The Hotel Roanoke

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Virginia Holding Corporation d/b/a The Hotel Roa- noke and Hotel, Cafeteria, Hospital & Restau- rant Employees, Local 121, Hotel Employees and Restaurant Employees International Union, AFL-CIO Cases 5-CA-15924, 5-CA-16065, and 5-CA-16664 March 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 16, 1986, Administrative Law Judge James L Rose issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed cross-exceptions and supporting briefs, and the General Counsel and the Charging Party filed briefs in opposition to the Respondent'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 2 We agree with the judge, for the reasons set forth below, that the Respondent violated Section 8(a)(5) and (1) by declaring impasse on September 26, 1983, and unilaterally implementing its last offer on October 1, 1983 Contrary to the judge, howev- er, we find that the Respondent additionally violat- ed Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union We agree with the judge that the strike com mencing on October 1, 1983, was an unfair labor practice strike from its inception Contrary to the judge and for the reasons set forth below, we find that the Respondent violated Section 8(a)(3) and (1) by discriminating against strikers returning to work We agree with the judge that the Respond- ent violated the Act by suspending and failing to reinstate striker Kenneth Arney when he aban doned the strike and made an unconditional offer to return to work on October 1, 1983 We also agree that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate certain named strikers and that the Respondent did not violate the Act by ' The Respondent the General Counsel and the Charging Party have excepted to some of the judge s credibility findings The Board s estab lished policy is not to overrule an administrative law judges credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We grant the General Counsels unopposed motion to accept an ad dendum to the General Counsels briefs failing to reinstate strikers Douglas Simmons, Martha Henry, Ronnie Hayslett, Ralph Hayes, Robert Tankesley, and John Wade Jr For the rea- sons set forth below, we find that the Respondent violated Section 8(a)(3) and (1) by failing to rein- state strikers Charles W McQueen and Alfreda Sayles Finally, we agree, for the reasons stated by the judge, that certain statements made by the Re- spondent's supervisors violated Section 8(a)(1) Contrary to the judge, however, we find below that the Respondent made additional statements violative of the Act Background Since about May 1965, the Union has been the collective bargaining representative of certain em- ployees employed by the Respondent 3 Before the strike that gave rise to this proceeding, the Union and the Respondent were parties to a collective bargaining agreement that was effective from August 15, 1980, through August 14, 1983 On May 31, 1983,4 the Respondent requested the Union to begin negotiations on a new bargaining agreement The parties met for negotiations on about eight occasions between July 19 and Septem- ber 26 During the afternoon session on September 26, the Respondent's chief negotiator, George Gardner, announced that the parties had reached an impasse in negotiations and that the Respondent would unilaterally implement its last offer on Octo ber 1 The Respondent subsequently implemented its last offer At 6 p m on October 1, the Union began a strike and established a picket line at the Respondent's fa cility The strike was prolonged and, at times, vio lent The strike ended on April 16, 1984, when the Union and the Respondent executed a comprehen- sive package including a new collective-bargaining agreement, Letter of Understanding, and Strike Settlement Agreement I DECLARATION OF IMPASSE The judge found that the Respondent violated Section 8(a)(5) and (1) by declaring impasse on September 26 and unilaterally implementing its last offer on October 1 The judge reached this conclu sion after finding that the impasse issues were rela- tively minor in comparison to the concessions de- manded by the Respondent, that the parties eventu- 8 The bargaining unit consists of All employees employed by the Re spondent at its Roanoke Virginia location excluding the general manag er assistant to the general manager assistant manager supervisors confi dential and executive employees agreed casual employees guards and all others defined by the Act 4 All dates are in 1983 unless otherwise indicated 293 NLRB No 16 HOTEL ROANOKE 183 ally agreed on all issues at the conclusion of the strike, and that the Respondent's proposal to elimi- nate binding arbitration, if permitted, would allow the Respondent to choose which items of national labor policy it would accept We agree that the Respondent violated the Act, but only for the fol- lowing reasons In Taft Broadcasting Co, 163 NLRB 475, 478 (1967), the Board stated Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed The Respondent declared impasse over three issues on September 26 its proposal to eliminate binding arbitration, its proposal to eliminate the effect of past practice, and its proposal to modify the "management-rights" clause The Respondent based its impasse declaration on the contention that the Union refused to agree to its demands on these three issues and that it was equally unwilling to concede on these points Thus, it contends that fur- ther bargaining would have been fruitless We do not agree While it is clear that the parties had discussed the binding arbitration issue during the course of the negotiations, the evidence indicates that the Re- spondent's proposed contract language regarding the elimination of past practice was not discussed in detail, if at all, until the September 15 bargaining session, the last session prior to the time the Re- spondent declared impasse Further, prior to de- claring impasse, the Respondent had not presented the Union with specific contract proposals regard ing the management rights clause, and the record shows that the Union did not oppose modification of the management-rights clause 5 Moreover, al though the Respondent was insisting on the elimi nation of binding arbitration, the Respondent's own internal bargaining memorandum indicates that the Respondent had a compromise position regarding this issue and actively pursued proposals it believed relevant only if it was unsuccessful in eliminating binding arbitration 6 The Respondent's ability to compromise on the binding arbitration issue, its failure to present a specific proposal regarding the management-rights clause, and its introduction of significant new proposals at a late stage of negotia- tions,' all undermine its contention that the parties had reached an impasse and that further bargaining would have been fruitless Additionally, before and during the September 26 session, the Union made numerous concessions in response to the Respondent's bargaining de mands The Union agreed to eight out of nine fi- nancial proposals and agreed to withdraw all of its own bargaining demands in order to focus on the Respondent's proposals Although the Respond- ent's economic proposals were seemingly more im- portant to it than the nonfinancial proposals, at no time did the Respondent indicate to the Union that agreement on nonfinancial bargaining proposals was absolutely necessary to avoid impasse More- over, while the Respondent contends that each one of its proposals was "absolutely necessary,"as indi- cated above the Respondent's internal bargaining materials reveal that it considered itself to have room to negotiate on at least one of the " impasse issues " Finally, when the Respondent declared impasse, its representative told the union negotiating com- mittee that the Respondent was available to contin- ue negotiations should the Union request it prior to October 1 8 However, the Respondent did not indi- cate to the Union which of the remaining issues had to be resolved in order to avoid the alleged "impasse " The failure of a party to communicate to the other party the paramount importance of the proposals presented at the bargaining table or to explain that a failure to achieve concessions would result in a bargaining deadlock evidences the ab- sence of a valid impasse Henry Miller Spring Co, 273 NLRB 472 (1984), enfd mem 800 F 2d 1136 (3d Cir 1986) This factor, especially in light of the concessions made by the Union on September 26, demonstrates that the Respondent's breaking off negotiations on September 26 was not the result of a genuine impasse, but was itself a bargaining tactic designed to prevent an agreement Therefore, the subsequent implementation of the Respondent's last offer was not the result of a genuine impasse In light of this conduct, we agree with the judge that no genuine impasse existed when the Respond 5 The evidence indicates that the Union took the position that modifi cation of the management rights clause was unnecessary because the Re spondent already had the management rights it was demanding Thus while the Union indicated that any change to the management rights clause was unnecessary it did not refuse to agree to the Respondents modification of that clause 6 Member Cracraft does not rely on the Respondents internal bargain ing memorandum ' For example in addition to the proposal regarding the elimination of past practice the Respondent introduced a new proposal at the August 30 bargaining session requiring that all employees be free of any felony conviction and subsequently introduced a new proposal requiring that the time employees spent on grievances not be counted as time worked 9 For purposes of this discussion we assume arguendo that as the Re spondent contends it made this statement to union negotiators immediate ly after it declared impasse on September 26 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent precipitously declared impasse on September 26 and unilaterally implemented its last offer on Octo ber I We therefore conclude that the Respondent's actions violated Section 8(a)(5) and (1) II SURFACE BARGAINING The judge found that the Respondent did not violate Section 8(a)(5) and (1) by failing and refus- ing to bargain in good faith with the Union The judge concluded that although the evidence showed that the Respondent's bargaining appeared to be "inconsistent with a real desire to bargain for a mutually acceptable agreement," other factors ne gated the implication that the Respondent entered into negotiations in bad faith Thus, the judge found that the Respondent had engaged in lawful "hard bargaining" rather than unlawful `surface bargaining " The General Counsel has excepted to the judge's conclusions We find merit in the Gen- eral Counsel's exceptions In determining whether a party has bargained in bad faith, the Board looks to the totality of the cir cumstances in which the bargaining took place Port Plastics, 279 NLRB 362, 382 (1986), Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) The Board looks not only at the parties' behavior at the bargaining table, but also to conduct away from the table that may affect the negotiations Port Plas- tics, 279 NLRB at 382 In reviewing the totality of the Respondent's conduct here, including conduct that occurred away from the bargaining table, we find the evidence establishes that the Respondent violated the Act by refusing to bargain in good faith with the Union As found below, during the period of negotia- tions, Supervisors Holden and Turk, who were members of the Respondent's negotiating commit tee, as well as other supervisors engaged in various acts violative of Section 8(a)(1) Thus, Holden in- terrogated employees concerning whether they planned on striking He also threatened them to the effect that, if they did strike, they could lose their jobs, that the Hotel had determined not to sign a contract, and that the Hotel was undertaking a course of action to dissolve the Union Turk threat- ened Vickie King that the "Union will not be there much longer " Craghead told Shirley Spillman that the Respondent wanted to get the Union out of here," and further warned her that if she went out on strike she would lose her job Furthermore, Su pervisor Hurt told Connie Isbell that the Respond ent did not intend to bargain in good faith, had been preparing for a strike for 3 years, and had no intention of giving the Union a contract These threats, made while the Respondent purported to be trying to negotiate a contract, constitute sub- stantial evidence of bad faith bargaining Further evidence of bad faith can be found in a review of the pattern of bargaining On July 19, during the first negotiation session, the Respondent presented the Union with a list of 27 "financial" and "non-financial' demands 9 At the same session, its attorney and chief negotiator, George Gardner, told the union negotiators that the 13 demands pre- sented by the Union would not be accepted, and the Respondent summarily rejected all those de- mands at the August 10 session (Thereafter, the parties used the Respondent's July 19 demands as the basis for their negotiations) It was not until the August 30 bargaining session that the Respondent proposed specific contract language in connection with its original demands Furthermore, the Re spondent introduced significant new bargaining de mands during the August 30 and 31 and September 15 sessions These demands were not made in re- sponse to any union demands or proposals, and when the Union protested the timing of their sub- mission, the Respondent's reply was simply that it reserved the right to make proposals when and as it wished Other than this comment, the Respond- ent gave no explanation for its failure to include these demands as part of its original list The piece- meal introduction of these significant new bargain- ing demands at comparatively late stages in negoti- ations could only have hampered the bargaining process and lessened the likelihood of the parties' reaching an agreement and thus constitutes addi tional evidence of bad-faith bargaining Further, while the Respondent summarily reject ed each and every one of the Union s bargaining proposals, a member of its negotiating team, Turk, admitted that several of the Union s demands were a "small item," not a "big matter," or "no big deal Yet, the Respondent adamantly refused to consider making any movement on even these ` minor" issues Additionally, George Gardner, the Respondent's attorney, testified that the Respond ent "felt" that it might have to make some conces sion on the proposal to eliminate binding arbitra tion Thus, Gardner explained that the Respondent was also attempting to eliminate the "just cause',' for discharge requirement from the bargaining agreement The Respondent's internal bargaining memorandum also shows that the Respondent be- lieved it might have to abandon its "no arbitration" stance The Respondent's unyielding refusal to agree to even minor matters and its refusal to make 9 The Respondent contends this list was presented to the Union on July 19 The Union asserts that the list was not presented until August 10 We assume arguendo that the list was presented on July 19 HOTEL ROANOKE 185 any concessions even though it was prepared to do so, evidences an intent not to reach agreement Al- though the duty to bargain does not compel a party to make concessions, it does require a will- ingness to search for common ground and presup poses a desire to reach ultimate agreement Excelsi- or Pet Products, 276 NLRB 759, 761-762 (1985) Because the Respondent, on its own, had deter mined that it could make concessions to the Union, its inexplicable refusal to raise any such suggestions even as to "minor" matters evidences bad faith bar- gaining In finding a lack of good faith, we also rely on our conclusion, above, that the Respondent violat- ed the Act by precipitously declaring impasse on September 26 and unilaterally implementing its last offer on October 1 As found above, the Respond- ent had no reasonable basis for declaring impasse on September 26 because the Union had agreed to eight out of nine of the Respondent's financial pro- posals (as well as numerous nonfinancial proposals), and the Respondent never communicated to the Union which of its remaining proposals had to be agreed to in order to avoid impasse Unilaterally changing the terms and conditions of employment in these circumstances is a further indication of the Respondent's bad-faith bargaining In concluding that the Respondent had not en gaged in unlawful "surface bargaining," the judge relied on the fact that the parties had an established bargaining relationship, that the Respondent had demonstrated a need for concessions, and that the parties ultimately reached an agreement in which the Union was unsuccessful in achieving any of its objectives We do not find these to be adequate bases for that conclusion First, although the Union had a successful bargaining relationship with the Respondent's predecessor in-interest,10 a 1982 merger between Respondent's predecessor-in-inter est and another entity led to the creation of the Re- spondent, the Virginia Holding Corporation i i Thus, the identity of the Respondent had changed prior to the 1983 negotiations, lessening the proba tive value of the prior bargaining history Furthermore, while the Respondent subjectively may have believed that it had to gain concessions from the Union, its own bargaining materials indi- cate that it had room to negotiate and could have made some concessions itself The desire or need to achieve concessions does not justify a refusal to bargain in good faith Excelsior Pet Products, 276 NLRB at 762 Nor does the fact that the parties eventually reached an agreement persuade us that 10 The Norfolk and Western Railway Company 11 The Virginia Holding Corporation is a subsidiary of the corporation created by the 1982 merger the Respondent was bargaining in good faith before the strike, as the ultimate agreement came at the end of a bitter 7-month strike and the Respond ent continued to engage in unlawful conduct Accordingly, we find that the totality of the cir- cumstances, including the Respondent's unlawful statements to employees, its introduction of signifi- cant new bargaining proposals at a late stage of ne- gotiations, its unyielding stance in negotiations, and its unilateral implementation of terms and condi tions of employment, establishes that the Respond ent violated Section 8(a)(5) and (1) by refusing to bargain in good faith with the Union III DISCRIMINATION AGAINST RETURNING STRIKERS The judge concluded that the Respondent did not violate the Act by discriminating against re- turning strikers The General Counsel has excepted to the judge's conclusions We find merit in certain of the exceptions As noted by the judge, it is axiomatic that an employer is not permitted to discriminate against returning strikers unless it establishes a substantial business justification for doing so NLRB v Great Dane Trailers, 388 U S 26 (1966) Unfair labor practice strikers are entitled to immediate reinstate ment on the conclusion of the strike, even if the employer must discharge permanent replacements in order to do so NLRB v Mackay Radio & Tele graph Co, 304 US 333 (1938) However, a union may waive strikers' reinstatement rights in a strike settlement agreement when that waiver is part of a quid pro quo agreement Hotel Holiday Inn de Isla Verde, 278 NLRB 1027 (1986), revg 265 NLRB 1513 (1982) Applying these principles to the facts of this case, we find that the Respondent violated Section 8(a)(3) and (1) by recalling strikers out of order of their seniority, by failing to schedule strik ers to work certain hours, by denying insurance benefits to strikers, and by reducing the wages of strikers As indicated above, at the conclusion of the strike the Respondent agreed to reinstate returning strikers pursuant to a comprehensive Strike Settle- ment Agreement, Letter of Understanding, and col- lective-bargaining agreement Under the bargaining agreement, the parties for the first time agreed to define `full-time employee " Article I, section 4, of the bargaining agreement provides that an employ- ee who works an average of 24 hours per week during the preceding 12 months shall be considered a full time employee Under article XII of the bar- gaining agreement, full-time employees are entitled to employer-paid life and accidental death/dis- ability insurance, sickness and accident insurance, 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hospitalization and major medical benefits, and dental care benefits 12 The Strike Settlement Agreement provides that 1 All striking employees shall be recalled to work in the classification which they held prior to striking, or its equivalent, by seniority within three (3) months from the date of the ratification of the collective bargaining con- tract 3 No strike replacement shall be placed in any classification ahead of any returning strik- er, provided that the striker is qualified to work in such classification The Letter of Understanding, which was execut- ed contemporaneously with the Strike Settlement Agreement, provides 1 There will be a minimum of one hundred sixty (160) full time jobs at the Employer Em- ployees in these positions will be considered full time Employees as referred to in Article 1, Section 4 of the Agreement 2 Employees who were on the payroll of the Employer on or before October 1, 1983, will be placed into their jobs according to their seniority in their classification Any such employees whose seniority is not sufficient to claim these full time positions will be able to claim whatever schedules and/or hours become available according to their seniority in that classification 3 Employees on the payroll as defined in paragraph 2 above shall be given consideration for full time positions in other classifications Contrary to the judge's conclusions, it is clear from the above-quoted provisions of the agree- ments that strikers were to be recalled to their former positions, or their equivalent, by seniority The Respondent guaranteed to create 160 full-time positions,) s agreed to recall strikers to these posi- tions by seniority, agreed to treat all returning strikers as "full-time" for purposes of, inter alia, benefits, and agreed to allow all strikers who did not have enough seniority to claim a full-time posi- tion to claim whatever schedules and hours became available The uncontroverted evidence further reveals that the Respondent repeatedly violated these provi- sions Thus, Karen Dunn, the Respondent's person- 12 The benefits specified in art XII are available to full time employees on completion of 6 months of continuous employment The Respondent does not contend that it refused to provide benefits to any striker because he or she had not been employed for 6 months 13 The Respondent does not claim that the 160 full time jobs it agreed to create excluded any of the positions at issue here nel manager, and Jack Abbott, the director of food and beverage service, admitted that they sometimes ignored seniority during the recall procedure, a clear violation of the Strike Settlement Agreement Although Dunn asserted that the Union agreed to the reinstatement of certain strikers out of seniority order, we find this assertion unpersuasive Dunn was not a participant in the final negotiations re- garding the comprehensive agreements Moreover, Dunn at first testified that the Union agreed to nonseniority recall on April 13, 1984, 3 days prior to the signing of the agreements which unambig- uously provided for recall by seniority Dunn later indicated that the Union might have agreed to non- seniority recall on April 16, 1984, the date the agreements were signed Dunn's equivocal testimo ny does not persuade us that the Union ever agreed to nonsenionty recall Thus, we find that the Re- spondent's failure to recall strikers by seniority, as it had expressly agreed to do in the Strike Settle- ment Agreement, discriminated against returning strikers in favor of strike replacements and thereby violated the Act 14 The uncontroverted evidence also reveals that some returning strikers were scheduled to work less than an average of 24 hours per week, while strike replacements were working in the same job classification Wilson Leftwich, who was working more than 40 hours per week before the strike, was scheduled to work between 18 and 24 hours per week after the strike even though strike replace- ments were scheduled to work hours to which Leftwich was entitled under the Letter of Under- standing Linda Carter also testified that immedi- ately after the strike she was scheduled to work only half days even though strike replacements were still employed in the same job classification This violated the Letter of Understanding because it did not allow strikers to claim "available" hours The General Counsel contends that all strikers are entitled to the same hours they were scheduled to work before the strike We do not agree Rather, we find that the Union waived the right of strikers to be scheduled to work more than 24 hours per week The collective-bargaining agreement defines full-time employment in terms of an employee who works an average of 24 hours per week The Letter of Understanding provides that the Re- spondent will create at least 160 full-time jobs Thus, when the documents are construed in con- text, it is clear that the Union agreed to limit the right of returning strikers to be scheduled to work 14 We note that some strikers may have been unavailable when initially recalled We leave to compliance the determination of the Respondents obligations with respect to these strikers HOTEL ROANOKE 187 more than 24 hours per week as part of the com- prehensive agreement 15 We therefore conclude that the Respondent vio- lated the Act only to the extent that returning strikers were scheduled less than an average of 24 hours of work per week while any strike replace- ment worked in the same job classification, exclud Ing hours that were incompatible with the return Ing strikers' availability We leave to compliance the determination of the extent of the Respondent's make-whole obligation The General Counsel further contends that the Respondent violated the Act by discontinuing cer- tain benefits to which returning strikers were enti- tled We agree When read in context, the Strike Settlement Agreement and Letter of Understanding provided that all returning strikers placed in full- time positions would be considered full-time em- ployees under the bargaining agreement 16 The un- controverted evidence establishes that Wilson Leftwich was available to work at least 24 hours per week after the strike and did not have insur ance benefits 17 Patsy Mounts was likewise re- called to a position where she actually worked more than 24 hours per week but was denied insur ance benefits We find the evidence establishes that other returning strikers were denied the fringe ben- efits specified in article XII of the bargaining agreement and that, by doing so, the Respondent violated the Act We leave to compliance the iden- tity of the employees affected by this conduct Finally, the General Counsel contends that the Respondent discriminated against certain returning strikers by placing them in lower paying job classi fications We agree The unrebutted evidence es- tablishes that before the strike Ruben Moorman, Andrea Edwards, and Inez Terry were employed as "bus persons" and were paid $4 20 per hour After the strike, these three employees were desig- nated "room service" employees and were paid $2 73 per hour The Respondent offers no explana- tion for the change in assignments or the failure to pay these employees their former wage rate 18 l s The General Counsel contends that the Respondent orally agreed to maximize 40 hour jobs We find that the evidence taken as a whole fails to support the contention that the Respondent breached the agree ments in this regard The record contains no evidence that the Respond ent failed to maximize the number of 40-hour positions given its finan cial constraints 16 The Respondent has failed to establish which positions were full time positions and which were not In the absence of evidence to the contrary we find that all strikers working or capable of working 24 hours or more per week were in full time positions 17 Jack Abbott the director of food and beverage service admitted that after the strike some stnkers were not given sufficient hours to qual ify for benefits under the contract However Abbott did not explain why these strikers were not considered to be full time employees as required by the parties April 16 1984 Letter of Understanding 18 We note that when the Respondent recalled striker Frank Lancaster the Respondent properly paid him his former wage rate even though the Thus, we find that the Respondent violated the Act by reducing the wages of these employees The General Counsel contends that other employ ees were discriminated against in a similar fashion We leave to compliance the identification of simi larly situated employees and the extent of the Re- spondent's make-whole obligation IV INDIVIDUAL STRIKER REINSTATEMENT19 For the reasons stated by the judge, we agree that the Respondent violated the Act by suspend- ing and failing to reinstate striker Kenneth Arney when he abandoned the strike and made an uncon- ditional offer to return to work on October 1, 1983 20 We also agree with the judge that the Re spondent violated Section 8(a)(3) and (1) by failing to reinstate stnkers James V Anderson, Shirley Ann Barnes, Joyce Brown,21 Robert Brown, Roy Campbell, Esther Emerson, Edward Ernouf, Julie Hampton, Brenda Mason, Frederic Munnerlyn,22 Darlene Smith,23 Cherlyne Taylor, Sarah Taylor, record shows his former job classification of Senior Painter had been eliminated in the new bargaining agreement 19 The Respondent argues that the claims of certain strikers should be dismissed because they are cognizable under the grievance arbitration provisions of the parties collective bargaining agreement We do not agree The Respondent has not indicated a willingness to arbitrate the claims of these employees nor has it agreed to waive any agreed upon contractual time limitations United Technologies Corp 268 NLRB 557 (1984) Given the Respondents rejection of the principles of collective bargaining as found above we find that deferral would be inappropriate in this case Id at 560 We find it unnecessary to rely on the judge s statement in the first par of sec II C of his decision that where a strike is caused by the employ er s unfair labor practices it has a stronger burden of proving employees were lawfully denied reinstatement 20 We find that the Respondents suspension of Arney on October 1 lends additional support to the judge s and our finding that the strike was an unfair labor practice strike 21 Contrary to the Respondents contention we find that the list of strikers prepared by the union secretary B J Smiley ostensibly on behalf of the Union does not constitute a waiver of the reinstatement rights of employees on the list such as Brown The record does not of firmatively establish a clear and unmistakable waiver of strikers reinstate ment rights by the Union No evidence was presented to show that the Respondent requested such a list from the Union or that the list was pre pared pursuant to the Union s instructions Moreover the list which was typed on a plain piece of paper was voluntarily given to the Respondent and was prepared subsequent to the negotiation execution and ratifica tion of the new collective bargaining agreement Letter of Understand ing and Strike Settlement Agreement When contrasted with the formal documents negotiated by the parties the list is simply insufficient to juste fy the conclusion that it was a voluntary waiver by the Union of strikers reinstatement rights 22 Even if as the Respondent contends the Union agreed to the orien tation sessions there is no evidence to support the Respondents conten tion that the Union agreed that a striker s failure to attend -or as with Munnerlyn a striker s late arrival-would result in the waiver of his or her recall rights 23 The Respondents contention that Smith was young and in school is insufficient to establish a good faith belief that she was unavailable for employment There is nothing inconsistent with Smith s alleged status as a student and her being available to work at the Hotel 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Michael Wells, Barbara Bowling,24 and Gladys White Additionally, we agree with the judge that the Respondent did not violate the Act by failing to reinstate strikers Douglas Simmons and Martha Henry We likewise agree that the Respondent vio- lated Section 8(a)(3) and (1) by failing to reinstate strikers Clifford A Bratton, J T Bratton, Maurice Buckner, James Calloway, Buddy Cook, Reed Cotton,25 Darryl Lanier, John Swain' 26 Bonnie Finney, Curtis Hatcher, Vera Hill,27 William Lam bert ,28 Jack Lancaster, Robert Leftwich, Ernest Lindsey, Dallas Mangus, Julia Mangus, Herman Mason, Cecil Meadows, Kenneth Mitchell'29 Jeff Ratigan, 3 ° Betty Shockley, Earl Smith, Michael D Taylor,31 T Arthur Taylor, Samuel Terry, and Margaret Watson We also agree that the Respond- ent did not violate the Act by failing to reinstate strikers Ronnie Hayslett, Ralph Hayes, Robert Tankesley, and John Wade Jr for their picket line misconduct Contrary to the judge, however, for the reasons set forth below, we find that the Re- spondent violated Section 8(a)(3) and (1) by failing to reinstate strikers Charles W McQueen and Al freda Sayles The judge found that the Respondent did not violate Section 8(a)(3) and (1) by its refusal to recall McQueen because the Respondent had termi- nated him prior to October 1 We find merit in the Charging Party's exception to this finding Personnel Manager Dunn was responsible for re- calling strikers at the conclusion of the strike Dunn testified that she did not recall McQueen be- cause he had broken his leg in August 1983 (before 24 Bowling testified that she spoke with then Personnel Manager Hoff man when she went out on sick leave and with her own supervisor when she later went out on strike This testimony which was not rebutted es tablishes that Bowling was not terminated prior to the strike 25 In adopting the judge s decision we rely on Cotton s credible denial that he engaged in the alleged acts of misconduct We find it unnecessary to rely on the absence of evidence concerning the size weight or type of rock allegedly thrown 26 In adopting the judge s conclusions that the Respondent violated the Act by failing to reinstate Lanier and Swain we rely on the fact that the Respondent s reports fail to establish that Swain and Lanier were actually seen throwing apples at the guards and on the employees unrebutted as sertions that they did not engage in the alleged misconduct 27 In adopting the judge we rely on Hill s denial that she had engaged in the alleged acts of misconduct and on the judge s finding that the ma tenal conflict between Security Officer 0 Neal s testimony and his writ ten report casts doubt on his credibility We do not rely on the judge s general assertion that for a striker to be denied reinstatement for throw ing an object the object must be identified 26 In adopting the judge we rely on the fact that the Respondent s evi dence failed to establish that Lambert threw the paint balloon 29 In adopting the judge we rely on the fact that the Respondent s evi dence failed to establish that Mitchell threw the paint balloon 30 See fn 21 above 31 In adopting the judge s finding that the Respondent violated the Act by failing to reinstate Taylor we rely on the judge s finding that the ma tenal divergence between Security Officer 0 Neal s written report and his testimony casts doubt on his credibility on Taylor s denial that he en gaged in the alleged misconduct and on the undisputed contention that 0 Neal had in the past confused Michael Taylor with his brother the strike) and had been off work without request- ing a leave of absence Dunn claimed that she checked with the personnel file, the payroll office, and the general manager, and that "no one had any idea when he was coming back " McQueen testified that he dislocated his knee in August 1983, was unable to work because of his injury, and told his supervisors that he was unable to work Neither supervisor told McQueen of any obligation to request a leave of absence or other- wise indicated that he was in danger of losing his job One supervisor visited McQueen at his home on three occasions during his convalescence Even assuming Dunn's testimony is accurate, we find that the evidence fails to establish that McQueen was terminated before the strike Dunn's testimony that "no one had any idea when [McQueen] was coming back" is simply insufficient to establish that the Respondent made a decision to terminate McQueen before the strike Further, the Respondent knew before the strike that McQueen's medical condition prevented him from working at the Hotel and yet made no mention of his supposed obligation to apply for a formal medical leave Thus, we find that the Respondent violated the Act by failing to reinstate McQueen at the conclu- sion of the strike The judge also found that the Respondent did not violate Section 8(a)(3) and (1) by refusing to reinstate Alfreda Sayles The credited testimony re- veals that Dunn contacted Sayles 3 days prior to a scheduled orientation session and told Sayles to attend Sayles agreed to attend but failed to do so Although the judge found that the Respondent had not established a substantial business justification for requiring attendance at an unpaid orientation session as a prerequisite to reinstatement, a finding with which we agree'32 he found that the Re- spondent lawfully refused to reinstate Sayles for what was, in effect, a failure to comply with a "reasonable reporting date We do not agree Assuming that the Respondent could impose a reporting date on a striking employee, we find that there is no evidence that the Respondent treated the mandatory unpaid orientation session as a "re porting date" First, the Respondent did not tell Sayles, or any other employee, that the orientation session was a "reporting date" Dunn testified simply that Sayles was not reinstated because she failed to attend an unpaid orientation session Fur- thermore, some employees who attended an orien- tation session were not reinstated to work for some time after the orientation 33 Accordingly, because 22 See also fn 22 above 22 For example Ruben Hale Ethyl Moorman and Lillie Graves HOTEL ROANOKE we find that the Respondent did not in fact impose a reporting date, we conclude that the Respond- ent's failure to reinstate Sayles violated the Act V SECTION 8(A)(1) STATEMENTS After the first negotiation session on July 19, at which the Respondent made its demands for sub- stantial concessions from the Union, the Hotel's employees began to discuss the possibility of a strike and the Respondent began making strike preparations The judge concluded, and we agree, that during this time period Supervisors Robert Holden, Willie Hurt Jr, and Michael Craghead made statements and threats that violated Section 8(a)(1) We also agree, for the reasons stated by the judge, that Personnel Manager Beth Hoffman's al- leged statements did not violate the Act The Gen- eral Counsel excepts to the judge's findings that the Respondent did not violate Section 8(a)(1) by cer- tain statements made by management personnel Herman Turk and Karen Dunn, and an additional statement made by Michael Craghead We find merit in the General Counsel's exceptions Employee Vickie King testified that about 3 weeks before the strike, Turk told her that "the union will not be there much longer " The judge found that the General Counsel did not establish the complaint allegations relating to Turk The complaint alleged that (a) Turk threatened employ- ees that the Respondent would refuse to sign a col- lective-bargaining agreement with the Union, and (b) he told employees that "the Respondent would engage in a pattern of conduct designed to remove the Union as the employees' collective-bargaining representative " Turk testified at the hearing and denied that he said that the Hotel would refuse to sign a collective-bargaining agreement with the Union Turk did not, however, deny making the statement King attributed to him King's testimony is closely related to the allegations of the complaint and, on this record, is unrebutted Thus, we con- clude that Turk's statement violated Section 8(a)(1) Shirley Spillman testified that Craghead told her before the strike that the Respondent was out to "get rid" of the Union and, if employees went out on strike, they "would not have fobs " Craghead did not contradict Spillman's testimony The judge found, and we agree, that Craghead's statement to Spillman that the Respondent was out to "get rid" of the Union violated the Act 34 Additionally, we find that Craghead's threat to the effect that em- ployees who went out on strike would lose their jobs also violated Section 8(a)(1) 34 The Respondent has not excepted to this fmdmg 189 B J Smiley testified that following her suspen- sion by the Respondent, Dunn told her to come back to work and talk about "the veal and lemon sauce and not about the Union " The judge, finding that Dunn in fact made this statement, concluded that it was not the promulgation of an unlawful no- solicitation rule We agree that Dunn's statement did not constitute the promulgation of an unlawful rule However, Dunn's statement, coming as it did at the conclusion of Smiley's unlawful suspension, clearly is coercive within the meaning of Section 8(a)(1) We therefore conclude that Dunn's state- ment to Smiley violated the Act ORDER The National Labor Relations Board orders that the Respondent, the Virginia Holding Corporation d/b/a The Hotel Roanoke, Roanoke, Virginia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees that it would refuse to sign a collective-bargaining agreement with the Union (b) Threatening employees that during contract negotiations it would engage in a pattern of con- duct designed to break the Union as the employees' collective-bargaining representative (c) Threatening employees that it would termi- nate or refuse to reinstate strikers (d) Informing returning strikers that they would be considered new employees and that their previ- ous seniority would not be recognized (e) Refusing to bargain with the Union as the duly designated representative of a majority of its employees in the bargaining unit appropriate for purposes of collective bargaining, within the mean- ing of Section 9(b) of the Act All employees employed by the Respondent at its Roanoke, Virginia, location, excluding the general manager, assistant to the general man- ager, assistant manager, supervisors, confiden- tial and executive employees, agreed casual employees, guards, and all others defined by the Act (f) Unilaterally implementing terms and condi- tions of employment during the course of collec- tive bargaining without the parties having reached a genuine impasse (g) Suspending employees because they engage in concerted protected activity (h) Refusing to reinstate employees because they engage in concerted protected activity (i) Discriminating against employees for engag- ing in concerted protected activity by refusing to reinstate strikers according to their seniority, 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD scheduling stnkers to work less than an average of 24 hours per week while strike replacements were scheduled to work in the same job classification, denying fringe benefits to strikers, and cutting the wages of strikers (f) Refusing to furnish the Union with informa- tion requested, which is necessary for it to perform its function as a representative of employees in the above-described bargaining unit (k) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the purposes of the Act (a) Continue to recognize and bargain with the Union as the duly designated representative of its employees in the above-described appropriate unit (b) Offer immediate and full reinstatement to Kenneth Arney and those nonreinstated strikers named in the "Appendix," to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without loss of seniority or other privileges and make them whole in accordance with the remedy section of the judge's decision, with interest 35 In addition, make whole Betty J Smiley for any loss of wages and-benefits she may have suffered as the result of the discrimination against her, with interest (c) Remove from its files any reference to the unlawful suspensions and notify Kenneth Arney and Betty J Smiley in writing that this has been done and that the suspensions will not be used against them in any way (d) Furnish the Union with the information re quested, which is necessary for it to perform its function as a representative of employees in the above-described bargaining unit (e) Make whole, with interest, all unit employees whom the Respondent discriminated against by re- calling them out of their seniority order, by refus- ing to schedule them to work an average of 24 hours per week while scheduling strike replace- ments to work in the same job classification, by de- nying them the fringe benefits provided in the bar- gaining agreement, and by reducing their wages (f) 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 35 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short tern 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) amount of backpay due under the terms of this Order (g) Post at its Roanoke, Virginia facility copies of the attached notice marked "Appendix "36 Copies of the notice, on forms provided by the Re gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to employees are customarily posted Reason able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 36 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 threaten employees that we will refuse to sign a collective-bargaining agreement with the Union WE WILL NOT threaten employees that during contract negotiations we will engage in a pattern of conduct designed to break the Union as employees' collective-bargaining representative WE WILL NOT threaten employees that we will terminate or refuse to reinstate strikers WE WILL NOT inform returning strikers that they will be considered new employees and that their previous seniority will not be recognized HOTEL ROANOKE WE WILL NOT refuse to bargain with the Union as the duly designated representative of a majority of our employees in the following unit appropriate for purposes of collective bargaining All employees employed at our Roanoke, Vir- ginia, location, excluding the general manager, assistant to the general manager, assistant man- ager, supervisor, confidential and executive employees, agreed casual employees, guards, and all others defined by the Act WE WILL NOT unilaterally implement terms and conditions of employment during the course of col- lective bargaining without having reached a genu- ine impasse WE WILL NOT suspend employees because they engage in protected concerted activity WE WILL NOT refuse to reinstate employees be- cause they engage in protected concerted activity WE WILL NOT discriminate against employees for engaging in protected concerted activity by refus- ing to reinstate strikers according to their seniority, scheduling strikers to work less than an average of 24 hours per week while strike replacements are scheduled to work in the same job classification, denying fringe benefits to strikers, or reducing the wages of strikers WE WILL NOT refuse to furnish the Union with information requested, which is necessary for it to perform its function as a representative of employ- ees in the above-described bargaining unit WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them by Section 7 of the Act WE WILL offer full and immediate reinstatement to the following of our striking employees (if we have not already done so) who were unlawfully denied recall following the end of the strike, and WE WILL make them whole for any losses of wages and benefits they may have suffered as the result of the discrimination against them James V Anderson Shirley Ann Barnes Joyce Brown Robert Brown Roy Campbell Esther Emerson Edward Ernouf Julie Hampton Brenda A Mason Dallas Mangus Julia Mangus Alfreda Sayles Darlene Smith Cherlyne Taylor Reed Cotton Bonnie Finney Curtis Hatcher Vera Hill William Lambert Jack Lancaster Darryl Lanier Robert Leftwich Ernest Lindsey Charles W McQueen Frederick Munnerlyn Herman Mason Cecil Meadows Kenneth Mitchell Sarah Taylor Michael Wells Barbara Bowling Gladys White Clifford A Bratton J T Bratton Maurice Buckner Margaret Watson Buddy Cook Jeff Ratigan Betty Shockley Earl Smith John Swain Michael D Taylor T Arthur Taylor Samuel Terry James Calloway, Jr 191 WE WILL offer Kenneth Arney reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position of employment without any loss of rights and benefits, and WE WILL make him whole for any loss of wages or other benefits he may have suffered as the result of the discrimination against him effective October 1, 1983 WE WILL make whole Betty J Smiley for any loss of wages or other rights and benefits she may have suffered as the result of her suspension on or about July 10, 1984 WE WILL notify Kenneth Arney and Betty J Smiley that we have removed from our files any reference to their suspensions and that the suspen- sions will not be used against them in any way WE WILL make unit employees whole for any losses suffered as a result of our unlawful discrimi- nation by refusing to reinstate strikers according to their seniority, scheduling strikers to work less than an average of 24 hours per week while strike re- placements were scheduled to work in the same job classifications, denying fringe benefits to strik- ers, and reducing the wages of strikers WE WILL furnish the Union with the information requested, which is necessary for it to perform its function as the representative of the employees in the above-described bargaining unit WE WILL recognize and bargain with the Union as the duly designated representative of our em- ployees in the above-described appropriate unit for collective bargaining THE VIRGINIA HOLDING CORPORA TION D/B/A THE HOTEL ROANOKE Eric Fine Esq and James Lewis Esq, for the General Counsel George V Gardner Esq, of Roanoke, Virginia, and Asa Ambrister Esq, of Nashville, Tennessee, for the Re spondent Gary M Ebin Esq and M Catherine Lacinak, Esq, of Cincinnati, Ohio, for the Charging Party 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JAMES L ROSE, Administrative Law Judge The Hotel Roanoke' is a large, elegant old railroad hotel which is now operated by The Virginia Holding Corporation, a wholly owned subsidiary of Norfolk & Southern Rail way Corporation Norfolk & Southern came into being in 1982 with the merger of Southern Railway Corpora tion and Norfolk & Western Railway Company, which had previously operated the Hotel as a wholly owned subsidiary, and whose offices are across the street from it For many years the Hotel had recognized the Charg ing Party2 as the bargaining representative for a unit of its employees The bargaining unit represented by the Union includes bellmen, waitresses, maids, and engineers The parties negotiated successive collective bargaining agreements, the most recent of which prior to the events in this matter was effective from 15 August 1980 through 14 August 1983 3 The principal substantive issues involved here apse out of negotiations for a successor agreement In brief, the parties first met on 19 July with the Union making sever al economic demands to which the Hotel responded neg atively, stating that its aim was to negotiate concessions from the Union The parties continued to meet through out the summer of 1983, ultimately in the presence of a Federal mediator On 26 September, after meeting for approximately 2 hours, George Gardner, the Hotel's chief spokesman and counsel for the Hotel in this matter, stated that the par ties were at an impasse and the Hotel intended to imple ment its proposals effective 1 October He said that if the Union had anything further to discuss, he could be reached at the Hotel On 1 October the Hotel did in fact implement various of its proposals and on that day the employees com menced a strike which lasted about 6 1/2 months After a nearly 4 month hiatus the parties resumed ne gotiations in January and ultimately reached agreement on the terms of a contract and settlement of the strike In April the Hotel began to recall employees, in con nection with which they were required to attend an on entation meeting presided over by the then personnel di rector, Karen Dunn Employees were recalled in groups of 10 or more The entire complement of recalled stnk ers was to be in place within 90 days after execution of the strike settlement agreement The Hotel, however refused to recall 36 strikers whom it maintains engaged in such egregious picket line misconduct as to render them unfit for further service In addition, a number of other employees were not recalled The General Counsel maintains that by failing to recall all these strikers the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U S C § i Herein the Hotel the Company or the Respondent 2 Hotel Cafeteria Hospital & Restaurant Employees Local 121 Hotei Employees and Restaurant Employees International Union AFL-CIO (the Union) 8 All dates are between July 1983 and June 1984 unless otherwise mdi cated 151, et seq The Respondent contends 36 of them en gaged in picket line misconduct and therefore lost pro tection of the Act, and that others were not recalled for legitimate business reasons, including failing to attend an orientation session, and being physically infirm The General Counsel further contends that the Re spondent violated the Act in its recall of employees by discriminating against strikers in job assignments and hours available for employment The Respondent con tends that in all cases the recall of employees was in ac cordance with the strike settlement agreement and the newly executed collective bargaining agreement Both before the strike and at its conclusion, various members of management are alleged to have made state ments to employees in violation of Section 8(a)(1) of the Act, including threats interrogation, and the like Finally, the General Counsel alleges that the strike was called to protest the Respondents unfair labor prac tice of improvidently declaring an impasse where none existed, and unilaterally altering the terms and conditions of employment, or, in the alternative, that the strike was prolonged by the Respondents unfair labor practice of discharging employee Kenneth Arney following com mencement of the strike on 1 October and, inferentially, discharging all other employees simply because they en gaged in the protected activity of striking In addition it is alleged that employee Douglas Simmons was unlaw fully discharged and that Bettie J Smiley was suspended for 9 days in July 1984 These discharges and suspension are alleged violations of Section 8(a)(3) The Respondent generally contends that it bargained in good faith with the Union, that it did not precipitously declare an impasse, that the strike was at all times an economic strike, that it had lawful reasons for failing to recall the various strikers and that the discharges of Arney and Simmons and the suspension of Smiley were for cause Finally the Respondent contends that its man agement personnel did not engage in the acts attributed to them which are alleged violations of Section 8(a)(1) The issues framed by the amended consolidated com plaint4 and the answer were tried before me on various dates at Roanoke Virginia, between 19 March and 25 June 1985 Following the close of the hearing, counsel for all parties submitted extensive briefs On the record thus made, 5 including my observation of the witnesses, briefs and arguments of counsel I issue the following 4 The charge in Case 5-CA-15924 was filed on 9 November 1983 and amended on 13 January 1984 the charge in Case 5-CA-16065 was filed on 6 January and amended on 13 January 1984 and the charge in Case 5-CA-16664 was filed on 12 September and amended on 21 September and 27 November 1984 The amended consolidated complaint issued on 18 January 1985 5 On 20 February 1986 counsel for the Respondent moved that I take notice of the order in Case 5-CA-15942 in which a charge filed by the Union during the instant trial was adjusted by execution of a settlement agreement which the Union declined to join Though I grant the motion neither the order nor the Union s reference to the allegations in its charge were considered in reaching any conclusion in this matter HOTEL ROANOKE FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION As indicated, the Respondent is a wholly owned sub sidiary of Norfolk & Southern Railway Corporation Un deniably, in connection with its business, the Respondent annually receives goods, products and materials directly from outside the State of Virginia in excess of $50 000, and annually derives gross revenues in excess of $500,000 from its operation as a hotel It is admitted and I find that the Respondent at all times material was an employ er engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act It is likewise admitted, and I find, that the Union was at all times material a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICFS6 A Bad Faith Bargaining The General Counsel and the Charging Party allege that the Respondent entered into negotiations in 1983 with a predetermined intent not to bargain in good faith, that it pursued its unlawful bargaining position through at least 26 September, at which time it improvidently de Glared an impasse and thereafter unilaterally implemented certain changes in terms and conditions of employment By these acts it is alleged that the Respondent breached its bargaining obligations and thus violated Section 8(a)(5) of the Act 1 Surface bargaining After preliminary discussions by telephone and letters the parties first met to negotiate a new collective bar gaining agreement on 19 July in Roanoke At that meet ing the Union's chief spokesman was Ronald Richardson executive secretary treasurer of Local 25 of the Hotel, Cafeteria, Hospital & Restaurant Employees Union (Washington, D C), and an International vice president Gardner had earlier denied Richardson s suggestion that the two of them meet in Washington and negotiate a contract in 2 or 3 days At this 19 July meeting, the Union presented a list of 13 demands, ' all of which related to more compensa tion for employees The Union demanded an across the board wage increase increased life insurance, increased sick leave pay increased sickness and accident benefits increased contribution to the pension plan and free park ing In addition the Union demanded more guaranteed worktime for senior employees and engineers as well as a new classification for cooks in one of the restaurants At this meeting, undeniably, Gardner told the union negotiators that the Company would not accept any of the Union s demands and he intended to negotiate con cessions (or `give backs') Although he did not submit specific contract proposals at this time, Gardner did present to the Union a list of the Hotel's concerns in 6 Inasmuch as the allegations in the amended consolidated complaint are extensive involving events occurring over a period of many months and often of only a tangential relationship to each other the facts and analysis of each alleged unfair labor practice will be separately treated 193 both economic and noneconomic areas The principal items under economics included elimination of guaran teed workweeks for certain classifications of employees, pay for employees who are called in to work, and a method by which overtime and premium pay are calcu lated Among the 18 items in the non financial catego ry, were tightening management control of security (in cluding the inspection of employees' pocketbooks and giving them polygraph and alcohol tests), improving management's right to alter job classifications and to assign employees to specific tasks, increasing the proba tionary period, and removing the arbitration clause from the contract The General Counsel and the Union argue that by making demands that could not be accepted and by re jecting out of hand the Union s proposals, the Company thereby demonstrated its subjective intent not to negoti ate with the Union in good faith It is argued that this predetermined position is also demonstrated by the fact that during the subsequent bargaining sessions through 26 September (of which there were nine), the Company did not relinquish any of its degrading proposals Fur ther it is argued that the Company claimed its proposals were necessary in order to become profitable but that it was dilatory and less than honest in presenting documen tary evidence to support this position 7 The General Counsel and Union further argue that the Respondent s predetermination not to reach an agreement is demon strated by the acrimony exhibited by Gardner as well as other members of the management team, during the course of negotiations Section 8(d) of the Act defines the parties obligation to bargain collectively as requiring them to meet at rea sonable times and to confer `in good faith with respect to wages hours and other terms and conditions of em ployment, or the negotiation of an agreement While the Board is not the arbiter of a position taken by either party to collective bargaining, the Board is charged with monitoring the overall conduct of parties to ensure that they in fact bargain in good faith And where the totality of one s conduct demonstrates that it engaged in dilatory conduct and otherwise evidenced a determination to avoid reaching an agreement, then that party has violat ed its obligations under Section 8(d) of the Act and can be held to have refused to bargain in good faith See e g Leeds Cablevision 277 NLRB 103 (1985) (Chairman Dotson dissenting) While the law is clear in defining a party s obligation to bargain in good faith what constitutes a breach of that obligation is not so clear This is because the ulti mate conclusion involves subjective intent and the ob jective facts tending to prove an unlawful intent might also tend to prove hard bargaining, which is lawful Here there is no real dispute concerning the salient facts before and during bargaining The parties disagree only on the interpretation to be derived from those facts On balance I conclude that the evidence proves a pos ' It is noted in this respect that in July 1983 the Union filed a charge alleging a violation of Sec 8(a)(5) based on the Truitt doctrine NLRB Y Truitt Mfg 351 U S 149 ( 1956) which was dismissed by the Regional Director 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ture of hard bargaining on the part of the Respondent and reasonable attempt to become more productive and profitable , given its economic situation The dramatic changes from the existing collective bar gaining agreement sought by the Company , along with its failure to propose any wage or benefit increase at all, leads one initially to conclude that the Company had no intention of reaching an agreement , other than total ca pitulation by the Union The Hotel must necessarily have known such could not be acceptable In short the Re spondent s proposals stated , in effect, This is what we would do if we had the power to do what we want without negotiating Such appears to be inconsistent with a real desire to bargain for a mutually acceptable agreement Good faith necessarily means negotiating to reach an agreement that would be mutually acceptable, and such presupposes that neither side gets all it wants Notwithstanding, there are factors here that tend to minimize the strident nature of the Respondents bargain ing position and tend to negate the implication that the Respondent entered into negotiations in bad faith First, the parties had a collective bargaining relation ship for nearly 20 years and as far as this record indi cates such had been amicable Some of the same individ uals for both the Company and the Union had been in volved in negotiating the previous contracts Gardner had been the Company s chief spokesman in prior negoti ations James Wade, the Union s president , had partici pated in previous negotiations on behalf of the Union Second, the Company stated at the outset of negotia tions and established, if only in general terms, its per ceived necessity to negotiate concessions from the Union The evidence reveals that there had been several new motels (hotels) built in the Roanoke area, servicing the same clientele as the Respondent As a result of this and perhaps other factors the Respondents occupancy rate had gone down to about 40 percent Such was unac ceptably low While the Respondents principal restau rant (which enjoys a four star rating) continued to be busy, the room occupancy rate necessarily had a nega tive effect on the Hotel s restaurant business in general The General Counsel and Union argue that because the Respondents parent company is profitable these fac tors are largely irrelevant I disagree Because as the question here involves an analysis of the Respondent s subjective intent, I conclude that managements desire to alter contract terms in an effort to become more com petitive and therefore productive , given its current eco nomic situation, is relevant Certainly the overall eco nomic position of the Hotel (including the nature and extent of the competition) cannot be discounted where the issue is whether Respondents posture was one of hard bargaining or of bad faith It is also argued that the acrimony demonstrated by company negotiators, particularly Gardner , toward union negotiators evidences a surface bargaining intent Al though such may be a relevant factor , as has been noted on many occasions by the Board and the courts, unfortu nately sometimes during collective bargaining ad ho minem attacks are made by one side or the other or both Such must be viewed as a reality rather than some thing of definitive importance See, e g , Leeds Cablevi lion supra Further a review of the testimony here re veals that neither side is totally blameless in the matter of acrimonious statements and posturing In fact the parties did meet on 10 occasions within an approximate 2 month period and did discuss at length the Company s proposals Indeed, tentative agreement was reached on many items Finally, and of significance, al though not controlling , is the fact that the Company and the Union ultimately reached accord on a successor col lective bargaining agreement Although this occurred following a strike which lasted nearly 7 months, never theless the employees (through their Union) agreed to a contract that contained most of the substantive proposals with which the Respondent entered negotiations The principal changes from the 1980- 1983 contract in elude a 12 week probationary period, a definition of a full time employee, deletion of the 40 hour per week guarantee for certain classifications , a further delineation of management rights, deletion of overtime pay for work in excess of 8 1/2 hours in a given day and deletion of double time for the seventh consecutive day worked, a change of from 4 to 2 hours in showup pay and a change from 8 to 2 hours of pay if one calls in and works 1 hour, deletion of a provision relating to part time em ployees working less than 3 days a week, a provision that holiday pay applies only to full time employees, similarly, that full vacation pay be for full time employ ees with part time employees who work 1200 hours a year to get vacation on the basis of 3 days for each week of entitlement and those who work less than 1200 hours to get vacation pay on a prorata basis, a more restrictive leave of absence policy , a change in the dollar amount for cash register errors and notice to be given the em ployee deemed responsible, a deletion of the banquet em ployees' health and accident insurance, a change in the arbitration grievance procedure to provide for a perma nent arbitrator deletion of the grandfather clause a provision that bellmen and maids might be assigned to do certain duties outside their normal work, a provision that the Company could create new job classifications, the addition of a mandatory retirement age, and the addi tion of a clause that past practice would not be control ling The wage and compensation schedules remained un changed, as did many of the other contract provisions They include dues checkoff, the general language of the management rights clause , the specific holidays, the amount of vacation employees earn , providing meals and a place for employees to eat them , uniforms seniority (with some minor changes involving leaves of absence), dressing rooms, insurance , hospitalization pensions a grievance procedure , with, as noted, a change in the ar bitration provision strike, lockout and picketing provi sions a nondiscrimination clause, and bereavement and sick leave pay Comparing the expired contract with the 1984 con tract, along with the Company s proposals and the Union s demands, reveals that the Union was not suc cessful in achieving any of its objectives However, the Company was successful in negotiating a wage freeze along with certain other provisions affecting economics, HOTEL ROANOKE particularly including overtime and showup pay, and the amount of compensation and fringe benefits to be paid less than full time employees Many economic and non economic provisions of the expired contract were includ ed in the new contract verbatim or with minor changes My analysis of these documents leads to the conclusion that the Company was not successful in securing all its demands, nevertheless it was substantially successful in the area of economics and in deleting what it perceived to be the onerous past practice clauses The Company ultimately withdrew its demand for no arbitration and the parties agreed to having a permanent arbitrator for their dispute resolution Inasmuch as most of the Company s principal demands were achieved in substance, I cannot conclude that they were so outrageous as to evidence a predetermination not to reach an agreement with the Union Other of the Company s demands, including a provi sion that it be allowed to search employees give them polygraph and blood urine tests, while potentially de meaning, are not so outrageous as to require the conclu sion of surface bargaining The nature of the industry and the undenied evidence that in fact some employees had been intoxicated at work and some property was missing give a rational predicate for these proposals On the record before me, I conclude that the Re spondent did not enter into negotiations with a predeter mined intent not to agree to a contract acceptable to the Union Accordingly, I will recommend dismissal of para graph 16(b) of the amended consolidated complaint 2 The impasse Although the parties dispute precisely what was said and by whom at the 26 September meeting all agree that Gardner stated that they had reached an impasse, and the Company intended to implement its proposals effec tive 1 October The Respondent maintains that Howard Richardson8 made some response indicating that he agreed there was an impasse The Union and General Counsel witnesses, including Richardson, deny that he made such a statement Specifically they testified that on 26 September it was the Union s position, and its state ment to Gardner, that there was in fact no impasse Richardson told Gardner there had been movement on significant issues and there remained room for movement were the Respondent to negotiate in good faith Although conceptionally impasse is less subjective than surface bargaining, it is at least as difficult to ana lyze When surface bargaining tends to be static, impasse is shifting Whether the parties are at impasse can change depending sometimes on subtle changes in the situation In any event whether or not there is an impasse depends on an analysis of the total factual situation to determine the state of mind of both parties to bargaining at a par ticular point in time See Taft Broadcasting Co 163 NLRB 475 (1967) petition for review denied 395 F 2d 622 (D C Cir 1968) Basically, at a given point there is 8 After the first meeting Ronald Richardson no longer participated in negotiations Howard Richardson of Euless Texas is another Interna tional vice president and was the Union s chief spokesman until negotia bons to settle the strike 195 impasse if it can reasonably be concluded that the par ties' positions on important issues (to them) are so fixed that movement toward an agreement is not probable Inasmuch as collective bargaining agreements aim to codify a full range of terms and conditions of employ ment, some items are more important than others Thus, during negotiations there can be movement, indeed agreement, on some provisions and there still be an im passe because the parties positions on important items are intransigent Nevertheless, the fact of movement by one party or another toward agreement is one factor to be considered in determining whether or not at a given time there was impasse In these negotiations the positions of the parties was far apart The Company wanted substantial changes from the existing contract in important areas The Union wanted a substantial increase in wages and other mone tary benefits Shortly after the beginning of negotiations, the parties took as their guideline for discussion the Company s proposals and during the several bargaining sessions prior to 26 September each of these items was discussed at some length, and agreement was reached on some of them Although the parties remained far apart on many items even after nine negotiating sessions the question is whether on 26 September the posture of the Union as reasonably perceived by the Company, was such that progress could be made with continued bar gaining, and whether the Company s position on items which it determined of utmost importance was so fixed that without concession on them no agreement was likely Whether impasse exists at a particular time in negotia tions is dependent on the particular circumstances at the time and is by its nature a fleeting concept In essence, impasse means that further bargaining given the same conditions would not likely produce an agreement But whether an impasse exists at any particular time during the course of negotiations is largely of academic interest, unless one party takes action which is permissible only in the event of impasse For instance here the Respondent declared impasse on 26 September and announced that it would implement its proposals effective 1 October The unilateral implementation of changes in terms and condi tions of employment during negotiations amounts to an unlawful refusal to bargain unless the parties have reached impasse Taft Broadcasting, supra Thus whether or not there was an impasse is critical to a determination of whether the unilateral changes were unlawful And in analyzing the circumstances to determine whether there was an impasse, the tests set forth in Taft remain applica ble Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of negotia tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed [163 NLRB at 478 ] 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A review of the relevant factors leads me to conclude that here there was no impasse on 26 September My conclusion is predicated primarily on a finding that the alleged impasse issues were relatively minor, in compare son to concessions demanded by the Respondent and ul timately agreed to by the Union, and the parties reached a negotiated settlement concerning these issues The al leged impasse issues were compromised rather than the Union capitulating to the Hotel s demands Where the parties have demonstrated an ability to compromise on a specific issue, such suggests that fur ther negotiations on that issue would not have been fruit less On the other hand, where the parties announce fixed positions on a particular issue and then one side or the other capitulates following some change in circum stance, such tends to indicate they had a real inability to compromise on that issue Therefore further bargaining on it would not have been productive Capitulation by one side implies that there was no compromise on the particular issue Hence negotiation was not what led to agreement which was a result of changed circumstances Absent the changed circumstance it was unlikely there would have been an agreement Of course , neither com promise nor capitulation is dispositive of the impasse question What happened subsequently merely tends to shed light on the party s positions at the moment under consideration Here regarding the issues which the Respondent claims resulted in impasse, there was compromise and no particular reason to believe such could not have been achieved with continued bargaining Quoting from the Respondent's brief [T]he parties were entrenched into two different po sitions concerning the key issues of binding arbitra tion, elimination of past practices and clarification of management rights pertaining to consolidation of jobs and scheduling It is important to note that these three issues were the precise matters which Mr George Gardner testified were the three pnnci pal thrusts which the Hotel negotiators believed to be the most important in negotiating a new con tract The Respondent proposed an elimination of binding arbitration as the final step in the grievance procedure Howard Richardson stated during negotiations that he would never accept a contract that did not include bind ing arbitration The Respondents witnesses testified that the elimina tion of arbitration was proposed because the Union had taken frivolous grievances to arbitration in the past This was a time-consuming and costly endeavor, and further the Union had won reinstatement of discharged employ ees through arbitration (due to the claimed union bias of arbitrators) which was also costly not only in backpay but in the discipline credibility of management The Re spondent s evidence regarding this was at best vague and general Only one specific arbitration case was testified to I do not credit and cannot accept Respondents gener alized conclusions that it found binding arbitration to be more onerous or costly than might generally be expect ed No doubt there is some expense attendant to having an arbitration clause in a collective bargaining agree ment No doubt to some extent the fact that manage ment s discipline decisions can be reviewed by an arbitra tor serves as a brake on management exercise of arbi trary authority over employees Nonetheless, arbitration is a preeminent national labor policy See, e g , Steelwork ers trilogy 9 Thus, to accept the Respondents argument concerning the seriousness of its proposal to eliminate binding arbitration would be to allow the Respondent to pick and choose among items of national labor policy it would accept Such would be similar to the argument that a company should not have to bargain because a collective bargaining agreement might be inimical to its ability to do business in the manner it wants The nation al labor policy simply cannot permit this argument nor the one advanced by the Respondent to be seriously con sidered Beyond that, the parties in fact did negotiate changes in the arbitration clause whereby they would select a local permanent arbitrator to handle disputes arising under the collective bargaining agreement In short, nei ther side capitulated on this issue This suggests that had the parties negotiated specifically on this issue on or after 26 September, a similar tentative agreement could have been reached Because binding arbitration is a favored national labor policy and because the parties did compromise their re spective positions on this provision, I conclude that this was not truly an impasse issue on 26 September The parties discussed the elimination of past practices The Respondent contended that this was important be cause the Union s president (who had been an employee of the Hotel for 40 years) took advantage of the Re spondent s young managers However the testimony does not reveal that this was an issue about which the parties could not ultimately have reached an agreement had they negotiated further after 26 September There is nothing in the testimony , even of the Respondents wit nesses, that the Union objected to some type of clause whereby the contract would be interpreted on its face The Union simply insisted that the Respondent state spe cifically what it had in mind concerning the elimination of past practices The clause that the parties finally agreed to states Any past practice inconsistent with this agreement should not be controlling There is no indication that the Union ever objected to this particular language Indeed, such is probably redundant, for labor contracts are normally interpreted in accordance with their unam biguous language and the matter of past practice be comes relevant only in the event of an ambiguity In short, the nature of the relief sought by the Re spondent in this proposal and the clause ultimately agreed to by the Union, along with testimony of the par ties does not suggest that it was such an issue that the parties could not have made progress had they negotiat 9 Steelworkers v American Mfg Co 363 U S 564 ( 1960) Steelworkers v Gulf Navigation 363 US 574 ( 1960) Steelworkers v Enterprise Corp 363 US 593 (1960) HOTEL ROANOKE 197 ed concerning it on or after 26 September I do not be lieve that this was, or could have been significant enough to cause a true impasse Finally Respondent contends that the matter of clan fying the management rights clause pertaining to consoli dation of jobs and scheduling was an impasse issue Management rights pertaining to consolidation of jobs and scheduling is contained in article III (Management Rights) and article XVII (Miscellaneous) of both the ex pared and new contracts The expired contract gives the employer broad management rights, which are similarly set forth in the new contract, with the addition of specif ics such as B The right to establish work schedules " In article XVII of the expired contract Section 12 Establishment of new classifications In the event the Employer adds any new classifica tions to its payroll which would normally fall within the scope of the bargaining unit the Em ployer and the Union will meet to establish wage rates and conditions for these classifications In the new contract in article XVII is the following Ian guage Section 9 Establishment and Consolidation of Clas sifications The Employer may consolidate classifications add new classifications, and change classifications of Employees which would normally fall within the scope of the bargaining unit The Union agrees to assist the Employer in any consolidation addition, or change of classification Although the language in the two contracts vanes somewhat concerning the matter of establishment and consolidation of classifications, it does not appear that there is a sufficient substantive difference between them to support the conclusion that such would be an impasse issue singularly or in connection with other issues The testimony is simply inadequate and unpersuasive that the Respondents authority in the area of classifications and scheduling needed to be changed in any substantive re spect, or that the Union opposed the changes sought by the Respondent On 26 September the parties were a long way from reaching an agreement But, from the totality of this record I cannot conclude that further negotiations on, or immediately after 26 September would have been an ex ercise in futility Specifically I believe that the three issues that the Respondent contends resulted in impasse were of relative insignificance In any event they were matters over which the parties could have bargained in good faith and reached a tentative agreement without any change in the circumstances then surrounding the negotiations It is further noted that in fact there had been move ment by the parties during the course of bargaining Indeed on 26 September the Union made certain conces sions The Union s demonstrated willingness on 26 Sep tember to make concessions and, from the credited testi mony of the Respondents witnesses, its acknowledgment that Respondent needed concessions , further prove there was no true impasse when the Respondent cut off negoti ations To both the Respondent and the Union , the central issues involved in these negotiations involved economics wages, the allocation of tips, overtime , guaranteed work week fringe benefits, and the like These were significant issues However, these were issues that the parties were in the process of resolving, and such is at least tacitly ad matted by the Respondent The Respondent does not contend that impasse was caused by any one or a combi nation of the economic issues The alleged impasse issues were clearly not central to both parties Indeed, to the extent that these issues were important , they were of more importance to the Respondent than to the Union, again as demonstrated by the concessions made and the agreement reached Notwithstanding that I conclude the Respondent bar gained in good faith until 26 September , I nevertheless conclude that by declaring impasse on that day and sub sequently implementing unilateral changes the Respond ent violated Section 8(a)(5) of the Act Compare Hamady Bros Food Markets, 275 NLRB 1335 (1985) (Member Dennis dissenting) B The Strike On 1 October employees in the bargaining unit corn menced a strike and it lasted until 16 April 1984 at which time the parties executed the new collective bar gaining agreement along with the strike settlement agree ment There is little doubt nor is it really disputed, that the strike was caused in substantial part by the Respond ent s bargaining The Respondent simply contends that this was not an unfair labor practice strike because it did not engage in any unfair labor practices predating the strike In agreement with the General Counsel and the Union I conclude that in fact a principal causative factor of the strike was the Respondent's improvident declaration of impasse on 26 September and its unilateral implementa tion of changes in terms and conditions of employment on 1 October These acts of the Respondent were unfair labor practices Because the strike was called , in part at least, to protest the Respondents unfair labor practices it was at its inception an unfair labor practice stake See, e g Mastro Plastics Corp v NLRB, 350 U S 270 (1956) C Reinstatement of the Strikers Though the employees status as unfair labor practice strikers does not appear generally material , this has some bearing on the reinstatement issues Thus in Radio Elec- tric Service Co, 278 NLRB 531 (1986), there was no im passe and the strike was a result of the company s unfair labor practices in bargaining The Board held that the company had the burden of proving an economic neces sity for not reinstating strikers And in Seminole Asphalt Refining, 207 NLRB 167 (1973), the Board held that the employees misconduct must be weighed against the em ployer s unfair labor practices precipitating the strike in 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD determining whether they lost protection of the Act 10 In either case, where the strike is caused by the employ er's unfair labor practices, it has a stronger burden of proving employees were lawfully denied reinstatement In material part, the strike settlement agreement pro vides that 1 All striking employees shall be recalled to work in the classification which they held prior to striking, or its equivalent, by seniority within three (3) months from the date of the ratification of the collective bargaining contract, with the exception of the employees as specified in paragraph 2 herein 2 The Hotel will not recall employees which it contends engaged in misconduct during the strike The Union does not agree that there are any em ployees ineligible to be returned to work other than those convicted of picket line misconduct and will submit this matter to the National Labor Board for determination Nothing herein shall be construed to be a waiver of any such employees rights and reme dies under the National Labor Relations Act, as amended By these provisions of the strike settlement agreement, it appears that the parties agreed that the Respondent could lawfully recall employees during a period of 3 months And in a letter of understanding the Respond ent agreed there would be a minimum of 160 full time jobs For any employee whose seniority did not qualify him or her for a full time job, that employee could claim available hours, based on seniority I conclude that the strike settlement agreement recog nized the exigencies of the industry and the Respondent s operation and allowed for recall of strikers over a 3 month period based on the availability of work and of the returning strikers Although the general recall plan is not questioned the General Counsel and the Charging Party contend that its application to certain nonreinstated and reinstated strik ers was unlawful The law is quite clear that strikers cannot be dis charged because they have chosen to engage in the pro tected activity of striking Consistent with this an em ployer must reinstate strikers who make unconditional offers to return to work, provided that under certain cir cumstances an employer may refuse to rehire an econom is striker who has been permanently replaced and can deny reinstatement to those whose conduct during the course of the strike was so egregious as to render them unfit for further employment The Respondents duty under the Act in these regards is irrespective of motive Thus an employer, for in stance, is required to reinstate a striker notwithstanding its good-faith belief that that individual has engaged in egregious picket line misconduct on a showing that the employee in question did not engage in such conduct See e g Rubin Bros Footwear 99 NLRB 610 (1951) Al 10 Chairman Dotson and then Member Hunter questioned this pnnci pie in Clear Pine Mouldings 268 NLRB 1044 (1984) and New Galax Mirror Corp 273 NLRB 1232 (1984) but neither case involved reinstate ment of unfair labor practice strikers though a good faith belief that an employee has engaged in picket line misconduct may be sufficient in the first in stance, if it is rebutted by evidence showing the employ ee did not commit the misconduct, or that the miscon duct was not serious, then the employer must reinstate the striker with backpay On unconditional offers of reinstatement, striking em ployees are entitled to reinstatement In refusing to do so on grounds of misconduct, the employer acts at its peril, even if in good faith, if the evidence ultimately shows that the employee did not commit a serious act of mis conduct Similarly, as to strikers not reinstated for rea sons other than misconduct, the Respondent has the burden of proving the economic necessity for its refusal Radio Electric Service Co, supra Finally it is unlawful for an employer to discriminate against strikers whom it has reinstated with regard to wages, hours, and other terms and conditions of employ ment However, unlike the reinstatement issue, proof of such is dependent on a proscribed motive which can be rebutted by the employer showing a lack of unlawful motive, e g business justification NLRB v Great Dane Trailers, 388 U S 26 (1967) Here the cases of nonreinstated strikers fall into sever al categories First is Kenneth Arney who initially went on strike but later on the day of 1 October offered him self for work He was told he was suspended It is also alleged that Douglas Simmons offered himself for rein statement before the end of the strike and was denied Following the execution of the strike settlement agree ment, the Hotel began recalling strikers first having them attend orientation sessions before returning to work Several of them were denied reinstatement even though they attended an orientation session several were not recalled because they did not attend an orientation session two strikers were not contacted by the Hotel to return to work, three were not recalled because of al leged medical problems two were not recalled because of alleged violations of sick leave policy, and four were not recalled because they allegedly could not work the only available hours for them Finally 32 employees were not recalled because of alleged picket line or relat ed misconduct 1 Kenneth Arney Arney testified that he walked out when the strike commenced at 6 p in on 1 October About 9 p in that day, having changed his mind on discussion with his wife, Arney returned to work and talked to Beth Hof mann, the Hotel s then personnel director, as well as his supervisor, Bob Finney Although there are several versions of what transpired and precisely what Arney was told, in sum as counsel for the Respondent notes in his brief, both Mr Finney and Mrs Hofmann told Mr Arney that he was suspend ed pending an investigation and that in any event a re placement had already been hired for his job that evening " The alleged justification for having suspended Arney was the potential for his engaging in sabotage although HOTEL ROANOKE 199 the Respondent presented no evidence to support any reason for harboring such a belief Hofmann was unable to testify who, if anybody, in fact replaced Arney Arney s job was night cleanup It is possible he was replaced within 3 hours, but such is highly unlikely And absent some evidence, I do not accept the Respondent's assertion that he was Further, because I conclude that the strike was caused by the Re spondent's unfair labor practices, the defense of perms nent replacement is not viable The testimony to the effect that Arney had been "re placed, ' I conclude, was a cute after the fact character ization by the Respondent Inasmuch as economic stnk ers can be permanently replaced , I believe this word was used in an effort by the Respondent to avoid liability Other than the assertion, there is no evidence that Arney had in fact been replaced Further , on the evening of the strike, the type of work he normally did was being per- formed by an employment contractor There is no evi dence his services would have been redundant Finally, testimony from the Respondent's witnesses proves that Arney was discharged for striking Herman Turk, the operations manager at the time of the strike, testified that Arney was not allowed to return to work because "he walked out on strike He further testified that Arney had been suspended because , I was under the impression he walked out on strike and he had made his decision It is clear from the testimony of Turk and Hofmann that Arney was discharged , or at least denied the oppor tunity to return to work on his unconditional offer, be cause, and only because, he was a striker Such is clearly unlawful I therefore conclude that the Respondent violated Sec tion 8(a)(1) and (3) of the Act by refusing to reinstate Kenneth Arney on 1 October 1983 He is entitled to rein statement and backpay from that time until he is given an unconditional offer of reinstatement Abilities & Good- will 241 NLRB 27 (1979) 2 Douglas Simmons It is alleged that in January 1984 Douglas Simmons made an unconditional offer to return to work which was denied by the Respondent in violation of Section 8(a)(3) of the Act The evidence concerning this incident comes primarily from the testimony of Simmons and Dunn Although there are conflicts in their testimony concerning his con versation with her when he called offering to return to work, such are not particularly material Basically, Simmons testified that following conversa tions with his wife and in order to appease her, he agreed to attempt to return to work Thus he initiated a call to Dunn Simmons testified that when he called Dunn he had no intention of accepting if offered his job As he testified, I done that [called Dunn] because my wife was pressuring me And when asked what he would have done if he had been offered a job at that time, Simmons testified I wouldn't have went to work " It is therefore clear from the testimony of Simmons that he did not in fact make a bona fide unconditional offer to return to work I therefore conclude that the Re spondent did not violate Section 8(a)(3) of the Act by re fusing to reinstate him in January 1984, and will recom mend that so much of paragraph 20 of the complaint as it relates to Douglas Simmons be dismissed 3 The other nonmisconduct cases The Respondent does not deny its duty to reinstate the strikers on their unconditional offer without discrimmat ing against them It contends this duty was fulfilled to the extent required by the Act The Respondent defends its failure to reinstate the individuals named in the com- plaint on one or more of several grounds the nonrein stated strikers did not make an unconditional offer to return to work, the Respondent had a legitimate and sub stantial business justification for not recalling all the strikers inasmuch as the Hotel's worsening financial con dition meant that fewer jobs were available , many of the strikers were not reinstated because they engaged in strike misconduct, Union Agent B J Smiley submitted a list of former strikers who did not want to return to work for various reasons, and Roy Campbell was not re instated because he was not a striker Finally , counsel for the Respondent argued If an anti union motive be found or inferred in any of the Hotel s actions, all of which is denied, the Hotel relies upon the doctrine an nounced in Wright Line 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982), as justifying any action it took affecting the al leged discnminatees ' In addition to the above defenses as set forth in its brief, the Respondent's testimony and other argument suggests that certain of the strikers were not reinstated because they did not attend the required orientation ses sions, did not return when called for work , or had some sort of physical impairment that prohibited their return ing to work Although the facts relating to the 50 employees listed in Appendix A of the complaint, as amended, vary some what there are certain general principles applicable to them all Establishing that an individual was a striker who made an unconditional offer to return to work and was denied, proves a prima facie violation of the Act See generally Great Dane Trailers, supra, and for strike misconduct, Rubin Bros. Footwear, supra The fact of nonreinstate ment of individuals who engaged in the protected activi ty of striking implies a discriminatory motive And in matters apart from picket line misconduct, as with picket line misconduct, the employers good faith belief, or an administrative mistake is not sufficient to exonerate it The Respondent makes the general assertion that none of the striking employees and particularly those not rein stated, made an unconditional offer to return to work The Respondent cites no evidence in support of this con tention On the contrary, the record is quite clear that all the strikers, through the Union, offered to return to work, and the Union was treated by the Respondent as the agent for this purpose Indeed, Dunn testified that in preparing for the orientation sessions following the cessa tion of the strike, she contacted union officials with the 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD names of strikers to be recalled and the date of the on entation session which they were to attend Further, it is quite clear that in negotiating the collec tive bargaining agreement along with the end of the strike, representatives of the Union made the requisite re quest on behalf of its members to return to work Such clearly follows from the negotiation sessions leading to execution of the strike settlement agreement , and is, at a minimum, implicit in the strike settlement agreement in which it is stated, 1 All striking employees shall be re called to work in the classification which they held prior to striking ' A bargaining agent has the authority on behalf of its members to make requests and receive from the employ er offers of reinstatement See, e g , Bagel Bakers Council of Greater New York City, 226 NLRB 622 (1976), Airport Parking Management, 264 NLRB 5 (1982) I therefore conclude that the Respondent's defense that none of the employees listed in the complaint made unconditional re quests for reinstatement is unmentonous As to the general business justification the Respondent brought forth no evidence tending to indicate that its business was less viable at the end of the strike than at the beginning There is no evidence to support the con clusion that the Respondent had fewer jobs available in April 1984 than it had in October 1983 To the contrary, the end of the strike brought execution of a new collec tive bargaining agreement in which the Union made sub stantial concessions which the Respondent argued during negotiations (and in this proceeding) were needed to continue in business profitably I therefore reject, as not being supported by sufficient objective evidence, the Respondents assertion that it was economically justified in not rehiring any of those strikers named in the coin plaint The Respondents other general defenses are arguably supported by evidence relating to the individual situa tion The circumstances surrounding the denial of rein statement to those individuals named in Appendix A of the complaint will be treated individually James V Anderson Dunn testified that Anderson was not recalled because he was only available for work on Saturdays and Sundays He had a full time job with an other company and he refused to work 14 May 1984 " The record evidence however establishes that at the time of the strike Anderson was a part time employee working only on weekends, therefore, he was entitled to be reinstated to his former position There is no evidence that Anderson was contacted and declined employment There is simply the statement by Dunn that he was un available for full time work I do not take her testimony as meaning that she contacted him and he declined to return to work on 14 May 1984 Had this been the fact, presumably she would have so testified In any event, since 14 May was a Monday even if Dunn s testimony is accepted at face value hers was not a reasonable offer of reinstatement Anderson was a part time weekend employee prior to the strike, and was enti tled to be reinstated to his normal hours and days What ever contact Dunn made with Anderson, from her testi mony such was not sufficient to satisfy the Respondent's duty to offer Anderson full and complete reinstatement to his former job I therefore conclude that by failing to reinstate Anderson, the Respondent violated the Act Backpay will be calculated from May 12, the nearest Sat urday to the date the Respondent asserts it would have reinstated Anderson Shirley Ann Barnes had been a part time cashier prior to the strike and, as was known to the Respondent had a full time job at a local bank Following the end of the strike, Dunn called Barnes concerning her availability Barnes said that she would like to come back Dunn then specified the hours Barnes would need to be available would be from 4 00 to close on some days and from 6 00 to close on some days Barnes stated that she would check with her bank supervisor to see if she could arrange availability during these hours, and subsequently called Dunn back stating that she would be able to work an early shift at the bank and would be available to work at the Hotel at 4 or 6 p in According to Barnes testimo ny, undenied by Dunn, Dunn told me that she would get back with me in a couple of weeks and let me know when I was to come in for orientation Barnes has heard nothing further from the Hotel since that date Dunn simply testified that Barnes name was on a list submitted by the Union of individuals who were not in terested in reinstatement But Barnes testimony belies whatever lack of interest the Respondent thought she had The Respondent gave no explanation about why Barnes has not been recalled, and its failure to do so is clearly violative of Section 8(a)(3) Barnes is entitled to an offer of reinstatement and backpay Joyce Brown was a maid who went on strike and who walked the picket line until February 1984, when preg nancy prevented her from doing so The baby was born on 10 July 1984 and following her 6 week (about 24 August) checkup Brown contacted the Union (B J Smiley) and was advised to contact the Hotel Brown called the personnel department explaining that she was ready to come back to work She was told she no longer had a job because the Hotel did not have a formal medi cal leave of absence for her Brown acknowledged that she did not request preg nancy leave She learned she was pregnant only after the strike began The Respondent apparently contends that it was not required to reinstate Brown because during the strike she had not requested a medical leave of absence Although it is true that Brown did not in fact request a leave of absence to allow this formalistic omission on the part of one engaged in a strike to relieve the Re spondent of its obligation to reinstate all the strikers is unwarranted The Respondent had the duty, under the Act and the strike settlement agreement to offer Brown reinstatement Perhaps by August 1984 the Hotel was fully staffed and there were no jobs available However, such is not the import of the Respondents defense There is no indication in the record that work was not available for Brown in or after August 1984 Nor does the Respondent maintain that it was somehow prejudiced by Brown s failing to apply for a medical leave while she was on strike or after the strike was settled HOTEL ROANOKE 201 Dunn testified that when she called Brown, Brown stated that she had been pregnant and requested not to be recalled until after August Dunn testified, I alerted her to the fact that I would not be there after July and for her to call Sharon Smith and let her know when she was able to return to work " Dunn did not testify that she told Brown she would have to file a request for a pregnancy leave of absence, or otherwise indicate she would not be allowed to return to work with the other strikers I believe under the circumstances of this case, the Hotel had an obligation to recall Brown on her request in August, if there were jobs available (and there is no evidence in this record that jobs were unavailable for Brown) The claimed defense that Brown had failed to file a formal request for a leave of absence is spurious Not only is the Respondents defense formalistic in the extreme, given that Brown was on strike and therefore not working, but when contacted by Dunn in the spring of 1984, Dunn did not indicate that the Hotel required her to make such a formal application I therefore con elude that this contention is an after the fact attempt to justify the Hotel s failure to recall a striker who should have been recalled I conclude that whatever minor omission in form Brown may have made in not applying for a pregnancy leave of absence while she was on strike, such is insignificant and does not justify the Re spondent's failure to recall her I conclude that the Re spondent's defense in this respect is unmentonous and that it violated the Act in failing to recall Brown in August 1984 She is entitled to an offer of reinstatement and backpay from 24 August 1984 Dunn testified that Robert Brown was notified to report for orientation on 23 May He did not show up and he did not call explaining his absence This is of fered by the Respondent to justify its failure to reinstate Brown Brown, on the other hand , testified that he never re ceived any notification to attend an orientation meeting and that when he finally learned he was to be recalled, he made three calls to the Hotel personnel office He fi nally reached Dunn and explained to her why he had failed to attend the orientation session of 23 May Dunn simply told him that his employment had been terminat ed There is no indication in the record that in fact Brown was personally contacted To the contrary, the evidence supports a conclusion that in fact notification to Brown was attempted via word of mouth contact between Dunn, or someone in the personnel department and the Union to Brown s former girl friend In any event there is no evidence to justify discrediting Brown 's testimony that in fact he did not receive actual notice, in any way, of the orientation meeting Further , I credit Brown's denial that he knew of the orientation session I further credit that Brown took immediate steps to get his job back on learning that he had been called Even if the Respondent was entitled to require attend ance at an orientation session of all returning sinkers (which it was not infra), it is clear from the evidence in this matter that Brown's failure to attend was excusable and through no fault of his own Therefore the Company was unjustified in refusing to reinstate him He is entitled to an offer of reinstatement and backpay from 23 May 1984 The Respondent relies on the following testimony of Peter Kipp in arguing that it was justified in not recall ing Roy Campbell A Mr Campbell had not been well and we, as I recall, we did not feel because of his illness that he would have made an acceptable employee Q What was the nature of his illness? A He had, I believe, cirhossis [sic] of the liver Q Do you know what caused this? A Alcoholism Q Was he an alcoholic? A To the best of my knowledge he was In short, the Respondent argues that as a result of his alcoholism Campbell `was not a striker , notwithstand ing that the Union paid him strike benefits The Re spondent also relies on the testimony of James Wade to the effect that prior to the strike , the Hotel had sufficient basis for discharging Campbell had it wished to do so Of course the Respondent could have discharged Campbell for his perceived alcoholism Indeed , the law is well settled that an employer does not run afoul of the Act in discharging an employee for any reason it chooses other than those specifically proscribed But the fact that the Respondent had justification for discharging Camp bell prior to the strike does not exonerate it for unlawful ly failing to recall him after the strike In effect the Hotel argues that it was entitled to exercise its prestrike option to discharge Campbell after the strike was over To accept this argument would effectively negate em ployees' Section 7 and Section 13 right to strike If an employer does not exercise its right to discharge a par ticular employee, for whatever reason, prior to his and other employees engaging in protected activity, the em ployer may not use that justification following the end of the strike to refuse to reinstate him When a strike ends, an employer has the statutory ob ligation to reinstate the status quo notwithstanding that it might want to be rid of one or more of the strikers for reasons unrelated to their protected activity Because the Respondent had not exercised its right to discharge Campbell prior to the strike of 1 October, and because the record evidence is clear that even though debilitated Campbell associated himself with fellow em ployees in the strike (and was given strike benefits) I conclude that the Respondent was obligated to reinstate him on the same basis that it reinstated other employees Only after reestablishing the prestrike status quo was the Respondent at liberty to reevaluate Campbells situation and terminate him then if the facts so indicated I shall therefore recommend that the Respondent be ordered to offer reinstatement to Roy Campbell, and make him whole for any loss of wages he may have suf fered from the time he would reasonably have been re called Esther Emerson was a full time clerk in the gift shop and participated in the strike She was called to attend the 23 May orientation meeting and in fact did so Nev 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ertheless the Respondent did not recall her for work The Respondent brought forth no evidence to explain why Emerson was not recalled nor does the Respondent make any argument concerning this situation other than its general assertions Inasmuch as Respondent was obligated to recall Emer son to her former job and failed to do so, the Respond ent prima facie violated the Act Because the Respondent brought forth no evidence to justify its action I must conclude that it violated the Act in not recalling Emer son following the 23 May session She is entitled to an offer of reinstatement and backpay from the date Edward Ernouf was a full time (40 hours per week) employee for the Respondent prior to the strike He worked two (or if necessary three) shifts as the night auditor and the other two or three nights a week as a cashier Prior to the strike Ernouf also was a full time employee of the Patrick Henry Hotel in Roanoke but because he did the scheduling at the Patrick Henry there was never any conflict between these jobs Ernouf credibly, and undeniably, testified that he was contacted by Smiley to call Dunn concerning being rein stated following the end of the strike He reached Dunn who told him that he was to report for an orientation session the next morning the Thursday following the end of the strike and was to report to work the follow ing Monday, 23 April at 3 p m He told her that given the short notice he would be unable to arrange his schedule at the Patrick Henry in order to return to work on Monday Dunn said that he would then be put at the bottom of the recall list and that she would recall him after the others He talked to her again about this matter at the orientation session and told her that he would know definitely by Friday if he would be able to work the following Monday On Friday he called her again stating that he had been unable to resolve the conflict and as she had earlier suggested perhaps he should be put at the bottom of the recall list Dunn told Ernouf at that time, if you can't come on Monday I will have to lay you off He told her that she said earlier he would be placed at the bottom of the recall list She stated that she could not do that Ernouf has not since been recalled to work nor has he heard from the Hotel concerning his job The Respondent seems to maintain that inasmuch as Ernouf did not accept the schedule for which he was se lected by the Company at the time the Company indicat ed he could return to work, he forfeited his recall rights I conclude that Ernouf was entitled to reasonable notice of his reinstatement, particularly given the fact that the Hotel knew he worked another full time job That he was unable to accept work on the precise day it was of fered, given such short notice could not bar him from further consideration for reinstatement Individuals who engage in the statutorily protected ac tivity of striking are entitled at the end of the strike to return to the status quo in a reasonable fashion Reinstat trig strikers is not an exercise in requiring them to submit to arbitrary standards set by the employer nor should the burden put on them be unreasonable In this case it was known to the Hotel that Ernouf had another full time job with a competing hotel, because, since he was in charge of scheduling at the other place he could, with reasonable notice, arrange his schedule to comply with the Respondents needs Thus, the Respondent was re quired to give Ernouf reasonable notice so that he could, in fact return to work as he had in the past Anything less than reasonable notice to him was not a real offer of full and complete reinstatement I therefore conclude that by considering Ernouf laid off' because he did not accept the precise schedule he was offered, under these circumstances, was a denial of reinstatement to him and a violation of the Act I shall recommend that he be offered full and complete rein statement and backpay Because the Hotel recalled him for 23 April, but because he was unable to commence work that day I conclude that a reasonable date to set backpay would be the following week-30 April It should be noted that Ernouf did not lose his status as a striker entitled to reinstatement as a result of his work at the Patrick Henry Hotel inasmuch as such pre dated the strike The Patrick Henry job cannot be con sidered full time employment elsewhere within the mean ing of the Act because it was not a substitute for the job from which he was striking Julie Hampton had worked in the cafeteria for the Re spondent since 1978 During the entire course of her em ployment and before, she was under the care of a psy chiatrist and during the time of her employment was on Melindone, which is, apparently a mood altering pre scription drug Dunn testified that Hampton was not recalled because, Ms Hampton is not mentally capable or stable She is a client of the mental health services and relies on strong medication to stabilize her moods' Dunn testified that she talked to a social worker whom she could not iden tify, who told her the medication was a mind altering drug and also a mood altering drug and if she did not maintain the medication level instructed and those levels change periodically that she would be a hazard to herself working with the type of equipment she had to work with Dunn further testified that she checked with a local doctor concerning Melindone and made the deter mination Hampton should not be recalled, and she was not Not hearing from the Company during the recall of other employees Hampton contacted the personnel de partment and was advised that she was not on the recall list It was suggested that she go to the Union She did and was told by James Wade to secure a doctor s state ment concerning the medication she was taking She did so The statement dated 21 May 1984 signed by Dr Evelyn Wade, reads The above patient is followed by Mental Health Services Extended Ca'e She is on only one medica tion, Melindone She takes this as directed, is on a stable level We see her only every three months She is able to work Inasmuch as Hampton s condition was known to the Hotel at the time she was hired and at least 5 years prior to the strike, and inasmuch as the doctor s statement does not indicate any reason why she could not be returned to HOTEL ROANOKE her job (notwithstanding her condition and medication), I conclude that the Respondents refusal to reinstate Hampton was unjustified Thus the Respondents refusal to restore Hampton to the status quo was violative of the Act Though Dunn may have had a good faith belief that Hampton is on sufficiently strong medication to render her unemployable, such was rebutted by the only compe tent objective evidence concerning Hampton's medical status-the report from her treating physician Thus, even if Dunn's belief was sufficient to meet the Respond ent's burden in failing to reinstate a striker , such was re butted I therefore conclude that the Respondent's refusal to reinstate Hampton was violative of the Act, and I shall recommend an appropriate reinstatement and backpay remedy Martha Henry worked for the Respondent approxi mately 30 years as head cashier in the kitchen depart ment Dunn testified that during the recall period, Henry came to an orientation session and was scheduled to return to work on the night shift but told Dunn that she would be unable to do so because the only transportation available to her was public and it was available only during day shift hours Dunn told Henry that she would call her for the next available opening on the day shift Dunn testified, credibly I believe, that within a few days she in fact called Henry and talked to her Dunn testified that she had difficulty communicating with Henry at the time and that Henry seemed unable to un derstand the import of what Dunn was saying Dunn fur ther testified that she discussed this matter with B J Smiley-telling Smiley that she had had a conversation with Henry but Henry was apparently intoxicated and unable to understand While Smiley testified to a conversation she had with Dunn concerning Henry, she denied the substance of Dunn's testimony Smiley testified generally that in her conversation with Dunn, she told Dunn that if the Hotel would take Henry back only on the night shift that she would be willing to give Henry a ride The conflict between the testimony of Dunn and Smiley in this regard is resolved in favor of Dunn, though both versions are sufficiently lacking in detail and reasonableness to be questionable Thus it really does not seem probable that a 30 year employee whose total life revolved around her job would not take further steps to ensure reemployment after being called by Dunn But there is no indication in this record that following her at tendance at the orientation meeting Henry followed up in an attempt to secure reinstatement On the other hand, it is not reasonable that the Union would not support such a senior and apparently capable employee seeking to return to her precise prestrike job But such is the import of Smiley's testimony I conclude that in fact Dunn contacted Henry and for whatever reasons Henry did not respond Thus, the Re spondent did make reasonable efforts to reinstate Henry and satisfied its obligations under the Act and the strike settlement agreement In addition to what I consider to be Dunn s positive demeanor when testifying, I note that for some time she 203 has not worked for the Respondent and no longer lives in the Roanoke area Other than the fact that she was an employer representative at the time of the facts in this matter, there is no particular reason to conclude that Dunn would in any way slant or alter her testimony in favor of one party or the other In general I found Dunn to be a credible witness Charles W McQueen was a part time waiter who in jured his knee before commencement of the strike, and as a result was unable to work until March 1984 He was not recalled to work because, according to the testimony of Dunn, he had been off work and had not applied for or received a leave of absence Therefore he was consid ered by Respondent to have been terminated prior to the advent of the strike The General Counsel and the Charging Party general ly contend that McQueen had told his two immediate su pervisors he had been injured and was unable to work Therefore, whatever requirement there may have been for him to request a leave of absence should be waived, and inasmuch as McQueen associated himself with the strike he was entitled to reinstatement The 1983 contract specifically provides that consider ation will be given for any reasonable request for a leave of absence but, (A) written request for a leave of ab sence is to be submitted to Management, with a copy to the Union The contract is explicit In order to be enti tled to a leave of absence an employee must make a writ ten request therefor Unquestionably, McQueen made no such written request nor can I conclude from his tests mony that by telling his supervisors of his injury he satin feed the contractual requirement On this record it ap pears that McQueen would have been considered terms nated by the Respondent and would not have been rein stated on his application in March had there been no strike There is simply nothing persuasive in the record to negate Dunn s credible testimony that McQueen was considered terminated prior to the strike and was not a striker entitled to consideration for reinstatement Because the record establishes that in fact McQueen was injured and was off work for some period prior to the strike and did not apply for or receive a leave of ab sence, I conclude that he was not an employee at the time of the strike Therefore he was not entitled to rein statement Although the record is sketchy it appears that Brenda A Mason injured her back in 1981 for which she was treated by Dr Robert S Widmeyer (an orthopedic sur geon) or Dr Darwin J Ferry Jr (a neurologist), or both In evidence is a note from Dr Widmeyer dated 14 May 1984, that as a result of being treated for lumbar disc disease, ' the condition requires occasional use of Darvocet N-100 Dr Darwin J Ferry submitted a report, dated 17 May 1984, stating that Mason was diag nosed as having "low back pain and patient requests verification that she was released to return to work on 12/7/81 Mason was called to attend an orientation session during which there was discussion about blood tests and urinalysis Mason spoke up stating that a lot of people 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD take nerve medication and that she took occasional medi cation for her back pain This statement apparently caused Dunn to reconsider reinstating Mason Dunn testified that in consultation with Kipp and Gardner it was decided not to reinstate Mason Because she was taking pain medication, such posed a safety hazard relating to Mason s job as a steam press operator in the laundry The only evidence concerning the type of medication Mason takes are the reports from her treating physicians concerning the requirement for occasional use of Darvo cet N-100 and her testimony that she takes it only when her back pain is severe Apparently Mason was injured in a job related acci dent At least, when she hurt her back in 1981 the Hotel was aware of it and was aware that she was off work as a result of this condition, for which she was released to return to work She returned to work nearly 2 years prior to the strike Given that Mason was known to have had a back injury but had come back to work, and the absence of evidence that either her back condition or the occasional requirement for pain medication in fact posed any kind of a safety problem, I conclude that the Respondent did not establish sufficient justification for refusing to recall Mason following the termination of the strike Further the Respondent offered no evidence that Mason could not have worked elsewhere if in fact Dunn and others truly believed she should not operate a steam press Accordingly I conclude that the Respondents failure to recall Mason was violative of the Act and that she is entitled to reinstatement and backpay Concerning the inquiry by Frederic Munnerlyn of 30 August 1984 as to why he had not been recalled, Sharon Smith, the then personnel manager, wrote on 31 August 1984 In reviewing your file I found that you were scheduled for a mandatory orientation on May 15 1984 You neither attended the orientation nor called to explain your absence As this meeting was mandatory, your position was filled by another person and is no longer available The substance of the letter was apparently taken from Munnerlyn s personnel file and substantially corroborates the testimony of Dunn that Munnerlyn had not attended the orientation session for which he was scheduled Munnerlyn testified that although he was sick on the day of the orientation session, he nevertheless did show up albeit a few minutes late He testified that Dunn re fused to let him into the meeting This testimony was corroborated by two employees who attended the 15 May orientation meeting and one who attended an on entation session on 23 May stating that Munnerlyn ap peared at that meeting Munnerlyn s testimony was also corroborated by James Wade Munnerlyn testified that following the meeting from which he had been banned, he did talk to Dunn in her office, words were exchanged and he left He has not been contacted by the Hotel subsequently Dunn was not asked about meeting with Munnerlyn and neither con firmed nor denied Munnerlyn s testimony in this regard She did testify, however, that those who showed up late for orientation sessions were not allowed to attend, if she had already begun her presentation Thus, there is no real direct conflict between Munner lyn s testimony and Dunn s From the composite of the record, it appears that in fact Munnerlyn was scheduled for an orientation session, that he did show up but was late and was not allowed to attend And thereafter he was not further contacted by the Company until the 31 August response to his inquiry Without getting into whether Dunn was justified in ex ciuding Munnerlyn from the orientation meeting when he arrived late, or how late Munnerlyn was, I conclude that the Respondent was not justified in requiring attend ance at an unpaid orientation session as a necessary pre requisite to reinstatement The starting point of any analysis regarding the rein statement of strikers is that on application they have the right to their jobs, and for the company to put up road blocks and set conditions to deny reinstatement is, prima facie discriminatory NLRB v Fleetwood Trailer Co 389 U S 375 (1967) However, conditions for reinstatement can be justified and if the company is able to prove their necessity they are permissible In any event, for any conditions imposed on the reinstatement of strikers, the company has the burden of establishing legitimate and substantial business justifications for the conduct NLRB v Great Dane Trailers, supra at 34 Where a company imposed the mandatory require ment of an individual interview with management as a condition precedent to reinstatement without proving a legitimate and substantial business justification denial of reinstatement for failure to meet the interview was violative of the Act Scalera Bus Service 210 NLRB 63 64 (1974) Thus, with the few exceptions noted above and to be discussed below regarding strikers engaged in picket line misconduct on the termination of a strike, the Respond ent has an absolute obligation to reinstate unfair labor practice strikers to their former jobs discharging, if nec essary any replacements Certainly an employer may require attendance at an orientation session and may give employees instructions concerning their jobs as well as company procedure and policy However to require attendance at an unpaid on entation session outside working hours as a precondition for reinstatement is not patently justifiable, and the Re spondent brought forth no evidence to establish the ne cessity for such a requirement in this situation The Re spondent could just as easily have reinstated the strikers to their former jobs and then had orientation meetings for them if that appeared necessary At least there is nothing on this record to indicate the necessity for re quiring attendance at unpaid orientation meetings prior to reinstatement In the case of Munnerlyn, as indicated the composite of the testimony is that he did not show up on time for the orientation session and was sufficiently late that Dunn did not allow him to attend However he was in fact there on the day designated Even if attendance at an orientation generally could be found an acceptable re HOTEL ROANOKE quirement, the Respondents denial of reinstatement to Munnerlyn was not justified under any kind of a rule of reason Accordingly, I conclude that by denying Munnerlyn reinstatement because of his failure to attend an orienta tion session, the Respondent breached its obligations to reinstate him and therefore violated the Act Munnerlyn is entitled to reinstatement and backpay from 15 May 1984 the date he would have been reinstated but for the Respondents unfair labor practice Alfreda Sayles testified that she was contacted by B J Smiley on the evening before 23 May and told to report at 8 the next morning for an orientation session Inas much as Sayles had obtained a part time job during the strike and would not be able to make the orientation ses Sion at that time, she called the Hotel the morning of 23 May She testified that she tried to reach Dunn but was unable to do so, and talked to somebody who identified herself as "Sharon " Dunn testified that her notes reflect she personally contacted Sayles and gave her 3 days notice of the 23 May orientation session Smiley was not interrogated concerning this matter and therefore neither confirmed nor denied Sayles testa mony that she had been contacted by Smiley rather than Dunn Although there appears to be a credibility conflict be tween Dunn and Sayles concerning how and by whom Sayles was contacted with regard to attending the onen tation session, a conflict I resolve in favor of Dunn, I do not believe such is material As I conclude that the Com pany failed to justify its requirement that employees attend a nonpaid orientation session prior to being rein stated, the fact that Sayles did not show up on 23 May is insufficient to deny her reinstatement As noted however, I do credit Dunn that Sayles was contacted by her directly Although Dunn testified after reviewing Sayles personnel file rather than from an in dependent recollection of the events, I nevertheless credit her There is no apparent reason why Dunn would fabricate her testimony regarding Sayles at the time of the hearing or make incorrect entries on her contempora neous notes Sayles version on the other hand , was not corroborated by Smiley I find that Sayles in fact was notified of the orientation session for 23 May and did not physically report to the Hotel at any time She simply tried to make contact by telephone which she must have known was generally unacceptable And when she talked to Sharon' she re ceived no satisfaction Thus, the equities in this matter tend to mitigate against Sayles Though the Respondent did not justify its requirement that all employees attend an orientation session prior to being reinstated , to set a report day with some reasonable flexibility, is permissi ble Coca Cola Co of Memphis 269 NLRB 1101 (1964) Sayles did not avail herself of the opportunity to return to work, and is therefore not entitled to reinstatement and backpay Darlene Smith was not reinstated because according to Dunn, "she was not available for work She was in school also She was young and in school ' Dunn of 205 fered no basis for this contention and there is none in the record The Respondent argued on brief that Darlene Smith s name appeared on a list submitted by B J Smiley of in dividuals who would not be coming back because they had other jobs, had retired, or were out of town In fact however, Smith s name does not appear on this list as as serted by counsel Whatever may have been Dunn s good faith belief concerning Smith s status the undisputed facts are that Smith was an employee prior to the strike, joined in the strike, and was not offered reinstatement by the Compa ny following execution of the contract and the strike set tlement agreement Inasmuch as I have concluded that the Union made application for reinstatement on behalf of all striking employees, and since there is no justifica tion on this record why Smith should not have been re instated, I conclude that the Company violated the Act by failing to reinstate her It may well be that in the confusion of putting back to work a large number of employees on a staggered basis, Dunn made a mistake with regard to Smith Such, how ever, would not excuse Respondent A mistake such as this, if there was one, is chargeable to Respondent Ac cordingly, I will recommend an appropriate reinstate ment and backpay remedy with regard to Darlene Smith Cherlyne Taylor was called and attended an orientation meeting She was not thereafter reinstated and Dunn was unable to give a reason why Because the record establishes that Taylor was a strik er on whose behalf the Union requested reinstatement and was not reinstated prima facie the Respondent vio lated the Act in failing to do so No evidence was pre sened to justify its action Accordingly I conclude that by failing to reinstate Cherlyne Taylor the Respondent violated the Act and should be required to offer her rein statement and backpay According to Sharon Smith s letter to Sarah Taylor dated 19 September 1984 our files indicate you were terminated from employment of Hotel Roanoke due to failure to report for Mandatory Orientation scheduled on 5/23/84 You neither called nor reported explaining your absence The substance of this letter corroborates Dunn s testimony concerning what the personnel record of Taylor shows On the other hand, Taylor testified, credibly I believe that in fact she was called by Dunn to attend the onenta tion session on 23 May and did so Dunn testified that she did not know many of the returning strikers and spe cifically did not know Taylor, and her testimony is based only on notes made at the time Without impugning a sinister motive to Dunn, from these facts she certainly could have been mistaken with regard to whether Taylor in fact attended the orientation session In any event, as I have concluded that the requirement of attending mandatory orientation as a precondition for reinstatement was unlawful, I conclude that the Re spondent s terminating Taylor for this reason was unlaw ful I conclude that Taylor is entitled to reinstatement and backpay 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dunn testified that Michael Wells had been convicted of a felony in December 1983 while on strike, and he had had a criminal record dating from 1980 Dunn testi fled the contract provided that employees must be free from any felony convictions Though he was called back for orientation, when it was brought to her atten tion that he had been convicted of a felony in December 1983, he was dismissed for that reason Although it appears that Wells in fact has a criminal record of one or two misdemeanor convictions, there is no evidence that in fact he was ever convicted of a felony The Respondent brought forth no evidence of such other than Dunn s assertion Specifically, the Re spondent did not seek to introduce any kind of court record nor did the Respondent offer the testimony of anyone who professed to know first hand or from in spection of court records, whether in fact Wells had been convicted of a felony Dunn testified that she learned of Wells alleged conviction as a result of the on going security investigation occurring simultaneously with the orientation sessions The Respondent, however did not call as a witness whoever it was who was sup posed to have conducted the investigation of Wells On the other hand, Wells testified that he has never been charged with nor convicted of a felony There is simply no reason in this record to discredit Wells or to conclude that he was convicted of a felony during the course of the strike There is some indication, particularly in the testimony of Kipp, that the reason advanced by Dunn was not the sole basis for the Company's refusal to reinstate Wells He had been accused of stealing a ham from the Compa ny (an allegation which went to arbitration and Wells was exonerated) And there is testimony concerning an Equal Employment Opportunity Commission (EEOC) charge filed by Wells against the Hotel and some discus sion with Dunn concerning it But these matters are largely immaterial because the reason asserted by the Re spondent for denying Wells reinstatement was solely the allegation that he was convicted of a felony in December 1983 Inasmuch as the Respondent failed to establish the fac tual basis for denying Wells reinstatement, I conclude that it was not justified in acting as it did I therefore conclude that the Respondents asserted reason for not reinstating Wells lacks sufficient basis to exonerate it from its duty to reinstate him By failing to do so the Re spondent committed an unfair labor practice and an ap propriate remedy will be recommended It appears from the testimony of Dunn that Barbara Bowling was denied an opportunity for reinstatement be cause pnor to the strike, she had been off work for med ical reasons and had made no application for a medical leave of absence, nor was there any approval of one Dunn testified, `She was not recalled because she made no attempt in the time that I was there to get in touch with me or to let me know of her medical status and that she wished to return to work " Bowling on the other hand testified that she was off work from 30 November 1982 until 21 March 1983, and was off again from a second operation, on 17 August She testified that on or about 20 November (following the beginning of the strike) she was released by her doctor to return to work and so notified the Hotel send ing it a copy of her medical release via her husband Bowling testified that during this period she had a tele phone conversation with Dunn at which time Bowling told Dunn the doctor was releasing her as of 20 Novem ber Also about this time she talked with Stables, her su pervisor, who said that she was not scheduled for work because she still was considered on sick leave According to Bowling, she told Dunn she was in the Union and was going on stnke In fact she began walk mg the picket line on Saturday night, 20 November Dunn did not deny that she had such a conversation with Bowling Bowling was not offered reinstatement following the end of the strike It is technically true that Bowling did not apply for or receive a medical leave of absence However, in light of her undenied testimony (concerning her medical ab sences and the fact that she did contact the Company in November 1983 on her release), I conclude that the Re spondent was well aware that Bowling had been released to return to work and at that time associated herself with the strike On the record before me, I conclude that the Re spondent has not proved a reasonable or substantial justi fication for denying Bowling reinstatement I conclude that Bowling continued to be an employee and did in fact become a striker at the time that she could have re turned to work As such she was entitled, along with the other strikers, to reinstatement I conclude that the Respondent violated the Act by not recalling Bowling and that Bowling is entitled to an offer of reinstatement and full backpay Gladys White is a striker who was not reinstated Her name was added to the complaint after the initial testi mony of Karen Dunn Dunn was subsequently recalled during the Respondents case in chief but was not inter rogated concerning White Therefore White s testimony is undenied In addition, she was a generally credible witness White was a waitress in the banquet department Fol lowing termination of the strike and during the recall of employees White was contacted by Dunn to attend an orientation session There was apparently miscommunica tion between her and Dunn when White showed up at the Hotel on a Monday, she was advised that Dunn was out of town that there was no orientation session that day, and the one which she was supposed to have at tended was the previous Thursday White was advised that she would be recontacted but she was not Thereaf ter on several occasions, White contacted the personnel office but has not been recalled There is simply no evidence in the matter to justify the Respondents refusal to reinstate White And, there is ample evidence that White made repeated contacts with the Hotel seeking reinstatement I therefore conclude that the Respondents refusal to reinstate White, at least by the end of the 90 day period following execution of the strike settlement agreement was violative of the Act HOTEL ROANOKE and an appropriate reinstatement and backpay remedy will be recommended 4 The stnker misconduct cases In addition to the strikers who were denied reinstate ment named above, the Respondent also refused to rein state some individuals whom it alleged had engaged in such egregious misconduct associated with the strike as to render them unfit for further employment During the course of negotiating the strike settlement agreement, the parties were unable to agree about which, if any, of the strikers should be denied reinstatement on this basis They left determination of this issue for the Board Prior to trial the number of individuals said to have been denied reinstatement for strike misconduct vaned Liti gated before me were 31 cases of denied reinstatement based on egregious strike misconduct The parties are in general agreement concerning the test to determine whether an individual was lawfully denied reinstatement because of strike misconduct As with other causes for denying reinstatement the starting point in analyzing these matters is that employees have a statutory right to strike and may not subsequently be dis criminated against because they exercise this right In general, a striker who has offered himself for reinstate ment must be given his job back (A different set of rules, not material here, apply to permanently replaced economic strikers) In recalling employees a company may adopt certain reasonable rules and procedures re garding showup, notification, and the like But in gener al, the employer may not create artificial barriers or oth erwise discriminate against strikers, and this holds for employees whose conduct during the strike the employer finds objectionable The mere fact that an employer does not like something a striking employee has done in con nection with the strike is an insufficient basis to justify denying the striker reinstatement Indeed, long ago the Supreme Court noted that during strikes employees sometimes engage in moments of animal exuberance " Milk Wagon Drivers Union v Mea dowmoor Dairies 312 US 287 293 (1941) Thus name calling minor threats, mass picketing, and the like are generally not deemed sufficient to deny employees their statutory protection However, when the striker has stepped over the line and engaged in threats of physical violence actual physical violence or property damage, such has a coercive effect on the rights of other employ ees The individual involved in such conduct may be deemed unfit for further employment and be denied rein statement The Board s most recent definitive pronouncement in this area is Clear Pine Mouldings supra There the Board stated that verbal misconduct justifies denying reinstate ment, if "the misconduct is such that under the circum stances, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act " In order to meet this standard, however the employer must offer proof by objective evidence that the verbal misconduct for instance meets the test Thus in a recent matter the Board held that a physical assault by a stnker was sufficient to deny that striker reinstatement Howev 207 er, the statement by another striker to a driver at the time of the assault, Don t get on the radio, was insuffi cient to establish that the second striker had associated himself with the assault sufficiently to deny his reinstate ment Buffalo Concrete, 276 NLRB 839 (1985) To summarize a myriad of cases, totally benign behav for is not required on the picket line However, where strikers physically assault others or threaten to do so when the threat has the immediacy of reality or when they engage in property damage, then such is sufficient to justify the employer denying them reinstatement In Rubin Bros, supra the Board delineated the order of proof in these matters To establish a prima facie vio lation of the Act the General Counsel need show only that the individual in question was a striker who had been denied reinstatement The burden then shifts to the employer to establish its good faith belief that the mdi vidual engaged in egregious strike misconduct The burden then shifts back to the General Counsel to prove that the individual in question did not engage in the al leged activity Thus, the employer may establish through hearsay evidence, for instance, that an individual has en gaged in strike misconduct (typically security officer or police reports) its good faith belief, but such reports may be countered by direct evidence denying the substance of the report Where such occurs, then the employer is at liberty to rebut the denial or argue that the denial is un trustworthy Before getting into this matter of who has what burden and whether the burden has been satisfied by suf ficient proof, the threshold question is whether the al leged misconduct is of sufficient magnitude to deny rein statement If the misconduct is trivial then it does not matter whether it in fact occurred Within these parameters of analysis each case must be separately considered on its own facts Clifford A Bratton was denied reinstatement because on 5 October he was observed by Security Officer Willie E O'Neal throwing an object (or objects) over the fence and onto the Hotel parking lot 0 Neal testified consist ent with his report at the time that upon observing Brat ton and others do this he contacted the police who ar rived shortly thereafter Bratton admits that he was picketing on the morning in question and that the police did interrogate him con cerning a report they had that he had thrown something on the parking lot Bratton denied to the police and denied in testimony before me that he in fact threw any thing on the parking lot The Respondent submitted no evidence concerning what it was that Bratton was supposed to have thrown, nor was there any circumstantial evidence concerning objects found in the parking lot after this event allegedly occurred From 0 Neal s mere observation without followup in vestigation it is difficult to conclude that Bratton en gaged in activity of such an egregious nature as to affect the Section 7 rights of other employees For instance simple littering would fit within Bratton s testimony and incident report but such is scarcely of such significance 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as to deny one his protection of the Act-uncivil as it may be Further, I tend to credit Bratton s denial that in fact he threw anything onto the parking lot on the morning in question Accordingly, I conclude that the Respond ent has failed to establish a sufficient basis to deny Brat ton reinstatement The Respondent's failure to reinstate Bratton on the conclusion of the strike was therefore violative of the Act and he is entitled to reinstatement and backpay J T Bratton was denied reinstatement for allegedly having engaged in strike misconduct The Respondent did not argue on brief what Bratton's alleged misconduct was supposed to have entailed , nor point out where in the record there is proof of such misconduct on his part The only apparent testimony relating to Bratton oc curred in examination of 0 Neal when he was asked whether he pointed out to guards "employee John Brat ton or Tom Bartow O'Neal answered "I can remem ber vaguely, but as far as giving you any other informa tion, I can t remember Presumably, John Bratton and J T Bratton are the same individual John Bratton testified that he was a striker who was denied reinstatement He denied ever having been stopped by a security guard for any purpose and specifi cally denied having engaged in the sort of activity the Respondent accused other strikers of having engaged in In view of the total lack of evidence brought forth by the Respondent that John Bratton engaged in any strike misconduct, and given Bratton's credible denials that he did so, I conclude that the Respondent did not establish sufficient justification for denying him reinstatement Ac cordingly by failing to reinstate Bratton the Respondent violated the Act and should be required to reinstate him with full backpay The evidence of alleged strike misconduct by Maurice Buckner are three incident reports dated 5 November, by three security guards, all of which are identical in sub stance These reports state that Beulah Gardener, John Wade Jr, and Maurice Buckner were observed violating paragraphs 1 3 and 4 of court injunction This alleg edly occurred between 2 50 and 3 20 a in on 5 Novem ber There is no indication in any of these reports nor from the testimony of any of these or other security guards or other witnesses called by the Respondent, con cerning what Buckner and the other two individuals were alleged to have done The conclusion that these individuals were observed violating certain paragraphs of an injunction is simply not sufficient to establish what specific conduct the indi viduals were supposed to have engaged in Buckner testi feed in general terms that she did not engage in any picket line misconduct Inasmuch as there was no evi dence concerning precisely what he is claimed to have done she necessarily could not have denied or affirmed specific acts I conclude that the vague reports submitted by the Re spondent regarding Buckner do not constitute sufficient credible evidence to support even a good faith belief that she committed such egregious picket line misconduct as to deny her protection of the Act Further, even if the security officer reports could be considered sufficient for a good faith belief in the first instance , I conclude that Buckner s denial of having engaged in any picket line misconduct in general , and the specific acts for which others were denied reinstatement in specific, suffices to rebut the Respondents case I credit Buckner Based on the record before me, I conclude that the Respondent violated the Act in refusing to reinstate Maurice Buckner following the end of the strike, and I shall recommend an appropriate reinstatement and back pay remedy The only evidence concerning James Calloway s al leged picket line misconduct is in two security officer re ports, one of which names Calloway and the other does not Both refer to an incident that occurred on 8 Decem ber at about 4 10 am , in which John Wade Jr and Calloway were reported to have a dummy set up at front entrance with a bottle like a real person " Subse quently Calloway took the dummy to the union hall Calloway admitted his participation in this event Although this is apparently the basis on which Calloway was denied reinstatement, the Respondent did not suggest how this interfered with other employees' Section 7 rights Nor did the Respondent note any inci dence where the Board or courts have found such an act to be egregious strike misconduct At worst, setting up a dummy to look like a drunk person in the early hours of a morning is a trivial prank and certainly does not rise to the seriousness required to deny those engaged in such activity their statutory pro tection The penalty the Respondent imposed was much too severe for the misconduct I conclude that the Respondent did not sustain its burden of proving that the incident for which it refused to reinstate Calloway was of sufficient seriousness to ,jus tify the denial of reinstatement Accordingly I will rec ommend an appropriate reinstatement and backpay remedy Buddy Cook was a striker who was denied reinstate ment presumably because he was involved in an incident reported to security officer Ralph Miller on 20 March 1984 The substance of Miller s report and his testimony, relative to Cook is further Earl Smith John Wade, Buddy Cook Louis Lambert was hurling vulgar words at our guests as they were coming and going And further, Mr Osborne said these four fellows said they would gang rape an unknown lady " Although Cook was called as a witness and testified generally to his picket line conduct , denying that he en gaged in certain activity he was not interrogated con cerning this particular incident or generally whether he had used vulgar language on the picket line Nevertheless, I conclude that the evidence presented by the Respondent is insufficient to base a finding that Cook lost the protective mantle of the Act during the course of the strike The totality of the Respondents evi dence is that he and three others hurled vulgar words What these words were is unknown on this record While there is a general acceptance of what is vulgar and what is not, such is a subjective matter depending to some extent on the predisposition of the one who hears HOTEL ROANOKE the words In any event, I conclude that vulgar words" is insufficiently precise to sustain the severe penalty of discharge Further, given the imprecision of Miller s as sertion against him, Cook would be in no position to affirm or deny the incident The matter of gang raping an unknown individual, while more definitive, is, as far as this record is con cerned, also vague and established by hearsay Although a respondents good faith belief may be substantiated by hearsay evidence, in this situation I conclude that the al legation against Cook-that he participated in some kind of verbal assault on an unknown person-is not suffi ciently proved to justify denying him reinstatement It is unknown who the alleged target of the statement was, nor is there any evidence that Cook was more than simply a bystander when such occurred, if it did I do not believe that Miller's report is sufficient to justify the Respondents refusal to reinstate Cook Accordingly, I conclude that by failing to do so the Respondent violat ed the Act I shall recommend an appropriate reinstate ment and backpay remedy Reed Cotton s name appears on security officer reports involving three incidents A rock thrown against the garage door on 18 October, a fire bomb on the dock on 19 October and apples thrown at security guards on 8 November Burns Security Officer Jim Crandall reported concern mg the 18 October incident I was sitting in garage and heard a rock hit the garage door When I walked outside they [Wade, Cotton, and Swain] were hiding behind the picket fence mouthing off Action taken Picked up rock and notified Hotel security " There is no assertion in this or the other report concerning this incident, nor in testa mony that Cotton, or either of the other two pickets who were observed at or about the time of this alleged incident in fact threw a rock Nor is there any indication in either of these reports or in testimony concerning the size, weight or type of rock allegedly thrown The lack of any definitive evidence concerning the precise nature of the alleged incident or Cotton s partici patron in it coupled with Cotton s denial that he in fact ever threw a rock on the Hotel property during the course of the strike lead me to conclude that the Re spondent has failed to prove the factual basis of this inci dent In addition given the paucity of evidence concern mg the rock, I cannot in any event conclude that the incident was of sufficient seriousness to deny a striker his protection under the Act The incident of 19 October is of a more serious nature Security Officer Willie E 0 Neal reported that he was looking out the window of the tower when I saw a flash hit the dock at the backgate I radioed Officer Helms, that there was a fire on the dock " 0 Neal fur ther reported, "I saw Reed Cotton and George Jones sit ting against the wall near the entrance of the backgate The two men were there the entire time I stepped inside the tower to recharge my radio I was inside for approxi mately 2 minutes When I saw the flames hit the dock I checked the spot where the two men were and they had departed Clearly, throwing a fire bomb is an act of serious mis conduct Nevertheless, the mere fact that a fire bomb is 209 thrown and one or more pickets is in the area in a pose tion to have done the throwing is not sufficient to prove who was the perpetrator There is simply no evidence in the reports concerning this incident nor in testimony, which would lead to the conclusion that Cotton threw a fire bomb onto the dock From this lack of evidence along with Cotton s denial that he did so, I conclude that the Respondent failed to establish by any reasonable quantum of evidence that in fact Cotton engaged in the misconduct attributed to him Finally there are reports from Security Officers Cran dall and John M Grill to the effect that in the early morning of 8 November, Cotton, Swain, and Lanier were observed throwing apples which landed within 5 feet of the secu-ity officers And a separate report by Crandall states that at the same time Cotton, Swain, and Lanier were observed at the location of a fire in leaves at the Jefferson Street entrance to the Hotel As with the earlier two incidents, the apple throwing is not of particularly grave significance whereas the fire, potentially, would be a serious act of misconduct How ever, the Respondents evidence concerning the nature and extent of either of these incidents is far short of that sufficient to deny a striker his right to reinstatement Further, while the incident report concerning Cotton having thrown apples seems to be specific enough with regard to Cotton s involvement, I do not accept this report by itself over Cotton s credible denial Crandall was not called as a witness on behalf of the Respondent nor did the Respondent explain this failure His report, therefore, while sufficient to sustain the Respondents mi teal burden of a good faith belief that Cotton engaged in the activity alleged, is not sufficient when weighed against Cotton s credible denial There is no evidence, even in the incident reports that Cotton participated in starting the fire, or the nature and extent of the fire Accordingly, I conclude that the evi dence of this incident is insufficient to support the con clusion that Cotton should be denied his right to rein statement In summary the specific evidence offered linking Cotton with acts of strike misconduct is insubstantial and, at best, amounts to unpersuasive inferences of his participation e g, Cotton was in the area at a time when an incident occurred The quality of the Respondent s proof that Cotton in fact engaged in picket line miscon duct is minimal, and cannot be considered sufficient to overcome Cotton s otherwise credible denial that he in fact engaged in the incidents alleged The matter of Cotton's misconduct was considered by the Virginia Employment Commission, which concluded after hearing, that the Hotel in fact presented evidence of "five separate incidents of violence on the employer s property, in which he (Cotton) either participated or was seen nearby,' inasmuch as the Commission noted that Cotton did not appear at the hearing, it was concluded that the acts of misconduct had been established suffi ciently to disqualify him from benefits This decision of course is not binding on the Board While based on the type of evidence before me the examiner did not benefit from the testimony of Cotton Therefore while the opin 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ion of the special examiner is noted, I do not consider it dispositive of the issues here Accordingly I conclude that by denying Reed Cotton reinstatement following the end of the strike, the Re spondent committed an unfair labor practice, and Cotton should be offered reinstatement and backpay The Respondents evidence against Bonnie Finney is the testimony of Beverly Grubbs, who stated that in No vember as she was leaving work about 5 p in , Finney yelled her name several times and "finally she [Finney] said, Beverly, if you give out any more paychecks to new employees I m going to beat your ass And I just kept walking, I never said anything to her I just kept walking straight to my car and got in my car and left Finney denied this incident, and Grubbs identification of her is questionable in view of the fact that other pick ets whom Grubbs identified as having been present cre dibly testified that they heard no such exchange Vera Hill, said by Grubbs to have been present, credibly tests fled that she did not picket with Finney except on three occasions in the early days of the strike In any event whether the incident in fact happened as reported by Grubbs really need not be decided because it is not of sufficient seventy to warrant the discharge of a striker It has long been held that the picket line is not a Sunday School picnic " Often things are said in the heat of a strike that would not be polite in other situations yet do not rise to the level of seventy to deny one the protection of the Act A statement that "I'll beat your ass, not associated with menacing gestures, the showing of weapons, or the like, fits into the insignificant catego ry Absent some indication that the threat" has an im mediacy of reality, the Board will not find a mere state ment enough to deny a striker his or her right to rein statement There is nothing in Grubbs testimony that would indi cate that if Finney made the statement to her, it was any more than just that, a statement as opposed to a genuine and reasonably perceivable threat to a working employee of physical harm As far as I can tell from this record, Grubbs went home, came back to work the next day continued to do the job which she had done and there was no reoccurrence Nor is there any evidence that in fact Finney participated in any activity that would tend to indicate that her alleged words should be taken as a serious threat I conclude that the Respondent has not sustained its burden of proving that the alleged basis for having denied Finney reinstatement was sufficiently serious under all the circumstances Accordingly, I conclude that in denying Finney reinstatement, the Respondent violated the Act and should be ordered to reinstate her with full backpay There is evidence of several instances of misconduct involving Ronnie Hayslett the principal of which oc curred the day before the strike According to the generally credible testimony of Rosemarie Clark, for several days prior to the strike ten sion was building Employees who intended to go on strike asked Clark if she would join them She said she did not want to do so Then on the day before the strike, several employees made generalized statements concern ing what they were going to do A They were just wild that day, the guards had to calm them down several times, they were just yelling, they just said `they were going to lace the food we are going to fix it up good before we leave, and we have got rocks', and they said we re going to nail the driveways And about that time Ronnie [Hayslett] looked over at me, and he grabbed me and put me up against the wall Q Physically grabbed you? A Yes, he did, and he said, you are going to walk, aren't you, and I didn t say anything, and he just held me against the wall, and he said, I am going to personally see that you don t cross the picket line, you are going to walk one way or the other, you are going to be sorry," and I still didn t say anything, and the lady with the glasses on, she said, Hey, you better walk with us, we 11 give you $50 a week' And I still didn t say anything, I just let them keep going on and on And then Ronnie, I don't know, I can t remem ber if it was that night, or before that, he came in the PBX room, I was taking a break Q This is Ronnie Hayslett? A Yes and he said, you had better know what you are doing,' and he said you had better walk with us, and if you don t he said, People get hurt bad when they don't and I said I told you, I don t know anything about it, just leave me alone," and he just kind of grinned, he said, "well, if you don't, you will pay' Hayslett testified in general terms to not having laid hands on anyone the day before the strike, and general ly denied that he engaged in any of the acts testified to by Clark, or others the day before the strike or on the picket line I found Clark to be a generally straightforward wit ness without any apparent stake in the outcome of this matter On the other hand, I was not impressed with Hayslett's demeanor and note that he in fact stands to gain in the event of a favorable resolution of this particu lar issue Beyond that, I noted that Hayslett s denial is more in the nature of a negative pregnant response than a direct denial of Clark s testimony On balance, I credit Clark and conclude that the day before the strike Hays lett in fact physically grabbed her and made statements along the lines to which she testified Given the physical act associated with these state ments, which are in their nature threatening, if ambigu ous, I conclude that Hayslett exceeded the bounds of permissible conduct He in fact made threats which would reasonably have a tendency to coerce employees in the exercise of their Section 7 right to refrain from striking I conclude that on the basis of this incident alone, the Respondent was justified in denying Hayslett reinstatement, and I therefore shall recommend that the allegation concerning his reinstatement be dismissed A review of the record reveals no evidence adduced by the Respondent concerning any alleged strike miscon HOTEL ROANOKE duct on the part of Curtis Hatcher, nor has counsel for the Respondent directed my attention to such evidence Inasmuch as the Respondent has the initial burden of proving that a striker has engaged in some activity that would justify denying him reinstatement, and inasmuch as no such evidence was adduced by the Respondent in this matter, I am constrained to conclude that the Re spondent did not meet its burden of proof regarding denial of reinstatement to Curtis Hatcher Accordingly, I conclude that by failing to reinstate Hatcher, the Re spondent violated the Act and an appropriate reinstate ment and backpay order will be recommended As the General Counsel states on brief, There is no dispute as to the fact that Ralph Hayes toured several public and work related areas of the Hotel during the late evening of 3 April 1984 " By this counsel no doubt means Hayes admitted that about midnight or so, he en tered the Hotel and was in public as well as areas re served for employees Hayes testified that the reason he did this was Well, since I wasn t planning on going back, and I had been set up to go to college and get a job with the VA, I wanted to take one more look, you know, at the Hotel and so, that night, I decided to enter, you know, to take one more look Employee Joseph Bell testified that he came upon the individual who was later identified as Hayes, and Hayes told him, If I say anything, he would kill me' Bell tes tified that he reported this incident to the security offs cers, although he did not know Hayes' name at the time, Hayes was chased and arrested While conceding that Hayes presence in the Hotel was unauthorized, the General Counsel maintains that Hayes credibly denied having made any threatening statements to any employee or security guard while there, and therefore the Respondent did not prove its case Based on my observation of the witnesses as well as the inherent probability of this matter, I specifically dis credit Hayes testimony I do not believe he came onto the Hotel premises to take one more look It is un known precisely what Hayes had in mind, but his actions belie a benign intent In addition , I found Bell to be a credible witness and conclude that in fact Hayes threat ened him The unauthorized entry onto the employers property, associated with the threatening statement to Bell, I con clude, goes beyond the bounds of permissible picket line conduct Hayes act was sufficient justification for the Respondent to have denied him reinstatement Accord ingly, I conclude that the allegation with regard to the denial of reinstatement to Ralph Hayes should be dis missed Presumably, the Respondent refused to reinstate Vera Hill because of activities she allegedly engaged in which are set forth in two incident reports written by Security Officer 0 Neal, and one by Security Officer Miller For the reasons set forth below, I conclude that Respondent was unjustified in denying Hill reinstatement First, I conclude that the incidents, even if they oc curred precisely as reported by the security officers were too trivial either singularly or in combination to 211 deny one her protection under the Act, and second, I credit Hill s denial that the events occurred as alleged O Neal reported that on 12 November he observed Hill standing with Michael Taylor between the Union building and the Kinsley building `Michael threw an object at the van as it drove by them I could hear the sound of glass hit the street 0 Neal testified concerning this incident stating I saw Vera Hill and Michael Taylor standing in front of the Union hall, which is right across from the hotel, and the hotel van went by and I saw Mi chael and Vera with, what seemed to be, I heard some glass They threw some objects towards the van and it sounded like glass They threw it to wards the wheel of the van as it went by O Neal did not explain why in his contemporaneous report he did not mention that Hill, whom he named as present, had been one of the throwers Nor was he asked to do so Whether Hill was a mere observer of another employee throwing an object or herself was a participant is a material divergence It can neither be viewed as a minor technicality nor excusable inadvertence, absent at least some plausible explanation The fact that 0 Neal testified in such a materially different way than he wrote his report (which is not ambiguous in this respect) casts doubt on the credibility of his testimony In addition, I generally credit Hill s testimony denying that she threw any object at the van on the night in question and con clude that she did not in fact participate in a throwing incident on 12 November I conclude that the Respond ent did not establish through persuasive evidence the fac tual basis of the alleged misconduct on that occasion The other incident reported by O'Neal also allegedly took place on 12 November, in which he wrote Vera Hill threw an object that hit the roof of the pool ' Hill denied having done so, a denial which I tend to credit Beyond that however O'Neal s report is simply too sketchy and vague to support a conclusion that the Re spondent was for this reason justified in denying Hill re instatement There is no indication in this report or from 0 Neal s testimony what the object may have been and from this lacking it is impossible to determine whether or not, even if Hill had thrown something, it was sufficient to rise to the level of potential property destruction or intimidation of other employees in the exercise of their Section 7 rights The Board has held that throwing objects that do not figure to cause personal or property damage is miscon duct-for instance a tomato thrown at a moving vehicle Harry Hoffman & Son Printing, 278 NLRB 671 (1986) Nevertheless there is no per se rule and presumably not all objects qualify Therefore to deny one reinstatement for throwing, the object must be identified A company may refuse to reinstate employees who have engaged in picket line misconduct, but it does not have carte blanche the right to pick trivial incidents and base its re fusal to reinstate on those The refusal to reinstate stnk ers must be based on serious and substantive incidents Where such occur the Respondent should be able to es tablish through evidence their seriousness As to Hill and 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the throwing incidents, I conclude the Respondent failed in this burden of proof The final report in which Hills name appears was written by Security Officer Miller but the substance set forth in that report was not testified to by him nor was the report offered into evidence through him Rather the report was offered as one of a large number of re ports submitted by various secunty officers to the chief of security during the course of the strike and which the chief of security testified were considered by the Re spondent in reaching its conclusion as to whether or not to reinstate certain strikers Although this and the other reports were received into evidence for the purpose offered, namely, that they were received in the normal course of business and were used by the Respondent in making its decision , the weight of this report must be affected by the fact that the Respond ent chose not to introduce it through the author, nor in terrogate the author concerning the substance of the report Along these lines, I note that in the report , Miller stated, A witness to this proceeding was Roger Brown No 269 who said he would also testify to the abusive speech Roger Brown in fact was not called as a wit ness by the Respondent Given the way Miller s report came into evidence, the fact that Miller was not interrogated concerning the sub stance of the report nor available for cross examination concerning it, and the fact that the Respondent did not call his purported witness, I discredit the assertions in the report as against Hill s testimony She credibly denied having engaged in the alleged acts of trespassing 10 feet on company property and abusive speech di rected toward the security officers Beyond that, the report does not define the abusive speech " Thus there is no basis on which to evaluate whether the speech was of such a nature as to disqualify one from the protection of the Act, or was trivial Fur ther the allegation that Hill was 10 feet on company property is simply too insignificant to justify the Re spondent in denying her reinstatement I therefore conclude that separately or in the aggre gate, the various allegations of misconduct against Vera Hill were too insignificant to justify denying her rein statement and that by doing so the Respondent violated the Act And I shall recommend an appropriate backpay and reinstatement remedy William Lambert is mentioned in five incident reports submitted into evidence by the Respondent and, presum ably, the acts complained about in these reports are the basis of the Respondents refusal to reinstate him In a report by Security Officer Miller dated 20 March 1984 it is stated that Lambert as well as three other strikers were hurling vulgar words at our guests as they were coming and going The rest of the report relates to what another security officer apparently told Miller, does not specifically relate to Lambert, and in any event is vague and conclusionary concerning what any of the strikers purportedly did Regarding the matter of the hurling vulgar Ian guage,' I conclude that such is simply not persuasive proof to establish that Lambert engaged in the kind of egregious picket line misconduct that would deny him protection of the Act In testimony, Miller did not elabo rate on what the vulgar' language was supposed to have been, and without some evidence concerning spe cifically what Lambert is alleged to have done, I con clude that the Respondent failed in its burden of proof with regard to this incident Similarly Security Officer Helms reported on 10 Oc tober that Lambert had directed some specifically identi fled opprobrious language towards a nonstriking employ ee Although Lambert admitted in testimony to having used the words attributed to him, he contends that the nonstriking employee was not the subject of his derision but rather some individuals whom he described as winos who were sitting on the sidewalk in front of a nearby liquor store I do not credit Lambert I did not find his demeanor persuasive, nor his explanation plausi ble I conclude that Lambert in fact called a nonstriking employee a mother fucker Although this is certainly profane language, by itself such does not seem threatening or generally of such a severe nature as to exceed the bounds of permissible (albeit not condonable) picket line language Lambert s language was very unpleasant , but I do not believe that the use of these particular words in the situation de scribed in the security report is of sufficient seriousness to justify denying him protection of the Act Reports by Assistant Chief of Security Glenn Under wood and Officer Helms dated 12 January 1984 associ ate Lambert as well as others with the throwing of an object which knocked a hole in window pane by drink machine, a hole of about 2 1/2 inches The object did not come inside Neither report nor the testimony of Underwood or Helms do more than identify Lambert as being one of the strikers who was observed about the time of the incident Neither suggests that Lambert in fact threw the object nor is there any proof that he did so Absent some evidence that in fact Lambert engaged in the act of throwing an object that caused even this minor property damage I cannot conclude that the Re spondent has sustained its burden of establishing that Lambert should be denied reinstatement To similar effect are reports by Officers Brandau and Helms concerning an allegation of paint throwing on 8 January 1984 Brandau reported that I saw a balloon of paint come across the street from the union hall It landed in front of the dumpster at the back loading dock" Brandau did not testify concerning this incident Specifically there is no testimony or indication that the balloon of paint broke and splattered paint or what the result of this alleged incident was Beyond that, Brandau was not asked to testify concerning this incident, nor was Helms, to whom Brandau reported his observations Nor is there any evidence that Lambert was the one who threw the balloon of paint Given the paucity of evi dence offered by the Respondent concerning this event I conclude the Respondent failed to establish this as a basis for denial of reinstatement of Lambert The report of the vulgar language on 20 March was also contained in a report by Security Officer Osborne but, as with the report by Helms it did not detail what HOTEL ROANOKE 213 Lambert, or any of the others, was supposed to have said Based on the lack of credible evidence that in fact Lambert engaged in any more than normal picket line activity of a trivial nature insofar as opprobriousness is concerned, I conclude that the Respondent failed to es tablish that it was justified in denying him reinstatement Thus, its failure to reinstate Lambert was violative of the Act Accordingly, I shall recommend an appropriate order of reinstatement and backpay Jack Lancaster was denied reinstatement presumably for his participation in an event reported by Officer Os borne on 9 February 1984, wherein Lancaster and an other striker, Darrell Lanier, purportedly made vile threats to Catherine Karnes, now Marmon, of a sexual nature Marmon testified to this event , but Osborne was not called as a witness Marmon testified that she did not know the two individuals in question and could only de scribe them as a tall slim black man and a short, heavy set white man Lancaster, a white man, testified that he is 6 feet I inch and thus does not fit very closely the physical de scription testified to by Karnes Further he denied, cre dibly I believe, that he participated in any such an mci dent as testified to by Karnes or as set forth in Osborne s security report Based on the credible testimony of Lancaster, I con clude that the Respondent did not establish by persuasive evidence that he was involved in the event for which, apparently, he was denied reinstatement Accordingly, I conclude that the Respondents failure to reinstate Lan caster (by the time of the hearing he had been reinstated) was unlawful and an appropriate reinstatement and back pay remedy will be recommended Darryl Lanier is the other striker named in Osborne s report of 9 February concerning the Catherine Karnes matter Lanier is a black man who stands 5 feet 7 inches and who, like Lancaster, was not identified by Marmon Again Osborne was not called as a witness concerning this matter The identification of Lanier in this report is as faulty as that of Lancaster The physical evidence does not lend circumstantial credibility to the identifica tion of either In view of this, I credit Lanier s denial that he participated in an event similar to that outlined in Osborne s report of 9 February and conclude that the Respondent has failed to establish the factual basis for denying him reinstatement on this ground Security Officer Benton Nester filed a report on 1 No vember stating that he observed two strikers start a fire in Wells Street about 1 10 a in that day He radioed this report to Officer Helms who similarly filed a report con cerning this matter In his report , Nester stated that Lanier was identified as one of the individuals by Assist ant Chief of Security Glenn Underwood Although these reports might be sufficient to establish that the Respondent had probable cause to believe Lanier had engaged in the act of starting a fire in the street, they are clearly insufficient evidence that he did so There is no testimony from Nester, Underwood, Helms, or anyone else concerning how the purported identification of Lanier was made Nor is there any testi mony concerning the nature or extent of the alleged fire, other than it was out by the time the fire department ar rived approximately 15 minutes later In view of the lack of evidence associating Lanier with this event , I am con strained to credit Lanier s denial that he in fact set a fire on 1 November or any other time , and conclude that the Respondent failed to establish by persuasive evidence that the event took place as alleged If in fact the event had occurred, surely the Respondent could have brought forth testimony concerning the fire as well as some direct and definitive evidence that Lanier was at least a participant Accordingly, I conclude this cannot be con sidered a basis for denying Lanier reinstatement A similar incident of a leaf fire was reported by Burns Security Officers Jim Crandall and John Guill on 8 No vember Their reports state that Lanier, along with two other strikers, started a fire in leaves at the Jefferson Street entrance to the Hotel Again there is no indication in these reports who made the identification of the strik ers or how it was done Neither Crandall nor Guill was called as a witness Nor is there any indication in either report concerning the nature or extent of the alleged fire In view of the limited evidence concerning this event and the lack of any credible identification of Lanier or the other two individuals allegedly participating in it, and given Lanier s denial that he in fact set a fire on or about the date indicated in the report , I conclude that the Respondent failed to establish by persuasive evidence that the event occurred It may well be that the reports are sufficient to establish a good faith belief on the part of the Respondent, however , in view of Lanier s denial that the event occurred the reports are clearly insuffi cient to establish his culpability and absent the reports there is simply no evidence that Lanier did what the re ports say he did Also on 8 November Security Officer Robert Meador reported that he saw Lanier pick up something and hand it to fellow striker Rodney Bumbrey Bumbrey ' throwed (sic] it through the old laundry building window on Wells Avenue " What it was that Lanier was supposed to have picked up was not identified in the report There is no indication whether any damage was done as a result of Bumbrey s act, which, on the bare facts of the report seems quite trivial I therefore conclude that whatever Lanier s participation may have been in Bum brey s act it is too insubstantial to be considered a basis for denying Lanier protection of the Act To deny Lanier reinstatement based on this incident would be to assume that Lanier handed Bumbrey a rock knowing that Bumbrey was going to throw it through a closed window and cause damage to the Company s building While this might be a plausible assumption, it is not so definitive as to base ones continued employment on it According to the reports about 20 minutes before the rock throwing incident (at the same time Lanier , Cotton, and Swain were reportedly starting a fire), Crandall and Guill also reported that Lanier , Cotton, and Swain threw apples at them Crandall described the incident Three strikers throwing apples and landing within 5 feet of myself and Guill ' As indicated, Crandall and Guill were not called as witnesses in this matter, and from the 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sketchiness of the reports themselves, it is difficult to get an idea of what these security officers were allegedly re porting concerning the activities of the three strikers on the night in question The report concerning the apple throwing incident on its face seems trivial, though if proved such might be enough to support a denial of rein statement Harry Hoffman & Son Printing, supra Howev er, there is no indication in the report who in fact did the throwing Absent any specific identification of Lanier as one who threw something at a security officer, and given what appears to be the triviality of the event, I conclude that this is an insufficient basis on which to deny Lanier reinstatement either singly or with the other events he allegedly participated in on the night of 8 November or at other times I conclude that the evidence brought forth by the Re spondent relating to alleged picket line misconduct on the part of Lanier is insufficient to establish that he en gaged in activity of the type and character that would disqualify him for future employment There are numer ous reports in which his name appears But real evidence that he actually engaged in one or more acts of serious picket line misconduct is lacking Accordingly I con clude that by denying him reinstatement the Respondent violated the Act and an appropriate reinstatement and backpay remedy will be recommended The Charging Party also contends that inasmuch as the Respondent ultimately reinstated Lancaster, it has waived its privilege to discharge Lanier by recalling Lancaster who was equally implicated if the Respond ent s assertions are credited " I specifically reject this ar gument of the Charging Party, noting that the basic issue with regard to Lanier s recall is whether his strike relat ed activity was such that he lost protection of the Act If it was, then he has no rights under the Act regardless of whether the Respondent chose to rehire someone whom it was not required to rehire The basic issue concerns Lanier s status under the Act not a defense to his dis charge In any event, I have concluded that Lanier s ac tivity was not so egregious as to cause him to lose his status as an employee and his rights under the Act Apparently Robert Leftwich was denied reinstatement because on 4 November about 9 20 p in , a rock was thrown through the window of the Shenandoah Room This incident was reported by Burns Security Officer Albert Castile to Hotel Security Officer Frank Helms, who then called the chief of security and radioed Secun ty Officer Benton Nestor Nestor filed a report stating that he had been contact ed concerning a rock having been thrown through the window of the Shenandoah Room and that Helms had reported to him there were no pickets in sight at the time Nestor went on to report, Robert Leftwich was seen in area shortly after Assuming the accuracy of Nestor's identification of Leftwich having been observed in the area following this incident such is scarcely sufficient to establish even in ferentially, that Leftwich threw a rock through a window Beyond that, Nestor was not called as a witness and there is no testimony from him concerning how this identification was supposed to have been made Leftwich credibly testified that he did not picket during the evening of 4 November, and hence would not have been on the picket line or near the Hotel when the rock throwing took place Finally, he credibly denied having in fact thrown a rock through the window of the Shen andoah Room On all these factors, I conclude that the Respondent failed to establish that Leftwich engaged in the act of picket line misconduct for which he was denied reinstatement Accordingly I conclude that by denying Leftwich reinstatement the Respondent violated the Act, and I shall recommend an appropriate reinstate ment and backpay order Ernest Lindsey was apparently denied reinstatement be cause he was reported to have been involved in viola tion of injunction on 6 December about 4 30 a in That is he was reported to have engaged in an act or acts of yelling such that he caused a guest of the Hotel not to be able to sleep Assistant Chief of Security Glenn Underwood testified concerning this incident and identified for the record his report of 6 December, in which he stated On the above date and time received a call from Mr J Harrington of Southern States, he could not sleep, someone was on the street yelling very loud Underwood went on to state that he and a Burns security officer went outside and identified Lindsey, who was walking with an unidenti feed individual Although Underwood testified that he knew Lindsey as a Hotel employee and gave a physical description of him it is noted that this event occurred during the hours of darkness While there was some light available, it is far from clear if the light was adequate to make a posi tive identification from some distance Further, Lindsey s physical description given by Underwood satisfies that of many of the strikers Lindsey credibly testified that he did not picket during the postmidnight hours at any time during December having been hospitalized in October Lindsey s denial that he was even present on the picket line was credible, and given Underwood s far from certain identification, I conclude that the evidence preponderates in favor of finding that Lindsey in fact was not at the Hotel on the date in question Beyond that the evidence is very sketchy concerning the yelling incident It is no doubt possible that under certain conditions and circumstances yelling could be egregious picket line misconduct However such is far from established by the Respondent in this case Under wood did not hear the yelling which was presumptively reported to him by the guest the guest was not called as a witness Underwood himself observed only one inci dent of yelling I just simply do not believe that the Respondent brought forth sufficient evidence to demon strate that the act by whomever was sufficient to justify concluding that an employee thereby lost his protection of the Act I therefore conclude that by denying Lindsey rein statement following the end of the strike, the Respondent violated the Act I shall recommend an appropriate back pay and reinstatement order The apparent reason the Respondent denied reinstate ment to Dallas Mangus was activity he engaged in at the HOTEL ROANOKE 215 outset of the strike, as reported by Helms on 1 October In stating the nature of the complaint Helms reported Directing Strikers & not legal on Blue Card' Helms went on to report, and subsequently testified that what Mangus had done was to return to the Hotel shortly before 6 p in and not clock in as he was required to do He further told fellow employees that they did not have to clock out, and that he was directing traffic that day and it was supposed to have been my job ' Mangus had been the shop steward for the engineering department and was on the contract negotiating team He admits that his shift ended about 3 p in on 1 Octo ber He went home, and then he returned to notify em ployees in his department that the strike had com menced Thus, there is no real dispute concerning the es sential facts in this matter The question is whether coming on Hotel property in technical violation of the rules, and telling fellow em ployees what they could and could not do with regard to beginning the strike, amounted to such egregious mis conduct as to render Mangus unemployable I do not believe that Mangus activity rises to the level necessary to deem him to have lost his protection under the Act At most, he committed a technical violation of the company rules but was not otherwise a trespasser Nor was he engaged in any disruptive acts or acts that would cause property damage He was there to help start the strike And his purpose must have been clear to the Respondent Compare Ralph Hayes, supra Mangus activity was directly related to commencing the strike, notifying employees that the time had come, and directing them concerning how to leave work This is activity directly protected by the Act, and to be denied reinstatement for this reason is clearly a violation unless it was performed in an egregious manner There is no evidence it was I accordingly conclude that by deny ing Mangus reinstatement the Respondent violated the Act I shall recommend an appropriate reinstatement and backpay remedy The name of Julia Mangus appears on two incident re ports submitted by the Respondent The Respondent of fered no evidence of acts other than contained in these reports as a basis for refusing her reinstatement I con elude the assertions set forth in these reports including the testimony of Brandau who testified concerning his are insufficient to establish misconduct of the quantum necessary to deny strikers reinstatement Security Officer Frank Helms reported that on 31 Oc tober about 11 28 p in he observed a Pepsi bottle hit the brick wall on the dock about 4 feet high from the door He reported that he went out a door to see where the bottle had come from and `Julia Mangus was stand ing at the entrance of Wells Avenue, she said to me, Of ficer No 218 [Helms], that she didn t throw the bottle Though called as a witness, Helms did not testify con cerning this incident Mangus credibly denied that in fact she had thrown the bottle She confirmed that portion of Helms' report in which she told him that she did not throw one She went on to testify that Helms said to her `I know you didn't, Julia Given Mangus' credible denial that she in fact threw anything at the Hotel on the evening of 31 October, along with Helms' sketchy report containing at best a weak inference that Mangus was involved in the incident reported, I conclude that the Respondent has failed to establish by persuasive credible evidence that in fact Julia Mangus was in any way associated with the act of throwing a Pepsi bottle against the wall of the Hotel Further, it is doubtful that the act as reported could be deemed egregious misconduct Security Officer Leon Brandau submitted an informa tion report dated 8 December in which he stated On the above date and time Julia Mangus, one of the strikers Roger [Brown] and I was on Back Loading Dock Roger was dumping trash When Julia Mangus made these remarks to us Said that Roger didn t have much longer to live For security officer to go back inside, that she would take care of Roger Brandau reiterated the allegation set forth in his report and testimony He was unable to remember the date the incident allegedly happened or even the season of the year however he did remember that at a distance of 41 1/2 feet' he heard Mangus say She told me to go back inside, that Mr Brown did not have much longer to live that they would take care of Mr Brown their own way Julia Mangus testified that she normally picketed be tween the hours of 10 p in to 2 a in She stated that she first learned of this allegation against her during an un employment compensation hearing She testified that one evening when she was picketing with Barbara Bowling as they walked past the loading dock on which were standing a security guard, whom she could not identify and an employee Bowling yelled in a very jokingly jovial manner She yelled back and told the guard to go on up inside, she wouldn t harm a hair on the guy s head and I assume that she may have been referring to an other person who was out there with him " Inasmuch as Mangus was testifying to an incident which she stated occurred on 8 December 1983, presumably this is the same event to which Brandau testified although their versions obviously differ regarding the precise words used and by whom Although there is no particular reason to credit Bran dau over Mangus his version is contained in a contem poraneous report But he subsequently testified that he heard the words he reported from a distance of some 41 1/2 feet on a winter night Though he testified that the dock was well lighted he was able to identify only one of several strikers who were in the vicinity To deny Mangus reinstatement based on Brandau s report and testimony would require finding that she said the precise words attributed to her by Brandau It would further require finding these words were uttered in such a fashion and under such circumstances as to give imme diacy to the threat of physical harm to employee Roger Brown I do not believe that Brandau s testimony is suffi ciently persuasive or that his memory of the incident is sufficiently detailed or credible to make such findings No doubt something was said by strikers to the securi ty officer and the working employee, but such is often 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the case in these matters The test is whether the striker goes beyond the bounds of permissible name calling and into the area of threatening physical harm Thus, even if Brandau is credited (and there is reason here for not to tally crediting his version) given Mangus generally cred ible recollection of the event as well as Brandau s lack of detail and lack of recall, I conclude that the Respondent did not establish by persuasive evidence an event of suffi cient consequence so as to deny Mangus her continued protection of the Act I conclude that by failing to recall Mangus, the Respondent thereby violated the Act and I shall recommend an appropriate reinstatement and back pay remedy It appears the Respondent refused to reinstate Herman Mason because of two incidents in which he was report ed throwing, or was associated with throwing, an object on hotel property The first report was by Security Officer 0 Neal dated 6 October in which he stated that he was standing on the roof of the Hotel overlooking Wells Avenue when he observed Mason get up and look to his left and to his right Herman then threw an object on the apron parking area near the garage I heard the object striking the ground It sounded like it was a hard object Nei ther in the report nor in his testimony did 0 Neal give any indication of what kind of an object Mason was sup posed to have thrown, and whether there were any people or property in the area which could have been or were damaged Mason denied he ever threw anything on hotel proper ty Although 0 Neal testified and reported that the light was good, I note that this incident allegedly occurred at 11 15 p in and that 0 Neal was some distance away 0 Neal reported that he was on the roof of the Hotel, although he testified that he was actually inside the Hotel on the fourth or fifth floor In any event while I do not discredit 0 Neal s intent to report what he saw I conclude the physical circumstances made it difficult for him to report accurately whether in fact Mason did any thing more than make some kind of a motion which ap peared to be an act of throwing Mason denied ever having thrown anything on hotel property and there is no basis from his testimony or demeanor to discredit his denial Beyond this, absent any evidence of damage, or potential physical damage, as a result of Mason s alleged act I consider it too trivial to be the basis for refusing to reinstate him Mason was also named in Helms Pepsi bottle throw ing report of 31 October Helms reported that when he went out the door to see where the bottle had come from and observed, `Mason was running to the union hall Helms further reported that before the bottle throwing incident, he had observed Mason with Julia Mangus As noted above Helms did not testify to this in cident This report is simply insufficient to establish by persua sive evidence that Mason (or Mangus) threw a pop bottle against the wall of the Hotel The inference that Mason engaged in this act is just too weak to deny him his statutory protection Though I consider throwing a pop bottle without more to be a borderline incident of picket line misconduct, there is insufficient evidence to link Mason with the act so as to deny him reinstatement In view of the insufficiency of the Respondents evi dence linking Mason with serious picket line misconduct I conclude that by denying him reinstatement the Re spondent violated the Act I conclude that the Respond ent should be ordered to reinstate Mason with full back pay The Respondents reason for refusing to recall Cecil Meadows is not apparent from the record Presumably, however, Meadows was denied reinstatement because he was reported to have been in the presence of Rodney Bumbry and Darrell Lanier who were reported by Secu my Officer Robert Meador as having broken a window on 8 November (discussed above) There is nothing in Meador s report or his testimony that suggests that Meadows engaged in any activity other than being present on the picket line There is simply no suggestion that in any way he participated in the alleged act of object throwing or did anything else which would warrant denial of reinstatement Given the lack of evidence that Meadows engaged in any egrenous act of misconduct during the course of the strike, I conclude that the Respondents denial of rein statement to him was unlawful I shall recommend an ap propnate reinstatement and backpay order Presumably Kenneth Mitchell was initially denied rein statement because of his alleged participation in an inci dent of paint throwing reported by Security Officers Brandau and Helms on 8 January Brandau reported that he saw a balloon of paint come across the street from the union hall It landed in front of the dumpster at the back loading dock He did not see any strikers on the street at the time , but went out on the roof of the Hotel He then noticed two indi viduals sitting in the window of the second floor of the union hall across the street He called Helms who identi fled them as William Lambert and Kenneth Mitchell and also identified two of the three cars in front of the union hall as belonging to Lambert and Mitchell Though witnesses in this proceeding neither security officer testified to this event Thus, the totality of the Respondents evidence that Mitchell engaged in any picket line misconduct is the identification of him sitting in the window of the union hall sometime after a bal loon of paint was thrown by someone at the loading dock of the Hotel Under accepted rules of inference the evidence prof fered by the Respondent is simply too sketchy to estab lish that Mitchell participated in the act of paint throw ing Thus, I conclude that the Respondent failed to es tablish the factual basis on which it denied Mitchell rein statement Therefore the denial violated the Act and I shall recommend an appropriate reinstatement and back pay order Jeff Ratigan was apparently denied reinstatement based on a complaint report of an event occurring on 28 Janu ary submitted by Security Officer Irwin McGarrell McGarrell reported that Ratigan , who was identified to him subsequently by other security officers supposedly made an obscene comment to employee Cindy Love as HOTEL ROANOKE 217 she was walking across the parking lot to go to work Neither Love nor McGarrell testified in this matter, and thus the entirety of the Respondents evidence concern mg Ratigan is contained in the report and is, of course, hearsay Although the report may be sufficient evidence to support the Respondent s initial burden of a good faith belief that the event happened such is not persuasive in view of the credible live testimony of Ratigan Ratigan testified, presumably, to the incident reported by McGarrell Although he stated he did not remember precisely what he said on this occasion nor could he identify to whom his remarks were directed, he did re member that he used the word "sleazy,' and that when confronted by Security Officer Helms, he said, "It was me, it was me, it was me' Even accepting the Respondents evidence without qualification, at most it is an incident of a striker making a vaguely obscene comment to an employee you had better get your sleazy ass up there and get to work girl and keep sleazing around because your ass am t going to be here long Although it is highly questionable wheth er in fact Ratigan uttered these words precisely as writ ten in the report, even if he did, such amount to little more than a vulgar epithet Such is not so serious to deny one his protection under the Act Accordingly, I conclude that the Respondent's evi dence that Ratigan engaged in egregious acts of picket line misconduct has not been established by persuasive and competent evidence I conclude that by denying Ra tigan reinstatement , the Respondent violated the Act I shall recommend an appropriate reinstatement and back pay order Betty Shockley was denied reinstatement apparently be cause she was alleged to have participated in picketing to obstruct the entrance to the Hotel during the early days of the strike and, more seriously to have threatened em ployee Mane Clark on the day the strike began and sub sequently The incident of obstructing traffic was report ed by Chief of Security Mills on 3 October He reported that about 4 55 p in , Betty Shockley and Shirley Spell man patrolled slowly in front of the entrance to the parking lot occasionally stopping so that one of them was almost always in the middle of the place where traf fic would be driven This had the effect of slowing down traffic, particularly railroad employees who were leaving work Roanoke city police were called They arrived and talked to Spellman and Shockley Shockley and Spellman admit they picketed across the entrance to the driving lot or in front of the driving lot, particularly during the early days to the strike, but both deny that they obstructed traffic' or picketed in such a way as to stop traffic Neither Mills report nor his testimony concerning this do more than suggest in a conclusionary manner that the pickets obstructed traffic There is no indication in Mills' testimony or report of the extent to which traffic was blocked or inconvenienced Based on the testimony of Mills and his report I conclude that the Respondent of fered insufficient evidence to support the contention that Shockley's picketing at the parking lot was such that it amounted to egregious misconduct of the sort that should deny her protection of the Act It may very well be that Shockley and Spellman in fact picketed in such a way that the flow of traffic was disrupted Such however, is not of itself particularly se nous misconduct Disruption of ingress and egress of ve hicles is often associated with picketing and is the type of thing to be expected When a strike occurs, there nec essanly and commonly will be some disruptions The question is whether the acts of disruption are so serious as to deny one continued employment, which is very se nous indeed Although it is possible for a picketer to dis rupt traffic in a manner exceeding the permissible bounds of strike activity, I do not believe that the Respondent presented sufficient evidence that Shockley or Spellman did Mane Clark submitted a statement, dated 14 October, in which she stated that on 1 October when the strike began, Betty Shockley and others "started to leave They told me to come and I said no Betty Shockley said they would wait on me I told her to go on, I was staying She then said if I didn t leave with them I would be very sorry I told her to go on and leave me alone They left the building' Clark went on to report that thereafter, she and members of her family began receiving crank phone calls at her home Although she could not identify who made the calls, she stated in the report that Betty Shockley was the only one here who had her phone number And Clark reported that her daughter had stated that Shockley one time had called the house The substance of Clark's written statement was testified to by her Clark's statement, as elaborated in her testimony, does not reliably prove that Shockley made any kind of tele phone call to her residence The contention that Shock ley did is based on hearsay and a very weak inference, neither of which can be accepted as proof of the alleged fact in the face of Shockley's credible denial that she made such telephone calls Based on the credible evi dence of record, I conclude that in fact Shockley made none of the telephone calls apparently relied on by the Respondent in denying her reinstatement The statements made by Shockley to Clark at the outset of the strike do not suggest a threat to Clark in any meaningful substantial, or objectionable way No doubt Shockley told Clark to join them in the strike, and when Clark declined to do so, she made some statement Even accepting without qualification Clark s version that Shockley said If I didn t leave with them I would be very sorry, ' this is not such a threat of harm sufficient to deny one protection of the Act Under the circumstances here, where most employees were going out on strike but others were declining to do so there was no immedi acy to the alleged threat of harm Nor in fact was Clark harmed Although Clark testified at length concerning this matter, in general her testimony was conclusionary and not based on sufficient credible facts to support the Re spondent s contention that Shockley engaged in serious acts of picket line misconduct Accordingly I conclude that by denying Shockley re instatement the Respondent violated the Act, and I shall 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recommend an appropriate order of reinstatement and backpay The principal allegation of picket line misconduct against Earl Smith involves an incident that occurred about 6 p in on 20 March, where it was reported that Smith made some very obscene comments to employee Linda Torres as she was leaving work Torres testified that she reported this incident to Secu my Officer Joseph Osborne who drafted a complaint report On his report he stated he asked Torres to identi fy the individual in question, which she did Then Os borne in turn contacted Security Officer Miller and pointed out the individual to Miller to get a name identi fication Miller testified that the individual pointed out to him by Osborne was Earl Smith Torres does not know and could not identify Smith as being the individual who made the comments to her Miller was not present during this event and did not take the statement from Torres, nor did Torres identify her verbal assailant to Miller Rather, Torres made the iden tification to Osborne who in turn sought help from Miller Osborne did not testify There is a serious and fundamental lacking of eviden teary connection between the person Torres testified made the verbal assault on her and the ultimate identifi cation of Smith as being the one who allegedly commit ted this act At best, the chain of identification is estab fished through hearsay evidence Although such may be sufficient to support a good faith belief that Smith en gaged in the conduct alleged, it does not suffice to prove the matter I was impressed with Smith s demeanor He testified that he did not in fact make the statements attributed to someone by Torres In view of this credible denial and the lack of persuasive competent evidence that he in fact was the one who did so, I conclude that the Respondent failed to establish that Smith committed this particular act of misconduct Such cannot be a basis for Respond ent s subsequent denial of reinstatement of Smith The Respondent presented evidence of two other inci dents allegedly involving Smith on which it apparently also based its decision not to rehire him Security Officer Ralph Miller reported that on 22 March about 6 15 p in Earl Smith drove his black car all the way into the loading dock, blew his horn and backed out Although Smith credibly denied having engaged in any such act at any time during the course of the strike even if it oc curred as reported by Miller, it is too trivial to be con sidered egregious conduct of a nature to deny one his protection under the Act Finally, Security Officer Helms reported that on 3 Oc tober it was reported to him that Earl Smith followed the hotel van as the van was taking nonstriking employ ees home The report states variously that the driver of the van was either David Phillips or Mark Davis There is, however, no detail in the report nor testimony from the driver of the van suggesting exactly what it was that Smith was supposed to have done, and how long he did it Smith testified that on one occasion in the early days of the strike, he did follow the hotel van for approxi mately a mile but that he did not follow it to employees homes Even accepting the statement set forth in the security report as accurate, and accepting Smith's admission con cerning this event, it appears to be too insubstantial to justify denying one his rights under the Act Perhaps there is an implied threat associated with a striking em ployee following a van of employees, if in fact the van was full of employees at the time However, Smith fol lowed the van for such a short period of time as to negate whatever threat might be implicit in this In short, I simply do not believe there is sufficient evidence of egregious picket line misconduct associated with follow ing the van as to justify the Respondent denying Smith reinstatement Accordingly, I conclude that the Respondent violated the Act by refusing to recall Smith and I shall recom mend an appropriate reinstatement and backpay order Similarly, the principal allegation of misconduct against John Swain is his having followed the hotel van on 10 October The Respondents evidence concerning this matter is a report by Chief of Security Edward Mills, reporting what he had learned from employee Willie Foster The report states that Swain, who was subsequently identified from pictures, followed the van some distance to the home of employee Karen King Although Swain testified that he followed the hotel van for a distance of some 2 miles he stopped at a red light and the van went on He testified, credibly I be lieve, that he did not follow the van to any employee s home The basis of the report that Swain followed the van to Kings house is unknown Mills did not testify concerning this particular report nor did any of the ap parent witnesses such as King or Foster, testify In view of the paucity of evidence offered by the Re spondent concerning this, and given Swain s generally credible testimony concerning following the van I con elude that the event occurred as testified to by Swain that on one occasion he followed the Hotel van for ap proximately 2 miles and then ceased As with a similar incident involving Earl Smith, I conclude that this event is simply too insubstantial an implied threat to deny Swain protection of the Act Under other circumstances the act of following a hotel van might be considered se rious misconduct, but here it was not Swain is named as one of three strikers allegedly in volved in starting a leaf fire about 2 15 a in on 8 No vember (Lanier and Cotton are the other two) And, along with Lanier and Cotton, Swain is also alleged to have thrown apples at two security guards on 8 Novem ber As the discussion regarding Lanier and Cotton con cerning this event is applicable to Swain, I do not be lieve that the Respondent established that these events occurred or if they did, that they were sufficiently sen ous to justify denying a striker his protection under the Act Swain is also included in Crandall s report of 18 Octo ber where he stated that a rock was thrown about 3 35 a in against the garage door Crandall reported that he saw Wade, Cotton and Swain standing in front of the HOTEL ROANOKE 219 garage after he heard the rock hit This incident was re ported by Security Officer Benton Nestor, presumably the hotel security officer to whom Crandall made his report As above, I do not believe that this report of Crandall is sufficient to establish that Swain threw a rock or otherwise engaged in a serious act of picket line mis conduct I conclude that none of the events reported, in which Swain's name appears, are of sufficient seriousness or were established with sufficient credibility so as to justify the Respondent in denying Swain reinstatement follow ing the close of the strike I conclude that by denying Swain reinstatement the Respondent violated the Act, and I shall recommend an appropriate backpay and rein statement remedy Robert Tankesley was apparently denied reinstatement based on an event in which he participated during the evening of 3 October C Brown Pearson testified that he arrived at the Hotel about 10 p m on the evening of 3 October to attend a function As he drove into the hotel parking lot he was stopped by several individuals He asked them what the problem was, and they told him that they were on strike and not to go into the Hotel At that time somebody mentioned that if he did, something would happen to his car There ensued a discussion con cerning the strike and why employees were on strike Toward the end one striker stated, Get out of here Just don t be surprised if your car gets all torn up Pearson testified he said, Well, wait a minute, don't talk about doing anything to my car' Pearson went on to testify that an individual ran around the back of his car and up to the door on the driver's side and jerked the door open Pearson then reached for a 22 caliber pistol which he has a permit to carry and which was in the car at the time He pointed the pistol at the individual Thereafter, two other strikers pulled the one away who had opened the door Pearson then went into the Hotel, found a security of facer made a brief report then checked in and went to a social event He returned to the security area shortly thereafter At this time, a Roanoke city policeman was there with Robert Tankesley, who Pearson identified as being the individual who had pulled open the car door The policeman interrogated Pearson concerning his right to carry the pistol, and then left Tankesley and fellow striker John Burke testified to this incident Both denied that Tankesley ran around behind Pearson s car or opened the driver s side door and both denied any statements were made concerning potential damage to Pearson s car Tankesley did admit that he told Pearson I hope you have four flat tires when you come out There is a direct credibility conflict concerning wheth er in fact Tankesley opened Pearson s car door On this issue I credit Pearson His testimony was candid, inter nally consistent, and not apparently subject to exaggera tion As far as I am able to determine Pearson is a disin terested witness with no stake in the outcome of this matter And generally, I found his demeanor credible Tankesley of course, does have a stake in the outcome of this matter, and generally his testimony did not appear so candid Burke's testimony is not particularly defini tive In testifying to the confrontation Tankesley had with "the man who pulled the gun out,' Burke testified, I wasn t looking too much at what was going on anyway " I simply cannot believe that one s attention would not be riveted to a confrontation which resulted in a pistol being produced I do not credit Burke's at tempt to corroborate Tankesley's denial of his participa tion in the confrontation I conclude that the event occurred substantially as tes tified to by Pearson After threatening possible physical damage to the car, Tankesley gave immediacy to this threat by approaching the car and opening the door on the drivers side Notwithstanding that Tankesley's act was apparently met by a superior reaction, I conclude that Tankesley did in fact engage in an egregious act of misconduct on the picket line sufficient to conclude that he thereby lost protection of the Act I therefore con clude that the Respondent did not violate the Act in re fusing to reinstate Tankesley, and I shall recommend that this portion of the consolidated complaint be dismissed It appears that Michael D Taylor was denied reinstate ment because of two reports of his having thrown ob jects onto hotel property (There is also a report of the Taylor boy" participating with Vera Hill in her alleged act of trespassing and abusive speech, supra Suffice it that there is nothing in the report nor in the testimony of Ralph Miller, the security officer who wrote it, to sug gest whether Michael Taylor was in fact the Taylor boy " Accordingly this incident without more, could not be the basis for denying him reinstatement ) Throwing objects onto company property can be sera ous or trivial, depending on the object and the attendant circumstances Therefore, even accepting the reports of Security Officer 0 Neal, dated 7 October and 12 Novem ber, relating to Michael Taylor having engaged in throwing an object," the Respondent must further show that the object thrown posed at least a potential chance of personal or property damage Although 0 Neal testified at length, he really did not expand on his written reports in any substantive way The report dated 7 October states that he observed Taylor throwing an object towards Wells parking Mr Nestor [another security officer] and I could hear the object strike one of the cars that was parked at Wells Michael Taylor threw two objects towards Wells park ing lot striking cars 0 Neal apparently did not investi gate whether in fact there was damage done to the cars although he did report that he heard or saw the object strike the cars Presumably, had Taylor in fact thrown an object with such force as to strike a car and cause it damage, that damage would have been apparent to O'Neal who would reported it Why O'Neal did not fur ther investigate this incident is unknown Similarly, O'Neal reported that Taylor and Vera Hill threw an object at the hotel van as it drove by, and I could hear the sound of glass hit the street ' In testimo ny 0 Neal stated And they just threw the glass to wards the van, as if they were trying to break the glass so that the van could run over it Presumably the security officers were instructed to make complete investigations Thus, if in fact Taylor 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD threw a glass object which broke as it hit the street or the van which is the import of 0 Neal s report and testa mony then there should have been some evidence of it which he would have reported Again there is no indica tion that in fact the van was damaged, or what in fact was thrown by Taylor Finally, 0 Neal reported again on 12 November that he saw Taylor throw an object that hit the roof of the old garage, and he heard the sound of glass There is no indication, however of whether there was in fact damage done or what in fact Taylor was supposed to have thrown The absence of such facts from the report suggests they were not deemed helpful in making a case against Taylor In other reports, where detail appears helpful, it is included Given she conclusionary nature of O'Neal s report and the fact that a more definitive investigation was not made concerning the objects allegedly thrown by Taylor and the presumed damage done I conclude that the Re spondent has not presented sufficient persuasive evidence to establish that any throwing incident which Taylor may have participated in was of such a serious nature as to deny him protection under the Act Accordingly I conclude that by refusing to reinstate Michael Taylor the Respondent violated the Act and I shall recommend an appropriate backpay and reinstatement remedy T Arthur Taylor was also denied reinstatement As with the others who allegedly engaged in misconduct, the Respondent does not state precisely the basis of his denial As noted above, in a report dated 7 December by Se cunty Officer Miller concerning trespassing plus abu sive language, it is alleged that the Taylor boy chimed in also Even if this report establishes sufficient acts of misconduct to justify denying reinstatement (which I do not believe), there is insufficient identification to associ ate Arthur Taylor with the alleged activity Miller did not testify that Arthur Taylor was one who participated and Taylor denied he in fact did so Thus, I conclude that the Respondent failed to establish Taylor s participa tion in the alleged acts of 7 December Security Officer 0 Neal reported that on 5 October about 2 a in he observed Arthur Taylor along with sev eral other strikers walking near the Wells parking lot He reported that he observed Taylor and one other throw some kind of object or objects out to the parking lot The police were called and Taylor and the other striker were searched At this time Taylor produced an egg which O'Neal reported as being raw, and which Taylor testified was hard boiled There is no indication by O'Neal either in his report or in his testimony what the nature of the object was which was supposed to have been thrown on the parking lot Nor is there any indication that he made an effort to find out There is no evidence at all that the alleged act re ported by 0 Neal actually or potentially was the cause of personal or property damage, nor, indeed, that Taylor did anything more than make a motion which is normal ly associated with throwing The fact that Taylor had an egg in his pocket does not tend to prove that he engaged in any act of picket line misconduct After all people do eat eggs From the Respondents evidence regarding this matter I conclude that it failed to establish a factual basis that Taylor engaged in any act of egregious misconduct which would justify denying him reinstatement Accord ingly, I conclude that by refusing to reinstate Taylor, the Respondent violated the Act and I shall recommend an appropriate reinstatement and backpay order That unreliability of the incident reports establish actual facts (as distinguished from giving the Respondent a good faith belief), is demonstrated by 0 Neal s report in which he stated specifically that Taylor was found to have in his possession a raw egg On cross examination 0 Neal was asked Q You don t know whether the egg was raw or whether it was hard boiled, do you? A No Although this may seem insignificant the fact is that O'Neal reported more than he actually observed Why he did so is unknown, however, it is noted that common ly when it comes to throwing things, it is raw eggs and not hard boiled eggs which are the missiles Raw eggs make more of a mess In denying reinstatement to Samuel Terry, the Re spondent relied solely on a statement given by Shawn J Moore to Security Chief Mills dated 8 October The gist of this statement concerns certain allegedly threaten ing remarks made by Terry to Moore as Moore was leaving work at the Hotel about 12 07 a in on 8 October Moore was not called as a witness, nor did the Re spondent offer the testimony of anyone else who might have observed this alleged event Terry testified, credibly and uncontrovertably, con cerning a discussion he had with Moore during the early days of the strike Terry testified that he and Moore are longtime friends and they live in the same neighborhood Indeed Terry named a son after Moore And Terry knows Moores parents and grandparents Thus when Terry observed Moore leaving the Hotel premises he did call him across the street and they did have a discussion concerning the basis for the strike at which time Terry told Moore to be careful There ensued a discussion in which Moore stated that he was not afraid that he had a gun and so forth Under these circumstances particularly including the fact that Moore and Terry are longtime friends, I do not believe the statements Terry made to Moore can be con sidered threatening I discount Moore s statement to Officer Mills because it is hearsay and Moore was not called as a witness The statement cannot be accepted particularly in the face of Terry s credible and uncontroverted denial of the precise statements attributed to him The conversation as testi fled to by Terry was not of such a nature as to amount to egregious picket line misconduct Accordingly, I conclude that by denying Terry rein statement the Respondent violated the Act, and I shall recommend an appropriate reinstatement and backpay remedy The name of John Wade Jr appears in several incident reports The alleged activity summarized in these reports HOTEL ROANOKE apparently forms the basis of the Respondents denial of reinstatement to him The General Counsel and the Charging Party contend that the Respondent failed to es tablish by credible evidence that the incidents occurred as stated in the reports, and/or that the activity alleged is not sufficient to deny one reinstatement Specifically, the Charging Party contends that Wade was denied rein statement not because of any of the incidents alleged in the reports, but because of his relationship, the precise nature of which was not stated, with Union President James Wade For the reasons given below, I conclude that the Re spondent was justified in denying Wade reinstatement As with so many of these cases, there is a credibility conflict between the Respondents witnesses (normally security guards) and Wade In such event I specifically discredit Wade I found his demeanor to be that of an unpersuasive witness His testimony was cutesy and in some cases outright implausible For instance, he stands 6 feet 1 inch and weighs 270 pounds In one incident he was referred to as big John He denied that he was ever called big John Although Wade s name appears on many of the mci dent reports which have been discussed previously, the most serious allegation against him is an event which Se cunty Officer Carlisle reported as having occurred on 7 October about 4 08 am Carlisle wrote that as he was going through the parking lot, in response to a radio message from another security officer, I observed a rock coming over the fence When I raised myself up I observed John William Wade releasing a rock that hit a Buick station wagon Carlisle elaborated in his testimo ny concerning this incident When I reached the next to last row of cars at the corner, I saw an object coming over the fence I raised myself up to run towards the corner when I seen one subject like a basketball hook shot a rock about the size of half a buck just releasing it from his hand coming over and landing on a windshield of a Buick station wagon The individual throwing the rock was identified as Wade Unlike other incidents reported of throwing ob jects, where there was no further investigation or identi fication of the object or whether damage had been done this incident is specific in detail Wade threw a large rock that hit an automobile which I conclude presump lively caused some property damage sufficient to deny Wade his right to reinstatement As indicated, there is a direct credibility conflict con cerning Carlisle s testimony and Wade s denial, 'I didn't throw no rocks that day, although Wade did remember having heard a car being hit with some kind of an object on the date indicated Another incident involves an allegation of verbal abuse directed by Wade to employee Wanda Davis on 22 March Although the incident is vulgar and amounts to verbal sexual abuse and is certainly not to be condoned, there is in it nothing particularly threatening nor is it the type of activity that normally would justify denying the striker his right to reinstatement I do however, credit 221 Davis assertion concerning the event and specifically discredit Wade s denial that he made the comments to Davis attributed to him The other incidents attributed to Wade are much less serious and would not generally be of the type or char acter to deny one reinstatement Nevertheless, I conclude that the one incident of spe cific identifiable property damage from throwing a rock is sufficient to deny Wade protection of the Act I there fore conclude that the Respondent did not commit a vio lation by not recalling Wade, and I shall recommend that this portion of the consolidated complaint be dismissed Finally, Margaret Watson was denied reinstatement presumably because she engaged in misconduct her name being on the list of those whom the Respondent did not recall for that reason However, so far as my pe rusal of the record reveals, her name appears on no mci dent report There was no testimony presented by the Respondent concerning any acts which she allegedly en gaged in, nor did the Respondent argue orally or on brief concerning any specific acts she allegedly commit ted that would justify denying her reinstatement Based on this, I conclude that the Respondent present ed insufficient evidence to justify its denial of reinstate ment of Watson I therefore conclude that, by denying her reinstatement the Respondent committed a violation of the Act and I shall recommend an appropriate rein statement and backpay remedy Watson was reinstated on 21 March 1985 5 Discriminatory reinstatement of strikers It is alleged (as amended at the hearing) that 39 strik ing employees as well as other employees whose names are presently unknown to the undersigned' were discn minatorily denied reinstatement in violation of the Act It is alleged, and argued, essentially that in recalling strikers the Respondent did not follow seniority and, on returning to work, these individuals were denied their se nionty as well as other rights and benefits, particularly including shift preference and insurance Though not separately alleged, the General Counsel and the Charg mg Party additionally contend that by discriminating against certain returning strikers with regard to shift as signments and the like, the Respondent also violated the strike settlement agreement It is axiomatic that an employer is not permitted to discriminate against returning strikers, and where it does so then it has the burden of proving a substantial business justification in order to avoid the sanctions of the Act NLRB v Great Dane Trailers, supra Under Great Dane, the fact of treating returning strikers differently from nonstrikers or other employees carries with it proof of the proscribed motive Thus to satisfy the burden of proof, the General Counsel need only show that return ing strikers were in some way treated differently than nonstrikers or strike replacements Should the General Counsel establish such facts the burden shifts to the Re spondent to show a substantial business justification for having acted the way it did Much testimony and voluminous records were intro duced by counsel for the General Counsel 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In paragraph 27 of the consolidated complaint it is al leged Since on or about April 16, 1984 the exact dates being unknown to the undersigned , Respondent re called employees named in Appendix B, who en gaged in the strike described above in paragraph 19, back to work at Respondents facility Also, paragraph 28 states Since on or about April 16, 1984, Respondent failed and refused to reinstate the employees de scribed above in paragraph 27, as well as other em ployees whose names are presently unknown to the undersigned , in seniority and to their former posi tions, and has denied their seniority rights and other benefits Initially, it should be noted that a letter of understand ing, dated 16 April and attached to the contract , states in material part 1 There will be a minimum of one hundred sixty (160) full time jobs at the employer Employees in these positions will be considered full time employ ees as referred to in Article I, Section 4, of the agreement 2 Employees who are on the payroll of the em ployer on or before 1 October 1983 will be placed into their jobs according to their seniority and there classification Any such employees whose seniority is not sufficient to claim these full time positions will be able to claim whatever schedules and/or hours that become available according to their se nionty in that classification There is no allegation nor argument from the General Counsel or the Charging Party that the Respondent breached these provisions of the letter of understanding The essence, as I understand it of their argument is that those striking employees who were recalled have not re ceived as many hours as they would have received had the status quo been absolutely preserved by the employ er As will be discussed in more detail below the Gener al Counsel argues that the employment records of the various departments show that the Respondent has al lowed junior employees proportionally larger number of hours than they had received prior to the strike Re spondent tended to skew its pre and post strike seniority resulting in closer earnings between old and new em ployees This clearly favors replacement employees at the benefit of strikers " The strike settlement agreement, as noted above, states, inter alia 1 All striking employees shall be recalled to work in the classification which they held prior to striking, or its equivalent, by seniority within three (3) months from the date of the ratification of the collective bargaining contract, with the exception of the employees as specified in paragraph 2 herein (the alleged strikers who engaged in misconduct) By this provision, the Respondent in effect argues that the nature of its business was such that it could not recall all the strikers at one time but had to wait until business justified returning them to work Even then it could not go strictly by seniority in recalling specific employees because of the exigencies of its business Accordingly, the Respondent argues that in negotiating the strike set tlement agreement it agreed with the Union that it could have a 3 month period within which to reinstate all the stnkers whom it deemed eligible The General Counsel contends this provision, lawful on its face, was unlawful ly implemented Therefore it is not binding and should not be considered by the Board to exonerate the Re spondent Given the nature of the Respondents business, I con elude that the agreement to reinstate strikers over a period of 3 months was not unreasonable Although there is nothing particularly sacrosanct about seniority, in labor relations matters all else being equal , normally seniority is the prevalent consideration The point is, however, the mere fact that an employer recalls strikers out of seniority, particularly in an industry such as this, does not prima facie demonstrate that it acted with a dis cnmmatory motive There is nothing inherently discnmi natory about recalling striking employees of a hotel over a 3 month period as business demands dictate, nor is there evidence in this matter to support a conclusion that the Respondent should have recalled strikers in a differ ent order than it did Thus, to the extent the General Counsel contends that the order in which strikers were recalled was unlawful, I find no violation The General Counsel also contends that by changing the method of scheduling , the Respondent now gives more hours (and therefore earnings) to junior employees at the expense of senior ones Neither the General Counsel nor the Charging Party specifically briefed this issue other than to note as the General Counsel did, that in its recall of strikers the Re spondent tended to skew its pre and post strike senion ty resulting in closer earnings between old and new em ployees However at the trial of this matter counsel for the General Counsel stated that the allegations of these paragraphs relate to the Respondents denial of in surance benefits to returning strikers And implicit in the arguments and briefs of counsel is that the reinstatement of strikers during the 3 month period some of whom were called back out of seniority, was discriminatory The evidence reveals and the Respondent admits that in fact some employees (indeed many) were recalled not always in order of seniority Respondent also admits that during the course of the strike and consistent with its ne gotiating position and its management right under the new contract it did in fact change its method of schedul ing so that less senior people would get more work than they had previously Thus the total record supports the conclusion that (a) strikers were recalled without consideration to seniority, however by the end of 90 days after execution of the strike settlement agreement, all strikers whom the Re spondent had not determined to refuse to reinstate were recalled, and (b) the method of scheduling , particularly HOTEL ROANOKE in the banquet department, changed such that some junior people got more hours, which had the effect of re ducing the hours available for more senior people There is, however, no evidence that any individual listed in Appendix B of the consolidated complaint spe cifically was discriminated against on returning to work, either in terms of hours available or other rights and ben efits There is no evidence that any returning striker was denied insurance or other benefits Whatever changes in rights and benefits any returning stnker may have suf fered at the close of the strike were common to all em ployees and were based on the contractual provisions agreed to on 16 April by the Union There is simply no evidence that the Respondent engaged in any discrimina tory acts against any specific returning striker or any group of returning strikers Although the method of scheduling the banquet de partment changed, according to the testimony of Jack Abbott, he further testified that this was necessary in order to ensure a more efficient operation in the banquet department He credibly testified that in order to serve more adequately the functions required of the banquet department, it was necessary to have 'a broader base" (people who work regularly) and in order to achieve this it was necessary to call in on a regular basis people with less seniority than some not called The effect of this would be that some junior people would receive hours at a time when senior people would be available for work I conclude that the agreement to recall strikers over a 3 month period contemplated allowing the Respondent to recall them, if indicated, out of seniority By making such an agreement the parties did not engage in an act that was unlawful Nor do I conclude on the facts before me, that the Respondent used a lawful strike set tlement agreement to discriminate against strikers be cause they had engaged in protected activity Given the nature of the industry, it does not seem unreasonable (and therefore not patently discriminatory) to have a fixed period of time within which strikers could be re called without considerations of seniority Similarly, I conclude that the Respondent amply ,juste feed the basis for changing the method in which it sched uled the banquet department as well as others Thus by scheduling them in accordance with the new method, the Respondent did not discriminate against individuals be cause they had engaged in protected activity Although it may be the case that some individual returning strikers suffered some loss of earnings as a result of the change in scheduling procedure, whatever discrimination is ether ent in this was, I think rebutted by the Respondents evi dence, particularly the credible testimony of Abbott Further, some returning strikers benefited by the change in scheduling method Such belies a conclusion that strik ers were treated detrimentally in favor of nonstrikers Finally, there is no evidence in the record that return mg strikers lost insurance or other rights and benefits be cause they had engaged in protected activity It may well be that certain returning strikers, because of the lowness of their seniority and the lack of available full time jobs, ended up being part time employees And it may be that some of those individuals as a result lost benefits which are applicable only to full time employ 223 ees Although no specific individual was demonstrated to have been in such a position, even if such had occurred, on the facts before me, I do not believe that the Re spondent violated the Act Again, based on the agree ments between the parties and the nature of the Re spondent's industry, it appears that in fact all strikers were taken back, that the Respondent agreed to 160 full time jobs, and that others would be filled by part time employees The Respondent further agreed and there is no evidence that this was breached, that no strike re placement would be given preference in a job to any re turning striker On the basis of the above, I conclude that the General Counsel failed to establish by a preponderance of the credible evidence that the Respondent discriminated against those individuals whom it actually recalled to work, and I shall recommend that these allegations of the complaint be dismissed D The Refusal to Furnish Information On 30 May and again 8 June, Wiley M Craft, local counsel for the Union, wrote representatives of the Re spondent (Dunn and Kipp, respectively) asking for infor matron concerning those individuals who had not been reinstated and the reasons for the Hotel s actions In spe cific, in his letter of 8 June to Kipp, Craft wrote, inter alia We would request that you advise us, either me as the legal representative of the individual employees and the Local Union, the Local Union or the indi vidual employees of the status of such employees at the hotel, and if they have been discharged from their employment, the reason or reasons for such discharge This way we can review each case of discharge and decide which merits hearing before the N L R B Kipp wrote back that the matter had been turned over to legal counsel, and on 24 July Craft wrote Gardner who responded on 25 July in pertinent part Miss Dunn has told me that she documented carefully the reasons why each employee was not called back since the settlement of the strike She presented this evidence at the unemployment com pensation hearings and I understand you were present at most of these In addition there were replacements in each of the job positions these employees formerly held It is my understanding that Miss Dunn used the Na tional Labor Relations Board guidelines in this regard, but if you believe this is not correct, the ap propnate course of action would be to discuss the matter with a representative of the Board It is clear from the undenied testimony of Craft, as well as this correspondence, that the Union in fact made a request for certain information concerning employees in the bargaining unit who had not been recalled at the end of the strike, and that this information was not fur nished by the Employer 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although some of the information requested may in fact have been in possession of the Union through other sources (the unemployment compensation hearings), nev ertheless the Respondent is required under the Act to furnish the Union all relevant information requested nec essary for the Union to perform its duties as the statutory representative of employees See generally NLRB v Acme Industrial Co, 385 U S 432, 435 (1967) The Respondents failure to furnish the information re quested in this case is a clear violation of its statutory ob ligations to bargain in good faith with the representative of its employees, and by refusing to furnish this informa tion, the Respondent violated Section 8(a)(5) of the Act I shall recommend that it cease such activity and shall recommend an appropriate remedial order E The Change in Past Practices In paragraph 34 of the complaint, it is alleged that on 18 September the Respondent notified the Union it would no longer be allowed to post notices on the bulle tin board, and in paragraph 35, it is alleged that on 19 September the Respondent hired a new employee with out posting the job for bid as had been its past practice It is alleged by these acts that the Respondent unilateral ly changed past practices and accordingly violated Sec tion 8(a)(5) of the Act Neither the General Counsel, the Charging Party, nor the Respondent briefed these allegations A perusal of the record has disclosed no evidence tending to support factually the basis of these allegations Beyond that, it is noted that whatever may have been the Respondent's past practice, the parties negotiated a new collective bar gaining agreement which was meant to be a comprehen sive document concerning how all matters , including those set forth in these paragraphs of the complaint, would be treated Specifically in the new collective bar gaining agreement it was agreed that past practices which were not specifically set forth in the collective bargaining agreement or letters of understanding would not prevail Thus, even if it could be found that the Re spondent had a past practice as alleged in these para graphs of the complaint and that on 18 and 19 Septem ber it acted contrary to those past practices, nevertheless, I could not, without more, conclude that the Respondent thereby violated Section 8(a)(5) of the Act On these considerations, I conclude that the General Counsel failed to establish by a preponderance of the credible evidence the factual or legal basis to support its allegation that the Respondent violated Section 8(a)(5) of the Act by unilaterally altering past practices in Septem ber 1984 I shall recommend that paragraphs 34, 35, and 36 of the complaint be dismissed F The Suspension of Bettie J Smiley Bettie J Smiley according to her testimony, was sus pended on 3 July 1984 at 2 15 p in by Karen Dunn be cause, as best Smiley was able to determine, Dunn had accused her of organizing for the Union while on the job Apparently , following Smiley's suspension the Corn pany further investigated this matter, contacted Smiley and she was reinstated on 11 July, but was never paid for the roughly 8 days of lost work Although Dunn testified generally concerning this matter, the Respondent brought forth no evidence rebut ting Smiley s testimony that in fact she was suspended on 3 July Nor did the Respondent offer any explanation of why Smiley was suspended or any nondiscriminatory justification for it Given that Smiley was one of the most active partici pants on behalf of the Union prior to the strike, was an officer in the Union and participated in the events fol lowing the strike, and given her generally credible and undenied testimony that Dunn made references to her union activity at the time she was suspended I conclude that the General Counsel established , prima facie at least, that Smiley was suspended in violation of Section 8(a)(3) of the Act The Respondent did not present any evidence to meet its burden of establishing that Smiley would have been suspended even absent her union activity Accordingly, I conclude that the Respondent failed in its burden of proof to meet the General Counsels prima facie case See Wright Line, supra Accordingly, I conclude that by suspending Bettie J Smiley on 3 July 1984, the Respondent violated Section 8(a)(3) of the Act and an appropriate backpay remedy will be recommended G The Threat to James Wade It is alleged that on 10 July the Respondent through Karen Dunn, informed the Union s secretary treasurer that if he returned to Respondents facility he would be arrested This alleged event occurred when Wade met with Dunn and other representatives of management concerning the Smiley suspension During the course of this meeting, Wade testified Ms Dunn said to me, she says, It is a shame- an old man like you to be as mean as you are I told her I says Well Ms Dunn I in old but I don t have far to go but you 're young and with the principals [sic] and attitudes that you have, you need to change them if you plan to be in the white election She told me then to get out and by that time we was all tired so I walked out of the room As I was walking out the room she said If you come back in again, we're going to have you put in jail Dunn testified about this meeting stating that, The purpose of the meeting was that I wanted to talk to B J about some of the things I had heard in her department that alarmed me' (Dunn denied that Smiley had been suspended and that this meeting concerned her reinstate ment ) She went on to testify that Wade was disruptive, and ultimately Wade asked if she wanted him to leave Dunn testified she told him no, but that if he did not want to continue the meeting but Smiley did she would continue to talk to Smiley In answer to the direct ques tion of whether anything was said about having anyone arrested Dunn testified, No The only thing he said was HOTEL ROANOKE 225 you're telling me to leave and I said, no, I in not telling you to leave The composite of the testimony is that in fact there was a heated discussion on 10 July in which Wade, Smiley Dunn and others participated Dunn's and Wades versions of this meeting differed to some extent Smiley generally corroborated Wades statement that Dunn made some reference to Wade being old and being like he was and she testified concerning Wades corn ment to Dunn Smiley, however did not testify that at any time Dunn told Wade anything along the lines that he would be arrested if he returned to the Hotel Given that this was a heated meeting, that the state ment attributed to Dunn by Wade at best was ambigu ous, and that Smiley did not confirm it, lead me to con elude that the General Counsel did not establish by cred able evidence that Dunn made any kind of a threat to Wade that he would be punished for engaging in protect ed activity Accordingly, I conclude that the General Counsel failed to establish by a preponderance of the credible evidence the factual basis for the allegation set forth in paragraph 30 of the complaint, and I shall rec ommend that it be dismissed H The Other 8(a)(1) Conduct The complaint alleges that several of the Respondent's management personnel engaged in various acts violative of Section 8(a)(1) prior to the strike These acts are pri manly threats to refuse to bargain in good faith, loss of jobs and the like In addition, it is alleged that following the strike, during orientation meetings, Karen Dunn made various statements to employees violative of Sec tion 8(a)(1), and that following the strike Billy Davis also made certain unlawful statements to returning strikers The facts and analysis of each allegation of 8(a)(1) activi ty will be treated seriatim as it appears in the consolidat ed complaint 1 Robert Holden During the material times involved in this matter, Robert Holden was the comptroller of the Respondent At the time of the trial he was employed by a competi tor Holden was called as a witness by the Respondent and testified at length however he was not interrogated concerning any of the allegations of 8(a)(1) statements by him, and thus neither affirmed, denied, or explained the testimony of the General Counsels witnesses I therefore rely in making the following findings concerning the al legations relating to Robert Holden on the testimony of witnesses for the General Counsel Dorothy Hedge testified that on three occasions imme diately prior to the strike Holden, who at the time was her supervisor, asked her if she was planning on going on strike On the first two occasions she answered that she planned to go out, and nothing more was said The third time, however, the night before the strike com menced, she said I said yes, I was going out on strike And he said, you know you won't have a job if you do? And I said, you mean to tell me that my work record hasn t been good enough that I would have a job no matter which way this strike, whether we won or lose He turned and didn't answer me and walked out That ended the conversation Vickie King testified that about 3 weeks prior to the strike she had a conversation with Holden, who was her supervisor at the time during which the possible strike came up, and I asked him about the benefits because at the time, I was six months pregnant, and I was really worried about them, you know, if I did walk out on strike, and he said that if I did walk out on strike, don t plan on coming back because the Hotel wasn t planning on signing any contract Betty Shockley joined the conversation and then Holden said that I'd be out on the picket line for a long time because, you know, like I said, the Hotel was not planning on signing a contract, and I said why, and he said well, the Hotel is trying to do away with the union In testifying concerning this event, Betty Shockley stated that she was kidding Vickie King because King was pregnant about having to have help carrying the picket sign Holden said, I hope you girls aren t dumb enough to go out on strike because the Hotel s not going to sign a contract and there s not going to be a union' The testimony of these three employees concerning what Holden said prior to the strike is generally credible and was undenied I conclude that prior to the strike Holden did interrogate employees concerning whether they planned on striking and followed such interroga tion with statements to the effect that if they were to engage in a strike they were in jeopardy of losing their jobs that the Hotel had determined in advance not to sign a collective bargaining agreement, and finally that the Hotel was undertaking a course of action to dissolve the Union Although interrogation of employees concerning po tential union activity and presumably whether or not they might engage in a strike is not per se prohibited by Section 8(a)(1) (Rossmore House 269 NLRB 1176 (1984) enfd sub nom Hotel & Restaurant Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985)), interrogation fol lowed by threats is to tell employees they would lose their jobs if they engaged in a strike and announcing a predetermination that the employer would refuse to bar gain and intended to undermine the Union makes the total context of the interrogation unlawful I conclude that the the general tenor of Holden s state meats to employees prior to the strike including interro gation of them concerning whether they would engage in protected activity, along with threats should they do so, were unlawful within the meaning of Section 8(a)(1) of the Act I shall recommend an appropriate remedial order 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Beth Hoffman" It is alleged in paragraph 6 of the consolidated coin plaint that in late July, Beth Hoffman, who at the time was personnel manager, "threatened employees that the Respondent would cease its collective bargaining rela tionship with the Union This allegation apparently re lates to the testimony of Sylvia Wilkerson who testified that she had a conversation with Hoffman at the waitress station in one of the Hotel restaurants Wilkerson testi fled A Beth Hoffman said shed like to talk to me about something but first I had to promise her that I wouldn t tell anyone else in the hotel She said it was very important that we keep it confidential, so I agreed Q Then what happened? A She said that the Hotel had plans to reopen the Ad Lip [sic] [the Ad Lib is another restaurant] and that she wondered if I was interested in a pos tion down there? Q What did you say? A I said no, I in not, I in not interested in work mg at night Q Then what happened? A She said well, that won't be any problem be cause the room will be open during the day as well as night You can probably work the same hours that you are now Q Then what happened? A I said well I'll have to think about it and talk to Allen and- Q Who s Allen? A My husband Q Was anything else said? A Yes after I said that she said well, don t be too long with your decision because I 11 be accept ing applications from outside the hotel and there is the possibility of a strike Q Did she say anything else besides the possibili ty of a strike? A After that she told me there wouldn t be a union at the hotel any more 11 On 20 September 1985 counsel for the General Counsel moved to amend the consolidated complaint by changing the date referred to in par 6 and adding a par 6(b) relating to Hoffman The proposed change in par 6 is not significant Though alleging the proposed addition of par 6(b) was fully litigated counsel for the General Counsel did not indicate what evidence is relied on to support the allegation nor show that the Respondent in fact was able to put on a defense to it On the first day of the trial an oral motion to amend the complaint with respect to Hoffman was granted with the stipulation that counsel put it in writing To the extent this is the written version the motion has been granted though it does not delineate all ways in which Hoffman allegedly violated the Act nor is the evidence relied on noted Although the following discussion does not specifically deal with each paragraph of the oral amendment it does deal with the testimony relating to Hoffman The General Counsel also moved to substitute new language for that contained in par 16(b) It appears the substituted language does not make a substantive change in the allegations but if it does there is no indica tion that the Respondent had sufficient notice to enable it to put on a defense I therefore deny the General Counsels motion to amend the consoli dated complaint Hoffman testified that she had many conversations with Wilkerson but believes the one referred to by Wil kerson concerned an event in which Wilkerson was ap parently having personal difficulties with other employ ees, and Hoffman told her the Hotel was considering re opening the Ad Lib and that she might want to transfer to a job there Hoffman denied making the statement concerning the union contract "I did not discuss the union contract with employees ' Although the versions of Wilkerson and Hoffman differ concerning some of the precise words said, gener ally they appear to have been testifying concerning the same event, namely, a conversation in which Hoffman offered Wilkerson the possibility of working at a differ ent location There is nothing in the subject matter of such a discussion which would be violative of the Act The General Counsels allegation regarding this con versation deals specifically with the contention that Hoff man said words which, in effect, could be taken to mean that the Company was going to sever its collective bar gaining relationship with the Union Even accepting lit erally the testimony of Wilkerson, such an interpretation is unwarranted In addition, while Wilkerson appeared to be a generally credible witness, as did Hoffman, I do not believe that statements likely to have been made to her by Hoffman would include threats that the Hotel was undertaking to cease its collective bargaining relationship with the Union Such would have been out of context with the subject matter discussed Hoffman denied making such a statement I therefore conclude that the factual proof of this alle gation is insufficient to find that the employee violated the Act as alleged in paragraph 6 of the complaint, and I shall recommend that it be dismissed 3 Herman Turk In paragraph 7 of the complaint it is alleged that in August, Turk (a) threatened employees that Respondent would refuse to sign a collective bargaining agreement with the Union, and (b) told employees that the Re spondent would engage in a pattern of conduct designed to eliminate the Union as the employees bargaining rep resentative The only evidence concerning these allegations sug gested by the General Counsel is in the testimony of Vickie King, who stated that about 3 weeks prior to the strike Turk spoke to her and employee Dolores Frazier King testified Well, I saw Herman standing there and I walked over and I asked him about the benefits, if we did go out on strike what would they be, and he said they would be the same that the Hotel wasn t trying to do anything take anything away from us and, then Delores said something I can't recall what she said, and to me it sounded like Herman was getting kind of upset, and he said well the union will not be there much longer Although Turk testified to a conversation he had one afternoon with Dolores Frazier, he did not testify either affirming or denying King's testimony He did, however, HOTEL ROANOKE 227 deny the conclusionary allegation that the Hotel `would refuse to sign a collective bargaining agreement with the Union' Although Turk's statement to King seems to indicate that the Respondent had undertaken a course of action designed to eliminate the Union , the statement does not say so, nor is there a predicate for this statement which would necessarily mandate that conclusion Given the paucity of evidence on the allegation set forth in para graph 7, therefore, I conclude that the General Counsel failed to establish the allegations contained therein by a preponderance of the credible evidence , and I shall rec ommend that paragraph 7 be dismissed 4 Michael Craghead The General Counsel contends that the allegations set forth in paragraph 8 of the complaint relating to Michael Craghead are proven by the testimony of Shirley Spell man Spellman was a striker who did not return to work on being contacted by the Union to see if she wanted her job back, because she had obtained employment else where Craghead was an assistant front office manager and Spellman's supervisor at the time Spellman testified that 3 to 5 weeks before the strike , she had a discussion with him concerning the strike and her concerns She testified So he was a friend, he is a friend to just about all of us that worked there , and he said well, he said They re wanting to get the union out of here And he said, I feel like the best thing for you to do is not go out They 11 make accommodations for you to stay in the Hotel And that was about the extent of it Although Craghead denied the conclusion that he `told employees that the Hotel would engage in a pat tern of conduct designed to remove the Union as the em ployees' collective bargaining representative , or that he made any kind of a threat he did not deny the sub stance of Spellman s testimony He did confirm that he and Spellman were and remain friends Further, Spellman testified as follows A Well, he [Craghead] wasn t sure as to what was going on Q Did he say anything after that? A But that he knew that if we went out on strike we wouldn t have jobs Q Did he say anything besides that? A Not that I recall Q Was the statement- A He said they would make a place for us to stay Q Did he say anything about the union A That they were out to get rid of the union That was said several times not dust one particular time, but that was said to me several times They were out to break the union, that they were going to get rid of the union Q Was that said by Mr Craghead9 A Yes, sir Q Was he, you're saying, you said he did not know a whole lot about what was going on A That he did know that they were out to get rid of the union Q That's the way he stated it's A That's the way he stated it Craghead did not deny this testimony of Spellman Although the testimony concerning the predicate for the allegations in paragraph 8 is somewhat vague, there can be no question on this record that an admitted super visor told an employee immediately prior to the strike, and in discussing the prospects of a strike, that the Com pany was out to get rid of the Union " Implicitly there fore, the message relayed to the employee by manage ment in this respect was that the employer would engage in a course of conduct designed to remove the Union as the employees' collective bargaining representative Such necessarily tends to interfere with the exercise of em ployees Section 7 rights I therefore conclude that the allegations set forth in paragraph 8 of the complaint have been established I do not find, however, in this testimony of Spellman a threat by Craghead that the Company would discharge and refuse to reinstate individuals who went on strike Accordingly, I conclude that the allegations set forth in paragraph 8(b) ought to be dismissed 5 Billy Fields It is alleged in paragraph 9 of the complaint that in August, Supervisor Billy Fields interrogated employees as to their intentions to strike The General Counsel contends that this allegation is supported by the testimo ny of John Bratton Q And what was said? A Well, he [Fields] wanted to know if we went out on strike, was I going to work while we was out on strike Q And what did you tell him? A Told him it wasn't none of his business He d find out when the time came Because there is no suggestion in the testimony of Bratton nor any contention by the General Counsel that Fields made promises of benefit or threats of reprisal in connection with this interrogation I conclude that in the context of this case it does not amount to an unlawful interrogation within the meaning of Section 8(a)(1) of the Act As the Board pointed out in Rossmore House, supra and in subsequent cases , not every act of interrogation by supervision is violative of the Act I therefore conclude that the interrogation testified to by Bratton was not unlawful and I shall recommend that paragraph 9 of the complaint be dismissed 6 Billy Davis It is alleged that prior to the strike , Davis interrogat ed employees as to their intentions to strike " This, ac cording to counsel for the General Counsel , is estab 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lashed through Tara Poindexter who testified that Davis asked her and another employee I remember he asked were we going on strike You see, he heard that we were going on strike, and I said well, we haven't really said we were yet He said well if you all strike, it's not going to do any good because this is just a tax write off for EN&W [sic] That s all it is They probably won t call you back Davis categorically denied that he interrogated em ployees whether they were going to go on strike or in tended to do so Poindexter testified that Kisha Buckner was also present during this conversation Buckner tests feed but was not interrogated concerning whether in fact Davis made the statements attributed to him by Poin dexter This credibility conflict could have been resolved, but was not, by a witness called by counsel for the General Counsel From this and Davis' generally credible de meanor, I conclude that the General Counsel did not es tablish by a preponderance of the credible evidence that in fact the conversation took place as testified to by Poindexter Rather, I conclude that Davis did not, as al leged, interrogate employees concerning their intention to strike, nor did he follow up such interrogation with a statement that the Company would not recall strikers Accordingly I conclude that the allegations in para graph 10 should be dismissed In paragraph 38 of the consolidated complaint, it is al leged that in May 1984, Davis informed employees re turning to work from the strike" that they had lost their seniority to strike replacements' and in July 1984 that he informed employees that guards would be watching them because of their participation in the strike' Al though these allegations were not briefed by any party it appears that the substance at least of the alleged loss of seniority was meant to have been established through the testimony of Gracie Wade Wade was a banquet department employee who on re turning from strike, testified that she noticed that she was not getting too much work, so she confronted Davis She testified that she asked Davis How did we stand here because it looks like we re not getting too much work, and he said-I said is the replacements over us and he said I m afraid so We were at the bottom of the list Davis categorically denied having told returning strik ers that they had lost their seniority However, he did testify extensively on cross examination concerning how returning strikers were treated vis a vis the strike re placements and the matter of seniority Davis testified, convincingly and credibly I believe, that it was his im pression we had 2 or 3 months period, or something like that to work all of the strikers back in the Hotel, and we had been told that we had to get rid of all the other help that we had been working He testified that because they had the other help they had to get rid of, it was not necessarily the case that returning strikers would get their seniority back immediately and that they had 3 months to get all the strikers back and have everything going like it should be Davis' detailed testimony is generally consistent with the strike settlement agreement and, I believe, is a credi ble recitation, at least of his understanding of how strik ers were to be returned to work Thus, I do not believe it credible that he would have told employees something different-namely, that the returning stnkers had lost se nionty, as seems to be the tenor of Wade's testimony I note further that Wade s testimony is rather sketchy and conclusionary, and I do not believe generally as credible as that of Davis Accordingly, I conclude that the General Counsel did not establish by a preponderance of the credible evi dence that Davis violated Section 8(a)(1) of the Act by informing employees that they had lost their seniority to strike replacements I was unable to find, on my review of the record, any testimony concerning the allegations set forth in para graph 38(b) of the complaint to the effect that Davis in formed employees that guards would be watching them because of their strike activity Nor was the testimony on which this allegation is based pointed out to me on brief Accordingly, I conclude that the General Counsel failed to establish by a preponderance of the credible evidence the allegations set forth in paragraph 38(b), and I shall recommend that paragraph be dismissed 7 Willie Hurt Willie Hurt Jr has been employed at the Hotel for 38 years and at the time of the hearing had been the maitre d in charge of food service for the Regency Room on the morning shift He is an admitted supervisor, and in the complaint he is alleged to have committed violations of Section 8(a)(1) in statements to employees in July, August, and September The General Counsels proof of these allegations consists of testimony from Constance Isbell and Jeandell Powell both of whom were sinkers and both of whom returned to work following the end of the strike The Respondents defense is the testimony of Hurt Isbell testified that prior to the strike she had four con versations with Hurt concerning the status of negotia tions and the possible circumstances in the event of a strike two by telephone one in the parking lot where she lives and one at the Hotel Hurt testified that he only talked to Isbell once prior to the strike Hurt tests feed that after negotiations started I didn t talk to Isbell at all but twice He had, however, testified that he was a social friend of Isbell s, and that prior to then he would talk to her on the telephone maybe once or twice a week Isbell testified that she was a waitress in the Regency Room on the night shift (and as such was not a direct subordinate of Hurt) Her first conversation with Hurt took place at the beginning of negotiations and was by telephone, during which Hurt told me that the hotel had been preparing for the strike for the past three years and that if we went out on strike that we would not get our jobs back She testified further that Hurt said, the hotel had no intentions of giving the Union a contract HOTEL ROANOKE 229 In a subsequent telephone conversation, Isbell testified that Hurt told her that Beth Hoffman had been brought into the Hotel as a union buster And he told her that the Hotel had no intentions of bargaining in good faith that we were not going to get a contract, that they had been preparing for this for three years Isbell testified that one evening in the parking lot where she lived, Hurt said the hotel wasn t going to give us a contract and that I should consider very sen ously about my job status, and that if I went out on strike I wouldn t get a job-I wouldn t have a job Finally, she testified that one evening about the time that the old contract expired, as she was coming to work, Hurt was leaving the hotel and I stopped to talk to him and he said that he had been in a meeting and we discussed the situation with the contract and bargaining for the contract, and he told us that the hotel had no in tentions of giving us a contract, that we were going to have to go out on strike because they were prepared for it' And he said the hotel was out to break the union " As indicated Hurt denied not only the substance of the conversations testified to by Isbell but denied that they had occurred at all, other than the one which took place in the parking lot of the housing project where she lives Tangential to the substantive issues of this case, but illustrative of the direct conflict between the testimony of Hurt and Isbell is their respective versions of how this meeting came about Hurt testified that Isbell called him at the Hotel and asked if she could borrow some money, and he said he would come by her housing project He did and gave her $30 At this time they had a brief discussion concern mg how negotiations for the new contract were going Isbell testified that she talked to Hurt in the parking lot but his presence there was, as far as she knew, mere happenstance She denied having called him or requested the loan of money Although this matter of whether Isbell called Hurt for a loan is not material to this case, it does show the direct credibility conflict between the two A resolution of this tends to shed light on the general credibility of each one Although it is not necessarily unusual or unreasonable for an employee to borrow money from a supervisor here there was no testimony which would tend to estab lash such as a pattern of behavior or that Hurt and Isbell were sufficiently close that it was probable Hurt made the statement that Isbell called to borrow money, with out testifying to a predicate which would tend to estab lash the believability of this event On the other hand, Is bell s denial was credible Both agree that a conversation took place in the park mg lot of the apartment project where Isbell lives, but there is no satisfactory explanation about why Hurt was there I tend to credit Isbell s testimony that she did not know-that he just appeared Given the incredulity of Hurts testimony about why he came to Isbell s apart ment and the lack of foundation for believability and comparing the respective credibility of their testimony, I conclude that Isbell s version is the more probable Because Hurt testified that he talks to Isbell quite often it is not credible that between the time negotia tions started and the strike he would cease doing so and have according to his testimony, only two conversations with her Though unclear from his testimony, perhaps he meant that only twice did these matters come up In any event it is my conclusion that Isbell's testimo ny is more worthy of belief than that of Hurt, and I therefore conclude that she had four conversations with Hurt during the months preceding the strike along the lines to which she testified During these Hurt threatened that the Hotel would refuse to sign a collective bargain mg agreement told her that the Hotel would undertake a course of action designed to frustrate the collective bar gaining process, and threatened employees with termina tion should they engage in a strike It is additionally alleged that in August Hurt told em ployees that the Hotel would engage in a pattern of con duct designed to break the Union as employees bargain mg representative This was the essence of the testimony of Jeandell Powell when she testified Well, we [she and Hurt] were talking about the ne gotiations and I told him that I heard about what happened at the first meeting, I wasn t there and he said yes, they re trying to break up the union and I said yes I know and I said I think so too and we talked about the time we worked together for years and we talked about how hard we had getting it in and how things was happening While Hurt testified that he had a couple of conversa bons with Powell, because she was on the union negoti ating committee, he specifically denied that he told her the Hotel would refuse to sign a contract Inasmuch as Powell s testimony is consistent with the type of state ments I found Hurt made in his conversations with Isbell I conclude that he made the statement attributed to him by Powell I credit her testimony over Hurt s denial I therefore conclude that Hurt threatened an em ployee that the Company was engaged in a pattern of conduct designed to break the Union as the employees collective bargaining representative The Respondent thereby violated Section 8(a)(1) as alleged in paragraph 11(d) of the complaint 8 Karen Dunn At the time of the strike settlement and for the first 3 months thereafter Karen Dunn was the Respondent s personnel manager As noted above in connection with bringing strikers back to work, Dunn held a series of on entation sessions During these sessions, it is alleged in the complaint that Dunn made statements violative of Section 8(a)(1), and specifically that it would be futile to go to the Union for assistance that Respondent would no longer recognize shop stewards, that em ployees [were] not to talk about the Union while they were in Respondents facility, that they would be con sidered new employees and that their seniority would not be recognized, ' that if anyone s employment was terminated by the Respondent, they would not be re placed by returning strikers, and that they had given up their rights to review their personnel records by be coming a member of the Union ' 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As far as I am able to determine from reviewing the General Counsels lengthy brief, the issue involving Karen Dunn s poststrike activity was not addressed There was however testimony in the record from nu merous returning strikers, as well as James Wade and Dunn, concerning what she said at some orientation meetings Although I do not necessarily discredit Dunn, on balance I found the employee witnesses to be credi ble Further, because Dunn conducted these meetings for the purpose of explaining to returning strikers matters concerning their employment status (as noted above a procedure which was not agreed to by the Union nor ap parently necessary), I conclude that the Respondent is responsible for any ambiguity in what she told employ ees about their employment It is very difficult for anyone to remember precise words more than a year after they were uttered Howev er, such does not justify discounting out of hand the em ployees perception of the events In making the follow ing findings and conclusions , I generally credit what the employees testified they heard Dunn say concerning their employment status and the Union at these onenta tion sessions Constance Isbell was called back to work in May and had an orientation session on May 17 Karen Dunn con ducted the meeting which was attended by about 30 em ployees They were given an employee handbook, bylaws, and rules of the Hotel , which were discussed by Dunn Isbell testified that among other things Dunn said that we worked for the Hotel and not for the Union and there would be no union in the Hotel that year this previous year " Isbell further testified that in June there was a meeting of the p m shift in the Virginia Room at which Dunn spoke to about 20 employees Isbell testified Miss Dunn told us that the hotel had called us back as the job openings became available She also told us that it would do no good to run across the street to the union because we had no union, that we were working for the hotel We asked about senson ty status she told us that there was no seniority She further testified , after a short interruption, the seniority as far as days off is concerned there would be no seniority there was no seniority we worked as the hotel saw fit for us to work Further at this meeting Isbell testified that there was no recognition of shop stewards , if you had a problem you were to take it to your supervisor if the supervisor could not handle it you were to bung it to the personnel manager And finally Isbell testified Dunn said, there would be no strikers recalled, the people that were there was the permanent staff, in the event that you were un happy with your job or someone left the job, that it could not be replaced by a striker, that it would be re placed by an outside person that this was the permanent staff " Helen Taliaferro testified that she was a banquet wait ress and had been for about 36 years She was a striker who was recalled and attended an orientation session conducted by Dunn Taliaferro testified, I recall a few things where she told us that we were coming back as new help and that we wouldn t get no seniority, not at that time No vacation Linda Carter testified that she was recalled to work and attended an orientation meeting conducted by Dunn Carter stated that at the meeting it was mentioned that you did not work for the Union you worked for Hotel Roanoke She further testified to some requirements of employment given by Dunn Wilson Leftwich testified that at the orientation meet ing he attended , Dunn told us we d be on a 90 day pro bation period, then after that, if any of us was still there, we d be given seniority back Kisha Buckner attended an orientation meeting in April Buckner testified that Dunn said she didn t want to hear anything about a union at the Hotel, and that no one had seniority until their 3 month probation period was up Dunn also discussed with them ccrtain employ ment rules Berda Lawrence was recalled to work and attended an orientation session around the 25 or 27 April Lawrence testified that Ms Dunn told us that we were on a 90 day probation, and that we did not have any seniority during this time, and, then, after 6 weeks, we would be evaluated to see if we were capable of doing our jobs " Karen Dunn specifically denied that during orientation meetings she ever informed employees that it would be futile to go to the Union for assistance She further tes tified to a meeting of night shift employees in the Virgin is Room She specifically denied that she told employees it would do no good to run across the street to the Union because you had no union And she specifically denied that there would be no recognition of union stew ards Dunn testified that at the Virginia Room meeting there was no discussion of the Union or shop stewards because they were not discussing the grievance proce dure or discipline rather she was talking to them about productivity and improving the dining room Dunn spe cifically denied that she told returning strikers that they were being recalled as new employees When called as a witness by the General Counsel (at the time of the hearing Dunn was no longer employed by the Respondent), she was asked specifically if she in formed employees during orientation meetings that they did not work for the Union She denied that She did tes tify that seniority rights of employees was discussed I told them that they came back with their full seniority they did not lose their date of hire, did not lose their va cation pay, it was as if they had never left, they were coming back " Asked if she told them there would be no seniority for 90 days , Dunn said, No " She did tell em ployees that they would be evaluated after 6 weeks and after 12 weeks But she denied telling them that they were on probation At the time of the hearing Dunn was no longer an em ployee of the Hotel and thus would not necessarily be presumed to be aligned with the Respondent for pur poses of resolving credibility However at the outset of the trial in applying for sequestration of witnesses the Respondent specifically stated that Dunn would be the company representative I therefore must conclude that HOTEL ROANOKE Dunn was not an independent witness in this matter, whether when called by the General Counsel or the Re spondent She was closely identified with the interests of the Respondent As indicated Dunn conducted numerous orientation sessions among employees during which she discussed the recall of strikers, employment, and personnel rules The General Counsel brought forth numerous witnesses who testified to these orientation sessions and to specific statements by Dunn These Dunn specifically denied, al though admitting that in fact she conducted the orienta tion sessions and did discuss employee rules (At least one other witness testimony was excluded on grounds it was cumulative, since counsel represented that the testi mory would be the same as that of previous witnesses ) The testimony of employee witnesses to these matters was fairly vague, conclusionary and often without foun dation Thus, while I generally credit the employee wit nesses and conclude that the Respondent is responsible for any ambiguity in Dunn s statements to employees, nevertheless, I do not believe that all the allegations were sustained I do find, however, that Dunn said something to em ployees at one or more of the orientation sessions to the effect that they were working for the Hotel and not for the Union, implying to employees that they would have to abide by the rules Such, of course, is a permissible statement by an employer , and I do not believe in the context of these orientation sessions Dunn thereby made an unlawful statement to employees that it would be futile to seek the Union s assistance , assuming such to be violative of Section 8(a)(1) Therefore, I conclude that the General Counsel did not sustain the allegation set forth in paragraph 37(a) The allegation in paragraph 37(b) that Dunn informed employees the Respondent would no longer recognize shop stewards is in the testimony of Isbell and Ruben Hale That testimony is just simply too vague to support such an allegation and there is no predicate for this testi mony There is no indication that in fact the Respondent did not recognize any individual shop steward in his or her capacity as such at any time following the end of the strike Ruben Hale testified that she attended an onenta tion meeting during which Dunn stated , that if the Hotel-if you got into trouble with the Hotel no use going to the Union because the Union couldn t help you, and that stewards would not be recognized ' I found this testimony to be generally not credible and her demeanor not very positive on this point Beyond that , I found this testimony to be conclusionary and without context Fur ther Hale testified that James Wade was in attendance at this orientation session but he offered no comment when Dunn allegedly stated that stewards would not be recog nized Such silence on the part of the union president and particularly Wade, in the context of this proceeding, just is too incredible to believe I just do not believe that the evidence supports the allegation contained in para graph 37(b), and I will recommend that it be dismissed Similarly, while it would be an unlawful promulgation of a no solicitation rule to prohibit employees not to talk about the Union at any time on the Respondents facility, I cannot conclude from the testimony before me that 231 Dunn in fact made such a statement I therefore will rec ommend that paragraph 37(c) be dismissed The allega tion of paragraph 37(d) concerning Dunn s informing employees that they would be considered new and that their seniority would not be recognized , no doubt refers to Dunn s statements to employees concerning how the recall was being effectuated and the fact that employees would be given performance reviews at the end of 6 and 12 weeks Further the recall and then scheduling of em ployees in fact had changed pursuant to the strike settle ment agreement, a fact which was explained to employ ees by Dunn during these orientation sessions Although this matter is complex and it is as noted , something that would be difficult for employees to remember precisely a year after the event , it does appear that Dunn testified generally to the subject matter set forth in paragraph 37(d), and did leave with employees the impression that their status had been altered as a result of the strike To the extent that this is the case, Dunn violated Section 8(a)(1) of the Act , and I so find and conclude In paragraph 37(e) it is alleged that employees were told that if any were terminated they would not be re placed by returning strikers This was allegedly told to returning strikers after most if not all of them had al ready been recalled to work The statement , therefore, makes no sense in the context in which it was allegedly stated Beyond that, the testimony concerning this allega tion is vague , and even if in some manner a violation of the Act, I conclude that the evidence concerning this al legation is simply insufficient to support a finding that Dunn thereby violated the Act I therefore will recom mend that paragraph 37(e) be dismissed I note that B J Smiley, the Union s recording secre tary and a cook at the Hotel testified that she attended three of the orientation sessions Although she testified generally to what Dunn said during the course of the meetings she attended concerning how strikers would be recalled-for instance, that seniority didn t apply for the first 90 days -she did not mention any of the alleg edly unlawful statements to which the other employees testified Such does not necessarily disprove that on oc casion Dunn did not make the statements attributed to her However, Smiley s position and the fact that she at tended three of the meetings at which apparently state ments like these were not made strongly indicate that Dunn did not make these statements Smiley testified that at the end of a meeting during which she was recalled from suspension, supra Dunn told me to come back to work and to stop and get my badge and my button, and from now on when I came back to work to talk about the veal and the lemon sauce and not about the Union Although this event, I believe, happened generally as tes tified to by Smiley , I do not conclude that it constitutes the promulgation of an unlawful no solicitation rule At best it was an isolated statement , and even in the context of the Respondents massive unfair labor practices was not unlawful Jeanette Lynch testified that during a meeting of em ployees in the Virginia Room Dunn stated that if anyone in this room should happen to quit or get fired they would not be replaced by a striker We would hire 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD off the street Again, there is no context for this state ment which, in itself really does not make sense or appear to be anything a personnel manager would tell as sembled employees Lily Graves testified that at the orientation session she attended, the only mention of the Union that Dunn made was she told us that we didn t work for the Union We worked for Hotel Roanoke On 30 May, Dallas Mangus made a telephone call to Dunn for the purpose of seeking certain of his work records so that he could compile a resume He asked his wife Julie to listen in on the telephone conversation Julie testified that when her husband asked for his work records and told Dunn the purpose, And she said, frankly, no, you cannot obtain the work records You gave up that right when you became a union member And then he stopped paused and said, Miss Dunn, are you saying I cannot obtain my work records, and she said, the only way that you can seek your work records is to go through your union lawyer with the proper pro cedure And he said fine And that was the end of the conversation She very abruptly said, fine, and hung the phone up This is alleged violative of Section 8(a)(1) as being a statement to employees that they had given up the right to review their personnel records by becoming members of the Union Although such is a plausible interpretation it is not reasonable when one considers the total state ment It is clear that Dunn told Dallas Mangus that he would have to go through the Union in order to obtain his personnel records She did not tell him he had no right to the records Although Dunn may well have been misinformed of his rights under labor relations law her statement does not amount to the type of activity that I believe is violative of Section 8(a)(1) of the Act She merely told him even if abruptly her understanding of the proper procedure Accordingly while I conclude that the facts occurred generally as testified to by the General Counsels witnesses, I do not believe they sup port finding a violation of the Act and I will recom mend that paragraph 37(f) be dismissed IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the Respondents business have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act V THE REMEDY Having concluded that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act Inter alia the Respondent will be ordered to offer rein statement to Kenneth Arney and to those employees whom it unlawfully denied reinstatement following the close of the strike, and make them whole for any wages or other rights and benefits they may have suffered as a result of the discrimination against them in accordance with the formula set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest as provided for in Flori da Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) Inasmuch as em ployees were recalled between 16 April and 16 July, pur suant to the strike settlement agreement, and because it is unknown precisely when during that period these indi viduals would have been recalled I conclude that the Respondent should bear the burden of the ambiguity and that backpay liability will commence to run on 16 April 1984, except for those whose reinstatement date (and backpay entitlement) is clear from the record In those cases, the appropriate backpay date is set forth in the analysis section above Kenneth Arney s backpay period commences 1 October 1983 B J Smiley is to have backpay for 9 days The Respondent implemented certain unilateral changes in terms and conditions of employment on or about 1 October 1983 Inasmuch as the parties subse quently agreed to a collective bargaining agreement the Respondent will not be ordered to rescind those changes [Recommended Order omitted from publication ]