Mike Yurosek & Son, Inc.

304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mike Yurosek & Son, Inc . and Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 542, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO.' Cases 21-CA-25170 and 21-CA-25543 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 3, 1988, Administrative Law Judge Mi- chael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record2 in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by interpreting seniority provisions in a manner that discriminated against unreinstated strikers in the filling of all postlayoff vacancies. We reverse. The Respondent processes vegetables during a season commencing in December and ending the following May or June. When operations resume in December, employees are recalled by classification in order of seniority. Employees with 8 or more weeks of seniority are placed on a permanent se- niority list and employees with less than 8 weeks of seniority appear on a probationary list. The Re- spondent recalls employees by exhausting the per- manent seniority list first, then proceeding down the probationary list. From approximately April 15, 1986,3 until about April 30, the alleged discriminatees engaged in an economic strike. Shortly after the strike began, the Respondent hired 196 permanent replacements. About April 30, the Union made an unconditional offer on behalf of all strikers to return to work, and as some vacancies arose, former strikers were re- called in order of seniority. When the season ended in May, the permanent replacements were placed on the probationary recall list for the following season. In December, the Respondent resumed oper- ations and, in accord with past practice , recalled first employees who had been actively working at the end of the previous season from the permanent and probationary lists in order of seniority. The re- called group included nonstrikers, strikers recalled during the previous season , and permanent replace- ments. After the Respondent had recalled those employees who had been actively working at the end of the previous season, the Respondent next began recalling by seniority those former economic strikers who had not previously been recalled. The judge concluded that the Respondent violat- ed Section 8(a)(3) by affording permanent replace- ments superseniority over unreinstated strikers. The judge noted that economic strikers who have been permanently replaced but who unconditionally offer to return to work are entitled to be reinstated upon the departure of the replacements, citing Laidlaw Corp.4 However, the judge also noted that an economic striker's right to recall by seniority must be established by a collective-bargaining agreement or a binding past practice of reinstate- ment by seniority. The judge found that the Re- spondent's seniority regulations provide that an em- ployee who has worked less than 8 weeks is placed on a probationary list with no seniority rights and that the permanent replacements had fewer than 8 weeks' seniority . Thus, recalling the permanent re- placements ahead of the strikers who were on the permanent seniority list denied the strikers their ac- cumulated seniority. The judge also noted that in Giddings & Lewis, 255 NLRB 742 (1981), enf. denied 675 F.2d 926 (7th Cir. 1982), the Board distinguished Bancroft Cap Co., 245 NLRB 547 (1979), in which positions opening up after certain layoffs were found not to be "vacancies" that the employer was obligated to offer to unreinstated strikers. The judge noted that the layoffs at issue in Bancroft were of short dura- tion and were due to a shortage of materials or acts of God. He concluded that the layoffs in the in- stant matter were not within the exceptions de- scribed in Bancroft.5 The judge also rejected the ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The Respondent filed a motion to reopen the record and/or file an additional brief, the General Counsel filed an opposition to the Respond- ent's motion, and the Respondent filed a reply to the General Counsel's opposition. In light of our decision below, we find it unnecessary to grant the Respondent's motion. 8 All dates refer to 1986 unless otherwise indicated 4 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The judge recognized that the court , disagreeing with the Board in Giddings, held that layoffs of permanent replacements given definite ex- pectations of recall do not amount to vacancies to which strikers are enti- tled to return He stated, however, that he was bound to follow the Board's decision. The judge also distinguished the court's decision from the instant matter in which the replacements had no reasonable expecta- tion of recall for the following season because they were on the proba- tionary list 295 NLRB No. 35 MIKE YUROSEK & SON 305 Respondent's argument that the seasonal nature of its business provided a legitimate business purpose for reducing the strikers' reinstatement rights. Citing Harrison Ready Mix Concrete, 272 NLRB 331 (1984), enf. denied 770 F.2d 78 (6th Cir. 1985), the judge noted that the Board will not deprive employees in seasonal or volatile industries of their statutory rights. We disagree with the judge's finding of a viola- tion for the following reasons. We initially note that we disagree with the judge's reasoning that only brief layoffs of the kind mentioned in Bancroft will permit the recall of laid-off permanent replace- ments ahead of unreinstated strikers . This reasoning fails to satisfactorily take into account the employ- er's right to permanently replace economic strikers and to assure the replacements of the permanency of their positions. NLRB v. Mackay Radio & Tele- graph Co., 304 U.S. 333 (1938). However, as the judge noted, Laidlaw strikers are entitled to posi- tions that are left vacant by departing replace- ments. Thus, the key question in determining in a layoff situation whether the Laidlaw strikers must be recalled is whether a vacancy exists . In Aqua- Chem, 6 we created the following test for balancing the employer's right to permanently replace eco- nomic strikers with the economic striker's entitle- ment to reinstatement when vacancies occur: When it is alleged that an employer has violat- ed Section 8(a)(3) by recalling laid -off perma- nent replacements ahead of unreinstated strik- ers, we shall require the General Counsel to first establish a prima facie case that the layoff truly signified the departure of the replace- ments under Laidlaw and thus created vacan- cies to which the unreinstated strikers were entitled to be recalled. In this regard, the Gen- eral Counsel will be required to show that a strike has occurred; that the strikers have made an unconditional offer to return to work; that a layoff of permanent striker replacements has occurred; that the replacements were re- called from layoff instead of the former strik- ers; and that, based on objective factors, the laid-off permanent replacements had no rea- sonable expectancy of recall . . . . The objec- tive factors relevant to the replacements' rea- sonable expectancy of recall would include, inter alia, evidence concerning the employer's past business experience, the employer's future plans, the length of the layoff, the circum- stances of the layoff, and what the employee was told regarding the likelihood of recall .... Once the General Counsel has estab- lished a prima facie case that a Laidlaw vacan- cy exists to which the striker is entitled, the burden shall shift to the employer to show that in fact no such Laidlaw vacancy occurred or that its failure to recall the striker was other- wise based on legitimate and substantial busi- ness justifications . . . . 7 We conclude that the General Counsel has not established that the layoff truly signified the depar- ture of the replacements under Laidlaw and thus created vacancies to which the unreinstated strikers were entitled-8 Applying the Aqua-Chem factors, we find that the permanent replacements had a reasonable ex- pectation of returning in December to the positions they had left the previous May. It is undisputed that the length and circumstances of the layoffs were definite and predictable. Turning to the Re- spondent's past business experience and future plans, we note that the Respondent operated on a seasonal basis. The facility shuts down in May or June of each year due to the absence of fresh vege- tables. Each year in December as the vegetables become available, the operations resume. Thus, sea- sonal layoffs are defined, predictable, and clearly linked to the availability of the commodities with which the employees work. Accordingly, employ- ees working in May can rely on the fact that oper- ations will resume in December. When the business reopened each December , the Respondent's prac- tice was to recall its former employees rather than hire anew. Based on these circumstances, we find that there were no vacancies created by the layoff in May and thus the Respondent did not violate the Laidlaw rights of strikers when it filled its openings with the permanent replacements who had been working at the time of the May layoff. The General Counsel argues that because of the Respondent's past practice of recalling employees by seniority the permanent replacements did not have a reasonable expectation of recall . Thus, the General Counsel argues, and the judge found, that 6 Aqua-Chem, Inc, 288 NLRB 1108, 1109 (1988), Member Johansen concurring, followed the Supreme Court's decision in NLRB v. Fleetwood Trailer Co., 389 U S. 375 (1967). The majority, citing the court decision in Giddings & Lewis, noted that, [a] replacement could hardly be called "permanent" were we to find that every layoff for an indefinite period creates a vacancy which activates a striker's reinstatement rights. See Giddings & Lewis, Inc. v. NLRB, 675 F 2d 926 (7th Cir. 1982), denying enf 255 NLRB 742 (1981). 7 Aqua-Chem, supra at 1110 8 The General Counsel's answering brief included a discussion of the judge's decision under an Aqua-Chem analysis. The General Counsel op- poses reopening the record and does not offer to present any further evi- dence supporting her position. Accordingly, because the General Counsel decided to stand on the present record and because, on the basis of that record, she failed to show that the permanent replacements had no rea- sonable expectation of recall, we find it unnecessary to remand the case for further factfinding. 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because the permanent replacements' seniority was, apparently without exception, less than the seniori- ty of the unreinstated strikers, the permanent re- placements could not have reasonably expected to be recalled, at least not before the unreinstated strikers. This argument, however, ignores the un- derlying premise that a vacancy must exist. Cer- tainly if a vacancy existed, the Respondent would have been obligated to fill that vacancy with a striker. Because the General Counsel has not estab- lished the existence of a vacancy , the Respondent's procedures for recall are simply not relevant to our inquiry.9 If we were to follow the reasoning pro- posed by the General Counsel , the balance between the Mackay rights of permanent replacements and the Laidlaw rights of strikers so carefully created in Aqua-Chem would be destroyed, as a seniority recall system would defeat the Mackay rights of an employer and its permanent replacements in virtu- ally,every case-' 0 Accordingly, we, find that the Respondent did not violate Section 8(a)(3) and (1) of the Act by re- instating some laid-off permanent replacements ahead of former strikers during the 1986-1987 season." 2. The judge also found that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by its treat- 9 In this regard, we note that the two-list system utilized by the Re- spondent does not change the result . Thus, the fact that the Respondent maintained one list for employees who had worked over 8 weeks and an- other for employees who had worked less than 8 weeks carries no signifi- cance in light of the further evidence that the Respondent had consistent- ly recalled employees from both lists. 10 See generally Trans World Airlines v. Flight Attendants, 130 LRRM 2657 (U.S. Feb. 28, 1989). In this case, the Court noted that the union properly conceded that a striker need not be reinstated until the depar- ture of a replacement created a vacancy, and the Court held that, similar- ly, until vacancies occurred , strikers could not use their seniority to claim jobs held by less senior employees who had gone on strike but returned to work before the strike ended. Id at 2659-2662. The Court rejected the union's argument that allowing strike "crossovers" to remain in their jobs while more senior strikers awaited reinstatement amounted to a grant of supersenionty to the crossovers, in violation of the principles established in NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). The Court noted that because the strikers were allowed the full exercise of their seniority once they were reinstated in a vacant position, the employer's actions were consistent with Erie Resistor. Id. at 2660. For similar reasons, the Respondent's attempt to analogize Harrison Ready Mix Concrete to the present case must be rejected In that case, an employer recalled two economic strikers when vacancies became avail- able. After reinstatement, these former stokers were placed on an assign- ment seniority list below permanent replacements with less seniority. The Board found that the employer had violated Sec. 8 (a)(3) by failing to re- instate the two former strikers with full seniority rights. The Board also noted that the seasonal nature of an employer 's business will not excuse denial of full reinstatement on the strikers' return to the job. Thus, the issue in Harrison Ready Mix Concrete was not, as here, whether there was a vacancy to which the strikers had a right to be rein- stated, rather, the issue was whether on reinstatement the strikers had a right to their full seniority 11 Concurring in the result, Member Johansen would find that the Re- spondent met its burden of showing that the permanent replacements did have a reasonable expectation of recall for the new season . See his con- currence in Aqua-Chem, supra at 1111 ment of unreinstated striker Mercedes Holquin. We agree for the following reasons. Holquin, an unreinstated striker and former day- shift employee, called the Respondent in January 198712 seeking work, but advised that she would not be interested in night work. On February 2, the Respondent offered Holquin a night-shift position. No day-shift positions were available at the time. Holquin replied that she had left with her coworkers (fellow strikers) and ex- pected to return with them. When the Respondent repeated that Holquin was needed for night duty, Holquin said "she guess she'd quit." Thereafter, the Respondent marked Holquin down as a "quit." It was not the Respondent's policy to inform employ- ees that they were marked as a "quit" or otherwise terminated. On February 18, Holquin called the Respondent and explained that she had not come to work when called on February 2 because she could not drive at night and was not interested in the type of job offered. The Respondent told Holquin that she had indicated a desire to quit and was so marked on company records. However, the Respondent also invited Holquin to come in and discuss the situa- tion. Holquin never responded. The Respondent had an unwritten policy that an employee not desiring to work on the night shift could refuse the work without loss of seniority or other penalty. In January, the Respondent had in- formed two other former strikers of this policy after these employees told the Respondent that they did not wish to work at night. The two em- ployees were reinstated to day-shift positions when openings became available. As the judge noted, it is axiomatic that an em- ployer's offer of employment on a different shift does not satisfy the employer's statutory obligation to offer economic strikers a substantially equivalent position. Thus, when the Respondent offered Hol- quin a night-shift position on February 2, Holquin's refusal to accept it did not negate the Respondent's statutory duty to subsequently offer Holquin a day- shift position. Further, Holquin's statement that "she guess[ed] she'd quit" in response to the Respondent's insist- ence that she accept the night-shift position can reasonably be construed to mean simply that she would end her employment with the Respondent if night-shift work represented her only option for re- turning to work there. In other words, it did not necessarily signify that she had no interest in work- ing for the Respondent in any position. Even if a broader interpretation is given to her statement, 12 All dates hereinafter refer to 1987 unless otherwise indicated. MIKE YUROSEK & SON 307 however, it was negated by her subsequent con- duct. On February 18, Holquin called the Respond- ent and explained her failure to accept the night- shift position and reiterated the unacceptability of night work. By so doing, Holquin indicated - that she still considered herself in the Respondent's employ. Moreover, Holquin was free to refuse night work pursuant to both the Respondent's stat- utory obligations and the Respondent 's own un- written policy. Indeed, the Respondent so informed two other former strikers who, like Holquin, told the Respondent they did not wish to work at night. Under all of these circumstances, we cannot find that Holquin's February 2 "quit" statement termi- nated the Respondent's obligation to offer Holquin a substantially equivalent position. The Respond- ent's failure to do so violated Section 8(a)(3) and (1) of the Act.13 However, as the present record fails to establish the availability of such a position, we shall modify the judge's remedy and shall order the Respondent to restore Holquin to her former position on the Respondent's seniority list. We leave to compliance whether Holquin was subse- quently entitled to 'an available day-shift position because of her seniority. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3 and reletter the subsequent paragraphs. "3. By failing and refusing to continue economic striker Mercedes Holquin's employment without loss of seniority or other penalty, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act." ORDER The Nat bnal Labor Relations Board orders that the Respondent, Mike Yurosek & Son, Inc., Holt- ville, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to continue the employ- ment of employees who had engaged in an eco- nomic strike without loss of seniority or other pen- alty. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. 13 Our dissenting colleague's reliance on Pink Supply Corp., 249 NLRB 674 (1980), is unpersuasive . The issue here is whether the Respondent ful- filled its statutory duty to offer Holquin a substantially equivalent posi- tion. We believe the facts show that the Respondent failed to do so. (a) Restore Mercedes Holquin to her former po- sition on the Respondent's seniority list and, if she is entitled to reinstatement because of her seniority, offer Mercedes Holquin immediate and full rein- statement to her former position on the day shift or, if her job no longer exists, to a substantially equivalent position, without prejudice to her se- niority or any other rights or privileges previously enjoyed, and make her whole for any loss of earn- ings and other benefits she may have suffered as a result of the discrimination against her in the manner set forth in the remedy section of the judge's decision as modified. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due, if any, under the terms of this Decision and Order. (c) Post at its facility in Holtville, California, copies of the attached notice marked "Appen- dix."14 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER CRACRAFT, dissenting in part. Although I agree with my colleagues that the Respondent did not violate the Act by recalling laid-off permanent replacements ahead of former strikers during the 1986- 1987 season, I would also find that the Respondent did not violate Section 8(a)(3) by its treatment of former striker Mercedes Holquin. Accordingly, I would dismiss the com- plaint in its entirety. My colleagues find that Holquin's February 2, 19871 "quit" statement did not necessarily signify that she had no interest in working for the Re- spondent in any capacity. They further find that, in any event, her February 18 conduct "negated" the 14 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." ' All dates refer to 1987. 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quit statement as this conduct indicated that Hol- guin still considered herself to be an employee of the Respondent. Thus, the majority concludes that the quit statement did not terminate the Respond- ent's obligation to offer Holquin a substantially equivalent position. I cannot agree. I do not dispute that Holquin might not have in- tended to terminate her employment with the Re- spondent on February 2. The Respondent, howev- er, could have also reasonably believed from Hol- quin's February 2 statement that she intended to quit. Under these circumstances, the responsibility to clarify the situation rested equally on both par- ties. Pink Supply Corp., 249 NLRB 674 (1980). The Respondent attempted to do so by inviting Holquin to come in and discuss the matter after Holquin had made her February 18 call. Holquin refused the invitation. Thus, even assuming that Holquin's February 18 explanation for making her quit state- ment somehow cast doubt on her desire to resign, Holquin's subsequent refusal to accept the Re- spondent's invitation suggested that she did intend to quit. Therefore, I would find that Holquin vol- untarily quit her employment and thus the Re- spondent's Laidlaw2 obligations to her terminated as of that time. Accordingly, I conclude that the Respondent did not violate Section 8(a)(3) and (1) of the Act by its failure to offer Holquin a day-shift or substantially equivalent position. z 171 NLRB 1366 (1968), enfd. 414 F 2d 99 (7th Cir. 1969), cert. denied 397 U S. 920 (1970). shift or, if her job no longer exists, to a substantial- ly equivalent position, without prejudice to her se- niority or any other rights or privileges previously enjoyed, and WE WILL make her whole for any loss of earnings and other benefits she may have suffered as a result of the discrimination against her, less any net interim earnings, plus interest. MIKE YUROSEK & SON, INC. Peter Tovar, Esq., for the General Counsel. Michael L. Wolfram, Esq., of Los Angeles, California, for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at El Centro, California, on January 5, 1988,1 pursuant to a consolidated amended complaint issued by the Regional Director for the Na- tional Labor Relations Board for Region 21 on October 22, and which is based on charges filed by Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 542, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union or Charging Party) on January 2 (Case 21-CA-25170) and February 10 (amended charge) and on July 8 (Case 21-CA-25543) and July 15 (amended charge). The complaint alleges that Mike Yurosek & Son, Inc. (Respondent) has engaged in certain violations of Section 8(a)(1) and (3)2 of the National Labor Rela- tions Act (the Act). 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. WE WILL NOT fail and refuse to continue the em- ployment of employees who had engaged in an economic strike without loss of seniority or other penalty. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL restore Mercedes Holquin to her former position on our seniority list, and if she is entitled to reinstatement because of her seniority, WE WILL offer Mercedes Holquin immediate and full reinstatement to her former position on the day Issues Whether Respondent failed and refused to reinstate certain striking employees who, through their union, had made an unconditional offer to return to work, to said employees' former or substantially equivalent positions of employment doing seasonal work, because said employ- ees had engaged in concerted protected activity , to wit, a strike. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-ex- amine witnesses, to argue orally , and to file briefs . Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. On the entire record of the case , and from my obser- vation of the witnesses and their demeanor , I make the following i All dates herein refer to 1987 unless otherwise indicated. 2 Sec 8(a)(1) makes it an unfair labor practice to interfere with, re- strain, or coerce employees in the exercise of the right to join or refuse to join a union . Sec. 8(a)(3) prohibits discrimination in hiring , or granting tenure to encourage or discourage membership in a union Abbey's Trans- portation Services v. NLRB, 837 F.2d 575 fn I (2d Cir 1988). MIKE YUROSEK & SON 309 FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits that it is a California corporation engaged in the business of commercial packing and ship- ping of commodities and having a facility located in Holtville, California. It further admits that during the past year, in the course and conduct of its business, it has sold and shipped commodities valued in excess of $50,000 directly to customers located outside the State of California. Accordingly, it admits, and I find, that it is an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2 (2), (6), and (7) of the Act (Stip. Exh. 1, pars. 2, 3). II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 542, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica is a labor organization within the meaning of Section 2(5) of the Act (Stip. Exh. 1, par. 4). III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts3 Respondent's business in and around Holtville , Califor- nia, is seasonal : its operations are active only from De- cember through May or June of the following year. At this time, those employees working at the Holtville facili- ty are laid off due to the absence of fresh vegetables grown in the surrounding area . When operations resume in December, workers are recalled within classifications in order of seniority, a few at first, then the remainder in January or February . Respondent's operations include the processing of carrots and broccoli. Respondent's employees are arranged in three catego- ries: clerical, field, and shed. The field employees are not in issue 'in this case and no person from that category tes- tified. As to clerical employees, the former office manag- er and current payroll clerk testified at hearing,and I will review their testimony below. As to the shed employees, certain of them are alleged to be discriminatees in this 'case. Respondent's shed employees work indoors during the season described above . Numbering between 400-500 employees, the shed employees work primarily packing vegetables on day and night shifts. Almost exclusively Spanish-speaking and of Mexican descent, the shed em- ployees' familarity with the English language varies con- siderably. Most are completely comfortable only in Spanish. An interpreter was required for those four wit- nesses alleged to be discriminatees in this case. On or about April 15, 1986 to on or about April 30, 1986, employees in the shed, including the alleged discri- minatees, went on strike. Shortly after the strike began, Respondent hired approximately 196 permanent replace- ments for all the strikers . The record contains a list of 8 Most of the facts recited below are contained in a written stipulation of facts received into evidence (Stip. Exh. 1) said replacements, beginning date of their employment, and the date of their layoff or termination for the 1985- 1986 employment season (Stip. Exh. 1, Exh. B). During the strike, 13 strikers offered individually to return to work and they were reinstated as vacancies in the work force arose (Stip. Exh. 1, Exh. Q. On or about April 30, the Union, by letter, made an unconditional offer on behalf of all strikers to return to their former or substan- tially equivalent position of employment (Stip. Exh. 1, Exh. A). On April 30, 1986, there were neither vacancies in the Respondent's work force nor business needs for addition- al employees at the Holtville facility. Accordingly, Re- spondent placed the names of all strikers on a list for recall and reinstatement in order of seniority as and when vacancies occurred and business needs for addi- tional employees arose. Between April 30 and May 16, 1986, Respondent re- called six former strikers in order of seniority and of this group, five elected to return (Stip. Exh. 1, Exh. Q. On May 1, 1986, the Union filed a charge (Case 21- CA-24665) with the Board alleging violations of the Act because Respondent had not reinstated the economic strikers on their unconditional offer to return to work. After investigation and review, the Regional Director declined to issue a complaint on that charge. The record also contains a list of Respondent's work force as of May 16, 1986, together with the number of weeks worked by each person as of May 17, and wheth- er they were laid off on May 17. Some employees were on leaves of absence or workers' compensation and this is indicated as well (Stip. Exh. 1, Exh. D, pp. 1-14). Most employees on leaves of absence are there due to their own medical or a relative 's medical needs. Re- spondent has an established policy on leaves of absence, including when they must be requested and under what circumstances they are granted . Because such leaves of absence concern two of the alleged discriminatees in their case, I will review the evidence in detail below, both in general, and as applied to the concerned alleged discriminatees. In December 1986, Respondent resumed operations of the Holtville facility. In accord with past practice, Re- spondent began recalling those employees who had been actively working up to their layoff in May 1986. That group included nonstrikers, former strikers who were re- instated from the preferential recall list before the 1985- 1986 season ended, and permanent replacements. The record contains a list of the employees recalled by Respondent at the beginning of and throughout the 1986-1987 work season. In addition to the names, the list also contains the date said employees were recalled, the date an individual employee actually resumed working, and the total number of weeks that the employee had worked through the end of the 1985-1986 season (Stip. Exh. 1, Exh. E). After Respondent had recalled those employees who had been actively working until layoff in May 1986, Re- spondent next began recalling and reinstating by seniori- ty those former economic strikers who had not been ac- tively working in May 1986. A list of these persons, the 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dates of recall, and their respective lengths of service is also in the record (Stip. Exh. 1, Exh. E). I turn now to Respondent's regulations on seniority, the application of which are in issue in this case. They read as follows: Seniority shall mean an employee's number of weeks worked, in active employment with this Company, in the packing shed. Any work within a week, on any shift, shall be counted as one week worked for the purposes of seniority. An entire week off from work due to an approved leave of absence, or lay-off period shall not be time worked for the purposes of seniority. An employee shall be considered a probationary employee for the first forty five days (seven weeks) from date of last hire. When a probationary em- ployee is credited with eight weeks worked, he is put on the permanent seniority list. A probationary employee shall have no seniority rights, but shall accumulate seniority from the date of last hire upon completion of the probationary period. An employee's seniority shall be lost for any of the following reasons: -Employee quits. -Employee is discharged. -Employee leaves job without a leave of ab- sence or without being laid off by the employer. -A laid off employee fails to return to work within forty eight (48) hours after recall. -Employee, having been laid off, has left the community or is not available for recall notifica- tion. Being absent from home on Saturday , Sunday, or holidays shall not be considered being unavailable for recall. Employees not having a telephone shall be notified of recall by mail, sent to the last known address. Should an employee , for medical or personal rea- sons, be unable to return to work upon recall, he must contact the OFFICE to obtain a WRITTEN leave of absence until such time that he will be able to return to work. Failure to do so shall result in loss of seniority rights. [Stip. Exh. 1 , Exh. F] Similarly, portions of Respondent's Personnel Regula- tions are also in issue . In pertinent part, these regulations read as follows: MIKE YUROSEK & SON, INC. HOLTVILLE OPERATIONS PACKING PLANT PERSONNEL REGULATIONS TO THE EMPLOYEES OF MIKE YUROSEK & SON, INC. HOLTVILLE OPERATIONS We at Mike Yurosek & Son , Inc. believe it is vi- tally important to ensure fair and equal treatment and a safe working environment for all our employ- ees. In keeping with the spirit of this belief, these Personnel Regulations provide general guidelines regarding employment. Realizing it is impossible for any regulations or guidelines to address in advance every possible con- cern which may arise during the course of employ- ment, company management maintains the philoso- phy of having an "open door" to all employees. We encourage you to openly discuss any concerns or questions which may arise with your Foreman, Su- pervisor, the Personnel Department or Gary Gray- son without fear of retribution or retaliation. Only through such communications can we work togeth- er as a team in resolving unforeseen concerns. We welcome you to Mike Yurosek & Son, and look forward to a mutually profitable, open and safe working relationship. Sincerely, M. David Yurosek ACCIDENTS, SAFETY AND HEALTH It is the policy of our Company to do everything possible to protect you on the job and comply with all the requirements of state and federal law. Also, there is a certain amount of precaution that you must take. The following guidelines have been adopted for your benefit and should be carefully observed: 1. Study your job and its possible hazards; then watch with an eagle eye! Safety rules never pre- vent an accident unless you make them work. If you are uncertain as to the safest way of doing the job, ask your supervisor before you begin. 2. In addition to providing a clear, safe and healthy place to work, the Company will supply for you whatever safety equipment is needed. 3. Employees are expected to do their part to help make the Company a safe and healthy place to work. You must, at all times, wear required safety equipment and observe all posted rules and regulations. If you have any questions as to what is expected of you, ask your supervisor. 4. If you become injured on the job , tell your su- pervisor at once. It is every employee's responsi- bility to fill out an injury report in order to re- ceive prompt medical coverage . If you think you need medical attention, inform the Company. PROBATIONARY PERIOD Newly hired or rehired employees will be consid- ered probationary employees for the first seven (7) work weeks of employment from their most recent day of hire within one (1) season. Said employees shall have the opportunity to demonstrate they can satisfactorily perform the job for which they were employed. During the probationary period, employ- MIKE YUROSEK & SON 311 ees are subject to termination without prior warn- ing. SENIORITY Seniority is defined as length of service in the active employment of the Company, and is based upon the number of weeks worked in the Packing Plant. Upon completion of eight (8) work weeks within one (1) season, employees shall be granted seniority, be placed on the Company seniority list and given the privileges and benefits of regular employees. Any work within a weekly pay period, on any shift, is defined as one ( 1) week worked for pur- poses of accumulating seniority . An entire week off from work for any reason, including approved leaves of absence, absence due to illness or layoff period, shall not be counted as time worked for the purposes of accumulating seniority. Seniority is granted on a plant -wide basis and is not defined by time worked in, or for, a specfic area. Loss of seniority shall occur for any of the fol- lowing reasons: -Employee termination , including a voluntary resignation (quit) and involuntary discharge for cause. -Employee job abandonment, including non-ap- pearance or call-in for three work days, leaving the job without an approved leave of absence, or leaving the job without being laid off by the Company. Employee failure to respond to recall, wherein a re- called employee fails to return to work, or fails to call in with a request to defer recall for a reason acceptable to the Company within forty- eight (48) hours of the date the recall notice is re- ceived. LAYOFFS AND RECALLS Due to the seasonal nature of the industry, it will be necessary at times to reduce and increase the size of the Company work force. Each position will be carefully reviewed to determine if it is essential to be filled based upon the work needs of the Compa- ny. Each employee's work records will also be re- viewed to determine their qualifications to fill avail- able positions. Time on layoff does not count as time worked for the purposes of accumulating seniority. Regular employees reporting to recall for work by the date designated for return, shall retain their most recent date of hire for purposes of accumulat- ing seniority, and continue their privileges and ben- efits as regular employees as if their service had been uninterrupted by layoff. FAILURE TO REPORT UPON RECALL Employees failing to return to work from layoff upon recall, within forty-eight (48) hours of receipt of recall notice, will be terminated effective the date of receipt of recall . Exceptions will be considered if a reason for not reporting, acceptable to the Com- pany, is provided no later than forty -eight (48) hours after the date of receipt of recall. Employees unable to report to work after recall, within forty-eight (48) hours of receipt of recall notice, must communicate that information to the Company for consideration before the end of said forty-eight (48) hours. Should employees, for medi- cal or personal reasons, be unable to return to work upon recall, they must contact the OFFICE to obtain a written leave of absence for the period oftime they will be unable to return to work. Fail- ure to do so shall result in loss of seniority upon return. Failure to receive notice of recall , mailed or tele- phoned (including Saturdays, Sundays or holidays) to the latest address and telephone number provided to the Company by respective employees, is an un- acceptable reason for not returning to work within forty-eight (48) hours of receipt of recall notice. LEAVES OF ABSENCE Leaves of absence without pay may be provided, at management's discretion, as long as such leaves would not seriously disrupt operations . Requests for leaves will be evaluated on a case by case basis. Factors such as workload and shipping require- ments will be taken into consideration . Permission for an authorized leave of absence must be obtained in writing from the office , prior to taking the re- quested time off from work . Time away from work on said leaves of absence shall not be counted as time worked for purposes of accumulating seniority. Failure to return from a leave of absence by the specified date of return will be considered a volun- tary resignation and all benefits and seniority will be forfeited effective that date, unless arrangements have been made with the office prior to the speci- fied date of return for an extension . Individuals re- hired after failure to return from a leave of absence shall return as probationary employees and will be subject to all qualifying conditions thereof. Employees found to be employed elsewhere, while on leave of absence for other reasons, will be considered to have abandoned their jobs with the Company. Due to the physical nature of the work in the Packing Plant, pregnant employees may be granted maternity leaves of absence upon request and pres- entation of proof from a physician . Such leaves shall not exceed six months. ATTENDANCE The Company counts on its employees' coopera- tion and requires regular attendance during all scheduled hours of work, and expects that employ- ees report for work on time and continue to work until the end of the workday or work period. Un- satisfactory attendance , including reporting late or 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quitting early, whether they are excused or unex- cused, will be cause for disciplinary action or termi- nation. Employees who report to work late, or are unable to report at all, must notify the supervisor as far in advance as possible . If the supervisor cannot be reached, call the office at (619) 356-4605, or leave a written message at the office . Such notifica- tions should be made by employees themselves, unless a bonafide emergency situation exists. Employees are encouraged to make necessary ap- pointments on non-working time. However, in the event this is not possible, employees must obtain permission from management prior to leaving work and filling the appointment. In the event of any absence from work , employ- ees must turn in an appointment verification to the office, otherwise, the absence will be considered un- excused. Please understand, if the Company knows some- one will be late, we can plan for it; but if we don't know, we are expecting everyone on time. Unex- pected absences can create hardships on fellow em- ployees who are trying to maintain production. TERMINATIONS There are a number of ways employment may cease with the Company . Employees may terminate their employment voluntarily by resigning in writ- ing with two (2) weeks notice to the Company, they may quit and walk away, or they may just abandon their jobs and never return for work. Em- ployees may also be involuntarily terminated by the Company for cause when they are regular employ- ees or probationary employees. Involuntary terminations are the most unpleasant experience of the employment relationship . It is an extremely emotional experience for employees; and believe it or not, it is an extremely painful and diffi- cult thing for supervisors as well . Because it is such an -unpleasant experience for all involved , the Com- pany is committed to the philosophy that employees terminated involuntarily will be treated with human dignity and respect, and that the discussions in- volved in the matter, which are taken very serious- ly, will be conducted privately. Such involuntary terminations can come about in two (2) ways. First, due to the failure of the disci- pline process; and second, that an act or behavior, involved in a particular incident is so extreme that the Company is compelled not to try and change the behavior but to terminate employment immedi- ately. Here are some examples of acts which would im- mediately precipitate involuntary terminations: -Possession of weapons. -Dishonesty or theft. -Intoxication. -Drinking on the job. -Possession, sale, or use of illegal or unpre- scribed controlled substances. -Unsafe actions posing a threat to life or health of the offender or others. -Refusal to work as directed (insubordination). -Fighting. -Sexual harrassment/assault. The Company firmly believes such actions, which are so extreme in their violation of the law or infringing upon the rights and safety of others, must be dealt with firmly and expediently . [Stip. Exh. 1, Exh. G.] Charged with applying the above policies and others during the time in question were Lynn Grayson, Re- spondent's former office manager, and Patricia (Patty) Irungaray, Respondent's payroll clerk. Now unem- ployed, Grayson had been Respondent's office manager between November 1978 and June. She described the reason for her departure as "philosophical differences." Because she was no longer in Respondent 's employ and had no expectation of returning to work for Respondent, and because her testimony as a witness for both General Counsel and Respondent was corroborated by other evi- dence, I found her testimony generally speaking to be very credible. While employed by Respondent , Grayson supervised and worked closely with Irungaray , whom Grayson had hired in December 1985. Initially hired as an accounts receivable clerk, Irungaray became payroll clerk in March 1986. Among Irungaray's qualifications for both jobs, but particularly the latter position, was her compe- tence in the Spanish language. Indeed , Irungaray was the only bilingual employee among the office staff. Grayson and Irungaray both described Irungaray as fluent in Spanish spoken by persons born and raised in Mexico. At General Counsel's request, Irungaray demonstrated her skill in Spanish during the hearing . The alleged discri- minatees called by General Counsel testified they had no difficulty in communicating with her in Spanish . Accord- ingly, I find that Irungaray was fluent in speaking and understanding the Spanish language. Although Grayson and Irungaray worked closely with each other, Grayson was also responsible for the work of the office secretary, and the accounts receivable and ac- counts payable clerks . In addition, Grayson was directly responsible for Respondent's Workman's Compensation and on-the-job injury practice . To assist in the large volume of work generated by the several hundred non- English-speaking employees, Grayson instituted a prac- tice of recording telephone or office conversations with production employees, in handwritten logs. These logs were characterized as either telephone or recall logs. In theory, each conversation between an office clerical, usu- ally Irungaray, and a shed employee, was recorded con- temporaneously in the log. When the subject was re- called to work for the new season , the contact or con- versation was recorded in the recall log. Noting some overlap between the logs, some delayed entries and an occasional discrepancy, I find that in general the system worked well. That is, Irungaray recorded all or most of her telephone and personal contacts with the alleged dis- criminatees in this case . Given the entry above the one in MIKE YUROSEK & SON 313 issue and below it, questions of tampering or fabricating were minimal . Furthermore, these logs corroborated the testimony of Irungaray and Grayson where they were involved with a particular discriminatee or other em- ployee. B. Analysis and Conclusions 1. Did Respondent discriminate against the returning strikers by effectively depriving them of their seniority rights when said employees were recalled for the 1986-1987 season?4 I begin with the case of Rockwood & Co., 281 NLRB 862 (1986), in which the Board approved the following statement of law written by the administrative law judge: [E]conomic strikers, such as herein involved , retain their status as "employees" within the meaning of Section 2(3) of the Act during a strike and, at its conclusion, have a right to be reinstated to their former positions. Any employer that refuses or delays the reinstatement of former economic strikers acts in violation of Section 8(a)(1) and (3) of the Act unless it can establish "legitimate and substan- tial business justifications" for its conduct . NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380-81 ( 1967); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380- 381 (1967); NLRB. v. Great Dane Trailers, 388 U.S. 26, 34 ( 1967); Laidlaw Corp., 171 NLRB 1366, 1369 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). . . . 1A] struck employer has a legitimate and substantial right to continue "his" business "by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their em- ployment." NLRB v. Mackay Radio Co., 304 U.S. 333, 345-346 (1938). However, at the conclusion of a strike, even if permanent replacements have been hired for the strikers, on the departure of the re- placements, the former strikers are entitled to rein- statement to their former jobs unless they have ac- quired substantially equivalent employment else- where or unless their employer is able to sustain its burden of proof that the failure to recall was justi- fied by legitimate and substantial business reasons. Fleetwood Trailer Co., supra; Laidlaw Corp., supra. In fact, not only are former strikers entitled to vacant jobs, "it is incumbent upon their employer to seek them out as positions are vacated ." Laidlaw Corp., supra at 1369. Unless an employer sustains its burden of proof, a refusal to reinstate employees after an economic strike constitutes an unfair labor practice notwithstanding the absence of animus or bad faith; for such conduct "discourages employees from exercising their rights to organize and to strike guaranteed by Sections 7 and 13 of the Act." Fleetwood Trailer Co., supra at 378. * In agreeing to stipulated facts, the parties did not distinguish between economic and unfair labor practice strikers Based on other facts agreed to and as found, and based on the arguments advanced, I find the strikers in this case were economic strikers See also Armored Transfer Service, 287 NLRB 1244, 1245-1253 (1988). The Board has also held that apart from obligations imposed by unilateral practice or through the collective- bargaining process, there is nothing in the Act itself or in the Board's articulation of Laidlaw rights that establishes an individual economic striker's right to recall by seniori- ty. Before any burden of justification for failing to recall a striker by seniority can be imposed on a respondent, the General Counsel must establish the existence of a se- niority recall right by reference to a collective -bargain- ing agreement or a binding established past practice. Lone Star Industries, 279 NLRB 550, 551 (1986). In Lone Star Industries, the issue was whether the respondent was required to recall former striker's by strict seniority. The principles of law from Lone Star Industries are also appli- cable when the issue is whether the reinstatement rights of returning strikers take precedence over the reinstate- ment rights of laid-off permanent replacements. Economic strikers' rights to reinstatement under Fleetwood Trailer and Laidlaw are statutory and should be distinguished from the rights of laid-off employees. A layoff constitutes a discontinuance of work for an em- ployer which does not rise to the level of a lawful eco- nomic strike, participation in which is protected under Sections 7 and 13 of the Act. Brooks Research & Mfg., 202 NLRB 634, 636 (1973). Thus, as a general rule, whether laid-off employees are regular employees, or permanent replacements, their rights to recall when es- tablished by a recognized method must yield to the rights of senior-returning economic strikers. In the instant case, the stipulated facts reflect that be- tween April 30 and May 16, 1986, Respondent recalled six former strikers in order of seniority, five of whom elected to return to work (Stip. Exh. 1, par. 12). In late May 1986, most of Respondent's operations at Holtville ended for the season and consistent with Respondent's past practice, most of the work force then working was laid off (Stip. Exh. 1, par. 15). No issue is raised by the late season recall of the six strikers . Rather, it is the hiring for the 1986-1987 season which General Counsel challenges. In December 1986, Respondent recalled first those em- ployees who had been actively working up to their layoff in May 1986, including nonstriking employees, the five reinstated strikers (out of the six recalled) and the permanent replacements (Stip. Exh. 1, p. 5, par. 17). At pages 27-32 of his brief, the General Counsel argues that Respondent's policy and practice in the recall of employees for the 1986-1987 work season is inherent- ly violative of the Act. Respondent denies this allegation and contends that it was merely following its past prac- tice of recalling the work force laid off in May or June within classifications in order of seniority when oper- ations resume in December (Br. p. 26). To resolve this issue, I turn to the record. The recall list for the 1986-1987 season was prepared as usual by Grayson, the office manager . However, Grayson had no prior experience with prior strikers (R. p. 97). Accord- ingly, the merging of the strikers and the permanent re- placements on a seniority list, in accord with Respond- 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent's policies, was a new experience for her. Although Grayson did not have prior experience with returning strikers, I nevertheless find a binding established past practice of returning laid-off employees to work by se- niority once the new work season begins. The quoted regulations reflect that a newly hired em- ployee is on probation for the first 8 weeks. Further- more, "a probationary employee shall have no seniority rights, but shall accumulate seniority from the date of last hire upon completion of the probationary period" (Stip. Exh. 1, Exh. F) [emphasis in original]. The perma- nent replacements in this case had fewer than 8 weeks seniority at the time of the May 1986 seasonal layoff. To reinstate the strikers on the seniority list after the perma- nent replacements who were on the probationary lists discriminates against the strikers by denying them accu- mulated seniority and awards the permanent replace- ments "super seniority." Proof of illicit intent may be presumed from conduct inherently destructive of employee rights, even where the employer acts to further a good-faith business pur- pose. NLRB v. Brown, 380 U.S. 278, 287 (1965). Cf. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). In the instant case, Respondent's good-faith business purpose is to secure replacement employees during a strike to its seasonal business. Yet in attempting to guarantee the re- placement employees seniority over the strikers, Re- spondent has violated the Act. Returning strikers cannot be deprived of their pre- strike seniority. NLRB v. Anvil Products, 496 F.2d 94, 95 (5th Cir. 1974). Respondent, however, cites the case of Bancroft Cap Co., 245 NLRB 547, 552 (1979), for the proposition that an employer may not be required to dis- charge, lay off, or continue employees in layoff status in order to reinstate economic strikers (Br., pp. 28-31). In a later case, Giddings & Lewis, Inc., 255 NLRB 742, 744 (1981), enf. denied 675 F.2d 927 (7th Cir. 1981), the Board distinguished Bancroft. The Board noted that the layoffs in Bancroft were for periods of only 2 to 7 days and were due to a shortage of materials. Thus, Bancroft, explained the Board in Giddings & Lewis, permits the recall of laid-off employees before unreinstated strikers only in situations involving "layoffs of relatively short duration such as would occur from acts of God, brief parts or material shortages, or relatively short-term loss of business." These types of exceptions are not part of the instant case. See also Certified Corp., 241 NLRB 369, 373 (1979), and Coastside Scavenger Co., 273 NLRB 1618, 1630-1631 (1985). At pages 31-32 of its brief, Respondent ignores the Board's decision in Giddings & Lewis, and instead focuses on the decision of the Seventh Circuit Court of Appeals refusing to enforce the Board decision (675 F.2d 927).5 In that decision, the court decided that layoffs of perma- nent replacements, who had been given definite expecta- tions of recall, did not amount to "vacancies" to which strikers are entitled to return. The Seventh Circuit 5 By stoking coincidence, General Counsel cites the Board decision in Giddings & Lewis, but forgets to mention or discuss the court decision re- fusing to enforce it (Br., pp . 29-30). General Counsel also forgot to men- tion, or discuss, the court decision refusing to enforce Harrison Ready Mix, infra, Br., p. 31. viewed the employer's practice simply as a mechanism to assure permanence to permanent replacements, permissi- ble under Mackay Radio. At least one other court of ap- peals appears to have adopted the view of the Seventh Circuit. Textron, Inc., 687 F.2d 1240, 1247 (8th Cir. 1982). Where decisions of the Board are in conflict with deci- sions of one or more courts of appeals, I am bound to follow the decisions of the Board. Iowa Beef Packers, 144 NLRB 615 (1963). More specifically, I am bound to follow the Board's decision in Giddings & Lewis, and apply it to the facts of the instant case. That is not to say necessarily there is a conflict between the Board and court decisions in Giddings & Lewis as applied here. As explained below, I find the decision in the Seventh Cir- cuit can be distinguished. I note that the personnel regulations were somewhat expanded for the 1986-1987 season. According to Gray- son, the reason was due to the formation of a personnel department within the company (R. pp. 151-152). Unfor- tunately, the record does not reflect exactly how the reg- ulations were changed, nor whether these changes in- volved provisions dealing with seniority. Assuming no changes in seniority were made, the next question is whether the replacement employees who were laid off in May could reasonably expect to be recalled in December or January, ahead of the returning strikers. Since none of the replacements had worked 8 weeks or more, they would have remained on the list of probationary employ- ees for the 1986-1987 season. Only when the regular list of employees was exhausted were the probationary em- ployees recalled. Respondent's deviation from past prac- tice for the 1986-1987 season was to recall only those regular employees who had been actively working in May 1986 in order of seniority from the master seniority list. Then the company recalled permanent replace- ments-who were in the probationary employee catego- ry by seniority. Only then were the former strikers re- called by seniority (R. Br., p. 34). I find that under Re- spondent's preexisting seniority system, the laid-off re- placement employees on the probationary list could not have had a reasonable expectation of recall ahead of the returning regular employees who had been on strike.6 I find also that the nature of Respondent' s seasonal business does not establish a lawful business purpose to reduce the strikers' seniority. Ready Mix Concrete, 272 NLRB 331, 332 (1984), enf. denied 770 F.2d 78 (6th Cir. 1985). In Ready Mix Concrete, the Respondent had a cy- clical and seasonal business just as in the present case. The Board rejected the same argument advanced by Re- spondent here, that granting full reinstatement to return- ing economic strikers would impair its right to hire and retain permanent replacements. The Board also noted, fn. 10, "the cyclical or seasonal nature of an employer's 6 In past years, regular employees who had been on approved leaves of absences prior to the end of the regular season , i e., had not been work- ing in April or May, had nonetheless been reinstated to their rightful place on the seniority lists for the new season beginning the following December or January. Failure to accord the returning strikers the same rights as employees returning from leaves of absences is a deviation from past practice and further proof that Respondent violated the rights of the returning strikers under Laid law. MIKE YUROSEK & SON 315 business does not, in our view, dictate the extent or breadth of an employee's rights under the Act. We will not deprive employees in economically volatile industries of their statutory protection." In sum, I find Respondent's actions here amounted to a grant of superseniority to replacements as prohibited in Erie Resistor. Respondent classified unreinstated strikers on the basis of their protected activity, and proposed to treat them less favorably solely because they had been engaged in a strike . Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act. 2. Did Respondent specifically discriminate against the four alleged discriminatees? Having found, above, that Respondent discriminated against the economic strikers as a class, I turn now to consider whether Respondent committed individual acts of discrimination against the four alleged discriminatees, all of whom were participants in the strike. a. Justina Gamboa Gamboa had worked for Respondent for 4 to 5 years. In February, Gamboa was recalled to work on the night broccoli crew but requested a leave of absence due to medical reasons of a personal nature . Irungaray told her that the Company would grant her a leave of absence if Gamboa brought in a doctor's note. Gamboa brought in the note (R. Exh. 1) and a 3-week leave of absence was granted (R. Exh. 1).7 In early March, Gamboa was again called back to work, this time on the night shift as a packer of carrots. On March 13, Gamboa acknowledged receipt of Re- spondent's personnel regulations printed in Spanish (R. Exhs. 2, 3). According to Gamboa, she worked about a week packing carrots. On the following Monday, she went to the office and spoke to Irungaray, whom she asked for a leave of absence, because her hands had been injured from the packing. According to Gamboa, her hands were bleeding and blistered . Allegedly, Irungaray abruptly refused this request and then under threat of holding back her paycheck forced Gamboa to sign a paper saying she quit (R. Exh. 4). First, I find that Gamboa never suffered any disabling injury. She never reported the alleged injury to her su- pervisor nor sought any medical attention . Respondent retains a physician on call to treat any work-related inju- ries and has an injury treatment and prevention program formerly managed by Grayson, to attend to employee needs and to reduce workman 's compensation costs. During the few days when she worked, Gamboa was working only 4 or 5 hours a day, and wearing plastic gloves. In past years her experience with Respondent had been as a bagger on a full-time basis. I find no evi- dence that packing carrots on a part-time basis was more strenuous so as to cause the claimed injury. Next, I find that Gamboa never requested a leave of absence for medical reasons . Instead, after her initial 7 Because the note was dated January 21 , but not presented until Feb- ruary 2, the leave of absence was authorized from January 21 to Febru- ary 15. It was written both in English and Spanish. week of work in March, she requested a leave of absence in order to work in the lettuce at Bud Antle, a competi- tor of Respondent's. Irungaray 'told her that she didn't believe that Respondent would approve a leave of ab- sence for that reason, but Irungaray agreed to check with her superior, Grayson. Grayson confirmed Irungar- ay's initial information when queried by Irungaray. On the following Thursday, Gamboa returned for her check and Irungaray again told her a leave of absence for the stated reason would not be approved. Gamboa replied that she guessed she'd quit and go to work at the other company. She signed the form (R. Exh. 4), but Irungaray never threatened to withhold her check if she didn't (R. Exh. 4). Later Irungaray confirmed that an employee with Gamboa's social security number but a different name, was working at Bud Antle's. I base my findings above, on the testimony of Irun- garay and Grayson whom I found to be completely credible on this point . Moreover, the telephone log re- garding Gamboa supports Respondent's version of events (R. Exh. 16). In conclusion, I also credit Grayson's testi- mony that her first notice of Gamboa's alleged request for a medical leave of absence was in the notice of unfair labor practice charges sent to Respondent. I find that Gamboa either voluntarily quit her job or abandoned same. I also find the company did not dis- criminate against her due to her participation in the strike. Accordingly, I will recommend that as to her, the complaint should be dismissed. b. Mercedes Holguin Holquin had worked for Respondent since 1977. In mid-January, she called Respondent's office and talked to Irungaray regarding her return to work. Holquin asked Irungaray why she had not yet been recalled . She also added that her seniority was greater than some other em- ployees already working . Then Holquin added that she wouldn't work nights if offered that position . Irungaray replied that she didn't know if Holquin would be re- called for nights as her position on the seniority list had not yet been reached. This conversation was duly re- corded in Respondent's telephone log (R. Exh. 17). On Feburary 2, Irungaray called Holquin to offer her a job on the broccoli crew working nights. No day posi- tions were vacant at the time . Holquin told Irungaray that she had left with her coworkers and she expected to come back with them , so she told Irungaray to call someone else. When Irungaray repeated to Holquin that she was needed for the night crew , Holquin told Irun- garay that she'd guess she'd quit (R. Exh. 18). Respondent's unwritten policy regarding work on the night shift was that an employee who desired not to work on the night shift could do so without loss of se- niority nor other penalty. As she had done with Gamboa, Irungaray discussed with Grayson the second conversation with Holquin. Grayson described the conversation in her testimony. Irungaray told her that Holquin had objected to the night shift because Holquin felt "that after working for a number of years that she felt that the night shift was not a place where these more senior people should be and 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD she wanted to come back with her fellow employees that had gone out on strike." (R. pp. 128-129). Then Grayson asked Irungaray if Holquin had given a reason that she didn't want to work nights and Irungaray said , no, that she guessed she'd quit if she couldn't come back to work with the others (R. Exh. p. 129). Grayson's reply to Irungaray's account of the conversation with Holquin was to tell Irungaray that if an employee tells us they quit, we mark them as a quit (R. Exh. p. 130). In addi- tion it was not Respondent's policy to notify employees that they were marked as a quit or otherwise terminated. Irungaray was aware of, but did not advise Holquin of Respondent's policy on night shift work during either call: as to the first call, Irungaray was taken off guard and found Holquin's telephone manner to be "hostile," further, Irungaray didn't know whether Holquin would be offered a night shift position; as to the second call, Irungaray had forgotten that Holquin had previously stated she wouldn't work nights. So when Holquin didn't specifically relate her turn down to an aversion to work- ing nights, Irungaray did not inform her of Respondent's policy (R. pp. 265-266). I find that Holquin placed Irun- garay on notice that she was opposed to working nights and do not credit Irungaray's reason for not advising Holquin of Respondent's policy. About February 18, Holquin called Irungaray again and explained that she didn't come to work when she was originally called because she couldn 't drive at night and didn't want to work in broccoli. Irungaray reminded Holquin that she had indicated a desire to quit her job during the prior conversation and had been so marked on company records. Irungaray invited Holquin to come into the office and talk to Grayson about her situation. For the third time, Irungaray did not advise Holquin of Respondent's policy permitting employees to decline the night shift without penalty. To prove the existence of its policy regarding waiver of night shifts without loss of seniority, Respondent of- fered evidence regarding two other employees, named Baca and Flores. Baca had a medical problem and couldn 't get a baby- sitter. Grayson told Baca's husband that Baca could de- cline the night shift and wait for a job on the day shift to open (R. Exhs. 15, 20). As to Flores (Lopez), Irungaray called him on January 22 to say that a night shift posi- tion was open. Since Flores (Lopez) was not home, his wife took the message. The following day, Flores (Lopez) came to the office and said only that he didn't want to work nights. Irungaray then explained that he didn't have to work nights if he didn't want to and that he would be offered the first available day job (R. Exhs. 21, 22, R. Exh. p. 197). In the case of both Baca and Flores (Lopez), positions on the day shift opened within a few days. The day shifts were offered to and accepted by both employees. In Harvey Engineering Corp., 270 NLRB 1290, 1292 (1984), the respondent offered night shift employment to three returning strikers, who had previously worked on the day shift, just as Holquin had. Each of the three de- clined the offer of a night shift job. In deciding that the three strikers had not received offers of "substantially equivalent" employment, the Board stated as follows: The threshold issue is whether the Respondent's offer of night-shift jobs to Jackson, Harvey, and Scroggins-within their respective classifications- constituted an offer of "substantially equivalent" employment. An employer is obligated to accord economic strikers preferential status and to immediately rein- state them on application when their previous or substantially equivalent positions become available, absent legitimate and substantial business justifica- tions. NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967); Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert . denied 397 U.S. 920 (1970). The Board has held that an offer of em- ployment for a different shift is not "substantially equivalent." An employee's refusal to accept this offer does not alter his status as a former economic striker desiring reinstatement or operate to remove him from the preferential hiring list. See, e.g., MCC Pacific Valves, 244 NLRB 931, 944-945 (1979); Alcan Cable West, 214 NLRB 236, 237 fn. 3 (1974). In light of the above authority, I find that Respondent violated Section 8(a)(3) and (1) of the Act by not rein- stating Holquin to her former position on the day shift. Respondent contends (Br., p. 17) that Holquin "could have declined to work the night shift, remained on the Company's seniority list, and been recalled for days when a day position became available." As noted above, there is no evidence that Holquin was told of her rights to decline or that she otherwise knew . Accordingly, if Respondent was not required in this case to offer an im- mediate day shift to Holquin, Irungaray's failure to inform Holquin of Respondent 's policy so that she could make an informed decision as to the exercise of her rights is an alternative reason to support a finding that Respondent violated the Act. In conclusion, I assume without finding that Baca and Flores (Lopez) were strikers like Holquin . Respondent's failure to treat Holquin like they treated the others shows that Respondent treated some strikers differently than others. Baca and Flores (Lopez) were told of their rights to relinquish night-shift employment; Holquin was not. I find Respondent's conduct was inherently destruc- tive of employee rights. NLRB v. Brown, supra, 380 U.S. 278 (1965).8 For that reason, Holquin's failure to come to the office to discuss the matter with Grayson does not constitute a valid defense. Moreover, Holquin could rea- sonably have viewed the offered meeting as futile. c. Luz Maria Flores and Rosalva Saavedra The circumstances of these two employees involve ap- plications for leaves of absence based on medical reasons. In the "Facts" portion of this decision, I have recited Respondent's policy regarding "Leaves of Absence" (Stip. Exh. 1, Exh . G) and this need not be repeated. In 8 For the record, I don't believe Holquin 's testimony regarding an al- leged inability to see at night well enough to drive. She testified that this was the reason she declined Respondent's offer to work nights MIKE YUROSEK & SON 317 explaining how the application system operates, Grayson testified as follows: "[There is] not a specific list [of approved and un- approved reasons for a leave of absence sanctioned by the company.]" It basically has been left to the discretion of the Employer; in other words, the em- ployee is requested to come and make their formal request for a leave of absence to the office , it's re- viewed, and then the leave of absence is either granted or denied. Basically due to the fact that the people do not accumulate seniority during these leaves of absences and it provides not a great hard- ship on the Company, provided that great numbers don't take leaves of absence simultaneously, we've been fairly lenient on our leave of absence policy as far as what we require for verification to obtain a leave of absence. JUDGE STEVENSON : Who basically decides if an employee is justified in getting an approved leave of absence or not; who makes that decision? THE WITNESS: Basically, it's Patty provided the people-most of our leave of absences are for medi- cal reasons or medically-related reasons . Someone needs to stay home with a relative or something that requires their constant care. And, provided the paperwork is in order, Patty would be authorized to go ahead and grant a reasonable leave of absence. If there was any question, she or the person receiving an unfavorable decision would come to me. [R. pp. 158-159.] With the above information as background, I turn first to consider the evidence regarding Flores. Flores had worked for Respondent for three seasons. In March, she was recalled to work on the night shift, which is the shift she had always worked in the past. On or about April 8, someone called in to say that Flores was sick (R. Exh. 24). On the following Monday, April 13, Flores called the office and told Irungaray that she was ill due to kidney problems , was under a doctor's care, and was requesting a medical leave of absence. Irungaray said "O.K.," but directed Flores to bring in a doctor's note not later than the following Friday, April 17 (R. Exh. 25). According to Flores, she returned to the treating physician to get a note , but found that he had left on vacation. Flores testified that she had requested the note from the doctor when he had first treated her. Allegedly the doctor agreed to this and Flores said she would return the following day to pick it up. When she returned, she found the doctor on vacation, though he had not mentioned his plans to her when he agreed to write the note. Indeed, Flores claims to have returned to the doctor's office two to three subsequent times looking for him. I don't believe this testimony and find that Flores had not made any attempt to get a doctor's note either before her treatment or immediately after the telephone call to Irungaray . The doctor's office was in Mexacali, some several miles from Flores' residence where she allegedly remained, too sick to report for work. Nor do I believe that Flores called Respondent's office a second time on April 8 or 9, as she testified, talked to an unnamed person there, and explained that her doctor was on vaca- tion. Company records do not reflect such a call. In- stead, I credit Irungaray's testimony that Flores did not contact the office by April 13 as advised by Irungaray. I find that Flores did not report to the office until April 23 (R. Exh. 26). On that day, Flores came to the office with a note from the doctor. Written in Spanish, the note is dated April 7 (G.C. Exh. 2). The interpreter translated the note which indicated that Flores had skin nephritis with cer- tain complications. The note also indicated that Flores was advised to rest at home for 15 days from the date of the note. The note was signed by Dr. Jiminez (R. pp. 53-54). When Flores presented the note to Irungaray, the latter told Flores that she had expected the note by last Friday. Since Flores had not come in by that time, she had been marked as a "quit ." Flores told Irungaray that the doctor couldn't see her until last night and this is why she hadn't come in. Irungaray told Flores that she should have called the office to explain, and presented her with an application as a new employee (R. Exh. 26, 27).9 Grayson did not confer with Irungaray regarding Flores, but as noted above, I have generally credited Irungaray's account, as corroborated by relevant tele- phone log entries. The sole issue is whether Respond- ent's assigning a quit status to Flores can be attributed to discrimination against her for participating in the strike. General Counsel argues (Br., p. 37) that Irungaray dis- criminatorily applied the rules in the instances of Flores and Saavedra. Because Irungaray was allegedly more le- nient with Flores, i.e., permitting her to get a doctor's note after Flores had been on unexcused absences for 2 days subsequent to March 8, while telling Saavedra that she needed to get a leave of absence approved in ad- vance, this shows Respondent violated the Act. Howev- er, according to Respondent's personnel regulations (Stip. Exh. 1, Exh. G), leaves of absences are evaluated on a case-by-case basis. In addition, where leaves of ab- sences were due to illness of the employee, it would not be possible to obtain the leave in advance . Indeed, Irun- garay testified that where an employee was too sick to bring in the doctor's note, other arrangements could be made (R. p. 204). In sum, I note that General Counsel concedes (Br., p. 37) that Respondent's policies "are admittedly clear." Flores was aware of but failed to follow these policies. Accordingly, she was marked as a quit and has not yet been recalled to work as a new employee. I find no vio- lation of the Act as to Flores and will recommend that the allegations in the complaint as to Flores be dis- missed.lo a R Exh 27 is a summary of Flores' contacts prepared by Irungaray on April 21 It includes the statement, "Per Ritz Zwart [Flores' supervi- sor] was a bad worker and only wanted a leave of absence in hopes of getting an easier floorperson . She wasn't really sick." This portion of the summary is irrelevant to the issue presented and I have disregarded it in my evaluation. 10 In light of the failure of General Counsel 's proof, it is unecessary to review Respondent's evidence showing a consistent policy of dealing with strikers and nonstrikers in a manner similar to Flores (R Exh. 10). 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Turning to Saavedra, I note her past employment with Respondent since 1984 as a buncher of broccoli. In March, Saavedra was recalled to work on the night shift sorting carrots. After employment lasting approximately 9 days, Saavedra left her job at lunch time on a Wednes- day because her hands were hurting her. She testified that her supervisor, Lupe, gave her permission to leave. However, this person didn't testify. On the following Monday, March 23, Saavedra called the office and talked to Irungaray. She said that because she had not contact- ed the office since leaving work, she assumed she had quit. Saavedra also said she was under a doctor's care, but had not received the results of her medical tests as yet. She requested Irungaray to mail her check to her (R. Exh. 28). At this point, Irungaray considered Saave- dra's status to be that of a quit. Irungaray's account of this conversation was con- firmed by Grayson with whom Irungaray discussed the matter. Grayson agreed that as soon as the necessary documents had been received by the office , Saavedra's final check would be mailed. On April 13, Saavedra came into the office with a note from a doctor. The note reads as follows: April 13, 1987 TO WHOM IT MAY CONCERN RE: Rosalva Saavedra Mrs. Saavedra has been under my care since March 18th for joint pain. She continues to be unable to return to work. Sincerely, /s/ Keith MacGaffey Keith MacGaffey, M.D., F.A.C.P. KM/dc According to Saavedra, the problem of presenting the doctor's note in a timely fashion was caused by the doctor being on vacation . No proof of this claim was presented at hearing other than Saavedra 's testimony which I do not credit. Nor do I believe Saavedra's testi- mony that Irungaray had told her to bring in the doc- tor's note whenever she obtained it. Saavedra told Irun- garay that an unidentified person in the office gave her permission to simply return to work when she was feel- ing better (R. Exh. 25). Irungaray didn't believe this and neither do I. I find no evidence to support Saavedra's al- leged authorization nor do I believe Saavedra's testimo- ny at hearing that it was Irungaray who had instructed her to come back to work when she was feeling better. Both sides agree that after Irungaray rejected the doc- tor's note as untimely and refused to change Saavedra's status from a quit to a leave of absence, Saavedra refused to sign a document for the file, claiming that she had not quit (R. Exh. 25). Respondent presented evidence regarding nonstrikers Felipe Velarde, Elvira Cones and others who were ter- minated by Respondent under circumstances similar to those involving Saavedra. This evidence as well as my credibility findings supports Respondent's theory of its case. In recommending the dismissal of the allegation as to Saavedra, the issue is not so much whether she told Irungaray that she assumed she had quit and then inex- plicably went to the trouble of getting a doctor's note, but in addition, Saavedra was on unexcused absences for a period of longer than 3 days. Under Respondent's reg- ulations, Saavedra was automatically designated a quit. CONCLUSIONS OF LAW 1. Mike Yurosek & Son, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 542, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By interpreting seniority provisions in a manner which discriminates against unreinstated strikers in the filling of all postlayoff vacancies, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guranteed them by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By failing and refusing to reinstate economic striker Mercedes Holquin to a day shift position because of her participation in an economic strike, Respondent has en- gaged in and is engaging in an unfair labor practice in violation of Section 8(a)(3) and (1) of the Act; in the al- ternative, if Holquin was not entitled to be reinstated to the day shift, by failing and refusing to advise Holquin that it was Respondent's unwritten policy to permit an employee to refuse an offer of night shift employment without loss of seniority or other penalty, Respondent has engaged in and is engaging in an unfair labor prac- tice in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices constitute unfair labor practices which affect commerce within the mean- ing of Section 2(6) and (7) of the Act. 6. Other than specifically found herein, Respondent has committed no other unfair labor practices. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully interpreting seniority provisions in a manner which discriminates against un- reinstated strikers, I shall further recommend that Re- spondent be ordered to discontinue the unlawful policy. I shall further recommend that Respondent be ordered to continue and maintain the reinstatement rights of the un- reinstated strikers in accordance with the applicable prin- ciples of law set forth in Fleetwood, Laidlaw, and the in- stant decision. Finally, I shall recommend that Respond- ent be ordered to make whole the economic strikers for any and all loss of wages and benefits suffered by them as a result of Respondent's unlawful conduct , computing MIKE YUROSEK & SON any backpay which is due using the method described in the following paragraph of the remedy. Having found that the Respondent has unlawfully failed and refused to reinstate economic striker Mercedes Holquin to a day shift position for the reasons set forth in paragraph 4 of the Conclusions of Law, I shall recom- mend that Respondent be ordered to offer this employee immediate and full reinstatment to her former job or, if that job on the day shift no longer exists, to a substantial- ly equivalent position, without prejudice to her seniority 319 or any other rights or privileges previously enjoyed and to make her whole for any loss of earnings she may have suffered as a result of the discrimination practiced against her. Backpay shall be computed in the manner pre- scribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest to be computed in the manner prescribed in New Horizons for the Retarded."' [Recommended Order omitted from publication.] 11 283 NLRB 1173 (1987).