Gaywood Manufacturing Co.

GAYWOOD MFG CO 697 Gaywood Manufacturing Company and United Tex- tile Workers of America, Local Union No. 677. Cases 14-CA-17147 and 14-CA-17416 September 11, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On December 21, 1984, Administrative Law Judge Richard H Beddow Jr issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findmgs, 1 and conclusions only to the extent consistent with this Decision and Order 1 The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by conditioning the reaching of a new agreement on the Union's acceptance of a 6-month limitation on the reinstate- ment rights of strikers The judge further found that the Respondent violated Section 8(a)(5) and (1) by insisting on its proposal to replace the con- tract's union-security provision with an agency- shop provision We find merit in the Respondent's contentions that it did not condition reaching agreement on limiting the strikers' reinstatement rights but merely proposed the 6-month limitation and that it made a lawful proposal to modify the union-security clause In analyzing the course of the parties' collective- bargaimng negotiations, we rely on the testimony and documentary evidence set forth in the record The parties had a history of collective bargaining, and the Union had represented the Respondent's production and maintenance employees for many years The most recent collective-bargaimng agree- ment was in effect from November 1981 to No- vember 1983 In October 1983, the parties com- menced negotiations for a successor agreement On November 1, 1983, the Respondent presented the Union with what it termed its "best and final offer" The Union's International representative, Arnold Zab, characterized the Respondent's pro- 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings posal as "a complete concessionary package" in which the Respondent requested concessions in wages, benefits, and the seniority and union-securi- ty provisions of the existing contract The union members voted to reject the Respondent's offer and commenced a strike on November 2, 1983 Two days later the Respondent's vice president and general manager, Stephen Miller, sent the striking employees a letter which stated in perti- nent part On Tuesday, November 1, 1983, the Compa- ny made its best and final offer to your bar- gaining committee, [sic] This offer should have been the basis for a contract settlement In- stead, you and your bargaining committee chose to reject the offer and strike We are at an impasse in bargaining The Company has made its best and final offer The Company does not intend to make any further increases in its proposals Please take notice that if the offer is not ac- cepted by Wednesday, November 9, 1983, at 700 a m, the Company will commence hiring permanent replacements and the offer will be automatically withdrawn According to Zab, the Respondent did not present any other written proposals during the course of subsequent negotiations The parties met again on January 6, 1984, 2 but there is no evidence in the record that either party presented further proposals At the next negotiating session on Janu- ary 13, Miller indicated that the Respondent would be willing to reinstate its final offer of November 1983 with changes in the pension and profit-sharing proposals and in the union-security clause Regarding the pension and profit-sharing propos- als, Miller's notes of the January 13 negotiating ses- sion indicate that he proposed to delete the pension and cash bonus plan as proposed in November 1983 and amend the existing profit-sharing plan to include all employees, remove age restrictions, and decrease the vesting period for benefits Union Of- ficer Clara O'Neal, who was present at the negoti- ating session, testified that the union membership did not accept the Respondent's proposal because of a disagreement about the vesting period Regarding the Respondent's union-security pro- posal, Miller proposed replacing the contract's ex- isting union-shop provision with a provision speci- fying that employees who did not want to join the Union could remain nonmembers According to Miller, he made this proposal because the strike re- 2 All dates are in 1984 unless otherwise Indicated 299 NLRB No 104 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD placements indicated that they did not want to join the Union 3 The next session was on April 10 Miller's notes indicate that at the April 10 negotiating session he clarified, in response to a question from the Union, that on January 13 the Respondent had proposed to reinstate its final offer of November 1983 "with two basic changes" in the profit-sharing plan and the union-secunty clause Miller further stated that if the Union accepted the Respondent's final offer, he was certain that an agreement could be reached with respect to the stnkers' return to work At the April 12 negotiations the Union proposed working under the provisions of the prior collec- tive-bargaining agreement with cuts in wages and benefits Specifically, the Union proposed a wage rate of $4 50 per hour The Respondent rejected the Union's proposal at the next session on April 25 It was at this April 25 session that the Respond- ent raised the issue of limiting the strikers' rein- statement rights Miller testified that he proposed that upon the Union's acceptance of the Respond- ent's offer the Respondent would suggest 6-month recall rights for all stnkers who wished to return to work When questioned on cross-examination about the basis for the limitation, Miller responded that the Respondent thought that it was "fair" to limit the time for reinstatement and offered 6 months, but that "it was negotiable " Miller also admitted on cross-examination that the "change" with re- spect to reinstatement rights was presented to the Union as a modification of the Respondent's final offer Miller's notes of the April 25 session reflect that Miller again proposed to reinstate the Respondent's November 1983 offer as modified by the January 13 proposals and by the further proposal that the strikers' reinstatement rights be limited to 6 months When questioned whether there was any discussion at the session about striking employees being recalled, Union President Virginia Stringer stated, "Well, Mr Miller said that he would recall the striking employees only when there was open- ings and then only for a period of six months" Similarly, Albert Dumas, an employee who served on the bargaining committee, testified that he re- called Miller stating "that there would be a six- 3 According to Zab, the Respondent had proposed changing the con- tract's union-shop clause in the fall of 1983, but Included the existing pro- vision in its November 1983 offer 4 At one point during Miller's cross-exammation, counsel for the Gen- eral Counsel stated, with regard to the limitation on reinstatement rights, "You said you wouldn't sign a contract without that in effect You were changing your offer and It was a final offer" The Respondent objected to the question on the grounds that counsel for the General Counsel was arguing with the witness, and counsel for the General Counsel rephrased his question to ask whether the change with respect to reinstatement nghts was part of the Respondent's final offer month recall period and if an employees [sic] wasn't called back within that six months then they would be automatically termmated " Finally, Zab testified that Miller stated that the striking employ- ees would be put on a preferential hiring list for 6 months It is undisputed that Stringer at the April 25 ne- gotiating session accused the Respondent of negoti- ating in bad faith by adhering to its November 1983 proposal Miller's notes indicate that he re- sponded as follows The Company made it's [sic] best and final offer to you on Nov 1st I told you the same thing in our letter of Nov 4th In fact, the letter said we did not intend to make any fur- ther increases in our proposals We have changed the offer to reflect our present situa- tion Miller thereafter wrote, "Talks broke down com- pletely and any further discussion was impossible" The parties met again on August 10 at which time the Respondent offered to pay its employees $5 per hour According to Stringer, the other issues "were still pendmg" at that time Zab testi- fied that the union-security clause remained an open issue The judge found that the Respondent did more than merely propose limiting reinstatement rights because the 6-month provision was part of its final offer We find initially, contrary to the judge, that the General Counsel has failed to prove that the Re- spondent insisted to impasse on its April 25 propos- al to limit the strikers' remstatement rights 5 The Board has held Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed 6 In the instant case, although the Respondent during the course of negotiations consistently re- ferred to its November 1983 offer as its "final offer," the record makes clear that the Respondent continued to propose additional modifications to that offer Thus, on January 13 the Respondent 5 In so finding, we consider it unnecessary to pass On whether the par- ties previously were at Impasse in November 1983 ° Taft Broadcasting Co, 163 NLRB 475, 478 (1967), enfd sub nom Tel- evision Artists AF7'RA v NLRB, 395 F 2d 622 (DC Or 1968) GAYWOOD MFG CO 699 proposed to reinstate its "final offer" with changes in the pension and profit-sharing proposals and in the union-secunty clause On April 25 the Re- spondent proposed limiting the strikers' reinstate- ment nghts 7 On August 10, the Respondent of- fered an hourly rate of pay that was responsive to the Union's April 12 proposal regarding reductions in wages and benefits Under the circumstances, we do not rely on the Respondent's charactenzation of its "final offer" See generally D C Liquor Whole- salers, 292 NLRB 1234 (1989), McCormick-Shires Millwork, 286 NLRB 754 fn 2 (1987) Rather, we find that the evidence of discussion and movement by the parties precludes a finding of impasse on April 25 See J Josephson, Inc , 287 NLRB 1188, 1190 (1988) In this context, the fact that the parties continued to meet again for further negotiations in- dicates that there was no contemporaneous under- standing concerning impasse See Colfor, Inc , 282 NLRB 1173, 1174 (1987), enfd 838 F 2d 164 (6th Cir 1988) This is particularly so in view of the parties' successful history of contract negotiations 8 We further find that there is no evidence that the Respondent expressly conditioned reachmg a new agreement on the Umon's acceptance of the limita- tion on strikers' reinstatement rights In this regard, the above-described testimony of Stnnger, Dumas, and Zab to the effect that Miller stated that there would be a 6-month recall period for stnkers is not inconsistent with Miller's testimony that the pro- posal was negotiable Rather, the testimony of these witnesses suggests that Miller merely present- ed his proposal with the firmness of purpose that is characteristic of lawful "hard" bargaining 9 In fact, the only suggestion in the record that the Respond- ent so conditioned the reaching of an agreement came from a leading question by counsel for the General Counsel that was subsequently withdrawn See footnote 4, above In the absence of evidence that the Respondent insisted that before any con- tract could be negotiated the Union would have to agree to limit the strikers' reinstatement rights, we find that the Respondent merely proposed such limitation and, therefore, did not violate Section 8(a)(5) and (1) as alleged See Aztec Bus Lines, 289 NLRB 1021, 1023 (1988) (distinguishing Fitzgerald Mills Corp, 133 NLRB 877, 884 (1961), enfd 313 7 It is not clear from the record whether the proposal to limit reinstate- ment rights was made as a modification of the Respondent's "final offer" or, as the Respondent contends, as part of a strike settlement agreement We note that the complaint does not allege overall bad-faith bargain- ing by the Respondent, and this Issue was not htigated at the hearing 'See generally Blue & White Cabs, 291 NLRB 1047 fn 14 (1988) (re- spondent did not must on its proposal to give supersemonty to strike re- placements where it, Inter alia, offered to meet with the union to discuss its proposal, advised the union of its intent to implement the proposed changes, and took the position during negotiations that strike replace- ments should be able to keep their jobs) F 2d 260 (2d Cir 1963), cert denied 375 U S 834 (1963)) 10 Accordingly, we reverse the judge and dismiss this portion of the complaint 11 We also disagree with the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) by insisting on its proposal to replace the con- tract's umon-secunty provision with an agency- shop clause It is not a per se violation of Section 8(a)(5) and (1) for an employer to propose and bar- gain to impasse concerning an agency-shop clause In this regard, the Board in Challenge-Cook Bros, 288 NLRB 387, 389 (1988), cited the following lan- guage from Atlas Metal Parts Co v NLRB, 660 F 2d 304, 308 (7th Cir 1981) An employer is entitled to advance a posi- tion sincerely held, notwithstanding the em- ployer's having taken a different position at an earlier time Union security [is a] mandatory [subject] of bargaining, and "[a] party is entitled to stand firm on a posi- tion if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force agreement by the other party" In this case we find, for the reasons set forth above regarding the course of the 1984 negotia- tions, that the Respondent did not insist on its agency-shop proposal Rather, the Respondent merely proposed an agency-shop clause based on its view that the strike replacements did not want to join the Union We therefore find that the Re- spondent did not violate the Act as alleged 12 2 The parties commenced what was indisputably an economic strike on November 2, 1983 The judge found that on January 5, 1984, the Respond- ent commenced a "demonstrated pattern of illegal conduct" that was inherently destructive of em- ployees' Section 7 rights and converted the eco- nomic strike into an unfair labor practice strike Specifically, the judge relied on the following con- duct that he found to be violative of Section 8(a)(3) and (1) of the Act On January 5, Miller told stnk- 77 Our findings that the Respondent did not insist to Impasse or condi- tion the reaching of an agreement on the limitation of strikers' reinstate- ment rights do not depend on whether the proposal was part of the Re- spondent's "final offer" or was made in the context of a separate strike settlement agreement See Aztec Bus Lines, above at 1023 fn 7 " In view of our finding that the Respondent did not insist to Impasse, we consider It unnecessary to pass on whether the Respondent would be entitled to insist to impasse on its proposal to limit strikers' reinstatement rights Cf Gaso Pumps, 274 NLRB 532 fn 2 (1985) (respondent violated Sec 8(aX5) and (1) by insisting to impasse on its proposal to limit the reinstatement rights of economic strikers) 77 We shall amend the judge's conclusions and modify his recommend- ed Order accordingly Additionally, we shall amend the judge's Conclu- sion 9 to reflect his finding, with which we agree, that the Respondent's withholding of accrued vacation benefits from strikers violated Sec 8(a)(3) and (1) as alleged 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er Fisher, who had unconditionally offered to return to work, that she had to withdraw from the Union in order to be recalled Similarly, on several occasions m March the Respondent, through Miller and Assistant Plant Manager Garlich, told stnkers Barton and McCabe, who had unconditionally of- fered to return, that they had to withdraw from the Union or get a wntten release from the Union and fill out a new application before they would be re- called Barton was also told that she had been auto- matically terminated the day the stake com- menced 13 We agree with the judge, for the reasons set forth below, that the economic stake converted to an unfair labor practice strike on January 5 As an initial matter, we agree with the judge that the Re- spondent's conduct with respect to the stnkers, as descnbed above, violated Section 8(a)(3) and (1) of the Act 14 As the Board noted m C-Line Express, 292 NLRB 638 (1989), an employer's unfair labor practices during an economic strike do not ipso facto convert it mto an unfair labor practice stnke, Rather, the General Counsel must prove that the unlawful conduct was a factor (not necessanly the sole or predominant one) that caused a prolonga- tion of the work stoppage In demonstrating this causal nexus, the General Counsel may rely on both subjective and objective factors In the instant case we find that the Respondent's unlawful conduct prolonged the work stoppage and therefore converted the stake into an unfair labor practice stake See C-Line Express, above See also Chicago Beef Co, 298 NLRB 1039, 1040 (1990) That the Respondent's conduct caused con- sternation among the employees is supported by the evidence of dissemmation of the conduct In this regard, Barton testified that she discussed her conversation with Miller with some of her fellow workers, and that she discussed her conversation with Garhch with Union President Stanger as well as with some of her fellow workers Similarly, Fisher testified that she talked with five or six other employees about her conversation with including the shop steward and Stringer Further, Miller testified that Stanger questioned 13 The judge further found that the Respondent's agency-shop propos- al and its condition that the strikers' reinstatement rights be limited con- verted the strike Into an unfair labor practice stnke In light of the above reversals we do not rely on this finding 14 Regarding the January 5 statement to Fisher, we note that on Janu- ary 12 the Regional Director approved an Informal settlement agreement between the parties that provided, Inter aim, that the Respondent would not Interfere with its employees' Sec 7 rights In agreeing with the judge that the settlement agreement was properly set aside, we rely only on the related postsettlement violations of the Act that occurred after January 12, including the conduct of Miller and Garhch with respect to stnkers Barton and McCabe Having set aside the agreement we find that the Re- spondent's presettlement conduct with respect to Fisher was unlawful See Jordan Graphics mc, 295 NLRB 1085 fn 1 (1989) him at the Apnl 10 negotiating session whether Barton had been told she had to resign from the Union to be reinstated and that there was "consid- erable discussion at length" whether stnkers had to resign Miller's notes of the April 10 session indi- cate that stnkers had been asking the Respondent whether such resignation was required 15 Similarly, as an objective matter, the Respond- ent's unlawful condmomng of reinstatement on res- ignation from the Union is comparable in effect to conduct such as an unlawful withdrawal of recog- mtion dunng an economic stake—an unfair labor practice that, by its nature, has a reasonable tend- ency to prolong the strike See C-Line Express, above at 638 fn 4, and cases cited See also Chica- go Beef, above Thus, the Respondent's conduct tended to undermine support for the Union during the course of bargaining, and was "likely to have significantly interrupted or burdened the course of the bargaining process" Id, slip op at 3 We fur- ther find that the Respondent's unlawful statements concerning resignation would necessanly delay res- olution of the stake by creating an issue to be re- solved individually by staking employees who had made or were willing to make unconditional offers to return to work—i e, whether the employee should resign from the Union in order to make an offer to return that would be acceptable to the Re- spondent Accordingly, we find that the economic stake converted to an unfair labor practice stake on January 5 16 3 The judge found that following the January 5 conversion all staking employees who made un- conditional offers to return became entitled to im- mediate reinstatement We agree with the judge's conclusion that the Respondent violated Section 8(a)(3) and (1) by failing to meet its reinstatement obligations with respect to those unfair labor prac- tice strikers who made unconditional offers to return, but we do so with the following modifica- tions 16 In response to Stringer's question, Miller explained that resignation was not required and stated that he would make sure that the Respond- ent's supervisors knew that resignation from the Union was not a condi- tion of reinstatement We find that such statements to supervisors do not cure the Respondent's unfair labor practices or otherwise remove them as a factor in prolonging the strike See Chicago Beef, above Moreover, the Respondent continued to violate the Act by refusing to reinstate unfair labor practice strikers who made unconditional offers to return to work For this reason, we further find that the strike did not revert to an eco- nomic strike See Trumbull Memorial Hospital, 288 NLRB 1429 (1988) (distinguishing Trident Seafood Corp, 244 NLRB 566 (1979)) See also Gloversville Embossing Corp. 297 NLRB 182, 183 (1989) " In making this finding we rely particularly on the fact that Fisher, as noted above, discussed Miller's unlawful statement of January 5 with several other employees, including the shop steward and the Union's president In these circumstances, the Respondent's conduct on January 5 Itself was not an Isolated incident GAYWOOD MFG CO 701 First, we disagree with the judge's findmgs re- garding the unconditional nature of two of the offers to return and the existence of a third offer Stnker Bessie Frederickson called the Respondent's vice president, Miller, on July 23, 3 days after the Respondent had moved its plant to Washington, Missouri Frederickson asked if the Respondent was calling stnkers back, and Miller told her that he needed people at the new location in Washing- ton Frederickson said she would have to think it over Sometime in August, Miller offered Freder- ickson a job in Washington, but Frederickson told him that she could not afford the transportation costs Striker Clara O'Neal also called Miller, on July 20, 1984, and asked about job openings Miller stated that there were no jobs available at that time, and then asked O'Neal if she was interested in retummg to work In response, O'Neal inquired about the distance to Washington, and said she would have to think about returning An equivocal inquiry is not an unconditional offer to return to work See, e g, Purolator Prod- ucts, 270 NLRB 694, 700 (1984), enfd 121 LRRM 2120 (4th Cir 1985) (unpublished), Rapid Armored Truck Corp, 281 NLRB 371, 375-380 (1986) We find that the statements of Fredencicson and O'Neal to the effect that they would think about returnmg to work did not clearly indicate that they were offering to return, and were, therefore, not unconditional 17 We further find that there is no evidence in the record that striker Nancy Basden offered to return to work Accordingly, we reverse the judge and find that the Respondent did not vio- late Section 8(a)(3) and (1) with respect to these three striking employees Additionally, we disagree with certain aspects of the judge's recommended remedy Having deter- mined that the strike converted to an unfair labor practice strike on January 5, we find that only those strikers who had made unconditional offers to return and who had not been permanently re- placed prior to conversion are entitled to immedi- ate reinstatement with backpay 18 See Rose Printing Co, 289 NLRB 252, 253 (1988) Further, although the Respondent did not offer these unfair labor practice strikers the immediate reinstatement to which they were entitled, the record indicates that the Respondent did make subsequent offers of rein- statement to certain of the striking employees We therefore find, contrary to the judge, that the strik- ing employees who made unconditional offers to " Even though Frederickson did not make an unconditional offer to return, the Respondent subsequently offered to reinstate her at its Wash- ington facility " The Respondent did not except to the judge's finding that G C Exh 5 establishes the dates that the Respondent hired replacement em- ployees return and were then offered reinstatement by the Respondent at either its Manchester or Washington facilities are not entitled to new offers of reinstate- ment Rather, the Respondent's liability with re- spect to these striking employees is limited to the provision of backpay With these modifications, we adopt the judge's conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to rein- state unfair labor practice strikers 19 We shall amend the recommended Conclusions, Remedy, and Order accordingly, and issue a new notice AMENDED CONCLUSIONS 1 Delete Conclusion 4 2 Substitute the following for Conclusion 8 "8 By refusmg to reinstate unfair labor practice strikers who made unconditional offers to return and had not been permanently replaced as of Janu- ary 5, 1984, the Respondent violated Section 8(a)(3) and (1) of the Act" 3 Substitute the following for Conclusion 9 "9 By failing and refusing to pay accrued vaca- tion pay to employees entitled to such pay, on re- quest, the Respondent violated Section 8(a)(3) and (1) of the Act" REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effec- tuate the policies of the Act We have found that the economic strike that began on November 2, 1983, was converted to an unfair labor practice strike on January 5, 1984 We have further found that the Respondent violated Section 8(a)(3) and (1) by refusing to reinstate unfair labor practice strikers following their unconditional offers to return to work Accordingly, with respect to those unfair labor practice strikers who were not offered reinstatement at either the Manchester or Washing- ton facilities and who were not permanently re- placed before January 5, 1984, we shall require the Respondent to reinstate them immediately to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging if necessary all replacements hired after January 5, 1984 If, after such dismissals, 19 with the above, we shall leave to the compliance stage the resolution of issues relating to tolling as to which the record is either ambiguous or not fuHy developed See Baker MA Co, 269 NLRB 794 fn 2 (1984), enfd m relevant part 759 F 2d 1219 (5th Or 1985) In this regard, we note that there are discrepancies between the judge's decision and the record evidence as to the dates on which some of the striking employees offered to return to work These employees include Linda Johnson, Eugene Grady, Kate Hauscluld, and ICathenne Vallma 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD there are insufficient positions available for the re- maining former strikers, those positions which are available shall be distributed among them without discnmmation because of their union membership or activities or participation in the strike, in ac- cordance with seniority or other nondiscriminatory practice utilized by the Respondent The remaining former strikers who were not replaced prior to conversion, as well as those former strikers who were permanently replaced prior to conversion, for whom no employment is immediately available, shall be placed on a preferential hiring list in ac- cordance with their seniority or other nondiscnm- matory practice utilized by the Respondent, and they shall be reinstated before any other persons are hired or on the departure of their preconver- mon replacements See Chicago Beef, above, Rose Printing, above, Ashe Brick Go, 280 NLRB 1383 (1986) The employees entitled to immediate reinstate- ment, as well as those unfair labor practice strikers who made unconditional offers to return and were offered reinstatement by the Respondent, shall be made whole for any loss of earnings they may have suffered by reason of the Respondent's refusal to reinstate them in accordance with their uncondi- tional requests to be reinstated Backpay shall be computed in the manner prescribed in F W Wool- worth Go, 90 NLRB 289 (1950) Additionally, havmg found that the Respondent violated Section 8(a)(3) and (1) by failmg to pay accrued vacation pay to its employees, we shall order the Respond- ent to pay those benefits to each striking employee who is entitled to receive such pay and who sub- mitted a request Interest on all payments shall be computed in the manner prescribed m New Hori- zons for the Retarded, 283 NLRB 1173 (1987) With respect to the injunctive language of the Order, and noting our reversal of the judge's find- ings that the Respondent violated Section 8(a)(5) and (1) of the Act, we have considered this case in light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that the narrow cease-and-desist language "in any like or related manner" is appropriate ORDER The National Labor Relations Board orders that the Respondent, Gaywood Manufacturing Compa- ny, Washington, Missouri, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in United Textile Workers of America, Local Union No 677, or any other labor organization, by failing and refusing to remstate unfair labor practice strikers upon their unconditional offers to return to work who were not permanently replaced prior to the strike's con- version from an economic strike (b) Failing and refusing to pay accrued vacation pay, upon request, to striking employees entitled to receive such pay (c) Soliciting employees to withdraw from the Union and otherwise telling them that they had been automatically terminated when the strike began and had to fill out new applications (d) In any like or related manner mterfenng with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Of the following employees who were en- gaged in an unfair labor practice strike and were not subsequently offered reinstatement by the Re- spondent, offer those who were not permanently replaced before January 5, 1984, immediate rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any re- placements hired on or after January 5, 1984 Carol Fisher Laverne Davis Shirley Laxton Kate Hauschild Debbie Clark Lily Hoermann Bonnie Brashear Sharron Vancil Albert Dumas Katherine Vallma Gloria Clark (b) Place the remaining former strikers who were not replaced prior to January 5, 1984, as well as those former strikers who were permanently re- placed prior to January 5, 1984, for whom no em- ployment is immediately available, on a preferential hiring list in accordance with their seniority or other nondiscnmmatory practice utilized by the Respondent and offer them employment before any other persons are hired or on the departure of any replacements hired before January 5, 1984 (c) Make the following employees whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the remedy section of this decision Virginia Stringer Betty Cngler Linda Johnson Carol Fisher Elsie McCabe Shirley Laxton Margaret Barton Debbie Clark Eugene Grady Bonnie Brashear Millie Lecocq Albert Dumas Billy High Laverne Davis Hazel High Kate Hauschild GAYWOOD MFG CO 703 Ruby Willis Lily Hoermann Rosie Bowling Sharron Vancil Nancy Aston Katherine Vallma Shirley Aston Gloria Clark (d) Pay accrued vacation pay, on request, to striking employees entitled to receive such pay in the manner set forth in the remedy section of this decision (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Post at its facility in Washington, Missouri, and mail to all employees who were in the bargain- ing unit on November 1, 1983, copies of the at- tached notice marked "Appendix "20 Copies of the notice, on forms provided by the Regional Direc- tor for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing withm 20 days from the date of this Order what steps the Respondent has taken to comply 20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT fail and refuse to reinstate unfair labor practice strikers who were not permanently replaced prior to conversion of the strike WE WILL NOT fail and refuse to pay accrued va- cation pay, on request, to striking employees enti- tled to receive such pay WE WILL NOT solicit employees to withdraw from the Union and otherwise tell them that they have been automatically terminated when the strike began and have to fill out new applications 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 following employees engaged in an unfair labor practice strike, who were not permanently replaced before January 5, 1984, and were not subsequently offered reinstatement by us, immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, discharging, if neces- sary, any replacements hired on or after January 5, 1984 Carol Fisher Kate Hauschild Shirley Laxton Lily Hoermann Debbie Clark Sharron Vancil Bonnie Brashear Katherine Vallma Albert Dumas Gloria Clark Laverne Davis WE WILL place the remaining former strikers who were not replaced prior to January 5, 1984, as well as those former strikers who were permanent- ly replaced prior to January 5, 1984, for whom no employment is immediately available, on a prefer- ential hiring list in accordance with their seniority or other nondiscriminatory practice and offer them employment before any other persons are hired or on the departure of any replacements hired before January 5, 1984 WE WILL make whole the following employees for any loss of earnings they may have suffered as a result of the discrimination against them, with in- terest Virginia Stringer Betty Cngler Linda Johnson Carol Fisher Elsie McCabe Shirley Laxton Margaret Barton Debbie Clark Eugene Grady Bonnie Brashear Millie Lecocq Albert Dumas Billy High Laverne Davis Hazel High Kate Hauschild 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ruby Willis Rosie Bowling Nancy Aston Shirley Aston Lily Hoermann Sharron Vaned Katherine Vallma Gloria Clark a labor organization within the meamg of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES WE WILL pay accrued vacation pay, on request, to striking employees entitled to receive such pay, with interest GAYWOOD MANUFACTURING COMPANY John S Stevens, Esq , for the General Counsel David F Yates, Esq , of St Louis, Missouri, for the Re- spondent Arnold F Zah, of Berea, Ohio, for the Charging Party DECISION STATEMENT OF THE CASE RICHARD H BEDDOW, JR , Admimstrative Law Judge This matter was heard in St Louis, Missouri, on August 20 and 21, 1984 Subsequently, briefs were filed by the General Counsel and Respondent The proceedings are based on charges filed December 2, 1983 (amended Janu- ary 5, 1984), and May 4, 1984, 1 by the Umted Textile Workers of America, Local Union No 677 A settlement agreement in Case 14-CA-17471 was approved by the Regional Director on January 12 On June 19, the Regional Director issued an order re- voking approval and vacating and setting aside the settle- ment agreement in Case 14-CA-17471 An amended complaint and order consoldatmg both cases was issued on July 27 The complaint alleges that Respondent Gaywood Manufacturmg Company of Manchester, Mis- souri, violated Section 8(a)(1), (3), and (5) of the Nation- al Labor Relations Act by telling employees they had automatically been terminated the day they went out on strike, could not receive earned benefits because they were on strike, and could not return to work without withdrawing from the Union and making a new applica- tion, by fialmg to recall employees who made uncondi- tional offers to return to work, and by conditioning a new bargaining agreement on lesser union security and limitation of the reinstatement rights of striking employ- ees On a review of the entire record m this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION Respondent is engaged in the manufacture and distnbi- tion of shoe components and related products and it an- nually purchases and receives goods and materials valued in excess of $50,000 directly from points outside the State of Missouri It admits that at all times matenal has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act It also is admitted that Union Local 677 is 1 All following dates are in 1984, unless otherwise indicated For many years, until the summer of 1984, Respondent operated one of its manufacturing plants in Manchester The plant's operations are essentially divided into various departments (19 as of November 1983) where the em- ployees' work relates to the performance of different functions or the production of different components Several departments such as "rewind" and "small lap" might have one employee while other such as "big lap," "fold," "stitch," and "utility" had approximately four to six employees As implied, employees in "utility" were versed in performing several functions and over the years many employees changed from one function to an- other gaining experience at two or more jobs As of the fall of 1983, Respondent employed approximately 40 workers, many with 12 or more years with the Compa- ny The employees have been represented by the Union for many years, most recently under a bargaining agree- ment which was in effect from 1981 to November 1983 During October 1983, Stephen Miller was Respondent's vice president and James Garlich held the position of as- sistant plant manager Both held these positions for ap- proximately 3 years Larry Gable was president and Rich Hayes plant superintendent and on October 11, 1983, the latter two attended the first meeting with the Umon for negotiation of a new agreement along with Miller who was Respondent's chief negotiator and who attended all subsequent meetings Miller, however, played no role in the negotiation of the previous agree- ment The Union was represented primarily by Interna- tional Representative Arnold Zab along with local presi- dent and shop steward, Verna Taylor, local secretary- treasurer, Albert Dumas, and shop steward, Clara O'Neal Among other things, a respondent proposal to extend the union-security probationary period from 30 to 61 days was discussed Another meeting was held on November 1, 1983, wherein the Respondent presented the Umon with a final offer to take to its members Zab characterized the Com- pany's final proposal as "a complete concessionary pack- age in which the Company requested wage reductions, vacation reductions, elimination of the pension program, elimination of sick days, bereavement pay eliminated, breaks eliminated and a loss of semonty and security under certain provisions of the agreement that we had in effect protecting right for transfers, recalls, and layoffs" The membership voted by secret ballot to reject the offer and to go out on strike concurrently with the expi- ration of the last bargaimng agreement A strike began on November 2 and Respondent re- sponded by sending letters to the stnking employees ad- vising them that if they did not accept by 7 am on No- vember 9, it would exercise its right to hire permanent replacements Respondent immediately began hiring tem- porary replacements and on November 9, Miller told the replacements they had become permanent Respondent continued to hire additional permanent replacements for the strikers GAYWOOD MFG CO 705 As noted, the Union filed a charge on December 2 which resulted in a settlement agreement approved by the Regional Director on January 12, whereby Respond- ent agreed that it would not do anything which inter- fered with its employees' rights under Section 7 of the Act, would not tell employees that they are not eligible for any of their benefits because they are engaging in an economic strike, would not refuse to pay vacation bene- fits upon employee request for such benefits because they are engaging in an economic strike, and would pay to employee Ruby Willis, and any other employee similarily situated, any accrued vacation benefits for which they were eligible prior to the commencement of the econom- ic strike on or about November 2, 1983 A negotiatmg session occurred on January 13, wherein the Respondent modified its final offer of the previous November by proposing a profit-sharing plan, modifica- tion of the former pension plan, and an open shop, spe- cifically, to allow employees who wished to join or remain in the Union to do so and to not require others, especially the replacement employees, to join the Union Renewed negotiations occurred on April 10, 12, and 25, with Virginia Stringer, the Union's new local presi- dent, also attending the sessions 2 At the meetings on April 10 and 12, Miller indicated that the replacements did not want a union and that the union-security provision in the expired contract would have to be changed Miller said that the plant was listed for sale, that Respondent was considering moving, and that it could take 3 months to 3 years He also said that the striking employees were not considered to be termi- nated The Union proposed to return to work under the old agreement with a dollar an hour cut in wages plus other benefit reductions to be discussed later but with the same full union-security provision On April 25, Miller told the Union that its proposal of April 12 was unacceptable and again proposed the Company's offer of November 1 as modified by the profit-sharing and union- security changes Also, Miller proposed that returning employees would be put on a preferential hiring list for openings occurring during a 6-month period after which such rights would expire He also said they would then have to come back as new employees and fill out new applications No agreement was reached and picketing continued, however, several people made offers to return to work during March, April, and May On July 20, Respondent moved its facilities to Washington, Missouri, a location some 30 miles west of the Manchester facility which itself was a dozen miles west of downtown St Louis Be- tween July 12 and 23, 16 other strikers made offers to return to work In most instances, they were not re- called Respondent asserts, however, that the reason was that it did not have openings for which the individual was qualified During the time period discussed above, certain other events occurred which form the basis for the several al- legations of improper conduct on the part of the Re- 2 Miller took notes at both the January 13 and Apnl 25 sessions which tend to corroborate the recitation of events presented here spondent They will be described below as part of the overall discussion III DISCUSSION On January 5, striking employee Carol Sue Fisher asked Respondent's vice president Miller to be recalled to her job Fisher testified and Miller admits that he stated that she had to get a withdrawal card or to resign from the Union in order to be recalled The Board has determined that it is violative of Section 8(a)(1) and (3) of the Act for an employer to solicit employees to with- draw from a Umon Colorado Forge Corp, 260 NLRB 25 (1982), and it has specifically found that to require strik- ers to furnish proof that they resigned from the union violates the Act, Triumph Curing Center, 222 NLRB 627 (1976) A Union Resignation Condition and Conversion to an Unfair Labor Practice Strike Respondent argues that the resignation issue arose prior to the settlement agreement of January 12 and that presettlement conduct cannot be the basis for a charge unless they "were unknown to the General Counsel, not readily discoverable by investigation, or specifically re- served from the settlement by the mutual understanding of the parties" Citing Hollywood Roosevelt Hotel Co, 235 NLRB 1397 (1978) Respondent also contends that the settlement agreement should be reinstated and that any inquiry into other alleged unfair labor practices be limit- ed to those occurring subsequent to March 19, when the initial case was closed On January 9, Respondent entered into an informal settlement in Case 14-CA-17147 which required that Re- spondent will not interfere with employees' Section 7 rights Although Respondent's violation of the Act on January 5 was prior to the settlement, it does not appear that it was known to the General Counsel, however, the matter of whether it was readily discoverable by investi- gation was not developed Otherwise, however, I find that other evidence of subsequent and continued unfair practices both before and after the signing of the agree- ment and the Regional Director's closing of the case warrants a conclusion that the Regional Director proper- ly vacated and set aside the settlement agreement See Tompkins Motor Lines, 142 NLRB 1 (1963) Thus, it is appropriate to consider January 5 to be the determina- tive date that Respondent began its demonstrated pattern of illegal conduct This conduct conditioned employees' return to their jobs on their withdrawing from or resign- ing from membership in the Union and was repeated and persisted until at least April 10 Specifically, I find that in addition to the initial Illegal conduct noted above, Re- spondent also engaged in violation of Section 8(a)(1) and (3) of the Act, similar to the Fisher incident of January 5, on the following occasions On March 13, 1984, em- ployee Margaret Barton asked Miller if she could return to her job Miller told Barton that for her to come back to work, she had to get a written release from the Union and fill out a new application The latter action, requir- ing a striking employee to fill out an application as a condition of returning to work, also violates Section 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8(a)(1) and (3) of the Act, Brinkerhoof Signal Drilling Go, 264 NLRB 348 (1982) On March 29 (after the Regional Director's acknowledgement on March 19 of compliance with the settlement agreement), Garhch told both em- ployees Barton and Elsie McCabe that in order to return they had to have a written release from membership in the Union and fill out a new job application, and on March 30, Garlich told Barton that she had been auto- matically terminated the day the strike commenced, an- other action which constitutes a violation of Section 8(a)(1) of the Act On April 10, a negotiation session was held during which Miller told the union negotiators that employees did not have to resign from the Union to be recalled to work Respondent argues that these incidents were iso- lated which was immediately corrected when brought to Miller's attention on April 10 and that they should not be found to be violation of the settlement agreement or to be independent violations of the Act However, em- ployees who were not offered reinstatement because they had not resigned from the Union or because they had not filled out applications were never notified that Respond- ent's policy had been changed I, otherwise, find Re- spondent's conduct should be considered in the aggre- gate and that its overall pattern of conduct during this time period shows a propensity for action designed to undermine the Union and to restrain the rights of stnkmg employees An employer's activity in violation of the Act which has an inherently destructive effect on employees' Sec- tion 7 rights, such as those involved here, will convert an economic strike into an unfair labor practice strike, Gulf Envelope Go, 256 NLRB 320 (1981) As otherwise set forth below, I also find that Respondent's January 13 bargaining demand for an agency shop as well as its April 25 condition that the reinstatement right of striking employees be limited constitutional bad-faith bargaining in violation of Section 8(a)(5) of the Act Thus, both of these contractual demands were designed to be and were an attempt to undermine the Union and were inherently destructive of the employees' rights under Section 7 of the Act and also to convert the strike to an unfair labor practice strike B Withholding of Benefits The record shows that because of the strike, Respond- ent delayed paying accrued vacation pay to striker Ruby Willis and also that in December striking employee La- Verne Davis telephoned the plant and asked Miller for her vacation pay Miller replied that if she were work- ing, she would be eligible for vacation pay, but she was not working and would not be paid As of August 1984, when the trial was held, Respondent. still had not paid Davis her third week of vacation The Board has consist- ently held that the withholding of accrued vacation ben- efits from striking employees violates both Section 8(a)(1) and Section 8(a)(3) of the Act Gulf Envelope, supra, cf Martin & Go, Inc , 252 NLRB 1192 (1980) Re- spondent contends that Davis was not paid because she was not eligible for her vacation pay until the vacation period which began in April 1984, however, this was not what she was told, and as noted, she was not paid even in April Respondent also urges that this was a matter covered by the settlement agreement, however, I other- wise have found that the agreement properly was set aside and I therefore conclude that Respondent is shown to have withheld benefits in violation of Section 8(a)(1) and (3) of the Act, as alleged C The Agency Shop Demand and Alleged Violation of Section 8(a)(5) As noted above, at the January 13 negotiating session, 4 days after the reaching of the settlement agreement, Respondent announced that its final offer, which had been made on November 2, would be modified so the offer would now be for an agency shop, rather than the union-security provision which the Union had under the expired contract, and which provision the Respondent had offered as part of its final offer on November 2 Also, on April 25, Respondent again modified its final offer by conditioning the reaching of an agreement on limiting the reinstatement right of striking employees to 6 months after an agreement was reached Respondent argues that the umon-security provision was discussed with the Union as early as the October meeting, that it was changed m April in order to avoid requiring striker replacements to join the Union and that Respondent merely "proposed" limiting recall rights rather than making it a condition for reaching an agree- ment The General Counsel, however, maintains that Re- spondent's attempt to both change to an agency-shop provision and to limit the recall of strikers were made in bad faith in an attempt to undermine the Umon More specifically, it is pointed out that limitations on the rein- statement rights of unfair labor practice strikers are against Board policy and that giving effect to any such agreement violates the Act, citing Borg Warner Corp, 121 NLRB 1492, 1494-1495 (1958) Thus, instances on an agreement that would otherwise violate the Act violates Section 8(a)(5) of the Act Here, I find that Respondent did more than merely propose such a condition inasmuch as Miller specifically told the Union on April 25 that the 6-month cutoff provision was part of its final offer It also is shown that as a result of the strike (which was converted to an unfair labor practice strike as a result of Respondent's conduct on January 5 which con- tinued through latter dates), the Company, at bargaining sessions on January 13 and during April, proposed re- placing the union-security clause with an agency-shop clause, admitting that its purpose was to avoid requiring its new employees, hired as replacements during the strike, to join the Umon Thus, Respondent insisted on a change in the umon-secunty provision that would allow it to take advantage of its own unlawful conduct which allowed the hiring of "new" employees rather than al- lowmg Fisher, Barton, and McCabe the right to return to work 3 Under these circumstances, I conclude that Respond- ent engaged in bad-faith bargaining when it proposed re- 3 As noted below, replacement employees were hired between January 5 and April 25, as well as thereafter and striking employees seeking rein- statement were qualified for the jobs Involved GAYWOOD MFG CO 707 placing the union-shop clause with a maintenance-of- membership clause, and I conclude that it thereby violat- ed Section 8(a)(1) and (5) of the Act, as alleged, see Struthers Wells Corp, 262 NLRB 1080, 1092 (1982), affd in part 721 F 2d 465 (1983) D Offers to Return and Lack of Reinstatement The General Counsel contends that masmuch as the strike was converted to an unfair labor practice strike on January 5, Respondent violated Section 8(a)(1) and (3) of the Act by not discharging the replacement employees and recalling striking employees each time strikers made unconditional offers to return to work on or after Janu- ary 5, 1984, until all replacements had been displaced by returning stnkers It also argued that even if the strike was not converted to an unfair labor practice strike Re- spondent nevertheless violated Section 8(a)(1) and (3) by not recalling vanous strikers who made offers to return to work Respondent, on the other hand, argues that the vast majority of the alleged offers to return were not bona fide, coming only after Respondent had lawfully and with full knowledge of the Union and the employ- ees, moved its facilities to Washington, Missouri, that otherwise those who may have expressed interest in re- turning were not qualified or were returned as soon as vacancies for which they were qualified occurred, and that the record is totally lacking of evidence to support the allegation that they were unfair labor practice strik- ers The stnlung employees and dates of their offers to return to work are as follows Carol Fisher Jan 5 Virginia Stringer Mar 14 Linda Johnson Mar 15 Shirley Laxton Mar 20 Elsie McCabe Mar 29 Margaret Barton Mar 30 Eugene Grady Apr 8 Debbie Clark May 7 Bonnie Brashear May 7 Albert Dumas May 14 Millie Lecocq May 18 II Billy J High July 12 Hazel A High July 12 Ruby Willis July 19 Lily Hoermann July 19 Rosie Bowling July 20 Sharron Vaned July 20 Nancy Aston July 20 Shirley Aston July 20 Laverne Davis July 20 Kate Hauschild July 20 Katherine Vallma July 20 Nancy Basden July 20 Gloria Peggy Clark July 20 Clara O'Neal July 20 Bessie Fredrickson July 23 Betty Cngler July 23 First, it is noted that I already have concluded that the strike was converted to an unfair labor practice strike Secondly, I find no validity in Respondent's claim that individuals were not recalled because of their lack of qualification Here, the record shows that Respondent's assistant plant manager, who was doing most of the hiring, admitted he kept no list of striking employees who had offered to return to work and otherwise was not familiar with their overall past experience but hired new employees and gave them on-the-job training As a rationale, Respondent attempted to assert that, specific openings did not occur that precisely matched the job description the striking employee held on November 1, however, it is clear that many employees were experi- enced in different jobs and had worked in various de- partments, as needed, and that employees in the past were shifted around by the Respondent as necessary without regard to their prior experience Respondent admits that the new hires were given on-the-job training and offered no excuse for not allowing the same right to strikers who had made offers to return to work The record, General Counsel's Exhibit 5, shows the dates replacements were hired with approximately two being hired in January, seven in February, five in March, two in April, and two in early June Additional replace- ments were hired in August, after Respondent's move to Washmton It is noted that Respondent incorrectly claims that striker Grady was returned to work on July 13 the first day work was available for which he was qualified inasmuch as he was listed as being in "1st cut" when the strike started and a replacement was hired for "1st cut" on June 11 Also, striker Dumas specifically of- fered to return to whatever position was available and he could do several jobs at the plant Furthermore, Re- spondent admits that even though striker Lecocq was working in the scarfing department on November 1, she was qualified in other departments and actually was rein- stated to work in "big lap" on July 13, 1984 Under these circumstances, I conclude that Respondent made no effort to ascertain the qualification of striking employees who offered to return as compared to possible quahfica- ton of new replacement employees and I find its asser- tion of this rationale for not reinstating striking employ- ees to be pretextual Respondent also questions the unconditional nature of the offers to return, especially insofar as some employees did not abandon the strike but continued to picket For example, Margaret Barton picketed until July 9, the day before she returned to work, although she requested to return on March 30 An unconditional offer, however, does not require employees to forfeit their right to con- tinue a strike until the time such request is granted, see W C McQuade, Inc , 220 NLRB 593, 609 (1975), and there is nothing in the record to indicate the employees otherwise placed any conditions on their request for rein- statement In a similar vein, I also find that any subse- quent employee decision not to accept the employer's offer of reinstatement does not mvandate the uncondi- tional nature of the employee's initial offer to individual- ly return to work and abandon the strike 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On this record it is shown that Respondent did not offer reinstatement on the earliest dates when vacancies occurred to those striking employees in category I above and, regardless of whether the stnkewas economic or an unfair labor practice strike in nature, I therefore con- clude that Respondent had the responsibility of reinstat- ing these strikers and its failure to do so violated Section 8(a)(1) and (3) of the Act, as alleged This is true even in the case of Margaret Barton, who subsequently resigned her employment on May 5 m order to receive her ac- crued sick pay, inasmuch as it appear that Barton would not have resigned if she had been reinstated in a timely manner after her offer on March 30 Turning to the employees listed in category II above, it is shown that these stnkers are also qualified for rein- statement Billy and Hazel High wrote to Respondent seeking reinstatement on July 12 Willis testified that on July 19, the union steward told striking employees that the guy from the Labor Board said they should call Re- spondent and ask for their jobs back In apparent re- sponse, the rest of the employees in category II above then made offers to return Contemporaneously, on July 20, Respondent moved to Washington Contrary to Respondent's contention, I find no reason to conlcude that the validity of their offer is tainted be- cause employees received a suggestion that they apply for reinstatement Similarly, the fact that these strikers (except the Highs) made their offers contemporaneously with the relocation of Respondent's facility, does not affect the validity of their offers and it otherwise does not relieve Respondent of its reinstatement obligations This is especially true in that while some of these em- ployees received inquiries on August 9 from Respondent as to whether they would return to work in Washington and concluded that added driving cost for distance to the new facility at the rate of pay offered would be uneco- nomical, others, such as Betty Cngler and Ruby Willis, indicated they would be willing to go to the new loca- tion, and still others (like Hoerman) were never called or asked Accordingly, I find that Respondent also failed in its reinstatement responsibilities to the strikers in category II and it therefore is shown that Respondent further violat- ed Section 8(a)(1) and (3) of the Act, as alleged In summation, it is observed that the discussion above establishes a failure to reinstate under criteria apphcable to economic strikers Otherwise, however, I have found the strike to have been converted to an unfair labor prac- tice strike which reasonably tended to prolong the strike e, the telling of prospective returnees that they had to withdraw from the Union would discourage others from making the same offer) and thus all the strikers who made offers to return to work became entitled to imme- diate reinstatement and the Respondent backpay liability commenced on the date of their offers to return to work Otherwise, more specific resolution of any tolling of Re- spondent liability can best be ascertained at the compli- ance stage of the proceeding See Acme Wire Works, 229 NLRB 333 (1977) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Umon is a labor organization within the mean- ing of Section 2(5) of the Act 3 At all times material, the Umon has been the exclu- sive collective-bargaining representative of the Respond- ent's employees 4 Respondent has, by its conduct in January and April 1984, refused and continues to refuse to bargain collec- tively in good faith concerning terms and conditions of employment in violation of Section 8(a)(1) and (5) of the Act 5 By soliciting employees to withdraw from the Umon on January 5, and March 13 and 29, 1984, and otherwise telling them they had been automatically ter- minated when the strike commenced and had to fill out new applications, Respondent violated Section 8(a)(1) and (3) of the Act 6 On June 19, 1984, the Regional Director properly vacated and set aside the settlement agreement previous- ly approved on January 12, 1984, in Case 14-CA-17147 7 The strike engaged in by the employees commend- ing on November 2, 1983, was prolonged by Respond- ent's unlawful conduct and was converted to an unfair labor practice strike as of January 5, 1984 8 By failing and refusmg to fully and unconditionally reinstate employees, based on individual requests from employees, the Respondent violated Section 8(a)(3) and (1) of the Act 9 By failing and refusing to pay accrued vacation pay, on request, to employees entitled thereto, Respondent violated Section 8(a)(1) of the Act THE REMEDY Having found that Respondent is engaged in unfair labor practices, I shall recommend that it cease and desist and that it take certain affirmative action designed to effectuate the policies of the Act Havmg found that Respondent violated Section 8(a)(5) of the Act, I shall order Respondent, on request, to meet with the Union and bargain collectively concerning terms and conditions of employment of the employees and, if agreement is reached, embody it in a signed contract Having found that Respondent has discnmmatonly re- fused to reinstate the unfair labor practice strikers on their unconditional application return to work, Respond- ent shall be requffed to offer them immediate and full re- instatement to their former positions or, if such positions are no longer in existence, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, discharging if necessary any re- placements Further, Respondent shall be required to make them whole for any loss of pay they may have suf- fered as a result of the discrimination against them from the dates of their unconditional request for reinstatement to the date of Respondent's bona fide offer of reinstate- ment As otherwise noted, any tolling of Respondent's haibility can be ascertained at the compliance stage of the proceeding, Acme Wire Works, 229 NLRB 333 (1977) Otherwise, backpay shall be computed in accord- GAYWOOD MFG CO 709 ance with the formula set forth in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in Flori- da Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co , 138 NLRB 716 (1962) Additionally, havmg found that the Respondent unlawfully failed and refused to pay vacation pay to its employees, the Re- spondent shall be ordered to pay to each striker who submitted such a request, each such employee's vacation benefits m full, to the extent that it has not already done so Having found that Respondent has violated Section 8(a)(3), (5), and (1) of the Act, by practices which strike at the very heart of employee nghts safeguarded by the Act, and which indicate a pattern of unlawful conduct by the Respondent, I find it appropriate to issue a broad order requiring Respondent to cease and desist from in any other manner infnnging upon the rights of employ- ees guaranteed by Section 7 of the Act litckmott Foods, 242 NLRB 1357 (1979) [Recommended Order omitted from publication ]