Detroit Newspapers

DETROIT NEWSPAPERS 343 NLRB No. 113 1041 Detroit Newspaper Agency, d/b/a Detroit Newspapers and Local Union 13N, Graphic Communications International Union, AFL–CIO and Detroit Mailers Union No. 2040, International Brother- hood of Teamsters, AFL–CIO; Local No. 372, International Brotherhood of Teamsters, AFL– CIO and Detroit Mailers Union No. 2040, Inter- national Brotherhood of Teamsters, AFL–CIO and Local No. 372, International Brotherhood of Teamsters, AFL–CIO and Newspaper Guild of Detroit Local 22, the Newspaper Guild and De- troit Typographical Union No. 18, Communica- tions Workers of America and The Detroit News, Inc., and Newspaper Guild of Detroit, Lo- cal 22, The Newspaper Guild, and The Detroit Free Press and Newspaper Guild of Detroit, Lo- cal 22, The Newspaper Guild. Cases 7–CA– 38079, 7–CA–38081, 7–CA–38118, 7–CA–38216, 7–CA–38260, 7–CA–38313, 7–CA–38320, 7–CA– 38321, 7–CA–38322, 7–CA–38338, 7–CA–38347, 7–CA–38367, 7–CA–38393, 7–CA–39396, 7–CA– 38457, 7–CA–38487, 7–CA–38509, 7–CA–38545, 7–CA–38552, 7–CA–38706, 7–CA–38812, 7–CA– 39008, 7–CA–39105, 7–CA–39118, 7–CA–39119, 7–CA–39377, 7–CA–39396, 7–CA–39401, 7–CA– 39435, 7–CA–39436, 7–CA–39523, 7–CA–39525, 7–CA–39526, 7–CA–39548, 7–CA–39549, 7–CA– 39550, 7–CA–39570, 7–CA–39574, 7–CA–39593, 7–CA–39594, 7–CA–39596, 7–CA–39597, 7–CA– 39610, 7–CA–39813, 7–CA–39850, 7–CA–39894, 7–CA–39895, 7–CA–39901, 7–CA–39966, 7–CA– 40008, 7–CA–40024, 7–CA–40086, 7–CA–40118, 7–CA–40226, and 7–CA–40283 December 16, 2004 ORDER GRANTING MOTION FOR RECONSIDERATION BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH On June 30, 2004, the National Labor Relations Board issued a Decision and Order in this proceeding finding, in relevant part, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging a number of economic strikers, either without a good-faith belief that they had committed strike misconduct or where the strik- ers had not in fact committed the acts relied upon for the discharges.1 NLRB v. Burnup & Sims, 379 U.S. 21, 22 (1964). On July 14, 2004, the Charging Parties filed a motion for reconsideration. On July 29, 2004, the General Counsel filed his own motion for reconsideration. The 1 342 NLRB 223 (2004). Respondents Detroit News and Detroit Newspaper Agency filed oppositions to the motions. The Board has delegated its authority in this proceed- ing to a three-member panel. The Board has decided to grant the motions for recon- sideration. Section 102.48(d)(1) of the Board’s Rules and Regulations provides that a party may, because of “extraordinary circumstances,” move for reconsideration of a Board decision, and that the moving party must “state with particularity the material error claimed.” We agree with the contention of the General Counsel and the Charging Parties that the Board inadvertently made a material error with respect to the appropriate remedy and order for the unfair labor practices found. We correct our decision accordingly. In ordering the remedy for the unlawful discharges, the Board stated that the discriminatees should be reinstated with backpay from the dates of their discharges, unless they had been permanently replaced before the Union made its unconditional offer to return to work in Febru- ary 1997. In the latter event, the discriminatees would be afforded the rights of permanently replaced economic strikers under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The General Counsel and the Charging Parties cor- rectly argue that the Board erred in focusing on whether the discriminatees were permanently replaced before or after the Unions’ unconditional offer to return, and not on whether they were lawfully permanently replaced before they were discharged. Thus, the Board inaccu- rately treated the discriminatees as merely economic strikers rather than as unlawfully discharged strikers. Unlawfully discharged strikers are entitled to reinstate- ment and backpay running from the dates of their dis- charges regardless of when, or even if, they made an un- conditional offer to return to work. Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979). If the strikers were lawfully per- manently replaced2 before they were discharged, how- ever, their rights to reinstatement and backpay are con- tingent on the departure of the employees who replaced them. Hormigonera Del Toa, Inc., 311 NLRB 956, 957– 958 fn. 3 (1993). Thus, under Abilities & Goodwill and Hormigonera Del Toa, Inc., supra, the discriminatees’ entitlement to reinstatement and backpay depends on whether they were lawfully permanently replaced before their unlawful dis- charges, or after. Specifically: (1) if a striker is unlaw- 2 I.e., replaced prior to making an unconditional offer to return to work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042 fully discharged and then permanently replaced, he is entitled to immediate reinstatement and backpay running from the date of the discharge (regardless of when, or if, he unconditionally offers to return to work); (2) if the striker is lawfully permanently replaced before being discharged, he is entitled to reinstatement upon the de- parture of his replacement, with backpay running from the date of the replacement’s departure.3 In this case, the Board inadvertently provided an inac- curate discussion of the discriminatees’ right to relief.4 We shall correct our Decision and Order accordingly. Accordingly, we shall grant the Charging Parties’ and General Counsel’s motions and modify our Decision and Order as set out below.5 ORDER The Charging Parties’ and General Counsel’s motions for reconsideration are granted. Accordingly, the Board’s Decision and Order is modified, and the Re- spondent, Detroit Newspaper Agency, d/b/a Detroit Newspapers, Detroit, Michigan, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for the last sentence in the first partial paragraph and the first and second full para- graphs on page 3 of the decision. “Consequently, we revise the judge’s recommended remedy and Order to grant the discriminatees the rights of unlawfully discharged economic strikers. “Unlawfully discharged economic strikers are entitled to immediate reinstatement to their former jobs or, if those positions no longer exist, to substantially equiva- lent positions, and to receive backpay running from the dates of their unlawful discharges until they are offered reinstatement, unless they were lawfully permanently replaced before they were discharged. Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979). Any discriminatees who were lawfully permanently replaced before they were unlawfully discharged are entitled to full reinstate- 3 Hormigonera Del Toa, Inc., supra, 311 NLRB at 957 fn. 3. How- ever, if he is permanently replaced before the discharge but after mak- ing an unconditional offer to return to work, the replacement is unlaw- ful, and the discriminatee is again entitled to immediate reinstatement and full backpay. 4 In Detroit Newspapers, 340 NLRB 1019 (2003), in which we used similar language, the relevant discharges occurred after the Union’s unconditional offer to return in February 1997. In those circumstances, any striker who was replaced before the Union made its offer was nec- essarily replaced before he was discharged. Accordingly, we do not need to correct the remedy in that case. 5 Member Schaumber would not include Larry Skewarczynski in the below Order because he did not find his discharge unlawful in the earlier decision. ment to their former positions on a nondiscriminatory basis either upon the departure of the permanent re- placements or, if those positions no longer exist, to sub- stantially equivalent positions, unless they have in the meantime acquired other regular and substantially equivalent employment or the employer can show that it failed to offer reinstatement for legitimate and substantial business reasons. Hormigonera Del Toa, Inc., 311 NLRB 956, 957–958 fn. 3 (1993); Rose Printing Co., 304 NLRB 1076 (1991). Such individuals are not owed backpay for any period of time in which their replace- ments continued in the employer’s employ during the backpay period. “In accordance with these principles, we shall order the Respondent to offer to reinstate Floyd Davis Jr., An- thony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Skewarczynski, Harry Thompson, and Mike Youngmeier immediately to their former posi- tions. In the event that Respondent lawfully permanently replaced any of them prior to their unlawful discharges, the Respondent shall place them on a preferential hiring list, based on seniority, or some other nondiscriminatory basis, for employment as jobs become available. The strikers shall be made whole for any loss of earnings and other benefits suffered as a result of their unlawful dis- charges, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).”6 2. Substitute the following for paragraph 2(a): “(a) Within 14 days from the date of this Order, offer Floyd Davis Jr., Anthony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Skewarczynski, Harry Thompson, and Mike Youngmeier full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, if they were not lawfully permanently replaced prior to their unlawful discharges, dismissing if neces- sary any replacements hired thereafter. If no employ- ment is available for the discriminatees, or if they were lawfully permanently replaced before being unlawfully discharged, they shall be placed on a preferential hiring list based on seniority, or some other nondiscriminatory test, for employment as jobs become available.” 6 In regard to striker Anthony Edwards, Respondent DNA offered to reinstate him on April 23, 1996, but he refused. While Edwards was within his rights to reject this offer and continue his strike, his backpay should be tolled for the period between the offer of reinstatement and the date when the Respondent failed to offer him the reinstatement rights extended to the other returning strikers. See Abilities & Good- will, 241 NLRB 27 fn. 5 (1979). DETROIT NEWSPAPERS 1043 3. Substitute the attached notice for that in the Decision and Order. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discourage our employees’ activity on behalf of a labor organization by discharging striking employees, without an honest belief that they had en- gaged in serious misconduct, or where they had not en- gaged in serious misconduct. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Floyd Davis Jr., Anthony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Ske- warczynski, Harry Thompson, and Mike Youngmeier, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed, if they were not lawfully permanently replaced before their unlawful discharges, dismissing if necessary any replacements hired thereaf- ter. If no employment is available for the discriminatees, or if they were lawfully permanently replaced before being unlawfully discharged, WE WILL place them on a preferential hiring list based on seniority, or some other nondiscriminatory test, for employment as jobs become available. WE WILL make Floyd Davis Jr., Anthony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Skewarczynski, Harry Thompson, and Mike Youngmeier whole for any loss of earnings and other benefits result- ing from their discharges, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Floyd Davis Jr., Anthony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Skewarczynski, Harry Thompson, and Mike Young- meier, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. DETROIT NEWSPAPER AGENCY D/B/A DETROIT NEWSPAPERS