Service Electric Co.

National Labor Relations Board - Board Decisions

Sep 29, 1986

281 N.L.R.B. 633 (N.L.R.B. 1986)

SERVICE ELECTRIC CO. 633
Service Electric Company and International Broth-
erhood of Electrical Workers, Local 591. Case
32-CA-5998
29 September 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 24 July 1984 Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed a brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 In view of the Respondent 's admission that the Union is the employ-
ees' exclusive representative we find it unnecessary to pass on the judge's
comments in fn. 4 of his decision regarding whether an incumbent union
continues to enjoy a presumption of majority support following the with-
drawal of a member-employer from the multiemployer bargaining unit.
In adopting the judge 's findings, Chairman Dotson notes that in his
view under no circumstances would the Act require an employer to
apply preexisting terms of employment to its economic stoke replace-
ments upon the strike's termination . Furthermore , the Chairman disavows
the judge's discussion of the differences between economic strike replace-
ments and returning economic strikers to the extent it implies that, during
the strike , while an employer has no duty to bargain over the strike re-
placements' employment terms, it does have a duty to bargain over the
returning strikers' employment terms . In the Chairman 's view the inter-
ests of returning economic strikers are more closely aligned with those of
the strike replacements than those of the strikers and, accordingly, an em-
ployer has no greater duty to bargain during the strike over their terms
of employment than it does over the strike replacements '. See Leveld
Wholesale, Inc., 218 NLRB 1344 (1975), and Capitol-Husting Ca V.
NLRB, 671 F.2d 237 (7th Cir. 1982), enfg . 252 NLRB 43 ( 1980).
Member Stephens finds it unnecessary to pass on whether the strike in
fact ended. In his view , even assuming that the strike had ended as the
General Counsel alleges, for the reasons given by the judge under the
specific circumstances of this case the Respondent was at that time under
no duty to apply the preexisting contract terms to its strike replacements.
Luella Nelson , for the General Counsel.
Derek Woodhouse (Littler, Mendelson, Fast if! & Tichy), of
San Jose , California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge.
This matter was heard by me in Stockton, California, on
May 17, 1984. On December 22, 1983,1 the Regional Di-
rector for Region 32 of the National Labor Relations
Board (the Board), issued a complaint and notice of hear-
ing, based on an unfair labor practice charge filed on Oc-
tober 25, alleging a violation of Section 8(a)(5) and (1) of
the National Labor Relations Act, 29 U.S.C. § 151 et
seq. (the Act). All parties have been afforded full oppor-
tunity to appear, to introduce evidence, to examine and
cross-examine witnesses, and to file briefs. Based on the
entire record,a on the briefs that were filed, and on my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
1. JURISDICTION
At all times material, Service Electric Company (Re-
spondent) has been a California corporation with an
office and place of business in Stockton, California,
where it engages in the retail and nonretail sale of elec-
trical contracting services. During the 12-month period
prior to issuance of the complaint, Respondent, in the
course and conduct of its business operations, sold goods
and services valued in excess of $50,000 to customers or
business enterprises within the State of California, which,
themselves, meet one of the Board's jurisdictional stand-
ards, other than the indirect inflow or indirect outflow
standards. Therefore, I conclude, as admitted in the
answer to complaint, that at all times material, Respond-
ent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material , International Brotherhood of
Electrical Workers, Local 591 (the Union) has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
Since issuance of the decision in NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333 (1938), the law has
meandered down a twisting, sometimes tortured, path
with respect to the duty to bargain about employment
terms for employees hired to replace strikers during an
economic strike. The instant case presents issues that are
outgrowths of that more fundamental one. The General
Counsel concedes that Respondent was not obliged to
bargain regarding replacements' employment terms
during the course of an admittedly economic strike that
began on June 14, 1982. However, the General Counsel
argues , contrary to Respondent, that the Union terminat-
ed the strike on August 12 and, further, that Respondent
violated the Act by not then acquiescing in the Union's
demand that employment terms existing prior to com-
mencement of the strike be substituted for those then
prevailing for replacements hired during the course of
i Unless stated otherwise , all dates occurred in 1983.
8 Certain errors in the transcript have been noted and corrected
281 NLRB No. 107
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike. Accordingly, the issues presented here are
whether, in fact, the strike had been ended on August 12
and, if so, whether Respondent then was obliged to ac-
quiesce in the Union's demand for substitution of preex-
isting employment terms for replacements.
As discussed in greater detail infra, because the strikers
did not offer 'to return to work on and after August 12,
and because there is no evidence that any of them, per-
sonally or through their bargaining representative, ever
took action that could be said to evidence an abandon-
ment of their statutory right to future, employment with
Respondent, with the result that it was necessary for Re-
spondent to continue employing replacements after
August 12 in order to continue operating its business, I
conclude that a preponderance of the evidence does not
support the General Counsel's contention that the strike
had been terminated on and after August 12. Moreover,
even if it were concluded that the strike, in fact, had
ended on that date, then because the underlying labor
dispute, as defined in Section 2(9) of the Act, had contin-
ued and the parties had continued to negotiate for an
agreement on the terms of a collective-bargaining con-
tract, and because Respondent had continued needing to
employ employees whom the General Counsel acknowl-
edges occupied the status of replacements, inasmuch as
the striking employees neither offered to 'return to work
nor abandoned future employment with Respondent, I
conclude that imposition of an obligation to substitute
preexisting employment terms, for ones under which re-
placements had been working prior to August 12, would
tend to nullify Respondent's right to continue employing
replacements, would oblige the Union to simultaneously
bargain in the best interests of groups of employees with
diametrically opposed interests, and would not advance
the interests of the collective-bargaining process. Because
the Act seeks to foster the practice and procedure of col-
lective bargaining, and in view of the fact that the Board
has held that it seeks neither to nullify the right to hire
replacements nor to compel bargaining representatives to
bargain simultaneously in the best,interests of both strik-
ers and replacements, I conclude that a preponderance of
the evidence does not support the contention that Re-
spondent violated the Act by declining the Union's
demand that preexisting employment terms be substituted
for those under which the replacements had been work-
ing.
B. Facts
Every allegation of the complaint is admitted, save for
the conclusionary one alleging that Respondent 's failure
to restore employment terms and conditions of strike re-
placements violates the Act. In addition , during the hear-
ing evidence was received that augmented those admit-
ted allegations of the complaint.3 Based on those admit-
8 In some instances, particular testimony or exhibits contradict allega-
tions in the complaint that have been admitted. For example, correspond-
ence was introduced in which the Union asserted that it never had called
a strike. But, the complaint alleges expressly that from "on or about June
14, 1982, certain employees of Respondent employed in the Unit ceased
work concertedly and engaged in an economic strike," and Respondent
has admitted that allegation- Consequently, the parties effectively stipulat-
ed to the fact that a strike, economic in nature, had commenced on June
ted allegations, as augmented by evidence that is consist-
ent with them, I find that the sequence of events leading
to the alleged unfair labor practice had been as follows.
Respondent had been a party to a collective-bargaining
agreement between National Electrical Contractors As-
sociation, San Joaquin Valley Chapter (the Association),
and the Union. That agreement expired by its terms on
approximately June 12, 1982. However, in May 1982,
Respondent had` timely withdrawn authority for the As-
sociation to represent it in collective bargaining. Thus, it
is admitted that at all times material since June 12, 1982,
the Union had been the exclusive bargaining representa-
tive of employees in the following appropriate bargain-
ing unit: All electricians and helpers employed by Re-
spondent at its Stockton, California facility; excluding all
office clerical employees, guards, and supervisors as de-
fined in the Act.4 By September 22, Respondent and the
Union had engaged ' ,in negotiations on various dates,
since June 12, 1982, without having reached agreement.
Further, the parties reached a concededly valid impasse
on September 30.
Meanwhile, aset forth in footnote 3, supra, the com-
plaint alleges and the answer admits that on June 14,
1982, 2 days after the expiration date of the Association-
Union agreement, the seven bargaining unit employees of
Respondent "ceased work concertedly and engaged in an
economic strike."5 Initially, seven unit employees went
on strike. As the strike progressed, Respondent hired
seven strike replacements and three of the stri'king' em-
ployees returned to work on June 16, 1982. But the other
four striking employees have continued withholding their
services.
It is admitted that on August 12, 14 months after the
strike had commenced, the Union's counsel sent a letter
notifying Respondent that the work stoppage and strike
were ceasing , unconditionally and, further, requesting
that Respondent restore the terms and conditions of em-
ployment set forth in the most recently expired agree-
ment between the Association and the Union.6 Thus, in-
sofar as is pertinent, the Union's letter states:
14, 1982, and the Union's contrary assertions, made perhaps in an effort
to jockey for a more favorable tactical position, are ones that "the Board
[is] compelled to disregard . .." Herbert F. Darling, Inc. v. NLRB, 732
F 2d 1117 (2d Cir. 1984).
4 This, of course, is consistent with the settled rule that the presump-
tion of majority support for an incumbent bargaining representative in a
multiemployer bargaining unit survives and extends to the single-employ-
er bargaining unit resulting from a withdrawal of one of the employer-
members of that group. See NLRB v. Jim Kelly's Tahoe Nugget, 584 F.2d
293 (1978), cert. denied 442 U.S. 921 (1979), rehearing denied 444 U.S.
887.
5 The parties stipulated that, "At no time since June 11, 1982, has there
been any picketing of Respondent by its striking employees."
6 Obviously the strike replacements had been receiving terms and con-
ditions of employment differing from the ones specified in that agree-
ment. While it appears from the briefs that those terms were lower than
preexisting ones, no evidence was presented regarding either the specific
terms and conditions of employment under which the replacements had
been working, nor regarding the length of time during which those terms
and conditions of employment had been in effect. Thus, there is no basis
in the record for determining whether the replacements were being com-
pensated at a higher or lower level than the striking employees whom
they were replacing Moreover, there is no allegation nor evidence re-
garding the rates at which the three returning strikers were compensated
Continued
SERVICE ELECTRIC CO. 635
Finally , lest there be any doubt about the Union's
position, including the Union 's willingness to call
off the strike (which, of course , has never existed),
please be advised that as of August 12, 1983, at
10:12 a .m., the Union has unconditionally called off
the strike.
Please understand also that this "termination" of
the strike is without prejudice to the Union 's posi-
tion that no strike ever existed . The Union will con-
tinue to assert this position in its appeal to the Gen-
eral Counsel concerning the meaning of the Settle-
ment Agreement.
Finally, please also be advised that the Union's
having now called off the strike obligates you to
apply the terms of the old collective bargaining
agreement, to which you were signatory as of June,
1982, to each of your bargaining unit employees.
In response , on August 19, Respondent 's counsel au-
thored a reply letter , stating, inter alia:
We disagree with your representation that Service
Electric has never been the subject of a strike, work
stoppage and other economic concerted action
against it by the Union . Further, it is our position
that contrary to your letter there has not been an
unconditional cessation of such action against the
Company . Finally , at such time as there is such an
unconditional cessation , we view our obligation as
being one only of bargaining with the Union con-
cerning the terms and conditions of employment for
strike replacement employees . In this regard, we
have never refused to enter into such bargaining,
and in fact view the current negotiations as encom-
passing the terms and conditions of employment of
the strike replacement employees. Should the Union
disagree with the Company 's view as to its legal ob-
ligation in this regard , I would be more than anx-
ious to review any legal authority you might have
supporting a contrary position. Hopefully, we may
quickly conclude negotiations by reaching a con-
tractual agreement, rendering this issue moot.
More specifically , Respondent's position, regarding
whether or not the strike had ended, consists of two
components . The first is that none of the striking em-
ployees ever have applied to return to work . During the
hearing , the General Counsel developed testimony that
Respondent had made no effort to contact those employ-
ees.? However, the parties stipulated that between June
14, 1982 , and August 12, 1983, in Case 32-CA-4623, Re-
spondent and the Union entered into a settlement agree-
ment, approved by the Regional Director for Region 32,
providing, inter alia, that all striking employees would be
reinstated to their former positions within 5 days after
following their return to work on June 16 , 1982. However , it is worth
noting that the General Counsel does not allege that Respondent violated
the Act in any manner with regard to the employment terms of those
three employees following their return to work.
r Indeed , some of them may no longer be in the Stockton area and
their whereabouts may not be known by any of the parties.
their unconditional applications for reinstatement.8 The
parties also stipulated that at no time since August 12 has
Respondent received any communications from the strik-
ing employees and, more specifically, that at no time
since that date have those employees individually offered
to return to work , nor have they resigned from employ-
ment or otherwise severed their employment relationship
with Respondent.
The second component of Respondent's defense that
the strike had not ended is based on a letter sent to Re-
spondent by the Union's business manager , Lyle E. Coe,
on June 11, 1982:
Due to your termination of Local 591 Inside Wire-
man Agreement on June 12th , I have been advised
to remove your apprentice Roger Schrum effective
immediately . You have been removed from the list
of approved employers for training apprentices by
the Joint Apprenticeship Training Committee.
I assume you will recieve [sic] follow up letters di-
rectly from the Committee shortly.
In fact, the Joint Apprenticeship Training Committee
never did send any "follow up letter" to Respondent, but
neither was Coe's above-quoted letter ever rescinded.
8 Lest there be any doubt concerning the matter , of itself, the fact that
the settlement agreement provided for immediate reinstatement of the
strikers , on their unconditional application to return to work, does not
serve to establish that the strike , concededly economic in origin, had
been converted to an unfair labor practice strike . It is, of course , accurate
that where there are unfair labor practice strikers, "the employer is
bound to reinstate all strikers and discharge all those hired to replace
them during the strike." Teamsters Local 622 v. NLRB, 302 F .2d 908, 911
(D.C. Or. 1962), cert. denied 371 U.S. 827; see also Mastro Plastics Corp.
v. NLRB, 350 U .S. 270 , 278 (1956). By signing the settlement agreement,
that is an obligation that Respondent undertook. However, status as an
unfair labor practice striker is not the sole basis on which a striking em-
ployee can be entitled to immediate reinstatement on making an uncondi-
tional offer to return to work . For example, a discharged striker is enti-
tled to similar relief. "Quite apart from any characterization of the strike
that continued after the wrongful discharges occurred , the discharges
themselves were a sufficient ground for the Board's reinstatement order."
NLRB v. International Van Lines, 409 U.S. 48, 53 (1972). Accordingly,
the mere fact that strikers may be entitled to unconditional reinstatement,
of itself, does not suffice as a basis for inferring that a strike has been
converted to an unfair labor practice one . "A strike begun in support of
eonomic objectives becomes an unfair labor practice strike when the
strike is expanded to include a protest over unfair labor practices."
NLRB v. Top Mfg. Co., 594 F.2d 223, 225 (9th Cir. 1979) Moreover, it
must be shown "that settlement of the strike was thereby delayed and the
strike prolonged." Soule Glass & Glazing Co. v. NLRB, 652 F .2d 1055,
1080 (1st Cir. 1981).
In the instant case, the strike was called during negotiations for a col-
lective-bargaining agreement . It was concededly economic in origin.
There is no evidence that an agreement ever has been reached. To the
contrary, it is undisputed that an impasse was reached on September 30.
Thus, so far as the record discloses , the considerations leading to com-
mencement of the economic strike continue to prevail . There has been
neither allegation nor showing that any alleged unfair labor practice pro-
longed those negotiations or otherwise had any impact upon them. In
these circumstances , and in light of the fact that a reinstatement on appli-
cation order running in favor of a striker is not a per se indicator of an
unfair labor practice strike, I conclude that there is no basis for finding
that the strike had been converted to an unfair labor practice one at any
point after June 14, 1982.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Analysis
1. Whether or not the strike ended on August 12
Although Respondent's conduct in setting terms and
conditions for replacements during the period of the
strike is not challenged, the General Counsel does argue
that once the Union had given notice that it was termi-
nating the strike on August 12, Respondent was obliged
to comply with the Union's demand that replacements'
employment terms be changed to levels that had pre-
vailed prior to its commencement on June 14, 1982. Not
only does Respondent dispute this argument , but it also
contends that, in the circumstances of this case, it cannot
be concluded that the strike had been terminated, both
because the substance of Coe' s June 11, 1982 letter never
had been rescinded and, further, because none of the
striking employees ever sought reinstatement following
the August 12 letter from the Union. Although failure to
rescind Coe's letter does not serve to establish that the
strike had not ended, I conclude that there is merit to
Respondent's argument that the strikers' failure to offer
to return to work, coupled with the absence of any evi-
dence that those employees had abandoned future em-
ployment with Respondent, suffices to refute the Union's
assertion , in its August 12 letter, that the strike had
ended.
With respect to Coe's letter, there is no evidence suffi-
cient to show a nexus between removal of Respondent
from the list of approved employers and commencement
of the strike. In his letter, Coe states expressly that it was
termination of the collective-bargaining agreement that
triggered Respondent's removal from that list. There is
no evidence sufficient to show that Coe's stated reason
had been a pretext designed to conceal some other
reason for removing Respondent from the list. Coe's
letter is dated June 11, 1982. The strike did not com-
mence until 3 days later, on June 14, 1982. There is no
evidence that would support a conclusion that, at the
time that he had sent the letter, Coe, or any other official
of Respondent, had contemplated commencement of a
strike against Respondent. Conversely, there is no evi-
dence showing that Respondent's removal from the list,
at least in Coe's view, would not have occurred had Re-
spondent's employees not chosen to commence striking
on June 14, 1982. In these circumstances, the evidence is
insufficient to establish a nexus between Coe's announce-
ment of Respondent's removal from the approved em-
ployers list and the strike. That being the fact, it cannot
be concluded that the Union's failure to rescind or dis-
avow the substance of his letter tends to contradict its
August 12 assertion that the strike was being terminated.
However, a quite different matter is presented by the
striking employees' failure to offer to return to work on
and after August 12. In her brief, the General Counsel
argues , correctly, that "the strike in this case was unusu-
al from its inception in that no picketing or other publici-
ty occurred at any time during the strike. Instead, Re-
spondent's employees merely declined to report for
work " Further, she urges, "Respondent presented no
evidence that the strike had any economic impact on it
whatsoever." Yet, neither the success or failure of a
strike's impact on an employer's operations, nor the pres-
ence of picketing or other publicity, is the measure of
whether a strike exists. Rather, a strike is found to exist
when employees withhold their services in a manner that
interferes with their employer's production with the
object of pressuring the employer into granting a work-
related concession or of protesting any of their employ-
er's employment policies. See Anheuser-Busch, Inc., 239
NLRB 207, 207-208 (1978), and cases cited therein;
Brown & Root, Inc., 246 NLRB 33 fn. 2 (1979), and cases
cited therein; GK Trucking Corp., 262 NLRB 570, 573
(1982); C. G. Conn, Ltd. v. NLRB, 108 F.2d 390, 396-397
(7th Cir. 1939).
Here, while the Union claimed that the strike was
being terminated, not one of the striking employees ever
sought to return to work. There is no evidence that the
Union explained to Respondent why those employees
had not chosen to do so. Nor is there evidence that Re-
spondent was on notice of any reason, not related to the
strike that commenced 14 months earlier, for their failure
to offer to return to work. The absence of offers by
strikers to return to work bears a particular significance
in the circumstances of this case. Of course, as economic
strikers, each one was entitled to return to work once a
vacancy occurred following offer(s) to return. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378 (1967). But, in
this case, the strikers had an even stronger entitlement to
reinstatement. For, by the terms of the settlement in Case
32-CA-4623, each was entitled to reemployment auto-
matically on receipt by Respondent of an unconditional
application to return to work, without regard to the
presence or absence of vacancies at the time of applica-
tion.9 Yet, no applications to return were forthcoming
after August 12.
Counsel for the General Counsel argues that one of
the strikers had found work in a union establishment and
another had left the industry. However, she does not
argue that any of the strikers had abandoned all interest
in future employment with Respondent. That a striking
employee finds work elsewhere or leaves the industry to
work are not facts that, of themselves, serve to satisfy
the very high standard imposed for establishing an aban-
donment of future employment with a struck employer.
For, to establish an abandonment sufficient to relieve the
struck employer of its reinstatement obligation, there
must be "unequivocal evidence of intent to permanently
sever [the striker's] employment relationship . . . ." S &
M Mfg. Co., 165 NLRB 663 (1967); Accord: Harowe
Servo Controls, 250 NLRB 958, 964 (1980). Even a strik-
er's notice that he or she is quitting employment with the
struck employer has been held not conclusive of perma-
9 The fact that Respondent may not have made an "attempt to contact
the striking employees directly to learn whether they would return to
work," as the General Counsel points out , is of no consequence in the
posture of this case For here, even under the terms of the settlement
agreement, it was the striking employees-not Respondent-who had the
burden of taking the initiative in order to trigger the reinstatement obli-
gation. There is no evidence that, by some other means, Respondent had
undertaken a greater obligation, i e , the obligation to take the initiative
to contact the strikers and offer them reinstatement Consequently, the
fact that Respondent did not make an attempt to contact the strikers di-
rectly is a factor of no consequence in analyzing the circumstances pre-
sented by the instant case
SERVICE ELECTRIC CO.
nent abandonment of that employment . See Coca-Cola
Bottling Ca of Memphis, 232 NLRB 794, 811 (1977),
enfd . in pertinent part 616 F .2d 949 (6th Cir . 1980), and
cases cited therein . Consequently, the mere fact that a
striker is working elsewhere , even in another industry, or
that a striker may not be located at a particular point in
time does not serve to satisfy the test of "unequivocal
evidence of intent to permanently sever [the] employ-
ment relationship ...." Ibid.
As the General Counsel acknowledges in her brief, "1.
The Union Had Authority To [sic] Speak For The [sic]
Strikers." See, e.g., Gem City Ready Mix Co., 270 NLRB
1260 (1984). However, there is no evidence that it chose
to exercise that authority by telling Respondent that the
strikers were abandoning further interest in employment.
Nor, so far as the record discloses , did it even attempt to
find out and explain to Respondent the reasons for the
strikers' failure to offer to return to work in light of the
Union's assertion that the strike had concluded . Instead,
as quoted above, even as late as August 12, in the very
letter in which it claimed that the strike was being termi-
nated , the Union continued to question whether there
ever had been a strike.
In sum, though the Union had given notice that the
strike was ended, between August 12 and September 30
none of the strikers offered to return to work , the Union
never explained why none of them were offering to
return, and there is no evidence that any of them , either
personally or through their representative , had aban-
doned interest in continued employment with Respond-
ent. But for the hiring of replacements , the continued
withholding by the strikers of their services would have
continued to interfere with Respondent 's production to
the same degree after August 12 as had been the fact
during the almost 14-month period prior to that date-a
period during which the General Counsel concedes that
a strike had been occurring and one during which there
had been no difference in the conduct of the striking em-
ployees . Furthermore , the very absence of a collective-
bargaining agreement between Respondent and the
Union that had preceded commencement of the strike,
and that had accompanied its progress until August 12,
continued to pertain after that date . In these circum-
stances, there was ample basis for Respondent to con-
clude that, notwithstanding the Union 's representation to
the contrary , the strike was continuing after August 12
and, further, ample basis for concluding that, in fact, the
strike had not ended on that date.
Inasmuch as the General Counsel concedes that there
was no bargaining obligation for replacements ' employ-
ment terms during the strike and since I conclude that a
preponderance of the evidence does not support the con-
clusion that the strike had been terminated solely by
virtue of the Union 's August 12 letter , it follows that
there is no basis for concluding that Respondent had vio-
lated the Act by refusing , after August 12, the Union's
demand that employment terms for replacements be re-
stored to the levels prevailing prior to commencement of
the strike on June 14, 1982.
637
2. The scope of Respondent 's bargaining obligation
if the strike had ended
Even if it were to be found that the Union' s letter, of
itself, had served to terminate the strike, it still must be
concluded that Respondent did not violate the Act by
declining to change replacements ' employment terms to
levels prevailing before the strike had commenced. For,
in the circumstances of this case-where the underlying
dispute had not been resolved because no agreement had
been reached on the terms of a new collective -bargaining
contract and where there were unreinstated strikers
whose jobs continued to be occupied by replacements-
the positions of all concerned did not differ from what
they had been during the conceded period of the strike.
Consequently , Respondent 's bargaining obligation should
not be viewed as differing from what it had been while
the strike was in progress . In reaching this result, it is
necessary to pursue analysis at two levels : first, looking
to the legal principles governing the scope of a struck
employer 's duty to bargain about replacements ' employ-
ment terms during the term of an economic strike,10 as
well as the policies and rationale underlying that duty
and, second, to the applicability of those principles to a
situation, such as here, when, arguendo , the strike ended
without agreement being reached and with no offer to
return to work having been made by any of the strikers.
Unfortunately, as noted in section III , A, supra, a me-
andering course has been followed with respect to the
principles governing a struck employer 's bargaining duty
concerning employment terms of strike replacements.
Following the decision in NLRB v. Mackay Radio &
Telegraph Co., supra, the Board squarely addressed and
resolved that issue in Times Publishing Co., 72 NLRB
676, 684 (1947):
The respondents were clearly entitled to replace
the economic strikers . While the respondents were
under a continuing obligation to bargain collective-
ly with the Union upon request as to the issues be-
tween them, we do not construe this obligation as
requiring the respondents to negotiate with the
Union the conditions under which printers were to
be hired to replace the strikers; so to hold would be
to nullify the respondents' right to hire replace-
ments.
This seemingly straightforward doctrine never has been
overruled expressly.
Yet, over time, holdings in a number of decisions ap-
peared to reverse the doctrine that struck employers
need not bargain about employment terms for replace-
ments during the course of an economic strike . For ex-
ample, in Mitchell Concrete Products Co., 137 NLRB 504
(1962), the Board adopted an Intermediate Report stating
10 Because, as pointed out in fn . 8, supra, there is no evidence that the
strike against Respondent had been an unfair labor practice one at its in-
ception, nor had become one thereafter , it is not necessary to consider
what qualifications , if any , would be imposed on the scope of that bar-
gaining duty where replacements are hired for unfair labor practice strik-
ers. Thus, that aspect of the problem is not addressed, save to the extent
necessary to discern the Board 's view on the scope of the struck employ-
er's bargaining duty during the course of an economic strike.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically that granting wage increases to replacements,
"without notice to the Unions constitutes a refusal to
bargain and shows bad faith . The Board has further held
that it is no defense that the wage increase was granted
to replacement employees during the course of a strike."
(137 NLRB at 515 .) In reviewing that conclusion, the
Board stated only, "We further find . . . that Respond-
ent's unilateral offer of increased wages to strike replace-
ments and its letters to employees seeking , at least in
part, individual bargaining constituted independent viola-
tions of [Section 8(a)(5) and (1)] of the Act." (137 NLRB
at 506 .) Later, in Glazers Wholesale Drug Co., 211 NLRB
1063 (1974), enfd . 523 F .2d 1053 (5th Cir . 1975), the
Board adopted, without comment, the subsidiary conclu-
sion, reached in support of the ultimate conclusion that
the struck employer had unilaterally changed wages in
violation of the Act, that (211 NLRB at 1066):
Assuming . . . that it was "necessary" to pay re-
placements a higher wage than regular employees
had received or had been offered in collective bar-
gaining before the strike in order to get them to
accept employment, I find that such recruiting
problems did not rise to the level of economic ne-
cessity excusing Respondent from notifying and
consulting with the employees ' bargaining repre-
sentative about its intentions before it took action.
Similarly , the Board, itself, stated in Burlington Homes,
246 NLRB 1029, 1030 (1979):
Thus , by offering striker replacements a starting
rate of $3 .25 per hour, Respondent not only offered
them a rate higher than that proposed to the Union
during negotiations , but in the process unilaterally
effected a change in the starting wage rate at a time
when there was no impasse as to this issue. Re-
spondent thereby clearly instituted a unilateral
change in the terms and conditions of employment
in violation of Section 8(a)(1) and (5) of the Act.
While these decisions, and others in which similar re-
sults were reached , made no mention whatsoever of
Times Publishing Co., supra, it could be concluded that
they demonstrated that the Board sub silentio had recon-
sidered and reversed its view that compelling a struck
employer to bargain with the striking representative re-
garding replacements ' employment terms served, "to nul-
lify the [struck employer's] right to hire replacements."
Id. That is , that by 1979 the Board 's position had become
that struck employers must bargain with the striking rep-
resentative before offering replacements terms that differ
from those existing before the strike or from those which
were being offered in negotiations . But, in view of cer-
tain other decisions , it could not be said that such a con-
clusion would be accurate.
In Imperial Outdoor Advertising , 192 NLRB 1248
(1971), the Board stated that it did not agree that Re-
spondent had "violated Section 8(a)(5) of the Act by em-
ploying strike replacements at wages below those estab-
lished in the expired contract without bargaining with
the Union," and continued on to hold that, "Respondent
was under no obligation to hire the replacements at the
wages in the contract and that it [did] not violate the
Act by paying them lower rates ." Id. at 1249 . This deci-
sion issued before the Board issued its decision in Glazers
Wholesale Drug Co ., supra . However, any conclusion that
the result in the latter served to overrule , again sub silen-
tio, the result in the former is negated by the decision in
Leveld Wholesale, Inc., 218 NLRB 1344 (1975), in which
the Board adopted the conclusion that the respondent
had not violated the Act by unilaterally establishing and
offering terms to replacements that differed from those
being offered in negotiations and apparently, as well,
than those that had prevailed prior to commencement of
the strike . In reaching that result , the Administrative
Law Judge Richard D . Taplitz, relied on the result in
Imperial Outdoor Advertising , supra, in the process ob-
serving that:
Strike replacements can reasonably forsee that, if
the union is successful , the strikers will return to
work and the strike replacements will be out of a
job. It is understandable that unions do not look
with favor on persons who cross their picket lines
and perform the work of strikers.
It would be asking a great deal of any union to re-
quire it to negotiate in the best interests of strike re-
placements during the pendency of a strike, where
the strikers are on the picket line. [218 NLRB at
1350.]
Essentially the same conclusion was reached in Capitol-
Husting Co ., 252 NLRB 43 (1980), despite the fact that
the decision in Burlington Homes, supra, had issued
during the preceding year . Indeed, in Capitol-Husting Co.
v. NLRB, 671 F . 2d 237 (7th Cir . 1982), the court relied
specifically on the rationale of Judge Taplitz in holding
that the normal bargaining duty , "does not extend to the
terms and conditions of employment for replacements of
striking employees." Id. at 246.
It is with the matter in this contradictory posture that
the issue of a struck employer's duty to bargain about
employment terms for replacements during an economic
strike must be addressed squarely . Clearly, in light of Im-
perial Outdoor Advertising , Leveld Wholesale, and Capitol-
Husting Co ., it cannot simply be said that the Board has
abandoned all distinctions between the duty to bargain as
applied to employment terms generally and that duty as
it pertains to terms at which replacements are hired
during the course of an economic strike . Moreover, in
light of the Board's failure to expressly overrule Times
Publishing Co. and its underlying rationale , neither can it
be said that the Board no longer views the ability to set
employment terms for replacements as an incident to the
more fundamental right to be able to hire replacements.
At first blush , it might be argued , as has the General
Counsel , that the Board has drawn a distinction based on
the levels of employment terms offered to replacements.
That is , no bargaining duty exists where those terms are
lower than preexisting ones or ones being offered in ne-
gotiations , but such a duty does exist where those terms
are higher . Yet, such a distinction is an all too facile one
in the context of this issue . For, a rule distinguishing oth-
SERVICE ELECTRIC CO. 639
erwise identical situations purely on the basis of econom-
ic levels is not consistent with the policies articulated in
either Times Publishing or Leveld Wholesale. Further-
more, in the context of the collective -bargaining process,
that distinction fails to address reality and , in the final
analysis, is likely one that the Board is prohibited from
making.
If, as concluded in Times Publishing , the ability to set
employment terms for replacements is a necessary inci-
dent of the underlying right to hire replacements, then
the levels at which those terms are established , compared
to preexisting levels or to those being offered in negotia-
tions, hardly can be considered a germane consideration.
Whether those terms are higher or lower , they remain an
incident of the right to hire replacements. Any result
that draws a distinction on the sole basis of comparative
levels tends "to nullify the [struck employer's] right to
hire replacements ," Times Publishing , supra, by restrict-
ing the conditions under which that right may be exer-
cised . I t Similarly, the levels at which employment terms
for replacements are set hardly alters the situation con-
fronting the striking bargaining representative . Whether
those terms be higher or lower than preexisting or pro-
posed ones , it is not logical to expect that representative
"to negotiate in the best interests of strike replacements
during the pendency of a strike, where the strikers are
on the picket line." Leveld Wholesale, supra. For, in the
final analysis, it is not the levels of replacements' em-
ployment terms that limit the effectiveness of a strike so
much as the very existence of replacements , working in
jobs formerly occupied by strikers, that does so. Conse-
quently, whether the struck employer contemplates
higher or lower employment terms for replacements, the
identical tension between representing both strikers and
their replacements confronts the bargaining representa-
tive . To mandate bargaining in one instance but not in
the other is arbitrary.
Indeed , this is not simply a matter of abstract and de-
tached logic. To compel bargaining by a struck employer
subject to the obligation imposed by Section 8(a)(5) of
the Act is necessarily to impose the concomitant obliga-
tion on the striking representative under Section 8(b)(3)
of the Act. Both will be obliged to bargain "to reach ul-
timate agreement ," NLRB v. Insurance Agents' Union,
361 U.S. 477, 485 (1960), but in this instance for an
agreement on the terms under which strike replacements
can be employed. Yet, such a rule places the striking rep-
resentative in a true "Catch-22" situation : If it bargains in
the manner required by the Act, then it undermines its
own strike objective by allowing the struck employer to
continue operations with replacements working under
terms formulated as a result of its own negotiations; but,
if it bargains in a manner consistent with its strike objec-
tive of curtailing the struck employer 's operations, then
" Of course, if the struck employer is exercising that right in a manner
designed to accomplish an illegal objective , i.e., to undermine the bar-
gaining representative, then there would be a basis for finding a violation.
However, that would occur not because employment levels for replace-
ments were being fixed at higher or lower levels , but because of the
struck employer's unlawful motivation . That, of course, is the situation in
all cases where an employer or labor organization takes otherwise lawful
action for a reason proscribed by the Act.
it likely will be bargaining in a manner to avoid reaching
agreement on employment terms for replacements, to
impede their being hired , and, thus, in a manner that vio-
lates the Act.
This dilemma is neither eliminated nor minimized by,
in effect, dividing the baby and requiring bargaining
solely where the struck employer contemplates employ-
ment terms for replacements exceeding preexisting or
proposed levels, to the exclusion of situations where
lower levels for replacements are contemplated . Indeed,
one must wonder just how much support any representa-
tive would continue to enjoy from its strikers once they
discover that their representative is bargaining about em-
ployment terms for their replacements that are higher
than levels being discussed for them in negotiations for a
new contract.
It perhaps has not gone unnoticed that the foregoing
two paragraphs tend to concentrate on the position in
which imposition of a bargaining obligation for replace-
ments would leave the bargaining representative , usually
a labor organization . It is, of course , not a matter for
concern by the Board whether or not a particular rule
aids or frustrates the goals of one side or another in a
labor dispute. Yet, it does appear that at least some of
the cases imposing a bargaining duty where higher em-
ployment terms are provided to replacements have come
dangerously close to advancing a rationale bottomed
solely on the effect of those terms on the ability of the
strikers and their representative to prevail in the underly-
ing dispute . Clearly, that is not a proper consideration,
inasmuch as the Board is prohibited from "introduc[ing]
some standard of properly `balanced ' bargaining power,
or some new distinction of justifiable and unjustifiable,
proper and 'abusive' economic weapons into the collec-
tive bargaining duty imposed by the Act." NLRB v. In-
surance Agents ' Union, supra, 361 U.S. at 497 . However,
it is hardly improper to consider the incidental impact
that a particular rule or interpretation of a statute may
have on parties to disputes. That is, it is not wrong to
consider whether , as a practical matter , a rule or inter-
pretation intended to facilitate the bargaining process
will or will not have that effect in view of the positions
of parties to disputes and, therefore, in light of the reali-
ties of the situation-whether such an approach serves to
accomplish the purposes of the statute or, instead, will
serve only to frustrate its overall purpose.
From the standpoint of the overall bargaining process,
it hardly advances the statutory objectives of minimizing
industrial strife and of facilitating the bargaining process
to suddenly inject an entirely new and controversial sub-
ject into an ongoing bargaining process for a new con-
tract. That, of course, is precisely what will happen if
the parties are obliged to divert their bargaining efforts
from a course of attempting to reach agreement on the
terms of a new collective-bargaining contract to the en-
tirely unrelated path of trying to reach agreement on the
employment terms of replacements who probably will
work only until resolution of the underlying contractual
dispute, at which point "the strikers will return to work
and the strike replacements will be out of a job ." Leveld
Wholesale, supra. Indeed , even if replacements continue
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working after the underlying contractual dispute has
been resolved and the strike has ended , their status as
strike replacements also will have ended . They assume
the same status as other unit employees and their em-
ployment terms become governed by the newly negotiat-
ed contract . In either event , whether they are replaced
by returning strikers or continue working , their employ-
ment terms as replacements are rendered no more than a
footnote to the overall bargaining process that led to
agreement between the parties.
As pointed out in footnote 11, supra, where it can be
said that the struck employer 's employment terms for re-
placements have been formulated and implemented to ac-
complish illegal objectives , then it might properly be
concluded that a bargaining obligation should be im-
posed . But, in that situation , any such obligation should
exist regardless of whether employment terms for re-
placements have been imposed at higher or lower levels
than preexisting or proposed ones . Similarly, when the
strike is an unfair labor practice one, differing consider-
ations may lead to a different conclusion although, again,
there is seemingly no basis for distinguishing the result
on the basis of the comparative levels of employment
terms accorded replacements . However, where the strike
is an economic one throughout its duration and where
there is no evidence of unlawful motivation for the level
at which the struck employer set replacements ' employ-
ment terms , there simply is no basis, in logic or experi-
ence , for creating and imposing a bargaining duty solely
on the basis of whether those terms are higher or lower
than preexisting ones or ones proposed during negotia-
tions.
Yet, if it cannot be said that a difference in the bar-
gaining obligation exists based on the comparative level
of employment terms for replacements , then there must
be another explanation for the seeming inconsistency of
the results of Times Publishing Co. and Leveld Wholesale,
on the one hand, and those of Mitchell Concrete Products
Co. and Glazers Wholesale Drug Co ., on the other . Analy-
sis of what was decided in Times Publishing and of the
resolution of cases following it provides that explanation.
So far as is pertinent here , in Times Publishing the
Board analyzed two closely related but nevertheless sep-
arate and distinct issues : the scope of a struck employer's
duty to bargain concerning replacements ' employment
terms and , second , the ability of the struck employer to
offer those same terms to striking employees . For the
most part , cases decided during the immediately follow-
ing years posed only the issue of offers made to striking
employees . See, e . g., United Welding Co ., 72 NLRB 954
(1947); Sam'l Bingham 's Son Mfg. Co., 80 NLRB 1612
(1948); Celanese Corp. of America, 95 NLRB 664 (1951).
For example, the Board stated in Texas Co ., 93 NLRB
1358 , 1360-1361 (1951):
For, although the Board has, in the past, found indi-
vidual solicitation of strikers violative of the Act, in
all such cases one or both of the following two fac-
tors has been present : (1) The solicitation has consti-
tuted an integral part of a pattern of illegal opposi-
tion to the purposes of the Act as evidenced by the
Respondent's entire course of conduct , or (2) the
solicitation has been conducted under circum-
stances , and in a manner, reasonably calculated to
undermine the strikers ' collective bargaining repre-
sentative and to demonstrate that the Respondent
sought individual rather than collective bargaining.
When cases did arise involving both terms offered to
strikers and to replacements (i.e., employees not em-
ployed previously by the struck employer), the Board
carefully preserved the distinction between the two
groups of employees , at least in earlier cases . For exam-
ple, in Cathey Lumber Co., 86 NLRB 157 (1949), the
Board found no violation in the struck employer's adver-
tisements for replacements but did conclude that it had
violated the Act by offering the same terms to individual
striking employees . However, in Pacific Gamble-Robinson
Co., 88 NLRB 482 (1950), enf. denied 186 F.2d 106 (6th
Cir. 1950), while offers had been made to employees in
both categories, neither the Board nor the court clearly
preserved the distinction between them. Thus, analyzing
the entire matter primarily from the perspective of offers
made to striking employees, the Board held that, "the
Respondent bypassed the statutory representative of its
employees and unilaterally offered a higher wage scale
on an individual basis." 88 NLRB at 484. Conversely,
approaching from the exact opposite direction and an-
aylzing the case primarily from the overall perspective of
offers made to replacements, the court relied on that por-
tion of Times Publishing and held that, "There is no re-
quirement of law that the employer who rightfully hires
replacements to continue his business after a strike
should offer the replacements the same rate which has
been offered the union." 186 F.2d at 109.
Disregard of the distinction between employment
terms offered to replacements and those offered to strik-
ing employees, with the analysis applicable to the latter
being applied to offers made to the former, characterized
decisions issued subsequently . For example , in W. W.
Wallwork Fargo, Inc., 123 NLRB 91 (1959), the Board
agreed that unilaterally formulated offers to replacements
violated the Act, in the process adopting the underlying
rationale that , "It is well settled that unilateral wage in-
creases accorded to nonstrikers, returned strikers, and
the hiring of new employees at rates above those pro-
posed during negotiations constitutes disparagement of
the collective-bargaining process and of the employees'
bargaining representative." ( 123 NLRB at 109.) Similar-
ly, in Mitchell Concrete Products Co., supra, the Board,
itself, stated: "We further find . . . that Respondent's
unilateral offer of increased wages to strike replacements
and its letters to employees seeking, at least in part, indi-
vidual bargaining constituted independent violations of
the foregoing sections of the Act." 137 NLRB at 506.
The inconsistency between those cases and the portion
of Times Publishing applicable to the absence of a bar-
gaining duty for replacements ' employment terms would
become even greater as a result of the application of
doctrines arising from other situations to circumstances
where replacements were hired during economic strikes.
Thus, in St. Clair Lime Co., 133 NLRB 1301 (1961), the
Board concluded that the respondent had violated the
Act by unilaterally instituting higher employment terms
SERVICE ELECTRIC CO.
for replacements . But in granting enforcement , the cir-
cuit court pointed out that, "the strike was brought on
by the employer's refusal to bargain in good faith. The
natural effect, and possibly the employer's desire, in
hiring new employees at a wage increase which it re-
fused to consider in negotiations with the union, was to
interfere with the right of the employees to join a labor
organization." NLRB v. St. Clair Lime Co., 315 F.2d 224,
228 (10th Cir. 1963). Similarly, in Tom Joyce Floors, 149
NLRB 896 (1964), enfd . 353 F . 2d 768 (9th Cir . 1965), the
Board pointed out expressly that , "virtually all the re-
placements involved were hired at the higher rate after
the strike had become an unfair labor practice strike
...." (149 NLRB at 897 fn. 1.) Yet, both of these cases
were relied on in Glazers Wholesale Drug Co ., supra, to
support the conclusion reached there that payment of
unilaterally formulated higher wages to replacements
during a strictly economic strike had been a violation of
the Act. t a Glazers Wholesale Drug, then, in turn , became
the sole authority for the decision reached in Burlington
Homes, supra, even though the replacements there had
been hired at a time when the strike had been but an
economic one.
In sum, while disregarded in some subsequent cases,
the basic rule of Times Publishing and Cathey Lumber-
that offers to strikers are to be viewed differently from
those made to replacements and that there is no obliga-
tion to bargain with a striking representative concerning
the latter during an economic strike-has never been
overruled expressly . To the contrary , in cases such as
Imperial Outdoor Advertising, Leveld Wholesale, and, with
court approval , Capitol-Husting Co., the Board has reaf-
firmed that the bargaining duty does not exist with
regard to replacements' employment terms . Even more
significantly , the Board has never disavowed the ration-
ale that the ability to set employment terms for replace-
ments is a necessary incident of the very right to hire
them in the first place during an economic strike. Indeed,
it has reinforced that rationale by adding a second
reason, the inability of a striking representative to bar-
gain simultaneously in the best interests of both strikers
and their replacements , for concluding that no bargain-
ing duty exists for replacements' employment terms. It is
within the context of those two reasons that the situation
presented in the instant case must be addressed.
As stated above , there are two aspects of the instant
case that are of primary importance and, in the final
12 Only two other cases were cited : Mitchell Concrete Products Co. and
the court's decision in Pacific Gamble-Robinson . Of course, as pointed out
above, the decision in the former failed to draw the distinction between
offers to strikers and ones to replacements, as had been done in cases
such as Times Publishing and Cathey Lumber. Further, as to Pacific
Gamble-Robinson, the Glazers decision states only that, "the court
thought that the increases offered the replacements were not 'substantial-
ly' greater than that offered the union ." (211 at 1066 fn. 2.) As discussed
above, neither precedent nor logic warrants the creation of a comparative
monetary distinction as the exclusive basis for analyzing the extent of a
struck employer's ability to formulate and to implement terms for em-
ploying replacements during the course of an economic strike . Moreover,
ambiguous terms, such as "substantially," hardly suffice as a guide for
making determinations in future cases concerning the same issue. Howev-
er, what Glazers Wholesale Drug does illustrate is the degree to which ini-
tial carefully drawn distinctions had been obliterated over the course of
time by overly summary analysis.
641
analysis, that serve to distinguish it from other types of
situations that may be similar but nevertheless are distin-
guishable . First, whether or not the Union's August 12
letter served to terminate the strike , the underlying labor
dispute continued to exist after that date . That is, as had
been true during the strike , prior to August 12, the par-
ties had not reached agreement on the terms of a collec-
tive-bargaining contract and were continuing to negoti-
ate in an effort to do so. Second , the striking employees
neither offered to return to work after August 12 nor
abandoned future employment with Respondent, with
the result that there continued to exist two groups of em-
ployees whose employment interests continued to be dia-
metrically opposed . The replacements ' ability to continue
employment with Respondent remains subject to their
displacement by the strikers . Indeed, in the instant case,
the normal risk of negotiations leading to replacements
being terminated to make way for returning strikers is
but magnified by the existence of the strikers' absolute
right to return to work for Respondent , on offering to
do so , under the terms of the settlement agreement in
Case 32-CA-4623.
Because of the existence of these two factors, the basic
positions of the parties did not differ afterward from
what they had been prior to August 12, regardless of
what might be said of the status of the strike . No collec-
tive-bargaining contract has been negotiated . The parties
continue negotiating for a new contract . The strikers,
having neither offered to return to work nor abandoned
future employment with Respondent , continue to with-
hold their services . Respondent continues to require the
services of replacements in order to pursue normal oper-
ations in light of the absence of the strikers. No one ap-
pears to dispute Respondent 's right, under NLRB v.
Mackay Radio & Telegraph Co., supra, to continue em-
ploying replacements after August 12. Consequently, as
the right to continue operating with replacements until
strikers offer to return to work is conceded , Respond-
ent's ability to continue implementing their employment
terms continues to be an incident of the right to continue
employing them . In these circumstances , to hold to the
contrary, "would be to nullify [Respondent 's] right to
[continue employing] replacements ." Times Publishing
Co., supra, 72 NLRB at 676, 684.
Furthermore, because the replacements ' continued em-
ployment remains subject to the strikers' ability to return
to work, as part of a negotiated agreement or as a result
of their exercise of the right set forth in the settlement
agreement, the identical tension between employees in
the two groups continued to prevail after August 12 as
had existed before that date . With the situation still the
same after that date , even if the strike be deemed to have
ended by virtue of the Union's announcement that it had
been terminated , there is no basis for concluding that the
Union suddenly is better able "to negotiate in the best in-
terests of strike replacements," Leveld Wholesale, supra,
218 NLRB 1344 , than it previously had been able to do.
The inherent conflict between the two groups remains.
So, too , does the dilemma for the collective-bargaining
process if one party is suddenly obliged to begin bargain-
ing for groups whose interests are opposed.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It might well be argued that requiring struck employ-
ers simply to restore all employment terms to levels ex-
isting before a strike had commenced is but a simple re-
quirement , not posing the potential for infringement on
the right to hire replacements and the conflict of interest
that a broader bargaining duty might involve. Yet, the
fact remains that even such a limited obligation is one
that would oblige a formerly struck employer to bargain
with the representative regarding replacements' employ-
ment terms . To that extent, in circumstances such as
those posed by the instant case , it tends to accomplish
the very result that the rule, enunciated in Times Publish-
ing, relieving a struck employer of a duty to bargain con-
cerning replacements ' employment terms is intended to
avoid: it tends to nullify, by creating a limitation, the
right to hire replacements.
Moreover, while it might be said that replacements
achieve a benefit if the employer is required to change
employment terms to preexisting ones where the replace-
ments' terms have been lower than the ones existing
before the strike, that cannot be said to be true where re-
placements have been receiving higher ones . Yet, as
shown by cases referred to above, it hardly can be con-
cluded that situations where replacements ' employment
terms are higher than preexisting or proposed ones do
not occur . That being the fact, the same type of conflict
exists even with the more limited bargaining obligation
proposed by the General Counsel as would exist if a
broader bargaining obligation were to be imposed. More-
over, for the reasons discussed above, any rule that dis-
tinguishes the bargaining duty, even the limited one
sought by the General Counsel , on the basis of compara-
tive cost is neither consistent with the reasons advanced
in Times Publishing and Leveld Wholesale, nor is it likely
to be one that the Board is permitted to draw in analyz-
ing the scope of the bargaining duty under the Act.
NLRB v. Insurance Agents' Union , supra.
Finally, it is difficult to perceive any advantage to the
collective-bargaining process that would justify a rule re-
quiring formerly struck employers to substitute preexist-
ing employment levels for employment terms that re-
placements have been receiving during the course of
strikes, in situations where underlying contractual dis-
putes continue to exist and where strikers have not of-
fered to return to work and have not indicated abandon-
ment of future employment with those employers. In her
brief, counsel for the General Counsel argues that allow-
ing replacements to continue receiving one level of bene-
fits while nonstrikers and returning strikers receive a dif-
ferent level , "is conducive only to magnifying whatever
discord might exist within the bargaining unit between
returning strikers and strike replacements." Yet, that is
the very situation that the Board has permitted to prevail
during the strike , itself. There is no basis for concluding
that termination of the strike will somehow change atti-
tudes and heighten tensions between the two groups of
employees . Indeed , with the underlying contractual dis-
pute unresolved, there is no assurance that, as is suggest-
ed in the General Counsel's brief, the Union might not
make "a decision to strike anew ." Is the employer then
to be allowed to resume providing employment levels for
replacements at those that had prevailed before the strike
had ended? Are the replacements' employment terms to
be subject to a revolving door, rotating each time a deci-
sion is made to strike or cease striking?
As noted above, once the underlying labor dispute is
resolved through an agreement reached by the parties, or
once the strikers offer to return to work, or, finally, once
the strikers abandon employment with the formerly
struck employer, then situations differing from the one
presented in the instant case would exist and wholly dif-
ferent considerations would be involved. See, e .g., Cap-
itol-Husting Co. v. NLRB, supra, 671 F.2d at 248 fn. 7.
Those situations , however, are ones that need not be
considered in the context of this case , since they are not
presented by its facts . What is presented here is a very
limited situation . The Board has not obliged struck em-
ployers to apply only preexisting employment terms
when hiring replacements for strikers during economic
strikes. Where the underlying labor dispute remains unre-
solved and the parties continue to attempt to resolve it,
and where , despite the representative 's announcement
that the strike has ended , replacements continue to
occupy strikers' jobs and strikers neither offer to return
to work nor abandon future employment with the struck
employer, then that employer is neither obliged to bar-
gain with that representative concerning the continued
employment terms of replacements, nor is it obliged to
substitute preexisting employment terms for the ones that
replacements have been receiving during the course of
the economic strike. That conclusion is consistent with
the Board's reasons for concluding that struck employers
need not bargain about replacements ' employment terms
during an economic strike and there is no basis for con-
cluding that it is inconsistent with the principles underly-
ing the collective-bargaining process . Therefore, I find
that a preponderance of the evidence does not support
the conclusion that Respondent has violated the Act and,
accordingly, I grant Respondent's motion to dismiss the
complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed's
ORDER
It is recommended that the complaint be dismissed in
its entirety.
is If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.