Arlington Hotel Co., Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1984

273 N.L.R.B. 210 (N.L.R.B. 1984)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arlington Hotel Company, Inc. and International
Ladies' Garment Workers' - Union, AFL-CIO.
Cases 26-CA-8974 and 26-CA-9024
12 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 9 August 1982 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
Respondent and the General Counsel each filed ex-
ceptions and supporting briefs, and the Charging
Party filed a brief in opposition to the Respond-
ent's exceptions.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light• of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified and to adopt the recom-
mended Order as modified.3
The judge found that the Respondent violated
Section 8(a)(1) and (3) of the Act by implementing
a striker recall policy which restricted the recall of
strikers to their prestrike positions and resulted in
the preferential hiring of new employees in jobs
which, the parties stipulated, the unrecalled strikers
were qualified to perform. Inasmuch as valid busi-
ness considerations might well justify such restric-
tive recall measures, our affirmance of the judge's
above findings rests on the evidence of record
which belies any possible business justification for
the Respondent's recall procedure here.
The judge found there is ample evidence of the
Respondent's avowed policy favoring cross-train-
ing and multiple capabilities for all hotel employ-
ees. The record evidence concerning the Respond-
ent's past transfers—of a painter to dishwasher to
houseman; houseman to hotel trainee; bar porter to
furniture refinisher; bartender to room service man-
ager—serves to establish the disparateness of pro-
mulgating those jobs as separate work functions for
purposes of recalling economic strikers who have
made unconditional applications for reinstatement.
A further illustration of the Respondent's inconsist-
ency vis-a-vis employment and recall policy is
Respondent has requested oral argument This request is hereby
dented as the record, the exceptions, and the briefs adequately present the
Issues and the positions of the parties
2 In the absence of specific exceptions thereto, we adopt pro forma the
Judge's finding that the Respondent violated Sec 8(a)(1) and (3) of the
Act by refusing to reinstate striker Aretha Collins
3 We have concluded that a broad remedial order is inapposite and we
have substituted the narrow injunctive language See IfIckmott Foods, 242
NLRB 1357 (1979)
shown by the separate grouping of Dining Room
PM and Dining Room AM on the recall document
despite the lack of evidence that the Respondent
ever classified new dining room hires as PM or
AM. Accordingly, for the above reasons and the
total absence of evidence of any business justifica-
tion for the recall procedure utilized by the Re-
spondent, we affirm the judge's finding that the
Respondent violated Section 8(a)(1) and (3) of the
Act.4
ORDER
The National Labor Relations Board adopts the
Order of the administrative law judge as modified
below and orders that the Respondent, Arlington
Hotel Company, Inc., Hot Springs, Arkansas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
4 We are unable, due to the absence of striker seniority dates, to pass
on the accuracy of the respective strikers' recall dates as found by the
Judge We will accordingly refer the matter to the compliance stage of
this proceeding
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminate against striking em-
ployees who have applied for reinstatement at a
time when their former positions were occupied by
replacement employees by refusing to offer each
reemployment to an existing vacancy.
WE WILL NOT give job preference to newly
hired employees over our returning striker employ-
ees.
WE WILL NOT give job preference to striker re-
placement employees over our returning striker
employees.
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.
273 NLRB No. 35
ARLINGTON HOTEL CO 211
WE WILL offer each striker against whom we
-have found to have been discriminated full and im-
mediate reinstatement to his or her former job or,
if that job no longer exists, to a substantially equiv-
alent position of employment without prejudice to
his or her seniority or other rights and privileges
previously enjoyed; and WE WILL make each strik-
er whole for any loss of pay suffered as a result of
the discrimination against her or him, with interest.
ARLINGTON HOTEL COMPANY, IN-
CORPORATED
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge This
case was tried before me on December 9, 10, and 11,
1981, in Hot Springs, Arkansas, based on amended
charges filed by International Ladies' Garment Workers'
Union, AFL-CIO (the Union) . on March 23 and April
22, 1981, and a complaint issued by the Regional Direc-
tor for Region 26 of the National Labor Relations Board
on May 29, 1981 1 The complaint alleges that Arlington
- Hotel Company, - Inc. (Respondent) violated Section
8(a)(1) and (3) of the Act by refusing to reinstate eco-
nomic strikers to their former positions or substantially
equivalent positions after the strikers, made an uncondi-
. tional offer to return to work. Respondent's timely
answer denied the commission of any unfair labor prac-
tices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to ,intro-
duce evidence, and to argue orally. Briefs Were submit-
ted by the- General Counsel, Respondent, and the Union.
All briefs were duly considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following2
FINDINGS OF FACT•
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I- find
that Arlington Hotel Company, Inc. is an Arkansas cor-
poration engaged- in the operation of a nonresidential
hotel in Hot Springs, `Arkansas. Jurisdiction is not in
issue. Arlington Hotel Company, Inc. annually in the
course ' and conduct of its - business operations derives
gross revenues in excess of $500,000 and purchases and
receives at its Hot Springs, Arkansas facility goods and
materials valued in excess of $50,000 directly from points
located outside the State of Arkansas. I conclude and
find that Arlington Hotel Company, Inc. is an employer
All dates herein are in 1981 unless otherwise indicated
I Jt Exhs 1 and 2 are received Into the record
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
The complaint alleges, Respondent admits, and I con-
clude and find that the Umon is a labor organization
within the meaning of Section 2(5) of the Act
II. OVERVIEW3
Respondent operates a resort hotel in Hot Springs, Ar-
kansas throughout the year. Besides the horse race
season, there is tourism and visitations to the natural
spring baths. General Manager Horst Fischer came to
the hotel during the winter of 1979 It was his function
as general manager to revitalize an ailing facility. He
proceeded to upgrade the services of the facility to a
first-class establishment for guests Included in Fischer's
renovations were a new chef and reorganization of the
various functions such as food, beverage, and specialty
preparations and the service facilities to dispense the
products. As a result of the changes, a gourmet dining
room was added to the hotel. By the fall of 1980 the
changes were well in place and the hotel was functioning
as a first-class resort under the guidance of Fischer. The
horse race reason runs from February 5 to April 11 an-
nually and the 1981 season brought over 1000 guests to
the hotel. Fishcer's expectations were to maintain 99-per-
cent 'occupancy. The race season is one of the busiest
times for the hotel and the 81 season was interrupted by
a strike called by the Union Fischer was notified of, the
impending strike on March 12 by an official of the
Union. The following morning approximately 66 employ-
ees did not report for work. Respondent began hiring re-
placement employees to carry on its business. After the
strike Respondent began recalling the striking employees
it considered eligible for reinstatement.
III THE ALLEGED UNFAIR LABOR PRACTICES
A Strike's End, Offer to Return; Recall Procedure
" The uncontroverted and/or corroborated evidence in
' the record discloses the following-
The strike which began on the morning of March 13
ended at 5 p.m on March 16 when the Union sent. Re-
spondent a telegram. The telegram reads
On behalf of all striking employees we hereby apply
unconditionally for reinstatement to their old posi-
tions and/or their maximum employment rights
under the law.
On March 17 the striking employees returned individ-
ually and presented Respondent's management with a
form letter which reads:
I hereby apply unconditionally for my old job back,
or if my old job is not available, my maximum em-
ployment rights under the law. Please consider this
a continuing application for employment.
3 The facts necessary to resolve the issues in this case are largely un-
disputed Several fact Issues Involving conduct of individual employees
will be determined as they arise
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent ceased hiring replacements on March 16
and devised a recall system to implement the placement
of returning strikers. Fischer had prepared a list from in-
formation supplied by department heads detailing all em-
ployees who had not repotted for working during the
strike to enable Respondent to determine who had to be
replaced during the strike. This list plus a list of employ-
ees- hired as replacements formed the basis for the recall
system on March 16. All jobs in the hotel which includ-
ed striking employees were grouped into categories and
structured as the striking employees' former positions
and substantially equivalent positions. All striking em-
ployees were listed by seniority within each category
and any vacancies existing in any category were filled by
the most senior striker who held that vacant position
before the stnke. On this basis 31 strikers were reinstated
to their former positions. .All remaining strikers were
considered by Respondent to be permanently replaced.
Any vacancy arising in any category of the recall list
was filled by the most senior replaced striker who had
occupied the position before the strike. All other vacan-
cies occurring in the hotel were filled by newly_ hired
employees without any consideration being given to
striking employees awaiting return to work. Fischer
stated that it was indicated to him very plainly that the
strikers wanted their jobs back and there was just no
other way to call them back except to their old job. For
whatever reason, Fischer established the policy that
striking employees would only be recalled to their spe-
cific prestrike job Fischer also stated that he did not
consider any striking employees' work history in the
hotel or any -past experience in classification of work
other than the employee's prestrike classification when
recalling replaced strikers
As a result of Respondent's devised recall system and
its policy to only recall strikers for vacancies in their
specific prestrike position, 25 striking employees were
not recalled to work. The 25 were composed of 5 maids,
1 floor supervisor in housekeeping, 1 evening waitress in
the Venetian dining room, 4 morning waitresses in the
Venetian dining room, 1 garde-manger, 1 room service
waiter, 4 cashiers, 2 bellmen, 3 banquet employees, 1
maintenance man, 1 furniture refinisher, and 1 carpenter.
The five maids were grouped for recall as housekeeping-
maids-permanent. 4 Ann Pascoe, the floor supervisor, was
grouped separately under housekeeping. The dining
room bus help grouping was divided between busman,
p.m. waitresses, -and a.m. waitresses with only the- Vene-
tian dining room represented. 5 The kitchen group was
divided into cooks, pantry, pantry temporary, stewards,
and garde-manger, naming Frank Avant as the incum-
bent. Room service was a separate grouping showing
Richard Alexander as the only striker Cashiers were
grouped as permanent and temporary with Bertha Wel-
helmi and Linda Portwood as permanent and Freida
Wallace and _Gloria Morse as temporary. Frank Jones
and Nathan Dendy were grouped as bell stand: Three
4 Aretha Collins, Betty Omans, Joyce Richardson, Wanda Morgan,
and Mary Willis
5 Waitresses—p m, Helen Lloyd, a m, Violet Doll, Debbie Mauldin,
Marie Halpam, and Maggie Brundage
employees, Barbara Dooley, Rita Taylor and- Lillie
Boone were grouped under the heading banquet. The
engine room was represented by separate groupings:
maintenance, naming Monte Cales, furniture, naming
Wade Ashburry; carpenter, naming Leroy _Doll. Other
groupings contained striking employees who were
among the 31 recalled immediately or the 10 . recalled
within several weeks The striking employees who were
denied immediate recall were, according to Respondent,
either not needed to carry on its business at- strikes end
or had been replaced permanently by an employee hired
during the strike with the following exceptions: Aretha
,Collins, maid, denied recall due to strike misconduct;
Mane Halpain, a.m. waitress, denied recall due to outside
employment; Frank Avant, garde-manger, denied recall
due to abolishment of his position; and Freida Wallace,
cashier, who could not be located by Respondent for
recall. Excluding the two bellmen, Respondent recalled
all other strikers eligible for recall before the case came
on for trial.
The record evidence shows that housekeeping maids
Omans, Richardson, Morgan, and Willis were recalled
on May 7. Floor Supervisor, Pascoe wis recalled on
September 4. Waitress Lloyd was recalled on April 23
and waitresses Doll, Mauldin, and Brundage were re-
called August 5. Room service waiter Alexander was re-
called April 29. Of the cashiers; Welhelmi was recalled
July 2, Portwood was recalled September 8, and Morse
was recalled October 12. Banquet waitresses Taylor,
Dooley, and Boone were reinstated to the banquet call
list on July 3. Engine room strikers were recalled as fol-
lows: maintenance, Cales on August 20; furniture, Ash-
berry , on September 8, and Carpenter, Leroy Doll on
October 27.
General Counsel's Exhibit 4 is the compilation made
by Respondent of striking employees and their respective
groupings. Replacement employees hired during the
strike are listed within their respective group to the right
on the exhibit.
B. Ineligible for:Recall
Aretha Collins was denied recall because Fischer iden-
tified her as making a threat to a nonstriking employee.
Fischer testified that he had feedback on March 13 that
an employee was somehow threatened. Fischer had the
non-striking employee brought to his office. The employ-
ee, Angela Brown, was interviewed by Fischer and his
attorney Fischer stated that Brown related an incident in
the hotel lobby where four or five maids, as they walked
through the lobby, said to Brown, "We're going to beat
the fat off you after work tonight." Brown identified
Aretha Collins as the declarant and said that the state-
ment was directed to her. Brown also named Lois Rich-
ardson and Mary Willis as among the group of maids.
Fischer stated that Brown did not disclose any further
substance of the conversation Fischer said that Brown
was distressed, crying, and upset and afraid to go home
at night now. The hotel saw that she had a cab -that
evening to go home. Fischer and his attorney decided
that Collins was to be denied recall. as a result of the in-
cident without any further investigation
ARLINGTON HOTEL CO 213
Collins testified that she went through the picket line
on Friday, March 13, to get her paycheck accompanied
by four other employees, Johnnie Moore, Joyce and Lois
Richardson, and Lula Mae Buckley. As they walked
through the lobby they saw Angela Brown dusting. Col-
lins said to Brown, "You're down here dusting, and they
are down there picketing. You need a whipping girl"
Brown smiled back at Collins but did not respond. Col-
lins has known Brown for 3 or 4 years since Brown has
worked at the hotel. Brown is the inspectress on the
floor, that Collins worked on as a maid Collins returned
to work on March 18 but was told by Fischer she had
been replaced temporarily and would be recalled in a
month or so by seniority. Fischer did not then, nor since,
say anything to Collins about misconduct during the
strike.
Angela Brown testified that she worked with Collins
both as a maid and a supervisor for a couple of years
When the strike started she was working in the lobby.
As she was heading for an elevator she heard someone
say, "Girl when you get off work we're going to beat
the fat off you." Brown turned around and saw Collins
and several other maid-housekeepers. Brown reported
the incident to her supervisor, who in turn informed
Fischer. Brown stated that she was not upset nor crying
'over the incident when it happened or when she report-
ed it to Fischer. Brown also stated that she and the other
maids, including Collins, joke with one another while in
the hotel.
Marie Halpain was denied recall because she obtained
employment elsewhere during the strike. Halpain had
worked at the hotel as a waitress in the Venetian dining
room for 5 years, 10 months, and 12 days. She went on
strike from March 13 to March' 16. On March 17, she
presented a copy of the union form letter to Fischer.
Halpain testified that Fischer said, "As of now you have
been replaced, but when your job becomes available, you
will be called back." During the strike while the race
season was in full swing, Halpain worked two nights at a
neighborhood steak house replacing a girl who was off
sick on the weekend. On July 22, after her unemploy-
ment ceased, Halpain began working casual at the
Downtowner in Hot Springs. She had no other employ-
ment during the strike or since the strike ended. In Octo-
ber, Halpain contacted Fischer by phone inquiring why
she had not been recalled and stating that she wanted to
return to work. Fischer responded, "Marie, your name
had been erased from the list." Halpain asked why, and
Fischer mentioned something about a steak house. Hal-
pain told Fischer she only filled in for another girl and
Fischer said, "I'll talk to my attorney, and get back to
you." Halpain has not, to date, received any response
from Fischer.
Fischer acknowledged that Halpain returned for work
at strikes end but was not recalled. Fischer learned from
supervisors 2 to 3 weeks after the strike that Halpain was
working in a steak house as a waitress, a job equal to her
former position at the hotel. At this time Fischer in con-
sultation with counsel eliminated Halpam for recall. Sub-
sequent to the decision not to recall Halpain, Fischer was
contacted by Halpain on two occasions Once in the
summer and second in late fall. On the first occasion
Fischer confronted Halpain with the steak house employ-
ment and she stated to Fischer that it was temporary
work during the race season only. Halpain . told Fischer
that the steak house was closed down and she was not
presently working and wanted to return to the hotel
Fischer testified, "She said, 'Why did you not call me
back,' and I said, 'You have another job." Fischer in-
formed counsel of Halpain's circumstances but her re-
moval from the recall list remained extant. During the
second conversation Halpain told Fischer that she was
desperate to go to work but she was not recalled. Other
waitresses who participated in the strike were recalled
and new employees were hired off the street throughout
the summer and fall.
Frank Avant was refused recall because his former po-
sition was abolished prior to the end of the strike. The
uncontroverted evidence in the record shows that Avant
was employed in the mid-1950s In 1977 he was classified
as butcher at $3.40 an hour. In January 1978 he was put
on a salary of $500 biweekly. A year later his salary was
increased to $540 and he was reclassified as assistant
chef. In February 1980 he received a $60 salary increase
but the hotel records show no classification at that time.
Fischer testified that when he assumed the helm in the
fall of 1979 he found kitchen conditions deplorable in
that canned and frozen foods were used exclusively and
he set out to change that. Fischer immediately hired an
executive chef, Paul Healy, demoted the former chef,
Parker, to sous chef, removed Avant from as.sistant chef
to the pantry, and hired two new sous chefs Fischer
found that kitchen employees had certain' titles but did
not necessarily perform the duties of the title Fischer
was particularly concerned about establishing a basic
kitchen first and then getting fancy. Fischer's policy is to
use everyone in the kitchen to do any job especially
during rush times. Fischer himself worked in the kitchen
to get first-hand knowledge of how employees func-
tioned He was not impressed with Avant, particularly in
the area of cooperating with other employees. In mid-
1980 Fischer hired a food and beverage director, Heinz
Graf Polke, to share the responsibilities with chef Healy.
By the fall of 80 Fischer directed chef Healy and Polke
to lower the cost of the kitchen and to improve the effi-
ciency. Polke and chef Healy discussed the kitchen situa-
tion for several months and decided on March 16 to
abolish the position of garde-manger. They jointly made
the decision and Fischer approved the decision. When
Avant offered to return after the strike Fischer told him
his prestrike position of garde-manger had been abolished
and he would not be recalled.
Chef Paul Healy testified that he was employed by Re-
spondent on November 26, 1979 After the prior chef
was demoted and Avant was moved to the pantry, 'Healy
and Fischer decided that Avant's creative abilities would
qualify him to be garde-manger. A garde-manger tradi-
tionally is in charge of cold production in the kitchen,
including salads, hors d'oeuvres, cold hors d'oeuvres, ca-
napes, and some cold meats such as corned beef and
turkey, also makes decorative pieces for buffets, aspics,
ice carvings, cheese mirrors, and cheese trays. Chef
Healy considered Avant a good cook and qualified to
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform as garde-manger albeit he had -difficulty helping
other employees and cooperating with supervision for
extra duties., e.g.,' Avant did not like to do the ice carv-
ings or work extended hours at the hot stone. Nonethe-
less,' Avant performed the tasks of a garde-manger -with-
out incident until October 1980 At this time Avant was
moved to the pantry and assumed additional duties of the
a la carte variety. This move eliminated one pantry em-
ployee and was designed to make the kitchen prepara-
tions more cost effective. Avant functioned in this capac-
ity up to the strike although chef Healy and Polke con-
tinued their review of kitchen procedures to further
eliminate waste and inefficiency. Immediately after New
Years' Day 1981 one of the three sous chefs quit. There-
after, chef Healy discussed with Fischer the need for fur-
ther reductions of personnel in the kitchen to lower cost.
Avant was among the highest paid help in the kitchen
and his productivity was -weighed against cost to the
hotel. Both Healy and Fischer felt a lot of payroll was
tied up in a low production position When Avant chose
to Join the strike chef Healy parceled his duties among
the kitchen employees who were not as busy as they
should have been and on March 15 or 16 made a joint
decision with Polke to close the position of garde-
manger for, economic reasons. Chef Healy, however, had
no intention of terminating Avant as an employee. With
employees out on strike Healy fully realized that the
garde-manger position -was an ,unnecessary luxury. After
-the strike was over the four pantry employees that had
participated were recalled to their former positions. In
addition, after the strike ended chef Healy needed more
help in the kitchen and during the months following the
strike hired 6 pantry employees, 26 stewards, 9 dishwash-
ers, and. 6 cooks. Cooks were hired on March 25, April
27, July 2, August 5, September 11 and 28, and October
28, including a , replacement for an interim cook who had
quit. By August Polke and Healy needed an additional
sous chef at a salary comparable to Avants' so Polke
placed an advertisement in the local paper. The ad was
seeking an experienced sous chef with garde-manger ca-
pabilities. Chef 'Healy. did not consider Avant for any of
the positions that were filled following the 'end of the
strike nor did he consider Avant qualified as a sous chef
Chef Healy testified that Avant was Capable of perform-
, ing the tasks for which he had hired new employees, but
added, "Aren't we reaching the point of asking a brain
surgeon to take out a splinter." Healy stated that Avant
was overqualified even for the cook's positions.
C. Analysis and Conclusions •
The General Counsel's complaint .alleges that the strik-
ing employees on March 16 made, an unconditional offer
to return to their former or substantially equivalent posi-
tions of employment and that Respondent refused to re-
instate or offer to reinstate the named employees to their
former or substantially ,equivalent positions of employ-
ment because the employees engaged in strike activity 6
Respondent's answer denied that the employees of-
fered to return to -substantially equivalent positions and
6 The economic nature of the strike is not in dispute
that the refusal to reinstate or. offer to reinstate the em-
ployees was due to their strike activity.
The issues drawn at the trial of the case center on' Re-
spondent's designed recall procedure and the results of
that procedure. The General Counsel contends that-any
striker who was denied an opportunity to return to work
in a substantially equivalent position prior to recall to ‘a
prestrike position is a discrimifiatee. Respondent con-
tends that the strikers sought only their prestrike posi-
tions expressing no interest in any other positions. With
three exceptions, the opposing contentions cover all 25
striking employees named in the complaint. The circum-
stances surrounding the failure to recall Frank Avant,
Marie Halpain, and Aretha Collins are separate and dis-
tifict.
-At the outset it seems appropriate to note that this is
not a case ,where the employer, ',s, productivity suffered as
a result of the strike (not just because the strike was of
short duration but additionally Respondent basically op-
erated a service organization) nor was there any increase
in business during the strike which necessitated an expan-
sion of services The Union called the strike at the height
of Respondent's busiest season in an obvious _attempt to
strengthen its position as representative of the employees.
Either through miscalculation or lack of support the
strike lasted only 2 days. Admittedly, the timing of the
strike was not lost on Respondent for Fischer opined
that the Union attempted to shut him down at the height
of his busiest , season Neither was the short duration of
the strike any consolation to Respondent for Fischer
viewed the nonstriking employees as loyal employees
who _deserved rewarding treatment from Respondent.
Fischer took his hat off to the employees who worked
during the strike. Respondent had a commitment for 99-
percent occupancy during the race season and the record
shows there was no decline. It was admittedly the busiest
time of the year for the kitchen. Thus, Respondent's ac-
tions during recall of the strikers must be viewed as de-
liberate and in no way qualified by peaks and valleys of
productivity as normally influenced by striker activity.7
-Further support for this view is found in Fischer's testi-
mony detailing how the -recall list was determined and
the basis for that determination, i.e., - each striker was
listed by work function and ,thus confined to a specific
grouping on the recall list. If several work functions
were within the same department of the hotel they were
nevertheless grouped separately.. 8 Respondent further de-
termined, in its own mind, that such grouping was the
only proper basis for recall because the prestrike work
function of each striker was equated with the "only"
substantially equivalent employment. Moreover, Fischer,
admittedly did not consider any striker's past employ-
ment experience in the hotel when faced with filling any
poststrike vacancies, .notwithstanding his avowed policy
The record discloses tliat during the period following the strike new
employees were hired due to factors such as, Increased business, expand-
ed pantry work, heavy banquets, need for extra employees, workload,
race traffic, and heavy business Although five replacements for one strik-
er were hired in the garage the lone striker was still recalled immediately
•8 The strikers were listed in each group according to hotelwide senior-
ity
ARLINGTON HOTEL CO

215
of cross-training and multiple capabilities for all hotel
employees. In effect, Respondent disqualified all strikers
for recall except to their specific. prestrike positions argu-
ing in brief that an employer has no obligation to recall a
permanently replaced striker at strikes end In my view,
Respondent's recall list as designed precludes consider-
ation of an offer to any striker of a position that is sub-
stantially equivalent to his or her prestrike position
Respondent cites many cases quoting selective lan-
guage of the Courts and the Board to support its failure
to recall the named strikers. The General Counsel, in
turn, cites several cases quoting language from the courts
and the Board which is supportive of his complaint alle-
gations. As is sometimes the case both parties can find
solace in the reported cases but such ambivalence must
be resolved. My reading of the cases leads me to con-
clude that Respondent was victimized by conceptualism
and failure to distinguish factual support for the law of
the case Respondent's arguments, as general proposi-
tions, may be accurate when viewed in 'isolation but
when viewed in conjunction with each case's factual cir-
cumstances become less efficacious Respondent's main
case support is Lincoln Hills Nursing Home, 257 NLRB
1145' (1981), cited for the proposition that Respondent
has no obligation to recall a replaced striker to any other
available position for which the striker may be qualified
Respondent further argues that its recall procedure is
identical to that approved by the Board in Lincoln. Suf-
fice it to say that the evidence in Lincoln showed that
recalls were made by seniority as vacancies occurred in
any available position. With regard to Respondent's spe-
cific argument that the respondent .in Lincoln was not ob-
ligated to recall a physical therapist to a nurses aide posi-
tion, the decision clearly shows that the record did not
contain evidence that any prestrike position was avail-
able at strikes end, resulting in a failure of proof on the
part of the General Counsel not an approval of Respond-
ent's conduct Likewise, Respondent's reliance on New
Era Electric, 217 NLRB 477 (1975), is misplaced In New
Era the General Counsel • argued that the respondent
should have recalled a first-class lineman to a second-
class lineman's position that was filled by a new hire
The administrative law judge found that the striker's
status was in question in addition to finding that the
General Counsel was in error in his argument that a
prestrike position was available for the alleged discrimin-
atee which the General Counsel argued placed an obliga-
tion on the respondent to offer the position to the ques-
tionable striker.
In addition to disagreeing with Respondent's argued
case support, I reject the dual premise for structuring the
recall list, i.e , Respondent's only obligation to a return-
ing striker is reinstatement in 'to his prestrike position
and, if the striker's prestrike position is filled with a per-
manent replacement hired during the strike, Respondent
has no further recallobligaiions to the striker unless and
until the permanent replacement leaves 9 In my view,
9 Except for specific instances raised in the record or alluded to in this
decision It is undisputed that the replacement employees hired during the
strike were permanent
••
Respondent has confused its obligations to reinstate re-
turning strikers with the rights of economic strikers who
have unconditionally applied- for reinstatement If an eco-
nomic striker fails to apply unconditionally for reinstate-
ment the employer is free to continue hiring replacement
employees; however, on a striker's unconditional-applica-
tion to return the employer has obligations of reinstate-
ment as a matter of law. Such obligations are not quali-
fied by the language of the , unconditional offer. Respond-
ent's erroneous view of its reinstatement obligations and
the law in this regard is not- a defense. Accordingly, I
reject Respondent's.argument that an economic striker is
only entitled to full reinstatement to his prestrike job.
Further, I reject Respondent's reliance on the failure of
any striker to express an interest in a job other than his
or her prestrike job. Respondent has the obligation to
offer reinstatement to returning strikers and must do so
without discrimination against the returning strikers A
lesser job with less pay and/or reduced benefits may not
be as attractive but it is better than no job at all.. The
cases cited by Respondent make it abundantly clear , that
oftentimes replaced economic strikers are offered lesser
jobs until their prestrike positions become vacant No
cited case stands for the proposition that an employer
can refuse to offer other jobs to the economic strikers
because they have been replaced.
The Board in Zapex Corp, 235 NLRB 1237 (1978),
synthesized rights and duties attendant to reinstatement
of strikers as follows (at 1238).
Certain principles governing the reinstatement
rights of economic strikers are by now well settled
In NL.R.B. v. Fleetwood Trailer Co, Inc , 389 U S
375, 378' (1967), the Supreme Court held that if,
after conclusion of a strike, the employer "refuses
to reinstate- striking employees, the effect is to dis-
courage employees from exercising their rights , to
organize and to strike 'guaranteed by [Sections] 7
and 13 of _the Act . . Accordingly, unless the
- employer who refuses to reinstate strikers can show
that his action was due to 'legitimate and substantial
business justifications,' heis guilty of an unfair labor
practice The burden of proving justification is on
the employer." The Court in Fleetwood relied on its
decision in NL.R.B. v. Great Dane Trailers, , Inc.,
388 U.S. 26, 34 (1967), where it held that "once it
has been proved that the employer engaged in dis-
criminatory conduct which could have adversely
affected employee rights to some extent, the burden
is upon the employer to establish that he was moti-
vated by legitimate objectives since proof of moti-
vation is most accessible to him." In reevaluating
the rights of economic strikers in light of Fleetwood
and Great Dane, the Board in The Laidlaw Corpora-
tion, 171 NLRB 1366, 1369 (1968), stated that:,
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer con-
duct, standing alone, is so inherently destructive
. of employee rights that evidence of specific an-
tiunion motivation is not needed 14 Specifically in
Fleetwood, the Court found that hiring new em-
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'ployees in the face of outstanding applications for
reinstatement from striking employees is pre-
sumptively a violation of the Act, irrespective of
intent unless the employer sustains his burden by
showing legitimate and substantial reasons for his
failure to hire the strikers.
14 See also NLRB v Erie Resustor Corp, 373 US 221 (1963)
Even if a finding of annuniOn motivation is necessary, the employ-
er's preference for strangers over tested and competenent employ-
ees is sufficient basis for inferring such motive, and we, in agree-
ment with the Trial Examiner, would do so if we considered
motive material
In addition the Supreme Court in Fleetwood stated. "If
and when a job for which the striker is qualified be-
comes available, he is entitled to an offer of reinstate-
ment." 389 U.S. at 381. The right can be defeated only if
the employer can show "legitimate and substantial busi-
ness justifications." Obviously, the Court is requiring an
employer to be impartial in hiring for any and all vacan-
cies, particularly when there are outstanding applications
from replaced economic strikers. In.the instant case, with
the exception of three employees, the record evidence
shows that Respondent made a judgment based on the
strikers' written offer to return to work and supported
by the meekest of testimony dealing with attitude of em-
ployees. There was no legitimate and substantial business
justification for preferring newly hired employees over
the returning strikers to fill necessary • vacancies in , the
hotel. Respondent had in the past transferred a painter to
dishwasher to houseman, a houseman -to hotel trainee, a
bar porter to furniture finisher, and a bartender to room
service manager.
Rather than consider striking employees for reinstate-
ment to vacancies occurring after a cessation of strike ac-
tivities Respondent hired new employees. From March
20 'through November 3 (the date Respondent recalled
the last striker) Respondent hired as new employees 14
waitresses, 4 waiters, 44 maids, 2 inspectresses, 16 bar
persons, 1 beverage person, 29 housemen, 2 newsstand
employees, 1 garage employee, 5 repairmen, 1 watch-
man, 1 cashier, 9 restaurant hostesses, 6 pantry employ-
ees, 26 stewards, 9 dishwashers, and 6 cooks During this
entire employment period the strikers were- recalled by
seniority only as vacancies occurred in their prestrike
positions.
It is clear that Repondent's expressed policy of recall
resulted in the discriminatory conduct alleged by the
General Counsel. Moreover, Respondent's implementa-
tion of the recall policy included delayed discrimination
in that Respondent hired new employees rather than
consider the outstanding applications of the strikers
- Respondent argues alternatively that the General
Counsel has not proven a discriminatory _motive for the
recall policy and the resulting failure to reinstate striking
employees. In my view the General Counsel has met his
burden of proving discrimination whether he must prove
motive or not and Respondent has not proffered legiti-
mate and substantial business justifications for refusing to
recall the strikers to various existing positions when the
-strike ended Further, the parties stipulated that the
named strikers were qualified for the very vacancies that
existed at strikes'end and those that occurred during the
recall period. In addition, Respondent's records reflect
the following: In housekeeping-maids-permanent, three
prestrike positions, over and above those filled at strikes
end, were vacant 10 Therefore three additional striking
maids should have been recalled immediately. Also, on
April 23 Catherine Woodall was transferred out of
housekeeping creating a vacancy for a maid which
should have been -offered to a striker. The -dining room
positions of waitress had eight- strikers. Four replace-
ments, were hired before the strikers made application to
return. Three strikers were recalled leaving one_prestrike
position open at strikes end. The most senior a.m. wait-
ress should have been recalled to that vacancy. Further,
a newly hired waitress was employed on March 20 for
the tackroom but such vacancy should have been offered
to the most senior waitress with an outstanding applica-
tion Three more newly hired employees reported as
waitresses in May and these vacancies should have been
offered to the remaining strikers who had , applied for re-
instatement. Respondent's argument a.m, waitress posi-
tions are not comparable to p.m. waitress positions is re-
jected in that Respondent does not classify waitresses
when hired as a.m. or p m. In fact, the record shows that
waitresses transfer from one dining room to another.
Four cashiers went on strike and were premanently re-
placed. As cashier vacancies occurred the strikers were
recalled by seniority. However one newly_ hired employ-
ee transferred to food and beverage cashier prior to the
last striker's recall and that vacancy should have been
filled by the remaining striker. Three banquet waitresses
whose names were on the call list participated in the
strike. Respondent immediately removed their names
from the call list ostensibly to replace them permanently.
The record shows that one such replacement, Home,
was transferred from part-time to regular part-time ban-
quet waiter from the nonemployee group on the call list.
Since Home was previously on the call list he could not
operate as a replacement employee Sonnier was a hotel
employee and not on the nonemployee call list but rather
the hotel employee call list as extra help if the nonem-
ployee call list was exhausted, and, therefore she could
not be a replacement employee for the nonemployee call
list. Larry Guinn, a newly hired employee for the !ion-
employee call list, was indeed a replacement employee.
Thus, at strikes end two prestrike positions on the non-
employee banquet call list were open and two strikers
should have been immediately recalled The first banquet
work after the strike was March 18, 19, 20, and 22,
which was worked only by nonemployees on call,
Home, _Guinn, and Berthia. Berthia was newly hired but
did not appear on Respondent's list as a replacement em-
ployee, therefore, banquet work was available for all
.three striking employees immediately after the strike and
they should have been recalled Respondent argues that
Banquet Supervisor Hoffman did not follow Fischer's in-
structions to recall the strikers before hiring any outside
employees and, therefore, Hoffman's dereliction of duty
10 Catherine Woodall was erroneously listed as a permanent replace-
ment
s ARLINGTON- HOTEL CO

217
cannot be discrimination by Respondent Such an argu-
ment places the onus on the returning striker which I am
not inclined to do: Hoffman is Respondent's supervisor
and Respondent is responsible for-his actions. Moreover,
Fischer's Instructions to Hoffman do not recognize the
accepted practice prior to the strike, i.e., that hotel em-
ployees as alternates were only used for banquets after
the nonemployee call list was exhausted. Also, the
record shows that a striker replacement in the employee
cafeteria, Ashley Norling, who was not on the banquet
call list, worked banquets before striking employees were
recalled. In fact, the three strikers' names should not
have been removed from the list but should have simply
been passed over for banquet work. I perceive the non-
employee banquet call list as analogous to the hotel's
payroll from which striking employees are not removed
when engaging in a strike.' 1 With regard to maintenance
man Monte Cales he -was one of three that engaged in
strike activities. Respondent hired- two replacement em-
ployees but the record is unclear whether one or both of
the other striking maintenance men were recalled at
strikes end. If they were not recalled a prestrike position
was open and should have been offered to Cales on
March 17 predating his actual recall of August 20 by
several months. ,If the other strikers were ,recalled to
maintenance positions then Cales should have been con-,
sidered for other vacancies which occurred before his
recall to his prestrike position. Based on the above I con-
clude and find that several striking -employees (enumer-
ated above) should have been recalled immediately to
their prestrike positions and that those strikers whose po-
sitions were filled by permanent 'replacements should
have been offered the vacancies present in other posi-
tions in the hotel which Respondent filled with newly
hired employees It is Respondent's obligation, by Law,
to treat returning strikers impartially and I specifically
find that Respondent's refusal to consider striking em-
ployees, who had made application to return, for posi-
tions other than their prestrike positions discriminated
against the strikers by such refusal and by showing parti-
ality for newly hired employees. Respondent's obligation
is to offer vacancies to returning strikers The returning
striker has the right as an employee to refuse the offer
and elect to await a vacancy in his prestrike position
Aretha Collins: Respondent contends that Collins en-
gaged in conduct sufficient to deny her reinstatement
rights. The alleged conduct did not take place on the
picket line nor was there evidence .of any picket line mis-
conduct. The alleged conduct of Collins was the single
isolated incident subject to scrutiny. While no miscon-
duct by strikers is to be condoned it is manifest that the
alleged conduct be fully considered before imposition of
discipline on strikers. To hold individual striking employ-
ees subject to discipline, including the loss of reinstate-
ment rights the proof must be substantial for the effect is
to render the right to stnke nugatory.
It is fully recognized that an employer has the burden
of proving that strikers engaged in conduct barring their
" Had the General Counsel alleged that Dooley, Taylor, and Boone
were discriminatorily removed from the list when they went on strike I
would have so found
return to employment. An employer's honest belief that
strikers engaged in misconduct of a_ nature serious
enough to require discipline therefor is not a defense if it
affirmatively appears that such misconduct did not, in
fact, occur as alleged or was less serious in nature. The
question in the instant case becomes: Was the alleged
misconduct of the striker of a nature requiring disqualifi-
cation for reemployment? I conclude and find that the al-
leged statement of Collins was not of such a serious
nature as to deny her reinstatement rights. My conclu-
sion is based on the lack of evidence from Respondent.
The evidence presented only evinces a terse conversation
between a striker .and nonstriker which occurred off the
picket line on the Employer's premises The apparent
basis for Respondent's decision to deny reinstatement
was subjective and not supported by the testimony of its
main witness Thus, Brown's testimony did not disclose
fear of reprisal or apprehension to continue working
during the strike. Rather, Brown displayed lack of con-
cern for the statement and affirmatively passed the state-
ment off as the usual talk among maids who are and
have been coworkers. Further, Respondent did not fully
investigate the ,incident which to me evinces an attempt
to seek reasons, however slight, not to reinstate certain
strikers to retaliate for striking. I also note that of the
group Collins was singled out by Respondent on the
slimmest of identity facts. Accordingly, I find that Col-
lins was denied reinstatement as a returning striker un-
lawfully and shall order her full reinstatement.
Marie Halpain: Respondent removed Halpain's name
from its recall list 2 to 3 weeks after the strike ended as a
result of information that Halpain_ was employed at a
local steak house. Subsequent to Halpain's removal sev-
eral waitresses were hired by Respondent in March,
May, June, and July contrary to Respondent's argument
that the first available position for Halpain existed on
August 17. 12 Respondent further argued that if Halpain
did not lose her employee status in April she did so in
July when she secured her second employment as a wait-
ress which eliminated any recall rights prior to the first
available vacancy. I reject Respondent's arguments as
unsupported by record evidence. Respondent's claims are
based on strikers securing regular and substantially
equivalent employment elsewhere which by statute
causes the striker to lose employee status and therefore
any reinstatement rights to which they may otherwise be
entitled. Respondent has the burden to establish that the
striker has lost employee status and that burden must be
met with objective evidence. The employer's belief,
however honest or reasonable, • i§ not sufficient The
Board has stated, "The question of what constitutes 'reg-
ular and substantially equivalent employment' cannot be
determined by a mechanistic application of the literal
language of the statute but must be determined on an ad
hoc basis by an objective appraisal of a number of fac-
tors, both tangible and intangible, and includes the desire
and intent of the employee concerned.' 3
2 I previously found that Respondent makes little or no distinction be-
tween dining rooms when hiring waitresses, making Respondent's argu-
ment that no vacancies occurred in the venetian dining room (Halpam's
former work station) unavailing
13 Little Rock Airmouve, Inc, 182 NLRB 666 (1970)
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears from the testimony of Fischer and Halpam
that the ebmperisation and benefits received by Halpain
from the subject employment was . not equivalent nor was
Halpain satisfied with the interim employment. Fischer
knew, or should have known, that Halpain's outside em-
ployment was temporary while awaiting recall. Halpain
testified such was the case and Fischer reluctantly ac-
knowledged he could not recall the entire conversation
Fischer did admit he knew at the time he was consider-
ing Halpain's continued status as an employee of Re-
spondent that the 'steak house was not a full-time business
and in fact was closing In addition, Fischer made no
conscious effort to determine what employment Halpain
had secured on either . occasion. He was satisfied that
someone saw her woilung. That is not enough. The stat-
ute requires more before a'"striker will be relieved of em-
ployee status and the attendant rights. In my view, Re-
spondent has again seized upon a meager circumstance in
an attempt to punish an' employee for engaging in a
strike. Accordingly, I conclude and find" that Respondent
has unlawfully -Withheld recall from Halpain in violation
of the Act and shall order her full reinstatement.
Frank Avant. Avant, on applying for reinstatement at
the strike's ,end, was told by Fischer that his job of
garde-manger had been abolished and therefore he
would not be reemployed by the hotel. Respondent spe-
cifically contends 'that there are no substantially equiva-
lent ,positions for - which Avant is qualified. Apparently,
Respondent refers to the sous chef position since the tes-
timony of both chef Healy and Avant leads me to con-
clude that Avant is not a sous chef. The record shows
that Avant performed numerous kitchen tasks in his
tenure with Respondent but sous chef was not among
them. Albeit Avant was performing some tasks of a
garde-manger before 'the strike, it appears that Ftscher's
bestowment of the title was benevolent in nature rather
than a promotion The employment records show no re-
classification of Avant to garde-manger nor did Avant
train or supervise any employees in the garde-manger
tasks As I pereeive the evidence, Fischer was simply
trying to add class to the kitchen operation and was rec-
ognizing an existing highly paid kitchen employee who
had recently been demoted. However, whether or not
Avant was in fact garde-manger, Respondent has the
right to reduce kitchen cost and, if a strike presents the
first opportunity, there is no vice in making adjustments
at that time. The evidence does show that Avant's salary
and performance were discussed prior to the strike and
several adjustments had already been made by the time
the strike started There are certain risks attached to em-
ployees electing to engage in -strike activity and one of
those is that the employer may be forced into belt tight-
ening circumstances which subsequently eliminate the
need for employees or their functions. That, I feel, is the
case here The record is clear that Fischer was in the
midst of a renovation of the hotel's services, particularly
the kitchen. Such reworks do not happen overnight nor
are they accomplished by a single stroke of the brush.
Observation and. opportunity can be time consuming as it
was here. The heed for changes in the kitchen is well
substantiated in the record; however, the effect on Avant
does not end there._ As I_ view the circumstances and the
law Respondent may very well abolish a striker's job or
downgrade the functions for legitimate business reasons
but that does not mean that the striker must be denied
reemployment Only in the case where no other vacan-
cies exist can the striker be denied his reinstatement
rights. That is not the case here From March 21
through October 28, 47 positions in the kitchen were
filled with newly hired employees. Of those.47 positions
12 were functions that Avant had specifically performed
for Respondent Whereas Avant's abilities to perform as
sous chef can be questioned, his capabilities in the pantry
or as a cook cannot. Notwithstanding Avant's qualifica-
tions (past work history) Respondent refused to consider
Avant for any vacancy. Therein lies the violation as I
see it. Respondent has the obligation to treat returning
strikers impartially, which includes preferential treatment
for the returning strikers in filling vacancies as they
occur. Respondent cannot be heard to say that seeking
out strikers to fill usual vacancies is burdensome or
unduly restrictive. I see no other way that an employer's
obligations to strikers can be fulfilled if impartial treat-
ment is the rule. In the last analysis, the Respondent only
has to offer a lesser position that is open. It is up to the
striker whether he is actually reemployed or not. To
refuse to give a returning striker the opportunity to
resume his employment for less compensation or benefits,
by preferring newly hired unknown employees, is prima
facie partiality which I conclude and find is violative of
the Act. Accordingly, I shall order Respondent to offer
reinstatement to Avant to a kitchen position for which
he is qualified. This includes the discharge of an incum-
bent if necessary
While the testimony of Freida Wallace, cashier, is par-
tially corroborated by objective evidence, I cannot fully
credit her- statements. Her recall of events and their
chronology was not specific enough to be helpful, except
for the ultimate fact, which I feel was more imaginative
than real. Respondent had what appeared to be a current
address in its files (which was occasioned by Wallace's
giving such notice to her employer) and used it to recall
Wallace There was no forwarding by the Postal Service,
which indicates a failure by Wallace to be concerned.
There is no credible evidence in the record to suggest
any wrongdoing on Respondent's part toward Wallace.
Respondent having discharged its obligation to Wallace,
as shown by . the objective evidence, I conclude and find
that Respondent has not violated the Act in regards to
Freida Wallace. Accordingly, I shall dismiss the allega-
tion as it pertains to -Wallace.
In summary and pursuant to my findings above the
following strikers should have been reinstated to their
prestrike positions on the dates indicated.
Aretha Collins March 17
Betty Omans March 17
Joyce Richardson March 17
Wanda Morgan April 23
Mary Willis May 7
Helen Lloyd March 20
Violet Doll March 17
Debbie Mauldin May 6
Maggie Brundag May 15
ARLINGTON HOTEL CO

219
that each should have been offered reinstatement to the
date that each returning striker was actually reinstated or
is actually reinstated
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ec115
Mane Halpain May 20
Rita Taylor March 18
Barbara Dooley March 18
Lillie Boone March 18
Gloria Morse October 6
The following strikers 'should have been offered va-
cancies for which they qualify pursuant to the stipulation
of the parties on the date and position indicated:
Ann Pascoe—May 10—maid
Richard Alexander—March 19—houseman
Frank Jones—March 26—houseman
Nathan Dendy—March 28—houseman
Monte Cales—April 10—houseman
Wade Asbury—April 10—houseman
Leroy Doll—April 14—houseman
Frank Avant—March 26—cook
I acknowledge the difficulty attached to determining
whether any replaced striker would have accepted the
alternative job offer or not; however, this circumstance
is caused by Respondent's discriminatory conduct and
therefore the returning strikers should not be held to
suffer for conduct not their own.
ADDITIONAL CONCLUSIONS OF LAW
1. Respondent discriminated against economic strikers
who had applied unconditionally to return to work in
violation of Section 8(a)(1) and (3) of the Act by refusing
to recall them to their vacant prestrike positions.
2. Respondent discriminated against replaced economic
strikers who had unconditionally applied to return to
work in violation of Section 8(a)(1) and (3) of the Act by
hinng new employees to fill vacancies for which the re-
placed strikers were qualified.
3. Respondent discriminated against economic strikers
Aretha Collins, Marie Halpain, and Frank Avant, each of
whom applied for reinstatement, in violation of Section
8(a)(1) and (3) of the Act by denying them reinstatement
rights to employment.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminated against its striking
employees, I find it necessary to order it to offer them
full reinstatement to their former positions or, if these
positions no longer exist, to substantially equivalent posi-
tions, with backpay computed on a quarterly basis and
interest therein to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori-
da Steel Corp., 231 NLRB 651 (1977),' from the date
14 See generally Isis Plumbing Go, 138 NLRB 716 (1962)
ORDER
The Respondent, Arlington Hotel Company, Inc , Hot
Springs, Arkansas, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Discriminating against employees by failing to
accord them their reinstatement rights as economic strik-
ers and without regard to whether each individual striker
had been permanently replaced or not.
(b) In any other manner Interfering with, restraining,
coercing, or discriminating against its employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer each striker, against whom the Respondent
has been found to have discriminated by refusing rein-
statement, full and immediate reinstatement to his or her
former job or, if that job no longer exists, to a substan-
tially equivalent position of employment, without preju-
dice to his or her seniority or other rights and privileges,
or to a position for which the striker is qualified, and
make each such striker whole for any loss of pay suf-
fered as a result of the discrimination against him or her
in the manner set forth hereinabove in the section enti-
tled "Remedy"
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or useful to a determination of each striker's se-
niority and the position Respondent is required to offer
each striker and the amount of backpay due each discn-
minatee.
(c) Post at its Hotel in Hot Springs, Arkansas, copies
of the attached notice marked "Appendix." 16 Copies of
the notice, on forms provided by the Regional Director
for Region 26, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
16 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director in writing within 20 IT IS ALSO ORDERED that the complaint be dismissed
days from the date of this Order what steps the Re- insofar as it alleges violations of the Act not specifically
spondent has taken to comply. found.