Hansen Brothers Enterprises

HANSEN BROS. ENTERPRISES 741 Hansen Brothers Enterprises and Chauffeurs, Team- sters, and Helpers Local Union No. 150, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-18393 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 2 August 1984 Administrative Law Judge David G. Heilbrun issued the attached decision. The Charging Party filed exceptions and a support- ing brief, and the Respondent filed cross-exceptions and a supporting brief.' 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. The judge found that the Union's offer on behalf of the striking employees to return to work was at all times coupled with a demand that all strikers be immediately reinstated to their former positions, and that any striker replacements in those positions be discharged.3 We affirm the judge's finding for the reasons stated in his decision. We disagree, however, with the judge's conclu- sion that this offer was not unconditional. It is well established that economic strikers are entitled to immediate reinstatement upon an unconditional offer to return to work, provided their positions have not been filled by permanent replacements.4 i The Respondent also filed a motion to strike the Charging Party's exceptions under Sec 102 .46 of the Board 's Rules and Regulations The motion is hereby denied. Although the Charging Party's exceptions are in the nature of a brief and do not contain an alphabetical listing of authon- ties relied on, they do set forth the questions of fact and law to which exceptions are taken, identify that part of the judge's decision to which objection is made , designate by precise citation of page the portions of the record relied on, and state the grounds for the exceptions See Team- sters Local 851 (Purolator Courier), 268 NLRB 452 fn. 1 (1983) 2 The Charging Party has excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versing the findings 0 The judge found that the Union first communicated its offer to the Respondent on 7 September 1983 4 NLRB Y. Mackay Radio & Telegraph Co, 304 US 333 (1938) Of course, even where permanent replacements have not been hired, an em- ployer may refuse to reinstate economic strikers who unconditionally offer to return to work upon proof of a "legitimate and substantial busi- ness justification." NLRB v Fleetwood Trailer Co., 389 U S 375 (1967) Thus, where the striker replacements are only tem- porary, an offer to return to work which demands no more than the discharge of those replacements is perfectly appropriate. Here, the judge found that the Respondent failed to establish that any of the striker replacements were hired as permanent employees. Excepting to this finding, the Respondent contends that the re- placements' status as permanent employees is clear- ly established by (1) a 29 August 1983 letter sent to the strikers; (2) statements the Respondent's presi- dent Arlie Hansen made to the replacements; and (3) the Respondent's repeated refusals during ongo- ing negotiations to displace the replacements. We disagree. The Respondent's letter to the strikers stated only that the strikers "may" lose their right to reemployment if a replacement was hired for their position.5 Hansen's statements to the replacements are similarly noncommital. Hansen admitted on cross-examination that although he told the replacements that he "wanted" to consider them as permanent employees and "wanted" them to consider themselves as permanent employees, he did not actually tell them they were permanent.6 As for the Respondent's statements during negotia- tions, at most they show its own intent to perma- nently employ the replacements. Such a showing fails to satisfy the employer's burden; rather, the employer must show a mutual understanding be- tween itself and the replacements that they are per- manent.7 Here, the Respondent failed to present any evidence whatsoever that the replacements un- The full text of the letter, in relevant part, reads as follows- You should be aware that we are going to continue to operate our business to the best of our ability for whatever length of time the strike may last As you know , we are running ads and receiving lots of applications for the jobs that we have available. We would prefer, of course, to have our experienced Teamster employees doing this work, but if they refuse to do so, we have no choice but to replace them by other employees who are willing to work under the condi- tions that you have apparently found unacceptable You should fur- ther be aware that if a replacement is hired for your position, you may lose your right to reemployment if you later change your mind and wish to come back to work Accordingly, we would suggest that you give this matter your se- rious consideration and come back to your job before we have com- pleted our hiring procedures and there are no jobs available There is no reason why we can't continue to negotiate and attempt to settle our differences on the contract while you are working and receiving a paycheck. 8 Contrary to our dissenting colleague, we do not read the Supreme Court's decision in Belknap, Inc. P. Hale, 463 U S 491 (1983), as convert. ing such vague statements as Hansen's into an offer of permanent em- ployment for the purposes of determining strikers' reinstatement rights. Belknap does not hold that an employer need no longer promise replace- ments permanent employment to render them permanent , it holds that to avoid civil liability to the replacements should they be replaced pursuant to a Board order or a settlement agreement providing for reinstatement of the strikers, the employer may promise the replacements permanent employment subject to such conditions subsequent. I Associated Grocers, 253 NLRB 31 (1980) 279 NLRB No. 98 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derstood that they were hired as permanent em- ployees. Accordingly, we find that the replacements were temporary, that the Union's offer to return was therefore appropriate, and that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by refusing thereafter to reinstate the strikers. CONCLUSIONS OF LAW 1. Hansen Brothers Enterprises is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(6) and (7) of the Act. 3. By failing and refusing to reinstate the eco- nomic strikers immediately upon the Union's 7 Sep- tember 1983 offer on their behalf to return to work, the Respondent has engaged in, and is en- gaging in, unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having unlawfully failed and re- fused to immediately reinstate the economic strik- ers upon the Union's unconditional offer on their behalf to return to work, we shall order that they be reinstated to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed. We shall further order the Respondent to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Hansen Brothers Enterprises, Grass Valley, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to reinstate economic strikers who have unconditionally offered to return to work to their former or substantially equivalent positions, where those positions have not been filled with permanent replacements and absent any other legitimate and substantial business justifica- tion for failing and refusing to do so. (b) 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 the economic strikers on whose behalf the Union offered to return to work immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this Decision and Order. (b) 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. (c) Post at its Grass Valley, California facility copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. My colleagues' handling of the evidence in this case gives rise to a disquieting concern. Briefly stated, the majority's analytic approach to the evi- dence reflects an undue taste for verbal analysis rather than a recognition of the real world facts. It is undisputed that the Respondent notified all the strikers by letter shortly after the strike began 8 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 " HANSEN BROS. ENTERPRISES 743 that replacements were to be hired and that "you may lose your right to reemployment" as a result. My colleagues reject this letter as evidence of per- manency because it used the word "may" rather than "shall." The Respondent, however, used the equivocal term not because it was undecided, but out of its obviously prudent concern that it might otherwise subject itself to an unfair labor practice charge should the strike be found an unfair labor practice strike, rather than an economic strike.' In any event, at the very least the letter indicates that the Respondent was then contemplating hiring per- manent replacements. The majority's analysis of Arlie Hansen's state- ments to the replacements is equally flawed. The majority finds cause for rejection of this evidence because Hansen only said he "wanted" to consider them permanent and "wanted" them to consider themselves permanent.2 As with the letter, howev- er, my colleagues ignore the basis for this phraseol- ogy. In Belknap, Inc. v. Hale,3 the Supreme Court held that an employer may be sued for breach of contract in state court by striker replacements if, having offered them permanent employment, they are later displaced by reinstated strikers pursuant to a settlement with the union or a Board unfair labor practice order. The Court held that an employer could protect itself from such suits by promising permanent employment subject to these contingen- cies-and in so holding specifically rejected the ar- gument that such a qualified promise would make the replacements temporary rather' than permanent. Here Hansen testified that, to the extent his prom- ise was qualified, it was only to satisfy the require- ments of Belknap; that in no circumstances other than those cited in that case would he have dis- charged the replacements. As there is no evidence suggesting the replacements understood otherwise, I find no reason to disregard Hansen's testimony. Certainly his failure, relied on by the majority, to draw a proper verbal distinction regarding "condi- tions subsequent" does not supply such a reason. Early in the strike, the Respondent demonstrated its contemporaneous belief that it had permanently replaced the strikers. Record evidence, credited by the Board's administrative law judge, shows that at a 13 September 1983 meeting attended by the Union's business representatives, the Respondent's ' Unlike economic stokers, of course, unfair labor practice strikers are entitled to immediate reinstatement upon unconditionally offering to return to work , even if it is thereby necessary for the employer to dis- charge its replacements E g , Collins & Aikman Corp, 165 NLRB 678 (1967) 2 According to Hansen , he told the replacements that he "wanted" to consider them as permanent employees and "wanted " them to consider themselves as permanent employees, but he "could not guarantee that be- cause of the labor problems and negotiations going on " 3 463 U.S 491 (1983) attorney Hubbert brought up a case decided "back East" dealing with employer liability to permanent replacements. Hubbert mentioned Belknap only be- cause the Union was pressing for a settlement that provided immediate reinstatement for the strikers. Hubbert would have raised the Belknap problem only in a context where he believed the Respond- ent had employed permanent replacements and might be subject to Belknap-type liability in the event those permanent replacements were let go to accommodate strikers. Thus, all the evidence available on this ques- tion-the Respondent's 29 August letter to the strikers, Arlie Hansen's statements made to the re- placement employees, and Respondent's 13 Sep- tember statements to the Union-is consistent with only one finding, viz, the Respondent had hired on a permanent basis and sought only to protect itself from Belknap liability to the replacements.4 There is nothing in the record to suggest that the replace- ments would not have continued their employment indefinitely in the absence of an economic catastro- phe putting the Employer out of business or this Board making an unfair labor practice finding that required immediate reinstatement of the strikers. There is a great deal in this record to "show that the men [and women] who replaced the strikers were regarded by themselves and the [Employer] as having received their jobs on a permanent basis." Georgia Highway Express, 165 NLRB 514, 516 (1967), affd. sub nom. Teamsters Local 728 v. NLRB, 403 F.2d 921 (D.C. Cir. 1968), cert. denied 393 U.S. 935 (1968). The majority's separate verbal analysis of each of two 'pieces of evidence treated by it in this case surely proves too much. It places all its emphasis on the use of "may" rather than "shall" in the 29 August letter and the alleged "vagueness 115 of Han- 4 The majority's citation of Associated Grocers, 253 NLRB 31 (1980), is factually inapposite to this case In Associated Grocers, the respondent failed after 10 May 1978 to present replacement hires with a letter stating that their employment was permanent although it had done so for hires prior to that date The failure to do so was described by the Board as a "communication failure" between the respondent 's managers Those not receiving the 10 May letter had signed a document when hired stating that they understood there to be no guarantee of consideration for full- time employment In the absence of any explanation for the respondent's action, the Board commented that "[t]he permanency of the replace- ments was established only in the mind of Respondent 's president " (Em- phasis added ) That may have been so under the very different facts in Associated Grocers, but it is not the case here This Respondent's hiring of permanent replacements is to be inferred from the extrinsic evidence of what it said and did in its dealings with the Union, the strikers, and the new hires One need not guess at the Respondent 's intent as was required in Associated Grocers 5 Hansen was apparently a layman, not an attorney His inartistic ren- dering of the Belknap cautions, described as "vague" by the majority, thus becomes comprehensible I note that if Hansen 's statements are read in conjunction with the other evidence in the case-in particular, Attor- ney Hubbert's 13 September presentation-they certainly are no longer Continued 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sen's statement to the replacements and ignores Hubbert's 13 September statements to the Union. It thus implies that the Respondent sought in 1983 to hire only temporary replacements. That implication is surely unrealistic in light of the Respondent's having litigated this very question before the ad- ministrative law judge and this Board. The preponderance of the evidence in this case demonstrates that the Respondent sought to hire permanent replacements while protecting itself against the adverse possibilities posed by the Belk- nap case, which had issued only a few weeks prior to the strike. Two-and-a-half years later, this Board sits in judgment on the verbal constructs employed to that end and finds them inadequate. Looking only to those verbalisms, the majority imposes a 2- 1/2-year backpay remedy essentially because it would have phrased two items in a different way. By so doing, the majority has, in my view, adopted a wholly unrealistic approach to labor matters. The majority decision here, in the words of the District of Columbia Circuit Court "disdains even entertaining contrary implications where facts may cut both ways." Yellow Taxi Co. of Minneapolis Y. NLRB, 721 F.2d 366, 383 (D.C. Cir. 1983). It "fails to assess and weigh the `total factual context."' Yellow Cab Co. of Minneapolis, supra, quoting NLRB v. United Insurance Co., 390 U.S. 254, 258 (1968). The majority opinion ignores general busi- ness and hiring practices, Hubbert's clear state- ments to the Union's representatives, the layman status of the Respondent's president Hansen, Belk- nap's issuance only a few weeks prior to the strike, all but one sentence of the Respondent's 29 August letter to the strikers, and the irrationality of the im- plied finding that the Respondent sought to hire only temporary replacements. By so doing, the ma- jority opinion completely misreads the Respond- ent's actions and intent. Contrary to the majority, therefore, I find that the Respondent's strike replacements were perma- nent and that the Union's offer on behalf of the strikers was not "appropriate" insofar as it concur- rently demanded the discharge of those replace- ments. Accordingly, I would dismiss the complaint. "vague " Even as they stand they clearly reflect an intent to hire on a permanent basis while , at the same time, cautioning that future events might have an effect on this intent I think it clear that the replacements understood that they had the jobs for an indefinite period of time into the future The Respondent 's intent is the test See Hot Shoppes, Inc, 146 NLRB 802, 804 (1964) The Board reversed the administrative law judge in that case, commenting that "[t]he record contains no evidence that Re- spondent, in hiring the replacements, acted contrary to its usual practice in any respect " Here, the only difference from Respondent 's "usual prac- tice" resulted from the Belknap problem 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. WE WILL NOT refuse to reinstate economic strik- ers who offer to return to work before they have been permanently replaced. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer our striking employees who made offers to return to work immediate and full reinstatement to their former jobs or, if those jobs are no longer available, to substantially equivalent jobs, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits they may have suffered by reason of the dis- crimination against them, with interest. HANSEN BROTHERS ENTERPRISES Sally M. Spencer, Esq., for the General Counsel. N. Paul Shanley, Esq., of Sacramento, California, for the Respondent. DECISION STATEMENT OF THE CASE DAVID G HEILBRUN, Administrative Law Judge. This case was tried at Nevada City, California, on April 3, 1984.' The original charge was filed by Chauffeurs, Teamsters and Helpers Local Union No 150, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (the Union), Septem- ber 26 (amended October 6), and the complaint issued November 29. The primary issue is whether Hansen Brothers Enterprises (Respondent), unlawfully during September and continuously thereafter failed and refused to reinstate numerous striking employees upon uncondi- tional offer to return to their former positions of employ- ment, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act. On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filled by the General Counsel and Respondent, I make the following 1 All dates are from July 1983 until April 1984 unless otherwise indi- cated HANSEN BROS ENTERPRISES 745 FINDINGS OF FACT I JURISDICTION Respondent, a corporation, maintains an office and place of business in Grass Valley, California, where it is engaged in compounding and transporting wet concrete. During a representative past 12-month period it pur- chased and received goods and materials valued in excess of $50,000 at this facility directly from points outside California. On these admitted facts I find that Respond- ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Sec- tion 2(5). 11. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis A collective-bargaining relationship between Respond- ent and the Union has spanned approximately 25 years The represented unit is one of truckdrivers and related occupations utilized in a construction business that in- cludes road building and pipe laying. The most recent collective-bargaining agreement , in which descriptive work classifications were set forth at section 3 and a cer- tain addendum, expired on July 1. Negotiations following that date failed to produce a new agreement, and on August 18 all Teamsters-represented employees com- menced an economic strike. At that point in time Respondent had approximately 75 employees overall. Those represented by the Operat- ing Engineers and Laborers unions largely honored the Teamsters strike, in consequence of which most jobs in progress were shut down or affected as to anticipated completion dates. After Respondent made initial adjust- ment to effects of the strike, it sent a letter on August 29 to all Teamsters strikers. This communication, signed by Arlie Hansen and Orson Hansen, respectively Respond- ent's president and secretary/treasurer as well as father and son, essentially solicited their return to work. It al- luded to an intention to continue operations "to the best of our ability," adding that replacements being recruited "may" result in loss of reemployment rights by those on strike. Frank Lomascola, the Union's Sacramento-based busi- ness agent, was advised of this letter on September 6 while at the site of picketing The following afternoon he spoke with Aubrey Hubbert, Respondent's labor rela- tions attorney, in the latter's Sacramento office. Lomas- cola testified that he first referred to the letter, which Hubbert said he had helped prepare. Lomascola recalled discussion of possible strike resolution, and a .tentative offer on his part to have drivers return to work under the old contract. This seemed amenable to Hubbert and the discussion ended with Lomascola saying he would have to conduct a vote on the matter with his members. Lomascola then arranged a meeting and traveled the 50- mile distance to Grass Valley, where he met with the 18 assembled strikers across from Respondent's facility. He presented the notion of a return to work, and found it unanimously and unconditionally acceptable to the group. Accompanied by Shop Stewards Ed Tellam and Thomas Browning, Lomascola then walked across the street and spoke with Arlie Hansen who was occupied in yard work at that point of early evening. Hansen was told the Teamsters members had just voted to go back to work. Hansen replied that his lawyer'should be contact- ed. Lamascola commenced a return to Sacramento and about 7:45 p.m. telephoned ahead to Hubbert at the Tat- ter's home. Hubbert had no advice of consequence then and invited a later call. In the intervening time he learned from a Hansen that two strikers could be utilized for work the next day, specifically employees Tom Os- borne and Browning. This information was conveyed to Lomascola when he telephoned a second time around 9:15 p.m. Lamascola testified that he said this proposal created a problem because the two named were not top seniority and it could cause later grievances 2 Hubbert's version is how he projected during the second telephone converation that other strikers would likely be reem- ployed shortly, but Lomascola's response was that em- ployees could not accept the employer choosing only two, based on its own evaluation of useful skills. Hubbert added that he necessarily took Lomascola's words to be that employees would not return to work on that condi- tion. Matters were then briefly dormant, except for continu- ing operations by Respondent with a complement of at least seven replacement employees. A negotiating session was held on September 13 at the Employer's facility. Present for the Union were Business Representative Lee Ishmael, spokesman until Lomascola's anticipated late ar- rival, Tellam, and Browning, while Respondent was rep- resented by Hubbert, the Hansens, and son- in-law Bill Goss. After preliminary discussion of status relative to a new contract, Ishmael made a pleading inquiry about the prospects for returning Teamsters strikers to work. Lo- mascola testified that after arriving and caucusing to ac- quaint himself with earlier happenings of the meeting, he proposed a return to work by the drivers. Hubbert denied that either Ishmael or Lomascola ever made a specific statement about strikers returning to work other than as part of an overall contract settlement. Those present agree that Hubbert raised a case "back East" dealing with employer liability to strike replacement em- ployees terminated after having been given assurances of permanence.3 From these conversational exchanges a debate ensued about Respondent's replacements. Lomas- cola testified that he consistently termed it strictly a problem of the Employer, while Hubbert asserted that Lomascola demanded discharge of all the replacements as part of any settlement and return of Teamsters mem- bers. The next bargaining session occurred September 30 at Hubbert's office with a Federal mediator to facilitate. Lomascola testified that he again asked about the possi- bility of returning the drivers to work. Hubbert recessed 2 The expired contract had seniority language dealing with reductions in force and specific use of "longest length of continuous service when ability is approximately equal " 3 This was Belknap, Inc Y Hale, 463 U S 491 (1983), a 6-3 decision to such effect 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a call to the Hansens, and returned to say that Re- spondent was not prepared to bring any striker back to work. Hubbert testified that he then reiterated Respond- ent's earlier offers to take strikers back by seniority as openings occurred, and that Lomascola and his commit- tee rejected this course. B. Analysis The initial principle applicable to this case is that any economic striker is entitled to reinstatment upon uncon- ditional return to work offer, provided their positions have not at such time been filled by a permanent replace- ment.' In terms of the General Counsel's pleading this raises the factual issue of whether on September 7, 13, or 30, such an unconditional offer was made on behalf of the 18 striking employees of the Teamsters bargaining unit. A direct resolution of credibility is first necessary. I disbelieve Lomascola and the corroborative testimony offered Tellam, Browning, and Ishmael. On demeanor and probability grounds I am not persuaded that Lomas- cola or those allied with him have a reliable recollection of salient facts. The first variance arises during Lomasco- la's second telephone call to Hubbert on the evening of September 7. As to this I accept Hubbert's more credible testimony that Lomascola rejected the notion of having only two striking drivers return the next day because that would not be an acceptable component of what the whole group wished to achieve. In the next episode of September 13 I similarly dis- credit Lomascola and his corroborators in a claimed rep- etition of the unconditional return to work offer, finding instead that Hubbert, credibly supported by both Han- sens, correctly described the Union' s contention as one of conditioning any mass availability for return to work on the release of all replacements hired up to that point. The final exchange on September 30 totally fails to support the General Counsel's contentions, for here even Lomascola only asserts that he made desultory inquiry about his members resuming employment. I am con- vinced overall that Lomascola has not truly presented his own or answering remarks, and that he has done so in an attempt to deviously create legal rights where none exist. His testimony was fundamentally hesitant, con- fused, evasive, vacillating, and abundantly suspect. Aside from numerous palpable instances in which these charac- terizations are found, he deviated from what is contained in his investigatory affidavit and made a curiously odd denial of even recognizing the term "maintenance of membership."5 I discredit Tellham, Browning, and Ish- 4 NLRB v Mackay Radio & Telegraph Co, 304 U S 333 (1938) 3 This final point is noted only as a minor illustration of Lomascola's proclivity for random equivocation It does not square well with his ex- tensive labor relations experience , and the concept was readily presumed mael on demeanor bases, under which they did not present a convincing recall but were instead inclined to merely parrot Lomascola's assertions. I have carefully reflected on the General Counsel's ar- gument that Lomascola has been direct and specific, while Hubbert displayed an inexplicably poor memory for detail. My resultant belief from this is that Lomasco- la's specifics are not reliable, and that Hubbert's indirec- tion reflects only a cautious mode of presenting testimo- ny. Respondent has advanced five separate grounds on which to contend that conditions have always attached to the offers, and the composite of credible testimony is sufficient to support each defense. In the absence of any striker having been identified with an unconditional return to work offer, key allega- tions of the complaint are without legal support. What is shown instead is the Union attempting a sudden rehabili- tation from poor tactical position, and failing to change the legal relationship from a standard economic strike sit- uation coupled with continuous bargaining. I specifically find that the abrupt advice to Arlie Hansen on Septem- ber 7 was not, as the General Counsel argues, an effec- tive offer of unconditional return to work, for Hansen was not only entitled under the circumstances to pass these dynamics on to his retained attorney but Lomas- cola himself had recognized Hubbert's key role by earlier that day seeking him out for the actual origination of re- marks on the subject. It is, however, true that Respondent in turn has utterly failed to establish any permanent characteristics to the employment of replacement drivers. This is evident from Arlie Hansen's own testimony in which he could do no more than express a "hope" that such individuals would view themselves and be viewed as permanent. The fact was that Belknap had alarmed Respondent's counsel to the point that dealing wiht these replacements deliberate- ly skirted any commitment of permanence. For this reason the Mackay rights of the strikers appear undi- mished to date, a condition that harmonizes well with Respondent's several representations of record that pref- erential rehiring is still available on a seniority basis to the Teamsters members. Cf. NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967); Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970); Associated Grocers, 253 NLRB 31 (1980). [Recommended Order for dismissal omitted from pub- lication.] to be commonly "known" when discussed in a Board case involving an- other Teamsters affiliate Roberts Electric Co, 227 NLRB 1312, 1320 (1977) The term "maintainence of membership" has also been aptly and authoritatively explained as one basic type of negotiated union security Grodin and Beeson, State Right-to-Work Laws and Federal Labor Policy, 52 Cal Law Rev 95-114 (Mar 1964)