Drug Package Co.

505, edy. vio- International 8(a)(5) trike.^ enforce- Or- un- SUPPLEMENTAL DECISION AND ORDER back- 8(a)(1) aqended, fled B(aX1) 8(a)(5) 8(a)(1) rem- ' 228 * D N ~ Inr. N.L.R. F.2d Cir. 'See N.LRB. Gwel Inc., (1969). r t Tmdlng Po% Inc., Board Reapondent bargaining obligation 10, the recopition achieved Rapondent mg.gcd substantial praetioer. an4 fot strik- 1qc) affirmative an sit~ations.~ cgnduct circumrtanas case considered find 8(a)(5) obligation 10, complaint 8(a)(5) the Bard isrued after hearing ur after Respondent refwd oRer the strikers work. Respondent case dXercntly S(aX5) order isued. ' Board hatby rdnstntement strikers as sct forch N.LRB. Mackay & Tclegmpir w hemin arc rut gencru. J. H. Rutter-Rex ManufwNing Inc., et a[., (1969); FibmbmrdPqpcr ProdLrts Corp (1%4); Smn-Up Bottlim Conip~y o/Miami, Inc., 344 344, Gullctt 11n. N.L.RB., (1951); ~k4ar D ~ C CW. N.LRB., 313 U.S. I n , 194 (1941). 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drug Package Company, Inc. and Local Graphic Arts Union, AFL-CIO-CLC. Cases 14-CA-7959 and 14-CA-8062 March 22, 1979 On February 10, 1977, the National Labor Rela- tions Board issued a Decision and Order1 finding that Drug Package Company, Inc., hereafter Respondent, had engaged in unfair labor practices in violation of Section and (5) of the Natioal Labor Relations Act, as and ordering Respondent, among other things, to bargain with Local 505, Graphic Arts International Union, AFL-CIO-CLC, hereafter the Union, and to reinstate employees who had partici- pated in a strike. Thereafter, the United States Court of Appeals for the Eighth Circuit issued a decision2 enforcing the Board's Order in part, denying enforce- ment in part, and remanding the proceeding to the Board for further consideration of the Order. The Board accepted the remand and invited all parties to file statements of position with respect to the re- manded issue. The General Counsel, the Union, and Respondent statements; and Respondent filed a motion for an evidentiary hearing which was opposed by the General Counsel and the Union. We deny Re- spondent's motion for hearing, as the record is ade- quate for determination of the remanded issue. The Board has reviewed the case in the light of the court's decision and the positions of the parties and makes the following additional findings and conclu- sions and supplements the Order as set out below. In its original decision the Board found that Re- spondent had engaged in conduct which violated Sec- tion of the Act and made it highly unlikely that a fair election could be conducted to determine the Union's representative status. Consequently, the Board issued a bargaining order based on the Union's majority status established by authorization cards.' The Board further found that Respondent had vio- lated Section by refusing t o recognize the Union, and that a strike in support of the Union's demand for recognition was an unfair labor practice strike. The Board ordered the strikers reinstated as unfair labor practice strikers. Upon review, the circuit court accepted the Board's findings that Respondent had violated Section and that a bargaining order was an appropriate NLRB 108. Package, v. B., 570 1340 (8th 1978). v. Packing Co., 395 U.S. 575 Applying the views forth in 219 NLRB 298 (1975). the found that had a as of May 1974, the date Union had demanded and had majority status. and had in unfair labor 241 NLRB No. 44 It rejected the findings that Respondent had lated Section and that the strike was an unfair labor practice Therefore, it denied ment of the reinstatement order to the extent the der was based on the view that the strikers were fair labor practice strikers. It left to the Board "the question whether the Company should be required to reinstate the strikers upon application, without pay, in order to make the bargaining order a full and complete remedy." The Board has accepted the remand pur- poses of this Supplemental Decision, accepts the court's view that the strikers are not entitled to rein- statement as unfair labor practice strikers. We have considered then the propriety of reinstating the strik- ers-notwithstanding their status as economic ers-in order to make the bargaining order a com- plete remedy. We have examined the particular facts of the case and the arguments of the parties, and we have reviewed the Board's administrative power and experience with bargaining orders. We conclude that a reinstatement order is warranted under the particu- lar and unusual set of factss and that a reinstatement order here is within our remedial authority. Section of the Act empowers the Board to require a person who has engaged in unfair labor practices to take "such action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." This power is broad and imposes upon us obligation to devise remedies which will accomplish the purposes of the Act in specific factual In this case, the relationship of a reinstatement order to furthering the purposes of the Act is clear. Here, upon the advent of the Union, Respondent engaged in extensive which tended to thwart employee organizational rights so that a bargaining order based upon authori- zation cards has been adopted as a suitable remedy for the unfair labor practices. The purpose of the bar- gaining order is to prevent Respondent from benefit- ing from its unlawful conduct and to reestablish, as nearly as possible, conditions as they existed before 'In the of the the court it inequitable to an violation and a bargaining dating from May 1974. The had not alleged an violation. and the Trading Port decision, which applied to fix the date of Respondent's bar- gaining obligation, had in the and had an by Union to return the to The court thought that might have handled the had it been aware that an violation might be found and a reinstatement The is not modifying the existing rights to of economic in v. Radio Ca, 304 U.S. 333 (1938); stated, the holding is limited to the facts of this which are viewed as See N.L.R.B. v. Co., 3% U.S. 258, 262 v. N.L.R.B., 379 U.S.203. 216 N.L.R.B. v. U.S. 346 (1953); Gin Company, v. 340 U.S. 361, 363 V. ' Girsrl W r a 182 82 striken fill af'tcr appeared The Luidlaw 1 (1968). enfd. 14 F.2d Cir. 1%9), Rapondent hidlaw, strikm p i t i o n 9A~uming, employees Scc. 2(3) they replacements striken poten~ial practical source 1 I ! practices.1° I r remedy orignal 8(a)(5), Inc., (1 974), "was 8(a)(1) 8(a)(1) '0 see these circumstanca M reinstating internal part ofthe told remedy this Its i pmtect atrikm to purporc is supplement effective bar pin in^^ h designed coercive sup use repretientation mchin- cry. sa supportera happen economic striken, general replaced. S a Mackay d Telegraph CO.. sllpm. Badically, g e n d recognizes cm- ploycr operations hlling replaccmentt. considerations prcsmt case effective practice situation prevents medics. DRUG PACKAG Respondent's antiunion campaign? The bargaining order is unlikely to achieve this purpose without the related reinstatement order. Ordinarily, a bargaining order, directing an employer to formally recognize a labor organization's representative status and requir- ing it to bargain with that labor organization upon demand, tends to reassure employees of their statu- tory rights and to restore employee support of the organization. However, it appears that the results which customarily may be anticipated from a bar- gaining order remedy will not ensue in this case be- cause of the changed composition of the bargaining unit. Most of the union adherents who participated in the strike and are no longer employed by Respon- dent. the unit is now made up substantially of striker replacements, employees who rejected the Union dur- ing its organizational campaign, and employees who originally signed authorization cards for the Union but did not go on strike." Without an order reinstat- ing the strikers, the Union's pre-unfair labor practice majority support cannot be approximated and mean- ingful bargaining insured? Even if the parties bargain in good faith in an effort to reach agreement, without reinstatement of the strikers an inequality of bargain- ing power exists between Respondent and the Union which might well preclude fruitful bargaining. The Union's lack of vitality and potential strength to take economic action removes the incentive to compro- mise and to adjust disagreements in order to arrive at a "bargain"acceptable to both sides. In these circum- stances, negotiations might be reduced to a useless exercise and demonstrate further to employees the fu- tility of selecting a bargaining representative. Accord- ingly, we conclude that in the particular circum- stances of this case a reinstatement order is practically interrelated with the bargaining order and is crucial to the effectiveness of the bargaining order which is intended to restore conditions as nearly as, N.L.R.B. v. Packing Co., Inc., at 612. Of the employees, went on strike and were permanently replaced. Some have returned to the unit to vacancies which occurred the strike. At the time of oral argument before the court. it that about 25 strikers had been reinstated; and Respondent asserts that it is offer- ing strikers reinstatement to vacancies as required by Corpora- tion. 17 NLRB 1366 4 99 (7th cert. denied 397 U.S. 920 (1970). If fulfills its obligation under ad- ditional strikers will return to Respondent's employment over a period of time, but return of the at some undetermined future time will not permit the Union to negotiate pursuant to the bargaining Order from the of majority strength it occupied before the unfair labor practices. as argued by Respondent, that the strikers are within the meaning of of the Act and may be represented by the Union. and that replacements may support the Union to the same extent as the employees replaced, a constituency of striker and not working in the unit would not furnish the Union the economic strength and of unit information that would be provided by a constituency of actively employed unit members who had initially selected the Union and struck in support of its demand for recogni- tion. E COMPANY, INC. 33 possible to those that existed before the unfair labor In ordering this admittedly unusual remedy in this proceeding, we stress that we have been particularly mindful of the court's own admonition to us in its i decision remanding this issue that the bargaining or- der here "could well be a hollow if the em- f ployees represented by the Union are the replace- ments hired during the strike, not the employees who originally supported the Union." We note that upper- most in the court's mind in denying that part of our decision which had found Respondent's re- fusal to bargain a violation of Section and had ordered reinstatement of the strikers as unfair labor practice strikers, was the court's conclusion that the company was not on adequate notice that the Board might make these additional findings. The court indicated that under the then controlling law of Steel-Fab, 2 12 NLRB 363 Respondent, at the hearing in November 1974, aware only of the possibility that the Board would find an violation and order a prospective bargaining order as relief [footnote omitted.]." And with regard to the Union's request for the strikers to return in February 1975, the court concluded that, relying on the then controlling law of Steel-Fab, Respondent refused that request. The court decided that Respondent should not be penalized for relying on the Board's earlier law of Steel-Fab, which was subsequently changed in Trading Port. With this frame of reference, we note that all the violations which yielded the bar- gaining order, together with the demand for and the refusal of recognition, and the start of the strike, oc- curred in April-May 1974. Steel-Fab did not issue until June 28, 1974. Thus, Respondent committed all the operative violations in this case under the law prevailing before Steel-Fab. Under that law, had Re- spondent placed any "reliance" on it, as it did on Steel-Fab for its later actions in the court's view, Re- spondent could have been assured at the time it com- mitted those violations that the Board would find it We do not a reinstatement order in unusual the equivalent of an order simply economic strikers. The rein- statement order is an in case. u m not to or benefit the or remedy any employer conduct directed specifically at strikers because of their strike activity. Its to and make the which to remedy Respondent's acts which tended to impair employee port of the Union and to frustrate of the Board's Accordingly, we no inconsistency between an order reinstating the union here who to be and the principle that an employer is not required to reinstate economic strikers who have been permanently N.L.R.B. v. Radio that principle the interest of an in continuing during a strike by jobs vacated by strikcrs with permanent Additional are in this which must also be recognized. Here there is a need to fashion an remedy for serious unfair labor in an unusual which use of traditional 8(a)(5) 8(a)(5) sui In 8(a)(l) backpay reinstatement.I2 back- 1qc) O'Fallon, offi- N.L.R. B, G l d nqrcr: C o ~ w Iowa. 187 'I suggesting condm appqriateneu mnsute- order coun referred reimutg ttriken intcrpmt mun backpay M mnomic strikm bem penna- nently replaad, w m undenund coun's swiken IOU urnings supplemenul reinstatement 60 NotifL 20 13 Backpay M praaibed F. W. Woohvor~h Conpaw, (19%). thereon ~ m r i b e d Flwida Slnl C-I~O* ni NLRB 651 (1977). SEG -auy, IJL~ ~hnnbing d: ii-ling 138 (1%2). 5day in reawnable betwscn intmsts emplaym M poaaible Employer't need efcctute manner. Acoordingly, hmin rejecy ignora unconditid return attach- unlawM conditionr ofer reinnuto mat, thc 5day c c r v ~ uKf\ll pwpoac backpay M date unconditid return 14 thk enforced Suta Appeal* war& reading labor Rclationt Bard" hall read Pumumt S u m Appeals Enforcin~ an Ordcr National Boardu NOTICE EMPLOYEES POSTED ORDER LABOR RELATIONS BOARD 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had violated Section by refusing to bargain and, therefore, that the ensuing strike was an unfair labor practice strike." Thus, as the court in its deci- sion balanced the equities in refusing to find an violation here, but nevertheless remanded this proceeding to the Board for consideration of the issue now under review, we think our decision here should also balance the equities in what we consider to be a generis situation. balancing those equities, we believe that those employees who struck here under pre-Steel-Fab law should not be entirely penalized by changes in Board decisional law. As the court concluded that Respon- dent could rely on the law of Steel-Fab in its original refusal to rehire the strikers, we think the equities al- low us to give some consideration to the facts that the operative violations, the demand and refusal of recognition, and the strike here occurred even be- fore Steel-Fab became law. Respondent at that time had no idea that the law would soon change to its benefit, and yet it embarked on a course of illegal conduct which caused the strike and which has culmi- nated in a bargaining order. In ordering the reinstate- ment of the strikers here, we have considered this shift of Board law from United Packing, supra, to Steel-Fab, supra, to Trading Port supra, and conclude that the burden placed on Respondent under all the circumstances is not an unfair one and accommodates the interests of all parties involved. Consistent with the court's suggestion, we will not include with the reinstatement Order a order for the period before this Order when the strikers, as permanently replaced economic strikers, were not en- titled to Further, we will require Re- spondent to offer reinstatement only "upon applica- tion" of the strikers and thereby obviate any obligation on Respondent to seek out the strikers. For the foregoing reasons we order Respondent to reinstate the strikers upon application, without pay, in order to achieve an adequate remedy in this case. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Drug Package Company, Inc., Missouri, its v. Packing Co., United Packing of NLRB 878 (1971). In that the Board the of a ment in support of the bargaining order, the to ment of the "without backpay." We this to without for the period when, who and the strikm not entitled to reinstatement. We do not the decision to preclude an award to the for any of which may result from a failure of Respondent to comply with our order. cers, agents, successors, and assigns, shall take the fol- lowing affirmative action designed to effectuate the policies of the Act: 1. Upon application, offer immediate and full rein- statement to their former positions or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, to all those employees who par- ticipated in the strike which began on May 24, 1974, and to whom Respondent has not previously made a valid offer of reinstatement, dismissing, if necessary, , any person hired by Respondent on or after May 24, 1974. Respondent shall also make those employees whole for any loss of earnings which they may suffer by reason of Respondent's refusal, if any, to reinstate them as ordered herein, by payment to each of them of a sum of money equal to that which each normally would earn as wages during the period from 5 days after the date of application for employment to the date of an offer of reinstatement." 2. Post at its premises at O'Fallon, Missouri, copies of the attached supplemental notice marked "Appen- dix."'* Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respon- dent, shall be posted by it immediately upon receipt thereof, and be maintained by it for consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. 3. the Regional Director for Region 14, in writing, within days from the date of this Order, what steps Respondent has taken to comply herewith. will be determined in 90 NLRB 289 with interest as in Co., NLRB 716 The period a accommodation the of the in returning to work quickly at a d the to that return in an orderly if Respon- dent unduly delays, or any application to to work or to its of period no and will commence of the of the application to to work. In the event that Older it by a judgment of a United Court of the in the notice "Posted by Order of the National 'Posted to a Judgment of the United Court of of the Labor Relation# APPENDIX TO BY OF THE NATIONAL An Agency of the United States Government After a hearing in which both sides had the opportu- nity to present their evidence, the Board has found 5 333 DRUG PACKAGE COMPANY, INC. that we violated the National Labor Relations Act, as May 24, 1974, who have not already been given amended, and has ordered us to post this supplemen- valid offers of reinstatement, dismissing, if neces- tal notice. sary, any person hired on or after May 24, 1974. W E WILL, upon application, offer immediate WE WILL make the former striking employees and full reinstatement to their former jobs or, if whole for any loss of earnings which they may those jobs no longer exist, to substantially equiv- suffer by reason of our refusal, if any, to reinstate days of such applications, with alent jobs, without prejudice to their seniority or them within other rights and privileges, to all those employees interest. who participated in the strike which began on