Axelson, Inc.

862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Axelson, Inc. and International Association of Ma- chinists and Aerospace Workers, AFL-CIO and Edmond R. Jones and William Pegues and Douglas A. Wheelis. Cases 16-CA-8677, 16- CA-8835, 16-CA-8877, 16-CA-8966, 16-CA- 9058, 16-CA-8754, 16-CA-8907, and 16-CA- 9276 18 September 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSON, BABSON, AND STEPHENS On 8 July 1981 Administrative Law Judge Timo- thy D. Nelson issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings,' and conclusions2 only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified. Employees Q. Ray Williams, Jimmy G. McGrede, and S. L. Curtis were former economic strikers who had been permanently replaced by the Respondent and were awaiting reinstatement pursu- ant to the Respondent's reinstatement program. The Respondent terminated the reinstatement rights of all three under the program, effectively discharging them, because of their alleged miscon- i The General Counsel and the Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We adopt the judge's conclusions that the Respondent did not violate Sec. 8(a)(3) and (1) by denying reinstatement to employees Arthur Kingsby and Edmond Jones However, we do not endorse the judge's implication that economic strikers are charged with a special duty of dili- gence with regard to keeping the employer informed of unusual circum- stances that might affect their receipt of notices of recall and job bid op- portunities, and with regard to responding to such notices. Rather we find that in the circumstances the Respondent's notice and opportunity tb respond were reasonable concerning each employee, neither Kingsby nor Jones offered acceptable reasons for failing to respond in a timely manner In finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act by refusing to offer reinstatement to employee Donald Sapp, the judge evaluated the evidence in light of several Board cases dealing with the question of an employee's "abandonment" of his struck job. The judge's analysis resulted in his formulation of a "Yule" providing, inter alia, that a striker may retain his employee status even if he accepts a regular and substantially equivalent position elsewhere. In the absence of exceptions, we find it unnecessary to consider the judge's analysis of the issue We agree with the judge that the Respondent violated Sec 8(a)(3) and (1) by refusing to reinstate six employees because they did not pass a physical exam that had been discriminatorily imposed as a requirement for reinstatement. However, because the judge found that the Respondent lacked legitimate and substantial business justifications for imposing this requirement, we find it unnecessary to rely on his finding that the Re- spondent's conduct was inherently destructive of important employee rights under the Act duct during the strike. The judge found that the Respondent's action violated, Section .8(a)(3) and (1) concerning all three employees because, the Re- spondent did not establish its "honest belief ' that they had engaged in strike misconduct justifying discharge.3 We find, contrary to the judge, that the Respondent satisfied its "honest belief' evidentiary burden with respect to employee Williams. With the Respondent's honest belief claim unrebutted, we conclude that the Respondent did not violate Section 8(a)(3) and (1) by terminating Williams' re- instatement rights. Although, we agree with the judge that the Respondent failed to meet its honest belief burden with respect to employees McGrede and Curtis and that the termination of their rein- statement rights violated the Act, we find never- theless that neither McGrede nor Curtis is entitled to reinstatement or full backpay ^ rights in light of the proven misconduct in which they engaged. Following the expiration of the collective-bar- gaining agreement between the Respondent and the Union on 18 February 1979,4 all the Respondent's 320 bargaining unit employees initiated an econom- ic strike that lasted until 31 May. During the strike the Respondent continued to operate by means of replacements and the return of a small number of employees who had abandoned the strike. Violent activity and threats of violence were not rare during the strike, especially after the Respondent began hiring the replacements and putting back to work those employees who had renounced the strike. On 14 March the local district court issued a temporary restraining order enjoining the Union, its agents, and representatives from engaging in various disruptive acts, including mass picketing and threatening, harassing, or assaulting the Re- spondent's employees or members of their families. Violent incidents nevertheless continued for the du- ration of the strike. The Respondent recorded re- ports of misconduct both on and away from the picket line involving, individual striking employees. On 31 May the striking employees, through the Union, offered unconditionally to return to work. At that time all the strikers had been permanently replaced. The Respondent instituted a reinstate- ment program, recalling the former strikers as posi- tions became available .5 At a decertification elec- tion held on 13 September; the Respondent chal- lenged the ballots of several of the former strikers awaiting reinstatement, using its records of strike misconduct as the basis for the challenges., Wil- 3 This is part of the test for determining the lawfulness of discharges for strike misconduct. See General Telephone Co. of Michigan, 251 NLRB 737 (1980), and discussion infra. 4 All subsequent dates refer to the year 1979 unless otherwise specified. 5 The validity of the reinstatement program is not at issue in this case. 285 NLRB No. 118 AXELSON, INC. 863 hams, McGrede, and Curtis were among those challenged. Subsequent to the election, the Re- spondent terminated the reinstatement rights of these three, among others, because of their alleged strike misconduct.6 McGrede was terminated) for various alleged in- stances of strike misconduct, including a barely veiled threat to a nonstriking employee. McGrede himself testified, first on the inquiry of the General Counsel and then in greater detail during the Re- spondent's cross-examination, that near the end of the strike he confronted nonstriker Bobby Huey Jr. near the Respondent's plant. McGrede did not know Huey well but he did know that Huey had initially joined the strike and had subsequently re- turned to work. Following a short conversation McGrede told Huey to "be careful on the way to Kilgore." When Huey asked why, McGrede re- sponded, "Because I would hate for anything to happen to you." At that point they parted. Huey filed a complaint with the local police based on the incident. Pursuant to an arrest warrant McGrede appeared and was required to post a property bond. McGrede was also allegedly involved in another instance of misconduct with fellow strikers S. L. Curtis and Kevin Adair.7 The judge resolved the conflicting testimony with respect to this issue by crediting the testimony of employee Doyal Stevens over that of McGrede. According to Stevens, the incident took place on a night in mid-April within a few weeks after he quit the strike and returned to work. Stevens had finished his shift at the Re- spondent's plant about 1 a.m. and was driving home when he noticed he was being followed by a brown pickup truck. When Stevens increased his speed or slowed down, the pickup kept pace with his vehicle. It neither passed nor turned off. When Stevens arrived at his house, the pickup went far- ther down the road, turned around, and slowly passed his home. It then proceeded to a gas station in view of the house and stopped, apparently wait- ing, with its parking lights on. Stevens summoned the local police. When a police car arrived and Stevens got in, the pickup truck pulled out, of the gas station and headed away. The police stopped the truck and Stevens identified McGrede, Curtis, and Adair. Q. Ray Williams was accused of brandishing a revolver and threatening to kill two striker replace- ments. According to the credited testimony of em- 6 Williams and McGrede received written notices of their terminations in October. Although Curtis did not receive such a notice, the Respond- ent maintains that he too was ineligible for reinstatement because of his strike misconduct 7 No Issues of discharge or denial of reinstatement concerning Kevin Adair are before us. ployee James Baugher and the corroborating testi- mony of employee Russ Roebuck, the incident oc- curred as follows. At some point in April, about a month after Baugher and Roebuck were hired, the two were followed from the plant after finishing their shift by a dune buggy occupied by two strik- ers. A chase ensued at speeds up to 85 miles per hour. At different points during the chase beer bot- tles thrown from the dune buggy struck Roebuck's car. When Roebuck was finally forced to stop be- cause of a red light, the dune buggy pulled along- side. The striker in the passenger seat pulled a re- volver from the rear of the dune buggy, displayed it for Roebuck and Baugher to see, and laid it in his lap. He then told the two replacements that if they went back to work, "[w]e will kill you." The dune buggy turned around and drove off. On the following day Roebuck quit his job with the Respondent because of the threat. Baugher, however, continued to work, and he filed a report of the incident with the Respondent. Not knowing the names of the strikers at the time, he was brought out to' the picket line by an employee on the Respondent's security staff, Huffman, where Baugher identified the striker who held the gun and threatened to kill them. ' Huffman informed Baugher the striker's name was Williams. The judge concluded that the Respondent's ac- tions against Williams, McGrede, and Curtis violat- ed Section 8(a)(3) and (1). With respect to all three, he found that the Respondent had not met its burden of demonstrating that it held an "honest belief" that they had engaged in strike misconduct, pursuant to the standard set down in Rubin Bros. Footwear, 99 NLRB 610 (1952), and on which the Board elaborated in General Telephone Co., 251 NLRB 737 (1980). Concerning Williams, the judge found that he had not been sufficiently identified as the person sitting in the passenger seat of the dune buggy since the Respondent did not show that the security employee who supplied Baugher with Wil- liams' name was knowledgeable regarding Wil- liams' identity. The judge further found that the Respondent did not demonstrate that the identifica- tion of Williams as the culprit was "communicated to some responsible agent of Respondent and was relied on." For the reasons given below, we dis- agree with the judge's evaluation of the Respond- ent's honest belief burden in connection with Wil- liams and find that the Respondent acted in good faith in discharging him. As the judge noted, Rubin Bros. is the seminal case elucidating the respective burdens of the Gen- eral Counsel and the Respondent when strikers are denied reinstatement because of strike misconduct. Under Rubin Bros., once the General Counsel has 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD established that strikers were- denied -reinstatement for conduct related to the strike, the burden of going forward shifts to the respondent to demon- strate an honest belief that the strikers had engaged in strike misconduct. Rubin Bros., 99 NLRB at 611. If the respondent meets its honest belief responsibil- ity, the burden of going forward shifts back to the General Counsel to prove that the strikers did not in fact engage in the alleged misconduct. In, delin- eating this procedure the Board noted that it merely reflects the General Counsel's obligation to carry the ultimate burden of proving that illegal discrimination has occurred. We emphasize that Rubin Bros. indicates that the respondent's honest belief burden does not extend to proving that the strikers did in fact engage in the misconduct.. Once an honest belief is estab- lished, it is for the General Counsel to demonstrate the 'strikers' innocence and thus establish that the respondent's conduct is illegal. To the extent that there is a lack of evidence on this issue, it must be resolved in favor of the employer, because the General Counsel has the burden of proof on this question. See Schrieber Mfg. v. NLRB, 725 F.2d 413 (6th Cir. 1984). We also note that the- Rubin Bros. procedure has been implicitly endorsed by the Supreme Court. See NLRB v. Burnup &Sims, 379 U.S. 21 at fn. 3 (1984). In General Telephone Co., 251 NLRB 737 (1980), the Board discussed in detail the employer's re- sponsibility in meeting its honest belief burden: , [T]he burden of establishing an "honest belief' of misconduct requires more than the employ- er's mere assertion that an "honest belief" of such misconduct was the motivating force behind the meting out of discipline. Meeting the burden also requires more than a ' general statement about the guidelines used in estab- lishing the alleged "honest belief." Rather, it requires ' some specificity in the record, linking particular employees to particular allegations of misconduct. [Id. at 739, emphasis added.] ' The Board explained that specificity is required in order to afford the General Counsel a fair and rea- sonable opportunity to prove that an employee did not in fact engage in the alleged misconduct. Id. at 739-740. We find that the judge demanded' more of the Respondent to establish its honest belief than is re- quired under Rubin Bros. and General -Telephone in connection with Williams. The judge' s conclusion that the identification of Williams was unsatisfac- tory implicitly required that the Respondent prove that Williams in fact committed the alleged miscon- duct. In effect, the judge required a concrete, con- clusive linkage between Williams and the dune buggy incident. This is far more than "some speci- ficity"; plainly, it is more than is necessary to dem- onstrate the Respondent's honest belief. - As the record stands, employee Baugher testified that he witnessed the incident, reported it to, the Respondent, identified Williams on the picket lines as a participant, and was supplied with Williams' name by an employee on the Respondent's security staff. That the identification was ' passed on to a "responsible agent of Respondent and relied on" is reasonably inferrable from the circumstances. The Respondent's evidence is quite sufficiently specific to ' link Williams to the incident and fairly shift the burden of going forward to the General Counsel. It was the General Counsel's responsibility to prove that Williams did not in fact, engage in the alleged misconduct. This the General Counsel might have done quite simply by bringing back Williams, who had earlier in the hearing generally denied involve- ment in, any misconduct, for identification by Baugher at the hearing. The General Counsel did not do this, nor did he make any other attempt to rebut Baugher's testimony. As we noted above, to the degree that there is a, lack of evidence on the misconduct once an honest belief has been estab- lished, it is resolved in the Respondent's favor, be- cause the burden of proof here falls on the General Counsel. Having found that the Respondent established its honest belief that Williams' misconduct occurred, we, further find that the General Counsel did not meet the burden of proving, that this misconduct did not in fact occur. Therefore, for the purpose of further analysis, we must assume that Williams en- gaged in the misconduct attributed to him. Furr's Cafeterias, 251 NLRB 879 (1980). In Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985), we stated that.' an employer may legitimately deny reinstatement to strikers whose strike misconduct under the circumstances reasonably tends to coerce or intimidate employees in the exercise of their rights protected under the Act. 'Id. at 1046. Section 7 as clearly protects the right of an employee to refrain from-taking part in a strike as it does the right of an employee to par- ticipate peacefully in one. Strikers are not protect- ed when they engage' in conduct that tends to coerce or intimidate nonstrikers in the exercise of the right not to strike, and they run the consequent risk of being lawfully denied reinstatement." 8 It is not contended that provocation is a defense to the alleged strike misconduct in this case. Therefore, we find it unnecessary to resolve the issue left open in Clear Pine Mouldings, above, whether provocation can ever be a defense. AXELSON, INC. 865 Striker Williams was a participant in the high- speed car chase of Roebuck and (Baugher, both striker replacements. During the chase, beer bottles were thrown that struck Roebuck's car. At the end of the chase, Williams brandished a revolver for both of them to see. He then told them they would be killed if they continued to work for the Re- spondent. The experience was intimidating enough for Roebuck to quit his job. We need discuss this incident no further to find that Williams' conduct reasonably-tended to coerce Roebuck and Baugher in the exercise of their right - not to join in the strike. Accordingly, we find that Williams was dis- qualified from the protection of the Act because of his coercive and intimidating conduct and conclude that the Respondent was justified in discharging him. We shall therefore dismiss the allegations against the Respondent of violations of Section S(a)(3) and (1) as they relate to Williams.9 With regard to McGrede and Curtis, we agree with the judge's finding that the Respondent failed to satisfy its honest belief burden because it did not demonstrate that it knew about and relied specifi- cally on McGrede's "Kilgore" threat and the Doyle Stevens incident in terminating their rein- statement rights. We also agree with the judge's finding that Respondent did not learn of these inci- dents until testimony concerning them was intro- duced at the hearing on 29 October 1980.10 Hence, 9 We adopt the judge's conclusions that strikers Clarence Dorsey and William Pegues were lawfully discharged because of their strike miscon- duct. However, in reaching our decision we have relied solely on the Clear Pine standard. Dorsey's threats against nonstriking employee Paul Lewis reasonably tended to coerce and intimidate Lewis in the exercise of his right not to participate in the strike We draw the same conclusion with regard to Pegues, who terrorized striker-replacement Elizabeth Shankle and her two children in a high-speed car chase and by his subse- quent threat that he would "get" her. The judge inadvertently failed to include the names of Dorsey and Pegues on the list of individuals who were not unlawfully treated by the Respondent We will correct this error by adding their names, as well as the name of Q. Ray Williams, to the list. We affirm the judge's credibility finding that striker William Bryant's 4-year-old grandson, and not Bryant himself, pointed a toy gun at a group of picketing employees and guards. Thus we agree that the Gener- al Counsel proved that Bryant did not in fact engage in misconduct and that the Respondent's discharge of him was unjustified. However, we also agree with the judge that the Respondent established an honest belief that Bryant was guilty of misconduct Accordingly we conclude that Bryant's discharge violated Sec 8 (a)(l), we find it unnecessary to analyze the circumstances under Sec . 8(a)(3). See, e.g., NLRB v Burnup & Sims, 379 US 21 (1964); Coca-Cola Co of Memphis, 269 NLRB 1101 fn 1 (1984) Also, we disclaim any reliance on the judge's hypothetical conclu- sion that even if Bryant himself had pointed a gun at the picketing em- ployees and guards, the Respondent's discharge of him would not have been justified. to If there had been evidence of the Respondent's knowledge of and reliance on these incidents in acting against McGrede and Curtis, it would have been in the Respondent's possession and, thus, the Respond- ent's burden to produce it. Accordingly, in the absence of a showing by the Respondent, it was reasonable for the judge to infer that it had no such knowledge prior to the hearing In addition, we note that the Re- spondent did not except to this finding we adopt the judge's finding that the Respondent's actions against McGrede and Curtis violated Sec- tion 8(a)(3) and (1). However, as we indicated above, we conclude that neither employee is enti- tled to reinstatement or full backpay in light of the proven strike misconduct in which they engaged. The threatening, intimidating character of McGrede's "Kilgore" statement to nonstriker Huey is apparent. It occurred near the end of a strike marked by violence and threats. McGrede uttered it to an employee he did not know particularly well. He did know, however, that Huey had been a striker originally, but had crossed the picket line and returned to work. The remark clearly suggest- ed the threat of bodily harm. Huey felt threatened enough to report the incident to the police. We find that McGrede's statement reasonably tended to coerce Huey in the exercise of his right to re- frain from striking. Similarly, the conduct of McGrede and fellow striker Curtis in following employee Stevens and remaining in the vicinity of his home is another in- stance of intimidation directed against a nonstriker. Stevens, who had withdrawn from the strike and returned to work, was followed late at night in a manner meant to create a sense of apprehension. When Stevens arrived home, McGrede, Curtis, and the third striker accompanying them cruised slowly past his house, then parked close enough to see and be seen. It was not until the police, summoned by Stevens, rousted them that they left the area. We find that this conduct of McGrede and Curtis rea- sonably tended to coerce Stevens in the exercise of his right not to participate in the strike. It is quite clear that the Respondent would have been, justified in terminating McGrede's and Curtis' reinstatement rights if it had known about and relied on these incidents of misconduct. In Clear Pine Mouldings, above, the Board noted that when, as here, strike misconduct 'reasonably tends to coerce or intimidate employees in the exercise of their Section 7 rights, the Board will tailor its rem- edies in order to discourage such misconduct by denying reinstatement and backpay to those who engage in it. 268 NLRB at 1046-1047. Pursuant to this policy, we will not order the Respondent to reinstate McGrede and Curtis. Further, with re- spect to backpay, the Board has, in some cases, denied all backpay rights to discriminatees who have participated in strike misconduct, without regard to whether the employer had relied on such misconduct in discharging them. See Western-Pacif- ic Construction, 272 NLRB 1393 (1984), enfd. sub nom. Teamsters Local 162; v. NLRB, 782 F.2d 839 (9th Cir. 1986); Blair Process Co., 199 NLRB 194, 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fn. 3, 196-197 (1972) (misconduct of employee For- shey). We have affirmed the judge's finding that the Respondent's termination of McGrede and Curtis was discriminatory and violated Section 8(a)(3) and (1). In determining the appropriate remedy, we take into account our finding that McGrede and Curtis engaged in strike misconduct. Thus the Re- spondent could have terminated the reinstatement rights of McGrede and Curtis or discharged them from their jobs if they already had been recalled pursuant to the Respondent's reinstatement pro- gram. However, with respect to backpay, we will bal- ance our responsibility to remedy unfair labor prac- tices and our policy of discouraging strike miscon- duct. Accordingly, backpay will not be automati- cally barred for the misconduct, but we will limit backpay rights by cutting them off at the time the employer acquired knowledge of the misconduct if it demonstrates that the misconduct meets the Clear Pine standard and that it is not conduct of ^a sort that it has tolerated in the past.11 The Board has used a similar remedial approach in a case involving employee-misconduct not relat- ed to a strike. Cf. East Island Swiss Products, 220 NLRB 175 (1975). We believe that it was a reason- able remedy in that case and that it is no less rea- sonable here.- To the extent that Western Pacific and Blair, above, and other cases are inconsistent with the remedy here, we overrule them. In applying the foregoing principles to this case, we find, as explained above, that the misconduct meets the Clear Pine standard, and we see no evi- dence that the Respondent would have tolerated this kind of conduct had it known about it. We also have affirmed the judge's finding that the Respond- ent first acquired knowledge of this misconduct at the hearing (see fn. 10 supra). The remaining issue for compliance is whether McGrede or Curtis would have been recalled pursuant to the reinstate- ii We emphasize, however, that the steps in the analysis that have led us to limit the backpay rights of McGrede and Curtis would not neces- sarily be identical to those in cases involving a respondent employer's after-acquired knowledge of misconduct that does not involve acts that, as here, were calculated to intimidate other employees who were exercising their own Sec. 7 rights to refrain from strike activity In cases involving other types of employee misconduct, we might well impose an even heavier burden on a respondent employer who contends that the tradi- tional remedies for an unlawful discharge-reinstatement and full back- pay rights-are unwarranted. Contrary to our dissenting colleague, we do not perceive our order granting limited backpay rights as a "misuse" of our remedial authority or as a potential "windfall" for wrongdoers Rather, in circumstances in which both employers and employees have engaged in misconduct con- trary to the policies of the Act, we seek a remedy that will discourage both types of misconduct We would be granting an undue windfall if we either granted reinstatement and full backpay to the employees guilty of the strike misconduct or if we relieved the Respondent of all backpay li- ability and required it only to cease and desist the unlawful conduct and post a notice. ment program prior to the time- the Respondent ac- quired knowledge of the strike misconduct. That determination will reveal if, or how much, backpay is actually owed to McGrede and Curtis. AMENDED' CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 4. "4. By discharging or denying reinstatement to the employees listed below for their strike-related activities, Respondent has engaged in, and is engag- ing in, unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. The employees thus discriminated against are: William J. Bryant Jimmy G. McGrede S. L. Curtis" 2. Substitute the following for. Conclusion of Law 6. "6. The Respondent did not violate the Act- either as alleged in the complaint or under any other set of circumstances that were fully and fairly litigated-by its treatment of the individuals listed below: "Clarence Dorsey Jackie Orms William Pegues Q. Ray Williams D. R. Daniel J. D. Burkett Bennie Jackson, Jr. Edmond Jones, II" Eugene Ashley Dan Watts Floyd Stevenson Snider Ed Perry Betty Phillips Thurman O. Haywood Arthur Kingsby AMENDED REMEDY We affirm the judge's remedy with the qualifica- tion that all references to Q. Ray Williams are to be disregarded, and with the further qualification that Jimmy G. McGrede and S. L. Curtis are to be made whole for any losses due to the Respondent's discrimination against them only up to 29 October 1980, the time when the Respondent acquired knowledge of their strike misconduct constituting a lawful basis for discharge, as explained above in our decision. 12 1S In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). AXELSON,_'INC.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders, that the Re- spondent, Axelson, Inc., Longview, Texas, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph l(b). "(b) Discharging employees for striking or for engaging in strike-related conduct unless such em- ployees engaged in misconduct which under the circumstances may reasonably tend to coerce or in- timidate employees in the exercise of their rights protected under the Act." 2. Insert the following for paragraphs 2(a) and (b) and , reletter the subsequent paragraphs accord- ingly. "(a) Offer to the following named employees im- mediate, full, and unconditional reinstatement to their appropriate positions of employment or, if those positions no longer exist, to substantially equivalent ones, without prejudice to their seniori- ty and other rights and privileges and, if necessary, discharge employees hired 'since the discrimination against them in order to make room for them; and make them whole, with interest, for any losses of wages or benefits that they may have suffered as a consequence of the discrimination against them-all in a manner consistent with the discussion con- tained in the remedy section as amended by the Board: "C. C. McKee Donald L. Sapp Otis D. Nichols William J. Bryant J. E. Allen Donald E. Brightwell Robert Washington Douglas Wheelis R. D. McGrede Robert H. Brenner John E. Kemp Bobby J. Ballard "(b) Make whole Jimmy G. McGrede and S. L. Curtis for any lost earnings from the date of their respective unlawful discharges through 29 October 1980, the date the Respondent first learned of their strike misconduct constituting a lawful basis for discharge, the computation to be made according to the manner set forth in the remedy section." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues, I would not allow any backpay for Jimmy G. McGrede and S. L. ,Curtis. My colleagues find, and I agree, that the Respondent violated Section 8(a)(3) by terminating the reinstatement rights of economic strikers McGrede and Curtis. They further find, and I again agree, that these employees engaged in strike misconduct that bars their reinstatement. Our point 867 of disagreement lies in my colleagues' decision to grant backpay to these employees until the time the Respondent acquired knowledge of their miscon- duct. This decision is ill-advised and misuses the Board's remedial power. The central rationale underlying my colleagues' decision appears to be the need to balance the Board's responsibility to remedy unfair labor prac- tices with the policy of discouraging strike miscon- duct. They reach this balance by barring reinstate- ment but giving a little backpay. Although they emphasize that this analysis is applicable only to cases involving strike and not other forms of em- ployee misconduct, they choose the remedial ap- proach of a case involving misconduct not related to a strike' and reject the remedial approach of a case which involves strike misconduct .2 Their rea- soning is not persuasive. More is at issue in this case than the Board's re- sponsibility to remedy unfair labor practices and to discourage strike misconduct. There is also the question of the effect of the Board's remedial power to grant backpay. Under the majority view, that power is used to give payment to employees who indisputably have engaged in misconduct that warranted immediate discharge and termination of further paychecks at the time it occurred. Yet be- cause the Respondent did not learn of the miscon- duct until a later date, the employees receive money from this Board to which they otherwise would not be entitled . In the language of Western Pacific, supra, backpay in these circumstances con- stitutes a windfall to a serious wrongdoer. I fail to see how such a windfall in any way ad- vances the Board's responsibility to remedy unfair labor practices. The denial of reinstatement and all backpay does not leave the Respondent's unlawful conduct unremedied. The Respondent is ordered to cease and desist from such conduct and to post a notice to that effect. This traditional remedy is the sole one, given in otherinstances of unlawful con- duct not involving discipline resulting in loss of pay. I see no reason why it is not sufficient in - a case in which unlawfully discharged employees have engaged in -misconduct barring their reinstate- ment. Accordingly, I would use the Western Pacific, supra, approach for all types of employee miscon- duct and would deny reinstatement and all backpay when an employee who has been unlawfully dis- charged has committed misconduct that plainly would have led to immediate discharge. In such ' East Island Swiss Products, 220 NLRB 175 (1975) a Western Pacific Construction, 272 NLRB 1393 ( 1984), enfd sub nom Teamsters Local 162 e NLRB, 782 F.2d 839 (9th Cir 1986) 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cases I would require only a cease-and-desist order and the posting of a notice. 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 refuse to reinstate former strikers who have unconditionally offered to return to work simply because they may have obtained other jobs during the strike and when they have not, in fact, abandoned their interest in continued employ- ment with us. WE WILL NOT discharge or discipline employees for their strike-related activities unless such em- ployees engage in misconduct which under the cir- cumstances may reasonably tend to -coerce or in- timidate other employees in the exercise of their rights protected under the Act. WE WILL NOT require former strikers to submit to and pass physical examinations as a condition to reinstating them to active employment as jobs become available for them. WE WILL NOT in any like or related manner interfere with, restrain, coerce, or discriminate against employees because they have engag in a - lawful economic strike or have engaged other activities protected by the Act. WE WILL offer to the employees listed below, immediate, full, and unconditional reinstatement to their appropriate positions of employment, without prejudice to their seniority or other rights and privileges; and WE WILL make them whole, with interest, for any wages or benefits they have lost as a consequence of our discrimination against them: C. C. McKee Donald L. Sapp Otis D. Nichols William J. Bryant J. E. Allen Donald E. Brightwell Robert Washington Douglas Wheelis R. D. McGrede Robert H. Brenner John E. Kemp Bobby J. Ballard WE WILL make Jimmy G. McGrede and S. L. Curtis whole for any lost earnings due to our un- lawful discrimination against them for a limited period described in the Order. AXELSON, INC. J. O. Dodson, Esq., for the General Counsel. Frank B. Wolfe III and Richard L. Barnes, Esgs. (Kothe, Nichols & Wolfe, Ina), of Tulsa, Oklahoma, for the Re- spondent. J. D. Crow, of Dallas, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE 1. INTRODUCTION TIMOTHY D . NELSON, Administrative Law Judge. I heard these consolidated cases involving alleged unfair labor practices by Axelson, Inc., (Respondent) in three separate trial sessions comprising 11 days of trial be- tween September 15 and December 4, 1980 .1 Trial pro- ceedings were conducted at various hearing sites in Mar- shall and Longview, Texas. The cases involve Respondent's allegedly discriminato- ry treatment of employees who were engaged in an eco- nomic strike against Respondent called by International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) between February and ^ May 1979.2 In the aftermath of the strike and continuing through July 1980, the Union and certain individual employees filed numerous unfair labor practice , charges against Re- spondent alleging some form of discrimination against former strikers. These charges were investigated by the Regional Director for Region 16 of the ,National Labor Relations Board (the Board), who, issued a series of com- plaints against Respondent . At various' stages, preexisting complaints were consolidated with new and related com- plaints. The ultimate comprehensive consolidated com- plaints issued on August 28, 1980. That complaint was itself subsequently , amended at trial on motion of the General Counsel, either to supplement ' or modify allega- tions pertaining to individual employees who already fig- ured in the complaint, or to delete certain allegations as to which there was no prima facie evidence . In addition, successful settlement negotiations among the parties re- sulted in my granting of numerous requests for the with- 1 The trial was scheduled to commence on September 15 and I met with the parties on that date for pretrial discussions At the joint request of the parties, I did not open the record until September 16 in order to afford time to the parties to try to reach settlements in many of the indi- vidual cases originally noted for trial, and to review extensive records under subpoena and to reach stipulations Additional time for these pur- poses was likewise allowed after the record opened on, September 16. 2' Hereafter, all date references are to 1979 unless otherwise specified. 2 This was contained in the fifth order consolidating cases, consolidat- ed complaint and notice of hearing (G C Exb. l(uuu)), hereafter called the complaint or the ultimate complaint, for shorthand purposes. AXELSON, INC. 869 drawal and dismissal of specific charges and/or individ- ual situations from the overall case.4 II. THE ISSUES Although the scope of the complaint has been substan- tially narrowed by the settlement and other develop- ments indicated above, there remains a congeries of issues relating to Respondent's poststrike treatment of 29 individual employees, 26 of whom are covered by para- graph 10 of the complaint. In all outstanding cases, the General Counsel' maintains that the complained-of treat- ment constituted a form of impermissible discrimination by Respondent because the employees participated in the strike, thus violating Section 8(a)(3) and (1) of the Na- tional Labor Relations Act (the Act). The complaint did a singularly poor job of providing adequate notice of the real conduct by Respondent that was being challenged and, therefore, of the General Counsel's theory of violation, as is further discussed below, Paragraph 10 of the ultimate complaint, which the General Counsel conceded covered "90 per cent" of his- case, is couched in "discriminatory failure to recall" language, thus suggesting that the issue in the case of each of the persons named therein is whether or not Re- spondent had a job vacancy for, each such named indi- vidual about the date set forth opposite his name;5 and, if so, whether Respondent had legitimate and substantial business reasons for denying recall to that individual, notwithstanding the vacancy. It became evident during litigation, however, that most of the individual cases involved other questions than might be inferred from the language of complaint paragraph 10. I indicate the range of these other ques- tions below. Thus, as is set forth in greater detail within my find- ings, infra, there are several features common to groups of employees within the overall class of alleged discri- minatees, even though there are many individual nuances to a discussion of even those common features . Several employees were admittedly denied reinstatement after 4 More specifically, I granted requests for withdrawal and dismissal of allegations contained in the ultimate complaint , as follows: The entirety of Case 16-CA-8735 involving individual Charging Party Billy J Chism, resulting in the deletion of pars. 20 and 21 of the complaint; the entirety of Case 16-CA-8765 involving individual Charging Party Gary L. Drew, resulting in the deletion of pars 12 through 19 of the complaint, and all allegations pertaining to Marion E Williams, resulting in the deletion of par 23 of the complaint, and that portion of par. 24 pertaining to said Williams: Finally, par. 10 of the complaint, which alleged originally that 39 named employees had been discriminated against with respect to post- strike reinstatement, was amended, pursuant to withdrawal requests, to delete the names of 13 employees These employees , whose situations are no longer before me, are- Billy D. Skinner Arnulfo R. Aquirre S. R Lanier E. C Fletcher Wadell B. Thompson Joseph L. Hamilton, Jr Claude L. Porter Billy M. Northcutt Danny C. Reaves Albert P. Garcia John T. McDonald Jimmy Rowlett Billy J McElroy This was especially so in the cases of named individuals who were allegedly bypassed'on dates well after the strike was called off (see discu- sion below). the strike ended because Respondent claims that they forfeited their right to reinstatement by having engaged in unprotected misconduct during the strike. Several em- ployees were admittedly denied reinstatement to vacant jobs because Respondent believed that they had accepted permanent employment elsewhere and thereby had aban- doned rights to reinstatement (although Respondent later withdrew that position regarding all but one of them). Several employees were denied reinstatement after they failed to pass medical examinations, which were imposed by Respondent as a condition to their reinstatement. Concerning this latter feature, in some cases, Respondent initially denied reinstatement to some employees in those groups for having accepted permanent employment else- where, but later abandoned these defenses and offered reinstatement to some employees in those groups subject to the medical examination condition. Accordingly, some of the employees are alleged, in effect, to have suffered compounded, multiple-stage discrimination with respect to reinstatement. There is a group of unreinstated strikers whose indi- vidual situations have little in common, and about whom the General Counsel makes a variety of claims detailed elsewhere below-ranging from contentions that an un- reasonably short deadline was imposed on acceptance of a reinstatement offer to claims that, contrary to a general policy followed by Respondent of using seniority in recall, a more senior employee was denied reinstatement in preference to a more junior employee. The foregoing summary is intended to provide no more than a suggestion of the range of issues raised by the complaint herein. Respondent's defenses to the indi- vidual claims are too varied to be susceptible of summa- ry characterization and they are detailed in the case-by- case findings and discussions below. Suffice it to state here that Respondent denies all claims of wrongdoing. Respondent also affirmatively raises a 10(b) limitation de- fense regarding certain individuals, in addition to deny- ing any substantive wrongdoing. It may be useful at this juncture to address, as well, what issues I do not believe are properly before me for resolution. These comments are triggered by the General Counsel's attempts, after the closing of the record, and through the device of a brief, to suggest that Respondent discriminatorily bypassed or otherwise discriminated against certain employees at some point other than about the dates appearing in the complaint opposite their re- spective names. For reasons more fully set forth below, it is my judgment that the General Counsel's failure and refusal to accede to repeated and reasonable requests by Respondent and by me for clarification and/or amend- ments to his complaint, all the while averring that his complaint was "clear, concise, and adequate for notice purposes," estops him from such belated efforts to expand the scope of the complaint from that which he formally limited himself to. The unique background that estops the General Coun- sel from such shifts in position is as follows: Paragraph 10 of the complaint alleged initially that 39 individually named former strikers were denied "recall" by Respondent "Since on or about the dates set forth 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD beside their respective names, and continuing to date. ." (Emphasis added.) The dates selected by the General Counsel as the points at which named employees were wrongfully denied recall vary, name-by-name, from May 31, 1979, to as late as April 1980. Especially regarding those employ- ees who were allegedly denied recall on dates other than the date that the strike was called off (i.e., May 31), there is an implicit concession by the General Counsel that Respondent had no obligation to reinstate such em- ployees at any earlier date. These allegations, therefore, clearly relate to a bypass theory of discrimination. The language in paragraph 10 raises this immediate question: What, exactly, does the General Counsel mean by the ambiguous phrase, "and continuting to date" (which qualifies the allegation that, since a certain date, Respondent has refused to recall a certain employee)? The more obvious interpretation was that the General Counsel was merely expressing a claim that Respondent has persisted since the identified date in failing to recall a former striker to an appropriate job vacancy that first arose on the identified date.6 A less obvious possibility was that the General Counsel was trying to leave room for litigating a contention that some other independent or discrete act of discriminatory failure to recall oc- curred at some point after the identified date, when some other job vacancy may have arisen. Respondent had similar difficulties in interpreting ex- actly what the complaint intended to call into question. Because of this, on July 7, 1980, Respondent filed a motion to make more definite and certain about the alle- gations of paragraph 10;' There, Respondent argued, in substance,- that paragraph 10 of the complaint failed to indicate which of the hundreds of hiring and/or rein- statement decisions it had made were being called into question, thus rendering it ". . . impossible for Respond- ent to prepare and present a defense to whatever alleged- ly unlawful conduct it may be charged with." The General Counsel filed a reply8 in which it averred that paragraph 10, ". . . when viewed in conjunction with paragraphs 7, 8, and 119 . . . is completely clear 6 This interpretation is supported by the General Counsel's remarks at the outset of the trial in which he stated that the only aspect of his com- plaint that might require amendment was the allegation that Respondent had "continued" to fad to recall certain named former strikers. The Gen- eral Counsel explained that he had been made aware that Respondent had, after the issuance of the complaint , reinstated some of the employees about whom it had been alleged that Respondent was "continuing" to deny them reinstatement. Tr. 45 13-21 7 The General Counsel neglected to include Respondent's original motion for particulars in the formal papers, but promised on the record at the outset of the proceedings to supplement the exhibit file with this pleading as soon as time permitted . An exhibit number (2) was reserved for this purpose My review of the exhibits and the transcript reveals that the General Counsel failed to follow through I therefore direct that the General Counsel furnish the Board with the original and the requisite number of copies of that pleading for insertion into the record as the Board deems appropriate. s G C. Exh. 1(ooo). s The General Counsel was here referring to paragraphs that alleged, respectively, that Respondent's employees were engaged in an economic strike between February 18 and May 31, that the Union made an uncon- ditional offer to return on their behalf of May 31 , and that Respondent refused to recall the employees named in par 10 because of their union activities. and concise, adequately putting Respondent on notice of the unfair labor practices with which it is charged." In addition to the conclusionary assertion that paragraph 10 gave Respondent "clear and concise,. .. adequate .. . notice" of the actions being challenged by the complaint, the General Counsel contended that it was not required to "plead evidence," and asserted that Respondent was, merely attempting to obtain unwarranted, pretrial "dis- covery" of the General Counsel's evidentiary case., The General Counsel further claimed that Respondent's own hiring and other employment records were the best sources of information for Respondent to rely on in de- termining how to prepare to meet the allegations of para- graph 10, and represented that the General Counsel had issued a subpoena duces tecum for all such records, so that the same would be available to the General Counsel for use at trial. 10 It should be noted here that this posi- tion could only have been true if the dates in the com- plaint, were reliable-and they were not (see below). Respondent filed a timely reply" to the General Counsel's opposition in which it disavowed any attempt to obtain discovery of the General Counsel's evidentiary case. Rather, argued Respondent, all it wanted was -a "plain statement of the facts claimed to constitute an unfair labor practice."12 Addressing the General Coun- sel's assertion that Respondent's own; records would enable it to defend against the allegations of paragraph, 10, Respondent made the following observation: "This ... assumes that the dates listed [in paragraph 10] coin- cide with some action Respondent took which affected the rights of the alleged discriminatees, which they do, not." 13 In its reply, Respondent also expressed its dilem- ma most plainly when it said: Respondent asks simply: "To which positions were they [the discriminatees alleged in paragraph 10] en- titled and bypassed on the date, alleged?" 14 The foregoing pleadings were considered by Deputy Chief Administrative Law Judge James T. Barker, who issued a pretrial order on July 3115 denying Respond- ent's motion in light of the position taken by the General Counsel, but further providing leave for Respondent to make a motion before me to require the General Counsel ro A copy of the subpoena was attached to the General Counsel's re- sponse Rather than calling for identified records, however, the subpoena demands that Respondent prepare lists of employees falling into certain categories, together with various data pertaining to dates of hire, job classifications, etc As such, the subpoena was more in the nature of an interrogatory than an attempt to compel production of records. The trial transcript shows, however, that the-relevant records were available to the General Counsel throughout the roughly 3 months from opening to closing of the proceedings and that the General Counsel had early and ample opportunity to study them i 1 G.C. Exh. l(ppp). 12 Id at 2. 13 Id. at 3. In an extraordinary number of cases, it developed at trial that the dates chosen by the General Counsel bore little relation-some- times no relation whatsoever-to the evidence that the General Counsel adduced during his case-in-chief regarding the alleged bypassing of par- ticular individuals. Respondent therefore was not merely engaging in some pretense; but, rather, it had a genuine and reasonably grounded dif- ficulty in understanding what the complaint was challenging. 14 Id at 2. is G.C. Exh. l(sss). AXELSON, INC. "through opening statement or otherwise , to provide greater specificity and definition to the allegations of paragraph 10."16 At the outset of the trial, the General Counsel made an opening statement that he called a "general outline" of his "theory" of the case and which in no way clarified his position as to the meaning of the paragraph 10 "fail- ure to recall" allegations.17 Shortly before the General Counsel began his presen- tation of evidence, Respondent filed a second motion to make more definite and certain18 in which it again sought clarification from the General Counsel concern- ing which job classifications it had allegedly failed to recall the employees named in paragraph 10, and the names of the employees whom Respondent allegedly placed instead in the classifications that it allegedly should have filled by such former strikers. The General Counsel's response was simply to incorporate by refer- ence the opposition that he had filed to Respondent's pretrial motion for particulars. After extensive, but unilluminating colloquy I asked the General Counsel whether, based on the substantial opportunity he had enjoyed to review the records that he had subpoenaed from Respondent, he wished to make any amendments to the complaint "particularly with re- spect to paragraph 10 regarding the dates on which indi- viduals were bypassed." The General Counsel replied: "None at this time."19 It was by then, evident that the General Counsel was content with the allegations in paragraph 10 and had no intention to ' revise or clarify them. I cautioned the General Counsel that the trial would not be a "discovery" forum, and that the record would not become a "grab bag" for the introduction of evidence unrelated to existing allegations in the com- plaint, and that the measure of relevancy would not be whether evidence might support some potential discrete violation that was never clearly alleged, but whether it related to issues framed by the complaint in its then-cur- rent form. I further entreated with the General Counsel to make whatever amendments or clarifications were necessary to give Respondent appropriate , plain notice of any conduct that the General Counsel wished to chal- lenge, remarking that he would not be permitted to pro- mulgate theories of violation at his leisure, after review- ing the record and seizing on incompletely litigated mat- ters that might suggest a potential violation . 20 With those admonitions, I denied Respondent's motion, view- ing the General Counsel's stated position as being tanta- mount to a binding assurance that the dates in paragraph 10 were the only dates on which the General Counsel was contending that a bypassing violation took place re- garding a named individual. I therefore reject, pro forma, the General Counsel's belated efforts in many instances to resurrect a violation by reference to some evidence arguably tending to show 16 Id. at 2. 17 Tr. 9-10. is R Exh. 1. " Tr. 43.18-44:3. 20 Tr. 44.19-45:12; 49.14-24. See also Tr. 177-183:6; 460.11-464.20; (es- pecially 461:19-24; 463:8-464:20); 471:22-472:7; 638:9-639.15; 822 8- 828:15; 996:4-10, 999:5-1000 : 12; 1001 .8-1002:1 ; 1977:15-1983.25. 871 that Respondent wrongfully "bypassed" or otherwise discriminated against a former striker named in para- graph 10 at some point other than the date that the Gen- eral Counsel chose to use in the complaint. The General Counsel „imply had too many opportunities that he chose not to avail himself of to amend or clarify his complaint to give plain notice of such potential independent viola- tions; and to entertain any such belated attempts to expand the scope of the complaint would only encourage the type of mischievous shell game' that the General Counsel sought to play with his "real" theory of viola- tion as to certain individuals.21 Accordingly, while I have thoroughly reviewed the entire record, I do not dwell below on any evidence sug- gesting that Respondent may have committed some vio- lation or engaged in some irregularity of treatment with respect to returning strikers except insofar as it bears a reasonable relationship to the date chosen by the General Counsel in paragraph 10 of the complaint as the date on which a violation first occurred and became perfected. Nothing else was properly noticed for litigation and nothing else was fully litigated.22 All parties had full opportunity to participate in the trial proceedings and to submit posttrial briefs.23 On the entire record, I reach these FINDINGS OF FACT III. PRELIMINARY CONCLUSIONS A. Respondent's Longview Operations Respondent, a subsidiary of U.S. Industries, Inc., is in- corporated in Delaware and manufactures oil production and refinery equipment at its plant in Longview, Texas, the only facility involved herein.24 Until its status was challenged in a still-unresolved representation proceeding (see below), the Union was the recognized representative of production and maintenance employees at the Long- view plant and had occupied that status for at least 20 years (even though there were intervening ownership changes). 21 The extent of the General Counsel's attempted shifting of positions regarding certain individuals is indicated in my findings below in the sec- tion labelled "Miscellany " It is elsewhere likewise apparent that the "bypass" dates in the complaint were often misleading and unreliable, but I have ignored those aberrations because the real issues were readily evi- dent and the facts underlying them were fully and fairly litigated. 22 See, e g, Camay Drilling Co, 254 NLRB 239, 249 at fn. 9 (1981), in which the Board made a similar disposition under far less aggravated cir- cumstances than those presented by the General Counsel's conduct here. 22 The original due date for briefs here was January 9, 1981. I granted three additional extension requests filed by Respondent for good cause shown and in the absence of any opposition thereto by the other parties The General Counsel and Respondent submitted briefs before the final due date of March 11, 1981 The former's brief was largely confused and/or obscurantist in character; the latter 's was helpful 24 During the representative calendar year preceding the issuance of the complaint, Respondent purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside Texas and also sold manufactured products valued in excess of $50,000 directly to customers located outside Texas 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Strike The most recent labor agreement between those par- ties expired at midnight on February 18. The approxi- mately 320 employees in the bargaining unit immediately thereafter began an economic strike25 that lasted until May 31, at which time the Union formerly notified Re- spondent by telegram as follows: Be advised that Local Lodge 1923, I.A.M. is re- moving it's [sic] picket line effective this date and all employees in the I.A.M. bargaining unit will be returning to work unconditionally.26 C. Respondent's use of Replacements and Striker Recall Program Respondent continued to operate during the strike. Al- though the entire unit of employees initially joined the strike, an undisclosed, but apparently small, number of strikers abandoned the strike and returned to work before it was called off. Respondent also hired replace- ments on a wholesale basis .throughout the strike. Al- though the record does not disclose the precise number of replacements hired during the strike, I infer from a va- riety of sources that the jobs of virtually all strikers who did not return to work before May 31 were filled by re- placements.2 7 25 Respondent argues at the outset that the General Counsel never es- tablished a principal element in its prima facie case that the striking em- ployees in question were engaged in concerted activity protected by Sec. 7 of the Act In this regard, Respondent stresses that the General Coun- sel never demonstrated that the Union gave the appropriate 60-day notice required by Sec 8(d) of the Act before the strike began. I reject that contention Striking to obtain a new labor agreement is, prima facie, pro- tected activity and the burden is on Respondent affirmatively to plead and prove such an 8(d) defense Greens Disposal Service, 253 NLRB 404 (1980). Respondent failed to do this In any case, Respondent waived any such defense through its announced policy of offering reinstatement to former-strikers as job openings developed (see findings, infra). It thereby condoned the strike insofar as there might have been a failure by the Union to comply with the 8(d) requirements See, e,g., Teamsters Local 805 v. NLRB, 312 F 2d 108, 113 (2d Cir 1963), Packers Hide Assn. V. NLRB, 360 F 2d 59, 62 (8th Cir. 1966), and cases cited 26 This was an effective offer on behalf of all strikers. Home Insulation Service, 255 NLRB 311, 311-312 ( 1981) It thus triggered their recall and reinstatement rights set forth in NLRB v Fleetwood Trailer Co, 389 U S. 375 (1967), and Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir, 1969), cert denied 397 U S 920 (1970) Moreover, each former striker here except J. E. Allen and Floyd S Snider personally delivered or otherwise transmitted individual notices to Respondent indicating his unconditional offer to return to work Finally, Respondent has treated all alleged discrimmatees here as having Laidlaw recall rights, save only those accused of being ineligible for reinstatement for one or more specif- ic reasons, such as strike misconduct, or permanent employment else- where 27 E g , John Teegerstrom, Respondent's manager of industrial rela- tions who assumed that position in July, credibly testified without contra- diction that when he came on board there were still 200-300 unremstated strikers, even though the recall of former sinkers had been in progress since shortly after the strike ended In addition, J D Crow, the Union's grand lodge representative who appeared at trial on behalf of the Union, stated (in the nature of a concession from counsel table ) that as of May 31, " the Union knew that they [i e , Respondent] had pretty well a full complement of employees working There were not any vacancies immediately " 1. Status of replacements This record contains no direct, affirmative, evidence that the replacements that Respondent hired were "per- manent," rather; than "temporary"; but it is nevertheless implicit from the pleadings and from other noticeable records that the replacements were, in- fact, permanent. Thus, as noted above, the complaint` (par. -10) 'does not uniformly allege that all former strikers should have been reinstated as soon-as the strike was called off and the Union made an unconditional offer on behalf of the strik- ers to return to work-an allegation that clearly would have been included if there were any question about the "permanency" of `the replacements. Instead, the allega- tions that many of the employees should have been re- called-on certain dates well after the conclusion of the strike constitute an implicit, concession by the General Counsel that Respondent had no obligation to return those employees until such time as their jobs were vacat- ed by the individuals hired in their stead; and this is tan- tamount to a concession that those replacements were "permanent." Further, the General Counsel has never af- firmatively contended in any manner that the replace- ments were mere temporaries-neither during the litiga- tion nor' on brief. I also take administrative notice from the record in the related RD case '(further discussed below)" that replace- ment employees voted in the September 13 decertifica- tion election without challenge to their eligibility on the grounds that they were temporary. Finally, and most di- rectly probative, Employer's Exhibit 23, received in the RD case and appended to the hearing officer's' report to the Board, is a notice dated May ' 18, 1979, from Re- spondent's president to all employees in which Respond- ent seeks to reassure both strikers and replacements con- cerning their respective employment rights. There, re- placements are told that they' are "permanent" and that .. the Company intends to protect-the employment security rights of these permanent replacements"; and strikers are told that they will not be terminated, but will "be eligible to fill jobs which [are presently, or will become] available." Thus, by this message, if by not other means, Respondent made it clear to replacements hired during the strike that they occupied' "permanent" status-and did so before any of the former strikers in- volved here and made unconditional offers to return to work. Associated Grocers, 253 NLRB 31, 31-32 (1980). Accordingly, while Respondent'has the conventional burden of proving that replacements were "permanent" as a defense to a failure to reinstate an economic striker who has unconditionally offered to return to work, the foregoing factors permit the general finding here that the replacements were permanent. 2. Recall program Principle features of Respondent's striker recall pro- gram28 were: 1. When a vacancy in a particular classification arose, the job was offered to an unreinstated striker on the basis 28 The recall program was nondiscriminatory in its general outlines and it is not challenged by the complaint. AXELSON, INC. of "classification seniority"; that is, the offer went to the striker who had held the classification for which there was a vacancy for the longest time. If that person de- clined the offer, the next most senior striker in that clas- sification received the offer, and so on. 2. If there were no unreinstated strikers who held the particular classification for which there was a vacancy, a reinstatement offer was made to the most senior unrein- stated striker who was qualified to fill the vacancy. If that person declined the offer, it was made to the next most senior qualified person, and so on.29 The reinstatement program was still being implement- ed at the time of the trial here, although the number of yet-to-be reinstated strikers had been reduced to about 30, crediting Teegerstrom's uncontradicted testimony. D. The Decertification Election and Aftermath On the same day that the strike was called off, a de- certification petition was filed in Case 16-RD-841 by a petitioning group calling itself "Employees, of Axelson, Inc." Pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted at 'Re- spondent's premises on September 13. As of that time, Respondent had not formally communicated to any of the former strikers that they had been terminated for any reason. During the strike, however, Respondent had monitored instances of arguable strike-related misconduct by individual strikers, and had also made some effort to determine whether some of the strikers had obtained sub- stantially equivalent employment elsewhere. In anticipa- tion of the election, Respondent reviewed its records and prepared a list containing the names of former strikers who it believed had either engaged in strike misconduct worthy of discharge or who had obtained substantially equivalent employment elsewhere. The list was to be used by Respondent's observer at the election to chal- lenge any-of the listed former strikers who might appear to vote. Shortly before the election, Respondent fur- 29 Between May 31, 1979, and February 29, 1980, Respondent notified all strikers of each such vacancy by registered mail at a cost of $3 15 per letter. All strikers were thus given an opportunity to "bid" for the vacan- cy and the selection was made as indicated above. This was an expensive and time-consuming process and Respondent altered that procedure about February 29 by thereafter sending to all unremstated strikers (except those deemed ineligible for reinstatement ) letters containing an enclosed "Reinstatement Bid and Acceptance" form in which the recipi- ent was to list all classifications for which he was willing and believed himself qualified to bid (see R Exh 10 as a specimen) This modified procedure was likewise free from any general challenge by the General Counsel's complaint-the only dispute being whether it was fairly applied in certain instances As Respondent notes on brief and the evidence no- where contradicts: The new program provided Respondent with advance knowledge of qualified bidders and the classification(s) to which each desired and would accept reinstatement Thus the cost was reduced to but a single letter to the successful bidder. Likewise, the greatly simplified procedure resulted in a corresponding reduction of time expended, a decided benefit to strikers who were reinstated much more quickly. [R. Br. at 27-28 ] Neither did a striker's bid for, or acceptance of, reinstatement to a job outside his classification preclude him from eligibility for reinstatement to a later vacancy in his prestrike classification, when and if one developed See, e g., testimony of General Counsel's witness Billy Northcutt as to his February 27, 1980 conversations with Respondent's representatives Hink and Teegerstrom 873 nished a copy of its "challenge" list to the RD petitioner for use by its own observer. - The September 13 election results were inconclusive. Of the 455 ballots cast, 67 were challenged by one of the parties, including many challenged by either Respond- ent's or the RD petitioner's election observer, using Re- spondent's challenge list. The challenges were sufficient to affect the election outcome and a hearing was subse- quently held by a Region 16 hearing officer. Respondent and the RD petitioner acquiesced as to some unfavorable recommendations made by the hearing officer to the Board and filed exceptions as to others. On August 15, 1980, the Board issued a Decision and Direction (report- ed at 251 NLRB 282) generally sustaining the hearing of- ficer's recommendations, and directing that certain of the improperly challenged voters' ballots be opened to deter- mine whether they would be conclusive of the election results. I am administratively advised that there are still additional proceedings pending in connection with the RD case and that the representation issue remains unre- solved. I advert below to the RD proceedings as they may be relevant to discussion of particular cases. E. Employees Initially Denied Reinstatement 1. Background The nine former strikers (C. C. McKee, Otis D. Nich- ols, Donald E. Brightwell, Robert Washington, R. D. McGrede; Robert H. Brenner, John E. Kemp, Bobby J. Ballard, and Donald L. Sapp) received identical letters from Respondent between October 1 and-Novehiber 16, signed by Teegerstrom, which stated, in pertinent part: Be advised that under current reinstatement proce- dures you would have been notified of reinstate- ment this week, however, insofar as you have been deemed to have accepted permanent employment elsewhere, you' were not offered reinstatement. All these individuals had been challenged for the same reason (permanent employment elsewhere) when they had appeared to vote in the RD election, but the chal- lenges were overruled by the Board, in agreement with the hearing officer's recommendation. At trial, Respond- ent sought to show only in the case of Donald L. Sapp that he had obtained such permanent employment else- where. In the case of the others, Respondent expressly disclaimed any defense based on their alleged permanent employment elsewhere30 and it did not introduce any evidence bearing on such a defense. Under Fleetwood, supra, and Laidlaw, supra, economic strikers are entitled to reinstatement to vacant jobs on their unconditional application to return to work unless they have acquired, in the meantime, "regular and sub- stantially equivalent employment elsewhere."31 There is a rebuttable presumption that economic strikers remain in the status of employees of the struck employer; and the burden is on the employer to rebut that presumption ao Tr 200-20-2013 The only exception filed to the hearing officer's recommendation in this area was Respondent's exception as to Sapp- 31 389 U.S at 381; 171 NLRB at 1370 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as to any striker, to whom it denies reinstatement on the grounds that the striker abandoned his job by accepting employment elsewhere. Woodlawn Hospital, 233 NLRB 782, 790-791 (1977), and authorities cited.32 The letters sent to each of the nine employees under discussion here are clearly an admission by Respondent that there were vacancies in their prestrike jobs to which Respondent would have reinstated each of them but for Respondent's belief that he had obtained "permanent em- ployment." Teegerstrom elsewhere so testified. I so' find. 2. Conclusions regarding McKee, Nichols, Brightwell, Washington, R. D. McGrede, Brenner, Kemp, and Ballard I consider first the cases of the eight former strikers about whom Respondent offered no evidence of their al- leged "permanent employment elsewhere." Even regard- ing these admitted cases of refusal to reinstate, in which Respondent failed in its burden of coming forward con- cerning the "permanent employment" defense, Respond- ent nevertheless stresses that its motivation in denying them reinstatement was free of discriminatory taint. In this regard, it argues, in substance, that it had reasonable grounds for believing that the eight employees in ques- tion had obtained other permanent employment, that it was faced with a "dilemma" in attempting to balance their rights against those of other strikers awaiting rein- statement, that it intended to use the RD challenged ballot, procedures as the forum for resolving its claims, but that there had been no resolution in the RD forum at the time that the vacancies arose for the eight now in question. Accordingly, argues Respondent, it relied solely on its view about the "economic equities" in deny- ing reinstatement to those eight (who were known, at least, to have other jobs) so as to accelerate the reinstate- ment of eight other strikers awaiting recall (who were not believed to be in regular jobs elsewhere).33 I conclude that Respondent may not now be heard to argue that, simply because it judged wrongly about the adequacy of its evidence concerning the "permanent em- ployment elsewhere" of the eight employees in question, its good-faith belief on the subject nevertheless should permit it to escape liability for failing to reinstate these former strikers to the admitted vacancies in their former jobs. I reach this result whether Respondent's denial of reinstatement to them may be characterized as being "in- herently destructive" of their rights under the Act, or whether such conduct may be deemed to have had only a "comparatively slight" impact on their rights.34 S2 But see discussion below, dealing with Sapp, about whether the Board regards as adequate to an employer's carrying of its burden even unmistakable proof that a striker had obtained "regular and substantially equivalent employment" without additional evidence of an intentional abandonment of the prestrike job by the striker. 2a See R. Br. 97-100. 34 In NLRB v. Great Dane Trailers, 388 U S. 26 (1967), the Court in- structed that when an employer's treatment of strikers falls into the former category, no proof of antiumon motive is required, and the Board may find a violation even if an employer comes forward with evidence tending to show that nondiscriminatory business considerations influ- enced the challenged conduct, but that when the challenged conduct falls into the latter category, an employer may escape liability under the Act by showing that such business considerations influenced its actions, unless As a matter of law, the cases appear to hold that the denial of reinstatement to his former, vacant, job to a former striker who has unconditionally offered to return, is conduct that falls into the "inherently destructive" cat- egory, thereby rendering the question of the employer's actual motive entirely nugatory, unless the employer proves as an affirmative defense that the employee had already forfeited his reinstatement rights. Woodlawn Hos- pital, supra, and authorities cited. See also Markle Mfg. Co., 239 NLRB 1142 (1979), in which the Board adopted the decision of the administrative law judge who stated (id. at 1150): "Denial of reinstatement to economic strik- ers is inherently destructive of important Section 7 rights, including the right to strike." If this is so, then the refusal to, reinstate a former striker to his former, vacant, job, under the present circumstances, is something in' the nature of a per se violation of the Act, regardless of the employer's actual motive. Accordingly, where Respondent was unable to per- suade the Board in the RD cases that the eight individ- uals in question had forfeited their employee status with Respondent by obtaining other regular and substantially equivalent jobs; and where Respondent elected, in the trial before me not to introduce "permanent employ- ment" evidence regarding the eight, it is irrelevant that Respondent may only have been motivated by a desire to help -out more needy former strikers awaiting recall when it denied reinstatement to the eight. Alternatively, if the harm to the Section 7 rights of the former strikers in question by Respondent's refusal to re- instate them to vacant jobs be deemed "comparatively slight" and if I were thereby entitled to consider the merits of Respondent's defense as outlined above, I would conclude that Respondent's professed reasons did not amount to "legitimate and substantial" business rea- sons. It is, of course, praiseworthy that an employer be concerned with the interests of all its strikers awaiting recall; but no authority has been cited to me that sug- gests that it is "a business consideration" for an employer to refuse to reinstate a striker awaiting recall to his vacant job just because some other former striker might arguably "need" the work more than the striker whose job has become open. Accordingly, Respondent's pro- fessed motive does not qualify in my view as a legitimate and substantial business reason within the intendment of Great Dane, supra. Moreover, I do not believe that Respondent's pro- fessed doubt about the "permanent employment else- where" status of the eight-coupled with concern about more needy strikers awaiting recall-was the true reason it denied them reinstatement. If it had a genuine doubt about their interest in returning to work, notwithstanding that they had individually tendered unconditional return offers at the conclusion of the strike, it could have re- solved the same merely by asking them what their inten- tions were. Thus, Respondent's "dilemma" has a con- trived quality to it. Finally, according to the hearing offi- cer's report in the RD case, no evidence was offered by the General Counsel comes forward with specific and persuasive evi- dence of an actual antiunion motivation harbored by the employer (id. at 33-35). AXELSON, INC. 875 Respondent (or the RD petitioner) in support of its chal- lenges to Robert Washington, R. D. McGrede, and John Kemp on the grounds of "permanent employment else- where." (G.C. Exh. 13, p. 17.) Neither did it offer such evidence in the trial before me. These factors sustantially undermine Respondent's threshhold argument that it had a "good faith belief" that the employees in question had such other permanent employment. Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by its admitted refusal to 'reinstate former strikers McKee, Nichols, Brightwell, Washington, R. D. McGrede, Brenner, Kemp, and Bal- lard when their former jobs became vacant .35 Since the first four just named were later offered reinstatement (after the hearing officer's report in the RD case issued) but were still later denied the same for failure to pass a medical examination, I return to them again, below. 3. Donald L. Sapp a. Introduction and findings As noted above, the question whether Sapp had aban- doned his struck job with Respondent by accepting per- manent employment elsewhere was fully litigated before me, just as it had been fully litigated in the RD case forum, in which the Board rejected Respondent's conten- tion and found that Sapp had retained his employee status with Respondent and was eligible to vote in the September 13 election. With matters in this posture, there is a potential pre- liminary question: Is Respondent entitled, given the Board's rule against relitigation,36 to relitigate in this "related subsequent unfair labor practice proceeding" the same issue that it litigated in the RD forum and that the Board has expressly decided? It maybe that the cited rule is inapplicable to the in- stant situation that involves "exceptions" from a hearing officer's report and recommendations , rather than a "re- quest for review" of a regional director's decision, al- though there , is no obvious policy reason for such a dis- tinction. In any case, the rule against relitigation may be waived by a' failure to object to such relitigation. City Motor Co., 114 NLRB 298 (1974), Barwood, Inc., 209 NLRB 19 (1974). See also G. M Masonry Co., 245 NLRB 267, 270 at fn, 10 (1979). 1 conclude that the full litigation of the matter before me without objection by the General Counsel or by the Union amounted to such a waiver. The question is therefore before me for de 15 The complaint alleges that each of these individuals was discrimina- torily denied reinstatement on the date that appears on the letter from Respondent advising that "you would have been notified of reinstatement this week." In the absence of more specific proof about precisely when the vacancy arose for each individual, I agree, for purposes of backpay computation, that those dates are reasonable and appropriate (see the remedy section, infra). as Sec 10267(f) of the Board's Rules and Regulations, dealing with situations in which a request for review may be filed with the Board in a representation case, states in pertinent part: Denial [by the Board] of a request for review shall constitute an af- firmance of the Regional Director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. novo consideration based on the record made in the in- stant trial. There is this undisputed evidence in the record, which I credit: Sapp had begun employment with Respondent in 1974 and had worked there continuously until the 1979 strike. His' prestrike classification was tool and cutter grinder-A, for which he was earning $6.92 per hour when he answered the strike call.37 Before the strike ended, on May 7, Sapp applied for and was hired at Vought Corporation, located in Longview about 3 miles farther from his residence than Respondent's plant is. Sapp was hired by Vought as a tool and cutter grind- er-C, earning about $7.75 per hour .38 Sapp conceded, however, that the job he performed at Vought was virtu- ally the same as that he performed at Respondent's plant. As Sapp further admitted, "fringe benefits" at Vought were "probably better" than those at Respondent. Cred- iting Vought's representative, Baxter, who interviewed Sapp on May 7, the top rate for the tool and cutter grinder-A classification was $9.21 per hour (under Vought's labor agreement with the United Auto Work- ers Union at the time) and Sapp could have expected to have been earning that much by the time of the instant trial.39 Sapp himself conceded that his earnings potential at Vought was greater than at Respondent; Sapp was earning $8 .02 per hour at Vought as of January 11, 1980, at which time he was laid off by Vought , with recall eli- gibility there until 1983 . He voluntarily joined the union at Vought after working there for about 60 days. Notwithstanding his, then-current employment at Vought, Sapp personally delivered a written uncondi- tional offer to return work to the guard at Respondent's plant shortly after the strike ended , and Respondent con cedes that it received that offer .40 He also appeared to vote in the September 13 RD election and his ballot was taken under challenge. He later received ' the above-de- scribed November 16 letter from Respondent in which he was deemed ineligible for reinstatement due to perma- nent employment elsewhere. He testified at the RD hear- ing on challenged ballots held between November 26 and December 5 and, in effect, denied that he intended to abandon his job with Respondent by taking the job at' Vought. There is a conflict in testimony regarding the precise nature of Sapp's discussions with Vought's representative Baxter during his initial employment interview. Sapp, who testified only summarily on the subject, states that he was never told that the Vought job was "permanent" and denies that he ever agreed to take it on a `,`perma- nent" basis. On the contrary, states Sapp, he inquired about his possible tenure there and was told by Baxter that ". . . he couldn't promise me that the plant would even be there in 6 months, that they were considering taking all the work to Dallas." Baxter flatly denied this, stressing that the Vought plant at Longview had a 40- sa The then top wage rate for that classification at Respondent was $8 82 per hour sa Relying here on Sapp's second, and more deliberate recollection on cross-examination (Tr 661-662) se Sapp was employed at yet a third employer by the tune of this trial. 40 R. Br 112. 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD year lease with the county, that there were no plans to move to Dallas, and that he would never have disclosed to Sapp, as a skilled applicant whom Vought was inter- ested in hiring on a "permanent" basis, - anything that might have tended to dissuade Sapp from accepting em- ployment. Baxter further contradicts Sapp's denial that the subject of "permanency" of the Vought job ever came up in the employment interview. Baxter recalls that he specifically asked Sapp if he was seeking a "perma- nent" arrangement and that Sapp replied: "I am looking for permanent employment." Baxter further testified that another of Respondent's former strikers, J. D. Burkett (whose situation is discussed elsewhere below), was denied hire by Vought, even though he possessed excel- lent skills qualifications, because Burkett had pointedly told Baxter that he only wanted work at Vought until the strike at Respondent terminated. Burkett corrobo- rates this. Baxter states that it was the policy at Vought to hire only persons who were interested in permanent employment, and the only reason he sent Sapp on for ad- ditional interviews with Vought Supervisor Bassett was because Sapp had expressly affirmed his interest in per- manent employment. I credit, Baxter over Sapp on the details of the inter- view and -the matter of whether or not permanent em- ployment with Vought was discussed. Baxter was a more impressive witness from a demeanoral standpoint. It is, moreover, unlikely, as Baxter emphasized, that he would be willing to take an applicant who was unwilling to make a "permanency" commitment; and it is just as un- likely that Baxter would have made some reference to Vought's plans to move the plant, or its work, to Dallas. Moreover, as' l find below, it is uncontradicted that Sapp later invoked the fact that Vought representatives had referred to the job as being "permanent" when Sapp was laid off by Vought. Sapp also ' testified that Vought Supervisor Bassett asked him whether he was still interested in returning to Respondent when the two men happened to meet at the RD case hearing on challenges and objections in Novem- ber, and that Sapp replied: "I'd go back in a minute." Bassett denied having any conversations- whatsoever with Sapp at that time. He further recalled that the only time that he had any discussion with Sapp about the "permanency" of Sapp's job at Vought was when Sapp was laid off by Vought in January 1980. At this time, states Bassett, Sapp bitterly protested to Bassett: "Well, Doyle, this job is not,permanent after all:" Sapp was not recalled by the General Counsel to deny making this statement. I credit Bassett's denial of the November ex- change with Sapp based on his superior demeanor and his lack of any personal stake in the outcome. I credit Bassett's account of the January 1980 layoff exchange with Sapp for the same reasons and because Sapp never denied it. b. Conclusions I note at the outset that the hearing officer, whose rec- ommendation concerning Sapp's voting eligibility in the RD case was sustained by the Board, relied on three Board representation case decisions as presenting facts comparable to those presented by Sapp's situation, as it was disclosed in the RD hearing record.41 Although I am not bound by the disposition made on a different record of Sapp's situation, and although the Board has stressed in the lead case in this area that such issues must' be decided on a case-by-case basis,42 neither am I enti- tled to ignore the Board's disposition of such issues when the facts before me are not significantly distinguishable from those cited by the Board in such prior decisions. I would be inclined to agree with Respondent that Sapp's job with Vought was both "regular" and "sub- stantially equivalent" to his job with Respondent in the sense that the Court used those-terms in Fleetwood, supra. See also the definition of "employee" contained in Sec- tion 2(3) of the Act, excluding therefrom "any individual whose work,has ceased as a consequence of . . . any current labor dispute . . . and who has . . . obtained any other regular and substantially equivalent employment." (Emphasis added.) Moreover, there is substance in Re- spondent's argument that, if there is any way of divining ex post facto, by objective evidence,43 that a striker in- tended to abandon his struck job and to cast his lot with a new employer, the proven facts with respect to Sapp's taking "permanent" employment at Vought, his volun- tary joining of the union there, and the fact that the Vought job provided better pay and benefits, are all highly probative indicators that Sapp would not wish to retain recall rights to his struck job. Neither do I find it persuasive, as the General Counsel argues, that the Vought job turned out to be somewhat insecure from the standpoint of frequency of layoffs. There was no show- ing that Sapp had any awareness of a higher potential for layoffs at Vought, than at Respondent when he accepted the Vaught job. On the other hand, the Board has plainly held that a striking employee -who accepts a job tendered as "perma- nent" does not necessarily thereby evidence a desire to "abandon" his. struck job. Pacific Tile & Porcelain, supra - at 1362-1363. And in Roylyn, Inc., supra, the Board adopted the hearing officer's recommendation that em- ployee Keith, did not abandon his struck job even though it was assumed to be true that Keith "secured other em- ployment at a higher rate of pay and told his new em- ployer that he was abandoning his job at Roylyn" (id., 179 NLRB at 202). Moreover, any suspicion that these cases have lost their precedential force is put to rest by the Board's recent acceptance of the hearing officer's re- liance on them in overruling the challenge to Sapp's vote in the RD proceeding. Indeed, at footnote 5 of the Board's Decision and Direction therein, the Board ex- pressly disavowed any reliance "on whether their [i.e., Sapp's, et al.] outside employment was substantially equivalent or whether their pay was comparable."44 , 4r The hearing officer cited these cases (edited to correct hearing offi- cer's misspellings): Pacific Tile & Porcelain Co„ 137 NLRB 1358 (1962), and the Board's treatment of employee Kuldmey at 1362; Roylyn, Inc., 178 NLRB 197 (1969), and the Board's treatment of employee Keith at 202; and Q-T Tool Co., 199 NLRB 500 (1972), and the Board's treatment of employee Elliott at 502. 42 Pacific Tile & Porcelain, supra, 137 NLRB at 1359; see also Little Rock Airmotive, 182 NLRB 666 (1970), citing factors relevant to the ques- tion of "abandonment." 43 Q-T Tool, supra, 199 NLRB at 502 fn. 14. 44 Axelson, Inc, 251 NLRB 282 at fn. 5. AXELSON, INC. This is the plainest indication that I have been able to discern in Board annals that-the acceptance of "regular and substantially equivalent employment" by a striker is, standing alone, wholly inadequate as a basis for inferring the striker's intention to "abandon" his struck job. Thus, if any rule may be distilled from the Board's holdings, it would appear to,be this: A striker may retain his employee status with the struck employer even if he takes a regular and substantially equivalent position else- where; and he retains the option to demand and accept reinstatement by the struck employer unless he shows either by express admission to the struck employer45 or by other unmistakable conduct46 that he no longer wishes to claim his struck job. Accordingly, and noting particularly that Sapp had af- firmatively tendered to Respondent an unconditional offer to return to work at a point after he had taken the job with Vought and before a vacancy had occurred in his struck job, I conclude that Respondent has not met its burden of showing that Sapp abandoned his right to reinstatement merely by taking a regular and substantial- ly equivalent job at Vought. Respondent therefore violated Section 8(a)(3) and (1) of the Act by admittedly refusing to offer reinstatement to Sapp when an admitted vacancy occurred in his struck job about November 16. F. Poststrike Discharges for Alleged Strike Misconduct 1. Background The record adequately reveals that the 3-1/2-month strike was not entirely peaceful, and that there were intermittent acts and threats of violence as between the class of strikers and the class of nonstrikers and replace- ment employees. Respondent sought to monitor closely the activities of strikers on the picket line and other ac- tivities involving harassment and/or threats occurring away from the immediate plant premises. In March, Re- spondent's attorney sought and received a temporary re- straining order from the district court for Gregg County, Texas, temporarily restraining and enjoining the Union and many of its officers, agents, and other named indi- viduals associated with it from engaging in a variety of disruptive and threatening acts, including molestation or intimidation of Respondent's guests, employees, or cus- tomers; mass picketing; following persons leaving Re- spondent's premises;. and other like behavior.47 As earlier noted, Respondent accumulated data per- taining to arguable misconduct on the part of its striking employees, but did not immediately discharge any em- ployees for such misconduct, preferring to let hard feel- ings dissipate and to sift and winnow from its files only those cases that it believed warranted the penalty of dis- charge-and then only at a later date when and if a rein- statement decision needed to be made that might be trig- gered by a job vacancy in a classification for which a 45 See, e.g, the Board's treatment of Milton Smith in Trinity Valley Iron & Steel Co, 158 NLRB 890, 903 (1966), in contrast to Elliott in Q-T Tool, supra, and Keith in Roylyn, Inc. supra 46 See, e.g, the Board's treatment of Moran in Drug Research, Inc, 233 NLRB 253, 261 (1977). 47 See R Exhs. 39 and 40. 877 "suspect" striker might otherwise be recalled. The Sep- tember 13 RD election forced Respondent's hand prema- turely by requiring it to determine which former strikers it would challenge on the grounds that their strike mis- conduct justified refusal to reinstate them. The sifting process was completed shortly before the election and Respondent selected 10 individuals for challenge on this basis, instructing its own observer in this regard and fur- nishing the RD petitioner with a copy of its challenge list. Only nine of the "suspect" individuals appeared to vote and they were challenged. Only six of them are in- volved here.48 Respondent sought to litigate the basis for these chal- lenges in the postelection hearing, but was precluded from doing so by the hearing officer for reasons that are not here pertinent. The Board sustained this approach concerning six now under discussion, noting the penden- cy of these proceedings and deeming it "better practice" to determine their eligibility status only if the counting of other overruled challenged ballots failed to be determina- tive of the election results, and preferring to be "guided" by the outcome of this case.49 After election, Respondent formally notified four of the six former strikers (Dorsey, J. G. McGrede, Wil- liams, and Bryant) by identical letters, mailed between October 1 and 15, as follows: We have thoroughly investigated our activities during the strike and therefore have concluded that you are not eligible for reinstatement. Consequently, your employment was terminated as of September 12, 1979. In addition, former striker' William Pegues received a certified mailing dated November 12 from Respondent containing a standard form termination notice indicating that Pegues was terminated by Respondent, with No- vember 8 indicated as the effective date of such action, but without containing any reason.50 Finally, former striker S. L. Curtis, although admitted deemed by Re- spondent to have been ineligible for reinstatement due to alleged strike misconduct, never received any formal written notice to that effect. 2. Legal setting It is established that "in order to vindicate the broader interests of society as a whole," a striker may forfeit the protection of the Act and may be discharged for his strike-related actions if they amount to "flagrant or egre- gious" misconduct. It is equally settled that undue stric- tures on employees' exercise of their rights to strike and to engage in other concerted activities protected by Sec- 411 Clarence J. Dorsey, S L. Curtis, William Peguess, Jimmy G McGrede, Q. Ray Williams, and William J Bryant. Although other em- ployees involved here were challenged for strike misconduct, Respondent expressly disavowed that as a defense to the complaint allegation that those others were wrongfully denied recall on certain dates (Tr. 200:20- 201:3) Instead, Respondent sought to show that there were no vacancies for those employees on the dates set forth in the complaint (see findings and discussion in sec 111,H, infra). 4s 251 NLRB at 282. 50 G C Exh 9. 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions 7 and 13 of the Act could be imposed if every act of "impropriety" committed by a striker "in a moment of animal exuberance" and as part of the "normal give and take of a labor dispute" were deemed sufficient to place him outside the Act's protection. W. C. McQuaide, Inc., 220 NLRB 593, 594 (1975). And in the cited case, the Board applied these distinctions as follows: Regarding three strikers who had in certain instances on the picket line "verbally abused or threatened replacements [the Board concluded that] their language was not accompa- nied by any physical acts or gestures that would provide additional emphasis or meaning to their words sufficient to warrant finding that they should not be reinstated to their jobs."51 By contrast, however, as to three strikers, one of whom had "elbowed" a strike replacement and threatened to "knock his block off," and all three of whom had pounded on vehicles while threatening to "beat-up" the occupants, the Board concluded that: ... this conduct combined threats of personal physical injury with actions that would tend to give import to the expressions of violence and was there- by sufficiently egregious to move them from the protective mantle of the Act.52 McQuaide, supra, being illustrative of the Board's overall approach to determining whether a striker's be- havior was merely "improper"-as opposed to being "flagrant or egregious"-it remains to note the general apportionment of burdens of proof , established in cases of this type. The lead case on this point is Rubin Bros.,53 which held generally that the General Counsel must first establish that the employees in question were disciplined for their behavior during the course of a lawful econom- ic strike.54 Once this is shown, the burden shifts to the employer to introduce evidence that it held as "honest belief" that a specific striker engaged in a specific act' or series of actions that amounted to "flagrant or egregious" misconduct.55 If the employer meets this burden, then the burden of establishing that the discipline violated the Act shifts back to the General Counsel who must show evidence that the striker did not, in fact, engage in the misconduct for which he was disciplined. The introduc- tion of such evidence by the General Counsel may trig- ger afurther "shift back" to Respondent of the burden of coming forward with evidence that the striker was, in fact, guilty of serious misconduct . General Telephone-Co., supra at 739. 51 Ibid. 52 Ibid. sa Rubin Bros Footwear, 99 NLRB 610 (1952), cited by the Court with approval in NLRB v. Burnup & Sims, Inc., 379 U.S 21, 22-23 (1964) See also General Telephone Co, 251 NLRB 737 (1980), and authorities dis- cussed at 739-740. 54 Such proof has been established concerning all six employees in- volved in this section, and it is therefore presumed in all discussion here- after 55 See, e.g, General Telephone Co, supra, for a discussion by the Board as to the degree of specificity required of the employer to satisfy the "honest belief' test (mere assertion not sufficient; employer must link, particular employees to particular acts of misconduct) I deal with ques- tions bearing on the "honest belief" issue in the case-by-case expositions and discussions below I turn now to case-by-case findings and conclusions re- garding the six strikers involved here. 3. Case-by-case findings and conclusions a. Clarence ,T. Dorsey Dorsey is accused of having made telephonic threats to Paul Lewis, an employee who initially joined the strike, but who crossed the picket line to return to work about 5-6 weeks after the strike began. Respondent- in- troduced evidence sufficient to meet, its "honest belief" burden as to this incident by Lewis' credible testimony that he notified Respondent 's Vice President Stuart Hink about the incident immediately after it occurred. Lewis testified, in substance, as follows: About a week after he returned to work, he received a telephone call at his residence in the evening from striker John Hudson, Referring to the fact that Lewis had driven another former striker, Cromwell , to work at Respondent's plant that day, Hudson castigated Lewis for abandoning the strike himself and fo`r bringing Cromwell back with him. Eventually, Hudson threatened Lewis repeatedly that he would "blow [Lewis'] head off," and further vowed, "I'm going to shoot you, if I have got to walk in the plant, I'm going to do it." After the conversation ended, Lewis called Cromwell's home to alert him of the possi- ble danger to him. After Lewis had talked briefly with Cromwell, Dorsey then took the telephone and told Lewis that he and Hudson were both at Cromwell's home. Dorsey then began to criticize Lewis for having abandoned the strike. Lewis asked Dorsey if he was "threatening" him. Dorsey replied that he was. Lewis then said: "Well, if you're running with Hudson, he's al- ready committed a whatever you want to call it by threatening me earlier so he's going to be in trouble for doing that." To this, Dorsey replied , "You better not call the law on him." Lewis replied in turn, "I'm going to notify the plant and I'm going to call the law on him. I am going to do that." After an additional warning to Lewis that he had "better not," Dorsey said: "Well, if you do, I will get you personally." Lewis warned Dorsey to stay away from Hudson and to mind his own business because Hudson was going to get Dorsey in trouble. To this, Dorsey rejoined: "No, he is not going to get me in trouble and you better not call the law or I will get you." The conversation then ended and Lewis moved his family to a new location for the night and shortly thereafter notified Respondent's official Hink and the local police about the incident. Dorsey, called to rebut Lewis' testimony,56 admitted that he was at Cromwell's' house and that he took the telephone to speak with Lewis. His recollection of the conversation was extremely vague and he resorted to ss Dorsey's rebuttal testimony appears at Tr 1924-1931 under the er- roneous caption "Joe Dorsey"; and his name was inadvertently omitted from the index of witnesses appearing in the introductory pages of the transcript volume for December 4, 1980. In addition , the transcription of Dorsey's testimony contains several errors in the references to Paul Lewis Thus, the reader should substitute "Lewis for "Loomis" or "Dewey" where those latter names appear AXELSON, INC. characterizations for the most part.57 He specifically denied, in response to pointed questioning by the Gener- al Counsel, that he ever threatened to "personally get" Lewis, or that the subject of Lewis' "calling the law" ever came up. He acknowledged only that he "might have" told Lewis that Lewis "shouldn't have gone back to work," and he concedes that he was "displeased" with the fact that Cromwell had abandoned the strike. Dorsey was a remarkably unimpressive witness, dem- onstrating unease and evasion throughout his rebuttal tes- timony. Lewis was alert and seemingly sincere in his de- tailed recollection of the telephone conversations. I have no hesitancy in crediting his entire testimony about his exchanges with both Hudson and Dorsey. This record does not directly permit a finding that Dorsey was present with Hudson when Hudson first called Lewis and made his threats to shoot him. Neither does Dorsey's admission to Lewis during the second conversation that he was with Hudson at Cromwell's house, nor his making of common cause with Hudson by threatening "personally" to "get" Lewis if he were to call the law on Hudson, necessarily warrant the infer- ence that Dorsey was aware of the specifics of Hudson's earlier threats. The question posed, therefore, is whether Dorsey's repeated threats to Lewis that he would "get" Lewis if the latter called the law on Hudson amounted to "flagrant or egregious" misconduct, thereby justifying Respondent's discharge of him. I conclude that Dorsey's threats did not merely amount to a momentary display of "animal exuberance," such as that which frequently arises on' an emotion- charged picket line.58 Rather, Dorsey's threats were de- liberate, repeated, and occurred away from the picket line entirely. Neither were they directed at Lewis be- cause Lewis had (from Dorsey's standpoint) "scabbed" on his fellow strikers-a circumstance that does not justi- fy such threats, but that nevertheless often triggers threats and other gestures of ill will that are part of the "normal give and take of a labor dispute" involving a lengthy strike. McQuaide, supra at 594. Instead, Dorsey's threats were calculated to prevent Lewis from seeking police protection from Hudson who, whether Dorsey knew it or not, had made credible threats against Lewis' life only minutes earlier. The "broader interests of society as a whole" (ibid) presumably include society's interest in guaranteeing full access to the protective resources of the civil authorities to citizens who have received a credible death threat. Accordingly, the protective mantle of the Act that insu- lated Dorsey as a striker from Respondent's discipline for mere momentary acts of impropriety did not operate as a rigid shield against discipline for Dorsey's threaten- ing efforts to extort Lewis' silence about the unlawful ac- tions of one of his fellow strlkers.58 I therefore conclude sa E.g., "Didn't have no cross words or nothing, we just spoke polite- ly," and "we was talking, you know, just man talk " 58 Alabaster Lime Co, 194 NLRB 1116 (1972) 69 It is true, as in McQuaide, that under more typical circumstances, a striker's shouted threat to a strikebreaker passing through the picket line does not normally justify the striker's discharge unless the striker also uses actions or gestures tending to show that the striker "means business" in issuing the threat It is also true that Dorsey, in communicating his 879 that Respondent did not violate the Act in discharging Dorsey for his threats to Lewis. b. William Pegues Pegues was discharged by Respondent for allegedly following striker replacement Elizabeth Shankle in his car as she drove away from Respondent's plant, then chasing her when she tried to elude him, and, finally, when the two cars were abreast, threatening her by saying "I'm going to get you." Respondent's "honest belief" that this occurred may be found not only from Shankle's credible testimony that she reported it prompt- ly to agents of Respondent, but also from evidence that its attorney prosecuted a motion for a contempt citation against Pegues before the district court that had entered the temporary restraining order referred to earlier.60 Pegues denied any involvement in the incident-rest- ing his defense in both the contempt proceedings and before me on a claim of mistaken identity,, and citing the fact that the license number of the, vehicle that Shankle reported had followed her was not his own, but rather belonged to another employee.61 I find, initially, that there was no mistake in Shankle's identifying Pegues as the driver of the car in question, notwithstanding that she misreported the license number by one digit. Shankle had been a classmate of Pegues in junior high school in Longview and had seen him peri- odically in the community since -then, including on the picket line. She described the driver of the vehicle (whom she recognized as Pegues) as being,Black, heavy- set, and wearing his hair in distinctive plaits or braids. This was an accurate description of Pegues from my" own observation of him. By Pegues' admission, the owner of the vehicle bearing the license tags mistakenly reported by Shankle is Caucasian. Shankle was a sincere- appearing and careful witness. I therefore credit her identification of Pegues and discredit his denial that he was involved in the incident. I further credit Shankle's account of the details of the incident, as follows: On exiting the plant on a day in late March or early April, Shankle noticed Pegues following her in a car that Shankle states she had seen him driving around town before then. She drove, with Pegues fol- lowing, to a nursery school located 3 or 4 miles from the plant, where she was to pick up her children. When she parked at the school, Pegues parked nearby. When she left the school with her children and drove 'away, Pegues followed her in his car. Shankle accelerated to speeds up to 70 miles per hour in an effort to evade Pegues, but he sped up similarly and remained close to her, rear bumper. Eventually, Shankle made a U-turn at an opening in the highway median strip and, while both vehicles were threats by telephone, could not be charged with any visible actions that might "give import" to his threats. But his repeated uttering of the threat to "get" Lewis had the effect of giving such import. so The district court found Pegues guilty of contempt The contempt proceedings were held in March, before the strike ended. Respondent therefore knew about and pursued the prosecution of the incident in due course and did not simply seize on it belatedly or for tactical reasons re- lating to the RD election or to the pending proceedings. 83 Shankle reported to the police that the license number was QMN 832. The license number on Pegues' car is QMN 835. 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD slowed, going in opposite directions, and the drivers' windows of each car were adjacent, Pegues looked at Shankle and said, "I'm going to get you." Shankle again accelerated and Pegues negotiated the U-turn and contin- ued the chase at high speed, breaking off only when Shankle drove into the parking lot of the plant where her husband worked. She signed a complaint with the Longview police against Pegues on the following day, after first reporting the incident to her supervisor at Re- spondent's plant when she arrived at work that morning. I conclude that Pegues made calculated and deliberate efforts to terrorize and intimidate Shankle, both by his high-speed pursuit of her over a substantial distance, and by his direct threat to her that he was going to "get" her. He thereby put her in genuine fear for her life. He further endangered not only her own life and that of her children by engaging in a high-speed chase on a public roadway, but also the lives of other members of the mo- toring public. This behavior was far more than a mere momentary act of "exuberance"; and Pegues' actions in chasing Shankle at speed before and after threatening her "gave import" to his threats. The Act's "protective mantle" over strikers is not made of concrete. I therefore conclude that Respondent's decision to fire Pegues died not violate the Act. c. Q. Ray Williams Williams was fired for allegedly having been involved with another employee, MacGregor, in a high-speed chase of two striker replacements, James Baugher and Russ Roebuck, after the replacements had driven away from the plant in Roebuck's car, driven by Roebuck. The chase included bottle-throwing, verbal threats, and the brandishing of a pistol by an occupant of the chasing vehicle. Although I am prepared to find that the incident took place substantially as summarized above,62 I have sub- stantial doubts as to whether Respondent has satisfied its burden of showing that it had an "honest belief" that Williams was one of the participants in what I would readily conclude was an instance of "flagrant and egre- gious" conduct warranting discharge. Put another way, I can discern no evidence in the record that competently identifies Williams as being involved, or that suggests that responsible agents of Respondent had an "honest belief" that Williams was involved. The difficulty is this: Roebuck did not know who the persons in the chasing vehicle were, and had never seen them before or since. Baugher did not know their names either, but he reported the incident by telephone to Re- spondent's, rod plant superintendent, McGehee, as soon as the chasing vehicle had departed. The next day, at the plant, Baugher "filled out a paper" relating to the inci- dent, but since he did not know the names of the persons involved, "Bill Huffman" (identified at that point by Baugher only as someone who "worked there") drove 82 Based on Roebuck's and Baugher's credible testimony that, while not entirely consistent, nevertheless supports the summary The discrep- ancies in their testimony are minor and derive in large part from their different opportunities to see and hear-influenced by the fact that Roe- buck was occupied with driving while Baugher was a passenger. Baugher in Huffman's car to the picket line, and asked, Baugher to point out the individuals who had been in the chasing vehicle. Baugher states that said Huffman "told me who they were." This is the sole basis for Baugher's testimony that Williams (and MacGregor) were the cul-, prits. There is no clear-cut indication,of who the "Bill Huff- man" named by Baugher is. The first consolidated com- plaint dated February 27, 1980 (G.C. Exh. l(tt)) alleged in its paragraph 6, inter alia, that a `Bill Huffman" was then and at all other times material Respondent's "Assist- ant Personnel Director." Respondent's answer stated, however: "Respondent denies that Bill Huffman is now acting an any capacity on its behalf. . . . Respondent admits that Bill Huffman was in its employ a portion of the time material to this complaint, but avers that at no time did he act as an agent in Respondent's behalf or as a supervisor within the meaning of Section -2(11) of the Act."63 I also note the testimony of employee Edward Roberson (at Tr. 1782) referring to a "Bill Hoffman" who, according to Roberson "at that time was working in personnel, I don't know really what his title was, he was-at one time over security, I think."64 From all the foregoing, it is inferable that Roberson's "Hoffman" and Baugher's "Huffman" are the same person, and that he occupied some position in personnel, relating to security. But, in the absence of any independ- ent evidence, I could not even conclude that "Huffman" was an agent or supervisor of Respondent-let alone that he had first-hand knowledge of the identity of the man to whom Baugher pointed on the picket line on the day after the chase episode. Williams, called by the General Counsel before the testimony of Roebuck and Baugher was introduced, gen- erally denied any improprieties during the strike; and he was never questioned specifically about any involvement in the incident described by Roebuck and Baugher. Re- spondent did not call "Bill, Huffman" or anyone else with first-hand knowledge of the identity of the individ- ual whom Baugher had identified on the picket line on the day after the incident. Neither did Respondent summon Williams to be present for possible identification by Roebuck or Baugher when those latter witnesses tes- tified. Therefore, on this record, the only basis for conclud- ing that Respondent had an "honest belief" that-Williams was one of the culprits lies in Baugher's testimony that someone named "Bill Huffman" said so. Wholly apart from the hearsay features of this testimony, Respondent failed to show how, if at all, said "Huffman's" identifica- tion of one of the culprits as being Williams came to be communicated to responsible officers or agents of Re- spondent. Although there is general testimony in the record regarding the measures that Respondent took to memorialize incidents of striker misconduct, there was no evidence tendered by Respondent showing how Re- 63 G.C. Exh l(vv), pp 3-4. 64 And see testimony of Respondent's parent corporation's director of industrial relations, Kenneth Griffth, referring obliquely to "Huffman" in connection with the same incident about which Roberson testified (Tr 1729 13-20) . AXELSON, INC. 881 spondent's admitted management came to believe that Williams was a guilty party in the incident in question. Here, as in General, Telephone, supra, Respondent's burden was not only to show that some misconduct took place, but also to link a particular employee to a particu- lar act of misconduct.6 5 Respondent did not satisfy this burden merely by showing that Baugher was told by someone named "Bill Huffman" that a striker on the picket line to whom Baugher was pointing was named "Ray Williams." Rather, I conceive it to have been Re- spondent's burden here to show that: (a) the said "Huff- man" was knowledgeable as to the identity of the striker to whom Baugher was pointing; and (b) that this infor- mation was communicated to some responsible agent of Respondent and was relied on. Moreover, any suggestion that the record be reopened to permit Respondent-if it can-to provide such missing information would be clearly unmeritorious in light of the Board's discussion of the same suggestion in General Telephone, supra at footnote 10.66 Accordingly, it having been shown that Williams was discharged for conduct that occurred during the course of a protected strike, and there being no reliable evi- dence that Respondent had an honest belief that he en- gaged in misconduct, I sustain the complaint as to Wil- liams to the 'extent it may be construed as an allegation that Williams was wrongfully discharged for his strike- related activities. 67 d. William J. Bryant Bryant was discharged for allegedly having pointed a pistol out of his car window in the direction of pickets and other Axelson employees who were standing near a guard shack at an entrance to the plant. Bryant was him- self-a strike participant at the time. Respondent's "honest belief" that the incident occurred may be found in evi- dence that the plant guard immediately called the police to report the incident,68 I infer from the proven role played by guards at plant entrances during the strike that the guard logged the incident and reported the same in due course to responsible company officials. Bryant admits his involvement in the incident, but denies that he personally pointed the "pistol." Instead, says Bryant, he had driven up to a point across the street from the plant entrance in order to wave to his fellow employees who were on picket duty that evening. Before he could roll down his car window to do so, however, his 4-year old grandson, who was seated next to him in the car, leaned across him, and pointed a toy popgun in 65 251 NLRB 737, 739. 66 There, the Board rejected the suggestion that the employer should be given a "second opportunity" to introduce more specific evidence bearing on the "honest belief' issue The Board 's rejection was based on "longstanding Board precedent clearly setting forth the nature of the re- spective burdens of proof in cases such as the instant one." I note further in this regard that General Telephone itself was decided before the instant litigation had begun. 67 This is one of many instances in which the "bypass" theory in com- plaint par 10 misstates the real question at issue, thus complicating inter alia, the question of an appropriate remedy (see the remedy section, infra). 68 Testimony of employee A L. Taylor, and police officers Ronald Vick and DeLois Jones. the direction of the plant entrance, causing several per- sons near the entrance to scurry for cover. 69 Realizing that this had caused something of a panic, states Bryant, he drove away from the scene. It is uncontradicted that Bryant heard shortly thereaf- ter on his own CB radio that police were broadcasting his name and car license number on suspicion that he had pointed a firearm towards persons at the plant en- trance. It is further uncontradicted that he then notified the police, and gave some sort of explanation, and that no formal proceeding against him ever ensued. The discrepancies in testimony regarding these inci- dents include: (a) whether it was Bryant who pointed the gun, or his grandson and (b) whether the gun was truly a toy popgun, or a real firearm. Jones, the police witness who spoke with Bryant, does not recall him referring at all to any other, persons as being involved in the incident, and quotes Bryant as admitting: "I had a pellet pistol, but I was not trying to hurt anybody or scare anybody." Taylor, the employee witness who was standing near the guardshack, states that neither he nor the guard, nor any other persons who ran for cover, were sure that Bryant had even been pointing a gun. Taylor conceded that the instrument could have been a toy popgun, or even Bry- ant's finger. .From the foregoing, I have very little doubt that the instrument was, in fact, a toy popgun. I also formed the impression of Bryant that he was a careful and truthful witness. I therefore credit his account of the incident, notwithstanding the fact that he may have referred to the instrument as a "pellet pistol" when he voluntarily called the police about the incident, and even though he may have chosen not to implicate his grandson in the whole affair and, instead, told the police that he had been holding the "pellet gun." Because I have found that it was Bryant's grandson who momentarily pointed the popgun in the direction of the plant entrance, it follows that Bryant himself was not guilty of "misconduct" in the affair.70 Even assuming, arguendo, that it was Bryant himself who brandished the popgun, I would not conclude that such conduct was so "flagrant or egregious" as to put it beyond the Act's pro- tection. I, am satisfied that Bryant did not intend to cause any panic, even though, given the background of strike violence that appears on this record,71 it was not unrea- sonable for the picketers and others situated across the street from Bryant's car to have misapprehended the situ- ation. Bryant voluntarily turned himself in and explained the situation to the police. He was not prosecuted. His actions (continuing the assumption for argument's sake 69 Bob Hancock, Bryant's friend, credibly testified that he had given the Bryant grandson a toy gun earlier that evening when the families had visited at Hancock's house 70 I do not think that the unfortunate incident was so predictable that Bryant should have anticipated the child's pointing his new toy out the window and somehow taken steps to ensure that the child not do so 71 See, e g., testimony of Ed Roberson regarding gunfire through his truck windshield parked in his residential driveway , in addition to testa-, moray cited already 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he was holding the popgun) had no impact beyond the immediate and short-lived panic that resulted.7 2 Accordingly, while the incident had the potential for tragedy, the same was neither -intended by Bryant nor did it result in the significant impairment of the rights of either nonstriking employees or those of the public as a whole. I therefore conclude that Bryant's actions (if Bry- ant's own actions be deemed in any way culpable) were, at most, a momentary display of animal exuberance and that he did not forfeit the protection of the Act. Re- spondent's discharge of Bryant therefore violated Section 8(a)(3) and (1). e. Jimmy G. McGrede Jimmy G. McGrede73 was discharged for his alleged participation in a number of strike-related incidents. In proving its "honest belief' that McGrede was guilty of misconduct in several instances, Respondent relies on the evidence that it submitted against McGrede in a motion, for contempt filed on June 5.in Gregg County District- Court.7 4 (1) Incident at J. T. Skillet's Restaurant In its motion for contempt, Respondent averred that McGrede came into J. T. Skillet's Restaurant in Long- view on April 11 and "proceeded to harass, threaten and intimidate" nonstriking employees Jim Johnson, Bob Ross, Doyle Stevens, and Marshall Thomas,75 until the police were called and persuaded McGrede to leave the premises. The motion was no more specific. Appended to that motion were notarized "form" verifications signed by the above-named nonstrikers, each one of which stated in pertinent part: I am a movant in the foregoing Motion for Con- tempt. I have personal knowledge of the facts and allegations stated in it, and they are true and cor- rect.7 6 I treat Respondent's evidence in the form of the verifi- cations quoted above as establishing that it had an honest belief before its discharge of him that McGrede engaged in misconduct during the J. T. Skillet's incident. The record before me, however, utterly fails to establish that 72 Although Taylor testified that he ran for cover with the others, he promptly calmed down and pursued Bryant's departing vehicle long enough and closely enough to record the license number. 78 Not to be confused with R . D McGrede, another alleged discrimin-,, atee whose situation was, discussed in sec II1,E, above 74 On August 28, McGrede appeared in court and , pursuant to a nego- tiated arrangement participated in by the court, pleaded guilty (while de- nying having threatened anyone in connection with the J. T. Skillet's in- cident described below). I base this much on McGrede's credible and un- denied testimoy More than a year later, and while this proceeding was underway, the court entered an order on October 24, 1980, sustaining Re- spondent's motion for contempt and ordered that McGrede pay a $500 fine and , serve 6 months in jail-all suspended on condition of no further violations of the restraining order for 30 days (R. Exh. 40). The order makes findings that fully echo Respondent's averrals in its motion for contempt, except as to the J. T. Skillet's incident, which omits the term "threaten" that had appeared in Respondent's pleading. And see discus- sion below 75 The three named nonstrikers had initially joined the strike, but had recently returned to work. 76 See appendices to R. Exh. 39. McGrede engaged in either "threats" or "intimidation" of the' nonstrikers in J. T. Skillet's. Respondent called Stevens and Wages to testify about the incident. Al- though each of them attributed the use of harsh words and impolite accusations to McGrede, I would not find that McGrede's actions amounted to "flagrant or egre- gious" misconduct. Ignoring McGrede's more diluted version of the incident, and relying solely on the testimo- ny offered by Stevens and Wages, it appears that, at worst, McGrede confronted the group of nonstrikers and angrily demanded of Johnson why he had crossed, the picket line, saying that he (McGrede) could have found work for Johnson if he needed the money, and further made references to Wages as a "scab" and a "freeloader" for having abandoned the strike. There were never any threats by McGrede, nor gestures calculated to frighten or "intimidate" the nonstrikers, so far as the testimony of Stevens and Wages would reveal. Although McGrede's behavior may have been noisy and disruptive, nothing in the strike misconduct' cases suggests that a striker loses the protection of the Act by rough or vigorous accusations or by unsolicited attempts to debate with fellow workers who have chosen to aban- don a strike. Strikers normally experience feelings of rage and betrayal when they view other strikers breaking ranks and returning to work. And efforts by strikers to enlist support for the Union's cause, including by at- tempts to shame nonstrikers by such epithets as "scab," are not only "commonplace" in labor struggles, but they are protected by Section 7 of the Act.77 Accordingly, I find nothing in the testimony about the incident at J. T. Skillet's on which Respondent could properly rely as constituting grounds for discharging McGrede. (2) May 20 and 29 picket line incidents Respondent averred in its motion for contempt that, on May 29, McGrede "hit the side of [nonstriking em- ployee] Preston Huff's vehicle with a picket sign. [Whereon] . . . Huff stopped and said `watch it, fellow, this cost , a lot of money' [and whereon] McGrede then told him to come back across the line and threatened him." Respondent further averred as follows regarding an earlier incident on May 20: "Roswell Green was leaving Plaintiffs premises as he was getting off work. As Mr. Green ' attempted to drive through the gate .. . McGrede , hit his car with a picket sign. Mr. Green reached out and pushed the sign away from the car. Mr. McGrede then yelled at Mr. Green to `come back and fight.' The guard at the gate asked Mr. Green to drive on and he did" Both Huff and Green signed notarized "form" state- ments that were appended to 'Respondent's motion for contempt swearing that Respondent's averrals were true and correct. I therefore conclude that Respondent had an "honest belief" before discharging him, that McGrede had engaged in the above-described acts. 77 Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 58 (1966); see also Letter Carriers v Austin, 418 U.S. 264, 270 et seq. (1973). AXELSON, INC. Neither Huff nor Green testified in the instant pro- ceeding, however. Before Respondent introduced the pleadings relating to its motion for contempt, the Gener- al Counsel addressed those episodes obliquely merely by asking McGrede: "Did you ever strike a car or a person with your picket sign?" McGrede replied: "No sir," just as he did to the question whether he had ever "attempt- ed" to do so. This, together with the evidence concerning the con- tempt proceeding, is the entirety of the evidence in this case record hearing on these alleged incidents. The ques- tions thus posed are: (a) Did the General Counsel come forward with suffi- cient evidence that McGrede did not, in fact, engage in the May 20 and May 29 incidents as to trigger a further shifting of the burden of coming forward to Respondent? (b) If not, was the conduct about which Respondent had an honest belief sufficiently egregious to warrant McGrede's discharge? The answer to the first question is not simple. McGrede's denial was limited only to the accusation that he had struck a nonstriker's car with his picket sign-and not whether he had also "threatened" the occupants of the two cars. In addition, McGrede had earlier "con- fessed" his guilt as to all counts averred in Respondent's motion for contempt, except as to an allegation that' he threatened persons at J. T. Skillet's. On the other hand, the claims in the Huff and Green incident were quite sparely stated in Respondent's motion-indeed the al- leged "threat" in the Huff incident amounted to a char- acterization, not a specific factual averral.78 Moreover, McGrede's confession before the local court was in the nature of a negotiated plea and its significance is thereby diminished in attempting to discern what, in fact, hap- pened during the Huff and Green incidents.79 In McQuaide, supra, the Board refused to place reli- ance on the contempt citation issued against certain strik- ers by a local court, stating that it would not "abdicate ... to another tribunal" its duty to make its own assess- ments on questions relating to the seriousness of picket line misconduct.80 In these circumstances, I view McGrede's denial as sufficient to put in issue just exactly what did happen in the Huff and Green episodes, thus "shifting back" to Respondent the burden of calling wit- nesses with first-hand knowledge to rebut the General Counsel's evidence.81 Respondent elected not to call such witnesses, resting instead on the perfunctory aver- rals that it had itself drafted for inclusion in its motion for contempt and that had been only adopted by refer- ence by Huff and Green. 'Respondent thereby chose to take the risk that I might find, in the absence of testimo- ny by its own witnesses, that either the misconduct did not take place, or that it was not "flagrant or egregious" misconduct within the meaning of McQuaide, supra.82 78 "McGrede then told him [Huff] to come back across the line and threatened him " (Emphasis added.) as See discussion in Markle Mfg, supra, 239 NLRB at 1152. So 220 NLRB at 594, citing NLRB v. 'Cambria Clay Products Co., 215 F.2d 48, 54 (6th Or 1954). Si General Telephone, supra at 739 and cases cited at fn. 10. sz Markle Mfg., supra, 239 NLRB at 1152. 883 I therefore conclude as follows: Respondent did not carry its ultimate burden of proving that McGrede en- gaged in misconduct in connection with the Huff and Green incidents. Alternatively, Respondent failed to pro- vide sufficient evidence about those incidents to warrant the conclusion that McGrede engaged in "flagrant or egregious" misconduct. (3) Other incidents involving McGrede The General Counsel elicited testimony from McGrede regarding two other incidents of arguable strike misconduct.88 In one such instance, the General Counsel opened the subject of McGrede's having made some statement to nonstriker Bobby Huey Jr. during the strike that, as McGrede admitted, resulted in Huey's filing charges against him and in the issuance of a warrant for McGrede's arrest, whereon McGrede was required to post some sort of "bond." Respondent pursued the matter on cross-examination of McGrede, and McGrede admitted that he had told Huey "be careful on the way to Kilgore, because I would hate for anything to happen to you." In another such instance, the General Counsel elicited from McGrede an account of McGrede's having been in- volved with two other strikers, S. L. Curtis and Kevin Adair, in having driven past the home of nonstriker Doyle Stevens in the early morning hours, and in having been stopped and questioned by the local police. When Respondent later called Doyle Stevens as a wit- ness, after obtaining his account of the J. T. Skillet's in- cident, its counsel pursued the matter of McGrede's and the two other strikers' having driven past his home. From Stevens' testimony, I would find that McGrede, Curtis, and Adair, in fact, followed Stevens home, made a second pass by his house after he had arrived, and then parked at a nearby filling station until Stevens called the police.84 Respondent failed to introduce any evidence, however, that it either knew about, or relied on, such incidents in deciding to discharge McGrede for alleged strike mis- conduct. Neither incident was adverted to in Respond- ent's motion for contempt filed against McGrede on June 5, although both incidents occurred before the strike concluded on May 31,85 and although both incidents 83 This was done before Respodnent had presented its own case in- volving McGrede. In this, as well as in other situations in which the General Counsel anticipated defenses, I permitted the inquiry only on the General Counsel's representation that he had reason to believe that Re- spondent would seek to litigate the incidents, and deferred to his judg- ment that following this procedure would ultimately economize on the witnesses' time See, e g , Tr. 36.10-37; 85:3-86 1; 158.24-160:25; 747.22- 25 84 Assuming that it is relevant (but see below), I would credit Stevens' version as just summarized McGrede's explanation for his presence in Stevens' neighborhood that night-to the effect that Adair and Curtis were merely curious as to where Stevens lived and that McGrede merely volunteered to show them Stevens' residence-was plainly false. 85 From R. Exh. 41, a complaint filed by Huey against McGrede with the City of Longview clerk on May 9, it appears that the incident be- tween McGrede and Huey occurred on the same date. The complaint did not provide any specifics of McGrede's complained-of actions, but merely recited that McGrede "Did . unlawfully and knowingly abuse Continued 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were in plain violation of the earlier, broad restraining order. It was Respondent's burden to show that it had an "honest belief' that McGrede had engaged in the latter two incidents when it decided to discharge him. Because Respondent made no such showing, I do not consider these incidents in determining whether it lawfully, dis- charged McGrede.86 Based on my analysis of the inci- dents that Respondent did demonstrate that it knew about before firing McGrede, for the reasons already stated, I conclude that McGrede did not engage in "fla- grant or egregious" misconduct. Accordingly, I conclude that Respondent's failure to reinstate McGrede violated Section 8(a)(3) and (1) of the Act, as alleged in the com- plaint. f. S. L. Curtis The question of Curtis' alleged strike misconduct may be treated summarily in the light of the above discussion pertaining to McGrede. Respondent introduced no evi- dence that it had an "honest belief" before discharging him87 that Curtis had engaged in strike misconduct. From Stevens' and McGrede's testimony summarized above, it is evident that Curtis accompanied McGrede in following Stevens to his home early one morning during the strike. And on brief, Respondent cites only that evi- dence as justifying its "discharge" of him. For reasons identical to my discussion of the "other incidents" in- volving McGrede, I conclude that Respondent failed to meet its burden of coming forward on the "honest belief' element of its case. I therefore find that Curtis was unlawfully discharged for his strike-related activities. G. Former Strikers Denied Reinstatement for Failure to Pass Physicals 1. Introduction and findings Six former strikers (C. C. McKee, Otis D. Nichols, Donald E. Brightwell, Robert Washington, J..E. Allen, and Douglas Wheelis) were offered reinstatement, sub- ject- to passing a physical examination, which they all "failed."88 They have in common that they were em- (threaten) Bobby N Huey, Jr in a public place . . . in an obviously of- fensive manner, contrary to Section 42.01 (a)(4) of the Texas Penal Code, against the peace and dignity of the State " Respondent placed this exhib- it into evidence during its own presentation, on December 3, 1980. McGrede had testified about the incident on the preceding October 29 There is no evidence as to when Respondent first became aware of that complaint by Huey against McGrede 96 Should it somehow be determined on review that Respondent was, in fact, influenced in its discharge decision by knowledge of McGrede's conduct in the Stevens and Huey episodes, thus requiring an analysis as to whether McGrede's conduct in those incidents was "flagrant or egre- gious," I would conclude that it was In each case, away from the picket line, McGrede deliberately sought to intimidate nonstrikers into believing that they were in danger while driving to their residence His actions, therefore, were not mere momentary acts of spontaneous "exuberance." 97 If, indeed, it ever did so discharge him Unlike the others in ques- tion here, Curtis never received any notification that he had been fired 99 The first four named had been denied reinstatement earlier for alleg- edly having abandoned their jobs by taking permanent employment else- where. I have found that this earlier action was unlawful and that Re- spondent should have reinstated them when their jobs admittedly became vacant I consider them again under the current heading'only because Respondent has, essentially, raised a second defense as to them and as to ployees of long standing at the Longview plant, that they were each offered reinstatement to a job vacancy in February or March 1980, subject to a requirement that they pass a physical examination, and that they were denied reinstatement because of allegedly disqualifying conditions that were revealed in the course of those ex- aminations. There is this additional background relevant to a dis- cussion of Respondent's treatment of these individuals: Respondent has normally required new job applicants to take preemployment physical examinations, but, as sever- al employees credibly testified, and I find, back X-rays were not routinely required.89 Neither did Respondent ever. have a policy of requiring its employees- once em- ployed-to submit to and pass physical examinations as a condition of retaining their employment. When the strike concluded and former strikers began to be reinstated, they were initially permitted to resume their former jobs without being required to take a new physical examina- tion. Similarly, employees employed before the strike who did not answer the strike call, or who returned to work before the strike was called off, were not required to take examinations. Indeed, many employees hired as permanent replacements were not initially required to take physical examinations as a condition of their hire; and Respondent has made no blanket effort to "catch- up" with employees in that category, but, rather, has waited for any such employees to take the initiative to raise the matter with one of Respondent's officials before making arrangements to conduct a posthire examination on such individuals.90 It was, therefore, an admitted change in Respondent's historical policy for Respondent to require of the par- ticular former strikers involved in this discussion that they submit to detailed physical examinations, including back X-rays. Teegerstrom testified that the new practice "began" and was "triggered by" an encounter that Tee- gerstrom had with discriminatee Robert Washington in late February, or early March 1980.91 There is some background to that meeting that is perti- nent and instructive. Crediting Washington's uncontra- dicted testimony, he had suffered an on-the-job injury to his back at Respondent's plant in the summer of 1978 when he fell from a loading dock and had been sent by Respondent's plant superintendent, Kuykendall, to the company physician (Dr. Mack) for treatment. Dr. Mack did not X-ray Washington's back at the time, but, rather, prescribed medication to relieve pain. Washington re- turned to work at Respondent in due course and worked there without incident until he joined the strike. When the other two employees named above that it had a right to deny them reinstatement because they had physical disabilities that made it too risky for Respondent to reemploy them. 89 Brightwell so testified, as did Nichols, McKee, and Allen. 90 The foregoing is taken from Teegerstrom's testimony at Tr 1859- 1865. 91 Teegerstrom did not indicate the date on which he met with Wash- ington I find from Washington's testimony describing the same incident that the conversation occurred 2 or 3 weeks after Washington had first gone in February 1980 to see Teegerstrom about a want-ad then running in the local paper in which Respondent sought applicants for, inter alia, the job of automatic multispmdel machine operators (i e, Washington's prestrike job classification) AXELSON, ITc.^ 885 he saw Respondent's public want-ad for applicants for the job he had held before the strike, Washington went to the plant in February 1980 to inquire. Teegerstrom told him that he was not eligible for reinstatement, link- ing this declaration to a preliminary conversation in which Washington admitted that he was still employed by a local cookie factory.-About 2 weeks later, Washing- ton returned to inquire whether Respondent would pay for the continuing costs of medication for his back injury at Respondent 1-1/2 years earlier. Both Teegerstrom and Washington agree that this caused Teegerstrom to pull Washington's personnel file and learn that there was no record in it pertaining to Washington's injury. Returning to Teegerstrom's account, this visit by Washington 'allegedly caused Teegerstrom to consult with other members of management. As he put it, "It was a result of that . . . that the physical examinations for returning strikers was instituted. Approximately a year had gone by since the people went out on strike, I didn't know what their physical condition was, and quite frankly, that is what triggered the physicals."92 As a result, according to Teegerstrom, when vacancies later became open for strikers awaiting reinstatement, they were required as a condition to reinstatement to pass comprehensive physical examinations, including back X-rays. It is uncontradicted in the case of five of the six strik- ers now under discussion (i.e., all but dames Allen) that their back X-rays revealed evidence of spinal irregular- ities that 'could be aggravated by performance of the types of work that they had been accustomed to per- forming throughout their prior employment with Re- spondent. It is further uncontradicted as to them that the physician who reviewed their radiograms recommended that they be disqualified from reemployment. The Gener- al Counsel expressly disclaimed any challenge to the bona fides of that medical judgment.93 It was neverthe- less proved that three of them (Wheelis, McKee, and Nichols) had recently passed physical examinations, which included back X-rays, in connection with their se- curing of similar if not more rigorous jobs with interim employers. It is further agreed that Allen's physical ex- amination showed a high blood pressure condition that increased the possibility that his health might suffer from performing warehouse work, his prestrike job. I also find, however, as Allen credibly testified, that Allen had suffered from a high blook pressure condition for some years before the strike, that he had taken medication to alleviate it, and that he had informed his warehouse su- pervisor, Anderson, about the condition, and had re- ceived Anderson's permission at least once to leave work early to, refill his prescription. 92 Teegerstrom also testified by way of background that he had been under considerable pressure from higher management to do something about the allegedly high rate of on-the-job accidents and the lack of any comprehensive "safety" program (see R. Exhs 50 and 51) and that he had been in the process since the preceding September of emphasizing safety issues in meetings with employees. 93 See, e.g, Tr. 1851:21-1854. 2. Conclusions I conclude that the six strikers in question were treated differently from other existing employees of Respondent and that, but for their participation in the strike, they would not have been compelled to submit to the rigor- ous physical examinations that revealed the defects that Respondent now relies on as a defense to its obligation to reinstate them to admitted job vacancies. It is also clear that Respondent did not use the same rigor in its screening of replacements during the strike, and that even now, with notice that some replacements had never taken physical examinations, Respondent has not made any systematic effort to correct that situation. Under all those circumstances, I have no difficulty in concluding that Respondent's conduct was inherently de- structive of important employee rights under Sections 7 and 13 of the Act. The Board has clearly held, with court approval, that an employer may not-including by the device of imposing physical examinations-treat re- turning strikers as "new" employees. Standard Materials, 237 NLRB 1136 (1978), and authorities cited, enfd. 604 F.2d 449 (5th Cir. 1979). See also Decker Foundry Co., 237 NLRB, 636, 641 (1978).94 For it is evident that the exercise of important rights under Sections 7 and 13 of the Act would be chilled if an employer were permitted, in effect, to "take a second look" at the suitability for re- instatement of employees who would not have under- gone such scrutiny if they 'had never joined a lawful strike. Markle Mfg. Co., supra, 239 NLRB at 1150 (em- ployer may not seize on lawful strike to review strikers' competency and desirability and then use results of such review as "business" reason for refusal to reinstate strik- ers who fail to pass review). Moreover, even if the imposition of unprecedented physical examination requirements on returning strikers were not in the "inherently destructive" category, I would find on this record that Respondent's motives for imposing them were not merely linked to "legitimate and substantial business considerations." An employer is not required by the Act to continue forever its traditional policies respecting minimum health and physical require- ments for its employees. Here, however, Respondent has not shown by anything other than the most undocument- ed and generalized claims of Teegerstrom that there was some business need on Respondent's part to tighten up its physical eligibility requirements on an across-the- board basis. On the contrary, as Teegerstrom admitted, employees who did not join the strike, or who aban- doned the strike, were immune from Respondent's newly imposed and rigorous health and physical eligibility tests; and striker replacements were not systematically re- quired to submit to such tests. Finally, it strikes me as no coincidence that four of the six employees who were denied reinstatement because they did not pass such tests were employees who had been wrongfully denied rein- 94 Consistent with this view, it has been held in Board compliance cases that an employer's offer to reinstate a former striker that is condi- tioned on the striker's successfully passing a physical examination violates the striker's right, on his unconditional offer to return, to "unconditional" or "full" reinstatement, and therefore does not toll the employer's back- pay obligation E g., Craw & Son, 244 NLRB 241 (1979). 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD statement to admitted vacancies months earlier , and that the inspiration for the implementation of a new testing program sprang from Teegerstrom's meeting with one of those four, Washington. It seems far more likely that Re- spondent, admittedly aware by the time of the Teeger- strom-Washington meeting that it had lost in RD pro- ceeding on its challenges to those four based on 'their al- leged permanent employment elsewhere, was anxious to seize on some device by which it might toll its continu- ing backpay liability as to such employees. The imposi- tion of a requirement that they submit to new and more stringent physical eligibility tests was, of course, one such means by which this might be accomplished. Accordingly, I conclude that Respondent's imposition of the physical examination requirement on the six re- turning strikers amounted to unlawful discrimination, in violation of Section 8(a)(3) and (1) of the Act. Since Re- spondent admittedly offered reinstatement to vacant jobs to J. E. Allen and Douglas Wheelis, about, respectively, March 15, 1980, and March 28, 1980, to which they would have been reinstated but for the unlawful exami- nation requirement, I conclude that those dates are ap- propriate for purposes of establishing the dates of the un- lawful discrimination and the commencement, of the backpay period. Because the other four in question here were entitled to reinstatement much earlier, as indicated in an earlier section, I conclude merely that their failure to pass Respondent's unlawfully imposed examination neither justified Respondent's failure to reinstate them, nor tolled their continuing backpay rights linked to the earlier unlawful bypassing of them.95 H. Miscellany 1. Introduction It is useful to recall that Respondent's actions in chal- lenging the voting eligibility of former strikers on the grounds that, they were permanently employed else- where, or had engaged in strike misconduct, did not per se, have any demonstrable prejudicial impact on their re- instatement or recall rights. All former strikers treated in the foregoing sections were shown to have been denied consideration for any further employment. By contrast, some of the employees covered in this Miscellany section were also challenged at the election on -one of those grounds, but Respondent nevertheless treated,them as el- igible for reinstatement after apparently reconsidering and abandoning its challenge position. Concerning these individuals , the complaint never raised the potential argument that Respondent's action in challenging them was, per se, violative of their recall rights. Rather, the complaint merely alleged that Re- spondent committed an independent violation by failing to recall them as of certain dates; and the General Coun- sel sought only to introduce evidence in their cases -that might suggest that they would have been recalled at an earlier point than they actually were. Moreover, the General Counsel did not demonstrate as to any persons in the miscellany category that Respondent's bare action in challenging their voting eligibility triggered any other 95 Craw & Son, supra. "real" action that impaired their Laidlaw recall rights. Accordingly, consistent with the theory embedded in the complaint as to those individuals, I consider only wheth- er the General. Counsel's evidence was sufficient to raise an inference of actual discrimination in their recall;96 and, if so, whether Respondent met its burden of show- ing - that its actions nevertheless were taken in further- ance of some legitimate and overriding consideration un- related to their participation in the strike. 2. D. R. Daniel The complaint alleges that Daniel , was wrongfully denied "recall to his former job on May 31. Daniel's prestrike classification was tool and die (T&D) maker. Based on the evidence submitted by the General Counsel during his case in chief and on the summary arguments he makes on brief, it appears that the claim that Daniel was wrongfully bypassed for reinstatement is linked to the testimony of one recalled striker, Jackie Orms, that a former vertical turret lathe operator, Ed Roberson, was promoted to the T&D job in July-at a time, when the more senior Daniel was awaiting recall. Orms' percep- tion that Roberson did not receive the promotion to the T&D job until July is actually an assumption, based on Orms' noticing that Roberson was working on the verti- cal turret lathe when Orms was' reinstated in late June, and that Roberson did not move his tool cart into the "toolroom" (the normal worksite for T&D makers) until about July 9. This is an example of situations alluded to earlier in which the General Counsel persisted in alleging that a wrongful bypass occurred on one date (May 31 , in this case), but where his only evidence of a bypass related to something that happened much later (here, about July 9). It has never become evident to me why the General Counsel selected the May 31 date as the "bypass" date for Daniel in the complaint ; or why, after numerous pointed invitations to review and reconsider the informa- tion that he had in hand and to thus clarify his position, he nevertheless insisted on adhering to the May 31 date. Respondent clearly could not know, therefore, that the General Counsel's "real" basis for claiming that Daniel was discriminated against on May 31 lay in the informa- tion that Orms provided about the apparent filling of the T&D job on July 9. Neither did it put Respondent on sufficient notice of the General Counsel's "real" theory simply to adduce the above testimony from Orms. There are numerous Board cases in which some allowance is made for variances between pleading and proof, especial- ly where timely amendment is proposed by the General Counsel. I know of no holding by the Board, however, that completely relieves the General Counsel of any obli- gation whatsoever to make a good-faith effort to spell out in a complaint what it is he is attacking . Especially under the circumstances narrated above in section II, and where the General Counsel has relied from the outset solely on Orms' information as the basis for including ss For reasons that I outlined in sec II, I further limit my principal consideration to whether or not the General Counsel made a prima facie case of discrimination occurring around the dates set forth in par. 10 of the complaint AXELSON, INC. Daniel in the complaint, it was nothing short of abusive for the General Counsel to have merely presented Orms' testimony and to leave it to Respondent to divine that it was that testimony that somehow tied into the allegation in paragraph 10 of the complaint that Daniel was some- how bypassed on May 31. I would therefore dismiss the Daniel matter pro forma, lest the General Counsel be encouraged in the belief that he may with impunity confound litigation in such a manner. Alternatively, I am satisfied that Respondent has met its burden (if, indeed, it was its burden under these pecu- liar circumstances) of showing that there were no T&D vacancies for Daniel-neither on May 31, nor at any time thereafter, including about July 9. Thus, Respondent proved through the credited and uncontradicted testimony of the following witnesses, that Roberson (and two other employees) had been working in the T&D classification since before the strike ended. Toolroom Foreman Tommy Bennett testified that Re- spondent hired Dwight Millburn as a T&D maker on March 19. Plant Superintendent John Kelley, corroborat- ed by Roberson, testified that Roberson approached him in late April with a request to be considered for promo- tion to the next T&D vacancy. Roberson had substantial qualifications for the job based on prior machine shop experience and experience in operating a variety of Re- spondent's production machines. Kelley states that he im- mediately recommended to Ed Probert, who had some midlevel responsibility over the toolroom, that Roberson be 'given the next T&D opening. Bennett then inter- viewed Roberson and gave him the T&GD classification, effective May 9, with the understanding that Roberson would continue to complete a production run on the ver- tical turret lathe, while also undertaking miscellaneous T&D work. Respondent's payroll records reflect that Roberson was converted to the T&D pay classification on May 9. Bennett, Roberson, and a third T&D maker, Allen Drake, testified that Roberson performed substan- tial amounts of T&D work after May 9 and before the strike ended, although not all such work was done in the toolroom itself.97 From the foregoing, it is evident that Roberson occu- pied the T&D classification well before Daniel uncondi- tionally offered to return to work. It is also evident that three T&D positions, including Roberson's, were filled when the strike was concluded. No evidence was re- ceived that would show that there was a post-May 31 vacancy for a T&D maker; neither was there any allega- tion that some independent "bypass" of Daniel occurred after May 31. Accordingly, it being clear (Orms' perception notwith- standing) that Roberson occupied the T&D slot before May 31, and there being no other evidence tending to 91 Roberson's tool chest was mounted on wheels so that it could be moved' around the plant That Orms saw Roberson bring his tools into the toolroom in July therefore does not imply that Roberson had not been doing T&D work before then. In fact, when Orms saw Roberson on the vertical turret lathe in late June, Roberson may have been using it for T&D work (not ordinary production work). Roberson credibly testified that he used the vertical lathe for one such T&D assignment during this period. 887 show that a T&D vacancy existed about May 31, I con- clude that the complaint allegation pei taining to Daniel must be dismissed. 3. J. D. Burkett The complaint alleges that Burkett was wrongfully denied reinstatement on May 31. In the face of a 10(b) challenge to the selection of this date, the General Coun- sel tried at trial to shift ground by seizing on a conversa- tion that had taken place between Burkett and Teeger- strom in January 1980. The General Counsel thus argued in response to the 10(b) challenge: "Well, of course, it's our position that the . . . refusal to reinstate occurred in January of 1980."98 I remarked at the time that the Gen- eral Counsel's statement was preposterous in the light of the date used in the complaint, his persistent refusal to disclose particulars to Respondent (which he justified on the basis that the dates in par. 10 of the complaint were sufficient to put Respondent on "clear, concise ... ade- quate notice" of the conduct that was being challenged); and in the light of his earlier refusal to amend the dates in paragraph 10 when invited to do so. Nothing in my subsequent review of, and reflections on, this record have caused me to change my judgment in this regard. Accordingly, I determine only whether Respondent met its burden of showing that it had valid grounds for refus- ing to reinstate Burkett to his -former position on May 31; and I do not determine the significance, if any, of Bur- kett's conversation with Teegerstrom in January 1980 to some potential independent allegation that never ap- peared in the complaint. Before the strike, Burkett was the only person in the classification of precision grinder (PG). The classification existed in the toolroom, over which Tommy Bennett was foreman. There were other employees in the department classified as tool and cutter grinders (T&CG). Because of its more exacting requirements, the PG job paid a premi- um rate over that received by persons in the T&CG clas- sification. Burkett was not offered reinstatement when the strike was concluded. Respondent claims that the PG classifi- cation was eliminated due to intervening changed cir- cumstances and that Burkett is eligible for reinstatement to some other job for which he is qualified, but only if he completes a "reinstatement bid and, acceptance form" (see fn. 29, supra) indicating what classifications other than the PG classification he would be willing to accept. The uncontradicted evidence regarding the alleged elimination of the PG classification'(which I credit) is as follows:99 Before the strike, Burkett's precision grinding work was mainly devoted to the grinding of precision gauges used in the production of various types of oil drilling equipment. Burkett spent approximately 18-20 hours each week doing such precision work, with the balance of Burkett's time being spent on ordinary T&CG work. In March, Respondent's production system was audit- ed by a team of engineering specialists associated with 98 Tr. 638 9-12 119 Credited testimony of Foreman Tommy Bennett. 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the American Society of Mechanical Engineers (ASME) for the purpose of certifying that Respondent met recent- ly imposed Federal regulations regarding the manufac- ture of drilling equipment used on the Outer Continental Shelf (OCS).100 A consequence of this audit was that all gauges associated with the manufacture of OCS drilling equipment were required to be manufactured by persons licensed by the United States Bureau of Standards. Re- spondent did not employ such, licensed personnel. Re- spondent therefore began to subcontract the manufacture of all OCS guages. Respondent had also subcontracted portions of its earlier gauge-making requirements, but the ASME/OCS process had the effect of requiring addi- tional subcontracting. The, net effect of the subcontracting of OCS gauge making, coupled with the continuation of earlier subcon- tracting practices, left only about 4 hours per week worth of precision grinding work on non-OCS gauges. Throughout the strike, according to' Bennett and other representatives of Respondent (Hink and Teegerstrom), this relatively small amount of precision work was as- signed to the employees in the T&CG classification and no one was employed in the PG classification. Such a pattern has continued since the conclusion of the strike. It is undisputed that some strikers with less seniority than Burkett have ,been reinstated to their prestrike T&CG classifications as openings emerged, but that Bur- kett has been` bypassed for such openings. According to Teegerstrom, this is because Respondent's policy has been 'to accord priority in recall to persons with 'the greatest classification seniority and Burkett held a differ- ent (albeit more demanding) classification; and because Burkett has refused to bid for the opportunity to fill a vacancy in any classification other than PG.101 I conclude that Respondent met its burden of showing that the elimination of the PG classification was under- taken for legitimate and substantial business reasons unre- lated to the strike, or to Burkett's participation therein. The General Counsel did not come forward with evi- dence to show that discriminatory motives lay behind Respondent's elimination ' of the PG classification. Nei- ther does he attack the overall policies used by Respond- entin the 'recall -of strikers. Respondent therefore did not discriminate against Burkett when it failed to reinstate him to a previously eliminated classification; and the complaint allegation pertaining to Burkett must be dis- missed. In addition, Respondent argued that Section' 10(b) barred the issuance of a complaint over alleged discrimi- nation against Burkett on May 31, where the, Union's charge relating to Burkett was not filed until January 10, 1980. It is conceded by the General Counsel that the January 10 charge filed by the, Union in Case 16-CA- 8877 was' the first charge to raise a challenge to the treatment of Burkett' by Respondent, and that it was pur- suant to that charge that the complaint issued on Febru- ary 27, 1980, as to Burkett.102 The law is clear, howev- 100 The regulation that imposed the ASME certification process 1s called "OCS-1." 101 The record shows, and I find, that Burkett has so limited himself. 102 Tr. 650 14-651:12 er, that Section 10(b) being an affirmative defense, the burden is on Respondent to prove that there was some basis for notice to an adversely affected party of the al- legedly unlawful conduct more than 6 months before a charge was filed over such conduct. See, e.g., ACF In- dustries, 234 NLRB 1063 (1978), enfd. as modified 596 F.2d ' 1344 (8th Cir. 1979). In the peculiar context of this case, wherein both the Union and Burkett (the presumed affected parties) had no obvious means of knowing what was going on inside the plant regarding. hiring and assignment decisions (the Union 'because it no longer was recognized by Respond- ent as the bargaining representative, Burkett because he was "outside," awaiting reinstatement), the 10(b) limitd- tions period did not begin to run until such time as Re- spondent could show that either of those parties had actual or constructive knowledge of the elimination of the PG classification. Respondent sought to meet this burden by extracting from toolroom employee Jackie Orms that Orms was aware of the elimination of the PG classification as soon as he was reinstated to a toolroom job on June 27, and that he so advised the Union's repre- sentative, McKimmey, so that the Union could file a charge that Burkett was being discriminated against. Re- spondent came close, but Orms' best recollection of when he brought this information to McKimmey's atten- tion was that it happened about "two to three weeks" after Orms' June 27 -reinstatement. I am satisfied that Orms was attempting to recall in good faith when this occurred .and that he had no idea of the significance of this information. Thus, even assuming that he reported the matter to McKimmey as early as "two weeks" after his June 27 reinstatement, this would place the critical transmission of information on July 11,-at the earliest. This date happens to be within the 6 months dating back from the January 10, 1980 -date on which the Union filed the charge concerning Burkett (albeit by only 1, day). The charge would therefore still be timely. Accordingly, I reject Respondent's 10(b) defense as an alternative basis for dismissal of the Burkett situation. 4. Bennie Jackson Jr. and Dan Watts The complaint alleges that Respondent discriminatori- ly failed to recall Watts and Jackson to their former jobs when the strike ended on May 31.103 Both men were classified as crane operators, who controlled overhead cranes in what was known as the rod plant portion of Respondent's operation. Only such rod, plant overhead cranes were manned full time by persons having the dis- crete classification "crane operator.", Other cranes throughout Respondent's plant were operated by produc- tion- helpers and materials handlers who performed such work incidental to their other tasks. I confine my discus- sion hereafter to the operation of the overhead cranes in the rod plant. References to crane operators hereafter thus refer only to persons so classified by Respondent. 103 Watts, the most senior of the unremstated crane operators, was re- called in January 1980. As of the conclusion of the instant trial, Jackson, the second most senior , was still awaiting recall. AXELSON,,INC. Before the strike, there were two such overhead cranes-each manned by a full-time operator who con- trolled the crane from a cab mounted on the crane. Crediting Jackson's uncontradicted testimony, there were five such crane operators before the strike: two on first shift, two on second shift, and one on third shift. Shortly after the strike began, Respondent filled four of those classifications (all incumbents went on strike) with re- placements.104 The only question, therefore, is whether, afMay 31, there was an unfilled fifth vacancy.105 Crediting McGe- hee's testimony, such a vacancy occurred on or shortly before May 29, when the third shift was reactivated and there was again a need for a fifth crane operator. 106 McGehee states that he filled this vacancy by reassign- ing Douglas Schuette from his former job on the forge machine, effective May 25, and in anticipation of the May 29 resumption of the third shift. McGehee states that Schuette had originally requested when he was hired in March that he be hired as a crane operator, but McGehee had persuaded Schuette to accept a forging machine job instead, where he was more urgently needed. McGehee further states, and I find, that he promised Schuette at the time that he would give him a crane assignment if he did not like the forging machine. Further crediting McGehee, Schuette confronted McGe- hee some weeks later, before the strike ended, saying that he could not "cut it" at the forge, and requested a crane assignment . McGehee replied that he could have the next available one. In anticipation of starting a third shift, McGehee told Schuette on May 25 that he could have the job on the third shift and would be so reclassi- fied effective that date. McGehee also told Schuette, however,, that he would have to continue performing work at the forge until a replacement could be found for him there. 1 0 T Thereafter, crediting McGehee, Schuette performed crane work intermittently until mid-June, when he took a 104 Testimony of Teegerstrom (Tr. 991-1008; and stipulation at 1007- 1008), McGehee, and Hmk 105 For reasons set forth above, the issue framed by the complaint is not whether Respondent took some independent action at some point well after May 31, which might arguably have impaired some continuing Laidlaw recall right of Watts or Jackson. Accordingly, while I note that Respondent converted one of the overhead cranes in the rod plant to a pendant control system and thereafter used a materials handler or a pro- duction helper to operate it from the floor, and while there may be other evidence that Respondent could have used Watts and/or Jackson at some point well after May 31, the General Counsel gave no notice whatsoever that hey was calling into question any such later and independent actions, and, therefore, there was no full litigation of the facts pertaining to those actions. I have therefore ignored certain inconclusive hints and sugges- tions to the contrary in the General Counsel's brief pertaining to Watts and Jackson. 106 Although McGehee did not expressly so state, it is implicit from his testimony, and I find, that Respondent did not operate a third shift during the strike, until May 29. 107 Such reclassifications, with an employee actually being required to continue his former job until a replacement can be found and trained are, according to McGehee, traditional practices at Respondent's operation There is no contrary evidence. Respondent's records fully document his testimony as to the treatment of Schuette, showing Schuette's reclassifica- tion as crane operator effective May 25 and thereafter showing him as "temporarily" on assignment to the forge, and, later, on military leave until July 3. (R. Exh. 47 ) 889 2-week military leave of absence. On his return on July 3, he was permanently assigned to the crane. The foregoing credited account of the filling of the fifth and last crane operator's vacancy by Schuette is un- contradicted. Indeed, the General Counsel neither at- tacks, nor even addresses this evidence on brief. The General Counsel's position on brief regarding Watts and Jackson is not comprehensible. The only statement of the General Counsel's theory may be found in a cryptic pas- sage at the conclusion of his brief, in which he states: As to the crane operator, an examination of the chart [i.e., the above-referred to stipulation regard- ing the dates of hiring of crane operators during the strike, which appears at Tr. 1007-1008] clearly re- veals that both Dan Watt and Bennie Jackson should have been, on the basis of seniority in classi- fication, offered reinstatement as opposed to junior employees reflected on the chart 108 The question posed by the Schuette situation, as I see it, is: Did Respondent somehow discriminate against Watts and/or Jackson by not treating the "fifth" crane opera- tor's job as still being "open" on May 31, when the strike concluded? Implicit in framing the issue thus is the ford- ing that Respondent carried its burden of showing that at least four of the five crane operators' jobs were occupied by permanent replacements when the strike was conclud- ed. I further find, consistent with the foregoing, that the "fifth" job had been promised to Schuette and that he had been formally reclassified into that position before the strike was over. There was no showing that Respondent somehow knew that the strike was about to end when Schuette was given the "fifth" position, nor any other evidence tending to show that a desire to preclude a former striker from being reinstated influenced the placing of Schuette in that job. By contrast, there is uncontradicted evidence that Respondent had legitimate business reasons for giving the job to Schuette on May 25,109 even though a 108 The problem is, however, that the said "chart" does not indicate that any "junior employees" had been made crane operators at any time after Jackson and Watts unconditionally offered to return to work. If the General Counsel is referring to the fact that Schuette was reclassified to that position on May 25, but did not begin to perform the crane opera- tor's job on a "regular" basis until July 3, then the discussion below in the main text is pertinent . In any case, the Schuette situation would tend, at most, to show that an arguable vacancy existed for Watts (as the most senior unreinstated striker holding that classification ) as of the conclusion of the strike How that would relate to an alleged discrimination against Jackson on May 3I remains a,mystery. ios I regard it as a legitimate consideration that Respondent felt bound to honor McGehee's earlier promise to Schuette that Schuette would get the next crane opening if he would stay on at the forging machine until such an opening developed. And, when such a vacancy developed by the planned May 29 reinstitution of a third shift, I regard it as legitimate and nondiscriminatory for Respondent to have felt bound to give the new crane job to Schuette in the light of its earlier promise on which Schuette had relied in staying at the forge Whether or not Respondent could law- fully have filled a post-May 31 vacancy by honoring its promise to Schuette, rather than by reinstating a former striker with greater seniority in the crane operator classification is not before me, as is further dis- cussed below 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD combination of exigencies, including the need to keep him at the forging machine until a replacement was trained in that job, and Schuette's intervening military leave of absence, prevented him from performing crane operation on a "regular" basis until July 3. In an analogous situation, the Board held in Bancroft Cap Co.11 ° that when an employer laid off permanent replacements for a brief period due to a temporary mate- rials shortage, and then recalled the replacements when the materials picture improved, the employer did not un- lawfully discriminate against strikers awaiting recall by failing to treat the laid-off replacements' jobs as being "vacant" for Laidlaw recall purposes. Restating its view in Giddings & Lewis, supra, the Board stated: Laidlaw does not require an employer to disrupt his existing work force in the event of a temporary layoff where there are no true vacancies. By parity of reasoning here, where, under nondiscrim- inatory circumstances, Respondent had filled-the "fifth" crane operator vacancy by reclassifying Schuette to the position before it had received unconditional offers to return from, or on behalf of, Watts and Jackson, Re- spondent was not required to treat that position as "vacant" for Laidlaw recall purposes simply because, at the time it did receive such return offers, Schuette was working on a temporary assignment at the forging ma- chine and, later, was required to go on a military service leave'before assuming the crane job on a regular basis. Accordingly, I conclude that Respondent has carried its burden of showing that all crane operator vacancies had been filled by permanent replacements as of May 31, and that the General Counsel did not come forward with any evidence that could support a finding that the filling of those jobs was influenced by unlawful discriminatory considerations relating to the strike. I therefore recom- mend dismissal of the complaint insofar as it pertains to Watts and Jackson.112 5. Floyd Stevenson (a/k/a "Steve") Snider The complaint alleges that Respondent wrongfully failed to recall Snider on August 20. By the General Counsel's express admission during the trial, however, the date chosen as the wrongful bypass date is utterly ar- bitrary and had no relationship whatsoever to any evi- dence introduced by the General Counsel during his 110 245 NLRB 574 (1979), cf , Giddings & Lewis, Inc, 255 NLRB 742 (1981). 111 Id. at 745. 112 Respondent also argues that See. 10(b)-bars a finding that Jackson was unlawfully discriminated against on May 31, since no charge pertain- ing to Jackson was filed until January 10, 1980, in Case 16-CA-8877, i.e, more than 6 months after the act of alleged discrimination set forth in the complaint. Sec. 10(b) being an affirmative defense, it was Respondent's burden to introduce evidence tending to show that the Union and/or Jackson had notice (actual- or, constructive) more than 6 months before the relevant charge was filed over the actions now challenged by the complaint. (See discussion of Burkett, supra.) Respondent has cited no evidence on which earlier notice of the complained-of actions affecting Jackson could be imputed to the Union and/or Jackson, and I can dis- cern none. I would therefore reject Respondent's defense under Sec. 10(b). prima facie case regarding any particular act or failure to act by Respondent affecting Snider. I 1 s The General Counsel's efforts to rehabilitate the Snider case on brief are linked to Snider's testimony that on February 11, 1980, Snider, asked Teegerstrom why he had not been recalled to work (Snider having heard from a source "four to six weeks earlier" that there had been new employees hired to perform his job). Snider "be- lieved" that Teegerstrom replied that ". . . it was due to strike misconduct." In an effort to explain the relation- ship of that event to the August 20, 1979 bypass date ap- pearing in the complaint, the General Counsel now states (at Tr. 45, emphasis added): [Snider] had, by his own admission, a faulty memory and on cross-examination admitted that it could have been October, 1979, as opposed to Feb- ruary, 1980 when he learned . . . that his job had been filled a month to six weeks earlier. This, of course, is much more in keeping with the August 20, 1979 date alleged in the complaint.114 The question raised by the complaint is, however: Is there any basis on this record for concluding that Re- spondent discriminated against Snider commencing about August 20 by failing to recall him to his prestrike job? Nothing in the General Counsel's prima facie presenta- tion would warrant an affirmative answer to that ques- tion. Under these circumstances, therefore, I do not be- lieve that the burden ever shifted to Respondent to ex- plain why Snider was not returned to the payroll on August 20;115 and I would therefore dismiss the com- plaint as to Snider for that reason alone.116 Respondent nevertheless came forward with credible and unrebutted evidence that there has been no need since the strike ended for persons in Snider's prestrike classification and that none has been recalled. Summariz- ing the credited testimony of Supervisor Aubrey Tuttle, 113 Tr. 785 12-15 See also Tr 790 7-10 in which the General Counsel acknowledges that it is "quite possible" that the drafter of the complaint was simply "spinning a calendar" when it came to choosing the date on which Respondent allegedly discriminated against Snider And see, gen- erally, colloquy at Tr 782-791. 114 The General Counsel regularly uses the expression "of course" as a device to mislead one into believing that he is merely adhering to a posi- tion that is fairly encompassed by the complaint language that he found no need to amend or clarify in a timely fashion. (Recall here the case of Burkett, supra, in which the complaint alleged a failure to recall Burkett on May 31, but in which the General Counsel was beard to say: "Well, of course, it's our position that the . . refusal to reinstate occurred in Janu- ary of 1980." See also his use of the expression in connection with his extraordinary shif ings of position in the cases of ,Orms and Haywood below.) Such chronic efforts to camouflage the General Counsel's "real" theory of what actions of Respondent were being challenged by tlie com- plaint not only fail to satisfy minimum due process "notice" requirements, but they also demean the government in whose name the General Coun- sel purports to act. 115 Bio-Science Laboratories, 209 NLRB 796, 804 (1974). 116 Respondent also argues that a complaint regarding an alleged August 20, 1979 bypassing of Snider is barred by Sec. 10(b) of the Act because a charge regarding alleged discrimination against Snider was not filed until February 4, 1980, in Case 16-CA-8877. Whatever else may be said against the. Snider case, however, it is nevertheless clear that the above charge was filed within 6 months of the August 20 conduct of Re- spondent (whatever that may have been) that was alleged in time com- plaint I therefore reject Respondent's 10(b) defense as to Snider AXEiSON, INC` I find that Snider held the prestrike classification of ma- chine parts inspector B. As such, Snider's primary job was to inspect raw material and raw castings, and his secondary job during any spare time was to inspect class B pump parts. As another consequence of the OCS- 1/ASME requirements implemented in March, however, the job of inspection of raw material and castings became more technically rigorous, especially in its paperwork (records-keeping) details, and in the use of more compli- cated precision testing equipment. Tuttle stated that only class A inspectors had sufficient skills and training to perform such involved tasks; and, accordingly, Respond- ent hired only persons with class A training and ratings to do inspection work after the March implementation of the OCS-1/ASME certification program.' 17 Tuttle testi- fied that there remains a limited amount of class B in- spection work that is done on A-line parts, but that there is no more than about 3 hours worth of such work each day, thereby rendering it uneconomical to hire or recall a class B inspector on a full-time basis to perform such minimal amounts of work. II s Assuming, arguendo, that some inspectors ranked at the class B level might nevertheless possess skills suffi- cient to perform the more rigorous class A, work, which now constitutes the majority of inspection work, this record shows that Snider did not possess such skills. By his own admission, his formal education is minimal, and he demonstrated in a number of testimonial instances dif- ficulties in dealing with matters of memory, and written and numerical abstractions."9 Tuttle credibly testified that the class A inspection work requires the memoriza, tion of complex tables'of allowable deviations from toler- ances, depending on the type of unit being produced or the type of material being used. In addition, class A in- spectors regularly use' precision measuring devices that class B inspectors are not permitted to use. Tuttle credi- bly opined that Snider did not possess the reading, writ- ing, and, memory skills required for such work, and that he had shown considerable difficulty in performing even the less complicated "B" inspection work that was avail- able before the strike. 'Finally, as Snider acknowledged, he has regularly re- ceived bid notices for job vacancies that have emerged since the strike ended. Therefore, contrary to suggestions in the General Counsel's brief, Respondent has not ruled Snider out of consideration for recall when and if some job becomes vacant for which he might qualify.120 For all the foregoing reasons, I conclude, on the merits, that Respondent has shown that legitimate and substantial nondiscriminatory business considerations ac- counted for its failure to recall Snider at any time before 11' Indeed, crediting Tuttle, no class B inspectors were recalled after the strike ended, but class A inspectors were so recalled. It therefore ap- pears that Snider was merely part of a class of persons whom Respond- ent did not recall, and that he was not subjected to unique treatment. lab Class A inspectors now perform such work along with the more rigorous inspection work that occupies most of their workday. 115 For example, Snider's statement "I work with my back, not my mind. I got to the ninth grade .. I have a memory that long (mdicat- mg).,, 120 Based on then-current projections, Tuttle predicted that there would be increased production of pump parts in the future, which would justify hiring at least one full-time class B inspector 891 the trial. I therefore recommend dismissal of the com- plaint pertaining to Snider on this basis as well. 6. Jackie Orms The evolution of the General Counsel's "real" theory regarding alleged discrimination against Jackie Orms is likewise illustrative of a tendency on the General Coun- sel's part to adopt positions of convenience unrelated to the apparent theory of the initial complaint. The com- plaint alleged initially in a separate paragraph that Re- spondent discriminatorily failed to reinstate Orms to his former position as toolroom leadman on June 29. That date approximates the date (June 27) when Orms was re- called to work in the toolroom. Orms testified that when he was so recalled, he continued to perform some (but not all) "lead" duties, but received neither the title of "leadman," nor the hourly premium that he had tradi- tionally enjoyed in that position. Respondent interposed a 10(b) limitations defense as to Orms, correctly observing that no charge was filed over this alleged discrimination until more than 6 months later (i.e., on April 3, 1980) in Case 16-CA-9058. This defense had facial merit, considering that Orms, an "affected party," labored knowingly for more than 6 months under this alleged discrimination without having filed a charge. Recognizing this, the General Counsel made an initial effort to shift ground, pretending that what the com- plaint was really addressing was an alleged failure to give Orms an newly created "temporary" leadman's position in mid-March 1980.121 These improvisations met consid- erable resistance from Respondent's counsel, who point- ed out that it had sought exactly this type of clarifying information for months, and had been regularly rebuffed by the General Counsel's office. The General Counsel then backtracked, suggesting that testimony regarding Orms be deferred until the Regional Director could re- consider, his position as to Orms. The Orms matter remained in that posture until the General Counsel notified the parties by telegram during a 4-week trial recess that "Counsel for General Counsel will move to amend . . . complaint by correcting date in paragraph 22 to read `Since on or about March 17, 1980.' Said correction is for purpose of conforming pleadings to proof. Furthermore, remedy will be sought only from March 17, 1980, forward."122 I granted the General Counsel's proposed amendment, notwithstanding that it came well after I had warned the General Counsel that he should amend his complaint where his evidence showed substantial variance from the discrimination dates set forth in his complaint. However deplorable it was that the General Counsel's "real" theory in this instance did not surface until later-and then only in an attempt to get around an apparent 10(b) barrier to his original allegation regarding Orms-this 121 Tr 339, in which the General Counsel states : "and the discrimma- tion took place at that time [i e., mid-March 19801, which, of course, was well within 10(b)." [Emphasis added.] 122 G.C. Exh. 39, emphasis added It is plain from the foregoing that the General Counsel was not merely "correcting" an inadvertency in the date on his complaint, but was engaging in a substantive amendment as to the conduct that he wished to challenge. 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was at least formal and plain notice to Respondent, and done in sufficient time for Respondent to meet the re- vised allegation. Moreover, the merits of the revised alle- gation were fully litigated. I now turn to those merits. The question framed by the General Counsel' s amend- ment is: Did Respondent discriminate against Orms about March 17, 1980, when it gave to another employee the opportunity to serve as a temporary leadman during the absence of the toolroom supervisor on vacation? The pertinent evidence is as follows: When Orms was returned to work in late June, there was no longer a reg- ular lead position in the toolroom. 12 3 Toolroom Foreman Tommy Bennett was scheduled to take a vacation in mid-March 1980. Based on favorable impressions that he had formed regarding EdRoberson, and after Roberson had indicated an interest in eventual promotion to a supervisory position, Bennett recom- mended to his superior, Schur, that Roberson be given the title of "temporary leadman" during Bennett's vaca- tion absence. This recommendation was passed to vice president in charge of manufacturing, Stewart Hink, who concurred. Bennett credibly testified that he considered other em- ployees in the toolroom, including Orms, for the tempo- rary position, but thought that Roberson was best quali- fied. He credibly stated that he did not believe that Orms was qualified for the job because Orms had difficulties in working with other employees and had repeatedly told Bennett that he was not interested in promotion to super- vision. Hink credibly testified that he had issued direc- tives as early as May 1977 that no lead positions were to be created or filled without his approval, and that he fur- ther instructed that any lead vacancies be given only to persons with a demonstrated talent for, and interest in promotion to, supervision." P4 Hink therefore approved the recommendation. In fact, the function performed by Roberson during Bennett's vacation absence was closer in nature to "acting" supervision, than to the "lead" position that Qrms had filled before the strike. Thus, Roberson had re- sponsibility for making independent judgments regarding assignments of all employees under Bennett's supervision. Orms lead job had been confined only to the tool and cutter grinders within the toolroom and had never in- volved such assignment discretion. In addition, Rober- son's lead function during Bennett's absence included other supervisory trappings, such as holding keys to the storage area and approving timesheets. - Based on all the foregoing uncontradicted and credible testimony, I conclude that Orms' participation in the ias Not included in this recitation is certain credible background evi- dence in the record as to why the leadman position formerly occupied by Orms was abandoned by Respondent as a result of experience formed during the strike indicating that the position was unnecessary and that most of the "lead" functions could be performed by class A operators in connection with their normal production tasks. (And see discussion of Ed Perry's case, below) The General Counsel's amendment as to Orms pre- cludes any possible finding at this date that Respondent's much earlier decision to delete Orms' lead position was discruninatorily prompted. 124 Orms conceded that he was not interested in becoming a supervi- sor when he met with Hink and other members of management in March to discuss gripes that had come to Hink's attention about the appointment of Roberson to fill the temporary lead vacancy strike did not influence the decision to give the tempo- rary job of supervision in March 1980 to' someone else. The complaint as to Orms, as amended, must therefore be dismissed. 7. Ed Perry ' The complaint separately alleges that "Since on or about February 1, 180, Respondent has refused to rein- state Ed Perry to his former position as leadman over the Automatic Operators, M.S., while requiring him to perform that duty [all because of Perry's union activi- ties]. These findings are based primarily on the uncontra- dicted testimony of James Rainey, the shop foreman with supervisory responsibilities in four departments, in- cluding in departments 506 and 507 (automatic multispin- del machines, and small turret lathes, respectively).'25 Before the strike, Perry was an automatic multispindel machine operator (MS operator), and was designated as leadman in departments 506 and 507. As such, he re- ceived a 20-cent-per-hou"r leadman' s premium. He spent all but about 2 hours each day as an MS operator, with the balance of his time spent in assisting other machine operators in setups and locating tools, and in training new employees. He also performed miscellaneous assist- ance tasks for Foreman Rainey throughout the depart- ments over which Rainey had authority, including col- lecting timecards. Perry participated in the entire strike. During the strike, it became evident that many lead positions were unnecessary and that foremen, with the ad hoc assistance of designated experienced operators, could perform the functions previously given to leadman. Because of this, and because of an earlier and more general directive from Vice President Hink regarding phasing out of non- critical lead positions, management determined not to continue as a permanent position the leadman's job previ- ously performed by Perry. John Greiner was hired in early May, at a time when there was a larger than normal ratio of new machine op- erators to experienced operators. About 2 weeks after he was hired, management designated Greiner as a tempo- rary leadman (with premium pay) in department 506 only. As such, he assisted in the training of new hires in department 506 and in locating tools for employees in that department only. Perry was recalled to a vacant MS operator's position in department 506 in September, while Greiner was still serving as temporary leadman in that department. t s 6 In November, Perry was called on to train two former strikers who had successfully bid for two vacant MS op- erator positions. 125 In addition, I rely on the uncontradicted testimony of Vice Presi- dent of Manufacturing Hink, and the uncontradicted testimony of Main Plant Superintendent Johnny Kelley. 526 Unlike the case of Orms in the initial complaint, it has never been alleged that Respondent discriminated against Perry by failing to return him to a lead position on his recall to work in September. Neither did the General Counsel try to show by way of background that there was such discrimination I therefore presume that no discrimination occurred at that time. AXELSON, INC. 893 For some time prior to January 1980, Greiner had been experiencing personal difficulties that made his job attendance erratic. Recognizing this, he resigned his leadman's job sometime in January, and stayed on as an MS operator. Respondent did not designate a new lead- man to take Greiner's place. It is apparently127 the fail- ure of Respondent to install Perry as leadman after Greiner's resignation, which is at the heart of the Gener- al Counsel's complaint pertaining to Perry's treatment. Contrary to that contention, I conclude that Respond- ent made a nondiscriminatory business judgment to elimi- nate as unnecessary the leadman's position that Perry had performed before the strike, and that it then used Greiner for more limited lead functions only until he re- signed. I further conclude that, after Greiner's resigna- tion, and in part because of its experience in being able to function effectively even during the period of Greiner's chronic absences, Respondent made a nondis- criminatory business judgment not to continue even the more limited leadman's function that Greiner had per- formed. Although it is true that Respondent's modified prac- tices involved use of experienced operators, such as Perry, to perform training and setup functions in depart- ment 506, it is also established that, even before the strike, experienced operators were used in this way, al- though not to the same degree. The Act does not require an employer to continue intact all practices and classifications that existed before a strike even if its experiences in operating during a strike suggest ways in which economies can be achieved. Where, as here, Respondent had demonstrable business grounds for first modifying the lead job formerly per- formed by Perry, and later eliminating even that modi- fied lead job, Respondent was under no obligation to recreate Perry's former lead job and premium (or any modification thereof) because that was the way it had earlier done business. Under other circumstances, it may be an employer's obligation under Section 8(a)(5) of the Act to notify and bargain with the union representing its employees before embarking on such modified practices. With the Union's representative status still in doubt due to the pendency of the RD proceedings, however, and especially in the ab- sence of any 8(a)(5) allegation in the complaint, the only issue before me is whether Respondent's refusal to make Perry, a leadman after 'Greiner's resignation was intended to punish Perry for having joined the strike. I conclude, for the reasons set forth above, that Respondent's expla- nations far more plausibly explain why neither Perry nor anyone else was made a leadman after Greiner's resigna- tion than does the General Counsel's suggestion. Accord- ingly, the complaint as to Perry must be dismissed. 8. Betty Phillips The complaint alleges that former, striker Betty Phil- lips was bypassed for recall to her former job on August 20. Here, as in the case of Snider, supra, I must conclude that the August 20 date was arbitrarily chosen-there 127 The term "apparently" is used advisedly The General Counsel's theory here, as elsewhere, is never made plain. being utterly no evidence suggesting that Phillips was bypassed about that date. 1128 The real theory of the General Counsel, based on his statements on brief, is, apparently,129 that Respondent wrongfully considered Phillips to have quit her job and, therefore, wrongfully denied her reinstatement at some later and unidentified point. Respondent appears to have discerned this, notwith- standing the utter lack of notice in the complaint and the grossly misleading and unfulfilled declarations of the General Cousnel regarding his intended proof. Thus, Re- spondent shouldered the burden of explaining when (Oc- tober 23, 1979, as it turns out) and why it determined that Phillips had voluntarily quit. And Respondent admits that, after October 24, 1979, it ignored her for recall to her former job and bypassed her by hiring others to fill vacancies in her prestrike classification. There was something approaching full litigation of the question whether Phillips voluntarily terminated her em- ployment and thereby waived any recall rights she other- wise possessed. In less aggravated circumstances, such full litigation might warrant deciding the question on its merits, notwithstanding the absence of a formal com- plaint allegation that is normally required to satisfy due process notice standards. Here, however, the General Counsel's persistent and willful concealment in numerous instances of what it was about Respondent's conduct that caused a complaint to issue provides ample grounds for refusing to decide the merits of his wholly revised theory of violation as to Phillips, Any other course would only reinforce the irresponsible approach towards litigation that was manifested throughout the history of these pro- ceedings by the General Counsel, including during the briefing stage thereof. Accordingly, I would dismiss the complaint as to Phillips, pro forma, based on the utter absence of any evidence tending to support the narrowly couched claim that Phillips was discriminatorily denied recall on August 20, and without regard to evidence bearing on a potential violation 'that was never alleged, and that was entirely different in character and in the timing of its occurrence from the violation that was al- leged. Alternatively, and to avoid the need for a remand should a reviewing body disagree with the foregoing res- olution, I make these findings and conclusions: Phillips was a former striker awaiting recall to her prestrike job 129 The General Counsel adduced testimony from Phillips about a conversation she had with Teegerstrom in August 1980 in which Teeger- strom told her that she was considered by Respondent to have quit her employment at an earlier date. This caused me to inquire whether the complaint was intended to refer to August 20, 1980, rather than 1979. At first the General Counsel stated: "It clearly should be '80, and I will move to so amend." (Tr. 444 13-19) Shortly afterward, however, the General Counsel changed his mind, stating that `"79 is correct," citing his intention to introduce evidence that employees junior to Phillips were re- instated prior to that time (i e , prior to August 20). But, if that was the General Counsel's theory, it may be asked why some date prior to August 20 was not chosen in the complaint In any case, the promised evidence of some bypass of Phillips was never introduced by the General Counsel Instead, the Phillips case must be marked down as one more mystery allegation in the complaint that the General Counsel has woodenly insisted was clear, concise, and adequate for notice purposes. 129 See fn 127, supra. 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as a general helper in the toolroom. There is credibility conflict regarding conversations between Phillips and Shelda Bush, Respondent's secretary to Industrial Rela- tions Manager Teegerstrom. In substance, Phillips main- tains that she called Respondent's personnel office and asked Bush how she might receive a check for her then- unused sick pay.130 Although- Phillips' testimony con- tains no reference whatsoever to the date of this call, I find, crediting Bush's testimony that it took place at some point between July 23 and August 23. According to Phillips, Bush replied to her inquiry about receiving unused sick pay by saying that Phillips would have to sign termination papers. Phillips admits that she replied, "Send them to me," and that Bush then said, "I'll have them in the mail." Phillips states that she thereafter received such papers in the mail, but discarded them in the trash, preferring to "see how the jobs came out," and further commenting: "I needed the job more than I needed the 5 days pay." Her testimony contains no reference to any further com- munications with Respondent until she spoke with Tee- gerstrom in August 1980 and learned from him that -Re- spondent was treating her as having quit. Shelda Bush's testimony differs in that she recalls having had 2 conversations with Phillips-the latter one being about October 23, 1979, and the earlier one being "about two or three months" before then. According to Bush, the first conversation with Phillips was as follows: Phillips inquired about her eligibility for vacation and sick leave pay. Bush told Phillips that she had not worked a full year and was therefore not entitled to va- cation pay; and that she would be entitled to sick leave pay in December, when all employees received checks for unused sick leave. Bush also told ' Phillips that the only other way she could receive unused sick leave pay would be if she terminated her employment. Bush states that Phillips gave no indication of her intention and that, accordingly, Bush did not send any termination materials to her. According to Bush, the later conversation about Octo- ber 23131 with Phillips was as follows. Phillips simply in- I i30 The most recent labor agreement contained at art 18 a provision regarding sick leave, as follows All employees in the employment of the company as of February 18, 1976, with at least three months seniority as of January 1, 1976, will receive 40 hours sick leave during the 1976 calendar year.-And em- ployees will qualify similarly and be due sick leave each year there- after. The company will pay all eligible employees during the week imme- diately preceding Christmas week any earned and unused sick leave during the same calendar year. Respondent acknowledged through the testimony of Bush and Teeger- strom that the practices reflected in the quoted portion of the labor agreement were continued in 1979 and 1980, notwithstanding the absence of any current bargaining relationship between Respondent and the Union. 131 Bush recalled only that the second conversation was in "October." She authenticated an October 24 letter that she mailed to Phillips in re- sponse to the second conversation (R. Exh. 44), which refers to "your telephone conversation of yesterday " I treat that exhibit as reflecting Bush's recorded past recollection and rely on it to establish the date of the second conversation. formed Bush that she wished to "terminate [her] employ- ment." Bush asked Phillips what her reason was. Phillips replied that she had "another position."- Nothing further was said. Bush states that she then mailed a- termination slip to Phillips along with a cover letter132 requesting that Phil- lips sign the slip and mail it back to Respondent, and fur- ther advising that "Any accrued vacation or sick leave for which you are eligible will be mailed to you." - Bush states that she then waited approximately 6 weeks without hearing further from Phillips and, pursu- ant to standard procedures in such cases, finally prepared an internal termination form that was routed in due course through several layers of management.133 Re- spondent's Exhibit 45, authenticated by Bush as the ter- mination slip that she prepared, reflects various manag- ers' signature entries, the last being on November 26, 1979. It also contains the entry: "No vac. due . . . 5 days sick leave due." Bush states that after the approval proc- ess was completed, a check was mailed to Phillips on November 29, 1979, reflecting pay for 5 days of unused sick leave. 134 I credit Bush's entire testimony as set forth above, based on her superior demeanor and the presence of records that at least corroborate her as to the timing and sequence of the events that resulted in Phillips' receipt of the unused sick leave pay. As to' whether or not there was a call from Phillips to Bush 2 or 3 months before October 23, I do not find it to be significant that Phillips did not mention it in her own testimony. Her testimony showed substantial confusion as to the dates of certain events, and it is significant that 'she was never recalled to deny Bush's more detailed testimony. It is therefore clear that Phillips voluntarily and with- out any expressed reservation resigned from her employ- ment with Respondent about October 23. The, fact that she had, 2 or 3 months earlier, made a general inquiry about how she might obtain vacation and/or sick leave pay, and the fact that Bush truthfully told her that she could either receive sick leave pay in December, when all employees received theirs, or could receive it earlier by quitting, was insufficient to give Respondent any reason to believe that her October 23 resignation was for any reason other than the one which Phillips gave at that time (i.e., another position). In his shifted position on brief, the General Counsel now places emphasis on the fact that Phillips did not re- ceive her unused sick leave pay check immediately after the October 23 conversation. The General Counsel stresses in this regard that Respondent "instead waited [to send Phillips her sick pay] until the week before the following Christmas when all the other employees re- ceived their unused sick pay."iss From this, the General lag R Exh. 44 - 133 Bush credibly testified, and I find, that Respondent frequently fails to receive signed termination slips from employees who have otherwise notified it of their intention to resign; and that, in such instances, an inter- nal termination form is prepared and routed for approval as described above, the approval process normally taking up to 2 or '3 weeks. 134 R Exh. 46 was authenticated by Bush as a true copy of the check to Phillips. It is dated November 29. iss G.C. Br 58, emphasis added. AXELSON, INC. Counsel argues (ibid.) that Respondent clearly under- stood that Phillips never intended to resign. The italicized statement of the General Counsel bla- tantly distorts the state of the record;136 but the General Counsel's resort to such unworthy measures clearly be- trays his own recognition that even his new theory con- cerning Phillips is fraught with difficulties. I conclude from all the foregoing that Phillips volun- tarily and unequivocally ended her employment with Re- spondent when, on October 23, she told Bush that she wished to terminate; and that her decision to quit was not influenced by the fact that she had, months earlier, received truthful advice from Bush, inter alia, that she could obtain a premature payment for her unused sick leave only by quitting.137 Accordingly, the complaint as to Phillips must be dis- missed on this basis, as well. 9. Thurman O. Haywood The complaint alleges that Haywood, who remained on strike throughout its duration, was wrongfully denied recall to his former job as an assemblyman on May 31. The sole evidence introduced by the General Counsel to support this allegation was Haywood's testimony that when he was eventually recalled to fill a vacancy in his former position in mid-February 1980, he found that an- other assembly job was already being occupied by Or- ville Hill, a prestrike employee with less seniority in the assembly department than Haywood. This prima facie presentation again left grounds for questioning the General Counsel's reasons for selecting May 31 as the date on which Haywood was allegedly bypassed. Respondent introduced evidence showing, in substance, that Hill had been permitted to return to his job as an assemblyman on October 16, before Haywood, because Hill had an automatic right to reinstatement linked to the fact that he had been on a valid medical leave of absence since before the strike; and, pursuant to longstanding practice,, Hill could therefore reclaim his job as soon as he was declared fit to resume work.1311 Crediting Teegerstrom, Hill fell at the plant and in- jured his knees on the afternoon of Friday, February 16, and went into medical leave status at that time and con- tinued in that status throughout the, strike and was not declared by his physician as being fit to return to work until about October 16, 1979. He was put back to work after Teegerstrom satisfied himself that Hill had been, in fact, on a valid medical leave (and see findings below). From this evidence, the General Counsel might have defended the bypass date in the complaint of May 31 on 136 November 29, the date on which the sick pay check was transmit- ted to Phillips, is hardly in "the week before ... Christmas " 137 Cf. Roylyn, Inc., supra, 178 NLRB at 197, in which the Board held- "On the facts of this case, it is patent that the strikers did not wish to abandon their employment status and did not sign the quit slips with that intent." Here, the facts-especially the lapse of time between Phillips' two calls to Bush, and Phillips' statement that she had another job when asked during the second call by Bush why she wished to terminate-are sufficiently different to warrant a contrary interpretation as to Phillips' intent when she told Bush she wished to terminate. 138 I credit the uncontradicted testimony of Respondent's agents Tee- gerstrom, Rink, McGehee, and Kelly that Respondent had such a long- standing policy respecting employees on medical leave. 895 the theory that an assembly job was being held open for Hill throughout the period of his convalescence, and was, therefore, a vacant job as of May 31, when strikers unconditionally offered to return. Instead, on brief, the General Counsel abandons the May 31 date, sub silentio, and now argues: "It is, of course, the position of . . . the General Counsel that Re- spondent violated the Act on the date it recalled a man junior in classification seniority (Hill) rather than Hay- wood, and that Haywood was discriminated against from that day forward." ' 39 It is now quite evident, therefore, that the General Counsel no longer contends that Hay- wood should have been reinstated on May 31, but, rather (as the General Counsel further states on brief, pp. 9-10), I am asked to "find that Haywood was a discriminatee from the date Hill was recalled as an assemblyman.140 That is the violation." Accordingly, I treat the General Counsel's revised statement of his theory as conceding that Respondent owed Haywood no duty of reinstatement as of May 31, and that such a duty arose only when it permitted Hill to return from medical leave on October 16. Put another way, the General Counsel now says that it did not vio- late the Act for Respondent to keep Hill's job open or reserved for Hill based on his medical leave status; but, as soon as Respondent actually allowed Hill to return to the job that it was entitled to reserve for him, pursuant to its medical leave policy, a violation of the Act (some- how) occurred! This argument may have some underly- ing logic that is' evident to others. As I view it, however, the General Counsel has simply stipulated away the Hay- wood case by his most recent statement of his "real" theory of violation. As Respondent stresses on brief, there is more than a little irony in the General Counsel's position that Hay- wood should have been put to work in October, instead of Hill. For the Regional Director had, at roughly the same time, taken an entirely contrary position in the case of an employee named Wacasey who, like Hill, had been in medical leave status, and who had filed a charge with Region 16 when Respondent did not immediately rein- state him to his job on his resumption of fitness for duty. Based on advice from the Regional Office that Wacasey had not joined the strike, but, rather, had been on medi- cal leave, Teegerstrom investigated and determined that this was true, and therefore reinstated Wacasey even though he was junior to'other similarly classified strikers awaiting recall. In dismissing Wacasey's charge, the Re- gional Director stated, in effect, that since Wacasey had been eventually accorded his traditional 'medical leave reinstatement rights, no violation had occurred in the delay between Wacasey's initial attempt to return and the date on which Respondent finally determined to accord him those rights. (See R. Exhs. 32(a) and (b).) This amounted to an acknowledgement by the same office that issued the Haywood complaint that employees returning from medical leave wer e entitled to be reinstat- ed ahead of more senior former strikers awaiting recall 135 G.C. Br 8, emphasis added. 140 1 e., shortly after October 16. 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the same classification. The General Counsel's brief is silent as to this evident "right hand-left hand" problem; and he nowhere suggests what it was about Respondent's reinstatement of Hill ahead of Haywood that would war- rant a result different from the Regional Director's han- dling of the Wacasey matter. I make these additional findings pertinent to the Hay- wood case based on Teegerstrom's credited and uncon- tradicted testimony: Before Hill was returned to his former job, Teegerstrom investigated to satisfy himself, that Hill had been on bona fide medical leave. His inves- tigation disclosed that Hill had received workmen's com- pensation benefits during the period of his absence, and that Respondent had paid him holiday pay during his ab- sence (even though it had not done so for strikers). Tee- gerstrom further inquired whether Hill had been a strike participant and learned nothing to suggest that Hill had intentionally converted his status from that of an, em- ployee on medical leave to that of an economic strik- er.141 I conclude, under all the circumstances set forth above (and without regard to the'fact that the General Counsel seems to have unconsciously conceded the absence, of any valid theory of violation) that Respondent was not obliged to treat Hill's job as a vacant job for purposes of implementation of its striker recall program. Bancroft Cap, supra; cf. Giddings & Lewis, supra. See also 'United Aircraft Corp., 247 NLRB 1042, 1045-1046 (1980). I further conclude that it was not inherently destruc- tive of strikers' rights for Respondent to refuse to aban- don its traditional policy of granting automatic reinstate- ment to ,employees returning from valid medical leave; or, put another way, for refusing to subordinate Hill's medical leave recall rights to Haywood's striker rein- statement rights. Thus, in the absence of any evidence that Respondent was motivated by a desire to discrimi- nate against Haywood for striking in deciding to permit Hill to exercise his traditional right to return on recov- ery from his industrial injury, the complaint as to Hay- wood must be dismissed. 10. Arthur Kingsby The complaint alleges that Respondent wrongfully failed to recall Kingsby on December 5. The General Counsel's proof was limited to a showing that Kingsby received a letter dated December 12 from Respondent inviting him to bid on several job vacancies in positions other than the one he had occupied before the strike; and that when Kingsby appeared to submit a bid on one of the jobs, Teegerstrom told him that he was too late and refused to consider him for that job. It is the General Counsel's apparent position that Respondent did not afford Kingsby a "reasonable time to reply" to the,bid offer. I find as follows: Between the conclusion of the strike and December 12, Respondent had mailed Kingsby at 141 Haywood testified vaguely that he had seen Hill at the .picket line on occasion during the strike There is no evidence that Respondent knew this; nor would Hill's mere presence at the picket line necessarily warrant the conclusion that he was fit for work but had chosen to waive his automatic reinstatement rights and to join the strike least two other letters inviting his bid on several vacant jobs, and Kingsby had not responded.142 As in the case of the other' letters, the December 12 letter to Kingsby advised him-that the vacant jobs would be "posted for a period of three (3) work days beginning Thursday, De- cember 13, 1979."143 The effect of the 3-workday bid deadline, (as I construe it) was to require an affirmative indication from Kingsby by no later than the close of business on Monday, December 17. Kingsby testified, in substance, that he was then-work- ing regular 12-hour shifts at another machine shop (Metric) and did not get off work from that job until 6 p.m. and required another 30 minutes driving time to get home. He states that he found a notice of attempted de- livery of the December 12 letter when he arrived home at 6:30 p.m. on Friday, December 14.144 He further states that he arranged to have his wife pick up the regis- tered letter on Monday, December 17, because he be- lieved that the post office was closed on the weekend and he had 'to work throughout the hours that the post office would be open On December 17. Accordingly, states Kingsby, he did not receive the December 12 bid letter until he returned home at 6:30 p.m. on December 17. He further states that he appeared at Respondent's personnel office about 8 a.m. on Tuesday, December 18, at which time he encountered Teegerstrom who in- formed him that it was too late for Kingsby ' to bid on the jobs that were announced in the December 12 letter. Teegerstrom contradicts Kingsby's recollection, stating that it was not until the' morning of either Thursday, De- cember 20,' or Friday, December 21, that Kingsby ap- peared to submit his bid. Kingsby's recollection is con- tradicted, and Teegerstrom circumstantially corroborat- ed, by other records, duly authenticated timecards from Kingsby's , job at Metric, which Respondent' intro-- duced.145 These show, contrary to Kingsby's recollec- tion, that Kingsby left work at Metric on Friday, De- cember 14 at 12:45 p.m., leaving him substantial time that day to obtain the December 12 letter from the post office, -had- he so desired. Moreover, those cards reflect that' Kingsby did not appear at work at Metric on Monday, December 17 until 10:01 a.m., leaving him ad- ditional time to obtain the letter from :the post office' that morning. Even more revealingly, the 'timecards show that Kingsby worked at Metric on Tuesday, December _18, from,5:59 a.m. to 6:01 p.m.-thus rendering plainly inaccurate his claim that he had gone 'to Respondent's plant to submit his bid that morning. Finally, those time- cards'show that Kingsby worked at Metric throughout the business day on all days in the balance of the week except for Thursday, December 20, on which day he did 142 This was during the period that Respondent was still using the costly and time-consuming procedure of notifying each striker by regis- tered letter'of all vacancies 74S'GC Exh. 19 144 He initially recalled that he received this notice on Friday, Decem- ber 7, but amended his testimony as indicated above when shown the date on an authentic copy of the letter. These findings reflect a correc- tion of Kingsby's recollection as to relevant dates, which was skewed by a period of I week. 145 R Exhs. 33(a) and (b) See also clarifying testimony at Tr. 1654- 1657. AXELSON, INC. not appear at Metric until 11 :04 a.m. (thus giving him time that morning' to go to Respondent's plant). I thus find that Teegerstrom's recollection was accu- rate, and that it was not until the morning of Thursday, December 20, that Kingsby attempted to submit a bid on a job for which the posting had closed at the end of De- cember 17. I further credit Teegerstrom's sincere-appear- ing testimony that he informed Kingsby that the bids had already closed on the job vacancies in question, and that Kingsby neither protested, nor- otherwise 'sought to ex- plain why he had not replied sooner, nor requested re- consideration of the closing of the bids. I credit Teegerstrom that the job 'on which Kingsby had wished to bid was in fact given to W. L. Kirbo, an- other striker awaiting recall. I further find from Teeger- strom's uncontradicted testimony that Respondent mailed Kingsby several additional offers to bid on other vacant jobs after December 11, that he was finally reinstated shortly after the instant trial began. From the credited evidence above, I conclude that Re- spondent had no discriminatory intent in refusing to accept Kingsby's attempt to bid on a job for which bid- ding had closed 3 days earlier-especially under circum- stances where the job in question was given to another striker awaiting recall, rather than to an "outsider." I conclude; in addition; that there was nothing inherently "unreasonable" about the uniform imposition of a 3-day bid deadline . ' There were hundreds of strikers awaiting recall at the time, and it was in their interests, as well as in Respondent's legitimate business interests, to fill vacant jobs as promptly as possible. Indeed, the General Counsel does,not expressly contend that the 3-day dead- line was, per he, unreasonable. 146 If that was the conten- tion, it was nowhere in the complaint; and, since the evi- dence plainly shows that the 3-day bid deadline had been uniformly applied to other unrecalled strikers during and before the period in question, I must conclude that the General Counsel has Waived that contention. The General Counsel nevertheless equivocates on brief on this point, At one stage in his argument, he simply relies on Kingsby's discredited testimony about the timing and other circumstances surrounding his attempt to bid, and implies that Respondent was unreasonably rigid in refusing to accept Kingsby's bid when Kingsby came in "as 'early as physically possible" to submit it. 147 At another point, however, in a section formally labelled "Argument," the General Counsel shifts ground and sug- gests (albeit inconclusively) that the 3-day deadline was inherently unreasonable. Thus, the General Counsel's argument begins with the assertion: "The law is clear that a discriminatee is entitled to a reasonable period of time in which to consider a re- instatement offer. ",148 The General Counsel ignores the 146 It must be recalled that the 3-day deadline actually referred to 3 working days, and that, in Kmgsby's case, he would have had the benefit of at least 3-1/2 full calendar days (Friday p.m, Saturday, Sunday, Monday) within which to mull over the question whether or not to bid on one of the announced vacancies, had he obtained the bid letter from the Post Office promptly after he left work at Metric about 12:45 p.m on Friday, December 14. 147 G.C. Br. 33. 148 Ibid., emphasis added 897 fact that Kingsby was not a discriminatee at the time he received the December 12 bid letter-rather, he was simply a former striker with Laidlaw recall rights. Al- though it is true that such strikers awaiting recall are likewise entitled to a reasonable time to respond to offers of reinstatement, the General Counsel has not called to my attention any cases in which the imposition of a 3- day deadline to bid on an out-of-classification job (with- out prejudice to the striker's continuing Laidlaw recall rights for declining to bid at all) has been treated by the Board as violating the -unrecalled striker's rights, either per se, or in specific circumstances. The Board has, how- ever, adopted the statement of the administrative law judge in Markle Mfg., supra, that "an employee awaiting recall has a duty, at a minimum, to keep the employer informed of his current address in order to allow the em- ployer to effectively notify him of recall by certified mail, a means which has been approved by the Board."1 49 By parity of reasoning here, even assuming, arguendo, that Kingsby's work schedule at Metric made it difficult for him to receive registered mail bid invitations in suffi- cient time to reply thereto, I would conclude that it was Kingsby's duty to so advise Respondent' in advance, so that other arrangements might be made by which Re- spondent could "effectively notify" him of bid opportu- nities. If this is so, then even if Kingsby were credited concerning his claimed work schedule conflicts, Re- spondent was not chargeable with unlawful discrimina- tion for failing to give Kingsby more time than its stand- ard policy would have permitted to respond to bid op- portunities, unless Kingsby had taken action to propose another means for Respondent to effectively communi- cate with him, which he did not. I therefore conclude under all the circumstances that Respondent's 3-day bid dealine was not, per se, "unrea- sonable." I further conclude, considering Kingsby's fail- ure to notify Respondent in advance of any' special prob- lems he had in receiving registered letters, and consider- ing Kingsby's lack of diligence in failing to obtain the registered' letter until December 17 and further failing until December 20 to respond thereto, that Respondent did not violate the Act by treating Kingsby's bid as un- timely. The complaint concerning Kingsby must there- fore be dismissed. 11. Edmond Jones The complaint alleges that Jones was wrongfully denied recall on October 2. In substance, the real issue raised by Jones' situation is whether or not Respondent was entitled to reject Jones' October 2 response to an offer of reinstatement on the grounds that it was untime- ly. The uncontradicted facts are as follows: On Tuesday, September 25, Respondent took a letter dated September 24 to the post office for registration and transmittal to Jones.1 so The letter, signed by Teeger- 149 239 NLRB at 1148 150 There are superficially curious discrepancies between and among the dates on the original of the letter to Jones and the postmark on its envelope and a copy of the letter retained by Respondent without going Continued 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strom, offered reinstatement to Jones to his prestrike classification, and stated in pertinent part (emphasis added): You are directed to report to work within three (3) work days following delivery of this letter or delivery notice of this letter to the above address. Your failure to timely report for work will result in your termi- nation. Immediately upon receipt of this letter tele- phone me to inform me of date you will report to work. The letter was identical in format to hundreds of rein- statement offers mailed by Respondent in the course of its poststrike recall efforts. It should be noted that, unlike the out-of-classification bid invitation sent to Kingsby, supra, the reinstatement letter to Jones was intended to satisfy Respondent's Laidlaw obligation to offer full rein-, statement to former strikers as vacancies emerged in their prestrike jobs; and, therefore, a failure on the part of the recipient to accept the reinstatement offer could properly be treated by Respondent as a forfeiture of all further employment rights by the recipient. A postman attempted to deliver the registered letter to Jones' residence on Wednesday, September 26, but, find- ing no one at home, left a notice of attempted delivery in Jones' mailbox. Jones admits that he had been absent from his home for about a week, visiting in Dallas. He returned from that automobile trip on the afternoon of Thursday, September 27, but did not check his mail- box.'' He had not notified Respondent in advance of his intended absence, nor had he made any alternative ar- rangements for Respondent to make contact with him. For reasons that he never made clear, Jones did not check his mailbox until the afternoon of Friday, Septem- ber 28, and only then discovered the notice,of attempted delivery, which stated that he could pick up the regis- tered letter at the Post Office after 8 a.m. on September 27 (thus suggesting that the notice of the letter had been placed in his mailbox on September 26). Conceding that there was still time on Friday afternoon to go to the Post Office to pick up the letter, Jones admitted that he had not tried to do so, claiming that he had no transporta- tion. Based on the overall impression I formed of Jones as an evasive and somewhat artful witness, and the evi- dence above and below that Jones had access to trans- portation in the period immediately before and after Sep- tember 28, I -do not credit the reason just mentioned. Rather, I conclude that Jones simply did not choose to make the trip to the Post Office a matter of priority in the conduct of his affairs. 1 s 2 into exhaustive detail, credible and uncontradicted testimony of Respond- ent's agents reflects that the discrepancies were the result of inadvertent errors in clerical processing. The findings above and below as to the actual dates on-which the letter was processed and-transmitted to Jones are based on uncontradicted testimony, including that of a local postal service official, and on the parties' stipulations at Tr. 514. 151 Jones gave varied accounts of the timing of his return from his, trip to Dallas. The findings here are based on his ultimate concessions during cross-examination and examinat ion from the bench. 162 He was not employed at the time. Jones finally went to the post office about 2:30 p.m. on Monday, October 1, where he then obtained the-letter, opened, and read it. He admitted that there was still time that afternoon to have communicated an acceptance to Respondent of the reinstatement offer, but claimed that he did not have 25 cents for a telephone call. Because Jones had a telephone at his residence, because there was a free telephone available at the post office, and because Jones admittedly rode around with his brother in the,lat- ter's car for the balance of the afternoon, I give no cre dence to this reason for his failure to contact Respondent before the close of business on Monday. Jones did call Teegerstrom on the morning of Tues- day, October 2, and accepted the reinstatement, offer. Teegerstrom told him to report to, work the next day. Later on October 2, Teegerstrom examined the date on the reinstatement offer letter and inquired of the Post Office when the first notice of attempted delivery had been left at Jones' residence. On learning that this had been done on Wednesday, September 26, Teegerstrom determined that ` Jones' acceptance was untimely and so notified Jones. Respondent thereafter treated Jones as having terminated himself by failing to timely respond to the reinstatement offer. It is uncontradicted that the position to which Jones was offered reinstatement had not been ,flled at the time Teegerstrom rejected Jones' acceptance as untimely.153 It is Respondent's position that nondiscriminatory con- siderations of efficiency and the overall goal of effecting prompt reinstatement of former strikers warranted strict adherence to the 3-day acceptance deadline that it had imposed. I accept Respondent's ,position. As noted in the case of Kingsby, supra, the quoted language in Markle Mfg„ holding that a former striker awaiting recall has a duty to keep his employer apprised of his current whereabouts so that the employer may give him "effective- notice" of reinstatement imposed on Jones a duty to notify Re- spondent in advance of his, absence from his residence so that other arrangements might be made for communicat- ing a reinstatement offer, should the occasion arise. And, from all of the circumstances recited above,, Jones ap- pears to have violated this' duty-not only in "leaving his residence for a week without notice to Respondent, but also by his failure to check his mailbox promptly after his return, by his procrastination in obtaining the letter once he learned of its attempted delivery, and by his fur- ther procrastination in failing to promptly make contact with Respondent once he had read its contents. Accord- ingly, the delays in Jones' response to the letter were largely-if not entirely-the -product of his own lack of diligence, and were not attributable to any flaw in Re- spondent's efforts, nor to any unique or exceptional cir- cumstances. In addition, it is difficult to charge Respondent with an actual intent to discriminate against former strikers by treating Jones' response as untimely when the employee who ultimately received the job in question was another '53 See credited testimony of Joe Coats, who stated that the position was not filled by Ralph Funk, another former striker awaiting recall, until late October, following a bidding process. AXELSON, INS, former striker awaiting recall. I am further satisfied that Respondent's professed business justification for rejecting Jones' belated acceptance of the reinstatement offer (the need to get on with its striker recall program) was its true motivation. The only remaining question presented by Jones' case, therefore, is: Was there something "inherently destruc- tive" to the exercise of important employee rights about the "acceptance" conditions imposed in the letter that Jones received? There are two potential and related bases for an argu- ment that those conditions had such an inherently de- structive effect. Thus, it may be argued that a 3-day deadline was inherently unreasonable. As noted in the Kingsby discussion, supra, however, the Board has no per se rule about the length of time that an employer must allow to' a former striker awaiting recall to accept a reinstatement offer-the only rule being that a reasonable time be afforded under all the circumstances. I find noth- ing in the circumstances here that warrants treating the deadline as unreasonable. Had Jones been diligent, he would have had no difficulty in learning of, and in com- municating his acceptance of the reinstatement offer within the prescribed 3 workdays. Moreover, it was not shown that the uniform application of the 3-day deadline -created problems for any of the hundreds of unrecalled strikers who were eventually reinstated, save Jones. Another potential argument is that the deadline was confusingly expressed in the letter, arguably suggesting to the unwary reader that one could accept the reinstate- ment offer within 3 working days of either the date of actual delivery of the letter itself, or the date of delivery of notice, whichever is later. I commented during the ex- amination of Jones that the letter did not expressly com- municate the opposite message (i.e., it did not say ".whichever date is earlier"). On reflection, however, I believe that it would unduly strain the clear import of the letter to conclude that it was susceptible of meaning that an employee could, respond within 3 workdays after he actually received it and without regard to when the first notice of delivery had taken place. 1,54 Neither do I believe that' Jones was, in fact, subjective- ly confused concerning how much time he had to re- spond; once he, read the letter on the afternoon of Octo- ber 1. He testified at one point that he "read the letter and it stated three working days, so I figured I had one more day. That's why [he didn't call Teegerstrom on Monday the lst]." If Jones had truly believed that the date of his actual receipt of the letter started the running of the deadline period, he would have concluded that he had 3 more days, not just one. I therefore treat that testi- mony as disingenuous. For all the foregoing reasons, I conclude that Re- spondent's deadline for Jones' acceptance of the rein- statement offer, was neither inherently unreasonable nor confusingly expressed; nor was it motivated by an intent to undermine the reinstatement rights of former strikers. 154 It would have been entirely unnecessary to make any reference whatsoever to the date of delivery of notice of the letter if the date of actual delivery of the letter itself started the running of the 3-day dead- line. 899 I further conclude that Respondent was motivated by le- gitimate and nondiscriminatory considerations relating to the worthy goal of effecting the recall of strikers without delay, and that its rejection of Jones' acceptance was done in furtherance of that goal and to discourage pro- crastination in Respondent to reinstatement offers. Accordingly, the complaint concerning Jones must be dismissed. 12. Eugene Ashley Ashley's situation was the subject of a separate com- plaint paragraph in which it was alleged that "On or about April 3, 1980, Respondent terminated the employ- ment of, and failed and refused, and continues to fail and refuse to reinstate employee Eugene Ashley." The broad issue in Ashley's case is: Was Respondent motivated by discriminatory considerations relating to Ashley's strik- ing or other union activities when, on April 3, 1980, it admittedly notified him by letter from Teegerstrom that he was terminated for two listed reasons, each of which, Respondent stated, "constitutes a separate, independent and self-sufficient basis for termination" as follows: '(1) Your conduct on March 27, 1980 during a telephone conversation with the Manager of Indus- trial Relations wherein you engaged in multiple acts of major misconduct which can be summarized in part as constituting direct and unjustifiable insubor- dination, unjustifiable and unprovoked verbal abuse, and unjustifiable and unprovoked verbal assault. (2) Failure and refusal to timely report to work to a job previously bid and accepted, without expla- nation, justification, or valid grounds for said failure and refusal to timely report. The uncontradicted background is as follows: Ashley, a former striker awaiting recall, had been receiving invi- tations to bid on vacant jobs outside his prestrike classifi- cation on a regular basis since the strike had concluded. He had declined the opportunity in some instances and had exercised it in others, but had not received any of the jobs for which he had bid. 1 5 5 After Respondent had modified its bid solicitation program in February 1980,156 Ashley' completed one of the newly developed "Reinstatement Bid and Acceptance" forms, listing, inter alia, the position of general helper as one job that he would accept on an interim basis, should an opening de- velop, and until such time as a vacancy arose in his pres- trike classification.157 The form signed by Ashley contained, inter alia, this language: I . . . agree to automatically accept any vacancy for which the company determines I am the successful bidder. I also understand and agree to the reinstate- ment bid conditions described in the letter to me 155 The General Counsel expressly disclaimed any challenge to earlier instances in which Ashley had failed to be the successful bidder. (Tr. 564.2-565:12). 155 See fn. 29, supra 157 G.C. Exh. 32. 900 DECISIONS OF TIIE NATIONAL LABOR RELATIONS BOARD from John Teegerstrom dated February 29, 1980 which was enclosed with this form. [Emphasis added.] The February 29 letter just referred to included the following conditions pertinent to Ashley's case: By supplying this [bid] information on the enclosed form . . . a striker will automatically accept rein- statement to any such vacancy for which he is the successful bidder. If the striker fails to report to work within three (3) working days after delivery, or attempted delivery of the reinstatement notice, the striker will be con- sidered to have terminated his employment rights, ab- sence jsic] compelling circumstances.' 58 On March 27, 1980, Ashley received a letter dated March 25 from Respondent notifying him that he was the "successful bidder for the job General Helper." The letter instructed Ashley to report to work within 3 work- days. Pursuant to further instructions in that letter, Ashley telephoned Teegerstrom on March 27 from the Union's local office. The contents of the conversation that ensued are in substantial dispute. It is at least agreed that Ashley asked what pay rate would be applicable to the job and that Teegerstrom told him that it was $5.72 per hour, plus COLA (cost-of-living allowance). This was the pay rate generally applicable at the time for gen- eral helpers, but it was less than the rate applicable to the prestrike classification held by Ashley. It is further undisputed that Ashley challenged the pay rate figure give by Teegerstrom for two related reasons: First, Ashley was laboring under the misapprehension that em- ployees who successfully bid on some vacancy in lower- rated classifications than their prestrike classification were nevertheless entitled to receive the higher pay rate while performing the lower-rated job. Second, this mis- taken assumption was fed by Ashley's knowledge that Respondent had entered into a special settlement ar- rangement with another former striker, Wadell Thomp- son, in which Respondent had offered to pay Thompson a "red circle" rate of $6.93, plus COLA, even though he had been reinstated to a general helper classification. 159 Teegerstrom, corroborated by Rod Plant Superintend- ent McGehee, who was present when Ashley 's call came in, 160 states, in substance, as follows: Teegerstrom and 1511 R. Exh. 10, received as a specimen of the letters sent by Respond- ent under its streamlined bid/recall program, and which was the letter addressed to Ashley (emphasis added). 159 This arrangement between Thompson and Respondent was appar- ently in settlement of some dispute or some charge that did not figure in these proceedings. A written memo had been prepared (G.C Exh. 33) by Respondent on February 29, 1980, clearly reflecting this background, noting that it was deemed by Respondent to be a lump sum settlement through the device of the special "red circle" rate for Thompson. Ashley had obtained a copy of the settlement memo and he had it before him when he spokeby telephone with Teegerstrom on March 27 150 McGehee states that he was able to overhear Ashley's loud and abusive remarks next set forth because Teegerstrom held the telephone receiver away from his own ear so that McGehee could listen. McGehee were discussing current manning requirements in the rod plant when Ashley's call was taken by Teeger- strom's secretary. Teegerstrom commented to McGehee: "Hey your general helper is- responding." After the ini- tial discussion about the applicable pay rate, Ashley grew angry and called Teegerstrom a "goddamned liar" when Teegerstrom insisted that the rate was $5.72, plus COLA. Teegerstrom then told Ashley that he would not argue with Ashley and instructed Ashley to report to work, as the reinstatement letter had instructed. Ashley responded that Teegerstrom could "go straight to hell" and that Ashley would do as he "goddamned well pleased." According to Teegerstrom,. he thereafter waited sever- al days without hearing further from Ashley, and then wrote the April 3 termination letter to Ashley quoted above at the introduction of this section. Ashley, partially corroborated by union representative Vernon McKimmey, who stated that -he was present in the Union's office during Ashley's call, t 61 gave the fol- lowing version of the same conversation: Ashley ques- tioned why Teegerstrom was only paying the general helper's rate when Ashley had before him a letter (i.e., the Thompson settlement memo), which showed that an- other general helper was receiving "seven dollars some- thing." Teegerstrom then said that he would not argue with Ashley, further warning Ashley: "You've got until one o'clock to get back in here. If not, I can terminate you." Ashley closed the conversation, saying that Tee- gerstrom could "do whatever he wanted to do." Al- though initially stating that he never raised his voice or used profanities, Ashley eventually conceded on cross- examination that he might have used the word "hell" in a nonabusive context. He was pressed on cross-examina- tion as to whether or not he had said to Teegerstrom that Teegerstrom could "go straight to hell." Ashley re- plied: ` I don't remember that." After viewing all witnesses as they testified to these and related matters, I formed the impression of Ashley that his version was untruthful. While McKimmey's gen- erally corroborative testimony- appeared to be sincerely voiced, I retain doubts whether he was as intimately in- terested in Ashley's end of the conversation as his testi- mony would suggest. I was impressed by the apparent conviction of Teegerstrom and McGehee in their re- counting of what took place. I therefore credit Teeger- strom's account, as corroborated by McGehee. Analysis and Conclusions Ignoring for the moment that I have found, in sub- stance, that Ashley was gratuitously abusive and insubor- dinate in his remarks to Teegerstrom, I would find, even in the absence of such behavior, that Respondent was privileged in treating Ashley as having terminated his employment by his refusal to report for the general help- er's job that he had agreed in advance to automatically accept, and under circumstances where he had also 161 McKimmey purports only to have overheard Ashley's end of the conversation, and generally corroborates Ashley about what Ashley said, especially as to the absence of any loud or abusive language. AXELSON, INC. agreed in advance that his subsequent' failure to report would be deemed grounds for his termination. Particular- ly in the absence of any challenge by the General Coun- sel to the uniform practice of Respondent during this period of imposing such seemingly nondiscriminatory conditions on employees submitting bids for jobs other than in their prestrike positions, and in the light of the evident business purposes that those conditions served,162 I find no basis for concluding that Respond- ent was, in fact, prompted by proscribed reasons in ter- minating Ashley, or that its termination of Ashley had some "inherently destructive" impact on the exercise of important employee rights. I would therefore dismiss the complaint as to Ashley on this basis alone. Adding to the foregoing analysis the aggravating fac- tors of Ashley's abusive and insubordinate behavior to- wards Teegerstrom, and considering that Respondent has maintained for some years a written policy in its employ- ee handbook of treating the use of "abusive language" and acts of "insubordination" by employees as discharge- worthy offenses163 I have no hesitancy in concluding that Ashley's discharge did not violate the Act. Thus, even assuming, without deciding, that the General Coun- sel made a prima facie showing that Ashley's discharge was partially motivated by antiunion hostility, I would find that Respondent met its burden of showing that Ashley would have been discharged even absent such hositltity. Wright Line, 251 NLRB 1083 (1980). The complaint as to Ashley must therefore be dis- missed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the, meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act, 3. By treating the employees listed below as having terminated their employment by taking "permanent em- ployment elsewhere," under circumstances where Re- spondent failed to carry its evidentiary burden of demon- strating that those employees had, in fact, abandoned their statutory rights to reinstatement when vacancies arose in their prestrike jobs; and by failing to reinstate those employees to their prestrike jobs when admitted vacancies arose, Respondent has engaged in, and is en- gaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. The employees thus discriminated against are: C. C. McKee Robert H. Brenner Otis D. Nichols John E. Kemp Donald E. Brightwell Bobby J. Ballard Robert Washington Donald L. Sapp R. D. McGrede 4. By discharging the employees listed below for their strike-related activities under circumstances where Re- spondent failed to carry its evidentiary burden of show- ing that those employees were guilty of flagrant and 162 The need for promptness, efficiency, and certainty in the imple- mentation of Respondent's sinker recall program 163 R Exh. 18. 901 egregious misconduct during the strike, Respondent has engaged in, and is engaging in, unfair labor practices af- fecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. The employees thus discriminated against are Q. Ray Williams, William J. Bryant, Jimmy G. McGrede, and S. L. Curtis. 5. After eventually abandoning the contention that former strikers C. C. McKee, Otis D. Nichols, Donald E. Brightwell, and Robert Washington had forfeited their rights to reinstatement by taking "permanent em- ployment elsewhere," and after offering reinstatement to them to their prestrike jobs, Respondent further discrimi- nated against those employees by conditioning their 'rein- statement on their passing of a rigorous physical exami- nation and by denying them reinstatement when they failed to pass those examinations. Respondent similarly discriminated against J. E. Allen and Douglas Wheelis by imposing such a physical examination condition on their right to reinstatement and by denying them rein- statement for failing to pass such examinations. By those acts, and by each of them, Respondent has engaged in, and is engaging, in unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) and (1) of the Act. 6. Respondent did not violate the Act-either as al. leged in the complaint or under any other set of circum- stances that were fully and fairly litigated-by its treat- ment of the individuals listed below: D. R. Daniel J. D. Burkett Bennie Jackson, Jr. Dan Watts Edmond Jones Jackie Orms Ed Perry Betty Phillips Thurman O. Haywood Arthur Kingsby Floyd Stevenson Snider Eugene Ashley THE REMEDY Speaking generally, based on the foregoing findings and conclusions that Respondent discriminated against former strikers in certain instances by treating them as ineligible for reinstatement under circumstances where they had not forfeited their Laidlaw reinstatement rights, it is my recommendation that Respondent be ordered to cease and desist from such discriminatory acts, that it post an appropriate remedial notice at its Longview plant, that it reinstate those employees to the employ- ment status they occupied immediately prior to the acts of discrimination that I have found, and that it make those employees whole, with interest, for any losses of pay or benefits that they have suffered as a consequence of Respondent's discriminatory acts.164 To avoid confusion at the compliance stage in the computation of backpay amounts, I deem it necessary to tailor my remedial recommendations to the particular circumstances presented by each class of discriminatees discussed above. 164 All amounts necessary to make said employees whole to be com- puted in accordance with the general guidelines and principles established by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962); and Florida Steel Corp, 231 NLRB 651 (1977). 902 , DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regarding the nine employees whom Respondent deemed ineligible for reinstatement on the alleged basis they had taken permanent employment elsewhere,165 it was admitted that, but for that fact, they would have been reinstated to vacant jobs in their respective pres- trike classifications during the week in which Respond-, ent mailed letters to them notifying them of its action. It is therefore evident that those employees suffered pre- sumptive losses in pay or benefits commencing at the point at which those vacancies arose. Because the record does not identify precisely when those vacancies first arose, and because the complaint shows the dates on the respective letters as the dates on which the discrimina- tion first occurred,, I feel bound to find that the discrimi- nation-and hence-Respondent's backpay liability-com- menced as of the date chosen in the complaint, notwith- standing that a more-detailed inquiry might disclose the existence of vacancies for them at some earlier point. - Regarding the four employees, (Williams, Bryant, Jimmy G. McGrede, and Curtis) who were wrongfully discharged for their strike-related activities, it is not at all clear on this record when they would have been reinstat- ed to their prestrike jobs pursuant to the striker recall program had it not been for Respondent's wrongful deci- sion to discharge them. The complaint seems to have taken an arbitrary (or, at least, inconsistent) tack in at- tempting to identify the date on which each such em- ployee suffered discrimination. Thus, in the cases of Jimmy G. McGrede and Q. Ray Williams, the General Counsel appears to have seized on the dates on Respond- ent's discharge letters to them (October 15 and October 1, respectively). In the cases of William J. Bryant and S. L. Curtis, however, the General Counsel has chosen the date on which the strike ended as the date on which discrimination against them commenced.' 66 To the extent that the General Counsel appears to have thus conceded that Jimmy G. McGrede and Wit- liams would not have been recalled,to their former jobs in due course until the dates on their discharge letters, I might properly conclude that their backpay rights com- menced no earlier. To the extent that the complaint al- leged that Respondent wrongfully failed to recall Bryant and Curtis on May 31 and Respondent failed in its cus- tomary defense burden of showing that those specific employees were permanently replaced at the time the strike ended, I might be justified in concluding that their backpay rights commenced as of May 31. To pursue either approach, however, would be to seize on the seemingly arbitrary date choices made by the drafter of the complaint. Moreover, even though all these individuals' cases were treated by the drafter as in- stances of a wrongful failure to recall, the more funda- mental reality is that they had been' discharged-not merely bypassed. And the only question that was truly litigated as to them was whether or not their activities 165 I e., the employees identified in sec. 111,E, above 166 Because Curtis never received a discharge letter, there might be some rational basis for selecting the May 31 date in his case, but it is less easy to rationalize the selection of the May 31 date in Bryant's case, since he received a discharge letter from Respondent dated October 1, and the General Counsel has elsewhere treated the dates on the discharge letters as significant in the cases of McGrede and Williams. during the strike justified Respondent's decision to dis- charge them. There was no litigation over the question when they would have been recalled in due course, but for Respondent's wrongful discharge decision. Accordingly, I would defer to the compliance stage in all four, cases an inquiry into the question. when they would have been recalled absent the discrimination against them, with no significance to be attached to the dates selected in the complaint, except to the following extent: It is clear that, at least after issuing those- dis- charge letters, Respondent no longer invited the three recipients to bid on out-of-classification jobs. And, had they been given this opportunity, one or more of them might have obtained interim recall and earnings from Re- spondent, even if vacancies in their respective prestrike classifications did not occur -until much later (or, per- haps, have not yet occurred). To sum up, it should be determined at the compliance stage whether Respondent's failure (after issuance of the discharge letters) to permit those wrongfully discharged strikers to bid on out-of-classification jobs-resulted in a denial of earnings opportunities; and, to the extent it is determined that this occurred, backpay should be award- ed-for the amounts they would have thus earned. Fur- ther, backpay should also be awarded for the amounts they would have earned at such time (if ever) as they would have been reinstated to their prestrike classifica- tions pursuant to the normal operation of Respondent's strikers recall program. As to the employees who were denied reinstatement for failure to pass a discriminatorily imposed physical ex- amination, I have found in the cases of C. C. McKee, Otis D. Nichols, Donald E. Brightwell, and Robert Washington, that this was merely a compounding of dis- crimination against them that initially occurred when they were wrongfully denied recall to admitted vacan- cies for having allegedly taken permanent employment elsewhere. Accordingly, there is no independent backpay significance to Respondent's subsequent discrimination against them. As to J. E. Allen and Douglas Wheelis, however, their backpay entitlement became triggered by Respondent's wrongful refusal to reinstate them to ad- mitted vacancies in their prestrike jobs, which occurred in, respectively, March and February 1980. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed167 ORDER The Respondent, Axelson, Inc., Longview, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to treat former strikers who have uncon- ditionally offered to' return to work as eligible for rein- statement because they have obtained other employment during the strike under circumstances where those per 167 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. AXELSON, INC. sons have not abandoned their interest in continued em- ployment with Respondent. (b) Discharging employees for striking or for engaging in strike-related conduct unless such employees are guilty of flagrant or egregious misconduct. (c) Violating its obligation to offer unconditional rein- statement to vacant jobs to former strikers who have un- conditionally offered to return to work by requiring them, as a condition to reinstatement, to undergo and pass physical examinations. (d) In any like or related manner discriminating against employees for engaging in a lawful economic strike or interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate, full, and unconditional reinstate- ment to their former positions of employment to the fol- lowing named employees or, if those positions no longer exist, to substantially equivalent ones, without prejudice to their seniority and other rights and privileges and, if necessary, discharge employees hired since the discrimi- nation against them in order to make room for them; and make them whole, with interest, for any losses of wages or benefits that they may have suffered as a consequence of the discrimination against them-all in a manner con- sistent with the discussion in the remedy section: C. C. McKee Donald L. Sapp Otis D. Nichols Q. Ray Williams Donald E. Brightwell Robert Washington R. D. McGrede Robert H. Brenner John E. Kemp Bobby J. Ballard William J. Bryant Jimmy G. McGrede S. L. Curtis J. E. Allen Douglas Wheelis 903 (b), Preserve and, on request, make available to the Board or its agents all payroll and other hiring and em- ployment records necessary and useful in the computa- tion of the backpay amounts due and owing under the make whole provisions of this Order. (c) Post at its Longview, Texas plant copies of the at- tached notice marked "Appendix."'68 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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. 168 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."