Case, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1982

265 N.L.R.B. 102 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case, Inc. and International Ladies' Garment Work-
ers' Union, AFL-CIO. Cases 9-CA-14561 and
9-CA-14862
October 15, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 1, 1981, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging
Party filed limited cross-exceptions and a brief sup-
porting the cross-exceptions and answering Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
On July 20, 1981, the United States Court of Ap-
peals for the Sixth Circuit issued its opinion in
N.L.R.B. v. Gibraltar Industries, Inc., 653 F.2d
1091, in which it denied enforcement of a bargain-
ing order issued against Respondent in Case, Inc.,
237 NLRB 798 (1978). The violations found by the
Administrative Law Judge in the instant case, that
Respondent violated Section 8(a)(3) and (1) of the
Act by unduly delaying reinstatement of unfair
labor practice strikers and by its refusal to pay
holiday pay to strikers who were reinstated, are
based on his finding that employees were engaged
in an unfair labor practice strike. The strike was in
response to Respondent's posting of piece rates on
February 9, 1979, to become effective the follow-
ing day for work on chemical garments. Prior to
this time such work had been hourly paid, and sev-
eral employees who felt that the rates were too
low and production quotas too high discovered
that Respondent had not bargained with the Union
about the change. Thereafter, approximately 50
percent of Respondent's 250 employees went on
strike, carrying signs which read "Case on Strike-
Unfair Labor Practices." The strike continued into
October when the Union sent Respondent a tele-
gram announcing the employees' intention to
return to work unconditionally.' The Administra-
Due to an error in transmission there was a question as to whether
the offer was unconditional. The issue was litigated at the hearing and
the Administrative Law Judge found that the offer was unconditional as
of October 26, the date of the first telegram.
265 NLRB No. 9
tive Law Judge found that Respondent's delayed
reinstatement of unfair labor practice strikers and
its refusal to pay holiday pay to strikers who did
return violated Section 8(a)(3) and (1) of the Act.
The decision of the court, however, invalidating
the earlier bargaining order, absolved Respondent
of any duty to bargain with the Union, and there-
fore employees who went out on strike in protest
of Respondent's unilateral change in piece meal
rates were economic, rather than unfair labor prac-
tice strikers. Since the allegations of the complaint
and the issues litigated concerned only the question
of whether unfair labor practice strikers were rein-
stated in a timely fashion and consequently wheth-
er employees were entitled to holiday pay, and de-
pended upon the Board's bargaining order being
sustained, we shall dismiss the complaint in its en-
tirety. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' We shall therefore deny Respondent's motion to reopen the record.
In reaching this result we must specifically point out that in the circum-
stances of this case there is no basis for the Administrative Law Judge's
finding that under the doctrine enunciated in The Laidlaw Corporation,
171 NLRB 1366 (1968), Respondent would be liable for its delay in rein-
stating these strikers even if they were determined to be economic rather
than unfair labor practice strikers. Respondent's conduct was neither al-
leged nor litigated as a violation of Laidlaw and the record contains no
evidence upon which to make such a determination.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge:' The
charge in Case 9-CA-14561 was filed on November 16,
1979,2 by International Ladies' Garment Workers Union,
AFL-CIO, herein called the Charging Party or Union,
against Case, Inc., herein called the Company or Re-
spondent, alleging that Respondent had violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act, by refusing to reinstate
unfair labor practice (ULP) strikers following their un-
conditional offer to return to work. That charge was
amended on December 11 to specify individuals who
had, as of that time, not been reemployed by Respond-
ent.
The Regional Director issued a complaint in that case
on December 13 alleging that the Union represented a
production and maintenance (P & M) unit at Respond-
ent's Olive Hill, Kentucky, plant and that the Board had
t During the hearing in this matter, on motion. Case 9-CA-15360(1)
was severed and dismissed, and the charge withdrawn by the Union.
a Unless specified otherwise, the events in this matter took place
during 1979.
102
CASE, INC.
ordered Respondent to bargain with the Union for that
unit in its Decision at 237 NLRB 798 (1978). The com-
plaint stated that Respondent continued to refuse to bar-
gain with the Union and had unilaterally issued and im-
plemented piece rates for work on chemical garments
and attempted to negotiate directly with its employees
concerning wages and other terms and condition of em-
ployment, and that the employees had engaged in a ULP
strike beginning on February 20 which continued until
October 26, when an unconditional offer to return to
work was made by the Union on the Union on the strik-
ers' behalf.
The charge in Case 9-CA-14862 was filed by the
Union against Respondent on February 6, 1980, alleging,
among other things, that Respondent had not returned
certain of the strikers to work and had failed to pay
them holiday pay because they engaged in the strike. On
March 18, 1980, the Regional Director issued an order
consolidating cases, amended consolidated complaint and
notice of hearing, consolidating the two cases above and
alleging that the Union's October 26 telegram offering
unconditional return by the strikers was clarified by a
union telegram on October 30 and that on and after that
date Respondent had failed and refused to reinstate the
employees listed in Appendix A to the complaint and re-
fused to pay the employees in Appendix B their holiday
and Christmas pay, all because the employees had en-
gaged in a ULP strike and concerted activities.
The charge in Case 9-CA-16360 was filed on May 23,
1980, and, as noted in the footnote supra, was withdrawn
during the hearing.
Respondent filed timely answers in Case 9-CA-14561
and to the consolidated complaint, which admitted the
jurisdictional and commerce allegations, the status of the
Union, and that Gene Case is Respondent's president and
a supervisor, but denied the appropriateness of the P &
M unit and that the Union represented a majority of its
employees. Respondent agreed that it had refused to bar-
gain and that certain of its employees engaged in a strike,
but denied that the strike was caused or prolonged by its
unfair labor practices and denied the remaining allega-
tions of the complaint.
The principal questions to be answered are whether
the strike was caused in whole or part by Respondent's
unfair labor practices, and if so, whether the offer to
return was unconditional and when that was made clear
to Respondent and, lastly, whether there was an obliga-
tion on Respondent to pay holiday pay to its returned
employees. I have concluded that the strike was caused
in part by Respondent's unfair labor practices and that
the Union, on October 30, made clear to Respondent
that the offer of the strikers to return to work was un-
conditional and that they should have been reinstated
within 5 days. Therefore, all returning strikers should
have been reinstated by November 5 and would have
been eligible for December and January holiday pay. Re-
spondent raised a secondary issue as to whether all of the
employees who did not work during the strike were
strikers, and I have determined that all of the employees
who did not work for Respondent during the period of
the strike and were not shown on Respondent's records
as voluntary quits or dismissals are to be considered
strikers for whom an offer to return was made by the
Union.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Grayson, Kentucky, on August 19,
1980. Briefs from Respondent, the Union, and the Gener-
al Counsel have been carefully considered.
On the entire record in this case, including the exhibits
and testimony, and noting the stipulations and uncontra-
dicted testimony, and on my evaluation of the reliability
of witnesses based on the evidence and their demeanor, I
make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Case, Inc., is a Kentucky corporation engaged in the
manufacture of wearing apparel at its Olive Hill, Ken-
tucky, plant. During the past year Respondent sold and
shipped, directly to points outside of Kentucky, goods,
materials, and products valued in excess of $50,000.
Respondent admits, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Sections 2(6) and (7) of the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5)
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
In a previous consolidated proceeding against Re-
spondent and another corporation, a hearing was held in
June 1977 before Administrative Law Judge Claude R.
Wolfe who issued his Decision on November 30 of that
year, Administrative Law Judge Wolfe found that Re-
spondent had violated Section 8(aXl), (3), and (5) of,the
Act and set aside an election, due to Respondent's unfair
labor practices, and entered a bargaining Order. The
Board approved Administrative Law Judge Wolfe's find-
ings in its Decision and Order, 237 NLRB 798, and
found that Respondent's bargaining obligation to the
Union dated from September 15, 1976, on. This Decision
is in the enforcement stage in the United States Court of
Appeals for the Sixth Circuit, herein Sixth Circuit, and
has been argued and is awaiting decision.
The Union filed additional charges against Respondent
in Cases 9-CA-11866, 9-CA-13610, and 9-CA-14234.
The parties entered into a settlement agreement which
was made contingent on enforcement of the prior pro-
ceeding in the Sixth Circuit or to any ruling thereafter
entered by the United States Supreme Court. If the Sixth
Circuit or the Supreme Court denies enforcement of the
bargaining order, the General Counsel agrees to dismiss
the 8(a)(5) allegations in two of the cases in the settle-
ment agreement. If the Board's Order is enforced, Re-
spondent will then comply with the terms of the settle-
ment agreement. The agreement provided it did not
settle the issue of whether the February 20 strike was
caused by unfair labor practices. As part of the settle-
ment, the parties stipulated as follows:
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. On or about February 15, 1979, Case, Inc., unilater-
ally established original piece rates for chemical suits
which had previously been produced by emloyees paid
hourly wages.
2. On or about February 20, 1979, Case, Inc., acting
through its president, Gene Case, dealt directly with its
employees concerning their compensation and other
terms and conditions of employment.
3. On or about February 20, 1979, employees of Case,
Inc., commenced a strike carrying picket signs bearing
the legend "Case on strike-Unfair Labor Practices."
4. The settlement agreements, in Cases 9-CA-11866
and 9-CA-13610 do not resolve, or foreclose litigation
of, any aspect of the unfair labor practice strike issue al-
leged in Case 9-CA-13610, which allegation remains
under active consideration for further processing, and
the General Counsel specifically reserves the right to liti-
gate said issue in any future proceedings.
5. This stipulation is binding upon all parties hereto for
the purpose of the further processing of Cases 9-CA-
13610 and any future proceedings.
Respondent filed charges in Cases 9-CB-4181 and 9-
CB-4241 against the Union alleging strike misconduct of
employees, and the Regional Director issued a complaint
on July 27 alleging conduct by eight named strikers and
some unknown individuals as violative of Section
8(b)(l)(A) of the Act. The parties entered into a settle-
ment stipulation, signed in August and September, pro-
viding that the Union, its officers, and agents would
desist from certain conduct and post a notice with the
further provision that the Order could be enforced by a
circuit court.
The parties agree that a number of employees, general-
ly considered to be 21, left Respondent's premises on
February 20 and set up a picket line at the plant around
4 p.m. with signs saying "Case on strike-Unfair Labor
Practices." They further agree that about half or 125 of
Respondent's 250 employees did not work during the
strike.
Respondent stipulated that it did not reinstate any
strikers within 5 days of October 30, 1979, and further
had not reinstated any strikers within 5 days of Novem-
ber 16, 1979, because, as Respondent counsel stated
during the hearing, "I'm not conceding there ever was
an unconditional offer, to the extent any offer was made,
it certainly couldn't have been made before November
16."
In regard to holiday pay, Respondent has rules that an
employee must be employed 30 days prior to the date of
any holiday and work the day before and the day after
to get paid for the holiday. With the exception of two
employees listed in Appendix B to the complaint, none
of those employees received any holiday pay, indicating
that they were reinstated, presumably sometime in De-
cember or thereafter, and did not receive any holiday
pay on the basis of Respondent's interpretation of its
rules. Respondent took the position that after employees
were out of work for 3 months that they would have to
requalify by working 30 days before holiday pay could
be granted.
B. The Events of February 19, 20, and 21
There is no denial of the testimony of several employ-
ees that around 3 p.m., February 19, shortly before quit-
ting time, Respondent posted piece rates to become ef-
fective the next day for a line of chemical clothing it was
manufacturing. Prior to that time the employees had
been paid on a straight hourly rate. According to the
employees, there was some discussion of those rates at
that time and again on the following morning.
Sina Yonts, who was one of the employee union lead-
ers in the plant, testified that a number of employees
talked to her the following morning before the shift
started, complaining that the posted rates were too low
and production quotas too high, and they wanted to
know if the Union and the Company had bargained
about those rates before Gene Case set them. Yonts did
not work in the area where the chemical garments were
being made but was an inspector in another unit. She
called J. Lavine who was the director of organizers for
the Union and told him that the employees had com-
plained to her that they were dissatisfied with the rates,
that the chemical garments were giving them rashes, and
that they wanted to know if Respondent and the Union
had bargained about those rates before they had been set
by Case. Lavine said there had been no bargaining be-
tween the Union and the Company and, to her question
as to whether they could strike about it, advised that
they could strike due to the fact that the Union had not
been contacted and the Company had unilaterally made
and posted the rates and that such a strike would be an
unfair labor practice strike.
Yonts met with a group of employees during lunch-
time and told them what Lavine had said about their
being able to strike because of the unfair labor practices.
Although some of the employees could not recall exactly
what Yonts said, there is no denial of it and the fact that
the picket signs carried a legend would tend to corrobo-
rate that she had so told the employees. They talked
among themselves and agreed that, after they went back
to work at noon, anyone who wished to strike would
stand up at 12:30 p.m. and walk out of the plant. She
stated that just before 12:30 p.m. Gene Case came out
into the plant and motioned one of the two groups who
worked on the chemical garments to go to the break
room.
Ambus Henderson testified that she was in the group
that went first and that Case told them some of the rates
might have to be adjusted but he would work with them
and get them right. Some of the employees asked about
the abrasiveness of the cloth and the rates, and after
about 20 minutes they were told to back to work. An-
other employee, Patricia Burchett, said that she was.in
one of the groups and that, after Case said he knew there
were some problems with the rates and they would
straighten them out if they worked with him, he told
them to go back to their machines and behave them-
selves. Burchett said the word was passed around among
the employees that if they still wanted to strike, they
should stand up at 2:30 p.m. and walk out.
Yonts stated that at 2:30 p.m. a number of employees
stood up and started to walk out and at that time Case
104
CASE, INC.
came into the plant with a camera and started to take
pictures. Twenty-one employees clocked out and left the
plant. At that time, according to Henderson, after Case
had taken some pictures of those who were walking out,
some of the employees who had been standing sat down.
Case went to the timeclock, pulled the cards of those
who had clocked out, and said loud enough for her to
hear that those who had walked out were fired. Another
of the employee union leaders named Benyon went
around to some of the employees and cautioned them not
to walk out at that time.
Mary Buckler stated that she worked until about 3
o'clock and left the plant after she got a message that her
son was injured and when she came back to the plant the
next day she joined the picket line.
As noted above, it was stipulated that the pickets car-
ried signs that said, "Case on strike-Unfair Labor Prac-
tices." Yonts testified that when the employees left the
plant on February 20 they made these signs on the park-
ing lot and started carrying them and picketing when the
shift left the plant at 4 p.m.
Gene Case was called under Section 61 l(c) of the Fed-
eral Rules of Procedure and testified that he had noticed
a group meeting in the parking lot on February 20 as he
returned from lunch. He stated that he did talk to em-
ployees that day and there was some discussion of piece
rates. He told the employees that if adjustments were
needed in the pay rate they would do so. He further tes-
tified that on the following day, February 21, only about
50 percent of the employees reported to work. In re-
sponse to questions by Respondent counsel, Case said
that he could not recall any particular persons on the
picket line other than some few that he named and stated
that no one wrote to Respondent and said they were on
strike. He admitted he did not know all of the strikers
who were listed in Appendix A of the complaint and he
could not say they were on the picket line or not or if
they were on strike or not.
The strike continued into October and, on October 26,
the Union sent a mailgram to Gene Case at the Company
as follows:
THE ILGWU ITS UPPER SOUTH DEPARTMENT, ON
BEHALF OF ALL STRIKING EMPLOYEES OF CASE INC,
HEREBY OFFER UNCONDITIONALLY TO RETURN TO
WORK FORTHWITH. THIS OFFER IS A CONTINUING
ONE. PLEASE NOTIFY THESE EMPLOYEES AND ALL
OTHER STRIKERS WHEN THEY SHOULD REPORT TO
WORK AND SEND US A COPY THEREOF.
The mailgram which was received by Respondent had
the word "conditional" in place of "continuing." On Oc-
tober 29, Respondent counsel sent a telegram to counsel
for the Union as follows:
YOUR RECENT COMMUNICATION ADDRESSED TO THE
ABOVED NAME HAS BEEN REFERRED TO US FOR RE-
SPONSE. PLEASE FURNISH US WITH THE FOLLOWING
INFORMATION IMMEDIATELY SO THAT YOUR COM-
MUNICATION CAN PROPERLY BE RESPONDED TO AND
APPROPRIATE STEPS TAKEN:
1. YOU STATE THAT THE EMPLOYEES UNCONDITION-
ALLY OFFER TO RETURN BUT THAT THE OFFER IS A
CONDITIONAL ONE. PLEASE CLARIFY AND SET FORTH
THE CONDITION.
2. PLEASE SET FORTH THE NAMES, CURRENT AD-
DRESSES AND TELEPHONE NUMBERS OF THE STRIK-
ING EMPLOYEES WHO ARE PREPARED TO RETURN TO
WORK AND THE DATE EACH IS ACTUALI Y PRE-
PARED TO RETURN. THIS INFORMATION IS ESSENTIAL
IN AS MUCH AS WE DO NOT HAVE A LIST OF ALL
EMPLOYEES WHO ACTUALLY WENT ON STRIKE AND
AS TO SOME STRIKERS WE HAVE INFORMATION THAT
THEY ARE IN FACT NOT INTERESTED IN RETURNING
TO WORK AT CASE INC.
3. WHAT ASSURANCE CAN YOU GIVE THAT THE
OFFER DOES NOT REPRESENT ANYTHING MORE THAN
A TEMPORARY BRAKE [SIC] IN THE STRIKE. SPECIFI-
CALLY CAN THE EMPLOYER BE ASSURED THAT THE
EMPLOYEES ONCE RETURNING WILL NOT IMMEDI-
ATELY OR SHORTLY THEREAFTER STRIKE AGAIN.
YOUR IMMEDIATE RESPONSE WILL BE GRATELY [SIC]
APPRECIATED.
The Union responded on October 30 with the following
mailgram:
WE HAVE RECEIVED YOUR MAILGRAM OF OCTOBER
24. 1. THE OFFER IS UNCONDITIONAL. 2. MANY
FORMER STRIKERS HAVE ALREADY MADE OFFERS IN
PERSON TO RETURN TO WORK AND HAVE GIVEN
YOU THEIR ADDRESSES AND TELEPHONE NUMBERS.
YOU KNOW BETTER THAN WE THE NAMES ADDRESS-
ES AND TELEPHONE NUMBERS OF YOUR EMPLOYEES.
TO OUR KNOWLEDGE THEY ARE PREPARED TO
RETURN TO WORK NOW OR UPON REASONABLE NO-
TIFICATION. 3. THIS IS NOT A TEMPORARY BRAKE IN
THE STRIKE.
Respondent's counsel thereafter sent a letter to counsel
for the Union questioning whether there was an error in
the first telegram and noted that the Union did not give
Respondent the names, addresses, and telephone numbers
of the strikers and asked for more information concern-
ing those two items. Nothing was stated in the letter
about the erroneous date in the Union's second telegram
which should have been October 29 rather than October
24. The Union's counsel replied on November 5, again
stating that the offer to return was unconditional and en-
closing a copy of the Union's original telegram with the
word "continuing" rather than "conditional" in it. On
November 7, in another letter to the Union's counsel,
Respondent's counsel stated they still had not resolved
whether the communication was a conditional or uncon-
ditional offer and that a few of the employees who had
left since February had personally requested reemploy-
ment and that Respondent would consider that those
were the only employees who desired reemployment.
On November 13, union counsel wrote to Respondent
counsel stating that Respondent's assumption concerning
the strikers wishing to be reemployed was incorrect and
there was no legal requirement that strikers make an ap-
plication since they were unfair labor practice strikers
who had unconditionally offered to return. The letter
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further stated that the telegram which was telephoned in
and sent on October 26 used the word "continuing"
rather than "conditional" and repeated once again that
the offer to return was unconditional, as the Union
placed in the October 26 and again in the October 30
mailgrams.
C. The Contention of the Parties
Respondent disputes that the strike was an unfair labor
practice strike on two bases. First, it urged that some of
the General Counsel's witnesses were unhappy with the
rates and if the rates Gene Case posted had been accept-
able to the employees they might not have struck be-
cause of Respondent's unilateral action. Respondent addi-
tionally attempts to impeach the credibility of Yonts,
who testified to the ULP genus of the strike, on the basis
that the Regional Director dismissed a charge filed on
her behalf because she allegedly was involved in some
strike misconduct, and her having been named, but not
indicted, in an indictment naming eight other strikers
that "The Board" considered her neither objective nor
trustworthy. This bootstrapping attack has nothing to do
with the credibility of Yonts and her testimony concern-.
ing her talk with Union Organizer Lavine and discussion
with the employees.
The fact that the General Counsel decided not to issue
a complaint seeking Yonts' reinstatement has nothing to
do with her credibility, and Respondent had not shown
in any manner that it would impeach her. Being named,
but not as a defendant, in an indictment produces noth-
ing in regard to the credibility of the person, as Re-
spondent counsel well knows. Whether such actions may
have produced a bias is problematical, but here external
facts corroborate Yonts.
Yonts stated she checked with the Union to see if the
Company had bargaining with the Union about the rates
because the employees considered them very low and
the production requirement too high. Respondent claims
this is implausible, but it would appear to be perfectly
plausible. The employees would want to know if the
Union had agreed to the setting of these low rates and
high production requirements.
Respondent claims that there was no strike when the
Company took other unilateral action, but this is not a
reasonable test as to whether the strike at this time was
caused, at least in part, by Respondent's unilateral action.
Here the duty to bargain had been established, according
to the Board, over 2-1/2 years prior to this unilateral
action. I would think it reasonable that, if the Company
had posted rates of an astronomical figure where em-
ployees would make a lot of money, the employees
might not have been interested in striking. But here there
was a combination of things to motivate them. The fact
is that they felt the rate were too low and they wanted
Yonts to find out whether there had been negotiations on
those rates, and this testimony is undenied. That some of
the employees who attended the meeting did not remem-
ber everything that was said does not detract from
Yonts' testimony. Indeed the establishment of the picket
line with the signs prepared by the employees stating it
was a ULP strike corroborates her testimony rather con-
clusively. I credit Yonts' testimony.
Secondly, Respondent attacks the nature of the strike
on the basis that it has a Laura Modes defense due to
picket line violence and that it does not admit it has a
duty to bargain with the Union based to some extent on
this Laura Modes defense. [Herbert Bernstein, Alan Bern-
stein, Laura Bernstein, a co-partnership d/b/a Laura
Modes Company, 144 NLRB 1592 (1963).] Respondent
reasons that there can be no unfair labor practice strike
based on a claim of 8(a)(5) unilateral action if it had no
duty to bargain with the Union. In essence, its defense
here, as was its defense in the stipulated settled cases re-
ferred to supra, is based on its denial of a duty to bargain
with the Union.
The present law of this case is the Board's Decision
and Order in 237 NLRB 798 that Respondent has a duty
to bargain with the Union and therefore, where the
strike was partially based on Respondent's unilateral
action in posting rates which Respondent's employees
felt were too low, this strike was an unfair labor practice
strike with a consequent duty on Respondent to reinstate
the strikers within 5 days of their unconditional offer to
return (October 30), and I so conclude and find. Since it
is stipulated that Respondent did not reinstate any of the
strikers within 5 days of October 30, I find that Re-
spondent violated Section 8(a)(l) and (3) of the Act and
will recommend that Respondent make the strikers
whole by paying them backpay commencing on Novem-
ber 5, 1979.
The General Counsel and the Union contend that the
first telegram was proper and stated an unconditional
offer to return and that Western Union had erred and in-
serted "conditional" for "continuing." They say that, if
the unconditionality of the offer was not clear because of
that error, certainly it was made clear to Respondent by
the telegram of October 30 which seriatim answered Re-
spondent's questions in its October 29 telegram and said
the offer was unconditional.
Respondent states that it never sent an October 24
telegram to which the October 30 telegram was a pur-
ported reply and that it had two conflicting telegrams
from the Union and did not know whether the offer to
return was conditional or unconditional. It is apparent
that the Union did not know of Western Union's trans-
mission errors.
In reviewing Respondent's October 29 telegram and
the Union's October 30 telegram, it is clear that the
Union's telegram was a direct reply to Respondent's tele-
gram in the particulars requested by Respondent. For ex-
ample, Respondent said, "You state that the employees
unconditionally offered to return but that the offer is a
conditional one. Please clarify and set forth the condi-
tions." The Union's answer is, "The offer is uncondition-
al," which would appear to leave no room for misinter-
pretation and to deny there were any conditions. Re-
spondent's belated argument that the Union's telegram
referred to an October 24 telegram from Respondent is
frivolous, since it is clear from the content of the two
telegrams that the Union's October 30 telegram is a
direct point-by-point response to Respondent's October
29 telegram and that the October 24 date must be a cleri-
cal error.
106
CASE, INC.
I find and conclude that the October 30 telegram made
it clear that the Union's offer for the strikers to return to
work was unconditional but that Respondent, instead of
acting on it, engaged in dilatory tactics attempting to ob-
fuscate the situation. I further find and conclude, as the
stipulation provides, that Respondent did not reinstate
the employees by November 5 and therefore violated
Section 8(a)(1) and (3) of the Act. By such inaction in
not timely reinstating the strikers, and then enforcing its
30-day rule on holiday pay, Respondent unfairly euchred
its strikers out of their December and January holiday
pay. Respondent did not offer any reasons, other than
saying it had not received a proper unconditional offer
for all strikers to return, for not reinstating the strikers
before sometime in December or January. Therefore
backpay, including holiday pay, will be ordered for all
strikers beginning November 5, 1979, until they were
properly reinstated.
Even if the returning strikers did not work either the
day before or the day after the holiday or both, they are
still entitled to the holiday pay since Respondent's dila-
tory reinstatement of them may have removed the impe-
tus from returned strikers to work those days. There is
no basis for Respondent's argument that it is entitled to
have the Union tell it the names, addresses, and tele-
phone numbers of the strikers. The Union has fulfilled its
obligation to Respondent and its duty on behalf of the
strikers when it makes and communicates to the Employ-
er an unconditional offer of the strikers to return to
work. Employees who did not work during the strike are
presumed to be strikers. In this case the undenied inhibit-
ing, flagrant actions of Gene Case in photographing the
strikers in the plant and stating that those who left were
discharged is sufficent reason to demonstrate why other
employees did not walk out on February 20. Conse-
quently, Respondent's professed lack of knowledge con-
cerning the status of employees who did not work
during the strike was generated by Gene Case's actions.
Respondent sought to place the burden on the General
Counsel and the Union to prove which, if not all the em-
ployees who did not work during the strike, were sup-
porting the strike or were strikers. The Board has estab-
lished the presumption to be that all employees who do
not work during a strike are strikers and that Respondent
may rebut that presumption by proving that employees
quit, resigned, or took other permanent jobs demonstrat-
ing that they abandoned Respondent's employment. This
Respondent here did not attempt to do so. Apparently
Respondent confuses the term "strikers" with "pickets."
It is not necessary for a striker to picket in order to
retain his striker's status, since a striker is one who with-
holds his labor from his employer. All persons who did
not work during the strike and who did not quit or
resign their employment status are strikers, and I so find.
Assuming, arguendo, that this was not an unfair labor
practice strike, I would find that, under the circum-
stances of this case, Respondent would still have a liabili-
ty to the strikers because it delayed their reinstatement
following an unconditional offer to return. Under the
Board's Laidlaw doctrine economic strikers have a right
to their former positions if they are not held by perma-
nent replacement. [The Laidlaw Corporation, 171 NLRB
1366 (1968).]
Respondent resisted attempts to determine when the
reinstatements here were made but did stipulated that it
was not before November 21. Since those listed on Ap-
pendix B to the complaint did not receive Christmas or
New Year's holiday pay, it would appear that reinstate-
ments did not occur until December or later. Since Re-
spondent had given no reasons other than its stated de-
fenses for not reinstating the strikers shoftly after the un-
conditional offer was made (October 30), I would find
that Respondent was dilatory in effectuating he reinstate-
ments and that it violated Section 8(a)() and (3) of the
Act thereby. In the at event, I would order backpay to
begin for the employees on November 5, 1979, until they
were properly reinstated, and any reinstatement ques-
tions could be resolved through a backpay proceeding.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II
and therein found to constitute unfair labor practices in
violation of Section 8(aXl) and (3) of the Act, occurring
in connection with Respondent's business operations, as
set forth in section I, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the strikers were engaged in an
unfair labor practice strike and that the Union made an
unconditional offer to return to work on the strikers'
behalf and that said offer was made clear to Respondent
on October 30, 1979, and that Respondent did not rein-
state strikers until some date following November 21,
1979, but that all strikers were offered reinstatement
thereafter, I recommend that Respondent make all of the
strikers listed in Appendixes A and B of the amended
consolidated complaint whole for the earnings they lost
because of Respondent's dilatory and delayed reinstate-
ment of them, by payment to them of a sum equal to that
which each would have normally received as wages
from November 5, 1979, until each of them was fully re-
instated including payment of the December and January
holiday pay, less any net earnings for the interim. Back-
pay, plus interest, is to be computed on a quarterly basis
in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). s I further recommend that Respond-
ent make available to the Board, upon request, payroll
and other records in order to faciliate checking the
amounts of backpay due them and other rights they
might be entitled to receive.
s See, generally, Isis Plumbing & Heating Ca. 138 NLRB 716 (1962).
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. A number of Respondent's employees engaged in an
unfair labor practice strike from February 20 to October
26, 1979, and the Union made clear that the offer of the
strikers to return to work was unconditional in its Octo-
ber 30, 1979, communication with Respondent.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by its dilatory and delayed reinstatement of its unfair
labor practice strikers because they engaged in union and
concerted activities among themselves and with other
employees for the purposes of mutual aid and protection.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by failing and refusing to pay its strikers December
and January holiday pay because it discriminatorily and
without sufficient reason delayed the strikers' reinstate-
ment.
[Recommended Order for dismissal omitted from pub-
lication.]
108