Bancroft Cap Company

BANCROFT CAP COMPANY Bancroft Cap Company and United Hatters, Cap and Millinery Workers International Union, AFL-CIO, and Its Local Union 130. Cases 26-CA 6986 and 26 CA 7096 September 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On July 12, 1979, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Admin- istrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety, and that the settlement agreement in Case 26-CA-6986 be reinstat- ed. I In affirming the Administrative Law Judge's conclusion that no violation of the Act occurred, we qualify his analysis regarding layoffs and vacancies, particularly his finding that absent a pretextuous "layoff" to cover up dis- charges, quitting, or termination, the length of the layoff is immaterial in the determination of whether a vacancy, to which an unreinstated striker would be entitled, exists. We have examined the entire record in this case, including the evidence which the General Counsel contends was improperly rejected by the Administrative Law Judge, and find that the General Counsel has failed to prove by a preponderance of the evidence that the laid-off employ- ees had no reasonable expectation of recall. See Certified Corporation, 241 NLRB 369 (1979). In this regard. we rely particularly on the fact that the layoffs involved here were for periods of only 2 to 7 days and were due to shortages of materials. Thus, on the facts of this case, we agree with the Administrative Law Judge's conclusion that there were no vacancies which Respondent was obligated to offer to unreinstated strikers. In light of our finding that Respondent did not violate the Act, we do not reach the issue of whether the telephone conversation between the Union's attorney, Bost, and Respondent's attorney. Cabe. after the end of the strike constituted a strike settlement agreement under United Aircraft Corporation (Pratt & Whitney Division), 192 NLRB 382 (1971). For the same reason. we find it unnecessary to reach the Administrative Law Judge's refusal to ap- prove the settlement agreement proposed by the Union and Respondent but rejected by the General Counsel. DECISION STATEMENI OF Elit CAS- JERRY B. SONE., Administrative Law Judge: This pro- ceeding, under Section 10(h) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on June 27 and 28, and October 25. 1978. in Little Rock. Ar- kansas. The original charge in Case 26-CA-6986 was filed on December 8. 1977. The first amended charge in Case 26 CA-6986 was filed on December 19, 1977. The second amended charge in Case 26-CA 6986 was filed on January 19, 1978. The original charge in Case 26 CA 7096 was filed on March 10. 1978. The first amended charge in Case 26 CA-7096 was filed on April 10. 1978. The consolidated complaint in this matter was issued April 12, 1978. The issues concern whether Respondent has (1) violated Section 8(aX3) and (1) of the Act by refusing to reinstate or recall to work certain named employees and others because of their participation in a strike or contrary to their rights as economic strikers. and (2) violated Section 8(a)(1) of the Act by making threats. The issues also con- cern whether a settlement agreement entered into by the parties and approved by the Regional Director has been violated or is a bar to the litigation of part or all of the issues of unlawful conduct. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by Respondent and the General Counsel and have been considered. Upon the entire record in the case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admis- sions therein. Bancroft Cap Company, Respondent, during a represent- ative 12-month period, in the course and conduct of its business operations purchased and received at its Cabot, Arkansas, location products valued in excess of $50,000 di- rectly from points located outside the State of Arkansas. During the same period of time Respondent sold and shipped from its Cabot, Arkansas, location products valued in excess of $50,000 directly to points located outside the State of Arkansas. As conceded by Respondent and based upon the forego- ing, it is concluded and found that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Hatters, Cap and Millinery Workers Union, AFL-CIO, and Local Union 130 of United Hatters, Cap and Millinery Workers International Union, AFL-CIO, each is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 245 NLRB No. 86 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. [tiL UNFAIR I.ABOR PRA(ICI(CES A. Prelininarv Issues' I. Supervisory status At all times material herein, the following named persons occupied the positions set opposite their names and have been, and are now, agents of Respondent and are supervi- sors within the meaning of Section 2(11) of the Act: Ste- phen Goldman, president; Martha Jones, plant manager; Thelma Jean Dixon, supervisor, garrison line and Cover line; and Esther Morris, supervisor, field cap line. 2. Bargaining unit All production and maintenance employees employed by Bancroft Cap Company at its Cabot, Arkansas, location, excluding all office clerical employees, professional employ- ees, working foremen, guards and supervisors as defined in the Act constitute an appropriate unit of Respondent's em- ployees for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union Since at least June 30, 1971, and until on or about Octo- ber 13, 1977, when the Union made an unconditional offer for return to work on behalf of all striking employees, the Union was the exclusive representative of all employees in the bargaining unit referred to above for the purposes of collective bargaining with respect to rates of pay. wages, hours of employment, and other terms and conditions of employment. 4. Collective-bargaining agreement During the period beginning July 1, 1976, and ending June 30, 1977, Respondent and the Union were parties to a collective-bargaining agreement which set forth the terms and conditions of employment of the employees employed in the bargaining unit described above. Since on or about October 14, 1977, and continuing to date, Respondent and the Union (United Hatters, Cap and Millinery Workers Union, AFL-CIO, and Local Union 130 of United Hatters, Cap and Millinery Workers Interna- tional Union, AFL-CIO) have been parties to a collective- bargaining agreement setting forth the terms and conditions of employment of the employees employed in the unit de- scribed above. 5. The economic strike On or about September 28, 1977, certain employees of Respondent, employed in the bargaining unit described above, ceased work concertedly and engaged in an eco- nomic strike at Respondent's Cabot, Arkansas, location. The strike referred to above continued until October 13, 1977, at which time the strike ended, and the Union, acting I The facts are based on the pleadings and admissions therein. on behalf of the striking employees, made an unconditional offer to Respondent for the return of all striking employees to their former positions of employment or to the maximum employment opportunity which the law allowed. 6. Strike settlement On or about October 13, 1977, Respondent and the Union entered into an oral strike settlement agreement that before hiring any employees not previously employed, Re- spondent would give preference in order of' plant seniority to those striking employees who had not already been re- turned to work or been offered a position. Thus, the facts reveal that on October 13, 1977, the Union notified Respondent by telegram that the strike was terminated as of 5 p.m., and the Union made an uncondi- tional application for reinstatement of the employees to their old jobs or the maximum employment opportunity which the law allows. The Union's telegram set forth that "the Union will insist in contacting employees to arrange return to work." The word "insist" was in such telegram by error, and on the next day a corrected telegram using the word "assist" was sent to Respondent. On October 14, 1977, Bost, an attorney for the Union, had a telephone conversation with Cabe, attorney for Re- spondent. What occurred is revealed by the following cred- ited excerpts from Bost's testimony. Q. Can you tell us what was said in that conversa- tion? A. Okay. I called Mr. Cabe to inform him person- ally that the union had ended the strike. And, I was asking him when we could get together to sign the con- tract. He told me that he was going to be in court for the next couple of weeks, and it would take a while for him to name the convenient time. That the company would consider the contract effec- tive as of the date the strike was ended. I asked that he have the company to draw up a seniority list of all the employees, so the people who had been out on strike could be called back according to seniority before there were any new people hired. He agreed to this, he said that there were six or-five or six employees that the company was alleging was guilty of strike misconduct, and I asked for their names so that we could start investigating this as soon as pos- sible. And as much as I remember, that was about the bulk of the conversation, it was a very brief telephone conversation. Q. Was there any mention of recall of employees? A. Well, we talked-he was going to draw up or have the company furnish the union with a list of se- niority and the employees would be recalled according to seniority. Following the above conversation, apparently within the next day or two, Cabe sent Bost a confirming letter relating to their conversation and agreements. 7. Respondent's business and employee work complement Respondent is engaged in the business of manufacturing caps and duffel bags. Some of Respondent's business is per- 548 BANCROFT CAP COMPANY formed pursuant to government originated contracts, and other business is performed pursuant to other contracts. As to some repeat work, Respondent sometimes builds up an inventory for use in filling contracts at a later date. As indicated, Respondent manufactures caps and duffel bags. Some of the contracts require similar production work and procedures as other contract requirements but differ as to color or material. Other contracts require different pro- duction work and procedures. In its manufacture and production of caps and duffel bags, Respondent employs sewing machine operators, in- spectors and packers, other stitching room employees. Beret equipment operators, warehouse employees, and cutting- room employees. Since Respondent's manufacturing demands are deter- mined by contracts and jobs orders under contracts, its needs for production work from its employees vary, depen- dent upon the ebb and flow of demand and availability of materials and supplies. Thus, because of the ebb and flow of material, supply needs, job orders, or contracts, Respondent has need from time to time either to lay off an employee or employees or to transfer an employee or employees to other work on other job orders. Thus, if there is a need for a layoff of employees working on a particular job order, and if there is a need for an employee elsewhere with similar skill and experience, the employee is transferred rather than laid off. Respondent attempts to avoid the selection of employees for layoffs by securing an employee to volunteer for a lay- off. If, however, volunteers are not forthcoming, and a transfer or assignment to other work cannot be offered, Re- spondent lays off the least senior employee performing work in the category involved on the job order. Employees are not told how long the layoffs will last. Employees who are on layoff status are either considered to be on temporary layoff or on permanent layoff. Employ- ees considered to be on temporary layoff are employees who have been laid off for less than 30 days. Employees considered to be on permanent layoff are those employees who have been on layoff for ever 30 days. Employees on permanent layoff status continue in employee status until terminated by discharge, quitting, or the taking or perma- nent employment elsewhere. Such permanent layoff status can continue for an indefinite period. Employees on perma- nent layoff can even work temporarily elsewhere with Re- spondent's permission. When work demands increase and there is a need to re- sume a higher level of production, Respondent utilizes the following method and policy in recalling, hiring, or "rein- stating" employees. If the job order involved, wherein an employee is needed, is expected to be 30 days or less, Re- spondent recalls employees who are experienced on the par- ticular job, and the recall is based on seniority of laid-off employees with such experience. If the job order involved, wherein an employee is needed, involves the commence- ment of a new contract, Respondent recalls employees from layoff based on seniority of employees, even if such em- ployee or employees have to have retraining for the job.' 2 Jones in her affidavit set forth that temporarily and permanently laid-off employees have equal recall rights. At the trial Jones testified that this was When Respondent needs additional employee production hours and it cannot secure employees from layoff status, Respondent hires new employees. During the period of time from October 13. 1977, to the date of trial in this matter, Respondent has not hired any new employees. Rather. on such occasions of needed additional employees. Respon- dent has reinstated economic strikers in accordance with the seniority rankings of the unreinstated economic strik- ers.l 8. Employee work complement, layoffs and recall to work of employees and reinstatement of economic strikers At the time of the termination of the strike on October 13, 1977. all of Respondent's employees, who were not striking employees, were permanent employees. Thus, Re- spondent's category of employees, not economic strikers, were () employees who did not go out on strike between September 28, 1977, and October 13, 1977, (2) employees who at some point of time went out during the strike of September 28, 1977, to October 13, 1977, but who had abandoned the strike and returned to work, or (3) employ- ees who were hired as permanent strike replacements. Since the termination of the strike on October 13, 1977, Respondent has not hired any new employees. It has had some layoffs, some recalls to work of laid-off employees, and some reinstatement of economic strikers. The facts clearly reveal that Respondent's policy and practice as regards its employees, laid-off employees, and its employees who were economic strikers and who have not been reinstated, is as follows: Up to May 1978 Respondent has treated its employees who were actually working at the plant and its laid-off em- ployees as its active work complement. Up to May 1978 Respondent has treated unreinstated economic strikers not as part of its active work complement but as economic strikers entitled to be reinstated when a vacancy existed to be filled as a result of a need for additional employees. As indicated, after October 13. 1977, and continuing to May 1978, Respondent, when it has had need to increase the number of employees actually working, has followed the following policy and practice. Respondent first attempts to increase the employees actually working by recalling em- ployees from layoff. At this point in consideration. unrein- stated economic strikers are not considered for recall along with the laid-off employees. If Respondent cannot meet its need for more actively working employees by recalling laid- not a correct statement and gave examples. I note that in Jones' affidavit her statement that temporarily and permanently laid-off employees had equal recall rights was qualified. Considering Jones' testimony and her affidavit in its totality, I am persuaded that there has been a confusion between the question of recall rights and the type of work employees were being recalled for. The facts reveal similar rights of recall of emporarily and permanentls laid-off employees for work expected to last less than 30 days. As to such recalls, the recalls are based on experience and seniority related to such work. The facts also reveal similar rights of recall for temporarily and per- manently laid-off employees for work on new contracts. As to such recalls, they are based on plant seniority, with retraining if necessary. It appears that in May 1978 Respondent and the Union agreed on the recall to work of certain unreinstated economic strikers, and, in doing so, bypassed the up to then practice of recalling laid-off employees before "rein- statement" of economic strikers. 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off employees, Respondent then attempts to fill its job needs by the reinstatement of economic strikers. The facts are clear that Respondent's practice and policy had resulted in and would result in laid-off employees with less seniority being recalled to work instead of reinstate- ment of economic strikers with more seniority up until May 1978. Around May 1978, and apparently as part of an effort to settle the issues in this case, Respondent did not follow its policy and practice of recalling laid-off employees. Instead, it reached agreement with the Union with respect to the need for additional working employees, for the reinstate- ment of certain unreinstated economic strikers, and for the recall of some already reinstated economic strikers who were qualified to do the work needed. B. Settlement Agreement Case 26-CA-6986, Post Settlement Conduct i. Charges-26-CA-6986; settlement-26-CA-6986 In Case 26-CA-6986 the Union filed an original charge on December 8, 1977, a first amended charge on December 19, 1977, and a second amended charge on January 19, 1978. On February 28, 1978, the Regional Director ap- proved a settlement agreement in disposition of the charges in Case 26-CA-6986. The composite effect of the charges in Case 26-CA 6986 reveals that the investigatory charges raised all the issues of conduct allegedly violative in the present consolidated com- plaint, excepting as may be said to be with respect to the time period following February 28, 1978. 2. Postsettlement conduct--the settlement agreement (approved on February 28, 1978, as a bar to litigation) The primary and essential issue for determination in this case is whether Respondent's policy and practice relating to recall of laid-off employees and reinstatement of economic strikers is discriminatory and violative of the principles of The Laidlaw Corporation, 171 NLRB 1366 (1968). It is clear that Respondent's policy and practice as set forth herein relating to the recall of laid-off strikers and reinstatement of economic strikers was in effect prior to the February 28, 1978, settlement agreement in Case 26-CA-6986 as well as after such settlement agreement. Respondent deviated from such policy and practice from May 1978, apparently as part of an attempt to settle the issues. Nevertheless, if the policy and practice, as detailed before herein, were unlawful and violative of the Act, the continuation of such policy and practice, whether there were in fact layoffs or recalls after February 28, 1978, would be violative of the Act because of the placement or economic strikers in a status unlawful within the meaning of the Act.' The issues in the consolidated cases involve issues of vio- lative conduct preceding the settlement agreement in Case ' The only issue of conduct violative of the settlement agreement or viola- tive of the Act after the settlement agreement (approved on February 28, 1978) is the issue of whether Respondent has violated the Act by refusing to reinstate economic strikers. 26 CA-6986, approved on February 28, 1978, but vacated on the date of issuance of the consolidated complaint in this matter. If the settlement agreement has not been violated by the continuation of Respondent's policy and practice relating to recall of laid-off employees and reinstatement of economic strikers, the settlement agreement should be rein- stated and bars the litigation of the presettlement conduct. Perhaps the use of the word "Laidlaw" to describe eco- nomic strikers' rights and the words "laid off" with respect to laid-off employees creates some confusion in understand- ing employees' rights. Economic strikers are not "laid off' employees. The economic strikers' rights are not similar to "laid off" employees' rights. Economic strikers are entitled to reinstatement to their jobs upon unconditional applica- tion for reinstatement if such jobs are available. Thus, if such jobs are not available because such jobs are filled by employees who were hired as permanent replacements for such strikers or were filled by permanent employees, eco- nomic strikers continue to be employees and are entitled to full reinstatement upon the departure of replacements un- less they have in the meantime acquired regular and sub- stantially equivalent employment, or unless the employer can sustain his burden of proof that the failure to offer reinstatement was for legitimate and substantial business reasons. The critical question, thus, is whether the positions to which the laid-off employees were recalled were "vacan- cies" or were positions filled by such employees even though on layoff. If such positions are not "vacancies," the economic strikers' right to reinstatement is not applicable to such positions. In my opinion, the determination of whether or not such positions being filled by the recall of laid-off employees are vacancies must be viewed in the context of the practice and past consideration of what a job position was. The facts in the case reveal that the ebb and flow of production demands and problems concerning materials and supplies necessitates the layoff and recall of workers and that the recall of employees is based on considerations of whether the expected work is to be of short or long dura- tion. Selection of employees for recall is based on consider- ation of the experience and seniority as related to the par- ticular work involved in the job order if the work or job is expected to be of short duration. Selection of employees for recall to work for a new contract or job order or for work expected to be of long duration is based on consideration of plant seniority. In the context of such facts and consider- ations, the job position of an employee cannot be consid- ered in limited terms. Rather, the job position of the em- ployee must be viewed in broad terms and to be that of holding a position in the overall work complement whether actively working or on layoff status.' Thus, I am persuaded that the recall of laid-off employees involved merely the change of a laid-off employee's job position from a position wherein he was not actively working to one wherein the employee was actively working. Thus, there did not exist a I Employees on leaves of absence would be included in such layoff status. There is no contention nor evidence to indicate that any of the laid-off employees recalled to work had been terminated by discharge or quitting. In sum, there is no evidence or contention that Respondent has recalled em- ployees from "layoffs" with the term "layoffs" used as a pretext to disguise the hiring of a former employee who had been discharged or had quit. 550 BANCROFT CAP COMPANY "vacancy" at the time of the recall of the "laid off' employ- ees, and the economic strikers' right of reinstatement was not applicable because a vacancy did not exist. Further, at the time of the termination of the strike on October 13, 1977, the Union and Respondent entered into a strike settlement consistent with the principles set out above. The strike settlement was to the effect that Respon- dent would recall the economic strikers in order of seniority before the hiring of new employees. The facts in this case reveal that Respondent has not hired any new employees. and where Respondent was not able to obtain enough em- ployees for working needs by the recall of laid-off employ- ees, Respondent has reinstated economic strikers.6 The General Counsel's contention is that the recall of laid-off employees, who had less seniority than unreinstated economic strikers at the time of such recall, is violative of the Act. The cases relied upon by the General Counsel con- cern discrimination in treatment between nonstrikers and strikers after the strikers have been reinstated. It is clear that once a striker has been reinstated a respondent cannot accord superseniority to nonstrikers. The question in this case is different and involves simply whether the economic strikers were entitled to reinstatement. As indicated, the facts do not reveal that there were "vacancies," and thus such rights of reinstatement were not applicable. If they were, it would not appear that the fact of higher or lesser seniority of the economic strikers would be relevant. Thus, if there were a vacancy, the economic striker would be enti- tled to fill the vacancy even if the economic striker's senior- ity were less than that of the employee who was hired or placed in such vacancy. I would note that, with respect to the General Counsel's contention that unreinstated economic strikers should have been reinstated rather than laid-off employees with less se- niority than the unreinstated economic strikers recalled, the General Counsel established that economic or business rea- sons had nothing to do with the Company's decision to call back laid-off employees prior to calling back economic strikers. The question of economic or business justification for refusal to reinstate economic strikers is concerned with the right of reinstatement of economic strikers at the time of the filling of a vacancy. The filling of jobs during the strike by nonstrikers or replacements is presumptively justified on an economic or business basis. In this case the facts reveal that there were no vacancies at the time of the contended violative conduct. If there had been vacancies, then Re- spondent would have had to reinstate the unreinstated eco- nomic strikers unless it had valid business or economic jus- tification for the placement of the other employees. The General Counsel argues that Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973), holds that eco- nomic strikers on a preferential hiring list have greater statutory rights than do laid-off employees. This is true, but it does not mean that economic strikers' rights to reinstate- ment constitute a status that is the status of laid-off employ- ees and that recall or reinstatement should be viewed as a mere seniority rights question. Rather, in Brooks, the em- I note that Respondent's agent, Jones. spoke about the "rehire" of eco- nomic strikers. The facts reveal, however, that the economic strikers were in fact reinstated at such times with their pnor rights. ployer had treated economic strikers as "laid off' employees and, because of contract provisions or practice, terminated such economic strikers, employees within the meaning of the Act, after the expiration of a 12-month period. The Board correctly viewed that "laid off' employees and "eco- nomic striker" employees had different status, that the eco- nomic strikers' status arose from participation in a lawful economic strike and that such participation was protected under Sections 7 and 13 of the Act, that the economic strik- ers' status was one protected as a statutory right which could not be defeated by treating such strikers as laid off employees. The General Counsel's theory of violation, as expressed in his pleadings and statements of position as reiterated and briefs, is simply that Respondent has violated economic strikers' rights by recalling from layoff employees who had lesser seniority than unreinstated economic strikers. The General Counsel does not contend, presented no evidence, and proffered no evidence in contention that the employees recalled from layoff had been terminated by discharge or by having quit, that the use of the term layoff to describe such employees was a pretextuous coverup for discharges or quits. Some argument has been made concerning the length of layoffs. However, the complaint allegations and the Gen- eral Counsel's arguments revealed a simple theory as previ- ously set forth. Thus, the complaint revealed layoffs of cer- tain employees for 2 to 7 days and recall of the same employees immediately after such layoffs instead of the re- instatement of economic strikers. Absent a contention that the term "layoff" was pretextuous to cover up discharges, quitting, or termination of such employees, the length of layoff of the employees is immaterial. The General Counsel's theory of violation is that "lay- offs" resulted in vacancies at the time of recall of the laid- off employees. In this case, the facts reveal that some em- ployees were on leaves of absence. In the context of the total facts, employees on leaves of absence must be viewed as equivalent to voluntary layoffs. Similar to the above rea- soning concerning the fact that layoffs were not the termi- nation of, discharge of, or the quitting of jobs by layoffs, leaves of absence do not reveal a termination of employ- ment. The General Counsel, in support of his theory that "layoffs" meant vacancies at the time of recall of such laid- off employees, argues that the decision in Ace Drop Cloth Co., Inc., 178 NLRB 664 (1969), reveals that an employee on maternity leave was deemed to have vacated her job and that an economic striker had been found to be entitled to reinstatement to such vacated position. The facts in such case reveal that an employee had gone on maternity leave for an extended time and that a new employee had been hired tofill the position held by such employee. Thus, it is clear that the employer in such case had considered such position va- cant, at least temporarily, and had filled the position, at least temporarily, with a new employee. Since such position was vacant, at least temporarily, it is clear that the Board correctly found that an economic striker was entitled to fill such vacancy. In the instant case, where Respondent has had vacancies created by the inability to recall laid off em- ployees, it has reinstated unreinstated economic strikers. The General Counsel argues that Wisconsin Packing Company, 231 NLRB 546 (1977), supports his contention 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the recall of laid-off employees with less seniority than the unreinstated economic strikers is violative of the Act. There is some language in such decision that appears to support his contention. The facts in such decision, however, reveal that certain employees, allegedly on "layoff" but who in fact had been terminated by discharges or quitting, were recalled to vacant positions, and that the economic strikers should have been reinstated to fill such vacancies. The facts also reveal that the respondent recalled other laid-off em- ployees and transferred such employees to fill vacant posi- tions. The findings are to the effect that the respondent uti- lized pretextuous means in order to fill vacancies to avoid the reinstatement of economic strikers. The facts in the Wisconsin Packing case are distinguishable from the facts in this case. Although, as indicated, some of the language in Wisconsin Packing appears to support the General Coun- sel's contentions, the meaning of such case must be con- strued in the context of the facts of the case. Thus, the language in such case, arguably supportive of the General Counsel's case, when viewed in the context of the facts of such case, does not support the General Counsel's conten- tion. If viewed as language not restricted to the facts of the case, such language must be viewed as mere dictum that does not stand up against an analysis of the Laidlaw princi- ples. In sum, the facts do not reveal that Respondent has dis- criminated against economic strikers by its recall of laid-off employees to work on, around, or after February 28, 1978. As to the reinstatement of certain unreinstated economic strikers to fill jobs in May 1978, contrary to its former prac- tice of recall of laid-off employees before the reinstatement of unreinstated economic strikers, such clearly would not constitute an act of discrimination against such unrein- stated economic strikers.' To agree with the General Counsel's contentions in this case would be tantamount to requiring Respondent to dis- charge, lay off, or continue employees in layoff status in order to reinstate economic strikers. This would be contrary to the Board's decision in Bio-Science Laboratories, 209 NLRB 796, 796-797 (1975). Thus, in Bio-Science the Board set forth as follows: The Administrative Law Judge found and we agree. that under The Laidlaw Corporation unreinstated eco- nomic strikers do not have the statutory right to recall in accordance with a collective-bargaining agreement provision covering recall from layoffs where the parties have not agreed to the application of such a clause to the reinstatement of economic strikers. We also agree with his further finding that Respondent's utilization of overtime in its radioisotopes section did not violate the Act. Finally the Administrative Law Judge concluded that Respondent's institution of its preferential rein- statement system, and its amendment to that system, 'There is no contention that economic strikers already reinstated were discriminated against by the May 1978 reinstatement of unreinstated eco- nomic strikers. Nor is there any contention that employees who did not strike and thereby also exercised a protected right under Section 7 of the Act were discriminated against. , therefore, have not passed on the academic question involved regarding the rights of such employees who were not en- gaged in the strike at the termination of the strike. did not violate the Act. Contrary to our dissenting col- league, we agree with the Administrative Law Judge that Respondent implemented its reinstatement system only after prior discussions with the Union and the Union's actions reveal that the positions of the parties on this issue were irreconcilably fixed. The Union's demand that Respondent terminate the employees who replaced the economic strikers is in di- rect conflict with the Supreme Court's holding in Mac- kqs Radio. In that case, the Court held: It does not follow that an employer, guilty of no act denounced by the statute, has lost the right to pro- tect and continue his business by supplying places left vacant by strikers. And he is not bound to dis- charge those hired to fill the places of strikers, upon the election of the latter to resume their employ- ment, in order to create places for them. Subsequent cases have not altered the Mackpal Ra- dio rule that an employer is under no obligation to discharge or lay off permanent replacements at the ter- mination of an economic strike. The decisions in Fleet- wood, Laidlaw, and Brooks Research all relate to rights of economic strikers to job openings occurring when permanent replacements quit their jobs subsequent to the termination of a strike. Here the Employer was willing to hire exclusively from the list of former strik- ers when job vacancies arose at a later date. Indeed, the Respondent hired former strikers exclusively and did not hire new applicants. The Union adamantly maintained during the strike and thereafter that the permanent replacements had to be terminated and the strikers returned to their jobs. The Employer was not obligated to capitulate to the Union's demand. We are here concerned with the Employer's insistence upon his right to retain permanent replacements at the end of a strike and an orderly procedure for recalling strik- ers as vacancies arose thereafter without running afoul of the decisions in Laidlaw and Fleetwood. Had the Employer not devised some procedure for the recall of former strikers as vacancies arose, it is highly likely that he would have been adjudged guilty of violations of Section 8(a)(l) and (3) of the Act under Laidlaw and Fleetwood. In the Bio-Science case, the Board discussed the question of respondent's bargaining with the union over the proce- dure for reinstatement. In the instant case, Respondent and the Union entered into a strike settlement concerning the termination of the strike. There ensued a continuation of the terms of the past collective-bargaining agreement. Fur- ther, the parties agreed that economic strikers would be recalled on the basis of seniority before there ould be any new hires. There have been no new hires by Respondent. In United Aircraft Corporation (Pratt & Whitney Division), 192 NLRB 382 (1971)., the Board found, under the circum- stances of that case, that it would best effectuate the policies of the Act to adopt the agreement of the parties as deter- mining the reinstatement rights of the economic strikers and that respondent, who had acted in accordance with 552 BANCROFT CAP COMPANY such agreement, had not violated Section 8(a)(3) and (I) of the Act by conduct which otherwise might have appeared not substantially in accord with the principles of Laidlaw. In the United Aircraft Corp. case the Board discussed public policy, the encouragement of collective bargaining, espe- cially with solving issues created by strikes and termination of strikes, and the benefits received by the union and em- ployees in the strike settlement. In the instant case, the Union and employees at the end of the strike received the benefits of a continuing contract, and the parties agreed to what appeared to be a clear understanding that economic strikers would be placed on a preferential hiring list and recalled before new hires. In addition to the benefits of a new or continuing collective-bargaining agreement, the strike settlement eliminated a potential contention by Re- spondent that it could hire new employees as to vacancies on the grounds of business or economic reasons. Although the strike settlement in this case was initially oral, it was followed by written confirmation from Respondent's attor- ney to the Union's attorney. The meaning of the strike set- tlement was simple and clear. Lack of verbosity or great detail does not limit the effect of such agreement. Although I do not find it necessary to rely on such strike settlement to conclude that Respondent has not violated the principles of Laidlaw in its recall of laid-off employees rather than the reinstatement of economic strikers when vacancies did not exist, it would appear that the strike set- tlement supports and would require such finding. As indi- cated, I conclude and find that the facts do not reveal that Respondent has violated Section 8(a)(3) and (I) of the Act by discriminatorily refusing to reinstate economic strikers around February 28, 1978, or after February 28, 1978. the date of a settlement agreement in Case 26-CA-6986. Alle- gations of unlawful conduct as alleged in such regard are recommended to be dismissed. The above being so, the settlement agreement in Case 26-CA-6986 bars the litigation of all other issues in the complaint. Accordingly, it will be recommended that the consolidated complaint be dismissed in its entirety. 3. Proposed settlement agreement Respondent argues that a proposed settlement agree- ment, presented at the trial of this matter entered into by it and the Union to dispose of all of the issues in this case. should be approved. The proposed settlement agreement does not include certain remedial steps normally utilized by the Board. Such steps include the posting of a notice to employees as part of the remedy. Whether or not such as- pects of settlement are technical or nor, such settlement agreement did not reach such point. The General Counsel would not become a party to such agreement because of some dispute as to procedures agreed to and because of questions of backpay. The essential thrust of such settlement has much to be said for the disposition of the issues presented in the case. However, in accordance with the decision in Community Medical Services of Clearfield, Inc., d/b/a Clear Haven Nursing Home, 236 NLRB 853 (1978), it would have been improper to approve such settlement wherein the General Counsel as a party disputed the appropriateness of the set- tlement. The Clear Haven case reveals that the General Counsel is to be accorded broad discretion to litigate issues rather than having an imposed settlement where there is a substantial difference between the remedy therein and the remedy as would be received if violative conduct were found. As a result of the General Counsel's unwillingness to be a party to the proposed settlement, determination has been made whether the alleged conduct is violative of the Act. Having made such findings. I find it improper to ap- prove a settlement as to conduct found not to violate the Act . Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CON(.LUSIONS o)F LAW I. Bancroft Cap Company. Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and an employer over whom the Board asserts jurisdiction. 2. United Hatters. Cap and Millinery Workers Interna- tional Union. AFL-CIO, and its Local Union 130, each is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The settlement agreement in Case 26 CA 6986. ap- proved by the Regional Director of Region 26 on February 28, 1978, bars the litigation of all issues of violative conduct occurring prior to February 28, 1978. 4. The terms of the settlement agreement in Case 26- CA-6986, referred to above, have not been violated by Re- spondent, and Respondent has not violated the Act, as al- leged, subsequent to the date of approval of such agree- ment. 5. Respondent has not violated the Act by refusing to reinstate economic strikers on or about February 28, 1978, or subsequent thereto. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby' issue the following recommended: ORDER 9 The consolidated complaint in this matter is dismissed in its entirety. IT IS FURTHER RECOMMENDED that the settlement agree- ment in Case 26-CA-6986. approved by the Regional Di- rector of Region 26, be reinstated. I Nothing herein restrains Respondent and the Union from implementing or continuing to implement the features of such proposed settlement as they apparently did in May 1978. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 553