Lone Star Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1980

279 N.L.R.B. 550 (N.L.R.B. 1980)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lone Star Industries , Inc. and Teamsters Local
Unions 822 & 592 a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Case 5-CA-12015
28 April 1986
DECISION AND ORDER
By MEMBERS DENNIS, JOHANSEN, AND
STEPHENS
On 30 June 1982 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.'
The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Par-
ties each filed cross-exceptions, a supporting brief,
and a brief in opposition to the Respondent's ex-
ceptions.
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 only to the extent consistent with this
Decision and Order and to adopt his recommended
Order as modified.
This case poses several questions concerning the
legality of the Respondent's treatment of former
economic strikers. Specifically, did the Respondent
violate Section 8(a)(3) and (1) of the Act when: (1)
it abandoned a seniority system for recalling per-
manently replaced strikers to job openings; (2) it
changed its work assignment policy by eliminating
seniority as a factor; (3) it mailed work availability
cards to permanently replaced strikers and disquali-
fied nonrespondents from eligibility for reinstate-
ment ; (4) it classified certain strikers as having ob-
tained "comparable employment" elsewhere and
consequently disqualified them from eligibility for
reinstatement; and (5) it instituted a poststrike
system of mandatory physical examinations, and re-
fused to reinstate a former striker who failed to
pass the examination? The judge found violations
i On 16 July 1982 Judge Gadsden issued errata to his decision, the first
of which merely replaced an original page with a more readable copy,
and the second of which made an additional finding of a violation of Sec
8(a)(3) and (1) The Respondent excepts to the errata in part on the
grounds that Judge Gadsden was without junsdiction to issue a supple-
ment to his decision In light of our dismissal , for reasons discussed
below, of the additional 8(a)(3) allegations with regard to the Respond-
ent's use of availability cards, we find no need to rule upon the Respond-
ent's exception to the judge's jurisdiction
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge ' s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
for each of the five issues enumerated above. For
reasons discussed in the following sections, we
agree with finding 8(a)(3) and (1) violations as to
the second and fourth issues, but not as to the first,
third, or last.
Background
Locals 822 and 592 (the Unions) have represent-
ed truckdriver employees of the Respondent's Nor-
folk and Richmond facilities since 1968. A collec-
tive-bargaining agreement expired on 8 February
1979, and, following unsuccessful negotiations, the
Unions commenced their economic strike on 23
April 1979. On that date, the Respondent employed
168 ready-mix, dump truck, and semitrailer drivers,
all but 15 of whom went out on strike. The Re-
spondent commenced hiring replacements on 24
April 1979. By 8 June 1979, the day the Unions
sent a telegram to the Respondent terminating the
strike and unconditionally offering to return to
work, the Respondent had hired 183 permanent re-
placements.
By that same telegram of 8 June 1979, the
Unions advised the Respondent of their willingness
to execute a contract based on the Respondent's
last proposal, made at a 9 May 1979 bargaining ses-
sion. By letter dated 8 June 1979, the Respondent
informed the Unions that all the strikers had been
replaced and that consequently it was withdrawing
recognition based on its claim of good-faith doubt
of the Unions' continued majority status. The Re-
spondent thereafter refused to bargain with the
Unions over wages and other terms and conditions
of employment, including the method by which
strikers were to be recalled.
On 18 June 1979 the Unions filed charges in
Cases 5-CA-11062-1 and 5-CA-11062-2, alleging
that the Respondent's withdrawal of recognition
and refusal to bargain violated Section 8(a)(5) of
the Act. On 14 March 1980 the Unions filed
charges in the instant proceeding, alleging that the
Respondent violated Section 8(a)(1), (3), and (5) of
the Act. On 25 January 1982 before the Board had
ruled on any of these charges, the Unions request-
ed withdrawal of all 8(a)(5) charges, but left undis-
turbed the 8(a)(3) and (1) charges in the instant
proceeding.3 The withdrawal request in Cases 5-
CA-11062-1 and 5-CA-11062-2 was granted and
the complaint dismissed by the Board on 17 Febru-
ary 1982. The request to withdraw the 8(a)(5)
charges in the instant proceeding was granted by
the Board on 11 March 1982.
9 The Unions withdrew their 8(a)(5) charges in order to facilitate the
processing of a representation petition at the plants covered by these
charges An election in Case 5-RC-11730 was held on 28 March 1982
The Unions won the election
279 NLRB No. 78
LONE STAR INDUSTRIES
Failure to Recall by Seniority
Much of the testimony at the hearing and a good
portion of the briefs filed here focused on whether
the parties had an enforceable strike settlement
agreement to recall former strikers by seniority.
The General Counsel contends that the Respond-
ent's last contract proposal made on 9 May 1979
included the offer to recall strikers by seniority and
that the Unions' telegram of 8 June 1979 accepting
the last contract proposal constituted a binding, en-
forceable contract in the absence of any prior ex-
press withdrawal by the Respondent. On the other
hand, the Respondent contends that it rescinded
the seniority recall proposal by its 8 June letter
withdrawing recognition from the Unions.
Whether or not the Respondent felt bound by an
agreement, it abided by a seniority recall procedure
until May 1980. Acting pursuant to advice from its
counsel that it was under no legal obligation to
recall by seniority, the Respondent thereafter
began making recalls on the basis of a variety of
factors, including those analyzed in subsequent sec-
tions of this decision.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by departing
from the recall-by-seniority procedure. Although
he found no binding striker seniority recall proce-
dure in the parties' expired collective-bargaining
agreement, he did find that the Unions' 8 June ac-
ceptance of the Respondent's outstanding seniority
recall proposal created a binding strike settlement
agreement. When the Respondent subsequently
breached the agreement and bypassed senior strik-
ers to recall junior strikers, it violated the bypassed
strikers' rights under Laidlaw Corp., 171 NLRB
1366 (1968). committing an act adversely affecting
employee rights and violating Section 8(a)(3) and
(1) of the Act. We disagree.
There is no question here of a specific animus
borne by the Respondent against the Unions or the
former strikers. There is also no question of any
general failure by the Respondent to honor the
former strikers' statutory class preference vis-a-vis
other applicants for positions vacated by permanent
strike replacements. The question presented is limit-
ed to whether the Respondent violated the Act by
failing to recall former strikers by strict seniority
order.
Initially, we reject the General Counsel's univer-
sal theory that an employer's failure to recall strik-
ers by seniority violates the Act unless the employ-
er proves a substantial and legitimate business justi-
fication for an alternative recall system. This
theory turns upon classification of the Respondent's
conduct as the kind of discrimination which bears
its own indicia of antiunion motivation. In NLRB
551
v. Great Dane Trailers, 388 U.S. 26, 34 (1967), the
Supreme Court defined two classes of such con-
duct and the evidentiary rules applicable to each:
First, if it can reasonably be concluded that
the employer's discriminatory conduct was
"inherently destructive" of important employ-
ee rights, no proof of an antiunion motivation
is needed and the Board can find an unfair
labor practice even if the employer introduces
evidence that the conduct was motivated by
business considerations. Second, if the adverse
effect of the discriminatory conduct on em-
ployee rights is "comparatively slight," an an-
tiunion motivation must be proved to sustain
the charge if the employer has come forward
with evidence of legitimate and substantial
business justifications for the conduct. Thus, in
either situation, once it has been proved that
the employer engaged in discriminatory con-
duct which could have adversely affected em-
ployee rights to some extent, the burden is
upon the employer to establish that he was
motivated by legitimate objectives since proof
of motivation is most accessible to him.
Apart from obligations imposed by unilateral
practice or through the collective-bargaining proc-
ess, there is nothing in the Act itself or in the
Board's articulation of Laidlaw rights that estab-
lishes an individual economic striker's right to
recall by seniority.4 Barring a simultaneous recall
of all former strikers, there will necessarily be dis-
crimination within the strikers' class as to the order
of individual returns to the workplace, whether
recall is by seniority, merit, age, or alphabetical
order. This discrimination is not prima facie proof
of unlawful motivation because it does not adverse-
ly affect employee rights even "to some extent."
Consequently, before any burden of justification for
failing to recall a striker by seniority can be im-
posed on a respondent, the General Counsel must
establish the existence of a seniority recall right by
reference to a collective-bargaining agreement or a
binding established past practice.
The problem here is that even assuming the ex-
istence of a seniority recall agreement between the
Respondent and the Unions on 8 June 1979 or of a
consistent practice of recall by seniority prior to
May 1980, we must view the Respondent 's unilat-
eral breach of that agreement or practice as a
lawful act. The withdrawal of all 8(a)(5) charges in
this case and in Cases 5-CA-11062-1 and 5-CA-
11062-2 quite simply precludes us from determin-
4 See NLRB P. Fleetwood Trailer Co, 389 US 375 (1967), Laidlaw
Corp, supra, Bio-Science Laboratories, 209 NLRB 796 (1974)
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing otherwise. Winer Motors, 265 NLRB 1457
(1982). Because the Respondent did not violate
Section 8(a)(5) by its unilateral actions during and
after May 1980, it was free to devise a new recall
procedure as long as it was applied consistently.5
Accordingly, we reverse the judge's decision in-
sofar as it finds that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by failing to recall
strikers by seniority.
Change in Work Assignment Policy
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by changing its policy for assigning work, includ-
ing overtime, after the strike. For 23 years, the Re-
spondent's policy was to assign work on the basis
of seniority. Approximately 1 month after the
strike began, the Respondent changed to a rotation
system of assigning work that eliminated entirely
the factor of seniority.6 The explanation offered to
justify the change was that the new system was
more equitable to junior drivers who were not re-
ceiving as many assignments during winter months
as more senior drivers.
We address at the outset the Respondent's con-
tention that there can be no violation of Section
8(a)(3) and (1) because there was no discrimination,
the assignment policy having been applied uniform-
ly to strikers and strike replacements alike. The
short answer to this is that, although facially neu-
tral, the policy in fact had the predictable and
actual effect of creating conditions after the strike
ended in which strikers would lose advantages in
job assignments they had hitherto enjoyed under
the 23-year-old work assignment policy and strike
replacements would be the beneficiaries of those
losses . See Randall, Burkhart/Randall, 257 NLRB
1, 8 (1981), enfd. in relevant part 687 F.2d 1240
(8th Cir. 1982) (change in shift preference operated
5 In her brief in support of the decision , the General Counsel relies
extensively on Wells Fargo Armored Service Corp, 237 NLRB 605 (1978)
Although the instant situation bears some similarities to the facts in Wells
Fargo, it differs in a legally dispositive sense In Wells Fargo, the respond-
ent did not exchange a seniority -based recall system for another system
based on different legitimate factors Instead , it retained the overall se-
niority recall procedure but bypassed certain individuals entitled to recall,
thereby violating their Laidlaw rights Here , the Respondent amended its
recall procedure in favor of one where availability and past performance
predominated over seniority as factors in selecting employees to be re-
called
6 These findings are based principally on the testimony of Robert H
Stevens, the Respondent 's regional employee relations administrator In
crediting certain aspects of Stevens ' testimony , the judge drew a negative
inference from the fact that the Respondent's operations manager Joseph
Sadler, who apparently was one of the few individuals other than Ste-
vens with firsthand information pertinent to this controversy, refused to
testify The Respondent 's counsel argued Sadler had not been given the
requisite 5 days' notice in which to respond to subpoena We note that
Stevens' testimony adverse to the Respondent went entirely uncontro-
verted and for that reason find it unnecessary to rely on the adverse in-
ference with respect to Sadler
in discriminatory fashion). See generally Industrial
Workers AIW Local 289 v. NLRB, 476 F.2d 868,
877 (D.C. Cir. 1973), enfg. 192 NLRB 290 (1971)
("A practice applied uniformly to all employees
may be discriminatory and violate the Act.")
Obviously the employees with the greatest se-
niority would tend to be those who had worked
for the Respondent before the strike began; and 90
percent of the Respondent's prestrike work force
went out on strike. In fact, of the strikers recalled a
year after the strike commenced, only two, at
most, had less seniority than the replacements. The
other recalled strikers had more seniority at the
time they were recalled than any of the replace-
ments . Employees with substantial seniority, who
would regularly be eligible to receive the better
work assignments under the original long-estab-
lished policy, experienced significant economic
losses . Thus, as Robert Stevens, the Respondent's
regional employee relations administrator, admit-
ted, several recalled strikers who had from 10 to 15
years' seniority lost opportunities to earn substan-
tially more money. Even for recalled strikers with
less seniority, the losses were not negligible. Thus,
recalled striker John Hill estimated that, although
he had less than a year of seniority when the strike
began , he lost approximately $2000 during approxi-
mately 6 months following his recall, owing to the
elimination of the seniority preference.?
Accepting the fact that the General Counsel did
not prove actual antiunion motivation in this
change in policy, the question under NLRB v.
Great Dane Trailers, 388 U.S. 26, 34 (1967), is
whether it had some effect on the exercise of em-
ployee rights and, if so, whether the Respondent
came forward with an adequate business justifica-
tion . In considering the effect on employee rights,
we focus on the message that this change in policy
implicitly conveyed to employees with respect to
the price of engaging in the protected concerted
activity of striking. What the employees witnessed
was the abandonment, while they were out on
strike, of a policy of 23 years' standing that gave
them economic advantages over later hired em-
ployees, such as strike replacements. Employees
might reasonably fear that during any future strike,
the Respondent would see fit to make other
changes in seniority-based practices that would
work to the benefit of strike replacements and that
it would retain those changes after the strike. Fur-
thermore, they would be continually reminded of
' The fact that the very small percentage (about 10 percent) of the
prestrike work force who did not join the strike suffered similar detri-
ment does not change our conclusion The change overall disfavored
strikers and favored strike replacements once the strike ended, and the
entire prestrike work force lost valuable rights
LONE STAR INDUSTRIES 553
such possible losses, since the new policy would
come to employees' attention every time they lost
out on work that would have been theirs under the
old system. Whether or not the message can be
characterized as "inherently destructive" of em-
ployee rights, it clearly "could have adversely af-
fected employee rights to some extent." Great
Dane, 388 U.S. at 34. See NLRB v. Erie Resistor
Corp., 373 U.S. 221, 231 (1963) (emphasizing con-
tinuing impact of superseniority plan); Randall,
supra, 257 NLRB at 9 (discriminatory policy in-
duced employees to abandon strike). We find at the
very least a "comparatively slight" adverse effect
on employee rights; so the question under Great
Dane is whether the Respondent has come forward
with "legitimate and substantial business justifica-
tions" for its conduct. We conclude that the Re-
spondent has made no such showing.
The Respondent explained that it adopted a rota-
tional assignment policy because the new system
was more equitable to junior drivers who, during
lean winter months, were not receiving as many as-
signments as more senior drivers. But this is merely
another way of stating that the Respondent did not
wish to favor senior drivers over junior drivers in
assignments, i.e., that it did not wish for seniority
to carry any significant advantages. The Respond-
ent conceded at the hearing, through both its coun-
sel and Administrator Stevens, that it was making
no claim that this reason for changing the policy
amounted to a business justification."
Therefore, in light of the Respondent's position
at trial regarding the reason for changing its long-
standing work assignment policy during the strike
and retaining that change thereafter, we find that
the Respondent has failed to prove that it had a le-
gitimate and substantial business justification for
the policy change. Accordingly, even assuming
8 After Administrator Stevens testified that permanent implementation
of the rotational system was based solely on considerations of equity, the
Respondent 's counsel elicited his assent to the suggestion that the seniori-
ty system had "tended to [cause ] a greater turnover among the junior
drivers because they just weren 't getting the time that the more senior
ones were " When the General Counsel, apparently seeing in this a possi-
ble assertion of a business justification , attempted to question Stevens fur-
ther on this point , counsel for the Respondent objected (Tr 99)'
MR BOWDEN Your Honor, we haven't taken that as [sic] position
That' s a separate defense, business justification, now we haven't
taken that as a defense So, I don't know why we're getting into this,
because we could be here for days, on business justification. And
that hasn 't been a defense in this case
Shortly after that exchange , the following appears in the course of the
General Counsel's examination of Administrator Stevens (Tr 102)
Q So, am I to understand then that you just-you had no business
reasons for assigning the drivers no longer by seniority , after the
strikes You dust thought it was of [sic ] equitable principle'?
A That's right
In sum , given the objection of the Respondent 's counsel and the position
of Administrator Stevens, when pressed , that his preference for an "equi-
table principle" was the sole basis for the change , the General Counsel
reasonably relied on the apparent disclaimer of any business justification
and did not probe the earlier "turnover " assertion
that the adverse effect of the policy on employees'
rights was only "comparatively slight," the Re-
spondent has violated Section 8 (a)(3) and (1) of the
Act.
Use of Availability Cards
Following the termination of the strike, the Re-
spondent thrice mailed availability cards to its eco-
nomic strikers. Stevens testified that the first card
was mailed on 10 August 1979. The second card,
dated 25 October 1979, was sent only to those em-
ployees who had returned the first card. Similarly,
a third card was mailed on 17 January 1980 only to
those employees who had returned the second
card. This third and last card also included the fol-
lowing language: "Note, if you do not return this
card, it will be assumed that you are not interested
in recall." According to Stevens, the Respondent
recalled only those strikers who had returned avail-
ability cards.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by disqualifying
for reinstatement those employees who failed to re-
spond to the availability cards. We do not reach
the merits of this issue, however. It is not proper 'to
find the Respondent's use of availability cards to be
unlawful because the complaint contains no such
allegation and the issue of the propriety of the
cards was not litigated at the hearing. Although
the cards themselves were received into evidence,
their introduction occurred in the context of an at-
tempt to prove that employees were not recalled
by seniority. The Respondent was not put on
notice either by complaint allegations or by matters
occurring at the hearing that the propriety of the
cards was also an issue in this unfair labor practice
proceeding.
Comparable Employment
Stevens also testified that, aside from availability,
past work performance, and a response to the
availability cards, another criteria used in deciding
whether to recall strikers was whether that striker
had obtained alternative employment. Although
counsel for the Respondent asserts, without eviden-
tiary support, that those employees who were clas-
sified as otherwise employed were retained in the
recall pool, Stevens clearly testified that those em-
ployees who had obtained "comparable" employ-
ment were excluded from consideration. The only
criteria the Respondent used to determine whether
the employment was comparable was the fact that
the employee was employed in the "same type of
job, with a competitor," as gleaned from a returned
availability card. Stevens said that he was unaware
whether the employee was receiving comparable
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, vacation and sick leave benefits , pension
benefits , job assignments , etc. The Respondent ob-
viously failed to discharge its burden in establishing
that an employee had obtained comparable employ-
ment as a basis for excluding him from possible
recall .9 Accordingly , the Respondent violated Sec-
tion 8(a)(3) and ( 1) by disqualifying for reinstate-
ment those employees it deemed on the basis of in-
sufficient information to have obtained comparable
employment.
Institution of Physical Examinations
The judge found that the Respondent violated
Section 8(a)(3) and ( 1) by arbitrarily and discrimin-
atorily instituting and applying a requirement that
employees be given a physical examination. One
striker, Sampson Morris , was recalled , then refused
reinstatement when the company physician diag-
nosed Morris a diabetic . We find no unlawful con-
duct concerning either the general physical exami-
nation policy or the refusal to reinstate Morris.
It is uncontroverted that the Respondent had no
preemployment physical examinations prior to the
strike . The examination policy was actually institut-
ed several months after the strike ended . Stevens
testified that the policy was instituted in February
1980, 1 month after a replacement passed out while
on the Employer 's premises . Subsequent to that in-
cident the Respondent learned that the replacement
was a diabetic . In order to avoid similar incidents,
the Respondent decided to have all employees ex-
amined by a physician . It refused to reinstate
former striker Morris after his diabetic condition
was diagnosed , even though the examining physi-
cian stated that Morris ' condition was treatable and
posed no threat to his ability to perform the requi-
site duties of truckdriver. It also discharged the
strike replacement . Stevens admitted the new
policy had never been reduced to writing and that
it had been applied to recalled strikers (no new em-
ployees had been hired) but that not all of the re-
placement employees had undergone physicals. He
testified, however , that it was the Respondent's
intent that all its employees at the time the policy
was instituted were to undergo physicals.
The refusal to reinstate Morris , notwithstanding
the physician 's statement , was consistent with the
termination of the diabetic strike replacement
whose blackout led to the new physical examina-
tion policy . Furthermore , the policy itself bore no
indication of discriminatory intent . It was an under-
standable response to the blackout incident and to
fear of potential liability. In addition, the policy did
not except strike replacements or treat former strik-
Woodlawn Hospital , 233 NLRB 782 (1977)
ers as if they were new employees . The fact that
the Respondent was found somewhat wanting in
administering the policy does not establish a viola-
tion . The Respondent made a good -faith effort to
have replacements as well as strikers examined.
The failure to have examined all replacements is
not sufficient evidence of intent to discriminate
against Morris or all strikers . Accordingly , we find
no violation in the Respondent 's refusal to reinstate
Sampson Morris , or in instituting a requirement
that all current and future employees undergo a
physical examination.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3.
"3. By disqualifying for reinstatement those eco-
nomic strikers the Respondent deemed to have ob-
tained comparable employment , the Respondent
violated Section 8(a)(3) and (1) of the Act."
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we find it neces-
sary to order it to cease and desist and to take cer-
tain affirmative action designed to effectuate the
policies of the Act.
The Respondent, by disqualifying for reinstate-
ment those employees it discriminatorily deemed
on the basis of insufficient information to have ob-
tained comparable employment , must make those
strikers who would otherwise have been reinstated
whole for any loss of earnings and other benefits,
less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).
It having been found that the Respondent unlaw-
fully changed its work assignment policies to the
economic detriment of recalled strikers with ac-
crued seniority , the Order will provide that the Re-
spondent cease and desist from further engaging in
such conduct, and that it make the recalled strikers
whole for any loss of earnings occasioned by that
change in -,policy in accord with Ogle Protection
Service , 183 NLRB 682 (1970), plus interest as com-
puted in Florida Steel Corp., supra.
ORDER
The National Labor Relations Board orders that
the Respondent , Lone Star Industries , Inc., Norfolk
and Richmond, Virginia, its officers, agents , succes-
sors, and assigns, shall
1. Cease and desist from
LONE STAR INDUSTRIES 555
(a) Disqualifying for reinstatement those former
strikers the Respondent deemed without substantia-
tion to have obtained comparable employment.
(b) Discouraging membership in Teamsters Local
Union 822 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America and Teamsters Local Union 592 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, by discontinuing the
assignment of work in accordance with seniority
for reinstated employees who have engaged in a
lawful strike and have made unconditional applica-
tions for reinstatement to vacant positions as they
occur, without prejudice to their seniority and
other rights and privileges, or by otherwise dis-
criminating against any of its employees in regard
to their hire, tenure of employment, or other terms
or conditions of their employment.
(c) 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. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer reinstatement and backpay in the
manner described in the remedy section of this De-
cision and Order to any unreinstated former strik-
ers who, at the compliance stage of this proceed-
ing, are discovered to have been denied reinstate-
ment as a result of their exclusion from consider-
ation because they were deemed on an insufficient
basis to have obtained comparable employment.
(b) Immediately reinstate the practice of assign-
ing work and overtime to employees in accordance
with seniority and make the recalled strikers whole
for any loss of earnings occasioned by that change
in policy in the manner described in the remedy
section of this Decision and Order.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards' personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facilities in Richmond and Nor-
folk, Virginia, copies of the attached notice marked
"Appendix." 1 ° Copies of the notice, on forms pro-
vided by the Regional Director for Region 5, after
being signed by the Respondent's authorized repre-
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in Team-
sters Local Union 822 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Teamsters Local Union
592 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by disqualify-
ing for reinstatement those employees who have
engaged in a lawful strike on the basis that such
employees were deemed by us on the basis of insuf-
ficient information to have obtained comparable
employment.
WE WILL NOT discourage membership in the
aforesaid labor organizations, or in any other labor
organization, by discontinuing the assignment of
work in accordance with seniority of reinstated
employees who have engaged in a lawful strike and
have made unconditional applications for reinstate-
ment to vacant positions as they occur, without
prejudice to their seniority and other rights and
privileges, or by otherwise discriminating against
any of our employees in regard to their hire, tenure
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment , or other terms or conditions of
their employment.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of your rights guaranteed by Section 7 of the
Act.
WE WILL offer immediate and full reinstatement
to any striker who would otherwise have been re-
instated but for our practice of disqualifying for re-
instatement employees who we deemed on the
basis of insufficient information to have obtained
comparable employment to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed and WE WILL make them whole for any loss
of earnings and other benefits resulting from their
exclusion from recall because they were deemed to
have obtained comparable employment on the basis
of insufficient information , less any net interim
earnings , plus interest.
WE WILL immediately reinstate the practice of
assigning work and overtime to employees in ac-
cordance with seniority and WE WILL make whole
recalled strikers for any loss of earnings resulting
from our not assigning work and overtime to them
on the basis of seniority , plus interest.
LONE STAR INDUSTRIES, INC.
Eric M. Fine, Esq., for the General Counsel.
Otto R. T. Bowden , Esq. (Hamilton & Bowden), of Jack-
sonville , Florida, for the Respondent.
Jonathan G. Axelrod, Esq. (Beins, Axelrod & Osborne), of
Washington , D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D . GADSDEN , Administrative Law Judge.
Upon a charge of unfair labor practices jointly filed on
March 14, 1980 , by Teamsters Local Union 822 a/w
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Teamsters
Local Union 592 a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America (Local 822 and Local 592 or the Unions)
against Lone Star Industries, Inc (the Respondent) a
complaint was issued by the Regional Director for
Region 5 on behalf of the General Counsel on December
4, 1980.
The complaint alleges that the Respondent failed to
recall striking employees in their order of seniority, with-
out having bargained with the Unions, in violation of
Section 8 (a)(1) and (5) of the Act , that the Respondent
unilaterally changed the work assignments of recalled
employees without doing so in accordance with their se-
niority of bargaining with the Unions in violation of Sec-
tion 8 (a)(5) of the Act ; and that the Respondent failed to
respond to the Unions ' request for information (a list of
strikers to be recalled and a list of strikers who would
not be recalled by the Respondent ) in violation of Sec-
tion 8(a)(5) of the Act.
The Respondent timely filed an answer denying that it
has engaged in any unfair labor practices as alleged in
the complaint.
The hearing in the above matter was held before me at
Richmond , Virginia , on February 9 and 10 , 1981. Briefs
have been received from the General Counsel , counsel
for the Respondent , and counsel for the Charging Party,
which have been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent , Lone Star Industries , Inc., is and has
been at all times material herein a Delaware corporation
engaged in the preparation and sale of ready-mixed con-
crete at various facilities in the area States including lo-
cations in Norfolk and Richmond , Virginia, the only lo-
cations herein involved.
In the course and conduct of its business operations
during the past 12 months , a representative period, the
Respondent purchased and received in interstate com-
merce supplies and materials valued in excess of $50,000
from points located outside the State of Virginia.
The complaint alleges, the answer admits , and I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges , the answer admits , and I find
that Teamsters Local Union 822 a/w International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America and Teamsters Local 592 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America are, and have
been at all times material herein , labor organizations
within the meaning of Section 2(5) of the Act
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The record shows that Lone Star Industries , Inc. and
its predecessor , Southern Materials, the Respondent
herein, were engaged in the preparation and sale of
ready-mixed concrete at its Norfolk and Richmond loca-
tions . The Respondent has had collective-bargaining
agreements with Locals 822 and 592 which remained in
effect even after the Respondent changed its name. The
first collective-bargaining agreement was entered into in
1968, followed by a series of such agreements , the last of
which expired February 8, 1979. Unable to reach an
agreement in negotiations , the Unions went on strike at
the Norfolk and Richmond, Virginia facilities on April
23, 1979 . On April 24 , 1979, the Respondent commenced
hiring replacements of its striking employees.
LONE STAR INDUSTRIES
On June 8, 1979, the Unions advised the Respondent
that the strike was terminated and that the strikers un-
conditionally offered to return to work. In its written re-
sponse dated the same day, the Respondent advised the
Unions that it had a good-faith doubt about their majon-
ty representative status . On June 18, 1979, the Unions
filed charges in Cases 5-CA-11062-1,-2 with the Board,
alleging withdrawal of recognition, in violation of Sec-
tion 8(a)(5) of the Act. The charges were transferred to
the Board upon stipulation in November 1979 and were
approved by the Board January 18, 1980.
On January 25, 1982, the Unions requested withdrawal
of the 8(a)(5) allegations in the cases , as well as the
8(a)(5) allegations in the instant proceeding, in an effort
to proceed with a representation election in Case 5-RC-
11730. The Board granted the withdrawal request and
dismissed the complaint in Cases 5-CA-11602-1,-2 on
February 17, 1982. Pursuant thereto, the Board issued an
Order on March 11, 1982, approving the withdrawal of
the 8(a)(5) allegation, and dismissing the 8(a)(5) allega-
tions in the amended complaint, the complaint, and the
charge in Case 5-CA-12015.' I granted a motion for
withdrawal of the 8(a)(5) allegations herein on March 11,
1982.
B Negotiation Discussions Between the Parties on
May 9, 1979
The controversy in this proceeding revolves around
what, if anything, the company and union representatives
said about recalling strikers in the May 9, 1979 negotiat-
ing meeting . According to the testimony of Regional
Employee Relations Administrator Robert H. Stevens,
the Unions' representatives asked the Company when
could the strikers go back to work. He said he told them
the strikers had all been replaced by new hirees. He also
said the Respondent did not state that the strikers would
be called in the order of seniority. In fact, he said at the
time the strike ended the Respondent had no need for
drivers so it had not given any thought to recalling or a
procedure for recalling the strikers. Although he was
and still is in charge of company policy regarding the
hiring and firing of employees, he said he was involved
only in an advisory capacity in the formulation of such
policy. Stevens stated that the last meeting in which the
Company discussed how the strikers would be recalled
was held on May 9, 1979. Present at that meeting were
Bowden, counsel for the Respondent, Division Manager
Bains, Sadler, Whiteherst, Riopelle, and Stevens. At that
time , Stevens said the Company's policy in recalling the
strikers was initially based on their availability and se-
niority, until the Respondent received a notice from its
legal counsel advising that the National Labor Relations
Board (herein the Regional Director for Region 5) dis-
missed the case previously filed by the Unions, and the
Company did not have to recall the strikers by seniority.
Stevens also testified, contrary to truckdriver wit-
nesses , that the Respondent had no policy of assigning
the new or best trucks to drivers on a seniority basis
either before or subsequent to the strike. However, when
i The facts set forth above are undisputed and are not in conflict in the
record
557
shown his affidavit (G.C. Exh. 22) given to the Board
during the investigation of the charge, in which stated
that the Respondent agreed with Locals 822 and 592 to
rehire the strikers as jobs became available on a seniority
basis, Stevens made an effort to explain this conflict in
his testimony and his affidavit by stating that at the time
(July 5, 1979), he understood that was what the Compa-
ny was going to do. However, he denied such under-
standing was ever discussed with the Unions
On cross-examination, Stevens further testified as fol-
lows:
Q. Okay, now then on the meeting that you said
that you attended on May the 9th. The company
gave you, do you recall whether the company gave
you the final proposal at that time?
A. The company on May the 9th, in the presence
of the mediator, Mr. Burnell, statement was, that
we don't need any drivers at the present time. The
employees have been replaced, we're not going to
get rid of them. We hired them, they wanted to
work and we're going to keep them
Q. You're talking about replacements now?
A. That's right. If the company's last offer as far
as economics was still on the table, retroactive pay
was withdrawn, and that, if and when, work
became available, you would call back the strikers
in seniority order.
Q. Alright, that was all part of that so-called
company offer then on May 9th, right?
A. They say so.
Similarly, Ronald (Ron) M. Jenkins, president of Local
592, testified that at the May 9, 1979 negotiation session,
the Respondent said that its last proposition still stood;
that the Company withdrew retroactive pay; and that
the strikers had been replaced but would be recalled as
needed in order of seniority, and restored with full se-
niority rights Jenkins' testimony was corroborated by
the testimony of Shop Steward John Maryland and
Union Steward Sampson Morris, who also testified that
the Respondent agreed to pay approximately 45 cents for
the first year and retroactive pay from February 9, 1979,
until the contract was signed 2
In a letter dated May 23, 1979 (G C Exh. 25), the
Unions (Axelrod) advised the Respondent's personnel
manager , Robert Stevens, as follows:
On behalf of Teamsters Local 592 and Teamsters
Local 822, I am unconditionally requesting rein-
statement on behalf of your striking employees. The
2 I credit the versions of Ronald (Ron) Jenkins, president of Local 592,
and Union Stewards John Maryland and Sampson Morris over the con-
fused version of the Respondent's regional employee relations administra-
tor, Robert H Stevens, not only because I was persuaded by their de-
meanor that they were testifying truthfully, but also because their ver-
sions were consistent and corroborative of one another's Moreover, Ste-
vens' testimony about the recall procedure was in conflict with his state-
ments in his affidavit , and I was not persuaded by his explanations or his
demeanor for that discrepancy I therefore credit his affidavit version of
how the Company agreed to recall the strikers because it was his first
version, and that version is more consistent with the credited versions of
Jenkins, Maryland, and Morris
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike will terminate immediately upon receipt of a
reply to this letter.
If you have any questions, please contact me at
your convenience.
The evidence does not show that the Respondent had
ever rescinded its prior offers at this juncture.
On June 7, Attorney Bowden called President Jenkins
and asked him when the Unions stood on the Company's
last offer. Jenkins advised Bowden that the offer was re-
jected by the employees, but Jenkins said he did not tell
Bowden it was rejected by the Unions. Subsequently, on
June 7 or 8, the employees met again and voted to
accept the Company's last offer.
In a letter dated June 7, 1979 (G.C. Exh. 26), counsel
for the Respondent (Bowden) advised the Unions (Axel-
rod) as follows:
Reference is made to your letter dated May 23,
1979, in which you stated:
On behalf of Teamsters Local 592 and Team-
sters Local 822, 1 am unconditionally requesting
reinstatement on behalf of your striking employ-
ees. The strike will terminate immediately upon
receipt of a reply on this letter.
On May 28, 1979, the Company acknowledged
this letter and stated: "We assume strike to be termi-
nated on receipt of this reply."
To date, there has not been any cessation in
strike activity, nor has there been any concerted un-
conditional request for reinstatement by the strikers.
On June 5, 1979, I contacted Mr. Ron Jenkins of
Local 592 in Richmond and he advised me that at a
meeting of strikers on June 1, 1979, the proposal
had been rejected. On June 6, 1979, I contacted Mr.
Ernest Hines of Local 822 and he advised me that
at a meeting of the strikers on June 1, 1979, the pro-
posal had been rejected.
In view of the foregoing, it is self-evident that
the subject matter of your letter of May 23, 1979
has been rejected by the strikers and we do not
view this letter as an [sic] continuing unconditional
request by the strikers to return to work.
However, the members of the Richmond facility had met
on May 31, 1979, and voted to reject the Respondent's
offer.
On June 8 Union Representative Axelrod notified the
Respondent by telegram (G.C. Exh. 23) as follows-
On behalf of Teamsters Local 592 and 822, I hereby
inform you that the strike against Lone Star is ter-
minated . The employees represented by the Unions
unconditionally request reinstatement and the
Unions are willing to sign the contract at your last
proposal. If you have any questions, please contact
me.
Jonathan G. Axelrod, Esq.
Attorney for the Unions
In response to the above letter (G.C. Exh. 23), Re-
spondent Attorney Otto R.T. Bowden sent a letter (G.C.
Exh. 24) to the Unions on the same (June 8, 1979), advis-
ing as follows:
All of the employees in each unit supported the
strike and refused to work. In order to accomplish
its obligations to its customers, the Company has
permanently replaced each of the employees who
engaged in the strike called on April 23, 1979.
Due to the facts enumerated above, the Company
entertains a good faith doubt that your local unions
continue to represent a majority of the employees in
the units . We, therefore, request that the question of
your Locals 592 therefore, request that the question
of your Locals 592 and 822 continued representa-
tion should be decided by a secret election conduct-
ed by the National Labor Relations Board. This re-
quest is made after due consideration of the
FLeetwood, Laidlaw and Guenther cases.
The question of representation is separate and
apart from the question of unconditional offers of a
reinstatement by striking employees. Any rights of
such replaced strikers will be accorded full recogni-
tion and will not be affected by the question of rec-
ognition.
After the Unions received the above-described letter
(G.C. Exh. 24) advising that it had a good-faith doubt of
the Union's continued majority status, President Jenkins
testified that the Unions did not contact the Respondent
for negotiations. He further testified that the Respondent
never notified the Unions that the strikers would not be
replaced, or if replaced, not assigned work by seniority.
Nor did the Respondent ever offer to bargain about such
assignment procedure.
Stevens further testified that the Company's good-faith
doubt about the Unions' continued majority status arose
right after the strike ended, at which time the Respond-
ent had already hired 180 replacements. He acknowl-
edged the Respondent did not express such doubts to the
Unions or to the mediator on May 9. However, he said
between May 9 and 29, the Respondent hired 35 replace-
ments in Richmond and 30 in Norfolk. Eight days later,
the Respondent notified the Unions about its doubt. At
the time the Unions offered to return to work, Stevens
said there were no job openings. The first batch of avail-
ability self-addressed cards were sent out on August 10,
1979. In the Richmond area , 51 out of the 66 cards were
returned, while in the Norfolk area, 73 out of 80 were
returned. Nevertheless, no strikers were reinstated from
the returned cards.
On October 25, 1979, the Respondent mailed 73 avail-
ability cards to Norfolk strikers and 60 were returned. It
mailed 51 availability cards in Richmond and 41 were re-
turned. No strikers were recalled, however. On January
17, 1980, the Respondent mailed 63 cards in the Norfolk
area and 53 were returned. It mailed 41 cards in the
Richmond and Petersburg area , 38 were returned, and all
of those strikers were rehired, 25 from Richmond and 17
from Norfolk, allegedly without loss of any credit for
past service or benefits.
In four prior collective-bargaining agreements between
the parties, article III, entitled, "Seniority" has been es-
LONE STAR INDUSTRIES 559
sentially the same in all the contracts , which read , in per-
tinent part as follows:
IIIA . In all matters involving layoff and recall,
the unit seniority shall prevail provided the employ-
ees shall have the ability to satisfactorily perform
the job.
IIIF . Drivers will be assigned their daily duties
by seniority insofar as is practical.
Several strike drivers testified that prior to the strike
the Respondent honored the above provision (F) and as-
signed them work in accordance with seniority. Since
their testimony is consistent with the above provision (F)
and essentially with the testimony of Stevens , I credit
their testimony.
Stevens testified that both the above clauses resulted in
some problems prior to the strike . He indicated that less
senior drivers sometimes were unable to be assigned suf-
ficient work as a result of this seniority practice. For
about a month after the stnke ended , the drivers were as-
signed work on a rotating basis . At the time the contract
expired , the wage rate was $4.80 per hour . Now it is
$6.03 per hour , after several increases were awarded. He
denied the Respondent ever refused to negotiate with the
Unions.
Glenn French, a former union official, testified that he
participated in negotiations of the 1968 contract and that
the layoff and recall provisions in article III were dis-
cussed to apply in a variety of situations , and that the
recall of strikers was not excluded under the article's
coverage . He also testified that the agreement provided
that any employee who participated in a wildcat strike
be disciplined by layoff or discharge under article XIIB.
However , Jenkins testified that in the 1970 negotiations,
article XIIB was deleted from the agreement because it
was duplicated in article XIII.
Stevens acknowledged on cross-examination that the
Company had an initial understanding , which lasted
through May 1980, that it would recall the strikers as
needed in order of seniority
Based on the foregoing credited conflicting testimony,
the essentially uncontroverted testimony , and the undis-
puted documentary evidence , I conclude and find that
the strikers herein were undisputedly economic strikers;
and that the above recall provision IIIA of the expired
contract between the parties does not address the prob-
lem of the recall of economic strikers . In Bio-Science
Laboratories , 209 NLRB 796, 796 (1974), the union con-
tended that the economic strikers were entitled to recall
in the order of seniority , as provided in a collective-bar-
gaining agreement , for recall from layoffs . The Board, in
upholding the administrative law judge 's rejection of the
contention , under the reasoning of Laidlaw Corp., 171
NLRB 1366 (1968 ), stated:
We agree , that under The Laidlaw Corporation un-
reinstated economic strikers do not have the statuto-
ry right to recall in accordance with a collective-
bargaining agreement provision covering recall
from layoffs where the parties have not agreed to
the application of such a clause to the reinstatement
of economic strikers.
In the instant proceeding the language IIIA specifical-
ly provides:
In all matters involving layoffs and recall, unit se-
niority shall prevail.
The language does not mention economic strikers and
recall ; consequently , the Unions herein cannot rely on
the language of IIIA of the recently expired contract as
authority for its contention.
However, it has been long-established Board law that
certain employee rights which accrue by virtue of a col-
lective-bargaining agreement survive the expiration of
the collective -bargaining agreement . In Bethlehem Steel
Co., 136 NLRB 1500, 1501 - 1503 (1962), the respondent
there deprived union representatives of certain seniority
rights and declined to process grievances as it did prior
to expiration of the contract . The trial examiner found
that seniority and failure to process grievances were not
related to terms and conditions of employment. In re-
versing this finding , the Board , on reconsideration , stated
that there could be little doubt that:
. . . union security , checkoff, preferential seniority,
and a grievance procedure are matters related to
"wages, hours, and other terms and conditions of
employment " within the meaning of Section 8(d) of
the Act and , therefore , are mandatory subjects of
collective bargaining.
The Board further stated that:
[A]cting unilaterally . . . . the Respondent abrogat-
ed these seniority rights and thus terminated the
benefits which had accrued to employees thereby.
Accordingly , I find that seniority which accrued to
the strikers prior to and under the expired collective-bar-
gaining agreement related to working tenure , wages,
hours, and other terms and conditions of employment
and, therefore , survived the expiration of the collective-
bargaining agreement . Consequently , the Respondent
was not exempt from the obligation to bargain about
changing work assignments or otherwise affecting such
rights by its procedure in recalling strikers.
Moreover, I further conclude and find that during the
May 9 negotiation meeting , the Respondent agreed to
recall the strikers as needed in accordance with seniority;
that in a letter on May 23 , the Unions unconditionally re-
quested the Respondent to reinstate the striking employ-
ees because the strike would terminate on the Unions' re-
ceipt of the Respondent 's reply ; that in a letter dated
June 7 , counsel for the Respondent stated that the Com-
pany acknowledged receipt of the Unions ' written re-
quest on May 28 and assumed the strike would conclude
on the Unions' receipt of this June 7 reply ; that about
June 7, counsel for the Respondent made a telephonic in-
quiry of the Unions about where they stood on the Com-
pany 's last agreed -upon proposal , and was advised by the
Unions that the striking employees had rejected or failed
to ratify the proposal; that subsequent thereto (about
June 7), the striking employees took another vote and
agreed to accept and ratify the agreed -upon proposal;
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on June 8, the Unions advised the Respondent by
telegram that the strike was terminated, the strikers un-
conditionally requested to return to work, and the em-
ployees and the Unions were willing to sign the contract
pursuant to the last agreed-upon proposal of May 9; that
on that same date, June 8, the Respondent sent a written
reply in which it expressed its doubt of the Unions' con-
tinued majority status and advised that the question of
the Unions' representative status should be decided by a
secret-ballot election conducted by the Board; that prior
to the Respondent's receipt of the Unions' June 8 tele-
graphic request to return to work, the Respondent had
not revoked or rescinded its May 9 proposal; and that
because the Respondent's proposal to recall the strikers
as needed in accordance with seniority was still in effect
at the time it received the Unions ' June 8 request, the
parties had reached an agreement on a procedure for the
recall of the strikers.
C. The Respondent's Procedure in Recalling the
Strikers
The Respondent's administrator, Robert Stevens, fur-
ther testified without dispute that the Company's officials
involved in recalling the strikers were Operations Man-
ager Joseph B. Sadler, Faville in Norfolk, and Atkins in
Richmond. Although Sadler was present in the court-
room throughout the trial and counsel for the General
Counsel called or attempted to call him to the stand as a
witness, counsel for the Respondent refused to permit
him to testify without the issuance of a subpoena. In
evaluating the testimony of the witnesses for the Unions,
an inference is drawn from Sadler's refusal to testify, that
if he had in fact testified, his testimony would not have
been in favor of the Respondent. Hamilton Avnet Elec-
tronics, 240 NLRB 781, 789 fn. 31 (1979).
Robert Stevens further testified that although he was
hospitalized during the time that the Respondent pro-
ceeded to recall the strikers on April 24, 1979, he said
some of the facts taken into consideration as a basis for
their recall were: If strikers had comparable employ-
ment , they were not recalled but the Respondent was not
sure about their wage rates or other benefits in consider-
ing this factor. Information was furnished the Company
on the cards returned by the strikers, or by a telephone
or letter from the strikers. For instance, Steven said
Sessom sent a letter that he was employed by Sadler Ma-
terials as a ready-mix driver, but he wanted to return to
Lone Star. Sessom did not state his wages or other bene-
fits. The Company excluded him from consideration of
recall because he needed to give 3 weeks' notice to
Sadler Materials and the Company needed his services
immediately. The Respondent would skip over Sessom
or any similar striker. Strikers probably would not be
skipped over if they could report within 72 hours' notice.
Also if strikers were physically unable to return the
Company would skip over their names. In one instance,
a striker showed up 2 hours late for an appointment for
recall and his name was put back in the pool. The Re-
spondent also considered the strikers' work records over
their seniority, based on the opinions or the statements of
the superintendent of drivers, the foremen, dispatchers,
or operating managers.
Stevens further testified that the Respondent proceed-
ed to recall the strikers in order of seniority in February
1980 until early May 1980, when Bowden, counsel for
the Respondent, received a ruling from the National
Labor Relations Board that the Respondent no longer
had to recall by seniority. In his letter (R Exh 20)
Bowden advised the Company: "Any pool or replaced
striker can be hired on a selected basis, without regard to
seniority." However, Stevens said he disregarded the
above memo for about 2 months when he continued to
hire by seniority.
In a letter from Local 592 dated February 1, 1980
(G.C. Exh. 15), Local 592 advised the Respondent that it
learned from its members that the Respondent had sent
them a reinstatement card to complete and return to the
Company. Local 592 thereupon requested the Respond-
ent to furnish it a list of the employees who were sent an
availability reinstatement form-card and a list of the em-
ployees who were not sent such cards and/or the reasons
they were not sent such cards.
The Respondent's regional employee relations adminis-
trator, Robert H. Stevens, testified that the Respondent
did not respond to the above letter of request (G.C. Exh.
15). He acknowledged that after the Respondent was no-
tified of the termination of the strike on June 8, the Re-
spondent did not offer to bargain with the Unions about
how the strikers would be recalled or how they would
be assigned work routes, if and after they were recalled.
The Respondent sent availability cards to all strikers
except those who were convicted of crime. If a striker
did not respond to the card, the Respondent did not send
a second card.
Henry O. Dillard, a truckdriver in the Respondent's
employ since 1974 and member of Local 882 went on
strike from April 23, 1979, until June 8, to Bill Faville,
who asked him if he would come back to work. Dillard
said he asked Faville if he thought it would be right if he
would return over the seniority of other strikers. Faville
responded that he had the authority to hire whomever
he wanted to hire. However, Dillard did not return to
work.
Thomas Harris has been in the employ of the Respond-
ent in Richmond since 1971. He testified that on March
6, 1980, he received a letter (G C. Exh. 3) from the Re-
spondent on Sadler instructing him to report to Atkins
on March 17 at 10 a.m. on Dock Street. He called the
Company on March 17 before 10 a.m. and told them he
would be a few minutes late because he had a matter to
clear up at the Department of Motor Vehicles. He ar-
rived at work at 10:15 a.m. where Atkins saw him 7 feet
away, looked at him, and went into his office. Harris said
he waited 2-1/2 hours and finally, he continued to testify
as follows:
A We went inside, I sat down, and he pulled out
my DMV record, asked me for my jobber 's license,
I presented him with my jobber's license. He said,
"You know you were supposed to be here at 10:00
o'clock." I said, "Well, I called your building and
told her I was going to be a little late." He said,
"Well, your appointment was at 10:00 o'clock.
We'll take and put your name back into the pool
LONE STAR INDUSTRIES 561
and call you when you're needed." That was the
last of it.
Harris said the only reason he was given for not being
rehired was that he was too late. Since that time he has
not heard anything from the Company.
Melvin Brown testified without dispute that he received
a card in August 1979, and returned it to the Company
the next day, indicating he wanted to return to work and
could return within 24 hours. On cross-examination he
said he did not contact the Union about the card nor did
he call any person at the Company because the card read
if any work became available, the Company would so
advise him. He followed the instructions on the card.
Robert G. Rutledge, in the employ of the Respondent
since 1973, is now employed by the Respondent. He tes-
tified he went on strike and was recalled October 1,
1980, and is currently paid $6.03 per hour, which is more
than he was earning when he left. Before being recalled,
he was working as a ready-mixed truckdriver. The Re-
spondent's truckdrivers' foreman, Slim Savavger, knew
he was working at ready mixed, and so did Plant Super-
intendent Riopelle, but the latter was a cement salesman
at the time. When he returned to work, assignments
were not being made on seniority and he was not able to
earn as much money.
Lee Perry was in the Respondent's employ since 1965.
He undisputably testified that he received an availability
card from the Respondent which he returned. Company
records indicate he worked for the city of Portsmith, but
Perry denied he ever worked for Portsmith. The Compa-
ny's records also said he worked for ITT Gateway.
Perry said he worked at ITT Gateway for 2 months as a
hot dog packer, not as a truckdriver as he had been at
Lone Star. Perry testified that at Gateway he was earn-
ing $4.27 per hour, plus benefits after 90 days. He stated
that he worked at a funeral home part-time 3 months,
whenever they had a funeral He worked three funerals
during the entire period. He testified that no one from
the Company called and inquired about the types of jobs
he held. While employed at Lone Star, he did not re-
ceive any warnings or suspension.
Curtis Bonner was employed by the Respondent since
1974. He went on strike and reported back to work Oc-
tober 1980. He received a letter from Sadler dated June
16, 1980, but actually received it in late September 1980
to report to work on October 3. Bonner said he had
moved from his former address of which fact he said he
had informed the Respondent on its card. The card dated
January 29, 1980, is identified as the General Counsel's
Exhibit 36T.
John Hill was in the Respondent's employ since 1968.
He went on strike but was recalled June 30, 1980. He
was told he had to work a whole year before he could
get 3 weeks' vacation pay, which meant he had to work
6 months. He acknowledged the new rotating system in
assigning work gives every driver a chance to perform
extra work.
Sampson Morris was in the Respondent's employ since
1954. He was steward and trustee on the executive board
for Local 822 since 1968. He went on strike and attended
all negotiation sessions fom 1968 through May 9, 1979,
when Federal Mediator Joe Mazza was present. The Re-
spondent offered to recall the strikers according to se-
niority on an as-needed basis. Morris said he received
Sadler's letter dated February 26, 1980, instructing him
to report for reinstatement on March 5, 1980, at 10 a.m.
He so reported and was told by Bill Faville he would be
returning to work the next day March 6, that the Re-
spondent had checked the Department of Motor Vehicle
records and it seemed okay. Faville said they would not
be working under union rules and regulations, but they
would get a truck but not an opportunity to select a
truck; not a new truck but a "pretty good" truck, and
that he could work up to a better truck He instructed
Morris to obtain a medical examination and report to
work at 7 a.m., March 6. He did return on March 6 with
a written statement to Faville from Company Physician
Dr. Guilaran The doctor told Morris he had diabetes
and asked him if he wanted to correct it. Morris said,
"Yes," and thereupon informed Faville the doctor told
him to report to Lela Moore Hospital the next day at 6
a.m. for blood 'screening. He did so, and reported to
work at 7 a.m. When he arrived at work his timecard
was not in the rack. He was advised by Foreman Jack-
son that Faville was not there and he waited until 1:30
or 2 p.m. Thereafter he went home and called back sev-
eral times. Finally Morris contacted Faville and Faville
told him the doctor found sugar in his urine so he had to
get the final results because the insurance policy prohib-
ited the Company from working an employee with
sugar.
Morris reported to the doctor on Saturday, March 8,
and he informed the doctor that the Respondent had re-
fused to put him to work because of the sugar. The
doctor told him there was no reason why he could not
have returned to work and got the screening results and
wrote a report (G.C. Exh. 43) which certified that a phy-
sician had examined Morris. Morris thereupon called Fa-
ville and explained what the doctor said but Faville said
he was sorry. Thereafter, Morris sent the card (G.C.
Exh. 43) to Sadler. Faville accepted the card and told
Morris he would call him whenever the Company
needed help, but he did not receive a call from Faville.
He said Faville knew he was a union steward from the
past dealing. He denied the Company told him it was
concerned with him having dizzy spells while driving a
truck.
Stevens testified that prior to the strike the Respond-
ent did not require its drivers to have physical examina-
tions and the replacements hired by it during the strike
did not have one.3
Based on the foregoing credited evidence, I conclude
and find as follows:
3 I credit the foregoing undisputed testimonial accounts of Robert Ste-
vens, Henry Dillard, Thomas Harris, Melvin Brown, Robert Rutledge,
Lee Perry, Curtis Bonner, John Hill, and Sampson Morris with respect to
how the Respondent recalled or did not recall the employees who went
on strike against the Company I credit their testimony not only because
it is uncontroverted (the Respondent having called only one witness and
having refused to permit Operations Manager Sadler to testify ) but also
because I was persuaded by their demeanor that they were testifying
truthfully
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Prior to the strike (April 23, 1979), the Respondent
had followed the practice of assigning daily work and
overtime on the basis of seniority since 1954.
(2) The practice of work assignment by seniority con-
tinued even after the Respondent recognized the Unions
in 1968, and the practice was subsequently incorporated
in section IIIF of the collective -bargaining agreement (R.
Exh. 1) between the parties.
(3) Subsequent to the strike and also upon recall of
strikers, the Respondent abandoned the assignment of
daily work and overtime on the basis of seniority and
substituted therefor, a rotation procedure wherein all em-
ployees were equally assigned to work and overtime.
(4) The assignment by rotation procedure diminished
or precluded the senior workers from earnings as much
money and permitted the junior workers to earn as much
money as the senior workers.
(5) Initially, the Respondent recalled strikers in ac-
cordance with seniority but later proceeded to call them
on various criteria other than seniority.
(6) The Respondent did not bargain or offer to bargain
with the Unions about the change in work assignments
or in its recall procedure.
(7) The Respondent did not offer any objective evi-
dence of a business justification for unilaterally changing
either the seniority work assignments or recall other than
by seniority.
(8) Since the elimination of work assignments by se-
niority caused senior employees to earn less money and
junior employees to earn as much money as their senior
counterpart, the work assignment change discriminatori-
ly affected employees' wages, hours, and other terms and
conditions of employment, in violation of Section 8(a)(1)
and (3) of the Act.
(9) Since work assignment by seniority was derived
from seniority, the Respondent's failure to recall strikers
by seniority discriminatorily affected work tenure, as
well as the wages, hours, and other terms and conditions
of employment of employees whose seniority was
skipped over from recall, in violation of Section 8(a)(1)
and (3) of the Act.
Analysis and Conclusions
Since the credited evidence of record clearly estab-
lished that some employees who participated in the strike
were not recalled in order of seniority, and that due to
the Respondent's change in its practice of assigning work
on the basis of seniority, employees with greater seniori-
ty were prevented from earning as much money as they
did prior to the strike. Employee Hill undisputedly and
credibly testified he estimated that as of the time of the
hearing herein, he lost as much as $2000 that he would
have earned, had the Respondent not changed its work
assignment policy after the strike ended. Stevens ac-
knowledged that the recalled strikers sustained an earn-
ing loss as a result of the work assignment change. I find
such result of the Respondent 's unilateral change in
policy substantially destructive of employee rights and in
violation of Section 8(a)(1) and (3) of the Act. The Re-
spondent did not present any evidence of a legitimiate
business justification for not recalling strike employees in
accordance with seniority or for changing its procedure
in making work assignments. At most, the Respondent
offered testimony to the effect that employees with less
seniority did not get an opportunity to earn overtime or
to have sufficient work earn more money. While this
consideration of the Respondent may be considered com-
passionate or noble , it can hardly serve as a legitimate
business (financial) justification to support its conduct
under the circumstances.
In NLRB v. Great Dane Trailer, 388 U.S. 26, 34 (1967),
cited by both counsel , the Supreme Court outlined cer-
tain specific criteria governing the recall of economic
strikers as follows:
First, if it can reasonably be concluded that the em-
ployer's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ-
er introduces evidence that the conduct was moti-
vated by business considerations. Second, if the ad-
verse effect of the discriminatory conduct on em-
ployee rights is "comparatively slight," an antiunion
motivation must be proved to sustain the charge if
the employer has come forward with evidence of
legitimate and substantial business justifications for
the conduct. Thus, in either situation, once it has
been proved that the employer engaged in discrimi-
natory conduct which could have adversely affect-
ed employee rights to some extent, the burden is on
the employer to establish that it was motivated by
legitimate objectives since proof of motivation is
most accessible to him.
With respect to the gravity of the effect the change in
work assignment procedure had on employees' rights,
the Supreme Court stated in NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 380 (1967), as follows.
Great Dane Trailers determined that payment of va-
cation benefits to nonstrikers and denial of those
payments to strikers "carried a potential for adverse
effect upon employee rights." Because "no evidence
of a proper motivation appeared in the record," we
agreed with the Board that the employer had com-
mitted an unfair labor practice.
See also Textron, Inc., 257 NLRB 1 (1981).
With respect to the Respondent's failure to recall some
strike employees in accordance with seniority, the Board
in Laidlaw Corp., 171 NLRB 1366, 1366 (1968), held, in
affirming the trial examiner that:
. . . replaced economic strikers who have made an
unconditional application for reinstatement, and
who have continued to make known their availabil-
ity for employment, are entitled to full reinstate-
ment to fill positions left by the departure of perma-
nent replacements. In arriving at this conclusion, we
specifically find that Respondent has not shown any
legitimate and substantial business justification for
not offering full reinstatement to these strikers and,
that, accordingly, the failure to make such an offer
LONE STAR INDUSTRIES 563
constitutes an unfair labor practice even without
regard to Respondent 's intent or union animus.
Additionally , as the Board pointed out in Consolidated
Dress Carriers , 259 NLRB 627 (1981 ), an economic strike
is deemed protected activity within the meaning of the
Act and the strikers do not lose their status as employees
under Section 2(3) of the Act.
Although striker Sampson Morris was recalled, he was
diagnosed a diabetic after he submitted to a company-re-
quired prereinstatement physical examination . The Com-
pany 's examining physician nevertheless advised the Re-
spondent to the effect that Morris' diabetes was treatable
and certified him eligible for work . Morris reported to
work but the Respondent , notwithstanding , refused to
put him to work. At the trial the Respondent said it was
concerned about Morris having blackouts on the job as
did a previous employee . However , there is no evidence
that Morris had such blackout episodes and Morris
denied the Respondent expressed any such concern to
him I credit Morris ' denial . It was not disputed, and I
was persuaded by his demeanor that he was telling the
truth . Moreover, since the physical examination require-
ment was initiated by the Respondent just prior to the
recall of the majority of strikers , and most of the strike
replacements were hired without such examination, the
arbitrary and discriminatory character of the required ex-
amination is revealed . A similar factual situation oc-
curred in Woodlawn Hospital , 233 NLRB 782, 794 (1977),
in which the Board said:
Additionally, three strikers were offered reem-
ployment but then disqualified by failure to pass re-
employment physical examinations . The evidence
clearly indicates that such physical examinations are
normally required only of new employees. Re-
spondent adduced no evidence of any economic or
business justification for imposing the requirement
on strikers seeking reinstatement . By treating these
strikers as new employees Respondent violated the
Act. Globe Molded Plastic Co., supra . Cf. General
Electric Company, 150 NLRB 192, 284, fn. 160
( 1964), enfd. 418 F.2d 736 (C.A. 2, 1969 ), cert.
denied 397 U.S. 965 ; Isaac and Vinson Security Serv-
ices, Inc., 208 NLRB 47, 54.
The undisputed and credited evidence also established
that the Respondent failed to offer reinstatement to strik-
ers whom it considered were engaged in comparable em-
ployment . However , an examination of the Respondent's
evaluation of "comparable employment" reveals that it
only determined whether the striker was employed, and
it made no effort to ascertain information whether such
employment was part time , what was the striker 's earn-
ings or wage rate , or what were his fringe benefits. Ste-
vens acknowledged that the Respondent 's information on
the employment status of the strikers was perfunctory.
Under such circumstances , I cannot conclude that the
Respondent even made a colorable good -faith effort to
establish comparable employment . The burden to estab-
lish that a striker eligible for recall has obtained regular
and substantially equivalent employment as grounds for
denying him reinstatement is on the Respondent , and this
proof obligation is not a subject reserved for compliance.
The Respondent herein has obviously failed to discharge
that burden . Woodlawn Hospital, supra at 790-791.
Thus , the record is replete with evidence that the Re-
spondent not only failed to recall some strikers in the
order of seniority, but that it recalled them in a discri-
minatorily (picking and choosing) fashion , without offer-
ing any legitimate business justification for doing so, in
violation of Section 8 (a)(1) and (3) of the Act. The Re-
spondent also discriminated against some of its recalled
strike employees by changing its mode of assigning work
on the basis of seniority . Such change had a substantial,
destructive , and discriminatory impact on employees'
Section 7 rights , in violation of Section 8(a)(1) and (3) of
the Act.
The uncontroverted evidence of record further estab-
lished that in the course of recalling the strikers , the Re-
spondent disqualified the reinstatement of strikers from
whom it did not receive a response or the return its
available cards . In some instances the strikers did not re-
ceive the Respondent 's card . Nevertheless , such disquali-
fications were in violation of Section 8(a)(1) and (3) of
the Act . Charleston Nursing Center , 257 NLRB 554
(1981).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in close connection with its oper-
ations, as described in section I, above , have a close, ini-
timate , and substantial relationship to trade , traffic, and
commerce 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)(3) and ( 1) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It having been found that the Respondent interfered
with , restrained, and coerced its employees in the exer-
cise of their Section 7 protected rights by discriminatori-
ly not recalling economic strike employees in the order
of seniority ; and that the Respondent further discriminat-
ed against the recalled employees by changing their
work assignments without doing so in accordance with
their seniority , and to their loss of substantial or signifi-
cant earnings , the recommended Order will provide that
the Respondent cease and desist from engaging in such
conduct , and that it make the laid -off employees whole
for any loss of earnings within the meaning and in
accord with the Board 's decision in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp ., 231 NLRB
651 (1977),4 except as specifically modified by the word-
ing of such recommended Order.
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that
the Respondent cease and desist from or in any other
manner interfering with, restraining , or coercing employ-
ees in the exercise of their rights guaranteed by Section 7
of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
On the basis of the above findings of fact and on the
entire record in this case , I make the following
CONCLUSIONS OF LAW
1. Lone Star Industries, Inc. is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Teamsters Local Union 822 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Teamsters Local Union 592
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America are, and have
been at all time material herein , labor organizations
within the meaning of Section 2(5) of the Act.
3. By failing and refusing to recall economic strike em-
ployees for reinstatement in accordance with seniority,
the Respondent has violated Section 8(a)(1) and (3) of
the Act.
4. By disqualifying the reinstatement of strikers from
whom it did not receive a response or the return of its
availability cards, the Respondent has violated Section
8(aXl) and (3) of the Act.
5. By changing the assignment of work of recalled
economic strike employees, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]