Giddings & Lewis, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1981

257 N.L.R.B. 843 (N.L.R.B. 1981)

GIDDINGS & LEWIS, INC.
Giddings & Lewis, Inc. and District No. 10, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 30-CA-6062
August 19, 1981
ORDER DENYING MOTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 21, 1980, the Regional Director
for Region 30 of the National Labor Relations
Board issued a complaint and notice of hearing in
the above-entitled proceeding, alleging that Re-
spondent has engaged in and is engaging in certain
unfair labor practices affecting commerce within
the meaning of Section 8(a)(l) and (3) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Subsequently, Respondent filed an
answer admitting in part, and denying in part, the
allegations of the complaint.
On March 31, 1981, the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached. Thereafter, on April 15, 1981, the Board
issued an order transferring the proceeding to it
and a Notice To Show Cause why the General
Counsel's motion should not be granted. Thereaf-
ter, Respondent filed a memorandum in opposition
to the Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The General Counsel asserts in its motion that
Respondent violated Section 8(a)(3) and (1) of the
Act by imposing restrictions upon the recall rights
of former economic strikers who unconditionally
offered to return to work. The General Counsel as-
serts that on or about November 19, 1976, the
Union, representing John E. Ferguson and other
employees of Respondent who had been engaged
in an economic strike, made an unconditional offer
for them to return to work. Respondent thereafter
established a preferential hiring list and procedure
for recalling strikers who had been replaced during
the strike. By certified letter of February 9, 1979,
Respondent notified Ferguson that his name would
be removed from the preferential hiring list unless
he informed Respondent by March 12, 1979, of his
desire to remain on the list. By letter of March 5,
1979, Ferguson informed Respondent that he
wished to remain on the list. Respondent acknowl-
edged receipt of Ferguson's letter on March 7,
257 NLRB No. 130
1979. In this same communication, Respondent in-
structed Ferguson that he must again notify Re-
spondent of his continued interest in remaining on
the list during August 1979, or face removal from
the list as of September. Ferguson complied with
the August notification requirement. Subsequently,
Respondent informed Ferguson that his name
would be deleted from the list on March 1, 1980,
unless he again notified Respondent during Febru-
ary 1980 that he wished to remain on the list. Fer-
guson again submitted a timely renewal of his con-
tinuing interest in reinstatement. Thereupon, he
was told that he must repeat this procedure during
August 1980. Ferguson failed to provide this notice
and, on September 10, 1980, Respondent notified
him that his name had been removed from the pref-
erential hiring list. The Union filed the charge in
this case on September 24 and on November 21,
1980, the Regional Director for Region 30 issued a
complaint alleging that Respondent imposed these
notification requirements on Ferguson because of
his union and concerted activities. The General
Counsel contends that under the principles enunci-
ated in The Laidlaw Corporation, 171 NLRB 1366
(1968), and reaffirmed in Vitronic Division of Penn
Corporation, 239 NLRB 45 (1978), Respondent has
unlawfully infringed upon Ferguson's right to be
offered the opportunity to fill job vacancies follow-
ing his post-strike unconditional offer to return to
work.
In its answer to the complaint and in its memo-
randum in opposition to the General Counsel's
motion, Respondent admitted that it established the
above-described system for keeping its preferential
hiring list current and that it removed Ferguson
from the list after he failed to express interest in re-
instatement during August 1980. However, Re-
spondent denies that it thereby violated the Act,
and asserts that this procedure constitutes a reason-
able administrative approach to maintaining an ac-
curate and useful recall list. Respondent argues that
the language of Brooks Research & Manufacturing,
Inc., 202 NLRB 634 (1973), and American Machin-
ery Corporation v. N.L.R.B., 424 F.2d 1321 (5th
Cir. 1970), specifically permit an employer to
impose reasonable notification requirements upon
unreinstated former strikers desiring reinstatement.
Respondent contends that the General Counsel's
motion should be denied and that a hearing should
be held to permit Respondent to present evidence
that its procedure was justified by legitimate busi-
ness interests and was in no way designed to dis-
criminate unlawfully against employees. The
Board, having duly considered the matter, is of the
opinion that there are substantial and material
issues of fact and law which may best be resolved
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at a hearing before an administrative law judge.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment be, and it hereby
is, denied.
It is further ordered that the proceeding be, and
it hereby is, remanded to the Regional Director for
Region 30 for the purpose of arranging such hear-
ing and that such Regional Director be, and he
hereby is, authorized to issue notice thereof.
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