International Brotherhood Of Boilmakers

National Labor Relations Board - Board Decisions

Feb 11, 1987

282 N.L.R.B. 1192 (N.L.R.B. 1987)

1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bingham Willamette and Boilermakers Local 72,
a/w the International Brotherhood of Boil-
makers. Case 36-CA-5213
11 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRACRAFT
On 23 October,1986 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 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, Bingham
Willamette, Portland, Oregon, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
i In adopting the judge's decision, we find it unnecessary to rely on his
finding that the parties did not bargain to impasse over the Respondent's
22 September 1983 proposed layoff policy
Max D. Hochanadel, for the General Counsel.
Lester Y. Smith Jr. and Marianna Kanwit Esqs. (Billard,
Korshof Smith & Jernstedt), for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge.
This proceeding in which a hearing was held on 16 July
1984 is based on an unfair labor practice charge filed on
15 April 1986 by Boilermakers Local No. 72, a/w the
International Brotherhood of Boilermakers (Union) and a
complaint issued on 30 May 1986 on behalf of the Gener-
al Counsel of the National Labor Relations Board by the
Board's Regional Director for Region 19, alleging in sub-
stance that Bingham Willamette (Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations
Act (Act) on 4 April 1986 by laying off employees Mike
Hull, Tom Larson, and Lloyd Wagoner. More specifical-
ly, the complaint alleges that the alleged discriminatees
ceased work and engaged in an economic strike against
Respondent, that they were reinstated when the strike
ended, that they were subsequently laid off on 4 April
1986, that in selecting them for layoff Respondent did
not credit them with the seniority they had accrued
during their employment prior to the strike, that if they
had been credited with this seniority they would not
have been selected for layoff, and that the effect of Re-
spondent's failure to credit them with their accrued pres-
trike seniority was to grant superseniority to the non-
strikers with respect to layoffs. Respondents filed an
answer to the complaint, denying the commission of the
alleged unfair labor practices. i
Based on the entire record, from my observation of
the demeanor of the witnesses, and having considered
the parties' posthearing briefs, -I make the following
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent , an Oregon corporation , fabricates metal
pumps at its facility in Portland , Oregon. Its production
workers, including the employees employed in its quality
control department , were represented by the Union as
part of a multiunion bargaining unit . They were covered
by successive collective -bargaining contracts between
Respondent and the Metal Trades Council of Portland
and vicinity . The last contract between Respondent and
the Metal Trades Council expired 30 March 1983. Early
in 1983, prior to the contract 's expiration date, Respond-
ent and Metal Trades Council began negotiations for a
successor contract . The negotiations did not result in a
new contract . On 16 April 1983 the Metal Trades Coun-
cil, in support of its bargaining position , initiated a strike
against Respondent . The strike ended 14 April 1984, at
which time the Union , on behalf of the strikers, made an
unconditional request to Respondent that it reinstate the
strikers . On 17 July 1984, as the result of a Board-con-
ducted decertification election, the Union was decertified
as the exclusive collective-bargaining representative of
Respondent 's employees it had previously represented.
During the strike Respondent operated its business by
using employees who did not support the strike, strikers
who had abandoned the strike , and striker replacements.
It commenced hiring striker replacements in June 1983.
When striker replacements were hired , they were told by
Respondent that they were being hired as regular and
permanent replacements under the statutes and they
could expect that they would not be replaced by a nego-
tiated settlement in returning strikers . (Tr. 76, LL. 4-10.)
Also, when the striker replacements expressed their con-
cern that Respondent might enter into a strike -settlement
agreement calling for their discharge , Respondent spoke
to them and offered them the assurances that it was Re-
spondent 's intent to provide the protections it could
under the law for their employment . (Tr. 77, LL. 1-11.)
Respondent did not tell the striker replacements that
they were guaranteed permanent employment and did
not promise them superseniority.
i In its answer Respondent admits it is an employer engaged, in com-
merce within the meaning of Sec 2(6) and (7) of the Act and meets one
of the Board's applicable discretionary jurisdictional standards. It also
admits the Union is a labor organization within the meaning of Sec 2(5)
of the Act
282 NLRB No. 165
BINGHAM WILLAMETTE
The collective-bargaining contract, 'which expired 30
March 1983, contained a provision dealing with employ-
ees' layoffs that required Respondent to be guided solely
by seniority in selecting employees for layoffs. On 24
May 1983, after an impasse in the bargaining negotiations
between Respondent and the Metal Trades Council, Re-
spondent implemented its contract offer that included the
same layoff provision as had been included in the recent-
ly expired contract. The contract negotiations continued
thereafter and on 22 September 1983, after another im-
passe in the negotiations, Respondent implemented a new
contract proposal that superseded its 24 May 1983 imple-
mented proposal. The 22 September 1983 proposal imple-
mented by Respondent differed from the one previously
implemented inasmuch as it reduced the employees'
wages, provided two less holidays, modified the employ-
ees' health insurance benefits, granted Respondent great-
er discretion to make work assignments, and changed the
method of selecting employees for layoff.
The provision governing employees' layoffs contained
in Respondent's proposal implemented on 22 September
1983 was entitled "Layoff and Recall" and, in pertinent
part, read as follows:
In the matter of layoff and rehire, all employees
are subject to the following . . . . In periods of in-
creasing or decreasing forces, individual skill and
ability as evaluated by BWC Management shall de-
termine the order of layoff and recall. Length of
employment shall be the determining factor when
skill and ability of the individual are equal.
During the bargaining sessions with the Metal Trades
Council, Respondent explained to the Council its reason
for proposing the above-described layoff and recall pro-
vision. Its explanation, Respondent Personnel Manager
Randall testified, was worded as follows:
The company stated that the Supreme Court had
issued a decision in Belknap2 that allowed replace-
ment employees to use an employer for, I suppose it
was breach of contract if, in fact, replacement em-
ployees were displaced by returning striking em-
ployees. And we indicated that it was because of
that the employer found itself in a Catch 22 situa-
tion; that we could not, in good business judgment,
allow ourselves to be caught up in, where we could
be sued as a result of a negotiated settlement and re-
turning striking employees and displacing replace-
ment employees. We would not put ourselves in
that position, so we needed to change the language
in the seniority section to the layoff and recall lan-
guage for purposes of providing some protection to
the company. [Tr. 74, L. 21 and Tr. 75, L. 16.]
The order in which Respondent has selected employ-
ees for layoffs since 22 September 1983 has been gov-
erned by the above-described layoffs and recall provision
instituted on that date. The words in that provision,
"Length of employment," have been interpreted by Re-
spondent as an employee's length of employment since
2 Belknap, Inc. Y Hale, 463 U.S. 491 (1983)
1193
the employee's most recent break in employment; if an
employee suffers a break in his employment, either vol-
untarily or involuntarily, the employee's length of em-
ployment starts when the employee returns to work and
not from the employee's initial date of employment: For
reinstated strikers who had been laid off since 22 Sep-
tember 1983, whose skill and ability were equal to those
of other employees not selected for layoff, Respondent
did not use their initial date of employment in figuring
their seniority for layoff purposes, but instead used the
date the reinstated strikers returned to work during or
after the strike. However, even though Respondent's
policy has eliminated the use of a striker's original date
of employment in figuring his seniority for layoff, Re-
spondent has continued to use a striker's initial date of
employment for the purpose of figuiring other employ-
ment benefits, such as vacation and retirement benefits,
which are based on an employee's seniority. Respondent
decided to figure a striker's seniority differently for
layoff than for fringe benefit purposes, 'because of Re-
spondent's concern, as' described supra, about the Su-
preme Court's Belknap decision. (Tr. 85.)
There is no evidence Respondent ever informed the
Union or the Metal Trades Council or the employees
that it intended to interpret the language contained in its
21 September 1983 layoff and recall proposal, so that a
striker would lose his accrued seniority for layoff pur-
poses.
Since the end of the strike in April 1984 to the date of
the hearing in this case in July 1986, Respondent had laid
off 113 employees in 1985 and 1986 who were formerly
represented by the Union. Thirty-four of the laid-off em-
ployees supported the strike for its duration and the re-
maining 79 were either striker replacements or strikers
who abandoned the strike., The record 'does not reveal
how many of these laid off employees were selected for
layoff based on their skill and ability, rather than length
of employment.
The layoffs in dispute herein took place 4 April 1986
in Respondent's quality control department among the
inspectors employed in the "Non-Destructive Examina-
tion" (NDE) and "Dimensional" sections of that depart-
ment. The inspectors employed in the NDE section were
treated by Respondent as a discrete group ' of employees
for layoff purposes, as were the inspectors employed in
the Dimensional section. On 4 April 1986 there were six
inspectors (Strand, Wallender, Lawton, Griffin, Larson,
and Hull) employed in the NDE section and six inspec-
tors (Crist, Clark, Froeber, McKinney, Wilhelm, and
Wagoner) in the Dimensional section.
The employment history of the inspectors employed in
the NDE section follows: Griffin was on layoff status at
the time of the strike and returned to work 28 November
1983, during the strike; Strand and, Wallender supported
the strike initially, but subsequently abandoned it and re-
turned to work 27 June and 3 August 1983, respectively;
Lawton was hired as a strike replacement 25 October
1983; Hull and Larson were strikers who supported the
strike for its duration and were reinstated after the strike
on 23 and 30 April 1984, respectively; Hull and Larson
at the time of the strike had been employed by Respond-
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent since 29 July 1974 and 23 June 1969, respectively,
and had never been laid off from work, whereas Strand,
Wallender, and Griffin, who had less seniority than Hull
and Larson, had been laid off on one or more occasions.
The employment history of the inspector employed in
the Dimensional section follows: Wagoner was a striker
who supported the strike for its duration, and was rein-
stated after the strike on 4 September 1984; Crist was
hired as a striker replacement 23 September 1983; Clark,
Froeber, and Wilhelm supported the strike initially, but
subsequently abandoned it and returned to work 17 and
21 October 1983 and 19 March 1984, respectively;
McKinney was laid off shortly before the start of the
strike and returned to work during the strike on 29 De-
cember 1983; Wagoner, who had been employed by Re-
spondent since 6 January 1975, had never been laid off
prior to the strike; whereas Clark and McKinney, with
less seniority than Wagoner, had been laid off once;
Wagoner, 'following his reinstatement after the strike,
was laid off 21 January 1985, with two other inspectors
in his section of the quality control department.
On 4 April 1986 Respondent laid off Griffin, Hull, and
Larson from the NDE section of the quality control de-
partment and Wagoner from the Dimensional section of
that department. Respondent determined that the skill
and ability of the employees employed in those sections
were equal and selected the employees for layoff based
on their length of employment, which Respondent fig-
ured started from the employees' most recent break in
employment. ' In the case of those employees who had
supported the 1983-1984 strike, this meant that they lost
all the seniority they had accrued prior to the strike. The
record establishes and Respondent does not dispute that,
as described in detail supra, absent the break in Larson's
and Hull's employment caused by their support of the
strike they would not have been selected for layoff.
Also, the record establishes and Respondent does not dis-
pute that, as described in detail supra, absent,the break in
Wagoner's employment caused by his support of the
strike he would not have been selected for layoff.
In concluding that Wagoner would not have been se-
lected for layoff on 4 April 1986 absent the break in his
employment caused by his support of the strike, I consid-
ered he was previously laid off 21 January 1985, which
caused a break in his employment. Respondent, however,
does not contend that in selecting Wagoner for layoff on
4 April 1986 that it relied on the fact that there had been
a break in his employment caused by his 21 January 1985
layoff. Moreover, the record reveals that this break in his
employment was not responsible for his 4 April 1986
layoff. For, when Respondent was questioned by the
Board during the investigatory stage of this case about
its reasons for selecting Wagoner for layoff, it did not
mention his January 1985 layoff. (See G.C. Exh. 3 and
Tr. 28, LL. 22 to 29, L. 1.) In any event, it is clear that
absent the break in his employment caused by the strike
Wagoner would not have been laid off on 21 January
1985, inasmuch as the record reveals that his skill and
ability was equal to that of the other employees em-
ployed on that date in his section of the quality con-
trolled department and that absent the break in his em-
ployment caused by the strike he had more seniority
than three of the employees who were not laid off.
Under the circumstances, Wagoner's selection for layoff
on 4 April 1986 was the direct and proximate cause of
his strike activity.3
B. Analysis and Conclusions
Respondent's employees Hull, Larson, and Wagoner
were strikers in an economic strike against Respondent.
They were reinstated after the strike ended, but were not
reinstated with the seniority they had accrued prior to
the strike, insofar as seniority was relevant for purposes
of employees' layoffs. On 4 April 1986, as the result of
the loss of their accrued prestrike seniority, Hull, Larson,
and Wagoner were selected for layoff.
It is settled that as economic strikers, Hull, Larson,
and Wagoner remained "employees" under the Act,4 and
were entitled to full reinstatement to their former posi-
tions on their unconditional offer to return to work or as
soon thereafter as there were vacancies in their employ-
er's work force. NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378 (1967); Laidlaw Corp. v. NLRB, 414 F.2d 99,
103 (7th Cir. 1969). It is also well settled that in order to
fully reinstate Hull, Larson, and Wagoner, Respondent
was required to reinstate them with their full seniority
rights, which included the seniority they had accrued
while employed by Respondent prior to the strike.5
Nonetheless, on 4 April 1986, Respondent did not credit
them with their accrued prestrike seniority when, using
employees' seniority as the criteria, it selected them for
layoff. Because of Respondent's failure to credit them
with their accrued prestrike seniority, they were laid off.
The aforesaid legal principles and the considerations set
forth hereinafter have persuaded me that the 4 April
1986 layoffs of Hull, Larson, and Wagoner violated Sec-
tion 8(a)(1) and (3) of the Act.
The seniority standing of Hull, Larson, and Wagoner,
prior to the strike, affected their tenure' of employment
because when Respondent needed to reduce its work
force it selected employees for layoff solely on the basis
of their seniority. During the strike Respondent changed
this policy; now employees were to be selected for layoff
based on skill and ability, with seniority governing only
when skill and ability were equal. -Respondent at this
time also adopted a policy of not crediting reinstated
strikers with their accrued prestrike seniority for pur-
poses of layoff. Thus, the seniority of Hull; Larson, and
3 I note Respondent has not raised as either an affirmative defense or
otherwise argued that the complaint 's allegations with respect to Wagon-
er are time barred by the 6-month limitations proviso of Sec 10(b) of the
Act
4 Sec 2(3) of the Act,,define an "employee" as iticludmg "any individ-
ual whose work has ceased as a consequence 'of, or in connection with,
any current labor dispute and who has not obtained any other regu-
lar and substantially equivalent employment . "
5-Harrison Ready Mix Concrete, 272 NLRB 331, 332 (1984), MCC Pa-
cific Valves, 244 NLRB 931, 934-936 (1979), Rogers Mfg. Co- v NLRB,
486 F 2d 644, 647-648 (6th Or 1973 ) See also General Electric Co, 80
NLRB 510, 512-513 (1948), and Interstate Paper Supply Co, 251 NLRB
1423, 1423-1424 (1980) (tolling the seniority of strikers during their par-
ticipation in a strike < held incompatible with their right to strike) Lone
Star Industries, 279 NLRB 550 (1986), cited by Respondent, is not to the
contrary There the Board reaffirmed the settled principle that an eco-
nomic striker has no statutory right to be recalled by seniority
BINGHAM WILLAMETTE 1195
Wagoner still played a significant role after the strike in
determining whether they would be selected for layoff,
and Respondent by not crediting them with the seniority
they had accrued prior to the strike necessarily reduced
the seniority position they enjoyed before the strike and
would have continued to enjoy but for the strike. Re-
spondent in effect took away from the discriminatees
their existing seniority standing and substituted a lower
seniority standing vis-a-vis nonstrikers and employees
who had abandoned the strike, thereby serving to penal-
ize the discrirmnatees because of their strike activity. By
not giving the discriminatees the benefit of the seniority
they had accrued prior to the strike, when it decided
who to select for layoff on 4 April 1986, while crediting
nonstrikers and striker replacements and strikers who
had abandoned the strike, with all the seniority they had
accrued during the strike, it is apparent that Respondent
reduced the relative seniority standing of the discrimina-
tees because they had supported the strike for its dura-
tion. As such, this conduct was merely the converse of
an employer's grant of„ superseniority to individuals who
work during the strike, a practice expressly found to be
unlawfully by the Supreme Court in NLRB v. Erie Resis-
tor Corp., 373 U.S. 221 (1963). In both cases, the employ-
er's, action permanently alters strikers' prestrike seniority
standing based on nothing more than the striking em-
ployees' strike activity. Respondent's action, like the em-
ployer's in Erie Resistor, was destructive to the employ-
ees' statutory right to strike.'For, as in Erie Resistor:
(1) [Respondent's policy of not giving the strikers
credit for the seniority they had accrued prior to
the strike for purposes of layoffs] affects the tenure
of all strikers whereas permanent ' replacement,
,proper under MacKay,' afffects only those who are,
in actuality, ,replaced. It is one thing to say that a
strike is subject to loss of his job at the striker's end
but quite another to hold that in addition to the
threat of replacement, all strikers will at best return
to their jobs with seniority inferior to that of the re-
placements and of those who left the strike.
(2) [Respondent's policy of not giving the strikers
credit for the seniority they had accrued prior to
the strike for purposes of layoffs] necessarily oper-
ates to the detriment of those who participated in
the strike as compared to nonstrikers.
(5) . . . Unlike the replacement granted to
MacKay which cases to be an issue once the strike
is over, the plan here creates a cleavage in the plant
continuing long after the strike is ended. Employees
are henceforth divided into two camps: those who
stayed with the union and those who returned
before the end of the strike and thereby gained
extra seniority. This breach is re-emphasized with
each subsequent layoff and stands as an ever-present
reminder of the dangers connected with striking
and with union activities in general.
NLRB v. Erie Resistor Corp., 373 U.S. 221, 230-231
(1963). The permanent division of the employees herein
into those who stayed with the Union and those who did
not strike or who abandoned the strike is vividly illus-
trated by what happened to the discriminatees. None of
the discriminatees had ever been selected for layoff prior
to the strike, whereas, several of the other workers in
their department-Strand , Wallender, Clark, and McKin-
ney-had been laid off because they had less seniority
than the discriminatees . However, when Respondent on
4 April 1986 used seniority as the basis to select employ-
ees for layoff, the discriminatees were laid off, whereas
Strand , Wallender, Clark, and McKinney were not laid
off because they now have more seniority than the dis-
criminatees inasmuch as the discriminatees had supported
the strike for its duration and Strand , Wallender, Clark,
and McKinney had abandoned the strike.
Based on the aforesaid considerations, I am persuaded
that Respondent 's failure to credit Hull, Larson, and
Wagoner ' with the seniority they had accrued prior to
the strike , adversely affected the employees' statutory
right to strikes I therefore further find that since the
record establishes that Hull, Larson , and Wagoner were
selected for layoff and laid off on 4 April 1986 as the
direct result of the loss of their accrued prestrike seniori-
ty, that their layoffs violated Section 8(a)(l) and (3) of
the Act.
In concluding that the 4 April 1986 layoff of the dis-
criminatees violated Section 8(a)(1) and (3) of the Act, as
alleged in the complaint, I considered Respondent's sev-
eral defenses and rejected them for the following rea-
sons.
Respondent argues that the discriminatees did not have
the right to have their accrued prestrike seniority consid-
ered when Respondent selected them for layoff, because
Respondent had lawfully ' eliminated for layoff purposes
the strikers ' accrued prestrike seniority. This argument is
based on Respondent's further contention that 'after
reaching an impasse in bargaining with the Metal Trades
Council it was legally entitled to implement the portion
of its contractual layoff and recall proposal, which elimi-
nated the strikers' accrued prestrike seniority, just as it
was legally entitled to implement those parts of the con-
tract proposal that reduced the employees ' wages and
holidays. The only authority cited for this proposition is
certain language in Harrison , Ready M& Concrete,7 which
was merely dictum, unnecessary for the Board's decision.
On the other hand , the law is settled that an employer
fails to bargain in good faith when it insists on a proposal
that violates the Act by unlawfully discriminating against
strikers. Erie Resistor Corp., 132 NLRB 621, 631 (1961);
Interstate Paper Supply Co., 251 NLRB 1423 (1980);
Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720 , 726 (6th
Cir 1964); Griffin Wheel Co. v. NLRB, 320 F . 2d 656, 659
(7th Cir . 1963). Thus, if Respondent had in fact demand-
6 I have found, infra, that Respondent failed to show any "legitimate
and substantial" business justification for not crediting the discrimmatees
with their accrued prestrike seniority when, on 4 April 1986, it selected
them for layoff because of their lack of seniority, I have also found,
supra, that by engaging in this conduct Respondent adversely affected
the employees' statutory rights to some extent It is therefore unnecessary
for me to decide whether Respondent's conduct can be characterized as
having an "inherently destructive" effect on the employees' rights.
NLRB v Great Dane Trailers, 388 U S. 26, 33-34 (1967)
7 272 NLRB 331 fn 2 (1984)
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed during the contract negotiations that strikers be rein-
stated without their accrued prestrike seniority for
layoff, and insisted on this as part of a contract, it would
have violated Section 8(a)(5) and (1) of the Act. See
Interstate Paper Supply Co., 251 NLRB 1423 (1980) (em-
ployer violated Sec. 8(a)(5) and (1) of the Act by insist-
ing on an agreement, which provided that strikers would
not accrue seniority for the period of time they were on
strike). However, as I have found supra, there is no evi-
dence that Respondent during the contract negotiations
explained to the Union or the Metal Trades Council or
the employees that it intended to interpret the language
contained in its proposed contractual layoff and recall
provision, so that the strikers would lose their accrued
seniority for layoff purposes. The language contained in
that provision does, not expressly or impliedly indicate
that in those instances in which employees' skill and abil-
ity are equal that the returning strikers would lose their
accrued prestrike seniority for the purpose of layoff se-
lection. The phrase' "length of employment" was not ex-
plained as meaning that returning strikers would lose
their accrued seniority. In other words, there is no evi-
dence that the curtailment of the seniority rights of the
economic strikers as accomplished through the collec-
tive-bargaining process. It is for the foregoing reasons
that I find Respondent did not institute the loss of senior-
ity policy in dispute after having bargained to an impasse
with the Union about this policy and, in any event, I fur-
ther find that if impasse bargaining on its loss seniority
policy had occurred it would not have legally permitted
Respondent to implement the policy absent evidence that
the Union agreed to' such a policy.
Respondent argues there was only a "de minimus"
impact on the employees' right to strike by Respondent's
failure to credit the discriminatees _ with their accrued
prestrike seniority when it selected them for layoff, be-
cause: (1) Respondent did not, as in Erie Resistor, grant
superseniority to the nonstrikers or those who abandoned
the strike, but treated everyone equal; (2) The strike con-
tinued for nearly 7 months following the implementation
of its policy, which eliminated the strikers' accrued pres-
trike seniority for layoffs; (3) Many more striker replace-
ments and nonstriking employees have been laid off than
returning strikers; (4) The strikers have been credited
with their accrued prestrike seniority for the purpose of
other time-related benefits of employment such as vaca-
tions and retirement. This argument is without merit for
the following reasons.
Although factually Erie Resistor is distinguishable for
this case, I am persuaded for the reason set forth previ-
ously that its rationale is applicable here. As discussed
previously, in both cases the relevant question is whether
the employer has illegally, burdened the statutory right to
strike by artificially dividing the work force into those
who did not engage in strike activity and those who did.
And, insofar as Respondent contends that it treated ev-
eryone, equal, this contention ignores the fact that the
striker replacements, in relationship to the strikers, lost
nothing, whereas, the strikers lost all the seniority they
had accumulated prior to the strike for the purpose of
layoffs, and that strikers who abandoned the strike were
given more layoff seniority than those who supported
the strike for its duration.
Regarding (2), the employer in Erie Resistor openly
proclaimed its offer of superseniority during the strike,
whereas, Respondent did not openly proclaim during the
strike it had changed the relative seniority standing of
the strikers and nonstrikers by eliminating the strikers'
accrued prestrike seniority for layoffs. Respondent
merely told the striker replacements that they had been
hired as permanent replacements for the strikers and it
was only after the_ end of the strike when Respondent
first laid off employees based on seniority that the em-
ployees learned of Respondent's conduct. Thus, since
Respondent's elimination of the strikers' seniority was
not made public to the employees during the strike it did
not, as the employer's conduct in Erie Resistor, under-
mine the strike. However, this is, only a difference in
degree, rather than in kind, and,. for the reasons set forth
previously, did not significantly alleviate the adverse
affect on the employees' statutory right to strike to such
a degree as to warrant the conclusion that the affect on
the employees' rights was, as Respondent contends, only
"de minimus."
Regarding (3), in 1985 and 1986 Respondent laid off
113 employees; 34 strikers who supported the strike for
its duration, and 79 striker replacements or, strikers who
abandoned the strike. Respondent did not present evi-
dence of the number of striker replacements selected for
layoff nor does the record reveal how many of the laid-
off employees were selected for layoff based on their rel-
ative seniority, rather than on skill and ability. In other
words, the record does not show that Respondent's
policy of changing the relative seniority of the strikers
and nonstrikers for layoff purposes, did not in fact ad-
versely affect the tenure of employment of many strikers
or that pursuant to this policy many more striker re-
placements' were laid off than strikers. The record does
show, however, that on ,4 April 1986 the three discrimin-
atees were laid off as the direct result of Respondent's
policy.
Regarding (4), the fact that the strikers were credited
with their accrued prestrike seniority for the purpose of
receiving time-related employment benefits such as vaca-
tion and retirement benefits, does not erase the fact that
for the purpose of layoff selection the strikers were not
credited with their accrued prestrike seniority, conduct
that was reasonably calculated to, and that in fact caused
strikers to be laid off.
Respondent contends that it had a legitimate and sub-
stantial business reason for not crediting the strikers with
their accrued prestrike seniority for the purposes of lay-
offs. In support of this contention Respondent relies on
the 'testimony of David Randall, its personnel manager.
Randall testified that during the contract negotiations
Respondent told the Metal Trades Council that in the
Belknap case8 the Supreme Court had recently allowed
striker replacements to sue an employer for breach of
contract for replacing them with returning strikers and
that Respondent, to avoid such a lawsuit by its striker re-
8 Belknap, Inc v Hale, 463 U S 491 (1983)
BINGHAM WILLAMETTE
placements, was proposing that the order of employees'
layoffs and recall from layoffs, be based on their skill and
ability and that only when skill and ability was equal
would length of employment be the determining factor.
Randall also testified that Respondent decided to figure
the strikers' seniority differently for layoff purposes than
for fringe benefit payment purposes, because of Respond-
ent's concern about the Belknap case.
In Belknap v. Hale, the Supreme Court held that an
employer may be sued for breach of contract in state
court by striker replacements if, having offered them
permanent employment, they are later displaced by rein-
stated, strikers pursuant to a settlement with the union or
a Board unfair labor, practice order. The Court held that
an employer could protect itself from such suits by
promising permanent employment subject to these con-
tingencies-and in so holding replacements temporary
rather than permanent. Because of its concern about the
possible impact of the Belknap decision Respondent may
have had a good reason for not entering into a strike set-
tlement with the Metal Trades Council calling for the re-
instatement of the strikers and the discharge of the strik-
er replacements. The Belknap decision, however, did not
expressly or impliedly give Respondent a legitimate and
substantial justification to implement its policy of rein-
stating the strikers with the loss of their accrued pres-
trike seniority for the purpose of layoffs; In its posthear-
ing brief Respondent does not point to any language in
the Belknap decision, which provided it with such justifi-
cation. Rather, Respondent's argument (Br. 6 and 16) is
that under Belknap it was justified in eliminating seniori-
ty from its contract proposal governing layoffs and in
substituting skill and ability as the primary basis for
layoff selection. However, the question for decision is
not whether Respondent could lawfully substitute skill
and ability for seniority as the primary basis for layoff se-
lection, rather, the question for decision concerns the le-
gality of Respondent's policy of using seniority as the
basis of layoff selection when skill and ability are equal,
while at the same time implementing a policy of not
crediting the reinstated strikers with the seniority they
had accrued prior to the strike. The record does not
reveal and Respondent, as I understand its argument,
does not contend that the Belknap decision provided it
with a legitimate and substantial justification to imple-
ment this latter policy.
Lastly, Respondent's reliance on the courts' decision in
NLRB v. Potlatch Forests, Inc., 189 F.2d 78 (6th Cir.
1985) and NLRB v. Harrison Ready Mix Concrete, 770
F.2d 78 (6th Cir. 1985), is misplaced. Potlatch Forests is
no longer a viable precedent. In NLRB v. Resistor Corp.,
373 U.S. 221 (1963), the Supreme Court specifically
stated that it had granted certiorari to resolve the con-
flict in views between the Third and Ninth Circuits (Erie
Resistor and Potlatch Forests) on the one hand and the
Sixth Circuit's decision in Swarco, Inc. v. NLRB, 303
F.2d 668 (6th Cir. 1962), supporting the Boards' position.
Erie Resistor Corp., 373 U.S. at 222. "By agreeing with
the Sixth Circuit, the Supreme Court virtually eliminated
Potlatch Forests as a viable precedent." NLRB v. Trans-
port Co. of Texas, 438 F.2d 258, 266 (5th Cir. 1971). And,
in Harrison Ready Mix Concrete the court concluded that
1197
the respondent-employer "had a legitimate business pur-
pose, as in MacKay, for protecting the replacement em-
ployees' places on the work list, and its treatment of the
[alleged discriminatees] was generous rather than dis-
criminatory." Harrison Ready Mix Concrete, 770 F.2d at
81. In the instant case, Respondent did not have a legiti-
mate business purpose for its disputed conduct and there
is no showing that its treatment of the discriminatees was
"generous," rather than merely what the law required.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By laying off employees Mike Hull, Tom Larson,
and Lloyd Wagoner on 4 April 1986, Respondent violat-
ed Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist from such conduct and to take affirma-
tive action necessary to effectuate the purpose of the
Act.
Having found that Respondent unlawfully laid off em-
ployees Mike Hull, Tom Larson, and Lloyd Wagoner on
4 April 1986, I shall recommend that Respondent be or-
dered to offer each of them immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other, benefits suffered as a result of the dis-
crimination against them. Such 'losses shall be computed
in the manner set forth in F W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in Florida
Steel Corp., 251 NLRB 651 (1977).9
I shall also recommend that Respondent be required to
remove from its files any reference to the 4 April 1986
layoff of Hull, Larson, and Wagoner, 'and notify each of
them in 'writing that this has been done and that evi-
dence of their unlawful layoff will not be used as a basis
for future personnel actions against them.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed10
9 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
'° 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
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Bingham Willamette, Portland,
Oregon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying its reinstated striking employees their full
seniority rights when selecting employees for layoff.
(b) 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 necessary to
effectuate the policies of the Act.
(a) Offer Mike Hull, Tom Larson, and Lloyd Wagoner
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(b) Remove from its files any references to the layoff
of Mike Hull, Tom Larson, and Lloyd Wagoner on 4
April 1986 and notify each of them in writing that this
has been done, and that evidence of this layoff will not
be used as a basis for future personnel actions against
them.
(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 facility in Portland, Oregon, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(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.
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 or-
dered us to post and abide by this notice.
WE WILL NOT deny our reinstated striking employees
their full seniority rights when we select employees for
layoff.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Mike Hull, Tom Larson, and- Lloyd
Wagoner immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and WE WILL make them whole for any loss of
earnings and other benefits suffered as a result of their 4
April 1986 layoff, with interest.
WE WILL remove from our files any references to the
4 April 1986 layoff of Mike Hull, Tom Larson, and,
Lloyd Wagoner and notify each of them in writing that
this has been done, and that evidence of this layoff will
not be used as a basis for future personnel actions against
them.
BINGHAM WILLAMETTE
11 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 "