Solar Turbines

National Labor Relations Board - Board Decisions

Mar 11, 1991

302 N.L.R.B. 14 (N.L.R.B. 1991)

14
302 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is denied as the
record, the exceptions, and briefs adequately present the issues and positions
of the parties.
2 All dates hereafter refer to 1987 unless otherwise indicated.
3 The question this case presents is distinct from the one the Board consid-
ered in Star Tribune, 295 NLRB 543 (1989). In that case, the Board concluded
that an employer was not obligated to bargain over drug and alcohol testing
of applicants for employment. In reaching this conclusion, the Board stated
that ‘‘applicants for employment are not ‘employees’ within the meaning of
the collective-bargaining obligations of the Act.’’ 295 NLRB 543, 546; see
also fn. 10. The question before us here is not whether the Respondent was
required to bargain with the Union before administering the drug and alcohol
tests to the putative replacements. Rather, the question is whether the hiring
commitment made to the prospective employees was sufficient to effect the
permanent replacement of strikers.
Solar Turbines Incorporated, Subsidiary of Cat-
erpillar Inc. and International Association of
Machinists and Aerospace Workers, Aeronauti-
cal Mechanics Lodge No. 685, AFL–CIO and
Raymond Clifton McGee. Cases 21–CA–25694
and 21–CA–25687
March 11, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 15, 1988, Administrative Law Judge
Richard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed limited exceptions and a sup-
porting brief, and the Charging Party filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The judge found that the Respondent, by failing and
refusing to reinstate 39 economic strikers immediately
on the Union’s unconditional offer on their behalf to
return to work, violated Section 8(a)(3) and (1) of the
Act. On review of the record, exceptions, and briefs
we disagree with the judge and find that the Respond-
ent did not violate the Act by failing to reinstate the
economic strikers.
The Respondent manufactures aircraft engines. In
order to prevent the hiring of individuals whose use of
alcohol or drugs would impair their job performance,
the Respondent requires preemployment drug and alco-
hol testing. On August 12, 1987,2 during the course of
an economic strike by the Union, the Respondent inter-
viewed applicants for permanent employment to re-
place the strikers. On that day, over 50 applicants were
offered and accepted permanent employment. At that
time they were assigned badge numbers, job classifica-
tions, and departments and agreed to submit to drug
and alcohol testing. Three days later, on August 15,
the Union made an unconditional offer to return to
work.
Those who had accepted the employment offers sub-
mitted to physical examinations and drug and alcohol
testing from August 13 through 21. Of the 52 individ-
uals who eventually commenced work in permanent
positions, 13 were administered the tests before the
Union’s August 15 unconditional offer to return to
work. Prior to the Union’s offer to return to work, the
testing laboratory reported to the Respondent that 7 of
the 13 had passed. For the other 6 of these 13, the Re-
spondent was not advised of the fact that they had
passed until after the Union’s August 15 offer. The re-
maining 39 replacements were tested after the August
15 offer, and reports that they had passed were thus
not received by the Respondent, until after the Union’s
August 15 unconditional offer.
The Board has long held that in the absence of a le-
gitimate and substantial business justification, eco-
nomic strikers are entitled to immediate reinstatement
to their prestrike jobs. Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied
397 U.S. 920 (1970). One recognized legitimate and
substantial business justification for refusing to rein-
state economic strikers is that those jobs claimed by
the strikers are occupied by workers hired as perma-
nent replacements. NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 379 (1967).
Job vacancies created by striking employees are con-
sidered to be filled by permanent replacements as of
the time the putative replacements accept an employ-
er’s offers of permanent employment in the strikers’
jobs. Home Insulation Service, 255 NLRB 311, 312 fn.
9 (1981), enfd. mem. 665 F.2d 352 (11th Cir. 1981).
The Board normally regards the employer’s hiring
commitment as effectuating the permanent replacement
of a striker even though the striker may request rein-
statement before the replacement actually begins to
work. H. & F. Binch Co., 188 NLRB 720, 723 (1971),
enfd. as modified 456 F.2d 357 (2d Cir. 1972); Ander-
son, Clayton & Co., 120 NLRB 1208, 1214 (1958);
see also Superior National Bank, 246 NLRB 721
(1979). Thus, determination of the replacement date
turns on when a commitment to hire an employee for
a permanent job was made and accepted.3
The judge found that the 13 individuals who took
the test before the Union’s unconditional offer to re-
turn were permanent replacements for the economic
strikers because they ‘‘effectively removed the contin-
gencies attached to their hire.’’ He further found that
the remaining 39 individuals, who, like the 13, had ac-
cepted employment offers on August 12, but who had
not yet taken the tests at the time of the Union’s offer,
had not removed those contingencies. In his view,
15SOLAR TURBINES
4 Our dissenting colleague stresses the conditional nature of the job offers
by pointing to the Respondent’s policy manual reference to ‘‘pre-employment
screening practices.’’ We do not find this phrase fatal to a finding that a com-
mitment was made to extend a permanent position. The Respondent’s manual
does not necessarily use the phrase ‘‘pre-employment’’ as a term-of-art con-
noting the lack of a hiring commitment. We note that the same manual uses
the term ‘‘pre-employment screening’’ in discussing recalled employees,
whom we would not consider merely applicants.
those 39 did not have a commitment from the Em-
ployer to be hired and thus were not permanent re-
placements. The judge concluded that the Respondent
violated Section 8(a)(3) and (1) by failing to reinstate
the 39 economic strikers whose jobs were taken by
those replacements.
The General Counsel and the Union contend that the
only individuals who should be considered permanent
replacements are the seven individuals whose test re-
sults were known by the Respondent before the
Union’s offer on behalf of the strikers to return to
work. They argue that the Respondent’s commitment
to hire the strike replacements was deferred by the out-
standing contingencies of physical examinations and
drug and alcohol testing. They assert that those contin-
gencies were not removed until the seven passed the
tests and the results were communicated to the Re-
spondent.
The Respondent, on the other hand, contends that
the hiring commitment was made August 12, when the
applicants accepted its offers of permanent employ-
ment. It asserts that the drug and alcohol tests were
posthire conditions to active service, not prehire condi-
tions of employment. We find merit in the Respond-
ent’s exceptions.
Unlike the judge, we find that the commitment to
hire all 52 strike-replacement applicants was made
when they accepted the offers of permanent employ-
ment for the strikers’ jobs. Unlike our dissenting col-
league, we conclude that those offers were offers of
permanent employment, notwithstanding the testing
contingencies.
On their acceptance of the offers, the replacements
were assigned job classifications, work departments,
and employee badge numbers, indicating that the Re-
spondent was committed to hiring them as permanent
replacements. On August 12, the replacements were
told that they would have to submit to a physical ex-
amination and pass a drug screening test before they
started work. The fact that 39 of the 52 replacements
had not yet taken or passed their physical examinations
or drug and alcohol tests, or that another 6 had taken
their test but the Respondent had not been informed of
the results, until after the Union’s unconditional offer
to return to work, does not detract from the Respond-
ent’s clear commitment to hire them as permanent re-
placements. This conclusion follows logically from the
Board’s decision in Kansas Milling Co., 97 NLRB
219, 225–226 (1951). In that case the Board found that
striker replacements who were offered permanent em-
ployment, but who were required to complete a 30-day
probationary period, were permanent replacements
even if they had not completed the 30-day period by
the date on which the strikers made unconditional of-
fers to return. Accord: Guenther & Son, 174 NLRB
1202, 1212 (1969), enfd. sub nom. Pioneer Flour Mills
v. NLRB, 427 F.2d 983 (5th Cir. 1970); Anderson,
Clayton & Co., 120 NLRB at 1214. The reasoning
adopted by the Board in Kansas Milling was as fol-
lows (id. at 226):
When hired they were assured that they would re-
tain their jobs not for a period of limited duration
but indefinitely, provided only they proved them-
selves qualified. True, the ultimate determination
of whether they were to be retained on a tem-
porary or permanent basis was deferred. But when
the qualifying condition was met with the passage
of 30 days’ employment, it established their status
ab initio as that of permanent replacements for the
striking employees whom they displaced. Al-
though their status was still probationary on Octo-
ber 18, 1947, the Respondent was not required on
that day to discharge them to make room for re-
turning strikers who had unconditionally applied
for reinstatement. In hiring these employees origi-
nally on a probationary basis, the Respondent was
following its normal employment practices, and it
was entitled to avail itself of the full qualifying
period before determining whether or not these
employees should be accorded the status of per-
manent employees.
Those employees who did not survive the probationary
period were deemed ‘‘potentially permanent’’ employ-
ees. Ibid. ‘‘But when the potentiality of their perma-
nent status was eliminated by their termination within
the 30-day qualifying period, the Respondent could no
longer regard the position they had occupied as having
been permanently filled.’’ Ibid. Contrary to our dis-
senting colleague, we do not agree that Kansas Milling
and its progeny are inapposite because, in his words,
they did not involve conditions that must be removed
‘‘before hire.’’ In our view, the replacements here had
been hired, and their commencement of work as per-
manent employees was subject merely to satisfying the
Respondent’s ‘‘normal employment practices,’’ i.e.,
completion of the postinterview tests.4 As the Supreme
Court observed in Belknap, Inc. v. Hale, 463 U.S. 491,
504 fn. 8 (1983):
That the offer and promise of permanent employ-
ment are conditional does not render the hiring
any less permanent if the conditions do not come
to pass. All hirings are to some extent conditional.
A fortiori, so long as the replacement workers and
the Respondent intended that the workers’ employment
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Georgia Highway Express, 165 NLRB 514, 516 (1967) (permanent
hiring standard would be satisfied where it is shown ‘‘that the men who re-
placed the strikers were regarded by themselves and [the employer] as having
received their jobs on a permanent basis’’), affd. sub nom. Teamsters Local
728 v. NLRB, 403 F.2d 921 (D.C. Cir. 1968), cert. denied 393 U.S. 935
(1968).
1 Unless otherwise noted, all subsequent dates shall be in 1987.
2 H. & F. Binch Co., 188 NLRB 720, 723 (1971), enfd. in relevant part 456
F.2d 357 (2d Cir. 1972).
3 See, e.g., Transport Service Co., 302 NLRB 22, issued today. In that case,
as here, the process of hiring an applicant as a replacement was interrupted
by the strikers’ offer to return to work. There, as here, I would find that an
applicant who had not completed the requirements for hire had not attained
permanent replacement status.
4 188 NLRB at 723 (emphasis added).
not terminate at the conclusion of the strike,5 the fact
that the replacements had yet to complete these
postinterview tests at the conclusion of the strike did
not render them temporary workers subject to dis-
charge.
We therefore conclude that, on August 12, the Re-
spondent made a hiring commitment sufficient to ef-
fect the permanent replacement of the 52 strikers. The
Union’s unconditional offer to return to work was
made August 15. Because the hiring commitment oc-
curred before the Union’s offer to return to work,
those jobs were filled. We therefore reverse the judge’s
finding that the Respondent violated Section 8(a)(3)
and (1) of the Act by failing to reinstate the 39 strikers
to their prestrike jobs.
ORDER
It is ordered that the complaint is dismissed.
MEMBER DEVANEY, dissenting.
In this case, the judge found that the Respondent, by
refusing to reinstate 39 out of 52 economic strikers
upon the Union’s unconditional offer to return to work,
violated Section 8(a)(3) and (1). My colleagues find
that the failure to reinstate these strikers was not un-
lawful because the Respondent had made a definite
commitment to hire permanent replacements for each
of these positions before the strikers’ offer to return.
I disagree with my colleagues and with the judge; I
find that the Respondent had replaced only 7 of the 52
strikers when the strike ended, and that, as to the other
45, the applicants for their jobs had not removed the
conditions on their employment imposed by the Re-
spondent. In my view, the Respondent’s offers of em-
ployment for all 52 positions were contingent on the
applicant’s successful completion of a screening proce-
dure. Only the seven applicants who removed the ob-
stacles to their employment by passing the tests and re-
ceiving the positive results before the strike ended are,
in my view, permanent replacements. As to those who
had not completed the test procedures or whose results
had not been received by the Respondent when the
Union offered to return, I would find that the Respond-
ent’s conditional offer of employment had not ripened
into a definite commitment to hire when the strike
ended and, thus, that the Respondent had not made a
firm commitment to employ these replacements before
the end of the strike.
The key facts are not in dispute. The Respondent re-
quires all job applicants to submit to drug and alcohol
testing. As its policy manual states, it ‘‘will utilize pre-
employment screening practices . . . to prevent the
hiring of individuals whose use of alcohol or drugs
would impair job performance’’ (emphasis added). All
applicants are required to sign an acknowledgement
that their refusal to submit to the tests waives ‘‘any
possibility of employment’’ with the Respondent. Ap-
plicants who do not pass the tests are denied employ-
ment. On August 12, 1987,1 during a strike by the
Union, the Respondent interviewed potential replace-
ments. That day, the Respondent conditionally offered
jobs to more than 50 applicants and assigned them
badge numbers, job classifications, and departmental
slots. The offers of employment hinged on successful
completion of the physical and the drug and alcohol
screening procedure. By August 15, the date of the
strikers’ offer to return, 13 applicants had taken the
tests, of whom 7 had received acceptable results and
6 had not yet received their results; 39 had not been
tested. The judge found the 13 applicants who had
taken the tests were permanent replacements but the
remaining 39 were not. The General Counsel and the
Union argue that only the 7 applicants who had re-
ceived acceptable results were permanent replacements
while the Respondent argues all 52 applicants were
permanent replacements. My colleagues agree with the
Respondent. I agree with the General Counsel and the
Union.
I note at the outset that the fact that the applicants
had not started work when the Union offered to return
is not of itself decisive. The Board has held that an ap-
plicant is a permanent striker replacement—even if the
striker offers to return before the replacement actually
begins work—‘‘if the employer makes a commitment
to the applicant for the striker’s job.’’2 Finding the
moment when the employer has committed itself to
hire the applicant is, however, often a difficult task.
More and more employers require applicants to under-
go one or more of the following: extensive physical
examinations, credit and honesty checks, and screening
for substance abuse, before permitting them to enter
the facility as an employee and go on the payroll.3 A
realistic examination of these hiring practices reveals
that often, as here, employment is absolutely contin-
gent on passing such tests; if applicants do not take the
tests or if the results are negative, they simply are not
hired. Thus, any job offer extended before the tests are
taken is conditional at best and commits the employer
to nothing until the required screening has been suc-
cessfully completed.4 In cases where an employer re-
quires preemployment screening, I would find that a
17SOLAR TURBINES
5 Cf. Star Tribune, 295 NLRB 543 (1989) (applicants for employment are
not ‘‘employees’’ under Sec. 8(a)(5); no economic relationship exists between
an employer and an applicant and the possibility of such a relationship is
‘‘speculative’’).
6 Cases such as Guenther & Son, 174 NLRB 1202 (1969), and Kansas Mill-
ing Co., 97 NLRB 219 (1951), are not to the contrary. These cases do not
hold that an employee who fails to satisfy conditions that can and must be
removed before hire is nonetheless a permanent replacement. My colleagues
correctly note that I view Kansas Milling as inapposite because, unlike this
case, it treats the removal of conditions after ‘‘hire,’’and that I differ from
them in finding that the applicants at issue here, unlike those in Kansas Mill-
ing, had not yet been ‘‘hired.’’ The Board’s inquiry in Kansas Milling was
whether employees could be viewed as having been offered permanent em-
ployment if they had not completed probation when the strike ended. Our in-
quiry here, although it also involves the removal of employer-imposed condi-
tions, is different. I suggest that cases involving conditional job offers such
as this one require examining the employer’s ‘‘normal employment practices’’
to determine, not only whether the job offered is a permanent one, but whether
the offer itself constitutes a definite commitment. Moreover, I do not disagree
that offers of employment are ‘‘to some extent conditional.’’ Belknap v. Hale,
463 U.S. 491, 504 fn. 8 (1983). I do, however, recognize differences in de-
gree, so that, depending on the circumstances, some offers, such as those at
issue here, fall short of the ‘‘firm commitment’’ the Board requires.
7 The cases cited by my colleagues generally fail to support their holding
here. In Home Insulation Service, 255 NLRB 311, 313 (1981), enfd. mem. 665
F.2d 352 (11th Cir. 1981), the Board clearly required ‘‘affirmative evidence’’
that replacements were hired prior to the offer to return; Superior National
Bank, 246 NLRB 721 (1979), found that replacements were timely hired be-
cause ‘‘a mutual understanding and commitment had been made which in-
cluded the time those [sic] two employees would actually start work’’; in
Georgia Highway Express, 165 NLRB 514, 516 (1967), enfd. 403 F.2d 921
(D.C. Cir. 1968), cert. denied 393 U.S. 935 (1969), the respondent’s argument
that it had replaced 52 employees was rejected because it had not borne its
burden of establishing that the replacements were hired before the end of the
strike; in Anderson, Clayton & Co., 120 NLRB 1208, 1214 (1958), the em-
ployees hired as permanent replacements had completed all requirements sus-
ceptible to completion before commencing work before the strike ended.
I do not view the cases cited above as relieving an employer of the burden
of demonstrating that its offers of employment are firm ones. In my view, a
‘‘firm commitment’’ hinging absolutely on the fulfillment of employer-im-
posed conditions is a contradiction in terms.
firm commitment to hire a replacement occurs when
the contingencies attached to hire have been removed
and the applicant is free to begin work. In this case,
that occurred when the applicants had passed the tests
and the Respondent had received the results. The suc-
cessful applicants were then free to begin work; the
only question remaining was when they would start–
-not whether they would start at all.
This standard is in keeping with prior case law. Ear-
lier cases such as Binch have found that individuals
who have received an unconditional offer of employ-
ment, but who must delay their start date, are perma-
nent replacements. In holding that applicant Rathbun
was a permanent replacement, however, the Board in
Binch explicitly relied on the fact that ‘‘[h]er accept-
ance was not conditioned on her getting a [baby]sitter,
but rather only the actual date of start was indefi-
nite.’’5 Similarly, in Binch, applicant Macey accepted
the job offered him; the only issue was that he wished
to start on a later date.6 My colleagues cite no case in
which individuals have been treated as permanent re-
placements who, at the time the strike ended, had
failed to remove conditions for hire that affect, not
their starting date, but whether they will ever start at
all.7
The conclusory nature of the majority’s reasoning is
demonstrated by the poor fit between the facts found
by the judge and their summary conclusion that the
‘‘routine’’ testing required here did not affect the qual-
ity of the offer. The majority’s analysis of the Re-
spondent’s offers of employment fails to weigh the
strong evidence that the Respondent itself viewed the
offers as thoroughly conditional. My colleagues point
to the assignment of badge numbers, etc., as dem-
onstrating a firm and actualized commitment to hire
the applicants. In so doing, they fail to discuss far
more compelling evidence of the conditional nature of
the offers, i.e., the Respondent’s own policy, ex-
pounded in the employee handbook and in the form
signed by the applicants, that employment depends on
the successful completion of the tests. In my view,
then, the Respondent’s own policies defeat the conclu-
sion that a binding commitment of employment oc-
curred on August 12.
In sum, by equating mere ‘‘magic words’’ with a
real commitment to hire, my colleagues have gone far
beyond the guidance of prior case law. Their holding
enables an employer to show that a replacement was
hired in a timely fashion with nothing more than self-
serving and conclusory testimony that an applicant was
‘‘hired’’ before the strike ended regardless of that em-
ployer’s actual policies regarding the conditions placed
on employment. I can not join in such a decision and,
accordingly, I dissent.
Robert R. Petering, Esq., for the General Counsel.
William H. Emer, Esq. (Parker, Milliken, Clark, O’Hara &
Samuelian), of Los Angeles, California, for the Respond-
ent.
Robert A. Bush, Esq. (Taylor, Roth, Bush & Geffner), of Los
Angeles, California, for the Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This con-
solidated matter was tried in San Diego, California, on June
28–29, 1988. The consolidated complaint, based on charges
filed by International Association of Machinists and Aero-
space Workers, Aeronautical Mechanics Lodge No. 685,
AFL–CIO (Union) and by Raymond Clifton McGee, acting
in his individual capacity, issued on June 10, 1988, was
amended during the trial, and alleges that Solar Turbines In-
corporated, Subsidiary of Caterpillar Inc. (Respondent) vio-
lated Section 8(a)(3) and (1) of the National Labor Relations
Act (Act) on and after August 15, 1987, by permanently re-
placing 52 economic strikers, consequently refusing to rein-
state them, after the Union on their behalf had tendered an
unconditional offer to return to work.
Respondent contends that the permanent replacements
were hired before the Union’s return offer, legitimizing the
failure to reinstate. Counsel for the General Counsel now
concedes that this was so in 7 instances, reducing to 45 the
strikers unlawfully denied reinstatement.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Even though a new agreement had not been reached.
2 The 13: G. A. Alvarez, T. Q. Bui, C. R. Chea, R. J. Cordes, S. D.
Cullinan, S. M. Fallis, K. J. Hoang, S. L. Johnson, P. N. Kongvongsai, S. L.
Layton, H. P. Nguyen, C. A. Porter, and V. V. Than. The seven: Alvarez,
Chea, Cordes, Cullinan, Kongvongsai, Layton, and Porter.
The complaint further alleges that Respondent, by Russell
Smith, manager of machining, violated Section 8(a)(1) by
telling certain strikers on August 14, 1987, that they ‘‘had
to resign from the Union . . . to return to work.’’ Respond-
ent denies that this happened.
I. JURISDICTION
Respondent manufactures turbine engines in San Diego. It
inarguably is an employer engaged in and affecting com-
merce within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
That the Union is a labor organization within Section 2(5)
of the Act likewise is unquestioned.
III. THE ALLEGED MISCONDUCT
A. The Failure of Reinstate Strikers
1. Evidence
The Union represents Respondent’s several hundred pro-
duction and maintenance employees. On July 13, 1987, with
the expiration of the 1984–1987 bargaining agreement cover-
ing those employees, they struck in aid of the Union’s posi-
tion in the negotiation of a new agreement. The strike contin-
ued until about noon of August 15, when the strikers voted
to return to work.1 Between approximately 2 and 2:35 that
afternoon, a Saturday, the Union informed Respondent by
various means—hand-delivered letter, telephone, Western
Union Mailgram—of the strikers’ readiness to return.
The letter, addressed to Respondent’s manager of labor re-
lations, P. E. Boehmke, and signed by the Union’s business
representative, Matthew McKinnon, was left by McKinnon
with a security officer at the gate of Respondent’s Kearney-
Mesa plant. It stated:
This letter serves to advise Respondent that the Union
is unconditionally offering to return to work effective
immediately. Employees represented by the Union will
report to work on Monday.
The telephone message, from McKinnon to Respondent’s
director of industrial relations, Bernard Theule, was to the
same effect; and the Mailgram, from McKinnon to Theule
and Boehmke, was nearly identical to the letter.
Meanwhile, having advertised in the San Diego news-
papers that it was seeking permanent replacements for the
strikers, Respondent interviewed a number of applicants in a
San Diego hotel on August 12. Over 50 were offered and ac-
cepted permanent employment that day, whereupon they
were assigned an employee badge number, a job classifica-
tion, and a department.
On August 12, as well, Respondent told the would-be re-
placements that they would have to submit to a physical ex-
amination and pass a drug screening test before starting to
work; and they were required to sign a so-called consent
form for preemployment alcohol, drug, and substance screen-
ing. This form stated in part:
I . . . understand that my refusal to sign this form con-
stitutes a violation of Solar’s Substance Abuse Policy,
and for that refusal I will not be considered for and
knowingly waive any possibility of employment with
Solar Turbines Incorporated.
Respondent’s Policy Manual and a brochure it gives pro-
spective employees both state that it ‘‘will utilize pre-em-
ployment screening practices . . . to prevent the hiring of in-
dividuals whose use of alcohol or drugs would impair job
performance’’; that ‘‘an applicant’s consent . . . to such a
test is required as a condition of employment’’; and that
‘‘applicants who refuse to consent to pre-employment drug-
alcohol testing will not be employed.’’
The would-be replacements submitted to physical exam-
ination and drug/alcohol testing from August 13 through 21.
Thirteen of the successful applicants underwent these proce-
dures before the Union’s return offer, although the issuance
of passing laboratory reports preceded the offer as concerns
only seven.2 Some did not pass the drug test, and so did not
go to work. The applicants were not paid for time being ex-
amined and tested, nor for attending a several-hour orienta-
tion meeting the morning of August 15.
Replacements first began working on Monday, August 17,
when 12 reported. Another 12 reported on August 20, fol-
lowed by 20 on August 24, 6 on August 27, and 2 on August
31.
Respondent sought no replacements after August 12, hav-
ing heard that the strike likely would end soon.
Respondent implemented its final contract offer on July
27, 1987. Among its provisions is a requirement that it give
the Union its reasons, in writing, for terminating any unit
employee. It did not observe this requirement as concerns
would-be replacements denied a place on the payroll because
of drug screening. Theule testified that this was because
those not yet on the payroll are not subject to the grievance
procedure. He conceded, however, that Respondent deems
the requirement applicable to the discharge of probationary
employees, even though they likewise are not grievance eli-
gible.
The record contains no intimation that Theule said any-
thing about the hire of replacements when McKinnon called
him on August 15 with the offer to return, or that he said
anything of that nature the next day, when he and McKinnon
talked twice more, although he did say on August 16 that
300 to 400 strikers would have to be laid off because of a
lack of openings. Theule apparently first broached the subject
of permanent replacements during a negotiating session on
August 17, when he proposed that the Union acquiesce in
Respondent’s retention of 64 replacements as part of a strike-
settlement agreement.
2. Discussion
The Supreme Court stated in NLRB v. Fleetwood Trailer
Co.:
If, after conclusion of the strike, the employer refuses
to reinstate striking employees, the effect is to discour-
19SOLAR TURBINES
3 389 U.S. 375, 378 (1967).
4 Id. at 379.
5 Home Insulation Service, 255 NLRB 311, 312 fn. 9 (1981).
6 H. & F. Binch Co., 188 NLRB 720, 723 (1971).
7 Ibid.
8 Belknap, Inc. v. Hale, 463 U.S. 491, 504 fn. 8 (1983). Footnote 8 states:
‘‘That the offer and promise of permanent employment are conditional does
not render the hiring any less permanent if the conditions do not come to pass.
All hirings are to some extent conditional.’’ Respondent, urging an expansive
reading of this language, argues that it settles the present case in its favor.
The Board takes a narrower view, limiting its application to the circumstances
addressed by the Court—namely, offers of permanent employment ‘‘subject to
such conditions subsequent’’ as a Board order or a strike-settlement agreement.
Hansen Bros. Enterprises, 279 NLRB 741, 741 fn. 6 (1986).
9 Cf., NLRB v. Cutting, Inc., 701 F.2d 659 (7th Cir. 1983). The court, con-
cluding that the replacement of the strikers was timely, did not analyze the
requirement that the replacements pass a physical. The decision reveals, how-
ever, that the replacements could begin working before taking the examination.
Id. at 665.
10 Kansas Milling Co., 97 NLRB 219, 226 (1951).
11 The 13 are identified in fn. 2, supra.
12 I disagree with counsel for the General Counsel that only the seven whose
passing laboratory reports preceded the Union’s offer warrant this treatment.
The other six, by submitting to all the underlying procedures, had done all
in their power to remove the contingencies as applied to them. To hinge their
fate at that point on the accident of when a laboratory report might issue
would exalt the arbitrary. I submit that the better approach, borrowing from
Kansas Milling Co., fn. 10, supra, is to treat them as ‘‘potentially permanent’’
pending a favorable laboratory report; then, upon the report’s issuance, as per-
manent from time of the underlying procedures.
age employees from exercising their rights to organize
and to strike guaranteed by . . . the Act. [I]t is an un-
fair labor practice to interfere with the exercise of these
rights. Accordingly, unless the employer who refuses to
reinstate strikers can show that his action was due to
‘‘legitimate and substantial business justifications,’’ he
is guilty of an unfair labor practice. . . . The burden
of proving justification is on the employer.3
The Court added:
In some situations, ‘‘legitimate and substantial business
justifications’’ for refusing to reinstate employees who
engaged in an economic strike have been recognized.
One is when the jobs claimed by the strikers are occu-
pied by workers hired as permanent replacements dur-
ing the strike.4
With regard to when permanent replacement occurs, the
Board takes the view that ‘‘striker replacement applicants
. . . obtain the status of striker replacement upon their ac-
ceptance of offers of permanent employment.’’5 That is:
If the employer makes a commitment to the applicant
for the striker’s job, the Board will normally regard that
commitment as a legitimate replacement even though
the striker requests reinstatement before the replacement
actually begins to work.6
The Board cautions, however, that ‘‘the question of what
constitutes a real commitment will . . . vary with the cir-
cumstances of each situation . . . . ’’7
Respondent contends that the requisite commitment was
made August 12, coincident with the applicants’ acceptances
of its offers of permanent employment. Counsel for the Gen-
eral Counsel maintains, on the other hand, that the outstand-
ing contingencies concerning physical examinations and
drug/alcohol testing deferred commitment, and thus replace-
ment, until those contingencies were removed—which to his
thinking happened before the Union’s return offer only as to
the seven whose passing laboratory reports by then had
issued.
An employer can condition its offer to striker-replacements
in some respects without defeating the then-and-there suffi-
ciency of its commitment. Thus, its qualifying of the offer
to allow for the eventuality of a strike-settlement agreement
or a Board order requiring the reinstatement of strikers does
not render the offer deficient.8 Nor, apparently, does a re-
quirement that the replacements pass a physical examina-
tion—if the examination is not a condition precedent to their
starting work.9 Further, the imposition of the usual new-hire
probationary period on replacements does not preclude per-
manence from the outset, the Board deeming the replace-
ments in that circumstance to be ‘‘potentially permanent’’
pending successful completion of the probationary period, at
which time they become permanent ‘‘ab initio.’’10
In the present situation, unlike the foregoing, the contin-
gencies attending Respondent’s offers to the would-be re-
placements were such that they could not start to work be-
fore the contingencies’ removal. This suggests—although
none of the parties has cited a case in point, nor have I found
any—that the August 12 offers and acceptances were less
than ‘‘a real commitment’’ of the sort demanded by the
Board.
The absence of a real commitment, pending removal of the
contingencies, is indicated, moreover, by the previously
quoted extracts from Respondent’s drug/alcohol testing con-
sent form, from its Policy Manual, and from the brochure it
gives prospective employees, all of which betray Respond-
ent’s view of the testing as a prehire procedure. Revealing,
as well, that Respondent did not see itself as having made
a real commitment on August 12 was Theule’s failure to
mention the hiring of replacements in his conversations with
McKinnon on August 15 and 16, even though they dealt spe-
cifically with the strikers’ return; and Respondent’s failure to
treat those would-be replacements who failed the
drug/alcohol test as subject to its termination-notice obliga-
tion to the Union.
I conclude, in sum, that the offers and acceptances of Au-
gust 12 did not then effect the permanent replacement of any
strikers. I further conclude that the 13 successful applicants
who underwent physical examination and drug/alcohol test-
ing before the Union’s return offer11 had effectively removed
the contingencies attached to their hire, thus becoming lawful
permanent replacements.12 I conclude, finally, that Respond-
ent failed to prove that the other 39 permanent replacements
became so before the Union’s offer; and that Respondent
therefore violated Section 8(a)(3) and (1) by failing to rein-
state the strikers they replaced.
B. Russell Smith’s Remarks
1. Evidence
Emanuel Coscia and Arthur Pucci are machinists for Re-
spondent, and were strike participants.
On August 14, 1987, Bill Clauson, a nonsupervisory engi-
neer for Respondent, told them by telephone that they would
be permanently replaced if they did not return to work that
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Theule, as previously noted, is Respondent’s director of industrial rela-
tions.
14 Specific identification of the 39 discriminated-against strikers is left to the
compliance phase of this proceeding.
15 All outstanding motions inconsistent with this recommended Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
day. Coscia testified that Clauson told him, as well, that he
would have ‘‘to have a letter of resignation from the Union’’
when he reported. Coscia and Pucci went to the plant follow-
ing their conversations with Clauson, where they had an ex-
change at the gate with Smith, Respondent’s manager of ma-
chining.
Coscia testified that he began the exchange with Smith by
saying he had received a call from Clauson ‘‘about coming
to work by today and having a letter of resignation from the
Union’’; then asked Smith what was going on. Smith replied,
according to Coscia, ‘‘Well, the only thing I can tell you is,
come Monday, there might not be any jobs.’’ Coscia coun-
tered, so he related, ‘‘You can’t put a gun to my head to
come to work, so I’ll just have to wait til Monday.’’ With
that, Coscia concluded, Pucci and Smith ‘‘got into it.’’
Pucci testified that Smith told him:
Well, if you want your job, you must go to the union
hall, resign from the Union, and bring that letter of res-
ignation back to Smith prior to the end of the shift.
Pucci assertedly responded that he would not do that, but
that the members would be voting whether to end the strike
the following day. Smith came back, according to Pucci, that
that ‘‘didn’t matter’’—that Pucci would ‘‘have to resign’’
from the Union if he wanted his job.
Smith recalled the encounter and its prelude quite dif-
ferently. He testified that Pucci telephoned him earlier on
August 14, asking if Respondent was ‘‘hiring people’’ and
if he would ‘‘have to resign from the Union’’ to regain his
job. Smith answered yes to the first question, he testified,
and no to the second, adding ‘‘That’s your decision to
make.’’
Smith recounted that the ensuing conversation at the plant
included employee Lenny Colbert, as well as Coscia and
Pucci, and went like this:
It started out by Pucci asking if we were hiring, and
did he have to resign from the Union. Of course I told
him no, that’s his decision to make. He asked me if we
were hiring. I said yes, we were hiring. And he asked
me, when does he have to come to work . . . to be
sure that he’s guaranteed of a job, and I says ‘‘Art, I
can’t guarantee you a job unless you come to work
now,’’ which was immediately.
Then the questioning started all over again, going the
same context. I says: ‘‘Wait a minute. Let’s end this
because we’re going over the same grounds again. If
you have any further question’’—I referred him to call
Bernie Theule, and I gave him the number.13
Smith testified that neither Coscia nor Colbert spoke during
this encounter.
Smith denied telling Pucci, or anyone else, ‘‘that . . . to
come to work . . . he would have to submit a resignation
letter to the Union.’’
By letter to the unit employees dated July 14, purporting
‘‘to clarify information regarding a union member’s right to
work in the event of a strike,’’ Theule stated in part:
Under the National Labor Relations Act, represented
employees have the right to resign from their union.
[Y]ou have the right to resign at any time and you can-
not be fined for reporting to work during a strike as
long as you resign before reporting to work. . . .
Whether or not you choose to resign from the Union
is strictly your decision. It will have no effect on your
employment status at Solar.
2. Conclusion
I credit Smith’s version of the encounter in question, to-
gether with his specific denial that he said anything approxi-
mating the allegedly unlawful remarks attributed to him. Not
only was his demeanor convincing, but I think it unlikely
that he would express a position so at odds with Theule’s
July 14 letter. Coscia and Pucci, moreover, did not corrobo-
rate one another in critical detail, nor did their demeanor
evince conviction.
I conclude, therefore, that Smith did not violate Section
8(a)(1) as alleged.
CONCLUSIONS OF LAW
1. By failing and refusing to reinstate 39 economic strikers
immediately on the Union’s August 15, 1987 offer on their
behalf to return to work, Respondent violated Section 8(a)(3)
and (1) of the Act.
2. Respondent did not otherwise violate the Act as alleged.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having unlawfully failed and refused to rein-
state 39 economic strikers immediately on the Union’s un-
conditional offer on their behalf to return to work, I shall
recommend that it be ordered to reinstate them to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.14 I shall
further recommend that it be ordered to make them whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Under New Hori-
zons, interest is computed at the ‘‘short term Federal rate’’
for underpayment of taxes as set out in the 1986 amendment
to 26 U.S.C. § 6621.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
21SOLAR TURBINES
16 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ORDER
The Respondent, Solar Turbines, Incorporated, Subsidiary
of Caterpillar Inc., San Diego, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate economic strikers who
have unconditionally offered to return to work to their
former or substantially equivalent positions, where those po-
sitions were not timely filled by permanent replacements and
absent any other legitimate and substantial business justifica-
tion for failing and refusing to do so.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the 39 economic strikers on whose behalf the
Union offered to return to work, and whose positions were
not timely filled by permanent replacements, immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the remedy sec-
tion of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(c) Post at its San Diego, California facilities copies of the
attached notice marked ‘‘Appendix.’’16 Copies of the notice,
on forms provided by the Regional Director for Region 21,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER RECOMMENDED that the allegation found to
be without merit is dismissed.
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.
WE WILL NOT fail and refuse to reinstate economic strikers
who have unconditionally offered to return to work to their
former or substantially equivalent positions, where those po-
sitions were not timely filled by permanent replacements and
absent any other legitimate and substantial business justifica-
tion for failing and refusing to do so.
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 offer the 39 economic strikers on whose behalf
the Union offered to return to work, and whose positions
were not timely filled by permanent replacements, immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges pre-
viously enjoyed, and WE WILL make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them.
SOLAR TURBINES INCORPORATED, SUBSIDIARY
OF CATERPILLAR INC.