Detroit Newspapers

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1041 (N.L.R.B. 2004)

DETROIT NEWSPAPERS
343 NLRB No. 113
1041
Detroit Newspaper Agency, d/b/a Detroit Newspapers
and Local Union 13N, Graphic Communications
International Union, AFL–CIO and Detroit
Mailers Union No. 2040, International Brother-
hood of Teamsters, AFL–CIO; Local No. 372,
International Brotherhood of Teamsters, AFL–
CIO and Detroit Mailers Union No. 2040, Inter-
national Brotherhood of Teamsters, AFL–CIO
and Local No. 372, International Brotherhood of
Teamsters, AFL–CIO and Newspaper Guild of
Detroit Local 22, the Newspaper Guild and De-
troit Typographical Union No. 18, Communica-
tions Workers of America and The Detroit
News, Inc., and Newspaper Guild of Detroit, Lo-
cal 22, The Newspaper Guild, and The Detroit
Free Press and Newspaper Guild of Detroit, Lo-
cal 22, The Newspaper Guild. Cases 7–CA–
38079, 7–CA–38081, 7–CA–38118, 7–CA–38216,
7–CA–38260, 7–CA–38313, 7–CA–38320, 7–CA–
38321, 7–CA–38322, 7–CA–38338, 7–CA–38347,
7–CA–38367, 7–CA–38393, 7–CA–39396, 7–CA–
38457, 7–CA–38487, 7–CA–38509, 7–CA–38545,
7–CA–38552, 7–CA–38706, 7–CA–38812, 7–CA–
39008, 7–CA–39105, 7–CA–39118, 7–CA–39119,
7–CA–39377, 7–CA–39396, 7–CA–39401, 7–CA–
39435, 7–CA–39436, 7–CA–39523, 7–CA–39525,
7–CA–39526, 7–CA–39548, 7–CA–39549, 7–CA–
39550, 7–CA–39570, 7–CA–39574, 7–CA–39593,
7–CA–39594, 7–CA–39596, 7–CA–39597, 7–CA–
39610, 7–CA–39813, 7–CA–39850, 7–CA–39894,
7–CA–39895, 7–CA–39901, 7–CA–39966, 7–CA–
40008, 7–CA–40024, 7–CA–40086, 7–CA–40118,
7–CA–40226, and 7–CA–40283
December 16, 2004
ORDER GRANTING MOTION FOR
RECONSIDERATION
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On June 30, 2004, the National Labor Relations Board
issued a Decision and Order in this proceeding finding,
in relevant part, that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging a number of
economic strikers, either without a good-faith belief that
they had committed strike misconduct or where the strik-
ers had not in fact committed the acts relied upon for the
discharges.1 NLRB v. Burnup & Sims, 379 U.S. 21, 22
(1964).
On July 14, 2004, the Charging Parties filed a motion
for reconsideration. On July 29, 2004, the General
Counsel filed his own motion for reconsideration. The

1 342 NLRB 223 (2004).
Respondents Detroit News and Detroit Newspaper
Agency filed oppositions to the motions.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
The Board has decided to grant the motions for recon-
sideration. Section 102.48(d)(1) of the Board’s Rules
and Regulations provides that a party may, because of
“extraordinary circumstances,” move for reconsideration
of a Board decision, and that the moving party must
“state with particularity the material error claimed.” We
agree with the contention of the General Counsel and the
Charging Parties that the Board inadvertently made a
material error with respect to the appropriate remedy and
order for the unfair labor practices found. We correct our
decision accordingly.
In ordering the remedy for the unlawful discharges, the
Board stated that the discriminatees should be reinstated
with backpay from the dates of their discharges, unless
they had been permanently replaced before the Union
made its unconditional offer to return to work in Febru-
ary 1997. In the latter event, the discriminatees would be
afforded the rights of permanently replaced economic
strikers under Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970).
The General Counsel and the Charging Parties cor-
rectly argue that the Board erred in focusing on whether
the discriminatees were permanently replaced before or
after the Unions’ unconditional offer to return, and not
on whether they were lawfully permanently replaced
before they were discharged. Thus, the Board inaccu-
rately treated the discriminatees as merely economic
strikers rather than as unlawfully discharged strikers.
Unlawfully discharged strikers are entitled to reinstate-
ment and backpay running from the dates of their dis-
charges regardless of when, or even if, they made an un-
conditional offer to return to work. Abilities & Goodwill,
241 NLRB 27 (1979), enf. denied on other grounds 612
F.2d 6 (1st Cir. 1979). If the strikers were lawfully per-
manently replaced2 before they were discharged, how-
ever, their rights to reinstatement and backpay are con-
tingent on the departure of the employees who replaced
them. Hormigonera Del Toa, Inc., 311 NLRB 956, 957–
958 fn. 3 (1993).
Thus, under Abilities & Goodwill and Hormigonera
Del Toa, Inc., supra, the discriminatees’ entitlement to
reinstatement and backpay depends on whether they were
lawfully permanently replaced before their unlawful dis-
charges, or after. Specifically: (1) if a striker is unlaw-

2 I.e., replaced prior to making an unconditional offer to return to
work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1042
fully discharged and then permanently replaced, he is
entitled to immediate reinstatement and backpay running
from the date of the discharge (regardless of when, or if,
he unconditionally offers to return to work); (2) if the
striker is lawfully permanently replaced before being
discharged, he is entitled to reinstatement upon the de-
parture of his replacement, with backpay running from
the date of the replacement’s departure.3
In this case, the Board inadvertently provided an inac-
curate discussion of the discriminatees’ right to relief.4
We shall correct our Decision and Order accordingly.
Accordingly, we shall grant the Charging Parties’ and
General Counsel’s motions and modify our Decision and
Order as set out below.5
ORDER
The Charging Parties’ and General Counsel’s motions
for reconsideration are granted. Accordingly, the
Board’s Decision and Order is modified, and the Re-
spondent, Detroit Newspaper Agency, d/b/a Detroit
Newspapers, Detroit, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for the last sentence in the
first partial paragraph and the first and second full para-
graphs on page 3 of the decision.
“Consequently, we revise the judge’s recommended
remedy and Order to grant the discriminatees the rights
of unlawfully discharged economic strikers.
“Unlawfully discharged economic strikers are entitled
to immediate reinstatement to their former jobs or, if
those positions no longer exist, to substantially equiva-
lent positions, and to receive backpay running from the
dates of their unlawful discharges until they are offered
reinstatement, unless they were lawfully permanently
replaced before they were discharged. Abilities &
Goodwill, 241 NLRB 27 (1979), enf. denied on other
grounds 612 F.2d 6 (1st Cir. 1979). Any discriminatees
who were lawfully permanently replaced before they
were unlawfully discharged are entitled to full reinstate-

3 Hormigonera Del Toa, Inc., supra, 311 NLRB at 957 fn. 3. How-
ever, if he is permanently replaced before the discharge but after mak-
ing an unconditional offer to return to work, the replacement is unlaw-
ful, and the discriminatee is again entitled to immediate reinstatement
and full backpay.
4 In Detroit Newspapers, 340 NLRB 1019 (2003), in which we used
similar language, the relevant discharges occurred after the Union’s
unconditional offer to return in February 1997. In those circumstances,
any striker who was replaced before the Union made its offer was nec-
essarily replaced before he was discharged. Accordingly, we do not
need to correct the remedy in that case.
5 Member Schaumber would not include Larry Skewarczynski in the
below Order because he did not find his discharge unlawful in the
earlier decision.
ment to their former positions on a nondiscriminatory
basis either upon the departure of the permanent re-
placements or, if those positions no longer exist, to sub-
stantially equivalent positions, unless they have in the
meantime acquired other regular and substantially
equivalent employment or the employer can show that it
failed to offer reinstatement for legitimate and substantial
business reasons. Hormigonera Del Toa, Inc., 311
NLRB 956, 957–958 fn. 3 (1993); Rose Printing Co.,
304 NLRB 1076 (1991). Such individuals are not owed
backpay for any period of time in which their replace-
ments continued in the employer’s employ during the
backpay period.
“In accordance with these principles, we shall order
the Respondent to offer to reinstate Floyd Davis Jr., An-
thony Edwards, Douglas McPhail, Steven Montagne,
Gary Rusnell, Larry Skewarczynski, Harry Thompson,
and Mike Youngmeier immediately to their former posi-
tions. In the event that Respondent lawfully permanently
replaced any of them prior to their unlawful discharges,
the Respondent shall place them on a preferential hiring
list, based on seniority, or some other nondiscriminatory
basis, for employment as jobs become available. The
strikers shall be made whole for any loss of earnings and
other benefits suffered as a result of their unlawful dis-
charges, in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be computed
in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).”6
2. Substitute the following for paragraph 2(a):
“(a) Within 14 days from the date of this Order, offer
Floyd Davis Jr., Anthony Edwards, Douglas McPhail,
Steven Montagne, Gary Rusnell, Larry Skewarczynski,
Harry Thompson, and Mike Youngmeier full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, if they were not lawfully permanently replaced
prior to their unlawful discharges, dismissing if neces-
sary any replacements hired thereafter. If no employ-
ment is available for the discriminatees, or if they were
lawfully permanently replaced before being unlawfully
discharged, they shall be placed on a preferential hiring
list based on seniority, or some other nondiscriminatory
test, for employment as jobs become available.”

6 In regard to striker Anthony Edwards, Respondent DNA offered to
reinstate him on April 23, 1996, but he refused. While Edwards was
within his rights to reject this offer and continue his strike, his backpay
should be tolled for the period between the offer of reinstatement and
the date when the Respondent failed to offer him the reinstatement
rights extended to the other returning strikers. See Abilities & Good-
will, 241 NLRB 27 fn. 5 (1979).
DETROIT NEWSPAPERS 1043
3. Substitute the attached notice for that in the Decision
and Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discourage our employees’ activity on
behalf of a labor organization by discharging striking
employees, without an honest belief that they had en-
gaged in serious misconduct, or where they had not en-
gaged in serious misconduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Floyd Davis Jr., Anthony Edwards, Douglas
McPhail, Steven Montagne, Gary Rusnell, Larry Ske-
warczynski, Harry Thompson, and Mike Youngmeier,
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, if they were not lawfully
permanently replaced before their unlawful discharges,
dismissing if necessary any replacements hired thereaf-
ter. If no employment is available for the discriminatees,
or if they were lawfully permanently replaced before
being unlawfully discharged, WE WILL place them on a
preferential hiring list based on seniority, or some other
nondiscriminatory test, for employment as jobs become
available.
WE WILL make Floyd Davis Jr., Anthony Edwards,
Douglas McPhail, Steven Montagne, Gary Rusnell, Larry
Skewarczynski, Harry Thompson, and Mike Youngmeier
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Floyd Davis Jr., Anthony Edwards,
Douglas McPhail, Steven Montagne, Gary Rusnell, Larry
Skewarczynski, Harry Thompson, and Mike Young-
meier, and WE WILL, within 3 days thereafter, notify each
of them in writing that this has been done and that the
discharges will not be used against them in any way.
DETROIT NEWSPAPER AGENCY D/B/A DETROIT
NEWSPAPERS