Bancroft Cap Company

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 547 (N.L.R.B. 1979)

BANCROFT CAP COMPANY
Bancroft Cap Company and United Hatters, Cap and
Millinery Workers International Union, AFL-CIO,
and Its Local Union 130. Cases 26-CA 6986 and
26 CA 7096
September 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On July 12, 1979, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board
adopts as its Order the recommended Order of the Admin-
istrative Law Judge and hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety, and that
the settlement agreement in Case 26-CA-6986 be reinstat-
ed.
I In affirming the Administrative Law Judge's conclusion that no violation
of the Act occurred, we qualify his analysis regarding layoffs and vacancies,
particularly his finding that absent a pretextuous "layoff" to cover up dis-
charges, quitting, or termination, the length of the layoff is immaterial in the
determination of whether a vacancy, to which an unreinstated striker would
be entitled, exists. We have examined the entire record in this case, including
the evidence which the General Counsel contends was improperly rejected
by the Administrative Law Judge, and find that the General Counsel has
failed to prove by a preponderance of the evidence that the laid-off employ-
ees had no reasonable expectation of recall. See Certified Corporation, 241
NLRB 369 (1979). In this regard. we rely particularly on the fact that the
layoffs involved here were for periods of only 2 to 7 days and were due to
shortages of materials. Thus, on the facts of this case, we agree with the
Administrative Law Judge's conclusion that there were no vacancies which
Respondent was obligated to offer to unreinstated strikers.
In light of our finding that Respondent did not violate the Act, we do not
reach the issue of whether the telephone conversation between the Union's
attorney, Bost, and Respondent's attorney. Cabe. after the end of the strike
constituted a strike settlement agreement under United Aircraft Corporation
(Pratt & Whitney Division), 192 NLRB 382 (1971). For the same reason. we
find it unnecessary to reach the Administrative Law Judge's refusal to ap-
prove the settlement agreement proposed by the Union and Respondent but
rejected by the General Counsel.
DECISION
STATEMENI OF Elit CAS-
JERRY B. SONE., Administrative Law Judge: This pro-
ceeding, under Section 10(h) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice on
June 27 and 28, and October 25. 1978. in Little Rock. Ar-
kansas.
The original charge in Case 26-CA-6986 was filed on
December 8. 1977. The first amended charge in Case 26
CA-6986 was filed on December 19, 1977. The second
amended charge in Case 26-CA 6986 was filed on January
19, 1978. The original charge in Case 26 CA 7096 was filed
on March 10. 1978. The first amended charge in Case 26
CA-7096 was filed on April 10. 1978.
The consolidated complaint in this matter was issued
April 12, 1978. The issues concern whether Respondent has
(1) violated Section 8 (aX3) and (1) of the Act by refusing to
reinstate or recall to work certain named employees and
others because of their participation in a strike or contrary
to their rights as economic strikers. and (2) violated Section
8(a)(1) of the Act by making threats. The issues also con-
cern whether a settlement agreement entered into by the
parties and approved by the Regional Director has been
violated or is a bar to the litigation of part or all of the
issues of unlawful conduct.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by Respondent
and the General Counsel and have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and admis-
sions therein.
Bancroft Cap Company, Respondent, during a represent-
ative 12-month period, in the course and conduct of its
business operations purchased and received at its Cabot,
Arkansas, location products valued in excess of $50,000 di-
rectly from points located outside the State of Arkansas.
During the same period of time Respondent sold and
shipped from its Cabot, Arkansas, location products valued
in excess of $50,000 directly to points located outside the
State of Arkansas.
As conceded by Respondent and based upon the forego-
ing, it is concluded and found that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Hatters, Cap and Millinery Workers Union,
AFL-CIO, and Local Union 130 of United Hatters, Cap
and Millinery Workers International Union, AFL-CIO,
each is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
245 NLRB No. 86
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. [tiL UNFAIR I.ABOR PRA(ICI(CES
A. Prelininarv Issues'
I. Supervisory status
At all times material herein, the following named persons
occupied the positions set opposite their names and have
been, and are now, agents of Respondent and are supervi-
sors within the meaning of Section 2(11) of the Act: Ste-
phen Goldman, president; Martha Jones, plant manager;
Thelma Jean Dixon, supervisor, garrison line and Cover
line; and Esther Morris, supervisor, field cap line.
2. Bargaining unit
All production and maintenance employees employed by
Bancroft Cap Company at its Cabot, Arkansas, location,
excluding all office clerical employees, professional employ-
ees, working foremen, guards and supervisors as defined in
the Act constitute an appropriate unit of Respondent's em-
ployees for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. The Union
Since at least June 30, 1971, and until on or about Octo-
ber 13, 1977, when the Union made an unconditional offer
for return to work on behalf of all striking employees, the
Union was the exclusive representative of all employees in
the bargaining unit referred to above for the purposes of
collective bargaining with respect to rates of pay. wages,
hours of employment, and other terms and conditions of
employment.
4. Collective-bargaining agreement
During the period beginning July 1, 1976, and ending
June 30, 1977, Respondent and the Union were parties to a
collective-bargaining agreement which set forth the terms
and conditions of employment of the employees employed
in the bargaining unit described above.
Since on or about October 14, 1977, and continuing to
date, Respondent and the Union (United Hatters, Cap and
Millinery Workers Union, AFL-CIO, and Local Union 130
of United Hatters, Cap and Millinery Workers Interna-
tional Union, AFL-CIO) have been parties to a collective-
bargaining agreement setting forth the terms and conditions
of employment of the employees employed in the unit de-
scribed above.
5. The economic strike
On or about September 28, 1977, certain employees of
Respondent, employed in the bargaining unit described
above, ceased work concertedly and engaged in an eco-
nomic strike at Respondent's Cabot, Arkansas, location.
The strike referred to above continued until October 13,
1977, at which time the strike ended, and the Union, acting
I The facts are based on the pleadings and admissions therein.
on behalf of the striking employees, made an unconditional
offer to Respondent for the return of all striking employees
to their former positions of employment or to the maximum
employment opportunity which the law allowed.
6. Strike settlement
On or about October 13, 1977, Respondent and the
Union entered into an oral strike settlement agreement that
before hiring any employees not previously employed, Re-
spondent would give preference in order of' plant seniority
to those striking employees who had not already been re-
turned to work or been offered a position.
Thus, the facts reveal that on October 13, 1977, the
Union notified Respondent by telegram that the strike was
terminated as of 5 p.m., and the Union made an uncondi-
tional application for reinstatement of the employees to
their old jobs or the maximum employment opportunity
which the law allows. The Union's telegram set forth that
"the Union will insist in contacting employees to arrange
return to work." The word "insist" was in such telegram by
error, and on the next day a corrected telegram using the
word "assist" was sent to Respondent.
On October 14, 1977, Bost, an attorney for the Union,
had a telephone conversation with Cabe, attorney for Re-
spondent. What occurred is revealed by the following cred-
ited excerpts from Bost's testimony.
Q. Can you tell us what was said in that conversa-
tion?
A. Okay. I called Mr. Cabe to inform him person-
ally that the union had ended the strike. And, I was
asking him when we could get together to sign the con-
tract. He told me that he was going to be in court for
the next couple of weeks, and it would take a while for
him to name the convenient time.
That the company would consider the contract effec-
tive as of the date the strike was ended. I asked that he
have the company to draw up a seniority list of all the
employees, so the people who had been out on strike
could be called back according to seniority before
there were any new people hired.
He agreed to this, he said that there were six or-five
or six employees that the company was alleging was
guilty of strike misconduct, and I asked for their names
so that we could start investigating this as soon as pos-
sible. And as much as I remember, that was about the
bulk of the conversation, it was a very brief telephone
conversation.
Q. Was there any mention of recall of employees?
A. Well, we talked-he was going to draw up or
have the company furnish the union with a list of se-
niority and the employees would be recalled according
to seniority.
Following the above conversation, apparently within the
next day or two, Cabe sent Bost a confirming letter relating
to their conversation and agreements.
7. Respondent's business and employee work complement
Respondent is engaged in the business of manufacturing
caps and duffel bags. Some of Respondent's business is per-
548
BANCROFT CAP COMPANY
formed pursuant to government originated contracts, and
other business is performed pursuant to other contracts. As
to some repeat work, Respondent sometimes builds up an
inventory for use in filling contracts at a later date.
As indicated, Respondent manufactures caps and duffel
bags. Some of the contracts require similar production work
and procedures as other contract requirements but differ as
to color or material. Other contracts require different pro-
duction work and procedures.
In its manufacture and production of caps and duffel
bags, Respondent employs sewing machine operators, in-
spectors and packers, other stitching room employees. Beret
equipment operators, warehouse employees, and cutting-
room employees.
Since Respondent's manufacturing demands are deter-
mined by contracts and jobs orders under contracts, its
needs for production work from its employees vary, depen-
dent upon the ebb and flow of demand and availability of
materials and supplies.
Thus, because of the ebb and flow of material, supply
needs, job orders, or contracts, Respondent has need from
time to time either to lay off an employee or employees or
to transfer an employee or employees to other work on
other job orders. Thus, if there is a need for a layoff of
employees working on a particular job order, and if there is
a need for an employee elsewhere with similar skill and
experience, the employee is transferred rather than laid off.
Respondent attempts to avoid the selection of employees
for layoffs by securing an employee to volunteer for a lay-
off. If, however, volunteers are not forthcoming, and a
transfer or assignment to other work cannot be offered, Re-
spondent lays off the least senior employee performing
work in the category involved on the job order. Employees
are not told how long the layoffs will last.
Employees who are on layoff status are either considered
to be on temporary layoff or on permanent layoff. Employ-
ees considered to be on temporary layoff are employees
who have been laid off for less than 30 days. Employees
considered to be on permanent layoff are those employees
who have been on layoff for ever 30 days. Employees on
permanent layoff status continue in employee status until
terminated by discharge, quitting, or the taking or perma-
nent employment elsewhere. Such permanent layoff status
can continue for an indefinite period. Employees on perma-
nent layoff can even work temporarily elsewhere with Re-
spondent's permission.
When work demands increase and there is a need to re-
sume a higher level of production, Respondent utilizes the
following method and policy in recalling, hiring, or "rein-
stating" employees. If the job order involved, wherein an
employee is needed, is expected to be 30 days or less, Re-
spondent recalls employees who are experienced on the par-
ticular job, and the recall is based on seniority of laid-off
employees with such experience. If the job order involved,
wherein an employee is needed, involves the commence-
ment of a new contract, Respondent recalls employees from
layoff based on seniority of employees, even if such em-
ployee or employees have to have retraining for the job.'
2 Jones in her affidavit set forth that temporarily and permanently laid-off
employees have equal recall rights. At the trial Jones testified that this was
When Respondent needs additional employee production
hours and it cannot secure employees from layoff status,
Respondent hires new employees. During the period of time
from October 13. 1977, to the date of trial in this matter,
Respondent has not hired any new employees. Rather. on
such occasions of needed additional employees. Respon-
dent has reinstated economic strikers in accordance with
the seniority rankings of the unreinstated economic strik-
ers.l
8. Employee work complement, layoffs and recall to work
of employees and reinstatement of economic strikers
At the time of the termination of the strike on October
13, 1977. all of Respondent's employees, who were not
striking employees, were permanent employees. Thus, Re-
spondent's category of employees, not economic strikers,
were () employees who did not go out on strike between
September 28, 1977, and October 13, 1977, (2) employees
who at some point of time went out during the strike of
September 28, 1977, to October 13, 1977, but who had
abandoned the strike and returned to work, or (3) employ-
ees who were hired as permanent strike replacements.
Since the termination of the strike on October 13, 1977,
Respondent has not hired any new employees. It has had
some layoffs, some recalls to work of laid-off employees,
and some reinstatement of economic strikers.
The facts clearly reveal that Respondent's policy and
practice as regards its employees, laid-off employees, and its
employees who were economic strikers and who have not
been reinstated, is as follows:
Up to May 1978 Respondent has treated its employees
who were actually working at the plant and its laid-off em-
ployees as its active work complement. Up to May 1978
Respondent has treated unreinstated economic strikers not
as part of its active work complement but as economic
strikers entitled to be reinstated when a vacancy existed to
be filled as a result of a need for additional employees.
As indicated, after October 13. 1977, and continuing to
May 1978, Respondent, when it has had need to increase
the number of employees actually working, has followed
the following policy and practice. Respondent first attempts
to increase the employees actually working by recalling em-
ployees from layoff. At this point in consideration. unrein-
stated economic strikers are not considered for recall along
with the laid-off employees. If Respondent cannot meet its
need for more actively working employees by recalling laid-
not a correct statement and gave examples. I note that in Jones' affidavit her
statement that temporarily and permanently laid-off employees had equal
recall rights was qualified. Considering Jones' testimony and her affidavit in
its totality, I am persuaded that there has been a confusion between the
question of recall rights and the type of work employees were being recalled
for. The facts reveal similar rights of recall of emporarily and permanentls
laid-off employees for work expected to last less than 30 days. As to such
recalls, the recalls are based on experience and seniority related to such
work. The facts also reveal similar rights of recall for temporarily and per-
manently laid-off employees for work on new contracts. As to such recalls,
they are based on plant seniority, with retraining if necessary.
It appears that in May 1978 Respondent and the Union agreed on the
recall to work of certain unreinstated economic strikers, and, in doing so,
bypassed the up to then practice of recalling laid-off employees before "rein-
statement" of economic strikers.
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off employees, Respondent then attempts to fill its job needs
by the reinstatement of economic strikers.
The facts are clear that Respondent's practice and policy
had resulted in and would result in laid-off employees with
less seniority being recalled to work instead of reinstate-
ment of economic strikers with more seniority up until May
1978.
Around May 1978, and apparently as part of an effort to
settle the issues in this case, Respondent did not follow its
policy and practice of recalling laid-off employees. Instead,
it reached agreement with the Union with respect to the
need for additional working employees, for the reinstate-
ment of certain unreinstated economic strikers, and for the
recall of some already reinstated economic strikers who
were qualified to do the work needed.
B. Settlement Agreement Case 26-CA-6986, Post
Settlement Conduct
i. Charges-26-CA-6986; settlement-26-CA-6986
In Case 26-CA-6986 the Union filed an original charge
on December 8, 1977, a first amended charge on December
19, 1977, and a second amended charge on January 19,
1978. On February 28, 1978, the Regional Director ap-
proved a settlement agreement in disposition of the charges
in Case 26-CA-6986.
The composite effect of the charges in Case 26-CA 6986
reveals that the investigatory charges raised all the issues of
conduct allegedly violative in the present consolidated com-
plaint, excepting as may be said to be with respect to the
time period following February 28, 1978.
2. Postsettlement conduct--the settlement agreement
(approved on February 28, 1978, as a bar to litigation)
The primary and essential issue for determination in this
case is whether Respondent's policy and practice relating to
recall of laid-off employees and reinstatement of economic
strikers is discriminatory and violative of the principles of
The Laidlaw Corporation, 171 NLRB 1366 (1968). It is clear
that Respondent's policy and practice as set forth herein
relating to the recall of laid-off strikers and reinstatement of
economic strikers was in effect prior to the February 28,
1978, settlement agreement in Case 26-CA-6986 as well as
after such settlement agreement. Respondent deviated from
such policy and practice from May 1978, apparently as part
of an attempt to settle the issues. Nevertheless, if the policy
and practice, as detailed before herein, were unlawful and
violative of the Act, the continuation of such policy and
practice, whether there were in fact layoffs or recalls after
February 28, 1978, would be violative of the Act because of
the placement or economic strikers in a status unlawful
within the meaning of the Act.'
The issues in the consolidated cases involve issues of vio-
lative conduct preceding the settlement agreement in Case
' The only issue of conduct violative of the settlement agreement or viola-
tive of the Act after the settlement agreement (approved on February 28,
1978) is the issue of whether Respondent has violated the Act by refusing to
reinstate economic strikers.
26 CA-6986, approved on February 28, 1978, but vacated
on the date of issuance of the consolidated complaint in this
matter. If the settlement agreement has not been violated
by the continuation of Respondent's policy and practice
relating to recall of laid-off employees and reinstatement of
economic strikers, the settlement agreement should be rein-
stated and bars the litigation of the presettlement conduct.
Perhaps the use of the word "Laidlaw" to describe eco-
nomic strikers' rights and the words "laid off" with respect
to laid-off employees creates some confusion in understand-
ing employees' rights. Economic strikers are not "laid off'
employees. The economic strikers' rights are not similar to
"laid off" employees' rights. Economic strikers are entitled
to reinstatement to their jobs upon unconditional applica-
tion for reinstatement if such jobs are available. Thus, if
such jobs are not available because such jobs are filled by
employees who were hired as permanent replacements for
such strikers or were filled by permanent employees, eco-
nomic strikers continue to be employees and are entitled to
full reinstatement upon the departure of replacements un-
less they have in the meantime acquired regular and sub-
stantially equivalent employment, or unless the employer
can sustain his burden of proof that the failure to offer
reinstatement was for legitimate and substantial business
reasons.
The critical question, thus, is whether the positions to
which the laid-off employees were recalled were "vacan-
cies" or were positions filled by such employees even
though on layoff. If such positions are not "vacancies," the
economic strikers' right to reinstatement is not applicable to
such positions. In my opinion, the determination of whether
or not such positions being filled by the recall of laid-off
employees are vacancies must be viewed in the context of
the practice and past consideration of what a job position
was. The facts in the case reveal that the ebb and flow of
production demands and problems concerning materials
and supplies necessitates the layoff and recall of workers
and that the recall of employees is based on considerations
of whether the expected work is to be of short or long dura-
tion. Selection of employees for recall is based on consider-
ation of the experience and seniority as related to the par-
ticular work involved in the job order if the work or job is
expected to be of short duration. Selection of employees for
recall to work for a new contract or job order or for work
expected to be of long duration is based on consideration of
plant seniority. In the context of such facts and consider-
ations, the job position of an employee cannot be consid-
ered in limited terms. Rather, the job position of the em-
ployee must be viewed in broad terms and to be that of
holding a position in the overall work complement whether
actively working or on layoff status.' Thus, I am persuaded
that the recall of laid-off employees involved merely the
change of a laid-off employee's job position from a position
wherein he was not actively working to one wherein the
employee was actively working. Thus, there did not exist a
I Employees on leaves of absence would be included in such layoff status.
There is no contention nor evidence to indicate that any of the laid-off
employees recalled to work had been terminated by discharge or quitting. In
sum, there is no evidence or contention that Respondent has recalled em-
ployees from "layoffs" with the term "layoffs" used as a pretext to disguise
the hiring of a former employee who had been discharged or had quit.
550
BANCROFT CAP COMPANY
"vacancy" at the time of the recall of the "laid off' employ-
ees, and the economic strikers' right of reinstatement was
not applicable because a vacancy did not exist.
Further, at the time of the termination of the strike on
October 13, 1977, the Union and Respondent entered into a
strike settlement consistent with the principles set out
above. The strike settlement was to the effect that Respon-
dent would recall the economic strikers in order of seniority
before the hiring of new employees. The facts in this case
reveal that Respondent has not hired any new employees.
and where Respondent was not able to obtain enough em-
ployees for working needs by the recall of laid-off employ-
ees, Respondent has reinstated economic strikers.6
The General Counsel's contention is that the recall of
laid-off employees, who had less seniority than unreinstated
economic strikers at the time of such recall, is violative of
the Act. The cases relied upon by the General Counsel con-
cern discrimination in treatment between nonstrikers and
strikers after the strikers have been reinstated. It is clear
that once a striker has been reinstated a respondent cannot
accord superseniority to nonstrikers. The question in this
case is different and involves simply whether the economic
strikers were entitled to reinstatement. As indicated, the
facts do not reveal that there were "vacancies," and thus
such rights of reinstatement were not applicable. If they
were, it would not appear that the fact of higher or lesser
seniority of the economic strikers would be relevant. Thus,
if there were a vacancy, the economic striker would be enti-
tled to fill the vacancy even if the economic striker's senior-
ity were less than that of the employee who was hired or
placed in such vacancy.
I would note that, with respect to the General Counsel's
contention that unreinstated economic strikers should have
been reinstated rather than laid-off employees with less se-
niority than the unreinstated economic strikers recalled, the
General Counsel established that economic or business rea-
sons had nothing to do with the Company's decision to call
back laid-off employees prior to calling back economic
strikers. The question of economic or business justification
for refusal to reinstate economic strikers is concerned with
the right of reinstatement of economic strikers at the time of
the filling of a vacancy. The filling of jobs during the strike
by nonstrikers or replacements is presumptively justified on
an economic or business basis. In this case the facts reveal
that there were no vacancies at the time of the contended
violative conduct. If there had been vacancies, then Re-
spondent would have had to reinstate the unreinstated eco-
nomic strikers unless it had valid business or economic jus-
tification for the placement of the other employees.
The General Counsel argues that Brooks Research &
Manufacturing, Inc., 202 NLRB 634 (1973), holds that eco-
nomic strikers on a preferential hiring list have greater
statutory rights than do laid-off employees. This is true, but
it does not mean that economic strikers' rights to reinstate-
ment constitute a status that is the status of laid-off employ-
ees and that recall or reinstatement should be viewed as a
mere seniority rights question. Rather, in Brooks, the em-
I note that Respondent's agent, Jones. spoke about the "rehire" of eco-
nomic strikers. The facts reveal, however, that the economic strikers were in
fact reinstated at such times with their pnor rights.
ployer had treated economic strikers as "laid off' employees
and, because of contract provisions or practice, terminated
such economic strikers, employees within the meaning of
the Act, after the expiration of a 12-month period. The
Board correctly viewed that "laid off' employees and "eco-
nomic striker" employees had different status, that the eco-
nomic strikers' status arose from participation in a lawful
economic strike and that such participation was protected
under Sections 7 and 13 of the Act, that the economic strik-
ers' status was one protected as a statutory right which
could not be defeated by treating such strikers as laid off
employees.
The General Counsel's theory of violation, as expressed
in his pleadings and statements of position as reiterated and
briefs, is simply that Respondent has violated economic
strikers' rights by recalling from layoff employees who had
lesser seniority than unreinstated economic strikers. The
General Counsel does not contend, presented no evidence,
and proffered no evidence in contention that the employees
recalled from layoff had been terminated by discharge or by
having quit, that the use of the term layoff to describe such
employees was a pretextuous coverup for discharges or
quits. Some argument has been made concerning the length
of layoffs. However, the complaint allegations and the Gen-
eral Counsel's arguments revealed a simple theory as previ-
ously set forth. Thus, the complaint revealed layoffs of cer-
tain employees for 2 to 7 days and recall of the same
employees immediately after such layoffs instead of the re-
instatement of economic strikers. Absent a contention that
the term "layoff" was pretextuous to cover up discharges,
quitting, or termination of such employees, the length of
layoff of the employees is immaterial.
The General Counsel's theory of violation is that "lay-
offs" resulted in vacancies at the time of recall of the laid-
off employees. In this case, the facts reveal that some em-
ployees were on leaves of absence. In the context of the
total facts, employees on leaves of absence must be viewed
as equivalent to voluntary layoffs. Similar to the above rea-
soning concerning the fact that layoffs were not the termi-
nation of, discharge of, or the quitting of jobs by layoffs,
leaves of absence do not reveal a termination of employ-
ment. The General Counsel, in support of his theory that
"layoffs" meant vacancies at the time of recall of such laid-
off employees, argues that the decision in Ace Drop Cloth
Co., Inc., 178 NLRB 664 (1969), reveals that an employee
on maternity leave was deemed to have vacated her job and
that an economic striker had been found to be entitled to
reinstatement to such vacated position. The facts in such
case reveal that an employee had gone on maternity leave
for an extended time and that a new employee had been hired
tofill the position held by such employee. Thus, it is clear that
the employer in such case had considered such position va-
cant, at least temporarily, and had filled the position, at
least temporarily, with a new employee. Since such position
was vacant, at least temporarily, it is clear that the Board
correctly found that an economic striker was entitled to fill
such vacancy. In the instant case, where Respondent has
had vacancies created by the inability to recall laid off em-
ployees, it has reinstated unreinstated economic strikers.
The General Counsel argues that Wisconsin Packing
Company, 231 NLRB 546 (1977), supports his contention
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the recall of laid-off employees with less seniority than
the unreinstated economic strikers is violative of the Act.
There is some language in such decision that appears to
support his contention. The facts in such decision, however,
reveal that certain employees, allegedly on "layoff" but who
in fact had been terminated by discharges or quitting, were
recalled to vacant positions, and that the economic strikers
should have been reinstated to fill such vacancies. The facts
also reveal that the respondent recalled other laid-off em-
ployees and transferred such employees to fill vacant posi-
tions. The findings are to the effect that the respondent uti-
lized pretextuous means in order to fill vacancies to avoid
the reinstatement of economic strikers. The facts in the
Wisconsin Packing case are distinguishable from the facts in
this case. Although, as indicated, some of the language in
Wisconsin Packing appears to support the General Coun-
sel's contentions, the meaning of such case must be con-
strued in the context of the facts of the case. Thus, the
language in such case, arguably supportive of the General
Counsel's case, when viewed in the context of the facts of
such case, does not support the General Counsel's conten-
tion. If viewed as language not restricted to the facts of the
case, such language must be viewed as mere dictum that
does not stand up against an analysis of the Laidlaw princi-
ples.
In sum, the facts do not reveal that Respondent has dis-
criminated against economic strikers by its recall of laid-off
employees to work on, around, or after February 28, 1978.
As to the reinstatement of certain unreinstated economic
strikers to fill jobs in May 1978, contrary to its former prac-
tice of recall of laid-off employees before the reinstatement
of unreinstated economic strikers, such clearly would not
constitute an act of discrimination against such unrein-
stated economic strikers.'
To agree with the General Counsel's contentions in this
case would be tantamount to requiring Respondent to dis-
charge, lay off, or continue employees in layoff status in
order to reinstate economic strikers. This would be contrary
to the Board's decision in Bio-Science Laboratories, 209
NLRB 796, 796-797 (1975). Thus, in Bio-Science the Board
set forth as follows:
The Administrative Law Judge found and we agree.
that under The Laidlaw Corporation unreinstated eco-
nomic strikers do not have the statutory right to recall
in accordance with a collective-bargaining agreement
provision covering recall from layoffs where the parties
have not agreed to the application of such a clause to
the reinstatement of economic strikers. We also agree
with his further finding that Respondent's utilization of
overtime in its radioisotopes section did not violate the
Act. Finally the Administrative Law Judge concluded
that Respondent's institution of its preferential rein-
statement system, and its amendment to that system,
'There is no contention that economic strikers already reinstated were
discriminated against by the May 1978 reinstatement of unreinstated eco-
nomic strikers. Nor is there any contention that employees who did not
strike and thereby also exercised a protected right under Section 7 of the Act
were discriminated against. , therefore, have not passed on the academic
question involved regarding the rights of such employees who were not en-
gaged in the strike at the termination of the strike.
did not violate the Act. Contrary to our dissenting col-
league, we agree with the Administrative Law Judge
that Respondent implemented its reinstatement system
only after prior discussions with the Union and the
Union's actions reveal that the positions of the parties
on this issue were irreconcilably fixed.
The Union's demand that Respondent terminate the
employees who replaced the economic strikers is in di-
rect conflict with the Supreme Court's holding in Mac-
kqs Radio. In that case, the Court held:
It does not follow that an employer, guilty of no act
denounced by the statute, has lost the right to pro-
tect and continue his business by supplying places
left vacant by strikers. And he is not bound to dis-
charge those hired to fill the places of strikers, upon
the election of the latter to resume their employ-
ment, in order to create places for them.
Subsequent cases have not altered the Mackpal Ra-
dio rule that an employer is under no obligation to
discharge or lay off permanent replacements at the ter-
mination of an economic strike. The decisions in Fleet-
wood, Laidlaw, and Brooks Research all relate to rights
of economic strikers to job openings occurring when
permanent replacements quit their jobs subsequent to
the termination of a strike. Here the Employer was
willing to hire exclusively from the list of former strik-
ers when job vacancies arose at a later date. Indeed,
the Respondent hired former strikers exclusively and
did not hire new applicants. The Union adamantly
maintained during the strike and thereafter that the
permanent replacements had to be terminated and the
strikers returned to their jobs. The Employer was not
obligated to capitulate to the Union's demand. We are
here concerned with the Employer's insistence upon
his right to retain permanent replacements at the end
of a strike and an orderly procedure for recalling strik-
ers as vacancies arose thereafter without running afoul
of the decisions in Laidlaw and Fleetwood. Had the
Employer not devised some procedure for the recall of
former strikers as vacancies arose, it is highly likely
that he would have been adjudged guilty of violations
of Section 8(a)(l) and (3) of the Act under Laidlaw and
Fleetwood.
In the Bio-Science case, the Board discussed the question
of respondent's bargaining with the union over the proce-
dure for reinstatement. In the instant case, Respondent and
the Union entered into a strike settlement concerning the
termination of the strike. There ensued a continuation of
the terms of the past collective-bargaining agreement. Fur-
ther, the parties agreed that economic strikers would be
recalled on the basis of seniority before there ould be any
new hires. There have been no new hires by Respondent. In
United Aircraft Corporation (Pratt & Whitney Division), 192
NLRB 382 (1971)., the Board found, under the circum-
stances of that case, that it would best effectuate the policies
of the Act to adopt the agreement of the parties as deter-
mining the reinstatement rights of the economic strikers
and that respondent, who had acted in accordance with
552
BANCROFT CAP COMPANY
such agreement, had not violated Section 8(a)(3) and (I) of
the Act by conduct which otherwise might have appeared
not substantially in accord with the principles of Laidlaw.
In the United Aircraft Corp. case the Board discussed public
policy, the encouragement of collective bargaining, espe-
cially with solving issues created by strikes and termination
of strikes, and the benefits received by the union and em-
ployees in the strike settlement. In the instant case, the
Union and employees at the end of the strike received the
benefits of a continuing contract, and the parties agreed to
what appeared to be a clear understanding that economic
strikers would be placed on a preferential hiring list and
recalled before new hires. In addition to the benefits of a
new or continuing collective-bargaining agreement, the
strike settlement eliminated a potential contention by Re-
spondent that it could hire new employees as to vacancies
on the grounds of business or economic reasons. Although
the strike settlement in this case was initially oral, it was
followed by written confirmation from Respondent's attor-
ney to the Union's attorney. The meaning of the strike set-
tlement was simple and clear. Lack of verbosity or great
detail does not limit the effect of such agreement.
Although I do not find it necessary to rely on such strike
settlement to conclude that Respondent has not violated the
principles of Laidlaw in its recall of laid-off employees
rather than the reinstatement of economic strikers when
vacancies did not exist, it would appear that the strike set-
tlement supports and would require such finding. As indi-
cated, I conclude and find that the facts do not reveal that
Respondent has violated Section 8(a)(3) and (I) of the Act
by discriminatorily refusing to reinstate economic strikers
around February 28, 1978, or after February 28, 1978. the
date of a settlement agreement in Case 26-CA-6986. Alle-
gations of unlawful conduct as alleged in such regard are
recommended to be dismissed.
The above being so, the settlement agreement in Case
26-CA-6986 bars the litigation of all other issues in the
complaint. Accordingly, it will be recommended that the
consolidated complaint be dismissed in its entirety.
3. Proposed settlement agreement
Respondent argues that a proposed settlement agree-
ment, presented at the trial of this matter entered into by it
and the Union to dispose of all of the issues in this case.
should be approved. The proposed settlement agreement
does not include certain remedial steps normally utilized by
the Board. Such steps include the posting of a notice to
employees as part of the remedy. Whether or not such as-
pects of settlement are technical or nor, such settlement
agreement did not reach such point. The General Counsel
would not become a party to such agreement because of
some dispute as to procedures agreed to and because of
questions of backpay.
The essential thrust of such settlement has much to be
said for the disposition of the issues presented in the case.
However, in accordance with the decision in Community
Medical Services of Clearfield, Inc., d/b/a Clear Haven
Nursing Home, 236 NLRB 853 (1978), it would have been
improper to approve such settlement wherein the General
Counsel as a party disputed the appropriateness of the set-
tlement. The Clear Haven case reveals that the General
Counsel is to be accorded broad discretion to litigate issues
rather than having an imposed settlement where there is a
substantial difference between the remedy therein and the
remedy as would be received if violative conduct were
found. As a result of the General Counsel's unwillingness to
be a party to the proposed settlement, determination has
been made whether the alleged conduct is violative of the
Act. Having made such findings. I find it improper to ap-
prove a settlement as to conduct found not to violate the
Act .
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CON(.LUSIONS o)F LAW
I. Bancroft Cap Company. Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and an employer over whom the Board
asserts jurisdiction.
2. United Hatters. Cap and Millinery Workers Interna-
tional Union. AFL-CIO, and its Local Union 130, each is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The settlement agreement in Case 26 CA 6986. ap-
proved by the Regional Director of Region 26 on February
28, 1978, bars the litigation of all issues of violative conduct
occurring prior to February 28, 1978.
4. The terms of the settlement agreement in Case 26-
CA-6986, referred to above, have not been violated by Re-
spondent, and Respondent has not violated the Act, as al-
leged, subsequent to the date of approval of such agree-
ment.
5. Respondent has not violated the Act by refusing to
reinstate economic strikers on or about February 28, 1978,
or subsequent thereto.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby' issue the following recommended:
ORDER 9
The consolidated complaint in this matter is dismissed in
its entirety.
IT IS FURTHER RECOMMENDED that the settlement agree-
ment in Case 26-CA-6986. approved by the Regional Di-
rector of Region 26, be reinstated.
I Nothing herein restrains Respondent and the Union from implementing
or continuing to implement the features of such proposed settlement as they
apparently did in May 1978.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
553