Peerless Pump Co.

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 371 (N.L.R.B. 2005)

PEERLESS PUMP CO.
345 NLRB No. 20
371
Sterling Fluid Systems (USA), Inc. d/b/a Peerless
Pump Company and District No. 90, Interna-
tional Association of Machinists & Aerospace
Workers, AFL–CIO, a/w International Associa-
tion of Machinists & Aerospace Workers, AFL–
CIO. Case 25–CA–26448
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 1, 2000, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a brief in reply.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
As discussed below, we agree with the judge’s finding
that the Respondent violated Section 8(a)(3) by: (1) fail-
ing to reinstate or place on a nondiscriminatory recall
list, former strikers on whose behalf the Union made an
unconditional offer to return, and (2) failing to maintain
and use a nondiscriminatory recall procedure by giving
preference for recall to (a) employees who abandoned the
strike prior to its conclusion and (b) former striking em-
ployees encompassed by the Union’s unconditional offer
to return who complied with the Respondent’s unlawful
signup requirement. We reverse the judge’s findings that
the Respondent (1) violated Section 8(a)(5) and (1) by
unilaterally implementing discriminatory procedures
which adversely affected the recall rights of former strik-
ing employees, bypassing the Union and dealing directly
with former strikers about the terms and conditions of
reinstatement, (2) violated Section 8(a)(3) and (1) by
failing to provide notice and an opportunity for former
striking employees to apply for nonequivalent positions
posted in the plant, and (3) violated Section 8(a)(1) by
threatening former strikers with loss of their reinstate-
ment rights.1

1 Members Liebman and Schaumber form the majority for affirming
certain of the 8(a)(3) and (1) violations as detailed above. Chairman
Battista would reverse, as explained in his separate dissent. Chairman
Battista and Member Schaumber form the majority for reversing an-
other of the judge’s 8(a) (3) findings, as well as his findings of 8(a)(5)
and (1) violations. Contrary to the majority view, Member Liebman
would not reverse and dismiss any portion of the 8(a)(3) allegations or
the 8(a)(1) threat allegation, as explained in her separate dissent. She
does not reach the 8(a)(5) issue. See fn. 8 infra.
I. FACTS2
The Respondent, Peerless Pump Company, manufac-
tures and distributes industrial pumps. The Union, Dis-
trict 90 of the International Association of Machinists,
has represented Respondent’s production and mainte-
nance employees for many years in a bargaining unit of
approximately 150 employees. Three witnesses testified
at the hearing: Respondent’s Labor Relations Manager
Thomas Dagon, Machinists’ Representative Don Stella,
and Local Union President John Soladine.
Unsuccessful negotiations for a successor collective-
bargaining agreement led to the Union’s calling a strike
on June 6, 1997, when the prior agreement expired. The
Respondent continued to operate during the strike
through the use of replacement employees. During the
course of the strike, some unit employees abandoned the
strike and offered to return to work. These employees,
referred to as “crossovers,”3 signed a preferential rehire
list maintained by the Respondent.
By September 23, 1997, the Respondent employed a
sufficient number of replacements and crossovers to be at
full complement and so notified the Union. Respon-
dent’s attorney sent the Union a letter dated December
10, 1997, while the strike was still in progress, stating
that it wanted to work out an agreement as to “how em-
ployees who have indicated a desire to return to work
and who have signed the preferential hiring or recall list,
will be returned to work.” The letter set forth a four-step
procedure, outlined below:
When a position in the bargaining unit becomes
available, and there are persons who have indicated
an interest in returning to work, and who have
signed the Preferential Hiring List, Peerless Pump
Company (“Company”) will fill the available posi-
tion as follows:
1. Company will follow the procedures set forth
in Article VI[4] of the collective bargaining agree-
ment between the Company and the IAM dated Feb-
ruary 20, 1993.
2. If no currently-working employee is selected
for the position, the Company will consult the Pref-
erential Hiring List. The Company will then contact
the first employee on the list who has previously

2 The facts of this case are largely undisputed. Most were either
stipulated by the parties or substantiated by documents entered into the
record jointly.
3 The term “crossover” is used to distinguish former strikers who in-
dividually abandoned the strike both from newly hired replacement
employees and from employees who remained on strike until the Union
made an unconditional offer on their behalf to return.
4 Art. VI involved an in-plant posting procedure, as explained in
greater detail below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD372
held the position and notify the employee of the
available position. (“1st employee” means the em-
ployee who has signed the list on the earliest date.)
If the 1st employee (or subsequent employees) indi-
cates that he or she does not want the position or if
the employee fails to report for work within seven
(7) calendar days from the date of notice the em-
ployee will be disqualified and stricken from the list
and will not be eligible for employment with the
Company except as a new hire.
3. If the employee (or subsequent employees) is
disqualified, Company will go down the list and
contact each person who has previously held the po-
sition in the order the person signed the list until the
position is filled.
4. If no person on the list had previously held the
position or if all persons who previously held the po-
sition are disqualified, the Company may hire an
employee from outside who is trained on the posi-
tion or whose experience indicates that he or she
could become productive on the position with mini-
mal training.
On December 17, 1997, Union Representative Stella
replied to the Respondent’s counsel, stating:
The Union is unable at this time to respond to
your proposal regarding the preferential hiring list.
We are confused by your proposal, you have consis-
tently told us that the language in the expired agree-
ment was totally unacceptable, yet your proposal
says the company will follow the procedures set
forth in Article VI of the expired agreement.
If this means that you are now willing to enter
into good faith negotiations, then the union is willing
to meet and negotiate.
The Respondent did not reply to the Union’s letter.
On September 17, 1998,5 Stella sent the Respondent
(Labor Relations Manager Dagon) a letter stating that the
Union was making an unconditional offer to return to
work on behalf of the remaining strikers:
On behalf of the striking employees represented by [the
Union] effective at 12:01 AM Monday, September 21,
1998, I am hereby making an unconditional offer to re-
turn to work. Therefore, based upon your position (that
there is no work available for any of the striking em-
ployees) taken on September 23, 1997 and reaffirmed
at the December 1997 unemployment hearing, all strik-
ing employees will be placed on a preferential list to be
recalled as soon as openings are available. I have noti-

5 Dates hereafter refer to 1998, unless otherwise indicated.
fied the striking employees that they will be contacted
by the Company and notified when to return to work.
Learning that the Respondent failed to receive its letter, the
Union resent this letter, which was delivered on October 2.
Thereafter, without prior discussion with the Union,
the Respondent (by Dagon) notified the Union on Octo-
ber 23 that it had sent the following letter to all employ-
ees covered by the offer to return from the strike:
We have been informed by the IAM that it has
made an unconditional offer to return to work on be-
half of all employees who went on strike in June of
last year and who have not already signed our pref-
erential rehire list.
If you are interested in being reinstated at the ear-
liest possible date, we need for you to come to the
plant and sign the preferential rehire list. We also
need for you to provide us with your most current
home or mailing address and telephone number. We
need you to sign the list and we need the requested
information so that we can contact you when we
have job openings in the future.
If you are interested in reinstatement, it is impor-
tant that you come to the plant as soon as possible,
but no later than November 6, 1998, and sign the
preferential rehire list because we plan to fill any
available positions, not filled through the normal bid
procedure, in the order that employees’ names ap-
pear on the preferential rehire list as long as the em-
ployee has previously held the open job classifica-
tion.
The Respondent requested the Union to review the re-
cipient list to ensure that no employee was omitted.
Stella responded for the Union on November 3, in perti-
nent part, as follows:
This is to inform you that . . . I made an uncondi-
tional offer to return to work for all striking employ-
ees. It is the Union’s position that [if] for some rea-
son an employee does not sign your preferential re-
hire list, this does not relief [sic] you of your re-
sponsibility to offer striking employees reinstatement
as vacancies occur. To make it very clear, it is your
responsibility to offer former striking employees re-
instatement to positions as these positions become
available.
Should you have any questions, comments, or
concerns regarding this subject, please do not hesi-
tate to contact the undersigned. [emphasis in origi-
nal]
The Respondent’s November 6 reply read, in full:
PEERLESS PUMP CO. 373
This is to acknowledge receipt of your November 3,
1998 letter. We understand your position, and do not
disagree with you.
A number of former strikers covered by the Union’s
offer to return signed the recall list pursuant to the Re-
spondent’s October 23 instruction. On November 6, Re-
spondent added the names of former strikers who did not
sign the list themselves, placing their names after those
who had personally signed.6 This resulted in a composite
list consisting of three categories of employees seeking
reinstatement set out in the following order:
§ the names of unreinstated crossovers who had
signed the list prior to the end of the strike
§ the names of those covered by the Union’s uncon-
ditional offer who signed the list
§ the names of those covered by the Union’s uncon-
ditional offer who did not sign the list.
Those employees who signed were listed in chronological
order of their signing, whereas those who had not signed
were listed at the end of the list by seniority.
When vacancies occurred, the Respondent sought to
fill them by turning first to an in-plant posting procedure,
based upon article VI of the expired collective-
bargaining agreement.7 This involved placing notices of
the vacant position on three bulletin boards inside the
plant for a period of 3 working days. No other effort was
made to notify others of these vacancies. The Respon-
dent referred to the preferential rehire list only if no one
successfully bid on a posted position. This resulted in
actively employed employees receiving first considera-
tion for vacant positions.
II. ANALYSIS
We begin with the Respondent’s affirmative defense
that the complaint allegations involving 8(a)(5) are time-
barred. Next, we deal with the various 8(a)(3) allega-
tions relating to the reinstatement of strikers, and then
with the 8(a)(1) alleged threat.

6 There is no evidence that the Respondent advised the Union or the
affected employees either that it intended to or that it did add those
names.
7 Art. VI is entitled “Promotions and Transfers.” By its own terms,
the article’s intent was to promote bargaining unit employees to vacan-
cies in higher classifications than they currently occupied. In addition,
Sec. 6.2 states, in part, “open jobs will not be posted as vacancies so
long as any employees have been laid off or transferred from such
classification because of or during a layoff.”
A. The Respondent’s Section 10(b) Defense to the
Section 8(a)(5) Allegations 8
The judge found that the Respondent violated Section
8(a)(5) in two respects: first, by announcing and unilater-
ally implementing a striker recall system following the
Union’s unconditional offer ending the strike; and sec-
ond, by circumventing the Union and dealing directly
with employees through its October 23 letter describing
the recall process. The judge rejected the Respondent’s
contentions that, in December 1997, the Union waived its
right to bargain over the striker reinstatement procedure
and that the Respondent’s October 23 letter to employees
was merely a permissible communication about its law-
fully established reinstatement policy.
In exceptions, the Respondent argues, inter alia, that
the refusal to bargain allegations are time barred, under
Section 10(b) of the Act. We agree.9
The original charge, filed March 1, 1999, alleged only
a violation under Section 8(a)(3); specifically, that the
Respondent’s recall policy unlawfully interfered with the
right of former strikers to be recalled to work following
the Union’s unconditional offer to return. On July 28,
1999, the Union filed a second 8(a)(3) charge, alleging
that the Respondent’s failure to notify former strikers of
job postings additionally violated the Act. On August 6,
1999, the Union for the first time alleged a violation un-
der Section 8(a)(5), charging that the Respondent’s im-
plementation of the recall procedure was done unilater-
ally and without regard to its bargaining obligations.
The ensuing complaint set forth two 8(a)(5) and (1) al-
legations: first, that the Respondent unilaterally imple-
mented the recall system without affording the Union an
opportunity to bargain (the conduct cited in the charge);
and second, that the Respondent bypassed the Union and
dealt directly with employees concerning the operation
of the recall procedure. Both aspects of the Respon-
dent’s conduct are described as having occurred in Octo-
ber 1998, some 10 months before the 8(a)(5) charge was
filed in August 1999.
The question presented is whether the 8(a)(5) charge
(filed more than 6 months after the alleged unlawful
conduct occurred) is itself sufficiently closely related to
the 8(a)(3) charges to qualify as timely. For the reasons
explained below, we find the August 1999 8(a)(5) charge

8 Member Liebman does not join in this section of the decision. She
finds it unnecessary to pass on the disposition of the 8(a)(5) allegations
because a remedy for such violations would be cumulative to other
relief granted.
9 Because we are dismissing these allegations on procedural
grounds, we do not reach the merits of these allegations or of the Re-
spondent’s other defenses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD374
was not closely related to the pending 8(a)(3) charges
and therefore was untimely under Section 10(b).
Section 10(b) empowers the Board to issue and serve
complaints upon persons who have been charged with
committing an unfair labor practice, “Provided, that no
complaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the filing of
the charge with the Board and the service of a copy
thereof upon the person against whom such charge is
made.” It is well established that allegations in a com-
plaint are not limited to the specific unfair labor practices
outlined in a charge. The Board may consider complaint
allegations not precisely set forth in a charge if those
unfair labor practices are “related to those alleged in the
charge and grow out of them while the proceeding is
pending before the Board.” National Licorice Co., 309
U.S. 350, 369 (1940). See also NLRB v. Fant Milling
Co., 360 U.S. 301 (1959). Further, the Board and the
courts have traditionally permitted the General Counsel
to add complaint allegations beyond the 6-month 10(b)
period if they are closely related to the allegations of the
timely filed charge.10 That same standard applies when
determining whether otherwise time-barred allegations in
an amended charge are sufficiently related to a timely
pending charge,11 the question to be decided here.
In Redd-I, Inc., 290 NLRB at 1118, the Board enunci-
ated the factors to be considered in making the determi-
nation of whether allegations are “closely related”:
First, we shall look at whether the otherwise un-
timely allegations are of the same class as the viola-
tion alleged in the pending timely charge. This
means that the allegations must all involve the same
legal theory and usually the same section of the Act
. . . .
Second, we shall look at whether the otherwise
untimely allegations arise from the same factual
situation or sequence of events as the allegations in
the pending timely charge. This means that the alle-
gations must involve similar conduct, usually during
the same time period with a similar object. . . .
Finally, we may look at whether a respondent
would raise the same or similar defenses to both al-
legations, and thus whether a reasonable respondent
would have preserved similar evidence and prepared
a similar case in defending against the otherwise un-
timely allegations as it would in defending against
the allegations in the timely pending charge.

10 Redd-I, Inc., 290 NLRB 1115, 1116 (1988).
11 Citywide Services Corp., 317 NLRB 861 (1995).
Applying Redd-I here, and relying on the first and
third of these factors, we find that the 8(a)(5) allegation
fails to meet the "closely related" test.12
First, the allegation is based upon an entirely separate
legal theory from the timely 8(a)(3) charges. The 8(a)(3)
charges deal with the rights of strikers. They challenge
the substance, mechanics, and impact of the Respon-
dent’s recall procedure for former strikers. In particular,
they raise the issue of the right of former strikers to be
recalled to their jobs following their involvement in pro-
tected activity and the Respondent’s obligation to satisfy
that statutory right. The 8(a)(5) allegations, on the other
hand, relate to the Union’s right as the employees’ exclu-
sive representative to be apprised of and participate in the
formulation of policies that affect employees’ terms and
conditions of employment and the Respondent’s obliga-
tion to bargain with the Union in good faith. While the
recall procedure is a common factual aspect of both alle-
gations, the Respondent’s bargaining obligations to the
Union are distinct from its legal duty not to discriminate
against strikers. Because the legal theories are funda-
mentally different, we find that the belatedly filed Sec-
tion 8(a)(5) charge fails to meet the first prong of the
"closely related" test.
Next, because both the 8(a)(5) and the 8(a)(3) allega-
tions were litigated, we are able to review the nature and
substance of the Respondent’s attempted defenses. With
regard to the 8(a)(5) allegations, besides its 10(b) de-
fense, the Respondent presented evidence attempting to
show that (1) the Union’s conduct had resulted in a
waiver of its bargaining rights, (2) the Respondent was
acting out of business necessity both in implementing the
recall system and in asking for employee expression of
interest in returning, and (3) the Respondent was com-
municating with employees pursuant to its statutory obli-
gations rather than excluding the Union from its repre-
sentational role. As for the 8(a)(3) issues, the Respon-
dent argued that (1) there was no showing of animus un-
derlying its actions, (2) its recall system was consistently
applied and facially nondiscriminatory, and (3) it was
using the same system and applying its terms to all for-
mer strikers irrespective of when they offered to return to
work. It is apparent that the Respondent defended these
allegations on entirely separate legal and evidentiary
grounds. Thus, these allegations also fail to qualify as
closely related under the third prong of the test.
For these reasons, we find that the 8(a)(5) charge filed
on August 6, 1999 fails to qualify as closely related to
the timely-filed 8(a)(3) charges. We therefore conclude

12 We therefore find it unnecessary to analyze the allegations under
the second criterion (common factual situation or sequence of events).
PEERLESS PUMP CO. 375
that the complaint allegations under Section 8(a)(5) and
(1) are time-barred; we reverse the judge’s findings of
violations, and dismiss all allegations under Section
8(a)(5) and (1).
B. The 8(a)(3) Issues
The judge determined that the Respondent violated
Section 8(a)(3) in four respects:
(1) failing to reinstate the former strikers or to
place them on a nondiscriminatory recall list, includ-
ing those covered by the Union’s unconditional offer
to return to work;
(2) granting preference to crossover employees,
by placing them on a recall list ahead of other em-
ployees;
(3) granting preference in recall to former strik-
ers who came to the Respondent’s facility and
signed the preferential recall list; and
(4) posting and filling jobs without giving strik-
ers who had not been recalled the opportunity to bid
on job vacancies.
The principles that govern the reinstatement rights of former
strikers are well established. In Laidlaw Corporation, the
Board held that:
economic strikers who unconditionally apply for rein-
statement at a time when their positions are filled by
permanent replacements: (1) remain employees; and
(2) are entitled to full reinstatement upon the departure
of replacements, unless they have in the meantime ac-
quired regular and substantially equivalent employ-
ment, or the employer can sustain his burden of proof
that the failure to offer full reinstatement was for le-
gitimate and substantial business reasons.
171 NLRB 1366, 1369–1370 (1968). These principles have
consistently guided the Board for decades. See, e.g., Pirelli
Cable Corp., 331 NLRB 1538, 1539–1540 (2000). Apply-
ing Laidlaw, we agree with the judge’s 8(a)(3) findings,
except for the fourth listed above (involving the posting and
filling of jobs).
(1) Failing to reinstate the former strikers or
to place them on a nondiscriminatory recall list
Upon the Union’s October 2 unconditional offer on
behalf of remaining strikers to return to work, the Re-
spondent was obliged under Laidlaw to reinstate those
individuals to their former jobs or, if no vacancy then
existed, to place them on a nondiscriminatory recall list
until a vacancy occurred. Because its operation was fully
staffed with replacement employees and crossovers, the
Respondent could not immediately reinstate the former
strikers, but it remained obligated to keep their names on
some type of nondiscriminatory roster until such time as
openings became available, whereupon the unreinstated
striker could be recalled to his or her former or substan-
tially equivalent position.
The Respondent’s imposition of an affirmative obliga-
tion on former strikers to come to the plant to sign the list
itself is an unlawful infringement upon these employees’
Laidlaw rights. We agree with the judge that the Re-
spondent’s asserted business reasons are insufficient to
overcome its Laidlaw obligations. Imposing prerequi-
sites on strikers to preserve their rights to their pre-strike
jobs violates employees’ Section 7 rights, absent a le-
gitimate and substantial business justification. See
Pirelli Cable Corp., supra, 331 NLRB 1539 (employer
violated Sec. 8(a)(3) by unilaterally imposing require-
ment that former strikers advise employer of desire and
availability for reinstatement as condition precedent to
placement on preferential hiring list). The judge cor-
rectly rejected the Respondent’s asserted business justifi-
cation—that the list was a means of identifying employ-
ees who remained available and interested in recall and
for compiling current contact information—as merely an
administrative convenience. Because the Respondent
apparently already had reliable contact information,13
shifting the burden to former strikers to facilitate their
recall rights was neither necessary nor warranted. By
requiring former strikers to take steps beyond their un-
conditional offer to return to work, the Respondent inter-
fered with their unrelinquished right to be recalled to
work upon the conclusion of the strike. Therefore, in
agreement with the judge, we find that by initially estab-
lishing and announcing a signup requirement the Re-
spondent interfered with former strikers’ Laidlaw rights
under Section 8(a)(3) and (1) of the Act.14

13 There is no evidence that the Respondent lacked valid current ad-
dresses for its employees covered by the Union’s unconditional offer,
as shown by its October 23 mailing. Even assuming that the Respon-
dent needed additional contact information, this does not justify the
Respondent’s decision to give preference to those who supplied the
information and signed the list first. See sec. “C(3),” below.
14 In dissent, Chairman Battista (1) describes the signup requirement
as “simply a reasonable way to ascertain” which employees wished to
return to work, (2) points out that employees who did not sign up were
not excluded from reinstatement, and (3) distinguishes Pirelli Cable,
supra, on the ground that the employer there offered no justification for
a similar requirement and cut off recall rights if employees failed to
comply.
We find these points unpersuasive in light of extant Board law. As
explained, the signup requirement did impose an obstacle to recall for
former strikers. This obstacle was unjustified, not least because the
Respondent could easily have contacted former strikers, rather than
require that they take the initiative and come to the plant to sign the
recall list. Failure to sign up did disadvantage former strikers relative
to those employees who did sign up, even if it did not foreclose rein-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD376
(2) Granting preference to crossover employees
In December 1997, while the strike was ongoing, the
Respondent implemented a procedure for recalling em-
ployees who left the strike and sought reinstatement but
for whom there were no immediate vacancies. It created
a preferential hiring list for those employees to sign to
indicate their interest in being recalled to work. This
provided the Respondent with a ready supply of available
workers to meet their staffing needs as the strike contin-
ued. The establishment and use of this list was neither
objected to by the Union at the time, nor was it chal-
lenged as an unfair labor practice.
Upon the strike’s conclusion, all former strikers were
encompassed by the Union’s unconditional offer to re-
turn to work. This not only expanded the available work
force pool for the Respondent, but also entitled all former
strikers who had not yet been recalled to reinstatement to
their prestrike jobs or substantial equivalents as openings
occurred. At that point, all former strikers were equally
entitled to be recalled to their former positions, even if
some of them may have declared their individual avail-
ability while the strike was still in progress. The Re-
spondent was then required to deal with all available
former strikers on a nondiscriminatory basis.
The Respondent, however, failed to recognize the sig-
nificance of the strike’s termination and continued to use
the same recall list that the Respondent had used during
the strike, as supplemented by those employees whose
names were added following the Union’s unconditional
offer to return. Those employees who remained on strike
until the Union’s unconditional offer to return were rele-
gated to an inferior placement on the list, following the
names of all those who sought reinstatement prior to the
strike’s end. When a vacancy was filled by resort to the
recall list, the Respondent offered the position to the in-
dividual who previously held that job (or a substantially
similar one) whose name appeared first on the list. This
provided crossovers with a continuing advantage over
those who remained on strike until its conclusion and
delayed—and diminished—recall opportunities for all
those covered by the Union’s unconditional offer. By
continuing to give effect, after the strike, to the list com-
piled during the strike, the Respondent provided an un-
warranted advantage to employees who had abandoned
the strike.15 As stated above, under Laidlaw, supra, once

statement. For these reasons, Pirelli Cable cannot be meaningfully
distinguished.
15 The Respondent argued before the judge and again in its excep-
tions that NLRB v. American Olean Tile Co., 826 F.2d 1496 (6th Cir.
1987), establishes that a chronological recall system, begun during a
strike and continued in force following its conclusion, is not inherently
destructive of employee rights. We agree with the judge that the Re-
a strike ends, all unreinstated strikers are entitled to be
considered for recall on a nondiscriminatory basis, with-
out regard to their previous relative levels of commit-
ment to the strike. Absent a legitimate and substantial
business justification for using this facially discrimina-
tory system, we find, in agreement with the judge, that
the Respondent’s reinstatement preference for crossover
employees following the conclusion of the strike violated
Section 8(a)(3) and (1) of the Act.16
(3) Granting preference to former strikers who
complied with the respondent’s signup instructions17
As discussed above, the Respondent notified former
strikers covered by the Union’s unconditional offer to
return to work to take certain affirmative steps—come to
the plant and sign the preferential recall list—within a
limited time period. Former strikers who complied with
this unlawful requirement by personally signing their
names on the recall roster thus appeared on the list ahead
of all those who failed to follow this instruction, and
were thereby ensured of recall advantage over them.
However, just as the Respondent could not lawfully grant
reinstatement preference to those who left the strike prior

spondent’s reliance on that case is misplaced. While not all chrono-
logical recall lists are necessarily unlawful, the Respondent’s chrono-
logical system made a basic distinction between those who abandoned
the ongoing strike and those who did not. At the top of that list were
those who had abandoned the strike. Next were all those who remained
on strike until the Union’s offer to return and who had heeded the
signup instruction, on a “first come/first served” basis. In last place for
recall were those former strikers who did not comply with the unlawful
signup requirement, whose names were added by the Respondent in the
order of their employment seniority. Clearly, the Respondent’s system
did not treat all former strikers equally, but operated instead to the
permanent detriment of those who exercised their right to strike for a
longer period of time as well as those who declined to comply with the
Respondent’s unlawful signup procedure. The discriminatory nature
and effect of the Respondent’s system was inherent in its composition.
16 In dissent, Chairman Battista concedes that the Respondent’s “sys-
tem drew a distinction between those who abandoned the strike before
its end and those who held out until the end.” He argues, however, that
without evidence that the Respondent “acted with the intention of pun-
ishing those who stayed with the strike,” there can be no violation. In
his view, the system’s impact on Sec. 7 rights was “slight” and the
system “provided a rational method for determining the order of re-
call,” i.e., “first-come, first-served.” We disagree.
As explained, the Respondent’s system was based entirely on em-
ployees’ relative levels of commitment to the strike: employees who
abandoned the strike early were effectively rewarded, at the expense of
those who held out. Contrary to the dissent’s view, such a system is
unlawfully discriminatory. The rational basis for the system offered by
the dissent, which simply turns the vice of the system into a virtue, has
no connection to the Respondent’s legitimate business needs.
17 The judge initially determined that because it was imposed unilat-
erally and unlawfully, the recall procedure was itself tainted and, as a
consequence, any preference given to former strikers who complied
with the unlawfully imposed signup instructions also violated Sec.
8(a)(3). In light of our dismissal of the 8(a)(5) allegations, we disavow
this aspect of the judge’s analysis.
PEERLESS PUMP CO. 377
to its conclusion, the Respondent could not lawfully
place those who complied with its unlawful prerequisite
ahead of those who did not comply. Accordingly, we
find that by conferring a recall priority upon former
strikers who complied with its unlawful instruction the
Respondent additionally violated Section 8(a)(3).
(4) Filling job vacancies through the in-plant
posting procedure18
Finally, the judge found that the Respondent violated
the Act by filling job vacancies through an in-plant post-
ing procedure and consulting the preferential recall list
only if there was no successful bidder. While the Board
has held that filling poststrike job vacancies through an
in-plant job posting process may be unlawful,19 we find
that in the circumstances of this case, it has not been es-
tablished that the Respondent’s procedure violated the
Act in the manner alleged in the complaint.
The complaint alleges that the Respondent posted jobs
for bid and filled such jobs without granting employees
who had engaged in the strike and who had not been re-
called the opportunity to bid on such job vacancies. The
complaint encompasses every job that was posted, irre-
spective of whether that job was one to which an unrein-
stated former striker may have been entitled under Laid-
law principles. A former striker is entitled to be returned
only to his former position or its substantial equivalent.
Therefore, the Respondent was not obligated to notify all
unreinstated former strikers of the existence of any open-
ing, but rather only to recall an unreinstated striker to his
or her former job (or its equivalent) once it became va-
cant.20
Former strikers are not entitled to special notice of job
openings to which they have no reinstatement rights. See
Diamond Walnut Growers, 340 NLRB 1129 (2003).
Thus, the Respondent did not have to provide such gen-

18 Member Liebman does not join in this section of the decision, ex-
cept as noted infra. See fn. 20.
19 See, e.g., Pirelli Cable Corp., supra, 331 NLRB at 1539–1540, cit-
ing MCC Pacific Valves, 244 NLRB 931 (1979), supplemental decision
253 NLRB 414 (1980), enfd. in part mem. 665 F.2d 1053 (9th Cir.
1981).
20 Member Liebman agrees with Member Schaumber that, to the ex-
tent that it has been shown that the Respondent failed to recall unrein-
stated former strikers to jobs that they had previously occupied or any
substantially equivalent position (and instead awarded those jobs by
means of the posting procedure to replacement workers, crossovers,
previously recalled former strikers, or new hires), a violation of the Act
has been established. A determination as to whether the previous jobs
of any unrecalled former strikers, or substantially equivalent positions,
were awarded to other employees through the posting procedure will be
resolved through the compliance procedure.
As indicated in her separate dissent, Member Liebman would go fur-
ther and find that the use of the in-plant posting procedure itself was
unlawful.
eral notice to unreinstated strikers every time a job va-
cancy occurred. Medite of New Mexico, 314 NLRB 1145
(1994), enfd. 72 F.3d 780 (10th Cir. 1985), relied upon
by the judge and Member Liebman in dissent, is not to
the contrary. The employer in Medite did not merely fail
to notify former strikers of job postings, but affirmatively
precluded them from entering its premises, thereby fore-
closing any opportunity to learn about job vacancies and
effectively rendering them incapable of applying for the
jobs.
The Respondent’s only obligation to the former strik-
ers regarding nonequivalent positions was to refrain from
discriminating against them in the manner of filling those
positions. We find, contrary to our dissenting colleague,
that the Respondent did not so discriminate. The Re-
spondent gave the former strikers the same opportunity
to obtain nonequivalent jobs as the replacement workers,
crossovers, and reinstated strikers. The Respondent in-
formed all former strikers that it would be using the job
posting procedures that had been in effect prior to the
strike and did not deny them access to the plant. The
former strikers could have bid for and, because of their
seniority, presumably obtained, any nonequivalent jobs
they wanted. Our dissenting colleague’s assertion that
the Respondent “effectively prohibited the former strik-
ers from bidding on posted jobs,” like the employer in
Medite, is not supported by the record. In this context,
the failure of the former strikers to apply for nonequiva-
lent positions at any time is fatal to the General Coun-
sel’s assertion that they were denied consideration for
nonequivalent positions. Compare Zimmerman Plumb-
ing & Heating Co., 339 NLRB 1302 (2003).
Member Liebman asserts that “[t]he majority decision
correctly recognizes that this procedure violated the prin-
ciples of Laidlaw Corp., 171 NLRB 1366 (1968), insofar
as the former strikers’ old or substantially equivalent jobs
were involved.” However, that is not the issue here. As
relevant here, the complaint alleges only that the unre-
called strikers were not given an opportunity to bid on
posted jobs that were nonequivalent positions. We con-
clude that they had an opportunity to so bid. The com-
plaint does not allege that a posted job was awarded to an
employee other than a bidding unrecalled striker.
C. The 8(a)(1) Threat21
The judge found that the Respondent’s October 23 let-
ter independently violated the Act by threatening return-
ing strikers with loss of their reinstatement rights. 22 Cit-

21 For the reasons explained in her dissent, Member Liebman does
not join in this section of the decision.
22 This allegation was added to the complaint at the opening of the
hearing, a date well beyond the 10(b) period. The Respondent asserts
that it is time-barred. We disagree and find it qualifies as closely re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD378
ing Charleston Nursing Center, 257 NLRB 554 (1981),
he agreed with the General Counsel that by announcing
the in-plant signing requirement along with a deadline,
the Respondent unlawfully implied that the strikers’ fail-
ure to comply would result in forfeiting their right to be
recalled. He found that the letter’s prefatory phrase, “if
you are interested in reinstatement,” followed by the in-
struction that former strikers “come to the plant as soon
as possible, but no later than November 6, 1998 and sign
the preferential rehire list,” suggested that non-
compliance with these terms would jeopardize their
chances for reinstatement. The judge concluded that it
was not necessary for the word “termination” to be used,
because employees would reasonably infer a threat of job
loss.
In exceptions, the Respondent points out: that the let-
ter is devoid of coercive language; that the dubious na-
ture of the “ threat ” is underscored by the General Coun-
sel’s failure to allege the violation prior to the hearing;
that, in construing the letter’s meaning, the judge failed
to take account of the Respondent’s actions ensuring the
inclusiveness of the list; and that the judge’s reliance on
Charleston Nursing Center is misplaced. We agree with
the Respondent and conclude that the Respondent’s letter
did not unlawfully threaten to terminate former strikers’
reinstatement rights.
As an initial matter, we find the Respondent’s October
23 letter contains no threatening language. To find a
threat in the letter, one must infer it. In contrast, the em-
ployer’s letter in Charleston Nursing Home ended with
the statement, “If we do not receive a reply, we will as-
sume you are not interested.” That statement, equating
inaction with job loss, is a direct and clear warning of
consequences resulting from inaction. Here, the Re-
spondent presented employees with no such ultimatum.
Instead, by first explaining how the recall system worked
(those signing the list first would be the first contacted
for recall) and then advising employees to “come to the
plant as soon as possible,” the Respondent was merely

lated under all three prongs of the controlling test, discussed above.
The alleged 8(a)(1) threat related to the possibility that former strikers
would lose their job reinstatement rights because of conditions within
the Respondent’s recall policy. The original and amended 8(a)(3)
charges underlying the complaint also alleged that the Respondent’s
recall policy interfered with former strikers’ reinstatement rights. Thus,
both allegations spring from essentially the same factual basis and
present substantially similar legal theories of violation, i.e., interference
with former strikers’ protected rights, thereby satisfying the first two
prongs of the closely related standard. While the Respondent’s de-
fenses against these allegations necessarily differed somewhat, in view
of the strong factual and legal connections, we find there was sufficient
evidentiary overlap regarding the operation of the recall procedure and
the impact on employees’ reinstatement opportunities to satisfy the
third prong.
telling employees that the sooner they acted, the sooner
they would likely be recalled to work. The Respondent’s
admonition was instructive, not coercive.
Moreover, the Respondent’s contemporaneous ac-
tions—not taken into account by the judge—further
demonstrate that former strikers’ rights were not threat-
ened. Specifically, after the Union countered the Octo-
ber 23 letter stating that all former strikers should be
offered reinstatement irrespective of whether they signed
the list, the Respondent immediately assured the Union,
in writing, that it agreed.23 True to its word, on that very
day (which happened to be the conclusion of the signup
period) the Respondent added to the list the names of all
remaining former strikers who had not already signed.
Thus, even assuming some ambiguity in the October 23
letter regarding the consequences of failing to comply
with the signup instruction, that uncertainty was removed
when the Respondent added the names of all nonsigning
former strikers. In doing so, it ensured that every former
striker covered by the Union’s unconditional offer was
included on the rehire list as of November 6 and that no
one would lose the opportunity for reinstatement through
his or her own inaction. This conduct demonstrates the
letter was not, nor could it reasonably have been con-
strued to be, a veiled threat to undermine former strikers’
reinstatement rights.
Our dissenting colleague’s reliance on The Grosvenor
Resort, 336 NLRB 613 (2001), is misplaced. There, the
employer sent a clear message to its employees that it
was discharging them. The employer required strikers to
return all company property and instructed them to re-
ceive their “final” paychecks. In addition, the employer
reimbursed strikers for their outstanding vacation pay,
which was ordinarily only due to employees upon the
termination of their employment. Thus, the employer
affirmatively informed strikers that it would treat them as
terminated employees.24 Here, however, the Respondent
did not make any statements consistent with an intent to
treat unreinstated strikers as terminated employees. Ac-
cordingly, we reverse the judge and dismiss the Section
8(a)(1) allegation.25

23 The fact that the Respondent wrote to the Union, rather than to the
employees, is not dispositive. The Respondent was replying to a union
letter, and the Union was acting as the exclusive representative of the
employees.
24 Contrary to our dissenting colleague, we do not read Grosvenor
Resort as reaching the question of what responsibility an employer
bears for creating an uncertain message. As discussed, the message
sent by the employer there was quite certain.
25 In finding that the October 23 letter was not unlawful, Member
Schaumber has taken into consideration that the signup procedure an-
nounced in the letter was itself unlawful in that it created an obstacle to
reinstatement and disadvantaged former strikers who failed to sign the
recall list in favor of former strikers who did sign the list. However, the
PEERLESS PUMP CO. 379
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By initially requiring former strikers to come to its
facility and sign a recall list, thereby failing and refusing
to reinstate or offer to reinstate them to their former or
substantially equivalent positions of employment, or ap-
propriately to place them on a nondiscriminatory prefer-
ential recall list, the Respondent violated Section 8(a)(3)
and (1) of the Act.
4. By implementing and maintaining a recall system
whereby it granted preference in terms and conditions of
employment to (a) employees who abandoned the strike
prior to the Union’s October 2, 1998 unconditional offer
to return by placing them on a recall list ahead of all
other employees, and (b) employees who physically
came to the Respondent’s facility and signed the prefer-
ential recall list after the Union’s unconditional offer to
return by placing them on the recall list in the order in
which they signed the list, the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
5. The Respondent has not violated the Act in any
other manner.
These unfair labor practices are unfair labor practices
affecting commerce within the meaning of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(3) and (1), we shall order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent shall be ordered to (1) rescind the re-
call procedure implemented following the Union’s Octo-
ber 2, 1998 unconditional offer to return made on behalf
of the striking employees, (2) offer reinstatement to all
former strikers who have been denied recall because of
the Respondent’s discrimination, (3) make whole former
strikers for any loss of pay or benefits they may have
suffered by reason of the Respondent’s discrimination
against them, such payment to be made in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), and

issue here is not whether the signup procedure announced in the letter
was unlawful, but the separate and discrete issue of whether the Octo-
ber 23 letter threatened former strikers with loss of their reinstatement
rights altogether if they failed to come to the plant and sign the recall
list. For the reasons set out above, Member Schaumber finds that the
October 23 letter contained no such threat.
(4) post the remedial notice described below at its facil-
ity.
ORDER
The Respondent, Sterling Fluid Systems (USA), Inc.,
d/b/a Peerless Pump Company, Indianapolis, Indiana, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Failing and refusing to reinstate or offer to reinstate
to their former or substantially equivalent positions of
employment where such positions have become avail-
able, or appropriately to place on a preferential recall list
the former striking employees on whose behalf the Union
made an unconditional offer to return.
(b) Implementing and maintaining a recall system that
grants preference in terms and conditions of employment
to (a) employees who abandoned the strike prior to the
Union’s unconditional offer to return by placing them on
a recall list ahead of all other employees, and (b) em-
ployees who physically came to the Respondent’s facility
and signed the preferential recall list after the October 2,
1998 unconditional offer to return by placing them on the
recall list in the order in which they signed the list ahead
of those who did not personally sign the list.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the recall procedure implemented follow-
ing the Union’s October 2, 1998 unconditional offer to
return.
(b) Offer reinstatement to all former strikers who have
been denied recall because of the Respondent’s discrimi-
nation against them.
(c) Make whole former strikers for any loss of pay or
benefits they suffered by reason of the Respondent’s dis-
crimination against them in the manner set forth in the
remedy section of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including electronic copies of records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Indianapolis, Indiana copies of the attached
notice marked “Appendix.”26 Copies of the notice, on

26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD380
forms provided by the Regional Director for region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since October 2, 1998.
(f) Within 21 days after the service by the Region, file
with the Regional Director a sworn certificate of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN BATTISTA, dissenting in part.
My colleagues find that the Respondent violated the
Laidlaw rights of strikers. I disagree.1
1. Placement of strikers on the recall list
The Union ended its strike in October 1998, and
sought reinstatement for all employees who had re-
mained on strike until that time. My colleagues find that
the Respondent acted unlawfully by implementing a re-
call list which placed these employees beneath those who
had sought reinstatement earlier. I disagree. An em-
ployer who is faced with more Laidlaw strikers than
Laidlaw positions must perforce establish an order of
recall. Under the Act, an employer can choose any order
of recall that is nondiscriminatory. In the instant case,
there is no evidence that the Respondent acted with the
intention of punishing those who stayed with the strike
until its end. Concededly, the Respondents’ system drew
a distinction between those who abandoned the strike
before its end and those who held out until the end.
However, under NLRB v. Great Dane Trailers, Inc., 388
U.S. 26 (1967), “discrimination” alone does not establish
the violation. Absent evidence of motive (see supra), the
violation turns on whether the “slight” impact on Section

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Under Laidlaw, a striker has a right to return to his prestrike job, or
the substantial equivalent, if and when such job is available. My dis-
sent deals with these Laidlaw rights, and finds no violation. I agree
with Member Schaumber that there is no violation as to non-Laidlaw
positions, i.e., jobs that are not the same as the prestrike job or substan-
tial equivalent. Thus, my dissent does not deal with that matter.
7 rights is outweighed by legitimate business reasons.2
The system here provided a rational method for deter-
mining the order of recall. It was a first-come, first-
served system, under which those who sought work ear-
lier were placed on the list ahead of those who sought
work later. Such a system is lawful under NLRB v.
American Orlean Tile Co., 826 F.2d 1496 (6th Cir.
1987), granting review, 265 NLRB 1625 (1982).
I would adhere to the teaching of that court. Indeed,
the system is not essentially different from the system
used by the Respondent to distinguish among those who
left the strike before its end. Those employees were
placed on a list in the chronological order in which they
left the strike. Like the strikers involved herein there
was “discrimination” based upon when they left the
strike. And yet, my colleagues do not find a violation in
this respect. Indeed, the General Counsel does not even
attack it.3
Based on the above, I would find no violation.
2. Request that employees sign recall list
The Respondent requested that unreinstated strikes in-
dicate, by signing a list before November 6, that they in
fact desired reinstatement. Although the Union had
made a blanket request on behalf of all the strikers, there
could obviously be some individual strikers who, for one
reason or another, did not wish to come back to work for
the Respondent. The Respondent’s request was simply a
reasonable way to ascertain that fact. Further, those who
did not sign the list by November 6 were not excluded
from reinstatement. They were simply placed on the list
below those who signed up on time. In short, this was
simply another rational way to distinguish among the
strikers.
Further, the fact that the list was posted inside the plant
does not itself warrant a finding of illegality. My col-
leagues do not assert that the signup requirement im-
posed a hardship on employees or that the requirement
imposed a significant obstacle to reinstatement. They

2 The Respondent’s conduct is not “inherently destructive” of em-
ployee rights. The employees who remained on strike until the end
retained their Laidlaw rights, and they were not tainted with a perma-
nent disadvantage (compare NLRB v. Erie Resistor, 373 U.S. 251
(1963)), where the award of superseniority to nonstrikers left the strik-
ers with a permanent disadvantage.
3 My colleagues say that I have turned the “vice of the system into a
virtue.” They are wrong on two counts. First, as discussed, there is no
vice in the Respondent’s system. Second, I do not say that the Respon-
dent’s choice of system was virtuous. I simply say that the Respondent,
faced with more offers to return than available jobs, had a legitimate
business reason for devising some rational basis for prioritizing offers.
It chose a rational basis. As explained in Great Dane Trailers, the fact
that there is “discrimination” does not establish the violation. The
employer can come forward, as here, to show that there was a business
justification for the conduct.
PEERLESS PUMP CO. 381
simply conjecture that the requirement posed “an obsta-
cle.” I would not engage in such speculation. The Gen-
eral Counsel has not met his burden of proof.
Finally, Pirelli Cable Corp., 331 NLRB 1538 (2000),
does not require a contrary result. In that case, the em-
ployer offered no justification at all for the requirement.
See Pirelli Cable Corp., 331 NLRB at 1539 fn.10. In
addition, in that case, unlike here, a failure to sign the list
cut off all recall rights.
MEMBER LIEBMAN, dissenting in part.
The Respondent violated the Act in more ways than
the Board recognizes today. First, in addition to impos-
ing an unlawful requirement on former strikers who were
entitled to reinstatement, the Respondent, in communi-
cating that requirement, violated Section 8(a)(1) by
unlawfully threatening former strikers with loss of their
reinstatement rights. The majority's failure to find that
violation is puzzling. Second, the Respondent violated
Section 8(a)(3) and (1) by filling other job vacancies
through its job posting procedures in a manner which
foreclosed consideration of the former strikers. Contrary
to the majority's view, this violation implicates both the
right of former strikers to equal, nondiscriminatory
treatment in applying for new jobs, as well as the Re-
spondent's separate obligation to reinstate them to their
old jobs or substantially equivalent ones.1
1. The judge correctly held that the Respondent’s Oc-
tober 23, 1998 letter to former strikers implicitly threat-
ened that they would lose their recall rights if they failed
to comply with the letter’s (unlawful) signup instruc-
tions. A reasonable employee certainly could read the
letter this way, and the steps that the Respondent took
some time after sending the letter neither altered the like-
lihood that employees were coerced, nor amounted to a
repudiation and cure of the Respondent’s unlawful con-
duct.
The letter’s critical paragraph states:
If you are interested in reinstatement, it is important
that you come to the plant as soon as possible, but no
later than November 6, 1998, and sign the preferential
rehire list because we plan to fill any available posi-
tions, not filled through the normal bid procedure, in
the order that employees’ names appear on the prefer-

1 I agree with the findings of 8(a)(3) and (1) violations, outlined in
the majority opinion, regarding the Respondent’s denial of reinstate-
ment to former strikers to their previous positions or to positions that
are substantially equivalent and its discriminatory formulation of the
recall list. As indicated in the majority opinion, I find it unnecessary to
pass on the 8(a)(5) allegations, because the remedy would not be sub-
stantially affected by these additional findings.
ential rehire list as long as the employee has previously
held the open job classification.
These words clearly imply that all former strikers covered
by the Union’s unconditional offer to return must take cer-
tain affirmative steps or lose their right to return to work.
Why else would compliance with the instructions be “im-
portant” for those employees “interested in reinstatement”?
Nothing in the letter suggests that a former striker could
disregard these directions without losing the right to rein-
statement. That the letter did not explicitly spell out the
consequences of a failure to comply—as did the letter in
Charleston Nursing Center, 257 NLRB 554 (1984), relied
on by the judge and distinguished by the majority—does not
mean that an employee could not reasonably infer those
consequences.
The effect of the letter is comparable to cases in which
an employer has communicated to an employee that he is
being terminated, using language that is less than precise.
In those cases, a finding of a discharge does not depend
on the use of formal words of firing, but rather it is suffi-
cient if the employer’s words or actions would reasona-
bly lead a person to believe he is being discharged. See
e.g., Grosvenor Resort, 336 NLRB 613, 617–618 (2001),
citing Kolkka Tables & Finnish-American Saunas, 335
NLRB 844, 846 (2001). Whether the Respondent’s mes-
sage contained a threat is appropriately construed from
the perspective of the former strikers to whom it was
sent, and the unlawful message is established if the
communication may reasonably be viewed as such. Id.2
My colleagues’ reliance on the Respondent’s post hoc
conduct in order to avoid finding a violation is mistaken.
At best, it was too little, too late. The only assurance the
Respondent offered that no former strikers would forfeit
their recall rights was directed not to employees, but
rather to the Union—and then nearly 2 weeks after the
letter was sent and on the same date as the letter’s signup
deadline. The Respondent never notified former strikers
that their failure to comply with the letter’s instructions
would not jeopardize their recall rights. In fact, there is
no evidence that the Respondent ever notified non-
signing former strikers that their names had been placed
on the list. Thus, for at least the period between the time

2 The majority asserts that my reliance on Grosvenor Resorts, supra,
is misplaced, describing the letter in that case as containing a “clear
message” of discharge. Regardless of the characterization of the words
used in Grosvenor Resorts, the majority misses the fundamental princi-
ple for which that case stands; that is, an employer will be held respon-
sible when its statements or conduct create an uncertain situation for
the affected employees. In this case, the Respondent’s communication
was ambiguous, susceptible to a coercive interpretation, and, from the
perspective of its audience of former strikers hoping to return to work,
created the type of uncertainty which is appropriately deemed unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD382
the letter was received and the Respondent’s communica-
tion to the Union—and, in any case, for so long as for-
mer strikers were not made aware that these names were
added to the list—former strikers could reasonably have
believed that failure to comply with the instructions
would terminate their recall rights. The majority’s em-
phasis on the “instructive” nature of the letter—
addressing an unlawfully discriminatory recall proce-
dure—overlooks the reinforcing coercive effect of the
related 8(a)(3) and (1) violation.
Moreover, to the extent that the Respondent's later ac-
tions are at all material, they actually support finding a
violation. The Respondent placed employees who did
not sign the list at the end of the list, which materially
diminished their job opportunities in a manner that was
discriminatory. How this actual discrimination excuses
the Respondent’s earlier implied threat of discrimination
is a mystery. Under these circumstances, it should be
indisputable that the Respondent violated Section
8(a)(1).
2. The judge also correctly held that the Respondent’s
internal job posting procedures unlawfully discriminated
against the former strikers with respect to new jobs, apart
from their right to reinstatement. It is well established
that:
[S]trikers who have unconditionally offered to return to
work are to be treated the same as they would have
been had they not withheld their service. They are
therefore entitled to return to those jobs or substantial
equivalents if such positions become vacant, and they
are entitled to non-discriminatory treatment in their
applications for other jobs.
Rose Printing Co., 304 NLRB 1076, 1078 (1991) (emphasis
added). The Board has applied this principle to find viola-
tions where unreinstated strikers have been effectively ex-
cluded from a job-bidding process because of their strike
participation. See Caterpillar, Inc., 321 NLRB 1130, 1131,
1142 (1996), vacated but precedential value affd. 332
NLRB 1116 (2000); Medite of New Mexico, Inc., 314
NLRB 1145, 1147–1148 (1994), enfd. 72 F.3d 780 (10th
Cir. 1995).
This is such a case. The fact that vacancies were
posted only inside the Respondent’s facility meant that
only those employees who were already working (i.e.,
replacements and crossovers) had the first—and, effec-
tively, the only—notice that such specific openings ex-
isted. This resulted in replacements and crossovers hav-
ing the unchallenged first opportunity to get the job, irre-
spective of whether there was an unrecalled former
striker who was equally or better qualified. Only if no
one successfully bid for a vacant position did the Re-
spondent then resort to the preferential rehire list.
The majority decision correctly recognizes that this
procedure violated the principles of Laidlaw Corp., 171
NLRB 1366 (1968), insofar as the former strikers' old or
substantially equivalent jobs were involved. As a practi-
cal matter, by using the posting procedure to fill all job
openings at the facility after the strike ended, the Re-
spondent discriminatorily divested former strikers of
their Laidlaw rights. It is anomalous, therefore, for the
majority to find that this posting procedure was legiti-
mate. 3 In any event, as Rose Printing and subsequent
cases make clear, entirely apart from Laidlaw require-
ments, the Respondent’s job posting system also dis-
criminatorily denied unreinstated former strikers the op-
portunity to apply for other positions for which they
were entitled to be fairly considered. They are, simply,
to be treated the same as they would have been had they
not withheld their services.
In Medite, for example, following the conclusion of a
strike, the employer filled job vacancies through post-
ings. However, only full-time, active employees were
permitted to bid on the jobs; former strikers who had
offered unconditionally to return were not informed of
the vacancies and ultimately were denied entry to the
facility. Holding that the employer unlawfully prevented
unreinstated former strikers from bidding on the posted
vacancies, the Board held that the former strikers were
“entitled to be free from discrimination when applying
for other positions and, thus were entitled to notice of job
postings and to an opportunity to bid on, and be fairly
considered for, those posted jobs.” 314 NLRB at 1148
(emphasis added). The Board went on to observe that
[b]y effectively prohibiting the former strikers from
bidding on the posted vacancies through failing to no-
tify them of job postings and denying them access to
the plant, the [employer] discriminated against them on
the basis of their former-striker status. This is dis-
criminatory treatment that violates the Act quite apart
from any Laidlaw obligation.
Id. Under the circumstances here, the Respondent “effec-
tively prohibited the former strikers from bidding” on
posted jobs. While it did not bar them from the plant, it

3 Not only did the posting procedure interfere with strikers’ proper
reinstatement to their former jobs, it also clearly limited their rein-
statement opportunities to the lowest-level, nonposted, nonbid posi-
tions. By opening promotional opportunities to competitive bidding
rather than referring to the recall list as a first source, only those job
classifications that did not qualify for bidding, i.e., the lowest level
positions, were offered first to former strikers still on the recall list.
Thus, the Respondent’s use of its posting procedure was but another
means of effectively thwarting former strikers’ Laidlaw rights.
PEERLESS PUMP CO. 383
never informed them that they were free to enter the plant,
much less inform them (or even the Union) of specific post-
ings.4
In turn, the judge correctly rejected the Respondent’s
defenses: (1) that it was simply adhering to the expired
collective-bargaining agreement’s posting procedure in
not notifying nonworking employees of the job postings,5
and (2) that it had been the Respondent’s practice not to
provide notice of postings to employees who were on
vacation, sick leave, or on other types of absence. First,
the expired bargaining agreement is silent on the issue of
notice,6 and the only arguably relevant article in the con-
tract is contrary to the Respondent’s poststrike practice
concerning available positions.7 More important, Board
precedent makes clear that unreinstated former strikers
may not be treated as if they are absent from the work-
place for some reason other than their participation in the
strike. Caterpillar, Inc., supra, 321 NLRB at 1131–1132.
Thus, the employer must ensure that they are not disad-
vantaged as a direct result of their strike participation—
here, by providing notice of job postings.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

4 The majority relies on an immaterial factual distinction in Medite:
that the employer affirmatively denied strikers’ access to the plant, as
opposed to the Respondent here, who failed to provide former strikers
the information they needed to effectively pursue job postings. In this
case, there is no evidence that nonworking, former strikers knew or
reasonably should have known that they were permitted to enter the
Respondent’s premises to check for job postings. And even with that
knowledge, they still would have had no way to know when a vacancy
was posted—short of going to the plant and checking the boards every
3 days, the limited time period for which the job postings remained
open. Thus, in practical effect, the Respondent’s withholding informa-
tion about job vacancies from unreinstated strikers was the equivalent
of denying them access.
5 The Respondent’s labor relations manager, Dagon, testified that
vacancies were posted for a period of 3 days on three bulletin boards:
one in the cafeteria, and one at each of the two time clocks.
6 The expired bargaining agreement’s in-plant posting procedure
seems not to have contemplated the special considerations existing in a
poststrike environment.
7 Specifically, sec. 6.2 of the collective-bargaining agreement states,
“open jobs will not be posted as vacancies so long as any employees
have been laid off or transferred from such classification because of or
during a layoff.” This language would seem to undercut the Respon-
dent’s methods of dealing with vacancies in positions that had previ-
ously been filled by strikers awaiting recall.
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 fail and refuse to reinstate or offer to re-
instate to their former or substantially equivalent posi-
tions of employment where such positions have become
available or appropriately place on a preferential recall
list the former striking employees on whose behalf the
Union, District No. 90, International Association of Ma-
chinists & Aerospace Workers, AFL–CIO, a/w Interna-
tional Association of Machinists & Aerospace Workers,
AFL–CIO, made an unconditional offer to return.
WE WILL NOT implement and maintain a recall system
whereby we grant preference in terms and conditions of
employment to (a) employees who abandoned the strike
prior to the unconditional offer of the Union to return by
placing these employees on a recall list ahead of all other
employees, and (b) employees who physically came to
the facility and signed the preferential recall list after the
October 2, 1998 unconditional offer to return by placing
them on the recall list ahead of employees who did not
sign the list.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
offer reinstatement to all former strikers who have been
denied recall because of our unlawful discrimination.
WE WILL make whole former strikers for any loss of
pay or benefits they suffered by reason of our unlawful
discrimination against them, less any net interim earn-
ings, plus interest.
STERLING FLUID SYSTEMS (USA), INC. D/B/A
PEERLESS PUMP COMPANY
Joann C. Mages, Esq. for the General Counsel.
William E. Hester, Esq. (The Kulman Firm, P.C.), of New Or-
leans, Louisiana, for the Respondent.
Mr. Joe Cooper, of Westchester, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a charge
filed March 1, 1999 by District No. 90 International Associa-
tion of Machinists & Aerospace Workers, AFL–CIO, a/w In-
ternational Association of Machinists & Aerospace Workers,
AFL–CIO (Union), as amended on July 28 and August 6, 1999,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD384
a complaint was issued on August 31, 1999, alleging that Ster-
ling Fluid Systems (USA), Inc. d/b/a Peerless Pump Company
(Respondent) (A) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (Act), (1) by failing
and refusing to reinstate or offer to reinstate to their former or
substantially equivalent positions of employment or appropri-
ately placed on a preferential recall list the employees for
whom the Union made an unconditional offer on October 2,
1998, to return from a strike to work, (2) by granting preference
in terms and conditions of employment to its employees who
abandoned the strike prior to October 2, 1998 by placing them
on the recall list ahead of all other employees, (3) by granting
preference in terms and conditions of employment to its em-
ployees who physically came in and signed the preferential
recall list after the October 2, 1998 unconditional offer to return
by placing them on the recall list in the order in which they
signed said list, (4) by posting jobs for bids since October 2,
1998 and filling such jobs without granting employees, who
had engaged in the strike and who had not been recalled, the
opportunity to bid on such job vacancies, and (B) violated Sec-
tion 8(a)(1) and (5) of the Act (1) about October 2, 1998, by
implementing the recall procedure described above without
affording the Union an opportunity to bargain with Respondent
with respect to this conduct and the effects of this conduct and
(2) since about October 2, 1998, by letters to unit employees,
bypassed the Union and dealt directly with its employees in the
unit by requiring its employees who had engaged in the afore-
mentioned strike to sign a recall list to indicate their interest in
returning to work. At the hearing herein Counsel for General
Counsel’s motion to amend the complaint was granted over the
objection of the Respondent. The amendment alleges that the
Respondent violated Section 8(a)(1) of the Act about October
23, 1998 by letter to its employees threatening them with ter-
mination of their reinstatement rights if they did not come in
and sign the recall list to indicate their interest in returning to
work. The Respondent denies violating the Act.
A hearing was held in Indianapolis, Indiana on November 1
and 2, 1999. Upon the entire record, including my observation
of the demeanor of the witnesses, and after due consideration of
the briefs filed by General Counsel and the Respondent,1 I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Indianapolis, Indiana, has been engaged in the
manufacture and distribution of industrial pumps. The com-

1 The Respondent has filed a motion for leave to file reply memo-
randum in response to issues raised by Counsel for General Counsel’s
summarization of cases and the law in her brief. Counsel for General
Counsel opposes indicating that Section 102.42 of the rules and Regu-
lations of the National labor Relations Board clearly do not provide for
the submission of reply memorandum to administrative law judges and
the Respondent’s motion does not set forth good cause for the filing of
such a reply memorandum. The Board’s Rules do not provide for reply
briefs at this stage of the proceeding and Respondent has not shown any
real need to depart from the customary practice. Accordingly, the
Respondent’s motion is denied.
plaint alleges, the Respondent admits and I find that at all times
material herein, the Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
The Respondent and Counsel for General Counsel stipulated
that on June 6, 1997 the Union called a strike; that unit employ-
ees initially participated in the strike; that during the course of
the strike individual employees made unconditional offers to
return to work and were reinstated by the Respondent; and that
on September 23, 1997 the Respondent informed the Union that
it had reached a full complement of employees who had been
hired on a permanent basis.
By letter dated December 10, 1997, Joint Exhibit 1, the Re-
spondent’s attorney, William Hester III, advised Donald Stella,
a representative of the Union, as here pertinent, as follows:
In an earlier conversation, I mentioned to you that
Peerless Pump would like to work out some type of
agreement with the IAM on how employees, who have in-
dicated a desire to return to work and who have signed the
preferential hiring or recall list, will be returned to work.
With that in mind, enclosed is a proposed agreement
which we request that you execute on behalf of the IAM.
The enclosed proposed agreement reads as follows:
PEERLESS PUMP COMPANY
PROCEDURE FOR REINSTATING EMPLOYEES FROM
PREFERENTIAL HIRING LIST
When a position in the bargaining unit becomes avail-
able, and there are persons who have indicated an interest
in returning to work, and who have signed the Preferential
Hiring List, Peerless Pump Company (Company) will fill
the available position as follows:
1. Company will follow the procedures set forth in Ar-
ticle VI of the collective bargaining agreement between
the Company and the IAM dated February 20, 1993.
2. If no currently-working employee is selected for the
position, the Company will consult the Preferential Hiring
List. The Company will then contact the first employee on
the list who has previously held the position and notify the
employee of the available position. (1st employee means
the employee who has signed the list on the earliest date.)
If the 1st employee (or subsequent employees) indicates
that he or she does not want the position or if the em-
ployee fails to report for work within seven (7) calendar
days from the date of notice the employee will be disquali-
fied and stricken from the list and will not be eligible for
employment with the Company except as a new hire.
3. If the employee (or subsequent employees) is dis-
qualified, Company will go down the list and contact each
person who has previously held the position in the order
the person signed the list until the position is filled.
4. If no person on the list had previously held the posi-
tion or if all persons who previously held the position are
PEERLESS PUMP CO. 385
disqualified, the Company may hire an employee from
outside who is trained on the position or whose experience
indicates that he or she could become productive on the
position with minimal training.
Agreed to this ________ day of December, 1997.
For the Company, For the Union,
Sterling Fluid Systems,
USA, Inc. d/b/a Peerless
Pump Company
International Associa-
tion of Machinists and
Aerospace Workers,
Local 1917
By letter dated December 17, 1997, Joint Exhibit 2, Stella
advised Hester as follows:
The Union is unable at this time to respond to your
proposal regarding the preferential hiring list. We are con-
fused by your proposal, you have consistently told us that
the language in the expired agreement was totally unac-
ceptable, yet your proposal says the company will follow
the procedures set forth in Article VI of the expired
agreement.
If this means that you are now willing to enter into
good faith negotiations, then the union is willing to meet
and negotiate.
By letter dated September 17, 1998, Joint Exhibit 3(b), Stella
advised Thomas Dagon, who is Respondent’s Labor Relations
Manager, as follows:
On behalf of the striking employees represented by
[the Union] effective at 12:01 AM Monday, September 21,
1998, I am hereby making an unconditional offer to return
to work. Therefore, based upon your position (that there is
no work available for any of the striking employees) taken
on September 23, 1997 and reaffirmed at the December
1997 unemployment hearing, all striking employees will
be placed on a preferential list to be recalled as soon as
openings are available. I have notified the striking em-
ployees that they will be contacted by the Company and
notified when to return to work.
The Union remains willing to meet for further negotia-
tions and I would suggest that you contact me to set up
dates to meet.
By letter dated October 1, 1998, joint Exhibit 3(a), Stella ad-
vised Dagon, as here pertinent, as follows:
Enclosed you will find a copy of the letter I sent to you
on September 17, 1998. As per our telephone conversa-
tion today, it is my understanding that you did not receive
this letter in the mail.
By letter dated October 23, 1998, Joint Exhibit 4, Dagon ad-
vised the Respondent’s employee Judith Aldridge as follows:
We have been informed by the IAM that it has made
an unconditional offer to return to work on behalf of all
employees who went on strike in June of last year and who
have not already signed our preferential rehire list.
If you are interested in being reinstated at the earliest
possible date, we need for you to come to the plant and
sign the preferential rehire list. We also need for you to
provide us with your most current home or mailing ad-
dress and telephone number. We need you to sign the list
and we need the requested information so that we can con-
tact you have job openings in the future.
If you are interested in reinstatement, it is important
that you come to the plant as soon as possible, but no later
than November 6, 1998, and sign the preferential rehire
list because we plan to fill any available positions, not
filled through the normal bid procedure, in the order that
employees’ names appear on the preferential rehire list as
long as the employee has previously held the open job
classification.
In order to accommodate those employees who desire
reinstatement, the preferential rehire list is available for
signing in the Human Resources Department between the
hours of 8:00 a.m. and 5:00 p.m. Monday through Friday.
The Respondent and Counsel for General Counsel stipulated
that this same letter, with a different employee’s name and
address, went to all the former striking employees who were
covered by the October 2, 1998 unconditional offer to return.
By letter dated October 23, 1998, Joint Exhibit 4, Dagon ad-
vised the Respondent’s employee Judith Aldridge as follows:
We have been informed by the IAM that it has made
an unconditional offer to return to work on behalf of all
employees who went on strike in June of last year and who
have not already signed our preferential rehire list. If you
are interested in being reinstated at the earliest possible
date, we need for you to come to the plant and sign the
preferential rehire list. We also need for you to provide us
with your most current home or mailing address and tele-
phone number. We need you to sign the list and we need
the requested information so that we can contact you when
we have job openings in the future.
If you are interested in reinstatement, it is important
that you come to the plant as soon as possible, but no later
than November 6, 1998, and sign the preferential rehire
list because we plan to fill any available positions, not
filled through the normal bid procedure, in the order that
employees’ names appear on the preferential rehire list as
long as the employee has previously held the open job
classification.
In order to accommodate those employees who desire
reinstatement, the preferential rehire list is available for
signing in the Human Resources Department between the
hours of 8:00 a.m. and 5:00 p.m. Monday through Friday.
The Respondent and Counsel for General Counsel stipulated
that this same letter, with a different employee’s name and
address, went to all the former striking employees who were
covered by the October 2, 1998 unconditional offer to return.
By letter dated October 23, 1998, Joint Exhibit 5, Dagon ad-
vised the Union as follows: “We have sent the enclosed letters
to all employees. Please review those letters and let us know if
we have overlooked any eligible employee.”
By letter dated November 3, 1998, Joint Exhibit 6, Stella ad-
vised Dagon, as here pertinent, as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD386
On September 17, 1998 the undersigned made an un-
conditional offer to return to work for all striking employ-
ees. On October 23, 1998 you sent a letter to striking em-
ployees stating that if they were interested in reinstatement
that they should come to the plant as soon as possible, but
no later than November 6, 1998, to sign a preferential re-
hire list.
This is to inform you that on behalf of all striking em-
ployees I made an unconditional offer to return to work for
all striking employees. It is the Union’s position that for
some reason an employee does not sign your preferential
rehire list, this does not . . . [relieve] you of your respon-
sibility to offer striking employees reinstatement as vacan-
cies occur. To make it very clear, it is your responsibility
to offer former striking employees reinstatement to posi-
tions as those positions become available. [Emphasis
added.]
By letter dated November 6, 1998, Joint Exhibit 7, Dagon
advised Stella as follows: “This is to acknowledge receipt of
your November 3, 1998 letter. We understand your position,
and do not disagree with you.”
When called by Counsel for General Counsel Dagon testified
that there had been a number of collective-bargaining agree-
ments between the Respondent and the Union and the most
recent was effective from February 20, 1993 through June 6,
1997, General Counsel’s Exhibit 2; that there were approxi-
mately 150 unit employees at the time of the strike; that in the
past theRespondent has sent the Union seniority lists which are
based on the hire date of the involved employees; that in the
past the Union has also requested lists that show job classifica-
tions; that the lists provided the Union in the past were com-
puter printouts; that General Counsel’s Exhibit 3, as modified
at the hearing herein, is a list of employees with seniority dates
and classifications held just prior to the June 6, 1997 strike; that
the Union never agreed to the Respondent’s proposed proce-
dure for reinstating employees from preferential hiring list; that
General Counsel’s Exhibit 5 is the list maintained by the Re-
spondent which is titled “STRIKING EMPLOYEES MAKING
AN UNCONDITIONAL OFFERTO RETURN TO WORK”;
that the list contains the employees’ signatures, their phone
number and address and a date which indicates when the em-
ployees, including those who made an unconditional offer to
return to work while the strike was still in progress, signed the
list;2 that the names of those employees who did not come in to
sign the list by November 6, 1998 were written in at the bottom
of the list by the Respondent; that he received a telephone call
on October 1, 1998 from Stella asking him if he had received
the unconditional offer to return to work on behalf of all the
employees and he told Stella that he did not receive the letter;
that Stella then faxed him a copy of the September letter on
October 1, 1998 and he received a hard copy on October 2,
1998; that between 60 and 70 employees were covered by the
Union’s blanket unconditional offer to return to work; that after

2 The Respondent printed the names in the left margin of the page
and in the right margin the Respondent indicated, where appropriate,
what action was subsequently taken with respect to the named em-
ployee and the date of such action.
the Respondent received the Union’s blanket unconditional
offer to return to work on behalf of the remaining striking em-
ployees, the Respondent continued to use the recall procedure
that was attached to its December 10, 1997 letter; that the Re-
spondent did not notify the Union after its unconditional offer
to return that this was the procedure that the Respondent would
use; that the above-described October 23, 1998 letter was sent
to each of the employees covered by the Union’s unconditional
offer to return; that Respondent wanted the returning employ-
ees to sign the Respondent’s recall list because the Respondent
planned to fill any available positions, not filled through the
normal bid procedure, in the order that employees’ names ap-
peared on the preferential rehire list, as long as the employee
had previously held the open job classification; that the Re-
spondent did not have any discussion with the Union prior to
sending the above-described October 23, 1998 letter to employ-
ees; that employees were not advised that if they did not come
in by November 6, 1998 they would be placed on the list; that
individuals who came in and signed the Respondent’s list after
the Union made its unconditional offer to return to work were
placed on the list behind the individuals who crossed the picket
line; that the Respondent placed the names of the employees
who did not come in by November 6, 1998 to sign the Respon-
dent’s list at the bottom of the list; that when vacancies oc-
curred they were filled by the first person who signed the list
and had previously worked in the involved classification, and it
did not matter whether the employee crossed the picket line or
was covered by the Union’s unconditional offer to return; that
the employee’s original hire date was not factored in any way;
that after the Union’s unconditional offer to return, the Respon-
dent also filled positions through job posting systems; that the
job posted is open for bid bargaining unit-wide; that a posted
job is awarded to the most senior (based on the date of hire)
qualified applicant; that the Respondent did not consult its pref-
erential rehire list until after a job could not be filled through
the job posting procedure; that the Respondent did not inform
the Union or the employees on the preferential rehire list about
job postings; that in the past when the Respondent has a layoff
and subsequently had a vacancy the vacancy was not posted
before the Respondent went to the layoff list; that General
Counsel’s Exhibit 5, which the Respondent gave to the Counsel
for General Counsel in response to her subpoena, was current at
the time of the hearing herein with respect to the returns to
work; that General Counsel’s Exhibit 6 is a list of recalls and
rehires, including three new hires, since October 1, 1998; that
General Counsel’s Exhibit 7 is a seniority list which was run on
October 25, 1999, which list contains the original date of hire
and the classification as of the run date; that James Dennis was
recalled on November 1, 1998 as an engine lathe operator, first
class;3 that Barry Andrews, who did not sign the Respondent’s
list but whose name was placed on the list by the Respondent,
was an engine lathe operator at the time of the strike;4 that the
reason that Dennis was recalled to the engine lathe position
over Andrews was because, even though Andrews has more

3 Dennis signed the Respondent’s recall list on April 6, 1998. His
original hire date is October 10, 1994.
4 According to GC Exh. 7, Andrews hire date is January 10, 1978.
PEERLESS PUMP CO. 387
seniority than Dennis, Dennis’ name appears on the Respon-
dent’s list prior to Andrews’ name; that Michael Watkins, who
was originally hired October 11, 1993, held the position of
engine lathe operator just before the strike but Dennis was cho-
sen over Watkins for recall is because Dennis’ name appears on
the Respondent’s list before Watkins’, who signed the Respon-
dent’s list on November 4, 1998; that the Respondent placed
the names of the people who did not come in to sign its list at
the end of its list after the signatures dated November 6, 1998,
“in seniority order”; that when the Respondent recalled Dennis
on November 1, 1998 it did not even consider Andrews or
Watkins as being eligible for the recall since neither one was on
the Respondent’s list at the time; that Michael Jones, who
signed the Respondent’s list on September 13, 1998 and who
has an original hire date of September 12, 1994, was recalled
on October 26, 1998 to the position of vertical chucker, first
class; that Willie Pink ton, who has an original hire date of
August 16, 1993 but who signed the Respondent’s list on No-
vember 6, 1998, held the classification of NC vertical chucker
first class prior to the strike; that Jones was recalled over Pink
ton merely because Jones resigned the Respondent’s list prior
to Pink ton; that when Jones was recalled on October 26, 1998
Pink ton had not signed the list so that the Respondent would
not have even considered him; that prior to the strike Jones
worked on the horizontal boring mill but he had previously held
the position of NC vertical chucker; that Patrick Kavanaugh
held the position of NC vertical chucker first class just prior to
the strike, he has an original hire date of October 27, 1993 but
his name was placed at the end of the Respondent’s list because
he did not come in to sign the list; that Jones was recalled over
Kavanaugh because Jones signed the list before Kavanaugh;5
that Jeff Speziale, who signed the Respondent’s list on Septem-
ber 15, 1998 and who has an original hire date of November 13,
1989, was recalled on November 9, 1999 as a horizontal turret
lathe or boring mill operator first class; that just prior to the
strike Speziale held the position of storage utility but previously
he held the classification of horizontal boring mill; that just
prior to the strike Edward Byrd, who has an original hire date
of November 16, 1976 but who signed the Respondent’s list on
October 26, 1998, held the position of horizontal boring mill
operator; that Speziale was recalled over Byrd and Paul Snell,
who has an original hire date of November 12, 1973 and who
was a horizontal boring operator first class prior to the strike
but signed the Respondent’s list on October 29, 1998, merely
because Speziale had signed the list before Byrd and Snell, both
of whom were covered by the Union’s unconditional offer to
return;6 that Randy Appleby, who has an original hire date of
April 2, 1979 and who signed the Respondent’s list on October
26, 1998, was recalled on November 2, 1998 as an engine lathe
operator first class over Barry Andrews, who has an original
hire date of January 10, 1978 but who did not sign the Respon-
dent’s list; that Mary Hurt (formerly Tinnen), who has an origi-
nal hire date of June 22, 1989, was recalled on December 7,

5 Cavanaugh’s name was not even on the Respondent’s list on Octo-
ber 26, 1998 when Jones was recalled.
6 Counsel for General Counsel indicates that the above is meant to
be representative or an example of the situations which have occurred.
1998 to a stores utility position over two other employees who
also held that position prior to the strike, namely Mary Vatter,
who has an original hire date of August 10, 1988 and Ricky
Riordan, who has an original hire date of October 30, 1978,
merely because Hurt signed the Respondent’s list immediately
before Vatter and Riordan did not sign the Respondent’s list;7
that vacancies were filled through postings, General Counsel’s
Exhibit 8, instead of recalling employees who held the posi-
tions before the strike and were covered by the Union’s uncon-
ditional offer to return;8 that returning strikers waiting to be
recalled were not notified of the job postings;9 that if the Re-
spondent was unable to fill the vacancy by posting the job or
with a new hire then a former striker would be notified about
the vacancy after the 3-day posting period expired; and that the
Respondent does not notify employees on vacation, sick leave,
or leave of absence about job postings.
When called by the Respondent, Dagon testified that Section
11.5(a) of the collective-bargaining agreement which expired
on June 6, 1997, General Counsel’s Exhibit 2, reads as follows:
When it becomes necessary for employees to be laid off for
an indefinite period because of lack of work, senior employ-
ees may bump laterally or down in the same job family or
bump into any classification which the employee has previ-
ously permanently held as indicated in the employee’s per-
sonnel record. Any senior employee may bump a junior em-
ployee in Grades 1, 2, 3, or 4.
Dagon further testified that he assumed that this provision had
been in collective-bargaining agreements between the Respon-
dent and the Union for many years; that the Respondent re-
searched the method to be used in recalling employees and it
“found little or no information out there that could give . . . [it]
guidance to do that”; that the Respondent found out that the
Union did have the authority to make a blanket offer; that the
Respondent has not used any procedure or factor, other than the
timing of when a former striker showed interest in being rein-
stated and signed the list, in recalling those employees; that
those employees who did not come in and sign the Respon-
dent’s list were placed on the list by the Respondent “in senior-
ity order, after the name of the last person who did come in
and sign the list” (emphasis added); and that the Respondent
has not prohibited any former striking employees from coming
into the facility and checking the bulletin boards for postings.
On cross-examination Dagon testified that while the Respon-

7 Subsequently, on October 11, 1999, Vatter was recalled over
Riordan because she signed the list and he did not and was, therefore,
placed at the end of the list by the Respondent.
8 Counsel for General Counsel had the witness review examples of
situations where striking employees were affected by job postings and
she indicated that the review was not meant to be exhaustive.
9 According to GC Exh. 8(f) a vacancy for a VTL operator large was
posted November 6, 1998 and D. Whitaker was given the position.
Dagon testified that Whitaker was hired during the strike; that George
Gilbertson held the position of VTL operator large prior to the strike
and that Gilbertson was not notified about the opening for VTL large.
In response to a question of the Respondent’s attorney, Dagon testified
that if Gilbertson had come to the plant and signed the involved bid
sheet, he would have received the position covered by GC Exh. 8(f).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD388
dent was not tied to the recall procedure it was using and the
Respondent was open to discussion about it, the Respondent
did not inform the Union of this after the unconditional offer to
return until September 1999 after the complaint had issued
herein; that the Respondent never notified the former strikers
who appeared on the Respondent’s list that they could come in
and look at the job postings; and that it never notified the Union
that former strikers could come in and look at the job postings.
On redirect Dagon testified that after the Union’s unconditional
offer to return the only thing that the Respondent received from
the Union indicating displeasure with the manner in which
employees were being recalled was when the Respondent re-
ceived a copy of the charge the Union filed herein in early
March 1999; and that the Union never indicated that it wanted
to have the names placed on the preferential reinstatement list
in terms of seniority.
Stella testified that he was assigned to deal with the Respon-
dent in September 1997 after the strike had been in progress for
about 3 months; that he attended two meetings with the Re-
spondent in September 1997 and one in October 1997; that at
the second meeting, held on September 23, 1997, Hester indi-
cated that all of the striking employees had been permanently
replaced and that if the strike were to end that day there would
be no work available for any of the striking employees; that at
an unemployment hearing in December 1997 Hester told him
that he was going to send him a proposal about recalling some
of the employees who crossed the picket line; that he subse-
quently received Joint Exhibit 1 and he responded with Joint
Exhibit 2; that the Union had not made an unconditional offer
to return to work in December 1997 and he was not interested
in working out any type of procedure for the recalling of
“scabs”; that he did not receive a response to his reply; that he
had heard that the Respondent indicated that it had not received
his unconditional offer to return so he telephoned Dagon and
sent him a copy of the offer; that he did not have any knowl-
edge of what recall procedure the Respondent was going to use
for those covered by the unconditional offer to return; that the
Union did receive copies of the October 23, 1998 letter that the
Respondent sent to the employees covered by the Union’s un-
conditional offer to return; that when the Respondent started
recalling employees there did not seem to be any order to the
way they were doing it; that he wrote to the Respondent indi-
cating that all employees covered by the Union’s offer to return
should be included on the recall list whether or not they signed
the list and the Respondent wrote back in agreement; that after
a few people had been recalled and the Union received infor-
mation which it requested about the employees who were work-
ing at the plant, there did not seem to be any consistency to the
approach that the Respondent was taking and the Union filed a
charge with the National Labor Relations Board (Board); that
the Union was never notified about job postings by the Re-
spondent; and that in April or May 1999 he was moved from
Indianapolis into another area of responsibility. On cross-
examination Stella testified that the Union did not include with
its unconditional offer to return a list of the employees who
were covered by the offer; that the Union did not communicate
to the Respondent a method by which the names of the striking
employees who were returning, should be placed on the list;
that he had never seen General Counsel’s Exhibit 5 before he
testified herein; that the Union did not receive copies of post-
ings in 1997 and the expired collective-bargaining agreement
did not require that the Union receive notice of postings; that
there is nothing in the collective-bargaining agreement that
requires the Respondent to do anything with respect to the no-
tices, other than to post them for 3 working days on three
boards in the plant; that to the best of his knowledge prior to the
strike in 1997 the Respondent did not send notices to employ-
ees who were laid off, or on medical leaves of absence, or on
vacation; that under the expired collective-bargaining agree-
ment employees are recalled from layoff by seniority and abil-
ity in that the employees are laid off by seniority and they are
recalled in reverse order; and that he believed that Dagon in
January or February 1999, in response to an inquiry of the Un-
ion, indicated that the striking employees would be recalled by
seniority when he supplied a list of current employees and indi-
cated that the Respondent was operating under the terms and
conditions of the expired collective-bargaining agreement. On
redirect Stella testified that the Union never saw the order
which employees were placed on the preferential rehire list; and
that Joint Exhibit 4, the October 23, 1998 letter to employees,
would have been the first time that the Union was informed as
to how the Respondent was treating the employees covered by
the Union’s unconditional offer to return.
John Soladine, who has been an employee of the Respondent
since 1962 and is the President of the Union Local, testified
that his classification at the time of the strike was tool and
gauge lab inspector; that he has held other classifications while
working for the Respondent, namely, third class assembler, fork
lift operator, second class engine lathe, second class inspection,
first class inspection, tool and gauge lab inspector, and burr
band and impeller filer; that he offered to return from the strike
with the Union’s unconditional offer to return; that about No-
vember 2, 1998 he received a letter from the Respondent with
respect to coming into the plant and signing a preferential recall
list; that he went to the plant and signed the list; and that he is
first on the seniority list and he has not received notification
from the Respondent about job vacancies or about job postings.
On cross-examination Soladine testified that, as indicated by
General Counsel’s Exhibit 5, he signed the Respondent’s pref-
erential recall list on November 2, 1998.
Analysis
Paragraphs 7 (a), (b), and (c) of the complaint allege that Re-
spondent violated Section 8(a)(1) and (5) of the Act about Oc-
tober 2, 1998, by implementing the recall procedure described
above, which relates to wages, hours and other terms and con-
ditions of employment of the involved Unit and is a mandatory
subject for the purposes of collective bargaining, without af-
fording the Union an opportunity to bargain with Respondent
with respect to this conduct and the effects of this conduct.
On brief Counsel for General Counsel contends that the im-
plementation of a recall procedure affecting the return of unit
employees from strike is a mandatory subject of bargaining,
Food Service Co., 202 NLRB 790, 804; that the Union’s first
notice of what procedure would be used to recall the former
striking employees covered by the Union’s unconditional offer
PEERLESS PUMP CO. 389
to return occurred on or about October 23, 1998, when the Re-
spondent sent the Union copies of letters the Respondent had
sent to the individual employees; that while the Respondent
may argue that any violation concerning the use of the recall
procedure for the strikers who returned after the Union’s un-
conditional offer to return is time-barred by Section 10(b) of
the Act, the Board has found that the 10(b) period will com-
mence when a final and unequivocal adverse employment deci-
sion is made by the respondent and communicated to the em-
ployee and/or union, Manitowoc Engineering, Co., 291 NLRB
915 (1988); that the Respondent’s December 10, 1997 proposal
affected only those employees who crossed the picket line and
made individual offers to return; that any violation of the Act
would not be ripe until the Union’s unconditional offer to re-
turn at the end of the strike and the Respondent’s reaction and
implementation of a recall procedure for those returning strik-
ers; that while the Respondent may argue that the Union
waived its right to bargain over the procedure by not requesting
bargaining after the unconditional offer to return, the Board had
found that an employer who is going to implement a term or
condition of employment must give notice to the union with
sufficient time to allow a reasonable opportunity to bargain,
and if such notice is not given sufficiently prior to implementa-
tion, then it is nothing more than notice of a fait accompli, Cen-
tury Wine & Spirits, 304 NLRB 338, 347 (1991); that Respon-
dent did not inform the Union that the Respondent was open to
discuss a reasonable method for recalling the former strikers
until September 1999, almost a full year after the Union’s un-
conditional offer to return and following the issuance of com-
plaint in this case; and that by the time the Union found out
about the procedure the Respondent had already made and im-
plemented its decision to use the procedure and, therefore, any
failure by the Union to request bargaining over the recall pro-
cedure used after the unconditional offer to return by the Union
is excused as the Union was presented with a fait accompli.
The Respondent on brief argues that it implemented its “re-
hire” policy in December 1997 only after the Union refused to
bargain over the policy and, therefore, the Union waived bar-
gaining on the policy and the Respondent did not violate Sec-
tion 8(a)(5) of the Act; that after the termination of the strike,
the Respondent reviewed its legal duties and options, but it did
not implement any new “rehire” policy after the Union made
the offer for all remaining strikers to return to work; that the
Respondent continued the same policy which the Union had not
objected to and which the Union had refused to bargain over in
December 1997; that the proposed and implemented policy
contained no language designating it as an interim policy which
could have led the Union to believe that the Respondent
planned to alter the “rehire” policy if and when the Union ter-
minated the strike; that absent antiunion animus, an employer
may exercise business judgment in determining the order of
“rehiring” former strikers; and that the Respondent has made
every effort to bargain and work with the Union and the Re-
spondent has exceeded its statutory duty to “rehire” strikers to
substantially-equivalent employment in that it has offered strik-
ers any position for which they were qualified.
In my opinion, the Respondent has violated the Act as al-
leged in paragraphs 7(a), (b), and (c) of the complaint. Section
2(3) of the Act indicates as follows:
(3) The term ‘employee’ shall include . . . any indi-
vidual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of
any unfair labor practice, and who has not obtained any
other regular and substantially equivalent employment
The law requires that an employer reinstate or recall former
economic strikers to the positions they held when they went on
strike or substantially equivalent positions when such positions
are open after the strikers have made an unconditional offer to
return. It is noted that the Respondent’s December 1997 pro-
posal indicates, in part, as follows:
2. If no currently-working employee is selected for the posi-
tion, the Company will consult the Preferential Hiring List.
The Company will then contact the first employee on the list
who has previously held the position and notify the employee
of the available position. (1st employee’ means the employee
who has signed the list on the earliest date.) If the 1st em-
ployee (or subsequent employees) indicates that he or she
does not want the position or if the employee fails to report
for work within seven (7) calendar days from the date of no-
tice the employee will be disqualified and stricken from the
list and will not be eligible for employment with the Com-
pany except as a new hire.
This approach would be unlawful to the extent it speaks to
those situations where an employee has been with the Respon-
dent for a while and has worked his or her way up so that while
he or she may sometime in the past have “previously held the
position” with the Respondent, that position was not the posi-
tion he or she held when the strike commenced and the previ-
ously held position is not substantially equivalent to the posi-
tion that he or she held when the strike commenced. An em-
ployer cannot lawfully extinguish the reinstatement rights of an
employee because that employee refuses to accept an offer of
the Respondent for a job which is not the job which the em-
ployee held when the strike commenced or a substantially
equivalent position. As noted above, the December 1997 pro-
posal also reads, in part, as follows: “Company will follow the
procedures set forth in Article VI of the collective-bargaining
agreement between the Company and the IAM dated February
20, 1993.” As can be seen, no specific section in article VI is
cited by the Respondent in its proposal. Article, in part, reads
as follows:
ARTICLE VI
Promotions and Transfers
6.1 The promotion and transferring of employees is
the sole responsibility of the Employer subject to the fol-
lowing provisions.
6.2 It is further understood and agreed that open jobs
will not be posted as vacancies so long as any employees
have been laid off or transferred from such classification
because of or during a layoff.
6.3 To effectuate the policy, the following shall apply:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD390
6.4 Job classification openings will be offered to the
most senior qualified associate within the job family. If
filled, the position opened by the transfer will be offered to
the most senior qualified associate within the job family
and so on until an opening within the job family remains
vacant. The vacant job will then be subject to Article [VI.]
6.5. When eligible employees have the opportunity to
bid on a posted job, the job will be awarded to the most
senior qualified employee. . . . In the event that the Com-
pany is to depart from seniority in awarding the job be-
cause of qualifications, prior to doing so it will notify the
Chairman of the Grievance Committee or his/her designee,
and discuss the reasons and the qualifications of the em-
ployee in question.
6.5 Whenever vacancies occur in labor grade four (4)
through twelve (12) the Employer shall post on the job
posting bulletin board for a period of three (3) working
days a list of the open job classifications.
The Respondent points out that the Union did not sign off on
the proposal the Respondent submitted to the Union while the
employees were out on strike. With respect to timing, in De-
cember 1997 the proposal could at that time only apply to em-
ployees who had crossed the picket line. The proposal does
nonspecifically indicate that it would apply to those employees
who would be covered by the Union’s unconditional offer to
return when and if such offer was made. The Union did not fail
or refuse to bargain in December 1997. Rather, as indicated in
its above-described letter of December 17, 1997 to the Respon-
dent, it indicated as follows:
The Union is unable at this time to respond to your
proposal regarding the preferential hiring list. We are con-
fused by your proposal, you have consistently told us that
the language in the expired agreement was totally unac-
ceptable, yet your proposal says the company will follow
the procedures set forth in Article VI of the expired
agreement.
If this means that you are now willing to enter into
good faith negotiations, then the union is willing to meet
and negotiate.
The Union’s letter placed the “ball back on the Respondent’s
side of the court” and the question is then what did Respondent
do with it regarding addressing the expressed concerns of the
Union. The answer in a word is nothing. Then by its own ad-
mission when the Union made the unconditional offer to return
to work on behalf of the involved employees the Respondent
analyzed the situation to determine what approach to take with
respect to their placed employees, and the Respondent decided
to do nothing other than to continue the approach it had been
taking. But the Union had never agreed to the Respondent’s
original proposal, the Respondent did not give the Union clear
notice what procedure it implemented regarding employees
who crossed the picket line after the Union questioned the Re-
spondent’s December 1997 proposal, and there was no indica-
tion in the December 1997 proposal that the Respondent was
going to require returning employees to come into the plant and
sign the Respondent’s list by a certain date or lose their rein-
statement rights.
As indicated above, the implementation of a recall procedure
affecting the return of unit employees is a mandatory subject of
bargaining. The Board has held that the imposition of notifica-
tion and registration requirements on former strikers constitutes
a mandatory subject of bargaining. Food Service Company,
supra. When it sent the Union the above-described letters on or
about October 23, 1998, the Respondent presented the Union
with a fait accompli. The Respondent did not even give the
Union a chance to request bargaining before mailing the Octo-
ber 23, 1998 letter to the employees covered by the Union’s
unconditional offer to return. And the Respondent did not indi-
cate to the Union that it was willing to discuss a reasonable
method for recalling strikers until after the issuance of the
complaint in this case. For the reasons set forth above, there
was no waiver regarding the December 1997 proposal. And as
pointed out by Counsel for General Counsel, the 10(b) period
didn’t commence until the Respondent’s October 23, 1998
letter to employees for at that time there had been an uncondi-
tional offer to return by the Union on behalf of the employees
and the Respondent first indicated the approach that it was
going to take with respect to reinstating the employees covered
by the Union’s unconditional offer to return, advising the em-
ployees that they would have to come into the plant to sign the
Respondent’s list and that there would be a cut off date for the
signing of the Respondent’s list.
Paragraph 5(c) of the complaint alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the Act since about October 2,
1998, in that it failed and refused to reinstate or offer to rein-
state to their former or substantially equivalent positions of
employment or appropriately place on a preferential recall list
the employees for whom the Union by letter about October
2,1998 made an unconditional offer to return from a strike to
their former or substantially equivalent positions of employ-
ment; and that Respondent’s conduct is inherently destructive
of the rights guaranteed employees by Section 7 of the Act.
And paragraph 5(d) of the complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the Act since about October
2, 1998, by implementing and maintaining a recall system
whereby: (i) Respondent granted preference in terms and condi-
tions of employment to its employees who abandoned the in-
volved strike prior to October 2, 1998 by placing them on the
recall list ahead of all other employees; and (ii) Respondent
granted preference in terms and conditions of employment to its
employees who physically came in and signed the preferential
recall list after the October 2, 1998 unconditional offer to return
by placing them on the recall list in the order in which they
signed said list; and that the conduct of Respondent is inher-
ently destructive of the rights guaranteed employees by Section
7 of the Act.
On brief Counsel for General Counsel contends that while
under Laidlaw Corp., 171 NLRB 1366 (1968), the Respondent
is not obligated to use one particular method of recalling former
strikers over another method, the method chosen by the Re-
spondent must not be unlawfully motivated or inherently de-
structive of employee rights; that as pointed out by the United
States Supreme Court in NLRB v. Great Dane Trailers, 388
U.S. 26 (1967), the Board could find an unfair labor practice
absent any proof of an antiunion motivation if the discrimina-
PEERLESS PUMP CO. 391
tory conduct was ‘inherently destructive’ of important em-
ployee rights, and if the effects of the Respondent’s conduct on
employee rights is’ comparatively slight,’ an antiunion motiva-
tion must be shown if the employer demonstrates a legitimate
and substantial business justification for the conduct; that Re-
spondent’s conduct in implementing and maintaining its recall
procedure was inherently destructive of employees’ right to
strike under Section 7 of the Act; that the Respondent has not
demonstrated any substantial or business justification for using
such a recall procedure; that the recall procedure used by the
Respondent here following the end of the strike and the Octo-
ber 2, 1998 unconditional offer to return clearly grants prefer-
ential treatment to crossovers (those employees who crossed
the picket line) and discriminates against those former strikers
covered by the Union’s unconditional offer to return; that while
following the October 2, 1998 unconditional offer to return all
former strikers were on equal footing and should have been
treated accordingly, the Respondent continued to maintain its
list in basically ‘three categories of people,’ namely (1) indi-
viduals who crossed the picket line and made individual offers
to return, (2) former strikers covered by the October 2, 1998
unconditional offer to return who actually signed the Respon-
dent’s list, and (3) former strikers covered by the October 2,
1998 unconditional offer to return who did not go to the Re-
spondent’s facility and sign the Respondent’s list; that preferen-
tial treatment, essentially a reward for abandoning the strike,
has been found to violate Section 8(a)(1) and (3) of the Act,
Erie Resistor Corp, 373 U.S. 221 (1963); that as of the Union’s
unconditional offer of October 2, 1998 all former strikers
should have been placed on a preferential recall list income
nondiscriminatory manner; and that based on the Respondent’s
failure to establish a legitimate and substantial business justifi-
cation for its implementation and maintenance of its procedure,
the procedure should be found to be inherently destructive of
the rights guaranteed employees by Section 7 of the Act in
violation of Section 8(a)(1) and (3) of the Act.
The Respondent on brief argues that the court in NLRB v.
American Olean Tile Co., 826 F.2d 1496 (6th Cir. 1987), con-
cluded that a chronological rehire policy, implemented during a
strike and continued after a union abandoned the strike, did not
violate the Act, nor was it inherently destructive of employee
rights;10 that no evidence of any animosity toward the Union of
inherently destructive acts was presented at the hearing; and
that to the contrary all evidence showed that the Respondent
addressed legitimate business concerns in a lawful manner. In
my opinion the Respondent violated the Act as alleged in para-
graphs 5(c) and (d) of the complaint. As noted above, the Re-
spondent violated the Act by unilaterally requiring that em-
ployees come to the plant and sign the Respondent’s list and

10 As pointed out by the Respondent, the court indicated at 1501–
1502, among other things, “[w]hile the list created a preference based
on the time when an employee made an unconditional offer to return, it
made no distinction between those who offered during the strike and
those who did so after it ended.” Here there would be a distinction in
that a crossover would receive a job over a former striker who remained
out until the Union made an unconditional offer to return, and the dis-
tinction would be based solely on the fact that the crossover was willing
to abandon the strike, cross the picket line, and abandon the Union.
close by a specified date, without first giving the Union an
opportunity to bargain over this matter. Consequently any
preference that the Respondent gave to those who complied
with an unlawful requirement was not justified. The Respon-
dent claims that the reason it took the approach it did regarding
its list was because it wanted to know who was still interested
and available and it wanted to get the former strikers’ most
current home or mailing address and telephone number. Yet
apparently the Respondent had information which enabled it to
mail its October 23, 1998 letter to the former strikers who were
covered by the Union’s unconditional offer to return. Adminis-
trative convenience is insufficient justification to shift the bur-
den of notification to the employee as a prerequisite for an em-
ployee to preserve his or her statutory recall rights. The Re-
spondent’s list enabled it to reward those employees who aban-
doned the ongoing strike and crossed the picket line. The Re-
spondent did not show any legitimate and substantial business
justification for giving preference to the strike “crossovers”
over the former strikers covered by the Union’s unconditional
offer to return. As part and parcel of its plan to show that it
would reward those who abandoned the Union, the Respondent
abided by the terms of the plan and at the same time also gave
preference to those of the former strikers who were covered by
the Union’s unconditional offer to return and who were the first
to comply with its unlawful requirement to come to the plant
and sign its list by specified date. Such conduct on the part of
the Respondent was inherently destructive of the rights guaran-
teed employees by Section 7 of the Act. By unlawfully requir-
ing initially that the employees covered by the Union’s uncon-
ditional offer to return come to the plant and sign the Respon-
dent’s list by a specified date, the Respondent was, in effect,
failing and refusing to reinstate or offer to reinstate them to
their former or substantially equivalent positions of employ-
ment or appropriately place them on a preferential recall list.
This conduct was inherently destructive of the rights guaran-
teed employees by Section 7 of the Act.11 The final determina-
tion as to the reinstatement of individual employees and possi-
ble backpay liability is properly left to compliance.
Paragraph 5(e) of the complaint alleges that Respondent vio-
lated Section 8(a) (1) and (3) of the Act since about October 2,
1998, by posting jobs for bids since about October 2, 1998 and
filling such jobs without granting employees, who had engaged
in the strike and who had not been recalled, the opportunity to
bid on such job vacancies; and that the conduct of Respondent
is inherently destructive of the rights guaranteed employees by
Section 7 of the Act.
On brief Counsel for General Counsel contends that Respon-
dent’s method of filling vacant positions through the internal
job posting system and by not informing unreinstated strikers of
the job openings for bid violates the Act in three respects,
namely, (1) the evidence presented at the hearing indicates that

11 While I do not believe that a finding of antiunion motivation is
necessary here, the Respondent’s preference given to those who aban-
doned the strike, crossed the picket line, and abandoned the Union at
the expense of those who stayed on strike until the Union made the
unconditional offer to return would, in my opinion, be sufficient if
motive was material here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD392
the Respondent hired new employees for at least two positions
posted after the Union’s unconditional offer to return which had
previously been held by former strikers eligible for recall,12 (2)
record evidence establishes that the Respondent has had vacan-
cies arise in positions previously held by strikers awaiting rein-
statement and had filled them by first offering them to employ-
ees on the existing payroll rather than strikers awaiting recall
which results in preferring strike replacements to strikers await-
ing recall in violation of the Act, MCC Pacific Valves, 244
NLRB 931 (1978),13 and (3) by denying unreinstated strikers
the opportunity to bid on any of the jobs posted internally; that
the Board has held that not only are strikers who have made
unconditional offers to return entitled to their former or sub-
stantially equivalent jobs, but they are also entitled to non-
discriminatory treatment in their applications for other jobs,
Rose Printing Co., 304 NLRB 1076, 1078 (1991), and they are
entitled to notice of job postings and an opportunity to bid on
such posting, Medite of New Mexico, Inc., 314 NLRB 1145
(1994); that the mere fact that the Respondent did not prevent
the individuals access to the plant does not relieve the Respon-
dent of its obligation to see that the former strikers had notice
of such job postings or even notice that they could bid on job
postings and be given fair consideration; that while Dagon testi-
fied that contact was never made with employees on vacation,
sick leave or leave of absence regarding such postings, a similar
argument was discussed and rejected in Caterpillar, Inc., 321
NLRB 1130, at 1132 (1996) where the majority, in discussing
the dissent’s contention that no discrimination could be found
because the former strikers were treated like employee son
vacation or sick leave, rejected such contention as faulty since
an “absence from the workplace due to vacation or illness does
not rise to the level of a lawful strike, participation in which is
protected by Section 7 and Section 13 of the Act.
The Respondent on brief argues that it has a continuing legal
obligation to comply with the job posting procedures of the
expired collective-bargaining agreement; that following any
other job posting procedure would be a unilateral change by the
Respondent and would undoubtedly place the Respondent in
violation of the Act; that Mediate, supra, is distinguishable
omits facts since there the employees were forbidden access to
the plant; that Rose Printing, supra, fully supports the Respon-
dent’s actions; and that the adoption of the General Counsel’s
position that the former strikers were entitled to notice, not

12 Counsel for the general counsel contends that while the Respon-
dent may try to argue that these individuals were hired on September
29, 1998 prior to the Union’s unconditional offer to return, this argu-
ment, however, demonstrates the Respondent’s insincerity regarding its
use of the posting procedure for (a) if the Respondent had truly hired
these two individuals for these two positions it would have no need to
post the positions as vacant on October 7, 1998, and (b) Dagon admit-
ted that if anyone had successfully bid for the position posted the new
hire would have been let go. Counsel for General Counsel contends
that neither of the alleged two new hires could have possibly been hired
on September 29, 1998 and, therefore, the Respondent’s actions are in
clear violation of Sec. 8(a)(1) and (3) of the Act.
13 Counsel for general counsel contends that as a result of the Re-
spondent waiting for the chain reaction effect of the bidding procedure
to run its course, unreinstated strikers were only recalled to the lowest
job classifications and less desirable jobs.
provided to their off-duty employees, would grant them a spe-
cial preference not won at the bargaining table and would be a
General Counsel-dictated unilateral change in a term and condi-
tion of an expired collective-bargaining agreement
In my opinion the Respondent violated the Act as alleged in
paragraph 5(e) of the complaint. While, as noted above, the
Respondent argues that requiring it to give notice of job post-
ings to former strikers waiting to be reinstated would result in a
unilateral modification in the expired collective-bargaining
agreement, the article of the expired collective-bargaining
agreement dealing with posting jobs for bid does not speak to
notice or the lack thereof to former strikers waiting to be re-
called or reinstated. And the involved Article does not speak to
there being no obligation to give employees on vacation, sick
leave or leave of absence notice of job postings. According to
Dagon’s testimony this is apparently the Respondent’s practice
and, therefore, the Respondent should not be required to give
employees on a preferential recall list notice of job postings.
But as the Board indicated in Caterpillar, Inc., supra, at 1132
Finally, contrary to the dissent’s apparent position, the
“discrimination” prohibited by Section 8(a) (3) is not lim-
ited simply to distinctions between strikers and nonstrik-
ers. Section 8(a) (3) ‘discrimination’ includes the differ-
ence between conduct that takes place because of a strike
and conduct that would not have taken place in the ab-
sence of a strike. See Industrial Workers A/W Local 289
v. NLRB, 476 F.2d 868, 877 (D.C. Cir. 1973; NLRB v.
Jemco, 465 F.2d 1148, 1152 (6th Cir. 1972) cert denied
409 U.S. 1109 (1973). The dissent ignores the fact that
had the unreinstated strikers not engaged in a protected
concerted activity; they would have been entitled to bid on
the posted job. The dissent’s contention that there was no
“discrimination” because the strikers were treated just like
employees on vacation or sick leave (assuming arguendo
this to be true) is faulty because an absence from the
workplace due to vacation or illness does not rise to the
level of a lawful strike, participation in which is protected
by Section 7 and Section 13 of the National Labor Rela-
tions Act.
In sum we find that by denying the unreinstated strik-
ers the right to bid on jobs posted after their unconditional
offer to return to work, the Respondent plainly discour-
aged “a union activity protected by Section 7 [and] also
discouraged and discriminate[d] against membership in a
labor organization” in violation of Section 8(a)(3) and (1)
of the Act. Industrial Workers, supra at 877.
And in Medite of New Mexico, Inc., 314 NLRB 1145, 1148
(1994) the Board indicated as follows:
Applying these principles to the facts in this case, it is
clear that the Respondent’s failure to allow the former
strikers to bid on the vacancies posted for bid—a right ex-
tended to all other of its employees—constituted a form of
discrimination against the former strikers. Although the
former strikers were not entitled to reinstatement to the
jobs they held prior to the strike because there were no va-
cancies, they were entitled to be free from discrimination
when applying for other positions and, thus, were entitled
PEERLESS PUMP CO. 393
to notice of job postings and to an opportunity to bid on,
and be fairly considered for, those posted jobs. For these
reasons, we find that the Respondent violated Section 8(a)
(3) of the Act by preventing the Charging Party from bid-
ding on posted vacancies.
The Respondent contends that by accepting this theory
the Board is creating a new duty for employers, separate
and distinct from the duty imposed by Laidlaw. We agree
that the statutory obligation at issue here is different from
the Laidlaw obligation, but we do not agree that it is new.
This is not a matter of automatic reinstatement entitle-
ment; it is a matter of being free from that discrimination
in hire or tenure of employment which is expressly prohib-
ited by Section 8(a)(3) and (1) of the Act. The Respon-
dent surely would not argue that it would be proceeding
lawfully under the Act if it announced after a strike that it
was designating certain jobs as positions to which only
those who had not engaged in the strike could aspire. The
Respondent has engaged in analogous conduct here. By
effectively prohibiting the former strikers from bidding on
the posted vacancies through failing to notify them of job
postings and denying them access to the plant, the Re-
spondent discriminated against them on the basis of their
former strike status. This is discriminatory treatment
that violates the Act quite apart from any Laidlaw obliga-
tion. Rose Printing, supra, 304 NLRB at 1078. [Footnote
omitted.]
As can be seen, the obligation to not discriminate against for-
mer strikers on the recall list is a statutory one which places
these individuals in a different category than employees on
vacation iron sick leave. Requiring that the Respondent here
abide by that obligation does not amount to a unilateral modifi-
cation of unexpired collective-bargaining agreement. Addi-
tionally, the Respondent’s argument that it did not deny former
strikers on the recall list access to the plant and, therefore,
Medite of New Mexico, supra, is distinguishable on its facts is
misplaced in that the Respondent admittedly did not give the
former strikers on the recall list notice of the job postings and
other than indicating in its above-described October 23, 1998
letter to former strikers that “we need for you to come to the
plant and sign . . . no later than November 6, 1998 . . . the pref-
erential rehire list [which] is available for signing in the Human
Resources Department. . . .”, the Respondent did not notify the
former strikers on the recall list that they could have access to
the plant to check job postings and could bid on the vacant jobs
which were posted. The Respondent’s conduct in this regard is
inherently destructive of the rights guaranteed employees by
Section 7 of the Act in violation of Section 8(a)(1) and (3) of
the Act. Under the circumstances extant here, the final deter-
mination as to the reinstatement of individual employees and
possible backpay liability is properly left to compliance.
Paragraph 8 of the amended complaint alleges that Respon-
dent violated Section 8(a)(1) and (5) of the Act since about
October 23, 1998, by letters to its employees threatening them
with termination of their reinstatement rights if they do not
come in and sign the recall list to indicate their interest in re-
turning to work.
On brief counsel for the General Counsel contends that the
Respondent’s October 23, 1998 letters to the former strikers
covered by the Union’s unconditional offer to return threatened
these employees with the termination of their reinstatement
rights in violation of Section 8(a)(1) of the Act; that while an
employer can request former economic strikers to provide cur-
rent information regarding their telephone number, address and
interest in reinstatement, an employer cannot require the former
strikers to respond to such a request or risk losing their rein-
statement rights, Charleston Nursing Center, 257 NLRB
554(1981); that Dagon’s testimony and the letter itself belies
the fact that Respondent also intended to determine who was
interested in returning to work by requiring them to physically
come to the plant and sign the Respondent’s list; that the clear
implication of the letter is that those employees interested in
reinstatement must respond to the letter and sign the Respon-
dent’s list by November 6, 1998 or risk losing their right to
reinstatement; that while the Respondent may argue that there
is no violation because it ultimately placed those former strikers
who did not respond to the letter by November 6, 1998 on the
Respondent’s list, this fact does not change the threat made to
the former strikers in the Respondent’s October 23, 1998 letter;
that the Respondent placed former strikers who did not come to
the plant and sign the Respondent’s list on it solely because the
Union made this an issue and the Respondent never informed
the recipients of its October 23, 1998 letter that they would be
eligible for reinstatement whether or not they responded by
November 6, 1998; that the Respondent proffered no evidence
of any legitimate business reason to justify the deadline of No-
vember 6, 1998; that while the Respondent claimed that it did
not know who was covered by the Union’s unconditional offer
to return, it is obvious that Respondent had a way of determin-
ing who was covered since it sent the October 23, 1998 letter to
those individuals; that if the Respondent intended to place all
the former strikers on the preferential recall list there would not
have been any need to provide a deadline of November 6, 1998;
and that the clear implication of the October 23, 1998 letter to
the former strikers was that if they failed to respond by the
November 6, 1998 date their reinstatement rights would be
terminated.
The Respondent on brief argues that its October 23, 1998 let-
ter to the former strikers never threatened the loss of reinstate-
ment rights for those who failed to respond to the letter or sign
the list; that the letter complied with Board precedent, Giddings
& Lewis, Inc., 264 NLRB 561, 566–567 (1982); that the letter
never stated nor implied that employees who failed to respond
or sign the preferential “rehire” list would lose any reinstate-
ment rights; that the letter never used the word “termination” as
alleged in the complaint; and that if there was any possibility
for confusion in the Respondent’s first letter, the Respondent
clarified its position and communicated this to the employees’
representative.
In my opinion the Respondent violated the Act as alleged in
paragraph 8 of the complaint. Interestingly, nowhere in its
argument on brief on this matter does the Respondent even
mention the November 6, 1998 deadline which it gave in its
October 23, 1998 letter to the former strikers. In Charleston
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD394
Nursing Center, 257 NLRB 554, 556–557 (1981), the Board
indicated as follows:
Therefore, we conclude that, although an employer may le-
gally request replaced economic strikers to furnish current in-
formation about their interest in reinstatement, an employer
may not require replaced economic strikers to respond to such
a request or risk losing their reinstatement rights.
Here, as noted above, the Respondent included the following
units October 23, 1998 letter to the former strikers:
If you are interested in reinstatement, it is important that you
come to the plant as soon as possible, but no later than No-
vember 6, 1998, and sign the preferential rehire list because
we plan to fill any available positions, not filled through the
normal bid procedure, in the order that employees’ names ap-
pear on the preferential rehire list as long as the employee has
previously held the open job classification.
The Respondent did not disagree with the Union’s subsequent
expressed concern about the language of this letter. Yet the
Respondent did not subsequently forward a modified version of
the letter to the former strikers or seek to assure the former
strikers that it did not mean what the letter implies, namely, that
if they do not come to the plant by November 6, 1998 and sign
the preferential “rehire” list their reinstatement rights would be
extinguished. It is not necessary to use the word “termination.”
For the reasons specified by the Counsel for General Counsel
as set forth above, the Respondent violated the Act as alleged in
this paragraph of the complaint.
Paragraph 7(d) of the complaint alleges that Respondent vio-
lated Section 8(a)(1) and (5) of the Act since about October 2,
1998, by T.M. Dagon, by letters to unit employees, bypassed
the Union and dealt directly with its employees in the unit by
requiring its employees who had engaged in the aforemen-
tioned strike to sign a recall list to indicate their interest in re-
turning to work.
On brief Counsel for General Counsel contends that the Un-
ion’s first notice of the recall procedure applied by the Respon-
dent to former strikers covered by the Union’s unconditional
offer to return was on or about October 23, 1998; that the notice
came to the Union at virtually the same time as the Respondent
was informing the involved unit employees of the mechanism
under which they would be recalled; that the Respondent
unlawfully implemented the recall procedure as to former strik-
ers covered by the Union’s unconditional offer without bargain-
ing with the Union and the Respondent unlawfully communi-
cated this procedure to unit employees without first adequately
presenting the proposal to the employees’ bargaining represen-
tative; that there had been no discussion between the Union and
the Respondent regarding this procedure prior to its dissemina-
tion to the unit employees; and that this communication to em-
ployees, informing them of the mechanics of their reinstatement
rights and the requirement that they come into the plant and
sign the preferential recall list without dealing with the Union
first constitutes direct dealing.
The Respondent on brief argues that the letter to former
strikers explaining the preferential “rehire” policy was permis-
sible employer communication to the employees; that the letter
did not, in any way, coerce the employees by threatening or
encouraging them to abandon their bargaining representative;
and that the letter not only acknowledged the role of the Union
in making the return to work offer, it plainly showed that the
Union received a copy of the letter.
In my opinion the Respondent violated the Act as alleged in
paragraph 7(d) of the complaint. The letter was coercive and
threatening and it advised its recipients that the employees who
abandoned the strike, crossed the picket line and abandoned the
Union were going to be rewarded at the expense of those em-
ployees who stayed out for the duration of the strike, in that
those who abandoned the strike, crossed the picket line and
abandoned the Union were going to be given preference with
respect to recall over the former strikers who waited until the
Union made an unconditional offer to return. As pointed out by
Counsel for General Counsel, the Union first learned that the
former strikers would be required to come into the plant by a
specified date and sign the Respondent’s list when the Union
received copies of the letters which were sent to the former
strikers on October 23, 1998. The Respondent was unlawfully
communicating its unlawful requirements directly to the em-
ployees without first affording the Union an opportunity to
bargain with the Respondent over them and their effects. The
Respondent bypassed the Union and dealt directly with its em-
ployees in the unit.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to reinstate or offer to reinstate to
their former or substantially equivalent positions of employ-
ment or appropriately place on a preferential recall list the for-
mer striking employees on whose behalf the Union madman
unconditional offer to return, which is inherently destructive of
the rights guaranteed employees by Section 7 of the Act, the
Respondent violated Section 8(a) (1) and (3) of the Act.
4. By implementing and maintaining a recall system whereby
it granted preference in terms and conditions of employment to
(a) its employees who abandoned the involved strike prior to
the Union’s unconditional offer to return by placing them on a
recall list ahead of all other employees, and (b) its employees
who physically came in and signed the preferential recall list
after the October 2, 1998 unconditional offer to return by plac-
ing them on the recall list in the order in which they signed the
list, both of which are inherently destructive of the rights guar-
anteed employees by Section 7 of the Act, the Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
5. By since about October 2, 1998 posting jobs for bid and
filling such jobs without granting employees, who engaged in
the involved strike and who had not been recalled, the opportu-
nity to bid on such job vacancies, which is inherently destruc-
tive of the rights guaranteed employees by Section 7 of the Act,
the Respondent violated Section 8(a)(1) and (3) of the Act.
6. By about October 2, 1998 implementing a recall proce-
dure which grants preference in terms and conditions of em-
ployment to (a) its employees who abandoned the involved
PEERLESS PUMP CO. 395
strike prior to the Union’s unconditional offer to return by plac-
ing them on a recall list ahead of all other employees, and (b)
its employees who physically came in and signed the preferen-
tial recall list after the October 2, 1998 unconditional offer to
return by placing them on the recall list in the order in which
they signed the list, without affording the Union an opportunity
to bargain with the Respondent with respect to this conduct or
the effects of this conduct, the Respondent violated Section
8(a)(1) and (5) of the Act.
7. By about October 23, 1998 letters to Unit employees, by-
passed the Union and dealt directly with its employees in the
Unit by requiring its employees who formerly engaged in the
involved strike to sign a recall list to indicate their interest in
returning to work, the Respondent violated Section 8(a)(1) and
(5) of the Act.
8. By about October 23, 1998 letters to its employees threat-
ening them with termination of their reinstatement rights if they
did not come in and sign the recall list to indicate their interest
in returning to work, the Respondent violated Section 8(a)(1) of
the Act.
9. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent shall be ordered to (1) rescind the recall
procedure implemented following the October 2, 1998 uncondi-
tional offer to return, (2) provide prior notice to each former
striker of future job postings and provide each former striker an
opportunity to submit bids, (3) upon request bargain collec-
tively in good faith with the Union concerning the implementa-
tion of recall procedure, (4) offer reinstatement to all strikers
who have been denied recall because of the Respondent’s dis-
crimination, (5) offer reinstatement to those former strikers who
have been denied an opportunity to bid on job vacancies and
who would have filled the involved openings but for the Re-
spondent’s discrimination, (6) make whole former strikers
foray loss of pay or benefits they have suffered by reason of the
Respondent’s discrimination against them, such payment to be
made in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), and
(7) post the remedial notice described below at its facility.
[Recommended Order omitted from publication.]