Chromalloy American Corp.

868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD L. A. Water Treatment, Division of Chromalloy American Corporation and Daniel J. Mullin and United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, Local No. 398, AFL-CIO and International Union of Operating Engineers, Local 501, AFL-CIO, Pe- titioner and Waterco Employees Association, Petitioner. Cases 21-CA-19654, 21-CA-20188, 21-CA-20223, 21-CA-20263, 21-CA-20277, 21-CA-20557, 21-RC-16846, and 21-RC- 16849 12 November 1987 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 26 September 1983 Administrative Law Judge George Christensen issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Re- spondent filed an answering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The Respondent is engaged in the business of de- signing, fabricating, assembling, installing, and serv- icing water treatment systems. For over 30 years its employees were represented by International Union of Operating Engineers, Local 501, AFL- CIO (Local 501). On 26 January 1981,2 following a I No exceptions were filed to the judge's findings that (a) Assistant Plant Superintendents Dominic Giacoletti , Oscar Nunez, Oswald Nunez, and Ronald Strahs were statutory supervisors , (b) Oscar Nunez and Strahs did not engage in unlawful surveillance of employees' protected activities, (c) Dominic Giacoletti did not unlawfully threaten employees by soliciting support for Operating Engineers Local 501, (d) the Re- spondent's president, William Burns, did not unlawfully solicit employee support for Local 501, (e) Plant Manager Daniel Giacoletti did not threaten employees with loss of employment for engaging in protected activities, and (t) the Respondent did not violate the Act because of the conduct of guards employed by its agent , Mariman Security In affirming the finding that the Respondent did not unlawfully dis- charge employee Daniel Mullin , we note that the judge in part II,B,1 of his opinion erroneously placed Plant Superintendent Triplett's statement urging Mullin to pay his dues to Local 501 and Mullin's response that he was not going to pay any more dues as having been made on 5 Septem- ber 1980 rather than on 29 July 1980, as Triplett testified Certain other errors have been noted and corrected 2 Unless otherwise specified, all dates refer to 1981 Board-conducted election , the Board issued an Order decertifying Local 501 as the employees' collective-bargaining representative (not reported in Board volumes). In February 1981 an organizing campaign was initiated by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 398, AFL-CIO (the Union).3 At a meeting in mid-March the Respondent's president, Burns, told employees that they were free to select any bargaining representative they desired and that he would bargain with the repre- sentative of their choice. Burns assured the em- ployees that the Respondent would not go out of business in view of its $25 million work backlog, but he also explained that the Respondent had lost $1 million during the previous year, that he expect- ed only a small profit from the $25 million backlog figure, and that the Respondent would have to sub- contract portions of its work. On 19 March Burns met with representatives of the Union and did not dispute their assertion that the Union possessed authorization cards from a ma- jority of the employees. Burns also stated that before negotiations began, it would be in the best interests of the Respondent and the Union to get rid of certain "radical" employees. After this meeting, the Respondent subcontract- ed a substantial portion of its work. The judge found that the Respondent then permanently laid off 15 of its employees on 15 April in reliance on the loss of work created by the subcontracting.4 On 22 April some of the employees retained by the Respondent went on strike and, together with the 15 laid-off employees, began picketing the Re- spondent's facility. They also distributed leaflets discussing both the layoff and the discharges of two other employees during the previous year.5 The Respondent later hired new employees to fill the positions of 11 strikers.6 1. The judge concluded that the permanent layoff on 15 April violated Section 8(a)(3) and (1) of the Act. We find merit in the Respondent's ex- 3 On approximately 20 July 1981 the Union ended its organizational drive because of the no-raiding agreement between its international and International Union of Operating Engineers 4 Employees Abernathy, Anderton, Blythe, Danekes, Gutierrez, Heu- lett, Hoffman, Hunt, Kunz, Morales, Mullin, Ott , Pierce, Ramos, and Rodman were selected for permanent layoff The Respondent did not follow seniority in implementing the layoff 5 The Respondent discharged employee Hernandez on 14 January 1980, and it discharged employee Freilich on 8 April 1980 On 9 August 1982 the Board adopted an administrative law judge's finding that those discharges were unlawful L A Water Treatment, 263 NLRB 244 (1982) 6 Employees Blasko, Bray, Cole, Dodson, Gonzales , Hohrun, Mancin- elli, Revel, Reyes, Sauvageau , and Walling were the strikers whose posi- tions were filled (We correct the judge 's decision to reflect the correct spelling of the names of Hohrun and Sauvageau ) 286 NLRB No. 88 CHROMALLOY AMERICAN CORP. 869 ceptions, and we conclude that the layoff was not discriminatorily motivated. At the outset, we note that the judge failed to apply the analysis set forth in Wright Line, 251 NLRB 1083 (1980).' He analyzed the evidence that the General Counsel presented to establish a prima facie case, but he failed to discuss the evidence that the Respondent presented in support of its position. The judge drew an inference of unlawful motive from the timing of the layoff, the Respondent's knowledge that its employees sought union repre- sentation to secure higher wages and benefits, Burns' stated intention to eliminate certain "radi- cal" employees, the Respondent's use of its subcon- tracting decision to justify the layoff, its failure to lay off employees by seniority, and its selection for layoff of some "senior and influential" employees who were "strong leaders" of the organizing cam- paign. We shall assume, arguendo, that the General Counsel established a prima facie case, but we con- clude that the Respondent would have permanent- ly laid off the 15 employees even in the absence of the union activity. As noted above, the Respondent designs, fabri- cates, assembles, installs, and services water treat- ment systems. It obtains customer orders through competitive bidding, and in December 1980 its backlog of unshipped orders was valued at $25 mil- lion. Although Burns told employees In a letter in December 1980 that this figure was "high," he tes- tified that a high backlog figure does not necessari- ly ensure a steady flow of work within the plant.' He noted that the Respondent may have virtually nothing to ship for several months, but may then have an order worth several million dollars during the next month. Burns' testimony also establishes that customers frequently change the delivery dates of shipments. Indeed, shortly before the 15 April layoff the Re- spondent was confronted with such delivery date changes on two major jobs. On 17 February the Respondent received notice that its Cajun Electric project was to be delayed for 21 months. The Cajun project was valued at $3,121,900, and the Respondent's vice president and general manager, Scott, testified that the project had been part of the immediate production schedule. On 10 April the Respondent was also notified of a 1-year delay in its Cerveceria Tecate project, valued at $759,869. These long delays, which stemmed from customer decisions over which the Respondent exercised no ' See NLRB v Transportation Management Corp, 462 US 393, 403 (1983) s In his December 1980 letter, Burns noted that the "erratic nature" of the Respondent's schedules had put a few "gaps" in its short-term ship- ment cycle control, must have had a substantial impact on the Respondent's production schedule.9 The record further establishes that it has been the Respondent's practice to subcontract portions of its work when certain criteria are met. Accord- ing to Burns' uncontradicted testimony, the Re- spondent decides whether to subcontract after con- sidering the customer's geographic location as well as the "product mix" involved with a particular job.10 With respect to geographic location, Burns indicated that he takes a "hard look" at subcon- tracting if it would result in substantial savings on freight costs. Scott affirmed that subcontracting is considered if a project involves substantial inter- plant or intercity transportation. With respect to "production mix," Burns and Scott both testified that the Respondent favors subcontracting large projects that lack complexity and require a mini- mum amount of fabrication work. In this connection, on 16 March Scott wrote a memo notifying Director of Manufacturing McCormick that the Respondent had been awarded two projects for the Kernridge Petroleum Compa- ny. Scott's memo reminded McCormick that the Respondent had subcontracted identical Kernridge work during the previous year, and Scott instruct- ed McCormick to explore whether subcontracting was feasible again. On 27 March McCormick rec- ommended that the work be subcontracted in order to obtain a projected savings of approximately $92,000. On the same day, Scott accepted McCor- mick's recommendation and instructed him to in- vestigate the feasibility of subcontracting other projects. On 9 April McCormick informed Scott that the Respondent could realize a savings of $165,000 by subcontracting three projects that it had been awarded by the Chevron Oil Company. On 13 April Scott told McCormick that the Re- spondent "must subcontract" the three Chevron jobs and the two Kernridge jobs in view of the savings of over $250,000. As noted above, the judge drew an inference of unlawful motive in part from the Respondent's de- cision to engage in subcontracting. Although he did not expressly find that the subcontracting deci- sion was improperly motivated and designed to es- tablish a pretext to justify the 15 April layoff, the judge implied as much.1' We find such an implica- 9 In finding that the layoff was unlawful, the judge relied in part on his finding that the Respondent 's $25 million backlog of January 1981 had actually increased to $28 million by the end of 1981 As the Respondent correctly notes, the record does not support that finding 10 Burns also indicated that productivity in the shop is a factor to be weighed in a subcontracting decision I The complaint does not allege and the judge did not find that the subcontracting was unlawful 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion unwarranted. The evidence reflects that the decision was made only after McCormick spent several weeks preparing a careful analysis that showed that the Respondent would realize substan- tial savings by subcontracting certain jobs. The de- cision also was clearly consistent with past prac- tice, because the Respondent had previously sub- contracted a virtually identical Kernridge project, and because all the projects met the traditional cri- teria of minimum fabrication and substantial inter- plant transportation costs. These factors demon- strate that the subcontracting decision was prompt- ed by economic considerations alone. Consequent- ly, any evidence that the subcontracting caused the layoff is evidence that the layoff was lawfully moti- vated. The record in fact establishes a clear link be- tween the layoffs and the loss of work that the Re- spondent experienced through subcontracting and job delays. While McCormick was studying the feasibility of subcontracting the Chevron jobs, Scott informed him in a memo on 3 April that the Respondent would have "no economic justifica- tion" for maintaining its present level of shop per- sonnel if it were established that subcontracting would produce significant cost savings. The memo also stated that if additional jobs were subcontract- ed, and if the Cajun project were in fact delayed, then the Respondent should begin "an objective review" of its shop personnel because there "most likely" would be a layoff. When Scott decided on 13 April to proceed with the additional subcon- tracting, he stated in a memo to McCormick that the permanent layoff was "clearly called for" be- cause the total value of the shopwork being either delayed or subcontracted was approximately $10 million. Scott also observed in his 13 April memo that he had just visited the shop floor and had concluded that there was not "enough work at present to sup- port the people we have." Scott's observations comported with an analysis he had recently com- piled reflecting the percentage of worktime spent by employees on production work. Scott prepared the analysis in early April after making a tour of the shop floor and noticing little employee activity. Using labor distribution cost sheets printed out by a computer, Scott determined the percentage of working time spent by employees on "non job functions." 12 He testified that historically the per- centage had averaged approximately 8 or 9 per- cent, and the document he prepared reflects that the figure was 8 percent for the week ending 8 February. However, the document also reflects 12 Scott defined a "non-job function" as any work that is ndt directly related to production. that the percentage increased steadily in the ensu- ing weeks, reaching 28 percent in the week ending 5 April and 35 percent in the week ending 12 April. Apart from these economic considerations, we find that the Respondent's economic defense is strengthened by the manner in which the layoff was implemented. The judge drew an inference of unlawful motive in part from the Respondent's fail- ure to follow seniority, but he failed to consider the extensive evidence describing the Respondent's method of selecting employees for layoff. Scott's 13 April memo instructed McCormick to meet with the Respondent 's plant manager, Dan Giacoletti, and prepare as soon as possible a "very objective list" of employees for layoff. McCormick then instructed Giacoletti to compile a list of 24 employees. 1 s Giacoletti testified that he first analyzed the Re- spondent's work schedule for the rest of the year to determine which areas of the plant could accom- modate layoffs. He next sought a "fair" and "objec- tive" basis to select individual employees for layoff, and he decided to rely on performance appraisals that the Respondent recently had completed and that rated employees on the basis of skill levels for nine categories of performance. Giacoletti used those appraisals to develop a point system to rank employees. He credited each employee with a cer- tain number of points for each of the nine catego- ries of performance, depending on which of the skill levels the employee had attained. After com- puting an employee's point total, Giacoletti deduct- ed points if the performance appraisal contained unfavorable supervisory comments or if it indicated that the employee had received a suspension or any oral or written warnings . Finally, consistent with his previous analysis of the plant areas that were appropriate for layoffs, Giacoletti compiled a list of 24 employees from the job classifications that, in his judgment, could best absorb the loss. Within each of those job classifications he selected the lowest ranked employee first. On 14 April Giacoletti and McCormick dis- cussed the completed list with Scott, who decided that only 15 employees should be laid off.14 On McCormick's instructions, Giacoletti immediately prepared change-of-status forms for the first 15 em- 13 Scott's 13 April memo estimated that the Respondent's labor needs would be reduced by approximately 54,500 man-hours Scott suggested that this figure might require a layoff of 27 employees, but McCormick testified that his calculations indicated that a cut of 24 was appropriate. 14 Scott testified that Giacoletti and McCormick both stated that the cut of 24 was "a little bit deep " According to Giacoletti, he told Scott that the Respondent "could not survive" if 24 employees were laid off, and he recommended that the list be reduced to 18. CHROMALLOY AMERICAN CORP ployees on the list, and on the following day the employees were informed of the layoff. In light of the foregoing, we find that the Re- spondent decided to lay off employees when it concluded that there was insufficient production work to sustain its existing employee complement. The loss of production work was directly attributa- ble to job delays beyond its control and to subcon- tracting decisions that it made after carefully deter- mining that savings would be realized, and that were consistent with its past practice. The Re- spondent's selection of individual employees for layoff was the product of a meticulous, analysis of the plant's needs and the employees' abilities. Thus, Giacoletti's development of objective criteria sug- gests that the Respondent chose to retain its most efficient and productive employees, and the Re- spondent's reduction of the number of employees originally targeted for layoff indicates that it was attempting to make a realistic judgment about the plant's needs. We therefore find that the Respond- ent has established that it would have implemented the 15 April layoff even in the absence of the em- ployees' union activity, and we conclude that the layoff did not violate Section 8(a)(3) and (1). 2. As noted above, employees retained by the Respondent went on strike and began picketing with the laid-off employees on 22 April. On 23 April the Respondent sent letters to strikers Blasko, Bray, Cole, Dodson, Hohrun, Reyes, Sauvageau, and Walling. In pertinent part, the letters stated the following: We have work for all of our employees to do. In fact we are committed to fulfill our orders with our customers and need every person in our present shop labor force to carry out this work. We recognize that you, as employees, have the protected right to take concerted action by not returning to your jobs. However, you must understand that the Company also has the right to protect its interests. These interests are that we must have adequate manpower to produce our products. We urge all employees engaged in this work stoppage to return to work. There is work here for you. In the event that you are not at your job at the beginning of the work day on Monday, April 27, 1981, then management will take the necessary steps to permanently re- place those who have not returned to their jobs. On 27 April the Respondent sent identical letters to strikers Mancinelli and Revel, informing them that they would be permanently replaced if they did not 871 return to work by 29 April. On 29 April the Re- sponden, sent an identical letter to striker Gon- zales, stating that he would be permanently re- placed if he did not return to work by 4 May. The judge concluded that these letters constituted a threat of discharge in violation of Section 8(a)(1). We find that the letters lawfully informed the strik- ers that they were subject to permanent replace- ment. The Board addressed a similar issue in Eagle Comtronics, Inc., 263 NLRB 515 (1982), in which an employer stated during an election campaign that if employees engaged in an economic strike they "could be replaced with applications on file."15 The Board recognized that although eco- nomic strikers may be permanently replaced, they "retain the right to make unconditional offers of re- instatement, to be reinstated on such offers if posi- tions are available, and to be placed on a preferen- tial hiring list on such offers if positions are not available at the time of the offer."16 However, the Board also noted the well-established rule that an employer does not violate the Act by "truthfully informing employees that they are subject to per- manent replacement in the event of an economic strike." 17 An employer's statement on job status is protected by Section 8(c) unless it may be fairly understood as a threat of reprisal or unless it is ex- plicitly coupled with such threats. 1 s The Board also stated that "an employer may address the sub- ject of striker replacement without fully detailing the protections" enjoyed by economic strikers, and it concluded that an employer's statements on job status are not coercive as long as they are consist- ent with the law.19 The statement at issue in Eagle Comtronics was found to be a simple description of the employer's legal right that was "entirely con- sistent with the law. 1120 In this case the Respondent merely notified em- ployees who were already striking that it intended to exercise its legal right to obtain permanent re- placements if they did not return to work. The Re- spondent's letter was consistent with the law and did not threaten that employees would be deprived of their rights in a manner inconsistent with the teachings of Laidlaw. Indeed, the Respondent ex- pressly recognized that the employees' refusal to return to work constituted protected concerted ac- I5 263 NLRB at 515 16 Id The Board cited La,dlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir 1969), cert denied 397 U S 920 (1970), and NLRB V Fleetwood Trailer Co, 389 U S 375 (1967) 17 263 NLRB at 515 is 263 NLRB at 515-516 19 263 NLRB at 516 20 Id 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tivity. We conclude in these circumstances that the Respondent's letter did not violate Section 8(a)(1). 3. Between 30 April and 8 June the Respondent sent letters to 11 strikers which stated, in pertinent part: As of this date we have hired a permanent replacement for your job classification . . . . You are no longer employed by L. A. Water Treatment Division of Chromalloy. Consequently, you are not entitled to or en- rolled in any of the benefits of the Employee programs. In the event you have earned wages, ac- crued vacation, or sick pay due to you from your former employment with us, you will find it enclosed. The judge concluded that by these letters the Re- spondent discharged the strikers in violation of Section 8(a)(3) and (1) of the Act. We agree. To determine whether a discharge has occurred, the Board considers whether an employer's con- duct would lead an employee reasonably to believe that he has been discharged.21 That determination requires a careful examination of the facts of each case.22 Although the Board has recognized that an employer does not discharge an economic striker simply by advising him that it has hired a perma- nent replacement to fill his position, 2 3 the Re- spondent here went further than that. Its letter not only informed the employees that they had been permanently replaced, but also stated that "You are no longer employed by L. A. Water Treatment" and referred to their "former employment" with the Re- spondent (emphasis added). In the quoted passages, the Respondent misstated the law by implying, er- roneously, that the strikers had lost their rights as employees under the Act.24 The letters thus were not "consistent with the law,"25 but instead con- tained statements that reasonably could have been interpreted by the employees who received them as meaning that they had been discharged for refusing to abandon their strike. That those letters also re- ferred to the hiring of "permanent replacements" 21 Famous Supply Co, 254 NLRB 768, 770 (1981), Ridgeway Trucking Co, 243 NLRB 1048 (1979), enfd 622 F 2d 1222 (5th Cir 1980) (per cunam) See also NLRB v Trumball Asphalt Co, 327 F 2d 841, 843 (8th Cir. 1964). 22 C & W Mining Co, 248 NLRB 270, 273 (1980) 23 Sedloff Publications, 265 NLRB 962 fn 2, 971 (1982) 24 Sec 2(3) of the Act expressly includes strikers in its definition of the term "employees," and strikers retain certain rights even if they are re- placed See Eagle Comtronics, supra Cf Piezo Technology, 253 NLRB 900 (1980), in which the Board found that an employer misstated employees' rights and unlawfully threatened employees by stating that "If you are on strike, the Company can get another person to take your place, and, if it bargained fairly, once that person goes on your job, you are no longer an employee of this Company" (emphasis added) 25 Eagle Comtronics, supra at 516 does not alter our conclusion . "Permanent replace- ment" and "permanently replaced" are, after all, terms of art; their meanings are well understood by labor law practitioners, but perhaps not by most employees. Unlike our dissenting colleague, we think that a reasonable employee, having read in the same letter that he was "no longer employed" by the Respondent and that a "permanent replace- ment" had been hired for his position, would con- clude that he had been fired.26 Consequently, by sending those letters, the Respondent discharged the 11 strikers in violation of Section 8(a)(1) and (3) of the Act.27 4. On the picket line, the strikers carried signs stating that the Respondent "commits unfair labor practices," and they distributed leaflets that listed the names of the laid-off employees and stated that the layoff was unfair. The leaflets also stated that the strikers would return to work when the Re- spondent reinstated the laid-off employees and em- ployees Freilich and Hernandez, who had been dis- charged the previous year. The judge concluded that the employees were unfair labor practice strik- ers in view of his finding that the layoff was un- lawful and the Board's previous finding that Frei- lich and Hernandez were discriminatorily dis- charged.28 We have found, however, that the layoff did not violate the Act, and we conclude for the reasons below that the employees did not attain the status of unfair labor practice strikers merely because the leaflets mentioned the discharges of 26 We think the dissent also improperly infers a lawful purpose for the Respondent's letters on the basis of certain other statements contained therein Those statements, read in context, actually underscore the unlaw- ful character of the letter Thus, the announcement that the strikers no longer were entitled to, or enrolled in, the Respondent 's benefit programs was set forth as a consequence of the strikers' no longer being employed ("You are no longer employed by L A Water Treatment . Conse- quently, you are not entitled to or enrolled in any of the benefits (Emphasis added).) Similarly, checks enclosed with the letters were char- acterized explicitly as in payment of earnings or benefits from the strikers' "former employment with [the Respondent] " In our view, those refer- ences-far from constituting a lawful message -would reinforce in the minds of the strikers the conclusion that they had been discharged 27 The Eighth Circuit Court of Appeals reached a contrary result in Vulcan-Hart Corp v NLRB, 718 F 2d 269 (8th Cir 1983) In that case the employer, like the Respondent here, had written letters to numerous strikers, informing them that their employment had been terminated by the hiring of permanent replacements The letters went on to advise the strikers to seek employment elsewhere (although they also stated that the strikers would be considered for future job openings if any should devel- op) The court denied enforcement of the Board 's Order that was predi- cated on a finding that the letters unlawfully discharged the strikers It held that the letters did not necessarily effect the strikers' discharges, es- pecially because the employer had reinstated all the strikers who chose to return to work (with full seniority, except for purposes of layoff and recall) We view the facts in this case as significantly different from those in Vulcan-Hart Here, the Respondent neither informed the strikers that they would be considered for future job openings nor reemployed any of the discharged strikers In light of these differences, our decision here is not inconsistent with the court's holding in Vulcan-Hart, and our dis- agreement with that holding is thus of no significance here 28 The Board made this finding in L A Water Treatment, 263 NLRB 244 (1982) CHROMALLOY AMERICAN CORP. Hernandez and Freilich, who had been discharged on 14 January and 8 April 1980, respectively. Employees are unfair labor practice strikers if an employer's unlawful conduct contributed in part to their decision to strike, even though their decision also may have been influenced by economic issues.29 However, the Board has long, recognized that unfair labor practices may precede a strike without being a cause of the strike.30 A, causal con- nection between the unfair labor practices and the strike must be demonstrated in order to establish that employees are unfair labor practice strikers.31 No such connection has been shown here with re- spect to the commencement of the strike. Several employees testified that the layoff was the basis of their decision to participate in the strike. Employees Dodson and Bray testified with- out contradiction that soon after the picketing began, Scott approached the strikers and asked them what they wanted. Dodson told Scott that the layoff was "unfair" and that the employees should be reinstated. Employee Blasko testified that soon after the layoff, the Union conducted a meet- ing of about 15 to 20 employees, at which the pos- siblity of picketing was discussed in connection with the layoff. Blasko also testified that he hon- ored the picket line because he thought the layoff was "unfair" in view of the Respondent's failure to follow seniority. Employee Sauvageau testified that he refused to cross the picket line because he thought the layoff was an "unfair labor practice." None of the strikers mentioned the discharges of Freilich and Hernandez in connection with their decision to participate in the strike. Thus, the strikers' own testimony, and their fail- ure to mention the discharges of Freilich and Her- nandez as a reason for striking, demonstrate that the decision to strike on 22 April was prompted solely by the 15 April layoff. The timing of the strike also is significant: more than a year had elapsed between the firings of F reilich and Hernan- dez and the decision to strike, which was made within a week of the 15 April layoff.3 2 Because of the employees' testimony and the timing of the strike, we find that the strike was caused by the layoff and not by the earlier discharges. That the strikers' leaflets referred to Hernandez and Freilich does not require a contrary finding. Given the sub- stantial lapse of time between those individuals' ter- minations and the onset of the strike, we find the references in the leaflets to their discharges to have 29 Colonial Haven Nursing Home, 218 NLRB 1007, 1009 (1975), modi- fied on other grounds 542 F 2d 691 (7th Or 1976) 80 E g, Typoservice Corp, 203 NLRB 1180 (1973) 21 Id 32 See Typoservice Corp, supra at 1180 See also Keller Mfg Co, 272 NLRB 763, 803 (1984) 873 been an afterthought on the part of the strikers, used to publicize all their perceived grievances with their employer. Accordingly, because the strike was not caused by the Respondent's unfair labor practices, the strike was an economic strike from its inception,33 and the Respondent was within its rights to hire permanent replacements for the strikers (though not, as we have found, to dis- charge them after they had been replaced).34 5. As the judge noted, the Board conducted an election on 6 November 1981. The revised tally in- dicated that 28 votes were cast for Local 501, 21 votes were cast for an organization known as the Waterco Employees Association, and 1 vote was cast against the participating labor organizations. 35 There were eight challenged ballots, seven of which were cast by employees who were perma- nently laid off on 15 April. In view of our conclu- sion that the 15 April layoff was lawful, we find that the challenges to these seven ballots should be sustained.36 We shall therefore issue an order certi- fying Local 501 as the employees' exclusive collec- tive-bargaining representative in the appropriate unit.3 7 REMEDY Having found that the Respondent unlawfully discharged 11 employees when it informed them that they were no longer employed by it, we shall order the Respondent to offer to reinstate those employees, discharging if necessary any replace- ments hired after the strikers' terminations in order to effect this remedy.38 The discharged strikers also shall be made whole for any losses suffered, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).39 The backpay period as There is no allegation that the strike was converted to an unfair labor practice strike 94 As explained in the remedy portion of this decision, infra, the status of the discriminatees as lawfully replaced economic strikers may affect their rights to reinstatement as The Union did not appear on the ballot ss The eighth challenged ballot was cast by employee Hernandez, whose discharge was found unlawful in L. A. Water Treatment, supra. His ballot is no longer determinative 97 The appropriate unit is. All production and maintenance employees , warehouse employees, and shipping and receiving employees employed by the Employer at its facility located at 17400 East Chestnut Street, City of Industry, California, excluding all office clerical employees, design engineers, draftsmen, salesmen and supervisors as defined in the Act 38 See, a g., Auburn Foundry, 274 NLRB 1317 fn 2 (1985), enfd 791 F 2d 619 (7th Cir 1986) Because the discharged employees were, at the time of their discharges, lawfully permanently replaced economic strik- ers, they have no reinstatement rights as against the individuals who re- placed them before they were discharged. Id 39 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after l January 1987 shall be Continued 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for each discharged employee shall commence on the earliest date after his discharge when his former job, or any position substantially equivalent to it, became available.40 Any strikers regarding whom no such positions have become available, and whose original replacements continue to be employed by the Respondent, shall be put on a preferential hiring list. ORDER The National Labor Relations Board orders that the Respondent, L. A. Water Treatment, Division of Chromalloy American Corporation, City of In- dustry, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they refuse to abandon a lawful strike. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer employees Craig Blasko, Foster Bray, Charles Cole, Thomas Dodson, Ed Gonzales, John Hohrun, Dino Mancinelli, Jorge Revel, Domingo Reyes, Dennis Sauvageau, and William Walling im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed, dismissing if necessary any replacements hired after the named employees' terminations, and make them whole for any loss of earnings and other benefits suffered as the result of the discrimi- nation against them, in the manner set forth in the remedy section of this decision. Any of the named employees regarding whom positions have not become available that are substantially equivalent to their former jobs, and whose original replace- ments still are employed by the Respondent, shall be placed on a preferential hiring list. computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US 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) 40 We agree with General Counsel that the judge erred in fmdmg that the backpay period for the discharged strikers began on 4 August 1981 when they abandoned the strike Abilities & Goodwill, 241 NLRB 27 (1979) However, the strikers are not necessary entitled to receive back- pay from the dates of their discharges, as in Abilities & Goodwill, because they had been lawfully replaced before they were fired Accordingly, even had they not been discharged, they still would not have had the right to return to work until their replacements had left or other jobs became available It follows that they were not deprived of earnings until one of those events had occurred, and therefore it is appropriate to award them backpay dating only from the earliest such occurrence (b) Remove from its files any reference to the unlawful discharges, and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility at City of Industry, Cali- fornia, copies of the attached notice marked "Ap- pendix."41 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for International Union of Op- erating Engineers, Local 501 , AFL-CIO and that it is the exclusive collective-bargaining representative of the employees in the unit found appropriate. CHAIRMAN DOTSON, dissenting in part. While I agree with most of my colleagues' find- ings in this case, I do not agree with their finding that the letters sent by the Respondent to the eco- nomic strikers between 30 April and 8 June 1981 constituted a notification of discharge.) In determining if a discharge has occurred, the Board considers whether an employer 's conduct would lead an employee reasonably to believe that 41 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 " 1 The letter, in relevant part, states. As of this date we have hired a permanent replacement for your job classification You are no longer employed by L A Water Treatment Division of Chromalloy Consequently, you are not entitled to or enrolled in any of the benefits of the Employee programs In the event you have earned wages, accrued vacation , or sick pay due to you from your former employment with us, you will find it enclosed CHROMALLOY AMERICAN CORP he has been discharged.2 That determination re- quires a careful examination of the facts of each particular case.3 Here, the opening sentence of the letter in question informs the striker that a "perma- nent replacement" has been hired for his job classi- fication. The Board has recognized that an employ- er does not discharge an economic striker by merely advising him that it has hired a permanent replacement to fill his position.': In fact, the letter's opening statement fully comports with the change- of-status forms placed by the Respondent in the strikers' personnel files identifying them only as permanently replaced economic strikers, rather than as terminated employees. The letter also informed the strikers that they were not "entitled to" or "enrolled in" the Re- spondent's benefits programs. This statement, how- ever, would not reasonably lead the strikers to be- lieve that they had been discharged, for it is well settled that strikers are not en titled to compensa- tion while on strike5 and, as previously noted by the Board, an employer does not discharge a strik- er merely by exercising its right to announce the cessation of benefits.6 Although the letter, as noted, also states that the strikers are "no longer employed," this statement cannot be read in isolation but must be viewed in conjunction with the Respondent's previous letter to employees dated 23 April 1981. In that letter, the Respondent specifically reassured employees that it recognized their right to strike and further asserted its own right to operate its business by hiring permanent replacements for them. In view of the assurances provided by the Respondent to employees in its 23 April letter, one can safely con- clude that the strikers would reasonably believe that the Respondent, in the letter at issue here, did not intend to depart from those assurances. In this regard, it should be noted that the Respondent in its letter continued to use the term "permanent re- placement." Although under other circumstances the above statement may take on a different mean- ing, here the strikers, in my view, would reason- ably conclude that the Respondent was simply car- rying out its intention of using permanent replace- ments to operate its business while preserving their employment rights as economic strikers. Finally, the mere fact that the strikers may have received a check along with the letter is, in my view, insufficient to establish a reasonable belief 2 Famous Supply Co, 254 NLRB 768, 771) (1981), Ridgeway Trucking Co, 243 NLRB 1048 (1979) See also NLRB v Trumball Asphalt Co, 327 F 2d 841, 843 (8th Cir 1964) 8 C & W Mining Co, 248 NLRB 270, 273 (1980) 4 Sedloff Publications, 265 NLRB 962 fn 2, 971 (1982) 6 Trading Port, Inc, 219 NLRB 298, 299 fn 3 (1975). 6 Brunswick Hospital Center, 265 NLRB 803, 814 (1981) 875 among the strikers in this case that they had been discharged. Although the Board recognizes that under certain circumstances such checks may con- stitute evidence of a discharge, particularly when the record establishes that the checks were "final" and were not distributed in the normal course of business,7 nevertheless it has also found that strik- ers have not been discharged where the record is insufficient to establish that the checks were "final."8 Here, the record establishes only that the checks were forwarded to the strikers along with the letters. Whether the checks were sent on a normal payday or in the middle of a pay period, or whether the checks could be construed as "final," cannot be discerned from the record in this case. Lacking such evidence, there is no basis for con- cluding from the check payments that a discharge had occurred. From the above facts, it is clear that the letter in dispute here did not constitute a notification of dis- charge to the strikers and further would not have led the strikers reasonably to believe that they were being terminated. Accordingly, I find, con- trary to my colleagues, that the Respondent did not violate Section 8(a)(3) and (1) of the Act by engaging in the above conduct. For this reason, and in view of my agreement with my colleagues' other findings, I would dismiss the complaint in its entirety. ' Famous Supply Co, supra at 768 fn 1, C & W Mining Co, supra at 272-273 9 Brunswick Hospital Center, supra at 814 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. 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discrimi- nate against any of you for refusing to abandon a lawful strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Craig Blasko, Foster Bray, Charles Cole, Thomas Dodson, Ed Gonzales, John Hohrun, Dino Mancinelli, Jorge Revel, Domingo Reyes, Dennis Sauvageau, and William Walling im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed. WE WILL, if necessary, discharge any re- placements hired after the terminations of the named employees. WE WILL make each of the named employees whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. If there are any of the named employees regarding whom no positions that are substantially equivalent to their former jobs have become available since their dis- charges, and whose original replacements are still employed by us, WE WILL place those employees on a preferential hiring list. WE WILL remove from our files any reference to the unlawful discharges of the named employees, and notify each of them in writing that we have done so and that his discharge will not be used against him in any way. L. A. WATER TREATMENT, DIVISION OF CHROMALLOY AMERICAN CORPO- RATION Frank M Wagner Jr., for the General Counsel. Robert J. Christopher, of St. Louis, Missouri, and T. Warren Jackson (O'Melveny & Myers), of Los Angeles, California, for the Respondent. Elizabeth R. Lishner (Davis, Frommer & Jesinger), of Los Angeles, California, for Local 398. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On May 4-7, 1982, June 7 and 8, 1982, and January 11, 1983, I conducted a hearing at Los Angeles, California, to try issues raised by a consolidated complaint issued on September 30, 1981, based on a charge filed by Daniel J. Mullin in Case 21-CA-19654 on October 20, 1980, and charges filed by Local 398 in Cases 21-CA-20188, 21- CA-20223, 21-CA-20263, 21-CA-20277, and 21-CA- 20557 and April 17 and 29, May 11 and 14, and August 21, 1981, respectively, plus challenges to ballots cast in an election conducted by Region 21 involving Local 501 and the Waterco Employees Association on November 6, 1981, in Cases 21-RC-16846 and 21-RC-16849. The consolidated complaint alleged L. A. Water Treatment (Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act), by: 1. Discharging Mullin on October 7, 1980, pursuant to a request by Local 501 under a current union-security agreement between the Company and Local 501, despite either company knowledge or possession of reasonable grounds for believing: (a) Local 501 sought and secured such discharge for reasons other than Mullin's failure to maintain good standing membership in Local 501 by timely tender of dues and reinstatement fees uniformly levied and/or; (b) that Local 501 failed to notify Mullin of his loss of good standing, the time period covered by his delinquency, the amount he owed in delinquent dues, the method used in calculating that amount, the amount of reinstatement fee he owed, and failed to afford ade- quate opportunity to regain good standing by tender of the amount due prior to seeking and securing his dis- charge. 2. Failing to reinstate Mullin between October 7 and December 1, 1980. 3. Discharging Kenneth Abernathy, T. R. Anderson, Greg Blythe, Chris Danekes, Daniel Gutierrez, Archie Heulett, William Hoffman, William Hunt, Darryl Kunz, John Morales, Daniel Mullin, Willis Ott, Dan Pierce, Victor Ramos and Casey Rodman on April 15, 1981, for joining, supporting, or assisting Local 398 in its effort to supplant Local 501 as their collective-bargaining repre- sentative. 4. Discharging Craig Blasko, Foster Bray, Charles Cole, Thomas Dodson, Edward Gonzales, John Hohrun, Dino Mancinelli, Jorge Revel, Domingo Reyes, Dennis Savageau, and William Walling between April and June 1981 because they failed or refused to cross a picket line maintained by employees in the course of an unfair labor practice strike at the Company's premises during that time period. 5. Its President William Burns' March 31, 1981 solici- tation of employees to support Local 501. 6. Its Assistant Plant Superintendent Oscar Nunez' and Ronald Strahs' March 1981 surveillance of employee meetings at Local 398's hall. 7. Its Assistant Plant Superintendent Dominic Giaco- letti's March 11, 1981 solicitation of employees to sup- port Local 501 and oppose Local 398. 8. Its Assistant Plant Superintendent Dominic Giaco- letti's April 15 and 24, 1981 threatening of employees with loss of employment if they supported Local 398. 9. Its Plant Manager Daniel Giacoletti's April 16, 1981, threatening of employees with loss of employment if they supported Local 398. 10. Its Vice President and General Manager Richard Scott's' April and May 1981 threats to discharge em- I The complaint alleged, the answer admitted, and I find at all perti- nent times Burns, Daniel Giacoletti, and Scott were supervisors and agents of the Company acting on its behalf within the meaning of Sec 2 of the Act CHROMALLOY AMERICAN CORP ployees unless they abandoned their unfair labor practice strike and return to work. 11. Its security service's (Mariunan Security) April 22 and 23, mid-May, May 21, and June 4, 1981 threats to physically assault employees for engaging in strike activi- ties outside the Company's plant. The Company contended Local 501, prior to seeking and securing Mullin's discharge under a valid Company- Local 501 union-security agreement, notified Mullin of his dues delinquency, the amount he owed, the time period covered, the calculation thereof and requested payment; gave Mullin ample time to under such pay- ment; assessed the reinstatement fee uniformly required of its members against Mullin on his failure within a rea- sonable time to make the requested payment; sought and secured Mullin's discharge only after Mullin rejected re- peated requests by Local 501 by paying the dues and re- instatement fee demanded by Local 501 for restoration to good standing membership; that no valid evidence estab- lished the Company had any knowledge or reasonable grounds to believe Local 501 sought and secured Mul- lins' discharge for any reason other than Mullins' failure to tender the requisite dues and fees, and therefore the Company did not violate the Act by complying with Local 501's offering reinstatement to Mullin until De- cember 1, 1980, on the ground since his October 8, 1980 discharge was not unlawful, it was not unlawful to fail to make such an offer until Local 501 requested such rein- statement. The Company denied Abernathy et al. were discharged on April 15, 1981, for supporting Local 398, contending they were terminated because of loss of busi- ness and therefore the terminations were not violative of the Act. The Company denied its employees were en- gaging in an unfair labor practice strike between April and June 1981 and asserted Blasko et al . were discharged between April and June 1980 when the Company se- cured replacements for them to maintain the Company's business operations and therefore there discharge was not violative of the Act. The Company denied at times perti- nent Nunez, Strahs, and Dominic Giacoletti were super- visors and agents of the Company acting on its behalf and therefore their actions could be attributed to the Company; denied Burns, Scott, Daniel Giacoletti, Nunez, Strahs, and Dominic Giacoletti committed the actions at- tributed to them and thereby committed any violation of the Act; denied Mariman Security was its agent at the times the actions described above were committed and further denied, in any event, that Mariman Security com- mitted the actions and thereby violated the Act. The issues for resolution are: 1. Whether prior to seeking Mullin's discharge, Local 501: (a) notified him of his dues delinquency, the amount due, the period covered, how it calculated the amount due, warned him he risked loss of his good standing membership and employment if he failed to cure the de- linquency; afforded Mullin a reasonable opportunity to cure his delinquency, avoid loss of good standing and ex- posure to payment of a reinstatement fee to regain good standing and avoid discharge under the union security agreement; (b) notified Mullin of the imposition of the reinstatement fee uniformly levied on its members as a condition for regarding good standing once lost and af- 877 forded him a reasonable opportunity to regain good standing by payment of the requisite dues and fees and thereby avoid discharge under the union-security agree- ment; whether following such notice, Mullin failed or re- fused to make the requested payment within a reasonable time period; whether following the expiration of such period, Local 501 sought and secured Mullin's discharge for such refusal; and whether the Company had actual knowledge or reasonable grounds for believing Local 501 sought and secured Mullin's discharge under the union-security agreement for any reason other than his nonpayment of the requisite dues and fees and thereby violated the Act. 2. Whether the Company violated the Act by not rein- stating Mullin until December 1, 1980. 3. Whether Nunez, Strahs, and Dominic Giacoletti were supervisors and agents of the Company acting on its behalf in March and April 1981. 4. If so, whether Nunez and Strahs maintained a sur- veillance of employee union security in March and April 1981, Dominic Giacoletti in March 1981 solicited em- ployees to support Local 501 and oppose Local 398 and Dominic Giacoletti in April 1981 threatened employees with loss of employment if they supported Local 398 and thereby violated the Act. 5. Whether Burns in March 1981 solicited employees to support Local 501 and thereby violated the Act. 6. Whether the Company discharged Abernathy, et al., on April 15, 1981, because of their activities on behalf of Local 398 and thereby violated the Act. 7. Whether Daniel Giacoletti in April 1981 threatened employees with loss of employment if they supported Local 398 and thereby violated the Act. 8. Whether employees of the Company engaged in an unfair labor practice strike between April and June 1981. 9. Whether Scott in April and May 1981 threatened to discharge striking employees unless they abandoned their strike and returned to work, thereby violating the Act. 10. Whether the Company violated the Act by dis- charging Blasko, et al., between April 15 and June of 1981. 11. Whether Mariman Security's guard employees were agents of the Company acting on its behalf be- tween April 15 and June 1981 and, if so, whether at vari- ous times during that period such guard employees threatened to physically assault employees engaged in strike activities outside the Company's plant, thereby violating the Act. With respect to the representation cases, at an election conducted by the Region on November 6, 1981, on peti- tion therefor by Local 501 and an organization designat- ed as the Waterco Employees Association, a (revised) tally of ballots disclosed of the 50 ballots cast, 28 were votes for representation by Local 501, 21 were votes for representation by the Association, and 8 ballots were challenged, a sufficient number to affect the results of the election. The eight challenged ballots were cast by Chris Danekes, Daniel Gutierrez, Manuel Hernandez, Archie Heulett, William Hunt, Darryl Kunz, John Mo- rales, and Daniel Mullin, on the ground their names did not appear on the voter eligibility list. The issue of 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether all but Hernandez were entitled to cast valid ballots turns on the question of whether their employ- ment was lawfully terminated on April 15, 1981, a ques- tion that shall be determined in this proceeding. The issue of whether Hernandez was entitled to cast a valid ballot has been determined in a separate case Chromalloy American Corp., 263 NLRB 244 (1982). The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. Briefs were filed by the General Counsel and the Com- pany. Based on my review of the entire record,2 observation of the witnesses, perusal of the briefs, analysis and re- search, I enter the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATIONS The complaint alleged , the answer admitted, and I find at all pertinent times the Company was an employer en- gaged in commerce and in a business affecting commerce and Locals 398 and 501 were labor organizations within the meaning of Section 2 of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary For some time L. A. Water Treatment has been a wholly owned division of Chromalloy Corporation en- gaged in the business of designing, fabricating, assem- bling, installing (in whole or in part), and servicing water treatment systems. In 1948, Local 501 was recognized as the exclusive collective-bargaining representative of the Company's production and maintenance employees; Local 501 and the Company entered into a succesion of collective-bargaining agreements thereafter covering the rates of pay, wages, hours, and working conditions of those employees, executing their last agreement in Janu- ary 1980 extending the preceding 3-year agreement (Oct. 14, 1976-Oct. 14, 1979) for an additional year, to Octo- ber 14, 1980. In the period between the October 14, 1979 expiration of the 1976-1979 agreement and the January 1980 exten- sion of the terms of that agreement to October 14, 1980, employees within the coverage of the agreements filed a petition with the Region for decertification of Local 501 as their collective-bargaining representative (Case 21- RD-1663 filed December 10, 1979). In July 1980 a ma- jority of the employees participating voted, in an election held as a result of that petition, to decertify Local 501 as collective-bargaining representative. Local 501 filed timely objections to conduct relative to the election and it was not until January 26, 1981, 3 months after the Oc- tober 14, 1980 expiration of the last Company-Local 501 collective-bargaining agreement, that the Board dis- missed Local 501's objections and issued an Order decer- tifying Local 501 as the exclusive collective-bargaining representative of the Company's production and mainte- nance employees. 2 Errors in the transcript are noted and corrected B. The Alleged October 1980 Discriminatory Discharge 1. Facts All the successive agreements between the Company and Local 501, including the extended agreement that ex- pired on October 14, 1980, contained a union-security provision, which in that extension agreement read: All employees covered by this Agreement shall, on or immediately following thirty-one (31) days after their employment, or on or immediately following thirty-one (31) days after the signing of this Agree- ment, whichever is later, become members of the Union and retain such membership in good standing as a condition of employment. "Membership in good standing" shall mean an employee who tenders the periodic dues and initiation fees uni- formly required as a condition of acquiring or re- taining membership. Under the constitution and bylaws governing the re- tention of good standing membership in Local 501 at times pertinent, a member lost good standing ( was sus- pended) on the first day of the month following the expi- ration of 2 months3 during which he failed to tender the requisite dues ($17.58 per month). Following such loss of good standing, Local 501, under the constitution and bylaws, could condition the regaining of good standing on the tender of the delinquent dues and a reinstatement fee consisting of $165 plus 3 months of advance dues. Local 501 normally followed the practice of notifying a member of his loss of good standing in the month fol- lowing such loss and requesting tender of the delinquent dues with a warning he risked imposition of the rein- statement fee and discharge (if the member was covered by a union-security agreement) if he failed to cure his de- linquency. If the member tendered the delinquent dues within a reasonable time, no further action was taken. If, however, the member ignored the warning and failed or refused to tender the delinquent dues within a reasonable period, Local 501 imposed the conditions set out above; i.e., tender of the delinquent dues and the reinstatement fee as prerequisites for regaining good standing and avoiding discharge under the applicable union-security agreement. Daniel Mullin was employed by the Company in 1964 in a position covered by the Company-Local 501 agree- ment then in effect. He subsequently acquired member- ship in Local 501, subsequently served as a steward for Local 501, and until December of 1979 maintained his good standing membership in Local 501 through month- ly tenders of his dues by check off of the amount due from his wages and remittance thereof to Local 501 by 3 Although the record reflects Wiley answered a leading question pro- pounded by me whether good standing was lost and membership sus- pended after 3 months of delinquency in the affirmative, the standard letter sent by Local 501 to all delinquent members recites that such loss and suspension occurs automatically after a 60-day (2-month) delinquency occurs I find the document the more reliable evidence of the applicable provision and practice of Local 501 and that Wiley inadvertently and er- roneously stated the applicable period was 3 months CHROMALLOY AMERICAN CORP. the Company, pursuant to an authorization therefor exe- cuted by Mullin and delivered to the Company. In De- cember 1979, during the hiatus between the October 14, 1979 expiration of the 1976-1979 agreement and the exe- cution by the Company in January 1980 of an agreement extending the terms of the 1979 agreement retroactively from October 14, 1979, to October 14, 1980, Mullin can- celed his checkoff authorization. Mullin was active in the campaign to decertify Local 501 as the collective-bargaining representative of the Company's production and maintenance employees and canceled his dues-checkoff authorization in the belief, following the October 14, 1979 expiration of the 3-year agreement and the December 1979 filing of the decertifi- cation petition, he no longer was obligated to tender dues to Local 501 as a condition of his employment (and advice to that effect.) Mullin made no dues tenders to Local '501 during the months of January, February, and March 11980. As noted heretofore, the extension agreement was executed in Jan- uary 1980, for a period retroactively from October 14, 1979, to October 14, 1980. In early April 1980, Local 501 Business Representative Ed Wiley4 went to the plant, entered the offices of Plant Superintendent Ernest Triplett,5 and asked to see Mullin and seven other employees. Triplett paged the eight em- ployees and they came to his off ice in two groups. In Triplett's presence, Wiley gave each of the eight a letter signed by R. H. Fox, Local 501's business manager, 6 . to the effect each had lost his good standing for which dues had not been tendered, the total amount of dues due to cure the delinquency, warned each one he was subject to the imposition of a reinstatement fee as a condition for regaining good standing and lifting the suspension, and further warned each one he risked discharge under the applicable union-security agreement if he failed to regain good standing membership status. Wiley asked each man to read his letter. Mullin responded by crumpling and discarding the letter with the statement he knew what it was. Mullin nevertheless mailed a payment covering 2 months of dues to Local 501 that month, which Local 501 accepted and credited towards his January and Feb- ruary 1980 dues obligations. Mullin made no further dues tenders until June 6, 1980. In the interim, he again lost good standing and was automatically suspended for nonpayment of dues. He mailed a payment covering 2 months of dues to Local 501 on June 6, 1980, which Local :501 accepted, crediting the payment to his March and April 1980 dues. Mullin made no further dues tenders to Local 501 until September 1980; as of September 1, 1980, he therefore was delinquent in his dues for the months of May, June, July, August, and September 1980.7 4 I find at all pertinent times Wiley was an agent of Local 501 acting on its behalf within the meaning of Sec 2 of the Act 6 The complaint alleged, the answer admitted , and I find at all perti- nent times Triplett was a supervisor and agent of the Company acting on its behalf within the meaning of Sec 2 of the Act 8 I find at all pertinent times Fox was an agent of Local 501 acting on its behalf within the meaning of the Act. ' Dues for the current month were due and payable on the first of the month 879 In the interim in late July 1980, Local 501 Business Representative Don Mears went to the plant, entered Triplett's office, and asked to see Mullin. Triplett paged Mullin and when Mullin arrived, in Triplett's presence, Mear gave Mullin a letter identical in context with the one Wiley gave Mullin in April for the months listed as delinquent and the total sum of dues owed. Mullin re- sponded with the statement he had paid all the dues he was going to pay to Local 501.9 In view of Mullin's failure to make any tender in re- sponse to the Local 501 demand therefor made on Mullin by Mear in late July 1980, on September 5, 1980, Mear returned to Triplett's office, asked to see Mullin and, in Triplett's presence on Mullin's arrival at the former's office, handed Mullin a letter executed by Fox advising Mullin, because he had not complied with Local 501's request in late July 1980, that he tender his delin- quent dues and thereby avoid levy of a reinstatement fee, Local 501 had levied a reinstatement fee of $217.54 on him which when added to the amount due to cover his dues delinquencies for June through September, totaled $305.64, and unless he tendered that amount, Local 501 would seek and secure his discharge under the Compa- ny-Local 501 union-security agreement. Mullin protested he had paid his delinquent dues, claiming they were in the mail. Mear rejoined that was not all he owed (refer- ring to the reinstatement fee), and that he would check out Mullin's claim. Triplett urged Mullin to pay Local 501 and regain good standing, that the Company would have to honor a Local 501 request for his discharge under the union-security agreement if he did not and it was not worth risking his job by refusing to pay. Mullin responded he had tendered his delinquent dues and that was all he was going to pay. Local 501 subsequently received a check in the mail from Mullin dated September 4, 1980, for $70.32, pur- porting to cover his delinquent dues for May, June, July, and August 1980. Local 501 did not deposit the check, in accord with its practice of not accepting partial tenders at this stage, and on September 9, 1980, Wiley and an- other business representative from Local 501 went to Triplett's office, asked to see Mullin, and the three locat- ed Mullin in the plant. On finding Mullin, Wiley handed Mullin a letter signed by Fox acknowledging receipt of the $70.32 check and requesting Mullin tender by Octo- ber 6, 1980, the additional $233.52 demanded in its Sep- tember 5, 1980 letter or Local 501 would seek and secure his discharge under the Company-Local 501 union-secu- rity agreement. Mullin looked at the letter and stated he paid his delinquent dues, that was all he was obligated to pay, that was all he was going to pay, and he certainly was not going to pay any reinstatement fee. Triplett 8 I find at all pertinent times Mear was an agent of Local 501 acting on its behalf within the meaning of Sec 2 of the Act e Shortly before, a majority of the Company's production and mainte- nance employees voted to decertify Local 501 as their collective-bargain- ing representative in a Board-conducted election and Mullin believed this relieved him of any obligation to maintain membership in Local 501 as a condition of his continued employment. 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD again urged Mullin not to risk his job by not paying, that it was not worth it. 10 On September 24, 1980, Local 501 caused delivery of a letter signed by Fox to Jerry McCormick, the Compa- ny's production manager, in the absence of Triplett (the letter was addressed to Triplett). In that letter Fox recit- ed Triplett's presence on September 4 and September 9, 1980, when Mear and Wiley gave Mullin the written no- tices and demands recited heretofore and Mullin refused to comply therewith, that since September 9, 1980, Mullin had responded with partial tenders of the sum de- manded (reciting Mullin's September 4, 1980 tender of dues for May, June, July, and August 1980 and his Sep- tember 19, 1980 tender dues for September 1980), and demanded the Company discharge Mullin under the union-security agreement unless by October 8, 1980, Mullin tendered the demanded reinstatement fee, i.e., unless Mullin tendered an additional $217.74 by October 8, 1980. On October 3, 1980, Wiley visited the plant in a final effort to persuade Mullin to tender the demanded amount ($217.74), advising Mullin Local 501 would secure his discharge if he did not tender that amount. Mullin refused to tender anything beyond the dues he previously tendered," stating again he would not pay the demanded reinstatement fee. On October 7, 1980, Triplett showed Mullin the Sep- tember 24, 1980, Local 501 demand the Company dis- charge him under the union-security agreement unless by October 8, 1980, he tendered to Local 501 the $217.74 reinstatement fee and stated he was discharging Mullin, in compliance with that request, unless Mullin could show him proof of payment or justification for nonpay- ment of the sum demanded. Mullin replied he did not have to prove or justify anything, he had tendered his delinquent dues to Local 501 (which the discharge re- quest acknowledged), he was not obligated to tender anything more than that, he was not going to pay the re- instatement fee, the discharge was illegal, and left. 12 2. Analysis and conclusions Under the proviso to Section 8(a)(3) of the Act, an employer does not violate the Act by discharging an em- ployee pursuant to a union-security agreement with the union representing a majority of its employees within an appropriate unit unless the employer has "reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the em- ployee to tender the periodic dues and the initiation to Triplett testified he witnessed Wiley's service of the September 9, 1980 letter on Mullin and was aware of its contents On September 19, 1980, Mullin mailed Local 501 a payment to cover 1 month of dues (Sep- tember 1980) Local 501 did not deposit the check, for the reason noted above. I1 On October 3, 1980, he mailed a payment to cover I month of dues (for October 1980) Again Local 501 did not deposit his check for the reason noted above 12 These factual findings are based on documentary evidence and the testimony of Triplett , Wiley, Mear, and portions of Mullin 's testimony corroborating that of the former three witnesses , who impressed me with their sincerity and the reliability of their testimony feesig uniformly required as a condition of acquiring or retaining membership." As set forth in the "statement of the case," the Gener- al Counsel alleged in the complaint (and argues) 14 prior to Mullin's discharge Local 501 failed to advise Mullin the precise nature of the payments, time periods, and the calculations it used in determining the sum he was re- quired to tender to regain good standing membership and avoid discharge under the Company-Local 501 union-se- curity agreement and afford him a reasonable opportuni- ty to tender that sum and the Company either knew or should have known this was so and thus violated the Act by effecting the discharge. The pertinent allegations of the complaint, however, are not supported by the evidence. On the contrary, Local 501 in July 1980 advised Mullin he had lost his good standing membership by failure to tender dues for months specified, the amount he was delinquent by virtue thereof (setting out the months and calculating the amount by multiplying the number of months by the amount of monthly dues obligation), that a reinstatement fee might be levied against him and Local 501 could secure his discharge under the Company-Local 501 union-security agreement unless he tendered delinquent dues and regained good standing membership; waited over a month without response from Mullin; advised Mullin in early September 1980, in view of his failure to respond to its July 1980 notice, a reinstatement fee had been levied against him and it would require payment of that fee also, by over a month later, to regain good standing membership and avoid discharge; made three more efforts to persuade Mullin to tender the requisite fee, regain good standing, and avoid discharge; and final- ly secured that discharge on Mullin's obdurate refusal to comply with its repeated requests. Nor does the evidence support a finding the Company had any notice Local 501, sought and secured Mullin's discharge for any reason other than Mullin's admitted re- fusal, throughout all the contacts between Mullin, repre- sentatives of Local 501, and Triplett, to regain good standing membership in Local 501 by tender of the req- uisite reinstatement fee. 15 On the contrary, the evidence establishes the Company granted Local 50l's demand for Mullins' discharge under a valid Company-Local 501 union-security agreement only after Mullin responded to company recommenda- tions (by Triplett) that he pay his reinstatement fee to 18 The Board has long held that the term "initiation fees" in this sec- tion of the Act encompasses remitiation or reinstatement fees required under a union constitution and bylaws for regaining membership termi- nated by nonpayment of periodic dues Food Machinery Corp., 99 NLRB 1430 (1952), Machinists Lodge 1600 (Adel Products), 120 NLRB 1223 (1958), G & H Products Corp, 139 NLRB 736 (1962), Metal Workers Alli- ance (TRW Metals), 172 NLRB 815 (1968) 14 Relying on Conductron Corp, 183 NLRB 419 (1970), and its proge- ny 's The General Counsel at no time, either by virtue of the complaint or in argument , contended the union-security agreement was invalid, or the reinstatement fee was excessive or improper because of the amount levied and/or the inclusion of 3 months of dues in advance, because these issues were neither raised nor litigated, I do not consider them before me for determination John J Roche & Co, 231 NLRB 1082 (1977), enfd 596 F 2d 240 (7th Cir 1978) CHROMALLOY AMERICAN CORP. regain good standing membership in Local 501 and avoid discharge under that agreement with obdurate refusals to make such a tender. I therefore find and conclude the Company discharged Mullin at Local 50l's request because Mullin lost his good standing membership in Local 501 during the term of a valid union-security agreement requiring retention of such membership as a condition of continued employ- ment and refused during the term of that agreement to regain his good standing by tender of a reinstatement fee uniformly required of members to regain good standing, and for no other reason, and therefore did not violate the Act. 16 C. The Alleged 1980 Discriminatory Refusal to Reinstate 1. Facts On November 11, 1980, Local 501 orally (by Wiley) asked the Company to reinstate Mullin to his former job with all rights restored. On November 12, 1980, the Company wrote to Local 501 acknowledging Wiley's November 11, 1980 request and stated it would comply on receipt of a written re- quest. On November 20, 1980, Local 501 submitted a written request for Mullin's reinstatement to the Company. On November 26, 1980, the Company wrote to Mullin to advise him it had received a written request from Local 501 for his reinstatement and requested he report for work at his regular job and shift on the first regularly scheduled workday after his receipt of the letter. Mullin was further advised his seniority and other rights and benefits would be restored dating from his original date of hire. On December 1, 1980, Mullin reported to the plant and commenced work at his former job on his former shift at the rates of pay, wages, and other benefit levels he received prior to his discharge. 2. Analysis and conclusions As noted heretofore, Local 501 continued to occupy the status of exclusive representative of the Company's production and maintenance employees until January 1981, some 3 months after the expiration of its last agree- ment with the Company (on October 14, 1980). Since findings have been entered the Company did not violate the Act in October 1980 by acceding to Local 501's request for Mullin's discharge for noncompliance with the Company-Local 501 union-securil y agreement, it follows the Company was under no obligation to offer him reinstatement until Local 501 requested it.17 D. The Status of the Assistant Plant Superintendents 1. Contentions The complaint alleges the Company, by three of its four assistant plant superintendents (Dominic Giacoletti, Oscar Nunez, and Ronald Straus), violated Section 16 Roche & Co, ibid 17 Valley Cabinet & Mfg., 253 NLRB 98 (1980) 881 8(a)(1) of the Act. The Company denied at the time the alleged violations were committed (in the spring of 1981) the three were supervisors within the meaning of Section 2(11) of the Act. Section 2(11) provides a supervisor is "any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or respon- sibly to direct them, or to adjust their grievances, or ef- fectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 2. Facts Under the terms of the June 13, 1980 order directing an election pursuant to the December 10, 1980 petition for decertification of Local 501 as the representative of the Company's production and maintenance employees, the Regional Director described the employees eligible to vote as those covered by the Company-Local 501 agreement expiring October 14, 1980, namely, "All chief engineers, assistant chief engineers, journeymen mainte- nance engineers, second class water treatment engineers, leadmen, craters, janitors, and maintenance engineer trainees .. .." The described unit included Plant Super- intendent Triplett (chief engineer) and the four assistant plant superintendents (Dominic Giacoletti, Oscar Nunez, Oswald Nunez, and Strahs, as assistant chief engineers). Prior to the election, the Regional Director excluded the two Nunezes on the ground they were supervisors within the meaning of Section 2(11) of the Act. Dominic Giacoletti cast a ballot at the election, which was chal- lenged. No determination was made concerning whether his ballot should be counted, since it could not affect the result of the election. Strahs apparently voted without challenge ("apparently," because the record discloses he acted as the Company's observer at the election, so it is reasonable to presume he cast a ballot). The record does not disclose whether Triplett cast a ballot or was ruled ineligible to vote prior to the election. On August 1982 the Board adopted the view of Ad- ministrative Law Judge Jay Pollack in his December 1981 decision that Dominic Giacoletti was a supervisor within the meaning of Section 2(11) of the Act. Thus Strahs is the only assistant plant superintendent whose status has not been determined in a prior Board proceeding. In the spring of 1981, the number of employees within the unit described in the expired Company-Local 501 agreement was relatively unchanged. During that period, Dominic Giacoletti was in charge of the 30-ton bay's and the two leadmen and eight production employees who manned that bay; Oscar Nunez was in charge of the 5-ton bay, the machine shop, the electrical department, the lateral department, and the 4 leadmen and 20 produc- tion and maintenance employees who manned that bay and those departments; Strahs was in charge of the weld- 18 Thirty-ton refers to the weight of the assemblies erected within the bay 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing operations, paint shop, the warehouse, the general maintenance of the premises, and the 2 leadmen and 18 production and maintenance employees who performed the welding operations, manned the paint shop and per- formed the warehouse and maintenance work. The record does not reflect what operations or functions or personnel Oswald Nunez oversaw. The production and maintenance employees wore white hardhats on the job, the leadmen wore blue, and the assistant plant superintendents wore gold. The assist- ant plant superintendents regularly attended meetings called by the shop and plant superintendents to discuss production requirements, schedules, needs, problems, etc. The assistant plant superintendents had offices in the plant; possessed keys to the plant;19 with the exception of Strahs,20 performed no production or maintenance work; assigned, directed, and checked the work per- formed by their leadmen and crews; prepared and sub- mitted periodic written evaluations to higher manage- ment of the work performance of the leadmen and em- ployees in their crews; issued oral and written warnings to leadmen and employees for poor performance, viola- tion of shop rules, etc.;21 and were responsible for main- taining a smooth flow of production, resolving problems as they arose, and maintaining production schedules. Under the terms of the expired Company-Local 501 agreement, the plant superintendent (chief engineer) was paid a rate 25 percent higher than the journeyman rate and the assistant plant superintendents (assistant chief en- gineers) were paid a rate 12 percent higher than the jour- neyman rate. All other provisions of that agreement (fringe benefits, hours, overtime rates, etc.) were applied both to the superintendents and all other classifications of employees covered by that agreement; they were con- tinued unchanged through the spring of 1981. Ordinarily the assistant plant superintendents did not hire or fire employees;22 they secured the approval of the plant superintendent before granting requests from employees within their crews for time off or to leave early, passed on to him requests for wage increases, and either secured volunteers to perform overtime work when it was scheduled or, in the absence of sufficient volunteers, assigned overtime to employees designated by the plant superintendent. The assistant plant superintendents punched timeclocks and shared leisure facilities with the production and maintenance employees. 3. Analysis and conclusions The foregoing evidence supports the same finding reached by the Regional Director, Administrative Law Judge Jay Pollack, and the Board; i.e., that at times per- tinent, and certainly through the spring of 1981, the four 19 So they could open and lock up the plant 20 Strahs performed a limited amount of such work 21 A multiplicity of such warnings, under the Company's progressive disciplinary system, resulted in suspension and/or discharge 22 Except to the extent their issuance of several warning notices to an employee caused his suspension or discharge Also, on a few occasions, Oscar Nunez effectively recommended employees for hire (which un- doubtedly also occurred with respect to recommendation by leadmen, journeymen, etc ) assistant plant superintendents, namely, Dominic Giaco- letti, Oscar Nunez, Oswald Nunez,23 and Strahs, were supervisors within the meaning of Section 2(11) of the Act. There were approximately 65 employees under their direction and control and only 4 officials above them.24 They were responsible for allocating the work of those 65 employees, monitored their performance, alleviated production problems, administered discipline, evaluated job performance, did little or no production or mainte- nance work, had offices, wore distinctive insignia (the gold hats), and were paid a substantially higher wage than those 65 employees. Clearly they were, in the lan- guage of the statute, individuals who exercised independ- ent judgment in the interest of their employer to reward (by virtue of their job evaluations) discipline (by virtue of their issuance of verbal and written warnings) respon- sibly to direct (by virtue of their assignment of work, checking of work, etc.) other employees and therefore supervisors within the meaning of Section 2(11) of the Act,25 and I so find and conclude. E. The Alleged Oscar Nunez' and Strahs' Surveillance of Employee Union Activities in March and April 1983 1. Facts Following the January 1981 decertification of Local 501, several of the Company's production and mainte- nance employees contacted Local 398 to secure represen- tation by that organization . During February and March 1981, those employees posted notices at the plant next to the timeclock utilized by the production and mainte- nance employees announcing the dates, times, and places there would be meetings of those employees with repre- sentatives of Local 398 and inviting all interested em- ployees to attend. Oscar Nunez and Ronald Strahs, long-time employees of the Company and members of Local 501 covered by the series of contracts between the Company and Local 501, regularly attended and participated in meetings called by Local 501. Thinking they would be eligible for membership in Local 398 plus representation and con- tract coverage by that organization, they attended meet- ings of Local 398 to ascertain if they were eligible and, if so, what their obligations would be and what Local 398 planned to seek in wages, etc. Nunez attended the March 2 or 3, 1981 meeting, after seeing a notice announcing that meeting and inviting em- ployee attendance. He went alone, driving to the meet- 23 I reach this conclusion with respect to Oswald Nunez on the rea- sonable inference his duties and responsibilities were the same as those of the other three assistant plant superintendents 24 In ascending order, Triplett (plant superintendent), Daniel Giasco- letti (plant manager), Jerry McCormick (director of manufacturing), Scott (vice president and general manager), and Burns (president), with none of the latter thre playing a direct role in directing shop activities. 25 Clear Lam Packaging, 265 NLRB 701 (1982), Chromalloy Corp, 263 NLRB 244 (1982), Conair Corp, 261 NLRB 1189 ( 1982); NLRB v. Dixon Industries, 700 F 2d 595 (10th Or 1983), enfg 252 NLRB 698 (7th Cir. 1981), Justak Bros v NLRB, 664 F 2d 1074 (7th Cir 1981), enfg 253 NLRB 1054 ( 1981), Monongahela Power Co. v. NLRB, 651 F 2d 608 (4th Or 1981), enfg in part 252 NLRB 715 (1980), Southern Indiana Gas Y. NLRB, 657 F 2d 878 (7th Cir 1981), denying enf 249 NLRB 252 (1980) CHROMALLOY AMERICAN CORP ing in his auto. He went to the meeting to ascertain if he would be eligible for representation by Local 398, cover- age under any contract Local 398 might negotiate with the Company and if so, what wages, benefits, etc., Local 398 would seek on his behalf. He signed an attendance sheet. At the meeting, he asked the Local 398 representa- tive who chaired the meeting (Business Manager David Liskey) if he, as an assistant plant superintendent, was el- igible for membership in Local 398 plus representation and contract coverage by that organization. Liskey re- sponded he would check and advise. None of the iem- ployees or union representatives raised any objections to his presence at and participation in the meeting. Nunez and another employee (Vega) went in Nunez' auto to the next meeting on March 11, 1981. Nunez asked Liskey if he had checked into his eligibility to join Local 398 and secure representation and contract cover- age by Local 398. Liskey replied Local 398 did not have the classification of assistant plant superintendent in its contracts, but it did cover foremen and general foremen and Nunez' position appeared the same as general fore- man, so he could join and secure representation and con- tract coverage. Again no one present objected to Nunez' presence at and participation in the meeting. In the course of this meeting, cards authorizing Local 398 to act as the employees' collective-bargaining representative were distributed; approximately 58 employees (of the ap- proximately 70 employees in the unit) signed cards, in- cluding Nunez. Nunez and Vega went to the April 1, 1981 meeting in Nunez' auto. Again no one present objected to Nunez' presence. An in-plant organizational committee was se- lected and Local 398 buttons were distributed. Nunez did not receive a button at the meeting, but accepted one from a member of the committee the next day and wore it. Later that day an employee informed Nunez some em- ployees were saying he was a company spy. Resenting the accusation, he refrained from attending any further meetings. Higher management did not request or suggest he attend any of the meetings and he made no reports to any representative of higher management concerning what occurred there.26 Strahs attended only the April 1, 1981 meeting. He went with four production and maintenance employees who lived in his neighborhood and were his friends. No one raised any objection to his presence at or participa- tion in the meeting. At that meeting he asked Liskey if he was eligible for Local 398 membership plus represen- tation and contract coverage by that organization. Liskey gave him the same advice he earlier gave to Nunez; that he was eligible for membership, plus repre- sentation and contract coverage as a general foreman. A few days after the meeting, he signed a card authorizing Local 398 to act as his collective-bargaining representa- tive, gave it to a member of Local 398's inplant organiz- ing committee, accepted a Local 398 button, and wore it. Higher management did not request or suggest he attend 26 These findings are based primarily on Nunez' testimony, as partially corroborated by Liskey 883 the meeting and he made no reports to higher manage- ment concerning what transpired there.27 2. Analysis and conclusions On these facts, I find and conclude the attendance of Nunez and Strahs at the Local 398 meetings described did not violate the Act. They were invites; they attended for personal reasons, not for the purpose of learning who was there and what was discussed, in order to report such information to their superiors; neither the union of- ficials who presided at the meetings nor the employees in attendance voiced any objection to their presence at and participation in the meetings, despite their clear identifi- cation of themselves at the meetings; their status as su- pervisors was not established at the time they attended the meetings and they, the employees in attendance and the union officials reasonably believed they would be in- cluded within the unit Local 398 was seeking to repre- sent; in any event, Local 398 accepted into membership and represented supervisors at the level of Nunez and Strahs and so indicated; there was no evidence the Com- pany encouraged, directed, or suggested that Nunez and Strahs attended the meetings in question, knew they did attend, and received any reports from them concerning the identity of the employees at the meetings they at- tended or what transpired at those meetings; and their presence at those meetings did not intimidate the other employees in attendance (as witnessed by the number of employees who signed cards). Under such circumstances, both the Board and the courts have held supervisor at- tendance at union meetings to be noncoercive and not violative of the Act, and I so find and conclude.28 F. The Alleged March and April 1981 Solicitations and Threats by Dominic Giacoletti 1. Facts As noted heretofore, Giacoletti was a long-time com- pany employee and member of Local 501. He continued his membership in and support of Local 501 subsequent to its decertification in January 1981 and through the times the alleged solicitations and threats took place (in the spring of 1981). At that time, the question of whether he was a supervisor was undetermined29 and both Local 501 and Local 398, with no apparent objection by the Company, sought recognition as his representative for collective-bargaining purposes, and coverage by any agreement they might negotiate. As noted above, following the March 11, 1981 execu- tion by a majority of the employees formerly represented by Local 501 of cards authorizing Local 398 to represent 2' These findings are based on Strahs ' testimony plus partial corrobo- ration by Liskey 2s NLRB v. Computed Time Corp, 587 F 2d 790 (5th Cir 1979), NLRB v Brookside Industries, 308 F 2d 224 (4th Cir 1962), Panchito's, 228 NLRB 18 (1977); Western Sample Book Co, 209 NLRB 64 (1974), Eldo Craft Boat Co, 166 NLRB 280 (1967) 29 Giacoletti voted in the July 1980 decertification election and his ballot was challenged, since his vote would in no event alter the result, the challenge was not resolved It should also be noted Strahs apparently voted in the election (since he participated as an observer -employee se- lected by the Company) without challenge 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD them for collective-bargaining purposes, many of those employees began to wear Local 398 buttons while at work. Giacoletti, a fervent supporter of Local 501, re- sponded by wearing several Local 501 buttons, stating to employees Local 501 was a good union and they were mistaken in not supporting it, soliciting support for Local 501 and disparaging Local 398 and its supporters. About April 15, 1981, when 15 employees were permanently laid off without regard to seniority order, Giacoletti told 2 of them30 this was what happened when the shop em- ployees did not have union representation and demon- strated how mistaken the employees were in decertifying Local 501; and about April 30, 1981, while Thomas Dodson was picketing outside the plant and Giacoletti was nearby in his auto, in the course of a conversation between them concerning the weather, the merits of the strike, etc., in response to a comment by Dodson the em- ployees were going to win the strike, Giacoletti replied they were wrong in striking over their layoff and wrong in throwing out Local 501, if Local 501 had been repre- senting the employees when they were laid off (on April 15), they would not have been laid off. counted); the Company recognized Local 501 as his col- lective-bargaining representative and included him within the bargaining unit represented by that organization and within the coverage of the Company-Local 501 agree- ments and Local 398 expressed both its willingness to accept assistant plant superintendents as members and to seek recognition as their representative for collective- bargaining purposes and their inclusion within and cov- erage by any contractual agreement it was able to secure with the Company; the assistant plant superintendents, including Giacoletti, believed they would be included within the unit represented by either Local 501 or Local 398 and covered by any contract between the Company and either of those organizations; and there is no evi- dence the Company held a contrary belief or that it en- couraged, authorized, or ratified Giacoletti's efforts on behalf of Local 501 and against Local 398;34 I find and conclude the latter line of cases controlling and the Company not responsible for Giacoletti's March 1981 so- licitations. G. The Alleged March Solicitation by Burns 2. Analysis and conclusions On the basis of the foregoing, I find and conclude during the spring of 1981 Dominic Giacoletti did, as al- leged, solicit employees to support Local 501 and to abandon support of Local 398. I find and conclude, how- ever, his remarks to Kunz, Gutierrez, and Dodson did not constitute threats, but rather Giacoletti's expression of his opinion, if the employees had not decertified Local 501 and had been covered by an agreement between the Company and Local 501 at the time of their layoff, Local 501 either would have prevented the layoff or at least assured that it was carried out in seniority order.31 Although ordinarily supervisor solicitation of employ- ees to support one labor organization over another is violative of the Act,32 when (as here), the offending su- pervisor appears to be within the bargaining unit the competing unions seek to represent and there is no evi- dence the employer encouraged, authorized, or ratified the supervisor's actions, the employer has not been held responsible for his actions.33 Because at the time Giacoletti solicited employee sup- port of Local 501 over Local 398, Strahs' and Giacolet- ti's status as undetermined (while the ballot he cast at the July 1980 election was challenged on the ground he was a supervisor, the challenge was not resolved; the ballot cast by Strahs apparently was not challenged, and was 30 Darryl Kunz and Daniel Gutierrez 91 Kunz was number 36 on the seniority roster and Gutierrez was number 46, there were 72 employees on the roster, if the 15 with the lowest seniority had been laid off, neither Kunz nor Gutierrez would have been'laid off (Dodson was not laid off on April 5, 1981 , but joined the picket line manned by the 15 after their layoff) 32 L'Eggs Products v NLRB, 619 F 2d 1337 (9th Cir 1980), Van Guard Carpet Mills, 246 NLRB 661 (1979), Chromalloy Corp, 245 NLRB 934 (1979), Brownsboro Hills Nursing Home, 244 NLRB 269 (1979), Providence Medical Center, 243 NLRB 714 (1979), Ethyl Corp, 231 NLRB 431 (1977) 33 Nazareth Regional High School v NLRB, 549 F 2d 873 (2d Cir 1977), Plessey Materials Corp, 263 NLRB 1392 (1982), Arcadia Foods, 254 NLRB 1012 (1981) 1. Facts It is undisputed in mid-March Burns addressed a meet- ing of the Company's shop employees at the plant. Burns called the meeting at the request of Daniel Gia- coletti, Scott, and Triplett on the basis of their reports there was considerable unrest and loss of productivity in the plant resulting from Local 398's campaign and rumors flying around the plant on the one hand that the Company was highly profitable and capable of paying much higher wages and on the other hand the Company was about to be sold or go out of busmess.35 At the outset of the meeting Burns advised the em- ployees the Company was aware of their interest in union representation; that while they were free to choose whatever representative they desired-whether it be Local 398, Local 501, or an inplant association-the Company would bargain with whatever organization they did choose (or on a one-to-one basis) but, in no case, should they expect to secure wage rates of $12-$16 per hour, because the Company could not afford to pay such wage scales; since while its backlog of work was valued at approximately $25 million, that backlog of work was based on customer acceptance of Company bids which, inter alia, included estimated labor costs of limited elasticity; and that there was no need to fear the Company's going out of business or a sale because their services would be needed so long as its backlog of un- completed orders remained in existence. Responding to an inquiry concerning why the Company, in view of its backlog, did not replace its obsolete and damaged ma- chinery and cease or reduce the amount of work it con- tracted out, Burns explained the Company expected only 34 On the contrary, when an employee complained to Triplett con- cerning Giacoletti's advocacy of Local 501, he was reprimanded and in- structed to cease 35 Burns also was aware the journeyman rates contained in Local 398's standard area contracts were much higher than the Company 's journey- man rate CHROMALLOY AMERICAN CORP. a small percentage of that backlog figure as profit, that it lost $1 million the preceding year, could not afford to upgrade its equipment, and had to contract out portions of the work.36 2. Analysis and conclusions The violation alleged was Burns' solicitation of em- ployees to support a labor organiza tion other than Local 398; I find and conclude, however, Burns expressly stated the employees were free to choose whatever orga- nization they desired, whether it be Local 398, Local 501, or a shop association, or to bargain individually, and went on to express his doubt, in the event they chose Local 398, the Company could provide the wage rates and benefits contained in Local 398's standard area agreements. Such expression was reasonable exercise of the Company's free-speech rights under Section 8(c) of the Act and is not violative of Section 8(a)(1) of the Act,37 and I so find and conclude. H. The Alleged Unlawful April 15, 1981 Discharges 1. Facts and contentions Employees Kenneth Abernathy, T. R. Anderson, Greg Blythe, Chris Danekes, Daniel Gutierrez, Archie Heulett, William Hoffman, William Hunt, Darryl Kunz, John Morales, Daniel Mullin, Willis Ott, Daniel Pierce, Victor Ramos, and Casey Rodman were discharged on April 15, 1981. The Company maintains that 15 were discharged for economic reasons and Local 398's currently successful organization effort and demands for recognition and bar- gaining were not the precipitating factor therefor. The General Counsel contends that 15 were terminat- ed to rid the Company of a number of the senior em- ployees within the work force who were both influential among other employees and of the strong view Local 398 could and would secure much higher wages and benefits for them, a goal the Company feared, because it was aware of the high wage rates and benefits contained in Local 398's standard area agreements; and that it uti- lized the subterfuge of contracting out a substantial por- tion of its work backlog, which it earlier had planned to perform with its own work force, as it normally did, and then relied on the resulting reduction in its backlog as justification for the terminations. The record evidence sustains the General Counsel's contentions. Prior to his March 19, 1981 meeting with representa- tives of Local 398, Company President Burris was aware Local 398 enjoyed substantial support among the Com- pany's production and maintenance employees, aware as These findings are based on the testimony of Bums, as substantially corroborated by employee witnesses Blasko, Pierce, and Savageau, all members of Local 398's mplant organizing committee (and contradicting Mullin's testimony Burns stated the Company would bargain only with Local 501, an inplant association or directly) 84 NLRB Y General Telephone Directory Co, 602 F2d 912 (9th Cir 1979), NLRB Y Intertherm, Inc, 596 F 2d 267 (8th Cir 1979), Lundy Packing Co v NLRB, 549 F 2d 300 (4th Cir 1977), Chrysler Airtemp South Carolina, 224 NLRB 427, 431-432 (1976), Friendly Markets, 224 NLRB 967, 970 (1976), Pilot Freight Carriers, 223 NLRB 286, 292-298 (1976) 885 Local 398's standard area agreements contained wage rates and benefits substantially greater than those of the Company's journeymen plumbers and pipefitters, aware much of Local 398's appeal to the employees arose be- cause they were dissatisfied with their current wage scales and benefits and believed they should be much higher,38 and aware Hunt and Mullin, longtime employ- ees of the Company and influential among their fellow employees, capitalized on employee dissatisfaction over the wage scales and benefits they were receiving while represented by Local 501 to secure Local 501's decertifi- cation and to secure representation by Local 398.39 At that March 19, 1981 meeting, Burns expressed his gratification at statements by the Local 398 representa- tives that Local 398 would not seek the wage rates, ben- efits, and conditions contained in its standard area con- struction agreements, but rather would seek the rates, etc. contained in its agreements covering shop work and field service. He did not contest Local 398's claim 95 percent of the Company's employees within the unit for- merly represented by Local 501 had executed cards au- thorizing Local 398 to represent them for collective-bar- gaining purposes, but stated he wanted time-at least until June-to rid the Company of the radical elements among its work force who he believed were causing the Company the most problems, proclaiming their elimina- tion would be in the best interests of both Local 398 and the Company-before bargaining over any new labor agreement.4 0 Following that meeting, top officials of the Company (Scott and McCormick) reviewed the work budgeted or planned for performance by its shop employees (in ac- cordance with company practice of assigning sufficient work to its own employees to preserve a skilled work force enabling it to timely meet its work schedules under varying timetables and circumstances); contracted out a substantial portion of that work to outside contractors; and permanently laid off approximately 20 percent of its shop employees, citing the reduction in the shop's work backlog they had just created as the reason therefor.4 r Four of the 15 terminated employees were known members of Local 398's inplant organizing committee (Hunt, Mullin, Ott, and Pierce); two were outspoken in their criticism of company policy as expressed by Burns at the mid-March meeting (Heulett and Pierce), all but 98 These findings are based on Burns' testimony, his remarks to the employees at the meeting he called in mid-March (see sec G above), and were confirmed by an employee attitude survey Burns caused to be con- ducted by an outside consultant ss Hunt was junior Local 501 shop steward at the time Local 501 ne- gotiated the 1-year extension agreement (from October 1979 to 1980) and joined the senior steward, Kenneth Freilich, in opposing acceptance of that agreement and securing support for Local 501's decertification be- cause of their dissatisfaction over the terms of that contract They were joined by Mullin, a former shop steward for Local 501, in the effort Freilich's efforts resulted in his discharge as a "troublemaker" and "radi- cal," and issuance of a subsequent Board Order in a separate proceeding directing his reinstatement (Chromalloy Corp, ibid) Triplett also charac- terized Mullin as a "radical" when he denied Mullins' December 1980 re- quest for a wage increase 40 These findings are based on the mutually corroboratory testimony of Burns, Scott, Local 398 Business Manager David Liskey, and Local 398 Organizer James Hosey 41 These findings are based on testimony by Scott and McCormick 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD two (Anderson and Hoffman) of the 15 signed cards au- thorizing Local 398 to represent them for collective-bar- gaining purposes; and most of them wore Local 398 but- tons at the plant and attended Local 398 meetings also attended by one or more assistant plant superintend- ents.42 Mullin was number 9 in seniority and a 16-year employee; Hunt was number 32 in seniority and a 6-1/2- year employee; Heulett was number 35 and a 6-year em- ployee.43 As a result of the terminations, the May 1981 payroll dropped to $90,523 from the $116,405 March 1981 pay- roll; it is noted, however, by December 1981 the payroll had risen to its former levels and the $25 million backlog of January 1981 by the end of the year had increased to $28 million.44 2. Analysis and conclusions On these facts, i.e., the timing of the layoff (shortly after the Company learned Local 398 had achieved ma- jority representative status and demanded recognition and bargaining); company knowledge-through its survey-its employees sought representation by Local 398 in the expectation that organization would secure for them the substantial wage and benefit increases they de- sired; its announced intention to weed out the "radicals" among it employees before entering any negotiations with Local 398 over any increases in its current wages and benefits; its substantial reduction in planned produc- tion within its shop through contracting out of a large portion of such production and use thereof as justifica- tion for the termination, without regard to seniority, of approximately 20 percent of its skilled work force, in- cluding employees earlier identified as senior and influen- tial among their fellows and strong proponents of the de- certification of Local 501, the selection of Local 398 as its replacement, and a militant drive through that organi- zation to secure substantial improvements in the employ- ees' wages and benefits; I find and conclude the Compa- ny by its April 15, 1981 discharges, in a single stroke, rid itself of strong leaders among the unit employees of the campaign to secure higher wages and benefits through Local 398 and discouraged both the terminated and other employees within the unit from continuing in that quest, thereby violating Section 8(a)(1) and (3) of the Act.45 42 In this connection , it is noted Triplett testified he and the four assist- ant plant superintendents conferred at the suggestion of Daniel Giacoletti to prepare a list of the employees they thought should be laid off, Giaco- letti independently prepared another list, the two lists were identical except for one name and Triplett and Giacoletti then reconciled the dif- ference and came up with a final list-contradicting Giacoletti's testimo- ny he prepared a list of 24 with no input from Tnplett et al. and Scott reduced that list to the 15 laid off when Giacoletti protested a cut of 24 was too deep 42 These findings are based on documentary evidence and the testimo- ny of Hunt, Mullin, and Pierce 44 From company records 45 NLRB v. Industrial Erectors, 712 F.2d 1131 (7th Cir 1983), NLRB v. Instrument Corp, 714 F 2d 324 (4th Cir 1983), NLRB v Quick Find Co, 698 F 2d 355 (8th Cir 1982), NLRB v Brooks Camera, 691 F 2d 912 (9th Cir 1982), NLRB v. Comgeneral Co, 684 F 2d 367 (6th Cir 1982); Brad- ford Furniture Co, 675 F 2d 426 ( 1982) American Chain Link Fence, 670 F2d 1236 (1st Cir 1982), Big Sky Sheet Metal, 266 NLRB 21 (1982), A & T Mfg Co, 265 NLRB 1569 ( 1982), Enterprise Products Co, 265 1. The Alleged April 16, 1981 Daniel Giacoletti Threat 1. Facts It is undisputed the day following the April 15, 1981 discharges, the remaining shop employees were sum- moned to a meeting addressed by Daniel Giacoletti. It is further undisputed he stated the terminations of the pre- vious day were effected for economic reasons, that the remaining employees were "the cream of the crop," and that they were going to have to work harder, in view of the force reduction. Employees Craig Blasko, Foster Bray, Thomas Dodson, Ed Gonzales, and Dennis Savageau testified Giacoletti also stated if the employees did not like the Company's decision to reduce the work force, there was room for more reductions.46 2. Analysis and conclusions On the basis of the foregoing, I find on April 16, 1981, Daniel Giacoletti told the shop employees assembled to hear his remarks if they did not like the Company's deci- sion to reduce the work force, there was room for more reductions. I conclude, however, the remark in question was ambiguous and that it does not support the conclu- sion by that remark Giacoletti threatened the assembled employees with discharge for engaging in union or other protected, concerted activities; the remark may as readily be construed as a threat of further reductions if they did not work harder to make up the work formerly per- formed by the terminated employees. I therefore conclude by the remark in question the Company did not violate the Act.47 J. The Alleged Unfair Labor Practice Strike 1. Facts It is undisputed on April 22, 1981, the employees dis- charged on April 15, 1981, and employees who were still actively employed by the Company began to man a picket line at the Company's premises carrying signs and distributing leaflets proclaiming they were engaged in a strike to protest the Company's unfair labor practices, to wit, the discharge of the 15 on April 15, 1981, and the earlier discharges of Freilich and Hernandez for engag- ing in union activities. When Scott came out to ask what the strikers wanted, he was informed they wanted the re- instatement of the discharged employees. NLRB 544 (1982), Windsor Industries, 265 NLRB 1009 (1982), RAHCO Inc, 265 NLRB 235 (1982), Washington Beef Products, 264 NLRB 1163 (July 25, 1982) (not reported in bound volume), Rain-Wear, 273 NLRB No 8 (1982), Intermedics, Inc, 262 NLRB 1407 (1982); A & W Catering Co, 262 NLRB 804 (1982), Commercial Testing, 262 NLRB 786 (1982); Parker-Robb Chevrolet, 262 NLRB 402 (1982); Dutch Boy, 262 NLRB 4 (1982), Right-Gard Corp , 261 NLRB 1181 (1982), Earle Industries, 260 NLRB 1128 (1982); Southland Knitwear, 260 NLRB 642 ( 1982); Balch Pontiac Buick, 260 NLRB 458 (1982) 46 Giacoletti denied making this statement Scott and Triplett , who ad- mittedly were at the meeting , neither corroborated nor contradicted the testimony dust recited The employee testimony is credited 47 Valley West Welding Co, 265 NLRB 1597 (1982), Eggo Frozen Foods, 247 NLRB 510 (1980) CHROMALLOY AMERICAN CORP. 887 2. Conclusions The Board has issued its decision holding Freilich and Hernandez were discharged for engaging in union or other protected, concerted activilies,48 and I have en- tered findings and conclusions the 15 employees dis- charged on April 15, 1981, also were discharged because of their union or other protected concerted activities. I therefore find and conclude from and after April 22, 1981, the employee strike to protest those discharges and secure the reinstatement of the discharged employees was an unfair labor practice strike.49 K. The Alleged April-May 1981 Scott Threats and Discharges 1. Facts Craig Blasko, Foster Bray, Charles Cole, Thomas Dodson, Ed Gonzales, John Hohrun, Dino Mancinelli, Jorge Revel, Domingo Reyes, Dennis Savageau, and William Walling, all employees who authorized Local 398 to represent them and three of whom were members of Local 398's inplant organizing committee (Blasko, Dodson, and Savageau), joined in the strike to support the strikers' demand for reinstatement of the 15 employ- ees previously discharged for engaging in union activi- ties. On the day after the strike began (April 23, 1981), the Company dispatched letters signed by Scott to strikers Blasko, Bray, Cole, Dodson, Hohrun, Reyes, Savageau, and Walling, stating there was vvork in the plant for them to perform and if they failed to report to perform it by the beginning of their shifts on April 29, 1981, they would be permanently replaced. Mancinelli and Revel received a similar communication on April 27, 1981, and Gonzales received one on April 29, 1981. On April 30, 1981, Blasko, Cole, Hohrun, Savageau, and Walling received a second letter from Scott stating the Company had secured a permanent replacement for them, their services were no longer desired, and enclosed a check covering wage and benefit accruals to that date. On May 5, 1981, Dodson and Mancinelli received a simi- lar letter. On May 6, 1981, Revel received the same letter. On May 8 Gonzales and Reyes received a similar letter. On June 8, 1981, Bray received an identical letter. 2. Analysis and conclusions The Board uniformly has held an unfair labor practice striker retains employee status while engaged in an unfair labor practice strike; it is therefore an unfair labor prac- tice both to threaten him with discharge for engaging in 48 Chromalloy Corp, ibid 49 NLRB v. United Services for the Handicapped, 678 F 2d 661 (6th Cir 1982), NLRB v Robin American Corp, 654 F 2d 102: (5th Cir 1981), NLRB v Gulf-Wandes Corp, 595 F 2d 1074 1,5th Cir 1979), Dimo Ambu- lett Services, 255 NLRB 5 (1981), Marlene Industries, 255 NLRB 1446 (1981); Connecticut Pen & Pencil, 236 NLRB 11142 (1978) that strike50 and to discharge him for engaging in that strike. 51 On the basis of the foregoing, I find and conclude the Company by Scott violated Section 8(a)(1) of the Act by threatening to discharge Blasko , and others, if they did not abandon their unfair practice strike and return to work and Section 8(a)(1) and (3) of the Act by discharg- ing them for their failure to abandon their unfair labor practice strike and return to work. L. The Allegedly Coercive Conduct by Mariman Guards and Guard Dogs and the Company's Responsibility Therefor 1. Contentions of the parties The complaint alleges : (1) About April 23, 1981, a Mariman guard threatened picketing employees with physical assault because of their picketing activities; (2) about April 22 and 23, 1981, a Mariman guard threatened picketing employees with physical attack by a guard dog because of their picketing activities; (3) in about mid- May 1981 a Mariman guard threatened picketing em- ployees by drawing and pointing his handgun at them; (4) about May 21, 1981, a Mariman guard threatened picketing employees with death or serious injury because of their picketing activities; and (5) about June 4, 1981, Mariman guards threatened picketing employees by pointing handguns at them. The complaint further alleges by those actions the guards in question interfered with, coerced, and restrained the picketing employees in the exercise of their Section 7 right to strike and picket at the Company's premises and thereby violated the Act. The Company contends Mariman is an independent contractor who supplied the guards and guard dogs in question; it exercised no control over Mariman, its em- ployees, guard dogs, etc.; in several cases, it was un- aware of the conduct set forth and in no event author- ized, condoned, or ratified that conduct; that the conduct complained of did not interfere with, restrain, or coerce the picketing employees in the exercise of their Section 7 rights; and that it is not responsible therefor. so NLRB v Berger Transfer, 678 F 2d 679 (7th Cu 1982), NLRB v Laredo Coca Cola Bottling Co, 613 F 2d 1338 (5th Cir 1980), cert denied 449 U S 889 (1980), NLRB v Sumter Plywood Corp, 535 F 2d 917 (5th Cu 1978), Consolidation Coal Co, 266 NLRB 670 (1983), Cooperative de Credito, 261 NLRB 1098 (1982), Conair, 261 NLRB 1189 (1982), Marlene Industries, 255 NLRB 1446 (1981), Friday Canning Co, 255 NLRB 323 (1981), Camay Drilling Co, 254 NLRB 239 (1981), Inta-Roto, Inc, 252 NLRB 764 (1980), Thurston Motor Lines, 237 NLRB 498 (1978), Cagle's Inc, 234 NLRB 1148 (1978), Berbigha, Inc, 233 NLRB 1476 (1977) 51 Bill Johnson's Restaurants v. NLRB, 660 F 2d 1335 (9th Cir. 1981) and 713 F 2d 1446 (9th Cir 1983), NLRB v Carbonex Coal Co, 679 F 2d 200 (10th Cir 1982), NLRB v Fry Foods, 609 F 2d 267 (6th Cir 1979), Berbigha v NLRB, 602 F 2d 839 (8th Cir 1979), Vulcan-Hart Corp, 262 NLRB 167 (1982), Isla Verde Hotel Corp, 259 NLRB 496 (1981), Newton Corp, 258 NLRB 659 (1981), Inta-Roto, 252 NLRB 764 (1980); Caterpil- lar Tractor, 250 NLRB 527 (1980), Lyon & Ryan, 246 NLRB 1 (1979); Dow Chemical, 244 NLRB 1060 (1979), Hennepin Broadcasting, 225 NLRB 286 (1976) 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Facts a. The retention of the guard and guard dogs and their direction and function On April 15, 1981, the Company contracted with Mar- iman Security to provide guard and patrol services at its premises in anticipation of a strike. The contract was ne- gotiated by Richard Cox, the Company's security chief 52 Under the terms of that contract, Mariman sup- plied uniformed guards equipped with firearms, batons, and hand radios; guard dogs; and mobile units capable of being summoned by radio in the event of an emergency; and in return was paid a fixed sum per hour per guard. Cox instructed the guards concerning where they were to station themselves and the dogs;53 where and when they were to patrol the premises; issued instructions con- cerning the carrying and use of their weapons; constant- ly directed and monitored their performance; 54 main- tained a log setting out their hours, assignments, and conduct; and caused the removal and replacement of sev- eral guards because he was dissatisfied with their per- formance. b. The alleged April 23, 1981 incident During the first 2 days of picketing (April 22 and 23, 1981), a Mariman guard standing with a dog just a few feet55 from picketing employees dropped the dog's leash to the ground, stood on it, and on one occasion threat- ened to take his foot off the leash. During these first 2 or 3 days of picketing, the pickets verbally abused the guards and the guards responded in kind. The guard dogs never were released and there never was any physical contact between any dog and any picket. 66 c. The alleged threat of physical violence Although the complaint alleged a guard threatened pickets with physical assault about April 23, 1981, and again on May 21, 1981, the testimony developed only one such threat, sometime during that period, by a guard stating to several pickets he was bored and was going to draw some blood, to which the pickets responded it might be his blood spilled. The Company learned of the guard's threat when the same guard asked Daniel Giaco- letti if the Company would like to see some blood drawn; Giacoletti reported the request to Cox; and Cox 52 I find at all material times Cox was supervisor and agent of the Company acting on its behalf within the meaning of Sec 2 of the Act 53 Cox decided to maintain the dogs at the Company's premises during the strike and they were housed, fed, and maintained there for the strike duration 54 On at least one occasion, Triplett also directed the guards in the performance of their duties, changing the posts at which they and the dogs were stationed. 55 Cox originally stationed the guards and dogs some distance from the two auto entrances to the plant where the pickets maintained their line but Triplett, after receiving complaints from employees of threats, having their autos struck by picket signs, etc , ordered the guards and dogs to move closer to the line to prevent such incidents, on receiving a com- plaint from the sheriffs office, however, who in turn had received a com- plaint from the sinkers, Cox ordered the guards back from the picket line, and they remained back for the remainder of the strike 56 These findings are based on uncontradicted employee testimony had the guard permanently removed from any duties at the plant within 1 hour of receiving the report. No physical contact between any guards and pickets occurred during the strike.57 d. The alleging threats by the drawing of guns Employees Blasko and Kunz testified they saw a guard drive his auto to the picket line with a gun sitting on the dashboard of an auto in which a guard was sitting inside the Company parking lot and on another occasion saw a guard twirling his gun as he walked towards the plant; employee Gutierrez testified he saw a guard walk toward him, draw his gun, point it at the pickets, eject the clip, and continue on to the Company's offices; and employee Bray testified he saw guards remove their guns from the holsters and clean them-while about 70 to 100 feet from the picket line; all of these incidents occurred during the strike.58 The guards were under instructions to carry empty guns between their homes and the plant; to load the guns only after reporting for duty; and to reverse that proce- dure on finishing their tour of duty. Some of the guards did not own their own guns, which necessitated an ex- change of guns on change of shift.59 3. Analysis and conclusions An employer may be held responsible for the actions of a guard service it has employed,60 but only if the ac- tions of the guard interfere with, restrain, or coerce em- ployees in the exercise of their Section 7 rights and only if the employer was made aware of the guard's conduct and authorized, condoned, or ratified that conduct.61 Although on the basis of the facts and authority recit- ed above, I find at pertinent times the Mariman guards were agents of the Company acting on its behalf within the meaning of Section 2 of the Act, I find the evidence does not show the Company was aware of the gun inci- dents described in section d, above, that it authorized or condoned or ratified the conduct in question, and it is doubtful that conduct had any intimidating effect on the pickets; that the Company not only did not authorize the incident described in section c, above, it promptly re- moved the offending guard from its premises when it learned of his conduct; and with respect to section b, it was unaware of the conduct set forth and promptly moved the guards and dogs back from the picket line when it learned of it. I therefore find and conclude the Company was not responsible for the conduct in ques- tion and will recommend dismissal of those portions of 57 These findings are based on uncontradicted testimony by several employees, Cox, and Giacoletti 58 This uncontradicted employee is credited 59 Cox's undisputed testimony to this effect is credited 60 Harrison Steel Castings Co, 262 NLRB 450 ( 1982), Hudson Oxygen Therapy Sales Co, 264 NLRB 61 (1982), Maywood Plant of Grede Plastics, 235 NLRB 363 (1978) 61 Hudson Oxygen, ibid. (ratification, so responsible); Maywood Plant of Grede Plastics, ibid (no evidence gun drawn in response to employee ex- ercise of Sec 7 rights, so not responsible), G F Business Equipment, 252 NLRB 866 ( 1980) (no evidence employer aware and authorize , condone, or ratify conduct, so not responsible). CHROMALLOY AMERICAN CORP. the complaint alleging by that conduct the Company violated the Act. CONCLUSIONS OF LAW 1. At all pertinent times the Company was an employ- er engaged in commerce in a business affecting com- merce within the meaning of Section 2 of the Act. 2. At all pertinent times Locals 398 and 501 were labor organizations within the meaning of Section 2 of the Act. 3. At all pertinent times Burns, Scott, McCormick, Daniel Giacoletti, Triplett, Dominic Giacoletti, Strahs, Oscar Nunez, and Cox were supervisors and agents of the Company acting on its behalf within the meaning of Section 2 of the Act. 4. At all pertinent times Mariman Security's guards were agents of the Company acting on its behalf within the meaning of the Act. 5. The Company violated Section 8(a)(1) and (3) of the Act by its April 15, 1981 discharge of employees Aber- nathy, Anderson, Blythe, Danekes, Gutierrez, Heulett, Hoffman, Hunt, Kunz, Morales, Mullin, Ott, Pierce, Ramos, and Rodman because of their union activities. 6. The Company's employees engaged in an unfair labor practice strike between April 22 and August 4, 1981, to protest the April 15, 1981 discharges and the earlier discharges of Freilich and Hernandez because of their union activities and to secure their reinstatement. 7. The Company violated Section 8(a)(1) of the Act by its April 23-29, 1981 threats to discharge striking em- ployees Blasko, Bray, Cole, Dodson, Gonzales, Hohrun, Mancinelli, Revel, Reyes, Savageau , and Walling if they did not abandon their strike and return to work. 8. The Company violated Section 8(a)(1) and (3) of the Act by its April 30-June 8, 1981, discharge of striking employees Blasko, and others, for refusing; to abandon their strike and return to work. 9. The Company did not otherwise violate the Act. 10. The aforesaid unfair labor practices affect com- merce as defined in the Act. THE REMEDY Having found the Company violated the Act by dis- charging employees Abernathy, Anderson, Blasko, Blythe, Bray, Cole, Danekes, Dodson, Gonzales, Gutier- rez, Hohrun, Heulett, Hoffman, Hunt, Kunz, Mancinelli, Morales, Mullin, Ott, Pierce, Ramos, Revel, Reyes, Rodman, Savageau, and Walling, I recommend the Com- 889 pany be directed to offer those 26 employees reinstate- ment to their former jobs, if necessary terminating or re- assigning employees hired or assigned to replace them or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings or other monetary benefits (such as hospital and surgical) they may have suffered by virtue of their unlawful discharges, with interest on the sums due computed in the manner set forth in F W. Wool- worth Co., 90 NLRB 289 (1950), and interest thereon cal- culated in the manner prescribed in Florida Steel Corp., 261 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962).82 I also recommend the Company be directed to remove from its records any references to the discharges of the 26 employees named above and to formally advise each of the 26 their discharges and their activities which pre- cipitated those discharges shall not be utilized in the future as the basis for any adverse action against them. I additionally recommend the Company be directed to cease and desist from all of the conduct found to be un- lawful herein and to post appropriate notices. Having found the Company did not violate the Act by alleged actions set out in the complaint, I recommend dismissal of those portions of the complaint setting out those allegations. With respect to the challenged ballots, because I have determined in this proceeding employees Danekes, Gu- tierrez, Heulett, Hunt, Kunz, Morales, and Mullin were unlawfully discharged on April 15, 1981, and the Board in a prior proceeding determined employee Hernandez was unlawfully discharged on a prior date, I recommend their ballots be opened and counted. [Recommended Order omitted from publication.] 82 With backpay for the 15 discharged on April 15, 1981, calculated from the date of their discharges and backpay for the II discharged be- tween April 30 and June 8 , 1981, from the date they abandoned their unfair labor practice strike-August 4, 1981 In this connection, I find none of the II may be denied backpay from that date on the ground they failed to unconditionally offer to return to work following their dis- charge, inasmuch as they previously were unequivocally discharged and any such tender was futile (Cole made an unconditional offer to return, it was rejected, he was told to file an application as a new employee, did, was informed there were no vacancies; and never had been recalled) Cf. Moore Business Forms, 224 NLRB 393 (1962), Pepsi Cola Bottling Co, 203 NLRB 183 (1973)