Mid-County Transit M ix, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid-County Transit Mix, Inc. and Benjamin Men- dolia. Case 29-CA-7974 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 4, 1982, Administrative Law Judge Winifred D. Morio issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Mid-County Transit Mix, Inc., Smithtown, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not expressly found. I The General Counsel and the Respondent have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Producrs. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law Judge: This case was heard before me on June 22, 23, and 25, July 9, and August 13, 1981, in Brooklyn, New York, pursuant to an amended complaint and notice of hearing which was issued on June 10, 1981, by the Regional Director for Region 29.' The allegations in the amended com- plaint were based on charges filed by one Benjamin Mendolia on April 30, 1980, in the above-captioned case, I The original complaint and notice of hearing was issued on Novem- ber 18, 1981. 264 NLRB No. 107 against Mid-County Transit Mix, Inc. (Respondent). In substance, the amended complaint alleges Respondent violated Section 8(a)(1) and (3) of the Act in that it re- fused to reinstate its employees, with the seniority rights which they had accrued prior to a strike, which com- menced on or about March 25, 1980, and because the employees engaged in a work stoppage, strike, and pick- eting at Respondent's plant at Smithtown, New York.2 It further alleges that Respondent violated Section 8(a)(1) and (3) of the Act in that it failed and refused to rein- state Benjamin Mendolia, Arthur Allen, and Peter Appel, each of whom had made unconditional offers to return to work at a time when jobs were available. During the hearing the General Counsel moved to amend the com- plaint to allege that the strike, which had commenced as an economic strike, was converted to an unfair labor practice strike by virtue of the above conduct and by virtue of threats alleged to have been made to Benjamin Mendolia.3 The motion was granted. The General Coun- sel also withdrew the name of James Riddick as one of the discriminatees from the complaint. Finally, the Gen- eral Counsel stated that in addition to the theory set forth in the complaint it was also his theory that the indi- viduals named in the complaint were discriminated against because of their activities on behalf of Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 282). Re- spondent denied that it had engaged in the conduct as al- leged. All the parties were given a full opportunity to partici- pate in the proceeding, to introduce all relevant evi- dence, to cross-examine witnesses, to argue orally, and to file briefs. A brief was filed by the General Counsel. Upon the entire record in this case, and my observa- tion of the demeanor of the witnesses, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Mid-County Transit Mix, Inc., a New York corpora- tion, maintains offices and places of business at Terry Road, in the Village of Smithtown (the Smithtown facili- ty), at Colin Road, Village of Yaphank (the Yaphank fa- cility), and at Muncy Avenue, Village of Lindenhurst (Muncy facility), all in the County of Suffolk, State of New York, where it is and has been at all times material herein engaged in the manufacture, sale, and distribution of ready-mix concrete material. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, purchased and caused to be transported and de- livered to its various places of business, cement, gravel, and other goods and materials valued in excess of $50,000, of which goods and material, valued in excess of 2 All dates will refer to 1980, unless otherwise stated. I In the brief submitted after the hearing closed the General Counsel alleges that the threat to Mendolia constituted a discharge in violation of Sec. 8(a)(1) and (3). The General Counsel did not amend the complaint to include this allegation. In view of my finding below it is not necessary to consider this issue. 782 MID-COUNTY TRANSIT MIX, INC. $50,000 were delivered to its places of business in inter- state commerce directly from States of the United States other than the State in which it is located and in foreign commerce directly from foreign countries. The parties admit, and I find, that the Respondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 424, United Brotherhood of Industrial Workers (Local 424), was party to a collective-bargaining agree- ment with Respondent prior to the strike. The parties did not dispute that Local 424 and Local 282 were labor or- ganizations within the meaning of Section 2(5) of the Act and I so find. 11. BACKGROUND Joseph Muratore and Rocco Muratore are father and son. This relationship and its impact on their business concerns is a matter involved in these proceedings. Ac- cordingly, it is necessary to set forth certain liackground facts. Joseph Muratore was the president of two compa- nies called Twin County Transit Mix, Inc., and Twin County Industries, called collectively (Twin County). During the period that Joseph Muratore was president of these companies his son, Rocco Muratore, was the gen- eral manager of the operations. In or about 1968, based on charges filed by Local 424, this agency found that Twin County violated Section 8(a)(1), (2), and (3) of the Act by assisting Local 282 and recognizing it and enter- ing into a collective-bargaining relationship with it when Local 282 did not represent an uncoerced majority of Twin County's employees.4 This decision by the Board was enforced by the United States Court of Appeals for the Second Circuit on October 24, 1968. At some point thereafter Local 424 became the collective-bargaining representative for Twin County's drivers and collective- bargaining agreements were executed between Twin County and Local 424, the most recent of which was the one executed in 1977, effective to 1980. In or about April 1979 Joseph Muratore ceased the operations of Twin County and sold its plants and equipment to Respondent, a new corporation formed by his son, Rocco Muratore, and his brother, Anthony Muratore. These two are the only stockholders and officers of Respondent. s In July 1979 Respondent entered into an agreement with Local 424 whereby Respondent accepted the transfer of Twin County's employees to its payroll and agreed to be bound by the terms of Local 424's 1977-78 collective- bargaining agreement with Twin County. 6 Hank Miller, Local 424's business agent, testified that at the time this agreement was executed he was told that Joseph Mura- tore would not be involved in the operations of Re- spondent. The record in this case discloses that Joseph Muratore had no financial interest in Respondent, nor 4 Cases 29-CA 1223, 29-CB 457, 29-CA-1223-2, and 29-CB-457 2. 5 Joseph Muratore, presently, is chairman of Peconic Bank located in Suffolk County and also is engaged in operating a company which sells farm equipment G.C. Exh. 4 did he exercise control over its day-to-day operations. There is evidence, however, that prior to the strike he visited the premises of Respondent, sometimes on a weekly basis, and exchanged pleasantries with the driv- ers, many of whom had worked for him for years when he operated Twin County. There is also evidence that on these occasions he also spoke with his son, in his son's office, but the substance of these conversations is un- known. 7 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Negotiations and Strike At the time of the events involved herein, Respondent had 10 employees; 9 of these employees drove concrete mixer trucks and 1, James Riddick, normally drove a trailer-tractor, although on occasion he did drive a con- crete mixer truck. Prior to on or about March 24 or 25, the seniority of these employees was as follows: Robert White, Benjamin Mendolia, Arthur Allen, Elza Wilker- son, Curley Glover, James Reddick, Peter Appel, Joseph Navas, William Kimbrough, and Richard Sloane. Senior- ity was determined by the length of service with the Company and the employee with greater seniority, gen- erally, went to work first. 8 The order in which the men went to work determined usually the number of hours they worked. Thus, those employees with the greater se- niority started work earlier and, generally, worked every day, while those with lesser seniority faced the possibil- ity of not working at all on certain days.9 In some cir- cumstances an employee with lesser seniority would take a truck out prior to an employee with the greater senior- ity, however, the employee with greater seniority would be "punched in" first.' ° Prior to 1979, Local 424 had represented Twin County's drivers, and had collective- bargaining agreements covering all drivers in one unit. This situation continued when Respondent assumed the 1977-80 contract, at the time it commenced operations in 1979. In December 1979, Local 424 requested that Re- spondent begin negotiations for a new contract to suc- ceed the 1980 contradt, which was to terminate on Feb- ruary 28, 1980. Negotiations for a new agreement com- menced about February 28, according to Hank Miller, president of Local 424. Present at the initial session were Miller, representing Local 424, Rocco Muratore, and Leonard Kimmel, counsel for Respondent. This initial meeting was unsuccessful and a second meeting was held on March 18, at which time, in addition to the above- named individuals, Benjamin Mendolia, the shop stew- ard, was present. Mendolia had been employed by gTwin County from 1964 and was transferred to Respondent in 1979. He had been shop steward for 6 years. I Mendolia 7 This office, apparently, was Joseph Muratore's office % hen the prem- ises were owned by Twin County and when he visited his son he occu- pied the same chair that he had used when the company was Twin County. This was due to Rocco Muratore's deference to his father. s G.C Exh 3, art VIi 9 It appears that the seniority the men had with Twin County was car- ried with them when they were transferred to Respondent's payroll. t0 An employee was onl' punched in, that is considered "on the clock," when he actually got a truck to take out. I Mendolia apparently was shop steward during the existence of Twin County. 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claimed that this was the first time that he was present at a negotiation session, although, in his capacity as shop steward, he had discussed money matters in the past with Joseph Muratore. The second meeting was as unsuccess- ful as the first, and on either March 25 or 26, a strike commenced at the Smithtown facility.12 Of the 10 driv- ers, 9 participated in the strike, which began at the Smithtown plant with the strikers carrying signs which contained the legend, "Mid-County on Strike, Local 424."'3 The first notice given to Respondent of the strike action was at 6:45 a.m., about 15 minutes before the men were to start work when Mendolia informed the bacher that there was a strike.14 It is undisputed that Rocco Muratore was angry about the manner in which the strike started, without prior notice, because he had orders which had to be filled and he had cement ready to be delivered that day.1 5 The strike continued until on or about April 23 when it ceased. B. The Events of March 25 to March 30 The versions of the events that occurred during the first few days of the strike vary but all agree that Joseph Muratore came to the picket line the first or second day of the strike. Miller testified that Joseph Muratore came to the picket line on three occasions during the first few days of the strike. On the first occasion he told the strik- ers that his son was caught in the middle, that he was going to offer his services as a mediator, although he did not know if his son would accept his proposal. Muratore then walked toward the office, apparently to Rocco Muratore's office, returned shortly thereafter, and an- nounced that he would be in on the negotiations, he asked the men to return to work and stated that negotia- tions would follow upon the return by the men to work. The men refused to return to work. The following day Joseph Muratore came to the picket line and told the strikers that they were not going to put him out of busi- ness. He was alone at the time he made the statement. Later that day he accompanied Rocco Muratore when Rocco was taking pictures of the strikers. Miller asked when negotiations would start but neither Rocco nor Joseph Muratore responded. According to the testimony of Mendolia, Joseph Muratore came to the picket line the second day of the strike and told the strikers that he was present at the request of his son. Muratore then stated that he was going to speak with his son, he walked to the office, and returned within a few minutes. At that point he stated that he "was in the picture," the strikers had to deal with him, and he told the men to ask Rocco for their jobs. Mendolia claimed that during this i2 There was uncertainty as to the exact date the strike started. How- ever, at the meeting held the evening before the strike, the employees agreed to strike the following day because of the failure to reach an agreement on a contract, the basic problem being wages. I3 Riddick was on sick leave and did not participate in the strike. Red- dick's name, as noted, was withdrawn from the complaint. According to Miller, the strike signs were taken by all the men. Mendolia testified that the signs were taken by White, Appel, and himself. In any case during the first few days of the strike it appears that all the men carried the signs at some point. i4 A bacher is responsible for putting the cement onto the truck. 15 Muratore was still angry as was evident during the hearing about the way the strike started. meeting Joseph Muratore stated that Mendolia was the cause of all the trouble. Mendolia testified that Miller was sitting with him at the time but Miller did not sup- port this testimony. Mendolia did not recall that the word "mediator" was mentioned by Joseph Muratore. Peter Appel testified that on the first day of the strike Joseph and Rocco Muratore came to the picket line to- gether, Joseph stated that the strike was ruining his busi- ness, and Rocco asked if the men were going to return to work. The men, according to Appel, stated that they would return if they had a settlement. Appel further tes- tified that on March 31 Joseph Muratore again came to the picket line and urged the men to return to work but the men stated that they wanted the negotiations settled first. In this conversation Joseph Muratore said that he would be the representative for Respondent, he did not use the word "mediator." According to Appel he did not hear any statement being made to Mendolia about Men- dolia being the cause of the strike. Arthur Allen testified that about 2 days after the strike started, Joseph Mura- tore came to the picket line and told the strikers that, al- though it was not his company and he was not involved in it, he would speak to his son about the situation and report back to the men. He then went to the office, came back within a brief period, and said he was hired as a consultant and ask the men to work. The men refused to do so without a contract. There is no evidence from Allen's testimony that Rocco Muratore was present at the time. Curly Glover, another one of the strikers, testi- fied that about the second day of the strike Joseph and Rocco Muratore came to the picket line together. Joseph Muratore stated that when his son hurts, he hurts, and he urged the men to return to work. The men refused to return. Glover testified that Rocco Muratore said noth- ing during this meeting. Accotding to Rocco Muratore's testimony, his father came to the plant the second day of the strike and, in his office, urged him to get together with the men but he told his father to mind his own busi- ness. He further testified that he told his father that be- cause of what the men did to him they could "rot out there." In response to his comments, his father stated that he had the wrong attitude and he urged him to talk to the men. Rocco responded that he was going to ad- vertise for new employees, which in fact he did.1 6 Not- withstanding Rocco's instructions to his father, Joseph Muratore continued to appear at the picket line and con- tinued to urge the men to return to work. C. Resignation From Local 424, Affiliation With Local 282 On or about March 30, the men decided that the strike was not successful because they had not been able to prevent the stoppage of deliveries either to or from the plant. At this point Mendolia, White, and Appel met with Hank Miller, at Local 424 offices, and they told Miller that the men wanted to withdraw from Local 424 and they wanted to join Local 282. Miller agreed with "1 Joseph Muratore apparently had a close relationship with the men, mrny of whom had worked for him for years. Rocco Muratore, by his oW I account, had a more excitable disposition than his father and was more abrupt with the men. 784 MID-COUNTY TRANSIT MIX, INC. their decision but to protect the local he asked the men to sign a petition announcing their resignation from Local 424. 1 The petition was drafted by Appel and was signed by the five strikers who were present.-s During this meeting Mendolia called Local 282 and spoke with Ed Silvera, a Local 282 representative, and asked about the possibility of the men joining Local 282. A meeting to discuss the matter was arranged for the following day at a nearby restaurant. s Miller testified that on March 31 he sent a registered letter to Rocco Muratore, advis- ing him of the decision by the men to resign from Local 424 and join Local 282. Notwithstanding this letter Miller, in a last-ditch effort to settle the conflict, called Rocco Muratore and asked for a meeting to resolve the strike. Rocco agreed to meet but asked whether his father could be present. Miller approved and the meeting was set for the following day. However, the following day Rocco called to cancel the meeting because his father was not available. Miller urged him to attend, nev- ertheless, and, although Rocco did promise to come, the meeting subsequently was canceled by Rocco's secretary. There was no further contact between representatives of Local 424 and Respondent's representatives. The first meeting scheduled with Silvera was held on either March 31 or April 1. Present at the meeting, in ad- dition to Silvera and Mendolia, were strikers Appel, White, and Sloane. The men who were present signed authorization cards for Local 282 and Mendolia received additional authorization cards to secure signatures for the men who were not present.2 0 Silvera explained to the men that they could not carry Local 282 signs at that point because of the difficulty Local 282 had with this agency over its efforts to organize Respondent's employ- ees while they were represented by Local 424.21 When Mendolia secured the additional authorization cards he called Silvera and arranged a second meeting. During this meeting, which occurred about 9 a.m., Mendolia told Silvera when he gave him the pledge cards that he wanted Silvera to give a contract to Respondent with the understanding that the men would be returned with their seniority. D. The Alleged Offers To Return to Work Made on Behalf of All Strikers There allegedly were two offers to return to work made on behalf of all strikers: the first occurred on April 3 and was made by Mendolia, the second occurred on April 7 and was made by Sasso, the Local 282 repre- 7 G.C. Exh. 7. Is Silvera testified that Mendolia, White, and Appeal were present. Mendolia testified that, in addition, Allen and Sloane were present. The petition was subsequently signed by all the men. iS There is some confusion as to whether the meeting with Miller oc- curred on March 30 or 31. 10 Mendolia secured signatures from all the other men including Rid- dick on or about April 1. I The signs carried by the men after their withdrawal from Local 424 had only the words, "On Strike." There is no indication that Respondent was aware that a meeting with Local 282 had taken place or that the men had signed cards for Local 282. Nor is there evidence that Respondent was aware of any involvement by Mendolia, Appel, or Allen in these events. sentative. Respondent denies that the first offer was made but admits that the second offer was made. As stated above during the first few days of the strike Joseph Muratore requested the men to return to work but the men refused to do so unless there were negotia- tions for a contract. 2 1 On some occasions Muratore stated that the men should return to work first and then negotiations would follow and on others he simply asked the men to return to work. According to the testimony of Mendolia and Allen, Rocky Muratore was not present at the time these statements were made. Glover testified that Rocco Muratore was present on one occasion but did not speak. Appel also testified that Rocco Muratore was present on one occasion. It appears from the com- bined testimony of all the witnesses that Joseph Mura- tore wanted the men to return to work with negotiations to follow, while the strikers wanted the negotiations to start prior to their return.2 2 On April 3, according to Mendolia, in the vicinity of the picket line at the Smithtown facility, he spoke to Joseph Muratore in the presence of Arthur Allen, one of the strikers.23 During this conversation he requested Muratore to reinstate all the men with their regular se- niority and Muratore responded by asking Mendolia what he (Muratore) should do with the replacements. Mendolia replied that the replacements could be put at the bottom of the list but Muratore said that he could not do this to them. At this point Muratore also told Mendolia that he would never be reinstated because the strike was his fault, he was the steward, and it was his responsibility to have the men return to work.2 4 Allen, according to Mendolia, at this point told Muratore that the decision to strike was a decision made by all the men. Allen did not testify about this alleged offer to return to work or about the alleged threat. 25 Further- more, the record fails to disclose that Mendolia had a meeting with the men to discuss the alleged "threat" and there is no evidence that the picketing continued because of it. On the following day, April 4, according to Appel, Joseph Muratore, in the vicinity of the picket line, again asked all the men, including Mendolia, to return to work and it was Mendolia who replied that the men would return to work only when they got a contract. Mendolia did not testify about this incident.2 s The second offer to return to work made on behalf of all the men was made by Local 282, by letter on April 21 Joseph Muratore's authority to make the offer will be discussed below but Mendolia, Appel. Allen, and Glover all testified to these offers and refusals by the men. 22 Some of the strikers talked in terms of a settlement of the contract dispute prior to their return, others talked in terms of negotiations being held. '3 Mendolia's status at this point is unclear. Local 424 no longer repre- sented the men and there is no evidence that Mendolia had been author- ized to speak for the men. Appel, Allen, and White testified that they had not asked or authonzed Mendolia to ask for their jobs. While claimed that he was not aware that Mendolia had asked for his job or that of others. Appel admits he heard Mendolia ask about returning the men to work but the request was always coupled with a demand for a contract. 14 Mendolia did not mention this alleged threat on cross-examination in recounting the events of April 3. :5 Joseph Muratore did not testify in these proceedings. 2s Appel, after his recollection was refreshed by use of his affidavit, thought Rocco Muratore was present during this April 4 meeting. 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7.27 The letter, signed by Robert Sasso, the Local 282 representative, states that Local 282 represented a major- ity of Respondent's employees and wanted to commence negotiations for a collective- bargaining agreement. The second paragraph states, "In addition, to facilitate the ne- gotiation of a contract, your drivers, who are on strike, are willing to return to work unconditionally." On April 10, by letter, Leonard Kimmel, Respondent's attorney, rejected the request for recognition because of the out- standing court and Board orders.2 8 With respect to the request to reinstate the strikers, Kimmel responded that the Company had hired permanent replacements for cer- tain jobs and others were filled by strikers and a previ- ously ill employee. He concluded that at that time there were no other positions available. E. The Alleged Individual Offers to Return to Work by Mendolia Mendolia testified that on April 23 at the Mona Lisa restaurant he asked Rocco Muratore what were the "chances" of his returning to work and Muratore replied that the matter was "out of his hands." 29 Muratore agreed that he saw Mendolia in front of the restaurant in late April. However, he testified that he was talking on the telephone, which he had stretched outside the door of the restaurant. Mendolia asked for his tools and he pointed to his own car. Mendolia walked to the car, took the tools, and left. Mendolia did not mention his job.3 0 Mendolia, on cross-examination, could not explain why he had failed to mention this alleged offer in all four affi- davits submitted to the Board during the investigation of the case. In the first affidavit, given on May 5, within weeks after he allegedly made the offer, he told the Board agent that he "had not yet made the offer." In the subsequent affidavits given on June 4, 11, and 17, 1981, there was mention of offers to return to work made by the various other men, but there was no mention of his own offer allegedly made on April 23.31 On June 25, Respondent's counsel sent letters to Mendolia, Allen, and Appel inquiring about their availability for work.3 2 On July 28, 1980, Mendolia, by letter, replied that he was available whenever a vacancy occurred.33 Rocco Mura- tore admitted that he was aware Kimmel had sent the aforementioned letters to all three men and he testified further that Kimmel had told him sometime in the fall of 1980 that Mendolia and Allen had replied and had indi- cated their interest in returning to work. ~7 G.C. Exh. 9. 28 G.C. Exh. 10. 29 This restaurant, in Suffolk County, apparently is owned by Joseph Muratore. 30 Mendolia testified that he started his own business as a trailer driver on May 23, 1980, and continued in it until Easter 1981 when his tractor was stolen. 3' The last affidavit was given a few days before the start of the hear- ing in this case. 32 G.C. Exh. 12(c). The letter also stated that at that time there were no jobs available. a3 G.C. Exh. 13(a). F. The Alleged Individual Offers To Return to Work by Allen Allen testified that it was on April 4 that he ap- proached Rocco Muratore about his job for the first time.34 According to Allen's testimony, on April 4 at I p.m. he, together with another striker, Joseph Navas, went to see Rocco Muratore at the Smithtown facility and at that time they asked about their jobs. Muratore replied that he would let them know. Muratore denied that this incident occurred. Navas was not called to tes- tify. Allen claimed that on the following day he again asked Rocco Muratore for his job and Muratore told him he did not know, although the replacements were cost- ing more money, he was concerned about whether he would have difficulty with the Labor Board if he dis- charged the replacements in order to hire the strikers. Muratore denied that this incident occurred. Mendolia recalled that it was April 5 that Allen went to ask for his job. On that day Mendolia claimed that he was sitting in a car in front of the plant with Allen, Joe Navas, Eddie Wilkerson, and Robert White. Wilkerson told the group that he was going to ask for his job and he (Mendolia) told him he had to do what he thought was best for him. Wilkerson left the car, went to the office, returned short- ly thereafter, and said that he would start work the fol- lowing Monday, April 7.35 At that point Allen said he also was going to ask for his job and he too went to the office. Allen returned about 20 to 30 minutes later and said that he had asked for his job and was told that they would let him know. Allen apparently did not say with whom he had his conversation. Mendolia did not state that Navas accompanied Allen when he went to the office to ask for his job. According to James Riddick, on April 11 he was in the vicinity of the picket line when Allen stated that he was going to speak with Rocco Muratore to ask for his job. Navas, who was on the line at the time, also stated that he was going to ask for his job. Riddick placed this as the Friday before he started work and he claimed that he started work on Monday, April 14.36 Thus, it appears that at some point prior to April 14 or 15 Allen did state his intention to ask for his job. Rocco Muratore does admit that on or about April 14 or 15 Allen asked for his job and he told him he would call him when one was available.3 7 However when the next vacancy occurred Muratore did not call Allen but hired Curley Glover, also one of the original strikers, although Glover had less seniority than Allen. Muratore maintained that the decision to hire Glover, rather than Allen, was made as a result of a meeting he had with Local 282's representatives. According to Mur- atore, at or about the time that he had a job available he 34 The affidavit submitted during the investigation places this incident as occurring on April I 1. Allen claimed that he had been confused about the date lwhen he gave the affidavit but when he checked his last pay- check it helped to clarify the day he made his initial request. a3 Wilkerson did in fact start wotrk on Monday, April 7 36 G.C Exh 32 indicates that Riddick actually was recalled on April 10. a7 Allen claimed that he went to speak to Rocco Muratore because he heard that Navas had been called to work. Navas started work on April 15is Nasas was eighth on the seniority list while Allen was third on that list. 786 MID-COUNTY TRANSIT MIX, INC. had a meeting with Local 282 representatives, Sasso and Silvera, who now represented his employees, to discuss the strikers and their replacements.3" During this meet- ing he mentioned that he had a job available and he was told by Silvera to give the job to Curley Glover, because they had secured a job for Allen and he was "happy" with it. Both Sasso and Silvera denied that they had made such a request, both testified that the only request they made at the time was to put all the men back to work.3 9 There is no evidence that Muratore contacted Allen directly to ascertain whether he wanted to return to work. Allen, as noted, also received a letter on June from Kimmel, with respect to his desire to return to work. Allen responded on July 15, 1980, by letter, wherein he stated that he wanted to be returned to work with his seniority rights and with compensation for time lost.4 0 Rocco Muratore, as noted, claimed that he became aware of Allen's interest in returning to work only in the fall of 1980. G. The Alleged Individual Offers To Return to Work by Appel Peter Appel testified that during the evening of the first day of the strike Rocco Muratore called him and asked him to return to work but he refused unless the contract dispute was settled.4 ' Although Appel did not know the precise date, he stated that sometime in mid- April while he was picketing with Sloane and White at the Yaphank facility the three asked Rocco Muratore for their jobs and Muratore said he would think about it. White confirmed Appel's testimony about this incident and placed the date of this conversation on or about April 12.42 Appel further testified that on April 14 he was alone with Rocco Muratore in his car at the Ya- phank facility. Appel stated that he asked for his job and Muratore said that he had no position then available and Appel replied that he needed work and was available. On May 1, Rocco Muratore called Appel, according to Appel, and asked him to come to work the following morning at 6 a.m. Appel replied that he did not know if he could return that day because he had to check with the Company where he was then working to ascertain whether he was scheduled to work for them on that day. Appel did not call Muratore. The following day Appel's wife received a call from someone connected with Re- spondent who asked if Appel was coming to work. Appel did not respond to this call. There was no discus- sion about seniority in any of these conversations, ac- cording to Appel's testimony. Muratore testified that he spoke to Appel before the strike ended at the Yaphank facility and offered him a job but Appel said he could 38 Glover was recalled on June 2, 1980. The election, which Local 282 won, was held on June 5, 1980. and the Certification of Representative issued on June 17, 1980 Negotiations for a collective-bargaining agree- ment apparently were conducted thereafter between Local 282 and Re- spondent. a9 This conversation appears to have occurred in late May or early June. 40 G.C. Exh. 12(a). 4i Muratore places this conversation on the second day of the strike. 4a Mendolia claimed that it was he who was at Yaphank on April 12 with White and Sloane and that Appel was with Allen at the Smithtown facility. This testimony was not supported by Appel or White. not return while the other men were still on strike. He denied that Appel asked for his job at any time. Appel also received the letter from Kimmel about his availabil- ity for a job but he did not respond. H. Other Employment by Mendolia, Allen, and Appel As noted, Mendolia commenced operating his own truck business about May 23, 1980, and continued in that business until around Easter 1981, when his tractor was stolen. He was required to make frequent cross-country trips during the time that he operated his business, which trips required him to spend time away from his home and family. Mendolia determined that this was not a style of life that he preferred and around November 1980 he put a "For Sale" sign on his truck. In addition, Men- dolia, who trucked for one company, Onley Refrigera- tion, when he was in business, was paid only for the work he performed. He did not receive the type of bene- fits that he had received while employed by Respondent; i.e., health, welfare, and pension benefits. There is no evidence that Mendolia told Rocco Muratore that he was satisfied with his trucking venture and wanted to continue in that business. Muratore testified only as to some statements told to him by others, Mendolia going into business for himself and his alleged satisfactions with this new business. Allen commenced employment with Seville Central Mix Corp. (Seville) on or about May 2 or 3, 1980, and was employed there at the time of the hearing. Allen ap- parently did not have the same seniority with this com- pany that he had with Respondent. Although Rocco Muratore claimed that Local 282 representatives told him that Allen was satisified with his new job, apparent- ly some time in late May or early June, these representa- tives deny that they made any such statements to Mura- tore. Allen denies that he told these representatives that he was satisfied working at Seville. Muratore admitted that he did not speak to Allen when a job became availa- ble to ascertain whether he wanted to return to work. The only communication between Respondent and Allen was the letter sent by Kimmel in June. Allen indicated his continued interest in his job by his reply in July. Appel commenced work at Key Way Ready Mix in the first or second week of May 1980. He was still em- ployed there as of the time of the hearing. Appel admit- tedly did not respond to Respondent's letter of inquiry in June. I. Replacements The first person hired by Rocco Muratore after the strike started was Ronald Lipski, who was hired on March 27. Lipski had been awaiting an opportunity to be hired as a driver prior to the strike and he started train- ing for his job on or about March 24. 4 3 On March 27 Rocco Muratore told Lipski that he would make him a driver immediately and when Lipski expressed concern about paassing a picket line Muratore told him he would drive him to and from work. Lipski was hired at S7.50 43 Lipski was not on the payroll at this time. He was being trained in anticipation of future employment 787 DECISIONS OF NATIONAL LABOR RELATIONS BOARD per hour. Robert Mulder and Neil Newton were hired on March 27. According to Muratore, when he hired Mulder and Newton, both of whom had concrete mixer truck experience, he told them he needed drivers and he asked them whether they would cross a picket line. When they responded that they would cross the picket line he hired them. Thereafter, Muratore hired Brelienda, Bryant, Riceputo, and Wright on March 31, Gallechio, Gross, and Marone on April 1. Muratore, in hiring these individuals, asked basically the same two questions, whether the applicant could drive a truck and whether he would cross a picket line. There was no evidence that Muratore told any of these individuals that they were being hired as temporary replacements. The unconditional offers to return to work, according to the General Counsel, were made on April 3 and 7 on behalf of all the strikers; on April 4, 5, and 15 and July 15 by Allen, on April 12 and 14 by Appel, and on April 23 and July 28 by Mendolia. An examination of Re- spondent's 'records discloses that in the week ending April 8 Respondent had on its payroll 10 employees in- cluding Wilkerson, one of the strikers, who had been re- called on April 7.44 Mulder and Gross, two of the strik- er replacements, left on March 27 and April 1, respec- tively. In the following week, the week ending on April 15, Respondent had 12 employees on its payroll includ- ing 3 reinstated strikers; Wilkerson recalled on April 7, Kimbrough recalled on April 1, and Navas recalled on April 15. In addition Riddick, who had been on sick leave, returned on April 10. 4 5 On April 3, Marone, an- other one of the replacements, left. Allen admits that Wilkerson made his offer to return prior to the time when he made his offer. Wilkerson had less seniority than Allen. The record fails to establish Kimbrough, who also has less seniority than Allen, first made his offer to return to work. With respect to Navas, Allen testified that he was present on April 4 in Rocco Mura- tore's office when he heard Navas ask for his job. Navas had less seniority than Allen. The record fails to disclose whether April 4 was the first time that Navas had made a request to return to work. During the week ending April 22, Respondent had 10 employees. The record dis- closes that in addition to Mulder, Gross, and Marone four more replacements left, Gamble on April 9, Newton on April 10, and Brelienda and Bryant on April 15. Re- spondent did not recall Mendolia,'Allen, or Appel when these vacancies occurred but did recall two strikers, White on April 17 and Sloane on April 21. In addition Muratore hired on new replacement, Doroski, who ap- parently worked only 1 day. 4 6 White, the employee with most seniority prior to the strike, testified that he made his first offer to return to work on or about April 12, to- gether with Sloane and Appel. It thus appears that White's first offer to return to work occurred subsequent to Allen's alleged first offer to return to work. There is no evidence in this record to establish whether the offer to return to work made by Sloane on April 12 was his 4" G.C. Exh. 32. The General Counsel's motion that this exhibit be re- ceived is granted. Respondent helped prepare the exhibit and had no ob- jection to it being received. 45 G.C. Exh. 32. 4' G.C. Exh. 32. first offer. Sloane had, however, less seniority than Allen. In the week ending April 29 Respondent had nine employees including three of the original replacements, Gallechio, Lipski, and Wright, Riddick who had re- turned from sick leave and five strikers, Kimbrough, Navas, Sloane, White and, Wilkerson. 4 7 The payroll records for the weeks ending May 6, 13, 20, and 27 con- tain the names of the same employees as the payroll record for the week ending April 29. The payroll record for the period ending June 3 contains the additional name of Curly Glover who was recalled on June 2. Glover testified that he did not make a request for his job until several weeks after the strike ended. The list of employees remained the same thereafter until the week ending July 29. The payroll record for that week shows that Wright, one of the original replacements, left on July 22.48 Sloane terminated this employment with the Respondent on July 29. During the weeks ending August 12, 19, and 26 and September 2 the payroll records dis- close that, in addition to the eight employees remaining on the payroll on July 29, two new employees were hired. One employee, Managanero, worked I day and another employee, worked about 7 days. During the pay- roll period ending September 23, a new employee, Booker was hired on September 17. Booker continued as a full-time employee during the weeks ending on August 30 and October 7.49 The payroll record submitted after the close of the hearing indicates that from October 14 through December 30, 1980, only four individuals were employed: Glover, Riddick, White, and Wilkerson. 5" However, Robert White testified that at the time of the hearing there were nine employees employed: White, Wilkerson, Riddick, Glover, Navas, Kimbrough, Galle- chio, Booker, and West. The record fails to disclose when, after December 1980, these employees were added to the payroll. J. The Alleged Change in the Loading Procedures After the Strike The General Counsel contends that there was a change in the order in which trucks were loaded after the strike, thus depriving the more senior employees of hours of work. It was established that prior to the strike, generally, the employee with the greatest seniority had his truck loaded first and his truck left the yard first. However, this did not always occur. Allen testified that prior to the strike there were occasions when less senior employees left the yard prior to the more senior employ- ee. These situations occurred when the more senior em- ployee had truck trouble, the less senior employees had the longer trip, or when different types of cement mixes were involved, etc.5 1 Although there was some testimo- 47 G.C. Exh. 32, Riceputo, one of the original replacements, left on April 15. 4' G.C. Exh. 32. 49 G.C. Exh. 32. 50 G.C. Exh. 32. 'I Trucks transporting the same type of mix were loaded at the same time. Thus it was possible that an employee who was fourth in seniority could go out after an employee who was second in seniority if both were transporting the same type of concrete mixes. 788 MID-COUNTY TRANSIT MIX, INC. ny that strikers on the picket line observed trucks leav- ing the yard in what the strikers considered improper order, the record fails to establish that the strikers were aware of the reasons for these changes. Moreover, al- though White testified that after he was reinstated his truck was the sixth or seventh truck loaded for 2 or 3 days, he also testified that he did not lose either time or money because of the change. Glover also testified that when he was reinstated his truck was the last one loaded for a few days but he did not lose either time or money. No other striker who was reinstated was called to testify as to the order in which their truck was loaded after their recall and there is no evidence that any of them lost either time or money due to the alleged change. There was testimony that the agreement entered into between Respondent and Local 282 after June 1980 contained a seniority provision. It appears that as a result of that clause the present seniority of the employees is as fol- lows: White, Wilkerson, Glover, Navas, Kimbrough, Gallechio, Booker, and West. Analysis and Conclusion A. The Offers To Return to Work The record establishes that on March 24 or 25 Re- spondent's nine concrete drivers went on strike because the contract negotiations between their representative Local 424 and Respondent were unsuccessful. Although Local 424 disclaimed interest in representing the strikers after March 31 it is clear from this record that the strike continued thereafter until on or about April 23, because the strikers wanted to improve their working condi- tions.52 The record fails to disclose that the strike was continued for any reason other than economic consider- ations. Accordingly, I find that the strike was an eco- nomic strike and the strikers were economic strikers. Rocco Muratore testified, without contradiction, that in the 3 days immediately after the start of the strike he hired 10 employees to replace the strikers, and was forced to do so for business reasons. He further testified that he had orders for the cement to be delivered at the time the strike started and his failure to make the deliv- eries, as promised, would cause not only a loss to his business but could cause also a loss to the businesses of his customers who had ordered the cement. This record fails to disclose that these statements were untrue. Nor is there evidence that the individuals hired as replacements were not hired as permanent replacements and the Gen- eral Counsel does not contend otherwise. The principles regarding the reinstatement rights of economic strikers who have not been replaced are well established. A striker remains an employee who is enti- tled to reinstatement upon making an unconditional offer to return to work provided that he has not obtained other regular or substantially equivalent employment, and provided that an employer does not have legitimate and substantial business justification for the refusal to re- "S The witnesses testified that they refused Joseph Muratore's repeated requests that they return to work because they had not secured a con- tract. Although Local 282 knew it could not at that point have entered into negotiations with Respondent, the strikers were of the viewpoint that Respondent could enter into a contract with Local 282. instate the striker. 53 These principles are applicable also in those situations where a striker has been replaced during the strike but subsequently the replacement leaves the position. 54 In either situation there are basic elements in the reinstatement process, the first of which is the un- conditional offer made either by the striker or made by another on his behalf. The General Counsel contends that Mendolia made an unconditional offer on behalf of all the strikers on April 3 to Joseph Muratore. 55 This contention raises the fol- lowing issues: the status of Joseph Muratore on that day, whether Mendolia in fact made the offer and whether he had the authority to do so. It is undisputed that Joseph Muratore had no financial interest in or control over the day-to-day operations of Respondent. However, there is no question that Joseph Muratore was at the Respond- ent's premises on a frequent basis prior to the strike. During these visits Muratore confined his activities to ex- changing pleasantries with the employees. After the strike Muratore was at the premises on an almost daily basis, urging the men to return to work. According to the testimony of Curley Glover, Rocco Muratore was present on the second day of the strike, heard his father urging the men to return to work, but said nothing. 56 There also was evidence that Rocco Muratore was ac- companied by his father when he took pictures of the strikers and that Rocco Muratore requested that his father be allowed to accompany him to a meeting to dis- cuss the strike on March 30 in Local 424's office. 57 Fi- nally, there is the close personal relationship between father and son and the fact that notwithstanding Rocco Muratore's instructions to his father "to mind his own business," he was aware that his father was urging the men to return to work. Assuming that these latter factors establish a principal-agent relationship, I do not find that resolution of that issue in favor of the General Counsel assists his case. This is so because I do not credit Mendo- lia's testimony that he made such an offer. Moreover, even if I did credit that testimony, I would not find, based on this record, that he had been authorized by the strikers to make the offer. In failing to credit Mendolia's testimony with respect to this alleged offer, I have considered not only his de- meanor but the testimony of all the witnesses which es- tablishes that on April 3 the strikers were not ready to return to work without a contract or at least concessions in the negotiations. There is no dispute that on those oc- casions when Joseph Muratore asked the men to return to work, the men rejected the request unless the contract issue was resolved. It was Mendolia's own testimony that on April 3, before the alleged conversation with Joseph s3 N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375 (1967); The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd 414 F2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). 54 Giddings d Lewis, Inc., 255 NLRB 742 (1981). "' Although the complaint alleges that the offer was made on April I, Mendolia testified that it occurred on April 3. se Appel also testified, after his recollection was refreshed by review- ing his affmdavit, that Rocco Muratore was present during a conversation that his father had with the strikers However, this incident occurred on April 4, after the alleged offer on April 3 '7 Miller's testimony on this point was uncontradicted. 789 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Muratore, he had a meeting with Ed Silvera, the Local 282 representative. In that meeting Mendolia stated to Silvera, "I said when you give Mid-County a contract and take all the men back with their seniority. He said if you do not get a contract I want to see all the men back in the yard." It is clear from this testimony that on April 3 neither Mendolia or Silvera were ready for the strikers to return to work without a contract. Further, Allen who allegedly was present and who, according to Men- dolia, defended him during the alleged conversation with Muratore did not testify about the conversation. In fact, Allen testified that, when Joseph Muratore asked the men to return to work, they refused without a contract. Appel's testimony also refutes Mendolia's claims that he made an unconditional offer on April 3. Appel testified that he was present, as were other strikers, on April 4 when he heard Joseph Muratore again request the men to return to work, the request was refused again and it was Mendolia who stated that the men would not return to work without a contract. Mendolia did not testify about the events of April 4. It is improbable that Joseph Muratore, having rejected the alleged unconditional offer made on April 3, would be urging the strikers on April 4 to return to work. Finally, although the alleged conver- sation of April 3 took place in the vicinity of the picket line while the strikers were still on the line, not one wit- ness was called in support of Mendolia's testimony about the crucial unconditional offer. In sum, based on all the evidence, I do not credit that Mendolia made the alleged offer. Rather, I find that if an offer was made on April 3 by Mendolia or by the strikers, as a group it was coupled with request for a resolution of the contract issue. It is well settled that any request for reinstatement which is conditioned on removing the cause of the strike is not an unconditional offer.5 8 The General Counsel alleges that Mendolia was the spokesman for the group. This record does not establish this to be the case after March when the strikers aban- doned Local 424. The witnesses all testified that they had not authorized Mendolia to speak for them or to make an unconditional offer to return to work on their behalf. It is clear that Joseph Muratore, when he urged the men to return to work, directed his requests to the men as a group. There is no evidence that his comments were directed only to Mendolia as the spokesman for the group. The General Counsel contends, however, that an offer made by any employee representative on behalf of the group is a valid offer and he cites several cases in support of his contention. 5 9 Assuming, arguendo, that I had found that Mendolia made the offer as alleged, I am not persuaded that the offer could be considered as one made on behalf of the group. The key word in the cases cited by the General Counsel is "representative." There is no evidence in this record that Mendolia was designat- ed as the representative for the group. On April 3 he 65 Coca-Cola Bottling Company of Miami. Inc., 237 NLRB 936, 947, fn. 21 (1978); C. A. Scott, Individually and as Administrator d/b/a Atlanta Daily World, 192 NLRB 159 (1971). s9 Standard Materials, Inc., 237 NLRB 1136, 1142, fn. 11 (1978), enfd. 604 F.2d 449 (5th Cir. 1979); W. C. McQuaide, Inc., 220 NLRB 593, 609 (1975). American Machinery Corp. v. N.L.R.B., 424 F.2d 1321, 1328 (5th Cir. 1970); Imco Poultry. Division of International Multifoods Corporation, 202 NLRB 259 (1973). could not have been acting as shop steward for either Local 424 or Local 282 and the strikers were aware of this, as their actions demonstrate. The strikers did not re- quest Mendolia to speak for them, when they did seek their jobs they asked for them on an individual basis.6 °0 In Standards Material, Inc., W C. McQuaide, Inc., and American Machinery Corp., cases cited by the General Counsel, the unconditional offer to return to work was made by the Union which admittedly represented the employees. In Imco Poultry, also cited by the General Counsel, the Board found that an unconditional offer made by an employee on behalf of a group was a good offer. However, the Board also found that all the em- ployees agreed that the individual acted properly in seek- ing their reinstatement. There is no evidence in this record that the strikers either authorized Mendolia to speak for them or subsequently condoned any action by him on their behalf. 6 ' On April 7 Local 282 made an offer to return to work on behalf of all the strikers. The General Counsel con- tends that this offer was unconditional, however, if the Respondent considered the offer ambiguous it was in- cumbent on it to seek clarification of the offer and failing to do so Respondent bears the consequences. In support thereof the General Counsel cites Haddon House Food Products, Inc., 242 NLRB 1057 (1979); Okla-lnn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410 (1972). The principle that Respondent bears the burden of clarifying an ambiguous offer has been stated more recently in Home Insulation Service, A Division of Sunstate Wholesal- ers, 255 NLRB (1981). I do not find these cases, howev- er, dispositive of the issue in this case. In Haddon House Food Products, the Board found that there was no evi- dence "that a union spokesman made any demand on Re- spondent on December 4 to take back the discriminatees if it wanted the strikers to return to work." In other words the Board did not find any ambiguity and stated that if the employer did he should seek clarification. In Okla-Inn, d/b/a Holidy Inn of Henryetta, the issue was whether the use of the word "we" in the letter contain- ing the offer, made the offer conditional. The Adminis- trative Law Judge stated that using the plural pronoun did not "reasonably imply the qualification that each would return only if all were taken back." Finally, in Home Insulation Service, the Board found that the initial offer made by the Union was unconditional and that a subsequent offer which might be considered conditional occurred only after Respondent refused to reinstate the strikers and as such did not tarnish the orginal offer. However, there is no ambiguity in Local 282's letter, it clearly conditions the return of the strikers, "to facilitate negotiations." This is not an unconditional offer.6 2 In view of my above findings, consideration must now be given to the individual offers to return to work made by Mendolia, Allen, and Appel. 60 Mendolia testified that Wilkerson made his own offer to return to work, as did Allen. si In fact, as noted, the strikers were unaware of Mendolia's alleged offer. 02 C A. Scott, Individually and as Administrator d/b/a Atlanta Daily World, supra. 790 MID-COUNTY TRANSIT MIX, INC. Mendolia claimed that he made an unconditional offer to return to work on April 23. Rocco Muratore denied that such an offer was made. I do not credit Mendolia's testimony. It is inconceivable that Mendolia, in the course of giving four affidavits to two different Board agents could have overlooked this crucial matter, par- ticularly in view of the fact that the affidavits contain numerous statements about the job offers made by other strikers. Moreover, in the first affidavit, submitted on May 5, Mendolia stated that he had not at that point made an offer to return to work. Finally, after a vig- orous cross-examination, Mendolia stated that he was of the viewpoint that it would have been futile for him to make an offer to return to work in view of Joseph Mura- tore's alleged threat not to rehire him. In sum, I do not find that an offer was made by Mendolia on April 23. However, it is undisputed that Mendolia did make an un- conditional offer to return to work on July 28. The evi- dence reveals that Respondent did hire new employees in the weeks following this offer. Respondent has failed to establish its burden; i.e., that it had a legitimate busi- ness justification for failing to reinstate Mendolia, one of its most experienced drivers, when these openings oc- curred. Similarly, Respondent has failed to establish that Mendolia had secured other employment, substantially equivalent to his prior position. This is Respondent's burden of proof. 63 Nor is there evidence that Mendolia, "had articulated an unequivocal resolve not to accept re- instatement." 64 As late as July 28, Mendolia advised Re- spondent that he was available whenever a vacancy oc- curred. Respondent cannot rely on hearsay statements to determine the striker's desire for reinstatement, once the striker has made an unconditional offer. It is Respond- ent's responsibility once a vacancy occurs to contact the striker and ascertain his availability. 65 Respondent failed to do this. I find therefore that Respondent, by failing to reinstate Mendolia after his unconditional offer, violated Section 8(a)(1) and (3) of the Act. I further find that Re- spondent's discrimination against Mendolia began on September 17 when it hired a new employee, Booker, and failed to reinstate Mendolia. It is no defense to Re- spondent's backpay obligation that on June 25 it for- warded a letter of inquiry to Mendolia to ascertain whether he was interested in his job. This type of in- quiry, the Board has found, does not constitute a valid offer of reinstatement which terminates the backpay ohli- gation. 6 6 Allen testified that he made unconditional offers to return to work on April 4 and 5. This record supports that testimony. I base my finding not only on the demea- nor of the witness, but also on the fact that the testimony by two other witnesses, Mendolia and Riddick, tends to confirm Allen's testimony. Thus, Mendolia testified that on or about April 5 Allen, in his presence, stated his in- tention to ask for his job, that he then observed Allen walk to Rocco Muratore's office and return within a 6e Woodlawn Hospital, 233 NLRB 782, 790 (1977). 64 International Business Systems, Inc., 258 NLRB 181, fn. 4 (1981); Harowe Servo Controls. Inc., 250 NLRB 958, 964 (1980). 65 Brooks Research and Manufacturing. Inc., 202 NLRB 634, 636 (1973). 66 Standard Materials. Inc.. supra at 1145 short time, and that he heard Allen state that he had asked for his job. Riddick testified in a similar fashion, although he placed the incident as occurring on or about Friday, April 11. Riddick testified that he was able to place the date because it was the Friday before he start- ed work, on April 14. Respondent's records establish that Reddick's recall date was April 10. The Friday prior thereto was April 4. It is undisputed that Allen made an unconditional offer to return to work on April 14 or 15. Rocco Muratore testified that he failed to honor the offer due to the inter- vention of Local 282's representatives on behalf of an- other striker, Glover. Both Silvera and Sasso deny that they intervened on behalf of Glover. Glover testified that he, on his own, asked for his job. I do not credit Rocco Muratore's testimony. However, assuming that such intervention had occurred it would not relieve Re- spondent of its obligation to ascertain from Allen his availability for work when a vacancy occurred. It is Re- spondent's responsibility, once a replacement leaves, to seek out the striker who has made the unconditional offer to return to work and to offer him his job. It is not the responsibility of the striker, once a valid offer has been made, to keep Respondent apprised of his availabil- ity.6 7 Furthermore, Respondent has failed to establish that Allen had secured a permanent position elsewhere or that he had abandoned his job. Not only did Allen deny that he had told Local 282 representatives that he was "happy" with his new job, which denial was sup- ported by these representatives, but it is highly unlikely that he would have preferred the new job. In an industry where seniority is of extreme importance, Allen, who had the third highest seniority when employed by Re- spondent, did not have that position in his new job. Fur- ther, it should be noted that, as late as July 15, Allen no- tified Respondent that he wanted to be reinstated, a fact not denied by Respondent. Based on this record, I find that Allen was the first striker, after Wilkerson, to make an unconditional offer to return to work and that this offer was made on or about April 4 or 5. The record re- veals that Respondent recalled strikers Kimbrough on April 11 and Navas on April 15. Respondent has failed to establish any business justification for reinstating Kim- brough and Navas, both of whom had less seniority than Allen, before reinstating Allen. In the following week Respondent reinstated White on April 17 and Sloane on April 21, although both did not make unconditional offers to return to work until on or about April 12. In these circumstances I find that Respondent has violated Section 8(a)(1) and (3) of the Act by failing to reinstate Allen after his unconditional offer to return to work on or about April 4. I further find that the date of the dis- crimination against Allen commenced on April 11 when Respondent reinstated Kimbrough, who had less senior- ity than Allen. Finally, I do not find that Respondent made a valid offer of reinstatement to Allen in its letter of June 10. As noted that letter contained nothing more than an inquiry as to whether Allen was interested in his job. The letter, in fact, stated that there were no open- 67 Brooks Research & Mfg.. Inc.. supra. 791 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings at the time. This type of inquiry does not constitute a valid offer of reinstatement. 68 Appel testified that about mid-April he made an un- conditional offer to return to work and was told by Rocco Muratore that he would let him know about the possibility of a job. Muratore denied that Appel ever made an unconditional offer to return to work. I do not credit this denial. Robert White, who was employed by Muratore at the time of the hearing and who was Re- spondent's senior employee prior to the strike, testified that on or about April 12, in the vicinity of the Yaphank facility he (White), together with Appel and Sloane, made unconditional offers to return to work and were told by Rocco Muratore that he would let them know. I find therefore that on or about April 12 Appel made an unconditional offer to return to work. The General Counsel contends that Respondent failed to establish a business justification for reinstating Wilkerson on April 7, Kimbrough on April 11, and Navas on April 15, all of whom had less seniority than Appel. I do not agree. In the first instance it is noted that Wilkerson had greater seniority than Appel prior to the strike, Wilkerson was fourth on the seniority list whereas Appel was either sixth or seventh. Furthermore, based on the testimony of Mendolia and Allen, Wilkerson made the first request to be reinstated. With respect to Kimbrough the Respond- ent's records establish that Kimbrough commenced work on April 11. It thus appears that Kimbrough made his offer to return to work at some point prior to the offer made by Appel on April 12. Finally, with respect to Navas, Allen credibly testified that Navas was with him on April 4 when they both made unconditional offers to return to work. Navas, thus, also made an unconditional offer to return to work prior to Appel's offer. In these circumstances, I find that Respondent has established a legitimate reason for reinstating Wilkerson, Kimbrough, and Navas prior to reinstating Appel. However, I find that Respondent has failed to establish a business justifi- cation for reinstating Sloane before Appel. Sloane had less seniority than Appel and he made his offer to return to work simultaneously with the offer made by Appel. Moreover, I do not find that Respondent established that on April 21, when Sloane was reinstated, Appel had abandoned his job or had acquired susbstantially equiva- lent employment elsewhere. Furthermore, I do not con- sider that Respondent's telephone call to Appel on or about April 30 requesting him to report for work the fol- lowing morning at 6 a.m. constituted a valid offer of re- instatement. The Board long has held that a discrimina- tee, on receiving an offer of reinstatement, has a "funda- mental right to a reasonable time to consider whether to return. " 69 The Board also has stated that there is no per se rule with respect to what constitutes reasonable notice to the employee. 70 However, it is clear that an offer made in the evening which requires an employee to com- mence work at 6 a.m. the following day does not com- port with the concept of reasonable notice. 6 Standard Materials, Inc., supra at 1145. eQ Highland Plastics, Inc., 256 NLRB 146, 159 (1981); Pinco Enterprises, Penco of Ohio, and ,4ccoustical Contracting and Supply Corp., 216 NLRB 734 (1975). 70 Murray Products, Inc. 228 NLRB 268 (1977). Finally, and for the reason set forth above, I do not find that Respondent's letter of June 25 constitutes a valid offer of reinstatement. Moreover, Appel's failure to respond does not change Respondent's obligation to offer him unconditional' reinstatement. 7' Appel had not un- equivocally articulated that he was no longer interested in his job.72 Accordingly, I find that in failing to rein- state Appel after his unconditional offer to return to work Respondent has violated Section 8(a)(1) and (3) of the Act. I further find that the date of the discrimination against Appel commenced on April 21 when Respondent reinstated Sloane who had less seniority than Appel. The Alleged Threat The record in this case does not support the allega- tions of the complaint with respect to the threat alleged- ly made to Mendolia on April 3. As I have noted, previ- ously, Mendolia's testimony with respect to the entire conversation was not supported by Allen, who allegedly was present. Although the alleged conversation was held in the vicinity of the picket line not one witness was called to support the testimony. Nor was evidence intro- duced that Mendolia told any of the strikers about the threat, an action one would expect if it had happened. In fact, Appel testified that he was present the following day and heard Joseph Muratore ask all the men, includ- ing Mendolia, to return to work and Mendolia refused. Furthermore, I have found Mendolia to be less than truthful with respect to his alleged offer to return to work. Accordingly, I find that this allegation of the com- plaint has not been sustained. The Alleged Changes in the Loading Procedure This record fails to reveal evidence sufficient to war- rant a conclusion that the reinstated strikers were not loaded in the order of their seniority after they were re- instated. In the first place even prior to the strike drivers did not always leave the premises in the strict order of their seniority. Secondly, the only witnesses who had actual knowledge of the events, White and Glover, both testified that, while they did not leave the premises in their usual seniority for a few days, they did not suffer a loss of time or money due to the change. Moreover, the fact that the present order of seniority may differ from the prior one, if it does, appears to be a result of the col- lective-bargaining agreement with Local 282, rather than unilateral changes by Respondent. Accordingly, I find that this allegation of the complaint has not been sus- tained. CONCLUSIONS OF LAW I. Mid-County Transit Mix, Inc., is an employer en- gaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 424, United Brotherhood of Industrial Workers, 71 Leroy W. Craw, Jr., ret al., Craw & Son, 244 NLRB 241, 242 (1979). 7" International Business Systems, Inc., supra. 792 MID-COUNTY TRANSIT MIX, INC are labor organizations within the meaning of Section 2(5) of the Act. 3. The strike which commenced on or about March 24 or 25, 1980, and which ceased on April 23, 1980, was an economic strike. 4. Respondent, by its failure to reinstate Arthur Allen, Peter Appel, and Benjamin Mendolia upon their uncon- ditional offer to return to work when jobs were available violated Section 8(a)(1) and (3) of the Act. 5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent did not threaten Benjamin Mendolia or fail to grant to reinstated strikers seniority accrued by them prior to the strike, as alleged in the complaint. THE RENIEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I have found that Respondent violated Section 8(a)(l) and (3) of the Act by failing to offer reinstatement to Arthur Allen commencing on or about April 11, 1980, to Peter Appel commencing on or about April 21, 1980, and to Benjamin Mendolia commencing on or about Sep- tember 17, 1980. I shall recommend that Respondent make whole these three strikers for any loss of earnings they may have suffered as a result of Respondent's fail- ure to offer them reinstatement in a timely manner, by paying to each of them a sum of money equal to that which each would have earned as wages during the period from April 11, 1980, for Arthur Allen, from April 21, 1980, for Peter Appel, from September 17, 1980, for Benjamin Mendolia, to the date Respondent offers each their reinstatement, less any net earnings during such period, with backpay and interest to be computed as pre- scribed by the Board in Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended Order:7 3 ORDER74 The Respondent, Mid-County Transit Mix, Inc., Smithtown, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to reinstate economic strikers upon their unconditional offers to return to work. 73 This record fails to disclose any evidence to support the General Counsel's contention that the discrimination occurred because of the al- leged activity of Allen, Appel. and Mendolia on behalf of Local 282. 7 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) In any like manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed to them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Arthur Allen, Peter Appel, and Benjamin Mendolia immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to seniority and other rights and privileges, discharging, if necessary, any replacements hired in their place. (b) Make whole Arthur Allen, Peter Appel, and Benja- min Mendolia in the manner set forth in the section of this Decision entitled "The Remedy," for losses they may have suffered as a result of Respondent's failure to reinstate them after their unconditional offers to return to work when vacancies were available. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, 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 Smithtown and Yaphank facilities in Long Island, New York, copies of the attached notice marked "Appendix."7 ' Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent taken to comply herewith. :7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words ii the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPI OYEES POSTED BY ORDER OF THE NATIONAL LABOR REIATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL. NOT refuse to reinstate economic strik- ers upon their unconditional offer to return to work. 793 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Arthur Allen, Peter Appel, and Benjamin Mendolia immediate and full reinstate- ment to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to seniority and other rights and privi- leges, discharging, if necessary, any replacements hired in their place. WE WILI make whole Arthur Allen, Peter Appel, and Benjamin Mendolia for any loss of earn- ings and other benefits they may have suffered, with interest, as a result of our failure to reinstate them promptly upon their unconditional offer to return to work. MID-COUNTY TRANSIT MIX, INC. 794