Lumbee Farms Cooperative, Inc.

LUMBEE FARMS COOPERATIVE Lumbee Farms Cooperative, Inc. and Industrial Union Department, AFL-CIO. Cases 11-CA- 11773 and 11-CA-11841 31 August 1987 DECISION AND ORDER B'Y CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 27 May 1986 Administrative Law Judge Hutton S. Brandon issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-excep- tion and answering brief. The Respondent also filed a motion for oral argument before the Board, to which the Charging Party filed an opposition, and the Respondent filed a motion to strike evidence from the Charging Party's opposition to the Re- spondent's motion for oral argument.' 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, to modify the remedy, 3 and to adopt the recommended Order as modified. We agree with the judge that the Respondent violated Section 8(a)(1) by discharging employees Clark, Townsend, and Williams because of their protected activities. The dissent argues that these employees were lawfully discharged for soliciting a strike based on the Respondent's hiring of Koreans and foreigners. The dissent relies on the suspect testimony of employee Isiah Jackson,4 whom the judge found to i The Respondent's motion for oral argument before the Board is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. Accordingly we find it unnecessary to pass on the Respondent's motion to strike portions of the Charging Party's opposition to the Respondent's motion for oral argument. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir- 1951) We have carefully examined the record and find no basis for reversing the findings The General Counsel excepts, contending that the name of Maggie Shaw was inadvertently omitted from the list of unfair labor practice strikers We find merit in this exception and shall amend the Order and notice accordingly 8 Interest will be computed in accoidance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued' prior to 1 January 1987 (the effective date of the 1986 amend- ment to' 26 U S C. § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ' The dissent also relies on the testimony of employee Maynor. The statement Maynor testified to was uttered in a nonstrike context several weeks before the walkout 497 be "in no way a model witness," one whose testi- mony "was notable for its lack of detail," and who "testified in vague, generalized and conclusionary terms." Jackson allegedly told Processing Manager Frank Watts that the employees were walking out because the Respondent had "kind of slipped too many Orientals and Koreans in." This same state- ment was then repeated to General Manager Walter Geiger, who then supposedly responded, to the effect that "no one was going to tell him he couldn't hire Korean nationals." Although the judge credited Jackson's testimony to the limited extent that it showed that one or an- other of the discriminatees alluded to Respondent's hiring of Koreans when they discussed the feasibili- ty of a strike with him, our dissenting colleague's reliance on the particular statements related by Jackson and Geiger5 is faulty for several reasons. First, we note the,. inconsistent quality of employee Jackson's overall testimony. For example, as admit- ted by Jackson on cross-examination, when he tes- tified at an unemployment compensation hearing he only testified that employee Clark asked him whether he was going to walk out with them. Jackson made no reference at the compensation hearing to Koreans being mentioned as a reason for the walkout-a glaring omission in view of our col- league's reliance on the "Korean issue" to justify dismissing the entire complaint. As to Geiger's tes- timony, the judge found Geiger's statement that "no one was going to tell him he couldn't hire Ko- reans" "smacked" of afterthought. We agree. Addi- tionally, Geiger's testimony differs from his pre- hearing statement, in which he asserted Jackson told him the employees were walking out because the Respondent "was hiring too many foreigners and they would work for anything." This state- ment, having been recorded closer in time to the event, better reflects what was said, to Geiger and very clearly shows what the employees were con- cerned about-economics. The employees had indicated to management an ongoing concern with the fact they had not re- ceived a wage increase for a number of years and even went so far as to form a committee, the,ECC, to deal with the problem. As late as 3 days before Townsend, Clark, and Williams were discharged, ECC spokeswoman Margaret Johnson had spoken with Geiger about the employees' desire for a wage increase. Thus, at the time of the walkout, the wage issue was very much on the minds of the employees. It is undisputed that there were two prewalkout meetings held 19 and 22 August at s The dissent relates Geiger's testimony though finally conceding that it was discredited. 285 NLRB No. 51 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which there was no mention of Koreans as a reason for the proposed tentative walkout. After all, practically speaking, there were only 6 Koreans in a work force of 450, hardly a number that would rouse employees to take to the picket line. There was also no showing that the employees in any way sought to coerce the Respondent not to hire foreigners or to discharge those foreigners al- ready employed. It is clear to us that the employ- ees' concerns were economically, not racially, based and our dissenting colleague's attempt to frame them as racially motivated lacks substantia- tion. It is also clear that the strikers' goals were compatible with lawful and protected aims. As noted by the judge, "it is reasonable to conclude that the discharged employees' remarks were re- flective of an economic concern rather than one based on race, national origin, or other irrelevant considerations." That the Respondent was concerned with the fact certain employees were soliciting a strike and seized on the "Korean issue" as a rationale to justi- fy its unlawful actions is quite apparent. This is supported by the Respondent's failure to inform the discharged employees that they were fired for mentioning Koreans; its failure to allow the dis- charged employees any rebuttal of the charges against them; its hasty dismissal of the employees; and the': fact the Respondent never showed that the rule relied on to discharge the employees had any application to their actions. The employees were terminated for "restricting output" and yet there was no showing that they were, in fact, restricting any output. For all the above reasons we believe the judge was correct in determining that the discharged em- ployees did not engage in misconduct that deprived them of the protection of the Act and that the Re- spondent's motivation for its action was not any reference by the discharged employees to Koreans or foreign nationals but rather their efforts in solic- iting Jackson to strike. Accordingly we adopt the judge's conclusions that the Respondent violated Section 8(a)(1) by discharging Clark, Townsend, and Williams for engaging in protected activities, and that their terminations provided the final impe- tus for the strike, thus making it an unfair labor practice strike. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Lumbee Farms Cooperative, Inc., Lumber Bridge, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Add the name of Maggie Shaw to paragraph 2(a) of the Order. 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. Contrary to the judge and my colleagues, I find that the Respondent did not violate Section 8(a)(1) by discharging employees Patsy Clark, Jeanette Townsend, and Diane Williams on 26 August 1985. Rather, I find that these employees were lawfully discharged for soliciting an employee to strike to protest the Respondent's hiring of Korean employ- ees. In the fall of 1984 the Respondent's employees, who were not represented by a union, formed the employees concerns council and had a series of meetings with the Respondent in an attempt to re- solve employee concerns. Although the Respond- ent agreed to certain changes requested by the Council, no agreement was reached concerning a wage raise for employees. On 19 and 22 August 19851 the officers of the council met with some employees and decided to strike on 27 August if they could persuade enough employees to join them. Employees Jeanette Townsend, Patsy Clark, Diane Williams, and Brenda Smith met with em- ployee Isiah Jackson and solicited his support for the strike. According to Jackson, whom the judge credited, these employees stated that the purpose of the strike was to protest the Respondent's hiring of Koreans instead of local people. Around 4 p.m. on 26 August Jackson informed Frank Watts, the Respondent's processing manager, that there would be a strike the next morning. When Watts asked the reason for the strike, Jackson replied, "because they [the Respondent] have kind of slipped too many orientals or Koreans in." Jackson repeated this information to Walter Geiger, the Respondent's general manager, and to Supervisor Pauline Locklear, who also had heard employees talk of a strike set for the next day. Geiger told Watts to fire Townsend, Clark, Wil- liams, and Smith, and Watts did so.2 The employ- ees struck as scheduled at 8 a.m., on 27 August. The judge found that the Respondent's discharge of Clark, Townsend, and Williams violated Section 8(a)(1). He rejected the Respondent's contention All dates are in 1985 unless otherwise noted 8 Smith subsequently informed Geiger that, although she had been present with the other three employees when they talked to Jackson, she had said nothing When Jackson confirmed Smith's contention, Geiger reinstated Smith with backpay on 28 August LUMBEE FARMS COOPERATIVE 499 that the discharges were motivated by the employ- ees' attempt to have the Respondent discriminate against Koreans, an act which the judge, in agree- ment with the Respondent, conceded would be un- protected. The judge concluded that the employ- ees' objection to the hiring, of foreigners was not premised on the foreigners' nationality, but rather "their depression of the wage rates," thereby making their remarks to Jackson reflective of an economic concern. The judge concluded alterna- tively that even if the employees' remarks to Jack- son had been unprotected, the discharges were based not on the substance of their remarks to Jackson but simply on the fact that they had solic- ited Jackson to support a strike. The judge's anaysis is seriously flawed. Most sig- nificantly, it does not comport with his credibility resolutions. As noted above, the judge credited Jackson's testimony that he informed Watts and Geiger that the employees were planning to strike in protest of the Respondent's hiring of Koreans.3 In fact, the judge noted that employee Yvonne Mayor testified that she had heard Clark, Town- send, and Williams complaining about "Koreans being hired, taking jobs they thought Americans should have." Given this credibility finding,4 the judge should have logically dismissed the complaint since the clear import of Jackson's testimony was that Clark, Townsend, and Williams were seeking by means of a strike to pressure the Respondent to unlawfully discriminate against Koreans. Because such a strike, as the judge concedes, constitutes unprotected ac- tivity, the Respondent was privileged to discharge those employees engaging in such unprotected ac- tivity. See Southern S.S. Co„ v. NLRB, 316 U.S. 31 (1942). The judge, however, circumvents this credibility finding by ascribing to the employees' anti-Korean remarks an incredible meaning. The judge con- cludes that the remarks were "reflective of an eco- nomic concern rather than one based on race, na- tional origin, or other irrelevant consideration" be- cause the employees' objection to Koreans "was premised not on their nationality but upon their de- pression of the wage rates." Not only does this conclusion strain credulity, but it is totally depend- ent on assumptions that are not supportable by the a The judge specifically discredited the testimony of Clark, Townsend, and Williams, who denied they solicited Jackson or other employees to strike. 4 My colleagues attempt to undermine this credibility finding by refer- ring to Jackson's testimony as "suspect" and to the judge's various char- acterizations of Jackson's testimony. The fact remains that, despite his reservations about Jackson's testimony, the judge credited Jackson. Unless my colleagues wish to reverse the judge's credibility findings, they cannot choose to ignore Jackson's credited testimony simply be- cause it does not fit within their desired view of the case. record testimony. Clark, Townsend, and Williams did not testify that their anti-Korean remarks were economically based. Rather, as noted above, they denied ever making such remarks. Nor did any other employee give any testimony on which the judge could base this conclusion. The judge relied solely on the prehearing affidavits of Geiger, in which Geiger stated that Jackson told him that Clark, Townsend, and Williams stated that the strike was called because Geiger "was hiring too many foreigners and they would work for any- thing." The latter part of this statement, which is on its face ambiguous, is totally insufficient to es- tablish an economic basis for the employees' hostil- ity toward the Korean employees. Nor can it serve to erase the clear and unambiguous testimony of Jackson, Watts, and Geiger, each of whom credi- bly testified that Jackson reported to Watts and Geiger that the sole purpose of the -'strike was to protest the Respondent's hiring of Koreans- period. Under these circumstances, I find that the re- marks of Clark, Townsend, and Williams constitut- ed unprotected activity. The judge's alternative conclusion that the Re- spondent did not discharge Clark, Townsend, and Williams for uttering these remarks is similarly dis- ingenuous. According to the judge, the Respond- ent's discharge of these employees was motivated not by the substance of these remarks but rather by the fact that the employees solicited Jackson to strike. Implicit in this finding of the judge is that the act of soliciting Jackson to strike by Clark, Townsend, and Williams in and of itself constituted protected activity. This premise, however, is erro- neous. A solicitation of an employee to another employ- ee to join an unprotected strike itself constitutes unprotected activity. See, e.g., General Electric Co., 155 NLRB 208, 218-220 (1965). Thus, the distinc- tion created by the judge between the acts of Clark, Townsend, and Williams in soliciting Jack- son and the substance of their remarks to Jackson is of no legal consequence. In any event, even if the judge's distinction had a valid basis, the factors relied on by the judge to support his finding that the discharges were moti- vated by the solicitation of Jackson are equally un- sound. The judge relied on the Respondent's failure to investigate whether or not Clark, Townsend, and Williams in fact uttered the remarks attributed to them by Jackson; its haste in effectuating the The affidavit was not offered into evidence. 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discharge; its reliance on rule D-166 to support the discharge decision; and its failure to inform em- ployees that they were discharged because of their anti-Korean remarks. All these factors merely serve to establish that the judge, substituting his own business judgment for that of the Respondent, would have acted differently than the Respondent on learning of the impending unprotected strike. They do not establish that the Respondent differen- tiated in any way between the act of solicitation and the substance of the anti-Korean remarks, nor that its immediate decision to discharge Clark, Townsend, and Williams on learning of their re- marks to Jackson was based on such a differentia- tion.7 In sum, I find that the Respondent lawfully dis- charged Clark, Townsend, and Williams for their unprotected remarks to Jackson. Accordingly, I find that the subsequent strike, even if, as found by the judge, it was caused at least in part by the dis- charge of these three employees, was not an unfair labor practice strike and the employees were not entitled to immediate reinstatement on their uncon- ditional offer to return to work. For these reasons, I would dismiss the complaint in its entirety. 6 While the rule was not placed into evidence, Watts testified that it "prohibited restriction of output and intimidating others to try to stop output " Y The judge discredited Geiger's testimony that he told Watts, at the time he instructed him to discharge Clark, Townsend, and Williams, "no one was going to tell me that I could not hire Korean nationals , that it was against the law to discriminate against any former race as long as they were citizens in this country , .. " Such testimony would, of course, belie the judge's finding that the discharges were violative of Sec 8(a)(1) While the correctness of this credibility finding is not free from doubt, I have, for purposes of this decision, assumed its validity There is thus no validity to my colleagues' assertion that I relied on Geiger's dis- credited testimony as support for my dissent APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against employees for engaging in protected concerted activities under the Act for mutual aid or protection. WE WILL NOT fail or refuse to reinstate, either in a timely manner or at all, unfair labor practice strikers on their unconditional application to return to work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Patsy Clark, Jeanette Townsend, and Diane Williams and, to the extent we have not already done so, the unfair labor practice strikers listed below, immediate and full reinstatement to their former positions or, if such positions no longer exist to substantially equivalent positions and make them whole for any earnings they have lost as a result of our discrimination against them, plus interest: Diane Bell Leacher Bilbo Sarah Brooks Barbara Bullard Rosie L. Campbell Vanessa Campbell Christine Chavis Vickie Chavis Barbara Collins Delphine' Edwards Vivian Godwin Margaret Johnson Vernice Johnson Sandra Judd Annette Locklear Geneva Locklear Gloria A. Locklear Ruby A. Locklear Shirely Locklear Gloria Mainor Helen McAllister Johnnie McAllister Martha McArn Brenda McBryde Dazza McBryde Ola McBryde Gladys McDonald Barbara McDougald Jonathan McEachin Shirley McEachin Johnny McGougan Judy McNeill Joann Miller Charles Pearson Teresa Ray Eddie Shaw Maggie Shaw Mary Shaw Mildred Shaw William Shaw Carrie Simpson Barbara Smith TeWanda Spearman Kunehona Visessing Eva Watkins Gloria Williams Mary Willis WE WILL notify Patsy Clark, Jeanette Town- send, and Diane Williams that we have removed from our files any reference to their discharges and that the discharges will not be used against them in any way. LUMBEE FARMS COOPERATIVE, INC. LUMBEE FARMS COOPERATIVE Ann B. Wall, Esq., for the General Counsel. Allen L. Shackelford and Michael A. Gilles, Esqs. (Smith, Helms, Mullis & Moore), of Greensboro, North Caroli- na, for the Respondent. Michael Black, of Charlotte, North Carolina, for the Charging Party. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried at Lumberton, North Carolina, on 10-12 February 1986. The charge in Case 11-CA-11773 was filed by Industrial Union Department, AFL-CIO (IUD), on 4 September 1985,1 and amended on 11 Sep- tember and 21 October. The charge in Case 11-CA- 11841 was filed by the IUD on 13 November and amended 23 December. The complaint in Case 11-CA- 11773 issued on 18 October and an order consolidating cases, complaint, and notice of hearing consolidating Case 11-CA-11773 with Case 11-CA-11841 issued on 30 December. The issues framed by the complaint and the answer filed by Lumbee Farms Cooperative, Inc. (Re- spondent) are whether (a) Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) in discharging three employees on 26 August because of their activities protected under the Act, (b) a strike that occurred at Respondent's plant on 27 August was caused or prolonged by the discharge of the three employees on 26 August, (c) the strikers made an unconditional offer to return to work on 29 and/or 30 August, (d) Respondent unlawfully refused to reinstate the strikers on 30 August, and, (e) following their , reinstatement Respondent dis- charged Margaret Johnson and Vivian Godwin on 14 and 16 October, respectively, because of their involve- ment in activities protected under the Act. On the entire record and my observation of the de- meanor of the witnesses, and after giving due consider- i All dates are in 1985 unless otherwise stated 2 On 14 April 1986 Respondent filed a reply brief to the General Counsel's brief, with attachments , and containing alternative motions to either strike an argument from the General Counsel's brief or to reopen the hearing On 18 April 1986 the General Counsel filed a motion to strike Respondent's reply brief and an opposition to Respondent's alterna- tive motions Respondent's alternative motions and the General Counsel's opposition thereto are entered in the record as ALJ Exhs I and 2, re- spectively The Board's Rules and Regulations make no provision for the filing of reply briefs to administrative law judges No party requested, and no provision was made for, the filing of reply briefs prior to the con- clusion of the hearing Respondent made no posthearing request for per- mission to file a reply brief before filing the instant one Accordingly, and also because Respondent's reply brief refers to, and attaches, evidence outside the official transcript in this proceeding, the General Counsel's motion to strike Respondent's reply brief is granted Respondent 's alter- native motion to strike arguments in the General Counsel's brief or to reopen the hearing is based on a dispute that arose at the hearing be- tween a General Counsel witness and a prehearing statement submitted by that witness to a Board agent To resolve the dispute created by the witness' contention the prehearing statement was incorrect , Respondent at hearing proposed to call as a witness the Board agent who took the statement The General Counsel opposed by taking the positron ' essential- ly that the statement was not inaccurately taken by the Board agent The Board agent thus did not testify. In her brief, however, the General Counsel argued that variations and omissions from statements of wit- nesses as compared with their testimony at hearing often reflects "the skills and aims of the investigator and are not necessarily of impeachable 501 ation of the briefs filed by the General Counsel and Re- spondent,2 I make the following3 FINDINGS OF FACT 1. JURISDICTION Respondent has been at all times material a North Carolina corporation with a facility located at Lumber Bridge, North Carolina, where it is engaged in the proc- essing of raw poultry. During the 12 months preceding issuance of the complaint, Respondent received at its Lumber Bridge facility goods and raw materials valued in excess of $50,000 directly from points located outside the State of North Carolina, and during the same period of time, shipped from its Lumber Bridge 'facility prod- ucts valued in excess of $50,000 directly to points outside the State of North Carolina. The complaint alleges, Re- spondent in its answer admits, and I find that Respond- ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. STATUS OF THE CHARGING PARTY The consolidated complaint alleges that the IUD is a labor organization within the meaning of Section 2(5) of the Act. Respondent in its answer denied the allegation. Based on the credible testimony of Michael Black, coor- dinator for the IUD, the IUD is a department of the AFL-CIO and is funded by the membership of AFL- CIO affiliates. The IUD has a constitution and bylaws and is actively engaged in coordinating -bargaining be- tween its member AFL-CIO affiliates and employers of employees whom the affiliates represent. Further, the IUD is actively engaged in organizing efforts among em- ployees on behalf of its member affiliates. While involved in such organizational activities on behalf of affiliates, it is the affiliate rather than the IUD that seeks to achieve collective-bargaining representative status. See, e.g., Bur- lington Industries, 257 NLRB 712 (1981). I find, as the General Counsel at the hearing admitted, that the labor organization status of the IUD under the character." Philips Medical Systems, 243 NLRB 944, 956 (1979). Respond- ent asserts that that contention by the General Counsel contradicts her position at the hearing and justifies Respondent's motion to strike the General Counsel's argument or to reopen the hearing to secure the testi- mony of the Board agent who took the prehearing statement. Where minor, the variations and omissions between a witness' testimony and a prior statement may well reflect, as the General Counsel argues; the aims and skills of an investigator The same may not be said, however, of major variations or omissions and substantial contradictions between testi- mony and preheating statements The determination of what is a major or minor variation, omission, or contradiction and the weight to be accord- ed the same are matters to be determined by the administrative law judge. Accordingly, because I view the General Counsel's argument in her brief to be applicable only to minor variations, omissions, and insub- stantial contradictions, I do not deem such argument to be a reversal of her position at hearing Respondent 's alternative motions are denied 3 On 17 April 1986 Respondent filed a motion to correct the transcript in certain respects On 21 April 1986 the General Counsel filed an oppo- sition Having duly considered the matter, and because the correction proffered by Respondent comports with my recollection and is contextu- ally consistent with the record, Respondent's motion to correct the tran- script is granted Rogers Mfg Co Y NLRB, 486 F 2d 644 (6th Car 1973), cent denied 416 U S 937 (1974) Respondent's motion and the General Counsel's opposition thereto are entered into the record as ALJ Exhs 3 and 4, respectively 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act is irrelevant to the resolution of the issues in this case. There is no contention in this case that the employ- ees discharged were engaged in activities on behalf of the IUD. I therefore find it unnecessary to decide wheth- er the IUD is a labor organization under the Act. Respondent argues that because the IUD has not been established as a labor organization the record does not establish that it is qualified as a "person" within the meaning of Section 2(1) of the Act and therefore was not entitled to file a charge. Because the IUD is not a proper charging party the complaint, Respondent asserts, must be dismissed. I find the argument to be without merit. Section 2(1) of the Act states the term "person" in- cludes one or more individuals, labor organizations, part- nerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. The word "includes" in Section 2(1) has been construed as a term of enlargement rather than limitation. Television & Radio Artists v. NLRB, 462 F.2d 887 (D.C. Cir. '1972). Section 102.1 of the Board's Rules and Regulations adopts the 2(1) definition of "person," and Section 102.9 of the Rules and Regulations provides that a charge may be made with the Board by "any person." In the instant case, the charges were filed by Jeffrey P. Sweetland, an attorney for IUD. As an attorney he falls within the stat- utory definition of a person in Section 2(1) by virtue of his status as "legal representative" of IUD regardless of the IUD's status as a labor organization or any other type of organization. Maritime Union, 245 NLRB 149 fn. 1 (1979). I therefore find the charges properly filed. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent employs approximately 450 employees in its Lumber Bridge facility. In the fall of 1984, the em- ployees, becoming discontent with their working condi- tions, formed a group called the Employees Concerns Council. This group sought the assistance of another group called the Roberson County Clergy and Laity Concerned in Lumberton, North Carolina. A number of meetings were held between the Employee Concerns Council and Respondent. A number of matters were re- solved, but a number of matters were left unresolved as reflected by a letter from the Council to Respondent on 27 June. According to the testimony of former employee Margaret Johnson, an alleged discriminatee here, the Concerns Council also contacted the Wage and Hour Di- vision of the Department of Labor in July concerning Respondent's use of line cards.4 An investigation by that agency resulted in the conclusion that employees had been underpaid, and Respondent was required to issue backpay to a number of employees. One of the employees' concerns, their desire for a wage increase,5 was never resolved. Margaret Johnson 4 There was no evidence here that Respondent was aware that the Council was responsible for the Department of Labor investigation 5 As of August, Respondent's employees had not received a wage in- crease for a period of approximately 3-1/2 years testified, without contradiction, that she was an elected spokesman of the Concerns Council and added that she as an employee had met with Walter Geiger, Respond- ent's general manager, on 23 August at his request to dis- cuss a safety problem. During the same discussion, John- son testified she again raised the subject of a raise for employees asking Geiger if he could not at least promise employees a raise in the future if Respondent started making more money. Geiger rejected the suggestion saying he did not want to raise false hopes, and alluded to the fact previously revealed to employees generally that one of Respondent's primary owners was involved in bankruptcy proceedings. 'B. Strike Discussions It is undisputed that a number of officers of the Em- ployees Concerns Council and rank-and-file employees met on 19 August at the home of Margaret Johnson. These included, inter alia, Johnson, Vivian Godwin, president of the Council, and employees Patsy Clark, Jeanette Townsend, and Mildred Shaw. The meeting was also attended by Jasper Oxendine, a supervisor of Re- spondent who apparently was sympathetic to the em- ployees. According to Johnson, employee concerns were discussed and the subject of a walkout or sitdown was raised. Oxendine, still according to Johnson, suggested that the employees wait before taking any such action in order to allow him to determine which time or day such action would be most effective. A subsequent meeting of employees was held on 22 August at a place referred to as the Oakridge School. The meeting was attended by generally the same em- ployees who attended the meeting on 19 August. It was also attended by Thomas Jones and Johnny Jacobs, local clergymen who were formerly associated with the Con- cerned Laity in Lumberton. Employees again discussed 'a walkout. Oxendine did not attend this meeting, but John- son told the approximately 25 employees at the meeting that she had been told that the following Tuesday would be a large volume day for Respondent and that would be a good day for the sitdown or walkout. Johnson testified, however, that there was no final decision reached re- garding a walkout or strike. Rather, according to John- son, a walkout or strike on 27 August was to be depend- ent on securing support of such action from other em- ployees. Thus, the employees at the meeting were to go back and solicit the support of other employees so that any strike action would be more effective.6 C. The Discharges It is undisputed that around 4 p.m. on 26 August, four employees of Respondent, Jeanette Townsend, Patsy Clark, Diane Williams, and Brenda Smith,7 were called 5 Johnson, while at times confused, appeared to be the most knowl- edgeable of the General Counsel's witnesses She had reasonably good recall, and was a more articulate witness Most importantly, and although she was occasionally equivocal, she impressed me as candid and honest. Accordingly, Johnson is credited wherever she contradicts the testimony of the other General Counsel witnesses regarding what took place at the 19 and 22 August meetings and regarding whether a strike had been ten- tatively scheduled at the 22 August meeting 7 Also referred to in the record as Gwendolyn Smith LUMBEE FARMS COOPERATIVE into the office of Frank Watts, Respondent's processing manager, where, based on the testimony of Townsend, Clark, and Williams they were told they were discharged for "soliciting a strike up and down the line." Shortly thereafter on the same day, Townsend reported the matter telephonically to Johnson, who told Townsend that the other employees were "behind" the dischargees. Respondent disputes the basis for the discharge as re- lated by Townsend, Clark, and Williams. Thus, Watts testified that around 4 p.m. on 26 August, employee Isiah Jackson told him that there was going to be a walkout the following morning. Watts asked who and Jackson named Townsend, Clark, Williams, and Smith. Watts asked why they were walking; out, and Jackson replied that it was "because they have kind of slipped too many orientals or Koreans in." Watts asked about the time the walkout would take place and was told by Jackson that it would take place at 8 a.m. when "the chickens will be throughout the plant." Jackson repeated his allegations to Geiger in Geiger's office in the presence of Supervisor Pauline Locklear who had just reported to Geiger the fact that she too had heard talk among employees of a strike to take place the next day. Watts testified that Geiger told him to discharge the four employees named by Jackson, and Watts called them in and did so. In doing so, Watts said he only told them they were discharged for breaking plant policy D- 16 and read that policy to them. Although the specific language of D-16 was never put in evidence, Watts relat- ed that it prohibited "restriction of ouput and intimidat- ing others to try to stop output." Only 'Townsend had responded and said, "Do you want the boys?" Watts did not reply and instead told therm to leave the premises and escorted them to the plant gate. Of the four, still accord- ing to Watts, only Smith asked to talk to Geiger, and Watts reported the request to Geiger. Respondent's witness Isiah Jackson corroborated Watts' testimony regarding what he told Watts except he denied he told Watts the hour the strike was to begin. With respect to the conduct of the discharged employ- ees, Jackson testified generally that he had been involved in a discussion with the four at the "clean-up" station in' the plant. He further testified in general and conclusion- ary terms without specifying individual speakers that "they" talked about the hiring of the Koreans and Townsend, Williams, and Clark asked if Jackson was going to participate in the walkout. Further, "they" dis- cussed a strike at a turkey plant in Raeford, North Caro- lina, where employees had walked out for more money and because of the hiring of Koreans instead of local people. Geiger testified that when Jackson was brought to his office, Jackson related the four had wanted him to walk out with them because of Respondent hiring too many Koreans. It was at that point that Geiger directed Watts to fire the four under rule D-16, adding that no one was going to tell Geiger that he could not hire Korean na- s The record reflects that Respondent had employed six Koreans, rela- tives of army personnel at Fort Bragg near Fayetteville, North Carolina While the record suggests these hires were made during the summer, it does not reflect the exact dates of hire 503 tionals. It was only after the discharges were effectuated that Jackson also revealed to Geiger that Jackson "men- tioned" that the four also wanted "more money" in addi- tion to being angry because Respondent was hiring Ko- reans. On being advised by Watts that Smith had wanted to talk to him, Geiger arranged to meet with her on the afternoon of 27 August. He testified she reported that she had been present with the other three discharged em- ployees in the discussion with Jackson but had said noth- ing. Geiger told her he would check out her statement. Having confirmed with Jackson that Smith had said nothing about walking out over the hiring of Koreans, Geiger, on 28 August, reinstated Smith and gave her backpay. Smith did not testify in this case. Clark, Townsend, and Williams all denied asking any employees on 26 August to strike and specifically denied talking to Jack- son about a possible walkout. All three testified they asked to see Geiger about their being fired, but their re- quest was denied. Williams persisted in her efforts to see Geiger in the days immediately following the discharges and was finally successful on 31 August when she met with Geiger at the plant. According to Williams, Geiger stated he had three witnesses who told him she was going down the line "soliciting", but Geiger refused to name them. He refused to reinstate Williams and told her if she got another job, "Don't be a baby cryer." Williams asked why he had hired Smith back, and Geiger replied that he had needed her. Geiger denied ever talking to Williams after 26 August. D. The Strike The morning of 27 August, news of the discharges spread among the employees. Johnson testified that she talked to employees concerning the discharges and told several to spread the word that they were walking out at 8 a.m. That time was chosen because by that time all em- ployees would have reported to work and Respondent would be in full operation with its largest number of chickens on the line. At 8 a.m., approximately 100 em- ployees walked out of the plant and milled around out- side in the parking area. After a few minutes, General Manager Geiger came out to the group and told them that they had only a few minutes to return to work or they would be replaced-' Approximately 50 employees did return to work while the remaining employees went outside the facility gate and met Townsend, Clark, and Williams. They made picket signs and began to picket. Margaret Johnson testified without contradiction that the picket signs used various legends including, "Support Us," "Support Us On Our Strike," "Support' Our s Margaret Johnson testified with some equivocation that Geiger said if the employees did not return to work, they would be "fired " The other General Counsel witnesses consistently testified that Geiger said they would be "replaced" and the complaint does not allege that the strikers were fired on 27 August. I find Johnson was in error in her testi- mony on this point and find that Geiger used the word "replaced" rather than "fired" in talking to the strikers C 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cause," "Unfair Labor Practices," and "More Money For Me and My Family." The strikers were at some point during 27 August joined by Jacobs and Jones on the picket line . However, neither Jones nor Jacobs testified herein . It was Jones, according to the uncontradicted testimony of IUD Rep- resentative Michael Black, who contacted Black on 28 August regarding the strike and asked Black if he would meet with the strikers and give them some assistance. Black did meet with the strikers before noon on August 28. After talking to the employees and learning of the discharge of the four employees for "soliciting a strike," Black told the employees that he believed they were en- gaged in an unfair labor practice strike. He further told them, however, that they did not have enough people supporting their strike to win it, and that it was in their best interest to make an unconditional offer to return to work. He told those strikers present to try to get all their supporters there the next day and he would explain to them what to do. The following day, 29 August, Black returned to the picket line and explained to the employee strikers the same thing he had said before and asked them if they wanted him to make an offer on their behalf to return to work. According to Black,10 employees au- thorized him to make an offer to return to work on their behalf. To this end, by mailgram dated 29 August, Black advised Respondent: I am coordinator of the Industrial Union Depart- ment, AFL-CIO. I have been designated as spokes- man for the workers involved in an unfair" labor practice strike at your facility. On behalf of the striking employees, I am making an unconditional offer to return to work on August 30, 1985 at 6 o'clock a.m Geiger responded by telegram on 29 August stating: The employees referenced in your telegram have been permanently replaced. I will respond in great- er detail upon receipt of your written communica- tion. Further, by letter to Black dated 30 August, Geiger stated: I am in receipt of the confirmation copy of your mailgram of August 29, 1985. Your organization is neither certified by the National Labor Relations Board nor recognized by this company as the repre- 10 Black impressed me as credible and straightforward. That he was orally or by show of hands given authorization to make the offer to return to work was supported by several of the General Counsel wit- nesses including Margaret Johnson, Christine Chavis, Mildred Shaw, Mary Shaw, Vernice Johnson, and Ola McBryde The testimony of Teresa Ray and Rosie Campbell, strikers called by Respondent who testi- fied they were not aware of any such authorization given to Black, is not viewed as specifically contradicting Black and the other witnesses Ray's testimony does not preclude the possibility that Blackwell was at the picket line when Ray was not there Moreover, she conceded that on 29 August she was told the strike was over because there was not enough employee support Campbell, contrary to Ray, related that she had seen a person at the picket line who was identified as a union man Campbell also conceded that she had heard that a telegram was going to be sent to Respondent and admitted she had been told to go back to work sentative of any group of employees associated with this facility. Additionally, we have no actual or constructive notice of your "designation as spokes- man" for any such group. Therefore, pursuant to the National Labor Relations Act and the laws of the State of North Carolina, we consider the-offer set forth in the above referenced mailgram to be in- valid. Also, please note that there is no unfair labor practice strike occurring at this plant. Consistent with the offer in his telegram, Black told employees to report back to work on the morning of 30 August. In accordance with Black's instructions, the strikers assembled in an autocaravan and attempted to report for work on the morning of 30 August. It is undis- puted, however, that Respondent's guard, Ronald Chance, pursuant to instructions from General Manager Geiger, told the lead car of the returning strikers, driven by Vivian Godwin, that no strikers could come back on plant property and if they did they would be arrested. After the strikers were turned away at the plant, they went to the home of Margaret Johnson where a list of the strikers was prepared Ii and arrangements were tele- phonically made with the plant for the employees to re- ceive their pay due them for work prior to the strike. The General Counsel does not contend nor does the complaint specifically allege either that the strikers were discharged or that they were not in fact replaced prior to the time of Black's telegram of 29 August. E. The Poststrike Discharges of Margaret Johnson and Vivian Godwin The complaint alleges that Margaret Johnson and Vivian Godwin were discharged in violation of Section 8(a)(1) of the Act following their reinstatement after the strike. The General Counsel's evidence shows that subse- quent to the conclusion of the strike, Respondent wrote the former strikers advising them that they would be re- called when a job was available if they so desired.12 When Margaret Johnson received such a letter, she indi- cated to Respondent that she desired to be recalled to an available job. On 11 October, she was called to the plant and was offered a job stacking boxes after being given an opportunity to see the job in operation. Johnson was told to report for work on 14 October. After a few minutes on the job, Johnson discovered that it was beyond her physical capabilities. Accordingly, she complained to her supervisor, Pauline Locklear, who then took Johnson back to the personnel department where she talked to Jackie Pate, personnel supervisor. There Johnson was of- fered a position in the ice house, and she accepted it. She was thereupon taken to the ice house where she worked until noontime with a male employee shoveling ice onto a conveyor, or auger, which distributed the ice to points i t it appears that the names of the strikers set forth in par 13 of the complaint as being denied reinstatement was taken from this list. 12 The complaint alleged, and Respondent admitted, that of 48 strikers named in the complaint, 15 including Johnson were reinstated at various dates subsequent to the conclusion of the strike. LUMBEE FARMS COOPERATIVE where needed in Respondent's facility. Such ice was nec- essary for the preservation of the raw chicken product. After lunch the male employee was removed from the ice house and put back on his regular job. Around 1 p.m. according to Johnson's testimony, Locklear came and told Johnson that she was not keeping enough ice on the floor. Johnson replied that she was doing her best. Sub- sequently, however, around 2 p.m. Locklear replaced Johnson with a male employee and took Johnson back to - the personnel office where she was terminated for not keeping up with her job. Respondent's evidence with respect to the discharge of Johnson was set forth in the testimony of Locklear who did not dispute much of Johnson's testimony. Although acknowledging that Johnson worked with another em- ployee in the ice house most of the morning, Locklear related that the ice house job was not normally per- formed by two people. Only on Fridays when the ice supply had receded from a point more distant from the auger did the job call for two people. Further, Locklear said that she had successfully worked the ice house job herself previously, although she had not worked at the job for more than an hour at a time. After the male em- ployee was removed from the ice house Locklear ascer- tained that there was insufficient ice coming out into the plant so that the temperature gauges on the product indi- cated the product was getting hot. She then reported_to Johnson that the temperature was rising and Johnson said okay she would put more ice in the auger. Locklear had noted that Johnson was not taking a full shovel full to the auger. Notwithstanding telling Johnson of the problem, the temperature continued to rise, and the Fed- eral Government inspectors' in the plant retained some product coming from the chiller for being too warm. It was at that point that Locklear took Johnson back to the personnel department where she was discharged. Like Johnson, Vivian Godwin apparently responded to Respondent's poststrike letter to strikers and indicated she desired to be recalled to an available job. Godwin testified that she was called in to work on 16 October where she talked to Personnel Supervisor Jackie Pate who offered her a choice of two positions, the ice house or box stacking. Apparently without resolving what job she was going to choose, she was sent to the supply room with Pauline Locklear., At the supply room, how- ever, Godwin asked leave of Locklear to go move her car inasmuch as it was parked in the wrong location. On returning she and Locklear proceeded toward Godwin's job but Godwin again asked leave to get a hairnet. Godwin proceeded back to the supply room where she talked to Judy Cummings, an employee who asked Godwin what job she was going to take. Godwin testi- fied she replied she was going to take the ice house posi- tion. Godwin then left to locate Locklear. When she ulti- mately located Locklear again , Locklear told her to return to the personnel office. 'There Pate asked her if she had told Judy Cummings and Supervisor Dorothy McCollum that she was not going to stack boxes. Godwin related what she had told Cummings as set forth above, but Pate disputed it. Pate called in Supervisor McCollum and employee Cummings and . asked if Godwin had not stated that she was not going to stack 505 boxes. McCollum affirmed that Godwin had told Cum- mings that she was not going to stack boxes. Godwin, a 14-year employee of the Company, protested that she had not refused any job. Pate replied that that was the only job they had open. Godwin insisted that if that was all they had she would take it. Nevertheless, Pate told Godwin she was terminated for refusing the stacking job. Godwin testified that she had a back problem and had been under a doctor's care and had referred to her back problem when talking to Pate. According to Godwin, Respondent knew that she had a back problem due to her previous submission of doctor reports to Respondent. Locklear testified that she took Godwin back to the box stacking job, the only job available at the time. With respect to Godwin, Personnel Supervisor Pate testified, however, that when she had initially talked to Godwin by phone about returning to work, she had told her of the ice house job and the box stacking job but the former had been filled before Godwin reported to work. Ac- cording to Locklear, there had been no discussion of any other job during the initial conference with Godwin that morning. Moreover, Godwin never mentioned any health problem in connection with box stacking. Subse- quently, before Godwin was actually put to work, Lock- lear talked to Judy Cummings in the supply room in the presence of Supervisor McCollum. Cummings reported that Godwin had said she was not stacking "no damn boxes." McCollum confirmed that she had heard the remark also. At that point, Locklear reported the matter to Geiger who told Locklear to terminate Godwin. Locklear then reported the matter to Pate in personnel and took Godwin to the personnel department where Godwin denied that she had said she was not going to stack any boxes, but Pate called McCollum and Cum- mings in. They reported that Godwin had said she would not stack boxes, whereupon Godwin replied that she had said it, but she did not mean anything by it. She was thereupon terminated. Locklear conceded that Godwin had never started stacking boxes that morning. Moreover, she conceded that Godwin had never specifi- cally expressed her refusal to stack boxes to Locklear. F. Arguments of the Parties The General Counsel contends that any discussion among the employees regarding the possibility of a strike or even the solicitation among employees of support for a strike over working conditions was a concerted activi- ty protected under the Act. Consistent with this position, the General Counsel argues that the discharge of Clark, Townsend, and Williams was unlawful because it inter- fered with their protected concerted activities in connec- tion with soliciting support for the strike. Based on the denials of Clark, Williams, and Townsend of any in- volvement in seeking strike support based on Respond- ent's hiring of Koreans, the General Counsel insists that the three did not engage in any misconduct in connec- tion with their otherwise protected activity. The three women having been discharged for "soliciting a strike" the discharge was violative of Section $(a)(1), the argu- ment continues. Because the discharge was violative of the Act and because the evidence reflects that the strike 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stemmed in part from those discharges, it,is argued that the strike that began on 27 August was an unfair labor practice strike. Because the strike was an unfair labor practice strike, according to the General Counsel, the employees were entitled to reinstatment on their reconditional offer to return to work. Black's offer in that regard, which was rejected by Respondent, was a valid offer and therefore the refusal to reinstate the strikers constituted a separate violation of Section 8(a)(1) - of the Act, the General Counsel contends. If there was any ambiguity in Black's offer for the strikers to return to work or any question about his authority to make that offer, the matter should have been resolved by the strikers' efforts to return to work on 30 August, which were rebuffed by Geiger through his instruction to the guard not to let any strik- ers on the premises. Based essentially on the testimony of Isiah Jackson, Respondent contends that Townsend, Clark, and Wil- liams were engaged in activity unprotected under the Act by encouraging employees to strike because of Re- spondent's hiring of Koreans. Respondent asserts that it would be unlawful for it to discriminate in hiring based on the national origin of the applicant, and therefore claims any efforts of employees whether through con- certed action or not to cause it to violate such a law must be held to be unprotected. For this reason, Re- spondent argues that its discharge of the three employees was lawful. It is Respondent's position that even assuming the dis- charges of the three employees were unlawful, the strike that followed was not based on the discharges, but rather on the preexisting plans of the employees to strike on 27 August. Therefore, the strike could not have been caused by any unfair labor practices on Respondent's part. Moreover, even if the discharges were the cause of the strike, the strike was unprotected because it was in sup- port of the unprotected activity of the three discharged employees. Finally, Respondent asserts that the strike was also not protected in any event because it was clear- ly timed to cause Respondent not only maximum finan- cial harm but actual product loss or damage. Respondent further argues that even if the strike was protected, the strikers are entitled to status as economic strikers only. The offer to return to work made by Black was invalid because Respondent claims the evidence does not show that employees specifically authorized Black to send his 29 August telegram. Respondent also asserts that because Black and the IUD were not certi- fied and recognized as representatives of the employees, they did not possess the legal authority to make an offer for the employees to return to work. Additionally, in this regard, Respondent asserts that the legal sufficiency of any attempted delegation of authority in making the offer depended not on principles of agency, but on the scope of the IUD's representational rights under the Act. Because Respondent's employees were not represented by a union, the argument goes, Respondent, citing Sears, Roebuck & Co., 274 NLRB 230 (1985), and Linden Lumber v. NLRB, 419 U.S. 301 (1974), claims it was free to deal with employees individually regarding all terms and conditions of employment. Respondent's position regarding the discharge of John- son was she was terminated for cause based on her fail- ure to perform the ice house job in a satisfactory manner causing Respondent to fail to meet USDA requirements. Similarly, Godwin was said to have been discharged for insubordinate conduct in stating she was not going to stack boxes. G. Analysis and Conclusion 1. The protected nature of the strike As already concluded, infra, the employees had decid- ed, dependent on gathering further support, to engage in a strike action on 27 August prior to the discharge of Clark, Smith, Townsend, and Williams. The basic con- cerns that prompted the planned strike based on the credible testimony of Margaret Johnson related to work- ing conditions and a wage increase. There was absolutely no evidence presented that any subjects discussed at the employee meetings on 19 and 22 August would indicate that the strike was related to employee concerns over Respondent's hiring of Koreans. I can only conclude that the concerns of the employees expressed in the strike dis- cussions prior to 26 August were economic in nature and that a strike over such concerns would be within the protection of the Act. Arguing from the premise that the strike was based solely on economic concerns, Respondent asserts the strike was unprotected because of its timing, which was designed to result in the greatest harm to Respondent. I find the argument to be without merit. Normally, planned employee strikes are timed to ensure the greatest impact on an employer. And employers in anticipation of strikes build inventories and devise strategies to lessen the impact of strikes. Indeed, Respondent here, as admit- ted by Geiger, took steps on 26 August, on hearing of the strike possibility, to lessen the impact of the strike on production the following day. The fact that the strike oc- curred during the workday when chickens were on the line and vulnerable to loss does not mean employees automatically lost protection under the Act. Strikers are not required under the Act to institute the'strike at a spe- cific time of day. See, e.g., First National Bank of Omaha V. NLRB, 413 F.2d 921, 925 (8th Cir. 1969); NLRB v. Solo Cup Co., 237 F.2d 521, 526 (8th Cir. 1956). The eco- nomic pressure flowing from such a strike must be weighed against the goals sought to be achieved by the strikers. See NLRB v. A. Lasaponara & Sons, 541 F.2d 992, 998 (2d Cir. 1976). Although, based on Geiger's tes- timony, Respondent sustained some loss of its product on the line when the strike occurred, the extent of that loss separate from labor losses resulting from the strike was not clearly defined on the record. To be weighed against such an indefinite loss are the strikers' legitimate con- cerns regarding their working conditions and pay. Here, as in NLRB v. Lasaponara & Sons, supra, the employees' efforts were not simply to inflict economic loss on Re- spondent without a compensatory gain for themselves. It is in this respect that Dobbs Houses v. NLRB, 325 F.2d 531 (5th Cir. 1963), cited in Respondent's brief, is distin- guishable. There the strike action by waitresses during a LUMBEE FARMS busy dinner hour to protest the discharge of a supervisor was found unprotected by the court because there was no compensatory objectives for the employees. In the case sub judice the evidence is- undisputed that at least one compensatory objective of the strike was a wage in- crease. Aside from stopping work the employees here did nothing affirmatively to cause physical damage to Respondent. Moreover, considerable doubt is raised regarding Re- spondent's present claim of damage resulting from the strike by a news release prepared by Geiger after the strike began. Thus, the news rellease states: Mr. Geiger went on to state, "on Tuesday morning . . . 47 employees walked away from their jobs, We were informed that the timing of the walkout, in view of the fact that we were in full production, was calculated to cause the company monetary losses from product contamination and a supposed inability to meet customer's Labor Day weekend orders." "I might add," he emphasized, "that nei- ther occurred." In light of this statement, Geiger's claim of significant losses as a result of the timing of the strike appears to be substantially exaggerated, if not entirely fabricated. Accordingly, even if the strike was based only on eco- nomic considerations, I find nothing in the timing of the strike that would deprive employees of protection under the Act. I also find that no protection was lost by virtue of the strikers' failure to tell Respondent at the outset of the strike the basis for the strike. A specific demand need not be presented to an employer before a walkout can be protected under Section 7. Washington Aluminum Co., 370 U.S. 9 (1962); Daniel Construction Co., 277 NLRB 795 (1985). In any event, Geiger was well aware that at least a wage increase was a concern of the employees when the walkout occurred for the Friday preceding the strike, Johnson had clearly expressed this concern to Geiger by suggesting that he promise the employees a raise sometime in the future. The suggestion was reject- ed. Moreover, although Geiger, on the morning of the strike, addressed the strikers and warned them to return to work, he did not attempt to ascertain the basis for the strike. 2. The discharges as a cause of the strike The fact that the strike was preplanned and had ecd- nomic goals does not preclude the strike from also being classified as an unfair labor practice strike if unfair labor practices of Respondent contributed to the occurrence of, or prolongation of, the strike. NLRB v. Pecheur Loz- enge Co., 209 F.2d 393 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954). A decision on whether the strike here was caused in any way by unfair labor practices on Re- spondent's part requires an initial determination of whether Respondent committed an unfair labor practice in the discharge of the employees on 26 August. That determination in turn requires close examination of the facts surrounding the discharges. Ascertainment of the facts is rendered more difficult because neither the Gen- eral Counsel's nor Respondent's witnesses were wholly COOPERATIVE, 507 convincing. The truth probably lies somewhere between the versions of the respective sides. Clark, Townsend, and Williams were unpersuasive in their denials regard- ing soliciting Jackson or other employees to strike. Clark, having attended both the employee meetings the week prior to the strike, was unconvincing in her denials about a strike being discussed at those meetings. A lack of knowledge of what transpired at those meetings would require incredible naivete, and her eagerly stated flat denial on cross-examination that she was involved in any discussions on August 26 or previously with employ- ees about a walkout was hollow and unbelievable. Town- send was at times evasive on cross-examination. She con- tradicted her prehearing statements on significant points having to do with whether a strike was scheduled for 27 August and whether she talked to employees about a strike away from work. i 3 Williams likewise was contra- dicted by her prehearing statements given the Board in material respects concerning whether the employees at the 22 August meeting scheduled a strike for 27 August. Further, she was evasive and unresponsive on cross-ex- amination and exhibited a startling lack of recall. On the other hand, Jackson, a convicted felon, in testi- fying for Respondent was in no way a model witness. Jackson's testimony was notable for its lack of detail. He attributed no specific remarks to any of the other three alleged participants in the conversation, and testified in vague, generalized, and conclusionary terms. This is ex- emplified by the 'following excerpts from Jackson's testi- mony- Q. Would you please tell us what was discussed in that conversation? A. What was discussed in the conversation was about a walkout and about the hiring of Koreans at the plant. Q. To the best of your recollection , what was said in the conversation? A. Well, like I was saying, about the hiring of Koreans and they asked me was I going to partici- pate in the walkout. Q. Did any one of them discuss any other walk- out? A. Yes. Q. And what was that? A. A discussion about the walkout that they had of the turkey plant. Q. And where is the turkey plant located? A. Raeford, North Carolina. Q. And what reason was being given by these ladies at walking out at Turkey Farms? A. More money and about the hiring of Koreans instead of local people around the area. 13 Townsend's denial of talking to employees generally about a strike was also disputed by employee Jimmy Simpson, a witness for Respond- ent, who credibly testified without specific contradiction that about 2 or 3 weeks prior to the strike, Townsend had talked to him about a strike in the presence of Clark saying the only way employees would be able to get more money was to "walk out together" and "to pull together." 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Was there any other discussion about the hiring of Koreans? A. Like just talking in general like, they are not hiring the local people but they are hiring them in- stead like replacing them like that, conversation like that. The reference to the turkey farm and its relation to Respondent, if any, was not explained in the record. On cross-examination, Jackson testified as follows: Q. Isn't it true that the only thing that Patsy Clark said was to ask you whether you were joining the walkout? A. She asked me if I was going to walk out with them. Q. And that's the' only thing she had to say during the conversation, isn't that true? A. No. Q. What else did Ms. Clark have to say? A. The same what I said, about hiring, the local people, about hiring Koreans and not hiring the local people; that is what the whole conversation was about and more money. However, Jackson admitted on further cross-examination that at a state unemployment compensation hearing he had testified that all Clark had asked him was whether he was going to walk out with the rest of them. The accuracy of Jackson's vague and generalized ver- sion is also brought into question by the undisputed fact that in reporting the matter to Watts and Geiger he had included Gwendolyn Smith in the group as having made the remarks now claimed to be the basis for removing employees from the protection of the Act. Yet, Jackson subsequently conceded that Smith had said nothing. Nei- ther side in this proceeding called Smith. The General Counsel argues that I should draw an adverse inference against Respondent for not having done so. I decline to do so, for there was no showing that Smith was more available to Respondent than to the General Counsel. The fact that she was still employed by Respondent made her no less available to the General Counsel. Nor does such employment create any presumption of bias on Smith's part against the General Counsel's case. Que En- terprises, 140 NLRB 1001, 1003 (1963). Considering the foregoing, and because it is difficult to perceive how the hiring of six Koreans in the plant of 450 employees would be of any particular concern to employees sufficient to encourage strike action, I would not, without more, credit Jackson's testimony that any of the three dischargees complained of the hiring of Kore- ans in the prestrike discussions with him. There is more, however. Thus, employee Yvonne Maynor testified for Respondent that about 2 weeks prior to the strike, she had heard Clark, Townsend, and Williams in the break- room complaining about "Koreans being hired, taking jobs they thought Americans should have." These com- plaints were not made, however, in the context of any strike discussions. Maynor impressed me as truthful and there was no showing of bias on her part against Clark, Townsend, and Williams. I credit Maynor. Having voiced the complaint before, I find it not unlikely that one of them would have alluded to the same complaint in discussing the matter with Jackson. On balance and considering the record as a whole, I credit Jackson's tes- timony over the denials of Clark, Townsend, and Wil- liams and find that he had discussions with them about a strike and that one or another of them asked him to par- ticipate in the strike and alluded in the discussions to Re- spondent's hiring of Koreans. Having credited Jackson, however, I am nevertheless constrained to the view that misconduct on the part of the three that would remove them from the protection of the Act has not been established by Respondent. If it could be said that the dischargees here were seeking through strike action to cause Respondent to either dis- charge Koreans or to make a commitment not to hire any in the future for racial or national origin consider- ations, I would concur in Respondent's argument that such activity would be outside the protective mantle of the Act as an attempt to cause Respondent to violate other laws such as Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.) cited by Respondent. However, I cannot reach that conclusion based on Jack- son's vague and conclusionary testimony when the em- ployees' remarks may also be interpreted as compatible with lawful and protected aims. Such a lawful interpreta- tion is revealed in Geiger's own pretrial statement to the Board, which shows that the reference to "foreigners" was in a significantly different context. Thus, Geiger in his statement said Jackson reported to him that four em- ployees (including Smith) had asked Jackson to walk out with them the next morning because Geiger "was hiring too many foreigners and they would work for anything." Considering that no' demands had ever before been placed on Respondent to either discharge or refuse to hire Koreans or foreigners, and considered in the context of Jackson's concession herein that the dischargees had talked about walking out for more money, it is reasona- ble to conclude that the discharged employees' remarks were reflective of an economic concern rather than one based on race, national origin, or other irrelevant consid- eration. Under this interpretation, the conduct of the em- ployees in soliciting support could not be regarded as un- protected under the Act for the objection to the foreign- ers was premised ' not on their nationality, but on their depression of the wage rates. Considering all the foregoing, I am persuaded that the misconduct attributed to Clark, Townsend, and Williams, which Respondent contends deprived them of the pro- tection of the Act, has not been established. It is clear that Section 8(a)(1) is violated if an employee is dis- charged for misconduct in connection with a protected activity if the misconduct did not in fact occur and de- spite the employer's good-faith belief to the contrary. NLRB v. Burn up & Sims, 379 U.S. 21 (1964). According- ly, and because there was no evidence that Clark, Town- send, and Williams in any other way interferred with their own work or the 'work of other employees during their strike solicitations, I find Respondent violated Sec- tion 8(a)(1) of the Act as alleged in discharging them on LUMBEE FARMS COOPERATIVE 509 26 August. 14 Even assuming that the three dischargees had not been protected by the Act in their references to Koreans or foreigners in their i emarks to Jackson, I find Respondent nevertheless violated Section 8(a)(1) of the Act in the discharges. It is well established that the exist- ence of a basis for discharge is no defense to a discharge if in fact the discharge was nevertheless based on an- other unlawful reason. Rose's Stores, 256 NLRB 550 (1981). In the instant case, I am persuaded that, it was not their remarks to Jackson about Koreans or foreigners that prompted the discharges, but rather the efforts of the three in soliciting Jackson to strike. Only Geiger's self-serving testimony indicates that he discharged the employees because they were telling him he could not hire Koreans. Geiger's testimony regarding his motive was not substantiated by any other witness including Processing Manager Watts even though Geiger testified that when he told Watts to terminate the four, he also told him no one was going to tell Geiger not to hire "Korean nationals." Under these circumstances, Geiger's claim smacks of afterthought and I find it incredible. That Geiger 'was opportunistic and not unwilling to stretch the truth was shown by a news release prepared by him during the strike in which he left the clear im- pression, admittedly contrary to the truth, that as the strike occurred, he offered to meet with the "employees" to discuss their grievances, but that nevertheless "47 em- ployees" left the plant and began picketing. Significant in concluding that references by the dis- chargees to Koreans or foreign nationals was not the mo- tivating concern for their discharges is Respondent's fail- ure to investigate or ascertain ' the position of the people accused of the misconduct. Geiger never asked for their version of the facts before deciding to discharge them. Such a failure, coupled with Respondent's haste in effec- tuating the discharges, clearly indicates that Respondent was reacting to the strike solicitations rather than any particular remarks of the dischargees in connection with such solicitation. Most revealing regarding Respondent's motivation in effectuating the discharges was its reliance on its policy against restricting output and intimidating other employ- ees. Although Watts testified he did not use the word strike in announcing the discharges to the four employ- ees, and I credit him in this regard, he conceded that he was in fact referring to the strike in applying Respond- ent's rule 16.15 Yet, there was no evidence that the four discharged had restricted output or had intimidated others. There was no showing that those discharged were interfering with Jackson's work on their own in talking to Jackson. Thus, the rule relied on had no appli- cation to the circumstances except to the extent that a strike, if successful, would have the necessary effect of restricting output. 14 Although not alleged as a violation , it is clear that Smith's discharge would have violated the Act under Burnup & Sims, supra, for Respond- ent concedes she had not engaged in any misconduct and was, therefore, subsequently reinstated 15 Although I credit Watts regarding what he told the dischargees, it was not unreasonable for them to conclude from what he said that he was in fact discharging them for soliciting for a strike. Finally, the discharged employees were never told the reason now relied on by Respondent for justifying the discharges, i.e., the alleged misconduct in complaining that Respondent was hiring Koreans or foreigners. The failure to so tell the discharged employees , in the ab- sence of some credible explanation not set forth in the record, clearly indicates that such reason was not relied on. Even when Williams talked to Geiger on 31 August at the plant, Geiger complained to Williams only of her having gone down the line "soliciting." Based on Wil- liams' testimony, which I credit in this instance," s there was no reference by Geiger to the dischargees complain- ing about the hiring of Koreans or foreigners. Considering the foregoing and the fact that at the time of the discharges Respondent had specifically identified only the four dischargees as strike solicitors , and because I find Geiger's unsubstantiated testimony regarding his motivation in effectuating the discharges unpersuasive, I conclude Respondent has not demonstrated that it relied on any unprotected aspect of the strike solicitations of the discharged employees. For this reason I conclude that, even assuming misconduct on the part of the dis- chargees-in connection with activity otherwise protected under the Act, Respondent discharged them not for such misconduct, but for their protected activity of soliciting or encouraging other employees to strike. In this regard, I conclude Respondent violated Section 8(a)(1) of the Act as alleged. Having found that Respondent engaged in unfair labor practices under the Act in the discharges, there remains the, issue of whether the unfair labor practices were a contributing cause of the strike on 27 August. It is suffi- cient that the strike was caused at least in part by Re- spondent's unfair labor practices. See, e.g., Daisy's Origi- nals, 187 NLRB 251 (1970). Based on Margaret John- son's credited testimony, the strike, while preplanned, was essentially conditional on garnering further support from employees. Further, Johnson related that she did not believe the strike would have occurred in the ab- sence of the discharges because employees did not have the "nerve." This assessment was probably accurate be- cause only a fraction of Respondent's work force joined the strike even in light of the discharges. In any event, Johnson testified without contradiction that she discussed the discharges with several other employees at work on the morning of 29 August and asked them what they were going to do about it. She added that she got re- sponses indicating a willingness to walk out so she ad- vised them to "spread the word and tell everybody, you know, at 8:00 o'clock we will be walking out." 16 Although Williams cannot be described as a wholly candid witness, I did not perceive her testimony about the meeting with Geiger to be a fabrication, particularly since Geiger's denial of any meeting with Wil- liams after the strike was not convincing Further, although called as a witness by Respondent, security guard Ronald Chance did not testify about, and failed to refute, Williams' visit to the plant on 31 August, even though Williams identified "Ron" as the guard who let her in to see Geiger on that day It seems reasonable to infer from Chance's failure to rebut Williams' testimony that she did meet with Geiger as she claimed Under these circumstances, I find Williams' testimony regarding the fact of the meeting with Geiger and his remarks in the meeting are credible 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Christine Chavis, a witness for the General Counsel, testified credibly,that she learned of the discharges on the morning of 27 August and, on seeing the walkout begin, decided to go with the strike. Similarly,_ striker Mildred Shaw, who learned of the discharges on the evening they occurred, testified that the next day at work when the walkout started, the employees working next to her told her to "come on, they're going to strike to support our coworkers." Finally, based on Margaret Johnson's testimony, un- contradicted in this regard, among picket signs used were those containing language referring to "Unfair Labor Practices." Johnson testified, again without con- tradiction, that as spokesman for the Concerns Council she told newspaper reporters and others that the strike was to support the four girls who were fired, for better working conditions in the plant, and for more money. In view of the above, and while not all strikers may have been aware of the discharges prior to the strike, I con- clude the record fully supports the conclusion I reach here that the strike was caused at least in part by the dis- charges, and that for this reason the strike must be classi- fied as an unfair labor practice strike from its inception. 3. The validity of the offer to return to work Concerning the validity of Black's offer of 29 August for the employees to return to work, Respondent argues that many strikers were not aware of the offer to return to work, that no record was made of employees specifi- cally granting authorization for the offer, that the offer may have been sent before any authorization was given, and lastly that the offer must be held invalid because nei- ther Black nor the IUD was certified or recognized as the collective-bargaining representative. In connection with the latter argument, which appears to contradict Respondent's contention elsewhere herein that the IUD is not a labor organization, Respondent asserts that to have accepted the validity of the work return offer, it would have had to deal with the IUD, a situation Re- spondent was legally privileged to avoid under Sears, supra, and Linden Lumber, supra. Having credited Black regarding the circumstances of his sending the offer to Respondent, I find Respondent' s initial arguments to be without merit. The fact that each striker did not grant Black specific authorization to send the telegram is im- material for it is clear that the strike was over, and -any picketing ceased commensurate with the sending of the "offer." There was no evidence that the strike continued, or that any employees insisted on a continuation of the strike. Nor was there evidence that any employees ob- jected to the offer to return to work. I likewise reject Respondent's legal argument and find the Sears and Linden Lumber cases inapposite. Sears dealt with, and upheld, an employer's right to deal directly with employees in investigatory interviews when no union representative of such employees has been certified or recognized. Linden Lumber involved the right of em- ployers,to refuse to grant recognition to a union based on union authorization cards in the absence of unfair labor practices precluding a fair election. Neither situa- tion is present in the instant case. Moreover, although an employer may not be compelled to recognize or negoti- ate with a minority union, the Board and courts have specifically held that nothing in the Act precludes a mi- nority representative from acting as the employees' agent for the purpose of requesting reinstatement . See F. M. Homes, Inc., 235 NLRB 648 (1978), and cases cited therein at fn. 4. See also Hendon & Co., 197 NLRB 813 (1972). Respondent would distinguish the case herein from the foregoing line of cases as well as Marlene In- dustries Corp., 255 NLRB 1446 (1981), enf. denied 712 F.2d 1011 (6th Cir. 1983), cited in the General Counsel's brief, on the grounds that in the cited cases the employer knew the union making the return-to-work offers repre- sented the striking employees even if such union did not enjoy majority representative status among the employ- er's employees generally. Regardless of whether this is a valid distinction, Geiger admitted that in view of Black's mailgram he "assumed that [the strikers] would attempt to" return to work, and responded by instructing his guard not to allow the "walkout employees" to return. Instead, he told the guard that if they trespassed to call the police and have them arrested. Thus, Geiger treated the offer as a valid one. And, any doubt as to the validi- ty of the return to work offer should have been resolved by the actual attempt of the employees to return to work on the morning of 30 August. 17 In any event, and, assuming some doubt by Respondent regarding the validity or conditional status of Black's return to work offer, it was incumbent on Respondent to clarify the matter with the strikers when they appeared at the plant to go to work. Certainly, Respondent was free to explore the matter with the individual strikers. Respondent's failure to do so precludes it from now complaining, and any uncertainty regarding Black's offer of the strikers return to work must be resolved against Respondent. Haddon House Food Products, 242 NLRB 1057, 1058 at fn. 6 (1979), enfd. as modified on other grounds 640 F.2d 392 (D.C. Cir. 1981). Accordingly, I conclude Black's offer on behalf of the strikers was valid and unconditional. Because the return to work offer was valid and be- cause I have found that the strike was based from its in- ception at least in part on the unfair labor practices of Respondent, the strikers were entitled to their jobs when they attempted to return to work on 30 August even if they had been previously replaced and even if it was necessary for Respondent to discharge the replacements. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956). It is clear that they were not allowed to do so by Re- spondent. In failing and refusing to reinstate the strikers named in the complaint,on their offer to return to work, Respondent violated Section 8(a)(1) of the Act as al- leged. See generally San Isabel Electric Services, 225 NLRB 1073 (1976). 17 Even the identity of the individual strikers attempting to return to work on 30 August was known to Respondent, for Geiger admittedly told guard Ronald Chance to make a list of those attempting to return That list, according to Geiger's belief as related at the hearing, was no longer in existence at the time of the hearing 1 LUMBEE FARMS COOPERATIVE 511 4. The discharges of Johnson and Godwin Because I have found above that the strikers were en- titled to reinstatement to their old positions in view of their status as unfair labor practice strikers and their valid offer to return to work, the burden was on Re- spondent to reinstate them to their old positions. It is clear that neither Margaret Johnson nor Vivian Godwin were reinstated to their former positions after the strike. Prior to the strike, Johnson had been a gizzard cleaner while Godwin worked on the eviscerating line, stabbing, washing, and cleaning knives. There was no evidence that these jobs had been abolished during the strike or that the box stacking and ice house jobs were substantial- ly equivalent to the prestrike jobs of Johnson and Godwin. In these circumstances, I must conclude, that neither of the two were ever properly reinstated by Re- spondent, and that Respondent must fulfill its obligation to reinstate them. In view of Respondent's failure to properly reinstate Johnson and Godwin and because Respondent violated Section 8(a)(1) in failing and refusing to reinstate the strikers, it would appear to be unnecessary to decide whether Respondent's discharge of either Johnson or Godwin from the jobs to which they were assigned on 14 and 16 October, respectively, was based on their in- volvement in, or leadership of, the strike. Never having been properly reinstated, the order providing for the backpay and reinstatement of the unfair labor practice strikers provided below includes Johnson and Godwin. However, a failure to decide the issue of their discharges would leave the complaint allegations on these points un- resolved and an inadequate basis for Board review of the merit of the allegations. Thus, the legality of the dis- charges of Johnson and Godwin will be undertaken below. There is little dispute concerning the facts surrounding Johnson's discharge. She was offered one position, found she could not perform the work, and was offered a second job in the ice house. Although the General Coun- sel makes much of the fact that Respondent had never previously assigned a woman to work alone in the ice house, there was no evidence that the job could not be performed by a woman. Moreover, there was nothing in Johnson's testimony suggesting the job was too difficult for her. Finally, there was no evidence to contradict Locklear's testimony, which I credit in this regard, that not enough ice was being dispensed from the ice house to the work floor to keep the product properly chilled. There appears to be a legitimate basis for finding fault with Johnson's work. Considering the foregoing, the fact that Locklear warned Johnson once before the discharge that not enough ice was coming to the floor, and that Locklear had previously discharged employees for the same offense as Johnson, and although the discharge is suspicious, I conclude that the evidence was insufficient to establish that the discharge was based on Johnson's prior protected concerted activity. I, therefore, find no violation of Section 8(a)(1) of the Act in Johnson's dis- charge from the ice house job. With respect to Godwin's discharge, I find the facts to be those related by Respondent's witnesses Pate, McCul- lum, and Locklear. Godwin appeared nervous and uneasy while testifying, an appearance not fully explain- able as resulting from an illness she claimed to be experi- encing. Not surprisingly, she exhibited her greatest dis- comfort during cross-examination. She was contradicted by her prehearing statement to the Board regarding a significant aspect of her testimony, the decision of em- ployees at the 22 August meeting to strike on 27 August. Accordingly, I do not find Godwin fully credible. I find Godwin did tell Judy Cummings within the hearing of Dorothy McCullum 1 s that she was not going to stack "no damn boxes." As the General Counsel argues, how- ever, there remains an element of disparate treatment in Respondent's discharge of Godwin. Thus, Pate conceded that she had initially told Godwin, as she had told other former strikers, that if she did not believe she could per- form a job in which Respondent had openings, Respond- ent would call her when they had another opening. And, as in the case of Johnson, Respondent allowed employ- ees to attempt a job before rejecting it. Further, employ- ee and former striker Mary Shaw credibly testified that she had rejected the box stacking job without penalty. The manner of Godwin's purported rejection of the box stacking job is hardly a reason for this disparity in treat- ment. Godwin did not specifically tell Locklear, who was to be her supervisor she was rejecting the job. There was no refusal to obey a direct order. Nor did Godwin direct any insubordinate language at Locklear. Indeed, it was not even Locklear's decision to discharge Godwin. It was Geiger's. Given Godwin's known position in the employees Concerns Council and her strike participation, Respondent's disposition to retaliate against those per- ceived to be instigators of the strike as demonstrated in the discharges of 26 August, Godwin's long period of prior employment with Respondent,19 the minor nature of Godwin's offense, and the failure to grant her a job- rejection privilege accorded other returning strikers, compels me to conclude that the General Counsel has es- tablished a prima facie case that Godwin's discharge was based on her prior protected activity. Further, in the ab- sence of evidence that other employees guilty of offenses like or similar to Godwin's were similarly so harshly treated, I find Respondent has not demonstrated that Godwin would have been discharged without regard to her protected activity. Accordingly, I conclude that Godwin's discharge interfered with her Section 7 rights in violation of Section 8(a)(1) of the Act as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employees Patsy Clark, Jeanette Townsend, and Diane Williams on 26 August 1986 and employee Vivian Godwin on 16 October 1985 because of their involvement in activity protected under the Act, Respondent engaged in, and is engaging in, unfair labor 18 It is not fully clear from the record that Godwin directed her re- marks about the job to McCullum It is my sense of the record and testi- mony that McCullum simply overheard Godwin's remark that was di- rected to Cummings. 19 Godwin had been employed by Respondent for about 14 years 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practices within the meaning of Section 8(a)(1) of the Act. 3. Respondent did not violate the Act in the discharge of Margaret Johnson on 14 October 1985. 4. The strike, which began among Respondent's em- ployees on 27 August 1985, was an unfair labor practice strike from its inception. 5. By failing and refusing to properly and timely rein- state unfair labor practice strikers listed below on their unconditional application for reinstatement, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act: Diane Bell Leacher Bilbo Sarah Brooks Barbara Bullard Rosie L. Campbell Vanessa Campbell Christine Chavis Vickie Chavis Barbara Collins Delphine Edwards Vivian Godwin Margaret Johnson Vernice Johnson Sandra Judd Annette Locklear Geneva Locklear Gloria A. Locklear Ruby A. Locklear Shirley Locklear Gloria Mainor Helen McAllister Johnnie McAllister Martha McArn Brenda McBryde Dazza McBryde Ola McBryde Gladys McDonald Barbara McDougald Jonathon McEachin Shirley McEachin Johnny McGougan Judy McNeill Joann Miller Charlene Pearson Teresa Ray Eddie Shaw Mary Shaw Mildred Shaw William Shaw Carrie Simpson Barbara Smith TeWanda Spearman Kunehona Visessing Eva Watkins Gloria Williams Mary Willis 6. The unfair labor practices described above in Con- clusions of Law 2 and 5 affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not engage in any unfair labor prac- tices other than those found here. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent, having discriminatorily discharged Patsy Clark, Jeanette Townsend, and Diane Williams, must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quar- terly basis from the date of discharge to the date of a proper offer of reinstatement, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977).20 Consistent with the 20 See generally Isis Plumbing Co, 138 NLRB 716 (1962). Board's holding in Sterling Sugars, 261 NLRB 472 (1982), it will also be recommended that Respondent be required to remove from its records and files any reference to the discharges of the above-named employees and notify them in writing that this has been done and that evi- dence of the unlawful discharges will not be used for future personnel actions against them. Having found that Respondent unlawfully failed and refused to reinstate the unfair labor practice strikers listed in the notice21 following their unconditional offer to return to work, it shall be ordered that Respondent, to the extent it has not already done so, offer them immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without loss of seniority or other benefits and make them whole for any loss of pay resulting from Re- spondent's failure to properly reinstate them by payment of a sum of money to them equal to the amount they normally would have earned as wages from the effective date of their unconditional offer to return to work, 30 August 1985, to the date of a bona fide offer of reinstate= ment by Respondent or their actual reinstatement as the case may be, less any net interim earnings. The backpay and interest shall also be computed in accordance with the authority cited in the paragraph immediately above.2 2 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER The Respondent, Lumbee Farms Cooperative, Inc., Lumber Bridge, North Carolina, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activi- ties under the Act for mutual aid or protection. (b) Failing or refusing to reinstate either in a timely manner or at all unfair labor practice strikers on their un- conditional application to return to work. 2 i Shirley A. Locklear was listed in pars 12 and 13 of the complaint as having been a striker Respondent's answer denied the pertinent portions of both complaint paragraphs The list of strikers made at the home of Margaret Johnson on 30 August (G C Exh 3) lists no Shirley A Lock- lear, although it does list a Shirley A Williams Accordingly, and be- cause there is no independent evidence that Shirley A Locklear was a striker, I shall omit her name from the notice I shall leave for compli- ance processing the determination of whether Locklear was inadvertently alleged in the complaint instead of Shirley A Williams 22 The General Counsel in her brief sought also a "visitatorial clause" in effect allowing the Board to engage in discovery under the Federal Rules of Civil Procedures in order to monitor compliance However, no special circumstances are asserted or argued to justify such a clause The Board has previously indicated such clauses will not be granted in a pro forma manner See 0. L Willis, Inc, 278 NLRB 203 (1986), 278 NLRB 626 (1986) Compare Hilton Inn North, 279 NLRB 45 (1986)' In the ab- sence of any special circumstances shown here, no visitatorial clause will be provided 22 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 LUMBEE FARMS COOPERATIVE 513 (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Patsy Clark, Jeanette Townsend, Diane Wil- liams, and to the extent it has not already done so, the below-named employees immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make then whole in the manner set forth in the remedy section of this decision. Diane Bell Leacher Bilbo Sarah Brooks Barbara Bullard Rosie L. Campbell Vanessa Campbell Christine Chavis Vickie Chavis Barbara Collins Delphine Edwards Vivian Godwin Margaret Johnson Vernice Johnson Sandra Judd Annette Locklear Geneva Locklear Gloria A. Locklear Ruby A. Locklear Shirley Locklear Gloria Mainor Brenda McBryde Dazza McBryde Ola McBryde Gladys McDonald Barbara McDougald Jonathon McEachin Shirley McEachin Johnny McGougan Judy McNeill Joann Miller Charlene Pearson Teresa Ray Eddie Shaw Mary Shaw Mildred Shaw William Shaw Carrie Simpson Barbara Smith TeWanda Spearman Kunehona Visessing Helen McAllister Eva Watkins Johnnie McAllister Gloria Williams Martha McArn Mary Willis (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at Respondent's facility in Lumber Bridge, North Carolina, copies of the attached notice marked "Appendix."24 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint is dismissed in all respects other than those specific viola- tions of the Act found. 24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by 6rder of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."