Oregon Steel Mills, Inc.

OREGON STEEL MILLS 185 Gilmore Steel Corporation d/b/a Oregon Steel Mills, Inc and United Steelworkers of America, AFL-CIO and Marilyn K McGahan and Bruce R Geis and James A Pernar and Marlynn G Hunt and Bruce M Hunt and Charles B Mitchell and Eugene L Hall and Leonard A Lipp and Richard L Adams and Paul G Wil hams and Charles K Brown and Samuel E Burlet and Ronald D Rosling and Tom W Humphrey Cases 36-CA-4837 36-CA-4938 36-CA-4841 36-CA-4893 36-CA-4907 36- CA-4908 36-CA-4909 36-CA-4910 36-CA- 4913 36-CA-4914 36-CA-4918 36-CA-4919 36-CA-4920 36-CA-4922 36-CA-4923 36- CA-4924 and 36-CA-4955 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 23 1986 Administrative Law Judge Jay R Pollack issued a decision in the above proceeding The Respondent filed exceptions and a supporting brief the Charging Party Union filed exceptions and a supporting brief and the Re spondent and the Charging Party Union filed an swering briefs On April 24 1987 the Board remanded this pro ceeding to the judge for the making of additional findings and conclusions On July 22 1987 the judge issued a supplemental decision The Re spondent filed exceptions and a supporting brief, and the Charging Party Union filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision the sup plemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 1 and conclusions 2 as ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge found and we agree that the Respondent unlawfully failed to offer unreinstated strikers an opportunity to bid on job vacancies until after nonstrikers and strike replacements had failed to bid on the jobs and that final determination as to the reinstatement of individual employees and possible backpay liability is properly left to compliance In view of the nature of the violation we shall modify the judge s recommended remedy and substitute a new Order to conform to the violation found Under the circumstances of this case we find ment to the Respond ent s contention that inclusion of a visitatonal provision as recommended by the judge is not appropriate Cherokee Marine Terminal 287 NLRB 1080 (1988) 2 The parties agreed as part of their partial settlement of the com plaint that the judge would decide whether striking employees were en modified but not to adopt the recommended Order THE REMEDY Having found that the Respondent Gilmore Steel Corporation d/b/a Oregon Steel Mills Inc has engaged in certain unfair labor practices we shall order it to cease and desist and take certain affirmative action to effectuate the policies of the Act The Respondent shall be ordered to offer rein statement to the strikers who at the compliance stage of this proceeding are determined to have been denied reinstatement as a consequence of the Respondents failure to offer them an opportunity to bid on job vacancies and make whole all such strikers for any loss of pay and benefits they may have suffered by reason of the Respondents dis crimination against them such payment to be made 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 Re tarded 3 Further Respondent shall be ordered to pay the striking employees vacation pay at the wage rate determined by their last payroll quarter worked ac cording to the settlement agreement ORDER The National Labor Relations Board orders that the Respondent Gilmore Steel Corporation d/b/a Oregon Steel Mills Inc Portland Oregon, it offi cers agents successors and assigns shall 1 Cease and desist from (a) Refusing to offer to qualified unreinstated strikers the opportunity to bid on job vacancies until after nonstrikers and strike replacements have failed to bid on such jobs (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 titled to vacation pay at the wage rate existing during their last payroll quarter of work The parties further agreed that the judge would decide this remedial issue on the basis of his construction of pertinent contract language and on the parties past practice Because of the uncontradicted evidence of a past practice tied to employees last payroll quarter of work and in view of the ambiguities in the language of the contract as applied to these circumstances we find the judge s resolution of this issue as agreed to by the parties to be reasonable and thus find no basis to disturb his conclusion 3 283 NLRB 1173 ( 1987) Interest on and after January 1 1987 shall be 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 January 1 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) 291 NLRB No 27 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer reinstatement and backpay to any stnk ers who at the compliance stage of this proceed ing are determined to have been denied reinstate ment as a consequence of the Respondents failure to offer them an opportunity to bid on job vacan cies in the manner set forth in the remedy section of the decision (b) To the extent it has not already done so pay the striking employees pursuant to the settlement agreement in these cases vacation pay at the wage determined by their last pay quarter (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 plant in Portland Oregon copies of the attached notice marked Appendix 4 Copies of the notice on forms provided by the Re gional Director for Region 19 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the consolidated complaint and bill of particulars are dismissed inso far as they allege violations of the Act not specifi cally found 4 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to offer to qualified unrein stated strikers the opportunity to bid on job vacan cies in preference to nonstrikers and strike replace ments on the payroll 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 reinstatement and backpay with interest to any strikers who were unlawfully denied reinstatement as a consequence of our fail ure to offer them an opportunity to bid on job va cancies because we preferred nonstrikers and strike replacements then on the payroll GILMORE STEEL CORPORATION D/B/A OREGON STEEL MILLS INC Patrick F Dunham and Joseph N Marra Esqs for the General Counsel Wayne D Landsverk and Verne W Newcomb Esqs (New comb Sabin Schwartz & Landsverk) of Portland Oregon for the Respondent Don S Willner Esq (Willner & Kelly) of Portland Oregon for the Charging Party Union Dennis J Sousa Esq of Portland Oregon for Charging Party Marilyn K McGahan DECISION STATEMENT OF THE CASE JAY R POLLACK Administrative Law Judge I heard these consolidated cases in trial at Portland Oregon on November 4 1985 January 27-30 and February 18-20 1986 The cases arose as follows United Steelworkers of America AFL-CIO (the Union) filed a charge in Case 36-CA-4837 on December 31 1984 against Gilman Steel Corporation d/b/a Oregon Steel Mills Inc (Re spondent) On January 9 1985 Marilyn K McGahan filed a charge against Respondent in Case 36-CA-4841 On April 3 1985 McGahan filed a charge in Case 36- CA-4893 against Respondent On April 19 Bruce Geis filed a charge against Respondent in Case 36-CA-4907 On April 22 James A Pernar Marlynn G Hunt and Bruce M Hunt filed charges against Respondent in Cases 36-CA-4908 36-CA-4909 and 36-CA-4910 re spectively On April 23 Charles B Mitchell and Eugene L Hall filed charges against Respondent in Cases 36- CA-4913 and 36-CA-4914 respectively On April 29 Leonard A Lipp filed a charge in Case 36-CA-4918 OREGON STEEL MILLS against Respondent On April 30 Richard L Adams and Paul G Williams filed charges against Respondent in Cases 36-CA-4919 and 36-CA-4920 Cases 36-CA-4922 36-CA-4923 and 36-CA-4924 were filed on May 1 by Charles K Brown Samuel E Burlet and Ronald R Rosling On May 9 the Union filed Case 36-CA-4938 The Union filed a supplemental charge against Respond ent in Case 36-CA-4938 on May 21 On May 20 Tom W Humphrey filed a charge against Respondent in Case 36-CA-4955 On July 19 1985 the Regional Director for Region 19 of the National Labor Relations Board issued an order consolidating cases consolidated com plaint and notice of hearing in all the above mentioned cases On November 4 1985 I opened the hearing At that time the parties reached a settlement regarding the com plaint allegation that Respondent had unlawfully coerced striking employees into resigning and thereby giving up their recall rights in order to obtain vacation pay With out admitting wrongdoing Respondent agreed to rein state the recall rights of those employees who had re signed in order to obtain their vacation pay and to pay vacation pay to all eligible employees The parties left me to determine whether the strikers should be paid va cation pay at the former contract wage rates or at the new lower wage rates presently paid by Respondent The parties agreed that the matter would be decided as a matter of interpretation of the contract which includes past practices Further the parties agreed that the General Counsel would issue a bill of particulars regarding the complaint allegation that Respondent had unlawfully failed to rein state economic strikers in accordance with their rights under the Laidlaw case i The procedure agreed to by the parties provided for an answer to the bill of particulars by Respondent and a hearing thereafter based on the issues raised by these supplemental pleadings The bill of particulars alleged that Respondent violat ed Section 8(a)(3) and ( 1) of the Act by not recalling former strikers in three categories First the General Counsel and the Union argued that Respondent was obli gated to fill permanent jobs by recalling employees from the list of unreinstated strikers in order of seniority Second the General Counsel and the Union argued that Respondent was obligated to fill its permanent bid jobs by recalling qualified employees from the list of unrein stated strikers or at least by allowing such strikers to bid on these jobs The third category of jobs was temporary bid jobs and again the General Counsel and the Union argued that these jobs not involving the hiring of addi tional employees should have been given to unreinstated strikers or at least been put up for bid by these strikers Finally the General Counsel alleged that the strikers were entitled to vacation pay at the wage rate the em ployees received during their last prior quarter of work (under the expired agreement between the Union and Respondent) Respondent denied that it had any obligation to rein state strikers on the basis of seniority and contended that ' Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1970) 187 as long as it did not discriminate on the basis of union activity it could use any criteria it wished in recalling unreinstated strikers Regarding the bidding of perma nent and temporary jobs Respondent argued that it could not be required to increase its work force particu larly in the face of a business downturn Further Re spondent contended that certain of the allegations re garding its failure to reinstate strikers were barred by the 6 month statute of limitations contained in Section 10(b) of the Act Regarding the vacation pay to be paid to the strikers Respondent contended that the proper wage rates are the wage rates presently paid by the company which were used in paying vacation pay to nonstrikers and strike replacements As mentioned earlier the heanng was conducted on these issues on various dates in January and February 1986 in Portland Oregon All parties were given full opportunity to appear to introduce relevant evidence to examine and cross exam me witnesses to argue orally and to file briefs Based on the entire record and from my observation of the de meanor of the witnesses and after due consideration of the briefs filed on behalf of the parties I make the fol lowing FINDINGS OF FACT AND CONCLUSIONS I JURISDICTION Respondent is a Delaware corporation with an office and principal place of business in Portland Oregon where it is engaged in the business of manufacturing steel During the 12 months prior to the issuance of the complaint Respondent purchased goods and materials valued in excess of $50 000 directly from sources outside the State or from suppliers within the State that in turn obtained such goods and materials directly from sources outside Oregon Accordingly I find Respondent at all times material has been an employer engaged in com merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act Further I find that the Union has been at all times ma tenal a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background and Issues Respondent operates a steel mill in Portland Oregon that employs between 500 and 600 employees For many years Respondents production and maintenance employ ees were represented by Local 3010 of the Union and the clerical and laboratory employees were represented by the Union s Local 6380 The last collective bargaining agreements for the production and maintenance and cler ical and laboratory units each expired on September 1 1983 On September 9 1983 both the unit represented by Local 3010 and the unit represented by Local 6380 commenced a strike against Respondent Respondent continued to operate during the strike with employees that crossed the picket line permanent replacements and in the clerical unit a few employees from an agency 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD providing temporary employees On June 26 1984 the Union on behalf of all the employees in both units made an unconditional offer to return to work A collective bargaining agreement was not executed and in January 1985 Local 3010 and Local 6380 were each decertified as the collective bargaining representative in its respec tive unit At the end of the strike Respondent did not have posi tions for the former strikers With one exception when there were openings Respondent recalled strikers from the list of unreinstated strikers (the Laidlaw list) 2 As mentioned earlier the General Counsel and the Union argue that Respondent violated Section 8(a)(3) and (1) of the Act by not recalling former strikers pursuant to se monty They contend that Respondent was obligated to follow its past practice regarding recall from layoff in re calling strikers from the Laidlaw list Following the strike Respondent suffering business losses attempted to reduce the size of its work force When job vacancies arose Respondent attempted to fill these positions from within the plant without recalling strikers thereby decreasing its total work force All such positions were posted in the plant for employees to bid on them The bidding was limited to employees actually working Thus former strikers not yet recalled were not permitted to bid on these jobs The General Counsel and the Union contend that by limiting the bidding to current employees Respondent granted supersenionty to re placements and employees who crossed the picket line as opposed to strikers B The Failure to Follow Seniority in Recalling Former Strikers An employer faced with a strike has a legitimate and substantial right to continue his business by hiring re placements for his striking employees He is not bound to discharge those hired to fill the place of strikers upon the election of the latter to resume their employment NLRB v Mackay Radio & Telegraph Co 304 U S 333 345-346 (1938) However at the conclusion of a strike even if permanent replacements have been hired for the strikers on the departure of the replacements the former strikers are entitled to reinstatement to their former jobs unless they have acquired substantially equivalent em ployment elsewhere or unless their employer is able to sustain his burden of proof that the failure to recall was justified by legitimate and substantial business reasons Laidlaw supra NLRB v Fleetwood Trailer Co 389 U S 375 380-381 (1967) In fact not only are former strikers entitled to vacant jobs it s incumbent upon [their em ployer] to seek them out as positions [are] vacated Laidlaw supra at 1369 Unless an employer sustains his burden of proof a refusal to reinstate employees after an economic strike constitutes an unfair labor practice not withstanding the absence of animus or bad faith for such conduct discourages employees from exercising their rights to organize and to strike guaranteed by Sections 7 and 13 of the Act Fleetwood Trailer Co supra at 378 2 The one exception involved the hiring of a chemist Respondent hired a new employee because there was no chemist on the Laidlaw list at the time of this job opening Prior to the decertification of the Unions Respondent followed seniority in recalling strikers to fill vacancies in its production unit After the decertification of the Unions Respondent used merit or performance to deter mine the individual employees to be recalled from the Laidlaw list In the clerical unit vacancies for present jobs were filled in the same manner After the decertifi cation of the Unions permanent jobs were put up for bid by employees on the current payroll After such employ ees bid or failed to bid for these positions Respondent filled the remaining vacancies by recalling employees from the Laidlaw list based on merit rather than semori 3 ty The General Counsel and the Union argue that if an employers past practice is to recall employees on the basis of seniority it is required to recall strikers in ac cordance with that past practice Respondent argues that absent evidence of union animus an employer has no ob ligation to recall strikers on the basis of seniority As support from their respective positions the parties cite Carruthers Ready Mix 262 NLRB 739 (1982) The administrative law judge stated at 748 The General Counsel contends that the strikers should have been recalled in order of seniority Re spondent s lists were essentially alphabetical Re spondent never has operated under a seniority system and it successfully resisted a proposal by the Union that the strikers be recalled on the basis of seniority There is no requirement-in the absence of an agreement or evidence of past practice-that an employer must recall returning strikers back to work on the basis of seniority All that is required is that the employer recall its employees on a nondis criminatory basis I therefore reject the General Counsels contention and shall assume that Re spondent has the right to recall employees in any order it wishes absent discrimination on the basis of union or protected concerted activity In NLRB v Great Dane Trailers 388 U S 26 (1967) the Supreme Court stated that no proof of union animus was needed and a violation of the Act could be found if it can reasonably be concluded that the employers dis criminatory conduct was inherently destructive of im portant employee rights despite evidence of business motivation See also Fleetwood Trailer Co supra In NLRB v Erie Resistor Corp 373 U S 221 (1963) the Supreme Court identified a type of employer con duct in which unlawful intent is founded upon the in herently discriminatory or destructive nature of the con duct itself The employer in Erie Resistor had granted superseniorty to strike replacements and strikers who returned to work The Court said that the grant of su persenionty evidenced conduct which carried its own indicia of intent and which is barred by the Act unless 3 The General Counsel and the Union take issue with Respondent s de termination of merit However I find insufficient evidence to establish that Respondents determinations based on merit were incorrect In any event there is no evidence that Respondents determination of merit dis cnmmated in any way based on union activities or other protected con certed activities OREGON STEEL MILLS 189 saved from illegality by an overriding business purpose justifying the invasion of union rights Turning to the Boards consideration of the employers alleged business justification the Court stated that the operative policy at work was the concern expressed in Federal labor law for the protection of the integrity of the strike weapon which in great measure implements and supports the principles of the collective bargaining system In Bio Science Laboratories 209 NLRB 796 (1974) the recently expired contract between the employer and the union provided for seniority in recall from layoff but made no mention of recall of economic strikers During the strike the parties negotiated to impasse concerning the recall of the economic strikers The union sought to have the permanent replacements terminated and the economic strikers replace them based on the seniority provisions of the expired contract The employer refused to terminate the permanent replacements and implement ed its own reinstatement system on the day the strike ended Under the reinstatement system the employer looked first to former strikers who had worked at the time of the stake in the job classification and section in which the vacancy occurred and offered reinstatement to the employees with the highest plantwide seniority among that group The Board found no discrimination against employees with the most seniority and no at tempt by Bio Science to undermine its union nor any unlawful motivation or conduct inherently destructive of employee rights See Bio Science supra at 803-804 The Union argues that the Board case of Fire Alert Co 223 NLRB 129 130 (1976) supplementing 207 NLRB 885 (1973) stands for the proposition that an em ployer must reinstate economic strikers based on semori ty where that has been the employers practice In that case the Board in fashioning its remedial order held It is of course well established that seniority is a proper basis for determining reinstatement rights for backpay purposes absent a showing that Respond ent used some other economically justified basis The Board used seniority in Fire Alert to fashion a remedy after it found that the employer had unlawfully hired two employees instead of reinstating two economic strikers The Board was not faced with the issue of whether in reinstating strikers the employer must follow seniority The Board used seniority in Fire Alert to deter mine the two employees who had been discriminated against by the employers hiring of new employees The employer in that case had not demonstrated any basis for choosing employees for reinstatement other than senior ty As stated earlier in Carruthers Ready Mix supra at 748 the Board approved the administrative law judge s finding there is no requirement-in the absence of an agreement or evidence of past practice-that an employ er must recall returning strikers back to work on the basis of seniority In Carruthers the issue of what weight to give past practice was not presented Further the issue of whether past practice survives a decertifica tion was not presented in Carruthers See also Kennedy & Cohen of Georgia 218 NLRB 1175 (1975) Foote & Davies Inc 278 NLRB 72 (1986) Garrett Railroad Car 275 NLRB 1032 (1985) Foote & Davies Inc supra cited by the Union is map polite In that case the employer failed to reinstate a sympathy striker in accordance with the seniority prove sions of an existing contract When the Board found that the employer had failed to reinstate the employee ac cording to the company s own seniority system and prac tice the Board was referring to an existing collective bargaining agreement The difficulties in the instant case apse because the past practice applied to recall from layoff as opposed to recall from a strike and are further complicated by the fact that the Union was decertified The Respondent did apply the past practice prior to de certification but changed its method of choosing be tween unreinstated strikers after the Union was decerti feed at a time when Respondent could unilaterally change terms and conditions of employment without bar gaining with the Union Thus the question becomes whether Respondent s change in the manner in which it chose between unrem stated strikers is inherently destructive of the rights of the strikers The fact that senior employees those that presumably belonged to the Union for a longer period of time suffer most by this change does not establish a vio lation because ghat argument was specifically rejected by the Board in Bio Science Laboratories The fact that em ployees have less favorable terms and conditions than at the outset of the strike is also not sufficient to establish a violation Once the parties were at impasse the Respond ent could lawfully institute unilateral changes so long as they were first offered to the Union See e g Taft Broadcasting Co 163 NLRB 475 (1967) enf denied on other grounds 500 F 2d 181 (5th Cir 1974) Carlsen Porsche Audi 266 NLRB 141 (1983) Ace Galvanizing 217 NLRB 144 (1975) Once the Union was decertified the Respondent could unilaterally change terms and condi tions of employment Respondent could simply not dis criminate against the strikers A recent case Lone Star Industries 279 NLRB 550 (1986) that issued after the submission of briefs in the in stant case illustrates these points In that case the Board rejected the General Counsels universal theory that an employers failure to recall strikers by seniority violates the Act unless the employer proves a substantial and le gitimate business justification for an alternate recall system Id at 551 The Board reasoned as follows Apart from obligations imposed by unilateral practice or through the collective bargaining proc ess there is nothing in the Act itself or in the Board s articulation of Laidlaw rights that estab lashes an individual economic striker s right to recall by seniority Barring a simultaneous recall of all former strikers there will necessarily be discnmma tion within the striker s class as to the order of indi vidual returns to the workplace whether recall is by seniority merit age or alphabetical order This discrimination is not prima facie proof of unlawful motivation because it does not adversely affect em ployee rights even to some extent Consequently before any burden of justification for failing to 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recall a striker by seniority can be imposed on a re spondent the General Counsel must establish the existence of a seniority recall right by reference to a collective bargaining agreement or a binding estab lished past practice [Id at 551 ] The Board went on to conclude that even assuming the existence of a seniority recall agreement between Lone Star and its unions or of a consistent practice of recall by seniority the Company was free to unilaterally change such agreement or practice after its lawful with drawal of recognition of the unions Most important the Board held that Lone Star was free to devise a new recall procedure as long as it was applied consistently The Lone Star case is controlling as to the allegation here that Respondent failed to recall former strikers on the basis of seniority Even assuming a past practice of recall by seniority once the Unions were decertified Re spondent could devise a new recall procedure-one based on merit or performance as opposed to seniority- as long as the procedure was applied nondiscnminatorily The record here reveals no evidence that Respondent discriminated in recalling employees from the Laidlaw list on the basis of union activity or that Respondent en gaged in any other discrimination prohibited by the Act C The Bid Jobs The General Counsel contends that the failure to in elude economic strikers in the job bid process must be viewed as a grant of superseniority to strike replace ments Respondent argues that restricting bidding to em ployees currently in plant has always been its practice Further Respondent argues that based on its economic conditions-including its decreasing work force-it was privileged to reassign employees rather than reinstate strikers which would necessitate bumping or laying off other employees In Transport Co of Texas 177 NLRB 180 ( 1969) enfd 438 F 2d 258 (5th Cir 1971) the employer recalled the economic strikers but in a subsequent reduction in force selected strikers for layoff while retaining nonstrikers and striker replacements The Board found the selection of the strikers for layoff placed them in a subordinate po sition because they had engaged in a strike and granted the nonstrikers and replacements superseniority The Board found that Strikers were not given the full and complete re instatement due them because they were placed in a subordinate class distinguished only by the exercise of their statutory rights Such conduct is inherently destructive of employee rights [Id at 187 ] In Wisconsin Packing Co 231 NLRB 546 (1977) the Board found a violation where the employer transferred or recalled laid off employees for jobs that more senior unrecalled strikers were capable of performing and for which the strikers had unconditionally applied The Board found the employers conduct to be tantamount to the granting of superseniority in Erie Resistor and Trans port Co of Texas The Board held that the employer had unlawfully granted to nonstrikers and replacements su persenionty and had unlawfully treated the strikers as new employees In MCC Pacific Valves 244 NLRB 931 (1979) shortly after the strike ended the employer posted jobs for bid ding by employees then on the payroll including perma nent strike replacements and reinstated strikers At the time these jobs were posted there remained a number of strikers who had not yet been reinstated and who were in fact qualified to perform the posted jobs However some posted jobs were not offered to unreinstated stnk ers at all and others were offered to them only if there were no successful bidders on those jobs within the plant Additionally in a number of cases unreinstated strikers were not permitted to bid on the initial jobs but were invited to bid on the jobs created at the lowest end of the classification scale after employees on the payroll had concluded the bidding process The Board held with respect to job vacancies as a result of the departure of strike replacements for those jobs the employer was not entitled to prefer strike re placements then on the payroll to qualified strikers awaiting reinstatement The employer could not bypass qualified unreinstated strikers by waiting to make a job offer to them only if there were no successful bidders from among the active strike replacements nor could it wait until the chain reaction effect had run its course before offering the final job to a striker awaiting recall The employer was obligated to offer the initial job vacancies created by the departure of strike replace ments to unreinstated qualified strikers The Board noted that not every job opening is one that an unreinstated striker though qualified is entitled to fill There may be circumstances for example in which the rights of un reinstated strikers may conflict with the rights of those strikers who have been reinstated or even with the rights of permanent striker replacements The Board found it unnecessary under the circumstances of the MCC case to reach and pass on these issues (244 NLRB 931 934 fn 15) However the instant case appears to present situa tions where the rights of unreinstated strikers conflict with reinstated strikers nonstrikers and permanent re placements Moreover the Respondent in the instant case was in mangy instances transferring and reassigning employees but not filling vacancies Therefore in most instances if Respondent were required to give all bids to unreinstated strikers the result would be the bumping down and layoff of other employees In Textron Inc 257 NLRB 1 (1981) the Board found that the employer violated Section 8(a)(1) and (3) of the Act when with respect to special rated or bid jobs the employer filled such jobs by first offering them to em ployees on the existing payroll rather than to qualified strikers awaiting reinstatement The Board found it irrel evant whether the special rated job arose as a result of a departure from the plant of a permanent replacement or a reinstated striker or whether it arose from a need by the employer to add to its work force The important fact was that an opening arose for which a striker was qualified and available and that such a striker was denied the opportunity to even bid for the job OREGON STEEL MILLS 191 With regard to permanent transfers not involving spe cial rated jobs the Board found no violation The em ployer had business reasons for moving similarly rated employees freely within the plant The employer there had no obligation to honor the provisions of the expired contract and had not executed a strike settlement agree ment or new contract with its union Finally the Board noted that the transferees included returned strikers and the Board could find no violation of Section 8(a)(3) in transferring a returned striker rather than recalling an unreinstated striker in the absence of a plan or scheme to avoid reinstatement of strikers On appeal the United States Court of Appeals for the Eighth Circuit affirmed the Board and rejected the employers argument that its reinstatement policy was not discriminatory The court emphasized that the practical effect of the employer s procedure was to make it less likely that strikers would be reinstated to better paying positions Textron Inc 687 F 2d 1240 (8th Cir 1982) cert denied 461 US 914 (1983) See Harvey Engineering Corp 270 NLRB 1290 1292-1293 (1984) In Bancroft Cap Co 245 NLRB 547 (1979) the Board found that an employer did not commit an unfair labor practice in recalling laid off replacement workers before reinstating strikers The recall of a laid off employee did not create a vacancy such as to tugger the recall right of an unreinstated striker The layoffs were for periods of only 2 to 7 days and were due to shortages of mater als In Giddings & Lewis Inc 255 NLRB 742 (1981) enf denied 675 F 2d 926 (7th Cir 1982) the Board found a violation in an employers seniority rules that provided in the event of a layoff permanent replacements and re instated strikers would be recalled on the basis of semori ty in preference to more senior unreinstated strikers The Board found that this plan granted supersemority to the laid off employees in violation of Section 8(a)(3) The Court of Appeals for the Seventh Circuit reversed the Board finding that the seniority rules served only to assure replacements the permanent status to which Mackay says they are entitled Affirmance of the Boards holding that layoffs activate a striker s right to reinstatement would eviscerate the Mackay rule Employers attempting to hire replacement workers could guarantee them employment only until a layoff occurred Such replacement workers could hardly be called permanent In Foote & Davies Inc supra at fn 6 the Board held that the Seventh Circuit Giddings & Lewis decision was limited to layoffs of permanent strike replacements and did not apply to vacancies created by the resignation of regular employees In Overhead Door Corp 261 NLRB 657 (1982) the Board adopted the following discussion of the adminis trative law judge involving the transfer and assignment of employees by an employer faced with requests by economic strikers to return to work Under the Board decision in Pillows of California 207 NLRB 369 (1973) and Kennedy & Cohen of Georgia Inc 218 NLRB 1175 (1975) an employer faced with requests by economic strikers to return to work may lawfully fill vacancies which apse in his plant by the nondiscriminatory transfer promo tion or demotion of employees already working so long as it does not hire new employees to fill the slots vacated by in house transfers With the excep tions noted above this did not occur here A lawful transfer situation normally arises only when there is a business down turn which would allow the coin pany to continue its operations with a reduced work force It can also happen when as here an entire function such as policing the plant premises with specially designated employees had been discontin ued Unlike the situation found in Randall Burkart/Randall Division of Textron Inc 257 NLRB 1 (1981) the Respondent in this case hired the transferred employees originally as production workers assigned them to pull guard duty and then transferred them back to the production floor These individuals were in effect production work ers on temporary loan to the supervisor in charge of plant security As they were permanent em ployees the Employer had no obligation to terms nate them in order to accommodate economic stnk ers who wished to return NLRB v Mackay Radio & Telegraph Company 304 US 333 (1938) [261 NLRB at 664-665 ] Applying the facts of this case to the above legal pun ciples I find that Respondent violated the Act when it posted permanent job vacancies only for employees on the payroll and did not open the jobs for unremstated strikers until after the nonstrikers and replacements had passed on the bid opportunities During the period of September 10 1984 through December 1985 Respondent admittedly had vacancies in clerical unit positions and bid these jobs The unreinstated strikers were not given an opportunity to bid Thereafter when no employee bid on the job a striker was recalled The strikers were not recalled on the basis of seniority but rather on Respond ent s view of the best qualified person for the job In the production unit Respondent filled jobs by bid ding within the plant Thus the employees then on the payroll had preference for the better jobs In most cases no employees were added to the payroll When employ ees were recalled from the Laidlaw list it would be to jobs left vacant by either the transfer of employees on the payroll or the failure of employees to bid on jobs The effect was that strikers were only recalled to less fa vorable jobs With respect to bid jobs that were filled by the trans fer or reassignment of employees without an addition to the work force I find Respondents conduct justified by substantial business reasons In the business downturn Respondent was increasing its productivity and decreas ing its work force It could therefore nondiscriminatori ly transfer employees without recalling unremstated strikers To hold otherwise would require Respondent to create vacancies for the unremstated strikers and then lay off nonstrikers and replacements as a result of such trans fers Laidlaw does not create such rights for unremstated 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strikers and should not be used to force Respondent to utilize such poor business measures 4 Respondent contends that it has always awarded bids to employees internally and has not extended even ex tended bids to outside the plant However Respondent never before was faced with the situation of having un reinstated strikers awaiting recall pursuant to their Laid law rights Respondent further contends that the Union agreed to continue the bidding practices However the Union and Respondent never reached either a strike settlement or collective bargaining agreement Further the Union and Respondent never discussed the bidding practice in the context of a Laidlaw list A waiver of the employees Laidlaw rights cannot be inferred from these circum stances D The 10(b) Issue Respondent claims that the first four bids in the Glen cal area found unlawful above were posted and award ed more than 6 months before the filing of the charge and thus are barred by the 6 month limitation of Section 10(b) of the Act The parties agree that Section 10(b) does not bar any allegation that was not within the knowledge of or which could not have been discovered by the charging parties with reasonable diligence See e g Wisconsin River Valley District Council 211 NLRB 222 227 (1974) Glen Shuck and Dan Hunker the presi dent of the production and maintenance and clerical and laboratory units respectively both testified that they did not know of a bidding procedure until late March or early April of 1985 Moreover it appears that the per manent clerical jobs found unlawful here on the ground that they were offered to unreinstated strikers after no employees had bid for the jobs were not known by the General Counsel and the Union to have been placed for bid prior to the recall of strikers The Union and the General Counsel had originally based their claims on the ground that the most senior qualified employee was enti tied to be recalled I find no evidence that the Union had any knowledge of this particular conduct prior to 6 months before filing the instant charges E The Employees Are Entitled to 17 Percent More Vacation Pay As the issues were formed by the parties as part of their partial settlement I am required to determine if the collective bargaining agreement and past practice re quired the payment of the old contract rate of pay or the payment of the unilaterally implemented 17 percent pay reduction for the payment of vacation pay The evidence presented by the Union establishes that prior to the strike when an employee received vacation pay it was always paid at the rate of pay earned by that * In its bill of particulars the General Counsel argued that even tempo rary bids where the Respondent did not add to its work force but rather reassigned and transferred employees on a temporary and indefinite basis should have been opened for bidding to unreinstated stokers Apparently the General Counsel has abandoned that argument In any event it seems clear from the analysis and conclusions above that Respondent need not recall unreinstated strikers for temporary bids that do not increase the work force See also Coastside Scavenger Co 273 NLRB 1618 (1985) employee during her or his last prior quarter of work That was true whether the employee subsequently re ceived a wage increase or wage decrease Respondent s evidence was simply that the strikers were treated the same as all other employees and received the lower wage rate However under the past practice the em ployees in question were entitled to vacation pay at the wage rate they received during their last quarter of work a rate of pay 17 percent more than Respondent has paid Accordingly I will order Respondent to pay the employees the additional vacation pay due under the settlement agreement F The One Job Filled by a New Hire As stated earlier during the relevant time period Re spondent filled all vacancies by recalling strikers with one exception In May 1985 a vacancy was created for the job of chemist but there were no qualified employ ees on the Laidlaw list Dennis Johnson a chemist and an unreinstated striker had resigned prior to this vacancy 5 The General Counsel and the Union argue that Johnson should have been recalled in September 1984 as a lab test report clerk and therefore would have been in the plant when the chemist job became available Respondent as serts that it did not recall Johnson because he did not possess the necessary typing skills to perform that job The issue becomes whether Respondent was obligated to recall Johnson a professional to a vacancy in a clen cal job The Board has held that an employee is entitled to a substantially equivalent job but not a job for which he is overqualified See New Era Electric Cooperative 217 NLRB 477 fn 1 (1975) Accordingly I find Respondent was not obligated to recall Johnson to the lab test report clerk job and need not decide whether Johnson had the necessary typing skills to perform that job THE REMEDY Having found that Respondent Gilmore Steel Corpo ration d/b/a Oregon Steel Mills Inc has engaged in certain unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act Respondent shall be ordered to offer reinstatement to the strikers who at the compliance stage of this proceed ing are discovered to have been denied an opportunity to bid on job vacancies 6 and make whole all such strik ers for any loss of pay they may have suffered by reason of Respondents discrimination against them such pay ment to be made in accordance with F W Woolworth Co 90 NLRB 289 (1950) with interest in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) 7 Further Respondent shall be ordered to pay the em ployees the vacation pay at the higher wage rate accord ing to the settlement agreement S As part of the settlement Respondent had agreed to again place Johnson on the list of unrecalled strikers 6 See e g Textron Inc supra 7 See generally Isis Plumbing Co 138 NLRB 716 (1962) OREGON STEEL MILLS Finally the General Counsel requests a visitatonal clause in the recommended Order authorizing the Board for compliance purposes to obtain discovery from Re spondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing the Board s Order Inasmuch as the re medial order requires a further determination of the iden tity of the individuals who have suffered a loss as a result of the conduct found unlawful above such an order appears appropriate in this case See Hilton Inn North 279 NLRB 45 fn 3 (1986) CONCLUSIONS OF LAW I Gilmore Steel Corporation d/b/a Oregon Steel Mills Inc is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 2 United Steelworkers of America AFL-CIO and its Locals 3010 and 6380 are labor organizations within the meaning of Section 2(5) of the Act 3 By failing and refusing to offer unreinstated strikers the opportunity to bid on job vacancies until after non strikers and strike replacements had failed to bid on such jobs Respondent violated Section 8(a)(3) and (1) of the Act 4 Respondent has not except as specifically found above violated the Act as alleged in the complaint and bill of particulars [Recommended Order omitted from publication ] Patrick F Dunham and Joseph N Marra Esqs for the General Counsel Wayne D Landsverk and Verne W Newcomb Esqs (New comb Sabin Schwartz & Landsverk) of Portland Oregon for the Respondent Don S Willner Esq (Willner & Kelly) of Portland Oregon for the Charging Party Union Dennis J Sousa Esq of Portland Oregon for Charging Party Marilyn K McGahan SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAY R POLLACK Administrative Law Judge I heard these consolidated cases in trial at Portland Oregon on November 4 1985 January 27-30 and February 18-20 1986 On September 23 1986 1 issued my original deci sion i finding inter alia that Respondent Gilmore Steel Corporation d/b/a Oregon Steel Mills violated Section 8(a)(3) and (1) of the Act by failing and refusing to offer unreinstated strikers the opportunity to bid on job vacan cies until after nonstrikers and strike replacements had failed to bid on such jobs On April 24 1987 the Board issued an unpublished order remanding proceeding to ad ministrative law judge in which it remanded the case to me for the limited purpose of making credibility deter minations and making findings of fact conclusions of law and recommendations concerning the conduct al leged in the consolidated complaint and bill of particu 193 lars in accordance with the Respondents alleged le gitimate and substantial business justification for its bid ding procedure The Board further ordered that I pre pare and serve on the parties a Supplemental Decision setting forth the resolutions of such credibility issues findings of fact conclusions of law and recommenda tions including a recommended order where appropriate with respect thereto On June 3 1987 the Union and Respondent filed sup plemental briefs that have been carefully considered 2 Based on the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT AND CONCLUSIONS I THE REMAND The Board in its Order of April 24 1987 gave the fol lowing explanation for the remand Our review of the record discloses that the judge failed to consider certain evidence and make certain credibility findings as follows The Respondent pre sented evidence including testimony by Employee Relations Manager Jack Longbine Vice President of Manufacturing Robert J Sikora General Fore man Joe Corvin and Plant Mill Superintendent Mi chael D Morris in support of its contention that its bidding procedure for permanent job vacancies as applied to unreinstated strikers was justified by le gitimate and substantial business reasons The Re spondent contends that consistent with the testimo ny of its witnesses there have been major changes in equipment and job functions since a strike com mencing 9 September 1983 that virtually every job open for bid has changed in content since the strike that the jobs are not the same now as they were prior to the strike that unreinstated strikers were no longer qualified to perform the new jobs and oper ate the new equipment and that its bidding proce dure was essential to its survival Thus the Re spondent contends that it did not violate the Act because the record supports its contention that its bidding procedure was justified by legitimate and substantial business reasons In contrast to the position of the Respondent the General Counsel and the Charging Party Union presented numerous witnesses including employees Harold E Adams Jack R Gibson Dennis Prather Gerald Andreas Phillip Bell Ted Metzner Edward Enze and Glen I Markle Jr in support of the con tention that the skills needed in the production and maintenance process remained the same Thus the Charging Party Union contends based on the fore going that the Respondents assertion that its bid ding procedure was supported by considerations of efficiency is unbelievable Accordingly the Board remanded the proceeding for credibility resolutions and if appropriate new conclu ' JD-(SF)- 120-86 2 The General Counsel did not file a supplemental brief 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sions of law and recommendations in accordance with the above discussion of its review of the record II THE ALLEGED UNFAIR LABOR PRACTICES In my original decision I found that Respondent did not violate the Act in failing to recall former strikers on the basis of seniority 3 I further found that Respondent violated the Act when it posted permanent job vacancies only for employees on the payroll and did not open the jobs for unreinstated strikers until after the nonstrikers and replacements had passed on the bid opportunities During the period of September 10 1984 through De cember 1985 Respondent admittedly had vacancies in the clerical unit positions and bid these jobs The unrein stated strikers were not given an opportunity to bid Thereafter when no employee bid on the job a strike- was recalled The strikers were not recalled on the basis of seniority but rather on Respondents view of the best qualified person for the job In the production and maintenance unit Respondent filled jobs by bidding within the plant Thus the employ ees then on the payroll had preference for the better jobs In most cases no employees were added to the pay roll In those cases I found Respondents conduct justi feed by substantial business reasons However when em ployees were added to the payroll the employees re called from the Laidlaw list4 were left with the least de sirable positions i e positions left vacant by the promo tion of employees on the payroll or the failure of em ployees on the payroll to bid on jobs I found no viola tion where Respondent restricted the bidding to employ ees on the payroll where the work force was not in creased Thus I found no violation where bid jobs were filled by the transfer or reassignment of employees with out an addition to the work force In finding that Respondent violated the Act by failing and refusing to offer unreinstated strikers the opportunity to bid on vacancies until after nonstrikers and strike re placements had failed to bid on such jobs I made no finding that Respondent intended to discourage union ac tivities Such a finding is unnecessary The treatment of unreinstated strikers as inferior or subservient to other employees in this case is inherently destructive of the employees right to strike and constitutes an unfair labor practice notwithstanding the absence of animus or bad faith unless the Employer sustains its burden of proof that the conduct was justified by legitimate and substan tial business reasons Laidlaw supra NLRB v Fleetwood Trailer Co 389 U S 375 378 and 380-381 (1967) NLRB v Great Dane Trailers 388 U S 26 (1967) III RESPONDENT S ALLEGED JUSTIFICATION FOR ITS INHERENTLY DESTRUCTIVE CONDUCT A General Findings Regarding Respondent s Defense As the Board noted Respondent contends that its bid ding procedure was essential to its survival However that is argument and there is no testimony to that effect 3 This finding is not at issue in the limited remand 4 Laidlaw Corp 171 NLRB 1366 ( 1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1970) Thomas Boklund Respondents president and chief exec utive officer testified that Respondent limited bidding to its existing work force because it s the practice that we followed in the past and it s also practiced in the Indus try I find this reason given by Respondents president rather than the reason advanced by counsel is the real reason for Respondents failure to open bidding to the unreinstated strikers The problem with Boklund s rea Boning is that under Laidlaw and its progeny Respond ent s unreinstated strikers were part of its existing work force Respondents practice results in treating unreinstat ed strikers as if they were laid off employees However under Laidlaw unreinstated strikers remain employees on a preferential hiring list and do not lose accumulated se mority As noted earlier the fact that Respondent had no antiunion motive for its action does not privilege this in terference with employee rights to organize and to strike Respondent argues that the Union agreed to its bid ding procedure However the Union and Respondent never reached either a strike settlement or collective bar gaining agreement The Union may have agreed to a col lective bargaining agreement containing a bidding proce dure However it did so in contemplation of receiving the benefits of the agreement including recognition The Union was decertified prior to receiving any of the bene fits of the contract Moreover the agreement Respond ent contends the Union agreed to does not resolve the issue in Respondents favor The agreement does not mention unreinstated strikers and there is no evidence that the Union agreed that unreinstated strikers were not current employees for purposes of bidding 5 After a prior strike a strike settlement agreement the Union agreed to permitted Respondent to delay recalling cer tam strikers in certain positions in order to facilitate startup after the strike That situation has no bearing on the instant case In this case no strike settlement agree ment was reached and the Union did not waive any of the Laidlaw reinstatement rights of the employees B The Clerical Unit Jack Longbine Respondents employee relations man ager testified that the principal change in the clerical area was the introduction of an increased reliance on computers Additionally job content was different after the strike as Respondent attempted to combine job func tions and become more efficient Longbine testified that both the shipping clerk and payroll clerk jobs were busier after the strike The testimony of the General Counsels and the Unions witnesses does not dispute this testimony Glen I Markle Jr has not worked for Re spondent since the strike Markle testified that certain of the unreinstated strikers had the necessary skills to per form the clerical jobs Markle did not deny Longbine s testimony that the jobs are changed to the extent that computers are more heavily relied on and that the work 8 Glen Shuck and Dan Hunker the president of the production and maintenance and clerical and laboratory units respectively both credi bly testified that they did not know of a bidding procedure until late March or early April of 1985 This was some 9 or 10 months after Re spondent alleges the Union agreed to the bidding procedure OREGON STEEL MILLS 195 load is increased Witnesses now working in the clerical unit confirmed the reliance on computers and an in creased volume of work Notwithstanding the increased use of computers and increased workload I find no legitimate or substantial business reasons for limiting the bidding of job vacancies in the clerical unit to employees on the payroll and then filling the jobs with unreinstated strikers only after the strike replacements and nonstrikers had failed to bid on the jobs During the period of September 10 1984 through December 1985 Respondent admittedly had va cancies in clerical unit positions and bid these jobs The unreinstated strikers were not given an opportunity to bid Thereafter when no employee bid on the job an un reinstated striker was chosen and recalled for the post tion The strikers were not recalled on the basis of se niority (as required under the prior collective bargaining agreement) but rather on Respondents view of the best qualified person for the job No reason was given why Respondent could not have opened the bidding to the unreinstated strikers for each of these positions It was clear that a position was vacant and that Respondent was adding to its work force Respondent cannot argue that none of the unreinstated strikers could perform the job because it in fact chose an unreinstated striker to fill each position However only after nonstrikers and strike replacements had passed on the bid opportunity did Re spondent permit the strikers to bid on the jobs The result of each such action was to clearly indicate that nonstrikers and strike replacements had superseniority as opposed to unreinstated strikers and that unreinstated strikers would obtain only the least desirable positions Nothing in this decision should be construed as dictat ing which employee Respondent had to choose to fill a bid position I am simply finding that Respondent was obligated when adding to its work force to allow un reinstated strikers to bid on the jobs Respondent could still fill the job with the most qualified person whether striker or not and whether reinstated or not Respondent argues that the most senior unreinstated striker was not qualified to perform the job Assuming arguendo the truth of this assertion Respondent was not obligated to choose the most senior unreinstated striker 6 Respondent was simply required to permit the strikers to bid Thereafter Respondent could lawfully review the bids and select the most qualified person to fill the job Under the law Respondent should consider an employ ee s bid in a nondiscriminatory manner In my view the Act is violated when an employer fails to permit an oth erwise eligible employee to bid for a vacancy' because of his status as an unreinstated striker The separate ques tion of job qualification or job availability is relevant only with respect to the question of backpay and rein statement Thus the final determination of job availabil ity and possible backpay liability will be properly left to compliance See Apex Ventilating Co 186 NLRB 534 fn 1 (1970) Alexanders Restaurant & Lounge 228 NLRB 6 See 188-190 of my original decision supra 7 As stated earlier I find that a vacancy for Laidlaw purposes is not created when Respondent is not increasing its work force 165 (1977) Madison South Convalescent Center 260 NLRB 816 (1982) C The Production and Maintenance Unit Following the strike Respondent suffering business losses attempted to reduce its work force Respondent greatly increased the productivity of its operations Re spondent installed new equipment and instituted new processes The result was that Respondent increased pro duction from 180 tons per year per employee in 1983 to 350 tons per year per employee in 1986 Further Re spondent has made changes in the type of product it pro duces Prior to the 1983 strike 80 percent of Respond ent s steel was vanilla grades i e an ordinary product At the time of the hearing 80 percent of Respondent s steel was exotic critical grades a specialty product Longbine testified that the plant service person job never existed prior to the strike It combined parts of several jobs that existed prior to the strike However Harold E Adams an employee of 31 years testified that the job was the same before and after the strike Adams had more knowledge of production and I credit his testi mony over that of Longbine Moreover Longbine seemed more intent on arguing Respondents position than in relating facts Longbine further testified that the mill relief job changed since the strike Respondent created two sepa rate jobs mill relief 1 and mill relief 2 One such job was quite similar to what existed prior to the strike the other relieved the furnace end Harold Adams Jack Gibson Gerald Andress and Phillip Bell all testified that these positions were substantially the same before and after the strike Adams Gibson Andreas and Bell are credited It is not found that these jobs did not change but rather that the process of change was gradual and ongoing For example Michael D Morris plant superintendent admit ted that there were changes in the mill both before the strike and during the strike According to Morris You won t find a manufacturing or a production system that is constant and stable You re continually changing modifying upgrading and improving on Longbine further testified that the loader job in the shipping department has been more complex since the strike and that there is more paperwork and more quality assurance requirements Adams testified that the job was substantially the same before and after the strike Al though Longbine is correct that the job now has more responsibilities his testimony is not credited to the extent he implies that a person who performed the job prior to the strike could not automatically perform the job after the strike Robert J Sikora vice president of manufacturing tes tified that Respondent changed its production line and its production process In 1985 Respondent instituted a sta tistical process control (SPCI program The purpose of the SPC is to ensure that every operator controls the quality that gets through his work station so at the end we have a quality product instead of trying to inspect quality into the product Respondent puts its employees through a training program to learn the principles of the SPC Sikora further testified that in April 1985 Respond 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent instituted an ultra high powered efficiency furnace According to Sikora the process utilized on this furnace is completely different from any used prior to the strike Sikora also testified that new processes were used in Respondents melt shop In its yard Respondent went to an entirely new high pressured descale system Re spondent also changed its standards regarding the heat ing of the different kinds of steel Further Respondent has modified its rolling process in its mill complex Sikora further testified to changes in other processes Respondent changed from a dunk tank to a new high pressured descale system and installed a new metallurgi cal standard practice In its mill complex Respondent modified procedures and its inspection processes Although I credit Sikora s testimony I do not find that it establishes that the skills required in the produc tion and maintenance process did not remain the same or that somehow the unreinstated strikers could not learn the new processes Sikora testified that Respondent has trained its employees to maximize flexibility and to reduce manning requirements However contrary to as sertions by counsel his testimony does not establish that an experienced worker on the Laidlaw list could not per form work in the plant When a vacancy occurs and Re spondent is adding to its work force Respondent could permit unreinstated strikers to bid on the job and still choose the most qualified person for the job bid During the relevant time period Respondent filled the jobs with employees on the payroll and then recalled unreinstated strikers to the lowest jobs However nothing in Sikora s testimony establishes that Respondent would be harmed by permitting the unreinstated strikers (many of whom have many years of experience) to bid on the jobs Joe Corvin melt shop general foreman testified there really isn t anything in the Melt Shop that is the same We ve added a different piece of equipment to just about every job Corvin estimated that even if a person had been a third helper before the stnke it would require about 3 months training for that individual to be able to do the job after the strike Corvin testified that the job of refractory man and casting operator have changed since the strike Corvin was contradicted by Adams and Dennis Prather who testified that these jobs were sub stantially the same both before and after the strike Al though no doubt these jobs have changed since the strike Corvin was apparently talking about the changes in equipment and processes rather than the skill and ex perience necessary to perform the job Again I find Cor vin s testimony insufficient to establish that the unrein stated strikers were unable to perform these jobs The jobs were more demanding after the strike but that does not establish that the strikers were unable to perform the poststrike jobs More important lawful posting of these jobs still would have permitted Respondent to choose the most qualified person for the job Respondent could not disqualify unreinstated strikers simply because they were outside the plant Michael D Morris plant mill superintendent testified that the mill has had equipment changes and is running completely different products with different standards According to Morris many of the jobs in the mill now require more accuracy However Morns conceded that the employees experience at Respondents old facility helped them learn the operation at Respondents new fa cility Morris conceded that there was a continuing up grading process Again while I find that Morris testimo ny establishes that Respondents current operation places greater demands on the employees it does not establish that the unreinstated strikers were no longer qualified to perform the new jobs or to operate the new equipment There is no reason to believe that the strikers could not cope with the greater demands of the changed operation as the nonstrikers and replacements did D Conclusions This case exemplifies the posturing that takes place in Board proceedings In the representation proceedings the Union claimed that it had an agreed upon contract with Respondent On the other hand Respondent claimed that it did not know what the Union had agreed to and that no contract had been formed In the instant case Respondent claimed the Union had agreed to a contract including a provision that permitted a bidding practice found unlawful here The Union turned around and argued that no contract had been formed Similarly Respondents witnesses exaggerated the changes in job functions that have resulted from Re spondent s updating of its equipment and processes On the other hand the Union s witnesses attempted to mini mize the changes and claimed that the jobs were substan tially unchanged after the strike The truth lies some where in between The jobs have changed but the changes in job content and volume of work have not minimized the skill and experience of the unreinstated strikers Respondent has not established that none of the unreinstated strikers are qualified to perform the jobs and operate the equipment The burden of proof that the fail ure to allow unreinstated strikers to bid on job vacancies was justified by legitimate and substantial business rea sons lies with Respondent Laidlaw supra Fleetwood Trailer supra I find that Respondent has not met that burden Its posturing aside the real reason that Respondent failed to include unreinstated strikers in its bidding pro cedure was that it s the practice that [Respondent] fol lowed in the past and its also practiced in industry Respondent simply failed to recognize that by law un reinstated strikers remain employees on a preferential hiring list 8 Although not intending any violation of law Respondent mistakenly treated the strikers as inferior to nonstrikers and replacements as if the strikers were less senior employees on layoff The changes in Respondent s equipment and processes do not amount to justification for such conduct After due consideration of the remand and the briefs submitted after the remand I adhere to my original con clusion that Respondent violated the Laidlaw rights of unreinstated strikers when adding to its work force it first posted vacant jobs for nonstrikers and permanent re 8 The unreinstated strikers are entitled to full reinstatement on the de parture of replacements unless they have acquired other employment or the Employer can show business justification Laidlaw supra at 1370 OREGON STEEL MILLS placements and denied qualified unremstated strikers the opportunity to bid on these jobs The nonstrikers and permanent replacements were given supersenionty and the unremstated strikers were left with the residual after the bidding procedure had run its course MCC Pacific Valves 244 NLRB 931 934 (1979) Textron Inc 257 NLRB 1 ( 1981) enfd 687 F 2d 1240 (8th Cir 1982) cert denied 461 U S 914 ( 1983) See also Overhead Door Corp 261 NLRB 657 664-665 (1982) Accordingly I re affirm the following Conclusions of Law and recom mended Order CONCLUSIONS OF LAW 1 Gilmore Steel Corporation d/b/a Oregon Steel Mills Inc is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 2 United Steelworkers of America AFL-CIO and its Locals 3010 and 6380 are labor organizations within the meaning of Section 2(5) of the Act 3 By failing and refusing to offer unremstated strikers the opportunity to bid on job vacancies until after non strikers and strike replacements had failed to bid on such jobs Respondent violated Section 8(a)(3) and (1) of the Act 197 4 Respondent has failed to establish that its conduct described in Conclusions of Law 3 above was justified by legitimate and substantial business reasons 5 Respondent has not except as specifically found above violated the Act as alleged in the complaint and bill of particulars THE REMEDY Having found that Respondent engaged in unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act Respondent shall be ordered to offer reinstatement to the strikers who at the compliance stage of this proceed ing are discovered to have been denied an opportunity to bid on job vacancies9 and make whole all such sink ers for any loss of pay they may have suffered by reason of Respondents discrimination against them such pay ment to be made in accordance with F W Woolworth Co 90 NLRB 289 (1950) with interest in the manner prescribed in New Horizons for the Retarded 283 NLRB 1173 (1987) See generally Isis Plumbing Co 138 NLRB 716 (1962) [Recommended Order omitted from publication] 9 See e g Textron Inc supra 257 NLRB I