Bio-Science Laboratories

National Labor Relations Board - Board Decisions

Mar 20, 1974

209 N.L.R.B. 796 (N.L.R.B. 1974)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bio-Science Laboratories and International Chemical
Workers Union, Local 805. Case 31-CA-3208
March 20, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 30, 1973, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge'
and to adopt his recommended Order.
The Administrative Law Judge found, and we
agree, that under The Laidlaw Corporation 2 unrein-
stated economic strikers do not have the statutory
right to recall in accordance with a collective-
bargaining agreement provision covering recall from
layoffs where the parties have not agreed to the
application of such a clause to the reinstatement of
economic strikers.3 We also agree with his further
finding that Respondent's utilization of overtime in
its radioisotopes section did not violate the Act.
Finally the Administrative Law Judge concluded
that Respondent's institution of its preferential
reinstatement system, and its amendment to that
system, did not violate the Act. Contrary to our
dissenting colleague, we agree with the Administra-
tive Law Judge that Respondent implemented its
reinstatement system only after prior discussions
with the Union and the Union's actions reveal that
the positions of the parties on this issue were
irreconcilably fixed.
The facts with respect to the implementation of this
reinstatement system are essentially undisputed.
i The General Counsel's request for oral argument is hereby denied as
the record , exceptions , and briefs adequately present the issues and
positions of the parties.
2 171 NLRB 1366, enfd . 414 F 2d 99 (C.A. 7, 1969), cert . denied 397 U.S.
920 (1970).
3 The Administrative Law Judge found it unnecessary to consider
Respondent 's contention that this case should be deferred to arbitration
under the principles enunciated in Collyer Insulated Wire, 192 NLRB 837,
because he recommended that the complaint should be dismissed on the
merits of the allegations In our view , however, this is the threshold issue
and findings on the merits of the allegations should only be made if this case
is not suitable for deferral We have concluded that the present controversy,
During the negotiations which took place while the
strike was still in effect, the question of reinstatement
of strikers was discussed by Respondent with the
union negotiating committee on several occasions.
The Union's consistent position during those negoti-
ations was that the permanent striker replacements
should be terminated and the strikers reinstated in
their former jobs, but Respondent refused to do so.
On April 3, 1972, when the strike was called off, the
Union again urged the Employer to treat the former
strikers as laid-off employees. Manifestly, the strikers
would have had greater seniority than the replace-
ments under the terms of the contract if the
Employer had accepted the Union's proposal. The
Union insisted that the replacements should be
"bumped" out of their jobs by the former strikers
who, according to the Union's position, had greater
seniority. Pursuant to the Union's request, the
Respondent met with the negotiating committee of
the Union at 10 a.m. on April 3. The Union once
again took the position that the replacements should
be laid off and the strikers reinstated immediately.
Respondent's reply was that it had hired the
replacements as permanent replacements and had an
obligation to them, but that the Company was willing
to continue negotiations with the Union on the
contract.
It was not until after these meetings with the Union
during negotiations, both before and after the strike,
that Respondent drafted its reinstatement system.
Respondent was faced with 199 former strikers
seeking reinstatement to only 35 positions.
The plan was mailed to the Union and the replaced
former strikers on April 5. The Union filed a
grievance on the same date again contending that the
seniority clause in the contract was not being applied
properly concerning the replacements.
On April 10, Respondent met once again with the
Union's negotiating committee and explained how
the reinstatement system would work. The Union
objected to the institution of the system and
reiterated its position as set forth in the April 5
grievance, that seniority should prevail and that the
former strikers should "bump" the permanent
replacements.
which centers on the economic stokers' reinstatement rights, is mappropn-
ate for deferral to arbitration . Since the contract itself is silent as to whether
the recall from layoff clause applies to the reinstatement of economic
strikers, and the parties agree that there was no discussion during the
negotiations with respect to applying this clause to the reinstatement of
strikers, we are not confronted with an issue which turns on the
interpretation of a clause in a collective-bargaining agreement . Simply
stated, the issue is whether, as a matter of law-not of a claimed contractual
pnvilege, this contract provision should apply to the reinstatement of
economic strikers , and this issue is not a matter for deferral within the
meaning of Collyer. Member Jenkins , for the reasons stated in his dissent in
Collyer, would not , in any event, defer to arbitration.
209 NLRB No. 106
BIO-SCIENCE LABORATORIES
The next day, April 11, Respondent finally imple-
mented its reinstatement system.
The Union's demand that Respondent terminate
the employees who replaced the economic strikers is
in direct conflict with the Supreme Court's holding in
Mackay Radio.4 In that case, the Court held:
it does not follow that an employer, guilty of no
act denounced by the statute, has lost the right to
protect and continue his business by supplying
places left vacant by strikers. And he is not bound
to discharge those hired to fill the places of
strikers, upon the election of the latter to resume
their employment, in order to create places for
them.
Subsequent cases 5 have not altered the Mackay
Radio rule that an employer is under no obligation to
discharge or lay off permanent replacements at the
termination of an economic strike. The decisions in
Fleetwood, Laidlaw, and Brooks Research all relate to
rights of economic strikers to job openings occurring
when permanent replacements quit their jobs subse-
quent to the termination of a strike. Here the
Employer was willing to hire exclusively from the list
of former strikers when job vacancies arose at a later
date. Indeed, the Respondent hired former strikers
exclusively and did not hire new applicants .6 The
Union adamantly maintained during the strike and
thereafter that the permanent replacements had to be
terminated and the strikers returned to their jobs.
The Employer was not obligated to capitulate to the
Union's demand. We are here concerned with the
Employer's insistence upon his right to retain
permanent replacements at the end of a strike and an
orderly procedure for recalling strikers as vacancies
arose thereafter without running afoul of the deci-
sions in Laidlaw and Fleetwood. Had the Employer
not devised some procedure for the recall of former
strikers as vacancies arose, it is highly likely that he
would have been adjudged guilty of violations of
Section 8(a)(1) and (3) of the Act under Laidlaw and
Fleetwood. The Employer is not guilty of 8(a)(5)
violation simply because the Union refused to agree
to the procedure. The existence or nonexistence of an
impasse is not always easy to decide but here there
can be no question but that the fixed, steadfast
position of the Union that the permanent replace-
ments had to be laid off brought the parties to the
point of stalemate. Having given the Union every
opportunity to bargain about its proposal, Respon-
4 N LR.B v. Mackay Radio & Telegraph Co., 304 U S 333.
s NLRB. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); The
Laidlaw Corporation, 171 NLRB 1366, enfd 414 F 2d 99 (C A. 7); Brooks
Research & Manufacturing, Inc., 202 NLRB 634.
6 As noted in fn. 7 of the Administrative Law Judge's Decision one or
797
dent was not obliged "to engage in fruitless mara-
thon discussions" 7 before actually recalling former
strikers in accordance with the offer which had been
rejected by the Union. The dissent appears to be
holding that Respondent should have delayed its
recall of former strikers until the Union capitulated.
There is nothing in the statute or the case law which
suggests that Respondent was obliged to delay its
recall of former strikers until the Union retreated
from its adamant position that the permanent
replacements had to be terminated to make room for
the former strikers.
In our view, the facts clearly demonstrate that the
parties did negotiate , both prior to and after the
strike was over, on the issue of reinstatement of the
strikers . Both parties had strong, fixed views on this
issue and they both persisted in irreconcilable
positions . Considering these circumstances , it seems
evident that by April 11 further negotiations and
discussions between the parties on this issue would
not be meaningful in view of the adamant positions
taken by the parties . Accordingly, we shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint be, and it
hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
In my opinion, Respondent formulated and insti-
tuted the preferential reinstatement system and its
modification in December without first bargaining
with the Union. When this plan was presented to the
Union, it was not in terms of a proposal for
negotiations, but a completed plan which was to be
implemented. Though both parties had made their
positions clear from the outset, a true impasse was
not reached since Respondent did not permit any
give-and-take bargaining over the system. A proce-
dure for reinstatement of economic strikers to their
former or substantially equivalent jobs "is of suffi-
cient concern to the former strikers as employees and
their prospects of reemployment as to constitute a
mandatory subject for collective bargaining with
their representative ...." 8 Therefore, since Res-
pondent unilaterally imposed its preferential rein-
statement system and the modification thereof with-
out first bargaining with the Union, I would find that
two new employees were hired in instances where former strikers declined
offers of reinstatement.
I N.LR.B v. American National Insurance Co., 343 U.S. 395, 404.
8 Food Service Company, 202 NLRB 790.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent violated Section 8(a)(5) and ( 1) of the
Act.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON , Administrative Law Judge : This case
was tried before me in Los Angeles , California, on June 26
and 27 , 1973. The complaint, which issued on May 16,
1973, pursuant to a charge and first amended charge filed
on July 7 , 1972, and May 11, 1973 , respectively , alleges
violations of Sections 8(a)(1), (3), and (5) of the Act.
Respondent filed an answer which admits a number of the
factual allegations but denies others and the commission of
any unfair labor practices . In an amended answer and as a
separate affirmative defense , Respondent states that it is
willing to resolve all disputes between it and the Charging
Union through the grievance and arbitration procedures
provided for in their collective-bargaining agreement. All
parties were afforded full opportunity to appear, to
introduce evidence , to examine and cross -examine witness-
es, to argue orally on the record , and to file briefs. Briefs
were filed by the General Counsel , the Charging Union
and the Respondent.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Bio-Science Laboratories , a Division of Bio-Science
Industries , a California corporation , with its principal
place of business in Van Nuys , California, and with branch
facilities located in Beverly Hills and Los Angeles,
California , is engaged in the business of providing clinical
testing services to doctors and medical facilities throughout
the United States . Respondent annually provides services
valued in excess of $50 ,000 directly to customers located
outside the State of California , and purchases goods and
materials valued in excess of $50 ,000 directly from
suppliers located outside the State of California . Respon-
dent is an employer engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, Local 805, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on March 15 , 1972,1 after an
impasse in negotiations on the Union 's demand for a
general wage increase pursuant to a wage reopener clause
in their collective-bargaining agreement , the Union en-
gaged in a strike in support of its demands; that on April 3,
the Union made an unconditional offer to return to work
on behalf of the striking employees ; that on or about April
1 All dates herein are in 1972 unless otherwise stated.
2 N LR.B v Fleetwood Trailer Co, 389 U S. 375 (1967); The Laidlaw
4 the Respondent unilaterally formulated and instituted a
priority system for recalling the former strikers, which
system provided for lesser recall opportunities and differ-
ent priorities for the recall of unreinstated former strikers
than those provided in the collective -bargaining agreement
covering the recall of employees from layoff ; that on
December 28, Respondent unilaterally revised said system;
that since April 3 , Respondent has failed and refused to
reinstate former strikers pursuant to either employerwide
seniority or the seniority provisions applicable to the recall
of employees from layoffs ; and that Respondent unilater-
ally, and in order to avoid recalling former strikers , utilized
its regular employees on an overtime basis to perform
duties previously performed by unreinstated former strik-
ers. All of the foregoing are alleged as violations of Section
8(a)(1), (3), and (5) of the Act. The Respondent denies the
commission of any unfair labor practices and contends it
accorded the former economic strikers the full reinstate-
ment rights to which they were entitled under the
Fleetwood-Laidlaw line of cases ; 2 that the preferential
reinstatement system which was applied did not diminish
the strikers' opportunities for reinstatement; that it had
substantial and legitimate reasons for utilizing the prefer-
ential reinstatement system ; and that the utilization of
overtime in the radioisotopes section was lawful and
proper . Respondent further contends that if the General
Counsel's theory of the case should be accepted, issues of
contract interpretation are presented which could and
should be decided through the grievance and arbitration
provisions provided for in the contract in accordance with
Collyer Insulated Wire, 192 NLRB 837.
Thus , the principal issues are : ( 1) Whether the institution
of Respondent's preferential reinstatement system , and its
amendment , violated the Act ; (2) Whether, under Laidlaw,
unreinstated economic strikers have the statutory right to
recall in accordance with a collective -bargaining provision
covering layoffs and recalls from layoffs , in the absence of
a specific agreement to the contrary ; (3) If yes , whether the
matter should be deferred to arbitration under the Board's
Collyer policy ; and (4) Whether the Respondent's utilizing
overtime in the radioisotopes section , rather than recalling
strikers, violated the Act.
A. Bargaining History and Chronology of Events
The Respondent operates a clinical reference laboratory
at three locations in the Los Angeles , California , metropol-
itan area, providing clinical testing services to doctors and
hospitals throughout the United States . The Respondent's
operations are divided administratively into four depart-
ments, each with its own director, and the departments are
divided into sections which perform the laboratory and
auxiliary functions related to the approximately 650
different clinical tests which Respondent is equipped to
perform.
On or about December 29, 1966 , the Union was selected
Corporation, 171 NLRB 1366 , enfd 414 F 2d 99 (C A 7, 1969 ), cert. denied
397 U S 920(1970)
BIO-SCIENCE LABORATORIES
or designated by the majority of Respondent's employees
as their collective-bargaining representative.3 Since then,
the Respondent and the Union have been parties to a series
of collective-bargaining agreements, the most recent
agreement having been effective from March 1, 1970, to
March 1, 1973.
Article XVII of said agreement, entitled "Seniority,"
states in pertinent part:
Section 1. Seniority shall be measured from the
employee's most recent date of hire. Employees shall
acquire seniority only upon completion of the proba-
tionary period at which time their seniority shall date
from their most recent date of hire.
Section 2. All employees hired will be on probation-
ary status for a period of sixty (60) days. During this
period, such employees do not acquire seniority and
may be discharged or disciplined by the Company
without the employee's having recourse to the Griev-
ance Procedure. Absences from work in excess of two
(2) weeks during the probationary period shall result in
the extension of the probationary period for the period
of such absence in excess of two (2) weeks.
Section 3. An employee shall lose his seniority upon
his quit or discharge. An employee will be considered
to' ve quit if he:
(c) Fails while on layoff to notify the Company in
writing each sixty (60) days that he is available for
employment.
Article XVIII of the agreement as originally executed,
entitled "Layoffs and Recalls," states:
Section 1. In layoffs and recalls from layoffs,
seniority within each department by job classification
will prevail, provided the senior employee is qualified
to perform the work remaining in the department.
On or about January 22, 1971, Respondent and the
Union executed an amendment to the collective-bargain-
ing agreement which modified and amplified the provi-
sions of article XVIII relating to layoffs and recalls. The
amendment to the collective-bargaining agreement and the
displacement list indicating the "bumping" order to be
utilized when the amendment came into operation are
attached hereto as Appendix A. [Omitted from publica-
tion.] There was no discussion during the negotiations with
respect to applying the terms of article XVIII or its
amendments to the reinstatement of strikers.
On or about September 23, 1971, the parties further
amended the collective-bargaining agreement by adopting
a letter of agreement covering employees on leave of
absence and temporary employees. On or about February
3, the parties reached agreement, subject to ratification by
the union members, with respect to the matters set forth in
another letter of agreement dated February 11, which
3 The parties stipulated and I find that the following employees comprise
an appropriate unit: All employees engaged in laboratory work or its
auxiliary functions, employed by Respondent at its 7600 Tyrone Avenue,
Van Nuys, California location, its 436 North Roxbury Drive, Beverly Hills.
799
agreement, inter alia, added sections 9 and 10 to article
XVIII. The parties stipulated that while the letter of
agreement was not formally executed because of the strike
which commenced March 15, it was "put into effect in
substantial part." Sections 9 and 10 which were added to
article XVIII are attached hereto as Appendix B. [Omitted
from publication.]
The collective-bargaining agreement having been re-
opened pursuant to article XXVII, section 3, for the
purpose of negotiating a general across-the-board wage
adjustment, and an impasse having been reached, on
March 15 the Union engaged in a strike in support of its
wage demands. On April 3 the strike ended and the Union
made an unconditional offer to return to work on behalf of
all the strikers. At the time the strike commenced, there
were 271 employees in the bargaining unit. Seventy-nine
employees crossed the picket line before the strike ended,
10 jobs were eliminated, 199 permanent replacements were
hired during the strike (although not all remained in
Respondent's employ), and there were 35 job openings on
April 3 for which permanent replacements had not been
hired. These 35 jobs were filled between April 5 and 10 by
the strikers who had held the same jobs prior to the strike.
Frank Carmody, Respondent's employee relations man-
ager, testified without contradiction that during negotia-
tions which took place during the strike, the question of
reinstatement of strikers was discussed with the union
negotiating committee on several occasions , and the
Union's consistent position was that the permanent striker
replacements should be terminated and the strikers
returned to their old jobs. The Respondent was unwilling
to do so in view of commitments made to the replacements.
Carmody's testimony regarding the positions of the
respective parties on April 3 is corroborated in material
respects by Arthur Wood, then the Union' s International
representative. On the morning of April 3, Carmody met
the Union's representatives at Respondent's gate and was
informed that the strikers were unconditionally offering to
return to work. Carmody asked that the Union's offer be
made in writing and, at approximately 9 a.m., the union
representatives returned with such a letter. Carmody
informed Wood that the Respondent did not know exactly
how many jobs were open or where, but that there were not
jobs for all of the strikers since permanent replacements
had been hired. Union representatives took the position
that if work was not available for the strikers, this
constituted laying them off, and since the strikers had
seniority over the replacements, they were entitled to
"bump" the replacements. Respondent took the contrary
view and stated it would take a couple of days to determine
which jobs were available.
At approximately 10 a.m. that morning, the negotiating
committees of both parties met pursuant to the Union's
request. The Union again contended that since the strikers
had greater seniority rights under the contract than the
permanent replacements, the replacements should be laid
off and the strikers reinstated immediately. Respondent
California location, and its 2080 Century Park East, Los Angeles , California
location, excluding confidential secretaries , executive attendants , research
associates, accounting clerks, payroll clerks, bookkeepers, professional
employees , guards, and supervisors as defined in the Act.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
replied that it had hired the replacements as permanent
replacements and had an obligation to them, but that the
Company was willing to continue negotiations on the
contract. Carmody testified further that since no agree-
ment had been reached on the wage reopener, the "no
strike" clause was still suspended and Respondent was
fearful that the Union would call another strike as soon as
the strikers had replaced the replacements, in which case
the Respondent would be in a desperate position.
B. Institution of the Preferential Reinstatement
System
In the afternoon of April 3, Carmody met with
Respondent's attorney regarding the reinstatement rights
of the replaced strikers. The decision was made that
Carmody should devise a preferential reinstatement system
which would avoid any discrimination. Carmody thereafter
prepared the preferential reinstatement system and an
explanation of its implementation, which is attached hereto
as Appendix C. [Omitted from publication.] The draft of
the document was completed and mailed to the Union and
to the replaced former strikers on April 5. Carmody
testified that the Respondent didn't discuss the plan with
the Union because the Union would not have accepted it
since it had made its position clear that the strikers, on the
basis of seniority, should replace the permanent replace-
ments.
On April 5 the Union filed the following grievance,
based on article XVII, section 1 of the contract:
The company is in violation of the SENIORITY
CLAUSE which states:
Seniority shall be measured from the employee's most
recent date of hire. Employees shall acquire seniority
only upon completion of the probationary period at
which time their seniority shall date from their most
recent date of hire.
The company has hired replacements for jobs for
which union members are entitled, in accordance with
the seniority clause.
The Union demands that the membership return to
work in accordance with the seniority clause. The
Union demands that the replacements hired be subject
to the seniority clause.
The Respondent replied by letter of April 10 as follows:
Mr. Francis Ginn, Chief Steward
International Chemical Workers
Union Local 805
14436 Sherman Way
Van Nuys, California
Dear Mr. Ginn:
strikers have a right to displace ("bump") their
replacements would be valid with respect to any
temporary replacements , but inasmuch as all replace-
ments in this instance were hired as permanent
employees the replaced strikers have no such right.
The company finds that there is no provision in our
contract which alters this basic right. Article 28 does
provide that seniority will prevail in layoffs and recalls
from layoff, however, this provision is obviously
inapplicable where there was no layoff . Replacements
were hired to fill positions vacant as a result of a strike,
a voluntary walkout, not a layoff imposed by the
company.
The strikers right to reinstatement upon unconditional
offer to return to his job depends upon his position still
being vacant. This is a right provided by law rather
than our contract. There is no provision in our contract
which purports to alter the nature of this right. It is the
company's opinion that your position is incorrect as a
matter of law. It is also the company 's opinion that this
is a question of law entirely intrisic to our contract,
there being no terms in the Agreement capable of
application to this particular issue.
Although the company has willingly stated its position
in response to your "Grievance", it should be made
perfectly clear that this is not regarded as a proper
subject for grievance procedure as provided by Article
20 of the Agreement.
Sincerely yours,
/s/ Frank C. Carmody
Personnel Manager
Thereafter, the parties exchanged correspondence re-
garding the grievance , the Union contending the matter
was arbitrable and the Respondent contending the contra-
ry
-By April 10, all of the former strikers whose positions
had not been filled during the strike had been reinstated.
On that date the negotiating committees met and the
Respondent explained how the preferential reinstatement
system would operate. The Union objected to the institu-
tion of this system and reiterated its position as set forth in
the April 5 grievance , that seniority should prevail and that
the former strikers should "bump" the permanent replace-
ments . The preferential reinstatement system was imple-
mented on April 11 and has been consistently followed
with the modification of December 28.
On April 25 , the parties met again pursuant to the
Union's request . Exactly what transpired is not clear,
except that the Respondent notified the Union it was going
to institute its last offer.
C. The December 28 Modification of the
Preferential Reinstatement System
has the right to hire permanent replacements for A few days prior to December 28, Wood met Carmody
economic strikers and is under no obligation to in the lobby of Respondent' s personnel office and,
discharge the replacements when the strikers offer to according to Wood , "presented to him two problems" that
return. Your argument to the effect that replaced had arisen through the implementation of the Preferential
It is a clearly recognized rule of law that an employer
BIO-SCIENCE LABORATORIES
Reinstatement System. Wood was concerned that in high
turnover sections of the lab where all of the strikers had
been recalled, vacancies would occur which Respondent
might fill with new employees rather than continue
recalling former strikers. "The other problem" presented to
Carmody involved unreinstated strikers who, because of
the elimination of jobs within their classification, had only
a slight chance for recall. Carmody stated he recognized
the problems and would check with Respondent's attor-
neys. Carmody also talked to the Union's president,
Malakowsky, regarding the problems. After discussing the
matter with Respondent's attorneys, Carmody prepared a
letter dated December 28, which modified the preferential
reinstatement system to provide, in substance, that once
the preferential reinstatement list for a particular job
classification had been exhausted, other unreinstated
strikers within the same labor grade would be given the
option of filling the vacancy. Carmody discussed the
contents of the letter with Malakowsky before it was sent
to Wood. Malakowsky neither approved nor objected to it.
Wood testified that the letter of December 28 "corrected"
one of the problems he had discussed with Carmody.
D. Overtime in the Radioisotopes Section
The General Counsel contends that Respondent as-
signed overtime to its regular employees in the radioiso-
topes section in order to avoid reinstating certain former
strikers. The parties stipulated that the overtime hours
worked in the radioisotopes section from April 24 through
May 20, 1973, were as follows: 4
Overtime
Overtime
Hours
Worked by
Bargaining
Unit
4/24-5/21/72 239 141
5/22-6/18/72 274 155
6/19-7/17/72 255 153
7/18-8/13/72 268 179
8/14-9/10/72 382 214
9/11-10/8/72 223 128
10/9-11/5/72 38 15
11/6-12/3/72 74 54
12/4-12/31/72 75 43
1/1-1/28/73 45 33
1/29-2/23/73 59 32
2/24-3125/73 104 58
3/26-4/22/73 28 12
4/23-5/20/73 23 3
The General Counsel contends that the use of overtime
was part of a "scheme" to avoid reinstatement of stnkers
as "is indicated by the Respondent's failure to grant the
4 The record does not disclose the number of overtime hours worked
prior to April 24.
5 Exhibits stipulated to by the parties disclose that out of 199 strikers,
161 have been recalled by the Respondent , 47 of whom declined
reinstatement , and at the time of the hearing 36 former strikers remained on
the preferential reinstatement list. The total unit complement is approxi-
mately 271 employees.
801
striking employees their seniority rights, and the inordinate
use of overtime . . . [and] apparently to get rid of the
Union by getting rid of the most senior employees who
were the primary union adherents . . . . The culmination
of the scheme was the Respondent's petition to decertify
the Union, filed in December 1972. By that time, the
Respondent had successfully kept most of the former
strikers out of the plant by the Preferential Reinstatement
System and the use of overtime rather than recalling the
strikers." 5 -
Respondent contends the use of overtime in the
radioisotopes section "was necessitated by legitimate
business considerations and was not related to any desire to
block the reinstatement of strikers."
Dr. Thomas LaGanga , assistant director of the endo-
crinology department, testified that the department is
comprised of six sections, one being radioisotopes. The
substance of his testimony was that the radioisotopes
section had acquired a new supervisor around the end of
January; 9 tests new to the section were transferred into
the section a week later, which increased the number of
tests performed in the section from 5 to 14; 2 new tests
were later introduced; there was a shortage of trained,
licensed personnel (nonbargaining unit personnel); and
also that the bargaining unit employees were not fully
trained. He further testified that by October the new
supervisor had gotten a grasp of the work in the section,
the training of the employees had neared completion, the
licensed personnel situation had stabilized, and another
assistant department director had been hired. He also
testified that while the utilization of additional trained
bargaining unit employees may have reduced the amount
of overtime hours, the primary need was for competent
licensed personnel who, in addition to performing bargain-
ing unit work, also perform work which only they, as
licensed personnel, are lawfully permitted to do. Carmody
testified that there was no provision in the collective-
bargaining agreement requiring the Respondent to consult
with the Union before assigning overtime, nor was it
company policy or practice to consult with the Union in
the matter of the assignment of overtime .6
E. Contentions of the Parties
The General Counsel contends that "where a contract
requires that recall from layoff shall follow a strict
seniority system, with certain priorities, unremstated
economic strikers are considered under Laidlaw, supra, to
have the statutory right to be recalled on that basis, absent
a specific agreement to the contrary. A failure to accord
strikers at least the same opportunity for recall as laid-off
employees, absent an overriding business consideration,
constitutes discrimination within the meaning of Section
8(a)(3) of the Act, without regard to animus. More
specifically, unreinstated economic strikers must, under
6 Article VII of the contract covered overtime . Section 6 provided
Employees are required to work on overtime when so assigned. The
company shall excuse employee (s) from working on assigned overtime
for good reason when other qualified bargaining unit employee(s) are
available on the premises.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laidlaw, be accorded at least the rights of laid-off
employees as to vacancies that arise. Thus, where the
contractual recall rights of laid-off employees exceed
Laidlaw rights, strikers are entitled to the same rights as
laid-off employees. But where Laidlaw rights exceed recall
rights for laid-off employees, such statutory Laidlaw rights
may not be diminished to the level of those of laid-off
employees." The General Counsel points out that the
preferential reinstatement system "granted the former
strikers only seniority in the positions they held before the
strike, and paid no heed to the seniority provisions of
Article XVII of the Contract or the bumping rights
prescribed in Article XVIII as amended. Under the
Preferential System devised by Respondent, strikers with
virtually no seniority were reinstated, while employees with
seven years' seniority have still not been recalled."
Citing N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26
(1967), the Respondent contends the General Counsel
must establish by affirmative evidence that the Respondent
discriminated against employees in such a manner as to
discourage union membership or participation in concerted
activity. Pointing out that in the Fleetwood and Laidlaw
cases the evidence showed that the employer had discnmi-
nated against strikers as a class by refusing to recognize
their continuing status as "employees" under the Act and
thus failing to give them the preference over nonstrikers
and new applicants to which they were entitled in filling
vacancies occurring after the strike, Respondent contends
there has been no showing here that the Respondent
discriminated between strikers and nonstrikers or new
applicants. Respondent argues that unlike the employers in
Fleetwood and Laidlaw, the Respondent here willingly
recognized that the former economic strikers awaiting
reinstatement were entitled to be given preference over
new applicants as their prior positions became available,
and that it was precisely for this reason that the
preferential reinstatement system was adopted. Pointing
out that the Respondent drew exclusively from the list of
former strikers and did not hire any new applicants,?
Respondent contends its action did not carry a potentiality
for discouraging union membership and activity such as
was found inherent in the conduct of the employers in
Fleetwood and Laidlaw. Respondent further points out that
the same number of former strikers would have been
reinstated to the same number of jobs in the same period of
time under the plantwide bumping system which the Union
prefers, as under the preferential reinstatement system
which was used; and that while some of the former strikers
would have been recalled sooner if the bumping system
had been used, a corresponding number of other former
strikers benefitted from the preferential reinstatement
system. Thus, the Respondent's action in no way favored
nonstrikers over strikers nor took away any preference
from the strikers as a group, hence the Respondent's
conduct was neither intentionally nor inherently destruc-
tive of any protected employee rights.
Both the General Counsel and Respondent cite Brooks
Research & Manufacturing Company, 202 NLRB 634, as
7 The evidence established that at the Century Park East facility, one or
two new employees were hired in mstanLes where former strikers declined
reinstatement
supportive of their respective positions. In Brooks, the
employer and union agreed to preferential hiring lists for
striking employees who applied for reinstatement. Some
time later, the employer notified the employees remaining
on the preferential hiring list that "pursuant to the
company's procedures and policies, your rights and
seniority" had been terminated. The employer's procedures
and policies relied on provided that: "Any employee shall
cease to have seniority and his name shall be removed
from the Seniority List and his employment with the
company will terminate in the event ... [h ]e is laid off for
a period of six (6) consecutive months." Later on the
employer wrote the same unrecalled employees and
notified them it had extended the preferential hiring lists
on the basis of the agreement reached with the Union,
"giving . . . the employees recall rights for one year after
layoff ...."
In Brooks, the Board stated:
We reject the Respondent's contention that economic
strikers should be equated with laid-off employees. The
reinstatement rights of economic strikers under Fleet-
wood Trailer and Laidlaw are statutory as distinguished
from the rights of laid-off employees. A layoff
constitutes a discontinuance of work for an employer
which does not rise to the level of a lawful economic
strike, participation in which is protected under Section
7 and 13 of the Act ... .
The General Counsel contends "the Board [in Brooks]
was there stating that where Laidlaw rights exceed the
rights of laid-off employees then Laidlaw rights prevail.
However, the Board gives effect to parties' collective
bargaining agreements and will give effect to a strike
settlement agreement which expands the rights of econom-
ic strikers beyond those rights set forth in Laidlaw. United
Aircraft Corporation, 192 NLRB 382. It would therefore
logically follow that where the rights of employees are
governed by the parties' contract, the Employer cannot
afford the strikers lesser opportunities for recall than they
have under the contract. Or, put another way, where the
contractual rights of employees exceed Laidlaw rights, the
Employer cannot give the employees less opportunity for
recall under Laidlaw than they have under the contract."
The General Counsel then argues that the denial of
seniority rights to all positions except the specific one each
held prior to the strike made clear to all employees,
whether new hires, reinstated strikers or unreinstated
strikers, that if they struck, grievous harm to their jobs
would be the probable result; and that by denying them
the seniority and bumping rights under the contract,
Respondent violated Section 8(a)(3) and (1) of the Act.
The Respondent contends that in Brooks the Board
recognized that reinstatement following a strike, and recall
following a layoff, are essentially dissimilar types of
transactions and are governed by different sets of princi-
ples-the former statutory and the latter contractual; and
that while there is nothing to prohibit an employer and a
union from agreeing to reinstate strikers in accordance
with the same procedures used for recalling employees
BJO-SCIENCE LABORATORIES 803
from layoff, there is no basis for assuming that those
procedures are applicable in the absence of such an
agreement. Respondent then contends that if it were
proper, as alleged by the General Counsel, to determine the
reinstatement rights of economic strikers by looking to the
contract layoff and recall provisions, those provisions
should either be applied in their entirety or not at all,
instead of on a selective basis which ignores certain
provisions of article XVIII, which would have resulted in
limiting the reinstatement rights of the strikers much more
than under the preferential reinstatement system, even to
the extent of disqualifying them for reinstatement after 60
days for failure to comply with the contractual provision
requiring employees on layoff to give notice in writing
every 60 days of their availability for employment.
The Respondent then contends that while there is no
need to consider the Respondent's economic justification
since the General Counsel failed to sustain his burden of
showing discrimination, the record amply demonstrates
that the Respondent's determination to give priority in
filling vacancies to employees who had worked in the same
section and job classification in which the vacancies
occurred was reasonable and necessary in view of the
nature of the operations, and to have attempted to fill such
vacancies through plantwide bumping would have been
disastrous financially and businesswise. Under the prefer-
ential reinstatement system, the Respondent looked first to
former strikers who had worked at the time of the strike in
the job classification and section in which the vacancy
occurred and offered reinstatement to the employees with
the highest plantwide seniority among that group. Carmo-
dy testified that this was done because the people returning
in this fashion had the skill and ability to perform work
done in that section, thereby eliminating the excessive cost
of retraining, which the company placed at $1,800 for lab
technicians and associates and $1,000 for nontechnical
individuals, and also enabled the Respondent to provide
the best service to its clients. In support of its position,
Carmody testified that if the Respondent had followed
strict companywide seniority in recalling employees, that
out of 35 jobs filled between April 5 and 10, 22 would have
required retraining; and to have filled the next 6 jobs
would have involved bumping and reshuffling which would
have required retraining 16 additional people. He testified
that if the original 35 openings had been filled by strikers
who had formerly occupied the jobs, and strict company-
wide seniority had been followed thereafter, a continual
bumping process would have resulted since employees
would be moving in and out of jobs continually, each time
requiring retraining and having a disastrous effect on the
departments.
The General Counsel argues that " it is very difficult to
claim that it would be too costly to retrain employees when
Respondent undertook to train the 199 replacements,
rather than lay them off and reinstate the more experi-
enced strikers who offered to return to work in less than 30
days." While the Respondent' s witnesses testified to the
amount of training that would be required in recalling
employees to jobs with which they were not familiar, the
General Counsel's witnesses , former strikers, testified to
their experience in other departments and sections which
they felt qualified them, with a minimum amount of
training, for a variety of jobs. Therefore, argues the
General Counsel, "the Respondent's business justification
evidence is purely-and simply an afterthought to justify its
action."
F. Analysis and Conclusions
In N.L R.B. v. Mackay Radio and Telegraph Co., 304 U.S.
333, the Supreme Court held that an employer, in order to
carry on his business, could lawfully hire permanent
replacements for his employees who were engaged in an
economic strike, and that the employer was under no
obligation to create positions for such replaced strikers by
discharging their replacement at the termination of the
strike. Thus, although the act of replacement undoubtedly
discourages union membership, the employer has the
lawful right to retain the replacements who were hired to
protect his interest. However, the economic striker is not
wholly unprotected since, under Section 2(3) of the Act, he
retains his status as an employee and, after application for
reinstatement, is ordinarily entitled to his former or to a
substantially equivalent job for which he is qualified when
it becomes available. An employer refusing to reinstate
such strikers must show that the action was due to
legitimate and substantial business justification. Fleetwood
supra. Thus, although the initial replacement of the striking
employees is proper, a subsequent refusal to reinstate them
when vacancies arise may be unlawful. The business
justification in Mackay was the need to assure replace-
ments of permanent positions in order to maintain
operations during the strike. Respondent has shown such a
business justification in the instant case.
Since, under Fleetwood, the replaced economic strikers
are entitled to their former or substantially equivalent jobs,
when ajob opening finally occurs, the issue becomes which
striker is entitled to the job. Quite clearly, if a lawful strike
settlement agreement is made between the employer and
the union which provides a method for recalling employ-
ees, the provisions would be applicable. If, however, there
is no strike settlement agreement and the collective-
bargaining agreement is silent in the circumstances, must
the employer, as the General Counsel contends, apply
another contract provision since there is no specific
agreement not to do so? Or, in the absence of a contractual
provision covering the reinstatement of strikers, is the
employer free to reinstate them on some other basis?
The Board has specifically rejected the contention that
economic strikers should be equated with laid-off employ-
ees, stating in Brooks Research that "The reinstatement
rights of economic strikers under Fleetwood Trailer and
Laidlaw are statutory as distinguished from the rights of
laid-off employees. A layoff constitutes a discontinuance
of work for an employer which does not rise to the level of
a lawful economic strike, participation in which is
protected under Section 7 and 13 of the Act ...."
Both the Board and court pointed out in Laidlaw that in
Mackay the Supreme Court said that so long as the
employer was not antiunion motivated, he might "resort to
any one of a number of methods of determining which of
its striking employees would have to wait because [other]
men had taken permanent positions during the strike."
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hence, it seems logical that in the absence of a contractual
provision which was negotiated with the intent of covering
the particular circumstances, an employer may use some
other method of recalling former strikers as long as it is not
shown to have been unlawfully motivated or inherently
destructive of employee rights. In N. L. R. B. v. Great Dane
Trailers, supra, the Supreme Court held that the Board
could presume unlawful motivation once discriminatory
action was shown unless the employer demonstrated
"legitimate and substantial business justification." Here,
not only has the General Counsel failed to show discnmi-
nation such as would shift the burden to the Respondent to
demonstrate "legitimate and substantial business justifica-
tion," but the Respondent has demonstrated "legitimate
and substantial business justification" for applying the
preferential reinstatement system. Thus, the Respondent
demonstrated that the preferential reinstatement system
was designed to place people back into jobs and sections
with which they were familiar, thereby avoiding substantial
retraining costs and a continual reshuffling of personnel
and jobs which would disrupt the efficiency of the
operations.
Unlike the cases relied upon by the General Counsel, the
Respondent has neither severed the employee relationship
of any of the former strikers, nor has he hired new
employees in their places .8 Instead, the Employer has
proceeded to reinstate the former strikers to all job
openings as they became available. Nor does the record
disclose, as the General Counsel contends, that the
utilization of the preferential reinstatement system resulted
in discrimination against employees with the most seniori-
ty. General Counsel's Exhibits H, I, J, and K9 disclose that
out of a total of 7 strikers with seniority dates from 1955 to
1965, 5 have been recalled and 2 are on the preferential
reinstatement list; all 7 strikers with seniority dates in 1966
were recalled, 2 having declined reinstatement; out of 20
strikers with seniority dates in 1967, 17 were recalled, 4 of
whom declined reinstatement, and 3 are on the preferential
reinstatement list; of 34 strikers with seniority dates in
1968, 29 were recalled, 9 of whom declined reinstatement,
and 5 are on the preferential reinstatement list; of 45
strikers with seniority dates in 1969, 35 were recalled, 6 of
whom declined reinstatement and 10 are on the preferen-
tial reinstatement list; of 44 employees with seniority dates
in 1970, 35 have been recalled, 12 of whom declined
reinstatement, and 9 are on the preferential reinstatement
list; of 32 strikers with seniority dates in 1971, 25 were
recalled, 12 of whom declined reinstatement and 5 are on
the preferential reinstatement list; of 3 strikers with
seniority dates in 1972, 1 was offered and declined
reinstatement and 2 are on the preferential reinstatement
list. Thus it is clear to me, and I find, that the preferential
reinstatement system and the December 28 modification
did not represent an attempt by the Respondent to
undermine the Union, nor was it unlawfully motivated or
inherently destructive of employee rights. Accordingly, I
shall recommend that paragraphs 11(a), (b), and 12(a) of
the complaint be dismissed.
Regarding the allegations that the Employer instituted
and revised the preferential reinstatement system without
notice to or bargaining with the Union, the evidence
established that during negotiations which preceded the
end of the strike, the question of the reinstatement of
strikers was discussed several times, the Union consistently
taking the position that the permanent replacements
should be terminated and the strikers returned to their
jobs, and the Respondent consistently declining to do so in
view of lawful commitments which it made to the
replacements. Both parties adamantly maintained their
respective positions early on the morning of April 3 when
the unconditional offer to return to work was made, and .
later in the morning at the 10 a.m. meeting of the
negotiating committees which was held at the Union's
request. The grievance filed by the Union on April 5, and
the exchange of correspondence regarding the grievance,
which extended into June, discloses that the parties were
unswerving in their positions. Furthermore, Wood testified
that the Union's position remained the same through
December. The Supreme Court has observed that "the Act
does not encourage a party to engage in fruitless marathon
discussions at the expense of frank statement and support
of his position." 10 Moreover, the record disclosed that at
the 10 a.m. negotiating meeting on April 3, the company
advised the Union it was willing to continue negotiations.
Thus, the Respondent was faced with approximately 199
strikers seeking reinstatement , with approximately 35
positions available, and with an impasse over how
reinstatement would be handled. Accordingly, it immedi-
ately reinstated the 35 former strikers to jobs which they
had held before the strike, and instituted a procedure for
recalling other strikers which, I have found, to be neither
discriminatory nor destructive of employee rights. Moreo-
ver, after its institution, the Union neither asked to bargain
regarding the matter or objected to the system other than
to press its grievance which called for the termination of
the permanent replacements.
Regarding the December 28 modification of the prefer-
ential reinstatement system, Wood testified that he
contacted Carmody prior to December 28 and presented
him with two "problems," one of which, according to
Wood, "was corrected" by the December 28th modifica-
tion. It is clear that Wood did not ask to bargain about the
matters, he merely presented two problems to the Respon-
dent, one of which it corrected to the Union's satisfaction.
In these circumstances I recommend the dismissal of
paragraph 11(c) of the complaint.
With respect to the General Counsel's contention that
the Respondent's use of unusual amounts of overtime in
the radioisotope section, rather than recalling former
strikers to that section, was a violation of Section 8(a)(3)
and (1) of the Act, the evidence disclosed that it was
neither the Respondent's policy nor practice to consult
with the Union regarding overtime, nor was there any
8 The General Counsel did not contend that the hiring of one or two new 9 The names of Luciano Reyes and Sherry Nielson appear on the list of
employees at the Century City location was discriminatory, presumably employees which the parties stipulated were recalled, but do not appear on
because the Respondent was unable to find employees on the preferential the seniority roster.
reinstatement list who would travel to that location 10 N LR B. v. American National Insurance Co., 343 U S. 395, 404.
BIO-SCIENCE LABORATORIES
requirement in the collective-bargaining agreement limit-
ing the Respondent in the assignment of overtime. The
General Counsel contends, however, that the Respondent
was engaged in a scheme to get rid of the Union by getting
rid of the most senior employees who were the primary
union adherents, and that the culmination of the scheme
was the Respondent's petition filed in December, by which
time, according to the General Counsel, "the Respondent
had kept most of the former strikers out of the plant by
Preferential Reinstatement System and the use of overtime
rather than recalling the strikers." Aside from the fact that
the evidence clearly shows that the Respondent hired only
former strikers through the preferential reinstatement
system, the only evidence regarding the amount of hours of
overtime worked is from April 24 through May 20, 1973,
indicating that the number of overtime hours dropped
substantially in October. The Respondent's defense was
based in part upon conditions within the department which
commenced m January, prior to the commencement of the
strike, and continued until October. Thus, I have no way of
knowing whether the amount of overtime increased or
decreased following the end of the strike. I find, therefore,
that the General Counsel has failed to prove, by a
preponderance of the evidence, the allegations in Sections
ii In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
805
12(b) and (c) of the complaint and recommend their
dismissal.
In view of the foregoing findings and recommendations,
it is unnecessary to consider the Collyer issue.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
(1) The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
(2) International Chemical Worker 's Union , Local 805, is
a labor organization within the meaning of Section 2(5) of
the Act.
(3) Respondent has not engaged in any unfair labor
practices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.