Downtowner of Shreveport, Inc.

National Labor Relations Board - Board DecisionsMay 20, 1969

175 N.L.R.B. 1106 (N.L.R.B. 1969)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Downtowner of Shreveport, Inc. and Common Laborers , Hod Carriers , and General Laborers Union , Local No. 229 affiliated with Laborers International Union of North America , AFL-CIO. Case 15-CA-3247 May 20, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On August 26, 1968, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support of its exceptions. The General Counsel filed cross-exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner as herein modified. The Trial Examiner concluded that he was foreclosed from ordering the reinstatement of at least two additional economic strikers because the General Counsel conceded the permanent replacement of six of the eight strikers and elected to seek a remedy for only two of the strikers; namely, Jeraline Greer and Gracie James. We agree with the Trial Examiner's findings and conclusions with respect to the reinstatement of Greer and James. However, we disagree with his further conclusion regarding the reinstatement of additional strikers. In The Laidlaw Corporation, 171 NLRB No. 175, the Board held: "economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement 'The Trial Examiner concluded that Respondent violated Section 8(axl) and (3) of the Act by refusing to reinstate Jeraline Greer and Gracie James . We agree with the Trial Examiner's 8(axl) findings in this regard, but find it unnecessary to consider or pass upon his 8(aX3 ) findings, as the remedy would remain the same in any event. upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons." In the present case the Trial Examiner properly found that an unconditional offer to return to work was made on behalf of all eight economic strikers at a time when the Respondent had already permanently replaced six out of the eight. The record further reveals that two of the replacements left the Respondent's employ shortly after their hire' Although The Trial Examiner properly ordered that the two strikers who had not been replaced at the time of the offer to return to work be reinstated, he declined to apply the above teachings of Laidlaw to the other strikers despite the fact that the record clearly reveals that at least two additional strikers were entitled to immediate reinstatement under the Laidlaw doctrine.' Clearly, in the present circumstances, where all of the strikers have unconditionally offered to return to work, the Laidlaw principles apply to all of the strikers as a matter of remedy. These remedial principles are not dependent on the General Counsel's concession that six of the eight strikers were permanently replaced prior to an offer to return to work, particularly where, as here, we are concerned with the rights of economic strikers after the replacements' employment has been subsequently severed. Accordingly, we shall herein provide for those continuing rights of all the economic strikers. It is clear from the facts set forth above that at least two of the additional six strikers are entitled to immediate reinstatement and that the remaining four strikers may also be entitled to reinstatement at the departure of other replacements unless they have, in the meantime, acquired regular and substantially equivalent employment. However, as we are unable to determine from the state of the present record which two of the remaining six strikers are entitled to immediate reinstatement, and, if presently entitled, the order of reinstatement of the remaining strikers, we shall leave the questions of such individual reinstatement rights for resolution at the compliance proceedings. 'We particularly note in this regard that Dorothy Jean Raney, one of the permanent replacements hired before the strikers ' unconditional offer to return to work , commenced working on the morning of January 26 and quit after working on January 27. Thereafter , the Respondent hired Lula Gillins to replace Raney rather than offer employment to one of the strikers - all of whom had already offered to return to work. Additionally, the record shows, as noted by the Trial Examiner, that Hester Jackson, a permanent replacement , was subsequently replaced after March I by Mary D . White , and thereafter White quit . Again, neither the vacancy created by Jackson's departure nor the subsequent vacancy created by White's quitting was offered to any of the strikers. 'No evidence appears that the failure to offer reinstatement was for legitimate and substantial business reasons . Indeed , it would appear that Respondent's need of maids continued as Respondent immediately filled those vacancies created by. the departure of Raney and Jackson, thus maintaining its customary staff of eight maids. 175 NLRB No. 178 DOWNTOWNER OF SHREVEPORT 1107 ORDER Pursuant to Section 1Q(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Downtowner of Shreveport, Inc., of Shreveport, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights by failing and refusing to reinstate economic strikers who have not been permanently replaced after an unconditional offer to return to work is made by them or on their behalf. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Jeraline Greer and Gracie James immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of Respondent's discrimination against them, in the manner set forth in the remedy section of the Trial Examiner's Decision. (b) In accordance with the Decision of the Board and subject to any supplementary proceedings that may be had in this case, offer immediate and full reinstatement to such of the remaining strikers whose former positions have been vacated after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole, in the same manner as provided for in paragraph 2(a) above, for any loss of pay suffered as a result of the Respondent's failure to offer them reinstatement after their replacements were no longer employed by the Respondent. (c) Notify Jeraline Greer and Gracie James and those additional strikers provided for in paragraph 2(b) above if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, as well as all other- records necessary to analyze and compute the amount of backpay due under the terms of this Order. (e) Post at its place of business in Shreveport, Louisiana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 15, in writing, within 10 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board =and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, and coerce our employees in the exercise of their Section 7 rights by failing and refusing to reinstate economic strikers who have not been permanently replaced after an unconditional offer to return to work is made by them or on their behalf. WE WILL offer to Jeraline Greer and Gracie James immediate and full reinstatement to their formei or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of our discrimination against them with interest at 6 percent. WE WILL, in accordance with the Decision of the National Labor Relations Board and subject to any supplementary proceedings that may be had according to the Board's Decision in this case, offer immediate and full reinstatement to such remaining strikers whose former positions have been vacated after the strikers offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of our failure to offer them reinstatement after their replacements were no longer employed by us. WE WILL notify the above-named employees and those additional unnamed employees also provided for above, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. DOWNTOWNER OF SHREVEPORT, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 'In the event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: This case began on February 7, 1968,' when Common Laborers, Hod Carriers, and General Laborers Union, Local 229, affiliated with Laborers International Union of North America, AFL-CIO (referred to herein as the Charging Party or the Union), filed a charge against Downtowner of Shreveport, Inc. (referred to herein as Respondent). On April 15, the General Counsel of the National Labor Relations Board , acting through the Acting Regional Director of Region 15 (New Orleans, Louisiana), issued a complaint and notice of hearing in which it is alleged that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act by failing and refusing to reinstate Jeraline Greer and Gracie James for discriminatory reasons upon their unconditional application to return to work following a strike. During the hearing, pursuant to due notice, which was held before me in Shreveport, Louisiana, on July 2, counsel for the General Counsel moved to amend the complaint to add six more names - Dorothy Houston, Lessie Washington, Rosie Lee James, Helen Martin, Dorothy Tigue, and Jeanette Bates - as more fully described below. I granted the motion. Respondent' s answer denied any violations of the Act. All parties appeared at the hearing on July 2 and were given full opportunity to participate, to adduce relevant evidence , to examine and cross-examine witnesses, to argue orally and to file briefs.' Both General Counsel and Respondent filed briefs. Upon the entire record, including the briefs of General Counsel and Respondent, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Louisiana corporation and a wholly owned subsidiary of The Downtowner Corporation. It operates a motor hotel at 332 Market Street in Shreveport. In the 12-month period prior to April 15, Respondent received goods valued in excess of $10,000 which were shipped to it in Shreveport from points outside of Louisiana, either directly or through suppliers in the State of Louisiana who themselves received the goods directly from outside the State of Louisiana. During the same period Respondent received more than 25 percent of I its revenues from units rented to transient guests who stayed in Respondent's motor hotel for periods less than one month in duration. 'All dates are 1968 'General Counsel , in his brief, reoffered an exhibit which I rejected at the hearing (G C Exh 2, an affidavit by Mae Stewart) G.C Exh. 2 is again rejected General Counsel also renewed his objection to and moved to strike , as hearsay , certain testimony of Frank Mahon , Respondent's resident manager , relating to a conversation with a Mr. Barker of the Captain Shreve Hotel The General Counsel 's objection is overruled and his motion to strike is denied. The Downtowner Corporation is a Tennessee corporation engaged in the business of operating motor hotels in various states of the United States, including Tennessee and Louisiana. In the 12-month period prior to April 15, gross revenues of the Downtowner Corporation exceeded $500,000; its purchases of goods outside of Tennessee which were shipped directly to it in Tennessee exceeded $10,000. The complaint alleges, the answer admits, and I find that Respondent and The Downtowner Corporation are affiliated businesses, constituting a single integrated enterprise with a common labor policy, and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges , the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Strike Respondent's entire complement of eight regular, full-time maids - Jeraline Greer, Gracie James, Dorothy Houston, Lessie Washington, Rosie Lee James, Helen Martin, Dorothy Tigue, and Jeanette Bates - reported for work as usual at 8 a.m., on Friday, January 26. A few minutes later, as was their daily custom, they met with their supervisor, Housekeeper Mae Stewart, in an unoccupied room to receive their instructions for the day. Mrs. Stewart told them that they were to remove a buildup of soap film on shower tile by spraying it with a mixture of Clorox and water, letting it stand for half an hour, then wiping it off. The maids objected to the addition of this new chore to their regular duties. Because of this, and because they also objected to being cursed at by Mrs. Stewart, all eight maids clocked out in a body at 8:33 a.m. and left the hotel. They went to the office of the Union where they saw Henry McQueen, the Union's president and business manager. B. The Hiring of Replacements Mrs. Stewart and Frank Mahon, Respondent's resident manager, were having coffee in the hotel restaurant when they saw the maids leave. Mahon instructed Mrs. Stewart to seek replacements immediately while he pitched in to help strip linen from beds and baths so that a 1 p.m. deadline for sending dirty linen to the laundry could be met. Approximately 87 of the Downtowner of Shreveport's 101 rooms had been occupied the previous evening . It was particularly unfortunate for Respondent that its maids picked a Friday morning to go on strike, rather than some other day of the week, because of the laundry problem posed by the impending weekend. In order to be returned by 1 p.m. Saturday, the last delivery before Monday when the laundry reopened after being closed Saturday afternoon and all day Sunday, Friday's dirty sheets and towels had to be ready for pickup by I p.m. If the Friday pickup were missed , Respondent faced a possible shortage of clean linen by Monday. Thus Mahon's concern over the walkout of his maids on a Friday morning and his pitching in himself to meet the crisis. In the meantime, as instructed, Mrs. Stewart sought to DOWNTOWNER OF SHREVEPORT replace the strikers. She called the state employment service and from it obtained Ethel Lee Belford, Dorothy Jean Raney, Helen Bradberry, and Johnie Wynn. She consulted an application which she had on file and called in Hester Jackson. She spoke to another woman, unnamed in the record, who promised to come in as soon as she could get a babysitter. This person never appeared, either on January 26 or thereafter. Mrs. Stewart (or Mahon, the record is unclear) appealed for help to the Captain Shreve Hotel, another Shreveport hostelry, and from it obtained Addie Mae Wooten and Clemitee Booker. The first six were hired for regular, full-time positions as maids . Clemitee Booker, at her own request, was hired as an "extra" maid; i.e., a maid who would help out as needed when the regular maids were unavailable or too few to handle the work on hand. Prior to January 26, Respondent had no "extra" maids on its staff. Belford, Raney, Bradberry, Wynn, Jackson, Wooten, and Booker were all at work by noon on January 26. Later that Friday afternoon, after the phone calls from Jeraline Greer and Henry McQueen to Frank Mahon which are set forth under "The Offers to Return" below, Mrs. Stewart also spoke to Mary D. White, another Captain Shreve maid who worked a night shift there cleaning commercial offices in the building. Mary White had heard from Addie Mae Wooten and Clemitee Booker about the work available at the Downtowner of Shreveport. She asked Mrs. Stewart for a day job which would permit her to continue to work at the Captain Shreve at night. Mrs. Stewart hired her, to begin work on Tuesday, January 30. Mrs. Stewart also placed Help Wanted ads in the Shreveport papers. These produced a crowd of applicants on Saturday morning , January 27, two of whom - Para Lee Louis and Gloria Jean Struggs - were hired at that time to begin work on -Monday, January 29. Of the six full-time new maids who actually worked for Respondent on January 26, five were still regularly employed as of the end of February. The sixth, Dorothy Jean Raney, quit after working only 2 days, Friday and Saturday, January 26 and 27. Lula Gillins began work on Tuesday, February 6, As of the end of February, the last date on which the record sheds any light, Respondent's staff of eight regular, full-time maids consisted of Ethel Lee Belford, Hester Jackson, Helen Bradberry, Addie Mae Wooten, Johnie Wynn, Para Lee Louis, Gloria Jean Struggs, and Lula Gillins. In the January 26 - February 29 period, Clemitee Booker worked on January 26, 27, 28, and 29 and February 1 and 3, Mary D. White worked on January 30 and 31 and February 2, 4, 6, and 7. C. The Offers to Return Henry McQueen, the Union's president and business manager, had had no prior contact with any of Respondent's employees, including the maids, when they got in touch with him following their walkout on the morning of January 26. When the maids appeared at his office, he suggested that one of the group call the hotel and ask to return to work. Jeraline Greer was selected as spokesman. She called between 1 and 1:30 on the afternoon of January 26 and spoke to Frank Mahon. She told Mahon that the maids ". . . want to come back and talk to you about our jobs." Mahon said that he thought the maids had quit when they walked out on him that 'Respondent's two hall porters were not involved in the January 26 1109 morning and, consequently, had already replaced them. He indicated his willingness to talk to the strikers but said that he was too busy to see them anymore that day. It was arranged that the strikers would come to the hotel on Saturday morning to see him. Fifteen minutes later Henry McQueen called Mahon. After identifying himself as the representative of Respondent's maids and porters,' McQueen discussed the situation with Mahon. When McQueen accused Mahon of having "terminated" the maids, Mahon replied that they had quit and that he had already replaced them. During the course of the conversation McQueen explicitly asked Mahon to take the maids back. The conversation ended with McQueen's statement that Mahon would hear further from him about the matter. Because he was aware that he might have a union problem on his hands, something unknown in Mahon's prior business experience, he placed a call to his home office in Memphis, Tennessee. His office referred him to Fowler, Brackhahn and Young, the Memphis law firm which represents Respondent in this matter. Mahon called and spoke to a member of the firm. Under date of January 26 McQueen wrote a letter to Mahon in which he claimed, on behalf of the Union, to represent all Respondent's maids and porters and demanded recognition and bargaining. The letter contains no reference to reinstatement, either express or implied. Mahon received the letter on Saturday, January 27. At 9 a.m. on Saturday, January 27, Mahon met with the striking maids at the hotel. There was a discussion of the maids' grievances against the housekeeper, Mae Stewart, including the new chore of Cloroxing bathroom tile. Mahon defended Mrs. Stewart as one who had aided and protected the maids over the years. Mahon explained that he would not take the strikers back because to do so would require him to get rid of the replacements he had already obtained. He told them that any reversal of that decision would have to come from the home office and promised to discuss the matter with his superiors. D. Assignment of the Replacements For a few days after January 26, while the replacements were being trained, no assignments of the replacements to specific work stations were made. The following week the replacements were assigned to specific blocs of rooms as follows. The striker who was assigned to each work station on and before January 26 is listed in the third column: Replacement Rooms Striker Johnie Wynn 200-211 Dorothy Houston Hester Jackson 212-233 Lessie Washington Ethel Lee Belford 300-312 Rosie Lee James Para Lee Louis 314-326 Jeraline Greer Helen Bradberry 400-412 Dorothy Tigue Addie Mae Wooten 414-426 Helen Martin Lula Gillins 500-512 ° Jeanette Bates Gloria Jean Struggs 514-526 Gracie James walkout . This bloc of rooms was initially assigned to Clemitee Booker, the extra 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Miscellaneous Findings of Fact The Downtowner of Shreveport caters to traveling salesmen . Consequently , absent a weekend convention, its pattern of occupancy is as follows: On Monday, Tuesday, Wednesday, and Thursday nights, generally, occupancy is at or above the level of Thursday, January 25; namely, 85 to 90 percent. On Friday, Saturday, and Sunday nights, generally, the occupancy rate falls off to 35 to 50 percent. There was no convention at the hotel on the weekend of January 27-29. On Tuesday, Wednesday, Thursday and Friday, Respondent needs a full complement of eight maids. Over the weekends , absent a convention in the hotel, Respondent can get along with as few as four maids. Therefore, generally, the maids are scheduled for weekend work on a rotating basis so that the hotel's needs are met while the maids receive their days off . If there had been no strike by the maids on Friday, January 26, substantially less than eight maids , probably four each day, would have worked on Saturday, Sunday, and Monday , January 27 -29. Respondent actually used seven maids on Saturday , six on Sunday, and eight on Monday because of the situation created by the strike which began on Friday . Occupancy of the hotel was normal on Monday night , January 29 , and thereafter . Respondent employed seven maids on Tuesday , January 30 , and eight on Wednesday, January 31, Thursday, February 1, and Friday, February 2. This normal pattern of employment of maids continued thereafter. F. Conclusions and Analysis I find that Respondent violated Section 8 (a)(1) and (3) of the Act by failing and refusing to reinstate two of eight economic strikers upon their unconditional offer to return to work at a time when the two had not been permanently replaced in order to discourage membership in the Charging Party.' I reach that conclusion as follows: The General Counsel based his complaint on the theory that six of the eight strikers were permanently replaced before any offer to return to work was made by them or on their behalf. He selected Jeraline Greer and Gracie James as the two who had not been replaced for reasons which are discussed under "The Remedy" below. At the hearing , when counsel for Respondent would not agree that if, in law, two of the maids were entitled to reinstatement, Jeraline Greer and Gracie James are they, counsel for the General Counsel added the names of the other six to paragraph 11 of the complaint , which alleges an unconditional offer to return to work on January 26. However, he also amended paragraph 12, which alleges Respondent 's failure and refusal to reinstate persons named in paragraph It, to indicate that only two, rather maid . It was assigned to Lula Gillins when she went to work on Tuesday, February 6 . The preceding Saturday , February 3 , had been the last day Clemitee Booker worked in the period ending February 29. 'There is no need to pass on General Counsel 's contention , raised for the first time in his brief, that Respondent discharged Jeraline Greer and Gracie James when Mahon said to McQueen , "Well, they [the eight maids], quit . I don't want them back down here I don 't want to talk to them or anything else." Respondent does not dispute that the maids, when they walked out , were engaged in a concerted activity , electing to stand on its position , inter olio , that the strike was unprotected , nor does it contend that the maids intended to quit , thus terminating the employer -employee relationship . Cf. Delsea Iron Works , Inc., 136 NLRB 453. A finding that Greer and James were discharged would not alter the remedy. than all eight , are claimed to be discriminatees . If it were not for General Counsel 's concession that six of the eight strikers were permanently replaced prior to any offer to return to work, I would find, based on the fact that Dorothy Jean Raney, one of the six full-time maids who began work on the morning of January 26, quit after work on January 27, that a third striker is entitled to reinstatement . The rights of economic strikers are not determined for all time at the moment of their offer to return to work. Rather, they are, in effect, placed on a preferential hiring list and must be offered any jobs which thereafter open up so long as their "employee" status has not been terminated by some intervening event .' Since, however, the General Counsel has conceded the permanent replacement of six of the eight strikers and elected to seek a remedy for only two, I conclude that Respondent's violation of the Act lies in its failure to reinstate two, rather than three or four, of the strikers. Respondent advances three separate defenses. It contends: 1. That there was no unconditional offer to return to work; 2. That all eight strikers were permanently replaced; 3. That the maids ' walkout was an unprotected activity. All are without merit. 1. The offer to return to work In this area, Respondent argues that no words were spoken which constituted a formal ' offer to return to work and that the words which were spoken were intended to and did convey the meaning that the eight maids would only return to work on an all or none basis after the removal of Mae Stewart as their supervisor.' There were three occasions on which words could have been spoken which constituted an offer to return to work, Jeraline Greer' s telephone conversation with Frank Mahon in the early afternoon of Friday , January 26, Henry McQueen 's telephone conversation with Mahon 15 minutes later, and Mahon 's conference with the strikers on Saturday morning , January 27 . There is no substantial conflict in the testimony of the various witnesses as to what was said on these occasions . For example, my finding that Jeraline Greer told Mahon on the telephone that the maids wanted to come back and talk to him about their jobs is based on her testimony as corroborated by Mahon and McQueen . The only potential credibility IN L R.B. v Fleetwood Trailer Co., 389 U.S. 375; Laidlaw Corp.. 171 NLRB No. 175. Similarly, Mrs. Stewart , the housekeeper, testified that Mary D. White, after a hiatus following February 7 at her own request, replaced Hester Jackson as a regular , full-time maid in the first pay period after March 1 . The exact date is unclear since Respondent's time records for periods after February 29 were unavailable at the hearing . But for the General Counsel 's concession I would find a fourth striker entitled to that job for the same reason. 'Upon reconsideration , as requested in Respondent's brief, I again reject Respondent's offer to prove what was said in the conversation between Mahon and his attorney on the afternoon of January 26. Respondent urges that such evidence would establish that McQueen 's purpose in calling Mahon was to demand recognition, not to make an offer of reinstatement, thus establishing its point that the words McQueen spoke do not , in law, constitute a formal offer. The point is not well taken . Whatever may have been McQueen 's purpose in calling Mahon , the only relevant question, insofar as this aspect of the case is concerned , is whether he did, in fact, speak words which constituted an unconditional offer to return to work on behalf of the strikers. 'The latter aspect of Respondent's argument is discussed under "The Protected Activity Issue" below. DOWNTOWNER OF SHREVEPORT problem of any materiality arose when Mahon initially failed to confirm McQueen's testimony that he had told Mahon on the telephone ". . . that the girls wanted to come back to work, and I would like to send them back down to work, . . . I asked for their jobs back ... I said I would be glad to send them by and no conditions." However, after having his recollection refreshed by an affidavit given to the General Counsel in the investigation stage of this case , Mahon admitted that McQueen had asked him to take the maids back and did not indicate that McQueen had attached any conditions. Respondent, in its brief, stresses the undenied fact that, on all three occasions, speakers for the strikers, McQueen included, spoke in the plural, using such expressions as "... ask for their jobs back ..." and ". . . asked if they could come back to work ...", and argues therefrom the applicability of American Optical Company, 138 NLRB 681. In American Optical, the Board ruled that ". . . since the offer [by a union on `behalf of 12 striking employees] contained the clear condition that each would return only if all were taken back . . . the Respondent was legally privileged to refuse reinstatement to all strikers in whose behalf such conditional offer was made . . . . Rather, we find it sufficient that, at the time all 12 strikers offered to return to work, the Respondent had hired permanent replacements for some of the 12, and that the Respondent therefore was not obliged to take back all strikers." In American Optical the all-or-none condition was explicitly spelled out, both orally and in writing, when the offer to return was made to the employer. Here, not even Mahon testified that, on any of the three occasions when he spoke to strikers or to McQueen, an explicit all-or-none condition was voiced. Jeraline Greer's statement that the maids wanted to talk to Mahon about their jobs, as well as the discussion which took place on Saturday morning, are somewhat ambiguous. Whether an unconditional offer to return to work was made on either occasion need not concern us here, however, since the words spoken to Mahon by McQueen were a clear offer to return, spoken on behalf of all eight, which were not intended to and did not convey any message that Respondent must take back all eight or none would return regardless of how Mahon, on hindsight, might have chosen to interpret them.' Since, therefore, an, unconditional offer to return to work was made on behalf of the strikers on the afternoon of January 26 at a time when only six permanent replacements had been hired, two of the strikers were entitled to reinstatement, provided that eight regular, full-time maid jobs still existed. 2. The replacement issue Here Respondent argues .that the seven maids it was able to hire on the morning of January 26, plus the woman with the babysitter problem, Mary D. White, Para Lee Louis and Gloria Jean Struggs constituted replacement of all eight strikers. Clemitee Booker, one of the seven who actually worked, on January 26, cannot be counted as a permanent replacement because she was expressly hired as an extra maid. Neither can the lady with the babysitter problem since, having never appeared for work, she never became an employee and thus never replaced anyone. The hiring of Mary D. White on Friday afternoon, after McQueen's call to Mahon, whether she was hired as a full-time maid or only as an extra, and the hiring of Para Lee Louis and Gloria Jean Struggs on Saturday morning are, of course, immaterial since the strikers' rights of replacement, if any, vested at the time of the offer to return. The short and simple answer to Respondent's contention is that two positions for regular, full-time maids still existed when McQueen called Mahon, regardless of the fact that the fewer than eight regular full-time maids who did show up before McQueen's call to Mahon on Friday afternoon were sufficient for Respondent's needs on that full-scale activity day and the ensuing reduced-scale activity Saturday, Sunday, and Monday. Whoever was entitled to those positions might well not have worked on Saturday, Sunday, or Monday. They would not have worked one or more of those days on a normal weekend. But, as Respondent's time records clearly demonstrate, its need for maids was precisely the same over the strike weekend and during the following weeks as it was before the strike. No jobs were abolished as a result of the strike. Eight jobs for regular, full-time maids existed when the strike began and when it ended. Respondent filled only six of them before McQueen's call to Mahon. Therefore, two jobs were unfilled at the crucial moment of that conversation. Two of the strikers are entitled to be reinstated to those jobs, provided that the strikers were, in fact, engaged in a protected activity. 3. The protected activity issue Finally, Respondent contends that the maids' walkout was an unprotected activity, thus denying them the protection which the Act accords to unreplaced economic strikers who make an unconditional offer to return to work. Respondent relies on American Art Clay v. N.L.R.B., 328 F.2d 88, and N.L.R.B. v. Ford Radio & Mica Corporation, 258 F.2d 457. These cases involve strikes over the discharge of foremen. American Art Clay holds such a strike unprotected. Respondent would bring this case within the American Art Clay holding, first, by having me find that the strikers, in their Saturday morning meeting with Mahon, sought the removal of Mae Stewart as their supervisor. As indicated above, I make no such finding. To the contrary, the record is clear, from Mahon's testimony, that no such proposal was ever advanced by the strikers. And I find Mahon's inference from the words they did speak that removal of Mrs. Stewart was what they really sought as irrelevant as his inference from the words they 'spoke that they sought reinstatement on an all or nothing basis. Respondent would apply the American Art Clay doctrine to this case notwithstanding the fact that the strikers here did not explicitly request the removal of Mrs. Stewart. But that doctrine, regardless of its validity when applied to facts analogous to American Art Clay, is inapposite here. For the rationale of American Art Clay is that selection of supervisors is a management prerogative in which employees have no legitimate concern, thus the selection is not a condition of employment over which they may legitimately engage in concerted activities. No such element is present here. Here, the strikers walked out because they objected to the addition of an unpleasant new chore to their other duties and because they objected to the manner in which their supervisor spoke to them. Both were obviously conditions of their employment and thus the maids were protected when they struck over them.'" 'Baldwin County Electric Membership Corp., 145 NLRB 1316. "Pastilite Corporation, 153 NLRB 180; Delsea Iron Works, Inc , supra 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent also argues that the strike was unreasonable and intemperate, relying on the fact, which I have found, that the maids left at the worst possible time of the week from Respondent's point of view, and the undenied fact that they left without making any effort to discuss their grievances first with Mahon. However, the partial strike cases" which Respondent cites in support of this argument are readily distinguishable since the point of that line of cases is that employees must choose between striking or working and may not legally attempt to exert pressure on their employers by halfway measures. Here, the maids opted for strike. Having done so, it is immaterial, as Respondent concedes, that they did not give Mahon or Mrs. Stewart advance notice before they left.': And having done so, it was neither unreasonable nor intemperate of them to walk out at the moment their grievances came to a head, even though their timing, incidentally, happened to bring maximum pressure on Respondent. G. Summary In summary, then, I find that the eight maids were engaged in a protected, concerted activity when they struck on the morning of January 26 over the new chore assigned them and the manner in which Housekeeper Mae Stewart spoke to them. Since their strike was economic in nature, their rights to reinstatement depended on the situation which obtained when they made an unconditional offer to return to work. When that moment came on the afternoon of January 26, six of them had been permanently replaced, but two had not. Therefore, by refusing to reinstate two strikers at that time, even if they had not appealed to the Union for help, Respondent violated Section 8(a)(1) of the Act by denying those two their Section 7 right to engage in protected, concerted activities for mutual aid and protection regardless of Respondent's motive for not taking them back. Additionally, I find that Respondent refused to reinstate them because the eight maids carried their grievances from the hotel to the Union's office and enlisted the Union's aid. I rely for this finding on Mahon's testimony about his union "problem" and the manner in which he reacted to it. Since the effect of refusing to reinstate two strikers under those circumstances, regardless of the absence of any union animus, is to discourage membership in the Union, the same conduct is a violation of Section 8(a)(3)." CONCLUSIONS OF LAW 1. Common Laborers, Hod Carriers, and General Laborers Union, Local 229, affiliated with Laborers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By failing and refusing to reinstate two striking maids on and after January 26 when an unconditional offer to return to work was made on their behalf, under the circumstances detailed in section III above, Respondent has discriminated with respect to their hire "E.g., C. G. Conn, Ltd. v. N L R B , 108 F.2d 380 (product boycott by employees); Aurora Wallpaper Mill, Inc, 73 NLRB 188 (refusal perform part of duties unless wage increase granted); Elk Lumber Co, 91 NLRB 333 (slowdown). "Washington Aluminum Company, Inc, 126 NLRB 1410 "N L.R B. v. Fleetwood Trailer Co , supra; N L R B v. Mackay Radio Telegraph Co, 304 U S. 333. and tenure of employment, discouraging membership in the above-named labor organization, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct, Respondent has also interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Two strikers thus are entitled to be reinstated and made whole. The only question remaining is which two? General Counsel initially named only Jeraline Greer and Gracie James in the complaint on the theory that, since Para Lee Louis and Gloria Jean Struggs, not hired until Saturday morning, were ultimately assigned to their old work stations, Jeraline Greer and Gracie James were identifiable as the specific two strikers still unreplaced when the offer to return to work was made. He theorized that Lula Gillins replaced Dorothy Jean Raney, with extra maid Clemitee Booker filling the gap between the quitting of the latter and the hire of the former. In drafting his complaint he assumed that Respondent agreed with his theory. When, at the hearing, Respondent challenged it, General Counsel amended the complaint, as detailed above, without altering his basic position that only two maids were entitled to reinstatement. The alternative to the approach under which General Counsel seeks a remedy for Jeraline Greer and Gracie James is to order reinstatement for the two maids with the greatest seniority. The fact that the record does not reveal who they are does not preclude such a result since my recommended order could be couched in general terms and determination of which two maids are to benefit thereby left to the compliance stage. However, I do not find that assignment of the new maids to specific work stations was so far removed in time from the moment when rights to reinstatement vested that the customary Board policy of identifying unreplaced strikers by looking to see whose specific machine, post, or duties are still unmanned or unassigned should not apply here. Since the theory on which General Counsel initially elected to name only Jeraline Greer and Gracie James is just and reasonable and effectuates the policies of the Act, I adopt it. Having, found that Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily failing and refusing to reinstate two maids and that Jeraline Greer and Gracie James are the two entitled to benefit from the remedy. Therefore, I will recommend that Respondent offer Jeraline Greer and Gracie James immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of Respondent's discrimination against them, by payment to each of a sum of money equal to that which she normally would have earned as wages from January 26, 1968, to the DOWNTOWNER OF SHREVEPORT 1113 date of Respondent's offer of reinstatement, less her net Woolworth Company, 90 NLRB 289, and Isis Plumbing earnings during such period, with backpay and interest & Heating Co., 138 NLRB 716. thereon to be computed in the manner prescribed in F W. [Recommended Order omitted from publication.]