Gaso Pumps, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 532 (N.L.R.B. 1985)

532 GASO PUMPS
Gaso Pumps , Inc, and International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 16-CA-11310
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 June 1984 Administrative Law Judge
Mary Ellen R Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gaso
Pumps, Inc., Tulsa, Oklahoma , its officers, agents,
i In sec II,B, of her decision the judge at one point referred to the
"events of August 5," when it is clear from the record as well as from
the remainder of the judge's decision that the events referred to occurred
on 15 August, not 5 August 1983 In sec II,C,2, of her decision the judge
stated that "there is no contention that the strike which began August 16
was an economic strike " It is clear from the record and the remain-
der of the judge's decision that in fact there is no contention that the
strike'was an unfair labor practice strike These inadvertent errors have
no effect on our decision
In adopting the judge's finding that the Respondent implemented its
proposal to limit strikers' reinstatement rights to a period of 6 months, we
note that in its 7 September 1983 letter to employees the Respondent
stated that it had implemented its strike settlement proposal and that, ac-
cordingly, the reinstatement rights of striking employees would be limit-
ed to 6 months
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(5), (3), and (1) of the Act by insisting to impasse on and implement-
ing its proposal to limit the duration of strikers' reinstatement rights to a
period of 6 months, we note that the principle relied on by the judge that
employees may not be deprived of'statutory rights in the absence of a
clear and unmistakable waiver recently was affirmed by the Supreme
Court in Metropolitan Edison Co v NLRB, 460 U S 693 (1983)
In adopting the judge's conclusions we emphasize our decision is not
inconsistent with Eagle Comtromcs, 263 NLRB 515 (1982) In Eagle we
held that an employer does not violate the Act by informing employees
that in the event of a strike they may be permanently replaced without at
the same time informing them of their preferential reinstatement rights
We further held that unless the statement of the employer may be fairly
understood as a threat of reprisal or is explicitly coupled with such
threats it is protected by Sec 8(c) of the Act Nothing in our present
decision detracts from our holding or our reasoning in Eagle
Members Hunter and Dennis, in adopting the judge's conclusion that
the Respondent violated Sec 8(a)(3) of the Act, find it unnecessary to
pass on the judge's reliance on that portion of the Board's decision in
Interstate Paper Supply Co, 251 NLRB 1423 (1980), in which the Board
held that the employer's insistence on limitations on strikers' rights would
be inherently destructive of employees' statutory rights In this respect,
they note that,'as the judge found, the Respondent has not shown that
legitimate and substantial business justifications existed for its limitations
on strikers' reinstatement rights
successors , and assigns , shall take the action set
forth in the Order.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge
The original charge in this case was filed on September
27, 1983,1 and amended on November 3, 1983, by Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO (the Union), against Gaso Pumps, Inc.
(the Respondent) On November 10 the complaint issued
alleging, in substance, that the Respondent engaged in
certain conduct which violated Section 8(a)(1) of the Na-
tional Labor Relations Act, that the Union is the certi-
fied representative of the Respondent's employees in an
appropriate bargaining unit, and that the Respondent had
violated Section 8(a)(5) of the Act by insisting to impasse
on its proposed strike settlement agreement which would
limit economic strikers' reinstatement rights and had vio-
lated Section 8(a)(1) and (3) of the Act by limiting the
strikers' reinstatement rights. The Respondent has denied
the commission of any unfair labor practices.
A hearing was held before me at Tulsa, Oklahoma, on
December 19 and 20. Following the hearing the General
Counsel and the Respondent filed briefs, which have
been considered.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Oklahoma corporation and
maintains a facility in Tulsa, Oklahoma, where it manu-
factures oil field pumps. During the 12-month period
preceding the issuance of the complaint the Respondent,
in the course and conduct of its business operations, sold
and shipped from its Tulsa facility products, goods, and
materials valued in excess of $50,000 directly to points
outside the State of Oklahoma. The answer admits, and I
find, that the Respondent is an employer engaged in
commerce within the meaning of the Act, and I further
find that it will effectuate the policies of the Act to
assert jurisdiction herein.
ii. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has represented the Respondent's produc-
tion and maintenance employees since at least 1951,2 and
I All dates herein are 1983 unless otherwise indicated
2 It is undisputed that the appropriate bargaining unit is
Continued
274 NLRB No. 76
GASO PUMPS
was party to a collective-bargaining agreement with the
Respondent which was in effect from August 16, 1980,
through August 15, 1983, and thereafter unless either
party gave 60 days' notice of its desire to modify or ter-
minate the agreement. The contract also provided that,
in the event the 60-day notice was to modify rather than
terminate, a 5-day notice of intent to terminate must also
be given on or after the 55th day of the 60-day period.
It is undisputed that the Union gave the Respondent
the requisite notice of its desire to modify the agreement.
It is also clear that the ensuing negotiations were not
successful and that subsequently the Union also notified
the Respondent that it intended to terminate the con-
tract.
On Friday, August 12, the Respondent presented its
final offer to the Union. The next day, August 13, there
was a union meeting at which the employees voted to
reject the Respondent's final offer and to strike beginning
August 16 In the meantime, according to the credible
testimony of Kevin Cornwell, the Respondent's chief op-
erating officer, the Respondent's officials had believed, as
a result of the notice of termination, that a strike was
likely and had therefore discussed how to continue oper-
ations during a strike. Still according to Cornwell, the
Respondent had delivery commitments both to custom-
ers and to distributors of its products, and therefore in-
tended to hire replacements in order to continue both
manufacturing and shipping its product during the strike.
B. The Alleged Threats to Terminate Strikers
1. The events of August 5
It is undisputed that when the first-shift production
employees arrived at the plant the morning of August 15
they were not permitted to go to their regular work sta-
tions but were instead told to go to the Respondent's
conference room, where they were shown training
films.3
The General Counsel's witnesses, all of whom were
first-shift employees, testified that on August 15 they saw
bulletins posted either in the conference room itself or in
hallways which advised them that if they did not come
to work the next day they would be terminated. Thus,
Gary Evans testified that when he went to get coffee he
observed a notice on the wall which stated that the Re-
spondent had made its final contract proposal and also
said "something to the effect that the employees that
were to be at work the next day that did not show up
for their scheduled work shift would be terminated "
Similarly, Terry Frazier testified that before he went into
the conference room he saw a bulletin posted in a hall-
way and that the bulletin said that if the employees did
not come to work on August 16 they would be "termi-
All production and maintenance employees including stockroom, in-
spectors, shipping and/or receiving clerks, working foremen and
group leaders and janitorial employees, excluding all office and cleri-
cal employees , engineering department members, manager , superin-
tendent, and all other supervisors as defined in the Act
Cornwell testified that the previous Friday there had been an inci-
dent involving the sabotage of some machinery in the plant and he was
worried that any further such incidents could result in serious injury to
employees Cornwell appeared to testify forthrightly and to the best of
his recollection about this incident and I credit him
533
nated." William Chapman testified that he saw a docu-
ment posted over the coffeepot in the conference room
and that the bulletin included the word "terminated" in
capital letters and underscored.
However, while all three General Counsel witnesses
testified emphatically that they observed a notice which
included the word "terminated," their testimony was less
precise and consistent with respect to other aspects of
that notice or the circumstances under which they saw
it. Thus, Frazier testified that he did not remember
seeing any document over the coffeepot or anywhere
else in the conference room, while Evans testified that
two copies of the bulletin were in the conference room,
one over the coffeepot and one adjoining the wall where
the men were seated, and that he saw other copies else-
where in the Respondent's facility. Chapman testified
that he did not see the bulletin over the coffeepot when
he first walked in about 7 a.m., but that he did see a bul-
letin there about 8. Chapman also testified that the only
bulletin he remembered in the conference room was the
one over the coffeepot.
Frazier further testified that Cornwell came into the
meeting and spoke to the employees and that he said that
if they came to work the next day he would be standing
at the door to shake their hands and that if they did not
come to work they would be terminated. According to
Frazier, Cornwell further said that if the employees did
not accept the Respondent's final offer they would be
terminated. However, Frazier did not know whether
Cornwell read anything to the employees or not
Evans corroborated Frazier's testimony with respect
to Cornwell's comment about shaking the employees'
hands if they came to work the next day and further tes-
tified that Cornwell came into the conference room and,
in the course of a conversation with Chapman, pointed
to the bulletin on the wall and said, "Look, the Compa-
ny has made its last and final proposal There it is on the
wall. . . . If you don't show up for work tomorrow,
you'll be terminated." At that point, according to Evans,
the conversation "more or less broke off" and Cornwell
left the room.
Chapman testified that he had called Jim Wagoner, the
Union's business representative and, after talking to him,
asked that Cornwell come into the room. When Corn-
well arrived, according to Chapman, Chapman told him
that the men had reported to work and did not want to
watch the film, and Cornwell said that the film was man-
datory. According to Chapman, in the course of this
conversation Cornwell said something to the effect that
if the employees did not come to work the next day they
would be terminated and at that point other employees
as well as Chapman began to argue with him.
Contrary to the General Counsel's witnesses, the Re-
spondent 's witnesses all flatly denied that the word "ter-
minated" was ever used in connection with the strikers'
employment status . Thus, Cornwell testified that, once
the Respondent decided that it would hire replacements
in order to continue operating in the event of a strike,
management concluded that it would be appropriate to
advise the employees that if they struck they might be
permanently replaced. In consequence, according to
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruce Mamary, the Respondent's production control
manager, he looked at some bulletins which another
firm, Ramsey-Winch, had used in a similar situation, and
used them as a basis for the bulletin the Respondent pre-
pared for its employees. Cornwell, corroborated by Per-
sonnel Manager Sharon Lawrence and David Regland,
who is apparently a supervisor, testified that after
Mamary consolidated the Ramsey-Winch documents into
one notice for the Respondent' s use he gave it to Corn-
well, who read it at a meeting of supervisors about 6 the
morning of August 15 and made some changes at that
time. Cornwell and Lawrence further testified that after
Cornwell read the bulletin to the supervisors he gave it
to Lawrence and asked her to retype it and post it.
Cornwell also testified that while the first-shift em-
ployees were in the conference room a supervisor told
him that one of the employees had "more or less" taken
over the meeting so Cornwell went to the conference
room to ask the employees to watch the films. However,
according to Cornwell, his plea was unsuccessful and so
he went to Mamary's office and told Mamary and Frank
Wolfe, the Respondent's attorney, who was present at
the time, that he did not think it made sense to keep the
employees there and that he wanted to read them the
bulletin and then let them leave, although they would be
paid for the full day Consequently, according to Corn-
well, he went back to the conference room, read the bul-
letin , and pointed to the copy posted over the coffeepot,
telling the employees they could read it for themselves
Cornwell flatly denied that he ever told any of the em-
ployees that if they joined the strike they would be ter-
minated
Cornwell's testimony as to what occurred in the meet-
ing with the first-shift employees was corroborated by
Lawrence and Regland.4 In addition, Connie Mabes, a
manufacturing engineer employed by the Respondent in
a nonbargaining unit position, and Billy Jack Vinyard, a
technical service engineer whose position is also outside
the unit, both testified that they were present when
Cornwell read the bulletin to the first-shift employees
and that Cornwell said that those employees who joined
the strike would be permanently replaced, but that he
did not say that anyone would be terminated. According
to Cornwell, Regland, and Lawrence, the bulletin which
was posted and which Cornwell later read to the em-
ployees was on the Respondent's letterhead and con-
tained the following text:
NOTICE:
THE COMPANY HAS MADE ITS FINAL
OFFER FOR A CONTRACT TO THE UNION.
GASO PUMPS WILL CONTINUE TO OPER-
ATE THIS FACILITY ON A FULL TIME
BASIS FOR THE FORESEEABLE FUTURE,
WITH OR WITHOUT AN APPROVED CON-
TRACT.
IN THE EVENT OF A STRIKE, STRIKING
EMPLOYEES WILL BE PERMANENTLY RE-
PLACED.
4 Mamary was not present in the conference room
WITHOUT A CONTRACT THE COMPANY
IS NOT ALLOWED UNDER LAW TO CON-
TINUE TO REQUIRE UNION MEMBERSHIP
AS A CONDITION OF EMPLOYMENT. THE
COMPANY WILL NOT DEDUCT UNION
DUES FROM YOUR PAYCHECK.
KEVIN CORNWELL5
2. Analysis and conclusions
The complaint alleges that the Respondent, both orally
and in the posted bulletin, threatened employees that
they would be discharged if they engaged in a strike.
However, I credit the Respondent's witnesses as to what
Cornwell said and did and the wording of the bulletin.
The General Counsel's witnesses did not appear to me to
be entirely candid in their insistence that Cornwell told
them that they would be "terminated" if they joined the
strike, that the posted bulletin also used that word, and
that they had never seen a bulletin with the text quoted
above prior to the investigation of the instant charge. In
contrast, the individuals who testified on behalf of the
Respondent impressed me as testifying forthrightly and
exhibiting accurate recollection. Accordingly, I find that
Cornwell read the bulletin quoted above to the employ-
ees and that he did not tell them that they would be ter-
minated for striking. I shall therefore recommend that
this allegation of the complaint be dismissed.6
C The Respondent 's Proposal on Reinstatement of
Strikers
1. Facts
The strike began on August 16. On August 19 the Re-
spondent sent the employees a letter, over the signature
of Tommy Flanagan, its chairman of the board, advising
them that the Respondent would implement its final offer
to the Union on August 21 and would also begin hiring
permanent replacements. This final offer provides, in sec-
tion 9.8, that "The recall rights of employees on layoff
status are superior to reinstatement rights of strikers,"
and that laid-off employees must notify the Respondent
by certified mail every 90 days of their desire to be re-
called and "their willingness and ability to timely report
for work upon recall without delay." Section 9 4(c) pro-
vides that an employee's seniority is terminated by "Fail-
ure to comply with Section 9.8 of this Article or [a]
layoff in excess of six (6) months or [a] layoff beyond the
length of service whichever is less."
The strike ended on August 25 when the strikers made
an unconditional offer to return to work. However, by
that time an unspecified number of replacements had
been hired. It is not clear how many of the former strik-
5 Mabes and Vinyard were not asked to identify any specific document
as that which was read and posted, and, as noted above, Mamary was not
present in the conference room when Cornwell read the bulletin Howev-
er, Mamary did identify the bulletin quoted above as that which he later
saw posted on a wall near the conference room The General Counsel's
witnesses all testified that they had not seen the above-quoted language
prior to the investigation of the instant charge
6 There is no contention that the bulletin as quoted above was coer-
cive
GASO PUMPS
ers were still unreinstated as of the date of the instant
hearing.
On August 29 the Respondent proposed a strike settle-
ment which provided, in pertinent part, that "Unreinstat-
ed strikers (with reinstatement consideration rights) will
be governed by Sections 9 4(c) and 9.8" of the Respond-
ent's final offer, which had been implemented August 21.
Thus, as Cornwell advised the employees by letter dated
September 7, "you now have reinstatement consideration
rights for six months following the day the strike ended
on August 25, 1983." The strike settlement offer was not
accepted by the Union, but the parties are in agreement
that there was bargaining to impasse on the issue of the
period of time for which the preferential hiring list
would be maintained.
2. Analysis and conclusions
The General Counsel contends that the Respondent
could not lawfully terminate the strikers' reinstatement
rights, even after bargaining to impasse on the issue.7
The Respondent contends, however, that these rights are
a mandatory subject of bargaining and that once it bar-
gained to impasse about the matter it was entitled to im-
plement its proposal.
There is, of course, no question that the Respondent
was within its rights in hiring replacements in order to
continue operations and, as there is no contention that
the strike which began August 16 was an economic
rather than an unfair labor practice strike, the Respond-
ent was privileged to consider the replacements as per-
manent . However, it is also clear that the strikers re-
tained their status as employees within the meaning of
the Act throughout the strike and, in consequence, once
they made an unconditional offer to return to work, they
were entitled to an offer of reinstatement if they had not
been permanently replaced and that the right to rein-
statement could be defeated only by a showing of "legiti-
mate and substantial business justifications."8
In 1949, in its decision in Tidewater Associated Oil Co.,
85 NLRB 1096, the Board stated its reluctance "to de-
prive employees of any of the rights guaranteed them by
the Act in the absence of a clear and unmistakable show-
ing of a waiver of such rights."9 The case involved the
issue of whether a management rights' clause privileged
the employer's refusal to bargain over pensions. Howev-
er, the Board's requirement that a waiver of employees'
rights be "clear and unmistakable" was not limited to
bargaining rights but applied to any of the rights guaran-
teed by the Act.
There is no question that some of the rights which
arise under the Act may be waived by employees' bar-
gaining agents . Thus, for example, it has long been held
that a representative may waive the right to engage in an
economic strike. 10 However, although certain statutory
7 The case was not litigated on the theory that the Respondent unlaw-
fully gave laid-off employees greater reinstatement rights than former
economic strikers, nor is there any evidence that laid-off employees were
in fact recalled in preference to former strikers
8 NLRB v Fleetwood Trailer Co, 389 US 375, 381 (1967), Laidlaw
Corp, 171 NLRB 1366 (1968)
9 85 NLRB at 1098
10 Dorsey Trailers, 80 NLRB 478, 480 (1948)
535
rights may be waived by the bargaining representative,
an employer nonetheless is not entitled to insist to im-
passe that the union do so Thus, for example, an em-
ployer may lawfully propose that as part of the overall
agreement the union withdraw unfair labor practice
charges, but may not condition execution of a collective-
bargaining agreement on such a waiver. i i
Other Section 7 rights are not subject to waiver by the
bargaining representative. Thus, for example, the Su-
preme Court held that no-distribution clauses which
unduly inhibit employees in the exercise of their basic
Section 7 rights may not lawfully be included in collec-
tive-bargaining agreements. 12
It is clear from Fleetwood and Laidlaw, both supra, that
the right of replaced economic strikers to be placed on a
preferential hiring list once they have made an uncondi-
tional offer to return to work is a basic right guaranteed
by Section 7 of the Act. It is not so clear, however,
under what circumstances that right can be limited by an
agreement between the employer and the strikers' bar-
gaining representative. In United Aircraft Corp. (Pratt &
Whitney Division), 192 NLRB 382, 387-388 (1971), a
strike settlement agreement gave economic strikers pref-
erential rights to be hired for a period limited to 4-1/2
months after termination of the strike. The Board held
that the "public policy . embodied in the Act . . .
favors enforcement of voluntary agreements settling
strikes," and that, therefore, employers and unions may
enter into agreements which provide to former strikers
less than the full range of rights specified in Fleetwood
and Laidlaw. However, the parties had entered into the
strike settlement agreement in 1960 and Laidlaw was not
decided until 1968, the Board found that at the time of
the agreement the parties could reasonably have under-
stood the rule to be that an economic striker's right to
reinstatement was dependent on whether a vacancy exist-
ed as of the time he offered to return, and that the em-
ployer was not obligated to place strikers' names on a
preferential hiring list. Accordingly, the Board found
that the agreement gave strikers preferential hiring rights
greater than those required under that view of the law,
and to some extent relied on this finding in concluding
that the parties' agreement should be honored. 13
In the instant case the issue is not whether an agree-
ment between the Union and the Respondent should be
honored, but whether the Respondent was entitled to
insist to impasse on a limitation of the strikers' rights to
be placed on a preferential hiring list. Neither the parties'
briefs nor my own research has disclosed any cases di-
rectly on point with respect to this issue. However, vari-
ous Board and court decisions do offer some guidance.
Thus, for example, in American Cyanamid Co., 235
NLRB 1316 (1978), the respondent insisted, as a condi-
11 Laredo Packing Co, 254 NLRB 1, 19 (1981)
12 NLRB v Magnavox Co of Tennesssee, 415 U S 322, 325 (1974) See
also General Motors Corp, 211 NLRB 986 (1974)
13 The United States Court of Appeals for the Second Circuit enforced
the Board's Order with respect to this aspect of the case, but did not pass
on the waiver issue, finding that Fleetwood and Laidlaw did not apply ret-
roactively to 1960 Machinists Lodges 743 & 1746 v United Aircraft Corp,
534 F 2d 422, 451 (2d Cir 1975) See also the Board's decision on
remand, 247 NLRB 1042 (1980)
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of reinstating unfair labor practice strikers who had
made an unconditional offer to return, that the union
agree to a strike settlement agreement which would
waive certain statutory rights, including some bargaining
rights and the employees' rights to redress under the
Act. The administrative law judge, affirmed by the
Board, found that by this insistence the respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act 14 Similarly,
in Interstate Paper Supply Co., 251 NLRB 1423 (1980),
the respondent insisted during contract negotiations on a
proposal that strikers would not accrue seniority for the
period they were on strike The Board found this insist-
ence unlawful, on grounds that, inasmuch as the seniority
of nonstrikers would consequently increase relative to
that of the strikers, the latter would be more vulnerable
to layoff or discharge due to a reduction in force, and
would thus be "penalized for their strike activity in a
manner which could affect their tenure of employ-
ment."15 The Board further found that no showing of
antiunion motivation was required as a prerequisite to a
finding that the Respondent's conduct was unlawful, on
grounds that implementation of the "proposal would be
inherently destructive of important employee rights due
to the potential impact such a plan would have on the
tenure of the strikers' employment relationship with Re-
spondent," 16 citing NLRB v. Great Dane Trailers, 388
U.S. 26 (1967). Accordingly, the Board found that imple-
mentation of the respondent's proposal would have vio-
lated Section 8(a)(3) of the Act, and insisting on such a
proposal violated Section 8(a)(5) and (1) of the Act.17
I view American Cyanamid and Interstate Paper as
standing for the proposition that a party is not entitled to
bargain to impasse on proposals to limit rights of former
strikers in matters connected with their employment. Al-
though these cases do not specifically deal with a limita-
tion on the length of time former economic strikers are
entitled to remain on a preferential hiring list, the same
principle would seem to be applicable to the issue in the
instant case, for it is obvious that such a limitation would
have a substantial impact on the tenure of the strikers'
employment relationship
This view is further supported by Brooks Research &
Mfg., 202 NLRB 634 (1973) In that case, the respondent
unilaterally decided that the preferential hiring list would
be maintained for 1 year following the former strikers'
applications for reinstatement. The Board rejected the re-
spondent's contention that a time limit should be placed
on the strikers' reinstatement rights, finding that such a
limitation was contrary to the principles of Fleetwood and
Laidlaw. The Board further distinguished United Aircraft,
supra, cited by the Respondent, on grounds that in the
latter case the parties had reached agreement concerning
14 233 NLRB at 1324-25
11 251 NLRB at 1424
18 Ibid
17 Cf Gehnrich & Gehnrich, 258 NLRB 528 (1981), in which the Board
found that the respondent did not act unlawfully in proposing that strik-
ers not accrue seniority for the period they were on strike or receive
wage increases granted to nonstriking employees during that period, on
grounds that the respondent did not insist on either proposal and, indeed,
subsequently withdrew them In the instant case, of course, the Respond-
ent insisted to impasse on the limitation it had proposed on the strikers'
rights to reinstatement
the duration of the strikers' recall rights 18 I note, as the
Respondent points out, that in Brooks the Board found
that the respondent violated Section 8(a)(5) of the Act
by failing to bargain before deciding to limit the rein-
statement rights of the former strikers, whereas in the in-
stant case the Respondent and the Union bargained to
impasse on the issue. However, I also note that in Brooks
the Board did not indicate that the respondent was enti-
tled to bargain to impasse, but only that, while the termi-
nation of the hiring list violated Section 8(a)(1) and (3)
the failure to bargain before taking the action additional-
ly violated Section 8(a)(1) and (5).19
On the basis of the foregoing, I conclude that the Re-
spondent has not shown the "legitimate and substantial
business justifications" required by Fleetwood for limiting
the strikers' rights to reinstatement and that it was not
entitled to bargain to impasse over its proposal to limit
these rights. Accordingly, I conclude that by limiting the
strikers' preferential hiring rights to 6 months the Re-
spondent violated Section 8(a)(1) and (3) of the Act and
by insisting to impasse on imposing this limitation the
Respondent violated Section 8(a)(5) and (1) of the Act.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1 Gaso Pumps, Inc, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees includ-
ing stockroom, inspectors, shipping and/or receiving
clerks, working foremen and group leaders and janitorial
employees, excluding all office and clerical employees,
engineering department members, manager, superintend-
ent, and all other supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act
4. The Union has, since at least August 16, 1951, been
the representative for the purposes of collective bargain-
ing of the employees in the unit described above.
5. By limiting the rights of economic strikers (who
have made an unconditional offer to return to work) to
be placed on a preferential hiring list for 6 months the
Respondent has engaged in unfair labor practices within
the meaning of Sections 8(a)(1) and (3) and 2(6) and (7)
of the Act
6. By insisting to impasse on its proposal to limit the
reinstatement rights of economic strikers who have made
an unconditional offer to return to work the Respondent
18 202 NLRB at 637
19 A finding that an employer violates Sec 8(a)(5) by failing to bargain
over an action does not suggest that the action would have been lawful
had there been bargaining In Aero-Motive Mfg Co, 195 NLRB 790
(1972), the Board found that the respondent violated Sec 8(a)(1) and (3)
of the Act by paying a bonus to employees who crossed the picket line
during a strike, and further found that even though the bonus was unlaw-
ful the respondent was nonetheless obligated to bargain about giving it
GASO PUMPS
has engaged in unfair labor practices within the meaning
of Sections 8(a)(5) and ( 1) and 2(6) and (7) of the Act.
7 A preponderance of the credible evidence does not
establish that the Respondent has otherwise violated the
Act
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action, including the posting of the customary
notice, designed to effectuate the purposes of the Act.
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act by imposing limitations on the
length of time former strikers would remain on a prefer-
ential hiring list, I shall recommend that the Respondent
be ordered to rescind that limitation and to reinstitute a
proper preferential hiring list. I shall further recommend
that, in accord with the principles of Fleetwood and Laid-
law, as vacancies occur, whether due to the departure of
employees, increases in the work force, or otherwise, the
Respondent be ordered to offer those positions to the
former strikers qualified for reinstatement unless they
have obtained other regular and substantially equivalent
employment. If there are any former strikers who would
have been recalled but for the Respondent's unlawful ter-
mination of the preferential hiring list, I shall recommend
that they be reinstated to the positions in which they
would have been placed had they been recalled, without
prejudice to their seniority or other rights and privileges,
and made whole for any loss of earnings they may have
suffered by reason of the discriminatory failure to rein-
state them, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950). Interest is to be added to the amount
of backpay and is to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).20
Having found that the Respondent unlawfully bar-
gained to impasse over its proposal to limit the reinstate-
ment rights of the former strikers, I shall recommend
that it be ordered to cease and desist from such conduct
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Gaso Pumps, Inc., Tulsa, Oklahoma,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating the preferential hiring rights of former
economic strikers who have unconditionally applied for
reinstatement.
(b) Bargaining to impasse over a proposal to limit the
preferential hiring rights of former strikers who have un-
conditionally applied for reinstatement.
20 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
537
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Rescind its termination of the preferential hiring
rights of former economic strikers who have uncondi-
tionally applied for reinstatement and reinstitute and
abide by a preferential hiring list.
(b) Offer immediate and full reinstatement with back-
pay as set forth in the section of this Decision entitled
"The Remedy" to any former striker who would have
been recalled but for the Respondent's unlawful conduct.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Tulsa, Oklahoma facility and mail to
each of the unreinstated strikers copies of the attached
notice marked "Appendix "22 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent's authorized repre-
sentative, 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 materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
22 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 unlawfully terminate the preferential
hiring rights of former economic strikers who have un-
conditionally applied for reinstatement.
WE WILL NOT bargain to impasse with International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, over a pro-
posal to limit the preferential hiring rights of former
strikers who have unconditionally applied for reinstate-
ment.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT In any like or related manner interfere WE WILL offer immediate and full reinstatement with
with , restrain , or coerce you in the exercise of the rights backpay plus interest to any former striker who would
guaranteed you by Section 7 of the Act. have been recalled but for our unlawful conduct
WE WILL rescind our termination of the preferential
hiring rights of former economic strikers who have un- GASO PUMPS, INC
conditionally applied for reinstatement and reinstitute
and abide by a preferential hiring list.