Omahaline Hydraulics Co.

National Labor Relations Board - Board Decisions

Aug 31, 2004

342 N.L.R.B. 872 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 86
872
Omahaline Hydraulics Company, a division of Prince
Manufacturing Company and District No. 7, In-
ternational Association of Machinists & Aero-
space Workers, AFL–CIO. Case 18–CA–16552–1
August 31, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On March 18, 2003, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a cross-exception and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily selecting its
striking employees for reduction in force, and by dis-
criminatorily declining to accord them their right to pref-
erential recall to employment upon termination of the
strike and their unconditional offer to return to work.
This case, then, is all about the Respondent’s unlawful
discriminatory treatment of its employees because they
went on strike.
Our concurring colleague views it as significant that
the Respondent did not act in derogation of its statutory
obligation to bargain. There is no allegation that it did,
and thus our colleague’s point is not relevant.
Our colleague believes that the Respondent had a
good-faith, albeit ultimately unsubstantiated, belief that
its conversion to its new “Demand Flow Technology”
production process eliminated the strikers’ jobs. We
disagree with him, and we agree with the judge’s exhaus-
tive analysis and conclusions, in paragraphs 19–23, sec-
tion II,E of his attached decision, that the Respondent’s
asserted reliance on its “Demand Flow Technology” in
this context was a pretext.
Our colleague believes that the Respondent should be
allowed to try to show in compliance that, due to the pas-
sage of time, and what our colleague characterizes as
unique circumstances, there may no longer be any jobs

1 We find merit in the General Counsel’s cross-exception that the
judge erred by failing to include in his recommended Order and notice
to employees the standard remedy that the Respondent remove all
references to the discharges from the strikers’ personnel files, and no-
tify them that it has done so and will not use the discharges against
them in any way. See, e.g., C.R. General, Inc., 323 NLRB 494 fn. 3
(1997); Davey Roofing, Inc., 341 NLRB 222 (2004). We shall modify
the recommended Order and notice to employees accordingly.
that are even substantially equivalent to the strikers’ pre-
strike jobs. Passage of time is not part of the analysis of
whether a poststrike job is substantially equivalent to a
prestrike job, and the judge correctly rejected such an
argument in footnote 25 of his attached decision, citing
Brooks Research & Mfg., 202 NLRB 634 (1973).
And we disagree with our colleague to the extent that
he is analogizing the instant case to the remedial situa-
tion presented in Dean General Contractors, 285 NLRB
573 (1987), which involved factors that are unique to the
construction industry. We have rejected as pretextual the
Respondent’s reliance on “Demand Flow Technology” as
a grounds to deny the strikers reinstatement, and thus it
cannot be relied on to deny them reinstatement in com-
pliance. Beyond that, however, we do acknowledge as a
matter of general principle, as did the Board in Dean
itself, that reinstatement and backpay issues ordinarily
will be resolved by a factual inquiry during the compli-
ance process. Id. at 575.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Omahaline Hydraulics Com-
pany, a division of Prince Manufacturing Company
North Sioux City, South Dakota, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Make Wade Capron, John W. Carpenter, Scott E.
Frazee, Bruce E. Gilbertson, Chance Hall, Gary J. Hey-
den, Roger Hummel, Lake Larson, David E. Linn, Toni
Loker, Chris Mace, Drake C. Malm, Scott A. Malm, Jeff
L. Meyer, Paul L. Mortweet, Ryan C. Nelson, Steven
Parent, Mark L. Pauley, Jeremiah G. Reese, Jim W.
Reno, Allen C. Rohan, Ben J. Schrunk, Ron K. Sherril,
Mark A. Sorenson, Shannon M. Sorenson, Kenny Swi-
gart, Jesse D. Whittington, and Troy E. Wright whole for
any financial loss suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of the decision.”
2. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
“(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of Wade Capron, John W. Carpenter, Scott E.
Frazee, Bruce E. Gilbertson, Chance Hall, Gary J. Hey-
den, Roger Hummel, Lake Larson, David E. Linn, Toni
Loker, Chris Mace, Drake C. Malm, Scott A. Malm, Jeff
L. Meyer, Paul L. Mortweet, Ryan C. Nelson, Steven
Parent, Mark L. Pauley, Jeremiah G. Reese, Jim W.
Reno, Allen C. Rohan, Ben J. Schrunk, Ron K. Sherril,
Mark A. Sorenson, Shannon M.Sorenson, Kenny Swi-
OMAHALINE HYDRAULICS CO. 873
gart, Jesse D. Whittington, and Troy E. Wright, and
within 3 days thereafter notify them in writing that this
has been done and that the discharges will not be used
against them in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER SCHAUMBER, concurring.
I agree with my colleagues that the judge properly
found that the Respondent violated Section 8(a)(3) and
(1) of the Act by terminating all of its striking employees
while retaining all of its nonstriking employees and,
thereafter, refusing to grant preferential recall rights to
the former strikers upon their unconditional offer to re-
turn to work.1 In adopting the judge’s finding, however,
I rely only on the reasons stated below.
It is well settled that an employer violates Section
8(a)(3) and (1) if it fails to reinstate strikers on their un-
conditional offers to return to work, unless the employer
can establish a “legitimate and substantial business justi-
fication” for failing to do so. NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967). The employer bears the
burden of proving the legitimate and substantial business
justification. Id. In Zimmerman Plumbing & Heating
Co., 334 NLRB 586, 588 (2001), the Board explained
that:

[O]ne legitimate and substantial justification for not
immediately reinstating former strikers is a bona fide
absence of available work for the strikers in their pre-
strike or substantially equivalent positions. . . . How-
ever, a striker’s right to reinstatement does not expire
simply because no suitable work is available when he
unconditionally offers to return to work. His right to re-
instatement continues until his position or a substan-
tially equivalent position becomes available. [Citations
omitted].

In the instant case, contrary to the judge, I find no evi-
dence to indicate that the Respondent exhibited bad faith

1 I find it unnecessary to bifurcate the Respondent’s unlawful con-
duct, separating the manner in which the Respondent implemented the
reduction in force from its refusal to grant the strikers preferential recall
status. The General Counsel alleges only one violation of Sec. 8(a)(3)
and (1), i.e., that the Respondent discharged 28 of its employees be-
cause those employees engaged in protected, concerted activities, in-
cluding a strike.
In agreement with my colleagues, I would grant the General Coun-
sel’s cross-exception that the judge erred by failing to provide in his
recommended Order and notice to employees the standard remedy that
the Respondent remove all references to the discharges from the strik-
ers’ personnel files, and notify them that it has done so and that it will
not use the discharges against them in any way.
or animus.2 I do agree, however, that the Respondent did
not carry its burden to show a substantial and legitimate
business justification for its decision to terminate the
strikers and refuse to accord them preferential recall
rights. As explained by the judge, the Respondent,
through its general manager, Dumas, and employee wit-
ness, Harley Van Kirk, failed to show that, as of Septem-
ber 2002 (the date the Union made an unconditional offer
to return to work) the implementation of Demand Flow
Technology (DFT) changed its work process with the
result that the pre- and post-strike jobs were significantly
different and the strikers were not qualified to perform
the DFT positions. Nor did the Respondent call an inde-
pendent witness to explain how the jobs dramatically
changed.
Finally, it is my view that during the compliance stage
of this proceeding the Respondent should be given the
opportunity to show that due to the passage of time and
the unique circumstances of the case, there may not be
jobs substantially equivalent to the strikers’ prestrike
jobs. In a different context, the Board has acknowledged
that an employer is not required to reinstate a discrimina-
tee due to changed circumstances. Cf. Dean General
Contractors, 285 NLRB 573 (1987) (an employer in the
construction industry can avoid reinstating the discrimi-
natees by showing in compliance that they would not
have continued in the employer’s employment after com-
pletion of the project for which they would have been
hired).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

2 I view as significant that the Respondent did not act in derogation
of its statutory obligation to the Union. In June 2001, when the Re-
spondent informed the Union that it was transferring its cylinder pro-
duction to two of its other facilities, it offered to negotiate the effects of
the transfer. Similarly, in his October 3, 2002 response to the Union’s
unconditional offer to return to work, Dumas, the Respondent’s general
manager, informed the Union that the Respondent would negotiate with
it prior to any further layoffs and that it would propose layoff and recall
rights for such employees.
Also, I disagree with the judge that the Respondent’s argument that
it failed to grant the strikers recall rights because it no longer had any
positions that were the same or substantially equivalent to the ones held
by them prior to the reduction in force due to the implementation of
Demand Flow Technology (DFT) was evidence of pretext. In my view,
the Respondent had a good-faith belief that the strikers’ jobs were
eliminated because of the conversion to DFT. The Respondent’s failure
to establish that the pre- and post-strike jobs were significantly different
does not render its acting on its good-faith belief that they were differ-
ent pretextual.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT select you for inclusion in any reduction
in force or otherwise discriminate against you for sup-
porting District No. 7, International Association of Ma-
chinists & Aerospace Workers, AFL–CIO, or any other
Union, or for engaging in union activities.
WE WILL NOT refuse to offer reinstatement to former
striking workers due to their support of District No. 7,
International Association of Machinists & Aerospace
Workers, AFL–CIO, or any other Union, or for engaging
in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by the National Labor Relations Act.
WE WILL, within 14 days from the date of the Board’s
Order, devise and implement a preferential system for
recall and reinstatement of the following persons to any
future vacancies in their former jobs or substantially
equivalent jobs: Wade Capron, John W. Carpenter, Scott
E. Frazee, Bruce E. Gilbertson, Chance Hall, Gary J.
Heyden, Roger Hummel, Lake Larson, David E. Linn,
Toni Loker, Chris Mace, Drake C. Malm, Scott A.
Malm, Jeff L. Meyer, Paul L. Mortweet, Ryan C. Nelson,
Steven Parent, Mark L. Pauley, Jeremiah G. Reese, Jim
W. Reno, Allen C. Rohan, Ben J. Schrunk, Ron K.
Sherril, Mark A. Sorenson, Shannon M.Sorenson, Kenny
Swigart, Jesse D. Whittington, and Troy E. Wright.
WE WILL, upon the occurrence of any vacancy in a
former job or substantially equivalent job, and in accor-
dance with the terms of the preferential recall system,
reinstate Wade Capron, John W. Carpenter, Scott E. Fra-
zee, Bruce E. Gilbertson, Chance Hall, Gary J. Heyden,
Roger Hummel, Lake Larson, David E. Linn, Toni
Loker, Chris Mace, Drake C. Malm, Scott A. Malm, Jeff
L. Meyer, Paul L. Mortweet, Ryan C. Nelson, Steven
Parent, Mark L. Pauley, Jeremiah G. Reese, Jim W.
Reno, Allen C. Rohan, Ben J. Schrunk, Ron K. Sherril,
Mark A. Sorenson, Shannon M.Sorenson, Kenny Swi-
gart, Jesse D. Whittington, and Troy E. Wright.
WE WILL make Wade Capron, John W. Carpenter,
Scott E. Frazee, Bruce E. Gilbertson, Chance Hall, Gary
J. Heyden, Roger Hummel, Lake Larson, David E. Linn,
Toni Loker, Chris Mace, Drake C. Malm, Scott A.
Malm, Jeff L. Meyer, Paul L. Mortweet, Ryan C. Nelson,
Steven Parent, Mark L. Pauley, Jeremiah G. Reese, Jim
W. Reno, Allen C. Rohan, Ben J. Schrunk, Ron K.
Sherril, Mark A. Sorenson, Shannon M.Sorenson, Kenny
Swigart, Jesse D. Whittington, and Troy E. Wright whole
for any financial loss or loss of other benefits resulting
from the manner in which they were selected for reduc-
tion in force, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Wade Capron, John W. Carpenter, Scott
E. Frazee, Bruce E. Gilbertson, Chance Hall, Gary J.
Heyden, Roger Hummel, Lake Larson, David E. Linn,
Toni Loker, Chris Mace, Drake C. Malm, Scott A.
Malm, Jeff L. Meyer, Paul L. Mortweet, Ryan C. Nelson,
Steven Parent, Mark L. Pauley, Jeremiah G. Reese, Jim
W. Reno, Allen C. Rohan, Ben J. Schrunk, Ron K.
Sherril, Mark A. Sorenson, Shannon M.Sorenson, Kenny
Swigart, Jesse D. Whittington, and Troy E. Wright, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges will not be
used against them in any way.

OMAHALINE HYDRAULICS COMPANY, A DIVI-
SION OF PRINCE MANUFACTURING COMPANY

Joseph H. Bornong, Esq., for the General Counsel.
Frank B. Wolfe, III, Esq., of Tulsa, Oklahoma, for the Respon-
dent.
Roger N. Nauyalis, of Westchester, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Sioux City, Iowa, on December 16 and 17, 2002. The
original charge was filed August 15, 2002, and amended
charges were filed October 23 and 29. The complaint was is-
sued October 30.
The complaint alleges that the Company discharged 28 of its
employees because those employees engaged in protected con-
certed activities, including a strike. It is further alleged that this
conduct violated Section 8(a)(1) and (3) of the Act. The Com-
pany filed an answer denying the material allegations of the
complaint.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

1 Certain errors in the transcript have been noted and corrected.
OMAHALINE HYDRAULICS CO. 875
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures hydraulic pumps
and motors at its facility in North Sioux City, South Dakota,
where it annually sells and ships from its North Sioux City,
South Dakota facility goods valued in excess of $50,000 di-
rectly to points outside the State of South Dakota. The Com-
pany admits2 and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations Before the Strike
and Reconfiguration
Omahaline Hydraulics Company is a division of Prince
Manufacturing Corporation, a South Dakota corporation. Its
facility is located in North Sioux City, next to Prince’s head-
quarters. The facility covers approximately 40,000 square feet.
Omahaline’s general manager is Lynn Dumas. Dumas began
his career with Prince Manufacturing as a lathe operator. Even-
tually, he became an industrial engineering department man-
ager and general manager of a division. In October 1999, Du-
mas was appointed as general manager of Omahaline.
At the time of Dumas’ appointment, Omahaline manufac-
tured welded hydraulic cylinders, hydraulic pumps, and hydrau-
lic motors. There were 105 machines used in the manufactur-
ing process. Dumas described the facility as cramped, noting
that over 100 machines were “jammed” into the building. (Tr.
57.)
The Company had 70 production employees classified into
seven job categories. By far the largest category was for “ma-
chinists.” These employees performed three job functions,
welding, machine operating, and assembling. Dumas testified
that the people performing these functions were grouped as
machinists for “payroll” purposes. (Tr. 157—158.) He defined
the meaning of the term in the Company’s usage as “a general
term for all those that were involved in production—direct
labor production.” (Tr. 158.)
The Company’s production operations were organized into
22 cells. Each cell contained a number of machines and associ-
ated equipment. Machinists were assigned to specific cells.
For example, Dumas testified that two machinists were as-
signed to the PUMPM cell. One employee operated three ma-
chines, while the other operated six machines. These two em-
ployees did not have regular responsibilities in any other cell.3
If a job in a particular cell became vacant, the Company
would fill it by a process of bidding. The Company would post
a list of such vacancies and all current employees were eligible
to bid for them.4 Employees who performed the same job on

2 See: answer, pars. 2 and 3. (GC Exh. 1g.)
3 Dumas described the operations in various other cells. In each
case, employees operated various numbers of assigned machines within
their cell, but did not have regular responsibilities outside that cell.
4 The record contains examples of the paperwork associated with the
bidding process. (R. Exhs. 7 and 8.)
another shift were given first priority. If no such employees
applied, the position would be filled from any other current
employees who sought the job. This included machinists and
any other categories of employees. Only if no current employ-
ees were interested would the Company fill the job from out-
side the existing work force. If more than one employee bid for
an opening, management would select the more qualified can-
didate. Because all of the Company’s production jobs were
compensated at the same rate of pay,5 Dumas testified that em-
ployees would bid on vacancies “to become more valuable to
the company and for themselves for self-improvement to have
more skills.” (Tr. 69.) Once an employee won a bid for a new
position, he received on-the-job training from another em-
ployee who was already skilled in the work process. Dumas
testified that nobody had ever failed to learn a new job through
this training process.
Although employees were assigned to specific jobs that had
been awarded through the system of bidding, the actual produc-
tion process was considerably more flexible. Two production
employees, Toni Loker and Harley Van Kirk, were called to
testify.6 Each described this flexibility in actual practice.
Loker testified that approximately once a month she would be
assigned to operate a machine outside her regular job. This
would happen when the normal operator of that machine “was
gone or if the individual had a lot of testing to do. It would
help keep the flow going.” (Tr. 232.) Such brief assignments
would last for periods from a few hours to a full shift. In addi-
tion, there were longer temporary reassignments. These would
occur when an employee was on vacation or when equipment
in her own cell was in need of repair. This could also occur if
there was need for a specific type of part. Such reassignments
would last from a day to a week at a time. Loker, a very ex-
perienced employee, reported that she received such reassign-
ments approximately every 2 weeks. During the final 6-month
period of her active employment, she performed such work in
nine different cells.
Van Kirk, a less experienced employee, testified that during
this period he was assigned to temporary jobs approximately
once a month. Typically, such reassignments would last for a
day.
Dumas corroborated the existence of the practice of tempo-
rary assignments. In an affidavit, he reported that the machin-
ists were “interchangeable” and that “generally” machinists
were cross-trained so as to be able to perform a number of
functions. (Tr. 162, 164.) In his trial testimony, he agreed that
“most” employees received temporary assignments when fel-
low workers were ill or on leave. (Tr. 154–155.) In fact, there
is evidence that the Company prized the ability to deploy its
work force in a flexible manner. Dumas testified that during
negotiations, the Union wanted to limit such flexibility. He
reported that “The [C]ompany’s position is that they needed to
be interchangeable. That we need to make certain that we have

5 Indeed, Dumas testified that jobs operating very complex machines
were paid at the same rate as jobs involving very simple machines.
6 The Company called Van Kirk, a nonstriking employee. The Gen-
eral Counsel called Loker, a participant in the strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
the flexibility to assign people where needed.” (Tr. 197.)7
Describing the Company’s need to move workers around, Du-
mas summarized by noting that “we use[d] them where we
need[ed] them.” (Tr. 187.) In addition to employees catego-
rized as machinists, the Company employed smaller numbers of
people in job categories described as materials transfer, mainte-
nance, IRO, shipping/receiving, and ISO/QC. These employees
were paid at the same rate as machinists and were authorized to
bid for vacant machinist jobs if they so desired.
Approximately 6 months after Dumas’ transfer to Oma-
haline, the Company experienced a large increase in orders for
cylinders. As a result, Dumas hired 16 new employees in a
relatively brief period. The new hiring, combined with shifting
of existing employees to new positions, resulted in the need for
a “tremendous” amount of training. (Tr. 97.) Around this time,
in July 2000, the Union became the representative of the Com-
pany’s production employees.
Unfortunately, the rapid expansion of the Company’s work
force caused quality control problems. Dumas characterized
the quality of the Company’s cylinders as “atrocious.” (Tr. 98.)
Inexorably, these difficulties led to dissatisfaction among the
customers. In February 2001, Kubota, a major client, greatly
reduced its order for cylinders. As a result of the reduced de-
mand, the Company terminated 14 employees. In order to se-
lect the employees who would be terminated, the Company
devised a sophisticated assessment tool. (GC Exh. 8.) This
spreadsheet rated every employee, using a number of selection
criteria assessing attendance, number of machines the employee
could operate, number of rejected products, possession of spe-
cific skills, and record of disciplinary problems. The same
rating scale was used for all employees, regardless of their job
category and regardless of whether they manufactured cylin-
ders, pumps, or motors. An overall numerical rating was calcu-
lated and the 14 employees with the lowest overall ratings were
selected for termination.8 Dumas testified that the Company
had no policy or past practice of according such terminated
employees any “layoff status” or recall rights. (Tr. 38.)
After these terminations, the Company’s problems with cyl-
inder production persisted, leading to the loss of another major
customer, Terex. As a result, on May 2, 2001, the Company
decided to terminate an additional 20 employees. The Com-
pany notified the Union of this decision and offered to negoti-
ate “the criteria for selecting the list of twenty and the effects of
that reduction in force.” (Tr. 39.)
On the next day, May 3, 2001, the Union called a strike.
Dumas’ uncontroverted description of the nature of this strike
was as an “economic strike over seniority.” (Tr. 40.) A total of
34 employees participated in the strike.
Approximately 7 weeks into the strike, on June 21, 2001, the
Company notified the Union that it was transferring its cylinder
production to Prince’s divisions in Sioux City and Yankton.9

7 Dumas reported that these negotiations involved the period prior to
the Company’s reconfiguration in July 2001.
8 The name of each employee selected for termination is surrounded
by a box on the assessment spread sheet. (GC Exh. 8.)
9 The Union represents the employees in the Sioux City division.
The employees in Yankton are unrepresented.
At trial, Dumas was asked to explain the rationale for this deci-
sion. He described it as follows.

The opportunity of taking advantage of the time—of the tim-
ing of the change to not penalize customers on deliveries be-
cause of the downturn in cylinder business and the available
space at the other two production facilities and the restriction
of space in our facility. [Tr. 42.]

The Company offered to negotiate the effects of the transfer of
cylinder production, but declined to negotiate the transfer itself.
Dumas testified that since the reason for the transfer was due to
a “space problem” and since the Union couldn’t “offer me more
space,” there was no requirement for such negotiations. (Tr.
43.)
Immediately upon notification of the transfer decision, the
Union made a request for information related to the transfer.
On June 29, the Company provided some of the requested in-
formation. On July 3, the Company ceased cylinder production
at the facility and began removing cylinder production equip-
ment in order to transfer it to the other divisions.
B. The Company’s Reconfiguration and the
Termination of the Strikers
On July 11, 2001, Dumas began attending a 4-day course on
Demand Flow Technology. After finishing this course, he de-
cided to adopt this method at Omahaline. Implementation of
this conversion began immediately. This included reconfigura-
tion of the production process and training of the nonstriking
employees.
At the end of July, the Company provided additional infor-
mation to the Union in response to the Union’s earlier request
for cylinder transfer information. Being dissatisfied with the
information provided, the Union filed an unfair labor practice
charge on August 3. (R. Exh. 1.) After investigation of this
charge, the Regional Director responded to the Union by letter
dated October 30, 2001. The Regional Director concluded that

the evidence established that the Employer’s decision to trans-
fer all its cylinder production was a change in the nature and
scope of its business and was not a mandatory subject of bar-
gaining for which the Employer would have been obligated to
provide information. [R. Exh. 2.]

He concluded that the transfer decision was based on underuti-
lized capacity at the Sioux City and Yankton divisions. Noting
that the Sioux City division was a union shop, he observed that
“there is no evidence that a motivating factor for the transfer is
the strike at the Employer’s facility.” As a result, he refused to
issue a complaint.10
In February 2002, the Company provided the Union with no-
tice that the discontinuation of cylinder production at Oma-
haline would result in permanent elimination of some jobs.
This was followed by a letter from Dumas dated July 15, advis-
ing that terminated employees would be notified by letter on
July 31. Dumas opined that “permanent elimination of the

10 The Regional Director’s position has been consistent throughout
these proceedings. There has been no contention that the Company’s
decision to transfer cylinder production was not based on legitimate and
substantial business reasons.
OMAHALINE HYDRAULICS CO. 877
strikers’ jobs was a natural consequence of the discontinuation
of cylinder production and has long been a fait accompli.” He
asserted that the strikers have “no prospects” of returning to
work. (R. Exh. 3.) Four days later, the Company “went line
live” with Demand Flow Technology. (GC Exhs. 3 and 4.)
And, 4 days after that, the Union responded to Dumas’ notifica-
tion of the upcoming termination of strikers by informing the
Company that it believed that the Company had “no legal ba-
sis” for terminating the strikers and that such an action would
result in the filing of an unfair labor practice charge. (R. Exh.
4.)
As planned, on July 31, 2002, the Company mailed termina-
tion letters to its striking employees.11 Each recipient was told
that:

Even if you decided to abandon the strike today, or in the
foreseeable future, there would not be a single open job for
you to return. No additional positions will be created in the
future. [GC Exh. 4.]12

The letter informed the employees that their termination was
effective on July 31, 2002. They were also advised that their
401(k) funds “may be subject to special rules due to your ter-
mination.” It was suggested that questions about these funds
could be directed to the 401(k) administrator.
Dumas testified that the July 31 terminations were not based
on selection criteria of the type employed in February 2001.
The only selection criterion was the fact that the terminated
workers were participating in the strike. Dumas affirmed this
reality, albeit reluctantly, during the following exchange during
his cross-examination:

Q. The only selection criteria at that point was the fact
they were on strike, was it not?
A. No, it wasn’t the selection criteria.
Q. Isn’t that how it—isn’t that the only thing that de-
termined whether you were laid-off or not laid-off, termi-
nated or not terminated in that decision? Whether you
were on strike or not?
A. I’m sorry, ask the question again.
Q. Wasn’t—isn’t the only distinction between those
terminated and those not terminated the fact that the ter-
minated were strikers?
A. You could make that distinction, yes.
Q. So the only selection criteria was the fact that they
were on strike, isn’t it?
A. There was no selection criteria applied.
Q. Well, I think that’s good enough. [Tr. 193.]

On August 15, the Union filed the original unfair labor practice
under consideration in this case. (GC Exh. 1a.)
On September 13, 2002, the Union wrote to Dumas, advising
him that it was ending its strike. Acting on behalf of the strik-
ers, the Union’s letter contained an unconditional offer to return
to work. It also made the following demand:

11 A list of the names of these employees may be found at GC Exh.
5. Each of the 28 employees named in the complaint were sent this
termination letter.
12 This exhibit is the termination letter addressed to one particular
employee. All the letters were identical.

In the event there is no work for some of these employees at
this time, on their behalf, I am requesting that each of the em-
ployees who are not recalled on this date be placed on a pref-
erential list to be recalled as soon as opening[s] become avail-
able. [GC Exh. 6.]

Dumas testified that he received this letter. He responded on
October 3, informing the Union that there were no prospects for
work for any of the strikers. As a result, he asserted that “re-
quests for recall and placement on a preferential hiring list have
no merit in law or logic.” Paradoxically, he went on to tell the
Union that the Company intended to negotiate with the Union
prior to any further layoffs and that the Company “will propose
layoff and recall rights” for such employees. (GC Exh. 7.)
C. Delineation of the Issue
On October 30, the General Counsel issued the complaint
and notice of hearing in this case. (GC Exh. 1e.) The com-
plaint alleges that the Company discharged the named employ-
ees due to their union membership and activities, particularly
their participation in the strike. At the commencement of the
trial, counsel for the General Counsel further framed the issue
as follows:

[W]e recognize that at this point there are no jobs open for the
strikers to return so we are seeking basically a creation of a
preferential recall list as established by the Board in the Laid-
law case13 and we would, however, like to have the notice and
the remedy include a make-whole provision. [Tr. 12.]

The reference to a make-whole remedy refers to the possibility
that an affected employee had “acted on that termination notice
and lost something as a result,” specifically vacation pay or any
adverse impact on the employee’s 401(k) plan. (Tr. 12.)
Counsel for the General Counsel suggested that, in the event
the General Counsel prevailed, the specifics of the make-whole
issue could be addressed at the compliance stage of the pro-
ceedings.
Because the General Counsel’s prayer for relief appeared to
be significantly less broad than the nature of the relief sought in
other cases alleging unlawful discharge of employees, I re-
turned to this subject at the conclusion of the trial. I described
my understanding of the key remedial issue by asking if

The General Counsel’s theory of this case is that when the
[C]ompany terminated these employees who were out on
strike, it violated their Section 7 rights because it has refused
to accord them any sort of preferential reinstatement rights
when the [C]ompany decides to hire new employees? [Tr.
244.]

Counsel for the General Counsel’s succinct response was
“Right. That’s the long and short of it, Your Honor. Yes.”
(Tr. 244.) He went on to observe that “we think what they
should have done instead is make a preferential recall list.”14
(Tr. 245.)

13 Laidlaw Corp., 171 NLRB 1366 (1968).
14 Counsel for the General Counsel also stated that, as of the date of
trial, there was no backpay obligation since the Company has not hired
any employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
The Company’s primary defense is clearly set forth in its an-
swer.15 It’s argument begins with the contention that:

When the jobs of nonreplaced economic strikers are elimi-
nated for legitimate, substantial and nondiscriminatory busi-
ness reasons, and there were not, are not now, and will not be
any substantially equivalent jobs to which they could be rein-
stated, there is no appropriate relief which can be granted un-
der the Act to those strikers who have been terminated. [GC
Exh. 1g, answer, par. VII.]

This argument is amplified as follows:

The General Counsel is attempting, through the Complaint, to
impose on the Respondent an obligation to grant indefinite
preferential reinstatement rights to former nonreplaced eco-
nomic strikers, whose jobs have been permanently eliminated,
to vacancies that may occur in the unforeseeable future for
which the economic strikers may be unqualified, or substan-
tially less qualified than available new hires, where such rein-
statement rights are not required by the Act. [GC Exh. 1g, an-
swer, par. X.]

In order to evaluate the parties’ positions, it is first necessary to
undertake careful analysis of the Company’s reconfiguration of
its operations through the adoption of Demand Flow Technol-
ogy.
D. The Demand Flow Technology Process
Dumas was the Company’s primary witness regarding the
nature and impact of the conversion to Demand Flow Technol-
ogy. He testified that the Company had been using a traditional
material requirements planning system. This system launched
production orders based on projection of future demand. Once
an order was launched, it was pushed through the production
process. Van Kirk described the effects of this system. He
reported that the Company would manufacture and stockpile
large numbers of parts. The parts would then sit in storage until
needed for assembly.
A concomitant of the prior method of organizing production
was the manner in which the work force was deployed. Dumas
testified that machinists were “narrow in their approach to the
machines they ran on a daily basis.” (Tr. 19.) Dumas also
indicated that under this system, after setting up their machine,
machinists spent considerable time simply watching it run.
Dumas enthusiastically described the new process as pulling
the work through the manufacturing process by carefully man-

15 In its answer to the complaint, the Company also raised an issue of
res judicata, contending that the complaint is barred by the findings
made by the Regional Director in his letter of October 30, 2001, declin-
ing to file a complaint in response to the Union’s charge alleging an
unlawful refusal to provide information regarding the transfer of cylin-
der production. (GC Exh. 1g, par. IX.) The Company cited no author-
ity for this proposition and did not address it in its post trial brief.
Assuming, arguendo, that the Regional Director could be bound by
application of the doctrine of res judicata, it is inappropriate to do so
here. Nothing in the Regional Director’s letter addresses the issue of
preferential recall of strikers. Furthermore, the General Counsel’s
position throughout this trial has been completely consistent with the
findings and conclusions expressed by the Regional Director in his
letter.
aging the work organization and flow. Workers engaged in
visual control of production by moving from place to place as
they observed locations where work needed to be performed.
This resulted in an operation where parts moved from process
to process without being stored in between manufacturing
stages. As a result, the Company is able to produce its products
using fewer workers at a faster rate while using “less of the
machine resources.” (Tr. 50.) Inventory is reduced and the
plant is more efficient. Furthermore, directly addressing a key
issue in the past, Dumas testified that quality of the product has
been improved “tenfold.” (Tr. 98.) Finally, Dumas noted that
the removal of cylinder production opened up a large amount of
space in the facility. This allowed the machines to be “recon-
figured, reorganized, regrouped.” (Tr. 66.) This contributed to
increased efficiency.
The requirements of the Demand Flow system affected the
nature of the employees’ jobs. Dumas described the fundamen-
tal nature of these changes by noting that the “job today is to
know every machine in this plant, to be a flexible employee to
be used wherever needed.” (Tr. 77–78.) Part of this require-
ment is the concept of flexing. Each work assignment includes
a primary cell and the obligation to perform additional produc-
tion work in other cells immediately before and after the pri-
mary cell’s position in the production process.
Dumas provided several examples of how the work process
has changed under Demand Flow. He characterized the job in
the PPL Cell as “totally changed.” (Tr. 102.) The machines are
arranged differently and the operator needs to deploy more skill
and effort since he or she must cover “more real estate.” (Tr.
102.) In addition to running the primary (or “pacing”) ma-
chine, the operator must manage and control parts produced by
other machines as well. The Grind Cell was cited as another
illustration. This cell uses the same machines as previously,
but the lot sizes of the parts have decreased dramatically so that
the operator must perform “many more setups than ever done
before.” (Tr. 121.) Thus, Dumas summarized the impact on
this cell as:

Even though it’s physically arranged like it was before and
the machines haven’t changed[,] the responsibility and effort
and skill this operator has is greatly enhanced over what it
used to be. [Tr. 122.]

Another example cited by Dumas concerned an employee,
Scott Frazee, whose primary machine was located in the PUMP
A Cell. Prior to the implementation of the Demand Flow sys-
tem, Frazee operated two machines. After implementation, a
third machine was added. Dumas opined that the job now re-
quired “a significant amount more of skill” as Frazee has to
machine the part as well as manufacture and test the pump.
Essentially, “[h]e has more responsibility because of the addi-
tion of the machine.” (Tr. 112.) He also has flex duties in an-
other cell as well.
The implementation of Demand Flow Technology did not
result in any changes in the Company’s poststrike personnel.
All of the nonstriking employees continue to work under the
new system. There has been no hiring of outside people and no
recall of any former strikers.
OMAHALINE HYDRAULICS CO. 879
The current work force is involved in an ongoing training
process. The goal is to train each machinist so that he or she is
able to operate every machine in the facility. Dumas described
this objective as being of vital importance, noting that “if we
don’t do it we can’t compete in this global market.” (Tr. 108.)
However, the goal is far from actual realization. Dumas con-
firmed that no employee has reached this level of expertise and
that it will be “a couple of years” before this can occur. (Tr.
85.) As a result, currently, employees only operate those ma-
chines that they know how to run.
Van Kirk described both the theory and actuality. He en-
dorsed the theoretical goal, observing that “[m]y job is to go to
work and do whatever assignment is placed on me that day.”
(Tr. 215.) In practice, he testified that of the 14 existing jobs he
is trained to perform 3 jobs. Thus, in reality, his work assign-
ments are selected from among those three.
In furtherance of the ultimate goal of total employee flexibil-
ity, the Company has devised a formal training program. This
involves on-the-job training and does not include any outside
education such as trade school or college. Employees can vol-
unteer for posted training opportunities selected from among
the 14 work processes.16 Upon completion of the training, they
obtain certification in that work process. This concept of certi-
fication is not an outside credential, but simply an internal re-
cord of employee proficiency. Dumas testified that since the
creation of this new training process as part of Demand Flow
Technology, every employee has met the expectations involved
in obtaining training certifications.
In describing the personnel aspects of Demand Flow, Dumas
testified that the eventual goal is to move each employee every
2 hours. He opined that this would improve job enjoyment by
adding variability and would also reduce the risk of repetitive
motion injuries. By contrast, the system of employee compen-
sation is essentially unchanged from before the reconfiguration.
All production employees are paid the same, regardless of their
assignments and regardless of the amount of training they have
acquired.17
E. Legal Analysis
Evaluation of the parties’ contentions must begin with rec-
ognition that the Act grants protection to workers engaged in
strike activity. Section 2(3) provides that an individual “whose
work has ceased as a consequence of, or in connection with,
any current labor dispute” remains an “employee” unless he or
she obtains “any other substantially equivalent employment.”
In NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the
Supreme Court held that the Act’s protection of striking work-
ers included entitlement to reinstatement upon the termination
of strike activity. The Court noted that it could be anticipated
that, due to economic circumstances, an employer may be un-
able to offer immediate reinstatement to all returning strikers.
In such cases, it defined the employer’s duty as requiring an

16 Examples of the paperwork associated with this training program
are in the record. (R. Exhs. 10 and 12.)
17 I do note that while all production employees have continued to
receive the same pay rate, Dumas testified that after the reconfigura-
tion, “we found it prudent to increase their wages [across the board]
because of their production.” (Tr. 80.)
offer of reinstatement “[i]f and when a job for which the striker
is qualified becomes available.” 389 U.S. at 381. The Court
acknowledged that the lower court had found that there was no
evidence of antiunion motivation in the refusal to reinstate the
strikers. It held that evidence of such improper motivation was
not required since refusal of reinstatement was “destructive of
important employee rights” under the Act. 389 U.S. at 380.
The employer was required to bear the burden of proving that
the refusal to reinstate strikers was due to “legitimate and sub-
stantial business justifications.” 389 U.S. at 378, citing NLRB
v. Great Dane Trailers, 388 U.S. 26, 34 (1967). Finally, the
Court noted that, in its brief, the Board had suggested that such
justifications could include “the need to adapt to changes in
business conditions or to improve efficiency.” 388 U.S. at 379.
In the following year, the Board gave further consideration
to reinstatement rights in light of Fleetwood. In Laidlaw Corp.,
171 NLRB 1366 (1968), the employer hired permanent re-
placements during a strike. After the strike, certain of these
replacement workers left the company’s employ. The company
declined to reinstate qualified striking employees, choosing
instead to hire new workers. The Board described the “under-
lying principle” of the Supreme Court’s decisions in Fleetwood
and Great Dane Trailers to be a determination that refusal to
reinstate former strikers was so inherently destructive of work-
ers’ rights under the Act that

[h]iring new employees in the face of outstanding applications
for reinstatement from striking employees is presumptively a
violation of the Act, irrespective of intent unless the employer
sustains his burden by showing legitimate and substantial rea-
sons for his failure to hire the strikers. [Id. at 1369.]

The Board held that economic strikers who apply for reinstate-
ment at a time when their positions are filled by permanent
replacements remain “employees” under the Act and are enti-
tled to reinstatement upon the departure of the replacements
unless the employer can sustain the burden of proving that the
failure to offer reinstatement was due to legitimate and substan-
tial business reasons.
The Board further delineated the right of reinstatement in
Rose Printing Co., 304 NLRB 1076 (1991). During a strike,
the employer hired permanent replacements. Upon the depar-
ture of several replacements, the employer hired new people to
fill the vacancies. The General Counsel sought an order requir-
ing reinstatement of strikers. The Board declined the request,
finding that the available vacancies were for “entry level gen-
eral worker positions . . . which were not substantially equiva-
lent to [the strikers’] prestrike jobs because of lower pay and
skill levels.” 304 NLRB 1076. The Board limited the right of
reinstatement to the strikers’ former jobs or to other jobs which
were substantially equivalent to the former jobs. The right of
reinstatement did not include placement in any available job,
even if the striker were qualified to perform such other job.
In Zimmerman Plumbing & Heating Co., 334 NLRB 586,
588 (2001), the Board took the opportunity to summarize key
aspects of the right to reinstatement:

It is settled that both economic strikers and unfair labor
practice strikers retain their status as “employees” under
Section 2(3) of the Act. . . . As a result, an employer vio-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
lates Section 8(a)(3) and (1) of the Act by failing to imme-
diately reinstate strikers upon their unconditional offer to
return to work, unless the employer establishes a legiti-
mate and substantial business justification for failing to do
so.
The Board has recognized that one legitimate and sub-
stantial justification for not immediately reinstating former
strikers is a bona fide absence of available work for the
strikers in their prestrike or substantially equivalent posi-
tions. . . . However, a striker’s right to reinstatement does
not expire simply because no suitable work is available
when he unconditionally offers to return to work. His
right to reinstatement continues until his position or a sub-
stantially equivalent position becomes available. [Citations
omitted.]

While these general principles affecting the rights of strikers
form the essential legal framework, the precise issue under
consideration in this case is slightly different. The General
Counsel does not contend that the Company has improperly
refused to reinstate any of its striking employees. The uncon-
troverted evidence shows that since the unconditional offer to
return to work, there has never been work available for the
strikers. The transfer of cylinder production and the adoption
of a new method of production have reduced the need for
workers to such an extent that the Company has met its produc-
tion requirements entirely through use of the existing work
force. It has not hired any new workers since the commence-
ment of the strike. The General Counsel has concurred in the
Company’s contention that the transfer of cylinder production
was made for legitimate and substantial business justifications
unrelated to the strike activity. As a result, the Company has
never incurred any legal obligation to reinstate striking em-
ployees.
Because this much is undisputed, the Company strongly con-
tends that the General Counsel lacks any legal basis for its re-
quest that the Board direct the Company to maintain a preferen-
tial recall list so that its striking employees may be recalled to
any of their former jobs or substantially equivalent jobs that
may become available in the future. In the Company’s view,
there can be no statutory basis for such relief since the strikers’
loss of employment was not a consequence of their decision to
go on strike, but rather of the Company’s decision to reduce its
work force for unrelated legitimate and substantial reasons.
Upon careful reflection, I conclude that the Company’s
analysis is correct as far as it goes, but it fails to take into ac-
count the full import of the Act’s grant to strikers of protection
against discrimination. In my view, the General Counsel is not
seeking (and could not seek) the requested relief as remedy for
the Company’s decision to reduce the number of employees
working at the Omahaline facility. As the decision to reduce
the work force has been found to be supported by legitimate
and substantial justifications, it is privileged. While the deci-
sion to decrease the number of employees cannot give rise to
any entitlement to the relief sought, the same is not true for the
Company’s actions taken to implement the reduction in work
force. I conclude that the gravamen of the General Counsel’s
complaint is that the Company violated Section 8(a)(1) and (3)
of the Act when it decided to reduce its work force through the
method of retaining all of its nonstriking employees while ter-
minating all of its striking employees and refusing to grant
preferential recall rights to those striking employees. I further
conclude that under either of the two possible legal theories, the
General Counsel has met its burden of proof in this regard.18
I have first examined the evidence using the legal framework
established by the Supreme Court in Fleetwood and imple-
mented by the Board in Laidlaw. Under this analysis, I must
determine if the Company engaged in prohibited discriminatory
conduct in the manner in which it implemented the reduction in
force, including the refusal to accord reinstatement rights to the
former strikers. If so, I must determine whether the Company’s
conduct was destructive of important employee rights under the
Act. Finally, I must determine whether the Company’s conduct
was based on legitimate and substantial business reasons.
Turning to the evidence, three things about the manner in
which the Company elected to implement its reduction in force
are readily apparent. First, it abandoned the sophisticated, multi-
faceted assessment process that it had previously employed in
implementing a work force reduction. Second, it adopted a
method that consisted of only one criterion, participation or
nonparticipation in the strike. Third, despite the Union’s re-
quest, it declined to create a preferential reinstatement process
for strikers whose positions were affected by the reduction in
force.
It will be recalled that, in February 2001, the Company de-
cided to reduce its work force after suffering the loss of orders
from a major customer. This was the Company’s first experi-
ence with this type of problem. In response, management de-
veloped a detailed assessment tool used to perform a compara-
tive evaluation of the employees in order to establish their rela-
tive value to the Company. It is noteworthy that, although all
of the lost orders were for cylinders, the ranking system rated
all employees, including those whose primary responsibilities
were in the manufacture of pumps and motors. In addition, the
ranking listed all employees, whether they were classified as
machinists or in any of the other categories maintained by the
Company. (See GC Exh. 8.) I find this intermingling of all
employees regardless of job title or area of primary responsibil-
ity to be highly probative. It demonstrates that the Company’s
real view of its work force was of an interchangeable and flexi-
ble group of employees whose individual value was a function
of such factors as knowledge of how to run a variety of ma-
chines, possession of special skills, quality of work product,
attendance history, efficiency, and lack of disciplinary prob-
lems. These are the rating factors employed in the implementa-

18 Counsel for the Respondent asserts that the General Counsel is
“estopped” from pursuing a theory of inherent destructiveness to Sec. 7
rights because he “did not plead this theory in the Complaint.” (R. Br.
at 7–8.) No authority for this proposition is cited. The Board’s Rules
and Regulations do not require the General Counsel to plead legal
theories in the complaint. See Sec. 102.15. The Board’s processes in
regard to pleadings are flexible, not formulaic. See Boilermakers Local
363 (Fluor Corp.), 123 NLRB 1877, 1913 (1959). I perceive no irregu-
larity in the form of the General Counsel’s complaint, nor do I conclude
that the General Counsel is prevented from arguing any appropriate
legal theory in support of its allegations made in the complaint.
OMAHALINE HYDRAULICS CO. 881
tion of the reduction in force in February 2001. Using these
rating factors, the Company selected employees from cylinder,
pump, and motor production for termination. By the same
token, it retained employees whose primary functions were in
each of these three areas of production.
It is evident that management expended a great deal of
thought, time, and effort to devise the ranking system used to
implement the February reduction in force. It is equally evident
that the purpose of this expenditure of time and effort was to
retain those employees who possessed the best qualifications.
In July 2002, the Company underwent its second reduction
in force, due to the transfer of cylinder operations. Instead of
resorting to the assessment tool developed less than 2 years
earlier, the Company simply terminated all of the striking em-
ployees and retained all of the nonstriking employees. It will
be recalled that General Manager Dumas conceded, in counsel
for the General Counsel’s phraseology, that the “only thing that
determined whether you were laid-off or not laid-off . . . [was]
whether you were on strike or not.” (Tr. 193.) None of the
ranking factors employed in the earlier reduction in force was
utilized. Only one factor remained constant. The Company
continued to make its retention and discharge decisions without
regard to whether an employee worked primarily in cylinder,
pump or motor production and without regard to whether the
employee was classified as a machinist or in some other job
category. Two examples of this will suffice. Gerald Wacker
was classified as a QC employee whose primary duties were in
the quality inspection of cylinder parts. Despite the abolition of
cylinder production and his lack of classification as a machin-
ist, Wacker, a nonstriker, was not selected for inclusion in the
reduction in force and he remains employed as a member of the
Company’s current production staff. By contrast, Jeff Meyer, a
striker, was a machinist engaged in pump machining as his
primary responsibility. Despite this, he was selected for inclu-
sion in the reduction in force. This is particularly significant
since Meyer achieved the highest overall ranking of any em-
ployee in the detailed assessment conducted in order to imple-
ment the February 2001 force reduction. Indeed, he attained a
score of 273, as compared to Wacker’s score of 104. The evi-
dence overwhelmingly establishes that the Company aban-
doned its past practice and implemented its reduction in force
by resort to only one criterion, participation or nonparticipation
in the strike.
I readily perceive that the Company’s decision to retain the
nonstrikers and terminate the strikers was not bizarre or irra-
tional. Obviously, the nonstriking employees were making
their services immediately available to the Company, while the
striking employees were withholding theirs. Nevertheless, the
Company’s total position leads me to infer that a motive to
discriminate against the strikers formed a substantial part of its
decision-making process. In drawing this conclusion, I note
that the Board has reiterated that in Tubular Corp. of America,
337 NLRB 99 (2001).

It is well established that a discriminatory motive may
be inferred from circumstantial evidence and the record as
a whole, and that direct evidence of union animus is not
required. [Citations omitted.]

Furthermore, the Board has noted that blatantly disparate
treatment of union activists “supports an inference of unlawful
motivation.” Watkins Engineers & Constructors, 333 NLRB
818, 819 (2001). I find that the blatant disparity in treatment
here—the retention of all nonstrikers and the discharge of all
strikers without instituting any recall procedures—supports a
strong inference of motivation to discriminate on the basis of
union activity.
In my view, the strongest evidence of a discriminatory mo-
tive is revealed upon consideration of the Company’s explana-
tion for its refusal to grant preferential recall rights to enable its
striking employees to resume working once vacancies become
available. The Company takes the position that it no longer
retains any positions that are the same as, or substantially
equivalent to, the positions held by the striking employees prior
to the reduction in force. The evidence belies this assertion.
The Company’s contention that it no longer has qualifying
jobs for the striking employees is based on its transfer of cylin-
der production and its adoption of Demand Flow Technology. I
will address each of these points.
There is no doubt that the loss of cylinder production has re-
sulted in a significant and apparently permanent reduction in
the work force. Staffing has been reduced from a total of 70
employees in 1999 to the current total of 26. With this reduc-
tion, it may certainly be expected that many strikers will never
be recalled. Nevertheless, given the nature of changing work-
place conditions, some vacancies will almost inevitably occur.
In Pirelli Cable Corp., 331 NLRB 1538, 1540 (2000), the
Board has described the wide array of factors that can lead to
such vacancies:

Under Laidlaw, an economic striker’s entitlement to
reinstatement is contingent upon the existence of a job va-
cancy. . . . “A genuine job vacancy, commonly known as a
‘Laidlaw vacancy,’ may arise when, for example, the
company expands its workforce or discharges a particular
employee, or when an employee quits or otherwise leaves
the company.” [Citations omitted.]

The fact that the Company no longer manufactures cylinders
is not an impediment to reinstatement, even for those employ-
ees whose former primary responsibilities were in cylinder
production. The Company has never made a distinction be-
tween cylinder production and pump and motor production
when deciding whether to retain staff. During its first reduction
in force, it retained employees whose primary responsibilities
were in cylinder production if they scored well on the overall
assessment. It eliminated lower scoring staff whose primary
responsibilities were in pump and motor production. Subse-
quently, when the Company abolished cylinder production, it
retained nonstriking cylinder employees. I find that the hall-
mark of the Company’s actual attitude toward utilization of its
work force was and remains maximum flexibility. As Dumas
summarized it, “we use them where we need them.” (Tr. 187.)
Just as the Company retained nonstriking employees whose
primary functions had been in cylinder production, there is no
reason to find that it would be inappropriate to recall striking
employees whose primary functions had been in such produc-
tion. Of course, a duty to recall striking employees can only
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
arise if vacancies become available in the strikers’ former jobs
or substantially equivalent jobs.
The Company contends that the strikers’ former jobs and any
substantially equivalent jobs will never become available due to
the changeover to Demand Flow Technology. I find this to be a
mere pretext. To be precise, I do not find that the Company’s
decision to adopt Demand Flow Technology was pretextual.
The evidence demonstrates that adoption of this methodology
was designed to meet important business goals including in-
creased efficiency, higher quality, and increased employee
productivity and job satisfaction. While the decision to adopt
this system of organizing production was genuine and not pre-
textual, the attempt to use the adoption of Demand Flow Tech-
nology as a rationale for refusing to consider recall rights for
striking employees is not rational or consistent with the evi-
dence regarding the impact of this new system of production. I
conclude that this argument is advanced as a pretext to justify
discriminatory refusal to consider reinstatement of the strikers.
The Company’s argument is that employees operating under
the Demand Flow system have so benefited from the training
provided since the commencement of the strike and have be-
come so flexible that their current jobs are completely different
from the jobs held by both strikers and nonstrikers before the
conversion. Ideally, after conversion, each employee is able to
operate all the machines involved in the production process and
to self-direct his or her efforts so as to perform a primary func-
tion and automatically shift to performing other related func-
tions in the production process. This is contrasted with the
nature of the prestrike jobs. Those jobs were specific to one
part of the production process. Employees were responsible for
a specified portion of production and did not have self-directed
duties elsewhere.
There are two difficulties with the Company’s view of the
evidence. First, the reality of Demand Flow Technology at
Omahaline greatly differs from the ideal. Despite the poststrike
training process, not a single employee is able to perform all of
the job functions involved in the production process. Indeed,
Dumas testified that achievement of this objective is at least
years away. Thus, for example, Van Kirk testified that he is
trained to perform 3 out of the 14 processes and his assign-
ments are limited to those. Furthermore, the prestrike industrial
process was far more flexible than the Company suggests. The
evidence shows that management frequently transferred em-
ployees to temporary assignments outside their primary respon-
sibilities. Such transfers lasted from a period of hours to a pe-
riod of weeks. Reasons for such transfers included coverage
for absent employees, large demand for particular parts, and
down time due to broken equipment. The fact is that the Com-
pany’s prestrike work force was much more flexible that the
Company suggests and its poststrike work force is much less
flexible than it suggests.
The second difficulty with the Company’s position regarding
the impact of Demand Flow Technology is that it ignores the
essential similarities between the Company’s pre- and post-
strike operations. Dumas testified that 95 percent of the Com-
pany’s product line is identical to the product line being manu-
factured before the strike. While all but two of the machines
used to produce cylinders have been removed, no new ma-
chines have been added.19 All of the machines formerly used to
manufacture pumps and motors are still being used to manufac-
ture pumps and motors. While two machines formerly used to
manufacture cylinders have been converted to pump and motor
production, no new machines have been introduced into the
manufacturing process. As counsel for the General Counsel
puts it:

Nobody had to get any outside training or additional educa-
tional degrees to perform under DFT. Before the strike, em-
ployees learned new machines by working with an experi-
enced employee. Since the implementation of DFT, employ-
ees will continue to learn new tasks by working with an ex-
perienced employee. All the jobs paid the same as each other
before the strike, and still pay the same now. The employer is
using the same machines to produce basically the same prod-
ucts. [GC Br. at 6. Citations to the transcript are omitted.]

The Company called employee Van Kirk as a witness re-
garding the impact of Demand Flow Technology. His testi-
mony is illuminating. He opined that the conversion dramati-
cally altered his job. Despite this, close examination of his
testimony suggests otherwise. His assignments are only se-
lected from among the three job processes that he has learned.
He continues to make the same pump components he made
before the conversion. More importantly, Van Kirk touched
upon what I find to be the essential irrationality in the Com-
pany’s position. He agreed that having knowledge of how to
operate particular machines would give a prospective employee
“an edge.” (Tr. 220.) He was also asked if a prospective em-
ployee’s knowledge of the Company’s product line would be
useful. He responded that:

It would have a great bearing if you didn’t know what the
product was. You couldn’t produce it. I mean, if you
didn’t—if you weren’t familiar with it, you—there’s no way
you could produce it . . . you would have to be trained. [Tr.
221.]

Indeed, Van Kirk indicated that this training would have to be
“extensive.” (Tr. 221–222.) This is a fundamental point that is
probative as to two related issues of fact. First, it reflects the
fact that the Company’s current jobs are the same as, or cer-
tainly substantially equivalent to, the strikers’ former jobs.
Second, it demonstrates that the Company’s position is either
irrational or discriminatorily motivated. The refusal to accord
recall rights to the former strikers in preference to persons with
no prior work experience for the Company is, absent an im-
proper motive, simply inexplicable. It overlooks the substantial
assets of those workers including their familiarity with the
Company’s current equipment and products. In fact, it rejects
members of the same pool of experienced employees from
which it selected the original complement of workers assigned
to implement Demand Flow Technology. The only basis for
having rejected these particular members of this pool of experi-
enced employees was their participation in the strike.20 The

19 The two remaining cylinder-related machines have been reconfig-
ured to meet the needs of pump and motor production.
20 Counsel for the General Counsel cites specific instances to dem-
onstrate that retained employees had scored lower on the 2001 assess-
OMAHALINE HYDRAULICS CO. 883
suspicious nature of the Company’s position has been recog-
nized since the Board’s infancy. As long ago as 1938, in an
opinion affirming an early decision of the Board, Judge
Learned Hand observed that a presumption of impropriety may
be drawn from an employer’s refusal to act on the principle that
“seasoned men are better than green hands.” NLRB v. Reming-
ton Rand, 94 F.2d 862, 872 (2d Cir. 1938), cert. denied 304
U.S. 590.
For these reasons, I conclude that the Company engaged in
discriminatory conduct by selecting all the striking employees
(and only the striking employees) for termination while refus-
ing to accord them reinstatement rights. I have no difficulty in
further concluding that this conduct was destructive of impor-
tant employee rights in the same manner as the conduct in
Fleetwood and Laidlaw. The implicit message directed to the
Company’s employees embedded in the heart of the Com-
pany’s conduct is that the discharged employees’ union activi-
ties were the cause of their selection for termination and for the
Company’s refusal to give them preferential consideration for
any future vacancies in their former jobs or substantially
equivalent jobs. The Company’s decisions convey a bold,
clear, and toxic message regarding the consequences of union
activities.
Consideration of relevant precedents is of considerable value
in assessing the Company’s assertion that its decision to refuse
preferential recall rights is supported by the legitimate and sub-
stantial reason that it will not have future vacancies in the strik-
ers’ former jobs or any substantially equivalent jobs.
Turning first to cases where the Board found that no qualify-
ing jobs existed for strikers, the Company cites Weyerhauser
Co., 274 NLRB 972 (1985). In that case, at the conclusion of a
strike, the employer terminated all of its operations at the plant
in question “due to economic conditions neither caused by, nor
related to, the strike.” 274 NLRB at 973. All of the plant’s
employees, strikers and nonstrikers, were laid off. As a result,
the Board adopted the administrative law judge’s conclusion
that there was no discrimination and, hence, no reason to reach
the reinstatement issue. This is entirely different from the
situation presented here. In Weyerhauser, all of the employees
lost their jobs. In this case, all of the nonstriking employees
retained employment, while all of the striking employees lost
theirs. Thus, the situation presented here is the polar opposite
of that addressed in Weyerhauser. Obviously, in Weyerhauser,
there could be no substantially equivalent jobs since there were
no jobs at all.
The Company next cites NLRB v. Southern Florida Hotel &
Motel Assn., 751 F.2d 1571 (11th Cir. 1985). In that case, a
hotel was confronted by a strike involving some of its breakfast
waitresses. It modified its breakfast service by adopting a buf-
fet format. Nonstriking waitresses were given employment as
buffet line servers. The hotel found that customers preferred
the buffet breakfast and the hotel saved on labor costs. As a
result, after the strike, the hotel retained the buffet format and

ment than striking employees. Despite this, the Company views them
as competent to perform under Demand Flow Technology while con-
tending that the higher scoring strikers are not qualified to do so. (GC
Br. at 9.)
refused to reinstate the striking waitresses. The Court held that
the conversion to buffet format was made for legitimate and
substantial business reasons and that the waitresses’ jobs had
been abolished. After the conversion, there were simply no
more breakfast waitresses. This stands in contrast to the situa-
tion in this case. After the conversion, the Company had fewer
production jobs. Nevertheless, it continued to have production
jobs, jobs in which the employees used the same machines to
produce the same products as before the conversion.
In 1992, the Board addressed this issue in California Distri-
bution Centers, 308 NLRB 64 (1992). Prior to a strike, the
company employed warehousemen and driver-warehousemen
that performed some of the same duties. Driver-warehousemen
also performed additional driving duties. Due to a change in
business conditions, after the strike the company elected to
employ fewer warehousemen and more driver-warehousemen.
The Board approved the company’s decision to decline rein-
statement rights to the warehousemen, finding that the two jobs
were not substantially equivalent. A key factor underlying this
decision was the requirement that driver-warehousemen pos-
sess Class I drivers’ licenses. The warehousemen lacked such
licenses. Once again, this is significantly different from the
situation encountered here. There is simply no basis upon
which to disqualify the strikers from future employment. This
is most clearly illustrated by noting that the nonstrikers pos-
sessed the same (and in some cases fewer) qualifications for the
Demand Flow Technology jobs as did the strikers. All of the
nonstriking employees were given employment. As Van Kirk’s
testimony illustrated, there can be no doubt that the strikers
would possess qualifications arising from their knowledge of
the Company’s machines and products that would render them
similarly qualified for reinstatement.
Finally, the Board considered two aspects of this issue in
Laidlaw Waste Systems, 313 NLRB 680 (1994). The case in-
volved a company that operated two facilities located in close
proximity and employed drivers of four different types of vehi-
cles. After a strike, the company refused reinstatement of sev-
eral drivers. The Board upheld a portion of the company’s
position, finding that the different types of driving jobs were
not substantially equivalent since they made different physical
demands upon the drivers, required different levels of skill, and
required different types of drivers’ licenses. On the other hand,
the Board rejected the company’s claim that it was not required
to offer drivers formerly stationed at one facility work at the
company’s other nearby facility. It based this conclusion on the
fact that workers at both facilities belonged to the same bar-
gaining unit, received the same or similar wages, maintained
the same seniority system, and were permitted to transfer be-
tween the two facilities. The considerations discussed in Laid-
law Waste Systems do not support the Company’s position
since its production jobs all continue to be compensated at the
same rate and continue to involve equivalent skills and qualifi-
cations.
Other precedents clearly support the General Counsel’s posi-
tion in this case. In another hotel case, Arlington Hotel Co.,
273 NLRB 210 (1984), enf. 785 F.2d 249 (8th Cir. 1986), cert.
denied 479 U.S. 914 (1986), the hotel hired new workers while
refusing to reinstate former strikers. The Board noted the ho-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
tel’s prior policy of freely transferring its employees among
disparate job categories within the institution. It also noted the
hotel’s emphasis on training designed to maximize the capabili-
ties of the staff. In uphold the Board’s finding of unlawful
conduct, the Court of Appeals observed that (id. at 251):

Under the facts of this case, we find that the Board did
not err in holding that the Hotel discriminated against the
strikers by not offering them jobs for which they were
qualified. The Hotel had a policy of cross-training and
developing multiple capabilities for its employees.

. . . .

The Hotel’s recall policy, therefore, clearly discrimi-
nated against unreinstated strikers in favor of new job ap-
plicants.

The hotel’s policy closely matches that of Omahaline, both
before and after the strike. Dumas testified that it had been the
Company’s policy that its employees would be “cross trained in
a number of functions.”21 (Tr. 164.) In an affidavit, he charac-
terized the employees as “very interchangeable.” (Tr. 185.) If
anything, the emphasis on cross-training is even greater under
Demand Flow Technology. Just as with the hotel, this long-
standing corporate objective completely undercuts the asserted
basis for the Company’s refusal to grant reinstatement rights.
In Wright Tool Co., 282 NLRB 1398 (1987), enf. 854 F.2d
812 (6th Cir. 1988), the Board faced a situation quite similar to
the facts in this case. Machine operators were refused rein-
statement after a strike. In rejecting that company’s defense
bearing many similarities to the position of this Respondent, the
Board affirmed the administrative law judge’s characterization
of the decisive circumstances (id. at 1403–1404):

The testimony of [a witness called by the company] conceded
that employees are moved from one machine to another when
work for the specific machine to which an employee is as-
signed is low or the machine is inoperable. Respondent has
not demonstrated it now has different machines and tools
more difficult to operate. Nor has it shown that the qualifica-
tions of the newly hired employees are better than the long-
experienced employees on the recall list and, if so, how.

Likewise, Omahaline has failed to show that despite inaugura-
tion of Demand Flow Technology, its work processes are sig-
nificantly different or its striking employees less qualified than
the nonstriking employees it converted to the new process.
In Little Rapids Corp., 301 NLRB 604 (1993), a respondent
mounted a defense to reinstatement quite similar to the asser-
tion that Demand Flow Technology completely altered the jobs
such that no substantially equivalent positions remained. The
Board noted that the company had “introduced some new
equipment and methods of quality control which involved em-
ployee training,” but rejected this defense to the refusal to rein-
state former strikers. Id. at 604 fn. 2.
In 1998, the Board further delineated the extent of strikers’
reinstatement rights under Rose Printing, supra. In Towne

21 For example, Dumas testified that the cylinder employees were
capable of doing the pump and motor work as well. (Tr. 190.)
Ford, Inc., 327 NLRB 193 (1998), affd. in pertinent part 238
F.2d 429 (9th Cir. 2000), the company reorganized its work
force after a strike. It declined to reinstate three apprentice
painters to newly created jobs as polishers, despite the fact that
the apprentices had performed polishing work prior to the
strike. The Board held that (id. at 194–195):

It is undisputed that polishing work was a not insig-
nificant part of the job that apprentice painters had per-
formed before the strike, and had the three been working
as apprentice painters at the time the reorganization of the
operation into three separate functions occurred, they
would logically have been moved to the polisher position.
Thus, in finding substantial equivalence, we are not run-
ning afoul of the Rose Printing rule that there is no Laid-
law obligation to reinstate strikers to any position for
which they are qualified, without regard to what they did
before the strike. Rather, we are carrying out what was
acknowledged in Rose Printing as the Board’s duty: “to
ensure that strikers who have unconditionally offered to
return to work are . . . treated the same as they would have
been had they not withheld their service.” [ICitation omit-
ted.]

This reasoning applies with equal force here. As the counsel
for the General Counsel observes (GC Br. at 11–12.):

Had there been no strike and a nondiscriminatory reduction in
force, the chances of the [reduction in force] list matching the
list of strikers is nonexistent. Out of the top fifteen machinists
on the Employer’s February 2001 rating system who haven’t
quit, nine are strikers.

All of the Company’s nonstriking employees were retained
after reorganization. An order directing the creation of a pref-
erential recall list simply takes a necessary step to ensure that
the strikers are treated in a similar manner than they would
have been had they not withheld their service.
Upon consideration of the evidence of record and the rele-
vant precedents, I conclude that the Company has failed to meet
its burden of establishing a substantial and legitimate business
justification for its decision to select persons subject to reduc-
tion in force by the sole criterion of participation in the strike
and its refusal to offer those individuals preferential recall
status. On this basis, I conclude that the Company has violated
Section 8(a)(1) and (3) of the Act.
Since I have found that the Company’s actions destroyed
important rights granted to the strikers under the Act and that
the Company failed to meet its burden of showing a legitimate
and substantial business justification for its conduct, there is no
requirement that antiunion motivation be demonstrated under
the test described in Fleetwood and Laidlaw. Nevertheless, I
recognize that the issue in this case is slightly different from the
pure reinstatement situation, albeit closely related. In Fleet-
wood and Laidlaw, the General Counsel sought immediate
reinstatement.22 The remedial issue here is the creation of a

22 I do not wish to overemphasize the difference between the issue in
Fleetwood and Laidlaw and that presented here. For example, in Globe
Molded Plastics Co., 204 NLRB 1041 (1973), the Board observed that
“specific proof of antiunion animus [was] not required” when evaluat-
OMAHALINE HYDRAULICS CO. 885
preferential recall list. In light of this difference, I have also
considered the evidence by employing the analytical framework
set forth in Wright Line.23 This requires that the General Coun-
sel show that the discharged employees were engaged in pro-
tected concerted activity, that the Company was aware of such
activity, and that the activity was a substantial or motivating
factor for the decisions to discharge and refuse preferential
recall rights to those employees. If the General Counsel makes
this showing, the burden shifts to the Company to demonstrate
that it would have taken these same actions even in the absence
of the protected concerted activity.
It is evident that the striking employees were participating in
a form of protected concerted activity and that the Company
was aware of their participation. In his testimony, Dumas con-
ceded that the sole distinction between discharged employees
and retained employees was participation or lack of participa-
tion in the strike. I also find that the strikers’ union activities
formed a substantial or motivating factor in the decisions to
select them for reduction in force and deprive them of preferen-
tial recall rights. I base this conclusion on the blatant disparity
in their treatment as compared to the nonstriking employees. I
place great weight upon the fact that the Board endorsed pre-
cisely this analysis in a hypothetical discussion in Laidlaw it-
self. It will be recalled that the Board declined to require a
finding of antiunion animus when the issue involved failure to
reinstate strikers. However, in a footnote, it made the following
highly pertinent observation, id at fn. 14:

Even if a finding of antiunion motivation is necessary, the
employer’s preference for strangers over tested and competent
employees is sufficient basis for inferring such
motive, and we, in agreement with the Trial Examiner, would
do so if we considered motive material.

I draw the same conclusion here.
A finding of antiunion animus is bolstered by consideration
of the Company’s explanations for its refusal to grant preferen-
tial recall status. I have previously discussed my reasons for
concluding that these explanations are pretextual. The Board
has recently observed that it is a “well settled” doctrine that
“where an employer’s stated motive is found to be false, an
inference may be drawn that the true motive is an unlawful one
that the employer seeks to conceal.” Key Food, 336 NLRB
111, 114 (2001), citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). Having found that the Com-
pany’s asserted justifications for its actions are not logical and
consistent, I conclude that they are a pretext advanced to con-
ceal antiunion animus. Thus, the General Counsel has met its
initial burden under Wright Line. Lastly, having found the
Company’s justifications to be pretextual, it follows that the
Company has failed to carry its burden of establishing that it

ing the respondent’s refusal to credit reinstated strikers with past ser-
vice. 204 NLRB 1041 fn. 1. From this, I conclude that issues that are
promixately related to reinstatement of former strikers would involve
the same framework for analysis as those that concern reinstatement
itself.
23 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 989 (1982).
would have selected the striking employees for reduction in
force and refused to accord them preferential recall rights re-
gardless of their union activities.

Under either of the two analytical models, I find that by se-
lecting all of its striking employees for reduction in force
while retaining all of its nonstriking employees and by refus-
ing preferential recall rights to its striking employees, the
Company has violated Section 8(a)(1) and (3) of the Act. In
coming to this ultimate conclusion, I have placed great weight
upon the General Counsel’s combination of legal theory and
proposed remedy. In my view, this overall formulation of the
problem presented in this case strikes a proper accommoda-
tion of the parties’ competing interests within the framework
of the Act. Limiting the relief sought to the creation of a pref-
erential recall system protects the employer’s economic free-
dom to adapt to changing circumstances by transferring as-
pects of production and by redesigning the remaining produc-
tion processes. In the circumstances presented in this case, it
also grants the employer the latitude to retain those employees
who are offering their services while reducing its work force
by laying off those employees who are withholding their ser-
vices. As a result, the General Counsel’s position affords ap-
propriate protection to the legitimate economic interests of the
employer.

While protecting the employer’s lawful interests, the General
Counsel’s position also honors the Act’s grant of protection to
the striking employees in a carefully calibrated manner. By
choosing to withhold their services, those employees assumed
certain economic risks. The end result proposed by the General
Counsel does not relieve them of the consequences of taking
such risks. It is strictly confined to the protection of their rights
granted under the Act. Grant of the limited relief being sought
conveys to the parties the important message that participation
in union activities will not subject employees to retaliation and
reprisals that are motivated by animus, as opposed to adverse
employer actions motivated by genuine economic considera-
tions.
In my view, the result I am recommending achieves the same
purposes as the result approved by the Board in Lehigh Metal
Fabricators, 267 NLRB 568 (1983), enf. 735 F.2d 1350 (3d
Cir. 1984). In that case, striking welders were refused rein-
statement on the basis that the employer had evolved from an
“unskilled fabricator to [a] quality assurance shop.” Id. at 574.
Because of this change, the company contended that it needed
the freedom to refuse reinstatement of striking welders in order
to be able to hire more highly skilled welders. The administra-
tive law judge rejected this assertion, noting that

[R]ecruitment of the finest welders available no doubt would
contribute to this otherwise legitimate business objective.

It is plain, however, that impaired reinstatement oppor-
tunities are not condoned simply because it is necessary to
produce a business gain. Accommodation is necessary
“between the asserted business justifications and the inva-
sion of employee rights [considered] in light of the Act
and its policy.” [Citing Great Dane Trailers, supra.]

. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886

Growth in work force skill levels and an ongoing in-
terest in improving the performance thereof through new
hires is not peculiar to Respondent’s needs but represents a
pervasive, commonly held goal of any effective manager.
Though salutary, it is not viewed in this quarter as the type
of business judgment so special as to reduce an employer’s
obligation to reinstate the striker, if qualified, as contem-
plated by Laidlaw, to a mere duty to reinstate the striker if
he is the best qualified that might be recruited from any
source. To hold otherwise would countenance a signifi-
cant impediment to employee exercise of the rights guar-
anteed in Sections 7 and 13 of the Act. Employees would
tend to be most hesitant, perhaps to the point of refraining
entirely from making common cause in legitimate strike
action, were the risk of permanent replacement com-
pounded by legal recognition of a further right in employ-
ers to select from any source, on an unverifiable, subjec-
tive basis, the individual whom management deems the
most qualified. [Id. at 574–575.]

With these considerations in mind, I recommend adoption of
the relief requested by the General Counsel.
CONCLUSION OF LAW
By selecting all of its striking employees for reduction in
force while retaining all of its nonstriking employees, and by
declining to accord its striking employees preferential recall
status upon the termination of the strike, the Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With regard to affirmative relief, the Respondent should be
ordered to devise and implement a system of preferential recall
for those of its former striking employees named in the com-
plaint.24 It should also be ordered to offer any of such former
striking employees reinstatement to any of their former jobs or
other substantially equivalent jobs that become available.25 For
the reasons detailed in the body of this decision, such jobs shall
include any vacancies among the Respondent’s current produc-
tion positions. The Respondent should also be ordered to make
the former striking employees whole for any financial losses
they may have suffered as a result of the unlawful conduct. As
suggested by the General Counsel, determination of whether
such losses have been incurred is best left to the compliance
process. In the event that such financial losses are found to
have been incurred, Respondent should make such losses

24 I note that the Company has already informed the Union that it in-
tends to negotiate “layoff and recall” rights. (GC Exh. 7.)
25 I do not recommend any time limit on such reinstatement rights.
The Board has rejected such time limits as being contrary to the princi-
ples enunciated in Fleetwood and Laidlaw. See Brooks Research &
Mfg., 202 NLRB 634, 636 (1973). Of course, any individual reinstate-
ment right will terminate under the terms of the Act if the person ob-
tains “any other substantially equivalent employment.”
whole, with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, Omahaline Hydraulics Company, a divi-
sion of Prince Manufacturing Company, North Sioux City,
South Dakota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Selecting for reduction in force or otherwise discriminat-
ing against any employee for supporting District No. 7, Interna-
tional Association of Machinists & Aerospace Workers, AFL–
CIO, or any other union, or participating in union activities.
(b) Refusing to accord preferential recall status to its former
striking employees for any vacancies that may occur in their
former jobs or in substantially equivalent jobs.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, devise and
implement a preferential system for recall and reinstatement of
the following persons to any vacancies in their former jobs or
substantially equivalent jobs: Wade Capron, John W. Carpen-
ter, Scott E. Frazee, Bruce E. Gilbertson, Chance Hall, Gary J.,
Heyden, Roger Hummel, Lake Larson, David E. Linn, Toni
Loker, Chris Mace, Drake C. Malm, Scott A. Malm, Jeff L.
Meyer, Paul L. Mortweet, Ryan C. Nelson, Steven Parent,
Mark L. Pauley, Jeremiah G. Reese, Jim W. Reno, Allen C.
Rohan, Ben J. Schrunk, Ron K. Sherril, Mark Sorenson, Shan-
non M. Sorenson, Kenny Swigart, Jesse D. Whittington, and
Troy E. Wright.
(b) Upon the occurrence of any vacancy in a former job or
substantially equivalent job, and in accordance with the terms
of the preferential recall system, reinstate Wade Capron, John
W. Carpenter, Scott E. Frazee, Bruce E. Gilbertson, Chance
Hall, Gary J. Heyden, Roger Hummel, Lake Larson, David E.
Linn, Toni Loker, Chris Mace, Drake C. Malm, Scott A. Malm,
Jeff L. Meyer, Paul L. Mortweet, Ryan C. Nelson, Steven Par-
ent, Mark L. Pauley, Jeremiah G. Reese, Jim W. Reno, Allen C.
Rohan, Ben J. Schrunk, Ron K. Sherril, Mark A. Sorenson,
Shannon M. Sorenson, Kenny Swigart, Jesse D. Whittington,
and Troy E. Wright.
(c) Make Wade Capron, John W. Carpenter, Scott E. Frazee,
Bruce E. Gilbertson, Chance Hall, Gary J. Heyden, Roger
Hummel, Lake Larson, David E. Linn, Toni Loker, Chris Mace,
Drake C. Malm, Scott A. Malm, Jeff L. Meyer, Paul L. Mort-
weet, Ryan C. Nelson, Steven Parent, Mark L. Pauley, Jeremiah
G. Reese, Jim W. Reno, Allen C. Rohan, Ben J. Schrunk,
Jeremiah G. Reese, Jim W. Reno, Allen C. Rohan, Ben J.
Schrunk, Ron K. Sherril, Mark A. Sorenson, Shannon M.

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
OMAHALINE HYDRAULICS CO. 887
Sorenson, Kenny Swigart, Jesse D. Whittington, and Troy E.
Wright whole for any financial loss suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of money
that may be due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in North Sioux City, South Dakota, copies of the attached
notice marked “Appendix.”27 Copies of the notice, on forms

27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
provided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained 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. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 31, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.