Drug Package Co.

National Labor Relations Board - Board Decisions

Mar 22, 1979

241 N.L.R.B. 330 (N.L.R.B. 1979)

505, edy. vio-
International 8(a)(5)
trike.^ enforce-
Or-
un-
SUPPLEMENTAL DECISION AND ORDER
back-
8(a)(1)
aqended,
fled
B(aX1)
8(a)(5)
8(a)(1)
rem-
' 228
* D N ~ Inr. N.L.R. F.2d Cir.
'See N.LRB. Gwel Inc., (1969).
r t Tmdlng Po% Inc., Board
Reapondent bargaining obligation 10,
the recopition achieved
Rapondent mg.gcd substantial praetioer.
a n 4 fot
strik-
1qc)
affirmative
an
sit~ations.~
cgnduct
circumrtanas case considered
find 8(a)(5) obligation 10,
complaint 8(a)(5)
the Bard
isrued after hearing ur after Respondent
refwd oRer the strikers work.
Respondent case dXercntly
S(aX5) order
isued.
' Board hatby rdnstntement
strikers as sct forch N.LRB. Mackay & Tclegmpir
w hemin
arc rut gencru.
J. H. Rutter-Rex ManufwNing Inc., et a[.,
(1969); FibmbmrdPqpcr ProdLrts Corp
(1%4); Smn-Up Bottlim Conip~y o/Miami, Inc., 344
344, Gullctt 11n. N.L.RB.,
(1951); ~k4ar D ~ C CW. N.LRB., 313 U.S. I n , 194 (1941).
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drug Package Company, Inc. and Local Graphic
Arts Union, AFL-CIO-CLC. Cases
14-CA-7959 and 14-CA-8062
March 22, 1979
On February 10, 1977, the National Labor Rela-
tions Board issued a Decision and Order1 finding that
Drug Package Company, Inc., hereafter Respondent,
had engaged in unfair labor practices in violation of
Section and (5) of the Natioal Labor Relations
Act, as and ordering Respondent, among
other things, to bargain with Local 505, Graphic Arts
International Union, AFL-CIO-CLC, hereafter the
Union, and to reinstate employees who had partici-
pated in a strike. Thereafter, the United States Court
of Appeals for the Eighth Circuit issued a decision2
enforcing the Board's Order in part, denying enforce-
ment in part, and remanding the proceeding to the
Board for further consideration of the Order. The
Board accepted the remand and invited all parties to
file statements of position with respect to the re-
manded issue. The General Counsel, the Union, and
Respondent statements; and Respondent filed a
motion for an evidentiary hearing which was opposed
by the General Counsel and the Union. We deny Re-
spondent's motion for hearing, as the record is ade-
quate for determination of the remanded issue.
The Board has reviewed the case in the light of the
court's decision and the positions of the parties and
makes the following additional findings and conclu-
sions and supplements the Order as set out below.
In its original decision the Board found that Re-
spondent had engaged in conduct which violated Sec-
tion of the Act and made it highly unlikely
that a fair election could be conducted to determine
the Union's representative status. Consequently, the
Board issued a bargaining order based on the Union's
majority status established by authorization cards.'
The Board further found that Respondent had vio-
lated Section by refusing t o recognize the
Union, and that a strike in support of the Union's
demand for recognition was an unfair labor practice
strike. The Board ordered the strikers reinstated as
unfair labor practice strikers.
Upon review, the circuit court accepted the Board's
findings that Respondent had violated Section
and that a bargaining order was an appropriate
NLRB 108.
Package, v. B., 570 1340 (8th 1978).
v. Packing Co., 395 U.S. 575 Applying
the views forth in 219 NLRB 298 (1975). the
found that had a as of May 1974, the
date Union had demanded and had majority status.
and had in unfair labor
241 NLRB No. 44
It rejected the findings that Respondent had
lated Section and that the strike was an unfair
labor practice Therefore, it denied
ment of the reinstatement order to the extent the
der was based on the view that the strikers were
fair labor practice strikers. It left to the Board "the
question whether the Company should be required to
reinstate the strikers upon application, without
pay, in order to make the bargaining order a full and
complete remedy."
The Board has accepted the remand pur-
poses of this Supplemental Decision, accepts the
court's view that the strikers are not entitled to rein-
statement as unfair labor practice strikers. We have
considered then the propriety of reinstating the strik-
ers-notwithstanding their status as economic
ers-in order to make the bargaining order a com-
plete remedy. We have examined the particular facts
of the case and the arguments of the parties, and we
have reviewed the Board's administrative power and
experience with bargaining orders. We conclude that
a reinstatement order is warranted under the particu-
lar and unusual set of factss and that a reinstatement
order here is within our remedial authority.
Section of the Act empowers the Board to
require a person who has engaged in unfair labor
practices to take "such action including
reinstatement of employees with or without back pay,
as will effectuate the policies of this Act." This power
is broad and imposes upon us obligation to devise
remedies which will accomplish the purposes of the
Act in specific factual In this case, the
relationship of a reinstatement order to furthering the
purposes of the Act is clear. Here, upon the advent of
the Union, Respondent engaged in extensive
which tended to thwart employee organizational
rights so that a bargaining order based upon authori-
zation cards has been adopted as a suitable remedy
for the unfair labor practices. The purpose of the bar-
gaining order is to prevent Respondent from benefit-
ing from its unlawful conduct and to reestablish, as
nearly as possible, conditions as they existed before
'In the of the the court it inequitable to
an violation and a bargaining dating from May
1974. The had not alleged an violation. and the Trading
Port decision, which applied to fix the date of Respondent's bar-
gaining obligation, had in the and
had an by Union to return the to The court
thought that might have handled the had it been
aware that an violation might be found and a reinstatement
The is not modifying the existing rights to of
economic in v. Radio Ca,
304 U.S. 333 (1938); stated, the holding is limited to the facts of
this which are viewed as
See N.L.R.B. v. Co., 3% U.S.
258, 262 v. N.L.R.B., 379 U.S.203.
216 N.L.R.B. v. U.S.
346 (1953); Gin Company, v. 340 U.S. 361, 363
V.
' Girsrl W r a
182 82
striken fill af'tcr
appeared
The Luidlaw
1 (1968). enfd. 14 F.2d Cir. 1%9),
Rapondent hidlaw,
strikm
p i t i o n
9A~uming , employees
Scc. 2(3)
they replacements
striken poten~ial
practical source
1
I
!
practices.1°
I
r
remedy
orignal
8(a)(5),
Inc., (1 974),
"was
8(a)(1)
8(a)(1)
' 0 see these circumstanca M
reinstating
internal part ofthe told remedy this Its i
pmtect atrikm to
purporc is
supplement effective bar pin in^^ h designed
coercive s u p
use repretientation mchin-
cry. sa
supportera happen economic striken, general
replaced. S a Mackay d Telegraph
CO.. sllpm. Badically, g e n d recognizes cm-
ploycr operations hlling
replaccmentt. considerations prcsmt
case
effective practice situation
prevents medics .
DRUG PACKAG
Respondent's antiunion campaign? The bargaining
order is unlikely to achieve this purpose without the
related reinstatement order. Ordinarily, a bargaining
order, directing an employer to formally recognize a
labor organization's representative status and requir-
ing it to bargain with that labor organization upon
demand, tends to reassure employees of their statu-
tory rights and to restore employee support of the
organization. However, it appears that the results
which customarily may be anticipated from a bar-
gaining order remedy will not ensue in this case be-
cause of the changed composition of the bargaining
unit. Most of the union adherents who participated in
the strike and are no longer employed by Respon-
dent. the unit is now made up substantially of striker
replacements, employees who rejected the Union dur-
ing its organizational campaign, and employees who
originally signed authorization cards for the Union
but did not go on strike." Without an order reinstat-
ing the strikers, the Union's pre-unfair labor practice
majority support cannot be approximated and mean-
ingful bargaining insured? Even if the parties bargain
in good faith in an effort to reach agreement, without
reinstatement of the strikers an inequality of bargain-
ing power exists between Respondent and the Union
which might well preclude fruitful bargaining. The
Union's lack of vitality and potential strength to take
economic action removes the incentive to compro-
mise and to adjust disagreements in order to arrive at
a "bargain"acceptable to both sides. In these circum-
stances, negotiations might be reduced to a useless
exercise and demonstrate further to employees the fu-
tility of selecting a bargaining representative. Accord-
ingly, we conclude that in the particular circum-
stances of this case a reinstatement order is
practically interrelated with the bargaining order and
is crucial to the effectiveness of the bargaining order
which is intended to restore conditions as nearly as,
N.L.R.B. v. Packing Co., Inc., at 612.
Of the employees, went on strike and were permanently replaced.
Some have returned to the unit to vacancies which occurred
the strike. At the time of oral argument before the court. it that
about 25 strikers had been reinstated; and Respondent asserts that it is offer-
ing strikers reinstatement to vacancies as required by Corpora-
tion. 17 NLRB 1366 4 99 (7th cert. denied
397 U.S. 920 (1970). If fulfills its obligation under ad-
ditional strikers will return to Respondent's employment over a period of
time, but return of the at some undetermined future time will not
permit the Union to negotiate pursuant to the bargaining Order from the
of majority strength it occupied before the unfair labor practices.
as argued by Respondent, that the strikers are
within the meaning of of the Act and may be represented by the
Union. and that replacements may support the Union to the same extent as
the employees replaced, a constituency of striker and
not working in the unit would not furnish the Union the
economic strength and of unit information that would be
provided by a constituency of actively employed unit members who had
initially selected the Union and struck in support of its demand for recogni-
tion.
E COMPANY, INC. 33
possible to those that existed before the unfair labor
In ordering this admittedly unusual remedy in this
proceeding, we stress that we have been particularly
mindful of the court's own admonition to us in its i
decision remanding this issue that the bargaining or-
der here "could well be a hollow if the em- f
ployees represented by the Union are the replace-
ments hired during the strike, not the employees who
originally supported the Union." We note that upper-
most in the court's mind in denying that part of our
decision which had found Respondent's re-

fusal to bargain a violation of Section
and

had ordered reinstatement of the strikers as unfair

labor practice strikers, was the court's conclusion that

the company was not on adequate notice that the

Board might make these additional findings. The

court indicated that under the then controlling law of

Steel-Fab, 2 12 NLRB 363 Respondent,

at the hearing in November 1974,
aware only of

the possibility that the Board would find an

violation and order a prospective bargaining order as

relief [footnote omitted.]." And with regard to the

Union's request for the strikers to return in February

1975, the court concluded that, relying on the then

controlling law of Steel-Fab, Respondent refused that

request. The court decided that Respondent should

not be penalized for relying on the Board's earlier law

of Steel-Fab, which was subsequently changed in

Trading Port. With this frame of reference, we note

that all the
violations which yielded the bar-

gaining order, together with the demand for and the

refusal of recognition, and the start of the strike, oc-

curred in April-May 1974. Steel-Fab did not issue

until June 28, 1974. Thus, Respondent committed all

the operative violations in this case under the law

prevailing before Steel-Fab. Under that law, had Re-

spondent placed any "reliance" on it, as it did on

Steel-Fab for its later actions in the court's view, Re-

spondent could have been assured at the time it com-

mitted those violations that the Board would find it

We do not a reinstatement order in unusual

the equivalent of an order simply economic strikers. The rein-

statement order is an
in case. u m

not to
or benefit the or remedy any employer conduct

directed specifically at strikers because of their strike activity. Its

to and make the which
to

remedy Respondent's acts which tended to impair employee

port of the Union and to frustrate
of the Board's
Accordingly, we no inconsistency between an order reinstating the

union here who
to be and the

principle that an employer is not required to reinstate economic strikers who

have been permanently
N.L.R.B. v. Radio
that principle the interest of an
in continuing during a strike by jobs vacated by
strikcrs with permanent Additional are
in this which must also be recognized. Here there is a need to fashion an
remedy for serious unfair labor in an unusual

which use of traditional

8(a)(5)
8(a)(5)
sui
In
8(a)(l)
backpay
reinstatement.I2
back-
1qc)
O'Fallon, offi-
N.L.R. B, G l d nqrcr: C o ~ w Iowa.
187
'I suggesting condm appqriateneu mnsute-
order coun referred reimutg
ttriken intcrpmt m u n
backpay M mnomic strikm bem penna-
nently replaad, w m
undenund coun's swiken
IOU urnings
supplemenul reinstatement
60
NotifL
20
13 Backpay M praaibed F. W. Woohvor~h Conpaw,
(19%). thereon ~ m r i b e d Flwida S l n l
C-I~O* ni NLRB 651 (1977). SEG -auy, IJL~ ~hnnbing d: ii-ling
138 (1%2).
5day in reawnable betwscn intmsts
emplaym M poaaible Employer't
need efcctute manner. Acoordingly,
hmin rejecy ignora uncondi t id
return attach- unlawM conditionr ofer reinnuto
mat, thc 5day c c r v ~ uKf\ll pwpoac backpay
M date uncondit id return
14 thk enforced Suta
Appeal* war& reading
labor Rclationt Bard" hall read Pumumt
S u m Appeals Enforcin~ an Ordcr National
Boardu
NOTICE EMPLOYEES
POSTED ORDER
LABOR RELATIONS BOARD
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had violated Section by refusing to bargain
and, therefore, that the ensuing strike was an unfair
labor practice strike." Thus, as the court in its deci-
sion balanced the equities in refusing to find an
violation here, but nevertheless remanded this
proceeding to the Board for consideration of the issue
now under review, we think our decision here should
also balance the equities in what we consider to be a
generis situation.
balancing those equities, we believe that those
employees who struck here under pre-Steel-Fab law
should not be entirely penalized by changes in Board
decisional law. As the court concluded that Respon-
dent could rely on the law of Steel-Fab in its original
refusal to rehire the strikers, we think the equities al-
low us to give some consideration to the facts that the
operative violations, the demand and refusal
of recognition, and the strike here occurred even be-
fore Steel-Fab became law. Respondent at that time
had no idea that the law would soon change to its
benefit, and yet it embarked on a course of illegal
conduct which caused the strike and which has culmi-
nated in a bargaining order. In ordering the reinstate-
ment of the strikers here, we have considered this
shift of Board law from United Packing, supra, to
Steel-Fab, supra, to Trading Port supra, and conclude
that the burden placed on Respondent under all the
circumstances is not an unfair one and accommodates
the interests of all parties involved.
Consistent with the court's suggestion, we will not
include with the reinstatement Order a order
for the period before this Order when the strikers, as
permanently replaced economic strikers, were not en-
titled to Further, we will require Re-
spondent to offer reinstatement only "upon applica-
tion" of the strikers and thereby obviate any
obligation on Respondent to seek out the strikers.
For the foregoing reasons we order Respondent to
reinstate the strikers upon application, without
pay, in order to achieve an adequate remedy in this
case.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Drug
Package Company, Inc., Missouri, its
v. Packing Co., United Packing of
NLRB 878 (1971).
In that the Board the of a
ment in support of the bargaining order, the to
ment of the "without backpay." We this to without
for the period when, who and
the strikm not entitled to reinstatement. We do not
the decision to preclude an award to the for any
of which may result from a failure of Respondent to comply
with our order.
cers, agents, successors, and assigns, shall take the fol-
lowing affirmative action designed to effectuate the
policies of the Act:
1. Upon application, offer immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, to all those employees who par-
ticipated in the strike which began on May 24, 1974,
and to whom Respondent has not previously made a
valid offer of reinstatement, dismissing, if necessary, ,
any person hired by Respondent on or after May 24,
1974. Respondent shall also make those employees
whole for any loss of earnings which they may suffer
by reason of Respondent's refusal, if any, to reinstate
them as ordered herein, by payment to each of them
of a sum of money equal to that which each normally
would earn as wages during the period from 5 days
after the date of application for employment to the
date of an offer of reinstatement."
2. Post at its premises at O'Fallon, Missouri, copies
of the attached supplemental notice marked "Appen-
dix."'* Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
3. the Regional Director for Region 14, in
writing, within days from the date of this Order,
what steps Respondent has taken to comply herewith.
will be determined in
90 NLRB 289 with interest as in
Co., NLRB 716

The
period
a accommodation the of
the in returning to work quickly at a d the
to that return in an orderly if Respon-
dent unduly delays, or any application
to to work or to its of
period
no and will commence
of the of the application to to work.
In the event that Older it by a judgment of a United
Court of the in the notice "Posted by Order of the
National 'Posted to a Judgment
of the United Court of
of the
Labor Relation#
APPENDIX
TO
BY OF THE

NATIONAL

An Agency of the United States Government

After a hearing in which both sides had the opportu-
nity to present their evidence, the Board has found
5
333 DRUG PACKAGE COMPANY, INC.
that we violated the National Labor Relations Act, as May 24, 1974, who have not already been given
amended, and has ordered us to post this supplemen- valid offers of reinstatement, dismissing, if neces-
tal notice. sary, any person hired on or after May 24, 1974.
WE WILL, upon application, offer immediate WE WILL make the former striking employees
and full reinstatement to their former jobs or, if whole for any loss of earnings which they may
those jobs no longer exist, to substantially equiv- suffer by reason of our refusal, if any, to reinstate
days of such applications, with alent jobs, without prejudice to their seniority or them within

other rights and privileges, to all those employees interest.

who participated in the strike which began on