SKS Die Casting & Machining

National Labor Relations Board - Board Decisions

Apr 22, 1992

307 N.L.R.B. 207 (N.L.R.B. 1992)

207
307 NLRB No. 28
SKS DIE CASTING & MACHINING
1 Laidlaw Corp., 171 NLRB 1366, 1369–1370 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
2 The court relied on an admission in the General Counsel’s brief
to the Board which stated that ‘‘beginning around May 6 [Respond-
ent] proceeded to hire permanent replacements for the strikers.’’ 941
F.2d at 990.
3 The court, further noting the Board’s failure to order a separate
remedy for SKS’ March 16, 1987 refusal to reinstate unfair labor
practice strikers, also remanded that matter for formulation of a rem-
edy for the Respondent’s refusal to grant the unfair labor practice
strikers their reinstatement rights as of March 16, 1987, ‘‘if the
Board should find that there are some strikers who had not become
entitled to reinstatement at an earlier date.’’
4 Members Oviatt and Raudabaugh did not participate in the
Board’s underlying decision.
5 We note that it is unclear on the present record the extent to
which the eight permanent replacements were at all relevant times
assigned jobs previously performed by strikers or whether the re-
placements were reassigned production duties which had not pre-
viously been performed by the replaced strikers. In this respect, we
note that the record in the underlying proceeding contains documents
of the Respondent which highlight the disparities between the job
classifications of the permanent hires listed in R. Exhs. 11 and 12
and those of the striking employees set forth in the Respondent’s
May 5, 1986 posting entitled ‘‘Proposed Wages for SKS Employ-
ees’’ (G.C. Exh. 8). These are matters that should be explored fur-
ther in the compliance proceeding.
6 See fn. 3, supra.
7 The record is inadequate to determine if any of these replace-
ments still were employed by the Respondent as of March 16, 1987.
SKS Die Casting & Machining, Inc., SKS Die Cast-
ing & Machining, Inc., Debtor-in-Possession
and Bay Area District Lodge No. 115, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO. Cases 32–CA–8053
and 32–CA–8950
April 22, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 31, 1989, the National Labor Relations
Board issued its Decision and Order (294 NLRB 372)
in the above-entitled proceeding in which the Board,
inter alia, found that the Respondent violated Section
8(a)(3) and (1) by refusing to reinstate employees who
became economic strikers on May 5, 1986, and offered
unconditionally to return to work on May 9, 1986. The
Board further found that the Respondent’s refusal to
reinstate the economic strikers, and its stated refusal to
bargain in a May 11, 1986 letter to the Union, con-
verted the economic strike into an unfair labor practice
strike. The Respondent’s subsequent refusal to reinstate
the strikers following the Union’s second unconditional
offer, on March 16, 1987, to return them to work was
also found to have violated Section 8(a)(3) and (1).
The Board accordingly ordered all the strikers to be re-
instated, with backpay from the time of their applica-
tion to return to work, because the Respondent had
failed to meet its burden of showing that any of the
strikers were permanently replaced.
Thereafter, the Respondent petitioned the United
States Court of Appeals for the Ninth Circuit for re-
view, and the General Counsel cross-petitioned for en-
forcement, of the Board’s Decision and Order. On Au-
gust 13, 1991, the court (941 F.2d 984) affirmed the
Board’s 8(a)(3) and (1) findings of violations, reversed
the finding that none of the economic strikers were
permanently replaced prior to their May 9, 1986 un-
conditional offer to return, and remanded the case to
the Board for resolution of the strikers’ Laidlaw1
rights.
The court found that the General Counsel had con-
ceded that eight permanent replacements had been
hired for eight of the strikers and so rejected the
Board’s reliance on the Respondent’s failure of proof
as to those eight.2 In addition, the court accepted the
General Counsel’s assertion that on May 9 the Re-
spondent’s only reinstatement obligation was to the 11
unreplaced economic strikers, but that a high turnover
rate among replacements resulted in vacant positions
that the Respondent was then obligated to offer to the
replaced strikers. The court accordingly remanded the
case to the Board for a determination of the effect of
replacement turnover and resolution of the dates from
which those strikers are entitled to reinstatement and
backpay at the compliance stage of the proceeding.3
The Board has delegated its authority in this pro-
ceeding to a three-member panel.4
The Board has reviewed its Decision and Order in
light of the court’s remand and accepts as the law of
this case the court’s finding that the Respondent hired
eight permanent replacements for strikers prior to the
strikers’ May 9, 1986 unconditional offer to return. We
agree with the court that it is essential to determine at
the compliance stage of this proceeding which perma-
nent replacements filled which jobs, for whom, and for
how long,5 and we shall accordingly remand this case
to the Regional Director for the purpose of instituting
a compliance proceeding to resolve the reinstatement
and backpay rights of all the strikers.
With regard to the court’s direction6 that we formu-
late a ‘‘separate remedy’’ for strikers refused reinstate-
ment upon their second unconditional offer to return,
made on March 16, 1987 (by which time the strike had
converted to an unfair labor practice strike), we direct
that due consideration be given in such compliance
proceeding to the strikers’ status as unfair labor prac-
tice strikers after May 11, 1986. We note, however,
that this has virtually no practical significance here.
The permanent replacement of eight strikers dis-
cussed above was not affected by the strike’s conver-
sion because those replacements were hired before the
strike converted to an unfair labor practice strike.7 Al-
though unfair labor practice strikers who uncondition-
ally offer to return are entitled to immediate reinstate-
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment even when this necessitates the discharge of re-
placements, that entitlement applies only to (1) perma-
nent replacements hired during the unfair labor prac-
tice strike, or (2) temporary replacements hired at any
time. Wilder Construction, 276 NLRB 977, 982
(1985), enfd. 804 F.2d 1122 (9th Cir. 1986). An em-
ployer need not discharge replacements to whom it
made offers of permanent employment during an eco-
nomic strike, even if the strike and the strikers there-
after convert to unfair labor practice status. With re-
spect to any such previously filled positions, unfair
labor practice strikers, like economic strikers, are enti-
tled simply to be placed on a preferential rehire list.
Id. Thus, after the strike at issue in this case converted
on May 11, 1986, the Union’s outstanding uncondi-
tional offer for the return of the strikers obligated the
Respondent to reinstate them immediately to any of
their former prestrike positions (or substantial equiva-
lents) that (1) were occupied by temporary replace-
ments, (2) were occupied by permanent replacements
hired after May 11, 1986, or (3) became vacant by vir-
tue of the departure of replacements, whether perma-
nent or temporary. Therefore, with respect to the eight
positions in question, the strikers were entitled to im-
mediate reinstatement only upon the replacements’ de-
parture, and backpay will accordingly not begin run-
ning before that date regardless of the status of the
strikers.
ORDER
The National Labor Relations Board orders that this
case is remanded to the Regional Director for Region
32 for the purpose of instituting compliance pro-
ceedings consistent with this Supplemental Decision
and Order.