Delta-Macon Brick & Tile Co., Inc. And Delta Brick

National Labor Relations Board - Board Decisions

Mar 26, 1990

297 N.L.R.B. 1044 (N.L.R.B. 1990)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1
Delta-Macon Brick & Tile Company, Inc and Delta
Brick, a Division of Boral Bricks, Inc 7 and
United Brotherhood of Carpenters and Jomers
of Amenca, AFL-CIO, Southern Council of In-
dustrial Workers, Local Union 2272 Case 26-
CA-9030
March 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 21, 1989, Administrative Law Judge
James L Rose issued the attached supplemental de-
cision 2 The Respondent and the General Counsel
have filed exceptions and a supporting brief The
Charging Party filed cross exceptions and a brief in
support of its exceptions and in answer to the Re
spondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the initial decision, the
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 nil-
ings, findings, and conclusions 3 and to adopt the
recommended Order as modified
We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act when it
recalled five laid-off permanent replacements rather
than certain unremstated economic strikers because
the five permanent replacements did not have a
reasonable expectancy of recall 4 However, we do
not adopt the judge's entire rationale
The judge based his finding that the strike re-
placements did not have a reasonable expectancy
of recall solely on the fact that the seniority provi-
sions of the parties' contract provided that employ-
ees who were laid off for more than 1 week could
not be recalled ahead of more senior people m the
'The Respondent s name appears as amended at the heanng
2 The judge issued an initial decision in this case on June 9 1982 On
July 13 1988 the Board remanded the case to the judge for the purpose
of allowing the parties an opportunity to present evidence in accordance
with its holding in Aqua Chem Inc 288 NLRB 1108 (1988) and for the
judge s further consideration consistent with that decision See 289
NLRB 830
3 We do not adopt the judge s conclusion that implicit in the Board s
determination to remand the proceeding was a finding that the General
Counsel had not met its burden to show that the replacements had no
reasonable expectancy of recall The Board did not pass on this Issue
prior to the remand
4 The five permanent replacements—Fred Ivy Mary Conner Timm
Moore Eddie Tutt and Sammie Orange—were part of a group of inch
viduals hired by the Respondent in September 1979 to replace employees
who were engaged in an economic strike The strike ended on September
24 1979 after the parties reached agreement on the terms of a new eon
tract and all unremstated strikers were placed on a preferential hinng
list On January 30 1980 the Respondent laid off numerous individuals
Including the five above named permanent replacements
297 NLRB No 178
same department who were out of work and avail-
able for recall As the five permanent replacements
were laid off for more than 1 week (14-16 months),
the judge found that they could not have retained a
reasonable expectation of being recalled ahead of
more semor employees, including the unremstated
strikers In agreeing with the judge, we do not rely
on this aspect of his rationale 5 Rather, we rely on
other factors, discussed below, that support the
judge's finding that the laid-off permanent replace
ments did not have a reasonable expectancy of
recall
Under Aqua-Chem, supra, the General Counsel
bears the uutial burden of proving that laid off per-
manent replacements had no reasonable expectancy
of recall and, thus, that their departure created va-
cancies to which unremstated strikers are entitled
under Laullaw Corp 6 Once the General Counsel
establishes a prima facie case, the burden shifts to
the employer to show that, in fact, no such Leudlaw
vacancy exists, or that it had legitimate and sub-
stantial business reasons for not recalling the strik-
ers 7
The objective factors that the Board views as
relevant m determining whether a reasonable ex-
pectancy of recall exists include, inter aim, evi-
dence concerning the employer's past business ex-
perience, the employer's future plans, the length, as
well as the circumstances, surrounding the layoff,
and what employees were told concerning the like-
lihood of their being recalled 8 In this case, the
record evidence clearly establishes that the five
'Based on our recent decision in Mike Yurosek Son Inc 295 NLRB
304 (1989) we find the judge s reliance on the contractual seniority pro
visions misplaced In Mike Yurosek the judge similarly relied on the re
spondent s seniority based recall system to find that the laid-off perma
nent replacements whose seniority was less than that of the unremstated
strikers could not have reasonably expected to be recalled before the un
reinstated stnkers The Board however reversed stating that the judge s
reasoning Ignores the underlying premise that a vacancy must exist Cer
tamly if a vacancy existed the Respondent would have been obligated to
fill that vacancy with a striker Because the General Counsel has not es
tablished the existence of a vacancy the Respondent s procedures for
recall are simply not relevant to our inquiry Id (footnote omitted) Ac
cordingly in finding Infra that the laid off permanent replacements did
not have a reasonable expectancy of recall we place no reliance on the
Respondent s seniority recall system as it is not a relevant factor
'In Laullaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Or
1969) cart denied 397 U S 920 (1970) the Board held that economic
strikers who have been permanently replaced and who unconditionally
offer to return to work are entitled to reinstatement on the departure of
the replacements
7 Aqua Chem supra In his decision the judge Incorrectly stated that
the General Counsel did not produce any evidence in the supplementary
hearing which is substantively different from that in the original
record The General Counsel in accordance with the remand order did
in fact produce additional relevant evidence during the supplementary
hearing including the testimony of the five permanent replacements con
cemmg what they were told following their layoff that had not been
produced during the initial hearing in this case
Ibid
DELTA-MACON BRICK & TILE CO "1045
,
laid-off permanent replacements did not have a rea-
sonable expectancy of recall
The January 1980 layoff, which included the
layoff of the five permanent replacements and nu-
merous other individuals, resulted from a severe
decline in the national economy and was the first
of its kind in the Company's history The layoff
was for an indefinite period At the time of the
layoff, the Respondent did not say anything to the
permanent replacements suggesting that the em-
ployees had a reasonable expectancy of recall 9
Thus, permanent replacements Fred Ivy and Sam
Orange testified that they were told only that they
were being laid off and that the Respondent did
not know when they would be called back to
work Replacement Eddie Tutt similarly testified
that he was merely laid off without comment Re-
placements Tmme Moore and Mary Conner were
told that they were being laid off for lack of work
Moore testified that she was told that she would be
called back, but was not told when or given any
specific date for recall Similarly, although Conner
testified that she was told that "when work picked
up" she would be called back, she was not told
when she might expect to be recalled Further, the
Respondent ceased paying the medical insurance
premiums for these employees following their
layoff, and the laid-off permanent replacements
were advised that they would have to make the
payments if they wanted to continue their medical
insurance 10
These factors, namely, the unprecedented nature
of the layoff, its indefinite duration, and that em-
ployees were given no specific indication as to
when, if ever, they might be recalled, and that
their medical insurance benefits were canceled,
demonstrate that the five laid-off permanent re-
placements did not have a reasonable expectancy
of recall when laid off ' ' The vague representation
9 Contrary to the judge, we do not consider the passage of time alone
to be a sufficient basis for finding the testimony of the permanent replace-
ments "not particularly reliable' regarding what they were told when
they were laid off However, we do accept the judge's credibility deter-
mination regarding replacement Ivy (at sec LB, par 26) Insofar as It rests
on other bases
" The letter sent to Fred Ivy informing him of this referred to his
layoff as a "termination"
" In Aqua-Chem, supra, the Board similarly found that the laid-off per-
manent replacements had no reasonable expectancy of recall Mike Yuro-
sek, supra, in which the Board reached a contrary result, is distinguish-
able In contrast to the Instant case, the length and circumstances of the
layoffs in Mike Yurosek were definite and predictable The respondent in
that case operated on a seasonable basis, shutting down in May or June
of each year and reopening in December In addition, the respondent had
a practice of recalling in December the employees laid off in May Thus,
unlike the situation here, when the permanent replacements in Mike Yuro-
sek were laid off at the end of one season, they had a reasonable expecta-
tion of returning to their jobs at the beginning of the next season
to replacement Conner that she would be called
back "when work picked up" is not sufficient to
undermine the evidence noted above establishing
that the employees laid off did not have a reasona-
ble expectancy of recall 12 Tomadur, Inc , 196
NLRB 706 (1972) The Respondent has failed to
rebut the General Counsel's prima facie showing
that a Laidlaw vacancy was created by the depar-
ture of the replacements, and has neither alleged
nor produced evidence to show that it had a legiti-
mate and substantial business reason for failing to
offer reinstatement to the strikers In these circum-
stances we find, in agreement with the judge, that
the Respondent's recall of the five laid-off perma-
nent replacements ahead of unremstated strikers
violated Section 8(a)(3) and (1) of the Act
AMENDED REMEDY
We find merit in the Charging Party's cross-ex-
ception that the backpay ordered by the judge in
this case should extend to all the unremstated strik-
ers, and not just to the five strikers with the great-
est seniority All unremstated strikers were subse-
quently reinstated by the Respondent However, it
is clear that, but for the Respondent's unlawful
recall of the five laid-off replacements, all the un-
reinstated strikers, not just the five most senior,
would have had an earlier reinstatement date The
Respondent's unlawful conduct in recalling the five
laid-off permanent replacements thus adversely af-
fected the reinstatement rights of all the strikers
and, for this reason, a make-ivhole order to include
backpay, with interest, for all unremstated strikers
is appropnate here 13 See, e g, General Electric
Go, 296 NLRB No 106 (Sept 29, 1989) The
amount of backpay shall be computed from the
date the unremstated strikers would have been re-
called, according to their seniority, to the date of
their actual reinstatement The judge's recommend-
ed Order shall be modified to reflect this finding
We shall also modify the recommended Order to
provide for a narrow, rather than a broad, cease-
and-desist order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge, as modified and set forth in full below, and
orders that the Respondent, Delta-Macon Brick &
Tile Company, Inc , and Delta Brick, a Division of
12 Although the statement to Moore may have been a bit more reassur-
ing, we find that, in light of all the circumstances, it, too, was not suffi-
cient to undermine the evidence noted above establishing that the laid-off
employees did not have a reasonable expectincy of recall
I3 Interest shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987)
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Boral Bricks, Inc , Macon, Mississippi, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Discouraging membership in or activities on
behalf of United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Southern Council
of Industrial Workers, Local Union 2272, by refus-
ing to reinstate economic strikers to their former or
substantially equivalent positions when jobs were
available following their unconditional offer to
return to work
(b) In any like or related manner mterfenng
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Make whole all unremstated strikers who
were reinstated after the Respondent unlawfully of-
fered reinstatement to laid off permanent replace-
ments for any loss of wages and benefits for the
period between the date the unremstated striker
would have been offered reinstatement, m accord-
ance with his or her normal seniority, and the date
of the striker's actual reinstatement
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, 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 Macon, Mississippi facility copies
of the attached notice marked "Appendix "14
Copies of the notice, on forms provided by the Re-
gional Director for Region 26 after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent 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 Respondent
to ensure that the notices are not altered, 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 Respondent has taken to comply
14 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 Nation
al 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
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 ordered us to post and abide by this notice
WE WILL NOT discourage membership in, or ac-
tivities on behalf of, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, South-
ern Council of Industnal Workers, Local Union
2272, by refusing to reinstate economic strikers to
their former or substantially equivalent positions
when jobs were available followmg their uncondi-
tional offer to return to work
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec
tion 7 of the Act
WE WILL make whole all unremstated strikers
who were reinstated after we recalled their re-
placements from layoff for any loss of pay and ben-
efits they may have suffered by virtue of our un-
lawful conduct All unremstated stnkers shall be
entitled to such backpay, with mterest, for the
period between the date they would have been re-
instated, in accordance with their normal seniority,
and the date they actually were reinstated
DELTA-MACON BRICK AND TITLE
COMPANY, INC AND DELTA BRICK, A
DIVISION OF BORAL BRICKS, INC
Jack L Berger Esq , for the General Counsel
J Thomas Kilpatrick Esg and Susan Sparks Esq (Smith
Currie & Hancock) of Atlanta Georgia, for the Re
spondent
Shannan Kane Esq of Washington D C for the Charg
mg Party
SUPPLEMENTAL DECISION
JAMES L ROSE, Administrative Law Judge On June
9, 1982 I issued my initial decision in this matter follow
mg which the General Counsel and the Charging Party
took exceptions On July 13, 1988 the Board issued an
Order remanding the case to me (Member Johansen dm
sentmg) 289 NLRB 830 (1988)
A supplemental hearing pursuant to the Board s
Order was held before me at Columbus Mississippi on
April 4 1989 with all parties being represented by coun
sel, each of whom submitted a bnef on May 19 1989
On the record' as a whole, including my initial dem
sion and my observation of the witnesses at the supple
, Certain errors in the transcnpt are noted and corrected
DELTA-MACON BRICK & TILE CO 1047
mental hearing, briefs, and arguments of counsel, I make
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I FACTUAL STATEMENT
As more fully set forth in my initial decision, this case
concerns the Respondent's2 recall of five laid-off striker
replacements without offering jobs to, or even consider-
ing, replaced strikers who were on a preferential hiring
list pursuant to the provisions of Lazdlaw Corp, 171
NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir 1969),
cert denied 397 US 92 (1970)
In brief, employees of the Respondent engaged in an
economic strike to press their contract demands in Sep-
tember 1979 During the strike the Respondent hired re-
placements such that on termination of the strike on Sep-
tember 23, 37 of the strikers had been permanently re-
placed They were put on a Ladlaw list
On January 30, 1980, the Respondent laid off employ-
ees, including five striker replacements Fred Ivy, Mary
Conner, Timm Moore, Eddie Tutt, and Sammie Orange
Each was recalled in March or May 1981, 14 to 16
months later, to the jobs they had held before the
layoff 3 The Respondent conceded that no replaced
striker was considered for the jobs to which the five
were recalled
The General Counsel contends that by recalling the
striker replacements instead of strikers who were still on
the Laidlaw list, the Respondent thereby granted them
supersenionty over strikers Such was therefore violative
of Section 8(a)(3) and (1) of the Act
Whether the Respondent's actions with regard to these
five amounted to unlawful discrimination against strikers
depended on whether the recall was to a job vacancy
That is, a striker replacement may be laid off and re-
called to his job without this being unlawful discrimina-
tion against nonremstated strikers if, when he is laid off,
he had a reasonable expectancy of recall If, however,
the layoff of a striker replacement is such that he has no
reasonable expectancy of recall, then when his former
job is again open it is a vacancy and nonremstated strik-
ers must be considered on a nondiscriminatory basis
Aqua-Chem, Inc , 288 NLRB 1108 (1988)
The layoff was the result of a general downturn in the
national economy While the Respondent typically had a
slowdown in the winter months due to slack construc-
tion material demand, it had never experienced as severe
a cutback as in 1980 These five employees were told
only that they would be recalled when the Company had
jobs, but were given no indication of when, if ever, that
would be
2 Although the Respondent has continuously been engaged in the busi-
ness of manufacturing bricks, its stock ownership has changed since my
initial decision Based on this, counsel for the Respondent contends that it
is not responsible for any unfair labor practices engaged in of which the
new controlling owner had no knowledge I disagree that there is a
successorship issue here The Respondent as a business entity has not
changed It is a corporation, owned by stockholders, the majority of
whom have changed, but such does not create a successorship Hen-
dricks-Miller Typographical Co, 240 NLRB 1082 (1979)
3 On this there was some evidentiary dispute, which I resolved in favor
of crediting the Respondent's administrator, Charles S Barrett
In the collective-bargaining agreement is a provision
stating that for layoffs of more than 1 week, recall will
be according to departmental seniority Thus, the Gener-
al Counsel and the Charging Party argue that after 1
week on layoff, none of the five had any reasonable ex-
pectation to be recalled ahead of more senior out-of-
work employees And specifically, they had no expecta-
tion to be recalled to jobs in 1981 Therefore, the jobs to
which they were rehired were vacancies -within the
meaning of Latdlaw, and to hire them ahead of replaced
strikers was violative of the Act
At the supplemental hearing each of the five striker re-
placements testified, however, given the passage of time,
their testimony is not particularly reliable on such ques-
tions as what they were told when laid off, what they
did in the intervening period, or even which job they
were laid off from and recalled to
II ANALYSIS AND CONCLUDING FINDINGS
In my initial decision I concluded that this matter in-
volves the conditions under which strikers who had been
permanently replaced are entitled to reinstatement Spe-
cifically, the General Counsel contends that a job vacan-
cy is created when a company determines to end a layoff
which had been caused by economic conditions, and
which lasts more than 1 week Thus, layoff of a striker
replacement and subsequent reactivation of that job
amounts to departure of the replacement, or implies a va-
cancy resulting from expansion of the work force In
either case, the replaced strikers would be entitled to
consideration to fill the job
The narrow issue litigated was whether layoff and
recall of a striker replacement created a job vacancy If
so, then replaced strikers are entitled to compete for jobs
under Laidlaw If not, then they are not
I concluded that when an employee is laid off he is
not deemed terminated if he has a "reasonable expecta-
tion of recall" Therefore, his recall in such a case is not
to a job vacancy and not discriminatory against replaced
strikers Brancroft Cap Co, 245 NLRB 547 (1979) In
that case the Board held that the length of the layoff is a
relevant factor and found that one of 2 to 7 days caused
by a shortage of matenals did not create a vacancy
Though the length of time here (more than 14 months)
was clearly relevant, I concluded this long duration was
not dispositive I concluded that under the facts here,
when the Respondent determined to reactivate jobs, to
give primary consideration to the last incumbent was not
discriminatory against strikers
Having considered my decision along with the initial
record, the Board's panel majority decided to remand
the matter to allow the General Counsel "to show that
permanent replacements who were subsequently laid off
had no reasonable expectation of recall," in accordance
with Aqua-Chem, Inc , supra, 289 NLRB at 830 and fn 1
Member Johansen dissented on grounds that the Gen-
eral Counsel should not have the burden proving "that
the layoff of these striker replacements created 'vacan-
cies' to which the unremstated strikers were entitled to
be recalled Instead, I find that the Respondent had the
burden of establishing that there was a substantial busi-
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness justification for failing to recall the unremstated
strikers after a layoff of such a long duration resulting
solely from a prolonged shortage of work 289 NLRB
at 830
Implicit in the Board s decision is that the General
Counsel did not meet the burden of proving that the re
placements had no reasonable expectation of recall Had
the General Counsel met this burden the Board surely
would have reversed my initial decision Had the Gener
al Counsel met the burden announced by the Board,
there would have been no basis for remanding the
matter
From the Board s statement of the General Counsel s
burden it appears that there is a presumption that a stnk
er replacement who is laid off and recalled to his job had
an expectation of recall notwithstanding that he was on
layoff 14 to 16 months
But it is unclear from the Board s Order whether
absent further evidence the Board intended that my rec
ommended decision should stand, or whether I should
reconsider the matter notwithstanding a lack of new evi
dence
I conclude that the General Counsel did not present
any evidence which is substantively different from that
in the original record Nevertheless on reconsideration, I
believe my initial conclusion was erroneous and that
upon the entire record, the five laid off striker replace
ments did not have a significant expectancy of recall
Thus under the Aqua Chem test, they were not entitled
to recall ahead of replaced strikers
When the five striker replacements were laid off as of
January 31, 1980, they were given a change of status
form which indicated that they were on layoff It was
further stated that the reason for the layoff was work
reduction On the form were additional blocks which
were not checked Termination, Voluntary Quit
and Discharge In short the Company s change of
status paperwork indicated that these individuals were
laid off which implies a temporary cessation of employ
ment albeit for an indeterminate period
In addition, each employee received a form letter from
the Company indicating that if he or she wished to con
tinue health insurance that following the termination'
such could be arranged The General Counsel and
Charging Party point to the use of the word termma
ton in this letter to suggest that the five individuals had
no expectation of recall
The use of the word termination in the insurance
letter is inconsistent with the statements in the Comps
ny s change of status form But given the testimony of
these individuals as well as my findings in the original
decision, I conclude that in fact the individuals were laid
off Since the period of layoff was indeterminate their
insurance would be canceled unless they made arrange
ments to continue to pay for it Further this was a form
letter clearly meant to cover multiple situations I do not
believe that the use of the word termination in the in
surance letter is critical in this matter
What is critical is the collective bargaining agreement
which had been executed ending the strike and which
contained the following provision
ARTICLE VII
SENIORITY
Section 2 For the purpose of lay off longer than
one (1) calendar week and recalls seniority shall be
applied within each department and a list of the
present departments and the job classifications
therein is attached hereto and marked Appendix
B
Section 5 Semonty shall be applied on a Depart
mental basis as herein stated and all lay offs for
more than one calendar weekand recalls shall be
made by departments
It is clear that under this collective bargaining agree
ment the Company and Union contemplated that one
laid off for a lack of work for a short period (not to
exceed a week) could be recalled to his or her job re
gardless of seniority and whether other more senior
people were out of work Implicit however is that after
1 week, one on layoff would have no expectation of
recall to his or her job in the event that more senior
people in the department were out of work and available
for recall
The issue in this case is whether or not the five striker
replacements had a reasonable expectancy of recall As
soon as the layoff lasted for more than 1 week, I must
conclude that they had no reasonable expectancy of
recall The expectancy would be that the Company
would comply with the collective bargaining agreement
and should work resume, the Company would undertake
to recall based upon departmental seniority from the out
of work pool which would include nonremstated stnk
ers
To conclude that the five individuals all of whom
were low on the seniority list, had a reasonable expectan
cy of recall after the layoff lasted more than 1 week
would be to conclude that these striker replacements
were in a group which had seniority senior to nonrem
stated stnkers Granting striker replacements supersemor
ity of course is not permissible NLRB v Erie Resistor
Corp 373 US 221 (1968)
The fact that the contract also provides for the loss of
semonty upon layoff for more than 9 months I do not
believe is significant in determining the expectancy of
these particular individuals to be recalled While their
layoff lasted more than 9 months it appears that the
Company waived this contract provision In any event
the expectancy to recall or lack of it occurred after the
expiration of 1 week on layoff
I conclude that these five individuals could have ex
pected to be recalled within the first week of their
layoff and the Company could have recalled them with
out having been in violation of any contract provision
had it done so Given this expectancy, the Respondent
could have recalled them without being in violation of
its obligations under Latellaw However, following the
passage of 1 week these low seniority employees had no
reasonable expectancy to be recalled or certainly no ex
pectancy superior to that of others in the potential em
DELTA-MACON BRICK & TILE CO 1049
ployment pool which included, of course, the replaced
strikers
I conclude that after having been on layoff for 1 week,
the five striker replacements lost any reasonable expect-
ancy for recall Therefore, following the end of 1 week
on layoff, any jobs to which they were recalled must be
considered to have been job vacancies within the mean-
ing of Laidlaw, to which the reinstated strikers were enti-
tled to first consideration
Inasmuch as the Company did not consider and offer
employment to nonremstated strikers and instead offered
employment to the five snker replacements, it thereby
violated Section 8(a)(3) and (1) of the Act, and I will
recommend an appropriate remedy
The General Counsel and Charging Party argue that
Fred Ivy was not hired by the Company until after the
strike was over, a fact which was revealed for the first
time at the supplemental hearing Specifically, the Charg-
ing Party offered into evidence a company document
which shows that Ivy's first day of employment was
September 24, 1979, the day after the strike was termi-
nated and the day the Company began recalling nonre-
placed strikers Further, Ivy testified that while he was
called down to work during the strike, he refused to
work while the other employees were striking
Accordingly, the General Counsel and the Charging
Party contend that the hiring of Ivy was a violation of
Section 8(a)(3) of the Act, and that the striking employee
whom he replaced, Lawrence Jones, is entitled to rein-
statement and backpay
At the initial hearing, this was not in issue, all parties
agreeing that Ivy had been hired during the strike, on
September 20, 1979 And such is reflected on General
Counsel's Exhibit 5
While it may be that Ivy did not actually commence
work until the Monday following the day he was hired
(a Thursday) and that in the intervening time the strike
had been settled, such does not necessarily mean that
Ivy's employment was a violation of Section 8(a)(3) of
the Act If, as I must conclude, based upon the parties'
positions at the initial hearing, the Company made a
commitment to hire Ivy during the strike as it was enti-
tled under the Act to do, to honor that commitment was
not a violation Superior National Bank & Trust Go, 246
NLRB 721 (1979)
Further, Ivy's testimony now about events occurring
almost 10 years ago is not particularly credible nor defin-
itive While he testified that he did not want to go to
work during the course of the strike, there is no real in-
dication that he rejected employment, or that he would
not have in fact gone to work on Monday, September
24, but for the strike having been settled
Finally, this was not an issue that was remanded to me
for consideration Nor is it an issue which the Respond-
ent could reasonably have been expected to have pre-
pared a defense, particularly given the long hiatus be-
tween the events and the remanded hearing
For these reasons, I disallow the contention that Fred
Ivy ought to be considered other than a bona fide striker
replacement and one of the five who were laid off on
January 30, 1980, and subsequently recalled
REMEDY
As I have concluded that Ivy, Conner, Moore, Tutt,
and Orange were recalled in violation of Section 8(a)(3)
of the Act, I shall recommend that the senior nonrem-
stated striker as of the time of each recall be awarded
backpay from the time of the recall to the time of the
subsequent layoff
Thus, Fred Ivy was recalled on March 23, 1981, and
laid off on December 2, 1981 The senior nonremstated
striker as of March 23 would be entitled to backpay for
this period
Similarly, Mary Conner was recalled on March 31,
1981, and laid off again on June 10, 1981 The senior
nonremstated striker on March 31, 1981, would be enti-
tled to backpay for this period
Tmme Moore was recalled on March 5, 1981, and laid
off on June 10, 1981 The senior nonremstated stnker on
March 5, 1981, would be entitled to backpay for this
period
Eddie Tutt was recalled on March 12, 1981, and laid
off on June 10, 1981 The senior nonremstated striker as
of March 12, 1981, would be entitled to backpay during
this period
Finally, Sammie Orange was called back on May 11,
1981, and voluntarily quit on September 5, 1981 While
there is no indication that the senior nonremstated stnker
would have voluntarily terminated his employment as of
September 5, there were layoffs in that department, both
before and after Orange's termination Accordingly, I
conclude that backpay for the senior nonremstated strik-
er should be during the period May 11, 1981, to Septem-
ber 5, 1981
The General Counsel and Charging Party argue that
in addition, had the Respondent reinstated strikers rather
than recall these replacements after their initial layoff,
subsequently other nonremstated strikers would have
been recalled This domino effect would entitle each
nonremstated striker to some measure of backpay While
such may theoretically be the case, there is no evidence
to support it Nor is there evidence that any but the
senior nonremstated striker would have been recalled
To conclude that others in addition to the five senior
nonremstated strikers would have been recalled and
therefore would be entitled to backpay is simply too
speculative to form the basis of a remedial order
Accordingly, I will recommend that only the five
senior nonremstated strikers at the time of the recalls of
Ivy, Conner, Moore, Tutt, and Orange be entitled to
backpay as indicated
[Recommended Order omitted from publication ]