Lone Star Industries, Inc.

National Labor Relations Board - Board DecisionsJul 11, 1990

298 N.L.R.B. 1075 (N.L.R.B. 1990)

LONE STAR INDUSTRIES 1075 Lone Star Industries, Incâ€ž and Teamsters Local Unions 822 & 592 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 5- CA-12015 July 11, 1990 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRAcRAFr AND OVIATT On April 28, 1986, the National Labor Relations Board issued its Decision and Order in this pro- ceeding' in which it found, inter alia, that the Re- spondent did not violate Section 8(a)(3) and (1) of the Act by abandoning a seniority system for re- calling permanently replaced strikers to job open- ings . Thereafter, the Respondent and the Unions each filed a petition for review with the United States Court of Appeals for the District of Colum- bia Circuit. On March 24, 11987, the court issued an unpublished memorandum opinion affirming the Board's Order except with respect to the Board's ruling on the recall issue. The court vacated that ruling and remanded the issue to the Board for fur- ther explanation of its reasoning. Subsequently, the General Counsel, the Unions, and the Respondent filed statements of position with the Board. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has accepted the court's remand and recognizes the court's decision as the law of this case. After further review of the entire record and the statements of position, and for the reasons set forth below, we reaffirm the Board's prior conclu- sion that the Respondent did not violate Section 8(a)(3) and (1) of the Act by failing to recall former strikers on the basis of seniority. As set forth more fully in the Board's original decision, the seniority recall issue arose in the after- math of an economic strike initiated by the Unions on April 23, 1979, following unsuccessful negotia- tions for a new collective-bargaining agreement. All but 15 of 168 unit employees participated in the strike. By June 8, 1979, the Respondent had re- placed all strikers. On that day, the Unions sent a telegram to the Respondent ending the strike, un- conditionally offering to return to work, and ac- cepting the Respondent's last bargaining position. That position purportedly included the Respond- ent's offer to recall strikers in order of seniority. 1 279 NLRB 550 (1986). By letter also dated June 8, the Respondent in- formed the Unions that all strikers had been re- placed and that it was withdrawing recognition based on a good-faith doubt regarding the Union's continued majority status. The Respondent thereaf- ter refused to bargain with the Union. Until May 1980, however, the Respondent recalled strikers by seniority. It then abandoned seniority and instituted a recall procedure based on a variety of factors whereby junior strikers could be recalled before senior strikers. On June 18, 1979, the Union filed charges in Cases 5-CA-11062-1 and 5-CA-11062--2, alleging that the Respondent's withdrawal of recognition and refusal to bargain violated Section 8(a)(1), (3), and (5). On March 14, 1980, the Union filed charges in the instant proceeding, alleging that the Respondent had violated Section 8(a)(1), (3), and (5). On January 25, 1982, while the judge's decision was pending before the Board, the Unions request- ed withdrawal of all 8(a)(5) charges, but not the 8(a)(3) and (1) charges alleging a discriminatory failure to recall former strikers by seniority on and after May 1980. The withdrawal request in Cases 5-CA-11062-1 and 5-CA-11062-2 was granted and the complaint dismissed by the Board on Feb- ruary 17, 1982. The request to withdraw the 8(a)(5) charges in the instant proceeding was' granted by the Board on March 11, 1982. In its original Decision and Order, the Board found that the Respondent did not violate the Act by failing to recall former strikers by seniority during and after May 1980. The Board rejected the General Counsel's theory that, without proof of a substantial and legitimate business justification for an alternative recall system, an employer's failure to recall strikers by seniority violates the Act. The Board also found that, "assuming the existence of a seniority recall agreement between the parties or of a consistent practice of recall by seniority, the Re- spondent's unilateral breach of that agreement or practice was lawful because the withdrawal of the 8(a)(5) charges precluded a contrary conclusion. In its unpublished memorandum opinion, the court of appeals questioned the Board's conclusion that the solicited dismissal of the 8(a)(5) charges re- quired the dismissal of that part of the remaining complaint alleging that the Respondent's refusal to recall strikers on the basis of seniority violated Sec- tion 8(a)(3) and (1) of the Act. The court found that "[t]here is nothing in the language of the Act conditioning the Board's duty to adjudicate alleged violations of Sections 8(a)(1) and 8(a)(3) on an alle- gation that those practices also violate Section 8(a)(5)." Accordingly, the court remanded "for either a determination whether Lone Star violated 298 NLRB No. 160 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sections 8(a)(1) or 8(a)(3) by refusing to recall strikers on the basis of seniority, or a well-reasoned explanation of the Board's decision not to make such a determination." Initially, we now expressly state that we do not view the withdrawal of the 8(a)(5) charges as a procedural bar to addressing the merits of the 8(a)(3) recall by seniority issue . In determining the merits of the 8(a)(3) issue, however, we view the withdrawal of the 8(a)(5) allegations as negating any possible inference of unlawful antiunion intent from the Respondent's alleged breach of a strike settlement agreement.2 In the absence of any con- tinuing claim of unlawful antiunion intent in the re- fusal to recognize and bargain with the Unions, there simply is no longer any statutory basis for finding that the Respondent had an obligation to implement any agreement on and after June 8, 1979, notwithstanding the Unions' purported ac- ceptance of the Respondent's last contract offer. A fortiori, there is no basis for finding that the Re- spondent had an enforceable obligation to adhere to a seniority recall provision in a strike settlement agreement, which it never executed or otherwise accepted as binding, when it changed the criteria for recall in May 1980. Further, there is no basis for finding that the Respondent had an enforceable obligation to bargain with the Union prior to making unilateral changes in established recall pro- cedures. Consequently, it would be contradictory to find that the Respondent's action had the dis- criminatory effect of undermining the Unions' status as exclusive bargaining representatives or interfering with the former strikers' protected col- lective-bargaining rights.3 The General Counsel must have some other basis for proving the requi- site element of antiunion discriminatory motivation. 2 See Mistletoe Express Service, 295 NLRB 273, 274 (1989)("The ab- sence of an 8(a)(5) allegation negates any inference of unlawful antiumon intent that might be drawn from a finding of an unlawful failure by the Employer to adhere to the terms of the contract. " Id. at 274.) 3 Even assuming that an agreement to recall by semority resulted from the Unions' telegram of June 8, 1979 , there no longer is any dispute of the Respondent's claim that the union parties to that agreement did not have ei2clusive majority representative status in May 1980. Contrary to our dissenting colleague and the General Counsel , we do not view the Supreme Court's holding in Retail Clerks v. Lion Dry Goods, 369 U.S. 17 (1962), as controlling authority for enforcing a strike settlement between an employer and a nonmajority union through Sec . 8(aX3). It may well be that pursuant to Lion Dry Goods the alleged strike settlement agree- ment between the Respondent and the Unions here would be enforceable in a Sep. 301 action. Agreements enforceable under Sec. 301 are not, however, invariably enforceable through the Act's unfair labor practice provisions. See, e.g., Allied Chemical & Alkalai Workers Local I v. Pitts- burgh Plate Glass Co., 404 U.S 157, 181 fn 20 (1971) (employer does not violate Sec. 8(ax5) by midterm modification of contractual term relating to permissive bargaining subject even though breach of contract remedy may be available under Sec. 301). No such basis exists, however, on this record. Initially, we repeat the discussion of employees' LaidlawÂ¢ rights in the Board's original decision: Apart from obligations imposed by unilater- al practice or through the collective-bargain- ing process, there is nothing in the Act itself or in the Board's articulation of Laidlaw rights that establishes an individual, economic strik- er's right to recall by seniority. Barring a si- multaneous recall of all former strikers, there will necessarily be discrimination within the strikers' class as to the order of individual re- turns to the workplace, whether recall is by seniority, merit, age, or alphabetical order. This discrimination is not prima facie proof of unlawful motivation because it does not ad- versely affect employee rights even "to some extent." Consequently, before any burden of justification for failing to recall a striker by se- niority can be imposed on a respondent, the General Counsel must establish the existence of a seniority recall right by reference to a col- lective-bargaining agreement or a binding es- tablished past practice. [279 NLRB at 551; fn. omitted.] We emphasize the significance of the foregoing in our analysis of the issue presented here. The General Counsel contends that the Respondent's change in recall procedure had adverse effects on the former strikers' statutory rights and, therefore, is presumptively unlawful, irrespective of intent, unless the Respondent proves legitimate and sub- stantial reasons for its action. This argument would prevail if the statutory right to reinstatement identi- fied in Laidlaw included the right to reinstatement in a particular order. We have held, however, that no such right exists under Laidlaw. This argument would also prevail if the right to reinstatement by seniority had independent statutory protection as a consequence of bargaining obligations enforceable by the Board. We have held, however, that no such obligations exist here. No other adverse effects on former strikers have been identified that warrant the presumption of un- lawful discrimination. The General Counsel has not established that the Respondent's departure from preferential recall by seniority adversely affected former strikers vis-a-vis nonstrikers or new employ- ees. The Respondent continued to recall only former strikers to job vacancies. To the extent that the Respondent's change in recall procedures had adverse effects on some indi- 4 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F .2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970) LONE STAR INDUSTRIES 1077 vidual former strikers who would have returned to work sooner on the sole basis of seniority, it must have had corresponding beneficial effects on other individual former strikers who would have re- turned to work later on that basis.s There is no in- dication that the protected union and strike activi- ties of individuals whose reinstatement was delayed were different from those activities of other former strikers. There is neither allegation nor evidence that the Respondent's post-May 1980 subjective cri- teria for recall selectively discriminated against any particular senior former strikers on the basis of union or other protected strike activity. According- ly, there are no adverse effects on former strikers and their protected right to strike that would justi- fy a presumption of proscribed discrimination. Based on the foregoing, we reaffirm our conclusion that the Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to recall strikers by seniority. 6 ORDER The National Labor Relations Board reaffirms its Decision and Order issued in this proceeding on April 28, 1986 (reported at 279 NLRB 550), as en- forced in part by the United States Court of Ap- peals for the District of Columbia Circuit, and fur- ther reaffirms on remand the Board's original Order dismissing the complaint allegation of a vio- lation of Section 8(a)(3) and (1) of the Act by re- fusing to recall strikers on the basis of seniority. MEMBER CRACRAFr, dissenting. Contrary to my colleagues, I would ford that, under the circumstances present here, the Respond- ent violated Section 8(a)(3) and (1), when it breached a strike settlement agreement by ceasing to recall former strikers in order of seniority. I would ford that the Respondent had an obligation to adhere to the strike settlement agreement even if it no longer had an obligation to recognize and bar- gain with the Unions. In failing to adhere to the agreement, the Respondent discriminatorily denied reinstatement to employees who exercised their Section 7 right to engage in protected concerted 5 We adhere to the "legally dispositive" distinction drawn in the Board's original Decision between this case and Wells Fargo Armored Service Corp., 237 NLRB 605 (1978), where the respondent employer "re- tained the overall seniority recall procedure but bypassed certain individ- uals entitled to recall, thereby violating their Laidlaw rights." Lone Star Industries, 279 NLRB at 552 fn. 5 6 United Aircraft Corp., 192 NLRB 382 (1971), modified 534 F.2d 422 (2d Cit. 1975), on remand 247 NLRB 1042, 1045 (1980), enfd. mein. 661 F.2d 910 (2d Cir. 1981), and Hotel Roanoke, 293 NLRB 182 (1989), on which both the exceptions and the dissent extensively rely, are distin- guishable from this case because the specific acts that breached the agree- ments in those cases discrimmatorily favored nonstrikers at the expense of strikers . As indicated above, the General Counsel has failed to make such a showing here. activity in support of the Unions. In addition, the Respondent undermined and discouraged employee support of unions by graphically demonstrating that such negotiated strike settlement agreements are worthless and may be abrogated at the whim of the employer and at great cost to employees. In the administrative law judge's decision, he found that the Respondent's last contract proposal made on May 9, 1979, included an offer to recall strikers by seniority. He further found that a bind- ing settlement agreement existed upon dispatch of the Unions' telegram of June 8, 1979, accepting that proposal in the absence of any prior express withdrawal of the proposal by the Respondent. This fording accords with well-established Board law and my colleagues do not directly contradict the judge on this point. Immediately on receipt of the Unions' accept- ance, however, the Respondent withdrew recogni- tion from the Unions, claiming that the permanent replacement of the strikers created a "good faith doubt" of the Unions' majority status. The Unions filed 8(a)(5) charges, but then withdrew them to fa- cilitate the processing of a representation petition, which led to their prevailing in a March 28, 1982 election. The Respondent, although purporting not to recognize any agreement or obligation to bar- gain with the Unions, nevertheless abided by the seniority recall procedure until May 1980. Thereaf- ter, it began making recalls on the basis of other factors. The question of whether the Unions were majority bargaining representatives at times rele- vant to this proceeding remains unresolved. My colleagues erroneously suggest that no 8(a)(3) violation can be found here unless the strike settlement agreement containing the seniority recall procedure is itself enforceable under Section 8(a)(5) or at least unless the Unions remained the undis- puted majority bargaining representatives until the date of the Respondent's abandonment of that pro- cedure.' In Retail Clerks v. Lion Dry Goods, 369 U.S. 17 (1962), the Supreme Court held that a strike settlement agreement between an employer and a minority union is enforceable under Section 301. The Court found that if such a settlement agreement were not enforceable, "responsible and stable labor relations would suffer, and the attain- ment of the labor policy objective of minimizing i As previously indicated, my colleagues do not disturb the finding that a strike settlement agreement came into existence . They do, howev- er, find that the agreement was immediately repudiated before it was ever implemented . The Respondent's adherence to a seniority recall procedure until May 1980 casts doubt on the effectiveness of its June 8, 1979 at- tempted repudiation. In any event, as long as a binding agreement did come into existence by operation of the Unions' acceptance telegram, it is irrelevant to the 8(a)(3) issue presented here whether the Respondent at- tempted to repudiate it immediately or 11 months later. 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD disruption of interstate commerce would be made more difficult." Retail Clerks; 369 U.S. at 27. Based on its reading of the statute as a whole, including Section 8(f), the Court specifically rejected the contention that only strike settlement agreements negotiated with majority unions are enforceable under Section 301. 369 U.S. at 28-29. In United Aircraft Corp., 192 NLRB 382 (1971), remanded 534 F.2d 422 (2d Cir. 1975), on remand 247 NLRB 1042 (1980), enfd. mem. 661 F.2d 910 (2d Cir. 1981), the Board embraced Lion Dry Goods and applied its reasoning to unfair labor practice litigation under Section 8(a)(3). Citing the Supreme Court's decision, the Board stated that there is "a public policy embodied in the Act which favors enforcement of voluntary agreements settling strikes." 192 NLRB at 387. The Board rejected the respondent's contention that any breaches of the strike settlement agreement "were nothing more than violations of the Union's private contract rights." 247 NLRB at 1045. Specifically, the Board held that the respondent violated Section 8(a)(3) and (1) by breaching the strike settlement agree- ment, stating as follows: [S]ince Respondent's violations of the [strike settlement agreement] in effect denied rein- statement of individuals who had done no more than exercise their statutory right to engage in protected concerted activity in sup- port of the Charging Parties, we fmd that such individuals have been discriminated against within the meaning of Section 8(a)(3) and (1) of the Act. Id. The Board's unfair labor practice finding was not dependent on the union's majority status and no 8(a)(5) violation was found.2 Applying these principles to the instant case, I would find that the Respondent violated Section 8(a)(3) when it failed to recall strikers in order of 2 In Hotel Roanoke, 293 NLRB 182 (1989), the Board , without citing United Aircraft, used a similar analysis to find that the respondent violat- ed Sec. 8(a)(3), not Sec. 8(a)(5), when it failed to recall strikers by senior- ity in accordance with the provisions of a strike settlement agreement. seniority as it promised to do in the strike settle- ment agreement. The fact that the Unions may not have been majority representatives is irrelevant under Lion Dry Goods, which the Board endorsed and followed in United Aircraft. Equally irrelevant is the absence of an 8(a)(5) allegation. Hotel Roa- noke, supra; United Aircraft, supra. Specific evi- dence of antiunion motivation need not be shown because in United Aircraft an 8(a)(3) violation was found notwithstanding the fact that the respondent acted "in good faith." 192 NLRB at 386 and 387; see also 247 NLRB at 1043. It is also not particu- larly relevant that the Respondent did not favor nonstrikers at the expense of strikers or that some strikers may actually have benefitted from the abandonment of recall by seniority. As discussed above, under United Aircraft, denying some strikers the reinstatement rights that they collectively bar- gained for in exchange for terminating their pro- tected concerted strike activity and that they are entitled to under a strike settlement agreement that is enforceable, without regard to a union's majority status, under Section 301 is sufficient to demon- strate "discrimination" within the meaning of Sec- tion 8(a)(3). Finally, finding a violation here will not mean that all kinds of nonmajority contracts will become enforceable through Section 8(a)(3). The United Aircraft doctrine, by its own terms, is limited to strike settlement agreements because of the "labor policy objective of minimizing disruption of inter- state commerce." United Aircraft, 192 NLRB at 387, quoting Lion Dry Goods, 369 U.S. at 27. Fur- thermore, although the breach of the strike settle- ment agreement here had clear adverse effects on employees who engaged in protected union activi- ties, not every breach of a labor contract, whether the union signatory is a majority representative, similarly carries its own indicia of antiunion dis- crimination, a necessary element of an 8(a)(3) viola- tion. For the foregoing reasons, I must dissent from the majority's failure to fmd that the Respondent's breach of the strike settlement agreement violated Section 8(a)(3).