Northwest Oyster Farms, Inc.

National Labor Relations Board - Board DecisionsNov 20, 1968

173 N.L.R.B. 872 (N.L.R.B. 1968)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northwest Oyster Farms, Inc. and Shoalwater Bay Oyster Workers Local Union 14, affiliated with Seafarers ' International Union of North America, AFL-CIO. Case 19-CA-3925 November 20, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 16, 1968, Trial Examiner Herman Corenman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of these allegations. Thereafter, the Respondent filed ex- ceptions to the Trial Examiner's Decision. 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 made by the Trial Examiner at the hearing and finds that no pre- judicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions, and the entire record in this case,' and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the Respondent, Northwest Oyster Farms, Inc., Nahcotta, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(c) and reletter the following paragraphs accordingly. (c) Notify the above-named employees, if pre- sently serving in the Armed Forces of the United States, of their right to full reinstatement, upon appli- cation, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 2. Add the following as the third indented para- graph of the Appendix attached to the Trial Exam- iner's Decision: WE WILL notify the above-named employees, 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. IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner Upon charges filed by Shoalwater Bay Oyster Workers Local Union 14, affiliated with Seafarers' International Union of North America, AFL-CIO (herein called the Union), on February 5, 1968, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 19 (Seattle, Washington), issued a complaint on April 17, 1968, against Northwest Oyster Farms, Inc., herein referred to as Respon- dent, alleging that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the Respondent At the hearing the Trial Examiner granted counsel for the General Counsel's motion to strike all 8(a)(5) allegations from the complaint The issues presented by the complaint and Respon- dent's answer thereto are. (1) whether the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and (2) whether the Respondent violated Section 8(a)(1) and (3) in connection with an alleged failure to fully reinstate three striking employees after the strike's termination Pursuant to notice, a hearing was held at South Bend, Washington, on July 23, 1968, before me. The General Counsel, the Union, and the Respondent appeared by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence upon the issues in the case, and to submit briefs. No briefs have been submitted by any of the parties. I THE BUSINESS OF THE RESPONDENT The Respondent, Northwest Oyster Farms, Inc., a Wash- ington corporation, with its principal place of business at i On October 3, 1968 , the Respondent filed with the Board a motion to reopen the record to adduce additional testimony that after the hearing Earl Seeker had quit the employment of the Respondent to accept other work , and that Jess Martin had refused an offer of reinstatement because of his employment elsewhere As the matters raised by the Respondent's motion pertain to compliance with the Order contained herein , the motion to reopen the record is denied 173 NLRB No 130 NORTHWEST OYSTER FARMS, INC 873 Nahcotta, Washington, is engaged in the growing, harvesting, processing and marketing of smoked fresh oysters and canned oysters It's gross volume of sales in 1967 approximated $350,000, the major part of which was sold to a cooperative called the United Oyster Producers Association, of which Respondent is a member Sales of United Oyster Producers Association in interstate commerce exceeded $1,000,000 in 1967. In addition to the fresh oysters marketed through the above-named cooperative, Respondent smokes and cans spe- cialty products under the brand name "Jolly Roger," which it distributes through a wholly owned subsidiary based at Seattle. Sales of the Jolly Roger brand in 1967 totalled approximately $90,000 of which more than $50,000 was sold to military installations I find upon the basis of the foregoing that the Respondent is, and has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to entertain jurisdiction in the present case. Siemons Mailing Service, 122 NLRB 81, Edward P. Tepper d/b/a Shoenberg Farms, 132 NLRB 1331. II. THE LABOR ORGANIZATION INVOLVED Shoalwater Bay Oyster Workers Local Union 14, affiliated with Seafarers ' International of North America , AFL-CIO, herein called the Union , is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES A Background Respondent's business operations may be divided into four phases, (1) Oyster Farming involving the leasing of oyster lands, planting the oyster seed and raising and harvesting, the oysters, (2) processing operations consisting of shucking the oysters and preparing them for sale, (3) smoking and otherwise processing the oysters, and (4) sales and distribution. Respondent has had collective-bargaining relations with the Union since 1961 After the expiration in July 1967 of their current contract, the Union struck the oyster industry, including the employer, on October 3, 1967, over a dispute on terms for a renewal contract. The strike ended on or about November 2, 1967, at which time the Union offered to return to work. No contention is made otherwise, and I find that the strike was economic. The issue to determine is whether the Respondent fully reinstated or offered full reinstatement to the following named individuals on the termination of the strike. Jess Martin, Art Clark, and Earl Seeker, and if not, whether such failure violated Section 8(a)(1) and (3) of the Act. B Earl Seeker Earl Seeker had been in the employ of the Respondent since September 16, 1966. He has worked in the oyster industry since 1936, previously having worked for another oyster company 17i% years in oyster farming. General Manager Wiegardt hired Seeker for general "bed work" in Respondent's oyster farming operations His first few weeks with the Respondent were spent on a boat by himself in "rolling," an operation designed to harden the ground in an effort to kill the shrimp which are harmful to oyster growth. Thereafter, he ran a dredge till the spring of 1967 when he returned to "rolling." In the summer he worked on the "strings," and in the last 2 months prior to the commencement of the strike on October 3, 1967, he worked on the boats, repaired boats, repaired skiffs and engaged in general all around "farm work." Seeker was hired by Wiegardt at a salary of $500 a month About 6 to 7 months later his salary was increased to $550 per month. Seeker, in addition to being employed by the Respondent, was also the business representative of the Union. He participated in contract negotiations that led to the strike and also in post strike negotiations, and in the conduct of the strike Wiegardt testified that when the strike started (October 3, 1967) he first noticed a condition developing where the shell strings had just begun to fall down on the racks, and were dropping into the mud. This, according to Wiegardt, was caused by torridoes (some form of marine animal) getting into the racks and weakening the structure Wiegardt, testified he had intended to pull the strings off before the condition became acute, but the strike came at the time the first of the strings were beginning to go down. At first, according to Wiegardt, there were three to four thousand strings involved, but as time went on and into November 1967, eight or nine thousand strings became involved in the breaking down and dropping into the mud. Wiegardt valued the strings at $1.50 apiece During the course of the strike, it appears without dispute, that Wiegardt had requested Seeker's permission for a crew to go out and salvage the strings Subsequent to a union meeting on the subject, Seeker denied permission for such a crew. Seeker told Wiegardt this would not be permitted.while the strike was in progress. The strike ended on November 2, 1967. In a conversation between Seeker and Wiegardt relative to returning the people to work, Wiegardt, as he tesifies, told Seeker that it was his opinion that the strike did not constitute a termination of employment or a layoff of any kind, and that he would hire back the people in an orderly fashion according to the way the work was laid out. During the strike, according to the uncontradicted testi- mony of Seeker, Wiegardt told Seeker that his job was terminated and that he would have to negotiate for a new job On the day following the termination of the strike, in reply to a question by Seeker as "to what was on the agenda the next day," Wiegardt replied "you s in your mess,"I and that he would give Seeker tide work when it was available Wiegardt testified that after the strike ended he had a conversation with Seeker in which he told hum there was no chance of his continuing his present job, that Wiegardt had to revise his plans and the best he could do was to hire Seeker at an hourly rate. Seeker was returned to work on the dredge on November 7, 1967, in "oyster farm" work but at the reduced rate of $2 48 per hour and on March 26, 1968, his rate was raised to $2 78 per hour as "boat man." Weigardt, in summarizing the reasons why Seeker was returned to work at the reduced rate of pay, testified as follows; (1) The number one reason, we didn't have the money to continue the job. We were not in a position to do anything except to do just very essential work and to hang on to what we had. i The quote is from Seeker 's testimony , and I find the remark was made by Wiegardt as testified 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The second reason was that in sequence to the particular job, he was hired in an orderly fashion when the work became available so that he had presented himself as available for work after the strike, and we took that job opportunity as the first opportunity to return him to work In response to further interrogation by his counsel, Wiegardt testified that there was no job available in the capacity Seeker had been performing, although he did have an opening for a foreman who could take the responsibility for a crew salvaging the shell strings, but this was out of the question. Seeker's Status as Employee or Supervisor Although Respondent's counsel has not articulated his defenses to the General Counsel's complaint alleging the Respondent's failure to fully reinstate Seeker after the strike's termination, except for the general denial in the Respondent's answer, it is presumed from the tenor of Mr Wiegardt's testimony that among other defenses, a contention is made that Seeker was a supervisor within the meaning of Section 2(11) of the Act and because of that not protected from employer discrimination for engaging in strike activity Al- abama Marble Company, 83 NLRB 1047, N L.R.B v. Edward G Budd Mfg Co., 169 F 2d 571 (C.A 6) For this reason, it is essential to consider Seeker's status as employee or supervisor In support of Respondent's position, Wiegardt testified that at the time he first employed Seeker in September 1966, he worked under Van Dorien's supervision, however, when Seeker's salary was increased from $500 to $550 per month "he was accepted as a full fledged member of the management team and from that time on he was answerable to himself and me " Wiegardt testified further in support of this position that in early July 1967, a crew consisting of himself, Gerald Andrews, Seeker and a group of youths were engaged in seed rack construction According to Wiegardt, after the crew had worked for several weeks on rack construction, it became necessary for himself and Andrews and a portion of the youthful crew to leave for Dabob Bay, at which time, Wregardt testified, he left the rack building operation in charge of Seeker, who remained with a group of five or six boys, ages 16-18, some of whom had experience from the year before With respect to the rolling operation, Wiegardt testified that Seeker performed this operation alone in a boat, taking instruction either from Wiegardt or from Dave Van Dorien. Relative to his status as supervisor or employee, Seeker testified that when he was first employed, he was told by Mr. Wiegardt that Dave Van Dorien was his foreman and that this instruction was never changed He testified that his numerous duties in oyster farming required him to work with a number of employees With respect to building racks for shell strings, Seeker testified that in the crew were his foreman, Dave Van Dorien, himself, Musik, Art Clark, Stevens, Morgan. Seeker denied that he was responsible for budding and setting out the racks or in running the crew that was so engaged, including the school boys Seeker testified that orders concerning the number of racks to be built and their placement were given by Mr. Wiegardt to Mr Andrews, that Mr. Wiegardt was personally present at times as well as Foreman Dave Van Dorien, and that Seeker himself was not present all of the time Seeker likewise testified that he exercised no supervision over the high school boys working on the same job, that he never interviewed for hire or hired any of the students, and never fired or recommended for firing any of them Seeker specifically denied that at the time Wiegardt and Andrews left for the Dabob operation in July 1967, that he was left in charge of the crew or that he exercised any supervision over it. Seeker testified further he had no authority to hire or fire or recommend such action, and that he had made it clear to Mr. Wiegardt when he first went to work that he was "no pusher " In corroboration of Seeker, Art Clark testified that he had worked with Seeker and a number of youths on rack building; that he had no knowledge that Seeker was in charge of rack building, that everyone seemed to know what to do and that at times Foreman Dave Van Dorein was present Clark also testified that Seeker at no time gave him any instructions on how to perform the job of rack building and that he never saw Seeker supervise any of the high school boys in the crew. Likewise in connection with the towing of scows or spotting them while running the boat, he did not take directions from Earl Seeker but from Foreman Dave Van Dorein Seeker's testimony as to his lack of supervisory status is also supported by Jess Martin who testified that he was never advised by Mr. Wiegardt or anyone else that Seeker was a supervisor or foreman, and that he knew Dave Van Dorein to be the foreman. Conclusionaiy Finding re Seeker's Status as Supervisor or Employee On the basis of the entire record, I find that Seeker was not a supervisor within the meaning of Section 2(11) of the Act. I find that Seeker was not invested with, nor did he exercise any of the authority set forth in Section 2(11) of the Act It is clear from the record that Seeker's status was that of an employee fully experienced in the many skills related to oyster farming, such as "rolling," boat operation, dredge operation, rack building and boat and equipment repair In all of these operations, he worked alone or with others, taking his orders from his foreman, Dave Van Dorien or from Mr Wiegardt. Mr. Wiegardt testifies that for a time in July 1967, Seeker was in charge of a crew of five or six high school boys in construction and setting out of seed racks This is denied by Seeker who is corroborated by Clark who also had worked in the crew. In any event, I find that this temporary assignment in July 1967 which Wiegardt testifies he gave to Seeker, is insufficient to deprive Seeker of his employee status I find that the relationship between Seeker and the high school boys with whom he worked in July 1967 was that of a senior experienced employee to a group of lesser skilled or inexperi- enced employees Assuming that Seeker may have given some advice or instruction to the high school youths at the time he worked with them, although he denies any supervision, this temporary relationship did not make him a supervisor in the sense of having managerial position or authority The fact that an employee may devote his time to instructing other workers does not, by itself, make him a supervisor. NL.R.B v Valentine Sugars, Inc., 211 F 2d 317, (C A 5, 1954). Additionally an employee who works as a leadman, performing routine minor supervisory duties, but having no real super- visory authority, does not qualify as a supervisor, and the Board with court approval has held employees were not supervisors where, in addition to their regular duties, they instructed other employees in routine matters and took charge in their departments for brief periods when foremen were absent NL.R.B. v. Swift & Co , 240 F 2d 65 (C A 9, 1957). Reexamining the status of Seeker in the instant case, the evidence points only to this one occasion in July 1967 where, NORTHWEST OYSTER FARMS, INC according to Wiegardt, he left Seeker for a time in charge of a group of five or six high school students The evidence is clear, that Seeker was engaged in the same manual work as the rest of the crew, and even if he had been left temporarily in charge of this crew, as Wiegardt testified, this one occasion where he may have given instruction to less experienced workers did not invest Seeker with genuine supervisory authority and did not deprive him of his Section 7 guarantees as an employee N L R B v Valentine Sugars Inc and N L R B v Swift & Co supra Red Stan Express Lines v NL R B, 196 F 2d 78 (C A 2) Analysis of Wiegardt s Reasons for His Failure to Fully Reinstate Seeker It is well settled that at the conclusion of a strike, and a union's unconditional offer to return to work, an employer has a duty to offer reinstatement to employees with all rights, privileges, and seniority, and working conditions previously enjoyed including their former rates of pay John Kinkel & Son, 157 NLRB 744, Ripley Mfg Co , 144 NLRB 1 132 The reasons advanced by Wiegardt, I find, do not stand up under scrutiny and are insufficient to justify his failure to fully reinstate Seeker at his previous salary Wiegardt's own testi mony discloses that within a week after the termination of the strike, operations were back to normal Indeed, the evidence shows that a greater burden of work was incurred after the strike in connection with the salvaging of the shell strings which Wiegardt testified were falling into the mud Wiegardt's testimony in justification of his refusal to consider Seeker for that crew, namely, that he did have an opening for a foreman who could take responsibility for a crew salvaging the shell strings, but that was out of the question insofar as Seeker was concerned, rings hollow in the face of other testimony by Wiegardt that he assigned, among others, David Van Dorien to help him lay out the shell string recovery operation notwith standing the fact that Van Dorien refused to serve as a foreman with the termination of the strike Wiegardt's assigned reason number (1) for reinstating Seeker at a reduced wage rate, namely, that he "didn't have the money to continue the lob" is unsupported by any factual evidence in the record Additionally, so far as the evidence shows, Seeker was the only employee who was returned at a substantially reduced pay rate The legitimacy of Wiegardt's reason is further refuted by the fact that Musik, a less senior employee than Seeker, was returned to work as a deck hand on the dredge, as was Seeker, at a substantially increased salary of $500 per month It is well settled that by virtue of Section 2(3) of the Act, an individual whose work ceases due to a labor dispute remains an employee, and that an employer refusing to fully reinstate a striker must show that the action was due to legitimate and substantial business justification The burden of proving such justification is upon the employer, and an act (failure to fully reinstate an employee) so destructive of employee rights, without legitimate business justification, is an unfair labor practice without reference to intent or improper motivation 2 There is in fact no proof that Seeker engaged in any illegal or unprotected strike activity and an employers suspicions are insufficient to justify discrimination N L R B v Burnup & Sims Inc 379 U S 21 3 Although Wiegardt in reciting his reasons for refusing to fully reinstate Seeker at his previous salary did not proffer as one of the reasons a contention that Seeker was physically unable to perform his 875 NL R B v Fleetwood Trailer Co , 389 U S 375, The Laidlaw Corporation, 171 NLRB No 175 I find that the Respondent's offer of employment to Seeker at a substantially reduced wage rate was wholly unrelated to any of its economic needs, could only penalize Seeker for engaging in concerted activity, was inherently destructive of employee interests, and thus was irresponsive to the requirements of the statute NLRB v Erie Resistor Corporation, 373 US 221, NL R B v Great Dane Trailers, 388 U S 26 I find, moreover, that the Respondent's reinstatement of Seeker at a reduced pay rate was a reprisal, motivated by Wiegardt's anger at Seeker, as the business representative of the Union, in among other things, refusing to permit a crew to work during the strike to salvage the shell strings that Wiegardt testified were falling into mud Moreover, it is reasonable to infer from the evidence, and I find, that Wiegardt was incensed at Seeker, and held him responsible for his leadership in enforcing a strike which Wie gardt characterized as a "bitter strike" and held him responsible for anonymous telephone threats, allegedly made to a foreman and his family who had been crossing the picket line 2 Thus, even before the strike ended, Wiegardt told Seeker his job had been terminated and that he would have to negotiate for a new job, and with the end of the strike, when Seeker inquired concerning work, Wiegardt's hostile response was "you s in your mess " In these circumstance, I find not only was there no valid reason why Seeker should not have been offered full reinstate ment, but additionally that such failure to fully reinstate Seeker was intended as a reprisal for Seeker's leadership in the strike The Respondent's aforesaid conduct was a violation of Section 8(a) (3) and (1) of the Act 3 C Arthur Roy Clark Arthur Roy Clark had been employed by the Respondent since 1966 in oyster farming, also known as bed work His foreman was David Van Doreen He participated in the October 3 to November 2 strike and was on the picket line Clark presented himself for employment the day after the strike terminated Wiegardt told Clark there was a pressing need for oyster openers to bring in ready cash Clark with some reluctance agreed to take the oyster opening job on a temporary basis on Wiegardt's promise that he would later be transferred to his regular job performing "bed work " He continued on the oyster opening job until February 1968 when he was returned to bed crew work Clark's prestrike job was in the main devoted to oyster farming at an hourly rate of $2 35'% The oyster opening job was paid at piece work rates I find upon the testimony of both Clark and Wiegardt, which are in substantial agreement concerning this question, that Clark's piece rate earnings at oyster opening approximated his hourly wage on the bed crew job, that Clark was a thoroughly experienced oyster opener, and that from time to time both before and after the strike he was moved temporarily from bed work to oyster opening In view of the fact that there was a business necessity to move Clark temporarily to the oyster opening job, that in fact job Wiegardt did testify that in July 1967 he gave Seeker two weeks time off at Seeker s request because he was nervous and not feeling well Seeker returned to his regular job on August 14, 1967, and continued working at his job until the October 3 strike I find that Seekers emotional or physical distress in July 1967 would not justify a refusal to fully reinstate him after the strike 876 DECISIONS OF NATIONAL both before and after the strike, Clark was occasionally moved from bed work to oyster opening, and he is capable of earning approximately the same total wages at oyster opening piece work as he is on the bed crew hourly rate-I find that Clark was, for all intents and purposes, reinstated to his job or substantially equivalent employment, without prejudice to his rights Accordingly, I find no merit to the General Counsel's allegation in the complaint that the Respondent refused to fully reinstate Clark, and I would dismiss that allegation of the complaint D Jess Martin 4 Martin had been employed by the Respondent since September 1967 in oyster farming work under the supervision of Foreman Dave Van Doreen He joined the Union about 2 weeks before the start of the strike During the first week of the strike, he worked on a boat in Dabob Bay In the following week, while the strike was still in progress, he was requested by foreman Jerry Andrews to work as a deck hand on the dredge Although Martin at first agreed to work, he abruptly changed his mind and did not report for work, but joined in the strike and picketed the Respondent With the termination of the strike, Martin was not recalled to work, this notwithstanding the Union's previous offer to return to work and Further fact that Martin reported in person at the Respondents place of business two or three days after the strike's end Wiegardt's testimony concerning his reason for refusing to recall is as follows It was my understanding that Jess had indicated his willingness to return to Dabob Bay and had told Gerald Andrews that he was ready and willing and available to go At the last minute he decided that the strike took precedence and that he was not available for work I felt under the circumstances that it would be better if he came to us after the strike and explained his availability for work In essence, Wiegard's testimony discloses no legitimate reason for refusing to recall Martin Indeed, it constitutes an admission that reinstatement was denied to Martin because he joined the strike after he had promised to work The evidence shows, without dispute, and I find, that the Respondent's failure to reinstate Martin at the strike's end violated Section 8(a)(1) and (3) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the business operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) 4 At the hearing upon motion of the General Counsel the complaint was amended to show Martin by his correct name Jess Martin LABOR RELATIONS BOARD of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to fully reinstate Jess Martin and Earl Seeker, I will order Respondent to offer them immediate and full reinstatement of their former or substantially equiva- lent jobs, without prejudice to their seniority, wage rates,5 or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discriminatory refusal to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from November 7, 1967, to the date of Respondent's offer of full reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F W Woolworth Co , 90 NLRB 289, and Isis Plumbing & Heating Co 138 NLRB 716 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By failing and refusing to fully reinstate Earl Seeker to his job with all its rights and privileges, including Seeker's previous salary rate, and by refusing to reinstate Jess Martin to his job with all rights and privileges, Respondent has discrimi nated with respect to their hire, tenure, and terms and conditions of employment, thereby discouraging membership in the Union, and has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a) (3) of the Act, and by the aforesaid conduct has coerced and restrained employees in their Section 7 rights to engage in concerted activity for their mutual aid and protection, and has engaged 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 affecting and have affected commerce within the meaning of Section 2(6) and (7) of the Act 5 Respondent did not engage in any unfair labor practices alleged in the complaint which are not specifically found herein Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following RECOMMENDED ORDER The Respondent, Northwest Oyster Farms, Inc , its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Discouraging membership in or activities on behalf of Shoalwater Bay Oyster Workers Local Union 14, affiliated with Seafarer ' s International Union of North America, AFL- CIO, or any other labor organization , by terminating the 5 I have already found that Seeker s former position to which he is ordered reinstated carried a salary of $ 550 per month NORTHWEST OYSTER FARMS, INC employee status of strikers or failing or refusing to reinstate them to their regular positions with their full seniority, wage rights, and other rights and privileges, at the conclusion of a strike, or by discriminating against them in any other manner with respect to their hire, tenure, or any terms or conditions of employment (b) In any like or related manner interfering with, re- straining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer to Jess Martin and Earl Seeker immediate and full reinstatement to their former or substantially equivalent positions held immediately prior to the strike, without prejudice to the wage or salary rates paid therefor or other rights or privileges, and make them whole for any loss of earnings they have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards personnel records and reports, and all other necessary records in determining the amount due as backpay. (c) Post at its plant and at its principal place of business in Nahcotta, Washington, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, and be maintained by him for 60 consectuive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith 7 6 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board 's ')rder is enforced by a decree of a United State Court of Appeals , the words "a Decree of the United 877 States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " ' In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 19, in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 discourage membership in or activities on behalf of Shoalwater Bay Oyster Workers Local Union 14, affiliated with Seafarer' International Union of North America, AFL-CIO, or any other labor organization by failing or refusing to fully reinstate strikers to their jobs, with full wage or salary rights and other rights and privileges, or by discriminating against them in any like or related manner with respect to their hire, tenure, or any term or condition of employment WE WILL offer to Earl Seeker and Jess Martin immediate and full reinstatement to their former or substantially equivalent positions held immediately prior to the strike, without prejudice to wage or salary rates or other rights or privileges, and will make them whole for any loss of earnings suffered as a result of the discrimination against them. NORTHWEST OYSTER FARMS 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4532.