discriminatory Most importantly, the Union's failure to otherwise respond to Re- spondent's repeated and emphatic requests for the current addresses and phone number of the eligible strikers fully justified Re- spondent's belief that only those strikers who, after said requests were made, provided it with their current address and telephone numbers were the ones on whose behalf the Union had made the general offer ' Charleston Nursing Center, supra, also cited by the General Counsel, seems inapposite a Indeed, the Union in the instant case was never specifically told that employees' recall rights were being terminated. In fact, even to date their recall rights, which are of indefinite duration (see Brooks Research & Mfg, 202 NLRB 634 (1973)) remain extant and the Respondent does not maintain, except for those former strikers who have obtained regular and substantial equivalent employment elsewhere, that they are no longer en- titled to reinstatement CARTER-GLOGAU LABORATORIES event here should not be the time when the Respondent first notified the Union that it was, in effect, placing al- legedly unlawful conditions on the employees' reinstate- ment rights under Laidlaw. It should be noted that the Board in Marina Center did not limit its application to employee terminations, but rather specifically stated that it encompassed "termination, or other alleged discrimina- tion." Nor does Respondent's reliance on Albritton Engineer- ing Corp., 138 NLRB 940, 959-960 (1962), enfd. 340 F.2d 281 (5th Cir. 1965), withstand scrutiny. Thus, in Albrit- ton, the employees, who had made unconditional applica- tion for employment, were bypassed prior to the 10(b) period, and again bypassed within the 10(b) period. However, unlike the instant case, there was apparently no contention that those employees, who filed individual charges, were aware of the discriminatory conduct prior to the 10(b) period." The General Counsel's reliance on Swift Service Stores, 169 NLRB 359 (1968), is certainly, by way of analogy, in point. In this case the Board held that the employer's dis- criminatory announcement outside the 10(b) period that employees would be denied their Christmas bonus was not time barred because the unfair labor practice was committed when the employer failed to pay the bonus, some 9 months later. However in the instant case, as noted above, the adverse employment decision had an immediate, rather than prospective, effect on the employ- ees. Moreover, it appears that the decision in Swift Serv- ice Stores has been effectively overruled by the Board's recent decision in Marina Center. On the basis of the foregoing, I find that the complaint allegation regarding the Respondent's failure to reinstate employees is barred by Section 10(b) of the Act. I shall also dismiss the complaint allegation regarding Respondent's failure to properly promote or transfer pre- viously reinstated strikers to bargaining unit positions which they occupied prior to the strike. The record shows that in December 1980, during contract negotia- tions, the Respondent made a firm and final bargaining offer which included a proposal for the posting of job vacancies, and the awarding of such jobs based on se- 9 See Baytown Sun, 255 NLRB 154, 160, and cases cited at fn 18 (1981), American Olean Tile Co, 265 NLRB 1625 (1982) 453 niority and the employee's ability to perform the re- quired tasks of the position. Obviously certain reinstated strikers who were not promoted to such positions were capable of performing the jobs they had formerly occu- pied. However, there is no showing that these individ- uals were the most senior employees who bid on the job or that the failure to place the strikers in their prior posi- tions as these jobs became available was discriminatorily motivated. The General Counsel has not cited any case authority holding that previously reinstated strikers have an auto- matic right to their former positions when such become available, regardless of an employer's good-faith adher- ence to established bidding and promotion policies. The General Counsel cites MCC Pacific Valves, 244 NLRB 931 (1979), and Crossroads Chevrolet, 233 NLRB 728 (1977), as standing for the proposition "that an employer violates the employees' Laidlaw rights by promoting or transferring nonstrikers into jobs for which former eco- nomic strikers are qualified." However, these cases appear inapposite, as they apply to strikers who have never been initially reinstated. On the basis of the foregoing, I shall also dismiss this portion of the complaint. CONCLUSIONS OF LAW 1. The Respondent is an employer enaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has not violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed1O ORDER The complaint is dismissed in its entirety. t t 10 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. I All motions inconsistent with this decision are denied