Castaways Hotel And Casino

612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Castaways Hotel and Casino and Ruth Coppola. Case 31-CA-14384 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 28 July 1986 Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. 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 only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ruth Coppola Miller 1 on 4 June 1984. 2 The Re- spondent has excepted to the judge's finding, argu- ing that the judge's finding denied it due process and adequate notice of the critical facts at issue be- cause the complaint does not allege the discharge on 4 June as a violation and the parties did not liti- gate the issue at trial. For the reasons set forth below, we find merit in the Respondent's excep- tions and we shall dismiss the complaint. On 7 August Miller filed a charge with Region 31 of the Board, alleging that about 4 June the Re- spondent had unlawfully terminated her employ- ment "in retaliation for her refusal to resign her membership from the Culinary Union, Local 226." On 25 September Miller filed an amended charge that, in addition to the allegation quoted above, al- leged that from 3 April to 19 May the Respondent had unlawfully conditioned Miller's recall from a strike on her resignation from the Union, and that during the same period the Respondent had threat- ened to terminate employees in retaliation for their support of the Union during the strike. On 30 Oc- tober the Region issued the instant complaint, al- leging, inter alia, that on 19 May the Respondent violated Section 8(a)(3) and (1) of the Act by dis- charging Miller and failing and refusing to reinstate her because she refused to resign from the Union, because she supported the Union during the strike, or because she engaged in other protected concert- ed activities. 1 Subsequent to filing the charge, the Charging Party changed her name through marriage We shall refer to her by her married name as the judge did. 2 All dates refer to 1984 unless otherwise designated. Testimony at the hearing revealed the following facts. The Respondent, a hotel and casino, had at all relevant times a collective-bargaining relation- ship with the Culinary Workers' Union, Local 226. On 2 April the Union initiated an economic strike against the Respondent and other hotels in the Las Vegas area. Miller was employed by the Respond- ent as a pantry employee until about 4 June and was a member of the bargaining unit. Miller's im- mediate supervisor was Price, the "head pantry." Price reported to Henderson, the Respondent's ex- ecutive chef, who reported in turn to Perlowin, the food and beverage director. Although Price was not a supervisor within the meaning of Section 2(11) of the Act, the judge found that Price was an agent of the Respondent for the purposes of the telephone call discussed infra. As noted above, about 2 April, the Union called an economic strike against the Respondent and other hotels in the Las Vegas area. Miller was on duty when the strike began. All the employees on Miller's shift except Miller walked off the job when the strike began. She remained on the job for approximately 2 more hours and then left. During the strike, Miller joined her fiance at his job in Laughlin, Nevada, returning to Las Vegas on weekends. Price testified that about 18 May Henderson or- dered her to call Miller to fmd out if she was plan- ning to return to work, and to remind her that "if Summa [the Respondent's parent corporation] don't [sic] sign the contract, you could be permanently replaced." Price telephoned Miller in Henderson's presence and, according to Price, asked her why she did not come back to work and told her that if she did not return she could be permanently re- placed. Price further testified that Miller replied that she would call back and let Price know what she planned to do, but that she never did so. Price also stated that Henderson told her exactly what words to use during the cal1.3 Miller's fellow employee, Haretos, testified that sometime during May Miller told her that Price had discharged her. About 25 May, after a new collective-bargaining agreement had been signed, Haretos told Miller that she thought the employees would return to work on the night of Tuesday, 29 May. Miller asked Haretos how she could find out and Haretos suggested she call the Union, which, Haretos told her, was operating on a 24-hour basis. About 30 May Miller told Haretos that the work in 3 Miller's testimony regarding the phone call differed from that of Price. Miller's testimony would mdicate that there were two phone con- versations on 19 May and that Price fired Miller in the second conversa- tion after Miller said she would not resign from the Union and return to work The judge credited Price 284 NLRB No. 69 CASTAWAYS HOTEL 613 Laughlin would be ending in about a week and that she was going to try to get her job with the Respondent back. The strikers returned to work the last week in May, and at that time Haretos told Henderson that she thought that Miller would be returning to work on 31 May. Miller testified that, although she knew the strike was over, she did not report to work after the strike because she believed that Price had discharged her in the May phone con- versation. Perlowin, a witness for the Respondent, testified that on 1 or 2 June Henderson informed him that Miller had not returned to work. The two dis- cussed calling her, but Perlowin told Henderson the Company had no obligation to call her and they decided against it. Perlowin filled out a termi- nation slip for Miller dated 4 June. On 9 July Miller went to the Respondent's personnel office to get a copy of her termination slip. On 17 July Perlowin gave final approval to her discharge. At the end of the hearing, the judge made the following comments to the parties during his clos- ing remarks: When you look at the facts in light of what the rights of strikers are, one must consider that the Board has stated and held that the re- instatement rights of strikers are to be held open, and they don't give any sort of specific deadline. Thus, even if you say that she wasn't fired by Ms. Price, query whether or not she still didn't have a right to remain out or at least remain a striker and having the rights of the strikers to be reinstated at some point when she makes her offer. I haven't heard any evidence about that, so I assume there is none. I wish you to address both credibility issues and these questions of law with respect to what rights she had. Suppose she wasn't fired on the 19th or the 18th of May as she said she was . . . . Does the Company have the right to extinguish her rights on the 4th of June? The General Counsel did not move at that time to amend the complaint in light of the judge's re- marks In their posthearing briefs, both parties ad- dressed this question raised by the judge, the Gen- eral Counsel in a footnote, and the Respondent at somewhat greater length. The judge in his decision found that the allega- tions in the complaint had not been proven. Credit- ing Price's testimony over that of Miller regarding Price's May phone call to Miller, he concluded that Miller had not been fired on 19 May as alleged in the complaint. 4 He further concluded, however, that other evidence adduced at the hearing re- quired "an analysis of whether Respondent could properly discharge the Charging Party on 4 June shortly after the strike ended." The judge then found that Miller in fact was fired on 4 June, that Miller was then an unreinstated striker, and that the Respondent violated Section 8(a)(3) and (1) of the Act by severing her employment rights. The Respondent in its exceptions argues, inter alia, that it had no reason to believe that the 4 June discharge, rather than Price's telephone call to Miller in May, as alleged and argued by the Gener- al Counsel, would be at issue in this case. It notes that the General Counsel argued in her posthearing brief that Miller was discharged on 19 May and that she never requested to amend the complaint to allege a violation of the Act with respect to Mil- ler's 4 June termination. It contends the issue was not fully litigated. Although the charge filed by Miller alleged that the Respondent had discharged her unlawfully about 4 June 1984, the General Counsel chose to issue a complaint alleging that the Respondent dis- charged Miller on 19 May. Throughout the hear- ing, the General Counsel sought to prove that Price terminated Miller's employment on 19 May. The Respondent, not the General Counsel, sought to establish that Miller's discharge had actually oc- curred on 4 June, to rebut the General Counsel's evidence that the discharge took place on 19 May. The judge mentioned the possibility that the Re- spondent's 4 June action violated the Act only once, at the close of the hearing. The General Counsel did not then move to amend the com- plaint. Moreover, even after the judge's remarks, the General Counsel argued in her posthearing brief that the illegal discharge took place on 19 May, and alluded to the possible unlawfulness of the Respondent's actions in June only in a footnote. Nor did the General Counsel move in her brief to amend the complaint in light of the facts adduced at the hearing. Section 554(b)(3) of the Administrative Proce- dure Act (5 U.S.C. § 554(b)(3)) and Section 102.15 of the Board's Rules and Regulations require that the complaint inform the Respondent of all asserted violations. Moreover, "[t]he Board may not make findings or order remedies on violations not charged in the General Counsel's complaint or liti- gated in the subsequent hearing." Maintenance Serv- ice Corp., 275 NLRB 1422, 1425 (1985). See also NLRB v. Blake Construction Co., 663 F.2d 272, 279 (D.C. Cir. 1981), and Teamsters Local 992 v. 4 There are no exceptions to this conclusion. 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB, 427 F.2d 582, 588 (D.C. Cir. 1970). The Board, however, may decide a material issue that the parties have fairly tried, even if it was not spe- cifically pleaded in the complaint. Maintenance Service Corp., supra. But in all circumstances, a re- spondent has a basic right to adequate notice of the material issues to be tried and to full and fair litiga- tion of those issues. In Electrical Workers IBEW Local 1186 (Pacific Electrical Contractors), 264 NLRB 712 fn. 3 (1982), enfd. mem. 714 F.2d 152 (9th Cir. 1983), the Board reversed a judge's find- ing of a violation that had neither been alleged in the complaint nor argued by the General Counsel. The Board found that the respondent had not oth- erwise been put on notice that evidence of certain conduct would become the basis for a violation and that, therefore, the issue was not fully litigated. The Board took a similar position in Florida Steel Corp., 224 NLRB 45 (1976), in which the judge found that the respondent violated Section 8(a)(1) of the Act by "promulgating and enforcing" an un- lawful no-access rule. The Board reversed on the ground that "promulgation" was neither alleged in the complaint nor fully litigated. Moreover, the Board found that the failure to litigate the issue of promulgation was not an oversight because the charge (but not the complaint) had alleged promul- gation as an instance of unlawful conduct.5 In the instant case, the Respondent did not re- ceive adequate notice of a material issue and the parties did not fully and fairly litigate the lawful- ness of the 4 June discharge. The record does not reveal any statement from the General Counsel during the course of the hearing that would have served to put the Respondent on notice that the lawfulness of its actions in June was at issue. Indeed, as noted above, at the hearing the Re- spondent itself presented evidence that Henderson's and Perlowin's acts in early June actually constitut- ed Miller's discharge to rebut the General Coun- sel's evidence that Miller's employment had been terminated in May. The Respondent contends, and we reasonably can assume, that if it had known that the acts of Henderson and Perlowin were criti- cal it would have presented its defense differently. Furthermore, as in Florida Steel, supra, the critical fact on which the judge relied was alleged in the charge filed by Miller on 7 August, but was not 5 The General Counsel generally has the authority to frame the issues in the case. In both Pacific Electrical and Florida Steel, supra, the Board held that finding a, violation not alleged in the complaint nor argued at trial improperly intruded on the General Counsel's authority to frame the case Pacific Electric, 264 NLRB at 712 fn 3 In Florida Steel, the Board stated that "Rifle General Counsel chose not to issue a complaint on this aspect of the charge, and we are unwilling to circumvent his authority by basing an unlawful promulgation finding upon a record which does not specifically address this issue." 224 NLRB at 45 fn. 2 carried forward by the General Counsel. There- fore, the General Counsel's failure specifically to plead in the complaint that Miller's discharge oc- curred on 4 June was not inadvertent. That is fur- ther demonstrated by her litigation of the case on the basis of an alleged discharge on 19 May and her failure to amend the complaint ,even when the judge raised the issue of the 4 June discharge at the close of the hearing. In sum, since the discharge of Ruth Coppola Miller on 4 June was neither alleged as an unfair labor practice in the complaint nor litigated as such at the hearing, we conclude that the judge's finding of such a violation deprived the Respondent of its right to due process. Accordingly, we reverse the judge and shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. Richard S. Zuniga, for the General Counsel. Sandra L. Pomrenze, of Las Vegas, Nevada, for the Re- spondent. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me in Las Vegas, Nevada, on May 21, 1986, pursuant to a complaint issued by the Regional Director for Region 31 of the National Labor Relations Board on October 30, 1984. 1 It is based on a charge and an amended charge filed by Ruth Miller nee Coppola, an individual, on August 7 and September 25. The com- plaint alleges that Castaways Hotel and Casino (Re- spondent) has engaged in certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act). Issue The principal issue presented by the complaint is whether Respondent discharged Miller on May 19 while she was participating in a strike called by her union. In addition, the complaint alleges that during the course of this strike Respondent conditioned reinstatement on her resignation from the Union and that at various points an individual alleged to be a supervisor impliedly threatened to terminate the Charging Party and others because they supported the Union during the strike. As will be seen, these allegations fail as a result of lack of credible proof at the hearing; however, other evidence adduced at the hearing requires an analysis of whether Respondent could properly discharge the Charging Party on June 4 shortly after the strike ended. The latter issue has been briefed by both parties. The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Both the General Counsel and Respondent have filed briefs All dates are 1984 unless otherwise noted. CASTAWAYSHOTEL 615 that have been carefully considered. Based on the entire record of the case, as well as my observation of the wit- nesses and their demeanor, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent admits it is a Delaware corporation having an office and principal place of business located in Las Vegas, Nevada, where it operates a hotel and casino. It further admits that in the course and conduct of its busi- ness, its gross revenues exceed $500,000 and it annually purchases and receives goods and services valued in excess of $50,000 directly from suppliers located outside Nevada. Accordingly, it admits, and I fmd, that it is an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Culinary Workers Union, Local No. 226 is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 'IL THE ALLEGED UNFAIR LABOR PRACTICES Charging Party Ruth Coppola, because of a change in marital status, is now known as Ruth Miller. Hereafter she will be referred to as Miller. Miller was hired by Respondent in 1980 and worked as a pantry employee until approximately April 1, when the Union called a strike against Respondent and other hotels and casinos in the Las Vegas area. Miller usually worked the graveyard shift together with fellow pantry employee Betty Haretos. Miller's duties as a pantry person required her to "work the board," meaning to read and fill food orders placed by waiters/waitresses and to prepare certain foods. The foods she prepared were finger sandwiches, melons, chefs salads, shrimp cocktails, and the daily specials offered by the restaurant. In addition, she cut both meats and lettuce and prepared salad dressings. Her immediate superior was Bennie Price, the "head pantry." Price mainly worked during the day and swing shifts. A. Lines of Authority Bennie Price was hired in 1981 as the "head pantry" and has continued in that capacity since that time. She reports to the executive chef who, during 1984, was Bob Henderson. Henderson in turn reported to food and bev- erage director, Mickey Perlowin. At the time of the hearing Henderson had retired and Perlowin had moved to a sister hotel. Respondent admits that Henderson, as the executive chef, was its supervisor and agent within the meaning of the Act. It denies, however, that Price held either status as the General Counsel alleges. Despite Respondent's denial, I think it is clear that the General Counsel has proven that Price is an agent and, because the evidence showing her to be a supervisor ap- pears deficient, I conclude it is unnecessary to deal with that allegation. Finding Price to be Respondent's agent is enough.2 To decide the question of Price's agency one must look to whether Henderson or any other management of- ficial gave Price specific authority to speak on their behalf. The complaint alleges that Price threatened to terminate employees because of their support during the course of the strike: The evidence also shows she relayed a message from Henderson on May 19 allegedly effecting Miller's discharge. It is clear, as shown below, that Hen- derson authorized Price to speak to Miller on May 18 or 19. Price was a company agent for that purpose at the very least. B. The Strike The strike began in early April; shortly beforehand, Respondent's president, Bill Friedman, had written a letter to all bargaining unit employees in which, he dis- cussed the possibility of a strike. Among other things he stated, "If you elect to participate in an economic strike called by your union, you can be replaced on a perma- nent basis. If you are permanently replaced, you will be entitled to return to work only after you unconditionally offer to return to work and only if and when a vacancy occurs for which you are qualified." The letter was sent to both Miller and Haretos as well as other bargaining unit members. Miller chose not to read it; Haretos did so. When the strike began at approximately 5 a.m. on either April 1 or 2, all the graveyard kitchen employees, except Miller, but including Haretos, walked off the job. Miller remained for approximately 2 hours and then left. Later that morning Price, too, joined the strike. Howev- er, due to Price's economic circumstances, she was unable to stay on strike for more than 3 days. Thereafter, she returned to work as the head pantry. In the meantime, Miller decided to join her husband- to-be, Danny Miller, in Laughlin, Nevada, where he was working at a construction site. They stayed in Laughlin on weekdays, returning to Las Vegas on Friday evenings for the weekends. Miller does not appear to have picket- ed during the strike. There is some evidence in the record that Miller told Haretos and roast cook Lloyd Sidwell that she was working in construction in Laughlin with her husband- to-be. She denies that. Nonetheless, at several points in her testimony, she stated that she was "with Danny in Laughlin working." Her friends, of course, knew that 2 It appears that Price had no hire or fire authority and her ability to act independently of Executive Chef Henderson was sharply circum- scnbed Henderson did describe Price as a "supervisor" when he hired her in 1981. Yet both Price and Food and Beverage Director Mickey Perlowm agree that she had virtually no independence. Henderson told her to write and sign both the daily schedules and the written reprimands that are in evidence. Perlowin said Price had no authority to write the reprimands; she could only orally admonish employees. Her job was to maintain kitchen routine. Even there she rarely reported derelictions to Henderson She made no recommendations regarding employee requests for vacation or for time off. Finally, her job, head pantry, was a bargain- ing unit job To the extent that the record contains contrary evidence, it suffers from problems of credibility and sufficiency of weight. If one were to draw any conclusion on this evidence, most likely it would be that Price was a leadperson, not a statutory supervisor, 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Danny was working in construction. They interpreted her similar remarks to them to mean that she, too, was working in construction at Laughlin. Whether that is the case, for she denies it, both Haretos and Sidwell reason- ably believed it.to be so. Miller testified that she had three telephone conversa- tions with Price during the course of the strike. Price denies that, saying there was only one. According to Miller, the first two conversations, occurring in the first and second weeks of May, were nearly identical. In each, she says, Price asked her to come back to work but she declined. In the second conversation, says Miller, Price asked why she did not want to come back. She re- plied she did not want to cross the picket line. Miller says Price told her she could resign from the Union and then cross. At the end of the conversation Miller told Price she would think about it. Price denies that these conversations occurred.3 C. The Alleged Discharge During the Strike On either May 18 or 19, both agree they had a tele- phone conversation. They are unable to agree, however, what transpired or even what date it was. In fact, Miller asserts there were actually two conversations, approxi- mately an hour apart. Miller testified that at approxi- mately 1 p.m., on Saturday, May 19, Price called to ask Miller if she was going to return to work. Miller, replied she did not know. When Price insisted she had to have a decision, Miller told her she would have to think about it and would call her back. About an hour later Miller called Price back at the hotel. She told Price she had de- cided she would not resign from the Union and would not come back to work. Price said, "Oh, really?" and Miller replied, "Correct." At that point, according to Miller, Price told her, "Well, then I'm to tell you you are terminated." "Really?" "Yes." The conversation ended. Price testified at Henderson's direction she called Miller on Friday evening, May 18. She remembers that it was a Friday, and says that her affidavit saying that it was May 19 was a mistake. She says they were aware, from Sidwell, that Miller was returning to Las Vegas on the weekends and that Friday evening was the appropri- ate time to call. She testified that Henderson had told her that Miller had "a boat and a truck, that he knew she had to make payments on" and since Miller had not walked out until after the other strikers had and he knew the Union had her name, he wanted her to be "with a job." She says Henderson told her, "Call Ruth and tell her, 'Why don't she come back in because if Summa [Re- spondent's parent] don't sign the contract she could be permanently replaced." Following Henderson's order, she telephoned Miller. Price testified that the conversation went as follows: Price said "Ruth, this is Bennie." She said, "I heard you went back in." Price said, "Yes. It's too much expense 3 To corroborate the claim that Price called Miller more than once, the General Counsel called Miller's adult daughter who testified that Pnce called on several occasions when Miller was absent. She did not know Price but claims to have recognized Price's voice. The caller did not leave any message or identify herself. This evidence is too weak to credit. on me." She said, "Well, I'm working in Laughlin." Price said, "I was told to call you to tell you why don't you come back in because if Summa don't sign the con- tract, you could be permanently replaced." Price says Miller replied, "I'll call you back and let you know." According to Price, Miller never called back. Price testi- fied that her end of the entire conversation took place in Henderson's presence. She further testified that she did not see Miller until several months later when Miller's grievance was being considered by the Union. Coworker Betty Haretos testified that sometime during May she had a telephone conversation with Miller in which Miller said that Price had fired her. Haretos said she "fluffed it off" as she knew Price did not have the authority to fire employees. Later, according to Haretos, about May 25, the day after the new contract had been ratified, she had another conversation with Miller. She told Miller she thought the employees were to return to work on Tuesday night, May 29. Miller asked how she could find out and Haretos told her to call the Union. Miller thought the Union was closed over the weekend, but Haretos informed her that the Union was operating on a 24-hour basis because the strike was ending. On May 30, Haretos had yet another conversation with Miller during which Miller said the construction work in Laughlin was ending in about a week and that she was going to return to Las Vegas to try to get her old job back. She said she intended to call Company President Friedman, because she believed she had a better chance with him particularly since she had learned that Hender- son was not at the hotel anymore. (Henderson was in the process of retiring at that time, although the record does not reflect his last day of work.) Although Haretos was a little uncertain on which date she returned, it appears to me that it was sometime during the last week of May. She testified that she had a conversation with Henderson during that week regarding whether Miller was returning to work. She told Hender- son that Miller had been working in construction at Laughlin but thought Miller would return on Friday, May 31. D. Miller Does Not Report to Work at the End of the Strike Generally, it was the practice of employees who wished to return to work after the strike ended to call their immediate supervisor to find out when they were to report. Haretos followed that procedure as, apparently, did all the other kitchen employees. The only person who did not return after the end of the strike was Miller. Miller testified she did not do so because she believed she had been fired as the result of a conversation she had had with Price on May 19, although she was aware that the strike had ended. She testified the reason she did not call Henderson was because she and Henderson did not get along. She never called Henderson or the hotel's per- sonnel office to confirm what Price had allegedly said. She undoubtedly knew that Price had no authority to fire employees, yet that knowledge did not cause her to question what she thought Price had said. CASTAWAYS HOTEL 617 On June 1 or 2, Henderson, aware of Haretos' report that Miller intended to return on May 31, discussed Mil- ler's absence with Mickey Perlowin, the food and bever- age manager. Perlowin testified that Henderson advised him that she had not returned and had not called. They discussed whether they should call her. Perlowin testi- fied he told Henderson that it was not the Company's obligation to call her, so they did not. As a result, Perlowin terminated Miller on Monday, June 4, as re- flected on the termination slip. Miller went to the Union sometime in mid-June. In July a union official told her to go-to-Respondenea per- sonnel office to obtain a copy of her termination slip. She finally did so on July 9. At that time she acknowl- edged receiving the slip by signing it. On July 17, Perlowin gave his final approval of the termination. Under company policy final approval had been withheld pending her acknowledgment.4 IV. ANALYSIS AND CONCLUSIONS The General Counsel's initial theory that Respondent, acting through Price, discharged Miller because she would not return to work during the strike, is principally based on the assumption that Miller's version is more credible than that of Price. The General Counsel has as- serted that Price was both a supervisor and an agent of Respondent when she had the May 18 or 19 conversa- tion with Miller. I am in agreement with the General Counsel that Price was Respondent's agent. It is clear that Henderson closely controlled all of Price's directives to employees, even well before the strike. More impor- tantly, it is conceded that Henderson directed Price to make the telephone call in question. Furthermore, Price says he told her the exact words to use during the tele- phone call. Accordingly, I agree that Henderson made Price his agent when she made the telephone call. However, I do not agree with the General Counsel that Miller's version is the more credible of the two. First, it is quite certain that Miller fails to understand or speak in meaningful definitional distinctions. On numer- ous occasions in the record she told me that she "had been down in Laughlin with Danny working." She meant that Danny was working, but not she. However, any reasonable conclusion to be drawn from analyzing the sentence is that she, if not both of them, was in Laughlin working. This demonstrates her inability clear- ly to convey her specific thoughts. Second, I found Price to be a sincere, honest individ- ual. I am convinced that her testimony with respect to the nonoccurrence of the first two conversations is accu- rate. Thus, her denial that the first conversations took place is specifically credited. It follows, therefore, that the allegations of the complaint dealing with those con- versations should be dismissed. 4 Although Miller finally filed a grievance sometime in July and subse- quently filed the original unfair labor practice charge in August, it ap- pears there Was some question with respect to how the situation was to be handled The Regional Director eventually deferred the unfair labor practice charge to the grievance-arbitration procedure. Later, the Union decided not to process the grievance. Subsequently, the charge was reac- tivated. Third, Miller testified that she declined to read the prestrike letter issued by Respondent describing how it intended to treat strikers. The letter states that strikers were subject to permanent replacement. Such was the Company's announced policy and undoubtedly manage- ment such as Henderson was well aware of it. That is not to say that Miller would have understood the distinc- tion between being permanently replaced and discharged had she bothered to read the letter. Yet, given the com- pany policy that strikers were subject to permanent re- placement, it seems to me to be perfectly probable that Henderson would urge, through-Price that Miller return before a replacement was hired. Henderson was aware that Miller had hesitated before striking and no doubt be- lieved her resolve in support of the strike to be weaker than that of others, particularly if he believed she was subject to union discipline for having been slow to join the strike or for not picketing. Price well remembers the exact words Henderson told her to use and she was care- ful to follow them. She did not want to make a mistake. Thus, I am convinced that Price told Miller during the conversation that if Respondent's parent decided not to sign the contract she would be replaced unless she had returned. While there may be circumstances where an employer commits an unfair labor practice by inducing strikers to abandon a strike, it is not always so. The General Coun- sel has not attacked Respondent's letter describing its right permanently to replace strikers as unlawful; clearly it was not. It was, instead, a statement of its right under the law. The Board has long held that an employer is privileged to advise employees of its right permanently to replace them if they engage in a lawful economic strike. Dow Chemical 186 NLRB 372, 384 (1970). A threat of discharge, as opposed to permanent replace- ment, is not privileged. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Here, Price, at Henderson's directive, simply tracked the earlier language of the letter, imply- ing only that Respondent was increasing the likelihood that it would exercise its right to replace her. That effort, like the letter, was perfectly lawful. Dow Chemi- cal, supra. I am further convinced that Miller, unable or unwill- ing to draw the distinction between replacement and dis- charge, concluded that she had been terminated. Indeed, I believe she has now convinced herself that Price used the word "terminated." Manifestly, however, that is not the case. Thus, I conclude that Price's version of what happened is the more credible of the two, and that Miller was not discharged on either May 18 or 19. However, the matter does not end there. Section 2(3) of the Act states that "any individual whose work has ceased as a consequence of, or in connection with, a labor dispute" is, and remains, an employee subject to the protection of the Act. Clearly, Miller was an individ- ual whose work had ceased as a consequence of the strike. She continued to be a Section 2(3) employee at least until she severed that connection by taking the steps set forth in Section 2(3) (i.e., obtaining other regular and substantially equivalent employment). 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues that she took those steps by obtain- ing construction employment in Laughlin with her hus- band-to-be, Danny Miller. The record does not reflect that, but even if it did, one does not lose Section 2(3) status simply because one finds short-term employment during a strike. Thus, Miller continued to be a Section 2(3) employee until either she or Respondent took steps to end that status. According to employee Haretos, she called Miller on June 25 and told her that the new collective-bargaining contract had been ratified on June 24, suggesting Miller call the Union. Food and-Beverage Manager Perlowin said that employees were to return to work by calling their immediate supervisor. According to the testimony of several witnesses, no employee was assigned to return until May 29, the day after Memorial Day. Respondent concedes that this method was authorized by the Union. As every employee returned (except for Miller and two or three employees whose jobs had been eliminated), I think it is fair to assume that the Union had uncondition- ally sought reinstatement for all strikers, including Miller. This seems entirely likely, particularly since Friedman's letter had said that employees who had not been replaced would be recalled only after they had sought reinstatement. Indeed, it may even be implied that no striker had been replaced in view of the reinstatement of the entire work force. Miller, in the erroneous belief that she had been fired on May 18 or 19, did not call for a starting time. Re- spondent, through information provided by Haretos to Henderson, knew Miller was not in town; it also believed (from misinformation provided by Haretos) that Miller intended to report on May 31. Apparently, Henderson was not concerned about the first two days. Not until May 31 passed did he inform Perlowin of the problem. Concluding that Respondent had no obligation to com- municate with Miller, Perlowin severed the Section 2(3) relationship on June 4 by firing her, an unreturned strik- er. The Board held long ago, in only a slightly different context, that an employer "may not equate strike time to normal absence for the purpose of depriving employees of their jobs." National Seal, 141 NLRB 661, 664 (1963), enf. denied on other grounds 336 F.2d 781 (9th Cir. 1964). Here, Respondent knew Miller was a striker, but did not actually know whether Miller had received word that the strike had ended; it did know she had been out of town during most of the strike. Its reliance on Haretos for information was reliance on hearsay that was at least partially inaccurate. Thus, aside from Miller's actual knowledge, Respondent did not know if Miller knew what to do. Respondent says it believed, yet without confirmation, that Miller was employed in Laughlin. It did not know whether Miller believed herself still to be on strike. Despite the fact that Respondent knew her to be an unreturned striker, it fired her. There is not even evi- dence that Respondent had replaced her, or had even considered replacing her, when it took that step. Clearly, it could have replaced her to protect the efficiency of its kitchen. 'NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938); NLRB v. International Van Lines, 409 U.S. 48 (1972). The Board has held in Brooks Research & Mfg., 202 NLRB 634 (1973), that strikers maintain Laid- law5 recall rights for some reasonable length of time, even in excess of the 1-year voting eligibility of replaced strikers set forth in Section 9(c)(3) of the Act. Moreover, Section 2(3) places no time limit on employee status for a striker. It refers to "regular and equivalent employment" elsewhere as the act that an employee must take before he or she loses employee status at the previous employer. Similarly, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). Whatever -the proper length of time may be for an unreinstated striker to maintain recall rights, clear- ly it is far longer than the 3 or 4 days Respondent al- lowed Miller. The case law also supports the conclusion that Re- spondent violated the Act by firing Miller. In Forster Mfg. Co., 175 NLRB 185, 187 (1969), the striker was ill when the strike ended. He was discharged when he failed to report by a deadline set by the company, nor would the company consider his doctor's excuse. In es- sence, the Board held the discharge to be the straightfor- ward, unlawful, discharge of a striker, citing Valley Die Cast Corp., 130 NLRB 508, 515 (1961), enfd. 303 F.2d 64 (6th Cir. 1962). Stauffer Chemical Co., 242 NLRB 98 (1979), is to the same effect. There, the employer and the union entered into a strike settlement agreement that set a deadline for strikers to report to work. The employee in question did not learn the strike had ended until after the deadline. The employer denied reinstatement to her despite the fact that it had not replaced her. In those circumstances the Board found a violation of Section 8(a)(3) and (1). The only similar case tending to support Respondent is Cumberland Nursing & Convalescent Center, 263 NLRB 428 (1982). There the striker knew of the stated deadline for reporting but failed to meet it. As a result the Board would not fmd the violation. Cumberland, however, is plainly distinguishable. The employee knew of the time limit for reporting; Miller did not, nor had a deadline ever, been set. Moreover, neither party here had assumed the responsibility of notifying strikers when to report. Miller's situation was unsettled and Respondent's officials knew it. It may be true that they had no obligation to notify her, yet how was she to know if they did not tell her? It may also be asked what purpose was served when they fired her? The Board has repeatedly held that the burden of jus- tifying a denial of reinstatement to an economic striker is on the employer. It must show that the striker would have been discharged even in the absence of the protect- ed economic strike. NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); Lamb-Weston, Inc., 170 NLRB 1692 (1968); Restaurant Assn. of the State of Washington, 190 NLRB 133, 139 (1971); Markle Mfg. Co., 239 NLRB 1142, 1149 (1979); Mobile Home Estates, 259 NLRB 1384 (1982). Here Respondent has demonstrated no business reason whatsoever for taking the drastic step of discharg- ing Miller, particularly when the lesser step of replace- ment could have been taken. In fact, by firing her with- 5 Lauilaw Corp, supra CASTAWAYS HOTEL 619 out having replaced her, Respondent even deviated from its own policy as set forth in the Friedman letter. More- over, as it was ignorant of her situation, as a practical matter, one of its officials could have telephoned her. Cf. Laidlaw Corp. v. NLRB, 414 F.2d 99, 105 fn. 2 (7th Cir. 1969), in which the court found that the employer's as- sumption of burden to seek out economic strikers was not a severe burden; presumably employer has addresses and phone numbers. Such a step would have been easy to take; indeed, Henderson earlier had directed Price to make a similar call when it was in Respondent's interest to do so. Why was it not in its interest to do so here? I fmd, therefore, that Respondent equated Miller's strike-related absence to an ordinary absence and im- properly fired her. At the very least she was an unrein- stated striker as of June 4 with a right to recall under Laidlaw. Moreover, that right to recall was immediate as Respondent has made no showing that she had been per- manently replaced as of that date. Alternatively, Re- spondent fired her because, for all it knew, she believed herself still to be on strike, not having learned that the strike had ended. 6 Of course it is axiomatic that an em- ployer may not fire an employee for striking. NLRB v. International Van Lines, supra. THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(aX3) and (1) of the Act, I shall recommend that it be ordered to cease and desist there- 6 In fact, Miller knew the strike had ended. She just did not know what to do, believing in good faith that she had been earlier discharged. Miller's beliefs are, however, not relevant. Relevant instead is Respond- ent's reckless treatment of her as a striker, which infringed on her right to be reinstated. from and to take certain affirmative action designed to effectuate the policies of the Act. As Respondent prema- turely stripped Miller of her employee status on June 4 by discharging rather than replacing her, she is entitled to reinstatement with backpay from that date. NLRB v. International Van Lines, supra. Accordingly, Respondent shall be ordered immediately to reinstate Miller to her former job, dismissing if necessary any replacement, or if that position no longer exists, to a substantially equiva- lent position without prejudice to her seniority or other rights and privileges, and to make her whole with inter- est for loss of earnings as described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950) and Florida Steel Corp., 231 NLRB 651 (1977). See generally his Plumbing Co., 138 NLRB 716 (1962). In addition, Respondent shall be required to remove from its records any reference to the unlawful discharge and to provide Miller with writ- ten notice of such removal and to inform her that the discharge will not be used as a basis for further person- nel actions concerning her. CONCLUSIONS OF LAW 1. Respondent Castaways Hotel and Casino is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Culinary Workers Union, Local No. 226 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act on June 4 when it discharged its employee, Ruth Miller, at a time when she was an unreplaced economic striker. 4. Respondent did not violate the Act as otherwise al- leged in the complaint. [Recommended Order omitted from publication.]