Child Development Council of Northeastern Pennsylvania

National Labor Relations Board - Board Decisions

Apr 10, 1995

316 N.L.R.B. 1145 (N.L.R.B. 1995)

1145
316 NLRB No. 175
CHILD DEVELOPMENT COUNCIL OF NORTHEASTERN PENNSYLVANIA
1 The judge’s initial decision is attached to our Order Remanding
proceeding. See 314 NLRB 845.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951. We have carefully examined the record and
find no basis for reversing the findings.
3 In the absence of any legitimate and substantial business jus-
tification for Koff’s statement, we find it unnecessary to adopt the
judge’s finding that Koff’s announcement was ‘‘inherently destruc-
tive’’ of employee rights.
4 Larand Leisurelies, 213 NLRB 198 fn. 4 (1974), enfd. 523 F.2d
814 (6th Cir. 1975) (when it is reasonable to infer from the record
as a whole that an employer’s unlawful conduct played a part in the
decision of employees to strike, the strike is an unfair labor practice
strike); Brooks, Inc., 228 NLRB 1365, 1367 fn. 12 (1977), enfd. in
relevant part 593 F.2d 936 (10th Cir. 1979); Tarlas Meat Co., 239
NLRB 1400 fn. 4 (1979). See also C-Line Express, 292 NLRB 638
(1989).
5 Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th Cir. 1989);
NLRB v. Cast Optics Corp. 458 F.2d 398, 407 (3d Cir. 1972), cert.
denied 419 U.S. 850 (1972) (as long as an unfair labor practice has
‘‘anything to do with’’ causing the strike, it will be considered an
unfair labor practice strike); Struthers Wells Corp. v. NLRB, 721
F.2d 465 (3d Cir. 1983); Larand Leisurelies, supra at 820–821; Na-
tional Fresh Fruit & Vegetable Co., 227 NLRB 2014, 2017 fn. 8
(1977), enfd. 565 F.2d 1331 (5th Cir. 1978).
Child Development Council of Northeastern Penn-
sylvania and American Federation of State,
County and Municipal Employees, District
Council 87, Local 2562 (AFSCME). Case 4–
CA–20011
April 10, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On October 19, 1993, Administrative Law Judge
Hubert E. Lott issued an initial decision in this pro-
ceeding. On August 24, 1994, the Board remanded this
proceeding to the judge for a credibility determination
concerning what, if any, reasons the Respondent’s ne-
gotiator, David Koff, gave for announcing that, if em-
ployees struck, the Respondent would permanently re-
place them in reverse order of seniority.1
On September 23, 1994, Judge Lott issued the at-
tached supplemental decision. The Respondent filed
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, supplemental
decision, and the record in light of the exceptions and
briefs, and for the reasons set forth below, has decided
to affirm the judge’s rulings, findings,2 and conclu-
sions only to the extent consistent with this Decision
and Order.
1. We adopt the judge’s credibility determination on
remand. Thus, near the end of the final, prestrike bar-
gaining session, the Respondent’s attorney, David
Koff, announced that strikers would be replaced in re-
verse order of seniority, i.e., oldest would be replaced
first. Respondent gave no reasons for this position.
Koff’s announcement of the Respondent’s plan was di-
rected to employee members of the Union’s negotiat-
ing committee. The employee members were among
the most senior employees in the Respondent’s work
force. These more senior employees were in a unique
position to persuade fellow employees to accept the
Respondent’s final offer. In this context, we find that
Koff’s statement was a threat to retaliate against the
employees on the Union’s negotiating committee in
order to coerce them to accept the offer.3
2. Contrary to the judge, we find that Koff’s unlaw-
ful threat to replace strikers in reverse order of senior-
ity was a contributing cause of the July 1, 1991 strike
and made it an unfair labor practice strike from its in-
ception. It is well established that a causal connection
between the Respondent’s unlawful conduct and the
strike may be inferred from the record as a whole.4
Thus, if the strike was caused in part by Koff’s threat
to target the Union’s negotiating committee, the strike
is an unfair labor practice strike.5 Based on the follow-
ing evidence, we infer a causal connection between
Koff’s threat to the negotiating committee and the em-
ployees’ decision to strike shortly thereafter.
Initially, as noted, Koff’s threat was directed to-
wards senior employees on the Union’s negotiating
committee near the conclusion of the last bargaining
session held just 3 days prior to the July 1, 1991
strike. Second, although not mentioned by the judge,
Union Representative Ed Harry testified that members
of the negotiating committee reacted to Koff’s threat
by expressing concern at a union caucus called imme-
diately after Koff made the threat. Third, Harry specifi-
cally discussed Koff’s June 27 threat with employees
at a strike vote meeting held that same evening. In
fact, employee negotiators who had first hand knowl-
edge of the threat participated in the strike vote. Harry
testified that after discussing Koff’s threat, the employ-
ees became upset because the Union’s negotiators
would be the first employees to be replaced when the
strike commenced. Similarly, Ella Davenport, the most
senior employee on the negotiating committee, testified
that there was discussion among the membership at the
June 27 meeting concerning the significance of the Re-
spondent’s announcement that, if the employees struck,
replacements would be hired and the most senior em-
ployees would be replaced first. Davenport testified
that the membership was ‘‘very upset’’ by the threat.
She also testified that she personally was very upset
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We find that this testimony is relevant to the state of affairs that
existed at the time of the strike vote. See F. L. Thorpe & Co., 315
NLRB 147, 150 fn. 8 (1994).
7 The absence of picket sign language stating that the strike was
in protest of an unfair labor practice does not establish that unlawful
conduct was not a cause of the strike. Lifetime Door Co., 179 NLRB
518, 522–523 (1969); AMF-Inc., 228 NLRB 1406 (1978), enfd. 593
F.2d 972, 979–981 (10th Cir. 1979).
8 See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956).
9 The amended complaint alleges that since July 1, 1991, the Re-
spondent, in writing, requested employees who returned to work
after having engaged in the strike, to sign a form entitled ‘‘Acknowl-
edgment and Recordation of Unconditional Offer to Return to
Work.’’ The form characterized the strike as an economic strike.
10 The amended complaint includes an appendix A naming the
strikers. We grant the General Counsel’s unopposed Motion to add
the names of strikers D. Barth, K. Lentz, M. Wabik, and L.
Pascucci, who were inadvertently omitted from the appendix.
about the Respondent’s announcement.6 After the dis-
cussion, the membership held a ratification vote on the
Respondent’s final contract offer and overwhelming re-
jected it. The membership then held a separate strike
vote after the Respondent’s final offer was rejected.
The employees overwhelmingly voted to strike.
In view of these facts, we find it reasonable to infer
that Koff’s June 27 threat, which was specifically dis-
cussed and became a matter of consternation at the
employee membership meeting that evening, contrib-
uted to the employees’ June 27 decision to strike. Ac-
cordingly, we find, contrary to the judge, that the July
1, 1991 strike was an unfair labor practice strike.7
3. We further conclude that the judge erred in find-
ing that the Union’s offer to return to work on July 25
was conditional. On July 25, Union Representative
Harry told Koff that the strike was over and that the
Union wanted all the replacements discharged and the
striking employees returned to work while bargaining
continued. When Koff asked Harry how long the
Union intended to bargain and what would happen if
the parties did not reach agreement, Harry responded
that the Union would bargain for 6 months and re-
served the right to strike again. The judge concluded
that an unconditional offer to return to work was not
made by the Union on July 25 because Harry wanted
all employees returned en masse and all replacements
discharged immediately. We disagree with the judge’s
analysis.
As noted, this case concerns an unfair labor practice
strike. Unfair labor practice strikers ordinarily have the
right to reinstatement regardless of any replacements
hired after the strike became an unfair labor practice
strike.8 Thus, assuming arguendo that Harry’s July 25
comments can be construed as a demand for the imme-
diate reinstatement of the strikers regardless of any re-
placements, the Union was merely insisting that the
Respondent accord its employees their rights as unfair
labor practice strikers. Accordingly, we find that the
Union’s demand for immediate reinstatement of the
unfair labor practice strikers did not make its accom-
panying offer to return to work conditional.
For similar reasons, we also find that the Union’s
July 25 offer to return to work was not made condi-
tional simply because Harry reserved the employees’
statutory right to strike if 6 additional months of nego-
tiations failed to produce an agreement. The Respond-
ent cannot deny strikers reinstatement simply because
they refuse to waive their statutory right to strike in
the future. Thus, the Union’s unwillingness to waive
the employees’ prospective right to strike after 6
months of negotiations does not make its July 25 offer
to return to work conditional.
In light of the above, we conclude that the Respond-
ent violated Section 8(a)(3) and (1) by refusing to rein-
state all striking employees for whom the Union made
an unconditional offer to return to work on July 25,
1991.
4. We also find, contrary to the judge, that the Re-
spondent violated Section 8(a)(1) by asking returning
strikers to sign a form acknowledging that they had
been engaged in an economic strike.9 The judge dis-
missed this allegation because, in his view, no evi-
dence was adduced that the form was ever used,
signed, or required as a condition of reinstatement. We
find merit in the General Counsel’s exceptions.
Respondent admitted in its answer that it asked em-
ployees to sign the ‘‘Acknowledgment.’’ At the hear-
ing, Respondent’s counsel confirmed that returning
strikers had been asked to sign the ‘‘Acknowledg-
ment,’’ a copy of which was introduced by stipulation.
Contrary to the judge, we find that these admissions
constitute record evidence sufficient to support the
complaint allegation that the Respondent violated Sec-
tion 8(a)(1) by asking employees to sign a document
that declared them to be economic strikers.
The Respondent’s request for acknowledgment that
the strike was an economic strike is tantamount to ask-
ing employees to waive their right to receive the more
favorable treatment accorded unfair labor practice
strikers. The returning strikers were asked to sign the
Respondent’s form as part of their effort to secure re-
employment following an unsuccessful strike. It is rea-
sonable to infer that they anticipated that signing the
form would at least enhance the possibility of their re-
turn to work. In these circumstances, we find that the
Respondent’s request that returning strikers acknowl-
edge that they had engaged in an economic strike rea-
sonably interfered with the free exercise of their rights
to return to work as unfair labor practice strikers upon
their application.10
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
1147CHILD DEVELOPMENT COUNCIL OF NORTHEASTERN PENNSYLVANIA
11 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and desist and to take certain affirmative action de-
signed to effectuate the policies of Act.
The Respondent shall be ordered to cease and desist
from requesting employees to sign documents ac-
knowledging that they have been economic strikers,
and from refusing to offer immediate reinstatement to
the unfair labor strikers listed in appendix A to the
amended complaint. The Respondent shall offer the
employees listed in appendix A immediate reinstate-
ment to their former positions, and discharge, if nec-
essary, all replacement employees hired after July 1,
1991. Respondent is ordered to make the employees
listed in appendix A whole for any loss of earnings
suffered as a result of its failure to reinstate them im-
mediately upon their unconditional offer to return to
work on July 25, 1991.
ORDER
The Respondent, Child Development Council of
Northeastern Pennsylvania, Inc., Wilkes-Barre, Penn-
sylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with permanent replace-
ment by reverse order of seniority if they engage in a
strike.
(b) Failing and refusing to reinstate unfair labor
practice strikers immediately following the Union’s
July 25, 1991 unconditional offer to return to work,
and to discharge, if necessary, any replacements.
(c) Asking returning strikers to sign documents ac-
knowledging the strike to be an economic strike.
(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) Offer each of the employees listed in appendix
A, as amended and attached to the amended complaint,
immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed, discharging, if necessary, any replacement em-
ployees hired on or after July 1, 1991, and make these
employees whole for any loss of earnings or other ben-
efits resulting from Respondent’s failure to reinstate
them on about July 25, 1991, with interest.
(b) 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.
(c) Post at its facility in Wilkes-Barre, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’11
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, 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 al-
tered, defaced, or covered by any other material.
(d) 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 Board has found that we violated
the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with perma-
nent replacement by reverse seniority if they strike.
WE WILL NOT discourage membership in the Union
or any other labor organization by failing and refusing
to reinstate unfair labor practice strikers upon their un-
conditional offer to return to work or otherwise dis-
criminating against employees with regard to their hire,
tenure, or other terms and conditions of employment.
WE WILL NOT ask returning strikers to sign docu-
ments acknowledging the strike to be an economic
strike.
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 offer to each of the employees listed in
appendix A to the amended complaint immediate and
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges previously enjoyed, discharging if
necessary replacement employees hired on or after July
1, 1991, and make such employees whole for any loss
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Certain errors in the transcript have been noted and corrected.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
of earnings or other benefits resulting from our failure
to reinstate them, with interest.
CHILD DEVELOPMENT COUNCIL OF
NORTHEASTERN PENNSYLVANIA, INC.
SUPPLEMENTAL DECISION
HUBERT E. LOTT, Administrative Law Judge. On October
19, 1993, I issued my decision in this case. On August 24,
1994, the Board remanded the case ordering that a credibility
resolution be made concerning what, if any, reasons Re-
spondent’s negotiator Koff gave for announcing at the June
27, 1991 bargaining session that if employees struck, Re-
spondent would permanently replace them by inverse order
of seniority.
Having reviewed my decision, the Board’s order remand-
ing proceeding, the entire record, and my recollection of the
demeanor of the witnesses, I make the following findings of
fact and conclusions of law.
When I stated in my decision that Koff’s testimony where-
in he stated that he gave union negotiators economic reasons
for replacement by inverse seniority was an afterthought,
used as a defense only at time of trial, I was discrediting his
uncorroborated testimony and crediting the denials of Harry
and Davenport that any reasons were given to the Union. At
the time I also considered Koff’s alleged statement that Di-
rector Gurbst had calculated a savings of $40,000 if Re-
spondent replaced in inverse seniority. Neither the calcula-
tions nor Gurbst’s testimony were offered to support his tes-
timony. The only testimony offered was that of Susan
Dinofrio who testified that she made savings calculations in
preparation for the instant trial. In fact she was hired long
after the strike was over. For these reasons and the demeanor
of the witnesses, I find Koff’s testimony on this issue uncon-
vincing and I discredit it.
I therefore again find that during the June 27, 1991 bar-
gaining session Koff gave no economic reasons for the
planned replacement by inverse seniority. I reaffirm my con-
clusions that the announcement of this policy violated Sec-
tion 8(a)(1) of the Act. I further reaffirm all other findings
of fact,1 conclusions of law, remedy, Order, and appendix.2