Coca Cola Bottling Works, Inc.

COCA COLA BOTTLING WORKS, INC. Coca Cola Bottling Works, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO. Case 16- CA-2838 August 13, 1973 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 4, 1970, the National Labor Rela- tions Board issued a Decision and Order in the above- entitled proceeding,' finding that Respondent had en- gaged in certain unfair labor practices within the meaning of Section 8(a)(5), (3) and (1) of the Act and requiring that it cease and desist therefrom and take certain affirmative action. Thereafter, On July 28, 1972, the United States Court of Appeals for the District of Columbia issued its decision,2 enforcing the Board's Order in all re- spects but one. The court disagreed with what it termed the Board's retroactive application of its Laid- law 3 doctrine to a period when the parties would have been aware that the Board was changing its policy with respect to the obligation to reinstate economic strikers. Specifically, the court had reference to the Board's finding that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to recall and reinstate strikers to jobs which became available during the period from November 4, 1966, to June 21, 1967. This violation was predicated on the application of the Laidlaw principle that the employer is under a continuing obligation to reinstate economic strikers in preference to the hiring of new employees, so long as the former have not obtained other regular and substantially equivalent employment. Although, the Board's decision in Laidlaw was not handed down until June 13, 1968, the court recognized that the Board's Laidlaw doctrine is an amplification of the principles established by the United States Supreme Court in its decision in Fleetwood Trailer,4 which was handed down on December 18, 1967. The court here concluded that the United States Supreme Court's decision in Fleetwood Trailer marked the earliest date upon which Respondent could be said to have been put on notice of the change in its reinstatement obli- gations. Accordingly, the court denied enforcement of the Board's Order insofar as it related to reinstate- ' 186 NLRB 1050 2 Retail, Wholesale and Department Store Union, AFL-CIO v N L R B, 466 F 2d 380 (C A D C, 1972) J The Laidlaw Corporation, 171 NLRB 1366, enfd 414 F 2d 99 (CA 7, 1969), cert denied 397 U S 920 (1970) ° N L R B v Fleetwood Trailer Co, Inc, 389 U S 375 483 ment and backpay liability for any period before the Supreme Court's decision in Fleetwood Trailer and it remanded the case to the Board for further consider- ation of remedies in light of the court's opinion. Thereafter, the Board, by letter, dated October 26, 1972, notified the parties that it would accept the remand from the court and it invited the parties to file briefs or statements of position with respect to the issues raised by the court's remand. In response to this letter, statements of position were received from Re- spondent, the General Counsel, and the Charging Party. 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. In accepting the remand from the Court, we are obligated to accept, as the law of the case, the court's finding that Respondent can not be held liable for reinstatement and backpay under application of our Laidlaw principles for any period beyond January 15, 1968, a date selected by the court to allow reasonable time for notice of the United States Supreme Court's decision in Fleetwood Trailer. The Court has left to our discretion the determination as to whether such liability should attach as of January 15, 1968, or at some later date. In their statements of position, the General Counsel and the Charging Party argue for acceptance of the January 15, 1968, date. Respon- dent, in its brief, argues that it should not be held to have been on notice of the Board's change in policy prior to its announcement in Laidlaw on June 13, 1968.5 All the parties seemingly agree that the issues raised by the court can be resolved on the record before us and without necessity for further hearing.' It should be noted initially that it was not until sometime in August 1968 that the Respondent began offering reinstatement to former strikers. This, of course, was some 2 months after our Laidlaw decision and hence, in our judgment, Respondent can hardly be said to have responded promptly to what it admits was adequate notice of the Board's change in policy with respect to an employer's reinstatement obliga- tions towards economic strikers. Aside from this con- sideration, however, we do not regard our decision in Laidlaw as a sudden and unexpected reversal of prior policy. The guiding principles upon which our new policy rests had their origin in the United States Su- preme Court's decisions in Erie Resistor' and Great 5 Respondent also requests that the Board reconsider certain of its findings which were affirmed by the court We do not view such matters as to be now before us and, accordingly, the request for reconsideration of such matters is hereby denied 6 Respondent's request for oral argument is hereby denied because, in our opinion, the statements of position and brief adequately present the positions of the parties N L R B v. Erie Resistor Corp, 373 U S 221 205 NLRB No. 27 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dane Trailers 8 and were, in ourjudgment, fully devel- oped in Fleetwood Trailer. These principles recognize that economic strikers have a continuing right to be considered forjob openings as they become available and require that such individuals be given employ- ment preference over new hires.' They also establish that the failure to accord proper recognition to the employee status of economic strikers constitutes con- duct which is inherently destructive of employee rights under the Act, and, even absent antiunion moti- vation, serves as a basis for the finding of an unfair labor practice violation. All of these principles which form the underlying basis for our Laidlaw doctrine were set forth with clarity in Fleetwood Trailer and, we believe, should have served as adequate notice to all parties of the continuing reinstatement obligations to- wards economic strikers. Accordingly, we find that Respondent was put on notice as to the change in its reinstatement obligations by the United States Su- preme Court's December 18, 1967, decision in Fleet- wood Trailer. Also, we find, in accordance with the reviewing court's directive, that by January 15, 1968, Respondent should have been aware of the decision in Fleetwood Trailer. Therefore, we conclude that Re- spondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to recall and reinstate economic strikers to jobs which became available on and after January 15, 1968. Our findings, herein, require that we make certain modifications in our prior decision. We previously had found that Respondent discriminatorily denied reinstatement to all employees listed on Appendix B of our Decision and we ordered immediate reinstate- ment and backpay for all such employees. However, in light of our finding herein that Respondent's rein- statement obligations under our Laidlaw doctrine commenced on January 15, 1968, rather than Novem- ber 4, 1966, we are unable, on the record before us, to determine whether or not all the employees listed on Appendix B would have been reinstated on January 15, 1968, and thereafter, but for Respondent's discri- minatory practices. We can, however, presume that during the period from January 15, 1968, to mid- August of that same year there were jobs available for which some of the employees listed on Appendix B should have been considered. Therefore, as none of the parties have requested a remand for the purpose of determining the number of available jobs for strik- ers after January 15, 1968, or the order in which these 8 N L R B v Great Dane Trailers, Inc, 388 U S 26 9 Chairman Miller in his dissent apparently considers that Laidlaw itself represented a "change" in the law, without any foundation or support in prior cases The court of appeals, in finding the principles of Laidlaw were suffi- ciently set forth by the Supreme Court in Fleetwood Trailer, rejected this view For the same reasons , as set forth in the text , so do we strikers were entitled to be recalled, we believe that such matters would be best left for determination in the compliance stages of the proceeding. Accordingly, we shall modify our prior Decision and Order to re- flect our determination herein. THE AMENDED REMEDY In place of paragraph 4 of "The Remedy" set forth in our prior Decision and Order, substitute the follow- ing: "We have found that Respondent discriminatorily refused to recall and reinstate strikers to available job openings on January 15, 1968, and thereafter and in order to remedy these unfair labor practices we shall order Respondent to offer immediate and full rein- statement to any employees listed on Appendix B of our prior Decision who were discriminatorily denied reinstatement to available jobs on January 15, 1968, and thereafter discharging, if necessary, an employee hired after the date of the discrimination against such striker. Such reinstatement will be without prejudice to their seniority or other rights and privileges. We shall also order Respondent to make such employees whole for any loss of pay suffered by reason of the discrimination against them from the date they should have been so reinstated to the date of valid offers of reinstatement." AMENDED CONCLUSIONS OF LAW In lieu of paragraph 7 of the "Conclusions of Law" set forth in our prior Decision and Order, substitute the following: "7. The Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to recall and reinstate strikers to available job openings on January 15, 1968, and thereafter." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board reaffirms its prior Decision and Order in this proceeding (186 NLRB 1050), as modified below, and hereby orders that Respondent, Coca Cola Bot- tling Works, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said prior Order, as modified herein. 1. Delete paragraph 1(d) and substitute therefor the following: "(d) Discriminatorily refusing to recall and rein- state strikers to jobs available on January 15, 1968, and thereafter." 2. Delete paragraph 2(b) and substitute therefor COCA COLA BOTTLING WORKS, INC. the following: "(b) Offer immediate and full reinstatement to any employees listed on Appendix B who were discrimina- torily denied reinstatement to jobs which became available on January 15, 1968, and thereafter. Rein- statement for such employees shall be to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges. Also, make such employees whole for any loss of earnings they may have suffered as a result of the discrimination prac- ticed against them in the manner set forth in `The Remedy' and `The Amended Remedy.' " 3. Delete Paragraph 2(c) and reletter the remaining paragraphs accordingly. 4. Substitute the attached notice for the original notice attached to the Board's prior Decision and Or- der. CHAIRMAN MILLER, dissenting: I continue to be distressed at my colleagues' inex- plicable refusal to recognize that Laidlaw made a sig- nificant change in existing law. The very court of appeals which sustained the Board's decision in Laid- law spoke of the authority of the Board to conclude that the need for a remedy could "take precedence over the employer's reliance on prior Board law." (414 F.2d 99, 107.) And, as I pointed out in my initial dissent here, Judge Major, dissenting in Laidlaw, was of the view that when the "Board announced a change in the law" he thought it "unconscionable" to apply that change retroactively. The decision of the court in this case makes clear it is well aware that Laidlaw constituted a change in the law. It said (466 F.2d 387): Prior to the decision of the Board in Laidlaw on June 13, 1968, it was a well settled rule, enun- ciated and applied by the Board, that when an employer permanently replaced an economic striker, he was under no obligation thereafter to treat that striker other than as a new applicant for employment.. . . [T]he Board in Laidlaw over- turned this rule.. . . The court, however, recognized, as did the Seventh Circuit in Laidlaw, that the Board has the authority to apply Laidlaw retroactively and was respectful enough of this Board to remand this case so that we might exercise our discretion as to whether it is judi- cious to so apply it here. But it also noted that there was no evidence here of the kind of discrimination the 485 Board had found in Laidlaw, or of a hostile relation- ship between the Company and the Union, or that any former striker who personally applied for rein- statement was ever refused employment or denied any of his former rights. The court, in effect, invited us to take note of these factors in assessing the need for a retroactive application of Laidlaw here. The majority ignores all of these factors and blindly insists on the maximum retroactivity, which this court has indicated is possible in any case, and proceeds on the myth that Laidlaw was not really new law, after all. From such an improper exercise of the discretion the court was courteous enough to permit us, I vigor- ously dissent. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify all employees that: WE WILL NOT refuse to bargain collectively in good faith with Retail, Wholesale and Depart- ment Store Union, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit. The appropriate bargaining unit is: All production and maintenance employees at our plant in Dallas, Texas, (6011 Lemmon Av- enue and Second Avenue at Elihu Street), in- cluding plant clericals, over-the-road truck drivers, shipping and receiving employees, ad- vertising department employees, fleet mainte- nance department employees, route salesmen, helpers, trainees, route managers and regular part-time employees, but excluding office cler- ical employees, temporary employees, profes- sional and technical employees, watchmen, administrative assistant to the sales manager, and supervisors as defined in the Act. WE WILL NOT grant merit wage increases or change the terms and conditions of employment of employees in the appropriate unit without first bargaining in good faith with the Union concern- ing them. WE WILL NOT delay for unreasonable lengths of time the reinstatement of employee-strikers who have unconditionally requested reinstatement. WE WILL NOT discriminatorily refuse to recall 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and reinstate strikers to available job openings. WE WILL NOT withdraw our recognition of the Union when such withdrawal is not based upon a good-faith doubt as to the Union's majority status. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of the right to self -organization, to form labor organizations , to join or assist Retail, Wholesale and Department Store Union, AFL- CIO, or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in other concerted activi- ties for the purpose of collective bargaining or any other mutual aid or protection or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit, described above and, if any un- derstanding is reached , embody such under- standing in a signed agreement. WE WILL offer immediate and full reinstate- ment to any employees listed on Appendix B, attached to this notice , who were discriminatorily denied reinstatement tojobs which became avail- able on January 15, 1968 , and thereafter. Rein- statement for such employees shall be to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority and other rights and privi- leges, and all such employees shall be made whole for any loss of earnings they may have suffered as a result of the discrimination prac- ticed against them. WE WILL make whole the 11 sales helpers whose jobs were unilaterally abolished and the 10 em- ployee-strikers whose reinstatement was delayed for any loss of earnings they may have suffered as a result of the discrimination practiced against them. All our employees are free to join or assist the above-named or any other labor organization , to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all of such activities. COCA COLA BOTTLING WORKS, 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's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas, Telephone 817-334 -2921.