Lone Star Industries, Inc.

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.]