Pacific Coast Supply, LLC, d/b/a Anderson Lumber

National Labor Relations Board - Administrative Judge Opinions

Jul 6, 2017

20-CA-189966 (N.L.R.B. Jul. 6, 2017)

JD(SF)–32–17
North Highlands, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PACIFIC COAST SUPPLY, LLC d/b/a
ANDERSON LUMBER
and Case 20–CA–189966
CHAUFFEURS, TEAMSTERS AND HELPERS,
LOCAL 150, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Matthew C. Peterson, Esq., for the General Counsel.
Mark S. Spring, Esq. (Carothers DiSante & Freudenberger LLP), for the Company.
Costa Kerestenzis, Esq. (Beeson Tayer & Bodine), for the Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. The complaint in this case
alleges that Pacific Coast Supply, LLC d/b/a Anderson Lumber made certain unlawful
statements to its employees in November 2016, during its negotiations with Teamsters Local 150
over a successor collective-bargaining agreement, regarding the reinstatement rights of
employees who engage in an economic strike.1
There are two specific statements at issue, one written and the other oral. The written
statement was in a letter the Company distributed to employees at a series of meetings on
November 16 regarding the status of the contract negotiations and the Company’s last bargaining
proposal. It stated:
In the event of an economic strike, the Company can hire permanent
replacements. More specifically, if the Company hires permanent replacements
who are filling the jobs of any employees that chose to strike, when the striking
employees apply to return to work, the strikers are not automatically entitled to
reinstatement at that time.
The oral statement was made to the employees by the Company’s president, Curt
Gomes, during the same meetings. Gomes said:

1 The General Counsel and the Company submitted the case for decision on a stipulated
record. The Union did not join the stipulation, but did not object to it. The stipulation was
approved by order dated May 1, and the General Counsel and the Company thereafter filed briefs
on June 19. The Board’s jurisdiction is uncontested and established by the stipulated facts.
JD(SF)–32–17
2
The Company has the right to hire replacement workers and those who strike are
not entitled to reinstatement when the strike ends. We understand that you have a
legal right to strike. We will not retaliate against any employees who decide to
strike. However, we do plan to do what is necessary to keep our business running
and service our customers if any type of strike or slowdown occurs.5
The General Counsel alleges that both statements violated section 8(a)(1) of the National Labor
Relations Act (NLRA) because they implied that striking employees would be deprived of their
reinstatement rights in a manner inconsistent with Laidlaw Corp., 171 NLRB 1366, 1369–1370
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). 10
As indicated by the Company, however, the statements did nothing of the sort. Rather,
they were entirely consistent with Laidlaw. As the Board stated in Rivers Bend Health &
Rehabilitation Service., 350 NLRB 184, 185 (2007), “If, at the conclusion of an economic strike,
the strikers' positions are filled by permanent replacements, the employer is legally justified in 15
not reinstating the strikers under Laidlaw and its progeny. . . .” See also Gibson Greetings, Inc.
v. NLRB, 53 F.3d 385, 389 (D.C. Cir. 1995) (“[A]n economic striker who is permanently
replaced . . . loses his right to immediate reinstatement.”); and Teamsters Local 162 v. NLRB,
568 F.2d 665, 668 (9th Cir. 1978) (“Returning economic strikers do not have an absolute right to
reinstatement. If those strikers have been permanently replaced, the Act does not compel an 20
employer to discharge the replacements when the work stoppage ends, in order to rehire those
strikers who seek to return.”).
Instead, “economic strikers who unconditionally apply for reinstatement at a time when
their positions are filled by permanent replacements . . . are entitled to full reinstatement upon 25
the departure of replacements . . .” Laidlaw, 171 NLRB at 1369–1370. See also Curtin
Matheson Scientific, Inc., 228 NLRB 996, 1003 (1977) (“[W]hen the economic strike ends the
strikers, if they signify their intent to return, are entitled to reinstatement or reemployment as
vacancies occur . . .”), enfd. 602 F.2d 759 (6th Cir. 1979); and NLRB v. American Olean Tile
Co., 826 F.2d 1496, 1499 (6th Cir. 1987) (“Economic strikers who unconditionally apply for 30
reinstatement are entitled to reinstatement when replacements leave the strikers' former positions
or when vacancies occur for which they are qualified.”).
Here, consistent with the foregoing caselaw, the Company informed employees that it
could hire permanent replacements during an economic strike and would not have to reinstate the 35
strikers when the strike ended or at the time they offered to return.2 Although the Company did

2 As indicated above, the oral statement did not distinguish between economic strikes, which
protest the employer’s unfavorable employment terms, and unfair labor practice strikes, which
protest, at least in part, the employer’s unfair labor practices. As the D.C. Circuit recently noted,
the “categorization carries significant consequences,” as “economic strikers run the risk of
replacement if, during the strike, the employer takes on permanent new hires,” whereas
“employees who engage in an unfair labor practice strike are entitled to reinstatement to their
former positions . . . at the conclusion of the strike, even if the employer has hired replacements.”
Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1137 (D.C. Cir. 2015), enfg. 357 NLRB 1510
(2011). However, the General Counsel does not argue that the oral statement was unlawful for
JD(SF)–32–17
3
not additionally explain that the strikers would eventually be entitled to reinstatement when
vacancies occur, it was not required to do so. See Eagle Comtronics, Inc., 263 NLRB 515, 515–
516 (1982) (employer’s statement that economic strikers “could be replaced with applications on
file” was lawful even though it did not “fully detail[] the protections enumerated in Laidlaw” by
informing employees that strikers would have a right to reinstatement as vacancies became 5
available).3
Fern Terrace Lodge, 297 NLRB 8 (1989), the primary case cited by the General Counsel,
is distinguishable. In that case, the company told employees that “[a]n employer has the legal
right to permanently replace the striking employees, and the replaced striker is not automatically 10
entitled to his job back just because the strike ends” (emphasis added). Here, in contrast, the
Company told employees that strikers are not automatically entitled to reinstatement “when” the
strike ends or “at th[e] time” they offer to return. The distinction may seem a fine one, but it is
determinative under Board precedent. See Novi American, 309 NLRB 544, 545–546 (1992)
(distinguishing Fern Terrace and finding no violation where the employer stated that “striking 15
employees can be replaced by permanent replacements, and may not have a job when the strike
is over,” as the employer “was simply informing employees that when a strike ends, strikers may
not have a job to which they can immediately return”).4
Accordingly, the Company’s statements did not violate the Act.20
ORDER5
The complaint is dismissed.
Dated, Washington, D.C., July 6, 201725
Jeffrey D. Wedekind
Administrative Law Judge

this reason. In any event, it is clear from the context that, like the written statement, the oral
statement referred to economic strikes. See Novi American, Inc., 309 NLRB 544, 545 (1992).
3 Eagle Comtronics is the “leading case defining the extent of an employer’s obligation, on
informing employees that economic strikers may be replaced, to provide an accurate summary of
employee rights under Laidlaw.” Rivers Bend, 350 NLRB at 184.
4 See also Care One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 361 (D.C. Cir. 2016)
(upholding the Board’s distinction between employer statements that striking employees risk
“loss of a job,” which the Board finds unlawful, and statements that striking employees risk “loss
of job status,” which the Board finds permissible, notwithstanding that the distinction “may
seem picayune.”)
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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