Rapid Armored Truck Corp.

National Labor Relations Board - Board Decisions

Sep 9, 1986

281 N.L.R.B. 371 (N.L.R.B. 1986)

RAPID ARMORED TRUCK CORP.
Rapid Armored Truck Corp. and Truck Drivers
Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and James McGuire. Cases 29-CA-
7883, 29-CA-7950, and 29-CA-8170
9 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 15 June 1982 Administrative Law Judge
Steven Davis issued the attached decision. The
General Counsel and Charging Party Teamsters
Local 807 filed exceptions and supporting briefs.
The Respondent filed cross-exceptions and a
brief in support of its cross-exceptions and in
answer to the exceptions filed by the General
Counsel and Teamsters Local 807.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' In agreeing with the judge's dismissal of the complaint , we note that
under the Board 's decision in Wells Fargo Corp., 270 NLRB 787 (1984),
afi'd. 755 F.2d 5 (2d Cir. 1985), cert. denied 120 LRRM 2728 , 102 LC ¶
11,365 (1985), which issued after the judge 's decision, the Respondent, on
expiration of its contract with Teamsters Local 820, was under no legal
obligation to continue recognizing or to bargain with that labor organiza-
tion or its alleged successor, Teamsters Local 807, since they are ineligi-
ble for certification under Sec. 9(bX3) of the Act because of their policy
of admitting both guard and nonguard employees to membership. Thus,
by engaging in a strike to compel the Respondent to recognize and bar-
gain with Teamsters Local 807, which under Wells Fargo the Respondent
could lawfully refrain from doing , the employees of the Respondent en-
gaged in unprotected conduct . Further, as found by the judge , the em-
ployees engaged in conduct prohibited by Sec. 8 (b)(7)(C) when they
picketed to achieve that objective . For these reasons , we find that the
Respondent did not violate Sec. 8(a)(3) and (1) of the Act by refusing to
reinstate or by discharging its striking employees who engaged in the un-
lawful picketing , and further find, in agreement with the judge , that the
Respondent did not , in any other respect, violate the Act.
Bernard Holmes and Stephens Nagrotsky, Esgs., for the
General Counsel.
Howard L Mann, Esq. (Schwartzman, Weinstock Garelik
& Mann, PC), of New York, New York, for the Re-
spondent.
J. Warren Mangan, Esq. (O'Connor & Mangan, P.O), of
Long Island City, New York, for the Charging Party.
DECISION
371
STATEMENT OF THE CASE
STEvEN DAvis, Administrative Law Judge. This case
was tried before me in Brooklyn, New York , on August
24 and 25, September 18, and October 23, 1981.
On March 26, 1980, Truck Drivers Local 807, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehou-
semen and Helpers of America (Local 807) filed a charge
in Case 29-CA-7883 , and on April 21 , 1980, James
McGuire filed a charge in Case 29-CA-7950. Based on
both charges, a consolidated complaint was issued by
Region 29 of the National Labor Relations Board on
June 30, 1980.
On July 24, 1980, James McGuire filed a charge in
Case 29-CA-8170.
On August 29, 1980 , a first amended complaint was
issued by Region 29 in Cases 29-CA-7883, 29-CA-7950,
and 29-CA-8170, alleging violations of Section 8(a)(1)
and (3) of the Act. Specifically , the complaint alleges
that Rapid Armored Truck Corp . (Respondent) violated
Section 8(a)(1) of the Act by threatening its employees
with discharge and other reprisals if they became or re-
mained members of Local 807. The complaint further al-
leges that Respondent violated Section 8(a)(1) and (3) of
the Act by discharging all its truckdriver employees who
participated in a strike, by failing and refusing to rehire
or reinstate certain striking employees, and by condition-
ing the payment of accrued vacation pay to its striking
employees on their resignation as employees because its
employees joined Local 807 and gave assistance and sup-
port to it, and because its employees participated in a
strike.
On the entire record , including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by Respondent and Local 807 , I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its prin-
cipal office and place of business at 254 Scholes Street,
Brooklyn, New York, is engaged in the operation of an
armored car truck company, specifically, the transport-
ing of money, valuables, and checks for customers and
performing related services . Respondent annually per-
forms services valued in excess of $50,000 for various en-
terprises located outside New York State , and also per-
forms services valued in excess of $50,000 for various en-
terprises located in New York State, each of which en-
terprises annually receives goods and materials valued in
excess of $50,000, which are shipped to them directly
from locations outside New York State . Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The complaints allege that Local 807 is and has been
at all times material a labor organization within the
281 NLRB No. 57
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(5) of the Act. Respondent's an-
swers deny that allegation, but at the hearing Respond-
ent's counsel states that he concedes that Local 807 is a
labor organization "in the abstract" but is not such with
respect to Respondent or its employees.
Joseph Votta, the recording secretary of Local 807,
testified that the functions of Local 807 are to negotiate
contracts with employers for the benefit of employees,
and employs business agents who represent employees.
Such employees participate in Local 807 by paying dues
and by attending quarterly meetings.
I therefore find and conclude that Local 807 is a labor
organization within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The business of Respondent and its labor
relations history
Respondent was founded by Jacques Vanderkieft, its
president, and began operating in 1968 or 1969. Respond-
ent operates as an armored truck company . It picks up
deposits from its customers , stores the deposits in its
vaults overnight , and takes the deposits to banks the fol-
lowing day . Respondent also picks up and processes
money from the Federal Reserve Bank , and delivers
such money to check cashing stores.
The three classifications of employees involved here
who ride in the truck consist of the chauffeur, who
drives the armored truck, the custodian, who keeps
records of the stops made by the truck, and the guard,
who rides in the back of the truck and guards the
money.
The employees of Respondent were not represented
by any labor organization until 1973 when Respondent
recognized Armored Car Chauffeurs & Guards Local
820, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Local 820). Re-
spondent 's president , Vanderkieft , sought out Local 820
in 1973 because he believed that a contract with that
union was a prerequisite for obtaining a contract to per-
form work for the New York City Off-Track Betting
Corporation (OTB). Accordingly, Respondent entered
into a contract with Local 820.1 Thereafter Respondent
bid on and was awarded the OTB contract, which it
held until February 1979. It lost the OTB contract to an
armored truck company that did not have an agreement
with Local 820.
Respondent and Local 820 were parties to a collective-
bargaining agreement , which ran from March 11, 1974,
to March 13, 1977. On the expiration of that contract the
parties entered into two interim agreements dated March
13 and May 11, 1977. They provide essentially for cer-
tain terms and conditions of employment of Respondent's
employees and further provide that on agreement by
i This occurred apparently without Local 820 representing an un-
coerced majority of Respondent 's employees . Vanderkieft testified that
he suggested to employees that they join Local 820 and they did so
Local 820 and the other employer industry members' to
a new contract, Respondent agrees to become a party to
that agreement as of its effective date , except that any
provisions relating to retroactivity shall not apply to Re-
spondent.
As set forth above, in late February 1979,3 Respond-
ent lost the OTB contract. In March a meeting of Re-
spondent's officials and employees was called by John
Barone, chairman of the board of Respondent . Barone
told the assembled employees that the OTB contract was
lost, that he did not want "any part" of them, that Re-
spondent is out of business, and that Local 820 did not
help Respondent retain the OTB contract. Later, Barone
said that he forgave the employees.4
On February 16 the attorney for Local 820 sent to Re-
spondent, apparently for execution , a copy of a collec-
tive-bargaining contract . On March 1 counsel for Local
820 sent a letter to Respondent advising it that the con-
tract previously forwarded to it had not been signed, and
that it was delinquent in certain contributions to that
Union's funds. On March 5 counsel for Respondent re-
plied , and referring to the May 11, 1977 interim agree-
ment stated that Respondent would not sign the collec-
tive-bargaining agreement unless the other industry em-
ployers sign it.
On March 30 counsel for Local 820 advised counsel
for Respondent that Brinks , Wells Fargo, and Purolator
executed the agreement on March 20 . Respondent re-
fused to sign the agreement purportedly because of the
alleged refusal of Local 820 to incorporate into that
agreement the terms of the interim agreements. 5
On May 25 Local 820 filed an 8(a)(5) charge6 against
Respondent which alleges that it refused to bargain with
that union by refusing to sign the collective-bargaining
agreement . On June 18 the Regional Director for Region
29 dismissed the charge on the grounds that inasmuch as
the unit employees consist of armored truck employees
who are guards, and the Board has held that Section
9(b)(3) of the Act provides that no labor organization
shall be certified as the representative of employees in a
bargaining unit of guards , if such organization admits to
membership, or is affiliated, directly or indirectly, with
an organization which admits to membership , employees
other than guards, the Board will not find an employer
guilty of Section 8(a)(5) of the Act when it refuses to
bargain with a union which represents nonguards, or is
directly or indirectly affiliated with such a union.
On June 14 Locals 807 and 820 were advised by the
general secretary-treasurer of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America that Local 820 was merged into
2 Brink's Incorporated , Purolator Corp, and Wells Fargo Armored
Service Corp
8 All dates hereafter are in 1979 unless otherwise stated
4 This according to the credited testimony of employees Richard Di-
Paolo and John Mulcahy Barone did not testify William Staderman, the
executive vice president of Respondent , did not recall Barone saying any-
thing about closing the business but did state that at the meeting Barone
urged the employees to do a better job
S The specific items that Respondent claimed should have been includ-
ed in the contract were not expressly stated at the hearing
6 Case 29-CA-7222
RAPID ARMORED TRUCK CORP.
Local 807,7 Local 820 thereafter ceased to exist, and
Local 807 was authorized to establish an armored car di-
vision to represent the employees formerly represented
by Local 820 and to act as the successor to Local 820
with respect to collective -bargaining agreements.
On July 17 an 8(b)(1XA) charge was fileds against
Local 807 which alleges that Local 807 improperly as-
sumed the obligations of Local 820, ordered employees
to become members of Local 807 , and demanded that the
employers recognize it as the representative of the em-
ployees, instead of Local 820. On August 30 an 8(a)(1),
(2), and (3) charge was filed by Hall against Respondent
which alleged that since May 2 Respondent refused to
recognize Local 820, and has instead unlawfully recog-
nized Local 807. Both charges were later withdrawn.
Subsequent to the merger of Local 820 into Local 807,
Respondent was requested to recognize Local 807 and to
sign the collective-bargaining agreement . Respondent re-
fused to do so because Local 807 had not been certified
by the Board and because , due to the unfair labor prac-
tice charges filed by Local 807 and Hall, it could not de-
termine whether it could properly deal with Local 807
or Local 820.9
Thereafter, employee James McGuire filed an 8(a)(1),
(3), and (5) charge against Respondent , which alleges
that it unlawfully refused to recognize and bargain with
Local 807. The Regional Director dismissed the charge
on April 20, 1981 , stating that there is
... at least some doubt as to whether Local 807 is
the lawful successor to Local 820 , essentially be-
cause there did not appear to have been continuity
in the leadership and representation of Respondents'
employees . The only two officers of Local 820 who
were involved in an official capacity with Local 807
are business agents who were not responsible for
the affairs of former members of Local 820. Fur-
thermore , during the period between the action of
the General Executive Board and the manifestations
of consent of the employees in October, 1979 and
January, 1980, the former members of Local 820,
acting through the "Committee for the Preservation
of Local 820," actively sought to block the effec-
tiveness of the merger . Finally, although there were
manifestations of employee consent in October,
1979, and January , 1980, it was noted that, prior
thereto, Local 807 presented the employees with a
fait accompli, i.e. that the merger had been accom-
plished . At that point, the employees were faced
with a choice of a possible contract through Local
807 and no representation or contract at all. In
these circumstances, the fact that they opted for the
former does not necessarily mean that they were
7 The reasons for the merger were Local 820's insolvency , the garnish-
ment of dues by Brinks to satisfy a judgment for an illegal strike , and its
inability to pay its employees or per capita taxes to International union
representatives.
s The charge was filed by Burton Hall, an attorney , who represented
certain employees in the armored car industry.
9 About this period of time , William O 'Keefe, a Local 820 representa-
tive who became employed by Local 807 after the merger, presented the
contract to Respondent for execution . O'Keefe was told by Jacques Van-
derkieft, Respondent's president, that it was going out of business.
373
content with the merger. Given the lack of leader-
ship continuity, the presence of contemporaneous
expressions of employee dissent to the merger, and
the doubt about the sentiment of the employees,
there is at least some doubt as to whether Local 807
is the lawful successor to Local 820.
2. Supervisory status
The General Counsel alleges, and the Respondent
denies, that William P . Staderman , John Schneller, and
Ernie Campo are at all times material agents and supervi-
sors of Respondent within the meaning of Section 2(11)
of the Act.
a. William P. Staderman
At the time of the strike on October 1, Staderman was
the executive vice president of Respondent . He testified
that he was the general manager of the entire operation
and had such responsibilities as the hiring and discipline
of employees; supervision of clerical employees; dealing
with tradesmen , shop stewards, and union representa-
tives; organization of the daily work for the employees;
and the routing of trucks and payroll . He was also re-
sponsible for the overall security of the facility , supervi-
sion of the sales employees, the pricing of contracts with
customers, and handling of customer complaints . Stader-
man further testified that during the strike four employ-
ees10 requested reinstatement and he hired them . He also
agreed to put another employee on roll call ." Stader-
man was the person who Schneller called for assistance
on being told on October 1 that the employees would
strike unless the contract was signed, and Staderman
stated that he was the principal officer of Respondent
and the person who had control of management on a
day-to-day basis.'
Based on the above , there can be no doubt that Stader-
man is an official of Respondent as well as its agent and
supervisor. Thus, he is its executive vice president, he
hires and disciplines employees, he routes their work, he
deals with shop stewards and union representatives with
respect to employees , and he is in overall charge of Re-
spondent's operations on a daily basis.
It is thus clear, and I find and conclude , that, as al-
leged in the complaint, William P. Staderman is an agent
and supervisor of Respondent within the meaning of Sec-
tion 2(11) of the Act.
,b. John Schneller
Schneller testified that he was hired in May 1977 as a
salesman . On October 1, the date the strike began,
Schneller was a salaried account executive who did not
receive a commission from sales. His main responsibilities
were the solicitation of new accounts and the pricing of
contracts. He also opened the vault in the morning, veri-
fied its contents, and set up the routes for the trucks and
made sure that "everything ran smoothly." He reported
to Staderman, and was "in charge" of the facility during
the 4 to 4-1 /2 hours per day that Staderman was absent
1O John Livigni, Anthony Mangano, Paul Mattcheck, and Kevin Rice.
" James Donohue.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the premises . Indeed, on October 1, he told Local
807 Representative Rabbitt that he was in charge at that
time.
Schneller further testified that the employees knew to
come to him with any problems or questions they had,
and in Staderman 's absence they would look for him "for
whatever direction or supervision they needed at that
time," and he would do whatever was necessary within
his authority to resolve their problems. During the strike,
Schneller attended meetings of management officials in
which he told Staderman that certain employees told
him that they wanted to return to work. In fact, about 30
to 40 percent of the strikers expressed a "basic under-
standing" to him that they wanted to return to work.
Schneller denied having any responsibility for hiring,
firing, supervision of employees, the accepting or proc-
essing of applications of employment, or handling em-
ployee grievances.
With respect to his sales duties, Schneller testified that
he coordinated with Ernie Campo regarding sales calls.
Schneller and Campo would discuss questions relating to
prospective or current customers , such as price and term
of contract. They would then meet with Staderman and
a final decision would be made.
Certain employees testified regarding Schneller's su-
pervisory status . James McGuire credibly testified that
Schneller set up the truck routes, including the times and
the locations of the pickups and deliveries . If there was
any problem with the route, the employee would seek
resolution from Schneller . At times Schneller acted as
dispatcher and would call the employees on their truck
radio and reassign the order of stops. He would also at
times reassign the truckmen to different trucks . On Sat-
urdays and Sundays , Schneller was the only management
official on the premises . At those and other times, he
worked in the office, distributing papers, weapons, and
instructions to the men. He also oversaw the loading of
money from the vault to the trucks.
Employee Kevin Fitzgerald credibly testified that Sta-
derman told him that Schneller was his boss and to do
what Schneller told him to do. Staderman added: "It's
just like me telling you what to do on occasion."' 2
Employee Frank Palmero credibly testified that he re-
garded Schneller as a boss and not as an employee. He
corrected all problems that arose and told employees
what to do and when to do it.
Schneller was the only responsible official present at
the premises for 4 to 4-1/2 hours in the working day,
during which time the vitally important tasks of distribu-
tion of weapons, removing money from the vault, load-
ing it onto the trucks, and the dispatch of those trucks,
all of which are central to the operation of Respondent's
business and all of which he supervised , occurred. Fur-
ther, employees sought resolution of their problems from
Schneller and he supervised them in Staderman's ab-
sence. It is clear that if Schneller was not found to be a
supervisor, Respondent would be left without supervi-
sion during the most critical time of its operations. I
lE Staderman did not deny making that statement.
therefore find and conclude that Schneller is a supervisor
within the meaning of Section 2(11) of the Act. Is
c. Ernie Campo
Campo did not testify.
William Staderman , the executive vice president of
Respondent, testified that Campo became employed by it
about July 1978 as a salesman . According to Staderman,
Campo's function was that of public relations in which
he called and visited current and prospective customers.
Staderman stated that Campo did not work at Respond-
ent's location, but was present there about 15 hours per
month to review his files and make phone calls.' 4 Some-
time after February 1979, when Respondent lost the
OTB contract, Campo was transferred to the payroll of
Cashroom Corporation, a company owned by Vander-
kieft and located in Plainview , New York, which counts
and processes money.
John Schneller testified that as to the sales responsibil-
ities, Campo had greater authority than he. Moreover,
Schneller would coordinate with Campo concerning the
sales function by discussing price and duration of con-
tract to be quoted a prospective customer . Both would
then discuss the matter with Staderman . Schneller fur-
ther stated that there are certain decisions relating to
sales that he must clear with Campo before making any
final determination.
Certain employees testified concerning Campo's super-
visory responsibilities . Virtually all of them stated that
Campo is a salesman for Respondent. In sum, employees
testified' 5 that Campo, who was never the sole manage-
ment official present in the facility at any given time,
gave orders to employees regarding which stops to
make, when to make them, and in what order they
should be made. Campo also changed the order of the
stops, directed employees not to take lunch but to go di-
rectly to a customer, and reassigned employees and val-
uables from one truck to another at times. However,
there was no evidence concerning whether Campo initi-
ated those changes . Employees brought their concerns
regarding their safety to him, and he resolved these
problems by devising more secure routes and by advising
them which door at a customer 's premises to enter. If
customers complained about a late delivery, Campo
asked the employee why he was delayed. If Campo was
not satisfied with the employee's explanation the employ-
ee would "answer to Staderman ." At times Campo criti-
cized the employees for not doing a good job or not
working fast enough . Campo also supervised the loading
of money from the vault onto the trucks.
Employee DiPaolo related an incident in which he and
his partners were making deliveries in their truck.
Campo delivered a money bag to the truck which the
employees had forgotten to take. Campo took the bag
" Direct Image Corp. of New York, 233 NLRB 365, 372 (1977). Luke's
Supermarket, 228 NLRB 763, 764 (1977).
14 Staderman later testified, however, that he was not aware of when
Campo was present or not present at Respondent 's premises,
is This is the substance of the credited testimony of Vincent Giaca-
lone, Richard DiPaolo , Vito Caputo, John Russell , Michael Lynch, and
Vincent Mormile.
RAPID ARMORED TRUCK CORP.
from the trunk of his car and gave it to DiPaolo, who
said that he would accept it "under protest" because it
was a violation of union rules to transport money in a
car due to the lack of security . Campo said : "You Union
guys are ruining this job ." At the next stop Staderman
called DiPaolo and told him that Campo reported that
when he delivered the money all three employees were
out of the truck, adding that "this could mean your
job."16 DiPaolo denied the allegation and said that he
would call Union Representative O'Keefe . Staderman
called DiPaolo later that day and told him that Campo
may have been mistaken and that he should forget the
incident. 17 DiPaolo further testified that at the "Black
Tuesday" meeting following the loss of the OTB ac-
count, Campo told the employees that they were doing a
terrible job , were not performing properly, were taking
too long at lunch , and that the Union is bad. Other re-
spondent officials were present and spoke at the meeting
including Staderman , Schneller, and John Barone, chair-
man of the board . Staderman testified that this was an
important and significant meeting , and there had been no
similar meeting in the 2 years prior to that.
It thus appears that Campo has the authority, which
he exercised , to assign, reassign, and transfer employees
and also to reprimand employees and resolve their griev-
ances, especially concerning their security . He spoke
with authority at an important management meeting at
which he was critical of employees.
I fmd and conclude that Campo is a supervisor within
the meaning of Section 2(11) of the Act. Even if Campo
is not found to be a supervisor, it is clear that he is an
agent of Respondent and that Respondent is responsible
for his actions because Respondent had placed Campo in
a position where employees could reasonably believe
that he spoke on behalf of Respondent whether his state-
ments were actually authorized or subsequently ratified
by Respondent. Is
3. The strike
The employees of Respondent had certain grievances.
In September, it was their position that they would not
work unless those grievances , including Respondent's
failure to sign the contract, were resolved . They decided
on a deadline of October 1 and approved a job action to
resolve their grievances.
On October 1, before the start of the workday, Robert
Rabbitt, a Local 807 representative, went into Respond-
ent's premises with representative O'Keefe and shop
stewards Vincent Mormile and Thomas Puleo . Rabbitt
asked to see Respondent's official John Barone . On being
told by Respondent's official John Schneller that Barone
was not present, Rabbitt advised that the unit employees
would not work until Respondent signs the contract with
Local 807. Rabbitt then stated that the employees were
then on strike.
16 According to company rules, two employees leave the truck to
make the pickup or delivery and the guard must always stay in the truck.
11 It does not appear that any further action was taken by Respondent
or the Union.
18 American Lumber Sales, 229 NLRB 414, 420 (1977).
375
Picketing commenced with the picket sign reading:
"Rapid Armored Car Service Unfair To Local 807,
IBTCWH of A."19
4. Incidents and conversations between strikers and
Respondent during the strike
The General Counsel alleges and Respondent denies
that Respondent threatened its employees with discharge
and other reprisals on various dates in October , Novem-
ber, and January 3 , 1980, that it discharged all its em-
ployees about October 1 , and that it conditioned the pay-
ment of accrued vacation pay to its employees who par-
ticipated in the strike , on their resignation as employees.
The General Counsel also alleges that unconditional
offers to return to work were made by certain employ-
ees, and Respondent refused to reinstate them.
Because of the large number of employee witnesses, all
of whom were strikers except for Edward Lapinskas,
and for the purposes of convenience and clarity, I will
discuss the above alleged conversations as testified to by
each employee separately , in the order in which the em-
ployee testified.20
a. James McGuire
McGuire credibly testified that at the end of the first
week or the beginning of the second week in October
197921 he entered Respondent's premises alone and told
Schneller : "I want to go back to work." Staderman, who
was also present , replied: "There ain 't no job here. We're
going out of business." McGuire left and reported this
conversation to a few unnamed pickets . McGuire never
overheard any other strikers request reinstatement.
Later that month, McGuire asked Staderman when he
would receive his accrued vacation and sick leave pay.
Staderman replied that the money was available but that
McGuire would have to sign a paper resigning his job
before he would receive that money . McGuire filed a
claim for that pay in Small Claims Court and thereafter
received his vacation and sick pay.
Schneller denied that McGuire requested reinstate-
ment. Staderman denied that he told anyone Respondent
was going out of business . Schneller further stated that
he did speak with McGuire in December , during which
McGuire said that he would never return to Respondent.
Based on the above, I fmd that McGuire made an un-
conditional offer to return to work.
b. Kevin Fitzgerald
Fitzgerald testified that about 1 week after October 1,
Staderman told the picketing employees that they were
wasting their time because there was no job for them at
Respondent, and asked why they were "hanging
around."
19 See R. Exh . 9, a photograph of a striker and picket sign.
20 I have credited the testimony of those employees whom I have
found made unconditional offers to return to work . Their credibility was
enhanced by the fact that they testified to similar requests and similar re-
sponses from Respondent 's officials at different times in different inci-
dents . Moreover, Schneller testified that 30 to 40 percent of the strikers
expressed a "basic understanding" that they wanted to return to work.
21 The strike began on Monday , October 1.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One week later , Fitzgerald told Staderman that he
wanted to return to work . Staderman replied that there
was no work for him , that Fitzgerald had no job, and
that Respondent was going out of business . Fitzgerald re-
ported this conversation to other unnamed pickets.
Based on the above facts, I find that Fitzgerald made
an unconditional offer to return to work.
c. John Mulcahy
Mulcahy testified that on October 4, he and other em-
ployees received their final salary for the week previous-
ly worked . Staderman asked Mulcahy for his identifica-
tion card that was issued by Respondent , saying that it
was company property and that Staderman was "entitled
to it." Mulcahy gave the card to Staderman and asked
him the status of the employees . Staderman replied that
"you're on strike ." Mulcahy answered that he would
"much prefer to be working."
About 1 to 2 weeks later, while he was picketing,
Campo, Schneller , Staderman, and Vanderkieft ap-
proached him. Campo said: "You did wrong John, you
know that." Mulcahy replied that he did not believe that
the employees were wrong, adding that it was "misman-
agement" that caused Respondent to lose business.
Barone, who apparently did not know Mulcahy, asked
for his name. Staderman identified Mulcahy as "one of
our former employees ." Mulcahy said : "Former employ-
ee?" Staderman replied: "You better believe it."22
Barone also said that Mulcahy would not work there
again . 23 Mulcahy told other strikers about this incident.
Schneller testified that in mid -November, Mulcahy,
Donohue, and four other employees told him that they
wanted to speak with Staderman regarding the possibili-
ty of their return to work adding that they would make
it "favorable" to Respondent . Schneller relayed the mes-
sage to Staderman , who advised that the employees
should speak to Respondent's attorneys.
Based on the above facts, I find that Mulcahy did not
make an unconditional offer to return to work.
d. Anthony Cosenza
Cosenza testified that about 4 to 5 weeks after the
strike began , he went into Respondent 's office . He asked:
"How about my job back?" or "What about work?" Sta-
derman replied that Respondent was running a very
small operation and there was no work and there were
no openings.
Cosenza asked for his vacation pay and Staderman said
that if he resigned he would receive his check. Cosenza
did not resign and instead sued in court and was then
paid vacation pay.
Cosenza stated that in December , while he and em-
ployees Fitzgerald, McGuire, and Mulcahy were picket-
ing, Staderman pointed at them and told them that they
22 Present during this conversation were employees Fitzgerald, Pas-
quale Lombardo, and John Shea Fitzgerald and Shea did not testify re-
garding this incident . Lombardo corroborated Mulcahy's testimony.
22 Mulcahy later testified that Barone's statement was, "he'll never
work here again" or "they'll never work here again."
would "never get hired back here again ."24 Cosenza re-
ported this statement to other unnamed pickets.
Based on the above facts , I find that Cosenza did not
make an unconditional offer to return to work.
e. Wallace Long
Long testified that about the second week of the
strike, he, Edward Allocco, McGuire , and Shea spoke to
Staderman . Long told Staderman : "We would like our
jobs back."25
Staderman replied that there was no work and that the
men would have to speak to their union delegate. The
men then left.28
Based on the above facts, I find that Long did make
an unconditional offer to return to work.
f. Bertram Stark
Stark testified that at the end of the second week or
the beginning of the third week of the strike, he, Al-
locco, and McGuire told Staderman that they wanted to
return to work . 27 Staderman told them to see their union
delegate. They told this to Local 807 Representative
Joseph Votta, who attempted to speak to Staderman but
Staderman refused to talk to him.28
Stark further stated that about the third week of May
1980, he told Staderman that he "would like to return to
work." Staderman replied that he had no work for him
then.
Staderman admitted that Stark requested reinstatement
in late October or early November . He replied to Stark's
request by telling him that "your job's not here. We
don't have the business, I don 't even have the spot."
Based on the above facts, I find that Stark made an
unconditional offer to return to work.
g. Arthur Pellizzi
Pellizzi testified that about the third week in October
he, Allocco, John Botts,29 and McGuire told Schneller
that "if Respondent wanted the trucks to roll, they could
24 Neither Fitzgerald , McGuire, nor Mulcahy testified about this inci-
dent.
26 Long's testimony is in direct contradiction to that of McGuire re-
garding this incident . McGuire testified that he entered Respondent's
premises alone and requested reinstatement. Moreover , McGuire stated
that he never overheard any other strikers request reinstatement. Howev-
er, Allocco and Shea generally corroborated Long's account of this inci-
dent.
26 Long apparently acted as spokesman for the group although he also
stated that "we asked him for our job back "
27 Stark may have said , "I would like to return to work "
28 Stark 's testimony is in direct contradiction to that of McGuire re-
garding this incident . See fn. 25, supra However , Allocco generally cor-
roborated Stark 's account of this incident . John Shea testified that Stark
was with him on one of these occasions and corroborates Stark 's testimo-
ny.
29 The name in the transcript is Fox . A list of employees does not
show a John Fox listed . Thus, it appears that the employee referred to is
John Botts, who does appear on a list of employees.
RAPID ARMORED TRUCK CORP.
pick 12 of the senior men."80 Respondent refused this
offers'
Schneller denied ever speaking with Pellizzi regarding
returning to work.
Based on the above facts , I find that Pellizzi did not
make an unconditional offer to return to work.
h. Percival Niles
Niles was on vacation when the strike began. On Oc-
tober 9 he told Schneller that he heard that Respondent
was no longer in business . Schneller told him that he was
not working at Respondent any more. Schneller instruct-
ed him to clean out his locker and he was given a receipt
for his pistol. Niles told Schneller that if Respondent re-
opens he "would like to come back to work ." Schneller
said he would so advise Staderman, and also told Niles
the name of another armored truck company at which he
should seek work.
Schneller testified that when Niles received his pay-
check, Niles asked for the status of the strike . Schneller
asked for Niles' information . Niles then related his per-
sonal situation and Schneller replied that he could not
help him . Niles added his wish that "they would get this
stuff over with." Schneller later testified that Niles told
him that he would like to work.
Based on the admission of Schneller that Niles told
him that he would like to work, taken together with
Schneller's acquiescence in Niles ' misinformation that
Respondent was going out of business, I find that Niles
made an unconditional offer to return to work.
i. Edward Allocco
Allocco testified that a few weeks after the strike
began he and a group of unnamed strikers went into Re-
spondent's premises . Allocco did not speak but other em-
ployees said : "We want to know if we can have our jobs
back."32 Staderman replied that they would have to see
their union delegate.
Allocco further testified that about 4 weeks after the
strike began he phoned Staderman and asked him wheth-
er the strike would be settled and the employees re-
turned to work. Staderman replied that he did not be-
lieve that it would be settled at that time.
Based on the above facts , and the fact that I have
found that Long and Stark made unconditional offers to
return to work, I find too that Allocco made such an un-
conditional offer.
so Pellizzi testified generally that on the day in question , the named
employees "asked for our jobs." However, when asked specifically what
was said he related the offer of 12 senior men. Therefore, I find that the
specific conversation relating to the offer of the 12 senior men was the
actual and only offer that was made at that time.
s' Pellizzi's testimony is in direct contradiction to that of McGuire re-
garding this incident . See fn. 25, supra . Allocco's testimony did not cor-
roborate this incident either . Botts did not testify but it was stipulated
that he did not make an offer to return to work , thus contradicting Pelliz-
zi's testimony.
92 Allocco's testimony is generally corroborated by employees Long
and Stark, who identified him as being with them.
377
j. John Dudley
Dudley testified that on October 2 or 3, he entered
Respondent's premises alone and told Staderman that he
wanted to return to work . Staderman replied that
Dudley would have to speak to his union representative.
Dudley immediately reported this conversation to Local
807 Representative Votta. Votta attempted to speak with
Respondent's officials but they would not speak to
hiM.33
I cannot credit Dudley in view of his insistence that he
spoke to Votta on October 2 or 3 at the picket line when
Votta concededly did not leave the hospital at that time.
Accordingly, I find that Dudley did not make an uncon-
ditional offer to return to work.
k. Frank Palmero
Pahnero testified that about October 25 or 26, he en-
tered Respondent's premises and told Schneller that he
wanted to return to work . Schneller replied that "you
can't have your job back, you are a union man," and ad-
vised him to speak to Votta . Palmero told Votta what
had transpired and asked Votta to talk to Schneller.
Votta attempted to speak with Schneller but apparently
Schneller would not speak with him.
In late December, Palmero told Ronald Renee, the
night dispatcher , that Respondent owed him vacation
pay. Renee told him that he must sign a resignation form
in order to receive the money . Palmero signed and he re-
ceived a check for the money due him.
Schneller testified that Palmero told him that he
wanted to return to work and that he wished the strike
situation was resolved.
Based on the above facts, I find that Palmero made an
unconditional offer to return to work.
1. Edward Mungiguerra
Mungiguerra testified that on October 19 he and em-
ployees Dudley, Attilio Martino, and Shea asked
Schneller for the week 's wages that were due them. Sta-
derman then appeared and said that they could not re-
ceive the money unless they were working . Mungiguerra
replied that they wanted to return to work . Staderman
answered that they could not return to work and advised
them to speak to their union delegate.34 They told Votta
of this conversation and he unsuccessfully attempted to
speak to Respondent's officials. Mungiguerra was asked
to sign a resignation for which he would receive his va-
cation pay. He refused to do so.
Staderman asked Mungiguerra to return his identifica-
tion card, but Mungiguerra refused to do so.
sa Dudley's credibility was seriously undermined by his testimony that
he spoke with Votta outside Respondent 's premises on October 2 or 3. It
is undisputed that Votta was in the hospital when the strike commenced
on October 1 and did not appear at Respondent 's premises until about
October 15.
a' Mungiguerra's testimony contradicts that of Dudley . Dudley stated
that he entered the premises alone on October 2 or 3. Dudley did not
mention any conversation regarding unpaid wages. Martino , too, failed to
corroborate this incident. However, Shea generally corroborates this inci-
dent.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mungiguerra further testified that in late October he
was present with a group of employees including Shea
when an employee asked if they could return to work.
Staderman replied: "No way."
Schneller denied that Mungiguerra requested reinstate-
ment . I find that Mungiguerra made an unconditional
offer to work.
m. John Shea
Shea testified that about 3 weeks after the strike began,
he, Dudley, Martino, and Mungiguerra asked Staderman
if they could return to work. Staderman told them to see
their union delegate . 35 On two other occasions, accom-
panied by Allocco, Long, and Stark, they asked the same
question of Staderman and received the same answer.38
On still another occasion, in November or December,
Shea entered the premises with several employees, in-
cluding Cosenza and Pellizzi, and asked Schneller if they
could return to work. Staderman replied "no."37
Based on the above facts, I find that Shea made an un-
conditional offer to return to work.
n. Vincent Giacalone
Giacalone testified that about the first week of the
strike, he and about 15 to 20 other employees were pick-
eting in front of Respondent' s premises when Campo ap-
proached them. Giacalone and the assembled employees
told Campo that they "would like to come back to
work." Campo replied that they would never return to
work at Respondent.
Based on the above facts, I find that Giacalone made
an unconditional offer to return to work.
o. Richard DiPaolo
DiPaolo testified that about the third week of the
strike, he asked Schneller what the "chances" were of
returning to work. Schneller said "it will never
happen." 38 DiPaolo further stated that at least every
other day Campo told the picketing employees that Re-
spondent wanted no part of them, to get lost, and that
they would never have a job there again.
Based on the above facts, I find that DiPaolo did not
make an unconditional offer to return to work. He was
merely inquiring about the "chances" of returning to
work, and did not make it clear that he was offering to
return to work.
p. Thomas Curran
Curran testified that he did not request reinstatement.
He stated that during the first week of the strike Campo
told the picketing employees that they would not be al-
lowed to return to work, "union or no union." At that
96 As set forth in fn 33, supra, the testimony of Dudley contradicts
that of Shea. Mungiguerra's testimony generally corroborates that of
Shea
36 Allocco, Long, and Stark generally corroborate Shea's testimony.
94 Cosenza generally corroborated this incident Pellizzi did not testify
concerning this incident
8a Employee Fitzgerald was present during this conversation. He did
not testify concerning this incident.
time, Curran was aware that employee Bert Stark had
requested reinstatement and was refused.39
Accordingly, I find that Curran did not make an un-
conditional offer to return to work.
q. Vito Sutera
Sutera testified that he did not request reinstatement
because he knew that other employees, including James
Donohue, had requested reinstatement and were re-
fused40 and also because Campo told the pickets that
they would never be reinstated, with or without the
Union.
Accordingly, I find that Sutera did not make an un-
conditional offer to return to work.
r. James Donohue
Donohue testified that 2 weeks after the strike began,
he entered Respondent 's premises with employees Al-
locco and Stark . Donohue asked Staderman if Respond-
ent was going to reinstate the employees . 41 Staderman
replied that Respondent was not hiring . 42 Donohue re-
ported this conversation to about 35 picketing employ-
ees. Donohue added that he heard Campo tell the pickets
that they would never work for Respondent again.
Donohue further testified that in the first days of the
strike, dispatcher Renee asked him to return to work on
a "roll call" basis. Donohue refused to return because
the employees were on strike, and because he could not
return unless the union delegate said he could.
Respondent's witnesses , Schneller and Staderman, tes-
tified that Donohue asked dispatcher Renee for reinstate-
ment in October or November. Renee asked Staderman
and Staderman agreed to hire him for the following day.
Schneller saw him before work the next day. Donohue
advised that he would not work because "they" told him
not to work. Schneller asked if the "union people" were
preventing him from working. Donohue replied: "I can't
work. I have to side with them." Staderman asked Don-
ohue for an explanation and Donohue stated that shop
steward Thomas Puleo would not permit him to return
to work.43
Donohue denied being actually scheduled for work as
Respondent asserts.
Schneller further testified that in mid-November, Don-
ohue, Mulcahy, and four other employees told him that
they wanted to speak with Staderman regarding the pos-
sibility of their return to work, adding that they would
make it "favorable" to Respondent. Schneller relayed the
message to Staderman who advised that the employees
should speak to Respondent's attorneys.
99 Curran testified that Local 807 Representative Votta was present
when the strike began on October 1 Votta was in the hospital at that
time and did not appear at the strike scene until October 15.
40 Donohue testified that he asked about employment 2 weeks after the
strike began
41 On cross-examination , Donohue stated that he only asked if Re-
spondent was hiring
42 Allocco and Stark essentially corroborate this incident.
43 Puleo testified that Donohue told him that Respondent offered him
a job Puleo advised Donohue to return to work if he wished . Donohue
refused.
RAPID ARMORED TRUCK CORP.
I find that Donohue offered to return to work, and in
fact was offered reinstatement by Respondent which he
refused to accept because he was still on strike.
s. Joseph Inzerillo
Inzerillo testified that he never requested reinstate-
ment. He stated that a few weeks after the strike began
he learned that other employees offered to return to
work but were refused.
Accordingly, I find that Inzerillo never offered to
return to work.
t. Pasquale Lombardo
Lombardo testified that he did not request reinstate-
ment. He stated that during the first week of the strike
he was present on the picket line when Schneller re-
ferred to Mulcahy as Respondent's "ex-employee."
Barone then said that Mulcahy "won't be working for us
any more."44 Also during that first week , Lombardo dis-
cussed with employees Donohue and Puleo the fact that
Respondent would not reinstate them.45
Accordingly, I fmd that Lombardo never offered to
return to work.
u. Vincent Mormile
Mormile testified that he did not request reinstatement
because he believed that it was futile to do so because he
knew that certain employees , including Donohue and
Sidney Colin, had requested reinstatement and were re-
fused . Mormile stated that about 1 week after the strike
began, Campo told the striking employees that they
would never work for Respondent again.
Mormile later testified that it was the general belief
among the strikers that they would remain on strike until
the contract was signed.
Accordingly, I fmd that Mormile did not offer to
return to work.
v. James Quigley
Quigley testified that on October 4, he entered Re-
spondent's premises and asked what had transpired. Sta-
derman said that the men are all out. Quigley asked
when the matter would be resolved and when the em-
ployees would return to work . Staderman told him to
empty his locker and return his identification card. He
then reported this conversation to the 50 to 60 pickets.
Quigley further testified that at various times in the
first or second week of the strike, Campo came out to
the picket line and told the men that they were "done,"
were not returning to work, and "your union is out the
door."
Based on the above facts , I fmd that Quigley did not
make an unconditional offer to return to work.
44 Mulcahy essentially corroborated this incident.
45 Donohue testified that he was refused reinstatement-2 weeks after
the strike began . Thus, he could not have had this conversation with
Lombardo in the first week of the strike.
379
w. Vito Caputo
Caputo testified that about 3 to 4 days after the strike
began, he heard that employees had requested reinstate-
ment and were refused . Caputo never requested rein-
statement because he was advised by coworkers that
they were informed by Campo that they would never be
reinstated . He was also told that directly by Campo.
Two weeks after the strike began, he was asked to return
all his uniforms.
Accordingly, I fmd that Caputo never offered to
return to work.
x. John Russell
Russell testified that on October 2 or 3, he was in a
group of 25 to 35 employees in front of the shop. At that
time he asked Campo : "Is there any chance of us going
back?"48 Campo replied : "You guys will never get
back."
A few weeks later, certain employees asked Schneller
what the "chances" were of returning to work. Schneller
replied that he did not think that there was any chance.
I fmd that Russell did not make an unconditional offer
to return to work . He was merely inquiring about the
"chances" of being reinstated . He did not offer to return
to work.
y. William White
White testified that he did not request reinstatement
because he heard from other employees, including Dono-
hue that they were told that they would never be hired
again.47 White further testified that in the first week of
the strike, Campo told the pickets: "None of you bas-
tards will ever work here again."
Accordingly, I find that White did not offer to return
to work.
z. Michael Lynch
Lynch testified that about 1 week after the strike
began he phoned Staderman and asked if he "could have
my job back." Staderman replied that he had a "stack of
applications" and that he would consider Lynch's re-
quest.
Lynch stated that Donohue told him that he requested
reinstatement and was refused . He further stated that
Campo told the picketing employees that none of them
would ever work for Respondent again.
Based on the above facts , I find that Lynch made an
unconditional offer to return to work.
an. Thaddeus Kaplon
Kaplon testified that he never requested reinstatement.
He stated that about 1 week after the strike began he
heard Campo tell the pickets : "None of you SOB's will
ever be rehired."
46 On cross-examination , Russell stated that the question he asked was:
"What do you think our chances are of being rehired?"
47 On cross-examination , White stated that Donohue 's remark was that
Respondent refused to hire him. Donohue testified that he only reported
to the employees that Respondent was "not hiring."
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , I find that Kaplon never offered to
return to work.
bb. Attilio Martino
Martino testified that he was not scheduled to work on
October 1 . He called Respondent's office that day and
was told by Schneller that Martino was not working
there anymore; the employees were out on strike, and
not to bother coming to work.
Martino testified that he was present when Barone told
employee Mulcahy that he was not working at Respond-
ent anymore; that he was a former employee and that
under no circumstances would he ever work for Re-
spondent again.48
Martino further stated that 2 weeks after the strike
began, he and employee Shea asked if they could enter.
Schneller said "no" and the men left.49
I find that Martino did not make an unconditional
offer to return to work.
cc. Edward Lapinskas
Lapinskas testified that he quit before the strike.
dd. Paul DeStefano
DeStefano testified that on October 1 Barone told the
employees outside the shop that he would run the busi-
ness his way , that he did not want the Union , and that he
did not want it to tell him how to run his business.
DeStefano stated that he did not request reinstatement
because of Barone 's and Respondent 's antiunion attitude.
Accordingly , I find that DeStefano did not offer to
return to work.
ee. Lucian Tuminelli
Tuminelli testified that he never requested reinstate-
ment and does not know of any employee who did. He
further stated that most employees did not desire rein-
statement because they were on strike and the contract
was not signed.
Accordingly, I find that Tuminelli did not offer to
return to work.
if. Thomas Puleo
Puleo, a shop steward, testified that on October 1
Campo told the striking employees : "That is it. Especial-
ly you union guys, you will never be back in this shop
anymore."
About 1 week after the strike began , employees went
into Respondent 's premises to pick up their pay. Stader-
man asked the employees to return their identification
cards and uniforms . Puleo asked why this was necessary.
Staderman said he just wanted to clean the uniforms.
During this conversation , Schneller and Renee spoke to
him. Schneller said Respondent is "gone, you guys
should never did what you did because that is it as far as
we are concerned ." Renee said that Puleo did the Com-
pany a favor by striking.
48 Mulcahy essentially corroborates this incident
49 Shea did not testify about this incident.
Puleo never requested reinstatement . He stated that
the strikers were mostly united in their concerted action
and wanted to win the strike.
Accordingly , I fmd that Puleo did not offer to return
to work.
gg. John Botts
The parties stipulated that if Botts testified he would
have stated that he did not request reinstatement because
of statements Donohue made , as set forth above, con-
cerning his efforts to return to work , and because of
statements made by Campo , as set forth above.
Accordingly , I find that Botts did not offer to return
to work.
hh. Other Employees
As to the other employeesbO named in the amended
complaint, it was alleged but there is no reliable evidence
that they made unconditional offers to return to work,
and I find that they did not.
B. Contentions of the Parties
1. Respondent 's contentions
Respondent makes the following arguments.
a. Illegal strike
Local 807 and the employees engaged in an illegal
strike because it had an illegal object to compel Re-
spondent to recognize Local 807 and sign the tendered
collective-bargaining agreement . Regional Director
Kaynard had previously dismissed Local 820's 8(aX5)
charge against Respondent on the ground that the Board
could not certify a union which admits guards and non-
guards to membership.
Respondent further argues that its refusal to recognize
Local 807 as the successor to Local 82061 could not be
the lawful subject of a strike and , accordingly, the em-
ployees who participated in such a strike were engaging
in unprotected activity which deprived them of any right
to reinstatement.
b. Unconditional offers to return to work
Respondent argues that no unconditional offers to
return to work were made by the strikers , who were not
reinstated and even if such offers were made , they pos-
sessed the rights only of economic strikers who could be
replaced or whose reinstatement was not required be-
cause of business justification.
50 Sidney Cohn , Charles McFarland, Walter McMurray , Ronald
Renne, and Bart Twomey.
51 Respondent also argues that the merger of Local 820 into Local 807
was improper as set forth above Indeed , the Regional Director dismissed
an 8(axl), (3), and (5) charge filed against Respondent, which alleged its
refusal to recognize and bargain with Local 807 on the ground that there
was at least some doubt whether Local 807 was the lawful successor to
Local 820
RAPID ARMORED TRUCK CORP. 381
c. Other allegations
Respondent denies discharging any employees and
denies discriminating against employees by conditioning
the payment of accrued vacation pay on their resigna-
tions from employment.
2. The General Counsel's contentions
The General Counsel argues that the strike on October
I began as an economic strike to protest the failure of
Respondent to execute a contract with Local 807, but
was converted into an unfair labor practice strike on the
commission of unfair labor practices by Respondent
which include threats of discharge , conditioning of the
payment of vacation pay to employees on their resigna-
tion, and the discharge of all strikers . The General Coun-
sel alleges that as unfair labor practice strikers , the em-
ployees are entitled to reinstatement on their uncondi-
tional offer to return to work , and the failure of Re-
spondent to reinstate them on their unconditional offers
to return violated Section 8 (a)(1) and (3) of the Act. Re-
garding those employees who concededly made no offer
to return to work, the General Counsel argues that they
were excused from doing so because other employees
were not reinstated and because of statements attributed
to Respondent's officials that none of them would ever
return to work for Respondent , which allegedly made
any offers "futile gestures."
C. Analysis
1. The strike and picketing
Respondent argues that the strike engaged in by the
employees was illegal . I find that the strike was legal but
the picketing , which took place in clear violation of Sec-
tion 8(b)(7)(C) of the Act, was not legal.
The Board has historically and consistently held that
not all concerted activity engaged in by employees is
protected.52
In Local 707, supra, the Board found that employees
who participated in recognitional picketing which was
violative of Section 8(b)(7)(B) of the Act were not enti-
tled to reinstatement. The Board stated, in affirming the
trial examiner, that:
[W]here the activity engaged in by the employee is
the participation in an activity which contravenes
the policies of the Act the employee has forfeited
his right to invoke other provisions of the same stat-
ute to restore him to his job with backpay.as
The Board in Colonial Haven Nursing Home , 54 cited
by the General Counsel , held that employees who en-
52 See the comprehensive discussion of the earlier cases by Trial Ex-
aminer Sidney D. Goldberg in Teamsters Local 707 (Claremont Folychemi-
cal), 196 NLRB 613, 627-629 (1972). See also Blasingame Well Service,
174 NLRB 1126. Trial Examiner Gregg found that employees who en-
gaged in a strike and picketing violative of Sec. 8 (bX7) are engaged in
unprotected activity . The Board therein adopted the trial examiner's con-
clusions but found it unnecessary to decide the contention regarding un-
protected activity.
ss Local 707, supra at 614.
s* 218 NLRB 1007 ( 1975).
gaged in an unfair labor practice strike were entitled to
reinstatement . The Board observed that the picketing,
even if it constituted a "technical violation" of Section
8(b)(7)(C) of the Act,56 did not "seriously contravene
the policies of the Act under the circumstances present"
in that case . Those circumstances included the facts that
the picketing was motivated in substantial part by the re-
spondent's unfair labor practices, the union did not re-
quest recognition during the picketing , and the duration
of the picketing was not extended because of a recogni-
tional object.
The Board in Colonial Haven placed great emphasis on
the unfair labor practice nature of the strike and picket-
ing. It stated that in weighing the relative wrongdoings
on both sides , the union's possible technical violation of
Section 8(b)(7XC) did not outweigh the unfair labor
practices committed by the employer , and therefore did
not cause the employees to lose their status as unfair
labor practice strikers, or to warrant denying them their
special reinstatement rights as unfair labor practice strik-
ers.56
The Board in Colonial Haven distinguished Local 707,
on the grounds that in Local 707, (a) the picketing was
charged, litigated , and found to be violative, (b) the em-
ployer relied on the picketing as the reason for denying
the employees reinstatement, and (c) the picketing was
solely in support of recognitional objectives and there-
fore did not present some of the offsetting considerations
present in an unfair labor practice strike setting , such as
that in Colonial Haven, and on which is predicated the
special reinstatement rights of unfair labor practice strik-
ers.57 It is clear, however, that the major basis underly-
ing Colonial Haven was the principle that unfair labor
practice strikers should not lose their special status as
such notwithstanding that their picketing constitutes a
technical violation of Section 8(b)(7)(C).
In the instant case, there can be no doubt that the
strike which began on October 1 was an economic strike.
Thus, as alleged in the complaint, the purpose of the
strike was to protect the failure of Respondent to exe-
cute a contract with Local 807,b8 and as stated by the
General Counsel at the hearing the strike was an eco-
nomic strike at its inception . The only unfair labor prac-
tices alleged against Respondent are those which grew
out of the strike and allegedly occurred subsequent to
the strike.
The Board has consistently held that a union which is
disqualified from certification under Section 9(b)(3) be-
cause it admits to membership employees other than
66 Picketing for a few days longer than the 30 days provided under
Sec. 8(b)(7)(C) without filing a petition , when a prior petition filed by the
union had just been dismissed for expanding unit reasons.
se The Board, in its analysis, relied on NLRB v. Thayer Co ., 213 F.2d
748, 753 (1st Cir. 1954), enfg. 99 NLRB 1122 (1952), cert . denied 348
U.S. 883 (1954). See also Sibilio's Golden Grill, 227 NLRB 1688, 1693
(1977), in which the Board adopted Administrative Law Judge Melvin J.
Welles' finding that in an unfair labor practice strike situation, employees
did not lose their reinstatement rights because the picketing may have
violated Sec . 8(bx7)(C).
87 Colonial Haven, supra at 1011 fn. 13.
59 Typoservice Corp., 203 NLRB 1180 (1973).
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards69 may not avail itself of the statutory right grant-
ed other labor organizations to engage in recognitional
picketing,°O and that such picketing violates Section
8(bX7)(C) of the Act.61
Accordingly, I find and conclude that the illegal pick-
eting, in violation of Section 8(b)(7)(C) of the Act, was
an activity which seriously contravened the policies of
the Act and, as such, employees who participated in
such picketing forfeited their right to invoke other provi-
sions of the Act.62 In short, I find and conclude that,
even assuming such picketing employees made uncondi-
tional offers to return to work, they are not entitled to
reinstatement.
The rationale of the Board in Colonial Haven is inap-
plicable here because the instant case , having its genesis
in an economic strike, the employees therefore did not
possess the special reinstatement rights accorded unfair
labor practice strikers. Thus, the picketing here , unlike
that in Colonial Haven , was not motivated at all by the
unfair labor practices of Respondent . Indeed , no unfair
labor practices by Respondent prior to the strike are al-
leged .63 The Board has long held that employees who
engage in an unlawful strike "may not invoke the protec-
tion of the Act because they were denied permanent re-
instatement at the end of that strike , even though the Re-
spondents may have failed to assert the illegality of the
strike as the basis for denying reinstatement to such strik-
ers." Mackay Radio & Telegraph Co., 96 NLRB 740, 743
(1951). The same reasoning would apply to employees
engaged in illegal picketing.
In view of the foregoing , I find and conclude that the
picketing was unlawful, and that participation in the
picketing proscribed by Section 8(bX7)(C) constitutes
misconduct justifying Respondent in its refusal to rein-
state the pickets . 64 Moreover, it follows that the addi-
tional alleged unfair labor practices of Respondent, all of
which occurred as a result of the illegal picketing, and
without which the alleged unfair labor practices would
not have occurred, and all of which were an outgrowth
of the illegal picketing , must be dismissed . This being so,
there is no basis or need for finding that the strike was
converted into an unfair labor practice strike.
Because Section 8(b)(7)(C) prohibits picketing, only
those employees who engaged in the picketing lost their
right to reinstatement. The complaint , as amended at the
hearing, names 38 employees as having struck and been
66 It is undisputed that the employees in the instant case are guards
within the meaning of Sec. 9 (bX3) of the Act. Moreover, there are suffi-
cient facts in the record to permit me to make a finding , which I do, that
those employees are guards within the meaning of Sec. 9(bX3). Bunks
Inc., 226 NLRB 1182 (1976); Wells Fargo Guard Services, 236 NLRB 1196
(1978).
60 The object of the picketing is to compel Respondent to execute a
contract with Local 807. Thus, inasmuch as Respondent has refused to
recognize or bargain with Local 807, that Union 's picketing has as an
object to force or require Respondent to recognize or bargain with Local
807, in clear violation of the express language of Sec 8(bX7).
61 Service Employees Local 73 (A-1 Security), 224 NLRB 434 (1976) (see
fn 9 and cases cited therein), enfd . 578 F.2d 361 (D.C. Cit. 1978); Service
Employees Local 73 (William Witsman), 240 NLRB 462 (1979); Teamsters
Local 71 (Wells Fargo), 221 NLRB 1240 (1975).
62 Local 707, supra.
6S In view of the clear nature of the 8 (bX7XC) violation , it is of no
import that an 8(bX7 )(C) charge was not filed.
64 Local 707, supra
refused reinstatement . The basic evidence shows that all
the striking employees picketed.65
2. Alternative findings
In the event that the foregoing analysis and findings
are not accepted by the Board, and it is found that the
picketing is lawful ,86 I will consider herein the allega-
tions of the complaint, to wit : the threats of discharge,
the discharge of all striking employees , the unconditional
offers to return to work by the employees , the refusal by
Respondent to reinstate them, the conditioning of the
payment of accrued vacation pay to the striking employ-
ees on their resignation, and the conversion of the eco-
nomic strike to an unfair labor practice strike.
a. The alleged threats
The General Counsel alleges that during the strike, on
various dates in October and November and on January
3, 1980, Respondent by Staderman , Schneller, and
Campo threatened its employees with discharge and
86 The following employees testified that they picketed : Edward Al-
locco, Vito Caputo, Anthony Cosenza, Thomas Curran , Richard Di-
Paolo, Paul DeStefano , James Donohue , Kevin Fitzgerald, Vincent Gia-
colone, Joseph Inzerillo, Thaddeus Kaplon , Pasquale Lombardo , Michael
Lynch, Atillio Martino , James McGuire, Vincent Mormile, John Mul-
cahy, Edward Mungiguerra , Percival Niles, Frank Palmero, Thomas
Puleo, James Quigley, Bertram Stark , Vito Sutera, Louis Tuminelli, and
William White.
I find that the following strikers who testified that they stood outside
Respondent's premises during the strike also picketed , Lumber & Sawmill
Workers Local 2797 (Stoltze Land), 156 NLRB 388, 394 ( 1965), John
Dudley, John Russell , and John Shea. The same reasoning applies to
John Botts, who did not testify but was the subject of a stipulation that
he struck and did not offer to return to work because of statements made
by Campo at the picket line.
I find too that Wallace , Long, and Arthur Pelhzzi picketed . They testi-
fied that they were outside the shop in the company of others who pick-
eted and entered the shop with others who had picketed . I further find
that the following employees picketed : Sidney Colin, Charles McFarland,
Walter McMurray , and Bart Twomey They did not testify . However,
shop steward Mormile testified that Colin requested reinstatement, and
that McFarland and Twomey participated in the strike . Thus, there was
testimony generally from several employees , including Giacalone and
Quigley that all the employees were on the picket line. Moreover, the
following colloquy took place when the General Counsel amended the
complaint to add the names of employees, which indicates that all the
striking employees picketed:
MR. HOLMES . I said , I believe this list that I have given you is
exhaustive of the individuals that went on strike.
JUDGE DAvis : I trust that you will give the Reporter the corredt
[sic] spellings.
MR. HoLMEs : Yes, but in the event that I have inadvertently omit-
ted someone that was testified to, that there was testimony that that
individual went on strike I would also ask that the individual be
placed on the list also, but I believe that I have covered everyone.
JUDGE DAvis. Testimony by the employee himself?
MR. HoLMES . Yes, or by someone that that individual was, in fact,
on strike and picketed
I believe my hat is exhastive [sic] though , Your Honor. Although
Ronald Renne was included in the list of employees, the evidence
established that Renne did not strike or picket, and in fact he was at
work during the first days of the strike. [See the testimony of Mungi-
guerra and Staderman .] Similarly, although Edward Lapinakas was
included in the list of employees, the evidence established that he
quit before the strike and was therefore not employed at the time of
the strike
66 It will therefore be assumed for the purposes of this alternative find-
ings section that the picketing and the strike are lawful , protected activi-
ty
RAPID ARMORED TRUCK CORP. 383
other reprisals if they became or remained members of
Local 807 and if they continued to participate in the
strike.
I will discuss the testimony of the witnesses, as set
forth in detail above , with respect to the incidents al-
leged by the General Counsel to constitute unlawful
threats of discharge and other reprisals:
Employees Fitzgerald and McGuire testified that Sta-
derman told employees that Respondent was going out
of business . Staderman denied telling employees that Re-
spondent was going out of business . Staderman stated
that Stark requested reinstatement in late October or
early November, and his admitted response to Stark was
that "your job's not here. We don 't have the business, I
don't even have the spot."
I credit the testimony of the employees that Staderman
told them that Respondent was going out of business.67
As such, this was an implicit threat to close the oper-
ation because of the strike , and constituted a violation of
Section 8(axi) of the Act.
Employees Caputo , Cosenza, Curran, DiPaolo, Dono-
hue, Giacalone , Kaplon, Lynch, Martino , Mormile, Mul-
cahy, Mungiguerra , Niles, Palmero , Puleo, Russell,
Sitters, and White credibly86 testified that Barone,
Campo, Schneller, and Staderman told the pickets at var-
ious times that they would never work for Respondent
again, they would never be hired by Respondent, and
they could not return to work.
Staderman and Schneller denied telling employees or
hearing employees being told that they would never be
rehired. Barone and Campo did not testify.
The Board has consistently held that such conduct
constitutes an unlawful threat to discharge employees in
violation of Section 8(a)(1) of the Act, and I so fmd.89
The unlawful threats to close and the threats of dis-
charge converted this economic strike to an unfair labor
practice strike.70
b. The discharges
The General Counsel alleges that about October 1 Re-
spondent, by Staderman , discharged all its truckdriver
employees who participated in the strike. In oral argu-
ment at the close of the hearing, the General Counsel
stated that the requests by Respondent that the employ-
ees turn in their uniforms, identification cards, and pistols
constituted the discharge of the employees.
Respondent denies discharging its employees.
97 The employees ' testimony was mutually corroborative . They testi-
fied in a forthright, convincing manner about statements which would
have made an indelible impression on them when uttered.
as I credit the mutually corroborative and consistent testimony of the
employee witnesses. Their statements have greater credibility especially
as they are attributed to four separate agents of Respondent . The failure
of Barone and Campo to testify permits me to draw an inference that
their testimony would have been adverse to Respondent had they testi-
fied. Maxwell's Plum, 256 NLRB 211 (1981).
69 Woodland Supermarket, 237 NLRB 1481, 1487 (1978), in which the
employees were unfair labor practice strikers. In view of my finding
herein that the strike was converted to an unfair labor practice strike, this
case is in point. See also Brooks Inc., 228 NLRB 1365, 1367 fn. 11 (1977);
Warehouse Foods, 223 NLRB 506, 508 (1976).
70 Astro Electronics, 188 NLRB 572, 573 (1971).
The tests for determining whether an employer 's state-
ments or actions constitute a discharge depends on
whether they would `reasonably lead the employees to
believe that they had been discharged."71 The events
must be viewed through the employees ' eyes, in light of
the circumstances known to them at the time.7 a
As set forth above, in the first few days of the strike,
as employees entered Respondent's premises to receive
their pay for the previous week, they were asked to turn
in their company identification card and uniforms. Mul-
cahy was told by Staderman that the card was "compa-
ny property" and that he was entitled to it . One or two
weeks later, Mulcahy was referred to by Respondent's
officials as being a "former employee ."7 a Niles was told
that he was not working at Respondent any longer, told
to clear out his locker , and told the name of another em-
ployer where he could look for work. Mungiguerra and
Quigley were asked for the return of their identification
cards. Quigley was also told to empty his locker. Quig-
ley reported these requests to about 50 pickets . Caputo
was asked to return his uniforms . Puleo was also asked
to return his identification card and uniforms . He asked
whether this was necessary and Staderman replied that
he wanted to clean them . Schneller, who was present
during this conversation, said that the Company is
"gone" and "that 's it as far as we are concerned."
Viewed through the eyes of the employees, it is appar-
ent that the requests for the return of identification cards,
uniforms , and orders to clean out their lockers had as
their intended purpose the discharge of the employees.74
This is made even more obvious when viewed against
the unlawful threats to close the operation and the un-
lawful picket line threats of discharge whereby employ-
ees were told that they would never work for Respond-
ent again. 75
Although not all the employees testified about the re-
quests for their identification cards or uniforms , it is ob-
vious that Respondent intended to and did in fact dis-
charge all its striking employees . There would be no
reason for Respondent to permit some strikers to retain
these items especially in view of its attitude toward the
strikers as demonstrated in the numerous unlawful
threats to discharge them while they were picketing.
Moreover, later, Respondent solicited registrations from
its strikers .7 ° This is further evidence that Respondent
wanted to rid itself of the strikers-either by discharging
them or by having them resign from their employment.
The fact that there was no evidence that all the strikers
were asked for the return of the identification cards and
uniforms does not preclude a finding, especially when
71 Ridgeway Trucking Co., 243 NLRB 1048, 1049 (1979).
72 Pink Supply Corp., 249 NLRB 674 ( 1980). I credit the testimony of
the employees set forth in this section . Their testimony was mutually cor-
roborative and consistent . They also testified in a direct, forthright
manner.
98 See NLRB v. Confort, Inc., 365 F.2d 867, 875 (8th Cir. 1966).
74 See Sentry Investigation Corp., 249 NLRB 926, 927 (1980), in which
the Board found that an employee was discharged when his employer re-
quested that he turn in his badge, gun, uniform , and identification card.
75 I do not accept Staderman's justification, as testified to by Puleo,
that Staderman merely wanted to have the uniforms cleaned.
76 This was done allegedly to enable the employees to obtain their va-
cation pay prior to the time they ordinarily would obtain it.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the threats of discharge were addressed to all employees,
that the requests for the return of the identification cards
and uniforms were addressed to all the strikers , and that
therefore all the strikers were discharged . ? 7 The requests
for the return of the identification cards was communi-
cated to all the other pickets by Quigley.
I therefore find and conclude that by requesting the
return of the strikers ' identification cards and uniforms,
and by requesting that they empty their lockers, Re-
spondent discharged all its striking employees . There can
be no doubt that the employees in participating in an
economic strike were engaging in such protected con-
certed activities, and that by discharging them for engag-
ing in such protected activities , Respondent violated Sec-
tion 8(aX3) of the Act . 78 As discharged strikers,79 the
discriminatees are not required to request reinstate-
ment.80
c. Unconditional offers to return to work
In the event that the Board does not find that dis-
charges of the strikers occurred , or that the strike was
converted to an unfair labor practice strike by virtue of
the threats to close and of discharge , it therefore be-
comes necessary to decide whether the strikers, who
would accordingly continue to be economic strikers,
made unconditional offers to return to work and wheth-
er, because of the Respondent 's business circumstances,
its refusal to reinstate them, assuming such unconditional
offers were made , were justified.
I reject the General Counsel's argument that any un-
conditional offers by employees to return to work were
unnecessary because such offers would be a futile gesture
in view of the numerous comments by agents of Re-
spondent that the strikers would never be rehired, etc.
Unconditional offers to return have consistently been re-
quired of strikers , This is especially so when, as here,
five employees did request reinstatement and were rein-
stated by Respondent. Thus, such requests were not
futile . Although the Board has stated that it will not re-
quire a person to perform a futile act, such unconditional
offer has been found to be futile and unnecessary only in
cases of discharges81 of strikers.82
Accordingly , inasmuch as I have found that uncondi-
tional offers to return were necessary , I refer the reader
to the section III,4 ,a, in which I have discussed which
employees were found to have made such unconditional
offers to return to work.83
" Highland Plastics, 256 NLRB 146 (1981); Martin Arsham Sewing Co.,
244-NLRB 918 (1979).
78 C & W Mining Co, 248 NLRB 270, 272-273 (1980)
79 It is clear that if the strike had not yet been converted to an unfair
labor practice strike by the unlawful threats, it certainly was converted to
an unfair labor practice strike when the strikers were discharged.
80 Abilities & Goodwill, 241 NLRB 27 (1979).
81 I have found in sec. B of this analysis that all the strikers were dis-
charged . However, this discussion concerns itself with the issue of the
status of the strikers if the Board finds that no discharges occurred.
82 Georgia Kraft Co., 258 NLRB 908 (1981); Fugazy Continental Corp.,
231 NLRB 1344, 1357-1358 (1977); Mason City Dressed Beef, 231 NLRB
735, 747-748 (1977); Abilities & Goodwill, 241 NLRB 27 (1979), in which
the Board held that a discharged striker need not make an unconditional
offer to return to work
82 Respondent argues that certain employees would not have accepted
its offers of reinstatement even if made . I believe that this issue was not
Executive Vice President Staderman, Schneller, and
Vanderkieft denied telling anyone that Respondent was
going out of business and also denied telling employees
or hearing employees being told that they would never
be rehired. Staderman and Vanderkieft further stated
that Respondent never made a decision not to rehire em-
ployees because they struck.
Staderman further stated that no employee requested
reinstatement during the first 2 weeks of the strike. How-
ever, he added that during the period October 10
through 12 , four employees requested reinstatement and
were hired.84 One other employee requested reinstate-
ment and was hired in early November.85
Staderman asserted that in late October or early No-
vember, employee Bert Stark requested reinstatement
and was told that there was not enough business to war-
rant his rehire . From that time until December 31, the
only other person rehired was Donohue, who failed to
appear for work in late November as set forth above.
Schneller denied telling anyone that Respondent was
going out of business or that he would never return to
work.
Schneller testified that after the five employees were
rehired , about six others" in mid-November requested
to speak to Staderman regarding a return to work, at a
time when there were no openings . Staderman advised
them to talk to Respondent 's attorneys.
However, Schneller stated that many strikers told him
that they would like to return to work . But when these
statements were made in early November , no work was
available because Respondent was able to operate the
trucks with nonunit employees.
Schneller stated that since October 1, Respondent
hired only eight to nine full-time employees and hired
part-time employees depending on their availability and
Respondent's needs.
Vanderkieft testified that striking employees had not
been rehired, except for a few, because they did not re-
quest reinstatement . He added that there was work avail-
able in the first 3 months of the strike if they had re-
quested reinstatement , and he instructed Staderman to
hire any strikers who requested reinstatement during that
period . Staderman, too, testified that after October 1, Re-
spondent "probably would have used anybody that we
could have got out hands on."
It is apparent and I find that Respondent rejected the
unconditional offers to return to work made by the strik-
ers.
Regarding the effect of the strike on Respondent's
business, prior to October 1, it operated 18 trucks per
day and, on peak days, such as the beginning of the
month, operated 20 to 24 trucks . Those trucks made 300
stops per day and were manned by 48 unit employees, 42
of whom were full-time workers . Those trucks were op-
fully litigated, and in addition is more appropriately considered in a com-
pliance proceeding . Abilities & Goodwill, supra at fn. 5.
B' The four employees were John Livigni, Anthony Mangano, Paul
Mattcheck, and Kevin Rice
es That employee was Douglas Smith.
86 Donohue, Mulcahy, and four unnamed employees.
RAPID ARMORED TRUCK CORP.
erated 10 hours per day, and the employees were guaran-
teed 42- 1/2 hours of work per week.
During the first week of the strike , Respondent operat-
ed one to two trucks per day , and had no full-time unit
employees employed . Instead, Corporate Officials
Barone, Vanderkieft , and Schneller worked on the trucks
with the mechanic, dispatcher, and night guard.
About October 10 through 12, Respondent reinstated
four former strikers but still operated only about three
trucks which made morning runs only . Shortly thereaf-
ter, one or two full -time employees and certain part-time
employees were hired . In late November, Donohue was
hired for roll call work, as set forth above . Through the
end of December, Respondent generally operated three
trucks per day and occasionally four trucks.
From January through December 1980, Respondent
operated four trucks and occasionally five trucks per
day, and in June 1980 had seven to eight full -time em-
ployees.
At the time of the hearing, Respondent operated 6
trucks per day and employed 8 full -time and about 10
part-time employees . Of the six trucks, only one has a
full run of 8 hours . The others run 4 to 6 hours.
Evidence was also adduced which showed that Re-
spondent 's gross income decreased dramatically after the
strike, from $109,956 in September to $15 ,361 in October
1979. However, Respondent's gross income has steadily
increased since then to $56 , 116 in September 1980.
The Board law with respect to economic strikers and
their right to reinstatement on making an unconditional
offer to return to work is rather well settled . Strikers,
whether economic or unfair labor practice strikrs , retain
their status as employees under Section 2 (3) of the
Act.87
An economic strike is deemed to be protected activity
under Section 7 of the Act. However , an employer is
free in such circumstances to hire permanent replace-
ments for economic strikers at any time prior to their un-
conditional offer to return to work . It is an unfair labor
practice for an employer to refuse reinstatement to strik-
ing employees following an unconditional offer by the
striking employees to return to work, or to discharge
striking" employees prior to the time their jobs are
filled by permanent replacements.
An employer who refuses to reinstate striking employ-
ees on their unconditional offer to return must establish
that its action was based on legitimate and substantial
business justification, i.e., when the stikers' jobs have
been replaced by permanent replacements or when the
job has been eliminated by legitimate and bona fide rea-
sons.89
The Supreme Court has held that an employer who re-
fuses to reinstate economic strikers who make uncondi-
tional offers to return to work has the burden of proving
that the strikers have been permanently replaced.90
B4 NLRB Y. MacKay Radio & Telegraph Co., 304 U.S. 333 (1938).
se NLRB Y. Fleetwood Trailer Corp., 389 U .S. 375 , 378 (1967).
s9 NLRB v. Fleetwood Trailer, supra; NLRB v. Great Dane Trailers, 388
U.S. 26 (1967).
90 Id.
385
In Laidlaw Corp.," the Board stated that:
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer conduct,
standing alone , is so inherently destructive of em-
ployee rights that evidence of specific antiunion
motivation is not needed . Specifically in Fleetwood,
the Court found that hiring new employees in the
face of outstanding application for reinstatement
from striking employees is presumptively a violation
of the Act, irrespective of intent unless the employ-
er sustains his burden by showing legitimate and
substantial reasons for his failure to hire the strikers.
As set forth above , and as I have found , it is clear that
many employees unconditionally offered to return to
work. Certain of those offers were made prior to Octo-
ber 10,92 the date Respondent alleges the first striker
made such an offer and was reinstated.
The General Counsel met her burden by establishing
that certain alleged discriminatees were striking employ-
ees who made unconditional offers to return to work,
and that Respondent, by failing to reinstate such employ-
ees, "engaged in discriminatory conduct which could
have adversely affected employee rights to some
extent "92
Respondent has not met its burden of proving that the
strikers had been permanently replaced . Thus, the strik-
ers made unconditional offers to return to work before
any replacements were hired . Indeed there was no evi-
dence as to when the replacements were hired. Respond-
ent did not meet its burden of so proving . Respondent
reinstated four strikers in the period October 10 through
12, and a fifth former striker was reinstated in early No-
vember. However, Respondent hired an additional 3 to 4
full-time employees, who are apparently new hires,94
and about 10 part-time employees.9 a Thus, it was not
proven that the three to four full-time new employees
were permanent replacements . 96 Nor does it appear that
9 1 171 NLRB 1366, 1369 (1968).
92 Offers were as follows:
McGuire-Oct. 5 or 8
Long-week of Oct. 8
Niles-Oct. 9
Palmero-Oct. 25
Shea-Oct. 22
Lynch-Oct. 8
Fitzgerald-Oct. 15
Stark-Oct. 12 or 15
Allocco-same period as Long and Stark
Mungiguerra-Oct. 19
Giacalone-week of Oct. 1
99 NLRB Y. Great Dane Trailers, supra.
94 Schneller testified that since October 1, Respondent hired eight to
nine full-time employees, which subtracted from the five reinstated strik-
ers, leaves three to four new hires.
as If it were proven , which it was not, that the part-time employees
were permanent replacements, their hire would not have violated the
strikers' reinstatement rights . Certified Corp., 241 NLRB 369, 373 (1979).
9e Zapex Corp., 235 NLRB 1237 , 1238-1239 (1978). Indeed , Schneller
testified that a total of 40 unit and nonunit employees were hired since
October 1, and that some left . This might be evidence of the temporary
nature of their employment status.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these replacements were hired before the strikers made
unconditional offers to return to work.
It is most inconsistent and contradictory for Respond-
ent to claim , as it did, that its decline in business did not
warrant the hire of the strikers, while Officials Stader-
man and Vanderkieft testified that after October 1 and
during the first 3 months of the strike97 it would have
hired any of the strikers who requested reinstatement.
This is especially true where Schneller, who testified that
many strikers9S told him that they wanted to return to
work, further testified that these statements were made
to him in early November when no work was available.
This statement , of course , stands in direct contradiction
to that of Vanderkieft who stated that Respondent
would have hired anyone who requested reinstatement in
the first 3 months of the strike. 99 In view of this con-
flicting testimony , I must reject Respondent 's defense of
refusal to reinstate the strikers because of legitimate and
substantial business justifications.
Accordingly, Respondent has not established that its
failure to reinstate the strikers on their unconditional
offers to return to work was justified by legitimate and
substantial business justifications and, therefore, Re-
spondent's failure to reinstate those strikers who made
unconditional offers to return to work constituted unlaw-
ful discrimination under Section 8(a)(3) of the Act.'00
d. Vacation pay issue
The General Counsel alleges that Respondent condi-
tioned the payment of accrued vacation pay to its strik-
ing employees on their resignation as employees. During
the strike, the strikers requested their accrued vacation
pay. Staderman admitted asking for the resignation of
employees as a condition of their receiving vacation pay.
Staderman stated that inasmuch as the vacation earned in
1979 would not ordinarily be payable until 1980,101 he
offered the employees an opportunity to obtain their va-
cation pay by resigning, pursuant to the contract's provi-
sion for payment of such pay to employees who have
been terminated.
The collective-bargaining agreement provides, inter
alia, as follows:
In the event of termination of employment of a
regular or extra employee for any reason, vacation
pay for service performed during the current year
shall be prorated and shall be paid at the time of
termination, together with all vacation pay earned
for service during the entire preceding calendar
year which has not been previously taken or paid
for.
Some employees resigned and received their checks.
Some did not resign and sued in Small Claims Court for
99 That would be through December 31
9s Thirty to forty percent of the strikers.
99 Compare also Staderman's testimony that after October 1 , Respond-
ent probably would have used anyone that it "could have got our hands
on"
100 Consolidated Dress Carriers, 259 NLRB 627 (1981), Associated Gro-
cers, 253 NLRB 31, 32 (1980); Zapex Corp, supra.
101 The contract provides that all vacation credits shall be computed
on the basis of service performed during the preceding calendar year
their vacation pay, but all employees received their vaca-
tion pay by the end of June 1980.
There is thus no dispute that the employees accrued
vacation benefits by virtue of their work in 1979. Such
benefits were payable , pursuant to the contract, in
1980.1 02 Respondent contends and Staderman testified
that the 1980 vacation period would not begin until June
1980. However , the contract on which Respondent bases
its right to request resignations from employees states
that "the vacation period shall extend from January 1 to
December 31 of each year."103
The General Counsel does not allege that Respondent
unlawfully denied the payment of accrued vacation pay
to the strikers . Rather, he alleges that Respondent unlaw-
fully conditioned the payment of such vacation pay to its
employees on their resignation as employees . Respondent
argues that inasmuch as the strikers were not yet eligible
at the time of their requests in October to receive vaca-
tion pay, it provided them with an opportunity, by re-
signing, to obtain such benefits pursuant to that provision
of the contract permitting the payment of pro rata ac-
crued vacation pay to terminated employees.
An employer has an obligation to pay striking employ-
ees benefits, including vacation pay, which accrued at
the time a strike occurs . 104 Apparently , under the con-
tract, the accrued vacation pay earned in 1979 which the
employees requested would not be payable until January
1, 1980. Accordingly, Respondent properly refused to
give them such pay when they requested it in October
1979. However, Respondent went much further than
merely refusing to pay them then . It solicited and re-
quested that the strikers sign resignations from employ-
ment.
Such a request for resignation as a condition to the
payment of accrued vacation pay is clearly calculated to
force employees not only to abandon the strike,1011 but
also to surrender their rights as employees.106 Respond-
ent therefore "conditioned payment of accrued vacation
compensation upon cessation of a union -instigated eco-
nomic strike." 107
In NLRB v. Great Dane Trailers, 388 U.S. 26 (1967),
the Supreme Court decided that an employer 's refusal to
pay accrued vacation benefits to strikers while at the
same time paying such benefits to nonstrikers constituted
a violation of the Act. In so deciding, the Court held
that:
[I]f it can reasonably be concluded that the employ-
er's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ..
109 See fn 101, supra.
1os The prior contract which ran from 1974 to 1977 provided for a
vacation period of January 10 to December 15.
104 Crane Co, 244 NLRB 103, 115 (1979).
'° Id. at fn . 1; McCann Steel Co, 191 NLRB 299, 300 (1971)
106 Sec . 2(3) of the Act provides that employees on strike remain em-
ployees until they have obtained other regular and substantially equiva-
lent employment See Elmac Corp., 225 NLRB 1188, 1189 (1976)
109 Industrial Workers AIW Local 289 v NLRB, 476 F 2d 868, 878
(D C. Cir 1973).
RAPID ARMORED TRUCK CORP.
er introduces evidence that the conduct was moti-
vated by business considerations.108
Respondent could simply have refused to pay the
strikers vacation pay based on its reliance of the contrac-
tual provision for payment in 1980 . Instead, its solicita-
tion of resignations of employment by the strikers repre-
sents the clearest case of conduct "inherently destructive
of important employee rights." What could be more im-
portant to an employee , particularly a striking employee,
than his continued status as an employee of the struck
company? Thus it is not necessary to determine whether
Respondent 's conduct was motivated by substantial busi-
ness justification. However, even if such inquiry were
necessary , I would find that Respondent has not estab-
lished that it was motivated by business considerations
for its conduct. Thus, although Respondent introduced
uncontradicted evidence illustrating its financial prob-
lems at the time, no evidence was adduced suggesting
that it was unable to meet the financial burden of the va-
cation debt. 10° Moreover, Respondent was readily able
to and did pay vacation money on the execution by em-
ployees of resignations from the Company . It also paid
vacation pay to those who sued for it in small claims
court.
I therefore conclude that the conditioning of the pay-
ment of accrued vacation pay to striking employees, on
their resignation as employees , violated Section 8(a)(1)
and (3) of the Act.
3. Summary
I have found that the picketing which commenced on
October 1 was illegal pursuant to Section 8(b)(7)(C) of
the Act, and that participation in such picketing consti-
tutes misconduct justifying Respondent in its refusal to
reinstate all the pickets . I have also found that inasmuch
as the additional alleged unfair labor practices of Re-
spondent all occurred as a result of the illegal picketing,
such unfair labor practice allegations must be dismissed.
In the event the Board does not accept my analysis
and findings regarding the illegality of the picketing, I
have made alternative findings which assume arguendo,
that the strike and picketing are lawful protected activi-
ty. Under such assumption, I have found that Respond-
ent violated Section 8(a)(1) by unlawfully threatening to
close its business and unlawfully threatening to discharge
its employees , and that these threats converted the eco-
nomic strike to an unfair labor practice strike . I have also
found that Respondent violated Section 8(a)(3) by unlaw-
fully discharging its employees by requesting the return
of their identification cards and uniforms and by request-
ing that they empty their lockers . In the event the Board
does not find that the strikers were discharged or that
ioe 388 U .S. at 34.
ios Industrial Workers, supra at 878.
387
the strike was converted to an unfair labor practice strike
by virtue of the threats to close and of discharge, I have
alternatively found the certain strikers made uncondition-
al offers to return to work, which offers were rejected.
Respondent did not meet its burden of establishing that
the strikers were permanently replaced before they made
unconditional offers to return to work . Nor did Respond-
ent establish a legitimate and substantial business justifi-
cation for refusing to reinstate the strikers on their un-
conditional offers to return to work . Respondent there-
fore violated Section 8(aX3) by failing to reinstate those
strikers who made unconditional offers to return to
work.
I have also alternatively found that Respondent violat-
ed Section 8(a)(3) by unlawfully conditioning the pay-
ment of accrued vacation pay to striking employees on
their resignation as employees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 807 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(aXl) and (3)
of the Act by failing and refusing to reinstate:
John J. Mulcahy
James McGuire
Wallace Long
Edward Mungiguerra
Thomas Curran
Bart Twomey
Thaddeus Kaplon
Ricahrd DiPaolo
Pasquale Lombardo
Vincent Mormile
James Donohue
Percival Niles
Edward Allocco
Anthony Cosenza
Michael Lynch
Vincent Giacalone
Frank Palmero
John Botts
Vito Sutera
James Quigley
Kevin Fitzgerald
Sidney Colin
Bertram Stark
Louis Tuminelli
Ronald Renne
William White
John Russell
Paul DeStefano
John W. Dudley
John Shea
Arthur P. Pellizzi
Vito Caputo
Charles McFarland
Joseph Inzerillo
Tom Puleo
Edward Lapinskas
Walter McMurray
Attillo Martino
4. Respondent did not violate Section 8(a)(1) and (3)
of the Act by discharging all its truckdriver employees
who participated in the strike which began on October 1,
1979.
5. Respondent did not violate Section 8(a)(1) and (3)
of the Act by conditioning the payment of accrued vaca-
tion pay to its employees who participated in the strike
on their resignations as employees.
6. Respondent did not violate Section 8(axl) of the
Act by threatening its employees with discharge or by
threatening its employees that it would close.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact, conclu-
sions of law , and the entire record herein , and pursuant
to Section 10(c) of the Act, I recommend the issuance of
the following 110
ORDER
The complaint is dismissed in its entirety.
10 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the poses.