Carruthers Ready Mix, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1982

262 N.L.R.B. 739 (N.L.R.B. 1982)

CARRUTHERS READY MIX, INC.
Carruthers Ready Mix, Inc. and General Drivers,
Salesmen and Warehousemen's Local No. 984,
an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 26-CA-8336
July 9, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 24, 1981, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions, supporting briefs,
and answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified below.
1. On October 22, 1979,2 Respondent's Tennes-
see-based employees began a strike which lasted
until November 13. On the first day of the strike,
Respondent's president, Bobby Carruthers, asked
each striker if he intended to work that day, and
told the strikers that he did not "want no Union
there and wasn't going to have no Union there."
He then told striker James Wilborn in the presence
of other strikers that, if Wilborn "wanted a Union,
why didn't [Wilborn] go and work for somebody
with a Union because he wasn't going to have no
Union there." The Administrative Law Judge
found that Carruthers' statement to Wilborn did
not violate Section 8(a)(1) of the Act because it
was not a threat of reprisal but, rather, merely an
expression of Carruthers' union hostility, it was iso-
lated, and it had no discernible coercive impact on
the employees. We disagree.
We have consistently found that an employer's
statement similar to that made by Carruthers to
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Pmroducts.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We agree with the Administrative Law Judge that Respondent violat-
ed Sec. 8(aX3) of the Act by terminating Milton Brown because of his
participation in the strike. We find Respondent's contention that it termi-
nated Brown because of his prestrike conduct to be a pretext, and that
only one genuine reason exists-Brown's participation in the strike.
2 All dates are in 1979 unless otherwise indicated.
Wilborn could reasonably be interpreted that union
supporters would not be tolerated at the employ-
er's plant and thereby interfered with and coerced
an employee in the exercise of his or her Section 7
right to join a union.3 Here, the surrounding cir-
cumstances particularly support such an interpreta-
tion. The remark was made by Respondent's presi-
dent, on the first day of the strike, and in the pres-
ence of other striking employees. Furthermore,
that other striking employees were present shows
that the remark was not isolated but, rather, that its
coercive effect could be far reaching. Accordingly,
we find that Carruthers' remark to Wilborn vio-
lates Section 8(a)(1).
2. The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to find that Plant
Manager Hunter Carruthers' remark to striker
Eddie Cowan on November 7 was coercive and
violative of Section 8(a)(1) of the Act. Cowan testi-
fied that on November 6 he told Carruthers that he
was ready to return to work, and that Carruthers
responded that he had no work and "if it was up to
him he would not put any of the strikers back to
work." Carruthers denied making this statement.
The Administrative Law Judge found it unneces-
sary to resolve the conflicting testimony because
the remark was not alleged as a violation, notwith-
standing that the issue was fully litigated, and,
therefore, he did not make a finding of the merits.
However, he did note that the statement was simi-
lar to statements Carruthers made to other employ-
ees, including William Frazier, who was unlawfully
discharged by Carruthers because of his participa-
tion in the strike. Further, in other parts of his De-
cision, the Administrative Law Judge found that
Carruthers was evasive; that his testimony was self-
serving, exaggerated, and untruthful; and that, as a
witness, he "was more interested in supporting a
litigation theory than in testifying candidly about
events herein." In these circumstances, we credit
Cowan's testimony on this point. Cf. Apollo Tire
Company, Inc., 236 NLRB 1627 (1978). According-
ly, we find Hunter Carruthers' statement violative
of Section 8(a)(1) of the Act.
3. We disagree with the Administrative Law
Judge's finding that, at the conclusion of the strike,
striker Aubrey Fletcher obtained a regular and sub-
stantially equivalent job with another company
and, therefore, he is not entitled to backpay. On or
about November 9, mixer-driver Fletcher made an
unconditional offer to return to work, but no posi-
tions were then open. On November 13, when the
strike ended, he began working for another ready-
' Ramar Dress Corp: Samuel Todaro. Individually, 175 NLRB 320, 327
(1969); Motel & Inc., 207 NLRB 473, 477 (1973).
262 NLRB No. 90
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mix concrete company as a mixer-driver. In De-
cember and in early January 1980, Respondent
made several attempts to recall Fletcher by tele-
phone, but sometimes the calls went unanswered.
When the telephone was answered, Respondent left
messages for Fletcher to call Respondent. On Janu-
ary 13, 1980, Respondent again telephoned Fletch-
er and was told by the person who answered that
Fletcher was working for another company. In
April 1980, Respondent succeeded in contacting
Fletcher and asked him if he wanted to return to
work. Fletcher refused, stating that he already
"had a job."
Although an employer is under no obligation to
offer work to an economic striker who has ob-
tained "regular and substantially equivalent em-
ployment" prior to the time a position with the em-
ployer becomes available,4 the employer has the
burden of proving that the striker's new job was in
fact substantially equivalent to the job the striker
held with the employer. 5 Here, the Administrative
Law Judge presumed that Fletcher's new job was
substantially equivalent because he had a job in
November, before any positions were open, and
then turned down an opportunity to return to work
the following April because of that job.
Based on the record before us, we are unable to
determine whether, from November, when he
began working at his new job, until April, when he
expressly refused to return to work for Respond-
ent, Fletcher's new job was substantially equivalent
to the job he had had with Respondent. Nor will
we engage in such conjecture. Respondent had the
burden to prove that the new job was substantially
equivalent, but it failed to present any evidence on
this issue.6 Therefore, we find that Fletcher is enti-
tled to backpay from the first day Respondent had
a position open for him after his unconditional
offer to return to work until the day in April 1980
when he expressly refused to return to work.
4. The Administrative Law Judge found, inter
alia, that Respondent made reasonable and ade-
quate efforts to contact striker Sidney Moore; that
Moore did not respond to Respondent's communi-
cations because he already had a job; that by reem-
ploying Moore for 2 or 3 days Respondent satisfied
its recall obligations; and that, therefore, Moore is
not entitled to reinstatement. We disagree.
Prior to the strike, Moore worked at one of Re-
spondent's Tennessee plants. After the strike, Re-
spondent's efforts to recall Moore consisted of un-
answered telephone calls to Moore; a January 9,
4 The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969).
s Routh Packing Company, Inc, 247 NLRB 274, 278 (1980); N.LR.B.
v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967).
* See Little Rock Airmotive, Inc., 182 NLRB 666 (1970).
1980, letter, which Moore credibly denied receiv-
ing, stating that Respondent had "a position" open
for him; and a February 7, 1980, telephone call
which was answered by an unidentified person
who told Respondent that Moore was working at
another job. Moore testified without contradiction
that he had no knowledge that Respondent had
ever attempted to get in touch with him regarding
reinstatement until May 1980. Immediately after
Moore heard indirectly that Respondent had in-
quired whether he would report to work, he talked
with Respondent and then reported for work on
May 7, 1980. On his third day of work, Moore was
"laid off" from Respondent's Strayhorn, Mississip-
pi, gravel pit 7 because of faulty equipment.8 Moore
had no further contact with Respondent.
On these facts we find, contrary to the Adminis-
trative Law Judge, that Respondent did not satisfy
its requirement to communicate its offer of rein-
statement to Moore; that Moore was not reinstated
to a substantially equivalent job; and that, there-
fore, Moore is entitled to reinstatement and back-
pay.
As the Administrative Law Judge found, an em-
ployer's offer of reinstatement must be reasonably
calculated to communicate the offer.9 Telephone
calls to an employee's residence where there is
either no answer or where a message is left with a
third party, but not communicated to the striking
employee, are insufficient, °0 as are offers transmit-
ted by ordinary mail which the striking employee
credibly denies receiving." This is so because the
employers, being the wrongdoers, must bear the
consequences of potentially defective means of
communication where more reliable means are
available.
Here, Moore credibly testified that he did not re-
ceive Respondent's January 9, 1980, letter. Further,
the record does not support the Administrative
Law Judge's finding that Moore received, but
chose not to respond to, Respondent's February
phone call. Moore also credibly denied any knowl-
edge of efforts by Respondent attempting to com-
municate with him prior to May 1980. Finally,
when Moore did become aware that Respondent
I The Administrative Law Judge found that Moore worked at the Sen-
atobia gravel pit. The record reflects that the Senatobia and Strayhorn
gravel pits are the same.
8 While the record is not clear whether Moore's entire period of rein-
statement was spent working at Strayhorn, there is no question hut that
Moore was working at the Strayhorn gravel pit at the time he was laid
off and was to return to that location once the equipment was repaired.
9 Monroe Feed Store, 122 NLRB 1479, 1480-81 (1959).
'o Carter of California, Inc. d/b/a Carters Rental, 250 NLRB 344, 350
(1980).
11 J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414,
1524 (1966); see also Standard Materials. Inc., 237 NLRB 1136, 1146-47
(1978).
740
CARRUTHERS READY MIX, INC.
was considering recalling him, he immediately con-
tacted Respondent and thereafter commenced work
within 2 days. On these facts, we find that Moore
never received the message left for him by Re-
spondent. We therefore find that until May 1980
the means used by Respondent were not reasonably
calculated to communicate the offer and thereby
did not satisfy its obligation.
We further find that Respondent did not meet its
reinstatement obligation by employing Moore for 2
or 3 days in May. As noted above, the record is
not clear whether Moore spent his entire period of
reemployment at Strayhorn. Respondent admits,
however, that at the time Moore was laid off be-
cause of faulty equipment he was assigned to work
at Strayhorn. Respondent also acknowledges that it
was the Strayhorn site to which Moore was sup-
posed to return once the equipment was repaired.
Since there is no evidence that the pay and benefits
of Strayhorn jobs were the same as those received
by the strikers at their former jobs in Tennessee,
the Administrative Law Judge found, and we
agree, that Respondent's offers of employment to
Strayhorn jobs did not constitute offers to substan-
tially equivalent employment. 2 For the same
reason we cannot find that Respondent's 2- or 3-
day employment of Moore, part of which was
spent at Strayhorn. constitutes substantially equiva-
lent employment, particularly since Moore was laid
off from and expected to return to that location.
Accordingly, we find that Moore is entitled to re-
instatement and backpay.' 3
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 3
and 4 and renumber the remaining Conclusions of
Law accordingly:
"3. By suggesting to striking employees that
union supporters would not be tolerated at Re-
spondent's plant, Respondent interfered with its
employees' right to join a union in violation of
Section 8(a)(l) of the Act.
"4. By threatening an employee that he would
not be recalled because of his participation in the
strike, Respondent interfered with the employee's
right to engage in a lawful strike in violation of
Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
12 See Routh PaLking Company. Inc., supra.
3 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on any backpay
due hereill based on the formula set forth therein.
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Carruthers Ready Mix, Inc., Collierville and Mem-
phis, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraphs l(c) and (d)
and reletter the remaining paragraphs accordingly:
"(c) Suggesting to employees that union support-
ers will not be tolerated at its plant.
"(d) Threatening employees that they will not be
recalled because of their participation in a lawful
strike."
2. Substitute the following for paragraphs 2(b)
and (c):
"(b) Reinstate the employees named below to
their former jobs ,1r, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privi-
leges:
Mario Burks
Nathaniel Jones
Robert E. Jones
McQuirin Malone
Steve McClain
Sidney Moore
B. J. Mosely
Percy Porter
Eugene Sanders
Oscar Wells
Jimmy Wilborn
Eddie Williams
"(c) Make the above employees and the follow-
ing employees whole for any loss of earnings they
may have suffered because of the failure of Re-
spondent to properly reinstate them on and after
December 13, 1979, in the manner set forth in the
section of this Decision entitled 'The Remedy':
Earl Banks
Grafton Burton
Aubrey Fletcher
Columbus Jones
Bobby Jones"
Edward Moore
James Moton
James Price
James Walker
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, terminate, or oth-
erwise discriminate against our employees in
regard to their hire or tenure of employment
or any term or condition of employment be-
cause they engage in a strike or any other pro-
tected concerted or union activity.
WE WILL NOT refuse to accord strikers who
were not permanently replaced as of Novem-
ber 13, 1979, reinstatement rights to which
they are entitled as economic strikers.
WE WILL NOT suggest to any of our em-
ployees that union supporters will not be toler-
ated at our plants.
WE WILL NOT threaten our employees that
they will not be recalled if they participate in
a lawful strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer employees Milton Brown
and William Frazier immediate and full rein-
statement to their former jobs or, if those jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges, and WE WILL
make them whole for any loss of earnings they
may have suffered as a result of the discrimi-
nation against them, plus interest.
WE WILL reinstate the employees named
below to their former jobs or, if such positions
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges:
Mario Burks
Nathaniel Jones
Robert E. Jones
McQuirin
Malone
Steve McClain
Sidney Moore
B. J. Mosely
Percy Porter
Eugene Sanders
Oscar Wells
Jimmy Wilborn
Eddie Williams
If positions are not available to the above em-
ployees because vacancies did not occur after
December 31, 1979, in jobs for which they are
qualified, they will be placed on a preferential
hiring list based on nondiscriminatory stand-
ards unless they have obtained regular and
substantially equivalent employment prior to
the time when jobs to which they are entitled
become available.
WE WILL make the above employees and
the following employees whole for any loss of
earnings they may have suffered because of
our failure to properly reinstate them on and
after December 13, 1979, plus interest:
Earl Banks Edward Moore
Grafton Burton James Moton
Aubrey Fletcher James Price
Columbus Jones James Walker
Bobby Jones
CARRUTHERS READY MIX, INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was heard in Memphis, Tennessee, for 6 days
in September and October 1980. The complaint, as
amended, alleges that Respondent violated Section
8(a)(3) and (1) of the Act by failing properly to recall
and reinstate economic strikers who offered uncondition-
ally to return to work after the end of their strike and by
discharging two of the strikers, and that Respondent vio-
lated Section 8(a)(1) of the Act by threatening employees
on one occasion at the beginning of the strike. Respond-
ent denies the essential allegations of the complaint. The
parties filed briefs.
Upon the entire record and considering the testimony
of the witnesses and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation with offices and places of
business in Collierville and Memphis, Tennessee, is en-
gaged in the sale and distribution of ready-mix concrete.
Annually, Respondent purchases and receives, at its facil-
ities in Collierville and Memphis, Tennessee, products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Tennessee. Accordingly,
I find, as Respondent admits, that Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Charging Party (hereafter the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
Respondent operates a large ready-mix company in
and around Memphis, Tennessee. Respondent operates
742
CARRUTHERS READY MIX, INC.
from several different locations. All the drivers report to
and are based at two locations, the Winchester facility
which services commercial construction projects or the
Collierville facility which supplies residential builders.
Respondent has two other batching locations with only a
small complement of employees. Respondent also oper-
ates a gravel pit operation near Senatobia, Mississippi,
also known as the Strayhorn facility. The employees in-
volved in this case were mixer-drivers based either at
Winchester or Collierville and gravel truckdrivers who
were not based at any particular location.
The officers and supervisors of Respondent are as fol-
lows: Bobby Carruthers, president; Joe Carruthers,
Bobby's brother, vice president; Sally Carruthers,
Bobby's wife, secretary-treasurer and personnel manager.
Hunter Carruthers, another brother of Bobby's, was the
plant manager at the Winchester location from July 1978
until February 1980. Mose Harrison, a foreman at Col-
lierville, was stipulated to be a supervisor within the
meaning of the Act after January 1, 1980. Two other em-
ployees, lead drivers John Nichols and Essie White,
were sometimes used by Respondent to contact employ-
ees and had some authority to direct employees. They,
however, were not supervisors within the meaning of the
Act.
In mid or late September 1979, Winchester mixer-
driver William Frazier asked Hunter Carruthers to invite
Bobby Carruthers to a meeting of employees. A meeting
of all drivers was held at the Winchester plant. The em-
ployees voiced their interest in higher wages to Bobby
Carruthers. Frazier spoke for the drivers. Carruthers said
he could not afford to pay the drivers more money.'
Thereafter, the employees availed themselves of the
aid of tile Ullion and signed a sufficient number of au-
thorization cards to support a petition for an election.
The petition was apparently filed by the Union with the
Regional Office of the Board on October 22, 1979. The
same day, a number of the drivers engaged in a strike
against Respondent which lasted until November 13,
1979.
On the day the strike began, Bobby Carruthers ap-
peared at the Winchester plant. He approached Frazier
and asked him if he was causing the refusal to work.
Frazier denied that he was responsible. Carruthers also
asked Frazier why the employees were striking. Frazier
responded, "We want a Union to protect our job and our
rights." Carruthers said, "We don't need a Union. We
can work without a Union.... We get along fine, and
we can continue to get along fine without a Union." 2
The above is based on the credible testimony of Frazier. Carruthers
did not seriously controvert Frazier's testimnony on this point, although
he placea the meeting in late August or early September Carruthers did
testify tha:, after the meeting, the employees started distributing union
authorization cards.
2 The above is based mon the rcdited testimony of Frazier, a candid
and honest witness whose testimony withstood cross-examination. Bobby
Carruthers denied that he had such a :onversation with Frazier although
he did concede that he spoke with some employees the first day of the
strike Bobby Carruthers did niot impress me as a reliable witness. He was
not responsive in some of his answers and his testimony about why he
did not fire sor recall Milton Brown was implausible, contradictory. and
incredible.
Employee James Wilborn, a Winchester driver, testi-
fied that on October 22, the day the strike began, Bobby
Carruthers approached the strikers and said he "didn't
want no Union there and wasn't going to have no Union
there. He told me personally that if I wanted a Union,
why didn't I go and work for somebody with a Union
because he wasn't going to have no Union there." After
these remarks by Carruthers, Wilborn joined the strike.
Carruthers denied that he made these remarks although
he admitted talking to strikers on the first day of the
strike and admitted that Wilborn was one of the employ-
ees who was present. Wilborn was an honest witness.
Moreover, his testimony about Bobby Carruthers' anti-
union views and remarks is similar to that detailed by
other credible witnesses including Frazier. It also con-
forms with my assessment of the demeanor of Bobby
Carruthers as a hotheaded person. For example, when he
testified about the meeting at which Frazier asked for a
wage increase, he volunteered that employees thereafter
started passing out union cards and remarked, "I can tell
you who the people were that passed them out." Thus, I
do not accept Carruthers' denial that he made the anti-
union remarks to Wilborn. However, I do not consider
Bobby Carruthers' outburst to have been violative of
Section 8(a)(1) of the Act as alleged by the General
Counsel. He made no threat of reprisal and simply
vented his antiunion hostility. The statement was isolated
and had no discernible coercive impact. I shall therefore
dismiss this allegation of a violation.
On the Friday of the week following the beginning of
the strike, Frazier came to the Winchester facility to pick
up his check, and spoke with Hunter Carruthers. Hunter
asked him why the employees were striking and Frazier
responded that they wanted more money. Hunter point-
ed out that Bobby Carruthers had said that he could not
pay more money. Frazier then said, "{IIf we can't get
any more money, I just can't work." Hunter replied,
"Well, you are no longer needed here. You are fired."
Frazier then left and rejoined the picket line. 3
During the strike, the employees set up a picket line at
the Winchester and the Collierville locations. At least
some of the signs stated that Respondent refused to bar-
gain with the Union. There apparently were also pickets
at construction sites where Respondent delivered con-
crete. Respondent filed a charge with the Board against
the Union in Case 26-CB-1577 alleging violence on the
picket line. Respondent also sought injunctions in state
3 Hunter Carruthers denied that he made this statement to Frazier. but
I credit Frazier who was a more reliable witness than Hunter Carruthers.
Hunter seemed evasive to me in some of his answers and he exaggerated
about an incident which led to his alleged suspension of Frazier about a
month before the strike. te lestified that Frazier had missed about 2
weeks without calling in and that he suspended Frazier for a couple of
weeks. No documentary evidence was submitted of the suspension and
Sally Carruthers testified that Frazier apparently only missed I day-a
Saturday-before being suspended for 2 weeks Despite Hunter's appar-
ent effort to besmirch Frazier's recoid. even to the point of making an
unsupported reference to his being drunk, he called Frazier one of his
"best" drivers when he was trying to show that Frazier would have been
put to work after the strike if he had contacted Respondent. My assess
ment of Hunter Carruthers as a witness was that he was more interested
in supporting a litigation theory than in testifying candidly about the
events herein.
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and local courts. The Union had apparently also filed a
charge against Respondent. On November 2, the Union,
through its business agent, Arthur Crutcher, sent a tele-
gram to Respondent stating that the strikers would
return to work on Monday, November 5, 1979, if Re-
spondent would withdraw the CB charge and agree to
an election which was the subject of a petition by the
Union in Case 26-RC-6119. Respondent did not reply to
the telegram.
After sending the telegram, Crutcher conducted a
meeting of the strikers and told them they should report
to work on Monday as stated in the telegram. Pursuant
to Crutcher's instructions, a number of strikers appeared
at the Winchester and Collierville facilities on November
5 and 6 and asked to be returned to work. At Winches-
ter, most talked to Hunter Carruthers who insisted on
seeing them individually. He told them that they had
been replaced, that there were no positions available, and
that they should either keep in touch or that they would
be called when positions became available. In Collier-
ville, the employees met with Bobby Carruthers at the
Carruthers Insurance Company offices where Bobby
Carruthers had his office. Some of the strikers who
spoke with Hunter Carruthers resumed their picketing
after they were not put back to work.
During the strike, an unspecified number of employees
abandoned the strike and returned to work. Some con-
tacted Respondent and were asked to return as positions
became available. Respondent had hired some 34 re-
placements during the strike.
On November 12, 1979. Respondent requested a meet-
ing with the Union to discuss an end to the picketing.
Respondent was represented by its attorney, Reid
Meyers, and the Union was represented by its attorney,
Howard Paul. The parties discussed the CB charge
which had apparently blocked the election petition, the
removal of the pickets, and the injunctions against the
Union in the state and local courts. The Union offered to
end the strike and the picketing but sought to have the
strikers recalled in order of their seniority. Respondent
refused to apply seniority in the recall of strikers. In the
course of the meeting. Bobby Carruthers stated that he
realized that he had to have good drivers on the trucks
and "experience means a lot."
The next day, November 13, the parties met again at
the Regional Office of the Labor Board and reached a
strike settlement agreement. According to the reliable
and credible testimony of union counsel Paul, the Union
made an offer that all pending charges would be with-
drawn, the two lawsuits would be dismissed without
prejudice, and an election would be held on December 7;
that the picketing would cease; and that the employees,
who were said to be available for work, would be re-
called in order of seniority. Respondent agreed to the
Union's proposal except that Respondent refused to
accept the recall on the basis of seniority because it had
never utilized seniority in the past. The agreement in-
cluded the recall of all the strikers except for an employ-
ee named Green who had allegedly engaged in picket
line violence. Respondent also retained the right to in-
vestigate the misconduct of another employee whose
name could not be recalled by Paul. The parties also
agreed that they would divide the costs of the lawsuits
equally. Sally Carruthers did not seriously dispute Paul's
testimony. According to Mrs. Carruthers, Respondent
wanted the strikers back "as positions became available"
and, although she did not remember "specifically agree-
ing to that," she testified, "I'm sure that if we were
asked [by the Union], we said, 'Yes, we would take them
back as soon as we had positions available."'
On November 13, 1979, the parties signed a Stipulation
for Certification Upon Consent Election which was ap-
proved by the Regional Director for Region 26. Union
attorney Paul drafted orders dismissing the local and
state lawsuits, although, by inadvertence, one of the
orders was not entered until sometime in March or April
1980.
After the November 13 strike settlement agreement,
most strikers individually requested reinstatement. Some
were returned to work as positions became available and
others were told to keep in touch with Respondent or
that they would be called when needed.
The Board election was held on December 7, 1979, in
the following appropriate unit:
All production and maintenance employees, in-
cluding all truckdrivers, yardmen, batch operators,
mechanics, helpers and servicemen employed at Re-
spondent's Collierville and Memphis, Tennessee lo-
cations, excluding all office clerical employees,
guards and supervisors as defined in the Act.
The Union lost the election and a certification to that
effect issued on December 17, 1979. Prior to the election.
on November 15, 1979, Respondent had mailed letters to
the employees by ordinary mail urging them to reject the
Union. Letters were sent to the last known addresses of
the employees as they appeared on Respondent's records.
The letters were also sent to the striking employees who
had not yet been returned to work.
Among the employees who spoke to officials of Re-
spondent after the strike was Frazier. He called Hunter
Carruthers on the telephone about 2 weeks after the
strike was over and asked for his job back. Hunter said,
"You are no longer needed for the company because you
are a troublemaker." Frazier thanked him and hung up.
He made no further effort to contact Respondent.4
Milton Brown was a mixer-driver who worked out of
the Winchester location. Brown did not join the strike
until a few days after it began. At one point, Brown
spoke to Bobby Carruthers and told him that he could
not continue to work because of his fear of violence on
the picket line. Carruthers assured him that nothing
would happen to him if he continued working. When
Brown pressed for a guarantee, Carruthers drafted a
statement promising Brown that he would take care of
Brown and his family if he uculd continue to work. The
statement reads, "I will take care of Milton Brown's
family if something should happen to him during the
Union situation if he should get injured or damaged in
4 In late October or early November after Hunter Carruthers had first
told him he was fired, Frazier began working for Allen Ready Mix, an-
other concrete company in Memphis.
744
CARRUTHERS READY MIX, INC.
any way." Brown continued to work but, after a few
days, Brown joined the strike.
About 2 days after the strike ended, Brown spoke to
Hunter Carruthers and offered to return to work. Car-
ruthers replied, "You refused to work when I needed
you. You walked off your job, so I don't have a job for
you now." Brown asked if that meant he was fired. Car-
ruthers said it did not, but that he did not have work for
him at that time. He said he would call Brown if a posi-
tion became available. This is based on the credited testi-
mony of Brown whom I found to be a candid and truth-
ful witness totally without guile, unlike Hunter Car-
ruthers whom I did not find to be a forthright witness.
Thereafter, Brown continually showed up at Respond-
ent's premises and asked either Sally or Bobby Car-
ruthers whether he could return to work. He was never
returned to work. At one point he spoke to Bobby Car-
ruthers who told Brown to stop "pestering" him and
stated that Brown "had a job, and you walked off it. I
just don't have anything for you."
Bobby Carruthers testified that, after the strike, he
"didn't want to hire Milton back." He said that he did
not recall Brown because of his prestrike work history
which included some accidents and because "we had
better drivers." When asked if he would take Brown
back if he were the only striking employee not recalled
and a vacancy were available, Carruthers said he would
not "because of the things he did before."
I did not view Bobby Carruthers as a truthful or reli-
able witness. His testimony about Milton Brown illus-
trates his unreliability. At first Carruthers testified that
he did not want to rehire Brown after the strike. Later,
when questioned about his statement promising protec-
tion of Brown during the strike, he testified that al-
though he did want Brown to return he changed his
mind in February 1980 at which point he decided against
recalling Brown. Yet he did not tell Brown of his deci-
sion even though Brown repeatedly sought reinstatement
personally from Carruthers. Bobby Carruthers' attempt
to tarnish Brown's record as a driver is refuted by his
own attempt to keep Brown on the job during the strike.
Although Mrs. Carruthers was a more credible witness
than her husband, she also testified that Respondent did
not intend to recall Brown because of his prior employ-
ment history which included two accidents and his driv-
ing history. She could not recall when the accidents oc-
curred or how long before the strike the second accident
occurred. She testified that Respondent decided some-
time after Christmas that Brown would not be recalled.
She also testified that, as far as she was concerned,
Brown's employment was terminated as of that date but
she did not immediately tell Brown that he would not be
recalled. In fact, Mrs. Carruthers never specifically told
Brown he was terminated but simply told him that he
should look for another job. Despite Respondent's at-
tempts at the hearing to paint Brown as a poor driver, it
sent him a letter in June 1980 offering him a job at its
Senatobia gravel pit. Although it is clear that Respond-
ent was attempting to limit its potential backpay liability
by sending this letter, Mrs. Carruthers' testimony in ex-
plaining why Brown was qualified for this job after
having continually been rejected for employment reflects
adversely on the candor which otherwise characterized
her testimony. Hunter Carruthers testified that Brown
was a poor driver who had many accidents but he could
not remember how many. He also testified that he fired
Brown at some unspecified point in the summer of 1979
but was overruled by Bobby Carruthers. Actually, it ap-
pears, from Brown's candid testimony, that Brown was
fired but that the decision was changed on appeal to
Bobby Carruthers to a 3-day suspension for an incident
which took place 6 or 7 months before the strike. Brown
was blamed for causing damage as a result of an accident
on Respondent's premises. Brown denied he was respon-
sible and made an appeal on that basis to Bobby Car-
ruthers. Bobby Carruthers reinstated Brown after a 3-day
suspension. Brown, of course, worked up until the period
of the strike. My assessment of Hunter Carruthers' testi-
mony and of his demeanor on the witness stand was that
he was straining to support Respondent's litigation
theory rather than attempting to tell the truth. In short,
when testifying about Milton Brown, Bobby, Sally, and
Hunter Carruthers were not truthful or reliable and I do
not credit their testimony.
Mrs. Carruthers testified that returning strikers started
reporting back to work on November 5, 1979, and that
they were put on trucks as they reported. Later in No-
vember she began making telephone calls to the strikers
trying to fill open positions. Several of the replacements
indicated that they would be leaving in early December
thereby creating still more openings.
Beginning on December 11, 1979, Mrs. Carruthers
made a list of strikers and divided it basically into three
categories: Winchester mixer-drivers, Collierville mixer-
drivers, and gravel truckdrivers. At this point, Respond-
ent needed to fill one vacancy for a gravel truckdriver.
Mrs. Carruthers called several employees from her list of
gravel truckdrivers on December 11, 1979. The names
were listed in alphabetical order and she testified that she
called employees in that order. She was unable to reach
any of the employees on the list so she called a former
employee who had been laid off before the strike, Roger
Ford. He reported for work on Thursday, December 13,
1979. He filled a position previously occupied by a re-
placement who had told Mrs. Carruthers that he was
quitting either the prior Monday or Friday.
Two mixer-drivers were hired for the Winchester lo-
cation on December 20, 1979. On December 18 and 19,
Mrs. Carruthers called strikers on the Winchester mixer-
driver list. She was unable to reach any of the employ-
ees. She wrote a letter to employee William Echols be-
cause there was no answer when she called his telephone
number. She also sent a letter to striker W. G. Williams
when she was told that his number was disconnected.
The two drivers hired on December 20, Marshall Chis-
holm and Edward Hunter, were hired on a probationary
basis because they had never driven mixers before. Mrs.
Carruthers testified that many of the new hires were un-
trained and had to ride with other drivers for a period of
from 2 days to 2 weeks until they demonstrated that they
could drive the trucks and perform their work capably.
In late December and early January, other jobs
became available. As Mrs. Carruthers testified, she was
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"[n]ot in such a big hurry to get them at this point be-
cause we were into January-the middle of winter, and
the trucks could sit for a while."
Beginning on January 9, 1980, Mrs. Carruthers began
again to consult her gravel truck list and made calls to
strikers on that list. She was unable to reach anyone on
the list and, on January 15, she hired one Willie Malone.
It is unclear whether he was a former striker or not.
At this point, Respondent needed to fill four or five
positions for Winchester mixer-drivers. On Sunday, Janu-
ary 13, she began calling from her list. She struck some
employees from her list because she was told a person
had moved or was otherwise unavailable or because the
person had not returned an earlier call. She made other
calls on January 15. She reached some of the people on
her list and they returned shortly thereafter.
On January 18, 1980, Mrs. Carruthers hired Lewis
'Byrd and Constance Collins for Winchester mixer-driver
slots. On January 21, she hired George Harper and
Ronald Jones and, on January 25, she hired M. B. Smith,
all for Winchester mixer-driver slots. All were hired on a
probationary basis. On January 23 and 24, she hired two
gravel truckdrivers. Three of these people did not sur-
vive their probationary period.
There became a need for more gravel drivers in Feb-
ruary so, on February 5, Mrs. Carruthers consulted her
list of gravel truckdrivers. She did not call Harvey
Burke because she had sent him a letter on January 9.
She was unable to speak to any of the others whom she
called, although she left messages to return the call when
someone answered the phone. She hired two women for
gravel truckdriver positions on February 7. They were
dismissed within a week. On January 13 and 14, she
hired two more mixer-drivers for Winchester from "off
the street." Neither of them worked out. She did not call
anyone else at this point but told her lead drivers and su-
pervisors to try to get in touch with the drivers. Some
more of the returning strikers were hired as they were
contacted by these intermediaries or as they themselves
contacted Respondent.
On February 25, 1980, Mrs. Carruthers hired a gravel
truckdriver, V. A. Feathers, who worked for about 3
weeks then transferred to the Strayhorn location. She
did not try to get in touch with any strikers before hiring
Feathers. She had last tried to reach them on February
5.
On March 17, 1980, Respondent hired a nonstriker for
a Collierville mixer-driver position. She did not make
any calls to strikers before hiring him, but she had ex-
hausted her Collierville list in January and was satisfied
that the employees were unavailable or could not be
reached. The employee hired on March 17 is still work-
ing for Respondent.
On March 22, Respondent hired a new employee as a
Winchester mixer-driver. He worked beyond his proba-
tionary period. And, on March 26, Respondent hired an-
other gravel truckdriver. He is still working for Re-
spondent. Mrs. Carruthers did not make efforts to con-
tact the strikers before hiring these employees. However,
during March and April other strikers returned to work
either as a result of Respondent's contacts or their own.
In May 1980, Respondent hired Roy Brownley for a
Collierville mixer-driver position. He was an experienced
mixer-driver who had worked for Respondent in the
past. Mrs. Carruthers made no additional specific effort
to contact strikers before hiring Brownley.
Mrs. Carruthers testified that she employed new hires
for the following positions: Three gravel truckdrivers,
one Collierville mixer-driver, and five Winchester mixer-
drivers. This was apparently a reduction in the number
of truckdriver positions from the beginning of the strike
due to the leasing of trucks in April and again in August
1980. Thus, even though many new employees were
hired in the period after the strike, most did not last very
long and there were only eight positions which were
filled by new hires after the strike and after Respondent
became fully operational.
On March 20, 1980, the Union filed a charge in the in-
stant case alleging discrimination against strikers because
of Respondent's refusal to recall them after the strike.
The original complaint herein issued on May 12, 1980.
In late May and early June, Mrs. Carruthers contacted
striking employees who had not been recalled and of-
fered them a job driving a gravel truck at Respondent's
Strayhorn location. Respondent had two openings at
Strayhorn at this time. Mrs. Carruthers called some em-
ployees and sent the letters, by registered and certified
mail, either confirming the telephone calls or stating the
job offer. Most of the letters were dated June 2, 1980,
and they were sent after Mrs. Carruthers spoke to Labor
Board officials about her responsibilities in recalling
strikers. The letters were sent with return receipt re-
quested. None of the employees who were contacted ac-
cepted the job offer. Most of them expressed a reluc-
tance to travel the required distance to the jobsite in
Senatobia or Strayhorn, Mississippi. The Strayhorn loca-
tion was about 40 miles from the Memphis homes of the
employees who were contacted and they had no trans-
portation to the jobsite. Respondent did not offer them
transportation to Mississippi.
The trucks operated by Respondent at Strayhorn were
not on-the-road trucks. They were trucks with cranes
which were driven solely on the gravel pit property.
Before the strike, about eight employees reported to Re-
spondent's Strayhorn facility. None of them went on
strike. After the end of the strike, the facility was closed
for the winter. It was reopened in or about April 1980.
The Strayhorn employees were recalled at intervals and,
by the time of the hearing, Respondent employed 11
people at the Strayhorn location, 3 more than at the be-
ginning of the strike.
B. Discussion and Analysis
1. The discriminatory termination of strikers Milton
Brown and William Frazier
I find that, at some unspecified point after the end of
the strike, Respondent terminated Milton Brown and did
so because he joined the strike after Bobby Carruthers
had made a personal effort to have him continue work-
ing. Because I do not accept the self-serving testimony of
Respondent's witnesses that the decision to terminate
Brown's employment was made in December, January,
746
CARRUTHERS READY MIX, INC.
or February, and because I believe Respondent did not
intend ever to recall Brown after the strike, I shall fix his
date of termination on the day the strike ended, Novem-
ber 13, 1979. It was 2 days thereafter that Hunter Car-
ruthers rejected his bid for reemployment by referring to
his having engaged in the strike. Respondent's treatment
of Brown during the period after the strike shows that
he was discriminatorily terminated from his employment.
In addition to Hunter Carruthers' statement to Brown,
Respondent's antiunion hositility is demonstrated by simi-
lar statements made by Hunter and Bobby Carruthers to
other employees. Accordingly, the General Counsel has
made a prima facie showing that Brown was terminated
for engaging in protected and union activities.
Respondent's reliance upon Brown's alleged prestrike
misconduct as a reason for terminating him not only fails
to withstand scrutiny but also buttresses my finding that
he was discriminated against for striking. Prior to his in-
volvement in the strike, Brown's alleged work deficien-
cies were tolerated. After he was suspended for 3 days in
the spring of 1979, he continued to work 6 or 7 months
until the strike. The record does not show any further
disciplinary warnings or incidents. Bobby Carruthers
went to great lengths to make financial guarantees to
Brown if he would drive a truck for him during the
strike. Hunter Carruthers never mentioned his alleged
poor performance when, 2 days after the strike ended, he
rejected Brown's offer to return to work. He referred
only to the fact that Brown had engaged in the strike.
Yet, despite having employed Brown up until the time
when he struck without concern over his two accidents
or other alleged deficiencies, Respondent, after the strike
ended, refused to recall Brown and did not even have
the decency to tell him he would not be employed until
some time after the decision was allegedly made. This
contrasts markedly with the assertion of Bobby Car-
ruthers that he "liked" Brown. But for Brown's partici-
pation in the strike, Brown would not have been termi-
nated and the termination of Brown was thus violative of
Section 8(a)(3) and (1) of the Act.5
Respondent's termination of Frazier was also discri-
minatorily motivated and thus violative of Section 8(a)(3)
and (1) of the Act. Frazier was the leader in the employ-
ees' efforts to obtain higher wages. Bobby Carruthers
questioned whether Frazier was responsible for the
strike. The next week, after questioning Frazier concern-
ing the reasons for the strike, Hunter Carruthers told
Frazier he was fired. Frazier called Hunter one more
time offering to return to work, at which time Hunter
told him he was a "troublemaker and that he was no
longer needed." Frazier was an honest witness who testi-
s Respondent suggests that it tolerated Brown for some 6 or 7 months
in 1979, before the strike and after his alleged incompetence was re-
vealed, because it needed drivers. This argument is specious. Respondent
admittedly needed experienced drivers throughout the period after the
strike when it was hiring people off the street, including a woman recom-
mended by Brown himself who had no experience except for driving a
schoolbus and who did not even finish her probationary period. More-
over, Mrs. Carruthers testified that, after the strike, she recalled an em-
ployee who was laid off in August. If there was a layoff in August 1979
and Brown was not laid off, it is obvious that Brown was deemed an ac-
ceptable employee until the onset of the strike. Nor was he recalled after
the strike despite Respondent's need for experienced drivers and his con-
stant appearance at Respondent's premises seeking work.
fled candidly and in meaningful detail. I do not credit
Bobby and Hunter Carruthers. I found them to be unreli-
able witnesses as exemplified in their self-serving and un-
truthful testimony about Milton Brown. Respondent as-
serts that it was not shown that Hunter made similar
statements to other strikers. Actually, Respondent's treat-
ment of Milton Brown is quite similar and Brown's testi-
mony concerning Hunter's remarks to him in effect cor-
roborates Frazier that similar remarks were made to him.
But, more importantly, Frazier was the known leader in
the effort to press employee grievances and was thought
to be responsible for the strike. In these circumstances it
is clear that Frazier was discharged in early November
1979 because of his union and protected concerted activi-
ty in violation of the Act.
Respondent does not allege a business reason for Fra-
zier's discharge-indeed Hunter Carruthers testified that
he was one of his best drivers-but argues instead that
Frazier was not terminated. The credited testimony
belies this assertion. Hunter Carruthers testified that Fra-
zier would have been recalled under normal circum-
stances. Yet he was not recalled by Respondent, thus
supporting the inference that he was terminated. That
Frazier failed to affirmatively contact Respondent for his
old job simply reinforces the inference that Frazier be-
lieved he was discharged. There is some ambiguity in
Respondent's failing to challenge Frazier's vote in the
election. However, I do not believe that this aids Re-
spondent's position. Certainly, Frazier was entitled to
vote even as an unlawfully discharged employee. And
Respondent could hardly have been expected to chal-
lenge Frazier on the ground that he was discriminatorily
discharged. Nor is it availing to Respondent's position
that, at some point, Mrs. Carruthers learned that Frazier
was working elsewhere. She testified that she learned
this on December 19, 1979, when she called his number
and was told he was working for another firm. Yet she
did not make any other attempt to recall Frazier. If, as
Hunter testified, Frazier was indeed one of his "best"
drivers, it would be expected that Respondent would
nevertheless undertake other efforts to get him back to
work or at least to contact him personally instead of
hiring drivers who had to be trained. Yet Respondent
simply let one of its "best" drivers get away while it des-
perately needed experienced drivers during the period
after the strike. Respondent's position-and the testimo-
ny of its witnesses in support of that position-is unper-
suasive. In short, the failure of Respondent to contact
Frazier is consistent with his testimony that he was told
he was fired. At the very least, Respondent caused Fra-
zier to believe that he had been discharged or that his
continued employment was questionable because of his
protected and union activity. See Pennypower Shopping
News, Inc., 253 NLRB 85 (1980).6
6 I do not reach the General Counsel's alternative theory that, if
Brown and Frazier were not discriminrtorily terminated, they were not
properly recalled as returning strikers under the principles of N.L.R. v.
Fleetwood Trailer Co.. Inc, 389 U.S. 375 (1967), and The Laidlaw Corporar-
dion, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970). In view of my disposition of the Brown and
Frazier allegations, they are entitled to immediate reinstatement and
Contmnucd
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The improper recall of striking employees
a. General discussion
It is well settled that an employer who refuses to rein-
state economic strikers upon their unconditional offer to
return to work discourages them from exercising their
rights under the Act and is guilty of an unfair labor prac-
tice unless he can show "legitimate and substantial busi-
ness justifications" for his actions. N.L.R.B. v. Fleetwood
Trailer Co., Inc., supra. Since an employer has substantial
and legitimate business justification for hiring replace-
ments in order to continue his business during an eco-
nomic strike, he may lawfully refuse to reinstate strikers
whose positions are occupied by such replacements when
the strike ends. N.L.R.B. v. Mackay Radio & Telegraph
Co., 304 U.S. 333, 345-346 (1938); N.L.R.B. v. Fleetwood
Trailer Co., Inc., supra. However, economic strikers who
unconditionally apply for reinstatement when their posi-
tions are filled by permanent replacements are entitled to
full reinstatement upon the departure of replacements or
when jobs for which they are qualified become available,
unless they have in the meantime acquired "regular and
substantially equivalent employment" or the employer
can prove that the failure to offer full reinstatement was
for legitimate and substantial business reasons. The Laid-
law Corporation, supra. See also Brooks Research & Manu-
facturing, Inc., 202 NLRB 634, 636 (1973).
The evidence in this case clearly shows that, on No-
vember 13, 1979, the Union offered, on behalf of all
striking employees, that those employees cease striking
and return to work unconditionally. The evidence also
shows that Respondent accepted this offer as part of an
overall strike settlement agreement and agreed to return
the striking employees to work "as positions became
available." Mrs. Carruthers thereafter acted in accord-
ance with this agreement by recalling striking employees
when she needed to fill job openings. Thus, as of No-
vember 13, 1979, all of Respondent's striking employees
were entitled to be recalled as positions became available
in accordance with the Fleetwood and Laidlaw decisions. 7
The General Counsel takes issue with Respondent's
policy of recalling the strikers in three general classifica-
tions, Winchester mixer-drivers, Collierville mixer-driv-
ers, and gravel truckdrivers. The General Counsel urges
that there should only be two categories: mixer-drivers
and gravel truckdrivers. I agree. The parties submitted
evidence concerning whether or not there was inter-
backpay from the date of Respondent's unlawful termination of them. See
Abilities and Goodwill. Inc., 241 NLRB 27 (1979), enforcement denied on
other grounds 612 F.2d 6 (Ist Cir. 1979).
'The General Counsel argues that, on November 5 and 6, 1979, a
number of named employees made offers to return to work which were
unconditional. In view of the November 13 offer and agreement and
since no jobs were filled by new employees in the interim. I fail to see
the significance of the General Counsel's position. Furthermore, it is
clear on this record that the strikers made their offers to return after a
meeting with the union representative who sent the November 2 tele-
gram offering that the employees would return to work if Respondent
withdrew an unfair labor practice charge it had filed. The telegram offer
was thus conditional and I find that the individual offers to return on No-
vember 5 and 6 were made pursuant to the Union's conditional offer. Ac-
cordingly, the November 5 and 6 offers to return to work were condi-
tional and could not have affected the striking employees' reinstatement
rights under the Act.
change among the drivers between Winchester and Col-
lierville. There was some interchange but I do not find
that evidence to be particularly relevant. The question is
whether the mixer-drivers should have been recalled to
open positions at either location. This turns on whether
the drivers were qualified to drive out of either location
and whether the jobs were substantially equivalent. I be-
lieve they were. There is no evidence that any particular
driver was qualified to drive out of one location but not
the other or that the trucks or the jobs were significantly
different. There was testimony that the Collierville loca-
tion serviced residential construction and that its supervi-
sor was more particular about his drivers than the Win-
chester supervisor, but it was not shown that these fac-
tors disqualified one set of drivers from working at the
other location. Indeed, Winchester openings became
available first after the strike ended and many of these
jobs were filled by inexperienced people. Certainly the
Collierville drivers were qualified to fill those positions.
In short, there was no legitimate reason on this record to
distinguish between Winchester and Collierville drivers
when mixer-drivers were considered for open positions
at either location. Since the General Counsel concedes
that the gravel truckdrivers were properly considered
separately, my determinations herein shall assume that
the truckdrivers should have been recalled in only two
categories, mixer-drivers arnd gravel truckdrivers.
The General Counsel contends that the strikers should
have been recalled in order of seniority. Respondent's
lists were essentially alphabetical. Respondent never has
operated under a seniority system and it successfully re-
sisted a proposal by the Union that the strikers be re-
called on the basis of seniority. There is no require-
ment-in the absence of an agreement or evidence of
past practice-that an employer must recall returning
strikers back to work on the basis of seniority. All that is
required is that the employer recall its employees on a
nondiscriminatory basis. I therefore reject the General
Counsel's contention and shall assume that Respondent
has the right to recall employees in any order it wishes,
absent discrimination on the basis of union or protected
concerted activity.
Respondent also alleges that two employees, Frazier
and Fletcher, acquired regular and substantially equiva-
lent employment prior to the time it hired new employ-
ees in their job classifications and thus ceased to be em-
ployees at the time that jobs became available for them,
citing Little Rock Airmotive, Inc., 182 NLRB 666 (1970),
enforcement granted in part and denied in part 455 F.2d
163 (8th Cir. 1972). In that case the Board stated:
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. Without attempting to set hard and fast
guidelines, we simply note that such factors as
fringe benefits (retirement, health, seniority for pur-
poses of vacation, retention, and promotion), loca-
748
CARRUTHERS READY MIX, INC.
tion and distance between the location of the job
and an employee's home, differences in working
conditions, et cetera, may prompt an employee to
seek to return to his old job. [182 NLRB at 666.]
In the instant case, I have found that Frazier was unlaw-
fully terminated. Thus, he remains an employee and must
be offered reinstatement whether or not he obtained
other employment after his termination and he must be
awarded backpay to the extent of his loss of earnings
from the date of his unlawful termination. As to Fletch-
er, I find, infra, that he had indeed obtained other em-
ployment before Respondent started hiring new employ-
ees and that he was not entitled to reinstatement for that
reason. See H. & F. Binch Co., 188 NLRB 720, 725-726
(1971), enforcement granted as modified 456 F.2d 357
(2d Cir. 1972).
Respondent attempted to limit its liability by sending
letters in June 1980 to all employees by certified mail of-
fering them jobs in Strayhorn, Mississippi, or confirming
job offers previously made by telephone. The letters
were sent with return receipt requested. None of the em-
ployees accepted the jobs. Most cited transportation
problems. The Strayhorn location was some 40 miles
from the homes of the employees and from the situs of
their former jobs. Respondent did not offer to provide
transportation to Strayhorn. The jobs did not involve
driving the same kind of truck they had driven in their
former jobs. There is no evidence as to whether the pay
and benefits of the Strayhorn jobs were the same as for
the jobs in the Memphis area. In these circumstances, I
find that the May and June 1980 Strayhorn job offers
were not offers to substantially equivalent jobs and did
not satisfy Respondent's requirements under Laidlaw or
toll backpay.
The main issue presented herein with respect to the
recall of the strikers is whether Respondent's telephone
calls to the strikers were sufficient or whether more---let-
ters or even certified mail-was required. I find that, in
the circumstances of this case, the telephone calls were
not sufficient and that letters, at least, were required to
be sent to the employees in order to satisfy the require-
ments of Laidlaw.
There is no specific rule under Board law requiring
that an offer of reinstatement take any particular form.
However, it must be reasonably calculated to communi-
cate the offer. In order for an employer to discharge his
obligation to offer reemployment to a striking employee
who has unconditionally requested reinstatement, the em-
ployer "must present probative evidence showing a
good-faith effort to communicate such an offer [of rein-
statement] to the employee ... [and] must show that [it]
has taken all measures reasonably available to [it] to
make known to the striker that he is being invited to
return to work." J. H. Rutter-Rex Manufacturing Compa-
ny, Inc., 158 NLRB 1414, 1524 (1966), enfd. as modified
399 F.2d 356 (1968), reversed 396 U.S. 258 (1969).
Telephone calls to an employee's residence and mes-
sages left at his home are insufficient to communicate an
offer of reinstatement if they do not in fact reach the em-
ployee. J. H. Rutter-Rex Manufacturing Company, supra.
Offers transmitted by ordinary mail, like any other
method, are sufficient where the offer is received by the
employee. However, it is unclear, under Board prece-
dent, whether letter offers sent by ordinary mail are suf-
ficient when there is testimony by the employees that
they were not received. In Rutter-Rex, supra, the Board
stated, in dictum, that offers sent by ordinary mail were
not sufficient. See also Standard Materials, Inc., 237
NLRB 1136, 1146 (1978), enfd. 604 F2d 449 (5th Cir.
1979), where the Board found, in agreement with the
Administrative Law Judge, that an employer who left
two messages at an employee's home did not satisfy its
obligation to communicate an offer of reinstatement to
that employee where it had made offers to other employ-
ees by certified mail and had failed to show why it could
not do the same for the particular employee involved. In
the course of the Administrative Law Judge's discussion
of this issue, he stated that transmission of offers by ordi-
nary mail was insufficient when the letter was not re-
ceived by the employee. He cited N.L.R.B. v. Jay Com-
pany, Inc., 227 F.2d 416, 419 (9th Cir. 1954), where the
court affirmed the Board's view that the sending of a
registered letter which was not actually received was in-
sufficient to satisfy an employer's obligation to reach the
employee. Backpay was tolled, however, because the
letter was "mailed in good faith." Also cited was New
York Handkerchief Manufacturing Company v. ,N.L.R.B.,
114 F.2d 144, 148 (7th Cir. 1940), cert. denied 311 U.S.
704, where the court refused to find a letter offer of rein-
statement valid where there was no proof as to who
wrote the letter or whether it was mailed and the em-
ployees denied receiving letters. Finally, the Judge cited
Monroe Feed Store. 122 NLRB 1479, 1480-81 (1959),
where a letter offer sent to an employee's last known ad-
dress was returned unopened because the employee had
moved. That letter, however, was sent by registered mail
and the Board's determination that the letter did not toll
backpay was based on the fact that the employer failed
to avail itself of other opportunities to contact the em-
ployee. See also Marlene Industries Corporation, et al.,
234 NLRB 285, 288 (1978).
However, in General Iron Corp., 218 NLRB 770, 771
(1975), the Board rejected "the novel idea that offers of
reinstatement must be served by registered mail, return
receipt requested." The Board noted that ordinary mail
was sufficient for service of briefs in Board proceedings
and stated that "there is no per se rule that the validity of
an employer's offer of reinstatement to an employee de-
pends on the employee personally receiving a letter
offer." The latter statement cited two cases, one involv-
ing the sending of a letter to the last known address of
an employee wilo had in fact moved but not notified his
employer (Rental UCnibrm Service, 167 NLRB 190, 197-
198 (1967)) and the other involving the termination of
backpay for two employees who were sent letters to
their last known addresses which were returned undeliv-
ered and "the reason for such undelivery was not dis-
closed by the record." (Adams Book C'ompany, Inc., 203
NLRB 761, 769, fn. 31 (1973).) The Board also noted
that the employee in General Iron testified that he had
never received the reinstatement offer, but observed that
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this is "essentially a matter of proof best determined in
the compliance stage." (218 NLRB at 771.)
It appears from the above analysis of precedent that
telephone calls, messages, and other efforts short of mail-
ing letters which do not actually reach employees are
not sufficient to satisfy the employer's requirement to
communicate offers of reinstatement to employees. In the
instant case, no letters were sent to most of the strikers
before new employees were hired. As to those employ-
ees, clearly, Respondent has not satisfied its obligation to
communicate offers to striking employees. At the very
least these employees should have been sent letters by
ordinary mail. Respondent had their addresses and it
mailed them letters in mid-November 1979 when it
sought to communicate to them its view that they should
not vote for the Union in the Board-conducted election.
These employees were thus not properly recalled or re-
instated.
As to several other employees, letters were sent by or-
dinary mail-not certified or registered mail and not
with return receipt requested. I do not consider the June
2, 1980, letters which were sent by certified mail and
with return receipt requested because they were sent
well after new employees were hired after the end of the
strike and they contained offers which were not for sub-
stantially equivalent jobs. Employees Tart and Burke
were sent letters at their last known addresses but they
had moved and had not notified Respondent of their
change of address. I view these letters as having tolled
any backpay liability essentially because the employees
were responsible for the noncommunication of the rein-
statement offers. Employee Mosely was sent a letter to
the wrong address in circumstances which showed that
the error was Respondent's and that Respondent made
no further efforts to reach him even though it knew it
had a wrong address and had independent contact with
the employee. The last two situations where letters were
sent to employees are more difficult and point out the
difference in making offers by ordinary mail rather than
by certified or registered mail with return receipt re-
quested. W. G. Williams was sent a letter to his last
known and proper address. There was no response to the
letter. Williams did not "remember" receiving it. Em-
ployee Sidney Moore was also sent a letter to his last
known and proper address. There was no response but
he testified he did not receive such a letter. The letters
were not returned and Respondent obviously assumed
the letters were received. These two cases point out the
problem mentioned by the Board in General Iron, supra:
The sender who uses ordinary mail runs the risk of not
being able definitely to prove service, particularly when
the employee testifies he did not receive the letter. In
this posture of the evidence, the question must be re-
solved by considering whether the employee's denial that
he received the letter is credible, whether, in all the cir-
cumstances, the respondent made reasonable alternative
efforts to reach the employee, and whether the employee
wished to return to work. As I discuss in more detail
when I consider their individual cases, weighing the
above factors with respect to Moore and Williams, I find
that they are not entitled to backpay and reinstatement.
Respondent also argues, as a general matter, that it
had legitimate and substantial business reasons for hiring
new employees before recalling its strikers. The argu-
ments are not persuasive. First, Respondent argues that,
in late 1979 and early 1980, it riad need to fill concrete
orders on an immediate basis and had need for immediate
new hires. This alleged sense of urgency is refuted by
the evidence that new drivers were being hired who
were so inexperienced that they had to be trained by
other drivers, some for as long as 2 weeks. Some of these
new drivers did not even survive their probationary
period. The suggestion of urgency is also refuted by Mrs.
Carruthers' testimony that in December and January she
was not in a "big hurry" to obtain drivers because it was
midwinter and the trucks "could sit for a while." More-
over, new positions were becoming available over a
period of time and, even if letters did not reach a person
for the few jobs which became available in December,
they certainly could have been used to notify the striker
of positions which would have become available in Janu-
ary or thereafter. Ordinarily an employee must be grant-
ed a reasonable period of time to accept an offer of em-
ployment. See Home Insulation Service, a Division of Sun-
state Wholesalers, 255 NLRB 311, 317, fn. 2 (1981). Re-
spondent also argues that there was a decrease in the
volume of business after Respondent resumed operations
in the spring of 1980. This argument is irrelevant since
Laidlaw requires that an employer recall strikers before
hiring new employees. Whatever its business needs, Re-
spondent did in fact hire new employees instead of strik-
ers. And so long as vacancies became available strikers
had a right to preferential treatment before new people
were hired. Finally, Respondent urges that strikers
herein did not keep Respondent informed of their avail-
ability for employment. This too is irrelevant. Under
Laidlaw, once a valid offer to return to work uncondi-
tionally is made, the burden is on the employer to recall
the employee. As this record shows, there was a blanket
offer to return made by the Union and accepted by Re-
spondent in the strike settlement agreement of November
13, 1979. In addition, many of the strikers made individu-
al efforts to contact Respondent. In these circumstances,
Respondent's general arguments against the reinstatement
of the strikers are without merit.
Turning to the individual strikers, I have already
found that two of them were terminated for discrimina-
tory reasons. Even if it were determined, contrary to my
findings, that Brown and Frazier were not discharged,
they were certainly not recalled and, in my view, the
evidence shows that they were not recalled for discrimi-
natory reasons. The failure to properly recall the other
26 strikers is influenced to some extent by Respondent's
discrimination against Frazier and Brown. Respondent
exhibited a hostility against the strikers which undoubt-
edly caused the Respondent to make less than full-
fledged efforts to recall some of them. In addition to the
failure to send most of the strikers letters or telegrams
about job openings, despite sending them letters about
the December election, Respondent hired inexperienced
new employees instead of its old work force. In one in-
stance, Respondent recalled a former striker, put him on
750
CARRUTHERS READY MIX, INC.
a different job, and fired him without so much as the
least concern for putting him back on his old job. This
evidence as well as the hostility of Hunter and Bobby
Carruthers to the strikers themselves might well support
the finding that the actual motive for Respondent's fail-
ure to properly recall all of the strikers was discriminato-
ry. However, the General Counsel has not advanced this
theory and thus I analyze each of the cases individually.
Each of these employees struck and each-through his
union-sought unconditional reinstatement to his former
job. Some were actually reinstated. I have found that 19
employees, excluding Brown and Frazier, were not prop-
erly recalled or reinstated. Beginning on December 13,
1979, new people were hired for jobs to which the strik-
ers were entitled; 11 of the 19 still have reinstatement
rights. Eight were recalled although perhaps not as soon
as they should have been. There is evidence that some
employees who were not reinstated obtained other em-
ployment after new employees were hired but prior to
the hearing. This, of course, does not excuse Respondent
from making proper offers of reinstatement at the time
vacancies arose. Nor do my findings take into account
the order in which the strikers would have been recalled
had they been recalled properly and in a nondiscrimina-
tory manner. Obviously, this might affect the amount of
backpay, if any, due to each employee. Any problems in
this respect can be resolved in the compliance stage of
these proceedings.
b. The individual employees
Earl Banks: At the time of the strike, Earl Banks was
working as a mixer-driver stationed at the Winchester
plant.
After the strike, Banks telephoned the plant and spoke
to Hunter Carruthers on two occasions. The first conver-
sation occurred around the last of November. Banks
asked Carruthers if he had any work and Carruthers re-
plied that he had no openings. Banks called again in De-
cember, approximately a week after the first phone call.
In this conversation, Carruthers again stated that there
was no work available. 8
Banks testified that, on Saturday, March 15, John
Nichols called his home and stated that he wanted Banks
to come to work. Banks reported on Monday, March 17,
at which time Nichols stated that no truck was available.
Banks actually resumed work on April 1. Banks testified
that he was unaware of any other attempts by Respond-
ent to contact him.
Sally Carruthers testified that she called Banks on De-
cember 18 with regard to the two mixer-driver positions
filled at Winchester on December 20 by new hires. At
that time she left a message for him to call her. On Janu-
ary 13, Mrs. Carruthers again called Banks concerning
mixer-driver positions at Winchester. She did not receive
any answers on this occasion. She called Banks again on
January 15 and received no answer. Mrs. Carruthers tes-
tified that she did not attempt to contact Banks concern-
8 On cross-examination, Banks was shown his pretrial affidavit in
which he stated that he spoke to Bobby Carruthers and requested rein-
statement in December or January. Banks explained that this conversa-
tion was in addition to his two telephone conversations with Hunter Car-
ruthers.
ing Winchester mixer-driver positions filled February 13
and 14 because "every time I tried to call him, I didn't
get an answer. I had already left one message for him."
Mrs. Carruthers stated that Larkin Harper found Banks
and, on February 14, Banks called Respondent. She testi-
fied that he was reinstated the next time a mixer-driver
was needed, on March 21, 1980.
Respondent did not properly recall Banks before
hiring new employees as mixer-drivers.
Harvey Burke: Harvey Burke was a gravel truckdriver.
In November 1979, Burke came to the Winchester plant
and asked Hunter Carruthers about returning to work.
Carruthers replied that he had no openings at that time
but told Burke to check with him in the future. Approxi-
mately a week after this conversation, Burke called
Hunter Carruthers and again asked him if he had an
opening. Carruthers replied that he did not but to keep
checking with him. Carruthers also stated that he would
call Burke when he had an opening. Burke also testified
that, approximately 2 weeks after the telephone conver-
sation with Hunter Carruthers, he called Respondent's
office and spoke to Sally Carruthers. He asked Mrs. Car-
ruthers if she had any openings and she replied that at
that time she did not. Burke was unsure of the exact date
of this conversation, but testified that it occurred in No-
vember.
Burke testified that he did not receive any letters or
phone calls from Respondent regarding his return to
work. Burke also testified that he moved the summer
before the strike and that he did not notify Respondent
of this move. However, he stated that Respondent could
still reach him at the same phone number and address be-
cause he had only moved next door and the residents of
his old address were instructed to forward to him any
mail he received.
Mrs. Carruthers testified that she attempted to call
Burke on December 11 prior to the hiring of a new em-
ployee on December 12. At that time she was told that
the telephone number was incorrect. A letter was sent to
Burke on January 9 offering him a job eventually filled
January 15 by a new employee. The January 9 letter
stated, "We have a position open and would like for you
to come back to work. Please call me at 853-7335, if you
are interested." The letter was returned with the notation
"not deliverable." Mrs. Carruthers testified that she did
not make further attempts to contact Burke because she
had already sent him a letter. Mrs. Carruthers testified
that, on March 18, Burke contacted Respondent and pro-
vided a new address and telephone number and he was
returned to work on March 25.
It is clear from the above that Respondent made ap-
propriate and reasonable efforts to contact Burke about
job openings as they became available. He was sent a
letter to his last known address. However, he had moved
and had not informed Respondent of his change of ad-
dress and phone number. He is thus not entitled to any
backpay. 9
9 Respondent did not send Burke a ietter pnor to the hinng of a new
gravel truckdriver on December 12, 1979, but there is every likelihood
that a letter sent to the wrong address in December would have had the
same result as that sent in January.
751
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mario Burks: At the time of the strike, Burks was em-
ployed as a mixer driver at the Collierville plant. Burks
testified that he had no conversations with officials of
Respondent concerning reinstatement after the strike and
that he received no correspondence concerning this sub-
ject.
Burks testified that he has been living at his present
address, 687 Buntyn, for 15 years and has had his present
telephone approximately 8 years. He stated that, until
June 1980, he maintained both a listed and unlisted tele-
phone number and that Respondent had his unlisted
number. He identified 774-8255 as his unlisted number.
He testified that Respondent's dispatcher had his unlisted
number and that Respondent had previously called him
at that number.' 0
Sally Carruthers testified she mistakenly included
Burks on her Winchester list of mixer-drivers. She stated
that he should have been included on the Collierville list,
but she treated Burks as a Winchester driver and made
attempts to contact him only regarding available posi-
tions at Winchester. Mrs. Carruthers testified that, on
December 18, she called Burks concerning mixer-driver
positions filled by new employees at the Winchester
plant on December 20, but that she was told his phone
number had been changed to an unlisted number. She
did not send Burks a letter at this time. Mrs. Carruthers
did not call Burks in January because "his phone number
was unlisted when I had called before." She stated that,
prior to hiring new employees at Winchester on Febru-
ary 13 and 14, she sent Mose Harrison to Burks' house.
He was unable to contact Burks. She also stated other
people had been sent to Burks' home, but that Respond-
ent could not contact him. Mrs. Carruthers' notes indi-
cate that Mose "went to Dixie-Homes--talked to landla-
dy and asked her to tell him to come to plant or call."
Burks denied that he ever lived at a place called "Dixie-
Homes." Mrs. Carruthers' notes also correctly lists
Burks' address as 687 Buntyn and his phone number as
774-8255.
Since Respondent had Burks proper address and failed
to notify him of a job offer by mail, Respondent failed
properly to recall Burks before hiring new mixer-drivers.
Grafton Burton: Burton was working as a gravel truck-
driver at the time of the strike. Burton testified that, after
participating in the strike for about 2 weeks, he was in-
formed at a meeting by Crutcher to report back to work
the next Monday morning. Burton reported to the Win-
chester location on that Monday along with about 15
other striking employees. The employees came as a
group, but Hunter Carruthers told them they were "new
guys," and he talked to them one at a time. Burton met
with Carruthers individually and told him that he was
reporting back to work. Carruthers replied that he did
not have anything for him to do, but that he would take
his name and phone number and call him if anything
came up.
Burton went back to the Winchester plant the next
day and spoke to Hunter Carruthers. He told him that he
had come back and was still looking for work. Car-
'o Burks testified that he is presently working for Schevenell, another
concrete company, as a mixer-driver. He first began his employment at
Schevenell in March 1980.
ruthers replied that he still did not have anything for him
to do and that he would call if anything came up.
Burton stated that he returned to work at Respondent
on April 2. He was informed by another employee that
Respondent was trying to get in touch with him. Burton
then attempted to call Essie White. He reached White on
March 24. At that time, White told Burton that, al-
though he had not been attempting to contact him, two
trucks were in the shop and that he should see Mrs. Car-
ruthers. Burton went to the Collierville office that same
day and spoke to Mrs. Carruthers. She told him Essie
White would probably get in touch with him whenever
one of the trucks came out of the shop. White contacted
Burton on April 1 and told him to report to work the
next morning. Burton went back to work on April 2. He
testified that, to his knowledge, Respondent did not at-
tempt to contact him about his reinstatement.
Sally Carruthers testified that she attempted to call
Burton on December 11 concerning the position filled by
a new employee on December 12 but received no
answer. She also called Burton on January 9 and left a
message for him to call her. New employees were hired
as gravel truckdrivers on January 15, 23, and 24. On
February 5, Mrs. Carruthers again called Burton about
two gravel truckdriver positions, which were filled on
February 7, but received no answer. Mrs. Carruthers
said that she made no further attempts to contact Burton
after February 5 because "I called twice and received no
answer and had called once and left a message for him to
call." Mrs. Carruthers testified that, as far as she knew,
Respondent got in touch with Burton through two other
striking employees and he came back to work on April
7.
Respondent failed properly to recall Burton before
hiring new gravel truckdrivers.
Eddie Cowan: Before the strike, Eddie Cowan drove a
mixer truck at the Winchester location. Cowan testified
that he reported back to work on November 6 at the in-
struction of Union Representative Crutcher. He reported
to Winchester and spoke to Hunter Carruthers. Cowan
told Carruthers that he was ready to come back to work.
Carruthers replied that Respondent did not have any-
thing for him at the time and did not know when any-
thing would be available. He also told Cowan that if it
was up to him he would not put any of the strikers back
to work. Hunter denied making this statement to
Cowan. ' I
Sally Carruthers testified that, on December 18, she
telephoned Cowan about positions filled by new employ-
ees on December 20. She used the telephone number
provided by Cowan on his employee information card.
The person who answered the phone told Mrs. Car-
ruthers that Cowan had moved and his whereabouts
were unknown. She testified that Nichols got in touch
with Cowan on March 11, at which time Cowan pro-
' I am not called upon to resolve this conflict in testimony although I
note that Hunter's alleged statement is .similar to statements made by
Hunter Carruthers to other employees. He made a similar statement to
Frazier. Cowan testified to several contacts with John Nichols and
Larkin Harper after the end of the strike although some of his testimony
seemed to contradict statements he made in a pretrial affidavit.
752
CARRUTHERS READY MIX, INC.
vided Respondent with a new address and phone
number. Cowan testified that he had moved in Novem-
ber and that he gave Mrs. Carruthers his new address
and phone number on March 18, 1980. He was reinstated
on March 19, 1980, to a mixer-driver position.
It is clear from the above recitation of the facts that
Respondent could not have contacted Cowan any sooner
than it did. It was his responsibility to keep Respondent
informed of his change of address and phone number.
Since he did not do so, his reinstatement on March 19,
1980, was entirely proper and timely. Thus, Cowan is
not entitled to any backpay.
Aubrey Fletcher: At the time of the strike Fletcher was
working as a mixer-driver at Winchester. He testified
that he made no contact with Respondent about his job
after the end of the strike. John Nichols called him
sometime in the middle of April 1980 and asked him if
he wanted to return to work. Fletcher said he did not
because "I had a job." That job was presumably the
same one at American Ready Mix which he held on No-
vember 13, 1979. He was still working at American
Ready Mix on the date of the hearing and he testified he
began working there on November 13, 1979. Fletcher
also testified that he worked on Saturdays. He made no
further contact with Respondent after speaking with
Nichols.
Mrs. Carruthers testified that she called Fletcher on
December 19, 1979, and again in January 1980 and left a
message for him to call her. She also testified that she
called again on January 13, 1980, and that she was told
by a woman who answered Fletcher's phone that he had
a job at American Ready Mix. She told the woman to
have Fletcher call her if he wanted to return to work for
Respondent. Mrs. Carruthers' notes indicate she received
a confirmation from Nichols about his conversation with
Fletcher in March 1980.
My view of the evidence is that Fletcher had a regular
and substantially equivalent job as of November 13,
1979, and thus was not in the status of a striker who had
a right to reinstatement when vacancies first arose in De-
cember 1979. He confirmed this by his own testimony
that he turned down an opportunity to return to work
for Respondent in April 1980 because he had another
job. This was the same job he had obtained on Novem-
ber 13, the day the strike ended. Nor is there any evi-
dence that Fletcher made any individual efforts to con-
tact Respondent about his old job, apart from being in-
cluded in the blanket offer to return and the strike settle-
ment agreement. Accordingly, Fletcher is not entitled to
reinstatement or backpay.
William Harris: Harris was a mixer-driver at the Col-
lierville plant. He did not testify at the hearing. Sally
Carruthers testified that she talked to Harris on January
8, 1980, when he came to the Collierville office. She
asked Harris if he was ready to return to work. Harris
replied that he was not because he had a job driving a
gravel truck in Mississippi. Mrs. Carruthers made no fur-
ther efforts to contact Harris. In these circumstances, it
is clear that Harris is not entitled to reinstatement. Al-
though one gravel truckdriver was hired on December
13, 1979, who was not a striker, the General Counsel has
not shown that Harris did not have the Mississippi gravel
truck job at that point or that he would have been the
one striking gravel truckdriver to have been recalled on
December 13. Indeed, it is unlikely that he would have
been since Mrs. Carruthers recalled striking employees
basically in alphabetical order and she would not have
reached Harris. In these circumstances, Harris is not enti-
tled to any backpay.
Bobby Jones: Bobby Jones was a gravel truckdriver
before the strike. Jones spoke to Hunter Carruthers
about returning to work on November 5, 1979. No jobs
were available and Jones thereafter resumed picketing.
Jones had no further conversations with any officials of
Respondent until the following March. In early March,
after being notified by other employees that Respondent
was looking for him, Jones went to the Collierville office
and spoke to Sally Carruthers. He was reinstated at this
time.
Sally Carruthers testified she attempted to call Bobby
Jones on December 11 concerning the gravel truck posi-
tion filled on December 12, and left a message that a po-
sition was available for Jones. She also testified that she
attempted to contact Jones on January 9 by calling and
leaving a message for him with regard to positions filled
on January 23 and 24. On February 5, she called and left
a message a third time for a position which was filled on
February 7. Mrs. Carruthers testified that she made no
attempt to contact Jones concerning a gravel truck posi-
tion filled on February 25 because she had left three mes-
sages for him to call. On February 27, according to Mrs.
Carruthers, Jones contacted her and was put back to
work on March 4.
Bobby Jones should have been recalled before new
gravel truckdrivers were hired and was thus not proper-
ly recalled.
Columbus Jones: At the time of the strike Columbus
Jones was employed as a gravel truckdriver. However,
he was trained to drive either a gravel truck or a mixer,
and, following his recall, Jones was transferred from a
gravel truck to a mixer.
Jones testified that he has been living at his present ad-
dress for 2 years. He further testified that he had given
his mother's phone number to Respondent and that he
could be contacted through that number.
He testified that he first made an attempt to go back to
work about 3 or 4 weeks after the strike ended. He
called Hunter Carruthers on the telephone and asked him
if there was any work. Carruthers replied that there
were no openings. About 2 weeks after this conversation,
Jones called the Collierville office and spoke to Sally
Carruthers. When Jones asked her about coming back to
work, Mrs. Carruthers stated that Respondent did not
have any openings. Jones also testified that, after these
conversations, he contacted Essie White and asked him
about coming back to work. White stated that he did not
think that Jones would be able to come back to work
there again, but he did not explain why.
In April 1980, Jones contacted Mose Harrison at Col-
lierville and asked him if he could drive a gravel truck.
Harrison replied that he would probably have such an
opening in a few weeks and that he would have an open-
ing for a mixer-driver sometime later. Jones stated that
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he believed this conversation took place between April 8
and 10. About 2 weeks after this conversation with Har-
rison, Jones was contacted through Harvey Burke, an-
other striking employee, and was told to come to Col-
lierville to see Harrison. He did so, and was put to work
the next week. Jones was reemployed as a gravel truck-
driver and after a month was transferred to a mixer.
Jones testified that he received no mail from Respond-
ent during the time he was off work and received no
messages that Respondent had attempted to contact him.
Jones also testified that he moved from the address he
had given Respondent when he was hired in March 1978
to his present address prior to the strike. He also testified
that he informed Hunter Carruthers of his move prior to
the strike and after the strike began. This testimony was
not contradicted.
Sally Carruthers testified that Columbus Jones' phone
number was the same number as that of Bobby Jones, an-
other striking employee and Columbus Jones' brother.
Therefore, when she called that number on December 11
concerning a position filled by a new employee on De-
cember 12, she left a message for both Bobby Jones and
Columbus Jones to call her back. She also called Jones
on January 9 and left a message concerning positions
filled on January 15, 23, and 24 by new employees. Mrs.
Carruthers also testified that she called and left a mes-
sage for Columbus Jones on January 19, but the notes
she kept concerning her effort to contact striking em-
ployees do not indicate that such a contact was made.
She called Columbus Jones again on February 5 about a
position filled on February 7, and left a message for him
to call her. At that time, she stated that she was told
Jones had moved and the person to whom she spoke did
not know his new address. She stated she did not at-
tempt to contact Jones regarding a gravel truckdriver
position filled on February 25 because she had left three
messages for Jones to call her. Mrs. Carruthers' notes in-
dicate that, on March 21, Jones came in and gave her a
new address and phone number. Jones returned to work
on April 8, 1980.
Respondent never tried to reach Columbus Jones by
mail. Mrs. Carruthers apparently had a wrong address
for him. She testified that she first learned he had moved
in February 1980. However, Jones credibly testified that
he moved prior to the strike and he gave his new address
to Hunter Carruthers in one of their conversations. The
last of these conversations was in November 1979. Re-
spondent failed properly to recall Columbus Jones before
it hired new drivers.
Nathaniel Jones: At the time of the strike Jones was
working as a mixer-driver at the Collierville location.
Jones testified that he contacted Respondent several
times in November 1979 about getting his old job back
but to no avail. He did not thereafter contact Respond-
ent. Nor was he contacted by Respondent until June
1980 when he was sent a letter by Respondent offering
him a job. Jones called Sally Carruthers who told him
that the position referred to in the letter was a job driv-
ing a truck in Senatobia, Mississippi. Jones replied that
he was not interested in that offer because he was a
mixer-driver. Jones also testified that he has been em-
ployed at Schevenell Ready Mix since April 1, 1980, and
that he could not accept Respondent's June offer because
he was working for Schevenell. Jones also testified that
his refusal was also based on the fact that the Senatobia
position would require him to travel a much longer dis-
tance to work than he had traveled when working at
Collierville.
Jones testified that he has lived at his present address
for the last 7 years. He also testified that he gave his ad-
dress and phone number to Respondent when he was
first hired.
Sally Carruthers testified that she called Nathaniel
Jones on January 14 and spoke to a woman who said
that Jones was working at a Travelodge. Mrs. Carruthers
left a message for Jones to call her. Jones denied work-
ing at Travelodge in January. He did testify that he
began working there in March 1980. Mrs. Carruthers
made no further efforts to contact Jones although she
testified that Mose Harrison and other employees tried to
contact him as far as she knew.
Respondent failed properly to recall Nathaniel Jones
before hiring new mixer-drivers.
Robert E. Jones: Robert E. Jones was emplo, i-1 by Re-
spondent as a gravel truckdriver before the strike. Jones
testified that he made a personal offer to return to work
to Sally Carruthers in a telephone conversation sometime
during January 1980. He asked Mrs. Carruthers if Re-
spondent had any openings and told her that he needed a
job. She replied that there was nothing available.
Sally Carruthers testified that she attempted to contact
Jones on December 11 regarding a gravel truckdriver
job filled by a new employee on December 12, but she
received no answer. On January 9, 1980, she telephoned
Jones and left a message, but again received no response.
New employees were hired as gravel truckdrivers on
January 15, 23, and 24. Mrs. Carruthers next attempted
to contact Jones on February 5 when she called again
and left a message. New gravel truckdrivers were hired
on February 7 and 25. According to Mrs. Carruthers,
Jones contacted Respondent on February 25 and was put
back to work the next day.
According to Jones, in March 1980, he went to the
Collierville plant, spoke to Mose Harrison, and asked
him about a job. Harrison told him that the only position
available was a job involving both driving a truck and
fixing tires. Jones had never repaired tires before the
strike and protested this aspect of the job. He asked to
have his old truckdriving job, but Harrison told him this
was the only job that was open. Jones accepted the job.
Jones testified that his tire repair duties occupied about
4 hours a day. He drove a gravel truck the remainder of
the time. The job required Jones to take tires off a truck,
use a hammer to get the rim off the tire, repair the tube,
and replace the tire. Jones testified that the work was
very different from driving a truck and required bending,
lifting, and manual strength.
Jones worked under these conditions for about 4
weeks. At that time, he requested a transfer to a gravel
truck because the tire repair job was injuring his back.
Harrison refused to move him from the position, and
told Jones, if he could not do the job, he did not need
him. When Jones arrived at work the next day, he found
754
CARRUTHERS READY MIX. INC.
that another driver was in the truck he had been driving,
and he was told to go home. The truck that Jones had
requested was assigned to a newly hired employee. Har-
rison essentially confirmed Jones' testimony but added
that, when Jones refused to continue to repair tires, he
was fired.
Jones should have been recalled before Respondent
hired new employees for gravel truckdriver positions.
His reinstatement on February 25, 1980, was not to a
substantially equivalent position. Fixing tires was a sub-
stantial part of Jones' new job and it involved bending
and lifting. The job caused him back problems. The job
was so different from his prior full-time truckdriver's job
that Jones received 10 cents more per hour in the new
position. The job to which he was reinstated was thus a
substantialy different job from that which he had prior to
the strike and it does not satisfy the reinstatement re-
quirement under Laidlaw. The fact that Jones was dis-
charged from that job for refusing to perform those very
duties which were different from his former job is of no
consequence. Jones was thus not properly offered or
granted reinstatement. ' 2
McQuirin Malone: Malone worked as a gravel truck-
driver at the time of the strike. He testified that, while
working for Respondent, he lived with his aunt at an ad-
dress on Gaston Street. He stated that he provided Re-
spondent with not only this Gaston Street address, but
also with the address of his niece. Malone stated that his
aunt moved from Gaston Street in July 1980. Mrs. Car-
ruthers' notes indicate that she had the Gaston Street ad-
dress for Malone.
Malone testified that, approximately 2 to 3 weeks after
the strike, he was contacted by Larkin Harper who told
him to report to the Winchester facility. Malone present-
ed himself at Winchester, but was told by John Nichols
that the truck which they thought would be out of the
shop was not yet available. He directed Malone to Col-
lierville. Malone then proceeded to the Collierville plant,
where he filled out a timecard and punched in. He was
given a gravel truck and made two trips to the gravel
pit. After his second trip, Malone went to the office to
turn in his ticket. Joe Carruthers, who was present in the
office, asked the shipping clerk who Malone was and ap-
parently refused to let him work. After he left the office,
Malone was told by Mose Harrison that there was no
truck for him to drive. He told Malone to go back to
Winchester. Malone protested but he proceeded back to
Winchester where he spoke to John Nichols. Nichols
told him that a truck was in the shop, and, when it was
repaired, he would call Malone. Malone then left.
Malone testified that he was never thereafter contacted
by Respondent.
Malone testified that he had made no attempt to con-
tact Respondent in 1980, and that he had moved to By-
halia, Mississippi, after the first of the year. Malone also
testified that Respondent could have contacted him
through either his aunt or his niece. He testified that,
after his move, he was in contact with his niece on the
"I Jones' earnings while he was employed at Respondent will of
course offset the amount of backpay he is owed. The specifics of Re-
spondent's liability can be determined at the compliance stage of these
proceedings.
average of two to four times a month and that he re-
ceived all the mail addressed to him which came to his
aunt's address.
Sally Carruthers testified that, on December 11, she
called Malone about a position filled by a new employee
on December 12. According to Mrs. Carruthers a female
answered the phone and told her that Malone was work-
ing in Mississippi. Mrs. Carruthers stated that she
thought the person said he was running a club. Mrs. Car-
ruthers testified she then told the person that, if Malone
wanted to come back to work, he should call her.
Malone denied that he had ever run a club in Mississippi.
Mrs. Carruthers also testified that she did not call
Malone in January about gravel truckdriver positions
filled during that month by new employees because she
assumed he was not interested based on his failure to
return her call and the information she received at that
time.
It is conceded that Malone was not sent a letter asking
him to return to work when Respondent began hiring
new employees in December 1979. Mrs. Carruthers had
his proper address at this time. In these circumstances, it
is irrelevant that Malone moved sometime in 1980. Even
after his move, a letter would have reached him since
the address which Respondent had for Malone was that
of his aunt who forwarded him his mail. Malone was
thus not properly offered reinstatement.
Steve McClain: At the time of the strike McClain was
working as a mixer-driver at the Collierville location.
McClain testified that Respondent did not attempt to
contact him after the strike until he received a call from
Sally Carruthers about the openings at Strayhorn in May
or June 1980. McClain refused the offer because the job
was in Mississippi and he was a mixer-driver. McClain
subsequently received a letter from Mrs. Carruthers
dated June 2, 1980, confirming their telephone conversa-
tion. The letter stated, "You would not accept this posi-
tion because of the location of the job." McClain has had
no further contact with Respondent. 13
Sally Carruthers testified that she called McClain on
January 21 and left a message for him. She called
McClain again on January 24 and was told that McClain
was working in Covington. McClain denied that he ever
held a job in Covington. At that time she left another
message. Mrs. Carruthers testified that McClain turned
down the Strayhorn job offer on May 30, 1980, on the
grounds that he was a mixer-driver and that the job was
"out of his district." She claimed that she mentioned the
possibility of employees riding to Senatobia on gravel
trucks from Winchester, but also told him that Respond-
ent would not be responsible for transportation.
Respondent failed to recall McClain before hiring new
mixer-drivers. He was thus not properly recalled. It is
possible that McClain would not have been reached for
recall even had Respondent filled vacancies with strikers
after December 13, before starting his job with Deal
]J McClain testified that, in his conversation with Mrs Carruther,
there was no mention of means of transportation to Senatobia. He testi-
fied that it is approximately 22 miles from his home to the Collierville
plant He also testified that he has been working as a driver for H. B.
Deal Construction since March 3, 1980.
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction in March 1980. Whether this is so and
whether the Deal job constituted regular and substantial-
ly equivalent employment is a matter for compliance.
Edward L Moore: Moore was a gravel truckdriver at
the time of the strike. He testified that he called Sally
Carruthers at the Collierville office at some time around
Thanksgiving. He asked her if he could come back to
work. Mrs. Carruthers replied that Hunter was in charge
and that Moore would have to see him. Moore tele-
phoned Hunter Carruthers the same day and told him
that he wanted to come back to work. Carruthers replied
that he did not have an opening, but that he still had the
telephone number Moore had given him when he spoke
to Hunter in early November. He told Moore that if he
had an opening he would call Moore. Moore telephoned
Hunter Carruthers again about a week later and asked
him if he had an opening. Carruthers replied that he did
not have one yet and, if he did, he would get in contact
with Moore.
Moore testified that he was recalled to work on March
31, 1980. He was informed by Grady Fox, another em-
ployee of Respondent, that a gravel truck was available
at Collierville. Moore telephoned Sally Carruthers who
told him that he should see Mose Harrison. Moore then
went to Collierville, talked to Harrison, and was put
back to work.
Sally Carruthers testified that she called Moore on De-
cember 11 concerning a position filled by a new employ-
ee at that time and received no answer. She called and
left a message for Moore both on January 9 and Febru-
ary 5. Mrs. Carruthers testified that she did not attempt
to contact Moore concerning a gravel truckdriver posi-
tion filled by a new employee on February 25 because "I
had left two messages there and called once and didn't
get an answer." She testified that, on March 20, Moore
contacted Respondent and provided a new phone
number. Moore was recalled on March 20.
On cross-examination, Moore stated that he gave Mrs.
Carruthers his phone number on March 20, 1980. He tes-
tified, however, that this was the same telephone number
he gave to Respondent when he started work on March
20, 1979, and his number has never changed since then.
Mrs. Carruthers' notes indicate a different phone number
next to Moore's name. There is a subsequent notation
with Moore's number and the date March 20. It is un-
clear to me whether Respondent's records were in error
or whether Moore gave a wrong number in March 1979
when he was first employed. It is clear, however, that
Moore's address never changed. The address which ap-
pears on Mrs. Carruthers' notes is the same address
Moore gave at the hearing in this case.
Because Moore should have been recalled-by mail-
before new gravel truckdrivers were hired, he was not
properly recalled.
Sidney Moore: Moore was a gravel truckdriver. He
lives in Holly Springs, Mississippi. In early November,
he spoke to Hunter Carruthers twice about returning to
work. Hunter told Moore he had no openings but took
his phone number. Moore made no other efforts to con-
tact Respondent.
Moore was not recalled until May. He testified that
Grafton Burton, his brother, told him that Mose Harri-
son had inquired about him reporting for work. The next
day, Sally Carruthers called and left a message for
Moore to call her. Moore drove to the Collierville office
the same day and spoke to Sally Carruthers. Mrs. Car-
ruthers told him she had an opening on a gravel truck
and called Mose Harrison to verify that Moore could
drive the truck. Harrison came to the office and told
Moore he could begin work in the morning. Moore re-
turned to work the next day.
After his recall, Moore worked for Respondent for 2
days. At that point, Respondent decided to transfer some
of its trucks to the Senatobia gravel pit. Moore went to
Senatobia the next evening, but conditions there were
muddy, and a dragline used to load the trucks was
broken. Moore asked Bobby Carruthers if he should
come in the next day. Carruthers replied that there was
no use coming in because it was too muddy and because
of the broken dragline. Carruthers told Moore he would
let him know when to report. Moore testified that he has
had no further contact with Respondent.
Sally Carruthers testified that she attempted to call
Moore on December 11 about a position filled by a new
employee on December 12, but she received no answer.
Mrs. Carruthers also called Moore on January 9 and re-
ceived no answer. At this point, she sent a letter which
stated, "We have a position open and would like for you
to come back to work. Please call me at 853-7335 if you
are interested." Mrs. Carruthers testified that this letter
referred to a job filled on January 15 by a new employee
and also for positions filled by new employees on Janu-
ary 23 and 24. There was no response to this letter.
Moore testified that he did not receive a letter addressed
to him dated January 9, 1980. On February 5, Mrs. Car-
ruthers called Moore about a position filled by a new
employee on February 7. She stated that she was told by
the person who answered the phone that Moore was
working in a college in Holly Springs. She left a message
that he should return her call.' 4 Mrs. Carruthers testified
that she made no further efforts to contact Moore be-
cause "I had sent him a letter and called once and left a
message and called twice and didn't get an answer."
Mrs. Carruthers' notes indicate that Moore called Re-
spondent on May 5 and was put back to work on May 7.
Mrs. Carruthers testified that, after his recall, Moore was
assigned to work in Senatobia. She stated that he worked
for 2 or 3 days, then was laid off because a dragline was
broken. She testified that Moore was supposed to come
back to work as soon as the dragline was repaired, but
he never came back. Mrs. Carruthers testified that she at-
tempted to contact Moore at least seven times, but he
never called her back. She did not attempt to write him.
She stated that she considered his status at that time to
be "voluntary quit."
Moore denied receiving the January 9 letter addressed
to him at his proper address offering him a job with Re-
spondent. The letter was sent by ordinary mail. There
was no response to the letter and it was not returned to
the sender. Moore's denial seemed genuine and he was
not shown to be an unreliable witness. I also credit Mrs.
14 Moore denied that he ever worked at a college in Holly Springs but
he did testify that he had held part-time jobs after the end of the strike.
756
CARRUTHERS READY MIX, INC.
Carruthers who testified that she called Moore's home in
February and left a message for him to call her. Her tes-
timony was supported by her notes. Moore did not re-
spond to the message. It is, of course, possible that he
did not receive the message. However, I find and con-
clude that Respondent made reasonable and adequate ef-
forts to contact Moore and that it is likely that Moore
did not respond because he did not wish to return to
work for Respondent. This is also shown by other evi-
dence. During the period in which Mrs. Carruthers was
trying to reach Moore, he held part-time jobs. Mrs. Car-
ruthers tried to reach him in February after having sent
the letter. Moore did not respond to a message left for
him to call and when he was finally contacted, through
his brother, in early April, he reported for work, worked
for 2 or 3 days. was laid off because of bad working con-
ditions, and never returned or contacted Respondent
even though Mrs. Carruthers repeatedly tried to reach
him by telephone.
In these circumstances, I find that Respondent has sat-
isfied its obligation to recall Moore and he is not entitled
to reinstatement. Nor was it shown that Moore would
have been recalled earlier than January 9, the date that
the letter was sent to Moore. Respondent was recalling
employees in alphabetical order and would not have
reached Moore. Moore is thus not entitled to any back-
pay.
B. J. Mosely: At the time of the strike, Mosely was
working as a mixer-driver at the Winchester plant.
Mosely stated that he has lived at his present address,
952 South Fourth Street, Apartment 6, for 9 years and
that he provided Respondent with his address and phone
number when he was first employed.
Mosely testified that, in February 1980, he spoke with
Bobby Carruthers at the Collierville plant. He had previ-
ously attempted to talk with John Nichols concerning re-
instatement but was told by Nichols that he had to speak
with Carruthers. He told Carruthers that he had come to
see him about going back to work. Carruthers replied
that at the present time he did not have work for
anyone, but that he would call some of the employees
back when work became available. Mosely was not
cross-examined and his testimony was not controverted.
Mrs. Carruthers testified that she called Mosely sever-
al times on December 19 concerning a position filled by
a new employee on December 20, but she received no
answer. Mrs. Carruthers also sent a letter to Mosely on
December 19. The letter was addressed "952 Goforth"
and read, "We have a position open and would like for
you to come back to work. Please call me at 853-7335 if
you are interested." This letter was returned because
there was "no such address."
Mrs. Carruthers testified that she attempted to call
Mosely on January 13 and 15 regarding mixer-driver po-
sitions filled during January, but she received no answer
on either occasion. She testified that she did not attempt
to call Mosely again because she had called on three dif-
ferent occasions and did not get any answer and that she
also had sent him a letter. She did reach Mosely around
the end of May and asked him whether he would accept
one of the jobs in Strayhorn. He told her that he had just
started working for another employer but was noncom-
mittal about the offer. Mrs. Carruthers also told Mosely
that she had previously sent him a letter which was re-
turned. Mosely gave her his correct address and she sent
him a registered letter confirming their conversation.
Mosely received the letter but made no further contact
with Respondent.
It appears that Respondent's December 19 letter to
Mosely carried an erroneous address. Both Mrs. Car-
ruthers' notes and the letter show Mosely's address to be
"952 Goforth." His correct address is 952 South Fourth
Street, Apartment 6. He had lived there for 9 years and
this was the address he had provided to Respondent
when he was first employed. The similarity of the two
street addresses leads me to conclude that Respondent
was lax in transposing Mosely's correct address to Mrs.
Carruthers' notes and to the letter sent to Mosely. Mose-
ly's employment records are not in evidence. An em-
ployer should be held to due diligence in contacting em-
ployees at their proper address when making job offers.
In this case Respondent must be found to have failed to
use due diligence in obtaining Mosely's correct address
which I must presume, from Mosely's uncontradicted
testimony, was given to Respondent. Surely, after the
letter was returned because it was sent to a nonexistent
address, Respondent could have and should have made
other efforts to ascertain Mosely's correct address. More-
over, it is also uncontradicted that Mosely spoke to
Bobby Carruthers in February 1980. Carruthers made no
effort to inform Mosely that Respondent was looking for
him or that he had been sent a letter which was returned
because of an improper address. Indeed, he told Mosely
there were no jobs available. It is reasonable to impute to
Bobby Carruthers knowledge of Sally Carruthers' efforts
to recall striking employees not only because they are
both officers of Respondent but also because they are
married and because employees sometimes asked Bobby
Carruthers about returning to work. In these circum-
stances, Respondent's efforts to recall Mosely were not
sufficient to notify Mosely that he should return to work
and to terminate his right to his former job. Mosely was
thus not properly offered reinstatement.
James Moton: James Moton was working as a mixer-
driver in Collierville at the time of the strike. On No-
vember 6, Moton talked to Bobby Carruthers at the Col-
lierville office. Mose Harrison was also present during
this conversation. Moton told Carruthers that he wanted
to come back to work. Carruthers told him that he could
not fire other employees and hire him back. Harrison
said that when he had an opening he would get in touch
with Moton. Moton made another attempt to return to
work during the beginning of February. He called Joe
Carruthers and asked him about coming back to work.
Carruthers told him to get in touch with Mose Harrison.
Moton did so, and told Harrison that he wanted to come
back to work. Harrison said that he had no openings, but
that he would contact Moton when he did. Harrison
contacted Moton at the beginning of March and asked if
Moton was ready to come to work. Moton came back to
work the same day. Moton was not aware of any other
attempts to contact him by Respondent.
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sally Carruthers testified that she first attempted to
contact Moton on January 21, 1980, when she called his
telephone number and received no answer. On January
24, she called and left a message for him. According to
Mrs. Carruthers' testimony, Moton contacted her on Jan-
uary 24 and he was reinstated on February 23 to a Col-
lierville mixer-driver's position. Mrs. Carruthers' notes
indicate that Moton contacted her on February 1.
Moton should have been recalled before Respondent
hired new employees for mixer-driver positions in De-
cember 1979. He was not properly recalled.
Percy Porter: At the time of the strike, Porter was a
mixer-driver at the Collierville plant. After the strike
ended, Porter called Mose Harrison and John Nichols
and asked them if work was available. Nichols told him
he had a truck available and asked him to come to the
Winchester plant. Porter went to the Winchester plant
the next morning but, when he arrived, he was met by
Bobby Carruthers. Carruthers accompanied him to the
gate where a sign was posted stating, "Employees Only."
Carruthers pointed out the sign and told him to leave
Respondent's premises and "wait on him out in the
street." I'orter's testimony in this respect was not contro-
verted. Moreover, it is consistent with similar treatment
by Carruthers of employee Wilborn. However, it is un-
clear in the record as to when the confrontation between
Porter and Carruthers took place.
Mose Harrison testified that Porter called him shortly
before Christmas 1979. After he became foreman-some-
time in January 1980-Harrison met Porter at a bank.
Harrison told Porter, "In a few days, it looks like when
the weather breaks, I'm going to be needing you. I'm
going to need some extra men and you're one." Accord-
ing to Harrison, Porter replied that he would rather be
in a "soup line" than work for Respondent. Porter
denied that he made such a statement to Harrison, al-
though he did testify that he talked to Harrison before
Christmas. Harrison reported this conversation to Sally
Carruthers. He told her what Porter had told him and
said, "Now you can call him. I don't know what he
would tell you." Mrs. Carruthers testified that she was
also told by an employee on an earlier occasion, on De-
cember 14, that Porter had told him that he did not want
to return to work for Respondent. She made no other at-
tempts to contact Porter until late May or early June
1980 when she offered Porter a position at Strayhorn.
Porter informed her at that time that he had another job.
Porter should have been recalled in December 1979
before new mixer-drivers were hired. He was not re-
called and is thus entitled to reinstatement and backpay.
Evening assuming the truth of Harrison's statement that
Porter told him he would rather be on a "soup line" than
work for Respondent, that statement was made in Janu-
ary 1980, a month after new employees were hired. Nor
can the statement be considered a definitive rejection by
Respondent of a serious job offer. Harrison met Porter
quite by accident. He was not specifically authorized by
Mrs. Carruthers to make Porter a job offer. He was at
best an intermediary used by Respondent to contact em-
ployees. Harrison's own testimony shows that he did not
consider Porter's remarks to constitute a final rejection
because he told Mrs. Carruthers to call Porter. She did
not even call, however, and simply used Harrison's
report as a means of crossing Porter off her list of em-
ployees. The hearsay report of another employee in De-
cember surely cannot constitute evidence of Porter's
intent to abandon his job. Finally, as in Wilborn's case,
Bobby Carruthers' expulsion of Porter from Respond-
ent's premises after the strike demonstrates Respondent's
animosity towards Porter. This animosity could only
have been motivated by Porter's strike activity. In these
circumstances, Porter was not properly offered reinstate-
ment.'
James Price: Price was a mixer-driver at the Winches-
ter plant. He did not tetify at the hearing. Sally Car-
ruthers testified that she did not recall whether Price
came to the Winchester plant on November 5, nor could
she recall whether he made an individual offer to return.
Mrs. Carruthers called Price on December 19 about a
mixer-driver position filled on December 20, but was
told that Price did not live there. She did not attempt to
reach Price on January 13 because, at some time previ-
ously, she had been told that Price was seen driving a
schoolbus. She also testified that she had asked some of
the drivers to get in touch with him. Mrs. Carruthers tes-
tified that, sometime later, Larkin Harper found Price
and told him that he should come back to work. Price
returned on April 28, 1980.
There is no evidence that Price's address changed
since before the strike. Thus, Respondent should have
contacted him by mail and recalled him before hiring
new mixer-drivers. Price was therefore not properly re-
called.
Eugene Sanders: At the time of the strike Sanders was
working as a mixer-driver at Winchester. After the strike
ended, Sanders spoke with Hunter Carruthers at the
Winchester plant. He asked Carruthers if he could go to
work at that time and Carruthers said he could not be-
cause business was slow and because many new people
had been hired. Sanders stated that Respondent did not
contact him concerning reinstatement until late May. At
that time, Sally Carruthers called and said that she had a
job for him in Senatobia driving a gravel truck. Sanders
called Mrs. Carruthers the next day and told her that he
had no means of transportation to Senatobia, but that if
she could find someone else going that way he would
accept. Mrs. Carruthers replied that she would get back
with Sanders after she checked with some other driv-
ers. 16 A few days after his telephone conversation with
Sally Carruthers, Sanders received a certified letter from
Mrs. Carruthers. The letter, dated June 2, 1980, stated
that, on May 29, he accepted a position with Respond-
ent, but on May 30 "you called to inform me that you
'A In its brief, Respondent has abandoned the argument it made at the
hearing that Porter was not reinstated because of prestrike misconduct.
The evidence shows that Respondent had some problem with Porter
using and selling concrete. Although the evidence shows that other em-
ployees also did this with the knowledge of management, Bobby Car-
ruthers caught Porter, told him not to do it again, and made him pay for
the concrete. Porter was not fired or otherwise disciplined for this al-
leged misconduct and he continued to work until the strike.
ta Sanders testified that his home was about a mile away from the
Winchester plant, while it was approximately 43 miles from his home to
Senatobia.
758
CARRUTHERS READY MIX, INC.
could not find transportation to the job and therefore
could not accept this position."
Sally Carruthers testified that she called Sanders'
home on December 19 about two available mixer-driver
positions. At that time she was told by whoever an-
swered the phone that Sanders was driving a gravel
truck, and she left a message for him to call her. Mrs.
Carruthers did not make any efforts to contact Sanders.
Sanders testified that was the only job he has had since
the strike began in April 1980 but that it was not a regu-
lar job. According to Sanders it was a "part time" job.
Respondent failed properly to recall Sanders before
hiring new mixer-drivers.
Henry Tart: Henry Tart was a gravel truckdriver
before the strike. At some point in early November, after
having been on strike, Tart went to the Winchester plant
and spoke to Hunter Carruthers. He offered to return to
work. Carruthers responded that he did not have any
work available and told Tart to come back the next day
to get a layoff slip, which Tart did. Following the con-
versation with Hunter Carruthers, Tart spoke to John
Nichols and Essie White several times about returning to
work.
Tart testified that, at some point, he was told by an-
other employee that Mose Harrison had said that Tart
should return to work because his record was "all right."
Tart reported to Collierville the next Monday and was
employed as a gravel truckdriver. Two weeks later he
was tranferred to a mixer-driver's position.
Tart testified that, shortly after the strike began, he
moved from an address on Bickford Street to Auction
Street and that he did not notify the Company of this
move. He also testified that he did not have a telephone
at the time of his conversation with Hunter Carruthers.
On December 12 or 13 Respondent hired a new em-
ployee, Roger Ford, as a gravel truckdriver. Mrs. Car-
ruthers testified that, on December 11, she sent a letter
to Tart since she had no record of his phone number.
The letter stated that Respondent had a position open
and would like for Tart to come back to work. The
letter requested that Tart call Respondent if he was in-
terested. The letter, which was mailed to the Bickford
Street address, was returned undelivered. No further ef-
forts were made to contact Tart. Mrs. Carruthers testi-
fied that, on February 11, Tart called and provided Re-
spondent with his new address. He was reinstated on
February 13.
Because Tart did not provide Respondent with a cur-
rent telephone number or his current address, it was im-
possible for Respondent to reach him. Respondent did
send him a letter in an attempt to recall him prior to
hiring new employees. The letter was sent to his last
known address. Respondent's efforts, in these circum-
stances, were adequate and Tart, who was eventually re-
instated, is not entitled to any backpay.
James E. Walker: Walker was a mixer-driver stationed
at the Winchester plant before the strike. Walker has
lived at the same address and has had the same telephone
number for the last 5-1/2 years. He gave Respondent this
information when he began his employment in June
1979. After he had been on strike for some time, he
spoke to Hunter Carruthers at the Winchester plant
about returning to work. Hunter told him work was
slack, that he did not need Walker, and that, if he did, he
would call Walker. Walker testified that he did picket
after this conversation so I believe it took place on No-
vember 5 and not on November 13 as Walker testified.
Sometime in January 1980 after speaking to John Nichols
regarding his reinstatement Walker called Joe Carruthers
and told him that he would like to have his job back.
Carruthers told him there was nothing he could do at
that time, but he would 'et him know something in a few
days.
Sometime after his conversation with Joe Carruthers,
Walker went to the Winchester plant and spoke to John
Nichols about returning to work. Nichols called Sally
Carruthers, and Walker was rehired. Walker testified
that he went back to work on February 13, !980. Walker
also testified that, to his knowledge, no one from Re-
spondent had attempted to contact him after the strike.
Mrs. Cartuthels' notes which were received into evi-
dence, indicate that si1 called Walker on December 19
and left a message tor him to call her. On December 20,
two new employees were hired for mi-xer-driver posi-
tions at Winchester. On January 18, two new cl !inyees
were hired for mixer-driver positions at Winchester. On
January 21, two more new employees were hired for
Winchester mixer-driver positions and, on January 25,
yet another new mixer-driver was hired for Winchester.
Mrs. Carruthers testified that, on January 13, she called
Walker, but received no answer. She called again on Jan-
uary 15 and left a message for Walker to return the call.
On January 24, according to Mrs. Carruthers, Walker
contacted her, and he was reinstated on February 4.
Walker was entitled to be reinstated prior to the hiring
of new mixer-drivers and therefore was not properly re-
called.
Oscar Wells: Oscar Wells was a gravel truckdriver
before the strike. In early November 1979, he twice con-
tacted Hunter Carruthers about returning to work.
Hunter said that he had no jobs available, but that, if
some became available, he would call Wells. Wells testi-
fied that he had given Respondent his address and phone
number when he was first employed and also gave them
to Hunter Carruthers when he talked to him in early No-
vember. Wells testified that he received a letter from Re-
spondent sometime before March 1980. Wells testified
that he did not read the letter but that his wife did. She
told him the letter said something about coming to the
office. Wells did not contact Respondent at that time be-
cause he had another job and he did not want to quit it
to return to work for Respondent. Wells lives in Missis-
sippi and he testified his job was closer to his home than
Respondent's Memphis operations. He testified, however,
that he had only received one letter from Respondent.
Respondent did not submit any evidence of a letter sent
to Wells and none is in the record. Mrs. Carruthers'
notes indicate "reg letter 6/2/80" beside his name. When
Respondent sent letters to other employees they were
either introduced into the record or referred to in Mrs.
Carruthers' notes. Thus, it is likely that Wells was mis-
takenly referring to the June 2, 1980, letter sent to all
strikers who were not reinstated. Moreover, Wells' view
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he no longer wished to work for Respondent was
not communicated to Respondent. Indeed, Respondent
took the position at the hearing and in its brief that it
had no intention of recalling Wells. Thus, although there
is some ambiguity in Wells' testimony about when he re-
ceived a letter from Respondent, I find and conclude
that Respondent did not send Wells a letter, as it was re-
quired to do, before it hired new employees in his job
classification. The only letter sent to Wells was sent on
June 2, 1980, after Respondent hired new employees.
Wells was thus not properly offered reinstatement.
Respondent contends that it was entitled to refrain
from recalling Wells after the end of the strike because
of his driving record while he worked for Respondent
before the strike. I reject this contention. Wells credibly
testified that only one of the traffic tickets he received
while employed for Respondent involved the driving of
a truck for Respondent and that no official from Re-
spondent ever spoke to him about his driving record
before the strike. An employer may not rely on alleged
deficiencies of an employee which were tolerated before
the employee engaged in a strike to deny him reinstate-
ment after the strike. See Marble Manufacturing Company
of San Antonio, 239 NLRB 1142, 1150 (1979).
Jimmy Wilborn: At the time of the strike Wilborn was
working as a mixer-driver at the Winchester plant. He
testified that, after the strike ended, he spoke to Elaine
Crafton, the Winchester dispatcher, about returning to
work. Crafton told him there was no work available and
that the only thing he could do was to keep in touch
with Respondent. She also said she would let him know
if she needed anyone. Wilborn also talked to John Nich-
ols during the weekend immediately after the election
held on December 7, 1979. At that time, Nichols told
him he would have to speak with Bobby Carruthers con-
cerning his job and told him to come to the plant to talk
to Carruthers. The following Monday, December 10,
Wilborn went to the Winchester plant. As he was wait-
ing in his car for Carruthers to arrive, Larkin Harper
came out and told Wilborn that Carruthers did not want
him there and that he had better leave. Harper said he
was told by Bobby Carruthers to tell Wilborn to leave.' 7
About a week later, also in December, Wilborn re-
turned to the Winchester plant and spoke to Bobby Car-
ruthers. He told Carruthers that he did not feel that he
was wrong for participating in the strike, but that he
would like to have his job back. Carruthers replied that
he had sent word to Wilborn through Harper to stay off
the premises and that, if he came back again, Carruthers
would call the police. Wilborn testified that this conver-
sation occurred "in the shop." He did not return to Re-
spondent's facility again because of Carruthers' threat al-
though he did call Respondent several times thereafter
seeking employment. Bobby Carruthers did not contro-
vert this testimony.
Mrs. Carruthers testified that she attempted to call
Wilborn on December 19 about a position which was
" Harper admitted that he was told by Bobby Carruthers to tell Wil-
born to leave and that the police would be called if he did not d, so.
Harper testified that Wilborn was the only nonworking employee inside
the gate at this time, and that there was a company rule that off-duty
employees must leave the premises.
filled by a new employee on December 20, but she re-
ceived no answer. She again attempted to contact Wil-
born by phone on January 13 regarding mixer positions
filled by new employees in January. On this occasion,
the woman who answered the phone stated that she was
Wilborn's mother. Mrs. Carruthers said she then left the
message for Wilborn to get in touch with her. She again
called Wilborn on January 15, but received no answer.
Wilborn testified that he did not receive any such mes-
sage from his mother. Mrs. Carruthers testified that she
did not attempt to contact Wilborn again concerning
other mixer vacancies because "I had left a message with
his mother and I had called other times and did not get
an answer."
Respondent should have recalled Wilborn before
hiring new gravel truckdrivers. The case in favor of Wil-
born is especially strong because Bobby Carruthers had
independent knowledge that Wilborn was at Respond-
ent's facility seeking employment and he expelled Wil-
born from the premises and threatened to call the police.
I can only conclude that Carruthers' conduct was moti-
vated by his animosity towards Wilborn for engaging in
the strike. Mrs. Carruthers testified that she suspected
Wilborn of scratching her car during the strike. Re-
spondent attempted to prove this fact at the hearing.
Mrs. Carruthers testified that she saw him run his hand
alongside her car and that she later noticed that it was
scratched. There was no evidence of the extent of the
damage. Wilborn denied he scratched Mrs. Carruthers'
car and his name was not mentioned during the Novem-
ber 13 strike settlement negotiations just I week after the
incident allegedly occurred. Indeed, Mrs. Carruthers tes-
tified that she attempted to call Wilborn for work in De-
cember 1979 and in January 1980. She admitted that her
suspicion that Wilborn had scratched her car had noth-
ing to do with failing to reinstate him. She also surmised
that Bobby Carruthers "wanted him off the lot" because
she reported her suspicion of the Wilborn scratching in-
cident to her husband. In these circumstances, Bobby
Carruthers' treatment of Wilborn was out of proportion
to his alleged strike misconduct. Although not alleged as
a separate violation of the Act, it reinforces the finding I
make that Respondent discriminated against Wilborn by
failing to recall him because he engaged in strike activi-
ty.
Eddie Williams: Williams was working as a mixer-
driver at the Winchester plant at the time of the strike.
He testified that, approximately 1 month after the end of
the strike, he spoke with Hunter Carruthers and John
Nichols at the Winchester plant concerning reinstate-
ment. He asked Carruthers when he was going to get his
job back. Carruthers replied that he only had one truck
running and that there was no work. Nichols stated that
Respondent did not need any employees.
Williams also testified that his next contact with Re-
spondent was when Sally Carruthers called his residence
and left a message for him to call her. Williams returned
the call and Mrs. Carruthers stated that she had an open-
ing for two dump truckdrivers at Respondent's gravel pit
in Mississippi. Williams replied that he had no transporta-
tion to Mississippi and that, if she had anything else, he
760
CARRUTHERS READY MIX, INC.
would be willing to accept it. He asked whether Re-
spondent could provide transportation to the jobsite.
Mrs. Carruthers replied that Respondent could not pro-
vide transportation and that Williams had to find his
own. Following this conversation, Williams received a
letter from Respondent, dated June 2, 1980, which stated
that Respondent had offered him a position for which he
was qualified, but "You stated that transportation to the
job was a problem and that you could not accept this po-
sition." Williams testified that he was unaware of any
other attempts by Respondent to contact him and that he
has had no other communication with Respondent.
Mrs. Carruthers testified that she called Williams on
December 19 about positions filled by new employees on
December 20 and left a message. She also called Wil-
liams on January 13 and 15, but received no answer on
both occasions. Mrs. Carruthers testified that she did not
call Williams concerning other mixer-driver positions
available in February because "I had left a message with
him and called him on other occasions and received no
answers." Mrs. Carruthers' notes indicate the notation,
"Driving gravel truck for company called Consoli-
dated." However, Mrs. Carruthers did not testify as to
how she received this information. Williams testified that
he had driven a gravel truck for two or three different
employers since the strike ended but said that none of
those jobs constituted regular employment.
Respondent did not properly recall Eddie Williams
prior to hiring new mixer-drivers.
W. G. Williams: At the time of the strike, W. G. Wil-
liams was working as a mixer-driver at the Winchester
plant. In early December, Williams called Respondent's
office and spoke to Hunter Carruthers. Williams remind-
ed Carruthers that, on an earlier occasion when he had
asked for employment, Ilunter told him to call him about
job openings. He again asked if there were job openings.
Carruthers replied that there were still no openings and
asked Williams to keep checking with him.
Williams testified that he asked to return to work once
again in February. At that time he spoke to Bobby Car-
ruthers at the Winchester plant. He told Carruthers that
he wanted to see about getting his job back and that he
needed the work. Carruthers replied that he was short of
work, but that he had been planning on calling some of
the employees back in the spring. He said that he had
been considering Williams. Williams reemphasized that
he needed the work, but Carruthers replied that he could
not use him at the time because work was slow. Williams
was not cross-examined about this conversation and
Bobby Carruthers did not testify about such a conversa-
tion or deny that it took place. In a pretrial affidavit Wil-
liams mentioned refusing a job offer from Nichols and
another person but mentioned nothing about a conversa-
tion with Mrs. Carruthers.
Mrs. Carruthers testified that she attempted to call
Williams on December 19 about positions filled by new
employees on December 20. At that time she was told
that his number had been disconnected. She then sent
Williams a letter on December 19. The December 19
letter to Williams stated, "We have a position open and
would like for you to come back to work. Please call me
at 853-7335 if you are interested." Williams testified that
he did not "remember" receiving such a letter. Mrs. Car-
ruthers stated that she did not attempt to call Williams in
January "because his number had been disconnected and
I had sent him a letter and had not gotten any response
from that." Mrs. Carruthers also testified that she was
told on January 15 by some drivers that they had seen
Williams driving another company's truck at a gravel pit.
Mrs. Carruthers testified that she did not attempt to con-
tact Williams in February because "his number had been
disconnected and I did not have another number, and
also I had sent him a letter." Mrs. Carruthers also stated
that she had sent John Nichols "to look for these people
to get them back to work," and that she was told by
Nichols that Williams told him in late March that he did
not want to return to work because he was already
working at another ready-mix company.
Williams testified that, in April 1980, he was contacted
at his home by John Nichols. Nichols asked Williams if
he wanted to return to work. Williams said he was work-
ing at another job but that he was still interested in re-
turning to work for Respondent. He had started working
for another firm on April 3. Nichols told Williams that
he should call Mrs. Carruthers. According to Williams,
he called Mrs. Carruthers about a week later and she
told him that, while she was planning to recall some of
the strikers, there were no openings at that time. In a
pretrial affidavit, Williams had stated that "Carruthers
offered me my job back April 6 or 7, but I turned it
down because I have a better job." On cross-examina-
tion, Williams explained that what he meant in his affida-
vit was his conversation with John Nichols. He reiterat-
ed that he called Mrs. Carruthers after talking with
Nichols and that she said she had no openings. Although
the affidavit contained a reference to Nichols offering
him his job back, it apparently contained nothing about
Williams wanting his job, Nichols telling Williams to call
Mrs. Carruthers, or Williams actually calling Mrs. Car-
ruthers. Nichols did not testify and Mrs. Carruthers did
not confirm or deny that Williams called her in April.
But she did testify that she asked Nichols to try to get in
touch with Williams and that she was told by Nichols in
late March that Williams did not want to return to work
because he was working at another ready-mix company.
I do not find Williams' testimony on this point to be
reliable. In addition to the apparent conflict between his
testimony and his affidavit, it is unlikely that he would
call Mrs. Carruthers after having told Nichols that he
had another job. Williams testified that he considered
Nichols his "foreman." In these circumstances, Williams
knew or had reason to believe that Nichols had the au-
thority to transmit an offer to return to work. Thus, I be-
lieve that Williams turned Nichols down because he had
a better job as he stated in his affidavit. Whether this
happened in March or April is unclear on this record.
But the Nichols conversation took place after the alleged
February conversation with Bobby Carruthers. Because
of Williams' unreliability generally, I cannot credit his
testimony about this conversation. In addition, Williams
testified that he could not "remember" receiving the De-
cember 1979 letter from Respondent. If Mrs. Carruthers'
hearsay reports about Williams driving a truck in Janu-
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 1980 were correct, they might explain why there
was no response to Respondent's letter to Williams in
December 1979. Although the issue is a close one, I find,
based on my assessment of Williams' lack of credibility
as a witness, that Respondent's December 1979 letter
was received by Williams and that he did not respond to
it because he did not want to return to work for Re-
spondent. In addition, Respondent made other reasonable
alternative efforts to contact Williams, notably the con-
tact by John Nichols. Williams failed to respond because,
in my view, he did not wish to return to work. Williams
is therefore not entitled to reinstatement and backpay.
CONCLUSIONS OF LAW
1. By discharging and terminating the employment of
employees Milton Brown and William Frazier for engag-
ing in protected concerted and union activity, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
2. By failing to properly recall and reinstate striking
employees who had ceased their strike and offered un-
conditionally to return to work, Respondent has dis-
criminated against those employees in violation of
Section 8(a)(3) and (1) of the Act.
3. The above violations are unfair labor practices af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
4. Except as found herein, Respondent has not other-
wise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that employees Brown and Frazier were
unlawfully discharged or terminated, I shall order that
Respondent offer Brown and Frazier full and immediate
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any and all losses of earnings
caused by Respondent's unlawful discharges. Having
found that employees Earl Banks, Grafton Burton, Co-
lumbus Jones, Bobby Jones, Edward Moore, James
Moton, James Price, and James Walker-employees who
were eventually reinstated-were not properly recalled
under the applicable principles of Fleetwood and Laidlaw
before Respondent hired new employees in their job
classifications, I shall order that Respondent make them
whole for any loss of earnings they may have suffered
because of Respondent's unlawful failure properly to
recall them. Having found that employees Mario Burks,
Nathaniel Jones, Robert E. Jones, McQuirin Malone,
Steve McClain, B. J. Mosely, Percy Porter, Eugene
Sanders, Oscar Wells, Jimmy Wilborn, and Eddie Wi-
liams were not properly recalled or reinstated after the
end of the strike, I shall order that Respondent immedi-
ately reinstate those employees to positions for which
they are qualified and which were filled by new hires on
and after December 13, 1979, in accordance with appli-
cable principles set forth in Fleetwood and Laidlaw.'l To
the extent that there are not positions presently available
for all these employees entitled to reinstatement because
sufficient vacancies did not occur after December 13,
1979, such employees shall be placed on a preferential
hiring list and should be offered jobs for which they are
qualified as vacancies occur and before new persons are
hired for such work, unless they obtained regular and
substantially equivalent employment before jobs to
which they were entitled became available.' 9 Priority
for placement on such list shall be based on a nondiscri-
minatory standard. All the employees who are entitled to
reinstatement shall be made whole for any loss of earn-
ings they may have suffered by reason of the discrimina-
tory failure to reinstate them. All backpay in this case
shall be computed in accordance with F. W: Woolworth
Company, 90 NLRB 289 (1950), with interest as provided
in Florida Steel Corporation, 231 NLRB 651 (1977).20
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 2 '
The Respondent, Carruthers Ready Mix, Inc., Collier-
ville and Memphis, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, terminating, or otherwise discriminat-
ing against employees in regard to their hire or tenure of
employment or any term or condition of employment be-
cause they engage in a strike or any other concerted pro-
tected or union activity.
(b) Refusing to accord strikers who were not perma-
nently replaced as of November 13, 1979, reinstatement
rights to which they are entitled as economic strikers.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
18 As I have indicated earlier in this Decision, all 19 employees men-
tioned above should have been recalled before any new employees were
hired. I express no view as to the order in which they would have been
recalled had they been properly recalled. It is conceivable that I or an-
other of the II employees who have reinstatement rights might have ob-
tained regular and substantially equivalent employment prior to the filling
of the vacancy to which he was entitled. It is also conceivable that an
employee who was actually recalled would not have been recalled until
later than he actually was under a proper recall procedure. If so he may
not actually be entitled to any backpay. Because I am unable to deter-
mine the order in which any of the employees would have been recalled,
I have treated them all as having been entitled to recall as of the hiring
of the first new employee on December 13, 1979. Any problems with re-
spect to the order of recall and the consequences which flow therefrom
may be resolved in the compliance stage of this proceeding.
1' Respondent contends that, as of the date of this hearing, there were
apparently eight vacancies for which new employees were hired. There
were thus positions for at least 8 of the 11 strikers who were entitled to
reinstatement.
'O See, generally, Isis Plumbing d Heating Co, 138 NLRB 716 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
762
CARRUTHERS READY MIX, INC.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to employees Milton Brown and William
Frazier full and immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a result of
the discrimination against them in the manner set forth in
"The Remedy" section of this Decision.
(b) Reinstate the employees named below to their
former jobs or, if such positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights or privileges:
Mario Burks
Nathaniel Jones
Robert E. Jones
McQuirin Malone
Steve McClain
Eddie Williams
B. J. Mosely
Percy Porter
Eugene Sanders
Oscar Wells
Jimmy Wilborn
(c) Make the above employees and the following em-
ployees whole for any loss of earnings they may have
suffered because of the failure of Respondent to properly
reinstate them on and after December 13, 1979, in the
manner set forth in The Remedy section of this Decision:
Earl Banks
Grafton Burton
Columbus Jones
Bobby Jones
Edward Moore
James Moton
James Price
James Walker
(d) Place on a preferential hiring list, based on nondis-
criminatory standards, for employment, as positions
become available and before other persons are hired for
such work, any employees listed in paragraph (b) who
would not have been reinstated because sufficient vacan-
cies have not occurred after December 13, 1979, to ac-
commodate all such employees entitled to reinstatement,
unless they have obtained regular and substantially
equivalent positions prior to the time when jobs to which
they were entitled became available.
(e) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
records and reports necessary to determine the amount
of backpay due under the terms of this Order.
(f) Post at its places of business in and around Mem-
phis, Tennessee, copies of the attached notice marked
"Appendix." 22 Copies of said notice, on forms provided
by the Regional Director for Region 26, after being duly
signed by its representatives, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by it to ensure that said notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
ateps Respondent has taken to comply herewith.
12 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
763