Ornamental Iron Work Co.

ORNAMENTAL IRON WORK CO. 473 Ornamental Iron Work Co. and Iron Workers Shop- men's Local Union No. 468 of the International Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO. Case 8-CA- 20463 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 15, 1988 , Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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 record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings We agree with the judge's finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act by failing to reinstate strikers Lee Vue, Zanna Vue, Richard Marzich, and Daniel Amhauser following the unconditional offer to return to work We agree that the Respondent presented no spe- cific explanation for its failure to reinstate and find it unnecessary to rely on the remainder of the judge's discussions regarding this issue The judge found, and we agree, that the Respondent's sole asserted reason for discharging striker Larry Winkler was his participation in a physical altercation on the picket line with Respondent's superintendent, Rudy Domingo, and that Winkler's discharge violated Sec . 8(a)(3) and (1) of the Act because Domingo provoked the fight and Winkler did not engage in any misconduct in this respect . The judge assumed that at the time of Winkler's discharge the Respondent was unaware of additional picket line misconduct (a threat) attributed to him by employee Adolf Kissner However, in its exceptions the Respondent states that, prior to Winkler's discharge, Kissner reported the alleged threat to William Boesche, the Respondent's president. Despite the fact that the Respond- ent was aware, before Winkler's discharge, of Winkler's alleged threat to employee Kissner, the Respondent stated at the unfair labor practice hearing that Winkler was discharged solely for the physical altercation with Domingo. The judge credited the testimony of striker Louis Domico concerning a conversation he had with truckdnver Karolina Glas near the picket line. Because Domico's testimony was uncontradicted, we find it unnec- essary to rely on the judge's assumption that, if Glas had testified, her testimony would not have been favorable to the Respondent Chairman Stephens observes that given the judge's crediting of testi- mony concerning the alleged blocking of Roy Poe's truck, the incident is distinguishable from the incidents found in Tube Craft, 287 NLRB 491 (1987), to constitute blocking action warranting discharge under the Clear Pine standard. Finally, we correct inadvertent errors . In fn. 3 the judge referred to four strikers allegedly replaced by Respondent but it is clear from his earlier findings that he meant to refer only to three such strikers . Similar- ly, in fn. 16 the judge found that the Respondent received the Union's offer to return to work on September 12; the correct date is October 12. Member Cracraft finds it unnecessary to rely on the judge 's discussion of the plurality opinion in Clear Pine Mouldings, 268 NLRB 1044, 1047 (1984), set forth in sec. III,D,3,b, par 3 of the judge's decision In light of the absence of exceptions to the judge's finding that the discharge of em- conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Ornamental Iron Work Co., Akron, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied.2 1. Substitute the following for paragraph 2(a). "(a) Offer the employees listed below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed: "Arnold Adams Timothy Delagrange Rodney P. Ford Louis M. Domico, Jr. Richard A. Miller Larry P. Norris Henry Petz William Stanley James Swope Lee Vue Zanna Vue Bruce Walgenbach Larry E. Winkler Richard Marzich Daniel Amhauser" 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Remove from its files any reference to the unlawful discharges and refusal to reinstate and notify the employees in writing that this has been done and that these actions will not be used against them in any way." 3. Substitute the attached notice for that of the administrative law judge. ployee Bill Graham did not violate the Act, Member Cracraft does not pass on this finding 2 In the remedy section of his decision , the judge recommended that the discrimmatees be offered immediate reinstatement to their former po- sitions or substantially equivalent positions , and that backpay should be computed to the date of a bona fide offer of reinstatement to substantially equivalent positions. In accord with established Board policy, we note that the discriminatees must be offered reinstatement to their former jobs unless they no longer exist and that backpay must be computed accord- ingly. In par 2(e) of the judge's recommended Order, he sets forth a 28- day period for the Respondent to notify the Regional Director about what steps it has taken in compliance ; the correct period is 20 days. 295 NLRB No. 53 474 DECISIONS 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 discourage membership or activi- ties on behalf of Iron Workers Shopmen's Local Union No. 468 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, by dis- charging economic strikers, by refusing to reinstate unreplaced economic strikers on their uncondition- al offer to return to work, or by in any other manner discriminating against our employees be- cause they have elected to engage in activity pro- tected by Section 7 of the National Labor Rela- tions Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer the employees listed below im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed: Arnold Adams Rodney P. Ford Richard A. Miller Henry Petz James Swope Zanna Vue Larry E. Winkler Daniel Amhauser Timothy Delagrange Louis M. Domico, Jr. Larry P.Norris William Stanley Lee Vue Bruce Walgenbach Richard Marzich WE WILL notify each of the above employees that we have removed from our files any refer- ences to their discharge or refusal to reinstate and that these actions will not be used against them in any way. WE WILL make whole the above-named employ- ees for any loss of earnings or other benefits they may have sustained by reason of our discrimination against them, less net interim earnings, plus inter- est. ORNAMENTAL IRON WORK COMPANY Frank D. Motil, Esq., for the General Counsel. H. Brian Rector and Gregory P. Rector (Rector and Associ- ates), of Akron, Ohio, and William Boesche, President, of Norton, Ohio, for the Respondent. Carl W. Gray, Business Manager, of Cleveland, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me in Akron, Ohio, on May 2, 3, and 4, 1988, upon an initial unfair labor practice charge filed on October 13, 1987, and a second amended complaint, issued on April 7, 1988, alleging that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging and/or refusing to reinstate striking employ- ees, following their unconditional offer to return to work. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Counsel and the Respondent. On the entire record in this proceeding, including my opportunity to observe the witnesses while testifying and their demeanor, and after consideration of the posthear- ing briefs, it is found as follows. 1. JURISDICTION The Respondent is an Ohio corporation, with a place of business in Norton, Ohio, from which it operates as a subcontractor in the construction of residential and com- mercial facilities. In the course of said operations, the Respondent annually sells and ships from said facility goods and materials exceeding $50,000 in value directly to points outside the State of Ohio. The complaint al- leges, the answer admits, and it is concluded that the Re- spondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is concluded that Iron Workers Shopmen's Local Union No. 468 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (the Union) is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. ORNAMENTAL IRON WORK CO. 475 III. CONCLUDING FINDINGS A. The Issues This case derives from the Respondent's failure imme- diately to reinstate 18 economic strikers following an un- conditional offer to return to work. The resultant 8(a)(3) allegations are challenged by a variety of alternative de- fenses, including assertions that certain strikers were re- placed prior to the strike's termination, ' and that 14 were discharged for their participation in strike miscon- duct, while the remaining 4 were placed on a preferential hiring list. B. Preliminary Statement The Respondent is a family held operation which dates back to 1906. Since 1935, its employees had been repre- sented by Iron Workers Local 587 . Apparently, that Local was placed in trusteeship by the International, and in 1986 disclaimed interest in representing these employ- ees. In consequence , the Respondent has had no collec- tive-bargaining agreement covering its in-plant workers since 1984, when its contract with Local 587 expired. Subsequently, on May 29, 1987, following a Board-con- ducted election, Iron Workers Local 468 was certified as the exclusive representative of these employees. Ensuing contract negotiations continued into the fall of 1987. By late September, employee dissatisfaction emerged with respect to the Respondent 's willingness to schedule meetings. At a union meeting on Sunday, Sep- tember 27, 1987,2 authority was conferred on the Union's negotiating committee to call a strike when it was deemed necessary. In addition, during the ensuing week, bargaining unit employees engaged in lunchtime informational picketing . In doing so, they clocked out for their lunch period, and carried informational placards across the street from company property. This tactic ap- parently failed to produce a satisfactory solution. Thus, a strike commenced at midday on Thursday, October 1. A week later, on October 8, a negotiating ses- sion was held. In the course thereof, the Union elected to terminate the strike and, in consequence, on that date, the pickets were withdrawn . None of the strikers were immediately recalled. On Tuesday, October 13, the strikers met with em- ployer representatives and were informed by the latter that 3 strikers had been replaced, 4 would be put on a preferential hiring list, and the remaining 11 discharged for illegal strike activity. 3 The employees were also in- formed that in consequence of the strike, the Respondent would cease its fabrication activity. i The Respondent's position in this proceeding is not always a model of clarity. It did elicit testimony from witnesses that , in consequence of the effects of the strike, it suspended indefinitely the work of bargaining unit employees. Yet, the Respondent does not presently suggest that it relies on this step as supporting any viable defense. Nevertheless, the issue is analyzed herein because an attempt to resurrect the issue at some point in the future is not beyond possibility. 2 Unless otherwise indicated all dates refer to 1987. 8 During the hearing, the Respondent revised its position slightly by contending that the four replaced strikers were also discharged for strike misconduct C. The Offers to Return to Work A threshold issue is presented as to when the Union perfected an unconditional offer to return to work. The Respondent contends that this did not occur until Octo- ber 12, a date after replacement of at least three, and possibly all strikers. Thus, William Boesche, Respond- ent's president, testified that on October 7 , the decision was made to contract out all fabrication work : "At least until we resolved our labor difficulties ." He also avers that on the morning of October 8, he decided to begin looking for replacements for the strikers.4 The relevant facts show that on October 8, probably around midday, all pickets were withdrawn. As hereto- fore indicated, earlier that morning, a negotiating meet- ing was held in the presence of Federal Mediator Tom Mick. The parties were separated . Ultimately, union rep- resentatives were informed that the Respondent agreed to utilize the Federal Mediation Service for arranging and scheduling future meetings . As a result, the Union, being of the view that the stoppage had served its pur- pose, elected to end the strike . Mick was informed of the Union's position. According to Brian Rector, the Re- spondent's negotiating agent , Mick then approached him, telling him that he thought the strikers were going to return to work, and that, if they did, a telegram would be sent.5 Consistent with its position, at 11:10 a.m., on October 8, the Union dispatched the following mailgram to the Respondent: This is to advise you that the work stoppage that commenced on 10-1-87 is hereby terminated and all employees will be reporting to work at their normal starting time on October 9, 1987 . The above action is being taken as a result of the Company's committ- ment to schedule meetings and bargain in good faith. A confirmation copy of the mailgram reflects that this message was delivered to Brian Rector and William Boesche. The time of delivery is not indicated . 6 The evi- 4 As I understand Boesche's testimony, he on that date also decided to discharge those strikers that he believed engaged in misconduct 5 Brian Rector was Respondent's spokesman in the course of the con- tract negotiations. It also appears he was among those counseling Re- spondent during the entire period relevant to this proceeding. His testi- mony, in many areas, struck as improbable and an argumentative by- product of a desire on his part to shore up his advocacy At the same time, Mick did not testify. Thus, there is no probative alternative to Rec- tor's version of what Mick told him. Nevertheless, Rector's account is accepted solely to the extent of its admission that the Respondent was afforded some information concerning the Union 's intent to end the strike on that morning. 9 See G.C. Exh. 6. The General Counsel argues that the above tele- gram substantiates testimony by union representatives that they had au- thorized mediator Mick to notify Brian Rector of termination of the strike. While I would agree with this view, as Mick did not testify, Brian Rector's account is the sole evidence of what Mick communicated to the latter. The issue here is not what the Union intended , but what was com- municated to the Respondent. In addition, the testimony by Union Repre- sentative Gray, partially corroborated by stoker Ronald Buck, that Mick returned to inform the union committee that Rector had been told that the strike had ended, is also a hearsay version of what actually took place between Mick and Rector. 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dence is uncontradicted that on the afternoon of October 8, picketing ceased, and all vestiges of strike action were removed from areas proximate to the Respondent's plant. On Friday, October 9, the 18 former strikers appeared at the plant at 7 a.m. Although the plant had been open throughout the week, on October 9, the plant was closed, no one was present, and the gates were locked. The men remained for about an hour, until Union Busi- ness Agent Carl Gray was contacted . The latter advised the men to leave, but to report again on Monday, Octo- ber 12, at their regular starting time. Respondent offers no explanation for any late start or failure to operate that morning. The employees again reported to the plant on Monday, October 12. Once more the gate was locked, but Brian Rector soon appeared . Rector gave Ron Buck, the Union's chief shop steward and a member of the ne- gotiating committee, a yellow pad headed "A LIST OF MEN DESIRING REINSTATEMENT." Buck credi- bly testified that he asked Rector what was meant by the term "reinstatement" and whether the men would be given a new rate or hired as a new man. Rector admit- tedly responded that this "would be determined" after he was informed as to who wished to return to work. Buck, unsure of the list's implications , telephoned Gray who advised against signing any document until Gray had an opportunity to review it. According to credited testimo- ny of Buck, he returned the pad to Brian Rector, advis- ing the latter that Gray would have to look over the paper and would get back to him. Buck then reported what had transpired to his coworkers , and it was agreed that the 18 former strikers would try again the next morning.' That day at 2 p.m., Gray transmitted another mail- gram to the Respondent, as follows: This is to advise you that the action taken by the Company on Friday, 10/9/87 and Monday, 10/12/87 is being construed as a lockout by the Union. This is also to advise you that all employees will report again to work unconditionally on 10/13/87 at their regular starting time.8 On Tuesday, October 13, at 7 a. m., at least 17 of the former strikers, consistent with the mailgrams previously sent, presented themselves at the plant . On this occasion, the employees, together with their union representative, Gray, were invited by Brian Rector into the plant, where, in the presence of various management officials, Rector announced that 3 pickets had been replaced, 4 9 The General Counsel correctly observes that, if the strikers had pre- viously established their entitlement to reinstatement as unreplaced eco- nomic strikers, the Respondent could not impose any conditions on the discharge of its obligation to offer immediate reinstatement In that con- text, the failure to either sign the list, or designate in writing those who desire reinstatement would in no sense excuse the Employer's obligation. Moreover, considering the fact that all 18 former strikers were present at the plant, Rector could rightfully assume that all sought a return to work, and it is difficult to accept that the list was in furtherance of any legitimate business exigency. 8 See G.C. Exh. 7. had been placed on a preferential hiring list, and the re- maining 11 had been discharged.9 On the issue of when the Respondent received notifi- cation of the unconditional offer to return to work, Boesche testified that he did not receive the Union's Oc- tober 8 mailgram until Monday, October 12. Brian Rector testified that prior to the early morning hours of October 12, he had heard rumors that the Union had sent "telegram" indicating that the men wanted to return to work, but that he had not received it and, to his knowledge, a copy had not been received by the Compa- ny either. There is no evidence to the contrary. Never- theless, the issue is not free from doubt . For I have strong reservations concerning the trustworthiness of Re- spondent's witnesses. On balance, however, this alone, in the circumstances , does not merit an inference that the Respondent actually received the required notification prior to October 12. The probability that mailgrams would have been received earlier is not so strong as to warrant a conclusion that Respondent 's testimony was so irrational as to suggest that the opposite is true . It is ar- guable that Respondent, prior to that date, had every reason to suspect the Union's intention in this regard. This is particularly so when considered in the light of the termination of picketing on October 8, the unex- plained failure to open the plant at customary hours on October 9, and Rector's attempt to secure specific evi- dence of those attempting to return to work in the early morning hours of October 12. However, the Respondent is entitled to formal notification that the strike has ended unconditionally and, absent specific, primary evidence of when this occurred, there is no basis for concluding that it was perfected prior to October 12.1 0 It is in this light, that the Respondent's affirmative defenses concerning the permanent replacement of the strikers must be evalu- ated. The Respondent has the initial burden with respect to all such defenses. D. The Respondent 's Defenses 1. The hiring of permanent replacements Boesche testified that strikers Norris, Stanley, and Walgenbach were permanently replaced . Undisputed company records show that on October 8, Richard Ben- nage was hired and commenced work as a truckdriver." 9 The Respondent's witnesses seem to agree that the decision to take these steps was made much earlier If this were the case, Rector's request for a list of those desiring reinstatement on October 12 amounted to a cruel charade , unless, that is, the Respondent's position vis-a-vis the stnk- ers had not crystalized as of that date. 10 Were I to have concluded otherwise , I would disagree with the Re- spondent that the October 8 mailgram was conditional , and for that reason failed to convey a valid offer to return . Nothing in that letter re- quires the Employer to adopt any measures or take steps beyond what, in the circumstances, the law required it to do Although the Respondent cites Mid-County Transit Mix Co., 264 NLRB 782 (1982), that decision hardly supports its view. There, the union's letter of April 7 stated that employees "wanted to commence negotiations for a collective bargaining agreement." The judge, with Board approval, concluded that this decla- ration failed to impose an unlawful condition upon the otherwise uncon- ditional offer to return to work . 264 NLRB at 790. 11 This confirms the testimony of Boesche that at least as of that date efforts commenced to obtain permanent replacements for the strikers. ORNAMENTAL IRON WORK CO. 477 According to the Respondent's formulation, it decided to replace the strikers with the least seniority first. Consist- ent therewith, Bennage replaced Larry Norris. Firstly, it is noted that Respondent's decision to re- place along seniority , rather than occupational lines, was a unilateral election . It was inconsistent with the tradi- tional rights of strikers under the law. Norris was a welder. There is no indication that he ever performed any truckdriving duties. The right to reinstatement at- taches to the "job for which the striker is qualified." See, e.g., NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967). It is true that seniority may be invoked to resolve competing claims by strikers for a single vacancy. Beyond that, however, the employer may not frustrate reinstatement to the striker's former position unless un- available in consequence of legitimate considerations. Thus, as the Respondent failed to demonstrate that a welder was hired prior to the unconditional offer to return to work, it follows that the Respondent could not lawfully deny reinstatement to Norris on grounds that he had been permanently replaced. As for the alleged replacement of Stanley and Walgen- bach, Respondent's records reflect that poststrike hiree John Ward did not begin work until October 13 and that Gregory Berkey did not start until October 19. There is no specific evidence as to when these individuals were interviewed, or when Respondent committed itself to hiring them . To the extent that Brian Rector's testimony is susceptible to an interpretation that these replacements were informed that they had been hired on October 8 and 9, he was not believed . Accordingly, it is concluded that the Respondent has failed to demonstrate that eco- nomic strikers Walgenbach and Stanley were permanent- ly replaced before Respondent was made aware that an unconditional offer to return to work had been made on their behalf. See, e.g., Harvey Engineering Corp., 270 NLRB 1290, 1300 (1984). 2. The preferential hiring list Four of the strikers, namely, Lee Vue, Zanna Vue, Richard Marzich, and Daniel Amhauser were placed on a preferential hiring list. The Respondent explains that this action was taken because this group had not engaged in picket line misconduct . However, there is no specific explanation as to why immediate reinstatement was not conferred in their case . It is entirely possible that their employment opportunities may have been affected by the alleged decision on the part of Respondent to discontinue fabrication work. However, the Respondent makes no specific claim to this effect. Unquestionably, the strikers were informed of this decision on October 13. Moreover, at the outset of the hearing, Brian Rector mentions the elimination of fabrication, but goes no further. In the Re- spondent's posthearing brief, this significant decision is not even mentioned , let alone argued as the predicate for an assertion that work of any of the strikers disappeared in consequence thereof. Instead of linking the fabrication cutback with the need for a preferential hiring list, the Respondent merely asserts that Amhauser, Marzich, and the Vues, like Norris, Walgenbach, and Stanley were not given work "because sufficient replacements had previ- ously been hired." 12 The Respondent's failure to raise the defense is possi- bly attributable to several considerations . First, the evi- dence does not establish that as of October 12, when the offer to return to work was received, the Respondent had actually committed all or part of the struck work to outside contractors.13 Secondly, testimony concerning the subcontracting raises additional questions as to the legitimacy of the un- derlying motivation. The following colloquy between William Boesche and Brian Rector provides the pivotal frame of reference. Q. Okay. So it was your decision to contract the work out that was involved with these contracts. Did you make a decision to suspend fabrication at the company? A. Yes. Q. And how long-in your mind, how long did you plan on having the fabrication suspended? A. I had nothing definite in mind . At least until we resolved our labor difficulties, I thought it would be necessary.114 Whatever the underlying intent, subcontracting as a means of replacing protected strikers is a sharply limited concept . Thus, the Board has held that temporary sub- contracting during the course of a strike is permissible, but may only be continued beyond termination of the strike "where dictated by the exigencies of the strike, or because of the threat of imminent strike ." See Land Air Delivery, 286 NLRB 1131, 1132 fn. 8 (1987). The limited utility of this device was underscored by the Board as follows: [P]ermanently contracting out the work of unit em- ployees is not equivalent to replacement of one em- ployee by another. . . . With regard to replacing the strikers, the Respondent had two options to assure its continued operation : the Respondent had 12 It is noteworthy that on October 13, Brian Rector announced that three employees had been replaced. At that time there was no suggestion that this group had been discharged , and it is curious that Respondent would have categorized them separately if they, like the remaining 11, had been discharged for strike misconduct . Moreover, those allegedly re- placed were not placed on a preferential hiring list, as would be required under Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th Cir. 1969), cert denied 397 U.S. 920 (1970) It was my impression that the belated claim that they were discharged was an afterthought which took the form of a last-minute shift in position to cover this omission 19 The Respondent did not afford the Union advance notification and an opportunity to bargain concerning the issue , thus raising a collateral question of legality. See, e.g., American Cyanamid Co., 235 NLRB 1316 (1978) Moreover, since the Union was kept in the dark, the opportunity for discerning whether Respondent did or did not become inextricably bound to vendors before formal termination of the strike is further be- clouded. The Respondent's own representatives seemed confused as to the scope of this decision . Thus, its vice presidents, Beasley and Alexan- der, described the decision as permanent . As shall be seen, Boesche did not agree 14 Boesche does not define the nature of the resolution required. Since he claims that at termination of the strike , 14 of the 18 union supporters had been discharged, one might argue that it was his intention to restore fabrication only upon total demise of the Union 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the right to hire permanent employee replacements, the strikers thereby retaining reinstatement rights in accordance with Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (1969), cert. denied 397 U.S. 920 (1970); or the Respondent had the right to contract out the work temporarily for the duration of the strike in accordance with American Cyana- mid, supra. The Respondent's admitted course of action-unilateral permanent contracting out of the work-is, absent proof that the options set forth above were unavailable to it, not permissible under the Act. [Footnote omitted.] Here, the decision to contract out took place late in the strike and was to continue into the indefinite future. The only real justification for this measure was Respond- ent's inability to meet its obligations to certain customers during the strike. While it may have been perfectly le- gitimate to meet commitments to existing customers by utilizing subcontractors during that period, no acceptable reason is offered for continuing that process after the work force became available. Here, following the offer to return to work, there was no suggestion that a follow- up strike was imminent or reasonably threatened. Hence, the Respondent's justification for poststrike contracting merely rests upon the inevitable consequences of strike action. Were employers free to eliminate unit work in- definitely on this basis, the defense which would inure is of such universality as to strike at the heart of the funda- mental right to strike. In short, an employer's speculative assertion that continued subcontracting is a requisite hedge against future strike-related losses falls within the category of business judgments ineffective to validate that which is "inherently destructive of employee inter- ests." NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967). In this light, considering the assigned reason for the in- definite scope of the contracting out, as well as the ques- tionable utility of this device as a basis for replacing strikers, it is understandable that the Respondent, in its posthearing brief, declined to mention the issue as among the defenses to its failure to reinstate the economic strik- ers. But should the matter be raised in the future, it is my conclusion, on the above reasoning, that the subcontract- ing did not constitute a legitimate basis for denying im- mediate reinstatement to the strikers following their un- conditional offer to return to work. 3. The misconduct discharges a. Preliminary statement Under established Board precedent, the discharge of a striker is presumptively unlawful. However, rebuttal is substantiated on the employer's showing of an honestly held belief that the striker engaged in the misconduct for which he or she was discharged. See Rubin Bros., 99 NLRB 610 (1952), enfd. 203 F.2d 486 (5th Cir. 1953). The quality of the proof necessary to substantiate the employer's responsibility in this regard was articulated in General Telephone Co. of Michigan, 251 NLRB 737, 739 (1980), as follows: [T]he burden of establishing an "honest belief" of misconduct requires more than the employer's mere assertion that an "honest belief" of such misconduct was the motivating force behind the meting out of discipline. Meeting the burden also requires more than a general statement about the guidelines used in establishing the alleged "honest belief." Rather, it requires some specificity in the record, linking particu- lar employees to particular allegations of misconduct. [Emphasis added.] Obviously this standard is not satisfied where the under- lining facts are unknown at the time of discharge. See, e.g., Axelson, Inc., 285 NLRB 49, 52 (1987). In addition, not all misconduct will suffice to substantiate the em- ployer's initial burden. The strikers will be disqualified only where the employer's good-faith belief is supported by "misconduct . . . [which] under the circumstances ex- isting . . . reasonably tend[ed] to coerce or intimidate employees in the exercise of rights protected under the Act." Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984); Lima v. NLRB (Keco Industries), 819 F.2d 300 (D.C. Cir. 1987).16 Upon proof of the requisite elements by the Respond- ent, the burden shifts to the General Counsel to establish either that the conduct was not sufficiently serious to support discharge, or that misconduct did not in fact occur. See, e.g., NLRB v. Burnup & Sims, 379 U.S. 21 (1964); Clear Pine Mouldings, supra. The General Counsel variously contends that Re- spondent has failed to meet its initial burden under Rubin Brothers, supra, that the misconduct did not in fact occur, and, in any event, the discharges were pretextual and designed to "enable Respondent to claim that it had no further obligation to bargain regarding the bargaining unit which had chosen to strike."16 The Respondent in its posthearing brief names 14 strik- ers as having engaged in "blocking the ingress and egress of the Respondent's facility, threatening and/or intimi- 15 The Respondent argues that conduct in contravention of its internal policies would support legitimacy of the discharge. In this connection it is argued because several pickets were observed drinking beer on compa- ny property, and because such conduct contravenes an established rule, the discharges of these individuals must be upheld . See R. Exh. 10. First- ly, the pickets may have been on company property during the period in question, but they were neither working under the influence of alcohol, nor using alcohol dung working hours . Hence, their action did not fall within the scope of the Employer 's proscription. More importantly, how- ever, the Respondent's contention assumes that an employer 's internal regulation of conduct takes precedence over Board policy . On the con- trary, the Board's definition of disqualifying conduct is the exclusive ref- erence for determining whether there is legitimate foundation for a strik- er's discharge. In this instance, the apparently temporary presence of al- coholic beverages on the picket line is not shown to have resulted in in- toxication of any of the pickets, or to have corresponded to any danger- ous condition on the picket line. Accordingly, the conduct was not shown as having any tendency to contribute to a coercive aura. 16 This claim bears little relationship to the proven facts . The circum- stantial evidence plainly is not so strong as to deny the Respondent the right to terminate those who have engaged in serious misconduct More- over, in rejecting the claim of pretext , it is noted that no significance at- taches to the General Counsel's claim that the Respondent delayed in in- forming the strikers of misconduct discharges until several days after the picketing had ended. As heretofore indicated, the Union's offer to return to work was not received by the Respondent until September 12. ORNAMENTAL IRON WORK CO. 479 dating employees and customer[s], damage to employee property and consuming alcoholic beverages which were unprotected by the Act and contrary to established com- pany and public policies." The Respondent contends that the discharges were in consequence of a decision-making process that went on throughout the strike. Participating in that process were Boesche, Brian Rector, Bob Beas- ley, Respondent's vice president in charge of estimating and sales, and John Alexander, Respondent's vice presi- dent in charge of engineering. In terms of specifics, these individuals, together with Steel Salesman Mark Denham and Shop Superintendent Robert Michin, were able to relay first-hand or reported information concerning only a handful of incidents, in which specific misconduct is at- tributed to identified strikers. b. The blocking of plant access According to Boesche, certain strikers were dis- charged solely because they blocked the plant entrance. The group included Arnold Adams, Tim Delagrange, Rodney Ford, Richard Miller, Larry Norris, Harry Petz, Bill Stanley, and Bruce Walgenbach. As for his personal knowledge of their alleged offense, Boesche revealed as follows: I didn't see any trucks blocked. It was that the cus- tomers related to me . . . by phone, and what our own employees related to me. Nevertheless, Boesche does purport to have witnessed an incident involving a company truck driven by Jim Swope, a supporter of the strike. He relates that on the first day of the picketing, as Swope approached the plant, he had to slow down because "the pickets were ready to make him halt at the gate." Boesche could not identify the pickets involved from his point of observa- tion, and apparently took no steps to find out who they were. Brian Rector testified that he witnessed another inci- dent in which trucks were obstructed. He relates that at the time Henry Petz, Larry Norris, Tim Delagrange, and Richard Miller were on the picket line. As I understood his testimony, he noticed Petz and Norris standing in front of a truck, and Delagrange and Miller adjacent to it. According to Rector, he informed Petz that he would have to move from the front of the vehicle and allow it to pass. Petz allegedly balked, indicating that he would not move, whereupon Rector indicated that he would have to have him moved. Rector then instructed Beasley to call the police. After consulting with the driver and finding that he wished to cross the picket line, Rector as- serts that he asked him to wait. According to Rector, when the police arrived, Petz and Norris moved and the truck was allowed to pass. There is no indication that Delagrange and Miller in any physical fashion impeded access of the vehicle.'' 17 Beasley does not mention the incident . Boesche does not assert an awareness of it at the time he decided to discharge strikers . Petz admits to an incident where he was told by Rector to move in order to allow the truck's entry or he would have to move Petz. One might give the Respondent benefit of the doubt and infer that the incident was reported to Boesche and constituted the foundation for his discharge of Petz and Norris. However, the inquiry is not ended simply by a finding that Respondent had a reasonable basis for be- lieving that Petz and Norris obstructed a vehicle's entry to the plant. It is true that in Clear Pine Mouldings, supra at 1047, the Board stated as follows: We believe it is appropriate, at this point, to state our view that existence of a "strike" in which some employees elect to voluntarily withhold their serv- ices does not in any way privilege those employees to engage in other than peaceful picketing and per- suasion. They have no right, for example, to threat- en those employees who, for whatever reason, have decided to work during the strike, to block access to the employer's premises, and certainly no right to carry or use weapons or other objects of intimida- tion. As we view the statute, the only activity the statute privileges in this context, other than peaceful patrolling, is the nonthreatening expression of opin- ion, verbally or through signs and pamphleteering, similar to that found in Section 8(c). However, this general statement of the law is not taken as impinging upon the traditional right of pickets to take steps necessary to perfect a verbal appeal to a driver headed for a strike-bound facility. Specific precedent confirms that, to this end, an instantaneous blockage, which allows those seeking access to freely choose be- tween disregarding or honoring the picket line, fails to convert protected into unprotected strike action. For many years the Board, with court approval, has recog- nized a distinction with respect to such conduct, stating: "momentarily blocking cars by mass picketing, fails to disqualify a striker from reinstatement." See Coronet Cas- uals, Inc., 207 NLRB 304, 305, and cases cited at fn. 9 (1973). Clear Pine Mouldings, supra, fails to address this distinction, and until the Board rules otherwise, a mo- mentary, otherwise noncoercive blockage will fall within that form of mischief classified as "minor acts of miscon- duct [which] must have been in the contemplation of Congress when it provided for right to strike." In this regard, Petz denied that there was any physical obstruction of the truck on a prolonged basis. Roy Poe, the driver of the Chippewa Steel vehicle, although called by the Respondent, afforded an account more consistent with that of Petz than that related by Rector. Thus, upon examination by Rector, Poe related as follows: Q. Did you ever have an occasion to drive the Chippewa company's truck to the Ornamental Iron Work Company? A. Yes, I do. Q. And did you have occasion to drive over there when there were pickets at the Ornamental Iron Work Company? A. Yes. Q. Can you remember what day that was, Mr. Poe? A. No, I can't. 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Okay. When you were leaving your company, Chippewa, to drive your truck over there, were there any specific instructions given to you by your superior? A. Yes, there was. Q. Can you explain to us what those instructions were? A. I left at a certain time-specific time that I was told to leave and I was told to go there and pick up a load of steel. I was told to go in if I could go in, but not to cause any trouble. And that the police would arrive at a certain time to escort me in. Q. So in other words, your trip from Chippewa to Ornamental Iron was a specifically designed trip and the police were to be there to get you in if you had any trouble. Is that true? A. Yes. Q. Did you go over to Ornamental Iron Work? A. Yes. Q. And can you tell us in your own words what events took place when you arrive there? A. I arrived there at the front gate. There was two men standing blocking the gate. I pulled up and said I come to get a load of steel. They said, "We're on strike. Would you honor our picket line?" I pulled back out and waited for the police to come. Q. Did the men stand directly in front of your truck? A. Yes, they did. Q. Did the police eventually arrive? A. Yes, they did. Q. Did the police escort you across the picket line? A. No. Q. Did they insure your entrance to the plant? A. Yes. Thus, Poe relates, contrary to Rector, that the ar- rangement with the police was made prior to his arrival. Furthermore, the latter's specific testimony that he, after hearing the picket's appeals, "pulled back out and waited for the police to come," is clearly indicative of a momen- tary intervention, which produced a voluntary decision on the part of the driver to adhere to their wish, at least temporarily. In the circumstances, based on the testimo- ny of truckdriver Poe, I am convinced that the incident did not occur as described by Rector, and that the pick- ets did not physically prevent the truckdriver from en- tering the plant for any prolonged period. Accordingly, it is concluded that the instantaneous blockage on the part of Petz and Norris was solely to gain the attention of the driver in order for them peace- ably to deliver their message, and hence represented con- duct for which they could not be discharged. Boesche described a group of five other strikers as having been discharged because they "blocked traffic." Included were Adams, Delagrange, Miller, Stanley, and Walgenbach. In their case, not a shred of evidence was offered identifying them with any blockage of any vehi- cle be it that of a customer, supplier, visitor, or employ- ee. Nor did anyone testify to an awareness of any specif- ic situation in which these employees blocked access to the plant. Thus, Respondent' s case against these strikers rests on a bald allegation which fails to cast any light upon "the guidelines used in establishing the alleged `honest belief."' Thus, as to the foregoing strikers, the Respondent has failed to meet its initial burden consistent with the dictates of General Telephone, supra; the dis- charges of these strikers cannot be upheld on the raw al- legation that they blocked access to the plant. c. Specific misconduct (1) Conduct toward nonstriker Adolf Kissner Adolf Kissner is a truckdriver, who had been em- ployed by the Respondent for 31 years. He was basically unsympathetic to the Union. On October 1, the first day of the strike, he did not return to the plant until 4 or 4:30 p.m. As he pulled his truck into the driveway, he was surrounded by pickets and stopped his vehicle. Accord- ing to Kissner, striker Charles Currence, opened the door to the truck, pulled Kissner's leg, while stating "get out." Kissner declined, whereupon Currence referred him to a nearby 5 gallon drum, stating "If you don't get out, we're going to get that gasoline and pour it on your truck and blow your ass away." Kissner claims that Cur- rence pulled him from the truck, but that he was allowed to remove his CB radio, and then went directly to his car, and drove home. Thus, Kissner was precluded from returning the truck to the plant. Kissner added that as he was walking to his car, striker Winkler yelled, "get the fuck out of here, or we're going to fuck you in the ass and kill, you son-of-a-bitch." In addition, Domico alleg- edly "mumbled" to Kissner that he had better get out of here. 18 It is the sense of Boesche's testimony that the incident was reported to him and that Charles Currence and Louis Domico were discharged in consequence thereof. However, since Boesche named Winkler as having been discharged for his involvement in other matters; one could fairly assume that Boesche, at the time of dis- charge, was not aware of any misconduct on Winkler's part toward Kissner.19 Indeed, there is no evidence that any other representative of management, was aware of any such threat. Accordingly, the Respondent has failed to substantiate that the conduct Kissner attributes to Winkler in any way contributed to the latter's discharge. In the case of Domico, he denies that he threatened Kissner. He insists that he was not even in the immediate area of Kissner's truck at the time. In any event, the remark imputed to him does not imply that any action was contemplated by Domico, and the statement is too ambiguous to fall within the definition of disqualifying misconduct set forth in Clear Pine Mouldings, supra. Ac- cordingly, the conduct attributed to Domico offers no substantial basis for a legitimate discharge. Currence, who admittedly confronted Kissner at the driver's side of the vehicle, denies having threatened Kissner, but states that he advised Kissner that the men 1 9 Kissner described Domico's remark as a threat. 19 Winkler admitted to being in the area, but claims that he said noth- ing to Klssner other than to request that he join the picket line, and nei- ther used profanity, nor threatened Kissner ORNAMENTAL IRON WORK CO. 481 were on strike, that he "wished" that Kissner would get out of the truck and go out on the picket line, or "go home." As Kissner was believed over Currence, the latter is deemed to have transcended lawful picket line activity through a serious threat of physical harm. In accord with Clear Pine Mouldings, his conduct provided grounds for legitimate discharge . Accordingly, the 8(a)(3) and (1) allegation in his case shall be dismissed.20 (2) Conduct towards nonstriking employee Guy Walker Walker was the only employee present at the plant on October 1, when the strike began, who declined to par- ticipate and continued to work through the balance of the day. He claims that as he left work at 5:30 that evening, striker Rodney Ford stepped in front of his car, forcing Walker to stop. As he did so, striker Bill Graham Kicked his car door . Mark Denham, a steel salesman em- ployed by the Respondent, confirms that he was in the car which followed Walker as he left the plant that day. However, he could not identify Rodney Ford as among the employees that blocked the car, but that Charles Currence was the only one he could single out, though he was aware that others were present. Firstly, the Respondent has suffered a proof failure with respect to Rodney Ford. Boesche simply claims that Ford was discharged for blocking the entrance to the plant. He does not describe the incident. He does not acknowledge that he received information that it was Ford who stepped in front of Walker's car . Walker was involved in several confrontations, and although he claims to have reported the incidents to his supervisor, Robert Michin, the record is silent as to what Michin was told . Michin does not relate that he reported, or was aware of, the fact that Ford had been implicated by Walker. In this light, considering the conflict as to who had blocked Walker's vehicle, in the absence of any evi- dence that the conflict had been resolved, or that Boesche was aware of the accusation against Ford, it is concluded that he had no reasonable basis for belief to this effect. In any event, since Walker describes the blockage as "momentary," and since there is no evidence of any predesign to inflict damage to his vehicle, it is concluded that the evidence does not support a finding that Ford had conspired with Graham to that end. In sum, although Ford did not testify, it is concluded that the incident provided Respondent with no reasonable basis for discharging him. In the case of Graham, Boesche simply testified that he was discharged for "an incident on the picket line other than just blocking traffic." On the total record, it is 20 In so finding, the Respondent has been given the benefit of the doubt as to the basis for this discharge. The defense was litigated in am- biguous style. Despite my prodding, the grounds for discharges were seldom articulated in specific terms , so as to afford a clear understanding as to just what acts of misconduct were attributed to what striker as the foundation for discipline In addition, there was little indication on an in- dividual discharge basis, as to just what evidence was available to Boesche or its source. Nonetheless, in the case of Currence , I am willing to assume that Respondent met its burden through Boesche's testimony that he was discharged because of his involvement in "the incidents on the picket line." The reference, although vague, on the total record, is construed as founded upon the threat to Kissner. fair to give the Respondent the benefit of the doubt that this reference was to the Walker incident. Concerning the incident, Graham testified that no one blocked Walk- er's vehicle, but that as his car passed, he hollered, re- peatedly calling Walker a scab . He claims that Walker paused and then continued on. As against Graham, the testimony of Walker and Denham was preferred. I did not believe that they contrived the incident from whole cloth. Moreover, Walker related that the dent remains in his car, thus indicating that more than a general tap was involved. This kind of disrespect for the property of others on a picket line, albeit isolated, signals a propensi- ty towards retribution which makes it at least equatable to the verbal threats considered in Clear Pine Mouldings. In sum, it was a physical act, perhaps not itself violent, which tended to instill fear of harm. See, e.g., Gem Ure- thane Corp., 284 NLRB 1349, 1353 (1987). Accordingly, it is concluded that Respondent lawfully discharged Graham in consequence of this incident and the 8(a)(3) allegation in this respect shall be dismissed. Walker's second encounter with a striker occurred on the morning of October 2, when he reported to work. Thus, as he drove his vehicle onto the office parking lot, he avers that he was met at the door by Ronald Buck. Buck held a baseball bat as he advised Walker that if he got out of the car, he would use the bat on Walker's head. Walker obliged. Later, other pickets arrived, and after Walker convinced them that he would not work, but simply would pick up his paycheck and leave, they permitted him to enter the plant. In this connection, Boesche testified specifically that the incident was brought to his attention by Bob Beasley and Bob Michin . This is the sole instance where Boesche described the basis for his action in detail . Based thereon, it is concluded that Respondent discharged Buck with a reasonable basis for belief that he engaged in conduct of a disqualifying nature . Striker Henry Petz confirmed that he observed Buck talking to Walker in the latter's car, and at the time Buck was carrying a baseball bat. Buck was not examined as to the incident . Walker was be- lieved, and in the circumstances, the 8(a)(3) and (1) alle- gation shall be dismissed. (3) The altercation Boesche testified that Winkler was discharged because of his involvement in a fight at the picket line. The con- frontation involved Winkler and Rudy Domingo, the su- perintendent of Respondent 's field staff. Domingo did not testify. The only eyewitness presented by Respond- ent was Robert Beasley , a vice president. Prior thereto, striker Swope had left his truck outside the plant in order to join the strikers. Beasley testified that he and Domingo left the building and proceeded in the direction of Swope's abandoned, still running truck. As they walked, Beasley relates that Swope hollered to Domin- go, "it looks like you're going to have to drive the truck in, Rudy." Striker Winkler then added "Rudy will drive that damn truck in over my dead body ." Beasley contin- ued to the truck, and with the assistance of Swope got it in gear, and drove it towards the picket line. As he did 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD so, he observed Domingo and Winkler exchanging blows. With the exception of the remark he ascribes to Winkler, Beasley could give no explanation as to what specifically provoked the fight. Boesche did not testify as to what he understood to have been the immediate cause. Moreover, Beasley's testimony suggests strongly that Domingo left him in order to confront Winkler. Re- spondent's evidence does not disclose who threw the first blow, or what happened thereafter. If there were sufficient provocation for Dimico's foray to the picket line, I am not convinced that the remark attributed to Winkler sufficed. In this state of the record, it does not appear that Respondent knew precisely what provoked the fight, or that the assumption that Winkler was at fault was reasonably premised . 21 Domingo did not testi- fy, and as he was not shown to be unavailable, it is as- sumed that if presented, his testimony would not have been favorable to the Respondent. Beyond that, the evi- dence available to the Respondent was limited to Beas- ley's account, which clearly demonstrates that Domingo altered his course to reach Winkler, and not vice versa. Thus, Domingo was the aggressor. The remark Beasley attributes to Winkler was a colloquial phrase of contempt and disdain, but hardly was an invitation to fight or rea- sonable justification for Domingo's assault of a picket. I do not believe that the Respondent had a reasonable basis for concluding otherwise . To hold that the evi- dence against Winkler constitutes a reasonable basis for belief that he engaged in misconduct would condone the discharge of a striker whenever a management represent- ative or nonstriker were to lose control and engage a picket in fisticuffs. The right to strike does not hinge on such a precarious limitation . The evidence shows that Winkler did not engage in misconduct in this respect, and the Respondent had no reasonable basis for believing otherwise. (4) The threat involving John Glas Ornamental Iron This issue is discussed more because of the attention given it by the parties than its relevance to the pleadings. Glas is a customer, who during the picketing sought to pick up materials at the strikebound plant . The Respond- ent, without calling John Glas, himself, adduced testimo- ny concerning a threat eminating from the picket line. First Shop Superintendent Michin testified that Glas reported that during one of several attempts to cross the picket line, an "unremembered" picket, in reference to Glas' new truck, importuned that the latter had a nice truck and that if he wanted to keep it that way he should not come back.22 Respondent's vice president, John Al- exander, testified to a similar conversation with Glas. Al- exander, does not suggest that the striker who made the threat was ever identified to him. Finally, Boesche did not relate that he was ever informed of the source of the alleged threat. 21 According to Winkler, Domingo came running toward the picket line on the occasion in question, jumped Winkler throwing his fist, while calling Winkler a "thief." Domingo and Winkler were quickly separated. 22 The only representative of John Glas who appeared was his son. The latter failed to testify that he was the object of any such threat. Although the Respondent failed to link the incident with any dischargee, the General Counsel chose to ex- amine striker Louis Domico concerning a conversation with Glas' daughter, Karolina. He testified as follows: The first occasion, Karolina Glas, which is the daughter, came down Newpark Drive with their truck, and our pickets were walking back and forth, and as she pulled her truck into the opposite lane of traffic, blocking the other-the opposite lane of traffic, and she got out of her truck, left it sit there, and she come over and started talking to us about- I think there was about 12 or 15 of us there. I'm not sure how many. And we were talking to her. We told her about working with her father there. I'd worked with her father. And I made a statement that that sure is a nice truck, and I'd hate like heck to see anything happen to it. Why don't you move it. It was parked in the road, blocking traffic. There was cars going around it. And that was it. That was the only statement I said. Q. Now, will you explain in greater detail why you said that she ought to move the truck? I don't understand that. A. Because her truck was blocking traffic. I didn't want to see nobody hit her truck. There was cars coming up through there that had to go around. As indicated, the Respondent did not call Karolina, thus allowing Domico's version to stand uncontradicted. Indeed, as there is no indication that Karolina was un- available, it is fair to assume that, if called, she would not have offered testimony favorable to the Respondent. Accordingly, it is concluded that no threat was involved, and that Domico was simply referring Ms. Glas to peril presented by her hazardous choice of a parking spot, a statement totally divorced from the objectives of the picket line. Accordingly, while the Respondent does not indicate that Domico's discharge was related to the inci- dent, it is further concluded that no misconduct of a dis- qualifying nature was involved. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging strikers Charles C. Cur- rence, Ronald M. Buck, and Billie J. Graham. 4. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging the following economic strikers in reprisal for their protected activity: Arnold Adams Timothy Delagrange Louis M. Domico, Jr. Rodney P. Ford Richard A. Miller Larry P. Norris Henry Petz William Stanley James Swope Bruce Walgenbach ORNAMENTAL IRON WORK CO. 483 Larry E. Winkler 5. The Respondent violated Section 8(a)(3) and (1) of the Act by failing to offer immediate reinstatement to their former or substantially equivalent positions of em- ployment, the above-named strikers together with: Daniel Amhauser Richard Marzich Lee Vue Zanna Vue 6. The above unfair labor practices have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. As the Respondent violated Section 8(a)(3) and (1) of the Act by discharging strikers named above in para- graph 4, and by failing to offer immediate reinstatement to strikers Amhauser, Marzich, and Lee and Zanna Vue, following their unconditional offer to return to work, it shall be recommended that they be offered immediate re- instatement to their former position, or a substantially equivalent position.23 It is further recommended that the named discriminatees be made whole for any loss of earnings or other benefits they may have suffered by reason of the discrimination against them. Backpay under the terms of this Order shall be computed on a quarterly basis from October 12, 1987, to the date of a bona fide offer of reinstatement to a substantially equivalent posi- tion, less net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and shall include interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). On the entire record in this proceeding, including the findings of fact and conclusions of law made above, I issue the following recommended24 ORDER The Respondent, Ornamental Iron Work Co., Norton, Ohio, its officers, agents, successors, and assigns, shall 23 Subsequently Amhauser and Marzich were reemployed. In addition, the Respondent alleges that both Lee and Zanna Vue were offered, but declined offers of reinstatement. Neither the quality of the jobs provided, nor the substantiality of the offers of reinstatement were fully litigated, and the impact of these questions on the recommended remedy is left for resolution dung compliance stages of this proceeding. 24 If no exceptions are filed as provided in Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclu- sions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its find- ings, conclusions, and Order, and all objections to them shall be deemed waived for all purposes. 1. Cease and desist from (a) Discouraging activity on behalf of a labor organiza- tion by discharging economic strikers, by refusing imme- diately to reinstate unreplaced economic strikers upon their unconditional offer to return to work , or in any other manner discriminating against employees with re- spect to wages, hours, or terms and conditions of em- ployment. (b) In any like or related manner interfering with, co- ercing, or restraining employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer the employees listed below immediate rein- statement to their former positions, without prejudice to their seniority, or other rights and privileges. Arnold Adams Louis M. Domico, Jr. Richard A. Miller Henry Petz James Swope Larry E. Winkler Zanna Vue Richard Marzich Timothy Delagrange Rodney P. Ford Larry P. Norris William Stanley Bruce Walgenbach Lee Vue Daniel Amhauser (b) Make whole the above-named discriminatees for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board and its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Norton, Ohio facility copies of the at- tached notice marked "Appendix."25 Copies of the notice on forms provided by the Regional Director for Region 8, after being signed by Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. as 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 "