Consolidated Delivery & Logistics

National Labor Relations Board - Board Decisions

May 15, 2002

337 N.L.R.B. 524 (N.L.R.B. 2002)

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consolidated Delivery & Logistics, Inc. and Team­
sters Local Union No. 418, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Case 22–CA–23543
May 15, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On August 3, 2000, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
The judge found that the Respondent violated Section
8(a)(3) and (1) by discharging employees who engaged
in a strike for recognition of the Union. The judge also
found that the Respondent violated Section 8(a)(3) and
(1) by failing and refusing to reinstate strikers on their
unconditional offers to return to work. For the reasons
stated below, we agree.
I. FACTS
The relevant facts can be summarized as follows. The
Respondent is engaged in the business of providing driv­
ing and delivery services at mu ltiple jobsites. In 1999,
its customers included Neuman Distributors, Inc. (Neu­
man), which distributes pharmaceutical products. Pursu­
ant to a contract with Neuman, the Respondent per-
formed deliveries for Neuman out of Neuman’s Teter­
boro, New Jersey facility. The Respondent’s Neuman
jobsite was a “dedicated customer site,” meaning that the
Respondent operated on the customer’s premises.
In late July 1999,2 Alfred Pascarella, the Charging
Party’s president, received a phone call advising him that
the Respondent’s drivers wanted union representation.
Pascarella met with the drivers, obtained authorization
cards, and recommended that if the Respondent refused
to recognize the Union, the drivers should strike for rec­
ognition.
On the morning of Friday, August 6, Pascarella re-
quested recognition from the Respondent. The Respon­
dent refused, and the drivers began a strike and estab-
1 We will substitute a new notice in accordance with our recent deci­
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
2 All dates are in 1999 unless otherwise specified.
lished a picket line. The picket line remained in place
until about 3 p.m. None of the Respondent’s approxi­
mately 32 drivers at the Neuman site worked that day.
At approximately 4 p.m., the Respondent gave the
drivers a letter, which stated in part:
This is to advise you that because you abandoned your
job today, Friday, August 6, 1999 and refused to work,
you have been permanently replaced. Your job will be
performed by others.
It is undisputed that at the time the letter was distributed, the
Respondent had not hired any replacements or even made
contact with the employment service that it now contends
replaced the drivers.
On Friday evening and on Saturday, some of the Re­
spondent’s drivers who had struck on Friday asked to
return to work. The Respondent reinstated them.
During the Friday picketing, Neuman told the Respon­
dent to use whatever means necessary to get Neuman’s
product delivered. Neuman gave the Respondent per-
mission to use independent contractors as drivers, even
though Neuman had previously required the Respondent
to use employee drivers. On Friday or Saturday, the Re­
spondent decided that it wanted to subcontract the driv­
ing work to a third party. On Sunday, August 8, Robert
Wyatt, the Respondent’s Northeast Regional President,
spoke for the first time with Edward Eusebio, a represen­
tative of Labor Ready. Labor Ready was an employment
agency engaged in supplying labor to businesses. Wyatt
testified that he arranged for Labor Ready to supply driv­
ers to the Respondent’s Neuman site beginning Tuesday,
August 10. Wyatt said that he arranged for Eusebio to
send drivers who would “remain at work,” not “day la-
borers,” because of the “training curve” associated with
the Respondent’s routes. Neither Eusebio nor any Labor
Ready driver or representative testified about their under-
standing of Labor Ready’s arrangement with the Re­
spondent. However, Labor Ready records introduced at
the hearing show that some of the Labor Ready drivers
(particularly those supplied in the days immediately fol­
lowing the strike) worked only a single day or a few
days. The Respondent did not enter into a written con-
tract with Labor Ready, and it is undisputed that the Re­
spondent could stop using Labor Ready at any time sim­
ply by telling Labor Ready not to send drivers the
following day.
During the weekend of August 7 and August 8, and on
Monday, August 9, the Respondent covered its routes by
using the striking drivers who had been reinstated over
the weekend, drivers who had been absent from work on
August 6 for illness or reasons other than the strike, and a
337 NLRB No. 81
CONSOLIDATED DELIVERY & LOGISTICS 525
few drivers who worked for the Respondent at its other
locations.
On Monday, August 9, 11 strikers, who had not al­
ready requested reinstatement over the weekend, tele­
phoned or came to the Respondent’s Neuman site and
asked to return to work. They were not reinstated. Two
other strikers, Richard Jeans and Luis Ortiz, also were
not reinstated, although the record contains no evidence
that they requested reinstatement. Jeans, Ortiz, and the
11 drivers who requested reinstatement on August 9 are
the drivers whom the General Counsel alleges, and the
judge found, were refused reinstatement in violation of
Section 8(a)(3) and (1).
On Tuesday, August 10, Labor Ready supplied drivers
to the Respondent. The Respondent operated using those
drivers and the strikers who had been reinstated over the
weekend. The Respondent continued to operate in this
manner through February 2000, when Neuman termi­
nated the Respondent’s contract.
II. ANALYSIS
A. Discharge of the Strikers in Violation of Section
8(a)(3) and (1)
We agree with the judge that the Respondent dis­
charged the striking drivers in violation of Section
8(a)(3) and (1) by distributing a memorandum on August
6 telling the strikers they had been permanently replaced.
The Board has held, and the courts have affirmed, that
advising economic strikers that they have been perma­
nently replaced when they have not been replaced consti­
tutes a discharge in violation of Section 8(a)(3) and (1).3
The District of Columbia Circuit’s decision in Noel
Foods v. NLRB, 82 F.3d 1113 (D.C. Cir. 1996), does not
require a contrary finding. In Noel Foods, the employer
was aware that employees planned to begin an economic
strike at midnight. At about 10 p.m., the employer told
3 See, e.g., American Linen Supply Co., 297 NLRB 137 (1989) (“an
employer who inform[s] lawful economic strikers that they ha[ve] been
permanently replaced when in fact the employer ha[s] not obtained
such replacements, ha[s] thereby terminated the strikers in violation of
Sec. 8(a)(3) and (1) of the Act”; therefore, memorandum telling em­
ployees they would be permanently replaced at 7 a.m., when no re-
placements had been obtained by that time, effected an unlawful dis­
charge), enfd. 945 F.2d 1428 (8th Cir. 1991); Mars Sales & Equipment
Co., 242 NLRB 1097, 1100–1101 (1979) (letter advising strikers that
respondent had “hired a permanent replacement for your position,”
when the replacement workers were not permanent, constituted an
unlawful termination in violation of Sec. 8(a)(3) and (1)), enfd. in rele­
vant part 626 F.2d 567 (7th Cir. 1980); W.C. McQuaide, Inc., 237
NLRB 177, 179 (1978) (“as we have found in agreement with the Ad­
ministrative Law Judge that 15 of the 24 asserted permanent replace­
ments were not bona fide, we adopt his finding that the May 17 letter to
the striking dockworkers advising them that they had been permanently
replaced constituted an unlawful termination”), enfd. 617 F.2d 349 (3d
Cir. 1980).
employees that the company had hired permanent re-
placements and that employees who struck at midnight
would be permanently replaced. The court concluded
that these statements did not constitute an unlawful dis­
charge. In doing so, the court stated that the relevant
question was not whether the employer’s statement that it
had hired permanent replacements was “false when
made,” but “whether the statement conveyed the impres­
sion that the employees would be replaced as soon as
they went on strike and whether they were in fact re-
placed at that time.” Id. at 1119 (emphasis added). The
court emphasized that Noel Foods had previously con­
tracted with an employment agency to prepare a roster of
people ready to serve as replacements, and in fact a num­
ber of replacement workers had actually reported for
work before midnight, when the strike began. Under
those circumstances, the court held that the employer’s
statements did not effectively discharge the strikers be-
fore their positions were actually filled by replacements.
See id. at 1119–1120.
By contrast, in this case, the Respondent distributed
the memorandum to the strikers on the afternoon of Au-
gust 6, stating unamb iguously that “you have been per­
manently replaced.” It is undisputed that the Respon­
dent’s first contact with Labor Ready occurred 2 days
later, on August 8. Unlike the employer in Noel Foods,
which had made prior arrangements to obtain replace­
ments and actually had replacements ready and waiting
when the strike began, in this case the Respondent had
not even made contact with Labor Ready at the time it
told the strikers they had been permanently replaced.
Accordingly, we agree with the judge that the Respon­
dent discharged the strikers on August 6 in violation of
Section 8(a)(3) and (1).4
B. Refusal to Reinstate 13 Strikers in Violation of
Section 8(a)(3) and (1)
We further agree with the judge that the Respondent
violated Section 8(a)(3) and (1) by refusing to reinstate
13 of the strikers. The Respondent argues that it was not
required to reinstate the strikers because it permanently
replaced them by engaging Labor Ready as a permanent
subcontractor. For the reasons stated below, we reject
this argument.
It is well settled that an employer violates Section
8(a)(3) and (1) if it fails to reinstate strikers on their un­
conditional offers to return to work, unless the employer
can establish a “legitimate and substantial business justifi-
4 In concluding that the strikers were unlawfully discharged, we find
it unnecessary to rely, as the judge did, on the documents filed on the
Respondent’s behalf with the New Jersey Department of Labor in re­
sponse to unemployment claims by strikers Avelino Rodriguez and
Philip Torres.
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cation” for failing to do so. See NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378 (1967). The employer
bears the burden of proving the legitimate and substantial
business justification. See id. An employer’s permanent
replacement of economic strikers as a means of continuing
its business operations during a strike is a legitimate and
substantial business justification. See, e.g., NLRB v. Mac­
kay Radio & Telegraph Co., 304 U.S. 333, 345–346
(1938).
The employer, however, bears the burden of proving
the permanent status of the replacements. “Significant in
meeting this burden is an adequate showing that there
was a mutual understanding between the employer and
the replacements that the nature of their employment was
permanent.” Target Rock Corp., 324 NLRB 373 (1997),
enfd. 172 F.3d 921 (D.C. Cir. 1998); and Harvey Mfg.,
309 NLRB 465, 468 (1992). The Respondent must es­
tablish “that the replacements were hired in a manner that
would ‘show that the men [and women] who replaced the
strikers were regarded by themselves and the [employer]
as having received their jobs on a permanent basis.’”
Target Rock , 324 NLRB at 373 (quoting Georgia High-
way Express, 165 NLRB 514, 516 (1967), affd. sub nom.
Truck Drivers & Helpers Local 728 v. NLRB, 403 F.2d
921 (D.C. Cir. 1968), cert. denied 393 U.S. 935 (1968)).
Absent evidence of a mutual understanding, the Respon­
dent’s own intent to employ the replacements perma­
nently is insufficient. Hansen Bros. Enterprises, 279
NLRB 741 (1986), enfd. 812 F.2d 1443 (D.C. Cir. 1987),
cert. denied 484 U.S. 845 (1987).
First, we agree with the judge that the Respondent failed
to prove that the individual workers supplied by Labor
Ready were permanent replacements. There is no evi­
dence of a mutual understanding between the Respondent
and any of the Labor Ready workers that they were being
hired on a permanent basis. No Labor Ready worker testi­
fied, and none of the Respondent’s representatives testified
to discussions with the individual Labor Ready workers.
The Respondent conceded that it could tell Labor Ready at
any time that it did not want a particular worker to return.
Furthermore, Labor Ready’s records show substantial
turnover among the workers it supplied to the Respondent,
particularly in the days immediately following the strike.
Some Labor Ready drivers worked only a single day.
Accordingly, we agree that the Respondent did not carry
its burden to prove that the individual Labor Ready drivers
permanently replaced the strikers.5
5 In doing so, we do not rely on the judge’s finding that the strikers’
positions had not been filled on Monday, August 9, because Labor
Ready workers had not yet physically arrived on the job. Had the Re­
spondent actually reached a mutual understanding with the Labor
Ready workers that they were permanent, then the strikers’ positions
Second, we reject the Respondent’s argument that it
permanently replaced the strikers by engaging Labor
Ready itself (as distinguished from the individual Labor
Ready drivers) as a permanent subcontractor. We find,
for reasons similar to those stated above, that the Re­
spondent failed to prove that its arrangement with Labor
Ready was a permanent one.
Under the principles set forth above, to establish this
defense, the Respondent must prove a mutual under-
standing with Labor Ready that it was to provide drivers
on a permanent basis. However, no representative of
Labor Ready testified about his or her understanding of
the arrangement with the Respondent.6 Robert Wyatt,
the Respondent’s northeast regional president at the time
of the strike, conceded that the Respondent had no writ-
ten agreement with Labor Ready. The Respondent’s
witnesses also conceded that the Respondent could cease
using Labor Ready’s services at any time simply by tell­
ing Labor Ready not to send any drivers the next day.
Robert McKim, the Respondent’s regional director,
testified as follows about his understanding of the ar­
rangement with Labor Ready and the events leading up
to it:
A. You’ve got to understand the nature of what
was going on. From Friday’s chaos to us trying to run
a smooth operation on Monday . . . Robert [Wyatt]
had reached out to get us some additional labor to
provide delivery, so it’s not a corporate policy. It was
an individual decision for this, for Tuesday, the 10th.
Q. And the 11th.
A. Right.
Q. And the 12th.
A. Right.
Q. And the 13th.
A. Right.
Q. And all subsequent weeks, correct?
A. That’s how it worked out, yes.
would have been filled as of the time the Respondent made, and the
replacements accepted, a commitment for permanent employment. See
Solar Turbines Inc., 302 NLRB 14 (1991), affd. sub nom. Machinists v.
NLRB, 8 F.3d 27 (9th Cir. 1993). As stated above, however, we find
that the Respondent failed to prove a mutual understanding that the
Labor Ready replacements were permanent.
6 Both the Respondent and the General Counsel subpoenaed Edward
Eusebio, the Labor Ready representative that Wyatt contacted to supply
drivers to the Respondent. Eusebio did not appear at the hearing, and
the judge admitted Eusebio’s prehearing affidavit over the Respon­
dent’s objection. The Respondent excepts to the admission of the affi­
davit. We find it unnecessary to rely on the affidavit in concluding that
the Respondent failed to prove that it contracted with Labor Ready to
provide drivers on a permanent basis. Accordingly, we need not pass
on the Respondent’s exception to the admission of the affidavit.
CONSOLIDATED DELIVERY & LOGISTICS 527
McKim further testified that the Respondent’s plan “was
day to day up until Tuesday,” August 10, the first day on
which the Respondent used Labor Ready, “and then Tues­
day ran well and we continued with it.”
The Respondent’s evidence falls far short of establis h­
ing that its arrangement with Labor Ready was a perma­
nent one. To the contrary, the testimony of the Respon­
dent’s own regional director suggests that the subcon­
tracting began on a temporary (or “day to day”) basis and
then was simply “continued” because it “ran well.”
Wyatt did testify that he arranged for Labor Ready to
send drivers who would “remain at work,” rather than
“day laborers.” However, this establishes only that the
Respondent did not want turnover among the Labor
Ready workers, and it is consistent with a temporary ar­
rangement as well as a permanent one.7
Accordingly, we find that the Respondent failed to
prove that it permanently replaced the strikers by enter­
ing into a permanent subcontract with Labor Ready.8
Therefore, we agree with the judge that the Respondent
violated Section 8(a)(3) and (1) by failing and refusing to
reinstate the strikers on their unconditional offer to return
to work.9
C. Remedial Issues
We agree with the judge’s recommended Order with
the following modifications and qualifications.
First, we shall modify the judge’s recommended Order
to reflect that all strikers discharged on August 6, 1999
(including those who were later refused reinstatement)
shall be made whole from the date of the unlawful dis­
charge.
Second, the Respondent argues that it closed the Neu­
man site in February 2000, that the record is silent on
whether the Respondent typically transferred employees
within its system, and that the Respondent therefore
7 In any event, despite Wyatt’s wishes, it is clear from Labor
Ready’s records that there was turnover among the workers Labor
Ready supplied, particularly in the days immediately following the
strike.
8 Because we find that the Respondent did not prove that its subcon­
tract was permanent, we need not reach the issue of whether, had such a
permanent arrangement been entered into, the Respondent established a
legitimate and substantial business justification for refusing to reinstate
the strikers. See Capehorn Industry, 336 NLRB 364, slip op. 4 (2001)
(where permanent subcontracting is used as justification for refusing to
reinstate economic strikers, employer must establish a legitimate and
substantial business justification for the permanent subcontracting).
9 For the reasons stated by the judge, we agree that the Respondent
failed to prove its affirmative defense that the strike was unlawful un­
der Sec. 8(b)(4)(D). Also for the reasons stated by the judge, we agree
that strikers Richard Jeans and Luis Ortiz, who were among the strikers
unlawfully discharged on August 6, are entitled to reinstatement and
backpay despite the fact that the record does not establish that they
made unconditional offers to return to work.
should not be required to reinstate the strikers unless it
reopens the Neuman site. We find that this issue is better
suited to resolution in the compliance process, during
which the Respondent may introduce evidence regarding
the appropriateness of reinstatement. Accordingly, we
shall issue our standard reinstatement order requiring the
Respondent to reinstate the discriminatees to their former
positions or, if those positions no longer exist, to sub­
stantially equivalent positions.
Third, because there is no evidence that the Respon­
dent’s unfair labor practices impacted on, or became
known to, employees outside the Respondent’s Neuman
jobsite, or that the unfair labor practices were committed
pursuant to a company policy or otherwise reflected a
pattern or practice of unlawful conduct, we shall modify
the judge’s recommended Order to require that the Re­
spondent mail copies of the notice only to those current
and former employees who were employed at the Neu­
man site at any time since August 6, 1999. See Consoli­
dated Edison Co. of New York , 323 NLRB 910, 911–912
fn. 8 (1997).
Finally, we shall modify the judge’s recommended
Order in accordance with our recent decision in Fergu­
son Electric Co., 335 NLRB 142 (2001).
ORDER
The Respondent, Consolidated Delivery & Logistics,
Inc., Teterboro, New Jersey, its officers, agents, succes­
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in a lawful economic strike,
or for supporting Teamsters Local Union No. 418, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL–CIO, or any
other union.
(b) Failing or refusing to reinstate striking employees
to their former or substantially equivalent positions of
employment in the absence of a legitimate and substan­
tial business justification.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, if the
Respondent has not already done so, offer those employ­
ees who were discharged on August 6, 1999, and the
following employees who were refused reinstatement on
August 9, 1999, full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other rights or privileges previously enjoyed, dismissing,
if necessary, any persons engaged as replacements.
Jose Balazar Isaac Rosario
Fabian Guevera Jose Salinas
Juan Guzman Richard Silva
Richard Jeans Jose Torres
David Maldonado Philip Torres
Luis Ortiz Miguel Vega
Avelino Rodriguez
(b) Make all employees who were discharged on Au-
gust 6, 1999 (including those employees listed above,
who were also refused reinstatement) whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Make the employees listed above, who were re-
fused reinstatement on August 9, 1999, whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and the unlawful refusals to reinstate, and within 3 days
thereafter notify the employees in writing that this has
been done and that the discharges and the refusals to re-
instate will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Teterboro, New Jersey, copies of the at­
tached notice marked “Appendix.”10 Copies of the no­
tice, on forms provided by the Regional Director for Re­
gion 22, after being signed by the Respondent’s author­
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent has gone out of business or closed the facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current and former employees employed by the
Respondent at its Neuman site at any time since August
6, 1999.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in a lawful economic
strike, or for supporting Teamsters Local Union No. 418,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL–CIO, or any
other union.
WE WILL NOT fail or refuse to reinstate striking em­
ployees to their former or substantially equivalent posi­
tions of employment in the absence of a legit imate and
substantial business justification.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
If we have not already done so, WE WILL, within 14
days of the date of the Board’s Order, offer those em­
ployees who were discharged on August 6, 1999, and the
following employees who were refused reinstatement on
August 9, 1999, full reinstatement to their former posi­
tions or, if those positions no longer exist, to substan­
tially equivalent positions, without prejudice to their sen­
iority or other rights and privileges previously enjoyed,
dismissing, if necessary, any persons engaged as re-
placements.
CONSOLIDATED DELIVERY & LOGISTICS 529
Jose Balazar Isaac Rosario
Fabian Guevera Jose Salinas
Juan Guzman Richard Silva
Richard Jeans Jose Torres
David Maldonado Philip Torres
Luis Ortiz Miguel Vega
Avelino Rodriguez
WE WILL make those employees who were discharged
on August 6, 1999 (including those employees listed
above, who were also refused reinstatement), whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter­
est.
WE WILL make the employees listed above, who were
refused reinstatement on August 9, 1999, whole for any
loss of earnings and other benefits resulting from the
discrimination against them, less any net interim earn­
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful discharges and the unlawful refusals to rein-
state, and WE WILL, within 3 days thereafter, notify the
employees in writing that this has been done and that the
discharges and refusals to reinstate will not be held
against them in any way.
CONSOLIDATED DELIVERY & LOGISTICS, INC.
Patrick Daly and Jeffrey Gardner, Esqs., for the General Coun­
sel.
Jedd Mendelson and Shaun Reid, Esqs. (Grotta, Glassman &
Hoffman, P.A.), of Roseland, New Jersey, for the Respon­
dent.
David Grossman, Esq. (Schneider, Goldberger, Cohen, Finn,
Solomon, Leder & Montalbano, P.C.), of Kenilworth, New
Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge filed on August 31, 1999,1 by Teamsters Local 418 a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, AFL–CIO (Local 418 or
Union), a complaint was issued on December 30 against Con­
solidated Delivery & Logistics, Inc. (Respondent).
The complaint alleges that on August 6, Respondent dis­
charged all of its employees who engaged in a strike that day,
and on August 9, when 13 named strikers made unconditional
offers to return to work, it failed and refused to reinstate them.
Respondent’s answer denied the material allegations of the
complaint, and its amended answer asserted the affirmative
defense that the strikers were engaged in unprotected conduct.
On March 14 and 15, 2000, a hearing was held before me in
1 All dates hereafter are in 1999 unless otherwise stated.
Newark, New Jersey. On the evidence presented in this pro­
ceeding, and my observation of the demeanor of the witnesses
and after consideration of the briefs filed by all parties, I make
the following.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation having an office and
place of business in Teterboro, New Jersey, has been engaged
in the business of providing delivery services. In the 12 months
preceding the issuance of the complaint, Respondent has de-
rived gross revenues in excess of $50,000 from its operations
which include the transportation of freight from New Jersey
directly to points outside New Jersey. Respondent admits, and
I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent
also admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Facts
Neuman Distributors, Inc. (Neuman) has a warehouse and
facility in Teterboro, New Jersey, from which it delivers medi­
cine, medical supplies, and hospital products to pharmacies and
hospitals. The nature of the product is “time sensitive, crit ical”
and includes certain items which must be refrigerated, and high
value pharmaceutical materials which must be delivered on the
day they are ordered. Neuman employs warehousemen and
truck drivers at that location. Those workers are represented by
the Union which has separate collective-bargaining agreements
with Neuman for those units.
Respondent operates a trucking delivery service for Neuman
at the Teterboro location which delivers the same types of
products to the same types of customers as Neuman does. In
the spring or early summer of 1999, Respondent began its op­
eration at Neuman’s Teterboro facility.
In late July, Union President Alfred Pascarella Jr. received a
phone call advising him that Respondent’s drivers wanted un­
ion representation. Pascarella held meetings with the employ­
ees on July 23 and 26 during which he obtained signed authori­
zation cards. He recommended, and they agreed, that if Re­
spondent refused to recognize the Union a strike for recognition
should be conducted, and that they would not work until the
Union was recognized.
Before the start of the workday on August 6, Pascarella vis­
ited the facility and told Branch Manager Ravi Beedoo that the
Union represented a majority of Respondent’s employees and
asked that the company recognize the Union and sign a recog­
nition letter. Beedoo said he did not have the authority to sign
the letter. Pascarella informed him that the men would not
work until he was given an answer.
Shortly thereafter, Pascarella asked Respondent’s regional
vice president, Robert Wyatt, to sign the recognition letter,
adding that if it was not signed the men would not work. Wyatt
refused and suggested that the Union utilize the Board’s elec­
tion process. Wyatt added that he doubted that the Union rep­
resented a majority of the drivers to which Pascarella said that
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he would show him that the Union represented the workers. A
picket line was established and signs carried by three to six
workers said: “Teamster Local 418 on strike for recognition
with CD & L. Unfair to organized labor.” None of Respon­
dent’s approximately 32 drivers present at the facility worked
that day.
During the picketing, Respondent’s regional director, Robert
McKim, arrived at the facility and heard Pascarella make a
demand for recognition. He and Beedoo attempted to speak to
the strikers in order to ask them to return to work but were pre-
vented from doing so by Pascarella who intervened and inter­
fered with their talking to the workers. Pascarella advised
McKim to speak to him (Pascarella), not the strikers.
The drivers employed by Neuman also did not work when
the picket line was established. The Union’s collective-
bargaining agreement with Neuman provided that they could
honor the Union’s picket line.
In the afternoon of August 6, Samuel Toscano, the chairman
of Neuman, gave Pascarella a letter which stated that Pascarella
would be held liable for damages due to the stoppage of work
by Neuman’s drivers. Pascarella then withdrew the picket line
and directed Neuman’s drivers to return to work. Pascarella
was ordered to leave the facility and he did so after telling Re­
spondent’s drivers to meet him off the premises.
During that day, the following letter, signed by Beedoo and
McKim, was given to each of the strikers present at the facility:
This is to advise you that because you abandoned your job to-
day, Friday August 6, 1999 and refused to work, you have
been permanently replaced. Your job will be performed by
others.
There is a disagreement as to when the letter was presented.
Pascarella stated that in the early afternoon, between 1 and 3
p.m. during the picketing the drivers were told that they were
terminated and were given the letter. I credit McKim’s testi­
mony that since August 6 was a payday, the strikers were given
the letter as they received their paychecks and left the facility at
about 4 p.m. following the withdrawal of the picket line. No
employee testified that he was told that he was discharged, and
I do not credit Pascarella’s testimony in that regard. My find­
ing here that the strikers were discharged is based on the letter
they received and the unemployment compensation documents,
to be discussed below.
At their meeting later that day, some employees told Pas­
carella that they had been asked by Respondent to return to
work. He advised them to do so. They agreed to meet again on
Monday. When they met on Monday, some employees re-
ported that they had been asked by Respondent to return to
work, and others said that they were offered reinstatement
which they accepted.
McKim testified that late Friday afternoon, August 6, he of­
fered his opinion to the president of Respondent and its attor­
ney that although he preferred to reinstate all the drivers, he had
unsuccessfully attempted to have them return to work that day.
Accordingly, since Respondent had a contractual obligation to
deliver Neuman’s product, he believed that the drivers must be
replaced with those willing to perform the jobs. McKim em­
phasized that he did not intend to terminate the drivers, but
rather replace them with others who would make the deliveries.
Respondent operated a guaranteed minimum of 32 routes,
but sometimes as many as 42 routes for Neuman. Immediately
prior to the strike, Respondent was doing 36 to 37 routes with
35 or 36 employees and 3 or 4 independent contractors.
In the evening of August 6, Neuman removed 10 routes from
Respondent “indefinitely” and advised that it would be operat­
ing them with its own drivers. Accordingly, Respondent had
about 26 routes to perform immediately following the end of
the picketing. On Friday, deliveries were made with its dis­
patchers and with independent contractors who worked for
Respondent at its other facilities. Those additional independent
contractors continued to work on Saturday and Monday. They
did not work on Tuesday since the routes were covered by Re­
spondent’s returning drivers, the regular 3 to 4 independent
contractors and drivers obtained from the Labor Ready em­
ployment agency.
On Friday evening, August 6, certain of Respondent’s driv­
ers called or visited the facility, asking to return to work. They
were given routes to be performed the following day and on
Monday.2 McKim assigned work for Saturday to all its drivers,
about 15 to 17, who asked to return to work on Friday, and also
to those who had been absent on Friday due to vacations or sick
leave, and a couple of independent contractors who work for
Respondent in other facilities, and also Respondent’s drivers
from its other locations. Those same individuals worked on
Monday also. Neuman’s drivers were doing the 10 routes re-
moved from Respondent’s jurisdiction.
Wyatt stated that on Friday or Saturday, a decision had been
made by Respondent to subcontract the labor to a third party
source. On Sunday, August 8, Respondent’s official, Robert
Wyatt, called Edward Eusebio, the branch manager for Labor
Ready, a temporary employment agency and asked for drivers
who could be trained to learn routes and prepare documentation
in connection with their deliveries.3 Wyatt stated that he asked
for people who would remain at work, not day laborers, be-
cause of the training period necessary for drivers to learn the
routes. He requested workers to begin on Tuesday, August 10.
There were openings for 8 to 10 drivers but additional workers
were requested from Labor Ready so that there would be two
employees on each truck so that if one decided not to keep the
job the other would already be familiar with the route. How-
ever, it was not contemplated that those extra employees would
be needed for a long period of time.4
Eusebio’s affidavit states that Labor Ready is an employ­
ment agency which provides temporary help to businesses.
Employees referred are paid by Labor Ready on a daily basis
2 Respondent’s drivers work Monday through Friday. The Saturday,
August 7 schedule was implemented in order to deliver the product
which had not been delivered on Friday.
3 The General Counsel’s argument that Wyatt did not call Labor
Ready until Monday, August 10 is irrelevant. It is undisputed that
contact with Labor Ready had been made on Sunday, whether by an
attorney for Respondent or by Wyatt and at that first contact an order
had been made for drivers.
4 McKim stated that at least six Labor Ready drivers worked on
Tuesday.
CONSOLIDATED DELIVERY & LOGISTICS 531
and are paid at the end of the workday at the Labor Ready facil­
ity which sends them to work.5 Eusebio stated that neither
Respondent attorney McEwain nor any other representative of
Respondent requested that Labor Ready provide drivers on a
permanent basis. Labor Ready employs a system whereby the
contractor company notes on a Labor Ready job ticket each day
whether it wants that employee to return to work the next
workday.
Eusebio was subpoenaed by the General Counsel and Re­
spondent. He did not appear at the hearing. His pretrial affida­
vit, taken by a Board agent, was received in evidence over Re­
spondent’s hearsay objection. “The Board has long held that it
will admit hearsay evidence if rationally probative in force and
if corroborated by something more than the slightest amount of
other evidence.” Dauman Pallet, Inc., 314 NLRB 185, 186
(1994). Here, the statements set forth in Eusebio’s affidavit are
clearly probative of the issue concerning whether the replace­
ments were permanent or temporary. The above statements are
also corroborated by other evidence of the temporary nature of
the replacements, which will be summarized below.
Wyatt stated that in addition to the strikers who requested re­
instatement on Friday, others asked to return to work on Satur­
day, and all who requested their jobs on those 2 days were rein-
stated. All such employees, who Wyatt estimated were half the
prestrike work force, were employed on routes on Saturday.
McKim stated that Respondent had few deliveries to make
on Monday and needed few drivers since orders which would
ordinarily have been placed on Friday, were not placed because
of the strike.
On Monday morning, August 9, 11 of Respondent’s drivers
who had not offered to return to work came to the facility and
told McKim that they wished to go back to work. McKim told
them that work for that day had already been assigned and dis­
patched and there was no work for them. Respondent had used
the same drivers it had used 2 days before, on Saturday, August
7. McKim stated that he did not tell the inquiring drivers to
return Tuesday for work because Respondent “did not have a
plan” and did not know what its operations would require after
Monday. McKim wrote the names and phone numbers of the
drivers on a “replacement list” and told them that he would
contact them as the company had a need for their services.
McKim testified that he learned from Neuman on Monday
afternoon that the volume of work would increase on Tuesday.
Nevertheless, he did not recall Respondent’s drivers from the
list to report to work on Tuesday. He stated that Respondent’s
“plan” was to operate with Labor Ready and avoid further
“chaos” which he experienced during the strike. Wyatt stated
that he discussed with his fellow managers the possibility that if
they reinstated the drivers the strike could resume at a later
time. McKim said that the work was performed well on Tues­
day and the company decided to continue using Labor Ready
although Respondent had the ability to terminate Labor
Ready’s services at any time.
The 13 individuals on the replacement list comprise all those
set forth in the complaint as having been denied reinstatement
following their unconditional offers to return on August 9.
5 McKim and Wyatt also stated that Labor Ready pays the drivers.
They are Jose Bazalar, Fabian Guevera, Juan Guzman, Richard
Jeans, David Maldonado, Luis Ortiz, Avelino Rodriguez, Isaac
Rosario, Jose Salinas, Richard Silva, Jose Torres, Philip Torres,
and Miguel Vega. However, Jeans and Ortiz did not make an
offer to return in person. Their names were added to the list by
McKim as representing those who Respondent did not return to
work or had not contacted the company.
Wyatt testified that although the drivers who requested rein-
statement on Monday were experienced, McKim acted pursuant
to his instructions that they not be reinstated. The reason for
their refusal of reinstatement was because Neuman gave Wyatt
a “window of opportunity” to change the nature of Respon­
dent’s operation from one in which employees worked for Re­
spondent to one in which independent contractors could be
utilized. Wyatt sought to take advantage of that opportunity for
the reasons discussed below. Wyatt further explained that had
those drivers called or returned on the weekend to advise that
they would return to work on Monday, they would have been
reinstated just as the other drivers had. However, during the
weekend alternative arrangements had to be made to ensure
service on Monday. Accordingly, when they requested rein-
statement on Monday, their requests were denied.
That Sunday, August 8, Wyatt told McKim that Labor Ready
drivers would be used beginning Tuesday. Accordingly,
McKim could not have known on Sunday that Respondent’s
drivers would appear at its facility on Monday morning request­
ing reinstatement. The decision had already been made to re-
place them.
This is supported by a payroll list bearing the notation of “8–
7–99” next to 15 names. Those 15 include the 13 individuals
named in the complaint as having been refused reinstatement
on August 9 after their offers to return to work. McKim stated
that August 7 was the date those individuals were permanently
replaced. Wyatt stated that the statement in the letter that em­
ployees were replaced meant that he had no expectation of
reinstating them but he believed that he had the ability to rein-
state them if they requested reinstatement.
Wyatt stated that he was told by counsel that if any of the re-
placement workers they hired left Respondent’s employ, it
would be required to offer those jobs to those employees who
requested reinstatement on Monday, August 9. However, that
advice was not followed.
Wyatt conceded that the “ideal situation” was to employ
“experienced drivers,” and not Labor Ready workers. How-
ever, he later stated that even experienced drivers were un­
trained at one time. Nevertheless, on the weekend of August 8
and 9, the 13 drivers had not requested reinstatement and he
therefore made arrangements with Labor Ready. Although he
could have terminated the Labor Ready drivers at any time, and
particularly on Monday when the 11 drivers presented them-
selves, he chose not to because he had determined to change the
nature of the workforce from employees to independent con-
tractor or labor provider source.
Wyatt stated that it was not necessary that a Labor Ready
driver be asked to return the next day. Rather, the arrangement
that was made was that Labor Ready would send the same
number of drivers each day. He also requested that the same
individuals be sent each day, but could not recall if in fact the
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same people returned each day. He conceded that in the first
couple of days there was some turnover of Labor Ready em­
ployees and a certain period of time elapsed until a “core
group” of steady workers was employed.
Wyatt testified that Respondent’s Teterboro operation for
Neuman was unusual in that most of its labor was comprised of
its own employees and its own vehicles at Neuman’s request.
In contrast, Respondent’s other facilities used independent
contractors.
Wyatt seized on the opportunity presented by the strike to
convert the Teterboro operation to one in which the work was
performed by independent contractors since nearly the entire
northeast region of Respondent utilized independent contrac­
tors, and that he preferred those workers to people on the pay-
roll of Respondent. He stated that his reason for preferring
independent contractors was purely economic—no investment
in vehicles was required, the absence of unemployment insur­
ance, and benefits such as sick leave and paid holidays, and a
more productive work force in the independent contractors who
have a financial incentive in their work.
Wyatt stated that McKim had the authority to reduce the
number of Labor Ready drivers so that he could hire from the
replacement list but such an action would have been contrary to
Wyatt’s instructions which were to replace Labor Ready’s driv­
ers with more Labor Ready drivers and not those from the re-
placement list. Wyatt later contradicted that testimony by stat­
ing that he did not tell McKim that he would not hire from the
replacement list even if he stopped using Labor Ready. He
conceded, however, that he did not want to hire from the re-
placement list, but that if he no longer wanted Labor Ready he
would consider using the list. The reason he preferred not us­
ing the list was that he wanted to continue using independent
contractors and third party labor such as Labor Ready. Wyatt’s
authority to replace Respondent’s employees with Labor Ready
workers or independent contractors derived from Neuman offi­
cials telling him that he could do whatever he had to get the
product delivered. He was specifically told by Neuman that
Respondent could use independent contractors and subcontract
the delivery work.
On August 27 the Union filed a petition for representation of
Respondent’s drivers with the Board. Labor Ready continued
to provide drivers to Respondent until Neuman terminated its
contract with Respondent in February 2000. An election was
scheduled on the Union’s petition, but on March 3, 2000, the
Union withdrew its petition because of the layoff of all eligible
voters due to Respondent’s loss of its contract with Neuman.
B. The Replacement Drivers
As set forth above, Respondent engaged Labor Ready to
supply drivers beginning on Tuesday, August 10. The drivers
are paid by Labor Ready at the end of each workday.
Labor Ready’s payroll covering the period August 10
through November 23 indicates that 5 drivers began work on
August 10. They were John Caraballo, Timothy Craig, John
Hogen, Troy Hutton, and Joseph Pagan. Of those, only Pagan
worked continuously thereafter through November 22, the last
date of the payroll received in evidence. Caraballo worked
through November 10. Craig’s total employment consisted of 2
days in the week of August 10, Hogen worked 3 days, and
Hutton worked 4 days that week and 1 day the following week.
Other employees began work shortly thereafter but were em­
ployed briefly. For example, Matthew Marsh worked on Au-
gust 11 only, Michael Nerlino’s sole day of employment was
on August 12, and Paul Lawrence began work on August 11
and worked regularly thereafter until October 13. Victor Ponce
apparently replaced him, beginning work on October 14 and
working through November 23.
Luis Gil began work on August 18 and worked only until
September 9.
Robert Mitchell began work on August 18 and worked con­
tinuously until November 23. Jose Ramos began work on Au-
gust 23 and worked regularly until October 5. Abdel-Hamid
Anjer’s only day of employment was September 30. Oscar
Moreno began work on October 26 and worked until November
9. Eric Medina began work on November 3 and was still em­
ployed on November 23, the last payroll date in evidence.
Mustapa Othman started work on November 9 and has contin­
ued to work through November 23. Edward Bennett’s only day
of employment was on November 18.
C. The Unemployment Compensation Documents
Respondent is represented by a company called Consultech
in cases which its employees file claims for unemployment
compensation. In early August, claims were filed by employ­
ees Avelino Rodriguez and Philip Torres. In documents filed
with the New Jersey Department of Labor, Consultech’s
“agent,” Mary Bardelli, wrote that Consultech represented Re­
spondent pursuant to a power of attorney filed with that agency.
Bardelli’s response to the claims of the employees was that “the
claimant is no longer employed for the following reason: In­
subordination—work stoppage due to nonrecognition of
promotion of union.”
Wyatt stated that he told Consultech’s officials that since the
claimants were not terminated and were not discharged for
cause, they were entitled to unemployment compensation. He
advised that Consultech should not oppose the claims for un­
employment compensation since Respondent expected that the
claims would be granted. Wyatt denied that he saw the claims
of Rodriguez and Torres and stated that Bardelli’s response to
the claims was incorrect.
Wyatt further stated that he was advised that unemployment
hearings may be held concerning the drivers. He instructed
McKim that the employees would probably receive unemploy­
ment benefits which they were entitled to, and that he should
not spend much time or effort contesting their claims. He
stated that he specifically instructed Consultech’s president not
to oppose the claims. Nevertheless, McKim stated that he at-
tended one unemployment hearing at which he testified, but the
claimant did not appear.
III. ANALYSIS AND DISCUSSION
A. The Alleged Discharge of the Strikers
The complaint alleges that on August 6, Respondent termi­
nated all its employees who struck work that day.
As set forth above, on August 6, Respondent’s employees
engaged in a strike for recognition, an economic strike, before
CONSOLIDATED DELIVERY & LOGISTICS 533
the start of the workday. In the afternoon of August 6, follow­
ing the withdrawal of the picket line and as the strikers were
leaving the premises, they were given a letter which stated that
“because you abandoned your job today .. . and refused to
work, you have been permanently replaced. Your job will be
performed by others.”
At the time the letter was presented to the strikers no re-
placements, temporary or permanent, had been hired by Re-
spondent.6 The most that had been done toward this end was
that McKim had given his opinion that replacement drivers
must be obtained, and a decision made on Friday or Saturday,
as testified by Wyatt, that the drivers’ positions be subcon­
tracted to a third party labor source. Admittedly, he did not
contact Labor Ready until Sunday, August 8, and those drivers
did not begin work until Tuesday, August 10.
The Board has held that advising economic strikers that they
had been permanently replaced when they had not been so re-
placed, constitutes a discharge of the strikers. Noel Corp., 315
NLRB 905, 907–908 (1994); W.C. McQuaide, Inc., 237 NLRB
177, 179 (1978); and Mars Sales & Equipment Co., 242 NLRB
1097, 1101 (1979). The Board stated that “although an em­
ployer has the right under NLRB v. Mackay Radio & Telegraph
Co., 304 U.S. 333 (1938), to permanently replace economic
strikers, this right does not extend to withholding from them the
right to return to their unoccupied jobs simply because they
have gone out on strike. A false statement that permanent re-
placements have been obtained accomplishes this unlawful
end.” American Linen Supply Co., 297 NLRB 137 (1989).
Here, inasmuch as no replacements had been hired at the
time the strikers were told that they had been permanently re-
placed, all the strikers were discharged by the letter of August
6. Noel Corp., supra.
Even apart from the above legal concept, it is clear that Re­
spondent discharged its drivers. Thus, as Respondent’s agent
Consultech stated in letters in response to the unemployment
claims of the drivers, they were “no longer employed for the
following reason: Insubordination—work stoppage due to
nonrecognition of promotion of union.”
B. The Alleged Failure to Reinstate Strikers Upon Their Un­
conditional Offer to Return to Work
The complaint further alleges that on August 9, Respondent
refused to reinstate the strikers when they made unconditional
offers to return to work.
It is undisputed that at least 11 strikers returned to Respon­
dent’s facility on Monday, August 9 and requested reinstate­
ment to their jobs. They made unconditional offers to return to
work, there being no evidence that any conditions were at­
tached to their request for reinstatement. There was no evi­
dence that the other two, Jeans and Ortiz, offered to return to
work. Rather, their names were added by McKim to the list of
those who requested reinstatement so that a complete list could
be established of those employees who were not reinstated or
who had not contacted Respondent. I find, with respect to
Jeans and Ortiz, that inasmuch as McKim has stated that they
6 The question of whether the replacements ultimately hired were
permanent or temporary will be addressed below.
were permanently replaced as of August 7, their offer to return
to work on August 9 would have been futile. I accordingly
place them in the same category as the 11 strikers who made
unconditional offers to return to work on August 9 and were
denied reinstatement. I also find that inasmuch as they had
been unlawfully discharged by the letter of August 6, they were
not required to make an offer to return to work. Abilities &
Goodwill, 241 NLRB 27 (1979).
McKim denied the strikers’ offers to return to work, saying
that work had already been assigned and the drivers had been
sent out. At the time of the request, no Labor Ready drivers
had actually begun work. They were scheduled to begin work
the following day, Tuesday. On Monday, the work was being
performed by former strikers who had been reinstated who had
begun work on Saturday, other Respondent drivers from its
other locations, and independent contractors from this facility
and other Respondent facilities.
In NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the
Supreme Court held that an employer having received an un­
conditional offer to return to work by economic strikers must
reinstate such strikers unless the employer can demonstrate a
“legitimate and substantial” business justification for refusing
to do so.
The hiring of temporary replacements does not excuse the
employer’s refusal to reinstate economic strikers who made an
unconditional offer to return to work. Zapex Corp., 235 NLRB
1237, 1240 (1978). The permanent replacement of economic
strikers is a substantial and legitimate business justification for
refusing to reinstate former strikers, but it is an affirmative
defense and the employer has the burden of proof on that issue.
Significant in meeting this burden is an adequate showing that
there was a mutual understanding between the respondent and
the replacements that the nature of their employment was per­
manent. Target Rock Corp., 324 NLRB 373 (1997).
It must first be noted that at the time of the offers to return to
work on August 9, no Labor Ready employees were employed
at Respondent’s facility. Only arrangements had been made
that they begin work the following day, Tuesday, August 10.
Accordingly, the positions of the returning strikers were effec­
tively vacant when they offered to return to work.
The only evidence that the Labor Ready replacements were
permanent was given by Wyatt, who asked the Labor Ready
manager for employees who would “remain at work” and not
work as “day laborers.” He asked that the same individuals be
sent to work each day. Wyatt, thus, did not state that the Labor
Ready drivers were intended by him to be permanent replace­
ments for the striking drivers. Nor was there any testimony by
Labor Ready drivers that they understood that their employ­
ment was permanent. Thus, on Respondent’s evidence there
has been no showing that a mutual understanding existed be-
tween itself and the employees that they were being hired on a
permanent basis. Harvey Mfg., 309 NLRB 465, 468 (1992).
Rather, the evidence shows that the replacements were tem­
porary. Labor Ready is an agency that supplies temporary help
to companies. Its services could be terminated on 1-day notice.
The fact that Labor Ready, and not Respondent, pays the work­
ers on a daily basis shows the temporary nature of their work.
Labor Ready manager Eusebio stated that Labor Ready was not
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked to provide drivers on a permanent basis. Its system
whereby the contracting company must designate each day
whether it wants the employee to return to work the following
day supports a finding that the workers are temporary. In addi­
tion, the records of the five Labor Ready drivers who began
work on August 10 show that only one worked continuously
thereafter. One other worked through mid-November, and the
other three worked only a few days. Their replacements
worked briefly and sporadically.
I accordingly find that Respondent has not met its burden of
proving that the Labor Ready drivers were permanent replace­
ments for the formerly striking employees.
Even assuming that the Labor Ready drivers were permanent
replacements, the strikers were entitled to full reinstatement on
the departure of the replacements. Laidlaw Corp., 171 NLRB
1366, 1370 (1968). However, none of the 13 employees were
reinstated after the initial Labor Ready hires left their jobs.
I have also considered whether Respondent had an additional
substantial and legitimate business justification for refusing to
reinstate the strikers. Wyatt testified that he seized on the op­
portunity presented by the strike to change the nature of the
workforce at Teterboro. Nearly all of Respondent’s other fa­
cilities were manned by independent contractors. Teterboro
utilized workers employed by Respondent only because Neu­
man insisted on that manner of service. When, during the
strike, Neuman gave Wyatt permission to operate as he saw fit
in order to make Neuman’s deliveries, Wyatt decided to sub-
contract the workforce to a third party, Labor Ready.
First, Wyatt was not entirely consistent in making this deci­
sion to subcontract. He immediately reinstated the striking
drivers who requested return on Friday night and Saturday fol­
lowing the end of the strike. However, he refused to reinstate
the drivers who offered to return to work on Monday after the
arrangements with Labor Ready had been made. Accordingly,
a definite decision to subcontract all the driver work had not
been made. The fact that only part of the driver work was sub-
contracted when it was Wyatt’s decision that all of it should be
handled by a third party undermines Respondent’s position that
its decision to subcontract represented a substantial and legiti­
mate business justification for refusing to reinstate the strikers.
In a similar case, Land Air Delivery, 286 NLRB 1131, 1132
(1987), the employees engaged in an economic strike and the
employer subcontracted all unit work after the strike began.
The Board found that the employer violated Section 8(a)(3) of
the Act by failing to reinstate the strikers on their unconditional
offers to return to work.7 The Board stated:
The Respondent urges that it was within its rights to perma­
nently replace the strikers by contracting out the bargaining
unit work without notice to or bargaining with the Union.
The flaw in the Respondent’s argument is that permanently
contracting out the work of unit employees is not equivalent
to replacement of one employee by another. With regard to
replacing the strikers, the Respondent had two options to as-
sure its continued operation: the Respondent had the right to
7 The Board also found that the employer violated Sec. 8(a)(5) of the
Act by permanently contracting out all unit work without prior notice to
the union and without affording it an opportunity to bargain.
hire permanent employee replacements, the strikers thereby
retaining reinstatement rights in accordance with Laidlaw
Corp., or the Respondent had the right to contract out the
work temporarily for the duration of the strike, in accordance
with American Cyanamid Co., 235 NLRB 1316 (1978). The
Respondent’s admitted course of action—unilateral perma­
nent subcontracting out of the work—is, absent proof that the
options set forth above were unavailable to it, not permissible
under the Act. . . . Refusing to afford the strikers their rein-
statement rights, in reliance on the unlawful contracting, fur­
ther violated the Act.
[Citations omitted.]
Here, Respondent undertook neither course of action. It did
not hire permanent replacements, and inasmuch as the strike
had ended Friday night with the removal of the picket lines and
the offers to return to work by the strikers on Friday, Saturday,
and Monday, it did not, and could not have contracted out the
work temporarily for the duration of the strike. At the time that
Labor Ready drivers became employed on Tuesday, Respon­
dent was aware that the strike was over.
It should be noted that Laidlaw establishes the reinstatement
rights of economic strikers pursuant to which they have an
immediate right to recall on the departure of permanent re-
placements. Even assuming that Labor Ready drivers were
permanent replacements, on their leaving their jobs they were
replaced by other Labor Ready drivers and not by the strikers
who had made offers to return on August 9. This circumstance
requires a finding that subcontracting, whereby the subcontrac­
tor replaces its workers with others from the subcontracting
company, deprives employees of their Section 7 right, under
Laidlaw, to reinstatement.
I further find that Respondent has not established a sufficient
and legitimate business justification for replacing the strikers.
If its intent was to provide service to Neuman, that would have
been accomplished by the employment of the strikers, follow­
ing the end of the strike and their unconditional offer to return
to work which was made even before Labor Ready’s drivers
became employed. Indeed, Wyatt stated that he preferred an
experienced work force to perform the work. If Respondent’s
intent was to change the nature of the work force it appears that
this has not been completely followed through inasmuch as
those drivers who requested reinstatement on Friday and Satur­
day were reinstated. Moreover, it appears, and I find, that those
who were not reinstated when they requested return on Monday
were refused reinstatement because they had not offered to
return to work prior to that time. In effect, Respondent refused
their offers because they engaged in Section 7 protected activ­
ity—engaging in a lawful economic strike. Under these cir­
cumstances I do not believe that Respondent’s use of a subcon­
tractor permitted it to deny economic strikers their right to rein-
statement on their unconditional offer to return to work.
C. Respondent’s Affirmative Defense
Respondent’s answer contained the affirmative defense that
the strikers were engaged in unprotected conduct. Its conten­
tion is that the strike was not for recognition but was in further­
ance of a jurisdictional dispute between Local 418 and other
unions.
CONSOLIDATED DELIVERY & LOGISTICS 535
Neuman Distributors, Inc., has a subsidiary known as Neu­
man Wholesale Delivery Service (NWDS). Local 418 has
represented drivers of NWDS for many years, and has repre­
sented the drivers and warehouse employees at the NWDS
location in Ridgefield, New Jersey.
In 1998, Neuman operated a Drug Guild distribution facility
in Secaucus, New Jersey, employing its own drivers who were
represented by Local 807. Local 815 represented the ware-
house employees at the Secaucus facility. In March 1998,
Neuman subcontracted the Drug Guild work to Respondent.
As a result the drivers, formerly represented by Local 807, were
laid off. Respondent then performed the driving function at the
Secaucus facility with its own drivers who were not represented
by any union.
Local 418 unsuccessfully attempted to organize the clerical
employees of NWDS at Ridgefield and another location.
In November 1998, Neuman consolidated three of its loca­
tions, including Secaucus, into a new facility in Teterboro, the
site of the instant dispute. The other consolidated facilities
included Glen Rock, where Local 478 represented warehouse
employees and Ridgefield, where Local 418 represented drivers
and warehouse employees.
At the Teterboro site, Neuman’s drivers and warehouse em­
ployees, formerly from Ridgefield, who were represented by
Local 418 worked alongside Respondent’s drivers who were
unrepresented and whose wages and benefits were lower than
Neuman’s employees.
In December and January 1999, Locals 418 and 815 advised
Neuman that they sought to represent all the employees at
Teterboro. Local 418 also apparently sought to have Neuman
terminate Respondent’s operations at Teterboro so that all
driver work would be performed by Neuman’s employees who
were represented by Local 418.
In January 1999, Local 418 filed a grievance challenging
Neuman’s use of Respondent as a subcontractor, and also filed
a charge against NWDS concerning the allegedly illegal sub-
contracting of work to Respondent. Local 418 sought to repre­
sent the drivers at Teterboro through such litigation. In March
1999, faced with several claims of representation, Neuman filed
RM and UC petitions with the Board. It also filed a CP charge
against Local 418 because it threatened to engage in area stan­
dards picketing with respect to its claim that clerical employees
were not receiving area standards wages.
Thereafter, Local 418 filed a petition with the International
Brotherhood of Teamsters in order to resolve the “jurisdictional
dispute” between the unions seeking to represent the Teterboro
employees. The subject of the dispute was the warehouse em­
ployees, who were, prior to the consolidation, represented by
Locals 418, 478, and 815. Ultimately, the International Union
awarded jurisdiction to Local 418. It is important to note that
the drivers at Teterboro, the subject of the instant matter, were
not at issue in the jurisdictional dispute.
Respondent argues that the strike occurred with an object of
forcing NWDS to terminate Respondent’s subcontract so that
all driver work would be performed with NWDS drivers who
are represented by Local 418. Respondent contends that the
strike was in violation of Section 8(b)(4)(D) of the Act, was
unprotected, and that such conduct permitted Respondent to
lawfully discharge the strikers. No 8(b)(4)(D) charge was filed
by Respondent.
In support of its claim, Respondent argues that the strike did
not have a recognitional purpose as demonstrated by the fact
that the Union did not file a petition to represent its drivers until
3 weeks after the picketing. In addition, Wyatt testified that he
learned from NWDS on August 6 that Local 418 was engaged
in a dispute with it and with other unions concerning jurisdic­
tion over the Teterboro employees. He was also told that
NWDS offered to terminate Respondent’s subcontract and pay
dues to Local 418 so that it would receive dues payment for the
period when it believed it should have been the representative
of Respondent’s drivers, and then following the termination of
the contract, have the operation run by NWDS whose drivers
would be represented by Local 418 pursuant to their existing
collective-bargaining agreement. According to Wyatt, Pas­
carella rejected that offer. Respondent argues that this shows
that the true purpose of the picketing was to force the ouster of
Respondent from the Teterboro facility.
That is not entirely clear. First, the amount of time taken to
file a petition is not necessarily indicative of the nature of the
picketing. When Wyatt suggested to Pascarella on October 6
that he utilize the Board’s election machinery he replied that he
was reluctant to do so because of the delays and possible in­
timidation of employees by Respondent.
Second, if the overriding purpose of Local 418 was to cause
the removal of Respondent from the Neuman facility, the Un­
ion would have immediately accepted the offer of NWDS to
terminate Respondent’s contract and receive retroactive dues
payments.
Moreover, McKim conceded that at the time of the picketing
on August 6 he was not aware of any other organizational drive
by any other union seeking representation of Respondent’s
drivers at Teterboro. He further stated that prior to August 6 he
was not aware of the jurisdictional dispute that Local 418 was
having with Local 815 over the Teterboro facility.
McKim testified that no strikers were told that they had en-
gaged in illegal conduct by picketing on October 6. The Gen­
eral Counsel and the Union argue that this is additional evi­
dence that they were not discharged because of any illegal ac­
tivity, but rather were discharged for striking. Respondent’s
reliance on Mackay Radio & Telegraph Co., 96 NLRB 740,
743 (1951), is misplaced. That case held that employees who
participated in an illegal, and not merely unprotected strike
which was unlawful from its inception, could be lawfully dis­
charged for such conduct. Respondent correctly notes that the
Board stated that in such a situation the strikers could lawfully
be denied reinstatement even though the respondent “may have
failed to assert the illegality of the strike as the basis for deny­
ing reinstatement . . .” However, the facts in Mackay and the
instant case are completely different. Mackay involved a strike
which was “unlawful from its inception.” Here, the Union
engaged in a lawful strike for recognition. Accordingly, the
strikers did not forfeit the protection of the Act by engaging in
a recognitional strike.
The evidence is clear that the strike was one to achieve rec­
ognition of the Union. Shortly before the strike, the employees
signed cards authorizing the Union to represent it and agreed
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that they would strike for recognition if recognition was re-
fused. After Respondent refused to recognize the Union the
employees struck. McKim and Wyatt testified that the strike
was for recognition of the Union. Respondent’s agent, Con­
sultech, defended the unemployment claims of strikers by stat­
ing shortly after the strike that “the claimant is no longer em­
ployed for the following reason: Insubordination—work stop-
page due to nonrecognition of promotion of union.”
I accordingly find that Respondent has not proved its af­
firmative defense.
CONCLUSIONS OF LAW
1. Consolidated Delivery & Logistics, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 418, a/w International Broth­
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging all its employees who engaged in a strike
on August 6, 1999, Respondent violated Sections 8(a)(3) and
(1) of the Act.
4. By failing and refusing to reinstate the following employ­
ees who unconditionally offered to return to their former posi­
tions of employment, Respondent violated Section 8(a)(3) and
(1) of the Act:
Jose Balazar Isaac Rosario
Fabian Guevera Jose Salinas
Juan Guzman Richard Silva
Richard Jeans Jose Torres
David Maldonado Philip Torres
Luis Ortiz Miguel Vega
Avelino Rodriguez
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
The Respondent, having discriminatorily discharged em­
ployees, it must offer them reinstatement and make them whole
for any loss of earnings and other benefits, computed on a quar­
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com­
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent unlawfully refused to re-
instate economic strikers immediately following their August 9
unconditional offer to return to work, it shall be ordered that
Respondent shall offer those employees immediate and full
reinstatement to the positions that they held at the time they
went on strike or, if those positions no longer exist, to substan­
tially equivalent positions, without prejudice to their seniority
and other rights and privileges. In order to make room for
them, the Respondent shall dismiss if necessary, any persons
hired in their place. Respondent shall be ordered to make
whole these employees for any loss of earnings and other bene­
fits they may have incurred by reason of the Respondent’s dis­
crimination against them, including backset from the time of
their application to return to work. Backpay, with interest, shall
be computed in the manner set forth above.
[Recommended Order omitted from publication.]