Handy Andy, Inc.

HANDY ANDY, INC Southwest Merchandising Corporation d/b/a Handy Andy, Inc. and United Food and Commercial Workers International Union , AFL-CIO, Local Union No. 171. Case 23-CA-9311 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 20, 1985, Administrative Law Judge J. Pargen Robertson issued the attached de- cision.' The Respondent filed exceptions and sup- porting briefs and the General Counsel filed a brief in support of the judge's decision.2 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions as modified and to adopt the recom- mended Order as modified. The judge found that the Respondent is a succes- sor to Handy Andy, Inc. a/k/a Handy Andy, Inc., debtor-in-possession; that 24 former economic strik- ers of the predecessor, all meat department em- ployees who had outstanding unconditional offers to return to work, possessed reinstatement rights under Laidlaw4 vis-a-vis the Respondent, and that the Respondent, by refusing to nondiscriminatorily consider the former strikers for employment in its meat department on and after February 2, 1983, s and by failing to establish any business justification for not recalling any of the former strikers to ac- knowledged meat department openings after Feb- ruary 2, violated Section 8(a)(3) and (1) of the Act. We agree with the judge for the reasons stated by him that the Respondent is a successor to Handy Andy, Inc., debtor-in-possession. We also agree with the judge, for the reasons set forth below, that the Respondent discriminated against the former strikers in its original hiring process. We therefore i Following severance of Case 23-CA-9183 at the start of the hearing before the judge, a settlement in that case was obtained , and by order of the judge dated January 17, 1985, Case 23-CA-9183 was dismissed 2 The Respondent's request for oral argument is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. . 8 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 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings 4 Laidlaw Corp, 171 NLRB 1366 (1965), enfd 414 F 2d 99 (7th Cir 1969), cert. denied 397 U S 920 (1970), NLRB v Fleetwood Trailer Co., 389 U S. 375 (1967) 5 All dates herein are in 1983 unless otheiwise indicated 1001 find it unnecessary to pass on his findings regarding the Laidlaw obligations of a successor to former economic strikers of its predecessor. In its exceptions, the Respondent denies discrimi- nating against the former economic strikers . It con- tends that all meat department employees were hired on February 2 based on applications for em- ployment submitted that day; that its store manag- ers were instructed to give applications to all who requested them ; and that the former economic strikers were legitimately excluded from its work force because they failed to apply . The record does not support the Respondent's contentions. The facts, as found by the judge or uncontradicted in the record, follow. In 1982, certain meat department employees of the Respondent's predecessor, the debtor-in-posses- sion, engaged in an economic strike. In November and December 1982, 24 of the strikers uncondition- ally offered to return to work but were not offered reinstatement by the predecessor. On January 31, the predecessor ceased operations and terminated all employees. On February 1, the Respondent pur- chased and assumed operation of 20 grocery stores operated by the debtor-in-possession. Newspaper articles and the television news reported this pur- chase and the fact that the Respondent would be accepting applications for employment at its stores. The reports did not mention a particular location, time, or date to apply and the Respondent appar- ently made no attempt to make public the specifics of the hiring process. On the evening of February 1, the Respondent held a meeting of its supervisory personnel , most of whom had been rehired from the predecessor's op- eration, and gave instructions on the hiring process. Applications for all departments-grocery, bakery, produce, and meat-were to be taken on February 2 at each of the Respondent 's stores. Store manag- ers were to turn applications for the meat depart- ment over to Carl Shroat, meat department super- visor. Personnel Director George Tamez testified that the supervisory personnel were told to take applications from everyone who applied at the stores and to staff the stores with the best qualified people. The Respondent admitted at the hearing that supervisory personnel were told to call any in- dividuals, from the predecessor's work force whom they wished to hire and to encourage them to apply. Bob Simmons, manager of store number 22, testified that he wanted to hire most of the prede- cessor's employees who had been employed at that store and he viewed the application process as an opportunity to get rid of nonproductive employees. Simmons admitted calling former grocery depart- ment employees of the predecessor whom he 296 NLRB No. 128 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wished to hire. Both he and Meat Department Su- pervisor Shroat stated they did not call any former meat department employees to encourage them to apply with the Respondent. On February 2 the Respondent's stores were closed so that business and employment applica- tions could be submitted. According to the Re- spondent, that evening supervisory personnel met and reviewed applications and selected the initial work force. As the judge found, however, the Re- spondent did not require all the predecessor's em- ployees to submit written applications before se- lecting them for employment and instructing them to report to work on February 3. Store Manager Simmons testified that before and after the Febru- ary 2 managers' meeting he personally contacted about 10 individuals employed by the predecessor at his store who had not applied and informed them that they had been selected for the store's work force of 50 employees. Meat Department Su- pervisor Shroat testified that each person offered employment in the Respondent's meat department had filed an application for employment. However, these applications are not in evidence and the record does not establish with certainty on what date or dates they were filed. When the hiring process was completed, the Re- spondent's meat department was virtually identical to that of the predecessor-of the 77 employees, each had been employed by the predecessor when it ceased operation. However, the initial work force included none of the former economic strik- ers, all who were experienced meat department em- ployees. According to testimony credited by the judge, 13 of the 24 economic strikers applied at the Re- spondent's stores with an identified supervisor on and after February 2; 6 on February 2; 3 on Febru- ary 3 ; and 4 some time in late February . Another eight former economic strikers testified to applying at the office or courtesy window in one of the Re- spondent's stores6 on or after February 2; these in- dividuals failed to establish that they had spoken to a supervisor or agent of the Respondent.' Most of the former economic strikers who did apply to an agent of the Respondent, and all but one of those who applied on February 2, identified themselves as former striking employees in order to establish their meat department experience. Only one of the 8 The Respondent acknowledged that this is the customary procedure for applying for a job in the Respondent 's stores. T The judge discredited the testimony of two additional former eco- nomic strikers, one because she claimed to have attempted to apply at a closed store, and a second because he gave an inaccurate physical de- scription of a store manager. The final former economic striker never sought employment with the Respondent, she testified that since the predecessor had not accepted the strikers ' unconditional offer to return to work, she thought it would be futile to-apply with the Respondent. strikers found by the judge to have applied on Feb- ruary 2 was given an application. All but three of the strikers who sought applications were flatly denied an opportunity to apply and were told either that the Respondent was not giving out ap- plications for the meat department or that all meat department positions had been filled.8 Former strikers Frankie L. Danmon and Joe O. Huerta were permitted to apply in February but were never hired by the Respondent. Alice Arraga, who was denied an application in February, was given an application in August when she again sought employment with the Respondent and was told by Shroat, "We'll call you when there is an opening." None of these individuals was ever of- fered employment by the Respondent , despite over 60 admitted meat department vacancies created after February 2, occasioned by departures and by the expansion of the meat department work force to 115 by September 1984. The judge found pretex- tual the Respondent's undocumented alleged per- formance-related justifications for failing to hire Danmon and Huerta. Concerning Arraga, Shroat testified that the Respondent had a practice of pro- moting part-time store staff to fill full-time meat de- partment openings and that no full-time position was available when Arraga applied.9 However, Shroat, who is responsible for hiring and firing in the meat department, could not recall how specific position openings were filled and the Respondent failed to introduce any evidence documenting its alleged practice in this regard. The Supreme Court held in Howard Johnson v. Detroit Joint Board, 417 U.S. 249, 262 fn. 8 (1974) (citation omitted): Of course, it is an unfair labor practice for an employer to discriminate in hiring or retention of employees on the basis of union member- ship or activity under Sec. 8(a)(3) of the Na- tional Labor Relations Act. . . . Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recog- nize the union. For this same reason, a new opener cannot lawfully refuse to hire employees of his prede- cessor because they engaged in a lawful eco- nomic strike. In this case, the facts establish that the Respondent's public application proc- 8 Some of the former economic strikers, including some of those cred- ited with having attempted to apply with an identified supervisor on or after February 2, testified that other individuals appeared to be applying for jobs at the time they were being denied applications 8 Shroat testified that applications were kept on file, but that he was unaware of any policy as to how long they were kept HANDY ANDY, INC. ess was a charade designed, at least in part, to discriminatorily deny the former economic strikers employment. As noted above, the Respondent contends that it hired its initial meat department work force from applications submitted February 2 and that no former economic strikers were included in that work force because none applied on that date. The only notice to the former strikers that the Respond- ent was hiring were newspaper and television re- ports of the Respondent's purchase of the debtor- in-possession. In marked contrast, as the Respond- ent admits, nonstriking former employees in the grocery department were called by supervisory personnel, at the Respondent's direction, and en- couraged to submit applications. Further, even though the application process was allegedly closed on February 2, grocery department supervi- sory personnel called a significant number of non- strikers whom they wished to hire but who had not yet applied, and instructed them to report to work on February 3 and to submit an application at that time. Thus, it is clear that the Respondent did not require all nonstrikers to submit written applica- tions before offering them employment. In addition to the above evidence of disparate treatment, there is credited evidence that 13 former economic strikers attempted to apply for work on or about February 2 and that all but 2 were denied application forms by supervisors of the Respondent who knew of their striker status. Further, even on February 2, the very date on which the Respond- ent closed its stores for the purpose of accepting applications, those former economic strikers who attempted to apply and were denied application forms were told that the Respondent was not giving out the forms or had filled all meat depart- ment positions. Obviously the denials of application forms and other rebuffs to former strikers during the initial hiring process represent disparate treat- ment in contrast with the supervisors' acceptance of applications from nonstrikers. The treatment of the former strikers is also inconsistent with the Re- spondent's claims that its supervisors were instruct- ed to take applications from all who sought to apply, that the meat department complement was not hired until the evening of February 2, and that the hiring was based entirely on applications sub- mitted by all comers at its stores earlier that day. Additional evidence of discrimination appears in the cases of the two former economic strikers who were permitted to apply in February, but were denied employment for what the judge found to be pretextual reasons and the case of the single former economic striker who was permitted to apply in August but was not hired because-according to 1003 the Respondent's unsubstantiated claim-the Re- spondent had filled meat department vacancies from its part-time employee complement. The Respondent instructed its supervisors to hire the best qualified people and admitted that the hiring process provided an opportunity to get rid of its unproductive employees. The Respondent has presented no credited evidence that the former economic strikers were unproductive or in any other way unqualified to be part of the original meat department work force or to fill meat depart- ment vacancies that subsequently arose. To the contrary, the record establishes that each of the former economic strikers had substantial meat de- partment experience with the predecessor and that the Respondent knew it. Despite these qualifica- tions and the established attempts of more than half of the former economic strikers to apply with a su- pervisor of the Respondent, not a single former economic striker was offered employment either in the initial employee complement or to fill vacan- cies that later arose. On these facts, then, we find that the record establishes that the Respondent en- gaged in a hiring scheme designed systematically to exclude the former economic strikers from its work force in violation of Section 8(a)(3) and (1) of the Act. Further, as the Respondent's almost unvary- ing refusal to permit the former strikers who sought employment on February 2 even to fill out applications appears to have applied to all former economic strikers, bar none, we find that the claimed attempts by other economic strikers to apply, whether credited or not, would have been futile.10 See State Distributing Co., 282 NLRB 1048 (1987) (respondent's remarks to employees and the union engendered a "climate of futility" excusing failure of some employees to submit applications); Macomb Block & Supply, 223 NLRB 1285, 1286 (1976), enf. denied 570 F.2d 1304 (6th Cir. 1978) (where employer makes known its refusal to hire based on prior union affiliation; failure to undertake useless act of formal application no defense). Ac- cordingly, we find that all the former economic strikers are entitled to immediate employment in the Respondent's meat department in the positions they would have been offered absent the Respond- ent's discrimination, and to backpay for any losses they may have suffered as a result of the Respond- ent's discrimination against them on and after Feb- ruary 2, 1983. 10 Since attempting to apply for a meat market position would have been futile, we find former economic striker Shirley A. Walker a discri- minatee even though she admitted never attempting to apply for a posi- tion with the Respondent 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED REMEDY Having found that the Respondent on and after February 2, 1983, discriminatorily refused to employ the individuals named below in violation of Section 8(a)(3) and (1) of the Act, we shall order the Respondent to offer each of them immediate and full employment to the positions they would have been offered absent the Respondent's discrim- ination or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, dis- charging, if necessary, anyone hired in place of the named discriminatees and to make each of the dis- criminatees whole for any loss of earnings he or she may have suffered as a result of the discrimina- tion practiced by the Respondent. Backpay and in- terest commencing February 2, 1983, shall be com- puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded. 1 1 Stella Alvarado Beatrice Arredondo Alice Arraga Fred V. Barboza Pauline H. Cabido Alice C. Cabrera Alfred Canedo Jr. Rebecca E. Castillo Frankie L. Danmon Mary Alice Guzman Rose Mary Burk Carlos Dimas Sr. Joe O. Huerta Allen Love Joe R. Lopez Jr. Rosa E. Moralez Henry B. Perez Rose Polk Irene M. Ponce Pete Ruiz Shirley A. Walker Roger Wendel Onelia M. Heredia Edward Martinez ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Southwest Merchandising Corporation d/b/a Handy Andy, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a) of the judge's Order. "(a) Offer immediate and full reinstatement to the employees listed in the amended remedy sec- tion of this decision to the positions they would have been offered absent the Respondent's discrim- ination or, if those positions no longer exist, to sub- I t In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate " for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). stantially equivalent positions, without prejudice to their seniority or other rights and privileges, dis- charging, if necessary, anyone hired in place of one of the named discriminatees, and make each named discriminatee whole for any loss he or she may have suffered as a result of our discrimination in the manner set forth in the remedy section of this decision." 2. Substitute the following for paragraph 2(c) of the judge's Order. "(c) Post at its facility in San Antonio, Texas, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Re- gional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to employ or otherwise dis- criminate against any employee because that em- ployee engaged in the protected activity of engag- ing in a strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer immediate and full reinstatement to the below-named individuals to the positions they would have been offered absent our discrimi- HANDY ANDY, INC. 1005 nation or, if those positions no longer exist , to sub- stantially equivalent positions , without prejudice to their seniority, or other rights and privileges, dis- charging, if necessary, anyone hired in place of the following discriminatees: Stella Alvarado Beatrice Arredondo Alice Arraga Fred V. Barboza Pauline H. Cabido Alice C. Cabrera Alfred Canedo Jr. Rebecca E. Castillo Frankie L. Danmon Mary Alice Guzman Rose Mary Burk Carlos Dimas Sr. Joe O. Huerta Allen Love Joe R. Lopez Jr. Rosa E. Moralez Henry B. Perez Rose Polk Irene M. Ponce Pete Ruiz Shirley A. Walker Roger Wendel Onelia M. Heredia Edward Martinez WE WILL make the above-named discriminatees whole for any loss of earnings he or she may have suffered by reason of our discrimination, with inter- est. SOUTHWEST MERCHANDISING COR- PORATION D/B/A HANDY ANDY, INC. Robert G. Levy, II, Esq., for the General Counsel. Frank S. Manitzas, J. Joe Harris, and Leslie Joan Selig, Esgs. (Manitzas, Harris, & Padgett), of San Antonio, Texas, for the Respondent. Frank Herrera, Jr., Esq., of San Antonio, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON , Administrative Law Judge. This matter was heard in San Antonio, Texas, on Sep- tember 19 and 20, and October 10, 1984. The issues stem from an amended complaint in Case 23-CA-9311 dated June 22, 1984. That charge was filed by the Union" on May 17, 1983. Respondent2 is alleged to be a successor employer that failed to fulfill an alleged obligation to re- employ some 24 employees that engaged in an economic strike against the predecessor employer. Allegations against the alleged predecessor employer, Handy Andy, Inc., a/k/a Handy Andy, Inc., debtor-in-possession,3 i Respondent admitted that the Charging Party, United Food and Commercial Workers International Union , AFL-CIO, Local Union No 171, is a labor organization within the meaning of Sec. 2(5) of the Act 2 Respondent admitted allegations that it is a Texas corporation with an office and place of business in San Antonio , Texas, where it is en- gaged in the operation of retail grocery stores, and is an employer within the meaning of Sec 2(2), (6), and (7) of the Act a The alleged predecessor employer filed for debt protection under Chapter 1I of the bankruptcy laws on September 8, 1981 Throughout material times until the business was sold to Respondent on February 1, 1983, the alleged predecessor was a debtor -in-possession in bankruptcy proceedings . From time to time here , the alleged predecessor employer is referred to as the debtor-in-possession. originally consolidated in these proceedings in Case 23- CA-9183, were severed at the beginning of the hearing herein pursuant to a motion by General Counsel. Subse- quently, settlement was consummated in Case 23-CA- 9183, and that case was dismissed by my Order dated January 17, 1985. A. Admitted and Uncontested Facts The following facts are admitted or uncontested. From April 24, 1982, until November 24, 1982, certain employ- ees of Handy Andy, Inc., debtor-in-possession in bank- ruptcy proceedings, engaged in an economic strike. On November 24, 1982 , the Union4 advised the debtor-in- possession by telegram that it was ending the strike and offering to return all the former strikers to work. Additionally, on November 24, 1982, the debtor-in- possession through its vice president, director of person- nel, George J. Tamez, acknowledged by letter to the Union that it had that date received individual letters "from the below-named strikers," making unconditional offers to return to work: Stella Alvarado Beatrice Arredondo Alice Arriaga Fred V. Barboza Pauline H. Cabido Alice C. Cabrera Alfred Canedo, Jr. Rebecca E. Castillo Frankie L. Danmon Mary Alice Guzman Joe O. Huerta Allen Love Joe R. Lopez, Jr. Rosa E. Moralez Henry B. Perez Rose Polk Irene M. Ponce Pete Ruiz Shirley A. Walker Roger Wendel On December 7, 1982, George Tamez again wrote the Union acknowledging that the debtor-in-possession, on that date, received individual letters "from the below- named strikers," making unconditional offers to return to work: Rose Mary Burk Onelia M. Heredia Carlos Dimas, Sr. Edward Martinez Respondent admits that the debtor -in-possession failed to permit any of the above-named employees to return to work. The above-mentioned November 24 and Decem- ber 7, 1982 letters from Tamez to the Union state , "[t]he positions formerly held by the above-mentioned strikers have either been eliminated or filled by permanent re- placements. Accordingly, each unconditional offer to return to work is denied." On or about February 1, 1983, Respondent purchased certain assets of the debtor-in-pos- session . Thereafter, on February 3, 1983, Respondent began operating several San Antonio grocery stores pre- viously operated by the debtor -in-possession. The above-mentioned strikers had, before they struck, worked in the meat department of those San Antonio grocery stores. None have been permitted to return to work since Respondent commenced its operations. 4 From before 1982 and continuing, the Union was the exclusive bar- gaining representative of the meat department employees (i.e , the unit in- volved here) 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Theory of the General Counsel Counsel for General Counsel argues that Respondent had obligations commencing when it started its oper- ations on February 3, 1983, to employ in due course, the former strikers. General Counsel further argues that Re- spondent is obligated to employ the strikers in a nondis- criminatory manner . While the instant case involves an alleged successor to the employer that was struck, the General Counsel argues that Respondent's legal obliga- tion to the former strikers is the same as that of the pred- ecessor. C. Facts At the outset, several issues distinguish this case from prior cases involved with reinstatement of economic strikers. The predecessor employer was a debtor -in-pos- session . Before the sale of the operations herein, its con- tract with the Union was, during March 1982, nullified by the bankruptcy court. Therefore, when the debtor-in- possession's assets were sold to Respondent , there was not an existing collective-bargaining agreement. By letter dated December 9, 1982, to Respondent's reg- istered agent for service of process, Luis A. Stoler, the Union notified Respondent , inter alia, that it was de- manding that Respondent employ bargaining unit em- ployees if Respondent purchased the business of the debtor-in-possession. When Respondent commenced operations, several of its supervisory and managerial people had occupied simi- lar positions for the debtor-in-possession. Among that group was the former vice president , director of person- nel, George Tamez. Tamez is, and has been since Re- spondent began its operations in February 1983, an offi- cer of Respondent and its director of personnel. Tamez admitted that he was aware that the striking meat department employees had since November and December 1982, sought to return to work. George Tamez testified that Respondent in February 1983 purchased and assumed operations of over 20 stores formerly owned and operated by the debtor-in-posses- sion . In so doing, Respondent retained the majority of the supervisory personnel of the debtor-in-possession. The grocery stores' operations closed on February 1 and 2, but on February 3 the stores opened and, according to unrebutted testimony of George Tamez, there was no way for the general public to tell that the stores had changed owners . The business was the same and the stores' name remained the same . All the meat department employees on February 3, were former employees of the debtor-in-possession5 and a majority of the debtor-in-pos- session employees were hired by Respondent. During the 2 days the stores were closed, Respondent hired its supervisors and its original work force. In view of the above uncontested evidence, I find that Respondent is it successor employer . NLRB v. Burns Se- curity Services, 406 U.S. 272 (1972); Howard Johnson Y. Detroit Local Joint Board, 417 U.S. 249 (1974). In the above-cited landmark cases, the question of con- tinuity in the work force was handled differently. How- ever, under both of those decisions the instant facts show there was a continuity in the work force. Under the standard used in NLRB Y. Burns Security Services, supra, the question involved is whether a majority of the new employer's employees were employed by the predecessor in the recognized bargaining unit. Here, record docu- ments show that from a unit work force of 77,Respond- ent employed no fewer than 71 of those from the unit employees of the debtor-in-possession. 6 Therefore, the Burns test must be answered in the affirmative. A majori- ty of Respondent's original work force was hired from the predecessor's unit work force. In Howard Johnson v. Detroit Joint Board, supra, the question appeared to be whether "the successor employ- er hires a majority of the predecessor's employees." 417 U.S. 249, 281 . Here, the debtor-in-possession's last work week included something less than 97 unit employees.? Of those 97, Respondent hired at least 71. Therefore, the Howard Johnson test must be answered in the affirmative. Respondent hired a majority of the predecessor's unit employees. Other indicia considered in determining whether a successorship exists includes determining whether there has been a continuity in the employing industry, whether there is continuity in the appropriateness of the bargain- ing unit, and the impact of a hiatus in operations. In the instant matter, there is a continuity in the employing in- dustry. Respondent continued the operation as before when it opened its stores on February 3, 1983. The bar- gaining unit remained the same with the same classifica- tions of meat department employees as existed under the debtor-in-possession. The hiatus in operations was 1 of 2 days and it did not appear to have an impact on oper- ations. As shown herein, 1 of the 2 days was consumed with employing the original work force. In view of the above findings, it is apparent, and I find, that Respondent is a successor employer to the debtor-in-possession. Additionally, in view of the admissions of its officer and director of personnel, George Tamez, I find that Re- spondent had notice from its purchase of the predeces- sor's operations on February 1, 1983, of the uncondition- al offers to return to work from the above-mentioned former strikers. D. Findings According to testimony from George Tamez, all em- ployees of the predecessor were terminated on January 31, 1983. Thereafter, Respondent hired a full work force before operations began on February 3, 1983 . None of the above-mentioned strikers were hired then or subse- 9 As noted above, Supervisor Schroat testified that all 77 of the origi- 5 Although record documents show that over 90 percent of Respond - nal employees were previously employed by the predecessor employer ents' original meat department employees were employed by the debtor- 7 Some employees appeared as duplication by working at more than in-possession during the pay period ending January 31, 1983, Meat Super- one store during the week ending January 31, 1983 The count of 97 in- visor Schroat testified that 100 percent of the original meat department cludes those employees on each occasion they appear Therefore, the true employees were former employees of the debtor-tn-possession count is something less than 97 HANDY ANDY, INC. quently. The record shows that approximately 97 em- ployees were employed by the predecessor on January 31. On February 3, Respondent employed 77. Since then, Respondent's work force has continued to grow. The meat department now includes approximately 115 em- ployees. Counsel for General Counsel called the 24 former strikers as witnesses. Twenty-three of those former strik- ers testified that they personally attempted to apply for work after Respondent purchased the San Antonio stores on February 1. Fred Barboza testified that he went to store 11 in early February 1983 and asked to see the store manager. He was told that the store manager was not in . Barboza told a man he could not identify by name or position that "I was a striker and that I wanted to put in an application." Barboza was told "[t]hey weren't taking anymore" appli- cations. Irene Ponce testified that she went to store 26 on Feb- ruary 2, 1983, and talked to Laubach,8 whom she heard was the manager. Ponce testified that-she asked Laubach for an application for the market explaining that she was a striker applying for a job. Laubach told her that they were not giving applications for the market. Alice Arriaga testified that after she heard the grocery stores were changing owners she called store 15 and asked to speak to the manager . Arriaga testified that she thought the man's name was Hernandez but she did not know because he did not identify himself. Arriaga testi- fied that she said she was an exstriker and was told, "Well, for right now, we've already hired everybody in the market, but just go ahead and come in." Arriaga tes- tified that she went to store 15 and talked with Hernan- dez. When Arriaga asked for an application, Hernandez replied, "[w]e've already hired everybody for the market department, and we are not taking applications right now." In August 1983, Arriaga went to store 27 where she was given an application form by Albert Keller. Arriaga took the application home and called Supervisor Carl Schroat. Schroat told Arriaga, "We 'll call you whenever there is an opening."9 Arriaga subsequently turned her completed application back in to store 27. Edward Martinez testified that he went to store 26 in early February 1983 and asked the person he assumed to be the store manager for an application. Martinez testi- fied that the store manager was pointed out to him by some of the people waiting in line for applications, and he was told that the manager's name was Laubach. Mar- tinez testified that Laubach told him that the meatcut- ter's job position was filled. Martinez had received an ap- plication form but he did not complete the application. Alfred Canedo testified that he went to store 15 a couple of days after Respondent was taking applications, around February 4 or 5, 1983. Canedo recalled that he 9 This admitted supervisor's name was spelled "Lubbock" in the tran- script, but "Laubach" in the complaint 9 As shown here, neither Arnaga nor any of the former strikers have been called at any time , even though Respondent has otherwise filled job vacancies in the bargaining unit 1007 spoke to Grocery Manager Rick Vara. t ° Canedo testi- fied that he asked for an application, that he wanted his job back. Vara "kind of grinned , and he said that there was no way that the new company would hire me be- cause I was a union member, an ex-striker, and walked away from me." Canedo was not given an application. Onelia HeredialI testified that she went to store 15 to complete an application on February 3, 1983. • Heredia testified that she went to the office and asked for the store manager. The manager was paged. Heredia recalls that his name was Fernandez or Hernandez , something like that . Heredia asked for an application for the meat market and was told that the market is already full. Her- edia then told the man that she had experience, that she was one of the strikers. He then replied, "Well, I'm sorry. We are already full." Beatrice Arredondo said she went to store 11 on Feb- ruary 2, 1983. While Arredondo was waiting in line to place her application, the assistant manager came out and told everyone that they were out of applications. Arre- dondo identified the assistant manager as Tony Garcia. Arredondo testified that Garcia said to her, "Oh, you're here, Beatrice, in line." Arredondo replied, "Yeah, I want an application." Garcia replied , "We're out of ap- plications." Arredondo testified that she left after being told by Garcia there were no applications. Frankie Danmon testified that she gave a completed application to Assistant Manager Julius Hernandez at store 3 after she learned that another company was taking over the Handy Andy stores . Danmon testified that she thought this occurred in the last of January. Danmon testified that as she offered her application to Assistant Manager Hernandez, she said, "I'm a Handy Andy ex-employee., I was a striker." Danmon testified that Hernandez looked at her application and said, "Oh, you've been with the company 17 years. I'll keep your application on file." Mary Alice Guzman testified that she went to store 9 to apply for work about February 2, 1983. Guzman testi- fied that she went to the window and asked the girl there for an application but was told they were not hiring anyone. Guzman testified that she did not recog- nize anyone from the standpoint of store manager or as- sistant store manager. Guzman left without filing an ap- plication. Allen Love testified that he went to store 17 on Feb- ruary 2, 1983, to apply for a job. Love testified that a "stock boy or employee" pointed out the manager, and Love asked "him if there was any applications for a jour- neyman meatcutter. I was asked if I had any experience. I told him, yes, I had worked for Handy Andy 15 years and then I told him that I was a union person that had been out on strike." Love was told, "There were no openings available at that time." Stella Alvarado testified that sometime in February 1983, she went to store 3 to apply for a job. Alvarado was unable to identify the person she spoke to, but she testified that she was told, "[t]hey weren't hiring." io Grocery managers were neither alleged nor proven to be supervi- sors. " Onelia Heredia testified that she is now Onelia Heredia Gonzales. 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rebecca Castillo testified that she went to store 41 on February 2, 1983, and talked to a person that she identi- fied by his badge as the assistant manager . Castillo said that she was a striker from Handy Andy and wanted an application for the meat market. The man identified as the assistant manager told Castillo that he was not taking applications anymore. Pauline Cabido testified that she went to store 23 after the store was already in business in February 1983. Cabido testified that she went to the office cashier and asked if she could have an application to fill out for the market saying that she was one of the Handy Andy strik- ers. She was told by the cashier that they were not hand- ing out any more applications. Alice Cabrera testified that she talked to a man wear- ing a red coat in store 16 sometime in February 1983. Cabrera testified that she was told the store was not taking any applications after she identified herself as a striker and asked for an application . Even though Ca- brera was confronted with documentary evidence that store 16 was closed at the time she allegedly went in and asked for an application, she continued to insist that she had in fact gone to store 16. Carlos Dimas' 2 testified that he went to store 43 in early February 1983 and talked to a woman whom he identified as the woman that takes over in the afternoon. Dimas asked for an application for the meatcutter and was told that the store was not accepting any applica- tions. Jose Lopez testified that he called store 4 about the time they were closed for 2 days. Lopez was told that the manager and assistant manager were out of the store. Lopez identified himself as a striker and asked if they had any applications for employment. He was told there were no applications. Rosa Moralez testified that she went to store 41 on February 2, 1983, and talked to a man that she identified as a "latin american." Moralez asked for an application and identified herself as a striker. She was told that the store did not need anyone. Rose Mary Burk testified that she went to store 9 on February 2 or 3, 1983, and asked for the manager. The manager was paged. Burk told the man identified as the manager that she was a striker and she asked if she could be hired back. She was told that "[h]e already had hired all he needed." Henry Perez testified that he went to store 35 in early February 1983 and spoke to a man in the office. Perez asked for an application for a meatcutter's job, and he was told there were no applications available. Joe Huerta testified that he completed and turned in an application for employment at store 41 in February 1983. Huerta gave the application to a man who identi- fied himself as the store manager. Rose Polk testified that she went to store 3 on Febru- ary 2, 1983, and talked to a man that was pointed out to her as the store manager. Polk identified herself as a striker and asked for an application. She was told that they were not taking any more applications. 12 Carlos Dimas was incorrectly identified as Carlos Bimas in the com- plaint. Pete Ruiz testified that he went to store 9 on February 2, 1983, and talked to a man that appeared to be in charge. Ruiz recalled that this man was handing out ap- plications while he was waiting. However, when Ruiz asked for an application, he was told that "they were not giving out no more applications." Shirley Walker, one of the strikers, testified that she did not personally seek employment from Respondent after February 1, 1983. Roger Wendel testified that he went to store 22 during the first or second week in February 1983 and talked to the store manager. Wendel asked if he could have an ap- plication for a meatcutter's job, and he was told, "It really wouldn't be necessary, that there was no positions open at that time." The above testimony illustrates that three strikers sub- mitted job applications to Respondent after February 1, 1983. Some of the remaining strikers asked persons iden- tified as supervisors for applications. I have discredited the testimony of Alice Cabrera in view of her insistence that she sought work at store 16 at a time when store 16 was closed. I have also discredited Roger Wendel's testi- mony that he asked store 22 manager for an application in view of Wendel's inaccurate physical description of the manager. Finally, the Union, by June 13, 1983 letter, made an unconditional offer to Respondent on behalf of all the former strikers.' 3 In view of the full record, I find that unconditional offers were made by and on behalf of all strikers alleged in the complaint herein at a time in November or De- cember 1982 before Respondent commenced operations. Respondent was aware of those unconditional offers. Subsequently, other unconditional offers were, as shown above, made by a few strikers on their own behalf when they applied for work on or after February 2, 1983. On June 13, 1983, the Union made a final unconditional offer on behalf of all the strikers. Additionally, the record demonstrated that positions were available for the strikers on February 2, 1983, when Respondent hired its original meat department work force. Subsequent to February 2, 1983, Respondent has had some turnovers in the meat department work force and has increased the work force from 77 to 115 employ- ees. Therefore, it is clear that positions have existed in which the strikers could have been employed at various times, both on and after February 2, 1983. In view of the above, I find that the strikers and the Union extended valid unconditional offers, which have continued in effect throughout Respondent's operations. 12 Respondent, in its brief, points out that a charge alleging the prede- cessor employer, debtor-in-possession, unlawfully withdrew recognition from the Union was dismissed That matter is not before me and is not included in the record here Nevertheless, the Union's status has no bear- ing on the instant controversy in view of established jurisprudence that an unconditional offer to return strikers to work is valid even if made by a "minority" union (see Marlene Industries Corp Y NLRB, 712 F 2d 1011 (6th Cir 1983) HANDY ANDY, INC. E. Laidlaw Rights 114 The so-called Laidlaw principle is set out in the Su- preme Court case of Fleetwood Trailer, supra, to the effect that replaced economic strikers remain employees under Section 2(3) of the National Labor Relations Act, until they retain regular and substantial employment. Therefore, upon making an unconditional offer to return to work, an economic striker is entitled to return to his former position unless that position has been discontin- ued or filled with a permanent replacement. Under those contingencies, a striker is entitled to eventual reemploy- ment when a suitable position opens. Of major concern in this case is what, if any, effect does a change in ownership have on the reemployment rights of economic strikers. One National Labor Rela- tions Board case dealt with that issue when the subse- quent employer was found to be the alter ego of the predecessor. In Denzil S. Alkire, 259 NLRB 1323 (1982), where the subsequent employer was found to be a dis- guised continuation of the former employer, the Board accorded economic strikers their full Laidlaw rights. In the instant case, Respondent was not alleged to be an alter ego of the predecessor employer. Moreover, the record demonstrated that although Respondent is a suc- cessor employer it is a separate entity from the predeces- sor under different ownership. Respondent cited the case of Pepsi-Cola Bottling Co. of Topeka, 227 NLRB 1959 fn. 2, 1966 (1977), wherein the Board stated: Although we herein affirm the Administrative Law Judge's findings that the Respondent violated Sec. 8(a)(3) and (1) by discriminatorily refusing to rehire former economic strikers, we disagree with his statement that the Respondent's intent in this case is "essentially irrelevant" in view of the law as defined in NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967). Since there is no question that on August 2, 1975, Respondent legally terminated all its employees, including former economic strikers, pursuant to the contract for sale of 100 percent of its stock, the Court's language in Fleetwood with re- spect to the reinstatement rights of economic strik- ers who have been permanently replaced is inappo- site. It was therefore incumbent upon the General Counsel to prove that Respondent was motivated by discriminatory intent in refusing, on August 4, 1975, and thereafter, to rehire former employees who had engaged in protected concerted strike ac- tivity. We agree with the Administrative Law Judge that the evidence of discriminatory motive is sufficient to support the violation found. In Pepsi Cola, supra, there were no questions regarding the successor employer's actions in pursuit of its own original work force. Some 2 days before the sale of the business to the successor, a meeting was held with the Union to discuss the effects of the sale on unit employ- ees. Thereafter, all unit employees were terminated in '4 Laedlaw Corp. 171 NLRB 1366 (1968); NLRB Y. Fleetwood Trailer Co.. 389 U S 375 (1967) 1009 accord with the conditions of the sale. The successor originally employed "approximately 80 to 85 percent of the former employees and supervisors." In the instant case, although the predecessor ceased operations on January 31, 1983, and terminated all unit employees, the record shows through the testimony of Respondent's witness, Store Manager Bobby Simmons, that some of the predecessor's employees were permitted to return to work on February 3, 1983, without first sub- mitting job applications. The definitive rule on economic strikers is found in NLRB v. Fleetwood Trailer Co. at 376: Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3)) provides that an individual whose work has ceased as a consequence of a labor dispute con- tinues to be an employee if he has not obtained reg- ular and substantially equivalent employment. If, after conclusions of the strike, the employer refuses to reinstate striking employees, the effect is to dis- courage employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157 and 163). Under §§ 8(a)(1) and (3) (29 U.S.C. § 158(1) and (3)) it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to "legitimate and substantial business justifications," he is guilty of an unfair labor practice. NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden of proving justi- fications is on the employer. Ibid. It is the primary responsibility of the Board and not of the courts "to strike the proper balance between the asserted busi- ness justifications and the invasion of employee rights in light of the Act and its policy." Id., at 33- 34. See also NLRB v. Erie Resistor, 373 U.S. 221, 228-229, 235-236, (1963). Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), is not an invitation to disregard this rule. In [two types of] situations, "legitimate and sub- stantial business justifications" for refusing to rein- state [striking employees] have been recognized. [The first] is when the jobs ]which the strikers claim[ are occupied by workers hired as permanent replacements during the strike in order to continue operations. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (938); NLRB v. Plastilite Corp., supra; Brown & Root, 132 NLRB 486 (1961). In the present case, respondent hired 21 replace- ments during the strike, compared with about 55 strikers; but it is clear that the jobs of the six strik- ers were available after the strike. Indeed, they were filled by new employees. A second basis for justification is suggested by the Board-when the striker's job has been eliminat- ed for substantial and bona fide reasons other than considerations relating to labor relations : for exam- ple, "the need to adapt to changes in business condi- tions or to improve efficiency." 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Subsequent decisions of the courts have shown a tend- ency to apply reasoning behind Pepsi Cola and Fleetwood. For example, in Marlene Industries Corp. v. NLRB, supra, the circuit court found that former strikers retain their status as employees after a successor assumes operations but that it is necessary for the General Counsel to prove those former strikers were discriminatorily denied rein- statement by being deprived of their Laidlaw rights. Therefore, in view of the law expressed in Marlene In- dustries Corp. v. NLRB, I shall examine whether the former economic strikers were discriminatorily denied Laidlaw employment rights by Respondent on or after February 2, 1983, because of their strike activity. According to Meat Supervisor Carl Schroat , Respond- ent's entire meat department work force was hired from former employees of the predecessor. A successor employer is free to choose its own work force. However, a successor, as any employer, is re- quired to hire without regard to an employee 's protected activities.' 5 F. The Original Work Force On February 3, 1983, Respondent began operations with some 77 meat department employees. Respondent contends that only written applications were considered in selecting the original work force on the evening of February 2, 1983. However, that position is not support- ed by the record. All the applications were received by store managers or by the assistant store managers on February 2, 1983. Only one of those managers testified- Bobby Simmons. Simmons admitted that some employees included in the February 3, 1983 work force did not submit written applications until they reported for work. In view of Simmons' testimony, the record shows, and I find, that some of the employees were hired on February 2, 1983, without first submitting written applications. I cannot find that Respondent was justified in refusing to consider former strikers for employment on February 2, 1983, solely because they failed to submit written appli- cations in view of the above record testimony . 16 I must keep in mind that Respondent's high level management were well aware on February 2, 1983, that all 24 former strikers had personally and unconditionally offered to return to work in November and December 1982. Both Director of Personnel George Tamez and Meat Supervi- sor Carl Schroat admitted their awareness of the former strikers' November and December offers. Nevertheless, not a single former striker was considered for employ- ment on February 2, 1983. Since Respondent's practice was shown to occasionally include consideration and hiring of applicants with no written applications, it is ap- parent, and I find, that the former economic strikers Is Foodway of El Paso, 201 NLRB 933 (1973), NLRB v. Burns Security Services, supra at fn 5. General Processing Corp, 267 NLRB 1281 (1983), Sun Coast Foods, 273 NLRB 1642 ( 1985). 18 Meat Supervisor Schroat testified that he selected 100 percent of his original meat department employees from the former work force of the predecessor. Schroat also testified that he selected all his original employ- ees from applicants that submitted written applications on February 2, 1983 Schroat testified that he considered only written applications before him and that he did not have written applications from any former strik- ers on February 2, 1983 should have been considered for employment on and after February 2, 1983, without regard to whether they had previously submitted personal written applications.17 Moreover, several of those former strikers did person- ally apply for work as shown above on February 2, 1983. All were rejected and most were denied the oppor- tunity to submit an application. In that regard, I am well aware that some of the testi- mony fails to show that a particular former striker ap- plied to a supervisor of Respondent on February 2. Moreover, other testimony by some of the former strik- ers cannot be credited. However, again as shown above, other former strikers applied for work with supervisors of Respondent on and after February 2, 1983. Irene Ponce and Edward Martinez were denied appli- cations by the admitted manager of store 11, Laubach. Beatrice Arredondo was told by Assistant Manager Garcia of store 11 , that "they were out of applications." Frankie Danmon submitted a written application . Rebec- ca Castillo was told by a man with an assistant manager's badge that he was not taking applications. After the man- ager of store 9 was paged, he told Rose Mary Burk that "he already had hired all he needed." Henry Perez was told by a "man in the office," there were "no applica- tions available." Rose Polk spoke to the man pointed out as the manager of store 3 and was told they were not taking any more applications. Pete Ruiz was told by the man in charge of applications at store 9 that they were .,not giving out no more applications." Joe Huerta sub- mitted a written application to the manager at store 41. Alice Arriaga talked to the man identified as the store manager, store 15, but was told they were not taking ap- plications. Onelia Heredia talked to the manager, store 15, after he was paged. 18 I credit the above testimony which illustrates that many of the former strikers took substantial steps to apply for work with Respondent. All were rejected without being considered for employment. 17 Despite the above finding, the cited cases of Fleetwood and Marlene Industries would appear to require due consideration to employing the former strikers on and after February 2, regardless of Respondent's prac- tice (i e , whether or not it considered only written applications) 18 Testimony which I credit, proves the following as to their dates of application for employment- (a) Irene Ponce , Beatrice Arredondo , Rebecca Castillo, Rose Polk, and Pete Ruiz applied on February 2, 1983 (b) Frankie Danmon and Joe Huerta submitted written applica- tions which were not included in the record herein . I presume those written applications will reflect the date of application . If not, I credit Danmon's testimony that she went in immediately upon hear- ing that another company was taking over Handy Andy. Since Danmon received an application, I shall apply the earliest date those application forms were available-February 2, 1983-as the date of her application absent availability of her original application showing a different date. In the absence of a dated original application, I credit Joe Huerta's testimony that he applied in February 1983 I shall conclude his application was the last work day in February since he was unable to credibly recall a different date (c) Alice Arriaga, Edward Martinez, and Henry Perez were not specific as dates Their testimony reveals that they applied shortly after the February 3 opening Due to their lack of specificity, I con- clude they applied on the last work day in February 1983 Alice Ar- riaga subsequently submitted a written application in August 1983 Rose Mary Burk gave two possible dates , February 2 and 3, 1983. 1 conclude she applied on February 3, 1983 Onelia Heredia applied at store 15 on February 3, 1983 HANDY ANDY, INC. Subsequent to February 2, 1983, Allen Love requested a meat department application for employment.19 On June 14, 1983, the Union sought the reemployment of all strikers by submitting an unconditional offer directly to Respondent. Despite the above-mentioned efforts by, and on behalf of, the strikers, only three former strikers were ever suc- cessful in submitting written applications. Meat Supervi- sor Schroat testified that he was unsure of whether Dan- mon's and Huerta's applications remain on file. Respondent originally hired 77 meat department em- ployees. It now has 115 in the meat department. Some that have been hired have since left-at least 24 accord- ing to George Tamez-and all those have been replaced. Nevertheless, not one former striker has been employed at any time since Respondent initiated its operations. Meat Supervisor Carl Schroat testified that strikers Danmon and Huerta, who submitted written applica- tions, were rejected because "I guess it was probably be- cause of the previous experience I had with the produc- tion." However, no documentation was offered to sup- port that testimony. Schroat was unable to recall the spe- cifics of the alleged poor production. He did not recall the years during which the alleged problems existed. De- spite those alleged problems, both Danmon and Huerta were long-term employees under Schroat's supervision. Danmon began work for the predecessor in July 1965. Joe Huerta began work in 1968. In view of the entire record, I do not credit Schroat's alleged basis for deny- ing employment to Danmon and Huerta. His testimony was too vague and failed to include any specific grounds. Schroat testified that he did not recall the manner in which meat department vacancies were filled after Feb- ruary 2, 1983, but in "most cases, I was promoting ap- prentices and part-time people into full time situations." In view of the entire record, I find that testimony il- lustrates a pretextuous basis for rejecting strikers.20 As shown above, the strikers and the Union have made sev- eral unconditional offers to return to work. None of those offers limited availability to full-time work. Never- theless, and despite Schroat's alleged practice of promot- ing part-time employees, no former striker was ever of- fered a part-time position.21 It is apparent that Respondent discriminated against the former strikers by consistently refusing to consider each of them for jobs that appeared on and after Febru- ary 2, 1983. According to Carl Schroat, he considered only former strikers that had personally submitted writ- 19 Love testified that he applied at store 17 on February 2, 1983 How- ever, his testimony revealed that when he applied the store was open for business Since the stores did not open for business until February 3, 1 find that Love did not apply before February 3, 1983 20 The above finding appears unnecessary to establish a violation. It is well established that an employer has an obligation to offer former strik- ers jobs as they become vacant unless the employer proves it had "legiti- mate and substantial business justification" (NLRB v Fleetwood Trailer Ca, supra). The record contains nothing which would support the al- leged practice of promoting apprentices and part -time employees on the grounds of "legitimate and substantial business justification." 21 It should not be inferred that the above-stated reasoning justifies a remedy which would include an offer of part -time work for strikers. The above comments are intended solely to illustrate the finding that Schroat's alleged part-time promotion was offered as a pretextual basis for justifying discriminatory actions against former strikers. 1011 ten applications. That practice violates the mandates of Laidlaw and Fleetwood Trailer (see below). Moreover, as shown above, the record illustrated that even Danmon, Huerta, and Arriaga, who submitted written applications, were treated discriminatorily and not actually considered for employment. The record shows that Respondent first violated the Fleetwood Trailer doctrine by discriminating against strik- ers in its original hiring process . Employees that worked for the predecessor employer were not required to submit written job applications before being considered for employment on February 3, 1983. Store Manager Simmons admitted that some employees were selected and permitted to report to work on February 3, even though they did not complete written applications until after they reported to work on that day. There was no showing by Respondent22 that any former nonstriker employee of the predecessor was rejected for employ- ment because he/she failed to submit a written applica- tion on or before February 3. The above findings establish: (1) Bona fide unconditional offers were made by the Union on behalf of all 24 former striker employees on November 24, 1982, and June 13, 1983. The plain words of the Union's letters can have no other import.23 See NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 529 (3d Cir. 1977). Additionally, as shown above, all the former strikers individually applied for work with George Tamez, director of personnel for both Respondent and the predecessor employer in November and December 1982. Thirteen of the former strikers subsequently ap- plied to supervisors of Respondent on and after February 2, 1983. (2) Respondent, through its admitted agents, was aware of the Union's November 24, 1982 unconditional offer as well as the personal offers of the former strikers in November and December 1982, and of those made to supervisors of Respondent after February 1, 1983. The Union's June 13, 1983 offer was made directly to Re- spondent. (3) Respondent as a successor employer, had an "obli- gation to reinstate the economic strikers when it received an unconditional offer to return to work." Marlene In- dustries Corp. v. NLRB, 712 F.2d 1011, 1022 (6th Cir. 1983). Moreover, Respondent has an obligation to avoid discrimination because of an applicant's former strike ac- tivity without regard to its successorship status. (4) Respondent treated the former strikers discrimina- torily by requiring, from February 2, 1983, that each submit individual written applications as a condition of their being considered for employment. See Marlene In- dustries Corp. v. NLRB, supra at 1018; NLRB v. W. C. McQuaide, Inc., supra. (5) Respondent violated Section 8(a)(1) and (3) of the Act by refusing to nondiscriminatorily consider former 22 In accord with Fleetwood Trailer, the employer has the burden of proving business justifications for not reemploying economic strikers zs Supervisor Schroat admitted that he knew the strikers by name. Therefore, neither Respondent nor its predecessor employer were harmed by the Union's failure to name each striker in its letter 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strikers for employment in its meat department on and after February 2, 1983. (6) The employer failed to establish that the former strikers were denied employment consideration because of legitimate and substantial business reasons. NLRB v. Fleetwood Trailer Co., supra. (7) Respondent is obligated to offer work to economic strikers after unconditional offers to return upon the ter- mination of permanent replacements or when job vacan- cies otherwise occur. Marlene Industries Corp. v. NLRB, supra. (8) In accord with the testimony of Meat Supervisor Schroat, all Respondent's original meat department work force was hired on February 2, 1983. To the extent those hired included employees hired by the predecessor em- ployer as a replacement for strikers during the April 24 to November 24, 1982 strike, but subsequently dis- charged by the predecessor employer on January 31, 1983, or earlier, Respondent discriminated against former striker employees by refusing to place the 24 alleged dis- criminatees in positions filled by each discharged former replacement employee. Thereafter, to the extent all or some of the former strikers were not discriminatorily denied employment on February 2, 1983, the strikers were discriminatorily denied employment on each occa- sion a meat department position was filled beginning on the earliest occasion a vacancy was filled after February 2, 1983, and continuously thereafter until all the strikers should have been reemployed. CONCLUSIONS OF LAW 1. Respondent, Southwest Merchandising Corporation d/b/a Handy Andy, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers International Union, AFL-CIO, Local Union No. 171 is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to reemploy the 24 employ- ees named below in the section of this decision entitled "The Remedy," after unconditional offers to return to work have been made by or on behalf of each of those named employees, and when said jobs were available, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect 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, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent refused to reemploy the below named discriminatees in violation of Section 8(a)(1) and (3) of the Act, I shall order Respondent to offer each of the below named employees immediate and full employment to the positions formerly held by each, or, if those positions no longer exist , to substantially equivalent positions without prejudice to their seniority and other rights and privileges , discharging, if necessary, anyone discriminatorily hired in place of one of the below named discriminatees, and to make each of the below named discriminatees whole for any loss of earn- ings he or she may have suffered as a result of the dis- crimination practiced by Respondent. 24 Backpay and in- terest shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977):25 Stella Alvarado Beatrice Arredondo Alice Arriaga Fred V. Barboza Pauline H. Cabido Alice C. Cabrera Alfred Canedo, Jr. Rebecca E. Castillo Frankie L. Danmon Mary Alice Guzman Rose Mary Burk Carlos Dimas, Sr. Joe O. Huerta Allen Love Joe R. Lopez, Jr. Rosa E. Moralez Henry B. Perez Rose Polk Irene M. Ponce Pete Ruiz Shirley A. Walker Roger Wendel Onelia M. Heredia Edward Martinez ORDER26 The Respondent, Southwest Merchandising Corpora- tion d/b/a Handy Andy, Inc., San Antonio, Texas, its of- ficers, agents, successors , and assigns, shall 1. Cease and desist from (a) Refusing to reemploy or otherwise discriminating against any employee for having engaged in a lawful strike or other concerted activity protected under the provisions of Section 7 of the National Labor Realtions Act, as amended. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full employment to the em- ployees listed in the section of this decision entitled "The Remedy," to the position formerly occupied by each re- spective discriminatee , or, if those positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights and privileges, dis- charging, if necessary, anyone discriminatorily hired in place of one of the named discriminatees, and make each named discriminatee whole for any loss he/she may have suffered as a result of our discrimination in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. 84 Nolan Systems Inc., 268 NLRB 1248 (1984). 25 See generally Isis Plumbing Ca, 138 NLRB 716 (1962) 26 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses HANDY ANDY, INC. 1013 (c) Post at its facility in San Antonio, Texas, copies of the attached notice marked "Appendix."27 Copies of the notice, on forms provided by the Regional Director for Region 23 , after being signed by Respondent's authorized 10 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 " representative, shall be posted by 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director for Region 23 in writing within 20 days from the date of this Order what steps Respondent has taken to comply.