Hydrologics, Inc.

National Labor Relations Board - Board Decisions

May 17, 1989

293 N.L.R.B. 1060 (N.L.R.B. 1989)

1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hydrologics , Inc and International Brotherhood of
Electrical Workers, Local Union No 1823
Case 27-CA-7327
May 17, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On August 24, 1982, Administrative Law Judge
Russell L Stevens issued the attached decision
The General Counsel, the Charging Party, and the
Respondent' filed exceptions and supporting briefs,
the General Counsel and the Respondent filed an
swering briefs, and the General Counsel filed a
motion to strike a portion of the Respondent's
brief 2
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
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,3 and
conclusions only to the extent consistent with this
Decision and Order
We begin with a brief summary of the relevant
facts The Respondent manufactures and sells elec-
trical products in Denver, Colorado International
Brotherhood of Electrical Workers, Local Union
No 1823 is the exclusive representative of the Re
spondent's production and maintenance employ-
ees 4 The most recent collective -bargaining agree
i The Respondent has requested oral argument This request is denied
as the record the exceptions and the briefs adequately present the issues
and the positions of the parties
2 The General Counsel moved to strike that portion of the Respond
ent s reply brief which disparaged the General Counsel s characterization
of Hearst Corp 161 NLRB 1405 (1966) We deny the motion to strike as
an inappropriate means of taking issue with opposing counsel s character
ization of an argument In any event the Board draws its own conclu
lions as to the significance of any cited case
3 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The judge found that the Respondent violated Sec 8 (a)(5) and (1) by
failing to remit to the Union dues deducted from employee paychecks
from April 1 to May 13 1981 We agree However we do not adopt sec
III C and Conclusion of Law 5 of the judge s decision Although the Re
spondent clearly had a general obligation to recognize and bargain with
the Union in view of our finding below the Respondent was not re
quired to bargain over existing contract terms except those covered by
the wage reopener clause
4 The bargaining unit is
All production and maintenance employees employed by the Re
spondent at its Denver Colorado plant but excluding office clerical
employees and all guards professional employees and supervisors as
defined in the Act
ment between the Respondent and the Union cov
ered the period of May 1, 1980, to May 1, 1982,
and contained grievance/arbitration,5 no-strike 6
and wage reopener provisions 7 According to
Dennis Thuis, the Union's business manager, whose
testimony was credited by the judge, the Respond-
ent and the Union never discussed, nor negotiated
about, whether the no strike or the arbitration pro-
visions applied to the wage reopener clause
By letter dated February 23, 1981,8 the Union
requested wage negotiations pursuant to the wage
reopener provision of the contract The parties ne
gotiations commenced on March 26 On March 31,
the Union filed the appropriate notice required by
Section 8(d)(3) of the Act On May 8 the Respond
ent stood firm on its final proposal calling for an
approximate 5-percent wage increase This propos-
al was subsequently rejected by the Union, and the
employees went out on strike on May I 1 until May
21
By its telegrams to the Union dated May 13 and
20, which are set forth in the judge's decision, the
Respondent clearly stated that, in view of the
strike which it considered to be a breach of the
contractual no strike provision, it had rescinded the
entire contract Shortly thereafter, the Respondent
stopped enforcing the union-security clause and no
longer withheld and transmitted to the Union dues
from employee paychecks as required by the
checkoff provision The last month for the Union
to receive dues from the Respondent was March
On May 20 the Union notified the Respondent
that the day before the employees had voted to
accept the Respondents May 8 wage proposal and
to return to work The next day the strikers re
turned to the plant and renewed their uncondition-
6 Arts 6 and 7 of the contract detail a three step grievance procedure
with final and binding arbitration as the last step Neither article refers to
the no strike clause of the contract or to the wage reopener provision
8 Art 4 sec 2 of the contract provides
During the life of this Agreement the Union agrees that there shall
be no strike slowdown or stay in work stoppage or any other strike
and the Company agrees that there shall be no lockout of employees
It is understood and agreed that this Article shall not apply in the
event of the Company s failure to apply an arbitration award
Art 21 of the contract provides in pertinent part
TERM OF AGREEMENT This Agreement shall be effective from
the first ( 1st) day of May 1980 and shall remain in full force and
effect until the first ( 1st) day of May 1982 and shall be automatically
renewed from year to year thereafter unless terminated changed or
opended [sic] for wages pursuant to the following conditions
(1) If either party elects to terminate
(2) If either party elects to change any provision of the Agreement
(3) Notwithstanding the above either party may open the Agree
ment for changes in the Hourly Rates of Pay only by giving written
notice to the other party of such intention no less than sixty (60)
days nor more that seventy five (75) days prior to May 1 1981
Any changes in such hourly rates of pay shall not be effective prior
to May 1 1981
8 All dates are in 1981 unless otherwise indicated
293 NLRB No 129
HYDROLOGICS INC 1061
al offer to return to work The strikers were not
recalled to work that day Between May 28 and
July 1 the Respondent recalled six strikers-Mi-
chael Brueggeman (May 28),9 Robin Burbank
(May 29), Timothy Ozbun (June 3), Keith Motzner
(June 8), Deborah Lewis (June 8), and Rockie
Thielman (July 1)-and on May 29 extended recall
offers to strikers Everett Champion, Rodney La-
curen, and Gary M Stephenson, but they did not
return to work 10 As of the hearing date, the Re
spondent had not extended a recall offer to strikers
Betty Norman and Candace Vanderwater
After the strike began, the Respondent hired the
following striker replacements on May 12, Mitzi
Byler, John S Martin, and Greg Stephens, on May
13 and 18, respectively, Mikel Louisone and Mi-
chael Gray, on May 19, Tracy Barlow, Wm S
Degenhart, and Montgomery England, and on May
20, June 17, 25, and 29, and July 2, respectively,
Joseph Broughton, Tony Hanneman, Tony Uba,
Patrick McCartney, and Timothy Martin Accord-
ing to the testimony of Robert Greer, the Respond-
ent's vice president and general manager, the Re-
spondent implemented its May 8 wage offer to the
Union and hired the replacements at a 5 percent in-
crease over the old contractual wage rate
The judge found that the May 11 strike was un
protected and that the Respondent was permitted
to rescind the contract on May 13 and make cer-
tain unilateral changes in the contract's union-secu-
rity and checkoff provisions For the reasons dis-
cussed below, we reverse the judge and find that
the Respondent violated Section 8(a)(5) and (1) of
the Act as alleged in the amended complaint
Although he found that the sympathy strike
cases involving no strike clauses are distinguishable
from the instant one the judge applied the analysis
used in those cases," and found that the broadly
worded no strike clause here covered the reopener
strike in the absence of any extrinsic evidence that
would explain, modify, or negate the language of
9 The judge found and we agree that Brueggeman was a supervisor
within the meaning of the Act at all times after his recall to work on
May 28
to The record reflects that Champion declined the offer that the mail
offer to Lacuren was returned and that there was no response to the
offer to Stephenson
I I Subsequent to the judge s decision the Board in Indianapolis Power
Co 291 NLRB 1039 (1988) found that a broad no strike clause encom
passes sympathy strikes unless the contract as a whole or extrinsic evi
dence demonstrates that the parties intended otherwise We do not con
seder the Board s analysis used in Indianapolis Power with respect to sym
pathy strikes applicable to reopener strikes In this regard we note that
the setting for a reopener strike is quite different because inter aha the
reopener strike is in response to unsuccessful bargaining over a contract
that has terminated with respect to provisions that are covered by the
reopener clause whereas a sympathy strike pertains to matters outside
the contract the terms of which are fully in effect As may be self evi
dent and as noted below whether the contract is in effect is a distinction
of critical significance in assessing the applicability of a no strike clause
the wage reopener and no-strike provisions Criti
cal to the judge's finding was his initial rejection of
NLRB v Lion Oil C o, 352 U S 282 (1957),12 as
providing any guidance for deciding the issue pre-
sented here We find that the judge's analysis in
correctly minimizes the significance of the Su-
preme Court's teachings in Lion Oil and, as a
result, is not consistent with the policies underlying
Section 8(d) of the Act
We initially observe that in Lion Oil the Court
held that the Act does not prohibit reopener strikes
as long as the procedural requirements of Section
8(d) are met In reaching this result, the Court con
sidered the purposes of the Act and observed that
"[u]nions would be wary of entering" into long
term collective bargaining agreements with reopen-
er clauses if unions could not strike during the con-
tract term even though there was no express
waiver of the right to strike concerning reopened
provisions Lion Oil, 352 US at 289 Equally im-
portant for our purposes here is the Court's reason
ing that reopener strikes must have been envisioned
by Congress when it contemplated a duty to bar
gain under Section 8(d) during such reopener pert
ods because it would be "anomalous" to recognize
such a duty, but deprive unions of the strike
threat which, together with `the occasional strike
itself, is the force depended upon to facilitate arriv-
ing at satisfactory settlements "' Lion Oil, 352 US
at 291 (footnote omitted)
Most significantly, we believe that underlying
the Court's reasoning in Lion Oil is, necessarily, a
conclusion by the Court that the Act and its legis
lative history may be read as placing reopener bar-
gaining and bargaining when no contract is in
effect on equal footing with respect to the avail-
ability of economic weapons In fact, the Court
construed the term "expiration date" in Sections
8(d)(1) and 8(d)(4) as applying both to the date set
for expiration of a fixed-term contract and to the
date on which a clause providing for reopening is
invoked Lion Oil, 352 U S at 290 In this regard,
although the Court noted that Congress through
Section 8(d) imposed certain additional require
ments on the parties in the reopener situation, in-
cluding a 60-day waiting period before they may
resort to a strike or a lockout, the Court did not
intimate that these additional requirements affected
the parties' use of economic weapons after the stat
12 In Lion Oil the union timely invoked a contractual provision to
reopen and negotiate changes in the contract When those negotiations
proved unsuccessful an employee strike began and the employer subse
quently discharged the strikers The Board found that the strike was not
in breach of the contract and the employer s discharge of the strikers was
unlawful The Court upheld the Board s determination that the reopener
strike was protected
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
utory 60-day period had expired and instead found,
as noted, that the right to strike in one situation
parallels that in the other except for the few dis-
tinct requirements specified in Section 8(d) Like
wise, we see no basis in the policies of the Act for
not permitting a strike, lockout, or implementation
of proposals concerning which a good-faith im-
passe has been reached after the statutory 60 day
period has expired 13
Turning to the question of the intent of parties
who include both reopener and broad no-strike
clauses in their collective-bargaining agreements,
we start with the premise that a no-strike clause
generally applies only during the term of the con
tract Given this premise, and the longstanding pre-
cepts of Lion Oil set forth above, force of logic
leads us to conclude that in the absence of lan-
guage that the parties intend to include reopener
strikes within their no-strike clause, parties intend
to have the same economic weapons available in
the reopener context as are available at the termi-
nation of their contract, at least with respect to
proposals encompassed within the reopening This
is so because, inter alia, during a reopening, a con-
tract, at least as to reopened provisions, has been
effectively terminated for a certain period In this
regard, we stress that absent a reopener provision,
Section 8(d) does not impose on the parties a bar
gaining obligation when they make or receive pro-
posals seeking midterm contract modifications,14
rather it prevents the employer from implementing
a midterm contract modification without the con
sent of the union 15 On the other hand, an agreed-
upon reopener provision represents the parties
choice of flexibility over stability in terms of those
contract provisions covered by the reopener It fol-
lows then that the parties must intend, unless they
clearly indicate to the contrary, that reopener bar-
gaining contemplates the potential use of economic
weapons To find otherwise would mean that a re-
opener clause only entitles the parties to do what
they could have done even in its absence, i e , one
party can request a change and the other party can
refuse to discuss or agree to the change Thus,
from a practical standpoint, without the ability to
13 In Speedrack, Inc 293 NLRB 1054 (1989) the Board considered the
related question of whether following an impasse in negotiations held
under a wage reopener clause an employer may implement its wage pro
posals Following the reasoning of Lion Oil supra and consistent with
the underlying purposes of Sec 8(d) the Board found that the implemen
tation was lawful where all procedural requirements of Sec 8(d) had
been satisfied
14 See Connecticut Power Co 271 NLRB 766 (1984)
15 See Allied Chemical Workers Local I v Pittsburgh Plate Glass 404
US 157 159 in 2 185-187 ( 1971) citing with approval NLRB Y Scam
Instrument Corp 394 F 2d 884 887 (7th Cir 1968) cert denied 393 U S
980 (1968) Oak Cliff Go/man Baking Co 207 NLRB 1063 1064 (1973)
enfd mem 505 F 2d 1302 (5th Cir 1974) cent denied 423 US 826
(1975)
resort to economc weapons, negotiations pursuant
to a reopener provision would not differ in any ma-
terial way from negotiations to modify the agree
ment during its term when the contract does not
include a reopener provision
In focusing on the parties' ability to resort to
economic weapons during reopener bargaining, we
recognize that the parties could agree to limit their
use of economic weapons Clearly, such an agree
ment would be controlling But, we reject the
notion that a broadly worded no strike clause,
which does not address the reopener situation, but
rather speaks in terms of what is to happen while
the contract is in effect, applies to subjects on
which the contract is, at least for a certain period,
effectively terminated As we stated in the compan-
ion case Speedrack Inc, 293 NLRB 1054, 1055-
1056
[I]n cases involving terminated contract provi
sions-whether terminated through a reopener
or terminated through the expiration of a con
tract-we will assume, in the absence of evi
dence of a contrary intent, that the parties in-
tended to reserve to themselves the freedom of
action that is a normal part of the collective
bargaining process when contractual provi-
sions governing the matters on the bargaining
table are not in effect
We now apply these principles to the facts in the
present case The Union's written notices of Febru-
ary 23 and March 31 clearly satisfied the require
ments of Section 8(d), and the May 11 strike was
commenced more than 60 days after notice to the
Respondent as set forth in Section 8(d)(4) Thus,
the Union was entitled to strike on May 11, absent
a clear indication by the parties to the contrary
We find no evidence of a contrary intent here The
reopener provision simply indicates which contract
provisions may be reopened, who may reopen
them, and when and how notice of an intent to
reopen is to be given Furthermore, based on the
credited testimony, the Respondent and the Union
never discussed nor negotiated about whether the
no-strike provision applied to the wage reopener
clause We note further that the one specific excep
tion listed in the no strike clause excepts strikes in
response to a refusal to arbitrate that tends to sug
gest a linkage between the parties' broad prohibi
tion against strikes and arbitrable disputes 16 Addi-
tionally, the no-strike clause was placed in a con-
tract article labeled "Union Company Relations"
following a section that delineates the parties'
15 None of the parties contends that the wage reopener clause is sub
ject to the contractual grievance and arbitration provisions
HYDROLOGICS INC
intent to have employee grievances settled by the
contractual grievance procedure In this context,
we can find nothing in the record either intrinsic
or extrinsic to the contract that indicates any inten-
tion by the parties to include strikes concerning re-
opener provisions within the ambit of the no-strike
clause
Accordingly, we find that the May 11 strike was
protected and that the Respondent unlawfully re-
scinded and repudiated the 1980-1982 contract
with the Union on May 13 Consequently, we fur-
ther find the Respondent violated Section 8(a)(5)
and (1) when it unilaterally changed the terms and
conditions of the contract by failing to enforce the
union-security clause and to withhold and transmit
to the Union dues from employee paychecks on or
after May 13
The amended complaint also alleged that the
Union's communication of May 20 constituted a
valid acceptance of the Respondent's outstanding
wage offer and that the Respondent unlawfully
failed and refused to execute a supplemental agree
ment, which reflected that a final agreement on
wage rates had been reached In view of his con
clusion on the no strike issue , the judge did not
specifically pass on this 8(a)(5) allegation
It is well established that a contract offer re-
mains on the bargaining table unless explicitly
withdrawn by the offeror or unless circumstances
arise that would lead the parties reasonably to be
lieve that the offer had been withdrawn 17
A complete package proposal made on
behalf of either party through negotiations re-
mains viable, and upon acceptance in toto must
be executed as part of the statutory duty to
bargain in good faith, unless expressly with-
drawn prior to such acceptance, or defeased
by an event upon which the offer was express-
ly made contingent at a time prior to accept
ance [footnote omitted]
Phelps Dodge Brass Co, 272 NLRB 361, 363-364
(1984), quoting Pepsi Cola Bottling Co, 251 NLRB
187, 189 (1980)
We find, in agreement with the General Coun-
sel's position, that a supplemental wage agreement
with the Union was reached on May 20 when the
Union notified the Respondent that it had accepted
the May 8 proposal Accordingly, we find that the
Respondent violated Section 8(a)(5) and ( 1) as al-
leged
In view of his conclusion on the no-strike clause
issue , the judge also found that the May 11 strike
was an economic strike and that the Respondent
17 See e g Belcon Inc 257 NLRB 1341 (1981)
1063
violated Section 8(a)(3) and (1) when it failed to re-
instate former strikers Roche Thielman, Betty
Norman, and Candace Vanderwater The judge
found that the seniority provisions of the 1980-
1982 contract survived the Respondent's rescission
of the contract and that the Respondent's failure to
recall these three employees by seniority violated
Section 8(a)(3) and (1) The General Counsel ex-
cepts and contends that what began as an economic
strike on May 11 was converted by the Respond-
ent's unfair labor practices to an unfair labor prac-
tice strike on May 13, the date of the Respondent's
first telegram
We find meet in the General Counsel's excep-
tion Here, the Respondent's May 13 telegram ad-
vised the Union that, because of the strike, "condi-
tions of employment" other than those covered by
the reopener would have to be negotiated "before
a settlement may be resolved " Through this
unlawful rescission and repudiation of the entire
1980 collective-bargaining agreement, the Respond-
ent unlawfully broadened the areas of dispute and
thus impeded any possibility of an early settlement
of the parties' differences Accordingly, we find
that the strike was converted to an unfair labor
practice strike on May 13 See, e g, NLRB v Blu
Fountain Manor, 785 F 2d 195, 203-204 (7th Cir
1986), NLRB v Charles D Bonnano Linen Services,
782 F 2d 7, 10 (1st Cir 1986), cf C-Line Express,
292 NLRB 638 (1989)
The strikers, therefore, were entitled, on their
unconditional offer to return to work on May 20,
to immediate reinstatement unless they had been
permanently replaced prior to the conversion of
the strike on May 13 It is well established that if
there are insufficient positions for all the unfair
labor practice strikers, the available positions shall
be distributed among them in accordance with
their seniority or by any other nondiscriminatory
standard See Charles D Bonanno Linen Service,
268 NLRB 552 (1984), enfd 782 F 2d 7 (1st Cir
1986) As previously noted, however, the Respond
ent did not reinstate any of the strikers until May
28 nor discharge any of the replacements hired on
or after May 13 to make room for the strikers Ac-
cordingly, the Respondent violated Section 8(a)(3)
and (1) of the Act 18
18 As is our normal practice we shall leave to the compliance stage of
the proceeding a determination whether strikers Norman and Vander
water should have already been recalled whether strikers Brueggeman
Burbank Ozbun Motzner Lewis and Thielman were properly recalled
whether the recall rights of strikers Lacuren and Stephenson still exist
and whether in view of striker Champions rejection of a recall offer of
May 29 his backpay remedy should extend beyond that date In view of
Brueggeman s acceptance of a supervisory position on May 28 we find
that his backpay remedy does not extend beyond that date
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Delete the judge's Conclusions of Law 5, 6, 7,
and 8 and add the following
"5 By failing and refusing to execute a wage
agreement supplemental to its 1980 collective-bar
gaining agreement with the Union, which was
reached on May 20, 1981, the Respondent violated
Section 8(a)(5) and (1) of the Act
"6 By rescinding and repudiating its 1980 collec-
tive-bargaining agreement with the Union on May
13, 1981, the Respondent violated Section 8(a)(5)
and (1) of the Act
"7 By unilaterally changing the terms and con-
ditions of its 1980 collective -bargaining agreement
with the Union when it failed to enforce the union
security clause and withhold and transmit to the
Union dues from employee paychecks, the Re
spondent violated Section 8(a)(5) and (1) of the
Act
"8 The Respondent 's violations of Section
8(a)(5) and (1) of the Act described above in para-
graph 6 converted the economic strike that began
on May 11, 1981, into an unfair labor practice
strike on May 13, 1981
"9 By refusing to reinstate unfair labor practice
strikers on their unconditional offer to return to
work, the Respondent violated Section 8(a)(3) and
(1) of the Act
`10 The unfair labor practices set forth above in
paragraphs 5 through 7 and 9 affect commerce
within the meaning of Section 2(6) and (7) of the
Act "
REMEDY
Having found that the Respondent has violated
Section 8(a)(1), (3), and (5) of the Act, we shall
order it to cease and desist and to take certain af-
firmative action necessary to effectuate the policies
of the Act
We shall order that, on request of the Union, the
Respondent shall execute the wage supplemental
agreement that was reached on May 20, 1981, or if
the Union does not request execution, to bargain
over wages, on request, with the Union and, if an
understanding is reached, to embody the under-
standing in a signed supplemental agreement We
shall also order that, on request of the Union, the
Respondent shall adhere to the 1980 collective-bar-
gaining agreement with the Union including the
union-security clause and restore the status quo
prior to May 13, 1981, and continue it in effect
until an agreement on any changes is reached with
the Union or a bona fide impasse exists We shall
also order the Respondent to transmit to the Union
all dues collected on or after April 1, 1981, with in-
terest to be computed in accordance with New Ho
rizons for the Retarded, 283 NLRB 1173 (1987),
except that interest accruing before January 1,
1987, shall be computed under Florida Steel Corp,
231 NLRB 651 (1977) We shall further order the
Respondent to make whole the unit employees, in
accordance with Ogle Protection Service, 183 NLRB
682 (1970), and the Union for any losses suffered
since May 13, 1981, resulting from the Respond
ent's repudiation of the 1980 collective-bargaining
agreement with the Union Interest on these losses
shall be computed as set forth above
Having found that the economic strike converted
to an unfair labor practice strike on May 13, 1981,
we shall order the Respondent to immediately and
fully reinstate, to the extent that it has not already
done so, the unit employees who participated in
the strike and who unconditionally offered to
return to work on May 20, 1981 Reinstatement is
to be to their former jobs or, if those positions no
longer exist , to substantially equivalent positions if
available, without prejudice to their seniority or
other rights and privileges, discharging, if neces
sary, any person hired by the Respondent on or
after May 13, 1981 If, after those dismissals, there
are insufficient positions available for the remaining
former strikers, any available positions shall be ac
corded the strikers in accordance with seniority or
other nondiscriminatory criteria Former strikers
who were permanently replaced prior to the con
version of the strike and for whom no positions are
immediately available shall be placed on a prefer
ential hiring list in accordance with their seniority
or other nondiscriminatory bases, and they shall be
reinstated before any other persons are hired or on
the departure of their preconversion replacements
See Charles D Bonanno Linen Service, 268 NLRB
552 (1984) In addition, the former strikers entitled
to immediate reinstatement shall be made whole for
any loss of earnings they may have suffered by
reason of the Respondent's refusal to reinstate them
in accordance with their unconditional offer to
return to work Backpay shall be computed in the
manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed as set forth above
ORDER
The National Labor Relations Board orders that
the Respondent, Hydrologics, Inc, Denver, Colo
rado, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Failing and refusing to bargain and meet con
cerning wage reopener negotiations with Interna
tional Brotherhood of Electrical Workers, Local
HYDROLOGICS INC 1065
Union No 1823 as the exclusive bargaining repre-
sentative of its employees in the bargaining unit
(b) Failing and refusing to execute a wage agree-
ment supplemental to its 1980 collective-bargaining
agreement with the Union agreed on by it and the
Union
(c) Rescinding and repudiating its 1980 collec-
tive-bargaining agreement with the Union because
its employees engaged in a protected strike over
wages during the term of the contract
(d) Unilaterally changing terms and conditions of
its 1980 collective bargaining agreement with the
Union by failing to enforce the union-security
clause and failing to withhold and transmit to the
Union dues from employee paychecks because its
employees engaged in a protected strike over
wages during the term of the contract
(e) Refusing to reinstate unfair labor practice
strikers on their unconditional offer to return to
work
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) On request of the Union, execute the wage
supplemental agreement that was reached on May
20, 1981, or if the Union does not request such exe-
cution, bargain collectively in good faith regarding
wages, on request, with the Union as the exclusive
representative of its employees in the following ap-
propriate unit and, if an understanding is reached,
embody such understanding in a signed supplemen-
tal agreement
All production and maintenance employees
employed by the Respondent at its Denver,
Colorado plant, but excluding office clerical
employees, and all guards, professional em
ployees, and supervisors as defined in the Act
(b) On request of the Union, adhere to the 1980
collective-bargaining agreement with the Union in
cluding the union-security clause and restore its
unit employees' terms and conditions of employ-
ment in existence prior to May 13, 1981, and con-
tinue them in effect until an agreement on any
changes is reached with the Union or a bona fide
impasse exists
(c) Transmit to the Union all dues collected on
or after April 1, 1981, with interest, as set forth in
the remedy section of this Decision
(d) Make whole, with interest, the unit employ
ees and the Union for any losses they suffered since
May 13, 1981, as a result of the Respondent's fail-
ure to honor and apply its 1980 collective bargain-
ing agreement with the Union, in the manner set
forth in the remedy section of this decision
(e) Immediately and fully reinstate, to the extent
it has not already done so, its unit employees who
participated in the strike that began on May 11,
1981, and who unconditionally offered to return to
work on May 20, 1981, to their former jobs or, if
those positions no longer exist, to substantially
equivalent positions if available, without prejudice
to their seniority or other rights and privileges, dis-
charging, if necessary, any person hired by it on or
after May 13, 1981 Make whole these employees
for any loss of earnings they may have suffered as
a result of the discrimination against them in the
manner set forth in the remedy section of this deci-
sion Place any remaining former strikers on a pref-
erential hiring list in accordance with seniority or
other nondiscriminatory basis and offer them em
ployment before any persons are hired or on the
departure of any striker replacements
(f) 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
(g) Post at its Denver, Colorado facility copies
of the attached notice marked "Appendix "19
Copies of the notice, on forms provided by the Re
gional Director for Region 27, 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
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
19 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
1066 DECISIONS 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
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT fail and refuse to bargain and
meet concerning wage reopener negotiations with
International Brotherhood of Electrical Workers,
Local Union No 1823 as the exclusive bargaining
representative of its employees in the bargaining
unit
WE WILL NOT fail and refuse to execute a wage
supplemental agreement to our 1980 collective bar
gaining agreement with the Union agreed on be-
tween us and the Union
WE WILL NOT rescind and repudiate our 1980
collective bargaining agreement with the Union be
cause our employees engage in a protected strike
over wages during the term of the contract
WE WILL NOT unilaterally change terms and
conditions of our 1980 collective-bargaining agree-
ment with the Union by failing to enforce the
union-security clause and to withhold and transmit
to the Union dues from employee paychecks be
cause our employees engage in a protected strike
over wages during the term of the contract
WE WILL NOT refuse to reinstate unfair labor
practice strikers upon their unconditional offer to
return to work
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request of the Union, execute the
wage supplemental agreement that was reached on
May 20, 1981, or if the Union does not request exe-
cution, WE WILL bargain collectively in good faith
regarding wages, on request, with the Union as the
exclusive representative of our employees in the
following appropriate unit and, if an understanding
is reached, embody such understanding in a signed
supplemental agreement
All production and maintenance employees
employed by us at our Denver, Colorado
plant, but excluding office clerical employees,
and all guards, professional employees, and su
pervisors as defined in the Act
WE WILL, on request of the Union, adhere to the
1980 collective-bargaining agreement with the
Union including the union-security clause and re-
store our unit employees' terms and conditions of
employment in existence prior to May 13, 1981,
and continue them in effect until an agreement on
any changes is reached with the Union or a bona
fide impasse exists
WE WILL transmit to the Union all dues collect-
ed on or after April 1, 1981, with interest
WE WILL make whole, with interest, the unit
employees and the Union for any losses they suf-
fered since May 13, 1981, as a result of our failure
to honor and apply our 1980 collective bargaining
agreement with the Union
WE WILL immediately and fully reinstate, to the
extent we have not already done so, our unit em
ployees who participated in the strike that began
on May 11, 1981, and who unconditionally offered
to return to work on May 20, 1981, to their former
jobs or, if those positions no longer exist, to sub-
stantially equivalent positions if available, without
prejudice to their seniority or other rights and
privileges, discharging, if necessary, any person
hired by us on or after May 13, 1981, WE WILL
make these employees whole, with interest, for any
loss of earnings resulting from the discrimination
against them, and WE WILL place any remaining
former strikers on a preferential hiring list in ac-
cordance with their seniority or other nondiscrim
inatory basis and offer them reinstatement before
any other persons are hired or on the departure of
any striker replacements
HYDROLOGICS, INC
Donald E Chavez Esq, for the General Counsel
Walter V Siebert and Daniel J Collyar, of Denver Colo
rado for the Respondent
Rhett K Dacus Esq (Hornben MacDonald Factor &
Buckley) of Denver Colorado for the Charging
Party
DECISION
STATEMENT OF THE CASE
RUSSELL L STEVENS Administrative Law Judge This
case was tried in Denver Colorado on July 7 1982 1
I All dates hereinafter are within 1981 unless otherwise stated
HYDROLOGICS INC
The complaint is based on a charge filed May 21, 1981
by International Brotherhood of Electrical Workers,
Local Union No 1823 (the Union) and an amended
charge filed by the Union November 20 The complaint2
alleges that Hydrologics Inc (Respondent) violated
8(a)(3) (5), and (1) of the National Labor Relations Act
(the Act)
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross ex
amine witnesses, to argue orally, and to file briefs Briefs,
which have been carefully considered, were filed by
counsel for the General Counsel and Respondent
On the entire record and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is and at all times material has been, a
corporation duly organized under and existing by virtue
of the laws of the State of Colorado and maintains its
principal office and place of business in Denver, Colora
do where it is engaged in the manufacture and sale of
electrical products In the course and conduct of its bust
ness operations Respondent annually purchases and re
ceived goods and materials valued in excess of $50,000
directly from points and places outside the State of Colo
rado
I find that Respondent is, and at all times material has
been an employer engaged in commerce within the
meaning of Section 2(2) (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
Local Union No 1823 is and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background3
Respondent manufactures custom controls and instru
mentations systems and at times relevant had approxi
mately 10 rank and file employees Robert Greer4 was
Respondents vice president and general manager, and
Lindy Hanneman 5 Greer s assistant , was head of the en
gineering department Ralph Miller was Respondent s
shop foreman until he was transferred to a purchasing
position in March 1982 at which time the position of
show foreman was eliminated Michael Breuggeman was
a leadman prior to the strike that started Monday, May
11, and in which he participated Brueggeman was re
called to work as a leadman under Miller on May 28,
after the strike that ended May 21 but he assumed great
er authority and responsibility after his recall Included
2 As amended June 9 and at trial July 7 1982
2 This background summary is based on stipulations of counsel and on
testimony and evidence not in dispute
4 Individuals are referred to by their last names
5 Hanneman s brother Tony Hanneman was a replacement employee
who was hired June 17 1981
1067
in his authority and responsibilities after his recall were
those of hiring firing recommending hires and fires,
interviewing job applicants, adjusting employee grei
vances, discplining employees, granting employees time
off attending supervisory meetings evaluating employ
ees work performance, and inspecting employees
work 6 Included among the rank and file employees
were two alleged discriminatees, Betty Norman and Can
dace Vanderwater Norman was employed March 12,
1979, and Vanderwater was employed April 16, 1981
Norman and Vandwater participated in the strike
Respondent has had a bargaining agreement with the
Union since August 1971 The most recent agreement'
covered the period May 1 1980 to May 1, 1982 with
provision, inter alia, for automatic renewal unless the
contract was terminated by the parties, and with a provi
sion (art 21(3)) for wage reopener on May 1, 1981 The
most recent agreement also contained, inter alia, the fol
lowing provisions
ARTICLE 4
UNION COMPANY RELATIONS Section 1 It
is the purpose and intent of the signatory parties
hereto that all grievances arising between employ
ees for whom the Union is recognized as bargaining
representative in Article 1 hereof and the Company
shall be settled in accordance with the grievance
procedure set forth in Article 6 hereof
Section 2 During the life of this Agreement the
Union agrees that there shall be no strike slow
down, or stay in work stoppage or any other strike,
and the Company agrees that there shall be no lock
out of employees It is understood and agreed that
this Article shall not apply in the event of the Com
pany s failure to apply an arbitration award
ARTICLE 12
SENIORITY Section 1 Seniority is defined as
length of service with Company since date of hire
During the first ( 1st) ninety (90) calendar days of
his employment , each employee shall be considered
to be a probationary employee and the Company
shall be free to discharge such employee for any
cause whatsoever
Section 3 It is agreed that promotions, demotions
transfers layoffs and recalls shall be based on abili
ty qualifications and seniority ability and qualifica
tions most necessary to perform the work required
being sufficient, seniority shall prevail
Pursuant to the wage reopener provision of the con
tract Dennis Thins the Union s business manager re
quested by letter dated February 23 addressed to Green,
negotiations for the purpose of increasing the rates of
pay substantially At the same time, the Union request
ed wage negotations with another employer similarly sit
6 It is found that Brueggeman was a supervisor within the meaning of
the Act at all after his recall to work on May 28
' G C Exh 2
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uated i e, Young Electric and Manufacturing Company
(Young)
By letter dated March 6 Jack Moore of the Mountain
States Employees Council (Council) notified Thuis that
he represented Respondent and Young and requested of
Thuis, Please call me at your convenience for the pur
pose of setting meeting dates Negotiations commenced
on March 26 relative to wages only On March 31 Thuis
notified the Federal Mediation and Conciliation Service
(FMCS) of the proposed modification ( wages) of the bar
gaining agreement between Respondent and the Union
A negotiation session was held on April 30, among rep
resentatives of the Union, the Council Respondent
Young and the FMCS Those representatives were
Thuis, Moore, and Greer, Gene Champion, Bill Young,
and Paul Trujillo of Young, and a representative of
FMCS Wage proposals were received by the Union
from Respondent and Young The proposals were taken
by Thuis to employees of Respondent and Young, and
the employees of both employers declined to accept the
proposals A few days later Thuis got in touch with
Thurman Sanders of FMCS to set up another negotiation
session and thereafter, following a conversation with
Moore Thuis and Moore met on May 8 Moore refused
to change Respondent's position on its wage proposal
and the employees went out on strike Monday morning,
May 11 On May 13 Moore sent a mailgram to Thuis
which stated
INASMUCH AS YOUR LOCAL UNION HAS VIOLATED
THE PROVISIONS OF ARTICLE 4 SECTION 2 OF THE
LABOR AGREEMENTS AT YOUNG ELECTRIC AND
MANUFACTURING COMPANY AND HYDROLOGICS INC
PLEASE BE ADVISED THAT NOT ONLY HOURLY
RATES OF PAY BUT OTHER CONDITIONS OF EMPLOY
MENT MUST ALSO BE NEGOTIATED BEFORE A SET
TLEMENT MAY BE RESOLVED AT THOSE COMPANIES
The mailgram was not received by Thuis but it was read
to him over the telephone by a Western Union employee
on May 14 On May 19 Thuis met with Respondent s
employees and the employees voted to accept Respond
ent s ear r wage offer and go back to work On May 20
Thuis tried unsuccessfully to get in touch with Moore,
and thereafter on the same day called Greer on the tele
phone Thuis advised Greer that the employees had
voted to accept Respondents offer and return to work
Greer replied that the matter had been turned over to
Respondents attorney and that no further action could
be taken including action on the offer of employees to
return to work without a meeting with Respondents at
torney That same afternoon Moore called Thuis on the
telephone and said he was sending a telegram to the
Union The telegram dated May 20, was read to Thuis
on the telephone, but the Union did not receive it until
May 22 The telegram read in pertinent part
INC CONSIDERS ITS AGREEMENT WITH YOUR UNION
TO BE RESCINDED
On May 21 the employees at Thuis suggestion, re
turned to the plant and reported for work but no em
ployees were put back to work that day
On June 4, Thuis and Moore and other persons met to
discuss the situation at Young and during that meeting
the Union s attorney told Moore that he would like to
arrange a meeting to discuss the situation at Respond
ent s plant Moore was noncommittal stating that Greer
was out of town During the week of June 8 Thuis
talked with Moore and asked about a meeting Moore
said he had not yet talked with Greer, and Thuis asked
to be advised after Moore did talk with Greer No meet
ing ever was arranged 8
All employees who were on strike have been offered
reinstatement, except Norman and Vanderwater Those
who were offered reinstatement either accepted the
offer, declined the offer, or did not respond thereto Re
instatements were made after May 21 as follows
Name Date of Job recalled toRecall
Michael Brueggeman 5-28-81 leadman
Robin Burbank 5-29-81 wireman
Timothy Ozbun 6-3-81 welder
Keith Motzer 6-8-81 wiremen
Deborah Lewis 6-8-81 wireman trainee
Rockie Thielman 7-1-81 welder
Tony Hanneman was hired as a laborer (new employ
ee) on June 17, and Tony Uba was hired as a laborer
(new employee) on June 25 Poststrike hires (after May
11) were Patrick McCartney hired on June 29 as a wire
man trainee Timothy Martin hired on July 2 as a wire
man trainee and nine others listed in General Counsel s
Exhibit 8
B Legal Status of the Strike
It has long been well settled that the right of employ
ees to strike is a statutory right 9 That right, however is
not an absolute one it is subject to restrictions of a con
tractual as well as of a statutory nature The principal
issue involves a contractual restriction of the employees
right to strike That provision is quoted above, and the
principal question is whether that provision constitutes a
waiver of the right to strike for economic reasons, mid
point in the term of the contract after reopening for
wage negotiations To be effective waiver of that right
must be `clear and unmistakable 10 In some instances a
no strike contractual provision has been held not to con
stitute waiver of the right to strike without regard to the
reason for the strike In Mastro Plastics supra the Su
PLEASE BE ADVISED THAT DUE TO YOUR UNLAWFUL
BREACH OF THE COLLECTIVE BARGAINING AGREE
MENT BETWEEN YOUR LOCAL UNION AND HYDRO
LOGICS INC THAT EFFECTIVE WITH THE COMMENCE
MENT OF YOUR UNLAWFUL STRIKE HYDROLOGICS
8 This paragraph is based on Thuis credited testimony Moore did not
testify
8 238 NLRB 652 (1979) and cases cited therein
10 Mastro Plastics Corp v NLRB 350 U S 270 283-284 ( 1956) See
also for a full discussion of the subject of such waivers Davis McKee
Inc supra
HYDROLOGICS INC
preme Court of the United States held that a no strike
contractual provision did not preclude a strike occa
sioned by the unfair labor practice of an employer In
Operating Engineers Local 18 (Davis McKee Inc ), 1 1 the
Board held that a no strike contractual provision did not
preclude employees from engaging in a sympathy
strike 12
The General Counsel and the Charging Party rely on
Lion Oil Co,13 for the statement that the right of the
Union [to engage in mid term negotiations] would be an
empty one without the right to strike after a 60 day
notice That case does not provide a basis for deciding
the controversy involved here A no strike provision was
not involved Further, the General Counsels quotation
was taken out of context and was applicable only to the
issue involved in Lion Oil Co, i e, the construction of
Section 8(d) of the Act Finally the Court in Lion Oil
Co , recognized that contractual provisions must be con
sidered when it stated at 352 U S 289
Unions would be wary of entering into long term
contracts with machinery for reopening them for
modification from time to time, if they thought the
right to strike would be denied them for the entire
term of such a contract, though they imposed no such
limitations on themselves [Emphasis added ]
The General Counsel and the Charging Party also rely
on Into Roto Inc ,14 but that reliance is misplaced The
contract there involved did not have a no strike provi
sion 15 Further, Inta Roto involved interpretation of a
contractural provision that seemed even to negate the
desire for a no strike provision The contract included a
reopener provision and stated [o]n such reopening, if
the parties fail to come to agreement, either party shall
have such course of action open to its [sic] as it would
have had if this contract were to expire on such reopen
ing date 252 NLRB at 765 The language quoted in the
General Counsels brief refers to the administrative law
judge's discussion in Into Roto of Lucas Flour 16
The General Counsel and the Charging Party argue
that the no strike provision of the contract is only as ex
tensive as the scope of the gnevance and arbitration pro
cedures of the contract and that if the subject of the
dispute is not arbitrable there is no quid pro quo for the
no strike provision The basis for that argument is given
as Gary Hobart Water Corp 17 However, a reading of
11 238 NLRB at 652
12 The General Counsel s citation of Knight Morley Corp 116 NLRB
140 (1956) enfd 251 F 2d 753 (6th Or 1957) is not applicable here be
cause that case involved a statutory provision (Sec 502 of the Act)
rather than a contractual provision
is NLRB v Lion Oil Co 352 U S 282 (1957)
14 252 NLRB 764 (1980)
15 The contract provision there in issue is quoted at 252 NLRB 765
See also the administrative law judge s notation at 769 that a no strike
provision was not involved The General Counsel argued that such a pro
vision was implied which is different from the case here Here the par
ties specifically agreed to a no strike no lockout provision
16 Teamsters Local 174 v Lucas Flour Co 369 U S 95 106 (1962)
17 210 NLRB 742 (1974) enfd 511 F 2d 284 (7th Cir 1975) cert
denied 423 U S 925 (1975)
1069
that case makes it clear that the principle enunciated by
the Board was based on the facts of that case the Board
did not state a general principle, which would be appli
cable in all instances wherein a no strike clause was in
volved The contract provision at issue read (210 NLRB
at 743 fn 4)
(2) The Union agrees there shall be no strikes,
slowdowns, or other interruptions of work by any
of its members during the term of the agreement
and both parties agree that any disputes or differ
ences shall be taken up under the Grievance and
Arbitration procedures of this agreement
The Board stated at 210 NLRB at 746
It is our opinion that the no strike, no lockout
promise was intended to be in effect only when the
dispute between the parties is covered by and can
be resolved by the grievance machinery Here the
no strike, no lockout provisions are not only includ
ed in the opening paragraph of the grievances pro
vision but are part of the same sentence which sets
up the grievance machinery and limits it to all dis
putes and controversies arising under or in connec
tion with the terms hereof ' Indeed, it is diffi
cult to imagine a placement of the no strike provi
sion which would delineate more clearly or em
phatically that the no strike promise does not stand
alone but is part of, and only as extensive as the
scope of, the grievance machinery Both times that
the no strike language appears the grievance Ian
guage immediately follows It is our opinion that
the Union pledged no strike only over matters
which Respondent agreed to arbitrate
In support of its conclusions the Board cited two earlier
cases, which emphasize the Board s position that the
wording of the contract is important in determining
whether the parties intended that a no strike provision
was tied to the grievance arbitration machinery and was
to apply only to arbitrable matters Those two cases are
Montana Dakota Utilities Co 18 and Kellogg Co,19 both
of which involve sympathy strikes or sympathy picket
ing In Montana Dakota the administrative law judge
stated, and the Board concurred that both the contract
no strike, no lockout provisions and the actions of the
parties made it clear that only those collective cessa
Lions of work and lockouts arising out of a controversy
respecting the terms of the contract (which could be
handled under the contracts grievance and arbitration
machinery) were meant to be prohibited by the no strike
no lockout provision zo
The contract provision stated
It is recognized that the Company is engaged in
public service requiring continuous operation, and it
is agreed, in recognition of such obligation of con
tinuous service that during the term of this Agree
18 189 NLRB 879 (1971)
18 189 NLRB 948 (1971)
20 189 NLRB at 883
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment there shall be no collective cessation of work
by members of the Union and the Company will
not lock out the employees covered by this Agree
ment on account of any controversy respecting the
provisions of the Agreement All such controversies
shall be handled as provided herein Article VIII
and IX of the contract establish grievance and arbi
tration procedures for setting misunderstandings
respecting the interpretation , construction , intent
or meaning of any provision of the contract
In Kellogg the Board found it clear , based on the con
tract provision involved and other evidence , that the no
strike language applied only to disputes arising under the
contract The relevant provision of the contract stated
(189 NLRB 948 at fn 2)
NO STRIKES-NO LOCKOUTS
Section 1101
(a) During the life of this Supplemental Agree
ment no strike or work stoppage in connection
with disputes arising hereunder shall be caused or
sanctioned by the Union, or by any members
thereof, and no lockout shall be ordered by the
Company in connection with such disputes
Thins credibly testified that the parties never dis
cussed, or negotiated relative to, the question of whether
the no strike clause or the arbitration provisions apply to
the wage reopener provision of the contract
As shown above, the language of the contract in
volved here is quite different from that of the contracts
in Gary Hobart Montana Dakota, and Kellogg, both in
wording and the placement thereof The wording of the
no strike provision here is not related to, or in any
manner involved with the wording of the provisions re
lating to grievances and arbitration Section 1 article 4
states in effect, that all employee grievances shall be set
tied by the grievance procedure of the contract, but that
section stands alone unrelated to the no strike provision
In the language of the oft cited cases on this subject the
no strike provision is all inclusive The no strike, no
lockout provisions here are set forth separately and
apart, in article 4 from those relating to the machinery
of grievance and arbitration, in articles 6 and 7 Article 4
is entitled Union Company Relations , article 6 is enti
tled Grievances article 7 is entitled Grievances Ar
ticle 7 is entitled Arbitration Section 2 article 4 is
broadly worded It states there shall be no strike, slow
down, or stay in work stoppage or any other strike
[Emphasis added ] That language is clear and un
ambiguous and it must be taken at its face value because
there is no other evidence of the intent of the parties
The General Counsel and Charging Party argue that
there is no waiver unless the waiver statement refers spe
cifically by name , to what is being waived No cited or
quoted case makes that statement and common sense
dictates that such a provision would not be realistic If
there were such a requirement a waiver provision would
have to name a multitude of circumstances, at the risk of
inadvertently overlooking one The law does not place
such a risk on the parties, and permits them to make all
inclusive waivers Such a possibility is at the core of
most of the cases discussed here In the final analysis, the
intent of the parties controls, unless statutory or public
policy concepts intervene No statutory restriction is in
volved in this case, and the Board has not found that, as
a matter of public policy, a general no strike provision
does not preclude strikes following reopener disputes
The General Counsel and the Charging Party argue
that the Union did not waive its right to strike, and the
Charging Party states that it would not do so because
Such a midterm wage reopener would be meaningless
in the absence of the right to engage in an economic
strike However it can be argued equally effectively
that it would be meaningless for Respondent to sign a 2
year contract, expecting labor peace for that period of
time, only to be subject to a strike after 1 year Both par
ties signed the agreement, the language is clear, and
there is no evidence that the parties even discussed the
matter during negotiations or at any other time Possibly
it can be argued that wages are the most important part
of a contract and that, therefore, another limitation
should be carved out of a no strike provision However,
beside the fact that the intent of contracting parties must
be given effect according to the words of the parties,
such a limitation ignores the facts of the marketplace
Waiver of the right to strike does not eliminate bargain
ing pressures stemming from considerations such as re
tention of a trained work force public relations employ
er employee relations and community position It must
be assumed that those matters were taken into account
when the Union agreed not to strike for the term of its
contract It is common knowledge that reopener negotia
tions frequently are concluded in a successful manner
without strike even though the basic agreement contains
a no strike provision
C Repudiation of the Contract
Counsel for the General Counsel devotes much of his
brief to the argument that Respondent rescinded the con
tract but Respondent does not dispute that fact By its
communications to the Union on May 13 and 20 Re
spondent made it quite clear that Respondent rescinded
the contract based on the Union s violation of a material
violation of the agreement i e the no strike provision
Moreover, Respondent also made it quite clear when it
rescinded the contract that it was not withdrawing rec
ognition of the Union as the bargaining representative of
the unit employees or refusing to bargain with the
Union To the contrary, the May 13 mailgram stated,
inter alia, other conditions of employment must also be
negotiated When the mailgram of May 20 was
sent, and read on the telephone to Thins, the employees
still were on strike
As found above, the no strike provision was a valid
one The Union violated that provision While the strike
was in effect, Respondent rescinded the contract which
it was entitled to do and offered to negotiate with the
Union A similar situation prevailed in Marathon Electric
HYDROLOGICS INC
Mfg Corp 21 Several issues were involved , including the
rescission of a contract The Board stated , inter alga, 106
NLRB at 1180-1181
The Trial Examiner found Respondents act of
unilaterally cancelling the contract and all employee
benefits thereunder to be a refusal to bargain in vio
lation of Section 8(a)(5) and ( 1) of the Act Howev
er, the contract itself specifically provided in Arti
cle XII thereof that the Union will not authorize
or sanction any strike Contrary to this pro
vision of the contract , the UE officers stewards,
and committeemen did call a strike on February 28
In these circumstances , we find that the Respond
ent s unilateral cancellation of its contract with UE
did not constitute a violation of Section 8(a)(5) and
(1) of the Act but was justified by UE s prior
breach of the contract
D Alleged Refusal to Bargain
The General Counsels brief discusses Respondent s
continuing duty to bargain, but that duty is not in serious
dispute Respondent's only contention on this issue in its
brief is that the Union has not requested to bargain and
that, until such a request is made, there can be no deter
urination as to whether Respondent illegally refused to
bargain
Testimony on this issue was limited and is summarized
supra The parties negotiated until May 8, the strike
commenced May 11, Respondent rescinded the contract
May 13 and 20, and the employees abandoned the strike
and offered to return to work May 21 The only testimo
ny relative to a bargaining request was that of Thuis,
who is credited Thuis testified
Q Now, subsequent to the telegram of May 20th
had the Union attempted to meet and bargain with
Hydrologics?
A Yes, we did on two occasions On June the
4th, we met with the employers representative Mr
Moore to work out a return agreement for Young
Electric
Q Who was present?
A At this meeting was Jack Moore and Mr
Young from Young Electric Don MacDonald from
legal counsel of Hornbein MacDonald and myself,
and Gene Champion
We did work out an agreement with them Don
MacDonald, at that meeting asked Mr Moore-
told Mr Moore that we d like to meet with Hydro
logics Mr Moore told Don MacDonald that Bob
Greer was out of town and couldn t be reached so
he couldn't tell him whether he could set up a
meeting or not This was on June the 4th We met
early in the morning, 8 30 in the morning
Subsequent to that, I had an occasion to talk to
Jack Moore I think it was the week following, the
week of June the 8th and I asked Mr Moore if he
had contact with Mr Greer in reference to setting
21 106 NLRB 1171 ( 1953) See also Moore Drop Forging Co 108
NLRB 32 (1954) Dow Chemical Co v NLRB 105 LRRM 3327 3332 (3d
Ca 1980)
1071
up a meeting and he said, no, he hadn t talked to
him yet and I said, Well, as soon as you do, let us
know
And to this day-and Don MacDonald had also
told him to let us know when we could have a
meeting , and to this day we ve never been contact
ed for a meeting
Respondent argues that there was never an effective
request for bargaining Respondent contends that the
foregoing facts, as stated by Thuis, do not constitute a
bargaining demand
Although the Union s request for bargaining was not
specific, and although there may have been some ambi
guity in the request, it is clear from Thuis testimony that
the Union asked Moore to bargain and that Respondent
has not, to date, responded to that request Thuis asked
Moore on June 4 to meet with the Union, and during the
week of June 8 to let him know as soon as Moore talked
with Greer in reference to setting up a meeting By
that time the strike was over The Union still represented
the employees and although the contract was rescinded
Respondent already had told the Union that there were
matters that must be negotiated Clearly the Union s re
quest for a ' meeting referred to the situation prevailing
between the Union and Respondent relative to Respond
ent s employees and the rescinded contract The fact that
the Union did not state in so many words that the meet
ing was for the purpose of bargaining, or negotiations
is irrelevant
Respondent denied in its answer that the Union repre
sents Respondents employees, but no proof in support of
that denial was adduced by Respondent at trial nor was
the subject argued at trial or in Respondents brief The
evidence that some employees crossed the picket line to
work but those facts are irrelevant The general rule is
that new employees, including striker replacements, are
presumed to support the Union in the same ratio as those
shown to have been replaced 22
It is found that Respondent violated Section 8(a)(5)
and (1) of the Act as alleged by failing and refusing
after June 4, 1981 to bargain with the Union upon re
quest
E Failure to Remit Dues to the Union
Respondent admitted that it deducted and failed to
remit union dues for its employees during the month of
April and the first part of May Having found above that
Respondent lawfully rescinded its contract with the
Union on May 13 Respondent had no duty to deduct
and remit union dues after that date
By its failure to remit employees' union dues to the
Union for April and the first 13 days of May 1981, Re
spondent violated Section 8(a)(5) and (1) of the Act as
alleged
22 Windham community memorial Hospital 230 NLRB 1070 1071
(1977) See also National Car Rental System 237 NLRB 172 (1978)
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
F Recall of Strikers
Although, as found above, the strike was an economic
strike and not an unfair labor practice one, Respondent
was obligated to reinstate employees who offered uncon
ditionally to return to work on May 20, unless their jobs
already were filled by replacements 23 General Counsel s
Exhibit 8 shows the dates of hire of all striking and all
replacement employees, and dates of recall of strikers
That exhibit shows that replacements Tony Hanneman,
Uba, McCartney, and Martin were hired after May 20
The exhibit also shows the following Thielman was re
called July 1 after Tony Hanneman Uba, and McCart
ney were hired as replacements Norman and Vander
water were never recalled
Greer acknowledged that Thielman could have filled
the job Hanneman and Uba were hired for if he had
wanted that position Respondent did not show that
Thielman was offered the job, or even was considered
for it 24 Thielman was a welder prior to the strike, and it
is clear that, under Respondent s job descriptions, he was
qualified for the job of wireman trainee
Norman and Vanderwater are credited in their testi
mony concerning their work history and qualifications
Miller testified concerning their unsatisfactory work and
their deficiencies, but that testimony appeared to be pre
textual, and is not credited The jobs for which the re
placements of Norman and Vanderwater were hired re
quired little or no experience Norman had performed
the work Hanneman and Uba were hired to do and she
had done some work as a wireman She was qualified to
work as a wireman trainee Greer and Miller testified,
and Norman acknowledged that Norman, who worked
at solderingand on installing nameplates did not like to
do wiring However all three witnesses agreed that
Norman never refused to do such work Greer and
Miller testified that Norman and Vanderwater were not
recalled as laborers because the work was too heavy for
them but that testimony appeared pretextual and is not
credited Further, Norman credibly testified that she cus
tomarily performed work that Uba and Tony Hanneman
did and that Vanderwater often helped her in that work
Included was truck driving and loading and unloading
trucks Vanderwater credibly testified that she was able
to do the work of laborer, which is nonskilled It is clear
from the record, and found that Norman and Vander
water were qualified to do the work that Uba and Tony
Hanneman were hired to do
Norman credibly testified that on several occasions
she talked with Greer and Brueggeman about getting her
job back, but was not successful Greer told her that her
job had been filled Several months after the strike she
talked with Brueggeman who said he couldn t rehire
me, that Mr Greer wouldn t allow it Brueggeman fur
ther said Vanderwater would not be recalled because she
was Norman s friend
Vanderwater credibly testified that approximately
once each week after the strike was over, she asked
Greer about returning to work but was not successful
Vanderwater testified that she talked with Greer in June
or July
I told him that I had heard there was a newspa
per ad for the shipping and receiving job that I had
had when I was there and that he had hired some
body off the street for it And I asked him if that
was true and he said yes, it was And I asked him
how come I was not rehired and he said they were
planning on building more crates' and I wasn't
able to do that and the heavy lifting And that was
his reasons
Q Did you make any response?
A Yes I told him that I knew how to use a
hammer and nails I had never tried it but I thought
I could do it, and that I could lift 50 pounds And
he said that he had hired somebody else and I said
Well, if he doesn't work out, will you recall me
then? and he said no I said, Will you ever recall
me for anything? and he told me no at that time
Greer denied that he ever told Vanderwater, Bruegge
man, Miller, or anyone else that Norman or Vander
water would not be hired That denial is not credited
The seniority provisions of the collective bargaining
agreement, quoted above, constituted a working condi
tion that survived Respondents rescission of the con
tract Respondent was obligated to recall employees by
seniority but failed to do so That failure constituted a
violation of Section 8(a)(3) and (1) of the Act, as alleged
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III
above occurring in connection with its operations de
scribed in section I, above, have a close intimate, and
substantial relationship to trade traffic and commerce
among the several States and tend to lead to labor dis
putes burdening and obstructing commerce and the free
flow of commerce
CONCLUSIONS OF LAW
1 Hydrologics Inc is and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 International Brotherhood of Electrical Workers,
Local Union No 1823 is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act
3 The following employees constitute a unit appropri
ate for purposes of collective bargaining within the
meaning of the Act
23 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir
1969) cent denied 397 U S 920 (1969)
24 Greer first testified that he understood and later he knew
Thielman did not want the job because it would have required a cut in
pay but Miller who allegedly did know did not testify on this point
Greer s testimony on this matter is not credited
All production and maintenance employees em
ployed by Respondent at its Denver Colorado
plant, but excluding office clerical employees and
all guards, professional employees and supervisors
as defined in the Act
HYDROLOGICS INC 1073
4 The Union is the exclusive collective bargaining
representative of Respondents employees in the unit de
scribed above for the purpose of collective bargaining
with regard to wages hours, and other terms and condi
tions of employment
5 By failing and refusing to meet at reasonable times
and bargain on request of the Union on and after June 4,
1981 Respondent violated Section 8(a)(5) and (1) of the
Act
6 By failing and refusing from April to May 13, 1981,
to remit to the Union dues deducted from employees
paychecks, Respondent violated Section 8(a)(5) and (1)
of the Act
7 By failing and refusing to reinstate Rockie Thiel
man Betty Norman, and Candace Vanderwater when
vacancies arose after their unconditional requests for re
instatement, Respondent discriminated with respect to
their hire, tenure, and terms and conditions of employ
ment in violation of Section 8(a)(3) and (1) of the Act
8 Respondent did not engage in unfair labor practices
alleged in the complaint that are not found here
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I will recommend that Respondent cease and
desist therefrom, and take certain affirmative action de
signed to effectuate the policies of the Act
I have found that Respondent violated Section 8(a)(3)
and (1) of the Act by failing to offer Rockie Thielman
reinstatement when a vacancy arose after May 20, 1981
and by failing and refusing to reinstate Betty Norman
and Candace Vanderwater when vacancies arose after
their unconditional requests for reinstatement I will
therefore, recommend that Respondent be ordered to
offer Norman and Vanderwater immediate and full rein
statement to their former or substantially equivalent pose
tions without prejudice to their seniority vacation, or
other rights and privileges, and to make Thielman,
Norman, and Vanderwater whole for any loss of earn
ings they may have suffered as a result of the discrimina
tion against them, by payment to them of sums of money
equal to those they normally would have earned but for
Respondents discrimination against them less their net
interim earnings with interest thereon to be computed in
the manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb
ing Co, 138 NLRB 716 (1962), and Florida Steel Corp,
231 NLRB 651 (1977)
It also will be recommended that Respondent be or
dered to remit forthwith to the Union all dues deducted
from the wages of employees pursuant to the rescinded
bargaining agreement of the parties not previously remit
ted