Delta-Macon Brick & Tile Co., Inc.

830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Delta-Macon Brick & Tile Company , Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Southern Council of In- dustrial Workers, Local Union 2272. Case 26- CA-9030 July 13, 1988 ORDER REMANDING PROCEEDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On June 9, 1982, Administrative Law Judge James L. Rose issued the attached decision finding that the layoff of certain permanent striker replace- ments did not create any vacancies to which un- reinstated economic strikers would be entitled under Laidlaw Corp., 171 NLRB 1366 (1968), and dismissing the complaint which alleges that the Re- spondent's failure to recall unreinstated strikers ahead of the laid-off striker replacements violated Section 8(a)(3) and (1) of the Act. The General Counsel filed exceptions to the judge's decision and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On May 26, 1988, the Board issued a Decision and Order in Aqua-Chem, 288 NLRB 1108, setting forth the criteria to be used in determining whether a layoff has resulted in the departure of a striker replacement under Laidlaw, and allocating to par- ties their respective burdens of proof on this issue. The Board has decided to remand this proceed- ing to the judge for the purpose of allowing the parties an opportunity to present evidence on this issue in accordance with the Board's holding in Aqua-Chem, and for his further consideration con- sistent with that decision.' Subsequently, the judge is instructed to issue a supplemental decision, in- cluding findings of fact with credibility resolutions, conclusions of law, and a recommended Order, consistent with this remand Order. Copies of such supplemental decision shall be served on all parties, after which the provision of Section 102.46 of the Board's Rules and Regulations shall apply. MEMBER JOHANSEN, dissenting. I disagree with my colleagues' conclusion that a remand is warranted in this case. The Respondent recalled, ahead of unreinstated economic strikers, five striker replacements who had been laid off for ' Given the rule in Aqua-Chem placing the burden on the General Counsel to show that permanent replacements who were subsequently laid off had no reasonable expectation of recall , we believe that, notwith- standing the passage of time, it is appropriate to give the General Coun- sel the opportunity to meet that burden here periods of 14 to 16 months. In accordance with my concurring opinion in Aqua-Chem, 288 NLRB 1108 (1988), and contrary to my colleagues, I would not place the burden on the General Counsel to prove that the layoff of these striker replacements created "vacancies" to which the unreinstated strikers were entitled to be recalled. Instead, I find that the Re- spondent had the burden of establishing that there was a substantial business justification for failing to recall the unreinstated strikers after a layoff of such a long duration resulting solely from a prolonged shortage of work. Further, I find that the Respond- ent had ample opportunity during the hearing to make such a showing, but that the evidence dem- onstrates that it failed to do so. I see no purpose to be served by giving Respondent-more than 6 years after the judge's decision in this case-a second chance to prove that these layoffs did not create vacancies within the meaning of Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). In my view, the long, indefinite layoffs here constituted a sufficient interruption of the employment relationship so as to warrant the recall of the unreinstated strikers. Accordingly, I would reverse the judge and find that the Respondent violated Section 8(a)(3) and (1) by failing to recall the unreinstated strikers. W. Gene Heard, Esq. and Coleman Garrett, Esq., for the General Counsel. Louis A. Fuselier, Esq. and Jeffrey A. Walker, Esq. (Fuse- lier, Ott, McKee & Moeller, P.A.), of Jackson, Mississip- pi, for the Respondent. Steve Herring, Assistant to the Executive Secretary, Southern Council of Industrial Workers, Local Union 2272, of Tuscaloosa, Alabama, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me on March 17, 18, and 19, 1982, at Macon, Mississippi, on the General Counsel's complaint, which alleged that the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by failing to reinstate cer- tain economic strikers. The Respondent generally denied that it engaged in any unfair labor practices and specifically contends that its treatment of the strikers was in accordance with es- tablished principles set by the Board and courts. On the record as a whole,' including my observation of the witnesses, briefs and arguments of counsel, I make the following ' The General Counsel 's motion to correct the transcript is, without objection, granted and is included in the formal papers as G C Exh. 1(p) The Respondent's motion to receive into evidence its Exh 5 is granted and is included with the exhibits 289 NLRB No. 111 DELTA-MACON BRICK & TILE CO. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is engaged in the manufacture, sale, and distribution primarily of architectural bricks for use in commercial construction at its Macon , Mississippi fa- cility. In its conduct of this business, the Respondent an- nually ships from its Macon facility goods , products, and materials valued in excess of $50 ,000 directly to points outside the State of Mississippi and annually receives di- rectly from points outside the State of Mississippi goods, products, and materials valued in excess of $50,000. From these facts, I conclude that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters & Joiners of Amer- ica, AFL-CIO, Southern Council of Industrial Workers, Local Union 2272 (the Union) has for a number of years represented employees of the Respondent in a basic pro- duction and maintenance unit. It has negotiated on behalf of these employees with the Respondent concerning wages, hours, and other terms and conditions of employ- ment and has been a party with the Respondent to a series of collective-bargaining agreements, the most recent of which is effective from September 24, 1979, to September 23, 1982. On these facts, I conclude that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts With minor and largely immaterial exceptions, the facts giving rise to this dispute are uncontested. In the summer of 1979, representatives of the Union and the Respondent began negotiations for a collective-bargain- ing agreement to succeed the one then in existence. After several meetings the employees determined to press their additional bargaining demands, which had been rejected by the Company, by engaging in an economic strike. The strike began at midnight September 11 and ended on Friday, September 21 (according to the General Coun- sel's witnesses), or Sunday, September 23 (according to the Respondent's witnesses). In any event, the parties did meet on September 23, entered into a stipulation settling the strike, and agreed to a new contract. And on Sep- tember 24 the Respondent began to reinstate the strikers. However, during the strike the Respondent had hired some permanent replacements; thus when the Respond- ent had reached a full complement of employees, there remained without jobs 37 strikers who had been perma- nently replaced. These individuals were advised to sign a form indicating whether they wished to be recalled in the event of a job vacancy and those who did so were placed on a preferential hiring list. To the date of the hearing only one had been called back to work, inas- much as during the intervening period, due to the down- turn in the economy, the Company has not been operat- ing even at its prestrike capacity. 831 On January 30, 1980, five individuals, all of whom had been hired during the strike, were laid off. In March and May 1981 these individuals were recalled to the jobs from which they had been laid off.2 In recalling these individuals, the Company did not consider any of the strikers who had not yet been rein- stated although in every case the nonreinstated strikers had company seniority superior to that of any of the five laid-off replacements. Further, some of the nonreinstated strikers had in fact worked in the departments to which the replacements were recalled. Though there is no evi- dence that any nonreinstated striker was specifically qualified to do the particular job from which the replace- ment had been laid off and recalled, there is also no evi- dence they were all unqualified. By and large the non- reinstated strikers had worked for the Company many years. In any event, the Respondent concedes that it did not consider recallings, even if qualified, nonreinstated strikers to these jobs. The laid-off replacements were given preference over nonreinstated strikers. B. Issues The General Counsel contends that because these five replacements had been laid off in excess of 15 months, the positions to which they were recalled were really job vacancies. Thus to give them preference over any non- reinstated striker was tantamout to granting the striker replacements superseniority, which necessarily discrimi- nated against the strikers and was violative of Section 8(a)(1) and (3) of the Act. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). The Respondent contends that it had the right to re- place permanently individuals who engaged in an eco- nomic strike, NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), and that as long as it does not dis- criminate against the strikers in its recall of them, it has not violated the Act, NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). Further, the Respondent contends that it did in fact recall the strikers in accordance with the pro- cedures set forth by the Board in Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). C. Analysis and Concluding Findings The relative rights of economic strikers to their jobs and of employers to continue business during a strike is well settled in Mackay, Fleetwood, Laidlaw, and numer- ous subsequent cases. Generally, an employee may not be discharged or otherwise discriminated against for 2 This finding is based on the unequivocal , generally credible, and un- controverted testimony of Charles S Barrett, the Respondent's adminis- trator, even though documentary evidence seems to indicate that two of them were recalled to different jobs That is, Eddie Tutt and Fred Ivy replaced strikers in the finished products department yet the recall notice for each was to a job in the production department As indicated, I re- solve this apparent discrepancy in favor of the specific testimony of Bar- rett. I note that this matter was apparently not considered of particular significance by the parties, which enhances Barrett's reliability His de- meanor was positive , and on this, his testimony was specific The recall notices are ambiguous and are not really dispositive of which job the in- dividual was recalled to Finally, on brief the General Counsel does not contest this fact 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having engaged in a strike. However, an employer may operate its business, and may do so by offering perma- nent jobs to individuals who are willing to work during a strike. When a strike ends, an employer need not dis- charge the replacements to make room for the strikers. Thus a striker may not be discharged but may be perma- nently replaced. When a striker is permanently replaced, he is entitled to reinstatement on departure of the re- placement only until he becomes a permanent employee elsewhere. Of course, as the Board and Supreme Court noted in Erie Resistor, the employer may not discriminate against strikers by giving replacements or those who abandon the strike, for instance, an additional 20 years' seniority. Nor may strikers otherwise be treated dispar- ately from replacements, nonstrikers, or those who aban- don the strike. Transport Co. of Texas, 177 NLRB 180 (1969); Wisconsin Packing Co., 231 NLRB 546 (1977). Nevertheless, absent disparity of treatment, a striker who has been permanently replaced only has the right to be reinstated if there is a job opening and then only until he has become permanently employed elsewhere. These cases deal with two similar, but distinct, con- cepts-the conditions under which strikers are entitled to reinstatement and, the right of strikers not to be discrimi- nated against (either before or after reinstatement). The matter deals basically with the former. It is argued that by recalling replacements who had been laid off about 15 months instead of nonreinstated strikers, in effect the Respondent granted the replacements supersen- iority. The General Counsel contends that the senior qualified nonreinstated striker should, in each case, have been offered the job. There is no contention that the striker who was specifically replaced on one of these jobs is entitled to it. The General Counsel contends that a job vacancy is created when a company determines to end a layoff caused by economic considerations. Either the layoff and subsequent reactivation of the job amounts to departure of the replacement (as in Laidlaw) or implies a vacancy resulting from expansion of the work force (as in Fleetwood). In either case strikers were entitled to consid- eration. The General Counsel does not suggest that a layoff of short duration would create a vacancy but only a "layoff of several month's duration caused by a prolonged short- age of work, constitutes a sufficient interruption of the employment relationship which would warrant recall of both unreinstated strikers and strike replacements on a nondiscriminatory basis." It should be noted at this point that the issue litigated in this proceeding is quite narrow and concerns whether when a striker replacement is laid off and then recalled to his job there is a "vacancy." This case does not in- volve the rights of strikers generally-nonreinstated or otherwise. For instance, the manner in which the Re- spondent has handled the filling of job openings caused by resignation or discharge or the creation of a new job is not in dispute. With such openings the Respondent first posts the job for bid among employees currently working. If no currently working employee bids on the job or none is qualified, then a notice is sent to all em- ployees on layoff. If that produces no qualified bidder, then the Respondent sends a notice of the job opening to the nonreinstated strikers. Thus the Respondent admits that with regard to job openings, it has treated nonrein- stated strikers differently from current employees or em- ployees on layoff. The General Counsel, however, spe- cifically stated at the hearing that this policy is not al- leged to be violative of the Act. On the essentially undisputed facts before me, I con- clude that the five individuals involved in this matter were laid off from a specific job and each was recalled to his/her respective job. There were no job vacancies for which the nonreinstated strikers need have been con- sidered. When an employee is laid off he is not deemed termi- nated if he had "a reasonable expectation of recall." Thus his recall is not to a job vacancy. Such was the Board's holding in Bancroft Cap Co., 245 NLRB 547 (1979), in which it was specifically held that the length of the layoff is relevant in determining whether a vacan- cy existed. In Bancroft the layoffs were from 2 to 7 days and caused by a shortage of materials. Here the five striker replacements were on layoff for 15 months. Such is clearly relevant to the question of whether they had a reasonable expectation of recall and whether they were recalled to a job vacancy. The longer the hiatus the more indication that they had no reasona- ble expectation of recall and when recalled, it was to a vacancy and not to their respective jobs. However, length of time is not dispositive, particularly given the current state of the national economy. Other factors are also relevant. First, the fact that one is laid off rather than terminated implies some expectation of recall. The cause of the layoff would also tend to prove whether the employee might expect to be recalled- whether, for instance, the lack of work causing a layoff appears permanent (as with buggy whips) or temporary (as with automobiles). Here the layoff resulted from a general downturn in the construction industry-not ob- solescence. That these laid-off employees waited 15 months for recall does not end their expectation for recall. To the date of the hearing the nonreinstated strikers had waited 2-1/2 years, yet expect to be rehired. The collective-bar- gaining agreement provides that seniority will be lost after 9 months on layoff (a provision that the Respond- ent does not apply). Though such would tend to dimin- ish one's expectation of recall, it would not necessarily end that expectation. It is also relevant whether the employee on layoff is recalled to the job he had, or to another one. Here the uncontested and generally credible evidence is that strik- er replacements were recalled to the specific jobs from which they were laid off. It would seem not to matter whether an employee's absence from work was a day, a month, or a year if during that period his job was not performed by any- body else and he was specifically recalled to that job. If those are the facts, and I must conclude they are in this case, then the layoff did not create a job vacancy nor did the Company's determination to recall the individual laid off. Again, this matter does not involve competing for DELTA-MACON BRICK & TILE CO. 833 jobs either newly created or occasioned by discharge or resignation. As to the specific facts here, nonreinstated strikers were not treated differently than any other group of non- working employees. Laid-off replacements were not con- sidered a class and given preference. Rather an individ- ual was given the first opportunity to return to the job from which he was laid off and in each case accepted. Although it happens that each of the laid-off employees here were striker replacements, that was not, apparently, a factor. They could have been laid-off reinstated strikers with the same result. Thus Giddings & Lewis, 255 NLRB 742 (1981), enf. denied 675 F.2d 926 (7th Cir. 1982), cited by the General Counsel, is distinguishable from this matter. In Giddings & Lewis, the Board was concerned with the promulga- tion of a comprehensive seniority policy and not with the specific situation of given individuals laid off from and recalled to particular jobs. Under the seniority policy announced in Giddings & Lewis, regardless of how the job vacancies came about, striker replacements on layoff would be given preference to nonreinstated strik- ers. The Board concluded the policy was violative of the Act. The Seventh Circuit disagreed, holding that a layoff does not terminate the employment relationship and a layoff does not create "a `vacancy' in the work force which would entitle a striker to reinstatement." Although I am, of course, bound by the Board's deci- sion I do not believe it is controlling here. The Respond- ent's general treatment of striker replacements vis-a-vis nonreinstated strikers was not litigated . Rather, this case concerns only whether specific employees who had been laid off could be recalled to their particular jobs without the opportunity to compete being given nonreinstated strikers. Without regard to the question of whether there were "job vacancies," the issue is whether the last incumbent is entitled to paramount consideration when the Re- spondent determines to reactivate a job. To conclude, as I do, that such is permissible does not put strikers in a subordinate class. Indeed, another time the laid-off em- ployees might be reinstated strikers. When strikers are put in a separate and subordinate class from nonstrikers, such inherently discriminates against one for having engaged in protected activity. Great Dane Trailers, 388 U.S. 26 (1967). Here, as to the matter litigated, strikers were not considered separately. Classes were not established based on one's participation in protected activity. Establishing classes based on participation in protected activity was the basis of the Board's holding in Giddings & Lewis. There the company promulgated a policy whereby nonreinstated strikers were placed in a subordi- nate class to laid-off employees (presumably replace- ments as well as others) for purposes of bidding on job openings. That case did not deal with the situation of in- dividuals on layoff being recalled to the specific jobs they had. In fact the Board held that the company was free to set criteria for job bidding so long as such did not relate to having engaged in protected activity. Here the only criterion used for selecting the individ- uals for recall was their incumbency in the particular job. Such does not relate to having engaged in or re- fraining from protected activity nor does such inherently discriminate against strikers. Thus I conclude that the recall of one on layoff to the job he had does not imply there was a vacancy, nor is such inherently discriminatory against strikers in viola- tion of Section 8(a)(1) and (3) of the Act. Accordingly, I will recommend that the complaint be dismissed. In view of this, I need not consider the Respondent's additional defenses: that its conduct was not inherently destructive of employee rights; that the Union waived the nonreinstated strikers right to be recalled ahead of laid-off replacements; that somehow the strike was un- protected because the employees had changed their col- lective mind about what it was they wanted; that the matter should be deferred to arbitration; that the non- reinstated strikers for whom the General Counsel seeks relief have been offered and have refused substantially equivalent jobs; and that there was no showing of a casual connection between the recall procedure and the fact that five nonreinstated strikers were not offered the specific jobs. [Recommended Order for dismissal omitted from pub- lication.]