Reichhold Chemicals

National Labor Relations Board - Board Decisions

Feb 14, 1992

301 N.L.R.B. 706 (N.L.R.B. 1992)

706
301 NLRB No. 103
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 288 NLRB 69.
2 Reichhold Chemicals, 277 NLRB 639 (1985).
3 Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990).
4 In its statement of position, the Union asserts, inter alia, that, as a result
of the D.C. Circuit Court decision, the Board should vacate its January 1986
Certification of Results of the decertification election held June 1984 in Case
10–RD–891. The Union argues that the election was tainted by the Respond-
ent’s unremedied violation of Sec. 8(a)(3). We note, however, that the Union
failed to preserve its position in Case 10–RD–891 by failing to challenge the
ballots of the replacement employees who voted in the June 1984 election and
also by failing to file timely objections to the election in December 1985,
when the tally of ballots was prepared. We will not, therefore, vacate the Janu-
ary 1986 Certification of Results.
5 The Respondent requested in its position statement that the Board stay fur-
ther proceedings in this case until the U.S. Supreme Court resolves the issues
raised in its petition for a writ of certiorari. On January 14, 1991, the Court
denied the Respondent’s petition, Reichhold Chemicals v. Teamsters Local
515, 136 LRRM 2152, 111 S.Ct. 767 (1991).
6 The Board stated in Reichhold Chemicals, 277 NLRB 639 (1985),
The Union struck the Respondent on 1 April 1984. The strike ended on
6 April 1984 when the Union made an unconditional return-to-work offer
on behalf of all striking employees. At that point the Respondent ceased
hiring permanent replacements for strikers, recalled a number of strikers
who had not been replaced, and placed the remaining strikers on a pref-
erential hiring list. As of the hearing, 27 strikers had not been returned
to work despite their unconditional offers to do so.
In light of our conclusion that the Respondent violated Sec. 8(a)(3) by refus-
ing to reinstate unfair labor practice strikers, we shall order the Respondent
to offer all unfair labor practice strikers full and immediate reinstatement and
to make them whole for any loss of earnings or other benefits they may have
suffered as a result of the discrimination against them, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Reichhold Chemicals, Inc. and Teamsters Local 515.
Case 10–CA–20331
February 14, 1992
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 17, 1988, the Board issued a Supple-
mental Decision and Order in this proceeding1 in
which, on reconsideration of its prior decision,2 it re-
affirmed its initial findings that the Respondent had
not engaged in surface bargaining and that the Re-
spondent did not violate the Act by negotiating to im-
passe over a proposal waiving the employees’ right to
engage in unfair labor practice strikes. Further, on re-
consideration, the Board, reversing its earlier finding,
concluded that the Respondent’s insisting to impasse
on a proposal to waive the employees’ right of access
to the Board violated the Act because the proposal
concerned a nonmandatory subject of bargaining. The
Board nonetheless found that the Respondent’s insist-
ence to impasse on the no-access proposal was not a
contributing cause of the April 1–6, 1984 strike and
thus concluded that the strike was an economic strike.
The United States Court of Appeals for the District
of Columbia Circuit issued an opinion June 22, 1990,3
affirming the Board’s supplemental decision except in-
sofar as it found the April 1984 strike to be an eco-
nomic strike. Rather, the court found that
the employees followed their Union leader’s rec-
ommendation to strike, in part because of his
view that the provisions of the no-strike clause
were outrageous. In so voting, the employees rati-
fied the Union leader’s judgment that they should
strike because of the [Respondent’s] demand for
a no-access provision.
Id. at 726. The court remanded the case to the Board
for modification of its Order in accordance with the
decision, including reinstatement and a backpay deter-
mination. The Board thereafter advised the parties that
it had accepted the remand, and invited them to file
statements of position. The General Counsel, the
Union,4 and the Respondent5 filed statements of posi-
tion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
We accept the court’s remand as the law of the case.
Thus, we conclude that the Respondent’s unlawful in-
sistence to impasse on the no-access proposal was a
contributing cause of the April 1984 strike and that the
strike was an unfair labor practice strike. We therefore
conclude that the Respondent violated Section 8(a)(3)
of the Act by refusing to reinstate all unfair labor prac-
tice strikers on their unconditional offer to return to
work.6 Accordingly, we shall issue a modified Order
and a Notice to Employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Reichhold Chemicals, Inc., Kensington,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening its employees with discharge or
other reprisals if they engage in concerted activities on
behalf of the Union, or with the futility of their contin-
ued support of the Union as their bargaining agent.
(b) Refusing to bargain in good faith with any union
that is the certified or recognized collective-bargaining
representative of its employees by insisting to impasse
on the waiver of the employees’ statutory rights to
seek redress from the Board for discipline imposed
under a no-strike provision.
(c) Refusing to reinstate unfair labor practice strikers
on their unconditional offer to return to work.
(d) 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
effectuate the policies of the Act.
(a) On request, bargain with any union that is the
certified or recognized collective-bargaining represent-
707REICHHOLD CHEMICALS
7 See Reichhold Chemicals, 288 NLRB 69, 73 fn. 22 (1988).
8 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ative of the employees7 in the following appropriate
unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement. The appropriate unit
is:
All production and maintenance employees em-
ployed by Respondent at its Kensington, Georgia
facility, including lab technicians, but excluding
all office clerical employees, professional employ-
ees, technical employees, guards, and supervisors
as defined in the Act.
(b) Offer all employees who engaged in the April 1–
6, 1984 unfair labor practice strike immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employees hired as replacements on or after April
1, 1984, for those positions. If insufficient jobs are
available for these employees, they shall be placed on
a preferential hiring list and they will be offered em-
ployment before any other persons are hired. Make
whole all unfair labor practice strikers for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
above.
(c) Remove from its files any reference to the un-
lawful refusal to reinstate the unfair labor practice
strikers on their April 6, 1984 unconditional offer to
return to work, and notify the employees in writing
that this has been done and that the refusal of rein-
statement will not be used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility in Kensington, Georgia, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with dis-
charge or other reprisals because of their support of
Teamsters Local 515 or their engagement in concerted
activities, or with the futility of their continued support
of the Union as their bargaining agent.
WE WILL NOT refuse to bargain in good faith with
any union that is the certified or recognized collective-
bargaining representative of our employees by insisting
to impasse on the waiver of the employees’ statutory
rights to seek redress from the Board for discipline im-
posed under a no-strike provision.
WE WILL NOT refuse to reinstate unfair labor prac-
tice strikers upon their unconditional offer to return to
work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with any union that is
the certified or recognized collective-bargaining rep-
resentative of our employees and put in writing and
sign any agreement reached on terms and conditions of
employment for our employees in the following bar-
gaining unit:
All production and maintenance employees em-
ployed by us at our Kensington, Georgia facility,
including lab technicians, but excluding all office
clerical employees, professional employees, tech-
nical employees, guards, and supervisors as de-
fined in the Act.
WE WILL offer all our employees who engaged in
the April 1–6, 1984 unfair labor practice strike imme-
diate and full reinstatement to their former jobs or, if
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. WE WILL
dismiss, if necessary, any employees we hired on or
after April 1, 1984, as replacements for those posi-
tions. If insufficient jobs are available for the unfair
labor practice strikers, WE WILL place them on a pref-
erential hiring list and WE WILL offer them employ-
ment before we hire any other persons. WE WILL make
whole all unfair labor practice strikers for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
unlawful refusal to reinstate the unfair labor practice
strikers on their April 6, 1984 unconditional offer to
return to work, and WE WILL notify each of them in
writing that we have done this and that we will not use
the refusal of reinstatement against them in any way.
REICHHOLD CHEMICALS, INC.