Lone Star Industries

National Labor Relations Board - Board Decisions

Nov 9, 1992

309 N.L.R.B. 430 (N.L.R.B. 1992)

430
309 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Board issued its original Decision and Order in Lone Star
Industries, 279 NLRB 550 (1986), which was enforced in part and
remanded in relevant part for further explanation on the pending
issue. Lone Star Industries v. NLRB, 8l3 F.2d 472 (D.C. Cir. 1987).
In a Supplemental Decision and Order, the Board reaffirmed its prior
conclusion that the Respondent did not violate Sec. 8(a)(3) and (1)
by refusing to recall strikers by seniority. Lone Star Industries, 298
NLRB 1075 (1990). Subsequently, the Unions petitioned for review
in the D.C. Circuit. Thereafter, the court granted the Union’s petition
for review and again remanded the case to the Board for further pro-
ceedings consistent with the court’s opinion. Teamsters Locals 822
and 592 v. NLRB, 956 F.2d 317 (1992).
On April 28, 1992, the Board notified the parties that it had ac-
cepted the court’s remand and invited the filing of statements of po-
sition. Thereafter, the General Counsel, the Unions, and the Re-
spondent filed statements of position.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 In both the original and supplemental decisions, the Board as-
sumed, arguendo, that the parties concluded an agreement to recall
former strikers by seniority. Based on the credited testimony, we ex-
pressly find that the Respondent’s May 9 bargaining proposal in-
cluded the seniority recall offer. We further find that the Unions’
June 8 acceptance of this outstanding offer prior to the Respondent’s
withdrawal of recognition created a binding agreement.
4 192 NLRB 382 (1971), modified 534 F.2d 422 (2d Cir. 1975),
on remand 247 NLRB 1042, 1045 (1980), enfd. mem. 661 F.2d 910
(2d Cir. 1981).
5 293 NLRB 182 (1989).
6 298 NLRB at 1077 fn. 6.
Lone Star Industries, Inc. and Teamsters Local
Unions 822 & 592 a/w International Brother-
hood of Teamsters, AFL–CIO.1 Case 5–CA–
12015
November 9, 1992
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The sole issue on remand from the United States
Court of Appeals for the D.C. Circuit is whether the
Respondent violated Section 8(a)(3) and (1) of the Act
by breaching a strike settlement agreement to recall
former economic strikers by seniority.2
We accept the remand and we therefore accept, as
law of the case, the court’s conclusions. Applying
those conclusions, we find that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
Prior decisions in this proceeding have fully de-
scribed the factual situation here. In brief, employees
represented by the Unions commenced an economic
strike against the Respondent on April 23, 1979, dur-
ing negotiations for a new contract. The Respondent
eventually hired permanent replacements for all strik-
ers. On June 8, the Unions sent the Respondent a tele-
gram accepting the contract proposal which it made at
the last bargaining session on May 9. According to
credited testimony, that proposal included an offer to
recall strikers to job vacancies in the order of seniority.
In response to the Unions’ telegram, the Respondent
sent a letter on June 8 informing the Unions that all
strikers had been permanently replaced and that it was
withdrawing recognition based on a claimed good-faith
doubt of the Unions’ continuing majority status. The
Respondent recalled former strikers in the order of se-
niority until May 1980. Thereafter, it recalled strikers
on the basis of other factors.
The original charges and complaint against the Re-
spondent included the allegation that the withdrawal of
recognition violated Section 8(a)(5) of the Act. The
Board granted the Unions’ request to withdraw the
8(a)(5) charges on March 11, 1982. In its original deci-
sion, the Board dismissed the allegation that the Re-
spondent violated Section 8(a)(3) by failing to recall
strikers by seniority in and after May 1980. In support
of this dismissal, the Board emphasized the fact that
the 8(a)(5) charges had been withdrawn.
The D.C. Circuit found the Board’s rationale inad-
equate on this issue and remanded for further expla-
nation.
In its supplemental decision, the Board found that
the Respondent’s departure from a seniority recall pro-
cedure did not violate Section 8(a)(3), even if that pro-
cedure had been required by a strike settlement agree-
ment.3 The Board reasoned that: the Union’s with-
drawal of all 8(a)(5) allegations negated any possible
inference of union animus deriving from the alleged
breach of the strike settlement agreement; there was no
statutory right to recall by seniority; and there was no
evidence that the strike settlement agreement adversely
affected former strikers vis-a-vis nonstrikers or new
employees, or that the Respondent’s criteria
discriminatorily favored other employees over strikers.
In a footnote, the Board distinguished the present case
from United Aircraft Corp.4 and Hotel Roanoke,5
where the Board found 8(a)(3) violations for breaches
of strike settlement agreements. The Board reasoned
that in those cases, unlike in this case, ‘‘the specific
acts that breached the agreements . . . discriminatorily
favored nonstrikers at the expense of strikers.’’6
On review of the Board’s supplemental decision, the
D.C. Circuit vacated the Board’s decision and re-
manded. The court rejected the Board’s effort to distin-
guish United Aircraft and Hotel Roanoke. The court
construed those cases as resting upon the following ra-
tionale:
Employees settle strikes through contract at least
in part because they expect their employer to
honor the terms of a settlement. Breaches by the
employer of strike settlements negotiated by
unions sap the employees’ power to achieve their
goals by bargaining and thereby discourage mem-
431LONE STAR INDUSTRIES
7 956 F.2d at 319.
8 See NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967).
bership in the labor organizations that give the
employees at least some of their bargaining power
in the first place.7
The court held that the Board had ‘‘spurned its prior
precedent,’’ and that the Board had not explained why
it had done so. The court therefore remanded the case
to the Board for further explanation.
The Board has accepted the court’s remand and thus
the court’s opinion is the law of the case. The law of
the case includes the court’s construction of United
Aircraft and Hotel Roanoke. Applying that law, we
find a violation in this case.
We have found that the Respondent breached the se-
niority recall provision of the strike settlement agree-
ment accepted by the Unions on behalf of the strikers
on June 8, 1979. Pursuant to the principle of United
Aircraft and Hotel Roanoke as construed by the D.C.
Circuit, this breach had an adverse impact on the strik-
ers’ rights to join and bargain collectively through
unions. Even if the adverse effect was ‘‘comparatively
slight,’’ the burden shifted to the Respondent to prove
a legitimate and substantial business justification for its
conduct.8 The Respondent has not attempted to offer
such proof. Accordingly, we find on the law of the
case that the Respondent breached the strike settlement
agreement by failing to recall former strikers in the
order of seniority violated Section 8(a)(3) of the Act.
AMENDED REMEDY
Having found that the Respondent has unlawfully
failed to recall former economic strikers employees in
the order of seniority, we shall require the Respondent
to abide by the agreed seniority recall system, to rein-
state immediately all former strikers who would have
been recalled earlier under a seniority system, and to
make them whole for any loss of earnings and other
benefits suffered as the result of discrimination against
them. Backpay shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Lone Star Industries, Inc., Norfolk and
Richmond, Virginia, its officers, agents, successors,
and assigns, shall take the action required in the
Board’s Order reported at 279 NLRB 550, as modified
below.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Discriminating against employees engaged in
union and other protected concerted activities by fail-
ing to adhere to a strike settlement agreement provid-
ing for the recall of former strikers in the order of se-
niority.’’
2. Insert the following as 2(b) and reletter the subse-
quent paragraphs.
‘‘(b) Reinstate and adhere to the strike settlement
provision for recalling former strikers to job vacancies,
offer immediate and full reinstatement to all strikers
who should have been recalled previously based on se-
niority, and make them whole, with interest, for any
loss of earnings and benefits suffered as a result of the
unlawful failure to recall them in proper seniority
order.’’
3. Substitute the attached notice for that of the
Board in its original Decision and Order.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership in Teamsters
Local Union 822 a/w International Brotherhood of
Teamsters, AFL–CIO, and Teamsters Local Union 592
a/w International Brotherhood of Teamsters, AFL–
CIO, or any other labor organization, by disqualifying
for reinstatement those employees who have engaged
in a lawful strike on the basis that such employees
were deemed by us on the basis of insufficient infor-
mation to have obtained comparable employment.
WE WILL NOT discourage membership in the afore-
said labor organizations, or in any other labor organi-
zation, by discontinuing the assignment of work in ac-
cordance with seniority of reinstated employees who
have engaged in a lawful strike and have made uncon-
ditional applications for reinstatement to vacant posi-
tions as they occur, without prejudice to their seniority
and other rights and privileges, or by otherwise dis-
criminating against any of our employees in regard to
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their hire, tenure of employment, or other terms or
conditions of their employment.
WE WILL NOT discriminate against our employees by
failing to recall and reinstate them in accordance with
their seniority pursuant to terms reached in our strike
settlement agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights guaranteed by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
any striker who would otherwise have been reinstated
but for our practice of disqualifying for reinstatement
employees who we deemed on the basis of insufficient
information to have obtained comparable employment
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their exclusion from recall because they were deemed
to have obtained comparable employment on the basis
of insufficient information, less any net interim earn-
ings, plus interest.
WE WILL immediately reinstate the practice of as-
signing work and overtime to employees in accordance
with seniority and WE WILL make whole recalled strik-
ers for any loss of earnings resulting from our not as-
signing work and overtime to them on the basis of se-
niority, plus interest.
WE WILL reinstate and adhere to the strike settle-
ment agreement to recall former strikers by seniority,
WE WILL offer immediate and full reinstatement to any
former strikers who should have been recalled earlier
based on seniority, and WE WILL make them whole,
with interest, for any loss of earnings and benefits pay,
they may have suffered by reason of our discrimina-
tory failure to recall them by seniority.
LONE STAR INDUSTRIES, INC.