Standard Aggregate Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 3, 1974213 N.L.R.B. 154 (N.L.R.B. 1974) Copy Citation 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standard Aggregate Corp . and Local 445 , International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case 3-CA-5472 September 3, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 28, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified, and to adopt his recommended Order, as also modified. In its exceptions to the Decision of the Administra- tive Law Judge, Respondent contends that the Ad- ministrative Law Judge erred in finding that Mancini's November 1, 1973, statement to the picket- ing discriminatees was not a valid offer of reinstate- ment which would toll the award of backpay. We find no merit in this contention. To constitute a valid offer of reinstatement which would toll backpay, the com- munication must be specific, unequivocal, and uncon- ditional. See e .g., Information Control Corporation, 196 NLRB 504, 509 (1972); Controlled Alloy, Inc. and Har- lin Precision Sheet Metal Fabrication Co., Inc., 208 NLRB No. 140 (1974). See also The Masonic and East- ern Star Home of the District of Columbia, 206 NLRB No. 127 (1973). Whichever statement was made by Mancini (whether "you could go to work for me if you stop this crap" or "if you stop this nonsense, we could be working"), it did not constitute a valid offer of reinstatement because the statement lacked sufficient specificity to apprise the employees that Mancini was offering them unconditional and full reinstatement to their former or substantially equivalent positions. Al- though it appears from his recommended Order and "Appendix" that the Administrative Law Judge con- strued Mancini's condition for the employees' return- ing to work as referring only to the employees' abandoning of their picketing, we find that the state- ments could refer equally to their underlying protect- ed concerted and union activities. A fair reading of both Mancini's statements in the light of all of the facts, including Mancini's previous -refusal of the Union's request to reinstate the employees pending resolution of the underlying wage dispute, indicates that any reinstatement that might be forthcoming would only be upon the condition that the employees cease from engaging in those very protected concerted and union activities which had resulted in their un- lawful layoff. Reading Mancini's statements in this context, we also find, in agreement with the Administrative Law Judge, that these statements constituted an interfer- ence with employee rights protected by Section 7 of the Act, and hence violated Section 8(a)(1) of the Act.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Stan- dard Aggregate Corp., Marlboro and Middle Hope, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Delete paragraph 1(b) and substitute the follow- ing paragraph in lieu thereof: "(b) Telling employees engaged in unfair labor practice picketing that they could be working if they ceased engaging in protected concerted or union ac- tivities." 2. Substitute the attached notice for that recom- mended by the Administrative Law Judge. ' The 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Chairman Miller agrees that Mancini 's statements were insufficiently specific to constitute a valid offer of reinstatement , but, by the same token, would find that they were equally ambiguous and unspecific when consid- ered in an 8 (a)(1) context. In the absence of any reliable evidence which might serve to provide a clear indication of their meaning , he attaches no legal significance to the remarks and would find them to be neither an offer of reinstatement nor a violation of Sec . 8(a)(1). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give STANDARD AGGREGATE CORP. 155 evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT tell employees engaged in picket- ing to protest unfair labor practices that they could be working if they ceased engaging in pro- tected concerted or union activities. WE WILL NOT lay off, or otherwise discriminate against, employees because they act together for their mutual aid or protection or because they engage in union activity. WE WILL offer to William Smith and Ammie Parker immediate and full reinstatement to their former jobs or, if those jobs are no longer avail- able, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings with interest at 6 percent per annum. STANDARD AGGREGATE CORP. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Tele- phone 716-842-3100. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK , Administrative Law Judge : In this case two employees were laid off . The issues are whether (a) they were laid off and not reinstated thereafter because of union or concerted activity, and (b) their employer told them after their layoff that they would be working if they were not engaged in union activity . I find the layoffs and also the later statement were unfair labor practices. The case arises from charges filed November 2, 1973,1 by Local 445, International Brotherhood of Teamsters, Chauf- feurs , Warehousemen and Helpers of America (herein Union) against Standard Aggregate Corp. (herein Respon- dent). Based on these charges a complaint on behalf of the National Labor Relations Board (herein the Board) alleging that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (the Act). Respondent an- swered , admitting jurisdictional allegations and the layoff of the two employees in question, but denying failure to rein- state them and denying it had committed unfair labor prac- tices . It claimed that the layoffs resulted from economic set backs in the business . The issues were tried before me at Newburgh, New York, on February 5 and 25, 1974. Upon the entire record , my observation of the witnesses, and consideration of Respondent's brief , I make the follow- ing: FINDINGS OF FACTS 1. THE EMPLOYER INVOLVED Respondent is a New York corporation engaged at Marl- boro and Middle Hope, New York, in the extraction, pro- cessing, and distribution of sand , gravel , and related products . It annually sells and distributes such products valued at over $50,000 to other enterprises each of which annually either ships to or receives from directly outside the State of New York goods and materials valued at over $50,000 . Respondent is an employer engaged in commerce. At Marlboro , Respondent operates a leased gravel pit or bank from which it extracts and distributes unprocessed sand and gravel , and also top soil. Some customers for such materials obtain them from the Marlboro facility with their own trucks . To other customers Respondent delivers the materials, using its own trucks. In addition , Respondent's trucks deliver unprocessed sand and gravel from the Marl- boro pit to its wash plant in nearby Middle Hope where the material is washed and processed. At the Middle Hope facility, which is also leased by Re- spondent , it stockpiles both unprocessed sand and gravel for later washing in the plant as well as material already washed . At Middle Hope Respondent distributes processed sand and gravel to customers , some of whom pick it up in their own trucks , and others to whom Respondent delivers. Water for the Middle Hope washing process is obtained from a nearby pond . Respondent's water rights , however, are junior to those of an adjacent cold storage plant operat- ed by Middle Hope Cold Storage. From time to time during extended dry spells water requirements of the cold storage plant have restricted the use of water by the wash plant resulting in its temporary shutdown. Respondent is run by general manager John Mancini, its All dates herein are in 1973 unless otherwise noted. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agent and a supervisor . The number of employees varies from 6 to 10 and includes both equipment operators and truckdrivers. 11. THE LABOR ORGANIZATION INVOLVED The Union is an organization which admits to member- ship employees of various employers, including employees of Respondent , and which represents employees in collec- tive bargaining. Prior to the events involved in this case the Union and Respondent had been parties to a 3 -year collective -bargain- ing agreement expiring in June 1972 at a time when Respon- dent, for reasons not related to the present matter , was not actively operating . Thereafter Respondent resumed opera- tions and on or about October 5 , 1973, entered into another collective-bargaining agreement with the Union for a period ending June 30, 1975 . Although this agreement is in evi- dence , its validity is not directly in issue . The General Coun- sel agrees with Respondent that it is not engaged primarily in the building and construction industry so as to legitimize a prehire agreement between it and the Union . Accordingly, the General Counsel omitted from the complaint allegations based on union charges that Respondent violated Section 8(a)(5) of the Act by refusing to adhere to the terms of a negotiated contract. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Precontract Discussions Between the Union and Respon- dent In early summer 1973, following a 12- to 13-month period of inactivity , Respondent resumed operations . At that time Tamarack Construction Company commenced a public utilities job along the highway opposite Respondent 's Marl- boro facility . Tamarack arranged with Respondent to han- dle the subcontracting of trucking needed for the project. Some nonunion drivers were used on the job . Learning of this, union business agent Raymond Ebert , during a meet- ing on the job with a representative of Tamarack and Respondent's general manager Mancini , objected to the presence of the nonunion drivers . Tamarack then ordered a union driver through the union hall and signed a collec- tive-bargaining agreement with the Union . At that time Respondent did not execute an agreement with the Union. But during the summer Ebert had a number of discussions with Mancini in which he inquired as to the progress Manci- ni was making in getting back into business. In late September , William Smith , one of the two alleged discriminatees in this matter , was employed as a truckdriver by Bilotta Construction Company. In the course of his du- ties he picked up sand and gravel for his employer at Respondent 's gravel pit in Marlboro. On one such occasion Mancini offered to employ him as a truckdriver . Smith re- sponded that he obtained all of his work through the Union. Shortly thereafter , during one of his talks with Ebert, Man- cini stated that he would like to go union and that he wanted to hire Smith who had been going into his yard in the course of his work with Bilotta . Mancini asked Ebert whether, if he signed a union contract, he could have Smith as one of his drivers . Ebert indicated he (Ebert) would have to talk with Smith about it because Smith was then employed and mak- ing more money than he could make working for Respon- dent under the standard supply yard collective -bargaining agreement . On the following Friday , October 3 , Ebert spoke with Smith and obtained his consent to employment with Respondent provided Reponsdent signed the Union's col- lective-bargaining agreement . Ebert suggested to Smith that although the pay would be less, the work would be steady. The next day Mancini again saw Smith along the highway and again asked him to work for Respondent . Smith replied, as he had earlier , that he got all his work through the Union. B. Hiring of Smith and Execution of Collective- Bargaining Agreement On Saturday , October 6 , Ebert again met with Mancini. In the course of their conversation Ebert agreed to refer Smith to Respondent , to commence work on the next work- ing day, Tuesday , October 9 . Smith was to be Respondent's number one driver and union steward . Mancini signed the Union's collective -bargaining agreement . I find the agree- ment to employ Smith and the execution of the collective- bargaining agreement were conditioned on each other. Mancini then asked Ebert to refer four additional men for a job on Tuesday. Ebert agreed. At no time prior to his employment with Respondent had Smith discussed with Mancini his rate of pay. But it was understood between Mancini and Ebert that Smith was to be the union steward which would entitle him to a higher rate of , pay. Ebert did in fact appoint Smith as union stew- ard. The contract provides that the steward shall receive 50 cents per hour more than the highest rate listed in the con- tract . During his testimony, Ebert admitted that Mancini may have misunderstood what was called for in the contract because it was not clarified in their discussions . When Man- cini learned that Smith was to be the steward , he had asked whether a steward still received 50 cents more than the rate. Ebert replied in the affirmative but did not point out that this was 50 cents higher than the highest rate listed in the contract, nor did Mancini specifically ask that question. At a later time Mancini took the position that the steward's rate was 50 cents more than the rate of pay listed for the vehicle the steward was operating. C. Respondent's Employment of Union Drivers On the morning of Tuesday, October 9, Smith and four extra drivers referred by the Union reported to work for Respondent. In his capacity as union steward , Smith dis- cussed with Mancini the applicable rates of pay for the drivers . There was no problem concerning the rates to be paid the four extra drivers . When Smith explained that his own rate was 50 cents per hour over the highest rate in the contract , Mancini stated that that was not the way he under- stood it. Mancini asserted that Smith's rate was 50 cents over the contract rate for the vehicle to be operated by Smith. He said he would call Ebert and straighten it out. At the end of the day Mancini laid off the four extra drivers. On Friday, October 12, Smith received his first paycheck. The amount was less than called for in the collective-bar- STANDARD AGGREGATE CORP. 157 gaining agreement . Also no overtime pay was included. On Monday , October 15, Smith pointed out these discrepancies to Mancini whose reaction was that he had been unable to reach Ebert in order to straighten out their misunderstand- ing of the pay rate. He did, however, agree to pay Smith the omitted overtime . In addition Smith claimed holiday pay for October 8, the day before he reported for work. Mancini categorically refused to pay him for the holiday. In the meantime , pursuant to a request by Mancini on October 12, the Union referred another driver, Ammie Par- ker, who reported for work on the morning of October 15. On October 19, the Friday of that week, the paychecks of both Smith and Parker were both short in that they were computed at a rate of pay slightly less than set out in the contract . They jointly protested to Mancini who again said he would clear it up with Ebert who, according to him, he had been unable to reach . Parker told Mancini that his rate was wrong . Mancini asked him what it was supposed to be and Parker said $6.46 per hour. In fact his check had been figured on the basis of $6.43 per hour. Mancini explained that he had gotten the rate out of the book , meaning the printed form of the contract. Smith then asked him to show them the rate in the book . Mancini did not do so. Instead he said not to worry, that he would take care of it. He thus seemed to accede to their claim that Parker be paid $6.46 per hour. I find that Smith and Parker acted concertedly in discussing the matter with Mancini. Smith and Parker both worked through the following Wednesday, October 24. During the period of their re- spective employment they each worked full time. About half of their work was hauling from the pit in Marlboro to the wash plant in Middle Hope and the other half hauling to customers . Even though they worked full time the wash plant did not operate continuously. In his testimony Smith pointed out that the presence of stockpiled material at the wash plant made continuous operation unnecessary. D. The Layoff of Smith and Parker 1. The reasons stated at the time of layoff Normal quitting time for Respondent's drivers was 3:30 in the afternoon . On October 24 as Smith and Parker drove their trucks into the wash plant to dump gravel from the pit in Marlboro , Mancini came out of the office with their paychecks . Shortly before he had remarked to James Cu- trone , the landlord from whom Respondent rents the gravel pit, that there was a water shortage and he was going to have to lay some employees off. When Mancini emerged from the office he went to Smith, who was first in the yard , and handing him his check , stated that he was laying him off. Smith asked what was the matter. Mancini replied to the effect that he could no longer work union or that he could not afford to work union . About then Parker drove in to dump his load . Mancini and Smith walked over to Parker 's truck where Mancini gave Parker his check. Parker asked what was going on. Mancini told him the same thing he had told Smith ; according to the testimony of Parker, "He said , I'm going to have to lay you off. We can't afford to work unions . We've got a few things we've got to straighten up." Parker asked him about the additional money that was owed him as he had claimed the week before. Mancini reached in his pocket and paid the difference immediately thereby settling that difference be- tween them . Mancini gave no indication of the duration of layoff. He said nothing about a shortage of water or about any other business reason requiring a layoff. Smith then asked Mancini if he had discussed the matter with the Union . Mancini said no. Smith then said , "Well, I better go call the hall ." Mancini refused him the use of the office phone saying he did not do business with the hall. Smith and Parker went down the road to a public phone booth where Smith called Ebert and reported the layoff. According to Ebert he asked Smith, "Why did he tell you he laid you off?" And Smith replied that Mancini said he laid them off because he could not afford to work union. In testifying Mancini denied that he told Smith and Par- ker that he could not work with the Union or with union men. According to him he intended the layoff to be of short duration, until the next Monday or Tuesday. He admitted that he had never told Ebert of any economic reasons for the layoff. But he testified that at the time that he laid Smith and Parker off he told them that Respondent was having a problem with water for the wash plant, that the Tamarack job, which was a significant source of work, had closed down the day before, and that he had no need for trucks. He also testified he told them they would be off a few days, a week or 10 days at the most. I do not credit Mancini's testimony that he gave Smith and Parker these reasons for layoff. His testimony is not clear . The testimonies of Smith and Parker corroborate each other and are further corrobo- rated by that of Ebert to the effect that immediately follow- ing the layoff they reported to him that the reason Mancini gave for layoff was that he could not afford to work union. 2. The economic defenses Respondent argues that the reasons for the layoff were economic. Putting aside for the moment what was said to Smith and Parker at the time , certain other evidence bears on the question of whether economic reasons existed. Man- cini testified that the reason that he laid them off was that there was no work . According to him two important income producing jobs, the Tamarack construction job and the Central Hudson Pike job, closed down the day before. Spe- cific evidence relating to the importance of these jobs to Respondent's business does not appear in the record. In addition Mancini testified that the wash plant at Middle Hope shut down at the time of the layoff because of lack of water and that it remained out of operation until Novem- ber 27. The owner-lessor of the wash plant, Joseph Peller, testi- fied that shortage of water had been a continuing problem throughout the summer and autumn and that the plant had shut down whenever the water got low. According to him it was shut down for that reason for a period of 2 to 3 weeks prior to Thanksgiving. I find there was a continuing problem with the water supply needed to run the wash plant. It was not, however, necessary for the wash plant to operate continuously in order that Respondent remain in business or be able to use truckdrivers. As noted earlier, Respondent's materials and 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products were stockpiled and as a matter of practice over an extended period of time the wash plant had operated only intermittently . This was the situation when both Smith and Parker were hired. The testimony of Peller indicates , and I find , that the water shortage became more serious in the autumn and resulted in an extended shut down for a 2 to 3 weeks period prior to Thanksgiving. The testimony of Mancini indicates that this extended shut down was in effect as early as Octo- ber 24 when he laid Smith and Parker off . But I do not consider him a reliable witness and no other probative evi- dence was offered to substantiate his contention that the extended shut down began that early. In fact Peller 's testi- mony is inconsistent with Mancini in that at the earliest it began 3 weeks prior to Thanksgiving which would have placed it 2 weeks after the layoffs in question. Moreover , at the time of the layoffs the shut down of the wash plant , even if already in existence , did not bulk as an important factor . By his own admission Mancini intended the layoffs to be of short duration, until the following Tues- day or Wednesday. According to the credited testimony of Smith and Parker , he did not even mention the shut down of the wash plant as a reason for the layoff. And as pointed out later herein , Respondent continued to operate and em- ployed other drivers to operate the same equipment that Smith and Parker had operated. In sum, I find that a preponderance of the evidence does not establish that Mancini was motivated solely by econom- ic considerations in his layoff of Smith and Parker. On the contrary, I find that the statements he made to them at the time indicate more accurately his true motivation ; namely, that he had determined that it was too costly to operate in accordance with the condition insisted on by the Union and by Smith and Parker. E. The First Picketing Following the Layoff When Smith and Parker called Ebert after the layoff on October 24 he directed them to appear at Respondent's entrance the following morning to advise incoming truck- drivers what had happened . They did so beginning about 7:45 a.m. Although no picket signs were used , they patrolled and discussed the problem with other employees and driv- ers. In effect they established a picket line. At or about 8:30 a .m. Mancini telephoned Ebert and arranged a meeting with him for later in the day. He asked that the pickets be removed and Ebert agreed . Shortly after calling Ebert, Mancini approached Smith and Parker on the picket line, and asked why they were still there , asserting that they were supposed to leave . He told Smith to call Ebert. Smith did about 10 a.m. and received instructions to leave pending the results of the meeting between Ebert and Mancini. F. The Meeting at Falanga Construction Ebert and Mancini did not meet as planned on the af- ternoon of October 25. They did, however, meet on the afternoon of Monday, October 29 in the office of Falanga Construction Company . Mancini complained to Ebert that the shop steward , Smith , was giving him a hard time about the wage rates . This of course , was one of the items that Smith and Parker had concertedly protested about to him 10 days earlier . He also complained to Ebert that Smith and Parker were not going fast enough . On the witness stand, however , he testified that they were the best drivers he had had. He did not mention to Ebert any water shortage prob- lem or assert that or other economic considerations as a reason for the layoff . He stated to Ebert his view that Smith was only entitled to 50 cents per hour over the rate for the truck which he was operating . Ebert explained to him that the steward 's rate was 50 cents over the highest rate in the agreement . Mancini asserted that he had understood the terms differently and he asked Ebert to modify them. Ebert refused . Instead he proposed that Smith and Parker be re- turned to work pending a resolution of the dispute . Mancini rejected this , saying that he had put the matter in the hands of his lawyer. Shortly after the meeting broke up and Mancini had left, Ebert contacted him by phone to advise that pickets would be at Respondent's premises the next morning. G. The Later Picketing The next morning, Tuesday, October 30, Smith and Par- ker assisted by other members of the Union, resumed their picketing of Respondent's premises , this time with picket signs . The signs protested unfair labor practices by Respon- dent against the Union . This picketing continued through December 14. Based on the credited testimony of Smith and Parker I find that during this period of picketing Respondent em- ployed truckdrivers for trucking work, including supplying its wash plant with material from the gravel pit. According to Mancini's own testimony, his diary shows that he em- ployed two replacement drivers beginning Friday, Novem- ber 2. Payroll records for the week ending November 7, which includes the week following the resumption of the picketing, one of the replacements worked 40 hours and the other 52 hours . The next week the same drivers worked 35 hours and 44 hours, respectively. The record shows that at various times during the picketing Respondent employed at least two and sometimes more replacement drivers. Al- though some of the work performed by these replacements appears to have been mechanical work , substantial amounts was driving work which Smith and Parker clearly could have performed had they been reinstated . The record is silent as to whether Smith and Parker could have performed mechanical work . During part of this period Respondent's records show that even when its wash plant was not operat- ing Respondent was performing some trucking work for which Smith and Parker qualified. After the picketing ceased on December 14 the same situation continued , that is, some driving work for which Smith and Parker were qualified was performed by other drivers hired by Respondent. STANDARD AGGREGATE CORP. 159 H. Mancini 's November 1 Statement The complaint alleges, and the answer denies, that on November 1 Mancini told Respondent's employees they would still be working if they had not engaged in union or protected activities. On November 1, Smith and Parker were picketing in front of Respondent's premises. According to Mancini's own testimony he came out and, "I told them they could go to work for me if they stop this crap." He testified that by this he meant if they would stop the strike. At another point he testified, "Well, I told Smitty and I told Parker, both, if they would stop this nonsense we could be working. Those were my words." According to him, "They said that they had their Union and their obligations and that was it." I. Discussion As already found, when Mancini laid off Smith and Par- ker on October 24, the only motive he indicated was that he considered union conditions too expensive. Apart from any other business considerations which existed at the time, Mancini must be taken at his word in this. A layoff for such a reason is discriminatory, discourages membership in the Union and violates Section 8(a)(3) of the Act. Respondent argues that a showing of animus toward con- certed activity or the Union is necessary to a finding of an unlawful discharge. There is no evidence of animus in this record. But the presence or absence of animus is merely one factor in evaluating motive and evidence of its presence is not essential if other evidence establishes Respondent's mo- tive. Crandall-Hicks of Wellesley, Inc., 185 NLRB 55, 59. Here Mancini's motive is indicated by other evidence. The sequence of events, including Mancini's complaint to Ebert on October 29 about being given a hard time by the job steward, show that Smith and Parker's concerted activi- ty in protesting what they considered their pay shortages played a significant part in his decision to lay them off. This finding is supported by the evidence that he refused Ebert's offer that they return to work pending settlement of the pay question and by the employment of replacements. Layoff for such a reason violates Section 8(a)(1) of the Act. See N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 498- 500 (C.A. 2, 1967). I make no finding as to the validity of the current collec- tive-bargaining agreement because that question is not ma- terial to a disposition of the case. Assuming, arguendo, that the contract could not be a proper predicate for finding a refusal-to-bargain unfair labor practice under Section 8(a)(5) of the Act, the law does not preclude employees from concertedly protesting pay shortages or asserting the validi- ty of contract provisions. Error on their part as to the validi- ty of the agreement does not license employer discrimination against them for taking that position. Whether in protesting to Mancini they were engaged in either concerted activity or in union activity, he was not at liberty to punish them for such conduct. Dakota Electric Association, 201 NLRB 302. A preponderance of the evidence does not support Respondent's contention that it had an economic basis for the layoff. In the first place, as already found, such reasons were not given at the time of layoff. Further, at no time thereafter did Respondent inform either the employees who were laid off or their union representative that business considerations motivated the layoff. Specifically, no men- tion was made of a water shortage, which was asserted at the hearing as a reason requiring the layoff, nor was any mention made of the loss of outside business. Respondent has, therefore, failed to establish that other considerations were behind the layoff. In any case, even if certain condi- tions existed which might have justified a reduction in force, such as reduced operation of the wash plant resulting from a water shortage, or a reduction in the amount of outside business, the evidence shows that after the layoff Respon- dent had a continuing need for truckdrivers as show by evidence that it employed replacements. It is immaterial that at times the replacements may not have worked full time as drivers. To the extent that driving work was avail- able, it clearly could have been performed by Smith and Parker. Mancini testified that he intended their layoff to be of short duration but that they continued with their picketing. However, when he met with Ebert on October 29, they had stopped picketing. Ebert proposed that they return to work pending resolution of the disagreement and Mancini flatly refused. Thus, it is clear that he did not want them to return to work. In any case, the initial question is why he laid them off. They did not commence their protest by striking or picketing. Their picketing on October 25 was a reaction to, and in protest of, their layoff. Picketing on October 25 lasted only about 2 hours, when it ceased by mutual agree- ment of the employer and the Union. The next Monday, October 29, Mancini refused their offer, made through Ebert, to return to work pending resolution of the dispute. He thus reaffirmed the continuation of their layoff status. In these circumstances they cannot be blamed for resuming picketing in protest of their layoff. It can be argued that one purpose of the picketing was to force continued employer adherence to the contract. I make no finding in this regard because it is clear that the employer was the aggressor in the controversy by precipitating the layoff which in turn triggered the picketing. On November 1 Mancini made an effort to put the shoe on the other foot by, in effect, offering them reinstatement. But in the circumstances it was an offer which contemplated abandonment of their protest of his unfair labor practice. He made no effort to assure them that the violation of their Section 7 rights would be remedied or that their rights would be protected in the future. His message was that they could have their jobs back if they gave up their statutory rights to do what they were doing. Such an offer not only was not a bona fide offer of reinstatement, but was an interference with the exercise of their Section 7 rights con- trary to Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2), engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent's general manager, John Mancini, is an agent of Respondent and a supervisor within the meaning of Section 2(11) of the Act. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. By laying off William Smith and Ammie Parker on October 24, and not thereafter reinstating them, because they engaged in protected concerted activity and union ac- tivity, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By on November 1 telling William Smith and Ammie Parker that they could be working if they abandoned their picketing, which they were then engaged in to protest unfair labor practices, Respondent committed a further unfair la- bor practice within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend Respondent be ordered to offer William Smith and Ammie Parker immediate and full rein- statement to their former jobs, or, if those jobs are not available, to substantially equivalent positions, and that each be made whole for loss of earnings suffered by reason of his layoff by paying him a sum of money equal to that which he would have earned in wages from October 24, 1973, the date of layoff, to the date Respondent offers him reinstatement, less his net earnings during such period, to be computed in the manner set forth in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1963). I also recommend that Respondent preserve and make available to Board agents, upon request, all pertinent records and data neces- sary in analyzing and determining whatever backpay may be due. I further recommend that Respondent post appro- priate notices at its premises at both Marlboro and Middle Hope, New York. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERI Respondent, its officers, agents, succesors, and as- signs, shall: 1. Cease and desist from: (a) Laying off, or otherwise discriminating against, employees because they engaged in protected con- certed activity or in union activity. (b) Telling employees engaged in unfair labor practice picketing that they could be working if they abandon their protest of the unfair labor practices committed against them. (c) In any like or related manner restraining or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Offer to William Smith and Ammie Parker im- mediate and full reinstatement to their former jobs, or if those jobs are no longer available, to substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make each whole for any loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all records necessary to ana- lyze the amount of backpay due William Smith and Ammie Parker under the terms hereof. (c) Post at its premises in both Marlboro and Mid- dle Hope, New York, copies of the attached notice marked "Appendix." 3 Copies of said notices, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be 2 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. 3 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." STANDARD AGGREGATE CORP. 161 taken by Respondent to insure that said notices are writing, within 20 days from the date of the receipt of not altered, defaced, or covered by any other material. this Order, what steps Respondent has taken to com- (d) Notify the Regional Director for Region 3, in ply herewith. Copy with citationCopy as parenthetical citation