Tile, Terrazzo & Marble Contractors Assn

TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 769 Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicinity and Its Member Williams Tile Company and Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicinity and Its Member U.S. Mosaic Tile Co. and Tile, Marble & Terrazzo Finishers & Shopmen, Local Union No. 167 Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicinity and Its Members Williams Tile Company and U.S. Mosaic Tile Co. and Tile, Marble & Terrazzo Finishers & Shopmen, Local Union No. 167. Cases 10-CA-21572, 10- CA-21573, and 10-CA-21804 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 25 March 1987 Administrative Law Judge Howard I Grossman issued the attached decision. The Respondents and the General Counsel filed ex- ceptions and supporting briefs and the Charging Party filed a brief in response to the Respondent's exceptions. 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,' and conclusions,2 to modify the remedy,3 and to adopt the recommended Order as modified. ' The Respondents have 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 2 In adopting the judge's finding that the Respondents lacked good- faith doubt of the Union's majority status when they withdrew recogni- tion, notwithstanding the evidence that some employees had abandoned the strike soon after it began, we do not rely, as he did, on an analogy to the specific presumption concerning the sentiments of strike replacements adopted in Pennco, Inc, 250 NLRB 716 (1980) Pursuant to our decision in Buckley Broadcasting Corp, 284 NLRB 1339 (1987), in which we over- ruled Pennco, we do not apply any specific presumption concerning the sentiments of returning strikers Rather, we simply find that the Respond- ents have not proffeied sufficient evidence concerning their employees' expressed desire to repudiate the Union as their bargaining representative to support a good-faith doubt of majority status and that the Respondents therefore have not rebutted the overall presumption of continuing majori- ty status Buckley Broadcasting, supra 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 1. The General Counsel has excepted to the judge's finding that the reinstatement rights for Thomas Allen were terminated as of the date of his unemployment compensation hearing, at which, ac- cording to Mosaic Vice President Thrower, Allen "went totally out of emotional and mental control" and engaged in verbal abuse toward all parties and the presiding officer. The General Counsel con- tends that it was the Respondent's own unlawful deeds that led to that hearing and, thus, precipitat- ed Allen's behavior. Furthermore, the General Counsel contends that Allen's conduct at the hear- ing was an aberration and that he had been both a regular and good employee. The evidence establishes that Thrower decided not to rehire Allen because of the behavior he ex- hibited at the hearing. This testimony was unrebut- ted and Allen was not called as a witness. Howev- er, the facts about what transpired at the unem- ployment compensation hearing have not been fully developed and the paucity of evidence re- garding Allen's actual conduct prevents us from making an informed determination concerning his reinstatement rights. Under the circumstances, the decision concerning whether his conduct is suffi- cient to terminate such rights would be better left to the compliance stage of this proceeding, when the parties will have the right to present further evidence on this issue. 2. The Respondents contend that a finding of a violation based on the discontinuance of fringe ben- efit contributions is barred by Section 10(b). We agree with the judge that the discontinuance of contributions is encompassed by the original charges filed in Cases 10-CA-21572 and 10-CA- 21573 on 27 February 1986, alleging 8(a)(5) viola- tions of the Act because of the Respondents' refus- als to bargain and other acts. We therefore find it unnecessary to rely on the judge's alternative find- ing of a continuing violation under Farmingdale Iron Works, 249 NLRB 98 (1980), enfd. 661 F.2d 910 (2d Cir. 1981), with regard to the nonpayment of the benefit contributions ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicinity, Williams Tile Company, and U.S. Mosaic Tile Company, Smyrna and Norcross, Georgia, their officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following to paragraph 2(a). 287 NLRB No. 79 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "The reinstatement rights of Thomas Allen will be established at the compliance stage of this pro- ceeding." 2. Substitute the following for paragraph 2(c). "(c) Make whole Frederick Folsom and Thomas Allen with interest , for any loss of pay they may have suffered as a result of the Respondents' un- lawful delay in reinstating them from 2 January 1986, the - date they should have been reinstated and, in the case of Thomas Allen, to a date to be established at the compliance stage of this proceed-, ing." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON , dissenting in part. Contrary to my colleagues, I agree with the judge that Thomas Allen's reinstatement rights ter- minated as of the date of the, unemployment com= pensation hearing. Respondent Mosaic's vice president , Thrower, testified that he decided not to rehire-striker Allen because of his outrageous behavior at the unem- ployment compensation hearing when he lost con- trol of himself and verbally abused all the parties and the presiding officer . As the majority acknowl- edges, Thrower's description of events at the un- employment hearing was not contested by either the General Counsel or the Charging Party and Allen was not called as a witness. By failing to present rebutting testimony and to except to Re- spondent Mosiac's description of Allen 's conduct, the General Counsel and the Charging Party waived any, right to present a contrary version of the unemployment compensation hearing. In my view they also acquiesced to Respondent Mosaic's account of the events . Under these circumstances, there is no reason to prolong this case and allow the General Counsel and the Charging Party the opportunity to submit evidence at the compliance stage-of this proceeding concerning Allen's behav- ior, thereby granting them the proverbial "second bite of the apple." Accordingly , in the absence of evidence that the decision not to rehire Allen was pretextual , I would find that Allen's reinstatement rights terminated as of the date of the unemploy- ment compensation hearing. 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 discourage membership in Tile, Marble & Terrazzo Finishers & Shopmen, Local Union No. 167, or any other labor organization, by refusing to reinstate , or offer reinstatement to, eco- nomic strikers who have not been permanently re- placed by other employees. WE WILL NOT unilaterally cease making contri- butions to the benefit funds required by our collec- tive-bargaining agreement from 1983 to 1985 with Tile, Marble & Terrazzo Finishers & Shopmen, Local Union No. 167. WE WILL NOT refuse to recognize or bargain collectively with the aforesaid Local Union No. 167 as the bargaining representative of our employ- ees in the following unit:. All employees of all members of Tile, Terraz- zo & Marble Contractors Association of Atlan- ta & Vicinity , to wit, Williams Tile Company and U .S. Mosaic Tile Co., performing work specified in Article IV of a collective bargain- ing agreement between the parties entered into on 1 October 1983 and terminating on 30 Sep- tember 1985. 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 immediate reinstatement to John W.'Clark, George Jackson, Robert McDaniel, Car- ruth Price, Serlester Stanley, Charlie Atkins, Lor- enzo Kendrick , Marshall B. Taylor, Gary L. Thur- man, Joseph Brown, and Alberta Morris, and make them whole, with interest , for any loss of earnings they may have suffered as a result of our unlawful failure to reinstate them. WE WILL make the following employees whole, with interest, for any loss of pay they may have suffered as a result of our unlawful delay in rein- stating them from 2 January 1986, the date they should have been reinstated , until 13 January 1986 in the case of Larry Taylor; until 1 February 1986 in the case of D. W . Brown; until 10 March 1986 in the case of Janice Mclvor ; and until 26 May 1986 in the case of Errette Price. TILE, TERRAZZO & MARBLE CONTRACTORS ASSN. 771 WE WILL make Frederick Folsom and Thomas Allen whole, with interest, for any loss of pay they may have suffered as a result of our unlawful delay in reinstating them from 2 January 1986, the date they should have been reinstated , in the case of Frederick Folsom to the date he was reinstated and, in the case of Thomas Allen, to a date to be established at the compliance stage of this proceed- ing. WE WILL make whole our employees by making the fringe benefit contributions we should have made under our 1983-1985 collective-bargaining agreement with the Union and which are now due or past due, and by reimbursing our employees for any expenses ensuing from our failure to make such contributions. WE WILL recognize and, on request, bargain with Local Union No. 167 as the representative of the employees in the aforesaid unit and , if agree- ment is reached , embody it in a signed agreement. TILE, TERRAZZO & MARBLE CON- TRACTORS ASSOCIATION OF ATLANTA & VICINITY, WILLIAMS TILE COMPA- NY, AND MOSAIC TILE COMPANY Gaye Nell Hymon, Esq., for the General Counsel. Robert C. D. McDonald, Esq., of Norcross, Georgia, for the Respondents. Frank B. Shuster, Esq. (Blackburn, Shuster, King & King), of Atlanta, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN , Administrative Law Judge. The original charges in Cases 10-CA-21572 and 10-CA- 21573 were filed on 27 February 1986 against Williams Tile Company (Williams) and U.S. Mosaic Tile Compa- ny (Mosaic), respectively, by Tile, Marble & Terrazzo Finishers & Shopmen, Local Union # 167 (the Union). Each charge alleged that the applicable Respondent had refused to bargain in good faith with the Union in viola- tion of Section 8(a)(5) of the National Labor Relations Act (the Act), and had, by these "and other acts," re- strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act.' The Union filed amendments to the foregoing charges on 22 May 1986, in essence repeating the same allega- tions, but with each of the Respondents listed as a member of the Tile, Terrazzo & Marble Contractors As- sociation of Atlanta & Vicinity (the Association).2 On 5 June 1986 the Union filed an original charge in Case 10-CA-21804 alleging that the Association, through its members Williams and Mosaic (collectively designated Respondents here), had discriminatorily re- ' G.C. Exhs. 1(a) and (c). 2 G.C. Exhs. 1(e) and (g). fused to reinstate economic strikers subsequent to their unconditional offer to return to work , in violation of Section 8(a)(3) of the Act.3 On 25 June 1986 the Union filed a charge in Case 10- CA-21850, not captioned above, alleging that the Asso- ciation had violated Section 8(a)(5) of the Act by unilat- erally discontinuing fringe benefit contributions to em- ployees in the applicable unit .4 Thereafter, on 28 July 1986, the Union submitted a withdrawal request contain- ing the legend that it was being submitted "per advice of Region to amend into Case 10-CA-21572,"5 and, on 30 July 1986, the Regional Director for Region 10 approved the requests On 28 July 1986 the Union filed second amended charges in Cases 10-CA-21572 and 10-CA-21573 alleg- ing that the Association, Williams, and Mosaic, respec- tively, had additionally violated the Act by unilaterally discontinuing fringe benefits for employees in the bar- gaining unit.' And, on the same day , 28 July, the Union amended its charge in Case 10-CA-21804 so as to in- clude Williams and Mosaic with the Association as par- ties charged with discriminatory refusal to reinstate strik- ers.8 After issuance of complaint on 30 May 1986, an amended consolidated complaint issued on 31 July 1981. As further amended at the hearing , it alleged that 19 of Respondents' employees9 engaged in an economic strike beginning 19 November 1985, that the Union made un- conditional application on behalf of the employees for their return to work on 20 December 1985, and that Re- spondents discriminatorily refused to reinstate them in violation of Section 8(a)(3). The complaint acknowl- edged that three of the alleged discriminatees were rein- stated after their application for return to work.10 The complaint also alleged that the Respondents vio- lated Section 8(a)(5) of the Act, beginning 29 November 1985 and thereafter, by refusing to make required contri- butions to health and welfare , vacation, and pension funds as required by an existing collective-bargaining agreement, and, beginning 20 December 1985 and there- after, by refusing to bargain with the Union as the repre- sentative of employees in an appropriate unit. A hearing was held before me on these matters in At- lanta, Georgia, on 28 . August, and 29 and 30 September 1986. Thereafter , the General Counsel , the Charging Party, and the Respondents submitted briefs. On the entire record , and on my observation of the demeanor of the witnesses, I make the following 9 G.C. Exh. 1(n). " C.P. Exh. 1. 5 C.P. Exh. 2. 6 R. Exh. I. ' G.C. Exhs. 1(p) and (r). 8 G.C. Exh. 1(t). 9 Bobby Brown , John W . Clark, George Jackson , Robert McDaniel, Carruth Price, Serlester Stanley , Frederick Folsom , Thomas Allen, Char- lie Atkins, Larry Durden, Lorenzo Kendrick , Janice Mclvor, Larry D. Taylor, Marshall B . Taylor, Gary L . Thurman, Errette Price, D. W. Brown, Joseph Brown , and Alberta Morris (G.C. Exh . 1(v)). 10 Janice Mclvor, 12 March 1986 ; Errette Price, 26 May 1986; and Larry Taylor, 13 January 1986 (G .C. Exh . l(v), par. 16). 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION The pleadings established that Williams and Mosaic are both Georgia corporations, that Williams has an office and place of business at Smyrna, Georgia, and Mosaic at Norcross, Georgia, at which locations they are engaged in the installation of tile, terrazzo, marble, and slate, and that during the calendar year preceding issu- ance of the complaint each of them purchased and re- ceived at its respective place of business materials and supplies valued in excess of $50,000 directly from suppli- ers located outside the State of Georgia. The pleadings also establish that the Association is an association representing' members who install tile, terraz- zo, marble, and slate, that it represents the members in collective bargaining with the Union, and that Williams and Mosaic have been members since 1 October 1983. Evidence adduced at the hearing established that Wil- liams and Mosaic are the only members of the Associa- tion. I conclude that the Association, Williams, and Mosaic are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleged, and the answer denied, that the Union is a labor organization. James E. Clowers, the Union's financial secretary and business manager, credi- bly testified that the Union exists for the purpose of deal- ing with employers concerning its employee members' rates of pay, hours, wages, grievances, and working con- ditions. I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background- The Collective-Bargaining Agreement Prior to formation of the Association in 1983, the Union represented employees of Williams and Mosaic for about 20 years . Then, in 1983, the Union and the Asso- ciation, on behalf of its members, entered into a 2-year collective-bargaining agreement effective 1 October 1983, and ending 30 September 1985. The Association recognized the Union as the collective -bargaining repre- sentative of all employees of employer members of the Association performing work traditionally considered to be within the Union 's work jurisdiction.' 1 B. The Bargaining for a New Agreement, the Discontinuance of Benefits Payments, the Wage Reduction, and the Strike Bargaining for a new agreement began in mid-August 1985, and there were 9 or 10 bargaining sessions before they were discontinued about 12 November . According to Union Business Manager Clowers , the Association proposed a wage cut at the first meeting, and this . subject was discussed at four or five meetings . Clowers contend- 11 G.C. Exh. 2. ed that the parties reached agreement on all issues except wages. The Association's final offer, given on 12 Novem- ber, was $9 hourly plus 86 cents in fringe benefits. Clowers contend that, although there were a few other open times, the Association's representatives assured the Union that these matters "would take care of them- selves" if agreement could be reached on wages. Association Chairman Kenneth R. Williams, founder and president of Respondent Williams, testified that three other items had not been agreed on in addition to wages-work jurisdiction, checkoff, and retroactivity of benefits. According to Williams, it was the union counsel' who said that they could "work out" these matters if agreement could be reached on wages. With respect to this conflicting evidence, I need not decide whether the parties reached agreement because there is no such allegation in the complaint. During the bargaining from the termination date of the contract on 30 September until the beginning of the strike on 19 November, Respondents continued making contributions required by the contract to pension, health and welfare, vacation, and promotional funds. During the last week of November, i.e., after the beginning of the strike, Respondents discontinued making these contri- butions, and have not resumed them. Association Chair- man Kenneth R. Williams agreed at the hearing that Re- spondents had not proposed discontinuing these benefits during bargaining, and that the parties had not been at impasse over this issue. About 20 November 1985-also just after the begin- ning of the strike-Respondents reduced the wage rate from the contractual amount of $10.59 to $9. Unlike the discontinuance of the fringe benefits, the wage reduction is not alleged to be a violation of the Act. The complaint alleged that the alleged discriminatees and others ceased work concertedly and engaged in an economic strike against the Respondents about 19 No- vember 1985. The answer admitted only that the alleged discriminatees ceased work, and Respondents' counsel contended at hearing that the existence of a strike had not been proved. However, there is abundant evidence in the record, including testimony of Respondents' wit- nesses, to establish that the employees did engage in a strike that started on 19 November (a Wednesday) and ended on 19 December 1985. It is also obvious that they struck over the wage issue and, accordingly, were eco- nomic strikers.' 2 A majority of the strikers returned to work a few days after the strike began. Williams' president, Kenneth R. Williams, testified that he had 50 employees in the bar- gaining unit represented by the Union at the time of the strike.13 According to Williams, 35 of the strikers re- turned to work the following Monday, i.e., 24 November 1985. Mosaic's vice president, James G. Thrower, affirmed that he had about 30-32 employees at the time of the 12 The Respondents' motion to dismiss the complaint on the ground that the alleged discriminatees have not been proved to be strikers is denied. 13 See sec. C, infra, on the conflicting evidence of unit employees at the time of the strike. TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 773 strike, and that 19-20 of them returned to work the fol- lowing Monday. C. Respondents ' Hiring of Replacements 1. Williams' replacements a Summary of the evidence There is - conflicting evidence on the number of re- placements that Williams hired The factual issue is whether it hired at least 10 replacements because, as ap- pears hereinafter, this is the number of remaining strikers who applied for return to work. Although it is clear that many new employees were hired , Williams appears to contend that they were not "unit employees." Williams submitted a document , which, Kenneth R. Williams testified , showed the Company's payroll for 22 November 1985, just as the strike was starting 14 There are varying pay rates on this list According to Williams, unit employees may be identified by the pay scale of $10 59, the contract rate. Utilizing this method of identi- fication, there were 39 employees in the unit. However, as noted above, Williams testified that he had 50 employ- ees when the strike started Another oddity is that there is no discernible reason for the different pay rates Thus, on the first page of the report, Benjamin Anderson is listed as working at "Da- vidson's, North Cobb-Interiors" at $10.59 hourly, while Miles E Bagwell was working at the same jobsite at $13.27. The digits "4370," possibly a job classification number, appeared under Anderson's name, but the same digits also appeared under Bagwell's. The only difference between Anderson and Bagwell discernible from the record is the fact that the former's name appeared on a pension fund report to the Union just as the strike was begmnmg, i 5 while the latter's does not Many of the alleged discriminatees' names appeared on the pension fund report . Further examination reveals that all employees appearing on the pension fund report, i e., union members, were paid at the contract rate of $10.59 hourly, while all other employees , i.e., new em- ployees, were paid at higher rates . 16 Adding all employ- ees working at jobsites regardless of their pay, a total of over 70 employees were apparently engaging unit work The Company's "employee distribution" report for 6 December-about midway in the strike-shows about 68 employees engaged in work at jobsites . 17 Of these, 15 appeared on the November pension fund report 18 The rest, I infer, were replacement employees The same gen- eral results are indicated in a payroll for the period ending 31 December 1985-after the strike had ended and the Union had made an offer of return to work on behalf of the strikers . 19 There are similar results in the first pay period of 1986.20 In addition to this evidence , Williams submitted a doc- ument purporting to be a compilation of its records showing new employees hired beginning December 1985. The document shows 5 employees hired in that month, none in January , and 50 others in 1986, most of them in the late spring and summer 21 Kenneth R. Williams claimed that these were the striker replacements. b Factual analysis It is unlikely that the new hires during and immediate- ly after the strike were doing work that was different from that done before the strike . There is no evidence, other than the different pay scales and Kenneth R Wil- liams' testimony , to indicate this The documents them- selves showed that all nonadministrative personnel were paid for work at different jobsites. Respondent Williams' purported compilation of its own records22 has far less probative weight than those records themselves . As indi- cated, they show that Williams, during and after the strike, employed far more new hires than the 10 strikers who applied . for return to work I conclude that all the remaining strikers were replaced, and that work was available for them when application for their return was made by the Union, as appears hereinafter. There is no evidence in the record to indicate that Williams considered its new employees to be "perma- nent" replacements, or that it ever said this to the new employees. Kenneth R Williams merely testified that he saw "new faces coming," but "didn't pay any attention." 2 Mosaic's replacements As appears hereinafter , eight Mosaic strikers applied for reinstatement . The factual issue is whether the Com- pany hired at least this number of replacements. As indicated , Mosaic's vice president Thrower testified that he had about 30-32 employees at the time of the strike on 19 November 1985, and that 19-20 of them re- turned to work the following Monday, 24 November. A pension fund report for November 1985, submitted by the Company to the Union , showed 32 employees.23 Mosaic also submitted lists of employees for five pay pe- riods in December 1985 and for subsequent pay periods. The December lists24 gave the names of two employees who did ' not appear on the November pension fund report25 and the payroll for the period ending 8 January 1986 shows 13 employees out of a total employee com- plement of 3126 who did not appear on the prestrike pension fund report 27 19 it Exh 22 Of a total of over 75 employees employed at jobsites for the period ending 31 December , 28 appear on the prestrike pension fund report (Jt Exh 14) 20 R Exh 5 Over 75 employees were at work at jobsites in the first period of 1986 Of these, 31 are listed on the prestrike pension report (Jt Exh 14) 21 R Exh 6 22 R Exh 6 14 R Exh 4 23 Jt Exh 7 15 Jt Exh 14 24 Jt Exh 1 16 R Exh 4 25 Jt Exh 7 17 Jt Exh 15 26 it Exh 2 18 it Exh 14 27 Jt Exh 7 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I conclude that during the last pay period for Decem- ber 1985, Mosaic was employing at least two replace- ment employees, that it was employing more than eight such employees during the first ,pay period in January 1986, and that work was available, at that time for the eight Mosaic employees on whose behalf the Union ap- plied for return to work. There is nothing in the evidence to show that Mosaic considered the new employees to be permanent replace- ments, or that it ever said this to them. All that Mosaic's vice president Thrower testified about the matter is that the Company "replaced the strikers immediately with nonunion members to keep the jobs going, and then as these jobs faded out and others became available, we re- placed them with more .. of the union strikers." If anything, this evidence indicates that Mosaic did not consider the new employees to be permanent replace- ments. D. The Union's Offer on Behalf of Strikers to Return .to Work, and Union Acceptance of the Employers' Contractual Terms-the Respondents' Responses' The Union's letter of 20 December and Business Manager Clowers' conversations with Respondents' representatives 1. Summary of the evidence Under date of 20, December 1985, Union Business Manger Clowers sent the following letter to Association Chairman Kenneth R. Williams with a copy to Mosaic's vice president Thrower: This letter is to officially inform you that all em- ployees hereby make an unconditional offer to return to work. The Union is prepared to accept your final offer an to recommend it to the member- ship for its ratification. It 'is understood that the final offer is Nine'-Dollars ($9.00) per hr. plus Eighty Six Cents ($.86) in fringe benefits. It is fur- ther understood that the current pay difference per hr. between a Tile or Marble Finisher and a Terraz- zo Finisher, or base machine operator is to remain in effect. All other items were previously agreed to and it is our contention that we now have a con- tract which should be reduced to writing for signa- ture.28 Mosaic's vice president Thrower acknowledged that he received a copy of this letter about 22 or 23 Decem- ber 1985. According to his testimony at the hearing, he read the letter and came to the conclusion that the offer to return to work was not unconditional, because the contract would have to be ratified before the employees' return to work. Thrower asserted that he reached this conclusion on the day he read the letter, without con- sulting with counsel or with Association Chairman Ken- neth R. Williams, who was out of town. Business Manager Clowers testified that he unsuccess- fully tried to call Association Chairman Kenneth R. Wil- hams about a week after mailing the letter. Later, the same day, Clowers called, Mosaic's vice president Thrower, who acknowledged receipt of the letter Ac- cording to Clowers, Thrower said that he had "no objec- tion" to the letter, but would have to talk to Association Chairman Williams about it. However, Thrower contin- ued, he did not see why the parties were refraining from signing the agreement because the Union was accepting it. Clowers replied, "That if [the contract] would have to be voted on by the members . . but we were making an offer to return to work " Thrower again stated that he would have to consult with Williams, and would get back with Clowers Thrower testified that he had a' telephone conversation with Clowers after receipt of the letter. He told Clowers that he had not had enough time to look at it, and denied telling Clowers that he saw no reason why a contract should not be signed However, "as to its content, I told him [Clowers] it was all right, but with Mr. Williams being out of town . . . no official comment could be made on it." Business Manager Clower testified that he finally reached Association Chairman Williams by phone on 3 January 1986, and asked his position on the 20 December letter. Williams replied that he had not had an opportuni- ty to read the letter, and invited Clowers to explain it. Clowers replied that the Union would accept the Asso- ciation's final offer subject to ratification, but had made an unconditional offer to return to work. Williams re- joined that he doubted that the Union represented a ma- jority of the employees. He said that he had to discuss, the matter with his attorney, and would get back to Clowers The latter did not hear further from Williams. A week later, on 10 January according to Clowers, he called Mosaic's vice president Thrower and asked whether he had had an opportunity to discuss the letter with Williams. Thrower said that he had not talked with Williams but would attempt to do so. Clowers asked Thrower to let him know. Mosaic's position, but heard nothing further from Thrower. Kenneth R. Williams testified that the date stamped on his copy of the Union's letter showed that it was re- ceived by Williams on 27 December 1985 29 The Asso- ciation's chairman asserted at the hearing that he did not consider the letter to be an unconditional offer to return to work Nonetheless, he also testified that he told his su- pervisors to rehire the strikers. The reason, Williams as- serted, was that this instruction was given prior to his reading of what he termed the Union's contradictory letter. Kenneth R. Williams acknowledged that he had a con- versation with Business Agent, Clowers the first week of January 1986. He asserted that he told Clowers that he doubted that the Union represented a majority of the em- ployees. Although Williams contended at the hearing that the Union's 20 December letter was ambiguous, he did not dispute Clowers' testimony that the latter ex- plained the letter and its "unconditional" offer to return to work in their January conversation. 28 G C Exh 3 29 R Exh 2 TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 775 Williams testified that one of the reasons for his assert- ed doubt of the Union's majority status was a decertifica- tion petition in his possession at the time of his conversa- tion with Clowers. Williams affirmed that he discussed the petition with Mosaic's vice president Thrower and with counsel at the time he received it As noted above, Clowers contended that he called Thrower on 10 January 1986, and that the latter told him he had not talked with Williams. The latter's testimony, however, shows that the two employer, representatives had talked. Thrower testified that he had "several con- versations" with Clowers subsequent to the first conver- sation in the last week of December 1986 During those conversations, Thrower contended, he told Clowers that the Union did not represent a majority Thrower did not rebut Clowers' testimony that, in the conversation on 10 January, Thrower told Clowers that he had not talked with Williams. By letter dated 28 January 1986, the Union notified the Association that the Union's membership had accepted the last offer, and that an agreement should be execut- ed 30 Respondents did not answer 2. Factual and legal analysis-the validity of the Union's offer to return to work Mosaic vice president Thrower's testimony that, on re- ceipt of the Union's letter, he concluded that the Union had not made an unconditional offer to return to work, is inconsistent with his admission that he told Union Agent Clowers that the substance of the letter was "all right." It is unlikely that Thrower would have given tentative approval of the letter if he doubted the date of the em- ployees' return to work and the unconditional nature of the Union's offer Accordingly, I do not credit Throw- er's testimony that his asserted doubts about the validity of the Union's offer first began in the last week of De- cember. I credit Clowers' testimony that Thrower said he had "no objection" to the letter, but would have to talk to Williams about it before taking a final position. I credit Clowers' testimony that Thrower said he saw no reason why the parties were refraining from signing an agreement, because Clowers was a more reliable wit- ness than Thrower. I credit Clowers' testimony, partially corroborated by Kenneth R Williams, that the two of them talked on 3 January 1986. Clowers told Williams that the Union was accepting Respondents' last offer subject to ratification, but in the meantime had made an unconditional offer to return to work. Williams replied that he doubted the Union's majority status, would consult with his attorney, and get back to Clowers He did not do so I also credit Clowers' unrebutted testimony about his explanation of the Union's letter in his conversation with Thrower in late December In each of these conversa- tions with Williams and Thrower, Clowers distinguished between the offer to return to work and union accept- ance of the contract. Although the latter had to be rati- fied by the union membership, Clowers said that the Union was making an unconditional offer to return to work. 10 G C Exh 4 The plain language of the Union's letter does not link the offer to return to work with ratification of the pro- posed contract. The letter asserts that "all employees hereby make an unconditional offer to return to work." Because of this language, Clowers' explanation of it to Williams and Thrower, and Thrower's, testimony that he told Clowers that the substance of the letter was alright, I do not credit Williams' and Thrower's testimonies that they considered the offer to return to work to be condi- tional on ratification of the contract. The Supreme Court has stated that "[t]he right to rein- statement does not depend upon technicalities relating to application."31 The Board has concluded with judicial approval that verbal requests to return to work, some made on the telephone, constituted valid requests for re- instatement. 32 In one case, the Board found that the ap- pearance of strikers at the plant constituted an offer to return to work. 33 In another case, an ambiguous conver- sation between a striker and a supervisor made it clear under the circumstances that the striker intended to return to work.34 The Board has recently concluded that a return-to-work offer was unconditional even though it was coupled with a demand for discharge of striker re- placements.3 s It follows a fortiori, based on the clarity of the lan- guage of the Union's 20 December letter and Business Agent Clowers' explanations of it, that the Union made an unconditional offer of immediate return to work on behalf of the remaining strikers identified above'36 and that the Respondents understood it. The Respondents did not respond with any reinstatement offer to the Union. E. Respondents' Conversations with Strikers 1. Summary of the evidence The Respondents denied the complaint allegation that they failed to reinstate the 19 alleged discriminatees named in the complaint.37 Respondents elicited evidence intended to establish that they made reinstatement offers to various strikers. Twelve of the 19 alleged discrimina- tees testified at the hearing None of the alleged reinstatement offers were made in writing, according to Respondents' witnesses. The con- tract provides for a hiring hall. Although Respondents had utilized it in the past, they did not use it in this in- stance in an effort to find and reinstate strikers. Williams' president Kenneth R Williams testified that he instructed Field Superintendents Britt Williams and Harold Winfrey to reinstate strikers, but did not follow up on these in- structions Britt Williams and Winfrey said that they had no knowledge of the Union's reinstatement offer 31 NLRB v Fleetwood Trailer Co, 389 U S 375 (1967) 32 Albritton Engineering Corp, 138 NLRB 940 (1962), enfd as modified 340 F 2d 281 (5th Cir 1965), Hartmann Luggage Co, 183 NLRB 1246 (1970), enfd as modified 458 F 2d 178 (6th Cir 1971) 33 Sunbeam Lighting Co, 136 NLRB 1248 (1962) 3' Colonial Manor Convalescent & Nursing Home, 184 NLRB 693, 696- 697 (1970) See also Rice Lake Creamery Co, 131 NLRB 1270 (1961), enfd 302 F 2d 908 (D C Cir 1962) 35 Hansen Bros Enterprises, 279 NLRB 741 (1986) 36 Supra, fn 9 37 Supra, fn 9 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a Williams' employees (1) Alleged reinstatement offers during the strike- Carruth Price, Joseph Brown, and D. W. Brown Williams' evidence suggests that three of the asserted reinstatement offers were made while the strike was still in progress, i.e., that Williams solicited strikers to return to work. Thus, Field Superintendent Britt Williams testi- fied that he talked to striker Carruth Price "shortly after" the strike began (19 November), in "part of the first of December," or "between the first and second week of December." The conversation took place in the Town Center Mall in Cobb County, where Williams was engaged'in a job for Macy's Department Store. According to Field Superintendent Britt 'Williams, Price approached him in the mall and asked whether he could come back. "Sure, come on back" was Williams' asserted reply. However, Price never returned. Williams also contended that he sent a message to Price by an em- ployee named James Bynum, after 1 January 1986. The message was to have Price call Williams. Williams said that he never heard from Price He also agreed that he made no further inquiry of Bynum about the matter. Price denied (1) any personal contact with Williams about going back to work at any time, (2) any offer to reinstatement by Williams or any refusal on Price's part to accept same after the strike ended, and (3) any refusal to accept reinstatement in early 1986. Field Superintendent Britt Williams also testified that he had a conversation with striker Joseph Brown at the Town Center Mall "probably a week" after his asserted conversation with Price, i.e., in about mid-December 1985. He offered Brown a job as a,helper. Williams does not assert any'response from Brown at this time. Later, about March 1986, Brown called Williams and asked for a job as a tile setter, a job not covered by the contract. Williams replied that he did not have any openings for that job at the time, but offered Brown a job as a helper. According to Williams, Brown replied that he "wanted to go a little bit further" as a tile setter or apprentice. Striker Joseph Brown testified that he had been em- ployed as a helper and finisher. He called Field,Superin- tendent Britt Williams about 2 or 3 weeks after the strike ended, and asked whether they were going back to work. Williams replied that there was nothing available. Brown denied that he asked to come back as a tile setter in this conversation. About 6 or, 7 months later, Brown called again, and Williams replied that he had nothing- the Company had hired new employees. Williams said, "If we have anything open as a helper, I'll call you." Brown then asked for work as a tile setter, but Williams never offered him a job as a helper or a tile setter. In addition, Field Superintendent Williams testified that he had a conversation with striker D. W Brown "two weeks after people started coming back to work." The latter expression is ambiguous since it may mean 2 weeks after the strike began, or 2 weeks after it ended. However, the strike began on 19 November, and most of the employees began returning to work on 24 November. This suggests that Williams meant that the alleged con- versation with D. W Brown took place in the first half of December 1985, i.e, during the strike. Williams also ambiguously placed the date of this conversation about 3-4 weeks later. On cross-examination, however, the wit- ness testified that his first contact with Brown was "probably two weeks after the strike." The conversation took place on the telephone. According to Williams, he asked Brown whether he was "coming back or not." Brown replied that he would be back "when all this thing blows over." This asserted answer also suggests that any such conversation took place during the strike Brown testified that Britt Williams sent word for him to call Williams "about the first of February" (1986). Brown did so, and Williams asked whether he was coming back to work Brown replied affirmatively, but then spoke with Business Manager Clowers The latter informed Brown that no contract had been signed, but also said that Brown could use his own judgment about returning to work. Brown decided not to do so (2) John W Clark Field Superintendent Williams asserted that he saw striker John W. Clark working on a job about 1 March 1986, "or a good bit after that" and told him that he could "come back" if he was "unhappy" with his other job. According to Williams, Clark never came back. Clark testified that he called Williams immediately after the strike ended, and offered to return to work. Williams replied that he did not have anything at that time, but had something coming up soon. Clark denied that anybody from Williams ever called him again On cross-examination, Clark was asked the following questions and gave the indicated responses: Q. So isn't it a fact, Mr Clark, that you had been offered to go back to work, that you called Mr. Clowers to see if you could go back to work or if you were still on strike, and he told you to do whatever you wanted but that no agreement had been signed; isn't that correct? A. Right Q. And you do, sir, now acknowledge upon your oath that you were offered reinstatement at Wil- liams Tile Company, won't you? A. No. No. I called Britt Williams, and I-my call was never returned. He never called me back and said to come back to work. On redirect examination, Clark again testified that Wil- liams never offered him a job after the strike. (3) Marshall Taylor Striker Marshall Taylor testified that, immediately after the strike ended, he made an offer to return to work to Williams' president Kenneth R Williams, in the Company's office Williams told him to talk to Field Su- perintendent Harold Winfrey. Taylor did so, and Win- frey told him that they "didn't have anything," but that Winfrey would call Taylor. The latter testified that he has not received any such call. Later, in 1986, Taylor called again and spoke to an individual whom he identi- TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 777 Pied as Kenneth Williams Jr. Taylor was told that "they didn't have anything " Williams' president Kenneth R. Williams corroborated Taylor's testimony. Thus, he testified that Taylor came to his office and asked for a job Williams testified that he told Taylor that he would advise Winfrey that Taylor was available, and that he did so advise Winfrey The latter denied that he ever saw Taylor after the strike, and agreed that he has not offered reinstatement to Taylor Field Superintendent Winfrey testified that he was re- luctant to rehire or recall Taylor because he had heard that Taylor made disparaging remarks and threats about the Company Winfrey could not provide the details of such remarks or threats, and did not recall the source of the information On recross-examination he added absen- teeism as another reason for the failure to recall Taylor (4) Gary L Thurman Williams' field superintendent Winfrey testified that Thurman was "separated" on 25 October 1985 because of a lack of work. This testimony is supported by an un- signed "Separation Notice."38 According to Winfrey, he did not recall Thurman to work because the Company "wasn't in need of . additional help at the time." He denied that Thurman ever came to him and asked to be put back to work, and admitted that Williams did not offer him reinstatement. Winfrey also testified that layoffs are frequent in the tile, marble, and terrazzo industry, and that the same em- ployees are recalled when work becomes available. Wil- liams has engaged in this practice in the past. Williams' president Kenneth R. Williams asserted that he had a "cyclical" business, that he does not carry employees as such on company records during layoffs, and that the same employees come back after layoffs only "occasion- ally." However, the Company's monthly pension reports to the Union before the strike show continuous employ- ment for most employees during weekly pay periods.39 Gary L. Thurman testified that he was working for Williams on a job for Macy's, and that they were waiting for "some stone" to arrive within the next few weeks He received a layoff slip on 25 October Thurman stated that he has in the past been laid off by Williams pending receipt of equipment and materials, and has been recalled immediately when it arrived. He excepted to be recalled in this instance According to Thurman, although he was not actually working when the strike began (19 November), he joined the strike. Thurman further affirmed that he did not receive any reinstatement offer from the Company On three occa- sions, according to Thurman, he asked Field Superin- tendent Winfrey to be returned to work. On the first such occasion, in January 1986, Winfrey said that he did not have any work at the time, but would have some soon During the second call a week later, Winfrey said that they had not received the stone and equipment and had not "started up the [Macy's] job yet " During the last call, Winfrey told Thurman that his services were no 38 R Exh 8 19 it Exhs 9-14 longer needed, and suggested that he seek other employ- ment (5) Bobby Brown The issue is whether Bobby Brown was laid off be- cause of lack of work with reasonable expectation of recall, or discharged because of absenteeism. There are two separation notices in evidence, both dated 8 July 1985 One of them was signed by Field Superintendent Winfrey, and "lack of work" is checked as the reason for separation There is a blank space on the form for rea- sons other than lack of work In this space are markings Indicating that a word had been written there and then obliterated 40 The other separation notice is unsigned, and states that excessive absenteeism was the reason for the separation 41 Field Superintendent Winfrey was asked by Respond- ents' counsel42 the reason for Bobby Brown's separation. He answered "We separated Mr Brown under separa- tion notice of lack of work " Winfrey was then asked to explain the two reasons appearing on Brown's separation notices The witness answered that Brown was absent 1 or 2 days a week, and that Winfrey made the decision to terminate him for this reason However, when Winfrey talked to Brown's foreman, he discovered that the records of the asserted absenteeism varied so much that the Company decided to give lack of work as the reason. Winfrey agreed that the notice showing lack of work as the reason was the only notice issued to Brown Brown's testimony is unclear and confusing . He was a helper, and prior to July 1985 had previously been laid off and then recalled, normally 3-4 weeks after layoff. Asked whether he had been "discharged" in July for ab- senteeism, Brown answered both affirmatively and nega- tively He stated that it had "not been said" to him that he had been discharged, and referred to the lack of work reason given on his separation notice On the other hand, Brown also testified that the Company on occasion gives lack of work as a reason so that an employee can collect unemployment compensation benefits Brown also stated that he did not know the reason for his discharge, and, referring to his practice of riding to work with another employee, appeared to be denying the allegation of ab- senteeism Describing his last day of work in early July 1985, Brown testified that Winfrey "got mad with" him, said that he was going to give Brown "his papers," and ad- vised Brown to save his money because "things were going to get rough." Although Brown testified that he asked for work without success after his last day of work, he was unclear about the dates. Williams' records show an almost identical comple- ment of employees, minus Brown, from June through November 1985.43 40 G C Exh 5 41 R Exh 7 42 Corrections in the transcript have been noted and corrected 43 it Exhs 9-14 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (6) Robert P. McDaniel McDaniel described the Union's offer to return to work on his behalf, but did not make any individual offer to return. The Company did not offer him reinstatement. After the strike, it was McDaniel's belief that the par- ties were still negotiating. He interpreted the Union's po- sition to be that the strikers would go back to work if the Company signed a contract.44 McDaniel stated that it was his desire to return to work when the Union had obtained a contract. (7) George Jackson Jackson participated in' the strike. About a week after it began, according to Jackson, he "left the strike',' and accepted a job with Goodyear. He was unaware of the Union's offer to return made on behalf of the strikers, and did not himself make an offer to return. No one from the Company made a reinstatement offer to him. Jackson said that he would not have returned to work with a pay cut.45 Nonetheless, Jackson added, he contin- ued to participate in union meetings because he did not know how long he was "going to last at Goodyear." b. Mosaic's employees (1) Charlie Atkins Atkins was a striker, and testified that Business Manag- er Clowers informed the members in December 1985 that they could return to work if they wished to do so. Atkins received no offer from Mosaic. On 1 April 1986, Atkins averred, he called John Mion Jr., whom he iden- tified as Mosaic's president, and asked to go back to work. Mion replied that he did not have anything for Atkins to do at the time. Mosaic's vice president Throw- er testified that, to "his knowledge," Atkins never asked for reinstatement. Mion did not testify. (2) Janice Mclvor Mclvor at one time worked for Williams, but at the time of the strike, which she joined, she was working for Mosaic. Mclvor 'testified that she appeared at the plant and asked Mosaic's vice president Thrower for work on 10 January 1986, but was told that no work was avail- able. Two subsequent telephone calls to Thrower or his secretary had the same results. Mclvor called again on 9 March 1986 and, after an initial rejection, received a call from Thrower offering her reinstatement. She returned to work the next day, i.e., 10 March 1986 46 (3) Alberta Morris Morris was previously employed by Williams, but was working for Mosaic at the time of the strike, which she joined She went with Janice Mclvor to ask Mosaic's vice president Thrower for a job in early January 1986. Thrower said that materials for a job were not available. A few weeks later, Morris talked with Thrower again, and he suggested that she apply at another firm for work. Morris did so, but no work was available There- after, Morris called Mosaic's office a few times, and left her name. She did not receive an offer to return to work, according to her testimony.' Mosaic's vice president Thrower testified that he did not himself offer reinstatement to Morris. Counsel sought to elicit testimony from Thrower that a foreman, on Thrower's direction, tried to contact Morris. When the Charging Party objected on the grounds of hearsay, Mo- saic's counsel stated that the sole purpose of the testimo- ny was to establish Thrower's direction to the foreman, and the latter's report to Thrower, not the truth there- of.47 Accordingly, Thrower testified that the foreman called Morris to report to work, and that she did not do so. 2 Factual and legal analysis a Employees of Respondent Williams (1) Price, Joseph Brown, and D. W. Brown I credit Carruth Price's denial that he received a rein- statement offer from Williams. Field Superintendent Britt Williams was a, less believable witness than Price. Wil- liams' failure to ask employee Bynum whether the latter passed a message to Price from Williams casts further doubt on the latter's testimony. Respondents' asserted evidence is also questionable in general because it pre- sents one-on-one conversations with individual strikers without any written response to the Union's letter offer- ing a return to work and, indeed, without any knowl- edge of such letter by Field Superintendents Britt Wil- liams and Winfrey. ' Williams' testimony, even if credited, would not estab- lish an offer of reinstatement because the alleged conver- sation took place during the strike The Board has held that in certain circumstances solicitation of strikers to return to work may be violative of Section 8(a)(1) of the Act.48 There is no complaint allegation of this nature in this case, but it follows a fortiori that solicitations of strikers to return to work, made during the strike, do not constitute effective offers of reinstatement terminating Respondents' obligation to make such offers after the strike and after an offer to return to work Accordingly, I find that Williams did not make an individual offer of reinstatement to Price. ,I credit Joseph Brown's testimony that he asked Field Superintendent Britt Williams for work about 2 or 3 weeks after the strike ended, and that the latter said that there was no work available. I do not credit Williams' testimony that he offered a job as a helper to Joseph Brown in mid-December 1985 Even if made, it took `44 McDaniel's opinion concerning the Union's offer to return to work is erroneous, for the reasons given above 4s As indicated, Respondents reduced wages on 20 November from the contract rate of $10 59 to $9 48 Mclvor was subsequently laid off again, but this layoff is not alleged to be a violation of the Act 47 Respondents' counsel stated that the foreman "might be a flat-out, 100 percent liar " 48 Ramona's Mexican Food Products, 203 NLRB 663, 682 (1973), enfd 531 F 2d 390 (9th Cir 1975), Ramada Inn South, 206 NLRB 210, 219 (1973), Sam'! Bingham's Son Mfg Co, 80 NLRB 1612, 1613-1614 (1948) Cf Roma Paper Products, 208 NLRB 644 (1974) - TILE, TERRAZZO & MARBLE CONTRACTORS ASSN. place during the strike, and was not an offer of reinstate- ment for the reasons given above. I do not credit Wil- liams' testimony in effect that Brown rejected a later offer of reinstatement if he could not have a job as a tile setter. It is unlikely that Brown, seeking work, would have rejected an offer to return to his former job. In- stead, I conclude, Williams first told Brown that he did not have any work as a helper, and then Brown asked for work as a tile setter. Respondent Williams did not offer either job to Joseph Brown, and I therefore find that Respondents did not make him an individual offer of reinstatement I do not credit Field Superintendent Britt Williams' testimony about early offers to striker D. W Brown be- cause of the ambiguity of that testimony. I also note that any such conversations may have taken place during the strike, and in such circumstances could not have con- tained a valid offer of reinstatement. On the basis of D. W. Brown's testimony, however, I conclude that Re- spondent Williams did make an offer of reinstatement to him on 1 February 1986, and that he decided not to accept. (2) John W. Clark I credit Clark's testimony that he personally offered to return to work immediately after the strike, and that Re- spondent Williams never offered him a job. I do not credit Field Superintendent Britt Williams' testimony about an alleged offer to Clark about 1 March 1986 "or a good bit after that" because of the vagueness of the time, the offhand and casual manner in which the asserted offer was made, and because Clark was the more believ- able witness. (3) Marshall Taylor I credit Taylor's testimony that he personally asked Williams' president for work after the strike, that he was referred to Field Superintendent Winfrey, and that the latter told Taylor that there was no work. Winfrey's tes- timony that he never saw Taylor after the strike is unbe- lievable. The fact that Williams' president saw Taylor in his office and referred him to Winfrey is established by the company executive himself, and it is highly improb- able that Taylor, seeking work, failed to see Winfrey. I accord no probative weight to Winfrey's vague com- ments about asserted misconduct by Taylor, nor to the recently invented allegation of absenteeism 49 (4) Gary L. Thurman Williams issued a "separation" notice to Thurman on 25 October 1985. The notice indicated that it was for 49 During the General Counsel's case-in-chief, i granted the motion of Respondents' counsel to sequester witnesses, with the admonition that it was the responsibility of the parties to police the rule Thereafter, Win- frey remained in the hearing room during the testimony of Field Superin- tendent Britt Williams Respondents' counsel acknowledged responsibil- ity, and the Charging Party moved to strike Winfrey's testimony in its entirety Winfrey testified that his presence in the hearing room during examination of another witness did not affect his own testimony, and I deny the Charging Party's motion Nonetheless, this breach of the rule is a factor to be assessed in determining Winfrey's credibility Zarnc, Inc, 277 NLRB 1478 (1986) 779 lack of work I credit Thurman's testimony, partially corroborated by Winfrey and Kenneth R. Williams, that Thurman had been laid off in the past pending receipt of materials and equipment, and then recalled I also credit Thurman's testimony that this was the reason for his "termination" on 25 Octobeer 1985, while working at the Macy's jobsite. I conclude that Thurman was laid off rather than dis- charged on 25 October, and retained employee status up to and through the strike, from 19 November to its end on 19 December 1985 and thereafter. According to the Employer's past practice, Thurman had a reasonable ex- pectation of recall when the materials and equipment for the Macy's job arrived. D. H. Farms Co., 206 NLRB 111 (1973). The period of time from Thurman's layoff to the beginning of the strike, less than a month, was consistent with past layoffs and recalls. The Employer did not suffer any decline in business and, indeed, continued its business during the strike. Allstate Mfg. Co, 236 NLRB 155 (1978) Accordingly, Thurman retained employee status. I credit Thurman's testimony that on three occasions beginning in January 1986, he asked Field Superintend- ent Winfrey for work, without success; I do not credit Winfrey's denial that Thurman made these attempts be- cause he was a less believable witness. (5) Bobby Brown Both the General Counsel's and the Respondents' evi- dence with respect to Bobby Brown is unclear, and in some respects contradictory. I conclude, on balance, that Brown was discharged rather than laid off on 8 July 1985. The "lack of work" reason on the only separation notice given to Brown is inconclusive because Brown himself admitted that the Company sometimes gives such notices in order to permit a discharged employee to col- lect unemployment compensation benefits, and at one point said he did not know the reason for his "dis- charge." Although Winfrey's explanation of Brown's "separation" as a "discharge" for absenteeism is suspect because of the admitted inconsistency in company records on the asserted reason, and Winfrey's unrelia- bility as a witness, Brown himself stated that Winfrey "got mad," said he was going to give Brown "his papers," and advised Brown to save his money because "things were going to get tough." This is the language of permanent termination rather than temporary layoff. The determinative factor is the length of time, about 4- 1/2 months, between Brown's last day of work and the time that the strike started. This was more than four times greater than Brown's prior layoff periods and those of other employees There is no showing of lack of work in the summer of 1985. Indeed, Williams had almost the same complement of employees throughout the summer. It is unlikely that the employer would have failed to recall Brown for so long a period of time, while employ- ing the same complement of employees, if it had merely laid him off rather than discharged him. I therefore find that Williams discharged Bobby Brown before the strike began Accordingly, it had no 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD obligation to reinstate him. Shaw Industries, 255 NLRB 877, 881 ( 1981). (6) Robert P. McDaniel Although McDaniel's view of the nature of the Union's offer to return to work was erroneous, this did not detract from his status as an employee, his right to reinstatement, or the fact, that the Union's, letter con- tained a valid offer on his behalf. Although McDaniel testified that he wanted to return when the Union had a contract, the issue of whether he would have rejected an offer of reinstatement in the absence of a contract is hy- pothetical, and can only be tested on receipt - of such offer. Accordingly, he was entitled to an offer of rein- statement. (7) George Jackson The question with respect to Jackson is whether the job that he took with Goodyear during the strike invali- dated the reinstatement rights which he acquired by virtue of the Union's offer to return to,work with Wil- liams made on his behalf and that of the,other strikers. The issue is whether the job with Goodyear constituted "regular and substantially equivalent employment." Brooks Research & Mfg., 202 NLRB 634, 636 (1973). With respect to this issue, the Board has stated as fol- lows. The question of .what constitutes "regular and substantially equivalent employment" cannot be de- termined by a mechanistic application of the literal language of the statute but must be determined on an ad hoc basis by an objective appraisal of a number of factors, both tangible and intangible, and includes the desire and intent of the employee con- cerned. [Little Rock Airm_otive, 182 NLRB 666, (1970) ] Reversing the trial examiner's finding in Little Rock that two employees had found substantially equivalent employment, the Board noted that this finding gave no weight to the fact that the employees had expressed con- tinuing interest in returning to their jobs (id.). In this case, Jackson continued to participate in union meetings because he was not sure how long his job at Goodyear would last. I conclude that Jackson was not sure that his position at Goodyear gave him as much job security `as his work for Respondent Williams, and that the Goodyear job therefore did not constitute substan- tially equivalent employment. I also conclude that Jack- son's attendance at the union meetings manifested his continued` interest in a job with Respondent Williams. As the Board recently reaffirmed, "[t]he burden of showing that a striker has obtained regular and substan- tially equivalent employment rests with the employer." Salinas Valley Ford Sales, 279 NLRB 679 (1986). The Re- spondent's have not established that the Goodyear job was substantially equivalent to Jackson's former job and, accordingly, the Goodyear job does not invalidate any rights to reinstatement that Jackson may otherwise have had. Jackson's statement that he, would not have returned to a job with a pay cut does not adversely affect his right to an offer of reinstatement because the question of whether he would have accepted such offer is specula- tive and can only be tested by his receipt of an offer. b. Mosaic's employees (1) Charlie Atkins I credit Atkins' unrebutted testimony that on 1 April 1986 he asked Respondent, Mosaic's president Mion for work, and that the latter replied that there was no work for Atkins to do. (2) Janice Mclvor I credit Mclvor's testimony that she applied several times for reinstatement, beginning in January 1986, and was returned to work on 10 March 1986 (3) Alberta Morris I credit Morris' testimony that she applied for work several times, beginning in January 1986 but never re- ceived an offer of reinstatement . I accord no weight to Thrower's hearsay testimony about a report from a fore- man saying that reinstatement had been offered to Morris-the testimony was not even elicited to establish the truth of the report F The Strikers Who Did Not Testify 1. Larry Durden, Errette Price, and Frederick Folsom Seven of the alleged discriminatees did not testify.50 As set forthiabove, the complaint alleged and the answer denied that Respondents failed to reinstate the alleged discriminatees. Mosaic's vice president Thrower testified without con- tradiction that strikers Larry Durden, Errette Price, and Frederick Folsom had been reinstated by Mosaic. Thrower's testimony is partially corroborated by compa- ny records that show that Durden was on the payroll for the first week of January 1986,51 and Folsom was laid off on 17 September 1986.52 Further, the complaint ac- knowledges that Errette Price was reinstated on 26 May 1986 Accordingly, I find that Durden was reinstated the first week of January 1986, and Price on 26 May 1986. As for Folsom, he must have been first reinstated in order to be laid off on 17 September. I shall leave the date of his reinstatement to the compliance stage of this proceeding. 2. Thomas Allen Mosaic's vice president Thrower testified that he de- cided not to rehire striker Thomas Allen because the latter, at a state unemployment compensation hearing, so Frederick Folsom, Thomas Allen, Larry Durden, Lorenzo Ken- drick, Larry B Taylor, Errette Price, and Serlester Stanley 51 it Exh 2 52 Jt Exh 8 TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 781 "went totally out of emotional and mental control" and engaged in verbal abuse toward all parties and the pre- siding officer. Therefore, Thrower decided not to rehire Allen although he had had no previous trouble with him. The date of the unemployment compensation hearing is not indicated in the record, but it obviously took place some time after the end of the strike Neither the General Counsel nor the Charging Party contested Thrower's description of events at the unem- ployment compensation hearing and, accordingly, I accept his testimony that he decided not to rehire Allen for the reasons given. 3. Lorenzo Kendrick Thrower's testimony established that Lorenzo Ken- drick was an employee of Mosaic Thrower said that he thought that Kendrick was working for another compa- ny, about whose name he was uncertain. Kendrick did not ask for reinstatement at Mosaic. However, the Union's offer of 20 December 1985 necessarily included Kendrick, and he was therefore entitled to an offer of re- instatement. Thrower's vague testimony about Ken- drick's other job is insufficient to establish that Kendrick had found regular and substantially equivalent employ- ment of a nature to invalidate his right to reinstatement at Respondent Mosaic. Salinas Valley Ford Sales, supra. 4. Larry Taylor and Serlester Stanley There is no testimony specifically pertaining to Taylor or Stanley, and any findings concerning them must be based on the pleadings and documentary evidence. As in- dicated above, the complaint alleged them to be discrim- inatees, the answer admitted they are employees who ceased work, and record evidence shows that those em- ployees were economic strikers. Taylor and Stanley were therefore included in the terms of the Union's offer to return to work, dated 20 December 1985. Williams' records in 1985 establish that Taylor and Stanley were employees of that Company before the strike.53 The record also contained lists of Williams' em- ployees from 6 December 1985 through 21 March 1986 54 Neither Taylor's name nor Stanley's name ap- peared on any of those lists. However, because the com- plaint acknowledges that Taylor was reinstated on 13 January 1986, 1 accept that date as the date of Taylor's reinstatement. Because company records do not show Stanley's poststrike employment, I conclude that he was not reinstated, and there is no evidence that he was of- fered reinstatement. G Legal Conclusions with Respect to the 8(a)(3) Allegations It is well established that economic strikers are entitled to immediate reinstatement on an unconditional offer to return to work, provided that their positions have not been filled by permanent replacements and the employer does not have other legitimate and substantial business justification for refusing to reinstate them. Hansen Bros. 53 Jt Exhs 9-14 14 Jt Exhs 15-30 Enterprises, supra In order to establish that the place- ments have been permanently employed, "the employer must show a mutual understanding between itself and the replacements that they are permanent" (279 NLRB 74). Summarizing the facts explicated above, Williams was employing far more replacement employees during and after the strike than the strikers who applied for rein- statement, and work was available at the time of applica- tion. The record is devoid of any evidence that Williams considered the replacements to be permanent, or that it had any such understanding with them. Williams' presi- dent candidly testified that he "didn't pay any attention" to the replacements. I find that none of the replacement employees at Williams had been permanently employed. The evidence also shows that Mosaic had at least two replacement employees during the last pay period of De- cember 1985 (after the end of the strike), more than eight for the first pay period in January 1986, and that work was available. Respondent Mosaic's vice president was equally candid. He testified that he kept the jobs going with replacement employees until the jobs ended, and then "replaced" them, i.e., the replacement employees with strikers. I find that the replacement employees at Respondent Mosaic had not been permanently employed. The Union's letter of 20 December 1985 constituted an effective offer of immediate return to work on behalf of all the alleged discriminatees It was received by Mosaic on 22 or 23 December 1985, and by Williams on 27 De- cember 1985. Because the Respondents had not em- ployed any permanent replacements and had no other le- gitimate and substantial business justification, they were obligated to offer immediate reinstatement to all the al- leged discriminatees except Bobby Brown, who had been discharged prior to the beginning of the strike. The normal period allowed by Board law for such reinstate- ment is 5 days from receipt of the reinstatement offer. Pease Co., 251 NLRB 540 (1980) Because the Union's letter in this case was received during the last week of the year, immediately prior to or between two holidays normally accompanied by plant shutdowns, I conclude that the date each Respondent was obligated to reinstate discrimmatees was 2 January 1986 The only employee immediately reinstated was Larry Durden, who was on Mosaic's payroll for the first week of January 1986. With respect to the others, the Re- spondents' failure to offer them immediate reinstatement violated Section 8(a)(3) and (1) of the Act Hansen Bros. Enterprises, supra ss ss In Hansen, the administrative law judge found that the union's demand for reinstatement of strikers was coupled with a demand that the striker replacements be discharged, and that this offer was not uncondi- tional In disagreement , the Board stated as follows It is well established that economic strikers are entitled to immediate reinstatement upon an unconditional offer to return to work, provid- ed their positions have not been filled by permanent replacements Thus, where the striker replacements are only temporary, an offer to return to work which demands no more than the discharge of those replacements is perfectly appropriate [279 NLRB 7411 It is clear that the last sentence quoted above does not add a new re- quirement for the creation of a right to immediate reinstatement, i e , a demand for the discharge of temporary replacements Rather, as ap- peared in the context of the decision, a demand for their discharge does Continued 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents' obligations to reinstate some of the dis- crimtnatees terminated on dates subsequent to 2 January 1986-on 13 January 1986 with respect to Larry Taylor because he was then reinstated ; on 1 February 1986 with respect to ' D. W. Brown because he then declined an offer of reinstatement ; on 10 March 1986 with respect with to Janice Mclvor, because she was then reinstated, and on 26 May 1986 with respect to Errette Price, be- cause he was then reinstated . Such obligation also termi- nated with respect to Thomas Allen on the date of the unemployment compensation hearing in which he en- gaged in conduct of a nature to disqualify him It also terminated on the date of reinstatement of Frederick Folsom I shall leave the date of Folsom's reinstatement and the date of Allen's unemployment compensation hearing to the compliance stage of this proceeding. H. The Alleged Refusal to Bargain 1 The bargaining request and Respondents' responses a. Summary of the evidence As set forth above, subsequent to various bargaining sessions, the Union's letter dated 20 December 1985 con- tained an averment that the parties had reached agree- ment on a contract, and that it should be reduced to writing for signature.56 The complaint does not allege that the parties actually reached an agreement but, rather, that this letter constituted a request for further bargaining that Respondents did not honor. Respondents deny this. Mosaic's 'vice president Thrower told Business Manag- er Clowers, after receipt of the Union's letter in the last week of December 1985, that he saw no reason why the parties were refraining from signing an agreement be- cause the Union had accepted it About a week later, in Clowers' conversation with Respondent Association Chairman Kenneth R Williams, the latter did not voice his asserted belief that there was no contract. Instead, he said merely that he doubted that the Union represented a majority. Union Agent Clowers asked Mosaic to call him back with a statement of position, and Williams promised to do so. However, neither Respondent had further com- munication with Clowers, nor did they answer the Union's 28 January 1986 letter advising them that the membership had ratified a contract. Although Thrower denied that the parties had reached agreement, this denial was not made until the hearing. Thrower also agreed that "there could have been, further discussions about [the open] items," and affirmed that such differences had been resolved in prior negotiations. The sole reason the parties did not continue bargaining in this case was the Respondents' asserted belief that the Union did not have a majority. Although Thrower denied that he considered the Union's 20 December 1985 letter to be an offer to resume negotiations (if there was no contract), he was contradicted on this issue by Asso- ciation Chairman Kenneth R. Williams, who testified to the contrary b. Legal analysis and conclusions The Board has previously ruled on a similar issue pre- sented in a prior case. In Petropoulos Bros. Appliances, 169 NLRB 1161 (1968), the union,,as here, sent a communi- cation to the Company accepting the latter's last offer, and requesting signatures on a written agreement In lan guage approved by the Board, 'the trial examiner, in,rele- vant part, stated as follows- , What the Union was saying to the Employer in its telegram . . - was that it was willing to accept what the Respondent had last offered to it That fact remains unchanged no matter what term the Union may have used to describe the effect of its acceptance. And the fact that [the union agent] may have erroneously believed that acceptance of the Respondent's offer constituted a final agreement . . does not alter this conclusion If further bar- gaining was required in the Respondent's opinion, it was obligated to say so; if it was not, it was obligat- ed to meet with the Union, as the latter had re- quested, and sign a written memorial of the agree- ment. If, as the Respondent says, it believed that the Union was in error in thinking that a binding agree- ment had been achieved, its duty to bargain in good faith required that it so inform the Union and thus afford the latter an opportunity to change its posi- tion, if it so desired. Instead, as (the company attor- ney's) letter . . . indicated, the Respondent led the Union to believe that the latter's acceptance of the Respondent's offer was being taken under consider- ation and that the Union would thereafter receive a reply. But no reply was made . . . In view of these facts, I cannot agree that the Union did not request the Respondent to bargain . nor can I regard the, Respondent's conduct . as consonant with its duty to bargain in good faith. [Id. at 1167- 1168]. I conclude, that the Union's 20 December 1985 letter constituted an offer to resume bargaining if agreement' had not been reached for the reasons stated in Petropou- los Brothers'57 Respondents' conduct here is essentially indistinguishable from that of the employer in that case. I further note that Association Chairman Kenneth R. Wil- liams admitted that he considered the Union's letter to be an offer to resume bargaining.58 The record is clear that there was no response. not thereby make-the offer to return conditional in nature The right of economic strikers to replacement, in the absence of permanent replace- ments or other legitimate cause, remains as it has been established by prior law 56 G C Exh 3 As noted, the letter also contained an offer to return to work on behalf of the remaining strikers See also T F Frick & Co, 270 NLRB 459, 461-462 (1984) 58 It is unclear whether it was the Union or Respondents who request- ed bargaining prior to the negotiations beginning in August 1985 If it was the Union, the latter's 20 December letter was simply a reassertion of the original demand Oleson's Foods No 4, 167 NLRB 543 (1967) TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 2. Evidence of disaffection with the Union among Williams' employees a. Summary of the evidence Williams introduced two petitions stating that the sig- natories thereon did not wish to be represented by the Union. One contains 28 signatures, and the other 6.s9 Neither petition is dated, nor are any of the signatures. Elbert Stephens , a truckdriver for Williams, struck for about 2 or 3 days in late November 1985 Thereafter, he solicited the signatures on the petition with 28 names, and identified them as those of Williams' employees Ste- phens testified that the petition was typed for him by a company Secretary who works in the "front office." He then circulated it in early December 1985 among em- ployees at company locations that he visited as a compa- ny truckdriver, and gave it to Kenneth Williams' son He was uncertain about the date. Stephens also identified the six signatures on the small- er petition as those of Williams' employees . He originally testified that he gave this petition to Kenneth R. Wil- liams' son in "January or February ." Stephens agreed on cross-examination , however, that his pretrial affidavit, dated 21 April 1986 , 60 refers only to the larger petition, and that the smaller one had not been completed at that time. Kenneth R . Williams testified that he received the larger petition in early January, when he returned from vacation He also asserted that he received the petition with six names in the second or third week of January 1986. However, Williams admitted on cross-examination that his pretrial affidavit , dated 13 March 1986 ,61 refers only to the larger petition with 28 names. Williams claimed that this statement in his affidavit was an error because he also had the second petition in his file at the time he gave his affidavit. According to Williams, he found the second petition when preparing for the hearing in this case. Kenneth R. Williams testified that he had about 40 unit employees at the time he received the petition with 28 names . However, as shown above, Williams' records show that there were more than 75 employees working at jobsites, doing apparently unit work , in the first pay period for 1986.62 Association Chairman Williams agreed that he reached a "fixed" position the first week of January that the Union did not represent a majority based on the petition with 28, "rumblings through the shop," and the strikers who crossed the picket line to return to work. Asked whether the Union represented a majority of the Asso- ciation's employees, i.e., those of both Respondents, Wil- liams testified that he did not know. b Factual analysis In the absence of rebuttal , I credit Elbert Stephens' testimony that the 28 names appearing on the larger peti- tion are those of Williams' employees during the time 59 R Exhs 3, 9, and 10 783 period material here I also credit Kenneth R . Williams' testimony that he received this petition in the first week of January 1986. However, I do not credit Williams' as- sertion that he received the second petition in January 1986. Stephens admitted that the second petition was not even in existence as of 21 April 1986 , and Williams' ex- planation for the lack of any reference to the second pe- tition in his affidavit is unbelievable. I do not credit Kenneth R. Williams' testimony that he had 40 unit employees at the time he told Business Man- ager Clowers that he doubted the Union 's majority status, in the first week of January. For the reasons expli- cated above,63 Williams' attempt to limit the size of the unit by pay rates is unpersuasive . All the evidence sug- gested was that Williams was paying nonunion employ- ees at higher rates for doing the same unit work, and that the total size of the unit exceeded 75 employees. 3. Evidence of disaffection with the Union among Mosaic's employees a. Summary of the evidence Mosaic introduced a document with a legend stating that the signatories do not wish to be represented by the Union . The document is dated 30 January 1986, and there are nine signatories . 64 Daniel M . Cason, a Mosaic truckdriver, identified the signatures as those of Mosaic employees and members of the Union. He said that the document was typed on 30 January, and that he obtained signatures thereafter. However, Cason could not recall, and at times appeared to deny, ever giving the document to the Company. Instead , he asserted that he gave it to a Board investigator. Mosaic's vice president Thrower claimed that he heard about the existence of the document from Cason about 20 to 25 January. Cason showed it to him, but Thrower was uncertain about the date, finally settling on' February as the month he saw the petition. Cason brought it to him, and asked what to do with it Thrower assertedly told him to hold on to it Thrower also testified that he and Williams discussed the Union during the first week of January, and decided on 7 January not to have any further dealings with it be- cause it did not represent a majority of the employees. Thrower agreed that he had no knowledge of a petition among Mosaic employees at that time . The decision not to recognize the Union was based in part on the number of strikers who returned to work before the end of the strike. Mosaic had 31 employees during the pay period ending 8 January 1986 and 39 during the last pay period for that month. s s b. Factual analysis Because of the contradictions in Cason 's and Throw- er's testimonies, the evidence is insufficient to establish that Cason ever showed Thrower the petition Even if 60 G C Exh 7 63 Supra, sec C 81 G C Exh 6 64 R Exhs 11-12 62 Supra, fn 19 6s Jt Exh 2 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he did so, this did not take place until over a month after the date, in early January, when Respondent had already refused to bargain with the Union. The employees listed on the document did not represent a majority of Mosaic employees at any relevant time. 4. Legal conclusions on the alleged refusal to bargain It is well established that "[t]he existence of a prior contract, lawful on its face, raises a dual presumption of majority-a presumption that the union was the majority representative at the time the contract was executed, and a presumption that its majority continued at least through the life of the contract... . The burden of re- butting this presumption rests . . on the party who would do so."66 Accordingly, the Union presumptively represented a majority of the Association's employees at the time Re- spondents refused to bargain with it in the first week of January, assertedly because it lacked majority status. The principal reasons advanced by Respondents to support this position are the three petitions signed by employees However, the only relevant petition is the one with 28 names received by Kenneth R Williams in the first week of January. The second Williams' petition could not have been received by the Company until several months later, and the Mosaic petition was received by that Com- pany, if at all, subsequent to the refusal to bargain. As described above, the appropriate unit established by the contract was a multiemployer unit composed of the employees of the only two members of the Associa- tion, Williams and Mosaic In order to establish a good- faith doubt of the Union's majority status, such doubt must apply to the multiemployer unit.67 It is obvious that the 28 employees listed on the one petition in existence when the refusal to bargain took place did not comprise a majority of the more than 100 employees in the multiemployer unit at that time (more than 75 for Williams, and more than 30 for Mosaic). The same result follows even if I accept Kenneth R. Wil- liams' erroneous estimate of 40 Williams employees when he received the petition, since the 28 signatories did not comprise a majority of that number plus the 31 Mosaic employees Finally, the Association could not have doubted the Union's majority status in the multiemployer unit because Chairman Kenneth R. Williams frankly con- ceded that he did not know its representative status with respect to that unit. Additional reasons advanced by the Respondents for doubting the Union's majority status-"rumblings in the [Williams] plant," and the number of strikers who re- turned to work soon after the strike began-do not con- stitute objective evidence of loss of a union's majority status. Pennco, Inc., 250 NLRB 716 (1980). Accordingly, because the Respondents failed to resume bargaining pursuant to the Union's letter dated 20 66 Barrington Plaza & Tragniew, Inc, 185 NLRB 962, 963 (1970), enfd ,denied on other grounds sub nom NLRB v Tragniew, Inc & Consolidat- ed Hotels of California 470 F 2d 669 (9th Cir 1972) December 1985, and have not provided sufficient justifi- cation for their failure to do so, I conclude that they thereby violated Section 8(a)(5) and (1) of the Act I shall fix the date of the refusal as 3 January 1986, the date Clowers discussed the Union's letter with Associa- tion Chairman Williams, and was told by the latter that he doubted the Union's majority status I Respondent's Discontinuance of Fringe Benefit Payments As described above, the Respondents discontinued making fringe benefit contributions during the last week of November 1985 There had been no discussion of this discontinuance during the bargaining negotiations, and the parties had not reached an impasse on this subject Business Manager Clowers testified that he heard from union members in December 1985 that Respondents were not making fringe benefit contributions. Later, in the last part of January 1986, he received documentary evidence of this fact As the Board has recently stated, "[i]t is well settled that an employer violates Section 8(a)(5) and (1) when it unilaterally changes or discontinues existing terms and conditions of employment-including contributions to contractual fringe benefit funds-upon expiration of a collective-bargaining agreement unless (1) the union has waived bargaining on the issue; or (2) the parties have bargained to impasse and the unilateral change is reason- ably encompassed by the employer's preimpasse propos- als " Buck Brown Contracting Co, 272 NLRB 951, 953 (1984). Respondents, however, argue that a finding of a viola- tion based on the discontinuance of fringe benefit pay- ments is barred by Section 10(b) of the ct. As noted above, this charge was first made on 25 jJune 1986 in Case 10-CA-21850 The charge was with rawn on the representation of the 'Charging Party's counsel that the withdrawal had been requested by the Region in order to incorporate the charge in a later case. The charge was again made in' Cases 10-CA-21572 and 10-CA-21573, both filed on 28 July 1986 The Respondents argue that the effective date of the charge is 28 July 1986 because there is no record testi- mony regarding the withdrawal of the earlier charge, and that Business Manager Clowers' notice of the cessa- tion of contributions in December 1985 warrants applica- tion of the provisions of Section 10(b). However, as noted above, the charges in Cases 10- CA-21572 and 10-CA-21573 were filed on 27 February 1986, and alleged that Respondents had engaged in an unlawful refusal to bargain and had violated the Act by "these and other acts." The Supreme Court has concluded that the charge is not a formal pleading, and that its function is not to give the Respondents notice of the exact charges against him. This is the function of the complaint.68 The Court of Appeals for the Fifth Circuit has concluded that "gener- al allegations such as that the employer `by other acts and conduct . interfered with, restrained and coerced _ 6v See Young's Market Co, 265 NLRB 687 (1982), Jim Kellye's Tahoe Nugget, 227 NLRB 357 (1976), Nevada Lodge, 227 NLRB 368 (1976) 68 NLRB v Fant Milling Co, 360 U S 301 (1959) TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 785 its employees in the exercise of their rights guaranteed in section 7 of the Act' . are legally sufficient to cause inclusion of other acts if they are sufficiently related to the specific acts alleged." NLRB v. Central Power & Light Co, 425 F.2d 1318, 1320 (5th Cir. 1970), enfg. 173 NLRB 287 (1968).69 In this case the Respondents' unlawful discontinuance of fringe benefit contributions began in late November 1985 and continued up to and after their unlawful refusal to bargain on 3 January 1986, and their discriminatory refusal to reinstate strikers at that time The violations were thus closely related in time, and were an integral part of the same pattern of unlawful activity against he Union. Accordingly, I find that they were fairly com prised within the charges filed on 27 February 1986. The 10(b) defense is therefore without merit 70 In addition, the discontinuance of fringe benefits was continuing when the 28 July 1986 charge was filed. Each such violation constituted a separate and distinct viola- tion of Respondents' bargaining obligation For this addi- tional reason, Section 10(b) is not a defense. Farmingdale -Iron Works, 249 NLRB 98 (1980). I therefore conclude that, by unilaterally ceasing to make contributions to the Union's fringe benefit funds in late November 1985 after the expiration of the 1983-1985 collective-bargaining agreement, the Respondents en- gaged in unfair, labor practices within the meaning of Section 8(a)(5) and (1) of the Act. In accordance with my findings above, I make the fol- lowing CONCLUSIONS OF LAW 1 The Respondent, Tile, Terrazzo & Marble Contrac- tors Association of Atlanta & Vicinity, Williams Tile Company, and U.S. Mosaic Tile Co. are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Tile, Marble & Terrazzo Finishers & Shopmen, Local Union #167 is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing on 2 January 1986 to rein- state, or offer reinstatement to, certain economic strik- ers,71 by failing and refusing to reinstate, or offer rein- statement to, other such strikers from such date until a later known date72 and by failing and refusing to rein- state, or offer reinstatement to, still other such strikers from such date until an unknown date,73 where they had 69 Accord Gulf States Mfrs v NLRB, 579 F 2d 1298 (5th Cir 1978), enfg as modified 230 NLRB 558 (1977), Proctor & Gamble Mfg Co v NLRB, 658 F 2d 968 (4th Cir 1981), enfg 248 NLRB 953 (1980) 40 Yellow Cab Co v NLRB, 787 F 2d 1475 (11th Cir 1986), enfg 273 NLRB 1344 (1985), Ryder System, 280 NLRB 1024 fn 2 (1986) 41 John W Clark, George Jackson, Robert McDaniel , Carruth Price, Serlester Stanley, Charlie Atkins, Lorenzo Kendrick, Marshall B Taylor, Gary L Thurman, Joseph Brown, and Alberta Morris 72 Larry Taylor, until 13 January 1986, D W Brown, until I Febru- ary 1986, Janice Mclvor, until 10 March 1986, and Errette Price, until 26 May 1986 76 Frederick Folsom and Thomas Allen-the latter until the date of an unemployment compensation hearing at which he appeared not been permanently replaced by other employees, the Respondents thereby committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. All employees of all members of aforesaid Respond- ent Association, to wit, employees of Respondents. Wil- liams Tile Company and U. S. Mosaic Tile Co., per- forming work specified in article IV of the collective- bargaining agreement between the parties entered into on 1 October 1983, and terminating on 30 September 1986, constitute a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act. 5. Beginning in late November 1985 and continuing thereafter, by unilaterally ceasing to make contributions to the Union's fringe benefit funds required by the afore- said expired collective-bargaining agreement, the Re- spondents thereby committed unfair labor practices within the meaning-of Section 8(a)(5) and (1) of the Act 6. At all relevant times the aforesaid labor organization has been, and continues to be, the exclusive representa- tive of Respondents' employees in the unit described above in Conclusion 4. 7. By refusing to recognize and bargain with the afore- said labor organization as the collective-bargaining repre- sentative of the employees designated in the appropriate unit described above,'the Respondents on 3 January 1986 and thereafter have engaged in, and' are engaging in, an unfair , labor practice in violation of Section 8(a)(5) and (1) of the Act. 8. The above-described, unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondents have not committed any unfair labor practices except those designated here. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices I shall recommend that they cease and desist therefrom and take certain affirma- tive action which will effectuate the policies of the Act. Having found that the Respondents, beginning 3 Janu- ary 1986 and continuing thereafter, have unlawfully re- fused-to reinstate certain economic strikers,74 I shall rec- ommend that the Respondents be ordered to offer them- reinstatement, and to make them whole for any loss of earnings they may have suffered by reason of Respond-' ents' discrimination against them, such payment to be made on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977) 75 Having found that the Respondents have failed and re- fused to reinstate certain other economic strikers from 3 January 1986 until a later date,76 I shall further recom- mend that the Respondents make them whole for any loss of earnings they may have suffered from such date until the date they were reinstated or, in the case of Thomas Allen, until the date he appeared at an unem- 74 Supra, in 67 75 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 78 Supra, fns 68 and 69 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployment compensation hearing, in the manner described above.77 Having found that the Respondents, beginning in late November 1985 and continuing thereafter, unlawfully ceased making contributions to the Union's fringe benefit funds required by the expired 'collective-bargaining agreement, I shall recommend that the Respondents be required to make their unit employees whole by paying all fringe benefit contributions, as provided in the 1983- 1985 collective-bargaining agreement, which have not been paid and which would have been paid absent the Respondents' unlawful discontinuance of such contribu- tions,78 and by reimbursing unit employees for any ex- penses ensuing from the Respondents' failure to make such contributions. Having further found that the Respondents, beginning 3 January 1986 and thereafter, have refused to recognize and bargain with the aforesaid Union, I shall recommend that they be ordered to recognize and, on request, bar- gain with the Union as the representative of all employ- ees in the aforesaid appropriate unit, and, if an under- standing is reached, embody such understanding in a written, signed agreement. The General Counsel has filed an extensive brief rec- ommending that a visitatorial clause be included in the remedial order. In O. L. Willis, Inc., 278 NLRB 203 (1986), the Board in similar circumstances found it un- necessary to include such a clause. I reach the same con- clusion here. I shall also recommend that the Respondents be re- quired to post appropriate notices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed79 . ORDER The Respondent Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicinity, Williams Tile Compa- ny, and U.S. Mosaic Tile Company, Smyrna and Nor- cross, Georgia, their officers, agents, successors, and as- signs, shall 1 Cease and desist from 77 Because of the fact that Respondents Williams and Mosaic are both members of the same employer association, and are the only such mem- bers, an order applying to both of them, with respect to all discrimina- tees, is appropriate NLRB v Lipman Bros, 355 F 2d 15 (1st Cir 1966), enfg 147 NLRB 1342 (1964) , 78 Because the provisions of employee benefit funds are variable and complex, the Board does not provide at the adjudicatory stage of a pro- ceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments I leave to the compliance stage the question of whether the Respondents must pay any additional amounts into the fringe benefit funds to satisfy the "make-whole" remedy These additional amounts may be determined, depending on the circumstances of each case, by refer- ence to the provisions in the document governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc, but not collateral losses See Merryweather Opti- cal Co, 240 NLRB 1213 (1979) 99 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order'shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them, shall be deemed waived for all pur- poses (a) Discouraging membership in Tile, Marble & Ter- razzo Finishers & Shopmen, Local #167, or any other labor organization, by refusing to reinstate, or offer rein- statement to, economic strikers who have not been per- manently replaced by other employees. (b) Unilaterally ceasing to make contributions to the aforesaid Union's fringe benefit funds as required by an expired collective-bargaining agreement. (c) Refusing to recognize and bargain collectively con- cerning rates of pay, hours, and other terms and condi-, tions of employment with the aforesaid Union as the es- tablished bargaining representative of their employees in the following appropriate unit: All employees of all members of Tile, Terrazzo & Marble Contractors Association of Atlanta & Vicin- ity, to wit, Williams Tile Company and U.S. Mosaic Tile Co., performing work specified in Article IV of a collective bargaining agreement between the parties entered into on 1 October 1983 and termi- nating on 30 September 1985. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate reinstatement to John W. Clark, George Jackson, Robert McDaniel, Carruth Price, Ser- ]ester Stanley, Charlie Atkins, Lorenzo Kendrick, Mar- shal B. Taylor, Gary L. Thurman, Joseph Brown, and Alberta Morris, and make them whole for any loss of earnings they may have suffered as a result of Respond- ents' unlawful failure to reinstate them, in the manner set forth in the remedy section of this decision. (b) Make whole the following employees for any loss of pay they may have suffered as a result of Respond- ents' unlawful delay in reinstating them from 2 January 1986, the date they should have been reinstated, until 13 January 1986 in the case of Larry Taylor, until 1 Febru- ary 1986 in the case of D. W. Brown; until 10 March 1986 in the case of Janice Mclvor; and until 26 May 1986 in the case of Errette Price, in the manner set forth in the remedy section of this decision. (c) Make whole Frederick Folsom and Thomas Allen for any,loss of pay they may have suffered as a result of Respondents' unlawful delay in reinstating them from 2 January 1986, the date they should have been reinstated, in the case of Frederick Folsom to the date that he was reinstated and, in the case of Thomas Allen, to the date that he appeared at an unemployment compensation hearing. (d) Make whole all unit employees for all losses they may have suffered as a result of, Respondents' conduct found to be unlawful here. This make-whole provision shall be' implemented in accordance with the formula set forth above in the remedy section of this decision. (e) Make all benefit fund payments due or past due to the Union, as required by the 1983-1985 collective-bar- gaining agreement, in the manner set forth above in the remedy section of this decision. TILE, TERRAZZO & MARBLE CONTRACTORS ASSN 787 (f) Recognize and, on request, bargain collectively with Tile, Marble & Terrazzo Finishers & Shopmen, Local Union #167, as the exclusive bargaining represent- ative of all employees in the appropriate unit described above and, if an agreement is reached, embody such agreement in a signed written contract (g) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (h) Post at their respective facilities at Smyrna, Geor- gia, and Norcross, Georgia, copies of the attached notice marked "Appendix "80 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representa- tive, 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 materi- al (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleged violations of the Act not found here. 80 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 "