Brooks Research & Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1973

202 N.L.R.B. 634 (N.L.R.B. 1973)

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.