Brooks Research & Manufacturing, Inc.

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brooks Research & Manufacturing, Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Amalgamated Local No. 710. Case 17-CA-5093 March 22, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge i duly filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Amalgamat- ed Local No. 710 (herein called the Union) against Brooks Research & Manufacturing, Inc. (herein called Respondent), the General Counsel of the National Labor Relations Board, by its Regional Director for Region 17, issued and duly served on the parties a Complaint and Notice of Hearmg2 dated July 14, 1972. In substance, the complaint alleges that Respondent violated Section 8(a)(1) and (3) by attempting to terminate, on January 12, 1972, and again on July 7, 1972, the seniority and preferential hiring rights of unreinstated employees who had unconditionally applied for reinstatement at the cessation of an economic strike, and Section 8(a)(5) by unilaterally engaging in the foregoing conduct without first bargaining with the Union. The Re- spondent's answer admits certain factual allegations of the complaint but denies the commission of unfair labor practices. Thereafter, on September 12, 1972, a hearing was held before Administrative Law Judge Herbert S. Silberman, at which the parties entered into a stipulation on the record, agreeing upon the opera- tive facts of the case. The parties waived the making of findings of fact and conclusions of law and the issuance of a decision and recommended order by the Administrative Law Judge, and jointly moved the case be transferred directly to the National Labor Relations Board for findings of facts, conclusions of law, and an order. They further agreed that the record of the hearing and the General Counsel's exhibits shall constitute the entire record in the case, that no oral testimony is necessary, and agreed upon the date for the filing of briefs with the Board. By Order dated October 12, 1972, the Board granted the motion and transferred the proceeding to itself. Thereafter briefs were filed by all parties. Pursuant to the provisions of Section 3(b) of the The charge was filed on April 5, 1972, and served by registered mail on the Respondent on the same date 2 On August 24, 1972, the Regional Director issued and duly served on the parties an order rescheduling hearing from August 29 to September 12. 1972 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record herein and the briefs and makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a wholly owned subsidiary of Xebec Corporation, is engaged in the manufacture and distribution of electronic devices used in the testing of computers with its principal place of business located at Kansas City, Missouri. In the course and conduct of its business Respondent annually pur- chases goods and materials valued in excess of $50,000 directly from sources located outside the State of Missouri. The complaint alleges, Respon- dent's answer admits, and we find that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer ad- mits, and we find that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts On April 12, 1967, the International Union was certified as collective-bargaining agent for Respon- dent's production and maintenance employees.3 On November 12, 1970, Respondent and the Interna- tional Union agreed that both the International and its Amalgamated Local No. 710 would be parties to any collective-bargaining agreement reached with Respondent. On February 1, 1971, 60 of the 80 employees in the bargaining unit began an economic strike against Respondent. During the strike, which ended on July 9, 1971, nine of the striking employees returned to work. Between June 29 and July 12, 1971, 48 of the striking employees, all of whom had been perma- nently replaced, made unconditional applications for reinstatement to their former employment with Respondent. On July 8, 1971, Respondent and the Union met at the offices of the Federal Mediation and Conciliation 3 See DIT-MCO, Incorporated, 168 NLRB 1019 On June 17. 1968. the Board, DIT-MCO, Incorporated, 171 NLRB 1458, entered its Order requiring Respondent, as successor employer to DIT-MCO. Inc , to bargain with the Union On June 30, 1970, the United States Court of Appeals for the Eighth Circuit granted enforcement of the Board's Order (423 F 2d 775) 202 NLRB No. 93 BROOKS RESEARCH & MFG, INC. Service at Kansas City, Missouri. As a result of the discussions at that meeting Respondent implemented the following recall procedures. Separate preferential hiring lists were set up for striking employees who applied for reinstatement on June 29, July 2, and between July 8 and July 12, 1971. The recall was to be accomplished by telephonic notification to the employees, with confirmation by letter or telegram. Respondent was to use the last-known addresses and telephone numbers on file with it to implement the oral recall and written confirmation. Except where there was mutual agreement to extend the time, the employee had 3 days to report to work after being notified to return. At the July 8 meeting there was no discussion as to the duration of the preferential hiring rights of the applicants, except as to some who were tentatively granted reinstatement rights for a year. Between August 10, 1971, and January 11, 1972, Respondent recalled 5 of the 48 employees who had made unconditional application for reinstatement. Since June 29, 1971, and up to the signing of the stipulation on September 12, 1972, Respondent has not hired any new employees for positions previously filled by individuals on the preferential hiring lists. On January 28, 1972, Respondent President F. L. Thompson sent a letter to each of the remaining 43 employees on the preferential hiring lists informing them that "pursuant to the Company's procedures and policies your rights and seniority were terminat- ed on 1-12-72." Respondent's procedures and policies relied on provide that: Any employee shall cease to have seniority and his name shall be removed from the Seniority List and his employment with the Company will terminate in the event . . . (h)e is laid off for a period of six (6) consecutive months. On July 7, 1972,4 the Respondent, by letter, notified the 43 unrecalled employees that: We wrote you on January 28, 1972, giving notice, consistent with company policy on duration on recall rights, of the expiration of the preferential hiring lists as of January 12, 1972. It has been brought to our attention that in negotiations prior to the strike, tentative agreement was reached with the Union giving certain employees recall rights for one year after layoff. Accordingly, and to be fair to all concerned, we have decided to extend the duration of the preferential hiring list one year from date of application for reinstate- ment. I This action was taken 2 months after the Union filed the instant charge and I week before the Regional Director issued the instant complaint B. Contentions of the Parties 635 The General Counsel and the Union contend that this case is governed by the Board's decision in Laidlaw Corp.,5 which evolved from the Supreme Court's decision in Fleetwood Trailer.6 They contend, in essence, that under the holdings of those cases economic strikers who have made unconditional application for reinstatement are entitled to be offered the opportunity to fill vacancies for which they are qualified if they have not obtained "other regular and substantially equivalent employment," and that this continuing right can be defeated only by the employer's showing "legitimate and substan- tial business justification." They contend that Re- spondent has not shown legitimate and substantial business justification for its action but that its business justification defense is, in fact, an after- thought, since at the time it eliminated the preferen- tial hiring lists it justified its action solely on the ground that the economic strikers were entitled to no greater rights than laid-off employees. The Respondent contends Laidlaw and Fleetwood Trailer do not govern, as they do not reach the issue of the impact of the passage of time on an employer's duty to honor applications for reinstatement. In addition, the Respondent raises a business justifica- tion defense, contending that the individuals on the preferential hiring lists are, in its judgment, no longer qualified to perform Respondent's work because it has changed many of its product lines since the commencement of the strike. C. Discussion and Conclusions We agree with the General Counsel and the Union that Respondent's termination of the recall rights of the employees on the preferential hiring list on January 28, and again on July 7, 1972, violated Section 8(a)(3) and (1) of the Act. We further agree that Respondent's unilateral termination of such recall rights without first bargaining with the Union constitutes a violation of 8(a)(5) and (1) of the Act. Our reasons follow. In Fleetwood Trailer, 389 U.S. at 381, the Supreme Court held: . . . the status of the striker as an employee continues until he has obtained "other regular and substantially equivalent employment" . . . . If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show "legitimate and substan- 5 1 7 1 NLRB 1366, enfd 414 F 2d 99, cert denied 397 U S 920 b N L R B v Fleetwood Trailer Company. 389 U S 375 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teal business justifications." N.L.R.B. v. Great Dane Trailers, 388 U.S. 26. The Board in its decision in Laidlaw7 applied Fleetwood to hold that economic strikers who unconditionally apply for reinstatement when their positions are filled by permanent replacements are entitled to full reinstatement upon departure of replacements or when jobs for which they are qualified become available, unless they have in the meantime acquired regular and substantially equiva- lent employment or the employer can sustain its burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. The General Counsel and the Union, pointing out that these decisions set no time limit with respect to the right to reinstatement, therefore contend that the passage of time has no effect on the right to reinstatement, and that this right to vacancies which arise and for which the employees on the list qualify continues indefinitely unless the employees obtain other "regular and substantially equivalent employ- ment" or the employer proves legitimate and substantial business justification for terminating the right. On the other hand, Respondent contends that the Supreme Court in Fleetwood and the Board in Laidlaw were not faced with, and did not deal with, the effect of the passage of time. Respondent contends that a time limit should be set because it would be unreasonably onerous to require an employer to keep for an indefinite time records of strikers who might be eligible for reinstatement. Respondent, comparing economic strikers to laid-off employees, and relying on the Board's decision in Wahl Clipper,8 suggests that a 1-year rule commenc- ing from the end of a strike (rather than from the begining of the strike as with voter eligibility) would be reasonable and appropriate.9 We reject the Respondent's contention that eco- nomic strikers should be equated with laid-off employees. The reinstatement rights of economic strikers under Fleetwood Trailer and Laidlaw are statutory as distinguished from the rights of laid-off employees. A layoff constitutes a discontinuance of work for an employer which does not rise to the level of a lawful economic strike, participation in which is protected under Section 7 and 13 of the Act. Likewise, we believe the Respondent's reliance on Wahl Clipper, supra, is misplaced. In that case the Board majority held only that economic strikers were not eligible to vote in a Board election after the expiration of 1 year from the commencement of an economic strike. That decision was grounded on the construction of specific language in Section 9(c)(3) concerning the voting eligibility of economic strikers. We likewise reject the Respondent 's contention that a time limit should be placed on the reinstate- ment rights of economic strikers . Not only is such a time limit contrary to the principles enunciated in Fleetwood and Laidlaw, the alleged burden upon an employer is neither onerous nor severe. As the Seventh Circuit said in Laidlaw, supra at 105, fn. 2: We do not view the employer's duty to seek out replaced economic strikers to be a severe burden in practice. "Employers, who presumably retain the addresses and phone numbers of the strikers, should not find it overly burdensome to give them notice that a position has fallen vacant." 82 Harv. L. Rev. 1777, 1779 ( 1969). Likewise, in American Machinery, i0 the Fifth Circuit rejected a similar contention concerning the alleged burdens imposed upon an employer due to the passage of time. It stated at 1327: We are not impressed with [respondent's] protes- tation that the difficulty of seeking out strikers "several months" or "five years" after their application for reinstatement, when a replace- ment leaves , justifies its conduct. Under the agreement reached by the parties herein, the Respondent's burden is slight. Thus, when a vacancy arises recall is to be by telephone with confirmation by letter or telegram . Respondent is required only to use the last known addresses and telephone numbers on file with it. The recalled employee has only 3 working days to report after being notified to return. If an employee refuses an offer of reinstatement or does not respond, his name may be deleted from the list. Therefore, contrary to its contention, Respondent does not have to maintain the entire preferential hiring list indefinitely . In addition, there may be other means by which Respondent can cope with its alleged burden. For example, although we find it unnecessary to consider at this time , we note that the Fifth Circuit suggested in American Machinery, supra: . . . he might notify the strikers when they request reinstatement of a reasonable time during which their applications will be considered current and at the expiration of which they must take affirmative action to maintain their current status. In fact, Respondent relies on American Machinery, 7 Supra, fn 5 January 1972, 6 months after the strike ended Rather, without further 8 195 NLRB No 104, Member Fanning dissenting explanation, it contends its January 1972 action was also reasonable 9 In spite of this suggestion, Respondent does not concede it violated 10 American Machinery Corporation v N L R B, 424 F 2d 1321, 1327 Sec 8(a)(1), (3), and (5) when it terminated the strikers' hiring rights in BROOKS RESEARCH & MFG., INC. 637 contending that when it sent its letter of July 7, 1972, informing all those on the preferential hiring list that their applications would be terminated, not one employee took affirmative action to protest, or to maintain a current status and therefore their rein- statement rights should be terminated. The difficulty with this contention is that Respondent did not request the strikers to take any affirmative action to maintain their current status. However, in line with the Fifth Circuit's suggestion we see no reason why the Respondent cannot at reasonable intervals request the employees on the preferential hiring lists to notify it whether they desire to maintain their recall status. Respondent next contends that the period of time it maintained the preferential hiring list is reasonable in light of the Board's decision in United Aircraft Corporation where the Board" accepted an agree- ment of the parties to limit the duration of the recall rights of economic strikers to a fixed period of time provided certain safeguards were met.12 The defect in Respondent's contention is obvious; it had no such agreement with the Union concerning the duration of the strikers' recall rights. Finally, Respondent contends that it has legitimate and substantial business reasons for terminating the strikers' reinstatement rights because the individuals on the list are no longer qualified to perform the work it requires. At the hearing the parties stipulated that Respondent's products are constantly being changed and upgraded with new techniques in manufacture and design. The stipulation concludes with the following: . . . during the period from February 1, 1971, to date, some of the products being manufactured by the company have changed. Because of these changes: (1) Some new production equipment has been acquired and placed in service by the company with which the individuals on the preferential hiring list are unfamiliar. (2) Changes in the kind of work operations performed by the labor force have taken place. While it cannot be proved as an objective fact, the company believes that the individuals on the preferential hiring list presently would not be able to perform work in the company's plant anymore effectively or efficiently than if they had never worked for the company. We are unable to accept Respondent's asserted business justification defense. As the Supreme Court pointed out in Fleetwood Trailer, "the burden of proving justification is on the employer. . . ." Here the Respondent's defense concededly amounts to no more than speculation; it states only that "it believes" or "in its judgment" the strikers are no more qualified than new employees would be.13 Moreover it appears to us that Respondent's defense grounded on its alleged belief that the strikers are no longer qualified is an afterthought since no mention was made of the matter in either the communications of January 28, or July 7, 1972, to the employees. Finally, as the General Counsel points out, change in method of operation and sophistication of products was one of the arguments used by Respon- dent in 1967 when it sought to avoid any bargaining obligation with the Union (see DIT-MCO, Incorpo- rated, 171 NLRB 1458). Thus, prior to the strike, Respondent's products, machinery, and methods of production changed a number of times. Yet the employees were able to adapt to prior changes in methods of operation and production of new products or they would have been discharged. CONCLUSIONS OF LAW 1. Brooks Research & Manufacturing, Inc., is an employer 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 jurisdic- tion herein. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of America and its Amalgamated Local No. 710 are and at all times material herein have been labor organizations within the meaning of Section 2(5) of the Act. 3. By terminating on January 12, 1972, and again on July 7, 1972, the seniority and preferential hiring rights of unreinstated employees who had uncondi- tionally applied for reinstatement at the cessation of an economic strike, Respondent has discriminated in regard to hire or tenure of employment and other terms and conditions of employment to discourage union activity and membership in a labor organiza- tion within the meaning of Section 8(a)(3) and (1) of the Act. 4. By unilaterally engaging in the foregoing conduct without first bargaining with the Union, Respondent has violated Section 8(a)(5) and (1). of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- it 192 NLRB No 62, Members Fanning and Brown dissenting iz As set forth in his dissent in United Aircraft, Member Fanning does not subscribe to the view that a union has an unqualified right to waive recall rights of economic strikers 13 In addition , if any employee, including a recalled striker , is in fact, unqualified or cannot do the work , Respondent may act accordingly 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action designed to effectuate the basic policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully terminating the economic strikers' preferential hiring rights, we shall order Respondent to cease and desist from such action. We shall also order Respondent to rescind the action taken on January 28, and July 7, 1972, and to reinstitute the preferential hiring list agreed to by Respondent and the Union on July 8, 1971, and to implement the recall procedures agreed to by the parties on July 8, 1971. Further, we shall order that the reinstatement rights of said employees continue in accordance with the applicable principles of law set forth in Fleetwood and Laidlaw and that as vacancies occur, whether due to the departure of employees, increases in the work force, or otherwise, those employees qualified for reinstatement be offered such positions unless they have obtained other regular and substantially equivalent employ- ment. Although between the dates of Respondent's unlawful action and the stipulation herein, Septem- ber 12, 1972, no employees have been hired for positions previously filled by individuals on the preferential hiring list, we shall order that any employees who would have been recalled since September 12, 1972, but for Respondent's unlawful conduct, be reinstated to the positions in which they would have been placed had they been recalled, without prejudice to their seniority or other rights and privileges and made whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them in accord- ance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent violated Section 8(a)(5) by unilaterally terminating the economic strikers' preferential hiring rights without bargaining with the Union, we shall order Respondent to cease and desist from such unilateral action and from unilaterally attempting to modify or terminate the preferential hiring list and the implementation procedures agreed to by Respondent and the Union on July 8, 1971. We shall also order Respondent to bargain with the Union over any proposed modifications of the preferential hiring lists or recall procedures. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Brooks Research & Manufacturing, Inc., Kansas City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating or attempting to terminate the seniority and preferential hiring rights of the unrein- stated employees who unconditionally applied for reinstatement herein. (b) Unilaterally terminating, modifying, or at- tempting to terminate or modify the seniority and preferential hiring rights of such unreinstated em- ployees without bargaining with the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Rescind its termination or attempted termina- tion of the preferential hiring rights of the unreinstat- ed economic strikers, and reinstitute and abide by the preferential hiring lists and recall procedures agreed to by Respondent and the Union on July 8, 1971, as is more completely set forth in the section of this Decision entitled "The Remedy." (b) Offer immediate and full reinstatement with backpay as set forth in "The Remedy" to any employee who would have been recalled since September 12, 1972, but for Respondent's unlawful conduct. (c) Bargain with the Union over any subsequent proposed modification of the preferential hiring lists and recall procedures agreed to by the Respondent and the Union on July 8, 1971. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Kansas City, Missouri, plant and mail to each of the unreinstated economic strikers copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by it and mailed to said employees immediately upon receipt thereof, and the posted copies maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 14 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board " of the National Labor Relations Board" shall read "Posted Pursuant to a BROOKS RESEARCH & MFG, INC 639 (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in International Union, United Automobile, Aero- space and Agricultural Implement Workers of America and its Amalgamated Local No. 710, or any other labor organization, by attempting to terminate or terminating the preferential hiring rights of unreinstated economic strikers so long as such strikers have not abandoned their employ- ment with Respondent for other substantial and equivalent employment. WE WILL NOT terminate, attempt to terminate, or modify the seniority or preferential hiring rights of the economic strikers without bargaining with the Union. WE WILL rescind our termination of the preferential hiring rights of the unreinstated economic strikers on the preferential hiring lists agreed to by the Union and us on July 8, 1971, and will reinstitute and abide by the preferential hiring lists and recall procedures we agreed to on July 8, 1971. WE WILL bargain with the Union over any proposed modifications of the preferential hiring lists and recall procedures. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. BROOKS RESEARCH & MANUFACTURING, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board Office, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.