Aqua-Chem, Inc.,

National Labor Relations Board - Board Decisions

May 26, 1988

288 N.L.R.B. 1108 (N.L.R.B. 1988)

1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Aqua-Chem, Inc., Cleaver Brooks Division and
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO. Case 26-CA-9795
May 26, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On June 10, 1983, Administrative Law Judge
Phillip P. McLeod issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed cross-excep-
tions and a supporting brief, and an answering
brief.
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, findings,' and
conclusions 2 as modified herein.
The judge concluded that the Respondent had
violated Section 8(a)(3) by maintaining and enforc-
ing a policy which discriminated against certain un-
reinstated strikers in the filling of postlayoff vacan-
cies. For the reasons set out below, we agree that
the Respondent violated the Act in recalling laid-
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are mcorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Contrary to the judge's statements in sec. III,B of his decision, the Re-
spondent's manufacturing manager, Neil Bone, did not characterize em-
ployee Rosemary Taylor as an unreinstated striker, and there is no evi-
dence that the Respondent did not have Taylor's correct address. The
record shows only that Taylor did not return to work after the Respond-.
ent attempted to recall her.
Moreover, contrary to the judge's further statement in sec. III,B, the
record shows that the Respondent stipulated that there were employees
on the unremstated striker list who were "qualified to perform the jobs of
certain of the laid off employees, striker replacements." These inadvert-
ent errors are insufficient to affect the results of our decision.
2 In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(1) by its August 1982 letter to unremstated strikers threatening cutoff
of reemployment rights should they fail to furnish written notice within 5
days of intention to retain these nghts, we rely solely on the fact that the
threat of termination was contained only in the letters to unreinstated
strikers and not in similar letters it sent to laid-off striker replacements.
Accordingly, we find it unnecessary to rely on the judge's discussion of
Charleston Nursing Center, 257 NLRB 554 (1981), for the proposition that
an employer may never require replaced strikers to respond to such a re-
quest at the risk of losing reinstatement rights
We shall dismiss the allegations that this conduct also was violative of
Sec. 8(a)(3) and (5) We note the absence of any evidence that the Re-
spondent adversely altered the reinstatement rights of the strikers who
did not respond to the letter and the absence of any evidence that the
Respondent unilaterally changed their terms and conditions of employ-
ment.
off striker replacements over more senior unrein-
stated strikers in May-August 1982.
Regarding the May-August 1982 recalls from
layoff, we note that the Respondent's production
and maintenance employees commenced an eco-
nomic strike in March 1980. In April 1980, the Re-
spondent began hiring permanent replacements for
its striking employees. The strike ended in August
1980 when the Respondent executed a new collec-
tive-bargaining agreement which included a strike
settlement agreement. The agreement provided, in
pertinent part, that the strikers were deemed to
have made an unconditional offer to return to
work and that they would be returned to work as
job vacancies occurred. At the time, the Respond-
ent had some 94 employees, composed of 69 per-
manent striker replacements and 25 former strikers
who had abandoned the strike. In December 1981,
the parties negotiated a new collective-bargaining
agreement and, while the provisions were not in-
cluded in the later contract, they agreed to abide
by the provisions of the earlier agreement pertain-
ing to the reinstatement rights of strikers. Since the
end of the strike and through the hearing before
the judge, several replacements had terminated
their employment and the Respondent had recalled
strikers to replace them. The Respondent has not
hired any new employees.
In March 1982, the Respondent had a work
force of 88 employees. It then laid off 15 employ-
ees, 14 of whom were striker replacements. In May
1982, it laid off another employee. There had been
no layoffs at the Respondent's facility since 1973,
except for one brief layoff 6 or 7 years before. At
the time of the March 1982 layoff, the Respond-
ent's manufacturing manager, Neil Bone, advised
the employees in a group that owing to a lack of
work they were being laid off. He said that their
life insurance would be canceled on March 26 and
their medical insurance would be canceled after
April 30; he advised the employees to look for an-
other job or put in for unemployment; and he said
that the layoff was for an indefinite period. On the
same date as the group meeting, the Respondent
sent letters signed by Fabrication Foreman Ken
Stokes to the employees to be laid off indicating
that "due to the current economic business condi-
tions, the [Respondent] is forced to reduce its work
force." The letter then noted the upcoming cancel-
lations of various insurance coverage and conclud-
ed: "Please make sure that your current address on
file is your correct address as your last paycheck
and any recall correspondence will be mailed to
the address on file." It also indicated that "[the Re-
spondent] will make every effort to return you to
work as soon as possible. If you have any ques-
288 NLRB No. 121
AQUA-CHEM, INC. 1109
tions, please contact me." Bone testified that he
had participated in the decision to lay off employ--
ees in March 1982 and that he did not know at the
time the decision was made how long the layoff
would last because the economic situation was bad.
Bone testified at the hearing in November 1982
that there had not been too much change since the
layoffs.
In May 1982, however, the Respondent began
recalling certain employees from layoff. It recalled
one employee, who was a striker replacement, in
May; it recalled another employee in July and two
in August. Of the three recalled in July or August,
two were striker replacements. It then laid off an-
other employee in October. In recalling the em-
ployees, the Respondent did not consider recalling
any of the remaining unreinstated strikers. The Re-
spondent took the position that its layoff of re-
placements did not create any vacancies to which
the unreinstated strikers were entitled to be re-
called. Alternatively, the Respondent contended
that even if the layoffs did create vacancies, the
Union had waived the strikers' rights to recall to
their positions in the strike settlement agreement.
The judge concluded that the Respondent had
violated Section 8(a)(3) by maintaining and enforc-
ing a policy which effectively afforded replace-
ments superseniority over unreinstated strikers. The
judge noted that economic strikers who have been
permanently replaced but who unconditionally
offer to return to work are entitled to be reinstated
upon the departure of the replacements. Laidlaw
Corp., 171 NLRB 1366 (1968). 3 The judge found
that the replacements' layoff for a prolonged, in-
definite period did constitute their departure from
the Respondent. Accordingly, he found that the
later reopening of positions constituted vacancies
to which the unreinstated strikers were statutorily
entitled to be recalled over less senior laid-off re-
placements. He distinguished this case from Ban-
croft Cap Co., 245 NLRB 547 (1979), in which po-
sitions opening up after certain layoffs were found
not to be "vacancies" which the employer was ob-
ligated to offer to unreinstated strikers. The judge
noted that the layoffs at issue in Bancroft were of
short duration and due to a shortage of material,
hence not resulting in the "departure of replace-
ments." It was thus distinguishable from the instant
case in which, he concluded, the layoffs were pro-
longed and for an indefmite period leading, in the
judge's estimation, to the "departure of replace-
ments" under Laidlaw. The judge further rejected
the Respondent's contention that, in the strike set-
tlement agreement, the Union had waived the strik-
Enfd. 414 F.2d 99 (7th cir. 1969), cert. denied 397 U.S. 920 (1970).
ers' rights to recall in these circumstances. The
judge noted that in negotiating that agreement the
parties had not discussed the recall rights of unreim-
stated strikers in the event that the replacements
were laid off.
As noted above, we agree with the finding of a
violation but we do so for the following reasons.
We note initially that we disagree with the judge's
analysis of this issue insofar as he reasoned that an
economic layoff of permanent replacements for a
prolonged indefinite period is per se a vacancy that
triggers the unreinstated strikers' Laidlaw rights.4
In this regard, we find that this analysis fails to sat-
isfactorily take into account the employer's right to
permanently replace economic strikers and to
assure the replacements of the permanency of their
positions. NLRB v. Mackay Radio & Telegraph Co.,
304 U.S. 333 (1938). A replacement could hardly
be called "permanent" were we to find that every
layoff for an indefinite period creates a vacancy
which activates a striker's reinstatement rights. See
Giddings & Lewis, Inc. v. NLRB, 675 F.2d 926
(1982), denying enf. 255 NLRB 93 (1981).
On the other hand, a strike also does not termi-
nate the employment relationship of a striker.
Thus, Section 2(3) of the Act provides that an indi-
vidual whose work ceases as a result of a labor dis-
pute remains an employee if he has not obtained
any other regular or substantially equivalent em-
ployment. Clearly, replaced economic strikers who
unconditionally offer to return to work are entitled
to reinstatement upon the departure of replace-
ments unless the former strikers have acquired reg-
ular and substantially equivalent employment or
the employer can sustain its burden of proving that
its failure to offer reinstatement was for legitimate
and substantial business reasons. Laidlaw, supra.
Thus, the key question presented in cases involving
the layoff of permanent replacements is whether
the layoff in fact signified the departure of the re-
placements under Laidlaw with the consequent cre-
ation of a vacancy which triggers the strikers'
rights to reinstatement when the vacated position
again opens up. This issue appears to be an open
question 3 which we resolve today in the following
manner.
We find that the proper resolution of the ques-
tion of whether the layoff of a permanent replace-
ment signifies the departure of the replacement
under Laidlaw must be achieved by properly bal-
4 For the reasons relied on by the judge, we agree with his conclusion
that the Union did- not waive. the strikers' recall rights in the strike settle-
ment agreement.
5 See, e.g., Medallion Kitchens, 275 NLRB 58 fn. 2 (1985), enfd. 806
F.2d 185 (8th Cir. 1986). There is some brief discussion of the issue at fn
1 of Bancroft Cap, supra.
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ancing each of the rights identified above. As
noted by the Supreme Court in discussing a related
issue in NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378 (1967): "It is the primary responsibility of
the Board . . , to 'strike the proper balance be-
tween the asserted business justifications and the in-
vasion of employee rights in light of the Act and
its policy." (Quoting NLRB v. Great Dane Trailers,
388 U.S. 26 (1967).) We find that such a balance
can be struck in the following fashion. When it is
alleged that an employer has violated Section
8(a)(3) by recalling laid-off permanent replacements
ahead of unreinstated strikers, we shall require the
General Counsel to first establish a prima facie case
that the layoff truly signified the departure of the
replacements under Laidlaw and thus created va-
cancies to which the unreinstated strikers were en-
titled to be recalled. In this regard, the General
Counsel will be required to show that a strike has
occurred; that the strikers have made an uncondi-
tional offer to return to work; that a layoff of per-
manent striker replacements has occurred; that the
replacements were recalled from layoff instead of
the former strikers; and that, based on objective
factors, the laid-off permanent replacements had no
reasonable expectancy of recall. Cf. Bancroft Cap
Co., 245 NLRB 547 fn. 1. The objective factors rel-
evant to the replacements' reasonable expectancy
of recall would include, inter alia, evidence con-
cerning the employer's past business experience,
the employer's future plans, the length of the
layoff, the circumstances of the layoff, and what
the employee was told regarding the likelihood of
recall. See, e.g., Atlas Metal Spinning Co., 266
NLRB 180 (1983); Bancroft Cap, supra. Once the
General Counsel has established a prima facie case
that a Laidlaw vacancy exists to which the striker
is entitled, the burden shall shift to the employer to
show that in fact no such Laidlaw vacancy oc-
curred or that its failure to recall the striker was
otherwise based on legitimate and substantial busi-
ness justifications, such as those identified in
Fleetwood Trailer, supra, 389 U.S. at 379. In this
fashion, we shall properly balance the strikers'
Laidlaw rights against the employer's Mackay
rights. 6 We do not deem the burden placed on the
6 Our concurring colleague disagrees with our analysis and would allo-
cate the parties' respective burdens differently In this regard, he would
not require the General Counsel to establish the existence of a vacancy as
an element of the violation alleged, but would require that the employer
prove that a vacancy did not exist as justification for failing to recall a
stnker. Contrary to our colleague's contention, neither Laidlaw nor
Fleetwood Trailer supports the allocation of burdens m this fashion. Both
cases are factually distinguishable, and neither addresses the precise ques-
tion presented here, i.e., whether the layoff of a permanent replacement
creates a vacancy to which an unremstated striker must be recalled upon
the employer's restaffing the position In both LauIlaw and Fleetwood
Trailer, "vacancies" clearly existed and, accordingly, the respective em-
ployers could not lawfully engage new hires rather than recall their un-
General Counsel to be inconsistent with the Laid-
law principle that an economic striker who has
been permanently replaced but who unconditional-
ly offers to return to work is entitled to be reinstat-
ed upon the departure of a striker replacement. We
do conclude that to activate that right the General
Counsel must present a prima facie case that the re-
placement's departure has created such a Laidlaw
vacancy.
Turning to the case at hand, we find that the
General Counsel has established a prima facie case
that the Respondent's March 1982 layoff of the re-
placements created vacancies to which the unrein-
stated strikers were entitled to be recalled when
the positions subsequently opened up. Thus, we
conclude that the General Counsel has met the
burden of establishing that those laid off had no
reasonable expectancy of recall when laid off. In
this regard, we note that employees were advised
that the layoff was due to a lack of work and was
for an indefinite period, that their insurance bene-
fits were to be canceled, and that they should look
for another job or apply for unemployment com-
pensation. We find that this evidence establishes
that, based on objective factors, those laid off had
no reasonable expectancy of recall at the time of
the layoff. See, e.g., High Energy Corp., 259 NLRB
747, 761-762 (1981). We acknowledge that the Re-
spondent mailed a letter to those laid off indicating
that the Respondent would make every effort to
return them to work as soon as possible. We do
not, however, view this vague representation as
sufficient to undermine the evidence noted above
establishing that those laid off did not have a rea-
sonable expectancy of recall. Tomadur, Inc., 196
NLRB 706 (1972).
We thus conclude that the General Counsel has
established a prima facie case that the layoff cre-
ated Laidlaw vacancies to which the unreinstated
strikers were entitled. Accordingly, the Respondent
is obliged to show that no Laidlaw vacancy oc-
curred or that its failure to recall the strikers was
based on legitimate and substantial business justifi-
cation. We note that the Respondent has argued
only that the Union waived the strikers' rights to
reinstatement. In these circumstances, we conclude
reinstated strikers absent legitunate and substantial justification. (We of
course retain the Fleetwood rule that the initial burden is on the employer
to show that the replacements in question were in fact permanent.) Our
colleague points out that an employer generally will have superior
knowledge of the facts underlying its layoff of replacements We ac-
knowledge that this is so, but find it insufficient to warrant allocating the
burdens as our colleague would do. In this regard, we note that virtually
every respondent in every unfair labor practice case may have superior
initial knowledge of the facts underlying its actions which are alleged to
be in violation of the Act. This, however, never relieves the General
Counsel of her burden of establishing all elements of the violation al-
leged.
AQUA-CHEM, INC.
that the Respondent has not met its burden. 7 Ac-
cordingly, we agree with the judge's conclusion
that the Respondent has violated Section 8(a)(3) by
recalling replacements before um-einstated strikers.
ORDER
The National Labor Relations Board orders that
the Respondent, Aqua-Chem, Inc., Cleaver Brooks
Division, Greenville, Mississippi, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate Henry Holmes and
other unreinstated strikers to their former or sub-
stantially equivalent positions when jobs were
available following their unconditional application
to return to work.
(b) Threatening to terminate the recall rights of
economic strikers if they fail to renew their request
for reinstatement.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Henry Holmes and any other tuirein-
stated strikers who have been denied reinstatement
to positions available following their unconditional
applications to return to work, immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make whole Henry Holmes and any other
unreinstated strikers who have been denied rein-
statement to available positions following their un-
conditional applications to return to work for any
loss of earnings and other benefits suffered as a
result of the discrimination against them by pay-
ment to each of them of a sum of money equal to
the amount he/she normally would have earned
from the date of the discrimination to the date of
Respondent's offer of reinstatement, less net interim
earnings, with backpay to be computed in the
manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded. 8
7 As noted, we agree with the judge's conclusion that the Union did
not waive the strikers' recall nghts.
8 In accordance with our decision m New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective dab- of the 1986
amendment to 26 U.S C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Greenville, Mississippi facility
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER JOHANSEN, concurring.
I agree with my colleagues that the Respondent
unlawfully denied recall to unreinstated strikers
ahead of laid-off striker replacements in violation
of Section 8(a)(3) and that its August 1982 letter to
the strikers further violated Section 8(a)(1). I write
separately, however, to express my disagreement
with a test that places the burden of proving "va-
cancies" on the General Counsel where it is shown
that the striker replacements have been placed on
prolonged and indefinite layoff and the strikers
have unconditionally offered to return to work.
As the Supreme Court has explained in NLRB v.
Fleetwood Trailer Co.,' if an employer refuses to re-
instate striking employees after they have uncondi-
tionally offered to return to work,
the effect is to discourage employees from ex-
ercising their rights to organize and to strike
guaranteed by [Sections] 7 and 13 of the Act.
. . . Accordingly, unless the employer who re-
fuses to reinstate strikers can show that his
action was due to "legitimate and substantial
business justifications," he is guilty of an unfair
labor practice.
Thus, recognizing the potential for deleterious con-
sequences to the exercise of fundamental Section 7
9 If this Order is enforced by a judgment of a United States court of
appeals, the words m the notice reading "Posted by Order of the Nation-
al 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."
389 U.S. 375, 378 (1967), quoting NLRB v Great Dane Trailers, 388
U.S. 26, 34 (1967).
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rights, the Court and the Board have consistently
placed the burden on the employer to show that its
replacements are permanent. Both Fleetwood and
Laidlaw Corp., 171 NLRB 1366 (1968), hold that a
former striker's "right to the job does not depend
on its availability at . . . application, and the strik-
ers are entitled to reinstatement absent substantial
business justification. . . ." 2 Further, the Court has
specifically rejected the notion that it is the Gener-
al Counsel's burden
to show "that the jobs of complainants ha[ve]
not been absorbed or that they are still avail-
able." Such proof is not essential to establish
an unfair labor practice. It relates to justifica-
tion and the burden of such proof is on the
employer.3
In the face of precedent plainly establishing that
"[t]he burden of proving justification is on the em-
ployer," 4 the majority requires the General Coun-
sel to establish as part of her prima facie case that
replacements have departed without reasonable ex-
pectancy of recall. This requirement is said to be
based on an accommodation of the employer's
right to assure permanency to its replacements
under the Mackay Radio doctrine. 5 First, nothing
in Mackay Radio suggests that striker replacements
should be extended assurances of permanency supe-
rior to those accorded other employees subject to
layoff. such as nonstriking employees or reinstated
strikers.
Second, this allocation of burdens disregards the
fundamental evidentiary principle that "the burden
of proving a fact is said to be put on the party who
presumably has peculiar means of knowledge ena-
bling him to prove its falsity if it is false." Wheth-
er a striker's job has been filled by a permanent re-
placement and whether the layoff of that replace-
ment has created a vacancy are, ultimately, ques-
tions of fact. The relevant facts are peculiarly
within the knowledge of the employer and the re-
placement, both of whom are allied in interest
against the General Counsel. The strength of their
alliance is borne out in a number of Board deci-
sions 7 and calls into question the inherent reliabil-
2 Laidlaw, 171 NLRB at 1369 (emphasis in original).
3 Fleetwood, supra at 378, fn 4, quoting NLRB v. Great Dane Trailers,
supra at 34.
4 Id. at 378
5 NLRB v. Mackay Radio & Telegraph Co., 304 US 333 (1938).
6 Wigmore 9 Evidence § 2486 (Chadbourn rev 1970)
7 See, e g., Ace Drop Cloth Co. 178 NLRB 664 (1969) (employer's
claim rejected that a vacancy was temporary where replacement on ma-
ternity leave expressed no intentions to return to work), Wisconsin Pack-
ing Co., 231 NLRB 546 (1977) (employer's claim rejected that terminated
replacements whom it contacted to fill vacancies instead of unremstated
strikers were on "leaves of absence")
ity of the evidence on which the majority asserts it
would rely to establish whether the General Coun-
sel's burden has been met—i.e., evidence of what
the replacement was told bearing on the reason-
ableness of his expectancy of recal1.5
Twenty-five years ago, the Court in NLRB v.
Erie Resistor, 9 declined to extend its holding in
Mackay Radio to sanction superseniority for striker
replacements, deferring there to the "generous in-
terpretation" of the right to strike Congress ex-
pressed in Section 13 of the Act:i°
[A] strike when legitimately employed is an
economic weapon which in great measure im-
plements and supports the principles of the
collective bargaining system.11
Because the reallocation of burdens set forth in the
majority opinion will disturb the balance of the
economic weaponry established by Congress and
preserved in Court and Board opinions defining the
rights of strikers and their replacements, I cannot
accept their analysis.
3 In contrast, no such motivation affects the reliability of this evidence
when it is submitted to support the determination of voting eligibility of
laid-off employees in a Board election. See, e.g , Higgins,. Inc., 111 NLRB
797, 799 (1955).
373 US. 221 (1963).
10 Id. at 234
" Id.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to reinstate Henry Holmes
and other unreinstated strikers to their former or
substantially equivalent positions when jobs are
available following their unconditional application
to return to work.
-
AQUA-CHEM, INC. 1113
WE WILL NOT threaten to terminate the recall
rights of economic strikers if they fail to renew
their request for reinstatement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Henry Holmes and any other un-
reinstated strikers who have been denied reinstate-
ment to positions available following their uncondi-
tional application to return to work immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions without prejudice to their seniority and
other rights and privileges, and WE WILL make
them whole for any loss of earnings or benefits suf-
fered by reason of the discrimination against them
less any net interim earnings, plus interest,
AQUA-CHEM, INC., CLEAVER BROOKS
DIVISION
Karen M. Clayborne, Esq., for the General Counsel.
James F. Honzik, Esq. (Lindner, Honzik, Marsack,
Hayman & Walsh), of Milwaukee, Wisconsin, for the
Respondent.
Curtis Orman, of West Point, Missouri, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLEota, Administrative Law Judge. This
case was heard before me on November 3 and 4, 1982, in
Greenville, Mississippi. It originated from a charge filed
on July 23, 1982, and later amended on August 31, 1982,
in the above-captioned case against Aqua-Chem, Inc.,
Cleaver Brooks Division (Respondent), by International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, AFL-CIO (the Union).
On September 9, 1982, a complaint and notice of hear-
ing issued alleging that Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
In its answer to the complaint, Respondent admitted cer-
tain allegations, including the filing and serving of the
charge, its status as an employer within the meaning of
the Act, the status of the Charging Party as a labor orga-
nization within the meaning of the Act, and various facts
regarding the history of collective bargaining between
Respondent and the Union. Respondent denies having
engaged in any conduct that would constitute an unfair
labor practice.
At the trial all parties were represented and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence. Fol-
lowing the close of the trial, both Respondent and the
General Counsel filed timely briefs, which have been
duly considered.
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and Respondent admits, that
Aqua-Chem, Inc., Cleaver Brooks Division is a corpora-
tion with an office and facility in Greenville, Mississippi,
where it is engaged in the manufacture of boilers. In the
course and conduct of its business, Respondent annually
sells and ships from its Greenville facility products,
goods, and materials valued in excess of $50,000 directly
to points located outside Mississippi. Respondent also an-
nually purchases and receives at its Greenville, Mississip-
pi facility products, goods, and materials valued in excess
of $50,000 directly from points located outside Mississip-
pi.
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act,.
III. THE UNFAIR LABOR PRACTICES
A. Allegations and Issues
The primary issue in this case relates to Respondent's
admitted failure to reinstate economic strikers to work
when positions became available at various times follow-
ing the conclusion of an economic strike. Respondent
argues that its failure to offer available positions to un-
reinstated economic strikers did not constitute an unfair
labor practice because laid-off permanent replacements
were available and because the Union waived the rights
of strikers to these positions in its strike settlement agree-
ment with Respondent. The complaint also alleges that
Respondent violated Section 8(a)(1) of the Act by send-
ing a letter to unreinstated strikers advising them that
their reinstatement rights would be terminated if they did
not respond within 5 days of receiving the letter. Re-
spondent argues that it had substantial business justifica-
tion for sending the letter to unreinstated strikers and
consequently its actions did not violate the Act. The
General Counsel also argues that by sending the letter
referred to above, Respondent altered the employment
status of those employees who did not respond, thereby
violating Section 8(a)(3) of the Act and that because Re-
spondent sent the letter without first notifying and af-
fording the Union an opportunity to negotiate and bar-
gain with respect to it, Respondent violated Section
8(a)(5) of the Act. Respondent denies these additional
and/or alternative theories advanced by the General
Counsel.
B. The Facts
The facts proffered by the General Counsel in support
of its position are relatively simple and are in large part
uncontested. Since March 1976, the Union has been the
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exclusive collective-bargaining representative of Re-
spondent's production and maintenance employees at its
Greenville, Mississippi facility. Respondent and the
Union have been parties to past successive collective-bar-
gaining agreements. In January 1980 Respondent and the
Union began negotiations for a new agreement to suc-
ceed the one which was to, and did, expire on March 5,
1980. When this agreerhent expired, a strike began on
March 6, which was participated in by all the approxi-
mately 106 unit employees. Although it initially shut
down all production, on April 28, 1980, Respondent re-
opened its facility and began hiring permanent replace-
ments.
The strike terminated on August 11, 1980, at which
time the parties executed a "strike settlement agree-
ment." This "strike settlement agreement" consisted of
three parts. The first part contained substantive provi-
sions of a new collective-bargaining agreement. The
second part contained provisions regarding the recall of
strikers to work. The third part dealt with discipline of
certain strikers for having engaged in alleged strike mis-
conduct. The terms of this agreement are discussed in
greater detail below. This strike settlement agreement ex-
pressly confirmed that the strike was terminated and that
striking employees were considered to have made an un-
conditional offer to return to work. At the time this
agreement was negotiated on August 11, Respondent
was operating with 69 permanent replacements and 25
employees who had abandoned the strike and returned to
work.
Since the end of the strike on August 11, 1980, Re-
spondent has hired no new employees. Over the ensuing
months, several of the strike replacements left for various
reasons and were replaced by yet-unreinstated strikers.
As the August 1980 collective-bargaining agreement
was approaching its expiration, the parties, on December
4, 1981, amiably negotiated a new collective-bargaining
agreement effective from December 6, 1981, through
December 5, 1984. Sections 2 and 3 of the August 11,
1980 strike settlement agreement regarding reinstatement
of strikers and discipline of certain employees were not
included in that later agreement. In conjunction with
that later agreement, however, the parties on December
5, 1981, agreed to continue to abide by those provisions
defining recall rights of unreinstated strikers contained in
the August 1980 strike settlement agreement.
As of March 27, 1982, Respondent had a work force
of 88 individuals, 33 of whom were strike replacements.
On March 27, Respondent laid off 15 of the 88 employ-
ees. Fourteen of those laid off were strike replacements.
Employees laid off were told that Respondent's econom-
ic picture was bad, that their life insurance and medical
insurance would be canceled, and that the layoff was in-
definite. In testimony, Respondent confirmed that this
was an accurate representation of its economic situation
at the time. On May 25, 1982, Respondent laid off an ad-
ditional employee for the same reason.
On May 26, 1982, Respondent recalled Larry Evans, a
strike replacement classified as a machine operator.
Three other employees were recalled by Respondent on
July 26 and August 2 and 9, 1982. Two of these were
strike replacements. On October 4, 1982, Respondent in-
definitely laid off yet another employee for lack of work.
Respondent stipulated that in making the recalls on
May 26, July 26, and August 2 and 9, it did not consider
any of the 28 yet-unreinstated strikers for those positions.
Respondent further stipulated that the unreinstated strik-
er list, containing the names of 28 yet-unreinstated strik-
ers, includes individuals who are qualified to perform the
jobs of laid off strike replacements who were later re-
called.
The facts advanced by the General Counsel in support
of its other allegations are also uncontested. On August
18, 1982, Respondent sent a letter to all 28 unreinstated
strikers. The letter reads in its entirety:
You have not been at work at Cleaver Brooks,
Greenville since March 6, 1980, when the Union
began a strike at that location. The Company and
Union have entered into a strike settlernent Agree-
ment which grants you reinstatement rights under
certain conditions. This is a specific request to you
to notify the Company in writing whether you
desire to maintain your recall (reinstatement) rights
with the Company. You can do so by mailing a
letter to the plant or by coming in and signing a
memo to that effect. If the Company does not hear
from you within five workdays of your receipt of
this letter, it will take your name off the unreinstat-
ed striker list and your employment rights at the
Company will be terminated.
Respondent did not consult with or notify the Union
before sending this letter. The letter was sent only to un-
reinstated strikers. No similar letter was sent to laid-off
strike replacements. Twenty of the 28 yet-unreinstated
strikers received their copy of this letter. Of those 20
who received the letter, 4 did not contact Respondent as
requested. Of the eight who did not receive copies of the
letter, one individual apparently heard about the letter
through some other source, because that individual con-
tacted Respondent. Seven of those eight, however, did
not contact Respondent.
The relatively simple facts found above constitute the
substance of the General Counsel's case. Respondent
argues that its failure to offer positions to unreinstated
strikers in the May, July, and August 1982 recalls from
layoff did not constitute an unfair labor practice because
laid-off permanent replacements were available and be-
cause the Union waived the rights of strikers to these po-
sitions in the August 1980 strike settlement agreement
with Respondent. Much of the testimony in this case re-
lates to the August 1980 strike settlement agreement and
negotiations preceding it regarding Respondent's position
that the Union waived rights that strikers may have had
to these positions. I find as follows:
After the strike had been in progress for 3 months, and
Respondent had hired several permanent replacements,
Respondent and the Union met on June 5, 1980, in the
presence of a mediator in order to -continue negotiations.
At this meeting, Respondent's primary spokesman was
Thomas J. Toole, vice president of personnel and indus-
trial relations. The Union's primary spokesman was
AQUA-CHEM, INC. , 1115
Curtis Orman, International representative. At this meet-
ing, Toole submitted a written proposal on behalf of Re-
spondent which contained three sections. The first con-
tained Respondent's prestrike proposals regarding sub-
stantive contract provisions. The second contained a pro-
cedure for the reinstatement of strikers, and the third
contained a proposal regarding discipline for strikers al-
leged to have engaged in strike misconduct. The second
section, regarding the reinstatement of strikers, reads in
its entirety:
The parties recognize that the Company has hired
permanent replacements. Upon abandonment of the
strike employees will be re turned to work as job va-
cancies occur. Employees shall be returned to a job
position when it becomes vacant. (a) The employees
will be returned by their Department Classification
Seniority in the Department in which the vacancy
occurs provided the employee has the present abili-
ty to immediately perform the work available. (b)
Prior to hiring new employees when there are no
employees with the present ability to immediately
perform the work available with Department Classi-
fication Seniority in the Department then the most
senior employee possessing the present ability to im-
mediately perform the work shall be offered the
job. (c) If no employee is available under (a) and (b)
hereof the employer may hire new employees who
are able to immediately perform the work available
or prior to hiring new employees who need to be
trained return the most senior employee who pos-
sesses the same basic requirements necessary for
such training as would apply if the Company were
hiring new employees. The intent of this provision
is to return employees to work while the Company
maintains efficient operations. An employee who
fails to return to work within five work days of no-
tification by certified mail to the last address given
to the Company by the employee of available work
under this procedure or who refuses to take a job
offered under this procedure shall forfeit all future
reemployment rights.
No part of Respondent's June 5 proposal was accepted
by the Union at this meeting. Regarding the reinstate-
ment of strikers, Orman informed Took that the Union
wanted a guarantee of unconditional reinstatement of all
strikers immediately. Respondent, who had already hired
a substantial number of permanent replacements, would
not agree to this. Toole and John Plant, Respondent's
operations manager, assured the Union that the recall
provision for strikers contained in Respondent's proposal
would enalble strikers to return to work before anyone
else was hired. Toole also assured Orman that Respond-
ent's proposal meant no new employees would be hired
if there were unreinstated strikers with the ability to per-
form needed work.
Toole testified that at the June 5 meeting there was
discussion regarding the words "as vacancies occur"
found in Respondent's proposal. Toole testified that he
and Plant stated these words meant that Respondent
wonld guarantee strikers would be returned to their jobs
and regain their seniority before Respondent hired any
other employees or moved people within the plant
through job posting to a higher or different job classifi-
cation. Orman testified that the word "vacancy" was
never defined during negotiations and that the term "va-
cancy" as used in the strike settlement agreement was
never discussed in relation to language used in any sub-
stantive contractual provision. I credit Orman. It is clear
that the Union's immediate and consistent reaction to Re-
spondent's proposal regarding reinstatement of strikers
throughout the June 6 meeting was to insist on immedi-
ate reinstatement of all strikers. There was simply no
reason for the parties to engage in discussion regarding
the specific meaning and limitation of the term "as va-
cancies occur." It is clear from the testimony, including
that of Toole himself, that while Respondent at the June
5 meeting may have made certain assurances that its
striker reinstatement proposal would guarantee certain
rights to strikers, it did so only in positive terms and not
by way of circumscribing or limiting the reinstatement
right of strikers. Thus, I find that while Respondent gave
such assurances, it did not do so in the context of limit-
ing, or even defining, the term "as vacancies occur." As
previously indicated, the parties did not reach any agree-
ment on any portion of Respondent's proposal at this
meeting.
After the June 5 meeting, Leonard Beauchamp, an-
other International representative, became involved in
negotiations. Thereafter, Beauchamp served as the
Union's primary spokesman From June 5 until the next
negotiation session, held on August 11, 1980, Beauchamp
and Toole had several telephone conversations in which
they attempted to work out the parameters, and later the
details, of a collective-bargaining agreement. Both Toole
and Beauchamp testified concerning these telephone con-
versations. Although on direct examination Toole at-
tempted to testify regarding the substance of these con-
versations, he later admitted that he could not testify
with regard to any specific conversation without first re-
ferring to notes he had taken during the conversation. -
Toole testified that he was very careful to take accurate
notes during these conversations and that his notes in
many cases represented exact quotes of what was said. I
have carefully examined the notes, which were intro-
duced as exhibits herein. The notes are both lengthy and
detailed, and in many instances I consider them to be
better evidence of what took place during some of those
conversations than the testimony of either Toole or
Beauchamp. The notes reflect that telephone conversa-
tions took place between Toole and Beauchamp on July
1, 3, 10, 11, 16, 22, 23, 28, and 31 and August 1, 4, and 7.
The vast majority of these conversations related solely
to substantive contractual matters and have no special
relevance to this case. The notes as a whole reflect that
the length of the proposed contract was a major issue be-
tween the parties. Toole's notes of the conversation that
took place on July 1, for example, contains the following
statement:
Term of agree[ment] is as critical as method of Re-
turning [strikers].
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The notes, however, do also reflect considerable detail
regarding the return of strikers to work. The notes of the
conversation which took place on July 3 reflect that
Toole opened the discussion regarding the return of
strikers to work by telling Beauchamp that Respondent
was not trying to break the Union, that the Union was
trying to break itself, and that if the Union continued to
turn down Respondent's June 6 proposal it was forcing
Respondent to hire more replacements. The next conver-
sation, which took place on July 10, was devoted largely
to discussion regarding the return of strikers to work.
Toole remarked that Beauchamp and employees both
had told him that the primary problem was when em-
ployees would return. Toole observed that various
people had suggested 10 strikers be returned to work im-
mediately. Toole then said that Respondent had consid-
ered this as well as its business needs and that it did need
"a few more people now." Toole told Beauchamp that
Respondent had the option of hiring more replacements
or working with the Union in order to return a few strik-
ers to work. Toole's notes then contain the following:
Proposal:
We need a few people. I'm talking five now. As a
guarantee.
Perhaps more later as business improves—but I
will not guarantee that.
Five is door opener—It gives you Union repre-
sentation. (one of first five is on Comm.)
—this is between you and I.
—you come to us through mediator with propos-
al that if five emp are returned you can deliver a
ratified contract—we'll accept.
Later notes of that same conversation contain the follow-
ing:
If you accept now
—workers get guaranteed return procedure.
—guarantee of five
—more will come if business [improves]
If you don't accept—you'll force us to hire more
replacements.
The notes of this conversation reflect no response by
Beauchamp to Toole's remarks. Notes of their conversa-
tion on July 22, however, reflect that the Union again re-
jected Respondent's June 6 proposal, including that por-
tion relating to the return of strikers. The notes of that
conversation vividly reflect that the Union's primary
concern related to,the length of the proposed contract.
Respondent was insisting on a contract of no more than
1 year. The Union saw that as an attempt by Respondent
to lay the groundwork for ousting the Union at some
point in the future. Consequently, the Union demanded a
contract of at least 2 years. The following statements
contained in Toole's notes clearly reflect the position of
the parties at the end of that conversation:
Local people won't accept—lust anything."
They recognize they may never get back.
. . . .
We're back to square one. Is company willing to
adjust term of agreement. "Then we got to go to
war."
If you won't change position on term—its war.
I'll go down fighting.
On the next day, July 23, Toole and Beauchamp had
another conversation. The notes of that July 23 meeting
suggest that there was a much different tone to the con-
versation. Specifically, Respondent made a new offer. Of
particular significance was the fact that Respondent pro-
posed to extend the term of the contract to 21 months.
Regarding the return of strikers, Toole's notes contain
the following as the fifth part of its new proposal:
Procedure for returning strikers—As outlined in
6-5-80 procedure. Respondent promises "five emp"
return within one wk of U ratification of this final
move.
The final portion of Respondent's July 23 proposal con-
tains the following statement:
We [Respondent] want from you:
(a) pre ratification assurance.
(b) Union calls mtg and proposes this deal to
company—through FMCS.
(c) If proposed to us in this manner you have my
assurance of our acceptance.
From Toole's notes, it appears that the July 23 conver-
sation was devoted exclusively to Toole outlining the
new proposal as described above. Notes of the July 28
conversation reflect it was in that conversation Beau-
champ responded to Respondent's new proposal. In the
July 28 conversation, Beauchamp told Toole there was
no way the Union could accept Respondent's proposal
"as proposed." Beauchamp told Toole they could work
it out, but that there were some problems. The first prob-
lem had to do with the fact that Respondent's proposal
called for the new contract to expire just before Christ-
mas. The second problem had to do with the call-back
procedure of strikers. Toole's notes contain the following
statements.
Call Back Procedure.
They have questions—this is equal or substantial
employment. i.e.—call back to janitor if they
refuse—they'll . . .
They think we'll maneuver around it.
Lynn wants Strike Settlement agreement to "Say
what law says"
(abandonment of strike.)
It appears from Toole's notes that after Beauchamp ex-
plained the problem the Union had with Respondent's
proposal, the conversation terminated.
The next conversation between Beauchamp and Toole
took place on July 31. A large part of that conversation
had to do with discipline of strikers alleged to have en-
gaged in strike misconduct and the fact that the wage in-
crease proposed by Respondent was to be prorated over
AQUA-CHEM, INC.
1117
the remainder of calendar year 1980. Regarding the
return of strikers to work, the first page of notes of that
conversation reflects the following:
PROB
"People not understanding"
RTN TO WORK—No real prob.
Using words they're not familiar w/
"present ability to 'mined perform" LB-Quest. of
Reassurance.
Ability & sen.—we'll have no problem there.
RTN TO WORK Procedure is Contrary to Con-
tract—layoff Recall Procedure.
Most would come back.
Toole's notes reflect that he and Beauchamp then dis-
cussed the discipline of people alleged to have engaged
in strike misconduct and, later, the prospect of prorating
the proposed wage increase.
In a conversation on August 1, Beauchamp formally
replied to Respondent's new proposal. Toole's notes re-
flect that Beauchamp's response contained a proposed
modification regarding the recall of strikers to work. In
this particular instance, however, Toole's notes are un-
derstandable only by referring to the testimony of Toole
and Beauchamp. As already indicated in some of the
notes quoted above, Beauchamp had expressed objection
to Respondent's proposal regarding the return of strikers
to work because, in Beauchamp's view, it did not allow
strikers the same rights they had under the law and the
prior contract between the Union and Respondent. Spe-
cifically, Beauchamp's complaint was that pursuant to
the terms of the contract an employee on layoff, when
recalled to work, had the right to refuse a lower grade
job and still retain reinstatement and seniority rights.
Beauchamp wanted strikers who were recalled to work
to have the same right that employees on layoff had
under the contract. Toole testified, and his notes reflect,
that he responded to Beauchamp by telling Beauchamp
that section 5.7 of the collective-bargaining agreement,
which defines the rights Beauchamp was referring to, ap-
plied only to layoffs and not to the return of strikers.
Toole told Beauchamp that the rights of unrecalled strik-
ers would be those contained in the language of Re-
spondent's June 5 proposal, not the collective-bargaining
agreement.
Toole's notes regarding the August 1 conversation and
later conversations of August 4 and 7, tend to be less de-
tailed and more sketchy than his notes of earlier conver-
sations. This may well be due to the fact that the parties
were getting closer to reaching agreement. I credit Beau-
champ that he proposed additional language be added to
the strike settlement agreement to protect the strikers'
right to refuse a lower grade job and still retain seniority
and reinstatement rights, The additional language that
Beauchamp proposed, i.e., "within the same job grade,"
was agreed to and appears in the fmal strike settlement
agreement. Beauchamp was also concerned whether
strikers would continue to accrue seniority while await-
ing recall and what seniority strikers would have once
they returned to work, and I credit Beauchamp that he
discussed these concerns with Toole. Beauchamp told
Toole that the Union wanted strikers to be able to con-
finite to accrue seniority while awaiting reinstatement.
This was rejected by Respondent. Beauchamp then pro-
posed that once strikers returned to work their seniority
dates would be that which they held prior to the com-
mencement of the strike, thereby assuring in the future
that their seniority would include the period of the
strike. In order to clarify these rights, Beauchamp pro-
posed additional language be added to the recall proce-
dure. This language, which is found in the final strike
settlement agreement, provides:
The seniority of returned strikers shall be that
which they held prior to the strike. The seniority of
replacements shall be that of their date of hire.
The final negotiation session occurred on August 11,
1980, at which time the parties executed a "strike settle-
ment agreement." The Union was represented at the
meeting by five individuals, including Orman and Beau-
champ. Beauchamp continued to act as the Union's pri-
mary spokesman at that meeting. Respondent was repre-
sented by three individuals, including Toole, who re-
mained Respondent's primary spokesman, As Toole had
requested in the telephone conversation with Beau-
champ, Beauchamp presented the offer which, after
minor modifications, became the basis of the strike settle-
ment agreement. Respondent insisted that the sentence,
"The above wages and benefits are effective as of the
signing of this agreement" be deleted, and it was. At the
August 11 meeting, there was brief discussion regarding
the procedure for recalling strikers. Beauchamp, who I
credit, testified he made the statement at that meeting
that it was his understanding of the striker recall proce-
dure that for all purposes the strikers have seniority
which would be greater than that of strike replacements
unless some unreinstated strikers on the recall list were
not recalled for a considerable length of time, in which
case strike replacements might at some point catch up
with unreinstated strikers as they were not accruing se-
niority until they returned to work.' The final agreement
executed on August 11 contains three parts. The first
part contains provisions regarding the substance of a col-
lective-bargaining agreement that was to remain in effect
for 20 months. The second contains provisions regarding
Beauchamp does not claim and there is no evidence to indicate that
Respondent confirmed Beauchamp's understanding to be correct. I do
not take Beauchamp's testimony to reflect a joint understanding about the
meaning of the recall procedure. do, however, consider it as evidencing
the Union's understanding of that procedure and take that into account in
determining whether the Union waived any statutory rights of employ-
ees. In crediting Beauchamp that he made the statement described above
at the August 11 meeting, I note Toole testified that there was a discus-
sion at some time to the effect that unreinstated strikers did not have se-
niority in the bargaining umt until they were reinstated, at which time
they would assume all of their past seniority. I do not credit Toole that
specific statement was ever made by either him or Beauchamp. Rather, I
conclude that the only statement made by either Toole or Beauchamp
similar to that reported by Toole was during their telephone conversation
in relation to whether unreinstated strikers would continue to accrue se-
nionty for the period they were off work due to the strike and until such
time as they were in fact returned to their jobs. I also note that both
Beauchamp and Toole agree there was never any discussion concerning
the rights of unreinstated strikers in the event of a layoff of strike re-
placements.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the reinstatement of strikers. This section of the agree-
ment is identical to Respondent's June 5 proposal except
for the deletion of two words and the insertion of addi-
tions requested by Beauchamp in his telephone conversa-
tions with Toole described above. Section three of the
final agreement is identical to the third section of Re-
spondent's June 5 proposal regarding discipline of em-
ployees alleged to have engaged in strike misconduct.
The August 11 agreement expressly confirmed that the
strike was terminated and that striking employees were
considered to have made an unconditional offer to return
to work.
Analysis and Conclusions
The General Counsel argues that once it is established
economic strikers have made unconditional offers to
return to work, certain rights automatically accrue to
them pursuant to the Board's well recognized and long
accepted decision in Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970). The General Counsel argues that one
such Laidlaw guarantee is that an employer cannot dis-
criminate against strikers with respect to seniority in lay-
offs solely on the basis of protected strike activity. Trans-
port Co. of Texas, 177 NLRB 180 (1969); Wisconsin Pack-
ing Co., 231 NLRB 546 1977. She argues that a recall
procedure favoring laid-off strike replacements who have
less seniority than unreinstated strikers without business
justification amounts to an unlawful grant of supersenior-
ity to the replacements. Giddings & Lewis, 255 NLRB 93
(1981), enf. denied 675 F.2d 926 (7th Cir. 1982). The
General Counsel argues that the Board's decision in Gid-
dings & Lewis is determinative of the issue in this case.
Respondent's argument is more difficult to state
simply. It is perhaps done best by quoting a portion of
Respondent's brief in which it sets forth five enumerated
arguments of law in capsulized version. The argument
runs as follows: (1) "The Respondent could not hire new
employees before reinstating strikers," citing Laidlaw
Corp., supra, (2) "Where there is good faith bargaining,
employee reinstatement rights can be waived," citing
United Air Craft Corp., 192 NLRB 382 (1971), (3) "Un-
reinstated economic strikers are not laid off employees,"
citing Bancroft Cap Co„ 245 NLRB 547 (1979), (4) "A
layoff does not create a vacancy," citing Bancroft Cap
Co., supra, (5) "The determination as to when a vacancy
occurs 'must be viewed in the context of the practice
and past considerations," citing Bancroft Cap Co., supra.
Respondent argues that during the 1980 negotiations
with the Union, it succeeded m obtaining an agreement
from the Union pursuant to which striking employees
would be returned to work "prior to hiring new employ-
ees . . . as job vacancies occur." Respondent argues that
it "has the right to enjoy the benefit it had negotiated
which involved a waiver on the part of the Union."
A review of the cases in this area leads me to conclude
that the General Counsel has the better argument. The
starting point from which to analyze any case in this area
must be the Board's decision in Laidlaw, supra at 1370 in
which the Board held:
Economic strikers who unconditionally apply for
reinstatement at a time when their positions are
filled by permanent replacements: (1) remain em-
ployees; and (2) are entitled to full reinstatement
upon the departure of replacements. . . . [Emphasis
added.]
Relying on United Air Craft Corp., supra at 385, Re-
spondent argues that it has "the right to enjoy the benefit
it had negotiated which involved a waiver on the part of
the Union." I read the Board's decision in United Air
Craft Corp. as being more limited. The Board therein
stated:
The Board is charged with the exclusive respon-
sibility of vindicating the public policy as defined
by Section 1 of the Act. It follows that the Board is
not bound by any private adjustment of rights guar-
anteed by the Act. But it does not also follow that
because the Board is not required to place its impri-
matur upon private adjustments of statutory rights,
it may not in the exercise of its discretion accept a
particular private adjustment as conforming to the
policy of the Act and therefore deserving of ap-
proval by the Board.
The Board then specifically considered the question
"Whether to modify Respondent's obligation as defmed
in the recall agreement in view of Laidlaw." After doing
so, it then concluded, "In these circumstances, we be-
lieve that it will best effectuate the policies of the Act to
adopt the agreement of the parties as determining the re-
instatement rights of the economic strikers." Thus, the
Board's decision in United Air Craft Corp. leaves to the
Board whether to recognize a waiver of statutory rights
which may be contained in a strike settlement agreement.
The Board is not required to do so. I fmd it unnecessary,
however, to consider whether the Board should recog-
nize the agreement of the parties in this case if it were
found to be a waiver of statutory rights. I am convinced
that the record fails to establish that such a waiver oc-
curred, but rather establishes the contrary.
Respondent's argument that a waiver of statutory
rights occurred in this case is flawed in several respects.
A great portion of Respondent's brief is devoted to the
proposition that the term "vacancy" used in the recall
procedure is defined by reference to the substantative
collective-bargaining agreement and has the same defini-
tion as the term "job opening" therein. I fmd no support
for this argument. Rather, Respondent's argument con-
tains a substantial internal inconsistency. Respondent
argues that the "strike settlement agreement" was a com-
plete, "interrelated" document while at the same time
maintaining that the recall procedure itself is not a part
of the labor agreement and, therefore, is not subject to
the grievance/arbitration provision of the labor agree-
ment. The testimony of vice president of personnel and
industrial relations Toole most vividly reflects this incon-
sistency. Toole testified in part:
The lay-off language of the contract pertains to
recall of laid off employees. The strike settlement
language pertains to the reinstatement of strikers
—
AQUA-CHEM, INC. 1119
and the two are separate and are governed by each
situation. [Emphasis added.]
While not expressly stated as such, part of Respondent's
argument is that a collective-bargaining agreement which
gives laid-off employees rights superior to all other em-
ployees constitutes a waiver of strikers' rights and gives
laid-off striker replacements rights superior to replaced
strikers. Thus, Respondent argues that pursuant to the
collective-bargaining agreement, "Laid off employees do
have an absolute right. . . of recall during the period of
seniority retention." The argument continues:
Laid off employees were entitled to recall in the re-
verse order of their layoff. They remain employees,
under the contract, until they lose seniority. There
can be no vacancy under the contract as long as
there is an employee holding a right to a job. This
specific contract language is not applicable to un-
reinstated strikers because they are not laid off em-
ployees,
Respondent's logic at this juncture is flawed in two
major respects. First, its substantial reliance on Bancroft
Cap Co., supra, for three of its five major arguments
quoted above is entirely misplaced. These three argu-
ments are drawn entirely from the administrative law
judge's decision in that case. Perhaps intentionally, Re-
spondent's reference to this case completely ignores the
Board's decision, particularly that part in which the
Board states,, "We qualify [the judge's] analysis regarding
layoffs and vacancies . . . ." In that same portion of the
Board's decision, the Board goes on to state:
We rely particularly on the fact that the layoffs in-
volved here were for periods of only 2 to 7 days
and were due to shortages of materials. Thus, on
the facts of this case, we agree with the Administra-
tive Law Judge's conclusion that there were no va-
cancies which respondent was obligated to offer to
unreinstated strikers.
The Board's decision in that case stands for one very
specific and very narrow point. Namely, that a layoff of
very short duration due to a shortage of materials does
not create vacancies which an employer is then obligated
to offer to unreinstated strikers. To state it differently,
such layoffs do not result in "the departure of replace-
ments" as that term is used in the Board's Laidlaw deci-
sion. Respondent's citation to Bancroft Cap Co. for any
other point is erroneous.,
The second major flaw in Respondent's logic at this
juncture is its failure to acknowledge requirements which
both the Board and the courts have long held necessary
for a waiver of statutory rights. It is not enough that
there be some contractual provision which is arguably
contrary to or inconsistent with statutory rights in order
for there to be a waiver of such rights. Rather, the
Board and Federal courts alike have consistently re-
quired that for an effective waiver of statutory rights to
be found, there must be a "clear and unmistakable"
intent expressed either in the language of the collective-
bargaining agreement itself or at the bargaining table
before the agreement is consummated. See American Cy-
anamid Co., 185 NLRB 981 (1970); Wisconsin Aluminum
Foundry Co., 173 NLRB 1160 (1968), enfd. 440 F.2d 393
(7th Cir. 1971); Weltronic Co, 173 NLRB 235 (1968); Fed-
eral Compress & Warehouse Co., 166 NLRB 664 (1967),
enfd. in relevant part 398 F.2d 631 (6th Cir. 1968);
Timken Roller Bearing Co., 138 NLRB 15 (1962), enfd.
325 F.2d 746 (6th Cir. 1963); Perkins Machine Co., 141
NLRB 98 (1963); Jacobs Mfg. Co., 94 NLRB 1214 (1951).
The same test is applied where an employer claims that a
union has waived the statutory rights of employees to re-
instatement on the termination of an economic strike. See
George Banta Co., 256 NLRB 1197 (1981), enfd. 686 F.2d
10 (D.C. Cir. 1982). My review of the negotiating ses-
sions between the parties and the numerous telephone
conversations between Toole and Beauchamp reveals no
credible evidence on which to base a conclusion that the
parties understood, discussed, or even assumed that the
strike settlement agreement would exclude unreinstated
strikers from reinstatement in the event of a layoff of re-
placements. Certainly it was agreed that no new employ-
ees would be hired if there were unreinstated strikers
with the ability to do the work. This is unequivocally
and expressly what the strike settlement provides. I find
no waiver or limitation of statutory rights of recall, and
certainly none that might be considered either clear or
unmistakable. It is undisputed that there was no discus-
sion concerning the recall rights of reinstated strikers in
the event of a layoff of replacements. At the time of the
1980 negotiations, it had been 6 or 7 years since Re-
spondent experienced a layoff, and the only classifica-
tions considered during those negotiations were returned
strikers, replacements, and unreinstated strikers. It was
Respondent who throughout negotiations insisted con-
sistently and steadfastly that the collective-bargaining
agreement and the provisions of the strike settlement
'agreement dealing with the reinstatement of strikers were
separate and unrelated. I reject Respondent's argument
that the recall rights of strikers, and the definitions of
terms in the recall procedure, are now to be determined
by reference to the collective-bargaining agreement. The
record here reflects that there was no specific discussion
between the parties during the 1980 negotiations regard-
ing a layoff of replacements and the rights of unreinstat-
ed strikers. Thus, it is impossible to conclude that the
parties reached a "clear and unmistakable" agreement re-
garding the rights of unreinstated strikers and laid-off re-
placements. It is unknown whether the parties' failure to
discuss this issue was due to oversight or, as is more
likely, a failure to recognize its eventual importance.
What is clear is that the parties did not negotiate a clear
and unmistakable waiver of statutory rights. Statutory
rights take precedence over contractual ambiguity. Am-
biguous use of the term "vacancy" in the strike settle-
ment agreement must therefore be controlled by the stat-
utory definition of rights pursuant to the Board's deci-
sion in Laidlaw Corp. and cases that have followed it. In
fact, in spite of all the convoluted arguments propounded
by Respondent, the only real issue is whether the pro-
longed, indefinite layoff of strike replacements consti-
tutes their "departure" under Laidlaw. My holding is a
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
narrow one. I find that the prolonged, indefinite layoff of
strike replacements does constitute such a departure, and
that when more work becomes available for which addi-
tional employees are needed, a vacancy is created to
which yet unreinstated strikers are entitled over less
senior strike replacements.2
Based on all the above, I find that when the strike re-
placements were laid off under the circumstances present
in this case, it constituted their "departure" as that term
is used in Laidlaw Corp., and a sufficient interruption of
the employment relationship resulted such that unrein-
stated strikers were entitled to be given preferential con-
sideration for future vacancies that might arise. The
Union neither waived this statutory right in the strike
settlement agreement nor during negotiations. Accord-
ingly, I find that Respondent maintained and applied an
unlawful recall procedure that had the effect of accord-
ing superseniority to strike replacements over unreinstat-
ed strikers, and Respondent has thereby violated Section
8(a)(1) and (3) of the Act.
Regarding Respondent's August 18, 1982 letter to un-
reinstated strikers, Manufacturing Manager Neil Bone
testified that it was precipitated by a problem that Re-
spondent had in contacting one of the unreinstated strik-
ers when Respondent was in a position to offer her avail-
able work. Bone testified that on July 29, 1982, Respond-
ent wrote to Rosemary Taylor telling her that Respond-
ent wanted her to return to work on August 2. Taylor
apparently did not reply to the letter, and at the end of 5
days, Respondent then recalled another employee,
Yvonne Threadgill. Respondent allowed Threadgill 5
days in which to return to work. As a result of those
delays, Respondent lost approximately 10 workdays
during which it might otherwise have gotten production
from an employee. According to Bone, two active em-
ployees had to be assigned the work during the period of
the delay, thereby causing Respondent to lose produc-
tion in the area where those two other employees nor-
mally work. As a result of this experience, Respondent
drafted and mailed the August 18 letter to all the yet un-
reinstated strikers.
Respondent's reason for mailing the August 18 letter
to unreinstated strikers is neither logical nor consistent.
As Respondent concedes, the August 18 letter was
mailed only to the unreinstated strikers. Rosemary
Taylor, however, was not an unreinstated striker. Taylor
was a striker, but she had previously been reinstated.
Thereafter, she was laid off. Respondent's attempt to
recall Taylor was not an attempt to recall an unreinstat-
Respondent spends some portion of its brief arglig that the Board
erred in Giddings & Lewis, supra, and that the Seventh Circuit correctly
overturned the Board's decision. This argument is, of course, misplaced
for as an administrative law judge, I am required to follow Board cases
where they are inconsistent with those of various circuit courts. I note
too that the facts in Giddings & Lewis tend to distinguish it from the in-
stant case Giddings did not deal with an actual layoff of permanent strike
replacements but rather with policies which the employer adopted and
published to deal with the possibihty of Ilayoffs at some point in the
future. Neither the Board nor the circuit court dealt with the question of
whether the length and character of layoffs affect whether there is a de-
parture of replacements pursuant to Laidlaw In view of my limited find-
ings in this case, I see no conflict necessarily arising between it and the
circuit court's decision in Giddings & Lewis.
ed striker but rather an employee on layoff pursuant to
the collective-bargaining agreement. Respondent's failure
to have the correct mailing address of Taylor was not
due to the fact that unreinstated strikers had not kept in
contact with Respondent. It was due to the fact that Re-
spondent had not kept current mailing addresses of
active employees. Why then did Respondent mail the
August 18 letter only to unreinstated strikers and not to
laid-off employees, reinstated strikers, and permanent re-
placements alike? Respondent's answer to this question
does not ring true. Its asserted answer is that a problem
such as that caused by a short-term layoff (i.e., Rosemary
Taylor) is magnified when 2-1/2 years have elapsed since
the last employee-employer contact, as was the case with
at least certain of the unreinstated strikers. Respondent
also answers the questions posed above in part by noting
that while employees laid off in 1982 were not sent
copies of the August 18 letter, they were sent a letter in
which they were asked:
Please make sure that your current address on file is
your correct address as your last paycheck and any
recall correspondence will be mailed to the address
on file.
Both of Respondent's partial answers to the question
posed above fail to answer or even address why Re-
spondent took it upon itself to treat the two groups dis-
parately. To the laid-off employees, Respondent simply
asked that they maintain their current address on file. To
the unreinstated strikers, Respondent took it upon itself
to threaten them that if they failed to respond within 5
workdays, Respondent "will take your name off the un-
reinstated striker list and your employment rights . . .
will be terminated." Respondent's disparate treatment
belies its asserted business justification for sending the
August 18 letter to unreinstated strikers. Charleston Nurs-
ing Center, 257 NLRB 554 (1981), could not be more on
point. In that case, the Board holds:
[Vie conclude that, although an employer may le-
gally request replaced economic strikers to furnish
current information about their interests and rein-
statement, an employer may not require replaced
economic strikers to respond to such a request or
risk losing their reinstatement rights.
In its brief, Respondent both quotes out of context
from and misconstrues the Board's decision in Charleston
Nursing Center. The Board's holding in that case, howev-
er, is so clear that further discussion regarding Respond-
ent's argument on this point is unnecessary. I find that
Respondent's letter of August 18 constitutes an express
threat to terminate the employment rights of unreinstated
strikers for failing to respond to its letter and thereby
violates Section 8(a)(1) of the Act.3
3 In view of the above, I find it unnecessary to decide whether Re-
spondent's sending the August 18 letter had the effect of changing the
employment status of unreinstated strikers who did not respond to the
letter in violation of Sec. 8(aX3) or whether by sending this letter with-
out having afforded the Union an opportunity to negotiate and bargain
with respect to it, Respondent thereby violated Sec. 8(a)(5) of the Act.
Continued
AQUA-CHEM, INC. 1121
CONCLUSIONS OF LAW
1. Respondent Aqua-Chem, Inc., Cleaver Brooks Divi-
sion, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2.. International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a
policy and practice which discriminates against unrein-
stated strikers in the filling of postlayoff vacancies, Re-
spondent has interfered with, restrained, and coerced
Henry Holmes and its other employees who are unrein-
stated strikers in the exercise of their rights guaranteed
Manufacturing Manager Bone testified that if a vacancy occurred in the
future, he did not know what would be done as far as Respondent
making any effort to contact unreinstated strikers who did not respond to
Respondent's August 18 letter. The General Counsel's theory of a dis-
criminatory change in job status is based solely on Bone's lack of knowl-
edge about how such individuals would be treated as compared to other
employees. Since Respondent's threat to template reinstatement rights is
express and in clear violation of Sec. 8(a)(1) of the Act, I find it appropri-
ate in my Order to require that Respondent cease and desist from threat-
ening such, action or from carrying out the threat.
them by Section 7 of the Act, and Respondent has there-
by engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By threatening its employees with termination of
their reemployment rights if they did not respond to Re-
spondent's letter of August 18, 1982, Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The unfair labor practices that Respondent has been
found to have engaged in, as described above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions necessary to effectuate the policies of the Act.
[Recommended Order omitted from publication.]