282 N.L.R.B. 1255 (N.L.R.B. 1987)

Trident Recycling Corp. And Port Distributing Corp.

National Labor Relations Board - Board DecisionsFeb 17, 1987

282 N.L.R.B. 1255 (N.L.R.B. 1987)

TRIDENT RECYCLING CORP. Trident Recycling Corp . and Port Distributing` Corp. and Local 23-25, Blouse, Skirt, and Sportswear Workers' Union , International Ladies' Garment Workers' Union, AFL-CIO. Case 29-CA- 11160 17 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 13 March 1986 Administrative Law Judge Steven Davis issued the, attached decision. The Re- spondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judg'e's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Trident Recycling Corp, and Port Dis- tributing Corp., Long Island City, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 2(a) and (b). "(a) Offer the affected employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- 'The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 'The judge made findings on reinstatement and backpay issues. We find merit in the Respondent's argument that these issues were not fully litigated and are best left to the compliance stage of the proceeding Ac- cordingly, we shall modify the recommended Order and notice Chair- man Dotson would overrule Abilities & Goodwill, 241 NLRB 27 (1979), and would date the Respondent's backpay obligation to the discharge strikers from the time they made an unconditional offer to return to work. The judge included a visitatorial clause in his recommended Order au- thonzing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we shall modify the judge's recom- mended Order We have also modified the notice to conform to the Order 1255 ly" enjoyed, and make them whole for any loss of earnings, and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section. of. the decision." Kyung Mon Kim Young Moon Kim Je Kwon Son Hyung Uk Choe Ki Hong Song Jong Chan Yun Sun Hong Lee Chang Jin Yi Kyung Sup Lee Yong Soon Lee Sung Kook Peal Yong Su Im, Tae Hyun Im Manno'Sik Ahn Cheul Park Ki Wook Kim Hyo Jin Kim Song Hun Lee Moo Kan Kim Min Sung Chung Seung Ki Min Kwang Hyun Ko Sun Choe Ho Yong Chool Yoo Soong So Pak Kye Joon Choi Sung Nam Choi Hyo Seop Kim Jong Kook Lim Dae Jin Yun . Chang Hee Kang Yong Ho Lee Chu Su Kang Bong Seo Hyun "(b) Remove from the Respondent 's files any ref- erence to the discharges of all affected employees and notify them in writing in English and in Korean ' that this has been done and that evidence of these discharges will not be used , as a basis for future discipline against them." 2. Delete paragraphs 2(c) and (d) and reletter the subsequent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and ' abide by this notice. WE WILL NOT discourage concerted activities of our employees in violation of Section 8(a)(1) of the National Labor Relations Act by discharging them for engaging in a lawful work stoppage. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer the affected employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent jobs, discharging, if necessary, any employees hired to replace them; WE WILL re- 282 NLRB No. 170 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store their seniority and other rights and privileges previously enjoyed; and WE WILL pay them back- pay they lost because we discriminatorily dis- charged them with interest. Kyung Mon Kim Young Moon Kim Je Kwon Son Hyung Uk Choe Ki Hong Song Jong Chan Yun Sun Hong Lee Chang Jin Yi Kyung Sup Lee Yong Soon Lee Sung Kook Peal Yong Su Im Tae Hyun Im Manno Sik Alin Cheul Park Ki Wook Kim Hyo Jin Kim Song Hun Lee Moo Kon Kim Min Sung Chung Seung Ki Min Kwang Hyun Ko Sun Choe Ho Yong Chool Yoo Soong So Pak Kye Joon Choi Sung Nam Choi Hyo Seop Kim Jong Kook Lim Dae Jin Yun Chang Hee Kang Yong Ho Lee Chu Su Kang Bong Seo Hyun WE WILL remove from our files any reference to the discharges of the affected employees and WE WILL notify them in writing that this has been done and that evidence of these discharges will not be used as a basis for future discipline against them. TRIDENT RECYCLING CORP. AND PORT DISTRIBUTING CORP. Meredith Fisher, Dolores Gebhardt, and Lynn Neugebauer, Esqs., for the General Counsel. John B. Rosenquest III, Esq. (Edwards & Angell), of Prov- idence, Rhode Island, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge filed on 18 April 1984 by Local 23-25, Blouse, Skirt and Sportswear Workers' Union, Interna- tional Ladies' Garment Workers' Union, AFL-CIO (Union), a complaint was issued by Region 29 of the Na- tional Labor Relations Board on 1 June 1984, against Trident Recycling Corp. and Port Distributing Corp. (Respondent or Respondents). The complaint alleges that Respondent discharged and failed to reinstate 34 strikers because they engaged in a strike and concerted work stoppage. The complaint fur- ther alleges that the dischargees made unconditional offers to return to work but Respondent refused to rein- state them because they engaged in the strike and other concerted activities. Respondent's answer denied the material allegations of the complaint, and on 5 and 6 August and 7 and 8 Octo- ber 1985, a hearing was held before me in New York City. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Trident and Respondent Port, New York corporations, having offices in Long Island City, New York, are engaged in the wholesale sale and distribution of beer and recycling of beverage containers. Trident an- nually processes, sells, and ships recycled glass and alu- minum valued in excess of $50,000 directly outside New York State, and Port buys and receives beer valued in excess of $50,000 from outside New York State. For the purposes of this proceeding, Respondents have been af- filiated business enterprises with common officers, own- ership, directors, and management; have formulated and administered a common labor policy affecting employees of said operations; have shared common premises and fa- cilities; have provided services for and made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as a single-integrated business enterprise, and by virtue of their operation, constitute a single-integrated business en- terprise and a single employer within the meaning of the Act. Respondent stipulated that they are and have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IT. ALLEGED UNFAIR LABOR PRACTICES A. Background In early 1984, Teamsters Local 46 organized Respond- ent's employees, requested and was granted recognition, and began negotiations for an initial contract. One of the Union's demands, a wage rate of $8 per hour, was reject- ed by Respondent. The employees, apparently motivated by the Union's failure to obtain the wage raise sought, filed a decertification petition on 1 February 1984.1 A second bargaining session was canceled when it became known that the petition was filed.2 On 9 March, Supervisor Tae Jun Kang authorized the early release of day-shift employees due to inclement weather. However, General Manager Richard Horan re- fused to allow such early release and directed Kang to tell the workers that they must work the full day. Kang told them that Horan ordered them to stay but that the decision was up to them. The employees left. Horan re- quested that Respondent Official Hellmuth Laufer disci- pline Kang but Laufer refused. Kang told Respondent's consultant, Young Hee Kim, that he wanted to quit be- cause he was an ineffective manager. Kim had been told by certain workers that Kang was not communicating their demands to Respondent; that they could not work with him and there was much dissension between them. 1 All dates hereafter are in 1984 unless otherwise stated 2 On 17 February the petition was dismissed when Local 46 disclaimed interest in representing the employees TRIDENT RECYCLING CORP. On 15 March, a meeting was held at which all em- ployees were told that they must work a full day. B. Employee Meetings Certain night-shift employees believed that Kang was to be discharged and decided to request that he be re- tained.3 Accordingly, employees met on 24 March at Kang's house and spoke about writing a letter in Kang's behalf. They also discussed certain alleged poor working condi- tions such as ineffective masks; insufficient health insur- ance coverage, and low wages. The following day, 25 March, the employees met at the same place and wrote a "letter of appeal" that stated essentially that the workers (a) demanded that Kang be retained, (b) refused to work with a supervisor other than Kang, (c) agreed to wait 24 hours for an answer and if no answer was received within 24 hours, they would goon strike for 72 hours, and (d) would "discuss further" if no answer was received within 72 hours. The letter was duplicated and given to at least one su- pervisor to obtain signatures of the workers. On '27 March, employee Moo Kon Kim saw a copy of the letter on the desk of one of Respondent's officials. That evening, employee Moo Kon Kim spoke to his fellow night-shift employees concerning a strike, wage raise, working conditions, and the "union mess," on ap- parent reference to their brief representation by the Teamsters Union. The following day, 28 March, employees again met at Kang's house. They spoke about Kang, who they be- lieved had already been discharged, and also discussed union, wages, safety, and insurance matters. Another letter was written that demanded, inter alia, (a) wages be raised to at least $8 per hour, (b) life and health insur- ance, (c) improved safety conditions, and (d) union rep- resentation. The letter also stated that the employees would strike until their demands were met, but noted that Respondent should negotiate with the workers. The employees decided that workers Moo Kon Kim and Hyo Jim Kim should take the letter to Respondent Official Laufer, and agreed that if Laufer did not "listen" to the demands or if no response was made they would strike. That night Moo Kon Kim called more than 40 employ- ees and explained this course of action. C. The Events of 29 March The next day, 29 March, Manager Horan for the first time saw the letter regarding Kang. He showed it to Laufer who was upset that the employees were attempt- ing to tell him who Respondent should have as a manag- er. Moo Kon Kim was at the shop about 1:30 p.m. and asked the arriving night-shift workers to sign the second demand letter. The strike began that evening when few, if any, night-shift employees worked. Moo Kon Kim met with Laufer that day. Apparently, Laufer raised the issue of Supervisor Kang. Kim replied 3 It is unclear when Kang left. Respondent's records state that Yang resigned on 16 March but worked until 28 March Horan testified that Prang worked on 29 March and quit and left work on 30 March 1257 that he was not talking about- Kang. Rather, said Kim, the dispute concerned a wage raise, working 'conditions, and job safety.4 Shortly thereafter, another meeting was held between the men at which Respondent's consultant, Young Hee Kim, acted as interpreter in relaying the, demands.5 Laufer refused to agree to an $8 per hour wage and asked that Moo Kon Kim check the wages paid by other recycling companies in other areas, adding that after that was done, they could speak further about wages. As to insurance, the workers wanted the Respondent to pay a greater share of their premium. Laufer responded that it was company policy that it pay only 60 percent ' of the premium, and that he could not -make exceptions. Job safety was also discussed,6 with Laufer agreeing to whatever changes were requested.' The meeting ended with Young Hee Kim refusing, to interpret further. Laufer stated that he told Moo Kon Kim to return to work-"all is forgiven." Moo Kon Kim testified that Laufer said, "let's see what. I can do," and asked that if the workers wanted work they should come tomorrow and, if not, he would hire new employees. After the meeting, Moo Kon Kim told the employees that if Respondent did not listen they would continue the strike. Sometime that day Manager Horan posted a sign on the door of the plant that', 'said "Recycling employees wanted." D. The Events of 30 March The next day, 30 March , at 6:30 a.m. the striking night-shift employees spoke to the arriving day-shift workers. Moo Kon Kim told them that he presented de- mands to Laufer, and Respondent did not listen and did not want to discuss the issues. He showed them the demand letter and asked them to join the strike . Nearly all did . They also selected Moo Kon Kim and Hyo Jin Kim to again meet with Laufer which they did. At the meeting, Moo Kon Kim gave the demand letter to Laufer and they discussed wages, insurance, and job safety . As to the wage demand , Laufer refused the $8- per-hour demand and asked the men to check the wages paid at recycling plants in Brooklyn and New Jersey, adding that they could talk further after the wages were surveyed . Laufer also refused to modify the insurance ar- 4 This brief conversation described above is a composite of both men's testimony Although Laufer stated that Kim made no response to Laufer's comment that he was upset that he was being forced to accept a supervisor, Laufer's admission that Kim mentioned that he wanted $8 per hour supports Kim's testimony that he told Laufer that he was not con- cerned with Kang, but rather with economic and other work issues 5 It was stipulated that Young Hee Kim was authorized to speak in Respondent's behalf regarding labor relations matters affecting Korean- speaking employees and had authority to hire and did hire certain Korean-speaking employees. 6 I do not credit Moo Kon Kim's testimony that job safety was not discussed Laufer and Young Hee Kim both consistently stated that safety was mentioned In addition, Moo Kon Kim stated that Young Hee Kim read the first page of the demand letter, which included issues of worker safety The fact that he concedes that it was also discussed the following day is also evidence that it was brought up at this time T Such requests included proper ventilation, helmets, safety glasses, masks, gloves, protective clothing, and first aid supplies 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rangement , but he agreed that the demands concerning job safety were "no problem," and he acquiesced to the requested improved safety conditions. Horan entered the room and told Laufer that he just heard that a Korean supervisor had been beaten the pre- vious night. Laufer admittedly told the two workers that "I heard that you people beat up a Korean supervisor." Hyo An Kim became angry and threatened to sue Laufer for making this accusation.8 ' At that point, according to Moo Kon Kim-and Hyo Jin Kim, they were told by Laufer that they were all fired and they should leave.9 Laufer denies telling the men they were fired. He stated that official Ricardo Fajardo asked the two to leave the office. In fact, Laufer asserts that during the meeting he twice asked the men to return to work. Following the meeting, the two workers told about 40 strikers that they spoke to Laufer regarding wages, insur- ance and working conditions, and everyone had been dis- charged. Moo Kon Kim returned to the plant later to obtain his paycheck. He was refused entry by Kent McKelvey, a technical consultant. Moo Kon Kim went to the police, who arranged for the employees to pick up their checks in the office. Employees entered, were given their checks by Consultant Young Hee Kim, and, according to Moo Kon Kim and Hyo Jin Kim, were told by Young Hee Kim that if they wanted to work for Respondent they should fill, out a job application. None of the work- ers took an application. Young Hee Kim testified that when she distributed the paychecks she asked the work- ers to return to work, adding that anyone wanting to come back should complete an application. No one did so. Moo Kon Kim stated that when he met with the strik- ing employees that day, some workers told him that they had to return to work for financial reasons, and that it was decided that certain employees could return to work on Monday, 2 April. He also stated that he heard that Korean supervisors called all the employees that day and asked them to return to work, and that 10 did so. E. The Efforts to Return to Work On 2 April , one to three strikers returned to work. A stack of job applications were placed at the timeclock by Respondent Consultant Kent McKelvey. Official Horan noticed that the employees were hesitant about punching in and he removed the applications . They then punched in." Horan testified that that week, four temporary em- ployees were hired, but no new permanent employees were hired . However, Respondent 's payroll indicates that 10 workers were hired that week.' o 8 Apparently, Hyo Jin Kim believed that Laufer was accusing him, personally, of the'assault 9 Moo Kon Kim stated that Laufer said that "everyone is fired " Hyo Jm Kim testified that Laufer said "you are all fired " io On 2 April, Alvarado, Nazario, Hauser , Lee, Pak, and Cha On 3 April, You and Choi and on 4 April, Cornell and Cruz Hauser and Cor- nell resigned on 16 April Moo Kon Kim stated that on 3 April he asked Laufer "can we return to work," and Laufer answered that it was too late-he already hired other employees. Laufer stated that on that day he saw Moo Kon Kim with a newspaper reporter, who asked him what was happen- ing. Laufer replied that the workers wanted $8 per hour and that was "out of line" because other companies were paying $4.25 per hour. Respondent's records reveal that the following new employees were hired: three on 30 March"; three on 31 March12; six on 2 April13; two on 3 April14; two on 4 April' 5; and one on 13 April1 s About 10 April, about 30 employees picketed. The picketing lasted about 5 days. On 12 April, a petition was given to Respondent signed by 17 employees who "unconditionally agree to return to work." According to Moo Kon Kim, the other 13 employees in the unit did not want to return to work. The Company's records reveal that on 13 April, six strikers were sent letters as follows:'' We are gearing up for the summer and for that reason we would like to call you back immediately under the same conditions as they existed previous- ly. In case we do not hear from you in 48. hours after receipt of this letter we must assume that you are no longer interested in your position. The records further reveal that three of the workers re- turned-from 16 April to 23 April;' 8 and that the Com- pany was informed that two were unavailable for em- ployment.' 9 None of the six signed the 12 April petition offering to return to work, but all were listed in the complaint as having been discharged on 30 March. Respondent sent a letter dated 19 April to the 17 peti- tion signers. The letter stated, in material part: We presently have no openings for production employees. . . . We have however placed your name on a recall list and you will be offered rein- statement to a' position for which you are qualified as soon as an opening occurs. Reinstatement offers will be made to the most senior qualified employees as openings occur. The records further reveal that on various dates in June, the following letter was sent to 28 employees listed in the complaint.20 11 William Bryan, Myeun Dong Cho, and Richard Conway 12 Mendel Fauche, William Norman, and Yong Due Jun iJi George Alvarado, Arulio Nazario, Marion Hauser, Kang Lee, Yang Choon Pak, and Kil Chun Cha 14 Buung Soo You and Jin Koo Cho 1s Moody Cornell and George Cruz is Elliot William 17 Kyung Mon Kim, Sung Kook Peal, Tae Hyun Im, Yong Su Im, Manno Sik Ahn (Man-Shik Ahn in complaint), and Cheul Park 18 Peal , Yong Im, and Tae Im 19 Park and Ahn 20 See the accompanying chart for the names and dates set forth in the letters' TRIDENT RECYCLING CORP. We are gearing up for the summer and, for that reason we would like to call you back immediately under the same conditions as they existed previous- ly. 1259 - In case we do not hear from you by to start by we must assume that you are no longer interested in your position. Employee Date of Letter Answer Required Started Work Received by Employee Mailed by Respond- ent Hyo Jin Kim ................ ............... 21 June ............. .... .. 29 June............... .... 2 July..................... 22 June......'............ 22 June Moo Kon Kim ................... ........ 21 June..................... 29 June..................... 2 July .................... 7 July ................... Min-Sung Chung........................ 8 June..................... .. 15 June............ ........ 18 June........... .......... Hyo-Seop Kim .............................. 21 June...... ........... 29 June..................... 2 July .................... 22 June.................... 22 June Seung-Ki Min ..... ................... . 8 June..................... 15 June ......... ........ .. 18 June..... ... .......... Chang Hee Kang ............................ 21 June..................... 29 June.................... 2 July ...................... 23 June................... 23 June Young Moon Kim .......................... 21 June...................... 29 June..................... 2 July ...................... 2 July ..................... 2 July Ki Hong Song ............................. 21 June..................... 29 June..................... 2 July ........................ 25 June...................... 25 June Kyung-Man Kim .............................. 13 April..................... 48 hours...........;........ ......................... 14 April................. Jong Kook Lim ......................... 21 June..................... 29 June..................... 2 July ..................... 22 June................... 22 June Bong-Seo Hyun ............................ 22 June..................... 29 June...................... 2 July..: .... ............... 22 June.......... ........ 22 June Yong Ho Lee ............................. 21 June.................... 29 June . ................. 2 July ....................... 23 June:................... 23 June Dae Jin Yun .................................. 21 June..................... 29 June...................... 2 July ............. ........ 22 June ................... 22 June . . ... .. . . . . . .Ko ...... .. . . . . .Kwang Hyun ......................June21 .June ...............2, 9 0 ...................2 July . . . . . . . . .. .. . . . . . .............Sun-Chae Ho .June12 20 June ...................... e ne.....................23 Illegible................... Jong Chan Yun .............................. 12 June..................... 20 June .................... 23 June..................... Unclear.................. 16 June Kyung Sup' Lee ............................. 21 June..................... 29 June...................... 2 July...................... 26 June.................... 26 June Yong ChooI Yoo ............................. 12 June .................... 20 June..................... 23 June.................... 25 June................... Chu Su Kang.................................. 21 June...................... 29 June...................... 2 July....................... 23 June................... Yong Soon Lee ............................. 21 June..................... 29 June..................... 2 July ....................... 27 June..................... 27 June Sang Hun Lee .............................. 12 June...................... 20 June...................... 23 June..................... 18 June ................... 18 June Soong-So Pak .............................. 8 June...................... .. 15 June................... . 18 June.................. 13 June. .................. Sung-Kook Peal ............................. 13 April.................... 48 hours................... Returned to work 14 April ................... 16 April. Kye-Joon Choi ................................ 8 June........................ 15 June.................... 18 June .................... 25, June..................... Je Kwon Son.. .............................. 12 June............ ....... 20 June..................... 23 June.................... 25 June.. .............. 25 June Sung Nam Choi ........................... 8 June...................... 15 June..................... 18 June................. 13 June.................. Hyung Uk Choe ............................. 12 June .................... 20 June.................... 23 June..................... ... ....................... 23 June Tae-Hyun Im .......................... ...... 13 April..................... 48 hours .................... Returned to work 14 April .................. 23 April. Sun Hong Lee ...... ........................ 12 June................... . 20 June............... ..... 23 June .. ................ Illegible................... 16 June 'Yong Su Im ................................. 13 April.................... 48 hours................... Returned to work 14 April .................. 16 April. Chang Jm Yi ................................... 12 June...................... 20 June................... 23 June................... 16 June.................... 16 June Manno Sik Ahn ............ ............. 13 April................... 48 hours ................... 14 April ................. . Cheul Park ..... :.............................. 13 April.................... 48 hours ................... 14 April .................. . ]Key Wan Kim ................................ 12 June.................... 20 June...................... 23 June. ................. 20 June.............:..... 20 June III. ANALYSIS AND DISCUSSION A. The Alleged Discharge This case presents difficulty in determining whether a mass discharge occurred on 30 March as alleged by the General Counsel. My resolution of this issue turns on the critical meeting of that day and subsequent events. An analysis of the meeting is not easy because of the -prob- lem in communication between the participants. The two ]Korean employees were not fluent in English and Laufer did not speak or understand Korean. At earlier, impor- tant meetings a translator was present, but not at this one. At the hearing, they testified 'partly in English and partly through an interpreter. The General Counsel's evidence on this issue is as fol- lows: During a discussion of wages, insurance, and job safety, Laufer was told by Official Horan that a Korean supervisor had been beaten. Laufer told the two workers that he heard that "you people" beat the supervisor. Hyo Jin Kim threatened to sue Laufer for making the accusa- tion and then Laufer told them that "everyone is fired" or "you are all fired." The two workers told the other employees this. Later that day, when the employees re- ceived their pay for the week, they were told to com- plete a job application if they wanted to work for the Company. Thereafter, on 2 April, job applications were placed at the timeclock when returning strikers arrived at work. The following day, Moo Kon Kim asked Laufer "can we return to work?" and Laufer responded that it was too late-other employees were already hired. 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's case is essentially its witnesses' denial that Laufer told the two workers that anyone was fired. Respondent also asserts that Moo Kin Kim's ad- mission that Korean supervisors called all the workers that day and asked them to return to work and that 10 did so is totally inconsistent with a mass discharge. Re- spondent also attacks the credibility of Moo Kin Kim and Hyo Jin Kim. It is clear that if I credit the version of Moo Kon Kim and Hyo Jin Kim as to the 30 March meeting, I must find that the entire bargaining unit was discharged. I do credit them. 2' Their command of the English lan- guage, although not perfect, was sufficient to permit them to carry on and understand a conversation with Laufer. At the hearing, they were cross-examined in detail, in English, about the critical meeting, and im- pressed me with their ability to understand the questions asked and to respond in English. Therefore, although an interpreter was not present at the 30 March meeting, I am convinced that they were told and understood that Laufer fired all the employees. It is believable that Laufer told the two men that ev- eryone was fired. A moment before, he was told that a Korean supervisor was beaten. Although Horan denied that Laufer appeared angry and conceded that he was simply "concerned," he nevertheless asked Horan if the supervisor needed medical attention or filed a police report. He also thought it necessary to mention at the meeting that he was disappointed that certain supervi- sors' car tires were slashed. It is therefore understandable that in a pique, after Hyo Jin Kim stood and loudly and angrily threatened to sue Laufer for accusing him of beating the supervisor, that Laufer would have fired "ev- eryone." Immediately subsequent events convince me that Re- spondent probably did want its employees to return to work immediately. Thus, I believe Laufer's testimony, corroborated by Young Hee Kim, that at lunch that day after the discharge meeting, he asked her to do whatever she could to have the workers return to work, essentially because bottles and cans needed processing immediately and were piling up. But for some reason the impression given employees was quite different, and I must view the events "through the strikers' eyes." Pennypower Shopping News, 253 NLRB 85 (1980). Thus, although Young Hee Kim asked the employees to return to work, she also admittedly told them that "anyone who wants to come back to work, please fill out an application." This demand that workers complete an application, only 1 day after the strike began, could only have left the distinct impression on the workers that they were fired and had to reapply for jobs. The Board has found that a request to a striking employee that he complete an application is some evi- 21 I agree with Respondent that Moo Kon Kim misinformed his fellow workers by telling them on 29 March that Laufer did not want to talk it is clear that Respondent invited further discussion However, this does not impair his credibility to such a degree that I would find him unwor- thy of belief I note that the critical 30 March conversation was corrobo- rated by Hyo Jin Kim Also corroborated was the fact that he relayed to all the workers the message that they had been fired dence that he was fired. The Board stated in Famous Supply Co., 254 NLRB 768, 771 (1981): While employee Briggs was picketing Green ap- proached him and told him that if he wanted a job he would have to fill out an application and that maybe the employer would call him to work. This clearly indicated to Briggs that he was no longer employed. In the instant case, Respondent, when it requested the completion of applications, did not even say that perhaps it would recall the workers, but just said that the work- ers should fill one out. No one did. I reject Respondent's contention in its brief (p. 29) that there was no evidence that the presence of the job appli- cations deterred, employees from returning. Official Horan testified that on 2 April, one to three employees returned to the shop, had timecards in their hands, and appeared hesitant to punch in because of the presence of the applications at the timeclock. Horan removed the ap- plications and the workers punched in and returned to work. It has been stated that the law relating to the discharge of strikers is marked by subtle distinctions and that it is sometimes difficult to determine whether an employer has discharged a striker. Lipsey, Inc., 172 NLRB 1535, 1547 (1968). Each case requires an examination of the facts. C & W Mining Co., 248 NLRB 270, 273' (1980). In determining whether a striker has been discharged, the events must be viewed through the striker's eyes and not as the employer would have viewed them. Pennypower Shopping News, supra. The Board in Ridgeway Trucking Co., 243 NLRB 1048 (1979), stated: The test for determining whether [an employer's] statements constitute an unlawful discharge depends on whether they would reasonably lead the employ- ees to believe that they had been discharged and the fact of discharge does not depend on the use of formal works of firing . . . . It is sufficient if the words or actions of the employer would logically lead a prudent person to believe his tenure has been terminated. There can thus be no doubt that Moo Kon Kim and Hyo Jin Kim believed they were fired. They were told by Laufer that everyone had been fired. They communi- cated this to all the workers. The discharge was rein- forced in their minds when, only several hours later, they picked up their paychecks and were -told that anyone desiring to return should complete an applica- tion. They were thus being -treated as new employees who were being required to apply for employment. The impression they received therefore, at that moment, was that their applications would be considered before they could be rehired. Accordingly, there could be no doubt in the minds of the employees at that time that they had been fired. To be sure, after the discharge Respondent diligently attempted to have the employees return to work. It is TRIDENT RECYCLING CORP. conceded by Moo Kon Kim that Korean supervisors called all employees on the evening of 30 March, after the discharge, and asked them to return to work and, as a result, 10 did so. However, although this effort may be relevant on the issue of remedy, it has little bearing on whether a discharge occurred prior thereto. The dis- charge had already occurred, and Respondent sought to have the workers return to fill its orders. In this connection, the fact that immediately after the firing some employees expressed a desire to return to work following workday, and Moo Kon Kim said that "we decided some people can go to work," is'not incon- sistent with the fact that a discharge occurred, but is completely consistent with an offer to return to work on abandoning a strike. B. The Employees Were Engaged in Protected, Concerted Activities On 24 March, employees met and discussed alleged poor working conditions-ineffective masks, insufficient health insurance coverage, and low wages. They also discussed their belief that Supervisor Kang was improp- erly discharged. For the following few days, the same issues were spoken about by them. On 28 March a letter was written that outlined such demands as a wage raise, better life and health insurance, and improved safety conditions, and threatened that the employees would strike until their demands were met. The letter did not mention Kang. The strike, which began on 29 March, was clearly concerned with the wage, insurance, and safety issues set forth above. Just prior to the strike, Moo Kon Kim asked the workers who were beginning their shift to sign the letter con- cerned with those demands, and the subsequent discus- sions between Official Laufer and the workers dealt with issues unrelated to the discharge of Kang. The evidence thus clearly demonstrates that the strike occurred in order to obtain higher wages, better insur- ance, and improved 'safety conditions. A strike for such objects constitutes protected, concerted activity, and dis- charging employees for engaging in such activity vio- lates Section 8(a)(1) of the Act. Holiday Inn, '274 NLRB 6137 (1985); Shogun Restaurant, 273 NLRB 775, (1984); Mr. Steak, Inc., 267 NLRB 553 (1983). As set forth above, the evidence clearly shows that the employees were fired for engaging in a strike over wages, insurance, and working conditions. When they were told that everyone was fired, they were in the middle of discussing employee demands. Even if Laufer was angered by Hyo Jin Kim's threat to sue him, the only reason he would have for firing all the workers was because they were engaging in a strike, The strike became an unfair labor practice strike on the discharge of the employees on 30 March. C. The Offers of Reinstatement Because of the unlawful discharge of all the strikers, Respondent is required to make them whole by paying them backpay for any earnings lost as a result of its un- lawful discharge of them from the date of the unlawful 1261 discharge to the date of an offer of reinstatement. Semi- nole Mfg. Co., 272 NLRB 365 (1984). There is sufficient evidence for me to make findings as to whether Respondent tolled its backpay liability by of- fering reinstatement to their former positions.22 Thirty-four employees are listed in the complaint as having been discharged. Only 17 signed the 12 April offer to return to work. Moo Kon Kim testified that he contacted the nonsigners and they told him that they did not like the Company and did not want to return to work. I reject the 'Respondent's argument that the rein- statement and backpay rights of the 17 nonsigners are ex, tinguished because of their failure to offer to return to work and their expression of a wish not to return. Dis- charged strikers are not required to offer to return to work. Abilities & Goodwill, 241 NLRB 27.(1979). More- over, there is no evidence that Respondent knew, at any time, of their unwillingness to return to work, and indeed it did attempt to offer reinstatement to them at a later time, which will be discussed infra. 1. The contacts of 30 March There was testimony that when employees picked up their paychecks on 30 March after the mass discharge, they were asked by Young Hee Kim to return to work. At the same time, however, she asked them to complete applications. Moo Kon Kim testified that in the evening of 30 March, Korean supervisors called "each person," and most workers received a call to return to work. He was not called. As a result, 10 employees returned to work. I cannot find that these contacts with employees amounted to valid offers of reinstatement . The Young Hee Kim request was tainted and made conditional by her demand that employees wishing to return to work fill out applications. The evidence regarding the calls in the evening of 30 March is too vague 'and indefinite to make findings on. Thus, although "each person" was ap- parently called, not all received the call. In addition, we do not know what the supervisor said to the employees, or to whom the remarks were made. The Board has stated that an employer's offer of reinstatement must be "specific, unequivocal and unconditional." Standard Ag- gregate Corp., 213 NLRB 154 (1974). 2. The offers of 13 April As set forth above, six strikers were sent letters dated 13 April that offered immediate reinstatement under the same conditions. The letter also stated that: In case we do not hear from you in 48 hours after receipt of this letter we must assume that you are no longer interested in your position Three of the strikers returned-from "16 April to 23 April As to them, Sung Kook Peal, Yong Su Im, and Tae Hyun Im, I shall not order that Respondent offer 22 All the Respondent's records relating to this issue were received in evidence without objection 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them reinstatement, or order reinstatement, and I will toll backpay at 13 April. As to Manno Sik Ahn, Respondent's records state that it was told that he had a new job, and as to Chuel Park, Respondent was told that he was in Hawaii. It is undis- puted that they were sent offers of reinstatement, did not respond, and were apparently unavailable for work. Under these circumstances, I shall not order that Re- spondent offer them reinstatement or order reinstate- ment, and I will toll backpay at 13 April. As to Kyung Mon Kim, he was sent an offer of rein- statement, but as set forth above, was given only 48 hours to decide whether he wanted to return to Re- spondent. Such short notice is insufficient time and the offer is therefore not valid. Freehold AMC-Jeep Corp., 230 NLRB903 (1977). The Respondent's records indicate that Ki Wook Kim returned to work on 11 April, but resigned on 14 April. Inasmuch as he did return to work, I shall not order re- instatement and shall toll backpay at 11 April. 3. The offers of June As set forth above, on various dates in June, strikers were sent a letter offering immediate reinstatement under the same conditions. The letter also stated that: In case we do not hear from you by to start by we must assume that you are no longer interested in your position. As set forth in the chart, supra, employees received varying degrees of notice. Generally, I do not find that an offer was sufficient that requires employees to decide within 4 days whether they will accept reinstatement. Freehold AMC-Jeep Corp., supra; Betts Baking Co., 173 NLRB 1018 (1968). There are several categories of mailing and receiving dates here: (1) Those letters to which are attached a return receipt indicating a readable date received by the employee. (2) Those letters bearing a written notation as to when they were mailed by Respondent. (3) Those letters having a return receipt attached bear- ing an illegible date of receipt.23 (4) Those letters not having a return receipt attached and not bearing a notation as to when they were actually mailed. As to category 1, I find that a valid offer of reinstate- ment was made to the following employees who re- ceived sufficient notice in which to decide whether they wished to return to work. Because the actual date of re- ceipt is known, there can be no question as to how much time they had for this purpose: Hyo Jin Kim, Hyo Seop Kim, Jong Kook Lim, Bong Seo Hyun, and Dae Jin Yun,24 (7 days). Chang Hee Kang, Yong Ho Lee, 25 and 23 I permitted the receipt in evidence of copies of the return receipts with the caveat that they should be legible 24 Dae Jin Yoon in complaint 25 Yung Ho Lee in complaint. Chu Su Kang26 (6 days). I will accordingly not order them to be reinstated, and I will toll backpay as of the date the offer was made. ' As to category 2, there is some question as to whether the notation on the letter, which states when it was mailed, is correct. In all instances, where a legible return is attached, the date of mailing is the same as the date of receipt of the letter. It is most unlikely that a letter will be received by the addressee on the same date that it was mailed. In any event, in no case where the date of mailing was indicated on the letter was there sufficient notice to the employee. I have found that any letter giving employees 4 days or less to notify it is insufficient. Respondent's ap- parent lack of good faith is demonstrated in certain in- stances where the letter was mailed after the date on which the employee was to notify Respondent of its answer : Young Moon Kim (mailed 2 July-requires answer by 29 June); Je Kwon Son mailed 25 June-re- quires answer by 20 June); Hyung Uk Choe (mailed 23 June-requires answer by 20 June). Ki Hong Song, Jong Chan Yun, Sun Hong Lee, Chang An Yi (4 days); Kyung Sup Lee (3 days); Yong Soon Lee, Song Hun Lee (2 days). In making these findings I am guided by the principle that "it is the employer who carries the burden of dem- onstrating a good-faith effort to communicate the offer to the employees. L.A. Water Treatment, 263 NLRB 244, 246 (1982); Lipmann Bros., 164 NLRB 850, 853 (1967). I will therefore order that a proper offer of reinstatement be made to the employees above. As to categories 3 and 4, there is no reliable way to know when those letters were actually mailed by Re- spondent. Thus, although they bear a date on the top thereof, the date of mailing as to certain letters varied substantially from the date on the letter as set forth above. Accordingly, I cannot rely on the date on the letter to find whether sufficient notice was given to the employees. This is particularly true where the dates on the letter including the date on the top thereof and the dates for notifying Respondent and returning to work were altered on many of the letters, apparently before they were sent . The Respondent "carries the burden of demonstrating a good faith effort to communicate the offer to the employees." L.A. Water Treatment, supra. I will accordingly require that proper offers of reinstate- ment be sent to the following employees: Moo Kon Kim, Min Sung Chung, Seung Ki Min,27 Kwang Hyun Ko, Sun Choe Ho,28 Yong Chool Yoo, Soon So Pak, Kye Joon Choi, and Sung Nam Choi.21 I shall leave to the compliance stage of this proceeding a determination, if necessary, of Respondent's defenses to the reinstatement of employees-namely, that (a) after the strike began it did not resume a second shift, (b) it ceased crushing bottles in early 1985, and (c) at the time of the hearing about 16 employees worked overlapping 8-hour and 4-hour shifts which ends at 6:30 p.m., during 2s Chu Su Kang in complaint 27 Sung Ki Min in complaint 28 Son Choe Ho in complaint 29 Sung Nam Choi in complaint TRIDENT RECYCLING CORP which the workers crush cans, load-and unload trucks, and check the products . I should note that reinstatement is being ordered for 20 employees , and the evidence con- cerning Respondent 's defenses is inadequate and insuffi- cient to make findings concerning that. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. By unlawfully discharging the following employees on 30 March 1984 , for engaging in a lawful work stop- page, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act: Min Sung Chung Hyo Seop Kim Seung Ki Min Chang Hee Kang Young Moon Kim Moo Kon Kim Ki Hong Song Kyung Mon Kim Jong Kook Lim Ki Wook Kim Bong Seo Hyan Yong Ho Lee Dae Jin Yun Kwang Hyun Ko Son ,Choe Ho Jong Chan Yun Kyung Sup Lee Yong Chool Yoo Hyo Jin Kim Chu Su Kang Yong Soon Lee Song Hun Lee Soong So Pak Sung Kook Peal Kye Joon Choi Je Kwon Son Sung Nam Cho Hyung Uk Choe Tae Hyun Im Sun Hong Lee Yong Su Im Chang Jin Yi Manno Sik Ahn Cheul Park 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. I. As set forth above, I have found that Sung Kook Peal, Yong Su' Im, and Tae Hyun Im were reinstated. Accord- ingly, I shall not order their reinstatement, nor shall, I order that an offer of reinstatement be made. In addition, I Shall order that backpay for them be tolled at 13 April 1984, the date the offer of reinstatement was made. Offers of reinstatement were also made to Manno Sik Ahn and Cheul Park, who did not respond thereto, and were unavailable for work. I shall, accordingly, not order that they be reinstated or that offers of reinstate- ment be made as to them. In addition, I shall order that backpay be tolled at 13 April 1984, the date that the offer of reinstatement was made. Ki.'Wook Kim returned to work on 11 April 1984, but resigned on 14 April. I shall not order his reinstatement or that he be offered reinstatement , and I shall toll back- pay at 11 April. Valid offers of reinstatement were made to the follow- ing employees, who received such offers within a suffi- 1263 cient period of time. I will, accordingly, not order their reinstatement nor shall I order that offers of reinstate- ment be made to them. I shall toll backpay as of the date the offer was made, which is set forth next to their names: Hyo Jin Kim-22 June ' 1984 Hyo Seop Kim--22 June Jong Kook Lim-22 June Bong Seo Hyun-22 June Dae Jun Yin-22 June Yong Ho Lee-23 June Chang Hee Kang--23 June Chu Su Kang-23 June II. There has been insufficient evidence that proper offers of reinstatement were sent to the following em- ployees and that they had ,sufficient time to respond to them. I shall therefore order that a proper offer of rein- statement be made to: Kyung Mon Kim Young Moon Kim Je Kwon Son Hyung Uk Choe Ki Hong Song Jong Chan Yun Sun Hong Lee Chang An Yi Kyung Sup Lee Yong Soon Lee Song Hun Lee Moo Kon Kim Min Sung Chung Seung Ki Min Kwang Hyun Ko Sun Choe Ho Yong Chool Yoo Soong So Pak Kye Joon Choi Sung Nam Choi In accordance with Board policy, it is recommended that the Respondent be ordered to offer the 20 above- named employees listed in paragraph II immediate and full reinstatement to their former positions or, if such po- sitions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing , if neces- sary, any employees hired on or since the date of their discharges to fill either of those positions and make them whole for any loss of earnings they may have suffered by reason of the Respondent's acts herein detailed, by payment to them of sums of money equal to the amounts they would have earned from the date of their unlawful discharge to the date of an offer of reinstatement, less net earnings during such period, with interest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). III. It is also recommended that the Respondent be or- dered to make the employees set forth in paragraph I whole for any loss of earnings they may have suffered by reason of the Respondent's acts herein detailed, by payment to them of sums of money equal to the amounts they would have earned from the date of their unlawful discharges to the date that I have found that backpay should be tolled less net earnings during such period, with interest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed30 ORDER The Respondent, Trident Recycling Corp., and Port Distributing Corp., Long Island City, New York, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging concerted activities of its employees in violation of Section 8(a)(1) of the Act by discharging its employees for engaging in a lawful work stoppage. (b) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take 'the following affirmative action necessary to effectuate the policies of the Act. (a) Offer the following employees immediate and full reinstatement to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any employees hired to replace them, and make them whole for any loss of pay they may have suffered by reason of the Respondent's unlawful discharge of them in accordance with 'the recommendations set forth in the remedy section of this decision. Kyung Mon Kim Young Moon Kim Je Kwon Son Hyung Uk Choe Ki Hong Song Jong Chan Yun Sun Hong Lee Chang Jin Yi Kyung Sup Lee Yong Soon Lee Song Hun Lee Moo Kon Kim Min Sung Chung Seung Ki Min Kwang Hyun Ko Sun Choe Ho Yong Chool Yoo Soong So Pak Kye Joon Choi Sung Nam Choi (b) Make whole the following employees for any loss of pay they may have suffered by reason of the Re- spondent's unlawful discharge of them in accordance with the recommendations set forth in the remedy sec- tion of this decision. Sung Kook Peal Hyo Seop Kim Yong Su Im Jong Kook Lim Tae Hyun Im Dae Jin Yun Manno Sik Ahn Chang Hee Kang Cheul Park Yong Ho Lee Ki Wook Kim' Chu Su Kang Hyo Jin Kim Bong Seo Hyun (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been 30 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses taken to comply . For the purpose of determining or se- curing compliance with this Order, the Board, or any of its duly authorized representatives , may obtain discovery from the Respondent , its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter , in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably related to compliance with this Order, as enforced by the court.31 (d) Remove from the files of the Respondent any ref- erence to the discharge of the following employees and notify them in writing, in English and in Korean, that this had been done and that evidence of these discharges will not be used as a basis for future discipline against them: Min Sung Chung Hyo Seop Kim Seung Ki Min Chang Hee Kang Young Moon Kim Moo Kon Kim Ki Hong Song Kyung Mon Kim Jong Kook Lim Ki Wook Kim Bong Seo Hyun Yong Ho Lee Dae Jin Yun Kwang Hyun Ko Son Choe Ho Jong-Chan Yun Kyung Sup Lee Yong Chool Yoo Hyo Jin Kim Chu Su Kang Yong Soon Lee Song Hun Lee Soong So Pak Sung Kook Peal Kye Joon Choi Je Kwon Son Sung Nam Choi Hyung Uk Choe Tae Hyun Im Sun Hong Lee Yong Su Im Chang Jin Yi Manno Sik Ahn Cheul Park (e) Post at its facility in Maspeth, New York, copies in English and Korean of the attached notice marked "Ap- pendix."32 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. $1 I have granted the General Counsel 's request for a visitatorial clause due to (a) the large number of discriminatees , (b) the possible complexity of the backpay computations, and (c) the fact that I deferred to the com- pliance stage of this proceeding a determination , if necessary , as to Re- spondent 's business defenses to a reinstatement order 32 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "